Brewster v. Com.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSTERNBERG
Citation568 S.W.2d 232
PartiesDavid Harvey BREWSTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date13 June 1978

Page 232

568 S.W.2d 232
David Harvey BREWSTER, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
June 13, 1978.

Page 233

Jack E. Farley, Public Defender, Kevin M. McNally, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.

STERNBERG, Justice.

This is an appeal from a judgment of the Boyd Circuit Court finding appellant guilty of murder (KRS 507.020), first-degree robbery (KRS 515.020), and two counts of first-degree assault (KRS 508.010). He was sentenced to imprisonment for 60 years on the murder charge, 20 years on the robbery charge, and 20 years each on the two

Page 234

charges of first-degree assault. The sentences were ordered to run consecutively.

On February 27, 1976, at about 7:30 or 8:00 p. m., the appellant entered the Ashland Foodland grocery, in Ashland, Kentucky, and at the point of a pistol robbed it of an estimated $450 to $500. In the course of the robbery, which lasted less than 15 minutes, the appellant shot and killed Clayton D. Craycraft and shot Robert A. Craycraft and Gene Atkins, without killing either of them. After the shooting the Ashland Police Department, with the assistance of FBI agents, made an extended nationwide search for the appellant. On July 11, 1976, he was arrested by FBI agents in San Diego, California, and thereafter returned to Boyd County, Kentucky, for trial.

The appellant argues nine alleged errors, each of which if found to exist would compel a reversal. We must bear in mind that the appellant sought and was granted a trial to the learned trial judge rather than exercise his constitutional right of having his guilt determined by a jury. This, he has a right to do. Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975).

The appellant's sole defense was that of insanity. KRS 504.020(1) provides:

"A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law."

The defense of insanity requires proof of (1) mental disease or defect, and (2) substantial incapacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The record discloses that there was sufficient medical testimony to at least make an issue on the first requirement, and as to the latter, the record does not reflect any evidence answering in the affirmative. During the course of the trial counsel for the appellant made three attempts to elicit affirmative answers. Each time an objection to the question was sustained by the court. The objections were directed at the form of the questioning, not at the substance of the answers sought to be elicited. In each instance the question was leading and would technically do violence to CR 43.05. However, where the interrogation such as in the instant case is of a professional person, the strict rule of a leading question need not be observed. Moreover, in the instant case, the trial was to the judge, who would readily look to substance over form. Be that as it may, the court did not cause the appellant's counsel to cease his interrogation. Counsel's efforts toward propounding a question that did not suggest the desired answer were not prohibited, only awaited a properly stated question. The record reflects that after a conference at the bench relative to an objection to the form of the offered, but objected to, question, the trial judge, in sustaining the objection, said, "Proceed with direct examination Mr. Early, sustained." Thereafter, counsel for appellant immediately asked the following question:

"Q-79. Doctor Granikar, we will ignore the question, I'll rephrase the question. Based on your education and experience, observation and evaluation and the history of the patient, do you have an opinion based on reasonable medical certainty as to whether the Defendant suffered from a mental disease or defect on the 27th of February, 1976?"

Appellant's counsel did not make any further effort toward eliciting information relative to whether the appellant, at the time of the commission of the crimes with which he was charged, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Q-79, supra, was directed at whether the appellant had a mental disease or defect, which had already been established in the affirmative. The question was one of proper procedure. Not having pursued the interrogation, the appellant cannot now complain. The appellant was not denied his constitutional right to be heard or to have his day in court.

The appellant further charges that the trial court erred in failing to direct a

Page 235

verdict of acquittal by reason of insanity. We must continue to bear in mind that the case was tried to the court and not to a jury. The trial judge held that since there was no testimony that the appellant, on the occasion of the murder, robbery and assault, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, he was not entitled to an acquittal on the grounds of insanity. The trial court did not err in refusing to find the appellant not guilty by reason of insanity.

Next, the appellant contends that the trial court erred by refusing to grant his motion for change of venue or, in the alternative, to summon a jury from another county. The appellant relies exclusively upon the due-process clause of the 14th Amendment to the United States Constitution. However, KRS 452.210 is also relevant to the disposition of this issue. Under either the due-process clause or the applicable statutory guidelines, a change of venue should be granted if it appears that the defendant cannot have a fair trial in the county wherein the prosecution is pending. Specifically, the appellant relies upon the landmark case of Sheppard...

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55 practice notes
  • Hodge v. White, CIVIL ACTION NO. 13-5-DLB-EBA
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • August 17, 2016
    ...permitted to sit were not prejudiced against Hodge. Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974); Brewster v. Commonwealth, Ky., 568 S.W.2d 232 (1978). When an individual who has heard about the case has been subjected to extensive voir dire examination, there is no abuse of discretion......
  • Perdue v. Com., No. 92-SC-734-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • September 21, 1995
    ...additional peremptory challenges, in excess of the ten awarded each side in this case. Although we held in Brewster v. Commonwealth, Ky., 568 S.W.2d 232 (1978), that trial courts have the power to grant additional peremptory challenges, it is in the discretion of the trial court when consid......
  • Gall v Parker, 6
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 30, 2000
    ...defense, and that the burden of proving insanity rests with the defendant. See, e.g., Hayes, 625 S.W.2d at 586; Brewster v. Commonwealth, 568 S.W.2d 232, 234 (Ky. 1978); Wainscott v. Commonwealth, 562 S.W.2d 628, 631 (Ky. 1978). This case is thus no different than Duffy v. Foltz, 804 F.2d 5......
  • Gall v. Parker, Nos. 91-5502
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1999
    ...defense, and that the burden of proving insanity rests with the defendant. See, e.g., Hayes, 625 S.W.2d at 586; Brewster v. Commonwealth, 568 S.W.2d 232, 234 (Ky. 1978); Wainscott v. Commonwealth, 562 S.W.2d 628, 631 (Ky. 1978). This case is thus no different than Duffy v. Foltz, 804 F.2d 5......
  • Request a trial to view additional results
55 cases
  • Hodge v. White, CIVIL ACTION NO. 13-5-DLB-EBA
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • August 17, 2016
    ...permitted to sit were not prejudiced against Hodge. Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974); Brewster v. Commonwealth, Ky., 568 S.W.2d 232 (1978). When an individual who has heard about the case has been subjected to extensive voir dire examination, there is no abuse of discretion......
  • Perdue v. Com., No. 92-SC-734-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • September 21, 1995
    ...additional peremptory challenges, in excess of the ten awarded each side in this case. Although we held in Brewster v. Commonwealth, Ky., 568 S.W.2d 232 (1978), that trial courts have the power to grant additional peremptory challenges, it is in the discretion of the trial court when consid......
  • Gall v Parker, 6
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 30, 2000
    ...defense, and that the burden of proving insanity rests with the defendant. See, e.g., Hayes, 625 S.W.2d at 586; Brewster v. Commonwealth, 568 S.W.2d 232, 234 (Ky. 1978); Wainscott v. Commonwealth, 562 S.W.2d 628, 631 (Ky. 1978). This case is thus no different than Duffy v. Foltz, 804 F.2d 5......
  • Gall v. Parker, Nos. 91-5502
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1999
    ...defense, and that the burden of proving insanity rests with the defendant. See, e.g., Hayes, 625 S.W.2d at 586; Brewster v. Commonwealth, 568 S.W.2d 232, 234 (Ky. 1978); Wainscott v. Commonwealth, 562 S.W.2d 628, 631 (Ky. 1978). This case is thus no different than Duffy v. Foltz, 804 F.2d 5......
  • Request a trial to view additional results

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