Brown v. Com.
| Decision Date | 18 February 1977 |
| Citation | 551 S.W.2d 557 |
| Parties | Joseph Henry BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack Emory Farley, Public Defender, Anna H. Isaacs, Larry H. Marshall and Kevin M. McNally, Asst. Public Defenders, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
The appellant, Joseph Henry Brown, was found guilty under two counts of an indictment charging him with attempted robbery, KRS 506.010, 515.020, and being a persistent felony offender, KRS 532.080. He appeals from a judgment sentencing him to 20 years' imprisonment in accordance with the persistent-offender verdict. KRS 532.080(4)(c).
A bifurcated trial was held before the same jury pursuant to KRS 532.080(1), which provides that when a defendant is charged with being a persistent felony offender
The most serious contention made in support of a reversal is that the trial court erred in refusing to order separate juries for the two phases of the trial. The appellant argues also that it was error to permit (1) an in-court identification by a witness who before the trial had been shown a photograph of the appellant, and (2) the introduction of an indictment or indictments in connection with his previous felony convictions. We shall discuss the latter two points first.
The witness Tandra Robinson, a 16-year-old girl, did not come forward as a witness until the day before the trial, when on her own initiative she visited the office of the Commonwealth's Attorney and reported that she had seen the incident in question from across the street. Having identified the appellant on direct examination, she admitted under cross-examination that she had never seen him before the occasion of the crime and that the prosecutor had shown her a photograph of him. Asked whether she would have "known that was Mr. Brown out there that night" 1 if she had not seen the picture, she replied as follows:
A
Q "If you hadn't seen the picture, could you tell whether this was the man the same man that was out there on the 16th?"
A "Yeah, I know he's the same man as the man I seen."
The victim of the crime knew the appellant and had identified him positively and convincingly. It is doubtful that Tandra's evidence added anything, but even assuming that it did, and assuming for purposes of the argument that it should have been excluded, there can be no reversible error here for the simple reason that there was no objection to it in any form at any time during the trial proceeding.
In the argument of this and other recent criminal appeals we detect what appears to be a failure to appreciate the importance of and necessity for procedural regularity in the conduct of trials. Substantive rights, even of constitutional magnitude, do not transcend procedural rules, because without such rules those rights would smother in chaos and could not survive. There is a simple and easy procedural avenue for the enforcement and protection of every right and principle of substantive law at an appropriate time and point during the course of any litigation, civil or criminal. That is not to say that form may be exalted over substance, because procedural requirements generally do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated. Without them every trial would end in a shipwreck.
We recognize that there are cases in which some grave impropriety in the course or conduct of a trial is so conducive to injustice that procedural blundering must be waved aside. Beyond cavil, this is not one of them.
It was not necessary for the Commonwealth, in the second phase of the trial, to introduce copies of the indictments in question. Again, however, the only specific objection 2 was directed toward an F.B.I. sheet listing a number of charges and convictions, and that objection was sustained. Moreover, even though one of the previous convictions was for detaining a woman against her will, under an indictment charging rape, in view of the fact that one of the other five convictions proved by the Commonwealth was for rape we see no possibility that the appellant really was prejudiced.
Before the case was tried the appellant moved that the two counts of the indictment be severed and tried before different juries. His theory was...
To continue reading
Request your trial
-
Webb v. State
... ... Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee ... BOWEN, Presiding Judge ... Donnie Webb was convicted for escape in the ... ...
-
Henderson v. Commonwealth
...West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989) (citing Futrell v. Commonwealth, 437 S.W.2d 487, 488 (Ky. 1969) and Brown v. Commonwealth, 551 S.W.2d 557 (Ky. 1977) ).Even assuming the error was preserved, such error would be nothing more than harmless. The trial court did misstate the......
-
Evitts v. Lucey
...criminal appeals only on condition that the appellant follow the local rules and statutes governing such appeals. See Brown v. Commonwealth, 551 S.W.2d 557, 559 (1977). Therefore, the system does not establish an appeal as of right, but only a "conditional appeal" subject to dismissal if th......
-
Whorton v. Com.
...pertinent only to the amount of punishment in event of his conviction. We discussed a closely-related problem in Brown v. Commonwealth, Ky., 551 S.W.2d 557, 559-560 (1977), in which a defendant tried in a bifurcated persistent-offender proceeding asserted the converse proposition that his r......