Bedell v. Com.

Decision Date22 April 1993
Docket NumberNo. 90-SC-965-MR,90-SC-965-MR
Citation870 S.W.2d 779
CourtUnited States State Supreme Court — District of Kentucky
PartiesDavid Randolph BEDELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

This appeal is from a judgment based on a jury verdict which convicted Bedell of murder with a sentence of life without parole for twenty-five years; first-degree rape with a sentence of twenty years; kidnapping with a sentence of twenty years; and first-degree wanton endangerment with a sentence of five years; and first-degree unlawful imprisonment with a sentence of five years. These sentences were ordered to run consecutively.

The questions presented are whether Jefferson County was the proper venue for trial of the rape and murder charges; whether the jury instructions for rape and murder were proper; whether the convictions for rape and kidnapping constituted double jeopardy multiple prosecutions; and whether the video tape and photographs of the victim were properly admitted into evidence.

The body of a 21-year-old female, who was a substitute newspaper carrier, was discovered in a cemetery on August 5, 1989. She had been raped and shot twice. Earlier that day there had been a report that two people had been abducted by a heavy-set man with a moustache and blond hair while they were in the process of delivering newspapers between 3:30 a.m. and 4:30 a.m. on Old Stone Lane in Jefferson County. One of the victims managed to escape. The other did not. The case was investigated jointly by Jefferson and Oldham County officers. The cemetery where the body was discovered is located on the Jefferson-Oldham County line. Bedell was charged with the crimes and was convicted. This appeal followed.

Bedell argues that the portion of the trial in Jefferson Circuit Court that included the charges of rape and murder as distinguished from the charges of kidnapping and wanton endangerment was improper because the venue for those charges should have been only in Oldham County. He claims he should have received a separate trial on the rape and murder charges in Oldham County.

The murder victim was kidnapped on Old Stone Lane in Jefferson County and taken to the Louisville Memorial Gardens Cemetery located on the Jefferson-Oldham County line where she was raped and murdered. Bedell was arrested by Jefferson County Police on the evening of August 5, and charged with two counts of kidnapping and one count of wanton endangerment. Oldham County issued warrants of arrest on the charges of rape and murder the next day, August 6. Bedell was indicted for rape, murder, kidnapping and other offenses by a Jefferson County Grand Jury on August 8. Oldham County indicted him on charges of rape and murder on August 10. Pursuant to K.R.S. 15.200, the Oldham Circuit Court sought the assistance of the Attorney General to resolve the conflict created by the duplication of indictments. The Attorney General recommended that the Oldham County charges be dismissed in order to allow a single prosecution in Jefferson County.

Commission of a statutory offense in Kentucky gives rise to the authority of the courts of this state to preside over the prosecution of the case. The circuit courts of this state are never without power to preside over the prosecution of offenses committed in Kentucky. Commonwealth v. Cheeks, Ky., 698 S.W.2d 832 (1985). If the body of a homicide victim is found within this state, Kentucky courts have authority to consider the case. K.R.S. 500.060. There is no doubt that the Jefferson Circuit Court had both subject matter and personal jurisdiction to hear this matter.

Once jurisdiction is established, the proper venue or place of trial must be decided. The venue of a criminal prosecution is the county where the offense is committed. K.R.S. 452.510. Both Oldham and Jefferson counties returned indictments against Bedell. On the advice of the Attorney General's Office, Oldham county dismissed its action. The sole remaining indictment originated in Jefferson county.

It was never conclusively established whether the mausoleum where the body was found was located in the Oldham or Jefferson County portion of the cemetery. The jury was told unequivocally that the body was found beside the mausoleum in Louisville Memorial Gardens cemetery and that the cemetery is located on the Jefferson-Oldham County line. Some police officers testified that they thought the body was discovered in Oldham County while others were not sure whether it was within Oldham or Jefferson County. K.R.S. 452.620 provides that when there is a reasonable doubt as to whether the offense was committed in the county where the indictment is returned or in some other county, the proper venue is in the county where the indictment was returned.

The presumption is that a trial was held in the appropriate county. Hays v. Commonwealth, Ky., 14 S.W. 833 (1890). Only slight evidence is required to sustain the venue. Hardin v. Commonwealth, Ky. 437 S.W.2d 931 (1968). The jury was presented enough evidence that it could have decided that Jefferson County was the proper venue for this trial. Lunce v. Commonwealth, 289 Ky. 706, 160 S.W.2d 3 (1942).

Bedell also contends that the jury instructions as to rape and murder were improper because they allowed each member of the jury without unanimous agreement to find that the rape and murder occurred in either Jefferson or Oldham County. He claims that the location of the rape and murder was Oldham County and that there was no evidence from which the jury could reasonably infer that the crimes occurred in Jefferson County, and therefore, he did not receive a unanimous jury verdict. We disagree.

A defendant may be convicted under an instruction containing alternate theories of liability and is not deprived of a unanimous verdict if the alternative theories are supported by the evidence. Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978), held that a verdict cannot be successfully attacked on the grounds that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense. See also, Campbell v. Commonwealth, Ky., 732 S.W.2d 878 (1987); Harris v. Commonwealth, Ky., 793 S.W.2d 802 (1990).

Bedell's assertion that the jury had no testimony from which it could infer the rape and murder took place in Jefferson County is without foundation. Sufficient evidence exists to support the alternative theories. Only slight evidence is necessary to sustain venue because venue does not affect the guilt or innocence of the accused. Larue v. Commonwealth, Ky., 481 S.W.2d 47 (1972).

Bedell maintains that his convictions for rape and kidnapping were multiple prosecutions and violate the prohibition against double jeopardy. He contends that rape was an included offense of kidnapping because the rape was a felony which he intended to commit at the time of the kidnapping. We disagree because he was properly convicted of both rape and kidnapping and his rights under the double jeopardy clause were not violated.

Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990), held that under the Kentucky Constitution, a single impulse or act constitutes but one offense. The majority in Ingram reviewed a series of Kentucky cases in which multiple prosecutions were sustained because of the existence of additional acts of criminal misconduct unnecessary to the commission of the other offense. This Court noted that the question is whether in each offense there are additional acts of criminal misconduct...

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