West v. Commonwealth

780 S.W.2d 600, 1989 WL 111485
CourtKentucky Supreme Court
DecidedOctober 6, 1989
Docket87-SC-834-MR
StatusPublished
Cited by83 cases

This text of 780 S.W.2d 600 (West v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West v. Commonwealth, 780 S.W.2d 600, 1989 WL 111485 (Ky. 1989).

Opinions

LAMBERT, Justice.

Upon a jury verdict, appellant was convicted of murder and sentenced to a maximum term of twenty-two years imprisonment. The primary issue before this Court is whether we must reverse appellant’s conviction for “palpable error which affects the substantial rights of a party....” RCr 10.26. Appellant also claims entitlement to a directed verdict.

Upon examination of the record, it is clear that during summation the Commonwealth Attorney engaged in improper argu[601]*601ment. It is equally clear, however, that appellant’s objections to such misconduct were sustained, and upon request, the jury was admonished to disregard the prosecutor’s remarks. Inasmuch as appellant did not seek relief in the form of a mistrial, we must conclude that submission of the case to the jury as impaneled was a part of his trial strategy.

The victim was the son of Alice Schira, a woman with whom appellant lived. The evidence presented created a classic jury question as to whether appellant was guilty of murder or whether he shot the victim in self-defense. In support of his self-defense claim, appellant presented evidence that the victim suffered from emotional disturbances and had a violent temper. He testified that the victim flourished a gun upon him and, indeed, a handgun with six live rounds was found near the victim’s body. On the other hand, the victim was shot twice, once in the back and once in the upper portion of the left side of his neck. It is unnecessary to detail the additional evidence presented to resolve appellant’s claim for directed verdict.

Rarely is a defendant relying upon self-defense entitled to a directed verdict. Only in the unusual case in which the evidence conclusively establishes justification and all of the elements of self-defense are present is it proper to direct a verdict of not guilty. In Taul v. Commonwealth, Ky., 249 S.W.2d 45 (1952), this Court held that a defendant’s statement that he acted in self-defense or his description of events which show such to be the case need not be accepted at face value where the jury may infer from his incredibility or the improbability of the circumstances that one or more of the elements necessary to qualify for self-defense is missing. In Townsend v. Commonwealth, Ky., 474 S.W.2d 352 (1971), we held that if the evidence relied upon to establish self-defense is contradicted or if there is other evidence from which the jury could reasonably conclude that some element of self-defense is absent, a directed verdict should not be given. While the Commonwealth always bears the burden of proving every element of the crime charged, a defendant relying upon self-defense bears the risk that the jury will not be persuaded of his version of the facts. Collins v. Commonwealth, 309 Ky. 572, 218 S.W.2d 393 (1949). While much of the evidence presented in this case was circumstantial, we have no reluctance in holding that sufficient evidence was presented to justify submitting the issue of appellant’s guilt to the jury. Willis v. Commonwealth, Ky., 502 S.W.2d 60 (1973) and Pruitt v. Commonwealth, Ky., 490 S.W.2d 486 (1973).

The troubling issue in this case arises out of the summation delivered by Commonwealth Attorney, Bruce R. Hamilton. Among other things, Mr. Hamilton said:

“In 1986 Alice brought West (the appellant) home from the backside of Churchill Downs like a race horse stud to service her farm and to work for her.”

Later, in the same vein, Mr. Hamilton continued:

He is a back of the track stud to take care of her and to take care of the farm and to work and perform the duties.

Mr. Hamilton compared appellant to “dirty Harry;” implied that because the victim’s mother had called a lawyer, she had something to hide; and commented that “[ijnnocent people don’t need the lawyers. Justice will prevail.” Mr. Hamilton appears to have attempted to mislead the jury by saying:

Another thing about Alice, she hasn’t been in this courtroom one day except when she testified to sit with the Commonwealth or to sit with her lover.

Mr. Hamilton was well aware that the victim’s mother, Alice, was subject to a witness separation order and was prohibited from being in the courtroom. Finally, Mr. Hamilton concluded with the following:

I’ve taken too long, and I know you’re hungry. I’ll quit. I’ll submit the case to you on behalf of the people of Henry County, the people of the Commonwealth of Kentucky. I’m a country lawyer and I can’t do as good as these good high price defense lawyers can do for these people.

[602]*602While the foregoing quotations from Mr. Hamilton’s summation do not exhaust his intemperate remarks, they fairly represent the approach he took to the case. He delivered a barrage of vilification, misleading innuendo, and outright deception. However, upon every objection by defense counsel, the trial court sustained the objection and upon request, admonished the jury. Appellant did not move for a mistrial.

RCr 9.22 imposes upon a party the duty to make “known to the court the action he desires the court to take or his objection to the action of the court....” Failure to comply with this rule renders an error unpreserved. Bowers v. Commonwealth, Ky., 555 S.W.2d 241 (1977). If a party claims entitlement to a mistrial, he must timely ask the court to grant him such relief. Jenkins v. Commonwealth, Ky., 477 S.W.2d 795 (1972). Further, we have held that failure to move for a mistrial following an objection and an admonition from the court indicates that satisfactory relief was granted. “It is well within the realm of valid assumption that counsel was satisfied with the court’s admonition to the jury.” Hunter v. Commonwealth, Ky., 479 S.W.2d 4, 6 (1972). From the foregoing it is clear that a party must timely inform the court of the error and request the relief to which he considers himself entitled. Otherwise, the issue may not be raised on appeal.

In a proper case, however, pursuant to RCr 10.26, an unpreserved error may be reviewed and appropriate relief granted providing the court determines that manifest injustice has resulted from the error. However, nothing contained in RCr 10.26 precludes the waiver of palpable error or even waiver of a constitutional right. In Futrell v. Commonwealth, Ky., 437 S.W.2d 487 (1969), appellant claimed denial of constitutional rights in the admission of evidence concerning line-up identification and his admission of guilt following such identification. Noting that counsel for appellant failed to object to any of the evidence and holding that the alleged errors were not reviewable, this Court said:

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Bluebook (online)
780 S.W.2d 600, 1989 WL 111485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-commonwealth-ky-1989.