Winstead v. Commonwealth of Ky.

• Citation: 327 S.W.3d 386
• Decision Date: 17 December 2010
• Docket Number: Nos. 2007–SC–000829–MR,2008–SC–000446–TG.,s. 2007–SC–000829–MR
• Parties: Russell WINSTEAD, Appellant,v.COMMONWEALTH of Kentucky, Appellee.Russell Winstead, Appellant,v.Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

327 S.W.3d 386

Russell WINSTEAD, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.Russell Winstead, Appellant,

v.Commonwealth of Kentucky, Appellee.

Nos. 2007–SC–000829–MR

2008–SC–000446–TG.

Supreme Court of Kentucky.

April 22, 2010.As Modified Dec. 16, 2010.As Corrected Dec. 17, 2010.

Marc A. Wells, Wells & Wetzel, Princeton, KY, Counsel for Appellant.Jack Conway, Attorney General of Kentucky, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, David G. Massamore, Office of the Commonwealth's Attorney, Fourth Judicial Circuit, Madisonville, KY, Counsel for Appellee.

MEMORANDUM OPINION OF THE COURT

I. INTRODUCTION.

Russell Winstead appeals as a matter of right ¹ from a circuit court judgment following a jury trial in which he was convicted of murder and robbery.² The judgment sentenced Winstead for the murder to life imprisonment without parole for twenty-five years (LWOP/25) and for the robbery to twenty years' imprisonment. The trial court ordered the sentences to run consecutively. Following the denial of his post-trial motion for a new trial, Winstead filed in the Court of Appeals a separate appeal; and we granted transfer of that appeal to this Court.³ This opinion addresses both appeals.

Winstead's appeal seeks reversal of the judgment by raising several challenging issues relating to the trial of his case. Upon review of the full record, we conclude that Winstead received a fundamentally fair trial, so we affirm both of his convictions and the sentences imposed. But we must vacate the judgment on our own motion because the trial court erred by ordering Winstead's sentences to run consecutively rather than concurrently.⁴ Accordingly, we remand the case to the trial court with directions to resentence Winstead and enter a new judgment in accordance with this opinion.

II. FACTUAL AND PROCEDURAL HISTORY.

On the night Ann Branson was stabbed to death, a witness reported seeing her nephew, Russell Winstead, at or near Branson's driveway. No eyewitnesses to the murder ever came forward. No scientific evidence was ever produced linking Winstead to the crime. But Winstead was the immediate object of suspicion because he was known to have recently borrowed substantial sums of money from Branson to cover his gambling debts.⁵

As the investigation progressed, two developments sharpened the focus on Winstead. First, police found hidden under Winstead's mattress at home a knife consistent with that used to stab Branson. Second, Winstead's wife contacted police and changed her initial statement to them concerning a critical piece of the investigation: the time Winstead arrived home on the night of Branson's murder.

Winstead was charged with murdering Branson and with robbing her of a check he had allegedly written to her. He then fled to Costa Rica but was eventually extradited to the United States. The charges proceeded to a jury trial resulting in his convictions and sentences.

III. ANALYSIS.

Winstead urges us to reverse the judgment because he alleges that the trial court erred by:

• permitting his ex-wife to testify against him in violation of the spousal privilege contained in Kentucky Rules of Evidence (KRE) 504;

• sentencing him to LWOP/25 in violation of the terms of his extradition from Costa Rica;

• failing to grant a directed verdict of acquittal;

• permitting the Commonwealth to use other inmates to elicit potentially incriminating statements against him;

• allowing argument by the prosecutor in closing that contained several instances of egregious misconduct; and

• denying his motion for a mistrial necessitated by jurors' use of cell phones during deliberations.

A. Winstead's Convictions are Valid.

1. Any Error in Applying Marital Communications Privilege was Harmless.

Winstead contends the trial court erred by permitting his ex-wife, Terri Rainwater, to testify in contravention of the spousal privilege set forth in KRE 504. We conclude that any error was harmless.

Rainwater was Winstead's wife at the time of the murder, but the two had separated and divorced by the time of trial. Police initially interviewed Rainwater when investigating the murder, and she reported that Winstead had returned home at approximately 7:30 the night of the murder. Later on, she contacted the police through counsel and told police that she had not been truthful in her initial interview with them. In a second interview, Rainwater told police that Winstead had not arrived home until about 9:05 on the night of the murder. She later explained in her trial testimony that she had made the initial, false statement because her husband told her to do so.

The 7:30 to 9 p.m. time difference was critical information because Branson was last seen leaving a church service at about 7 p.m. Her housekeeper reported receiving a call from her about 9 p.m. The medical examiner determined that Branson had probably died sometime that evening after returning from the church service.⁶

Winstead filed a motion in limine seeking to bar Rainwater at trial from testifying at all about events occurring during their marriage and seeking to exclude confidential statements made by him to Rainwater during their marriage. And this motion sought to exclude in particular the communications between Winstead and Rainwater concerning what she should tell police about his whereabouts the night of the murder. But the trial court ruled that communications between spouses about establishing an alibi were not privileged because an alibi, by its very nature, was intended for disclosure.

Winstead contends that the trial court erred in this ruling because “[t]he confidential communication between the husband and spouse was not just the alleged alibi but the request that it be communicated as an alibi” and “there can be no doubt that [Winstead] would not have intended for her to communicate this request to a third party.”

Rainwater testified at trial over Winstead's objection. She told the jury that Winstead arrived home about 9:05 on the night of the murder. She also testified that a few days after the murder, Winstead told her that because of his gambling problems, she should tell police he arrived home at 7:30 the night of the murder. Rainwater further testified that Winstead told her that on the evening of the murder he had been in a church parking lot having a discussion with a friend, Rick Blanchard.

Rainwater testified that no one else was present when Winstead asked her to tell police he arrived home at the earlier time. She also testified that Winstead told her that he had had a discussion with his father and that he and his father had decided what to do before Winstead told her to say he arrived home at the earlier time. She further testified that Winstead later told his friend Blanchard to borrow a drill “to support the story.” The Commonwealth points out that Blanchard testified to borrowing a drill from Winstead the night of the murder.

KRE 504 contains two separate evidentiary privileges. The first, contained in section (a), is the testimonial privilege “by which a spouse may refuse to testify, or may prevent the other spouse from testifying against him or her, as to events occurring after the date of their marriage....” ⁷ Since Rainwater was no longer Winstead's wife at the time of trial, the testimonial privilege of KRE 504(a) was inapplicable; and the trial court did not err in allowing Rainwater to testify against Winstead about events occurring during their marriage.⁸ Although in a published case we did not explicitly hold—but strongly hinted—that the spousal testimony privilege survives only as long as the marriage,⁹ we have explicitly held in an unpublished case that the spousal testimony privilege does not extend to a former spouse.¹⁰ We now, again, definitively hold that the spousal testimony privilege ends when the marriage is dissolved.

But the lingering question is whether the challenged portion of Rainwater's testimony was a confidential communication that should have been barred under the marital communication privilege of KRE 504(b). That marital communications privilege (as to confidential communications made during the marriage) survives divorce.¹¹ Winstead contends that the trial court erroneously failed to exclude his communication to Rainwater that because of his gambling problem, it would be better to tell police that he arrived home at 7:30 p.m. the night of the murder.

The Commonwealth responds that because Rainwater testified to Winstead's telling her that he discussed this concocted alibi with others, his communications with her were meant for disclosure, rendering the privilege nonexistent or waived. The Commonwealth further argues that even if the trial court did err in failing to exclude as privileged the challenged alibi request, the error was harmless because the jury would nevertheless have heard Rainwater recant her original time estimate in favor of the later time.¹²

Winstead also contends that Rainwater should not have been allowed to testify about the time he actually did arrive home the night of the murder because her observation of his arrival time would itself be considered a confidential communication under the broad definition of communication used in cases like Slaven v. Commonwealth.¹³

KRE 504(b) states, “[a]n individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage.” Under KRE 504(b), a communication is considered confidential when “it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person.”

In Slaven, we quoted with approval a case from 1890 for the conclusion that the term communication is so broad that it may not be

confined to a mere statement by the husband to the wife or vice versa; but should be construed to embrace all knowledge upon the part of the one or the other...