Byrd v. Com., 90-SC-26-MR

• Decision Date: 13 February 1992
• Docket Number: No. 90-SC-26-MR,90-SC-26-MR
• Citation: 825 S.W.2d 272
• Parties: Michael Len BYRD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 272

825 S.W.2d 272

Michael Len BYRD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-SC-26-MR.

Supreme Court of Kentucky.

Feb. 13, 1992.

Rodney McDaniel, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., E.M. Lowery, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Byrd of murder and sentenced him to twenty years in prison. Byrd raises 11 assignments of alleged error. We will treat each assignment of error in the course of the opinion.

Byrd was charged with the murder by beating the victim to death during the course of a robbery. His first trial ended in a mistrial because the jury was unable to reach a verdict. He was tried again and conviction resulted. The victim died sometime between Noon on January 25 and Midnight on January 26, 1989, as a result of a blow over his eye. His wallet and car were stolen.

Byrd was not prejudiced by his absence at an in camera juror inquiry. The raising of this issue for the first time in a motion for judgment notwithstanding the verdict or a new trial does not preserve it for appellate review. RCr 9.22.

The trial judge conducted an in camera examination of the four jurors who had read parts of a newspaper report concerning the trial. The trial judge invited defense counsel and the court reporter but Byrd did not request inclusion. Although both defense attorneys participated in the hearing, neither objected to the absence of Byrd. There is no evidence that the trial judge prohibited Byrd from joining defense counsel. Byrd clearly knew that a hearing was being conducted, and he offered nothing to suggest that his absence was anything other than a personal choice.

Section 11 of the Kentucky Constitution requires that an accused has the right to be heard by himself and counsel and to meet the witnesses face-to-face. RCr 8.28(1) states that a defendant must be present at every "critical" stage of his trial. However this right to be present is not all encompassing. In this instance it is clear that Byrd waived any right to be present at the in camera inquiry by not requesting to be present. Cf. RCr 9.22; West v. Commonwealth, Ky., 780 S.W.2d 600 (1989). Byrd was not unduly prejudiced by his absence. He was represented by able counsel who questioned the jurors on possible influence, and the trial strategy cannot be questioned at this time.

The trial judge correctly overruled Byrd's motion for a mistrial based on juror exposure to a newspaper article. Four jurors admitted that they saw a newspaper account of the trial while it was in progress. Each of them was questioned separately by the trial judge, and of these four, one was excused as an alternate. Byrd argues that the exposure of the jurors to the newspaper article was unfairly prejudicial.

One juror stated that he had begun to read the article, and remembered the admonition of the trial judge not to read such newspaper accounts and did not finish the article. He said he understood the outcome of the previous trial was: 8 guilty; 2 not guilty and 1 undecided. He was examined by the defense and admonished at length by the trial judge. A second juror remembered only that he read that they had an earlier trial and found the defendant not guilty. He stated that he already knew this and was not influenced by the article. He was also examined by the defense and admonished by the trial judge. A third juror stated that he did not read all the article but read the headline and remembered that he should not read any of it and stopped. The only thing that he remembered was that it was a retrial and there were 8 for conviction and 3 for acquittal and 1 undecided in the first trial. As with the others, she denied that she had been influenced by the information because she already knew it. She was examined by the defense and admonished by the trial judge.

Here the facts differed greatly from those in United States v. Williams, 568 F.2d 464 (5th Cir.1978) which was a fact-intensive case. There was no prejudice to Byrd because two of the jurors were aware that the previous jury was unable to convict him and one of the jurors in question believed that he had been found not guilty. The jurors were questioned, and there is no evidence that they gained any other information from the article. In addition, they were specifically admonished not to consider the report or anything not in evidence at the trial.

Where publicity prior to and during a trial is neither inherently prejudicial nor unusually extensive, the accused must assume the additional burden and show actual jury prejudice. Gordon v. United States, 438 F.2d 858 (5th Cir.1971). A trial judge has discretion in determining the prejudicial effect of a juror's misconduct particularly if there is an opportunity to give a curative admonition. Polk v. Commonwealth, Ky.App., 574 S.W.2d 335 (1978), citing Butler v. Commonwealth, Ky., 387 S.W.2d 867 (1965).

It was not reversible error for the trial judge to deny Byrd's motion for a mistrial because not every incident of juror misconduct requires a new trial. The true test is whether the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. United States v. Klee, 494 F.2d 394 (9th Cir.1974). We agree with the statement in Klee, supra, when a:

Wise and experienced judge who presided at the trial and observed the jury, comes to such a conclusion, it is not for us to upset it. The trial judge was in a better position than we are to determine whether what happened was prejudicial.

There was no abuse of discretion in this situation and the decision of the trial judge was not reversible error.

It was not reversible error for the trial judge to admit evidence of a defense witness's bias and interest. During the trial the prosecution presented a statement allegedly made by Byrd to another inmate and overheard by a third inmate. The third inmate testified to the conversation. The second inmate to whom the statement was made testified that the conversation never took place. On cross-examination, the prosecution was allowed to impeach the defense witness who denied the conversation by showing that after the first trial, the same defense witness had assaulted the informing witness by beating him with a sock filled with five bars of soap. The informing witness suffered a concussion and required stitches in his forehead.

The interest of a witness, either friendly or unfriendly, in the prosecution or in a party is not collateral and may always be proved so as to allow the jury to determine credibility. It may be proved by the witness's own testimony upon cross-examination or by independent evidence. Parsley v. Commonwealth, Ky., 306 S.W.2d 284 (1957).

The prosecution sought to challenge the credibility of the defense witness's contradictory testimony by showing his interest, bias and hostility. Civil Rule 43.07, which prohibits impeachment of a witness by evidence of particular wrongful acts, is not applicable because the wrongful act here is directly related to the interest of the witness in the case. The contradictory defense witness was shown to have a hostile motive of revenge against the informing witness and to be loyal to Byrd as well as biased towards the litigation in question. Cf. Faulkner v. Commonwealth, Ky., 423 S.W.2d 245 (1968).

It was not reversible error for the prosecutor to make references to Byrd's failure to testify. The two comments challenged by Byrd were made by the prosecutor during summation. Only one of the comments was objected to. The unpreserved comment indirectly alluded to the failure to testify. The second comment, which also referred to the failure to testify, was objected to but the objection was overruled.

The improper comment by the prosecutor about the failure to testify was an inadvertent reference. A prosecutor's comment on the failure of a defendant to testify must be manifestly intended to reflect on the accused's silence or of such a character that the jury would naturally and necessarily take it as such to constitute prejudice. Bagby v. Sowders, 894 F.2d 792 (6th Cir.1990).

It was not reversible error for the prosecutor to comment about Byrd's exercise of his rights during custodial interrogation. This allegation of error is totally unpreserved.

After Byrd was taken into custody and given his Miranda warnings, he answered various questions asked by the police but stopped the inquiry somewhere along the way and requested counsel. At trial, during opening statement, the prosecutor stated that Byrd asked that the questioning be terminated and that no further questions were asked.

Byrd was questioned twice by the police; first on January 31, 1989 and later, on February 10, 1989. He was given the Miranda warnings on each occasion, and the interviews were taped. During the testimony of the investigating officer, the question of custodial interrogation arose, and the police witness stated that Byrd did not talk to him any further. He said that Byrd was out of the notion of talking any more and said that he wanted to talk to a lawyer. In closing argument, the prosecutor stated that Byrd drifted out of the mood to make that statement and it was never made. United States v. Williams, 556 F.2d 65 (D.C.Cir.1977), states that the prosecution may not draw attention to the exercise of the right to become silent after speaking.

Williams, supra, denied relief on the basis of its finding that testimony about the exercise of constitutional rights did not play a significant role in producing the verdict. The testimony that led to the conviction of Byrd was the evidence that he was seen driving the victim's car on January 25 which contradicted his alibi that he was left abandoned miles from town. What was damaging was not any testimony about the defendant's silence, but the testimony of what the...