Caldwell v. Commonwealth, 2002-SC-0410-MR (KY 5/20/2004)
| Decision Date | 20 May 2004 |
| Docket Number | 2002-SC-0410-MR,2003-SC-0155-TG |
| Parties | James E. CALDWELL a/k/a James Caldwell, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Gail Robinson, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Ian G. Sonego, Assistant Attorney General, Frankfort, KY, Counsel for Appellee.
Caldwell appeals from a judgment based on a jury verdict which convicted him of one count of murder and theft over $300. He was sentenced to life in prison and five years concurrently. Caldwell also appeals from an order denying his motion for a new trial based on newly discovered evidence. We have consolidated these two appeals in order to render one opinion.
The questions presented are whether Caldwell was denied his right to confront a witness; whether Caldwell was entitled to an instruction on intoxication and lesser included offenses; whether the jury should have been instructed on the unauthorized use of an automobile; whether prosecutorial misconduct occurred at the guilt phase; whether Caldwell was properly transferred from juvenile court to circuit court; whether prosecutorial misconduct occurred during the penalty phase, and whether the trial judge properly denied the motion for new trial.
Caldwell and the Commonwealth offer a detailed factual account of this case, but for the purposes of this opinion, we recite a relatively brief summary. The two victims were found shot to death inside the home of one of those victims. One victim had died from three shotgun wounds at close range. His wallet, recovered at the scene, contained no money. The other victim had died from two gun shot wounds at intermediate range, which came from a firearm other than a shotgun. His pocket was turned inside out and his empty money clip lay next to his body. Both victims had a high level of blood alcohol intoxication.
Caldwell, then 14-years-old, his sister-in-law, his sister and her friend were at the victim's home that night on a social visit. At some point, the sister and her friend left while Caldwell and his sister-in-law remained behind. It is undisputed that Caldwell was inside the victim's home at the time the shooting occurred and that his sister-in-law was either inside the home or just outside the home at that same time. It is also uncontroverted that both of them fled the scene in the pickup truck belonging to one of the victims.
Upon being transferred from juvenile court to circuit court, Caldwell was tried as an adult on two counts of murder, two counts of first-degree robbery and one count of theft over $300. At his trial, among other evidence, the Commonwealth presented expert testimony that there was a high probability that Caldwell's blood matched a comparison taken from a shotgun shell. Apparently, Caldwell had cut his finger that night. A sample taken from the shotgun was also determined to be consistent with a mixture of Caldwell's blood and one of the victims. Another expert testified that Caldwell's thumbprints matched latent prints found on the shotgun. No other prints were found on the weapon.
In addition to the physical evidence, Caldwell's sister-in-law, with whom Caldwell admitted having a physical relationship, testified against him. According to the sister-in-law, Caldwell told her to leave the house just before the murders occurred because something bad was going to happen. She was not aware of anyone else inside the house except Caldwell and the two victims. While outside, the sister-in-law heard a gunshot, started to flee and then heard several more shots. After going a short distance down the road, Caldwell picked her up in the victim's truck and they fled the area. The pair encountered a police roadblock and, in an attempt to avoid it, Caldwell drove the truck into a ditch. She and Caldwell abandoned the truck and fled police on foot.
Another witness, an acquaintance of Caldwell's, testified that Caldwell came to his home that night and asked to use the phone. Caldwell paid him $19 for some clothes he provided. The witness admitted burning the clothes Caldwell left behind. The money, which the acquaintance turned over to police, proved to have Caldwell's blood on it. Eventually, Caldwell told the acquaintance what happened at the victim's home. According to him, Caldwell admitted shooting both victims after one of them grabbed his sister-in-law inappropriately. This witness denied shooting either victim or being at the victim's home that night.
Caldwell, who was 16-years-old at the time of trial, testified in his own defense and denied killing or robbing the victims. He alleged that his sister-in-law and the acquaintance mentioned above were responsible for the crimes. Caldwell acknowledged mixing alcohol and Xanax earlier in the day and drinking eleven or twelve beers while at the victim's home. He explained that the money he gave to the acquaintance was to repay a debt and that his blood was found on the shotgun because he took it away from his sister-in-law after one of the victims was shot. Caldwell admitted that he drove off in the victim's pickup truck with his sister-in-law and alleged his acquaintance was with them. He also admitted driving the vehicle into a ditch in order to avoid a police roadblock and fleeing from police.
The jury convicted Caldwell of one count of murder and theft over $300. It acquitted him of the other three charges. The jury recommended that Caldwell be sentenced to life imprisonment for the murder, five years imprisonment for the theft, and that the sentences run consecutively. The trial judge imposed the same terms except that he ran the sentences concurrently. He also ordered that Caldwell, as a youthful offender, be placed with the department of juvenile justice until he reaches the age of eighteen and then to be returned to circuit court for final sentencing.
Approximately four months after final judgment was entered, counsel for Caldwell filed a motion for a new trial based on grounds of newly discovered evidence. The motion was supported by an affidavit from trial co-counsel which alleged that Caldwell's sister-in-law admitted to him that she killed the victim whom Caldwell was convicted of killing. When co-counsel sought to videotape her admission, she refused.
The trial judge heard oral arguments on the motion for a new trial on September 30, 2002. Defense counsel noted that the sister-in-law had failed to honor a subpoena that had been served on her. The Commonwealth objected to the defendant's co-counsel, who filed a motion to withdraw, testifying about hearsay statements allegedly made by the sister-in-law. The trial judge denied the motion for a new trial. These appeals followed.
Caldwell argues that the trial judge deprived him of his right to confront a witness when he refused to permit defense counsel to testify to the alleged prior inconsistent statements of a witness. At trial, defense counsel presented a witness whom they obviously hoped would admit having taken Caldwell and another male individual to the victim's home the night of the murders. If true, this testimony would have lent credibility to Caldwell's claim that his acquaintance was there that night and shot one of the victims. When the witness took the stand, however, he denied all knowledge about the crime and denied ever telling defense counsel that he transported Caldwell and another male individual to the victim's home. Following his testimony, defense counsel moved to allow co-counsel to take the stand and impeach the witness' testimony. The Commonwealth objected based on the canon of ethics and the trial judge denied the motion. Defense counsel did not seek to introduce the proposed evidence by avowal.
A trial court ruling excluding evidence must be preserved for appellate review by an avowal of the witness. KRE 103(a)(2); Commonwealth v. Ferrell, Ky., 17 S.W.3d 520 (2000). Otherwise, the reviewing court has no way of knowing exactly what testimony was excluded and whether the exclusion was prejudicial to the offering party. Ferrell, supra. Partin v. Commonwealth, Ky., 918 S.W.2d 219, 223 (1996). It makes no difference here that defense counsel and the witness are one in the same. There was no testimony offered in court under oath.
We must observe that in future cases the decision of the trial judge to permit or deny counsel the right to testify will be reviewed for an abuse of discretion. Cf. Zurich Ins. Co. v. Knotts, Ky., 52 S.W.3d 555 (2001). Further, we agree with the rationale of State v. Caldwell, 573 P.2d 864 (Ariz. 1977), that when defense counsel seeks to testify in order to impeach a witness, the burden is upon him to propose the solution of his withdrawing from the case. The trial judge is not obligated to offer that solution. In most circumstances where the testimony relates to a contested issue and defense counsel does not withdraw from the case, there will be no finding of an abuse of discretion when the trial judge does not permit him to testify.
The claim by Caldwell that the trial judge erred by failing to instruct the jury on intoxication and lesser included offenses is not properly preserved for appellate review. RCr 9.54(2) provides:
No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.
Caldwell concedes that he did not object to the jury instructions given by the...
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Ruark v. Commonwealth, No. 2006-CA-001083-MR (Ky. App. 8/10/2007)
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