Brewster v. Com.
| Decision Date | 13 June 1978 |
| Citation | 568 S.W.2d 232 |
| Parties | David Harvey BREWSTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
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.
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 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:
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 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 v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), in which the United States Supreme Court held that " * * * where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity." The decision in Sheppard thus requires a showing that (1) there has been prejudicial news coverage, (2) it occurred prior to trial, and (3) the effect of such news coverage is reasonably likely to prevent a fair trial.
In the case at bar, the record shows that counsel for appellant proffered the affidavits of residents of Boyd County, wherein the affiants stated that public opinion concerning the defendant was such as to preclude a fair trial from being had in that county. The Commonwealth submitted countervailing affidavits which refuted this contention. Other exhibits, which also have been made a part of the record, showed that there were several news articles appearing prior to the commencement of the trial concerning the criminal offenses and the subsequent investigation. During a hearing on the motion for a change of venue, counsel for appellant stated that "the defendant simply does not believe that the court could obtain jurors from this county who have not read about, talked about, heard about the case at trial * * *." However, the mere fact that jurors may have heard, talked, or read about a case is not sufficient to sustain a motion for change of venue, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant. A failure to present such a precise claim of prejudice to the trial court is a failure to comply with the criteria outlined by the Supreme Court in Sheppard. Of course, a showing of actual prejudice is unnecessary if the procedure involves such a probability that prejudice will result that it is deemed inherently lacking in due process. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). After reviewing the publicity in this case, we do not believe that such a probability of intrinsic prejudice existed. Prejudice must be shown unless it may be clearly implied in a given case from the totality of the circumstances.
The appellant did assert...
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