Murphy v. Com.

• Decision Date: 11 May 1983
• Citation: 652 S.W.2d 69
• Parties: Gregory Arnold MURPHY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Gregory Arnold MURPHY, Movant/Appellant, v. COMMONWEALTH of Kentucky, Respondent/Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 69

652 S.W.2d 69

Gregory Arnold MURPHY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Gregory Arnold MURPHY, Movant/Appellant, v. COMMONWEALTH of Kentucky, Respondent/Appellee.

Supreme Court of Kentucky.

May 11, 1983.

Rehearing Denied July 6, 1983.

Frank W. Heft, Jr., Chief Appellate, Jefferson Dist. Public Defender, Louisville, for appellant.

Steven L. Beshear, Atty. Gen., Eileen Walsh, Asst. Atty. Gen., Frankfort, for appellee.

VANCE, Justice.

Gregory Arnold Murphy appeals as a matter of right from his conviction of murder for which he was sentenced to life imprisonment. During the pendancy of the appeal, he filed a motion for a new trial based upon the alleged discovery of new evidence. A request for a hearing upon this motion was overruled, and his appeal from that order was transferred to this court. The two appeals have been heard together, and each will be considered in this opinion.

The appellant Murphy and Norman Crittenden were indicted separately for the murder of Kim Keller who was found dead from strangulation in an alley in Louisville, Kentucky, on October 18, 1979. They were tried jointly. Murphy was convicted, and the jury was unable to agree upon a verdict as to Crittenden.

Crittenden gave a statement to the police on October 30, 1979, which was reduced to writing and signed by Crittenden in which he admitted he had seen the murder but claimed that he was a witness only, not a participant. This written statement was admitted in evidence on motion by Crittenden's counsel over objection by Murphy.

In the statement Crittenden asserted that he had been with Murphy practically the entire day on October 17, 1979, and into the morning of October 18. On the evening of October 17, Crittenden, using his automobile, drove Murphy to a number of bars, liquor stores, and night spots. At approximately 1:00 a.m., October 18, they saw the deceased at Jack's Grill, and she later joined them in the car. An argument developed between Murphy and the deceased and Crittenden, at the direction of Murphy, stopped the car, and Murphy and the deceased got out. Murphy hit the deceased in the face, and Crittenden claimed he tried to stop him but that Murphy knocked him down, and he got back in the car. Murphy then pulled something around the deceased's neck, and after about 5 or 10 minutes Murphy got back in the car and they drove away leaving the deceased in the alley.

On September 3, 1970, Crittenden gave another statement to police officers which was tape recorded. Again he placed the responsibility for the killing on Murphy but admitted that he held the deceased's arms and legs while Murphy strangled her with a short cord. He denied that he helped pull the cord around her throat.

In the tape recording he also stated that earlier in the evening of October 17, 1979, he and Murphy had stopped to see a girl named Susan, a prostitute, and that Murphy had asked her to go with them, but she refused.

The tape recording was played before the jury over Murphy's objection.

Reinella Susan Coates testified that Murphy and Crittenden came by the hotel in which she lived and propositioned her for a date on October 17, 1979; that both were drinking heavily; that Murphy was playing with a short white cord; that they solicited her to accompany them but she refused; and that they asked her where they could find the deceased, Kim Keller. She said that less than two weeks before the 17th she had been at Murphy's house with Crittenden; that both were drinking and smoking pot; that Crittenden had said he was going to kill the deceased for ripping him off; that he was going to strangle her and beat her to death; that he asked Murphy to help him and that Murphy agreed.

Appellant sets forth ten allegations of error in his original appeal. He first contends that the tape recording and the signed statement of the codefendant Crittenden were improperly admitted in evidence because the tape and the statement incriminated him, and he had no opportunity to confront his accuser or to cross-examine him. He relies upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

It is true that the tape recording and statement were admitted during the Commonwealth's case-in-chief and before it was known whether Crittenden would testify. Thus, at the time of admission appellant had no opportunity to cross-examine his codefendant concerning the allegations that incriminated appellant.

Later in the trial, Crittenden took the stand in his own defense. His testimony at trial was a repetition of the incriminatory statements he had made against appellant in the written statement and in the tape recording. Appellant's counsel cross-examined Crittenden extensively about his incrimination of appellant.

Assuming for purposes of argument, but not deciding, that no portion of Crittenden's statement or tape recording which incriminated appellant should have been heard by the jury at the time it was heard, the fact remains that Crittenden later testified to the same matters and was cross-examined about them. It would appear that his subsequent testimony and cross-examination would render harmless any error concerning incrimination by a codefendant. See Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974).

Murphy's only real claim of prejudice is that by reason of the erroneous admission of the tape recording and the Crittenden statement, he was forced to take the stand and deny the statements of his codefendant, and thus he was required to give up his constitutional right to remain silent.

The difficulty with this position is that he made no objection of this nature to the trial court. Had he made such an objection, Crittenden could have been given the opportunity to testify first. If Crittenden had been the first of the two defendants to testify, his direct testimony would have confronted appellant with the same need to testify in his own behalf. There was no requirement that Murphy be the first of the defendants to testify and Murphy, by failing to raise this issue with the trial court, precipitated the problem of which he now complains.

Appellant next contends that the trial court erred in refusing to give his tendered accomplice instruction.

This crime was committed October 18, 1979. RCr 9.62 which required corroboration of the testimony of an accomplice was abolished October 1, 1980. This trial occurred in February, 1981. In July, 1981, Commonwealth v. Brown, Ky., 619 S.W.2d 699 (1981), was decided in which this court held that RCr 9.62, would be applicable to crimes committed before its abolition but tried thereafter.

Appellant did not have the benefit of Brown at the time of his trial, nor rely upon it, yet its holding would sustain appellant's contention that he was entitled to an accomplice instruction.

We have decided to reexamine our holding in Commonwealth v. Brown, supra. Brown reasoned that a conviction could be had upon less evidence after the abolition of RCr 9.62 than before, and therefore the abolition of RCr 9.62 was ex post facto when applied to crimes committed before the rule was abolished but tried after the abolition.

At common law a conviction could be had solely on the testimony of an accomplice without corroboration. Blackburn v. Commonwealth, 12 Bush 181 (1876); Commonwealth v. Barton, 153 Ky., 465, 156 S.W. 113 (1913); Roberson, New Kentucky Criminal Law and Procedure, 2nd Edition, Testimony of Accomplices, sections 1828 and 1829.

It was decided in the case of James Atwood and Thomas Robbins, summer assizes, at Bridgewater, County of Somerset, England (1788) ¹ that the testimony of an accomplice was competent and would sustain a conviction without corroboration. It was pointed out that the problem with the testimony of an accomplice was not competency but credibility. The credibility of an accomplice is suspect because he is an admitted criminal and also because his testimony may be influenced by the hope of advantageous treatment of his case.

Kentucky followed the common law and permitted a conviction on the uncorroborated testimony of an accomplice until the adoption of section 239 of the criminal code in 1854 which prohibited a conviction solely upon uncorroborated testimony of an accomplice. This code provision was carried intact into subsequent criminal codes and into RCr 9.62.

The effect of the code provisions and RCr 9.62 was that testimony, otherwise competent, was deemed to be incredible as a matter of law unless corroborated in some degree. With the abolition of RCr 9.62 we have returned to the procedure as it existed at common law.

The change is one of procedure. It does not take less evidence to convict now than before the rule was abolished. The same facts must be established to prove murder or manslaughter now as before. The only change effected by the abolition of RCr 9.62 is that an impediment to the credibility of certain witnesses has been removed.

In Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), the Supreme Court held that a statute which removed the ineligibility of felons as witnesses was applicable in the trial of crimes committed before the passage of the statute. Thus, a conviction was upheld based upon the use of testimony which could not have been used when the crime was committed. The court held that the statute simply enlarged the class of persons competent to testify and was procedural.

Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed, might in respect of that offence, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt, but--leaving untouched the nature of the crime and the amount or degree of proof essential to conviction--only remove...