Bell v. Com.
| Decision Date | 07 March 1975 |
| Parties | Emile (Pete) BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Anthony M. Wilhoit, Public Defender, Anna H. Isaacs, Asst. Public Defender, Frankfort, for appellant.
Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee.
CULLEN, Commissioner.
The appellant's sole contention, on this appeal from a judgment sentencing him to a term of 10 years in the penitentiary pursuant to a verdict convicting him of armed robbery, is that the trial court erred in denying his motion for a mistrial after the prosecuting attorney, on cross-examination of the appellant, undertook to impeach his credibility by asking him: 'Have you ever been convicted of a felony?' The appellant's contention is that under Cotton v. Commonwealth, Ky., 454 S.W.2d 698, the only permissible question is one which asks whether the defendant has been convicted of a specific offense (after a determination on a hearing in chambers that the offense is one involving dishonesty, stealing or false swearing as defined in Cotton).
In the instant case it was ascertained on a hearing in chambers that the defendant had reviously been convicted of armed robbery, an offense which falls in the dishonesty or stealing category as defined in Cotton, and the trial judge 'granted leave to the Commonwealth to inquire as to the conviction of the prior felony involving moral turpitude.' However, as hereinbefore stated, the question actually asked was simply whether the defendant had been convicted of 'a felony,' to which he answered 'Yes,' following which the judge gave the customary admonition as to impeachment purpose, and the defendant's counsel then moved for a mistrial.
The Commonwealth maintains that once there has been the determination in chambers that the defendant has been convicted of a prior felony involving dishonesty, stealing or false swearing, it is proper (or at least not prejudicial error) for the defendant to be asked simply whether he has been convicted of 'a felony.' The Commonwealth argues that the defendant could not be prejudiced by such a question because to disclose to the jury, on a trial for armed robbery, that the defendant previously had been convicted of the same offense, would be more harmful to his cause than the mere disclosure of his previous conviction of some unidentified felony.
The appellant is correct in his interpretation of Cotton, because the opinion says plainly that the impeaching question shall be whether the witness has been convicted of the specific offenses. It is true also that Cotton held that a violation of its precepts (properly preserved) constituted reversible error. However, the problems that are being presented to us in a number of pending appeals (this one and several others), growing out of noncompliance with Cotton in one or another respect, have induced us to give reconsideration to the matter of the form of the impeaching question, and the method of preserving error, particularly as relates to impeachment of a criminal-defendant witness.
It is obvious that any evidence with respect to a criminal defendant's prior conviction of a felony will hurt his case, but our law always has allowed impeachment of the defendant, as a witness, by reference to prior such convictions. If the jury is capable of the mental discipline contemplated by the...
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Ross v. Com.
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