Call v. Com.

• Decision Date: 30 June 1972
• Citation: 482 S.W.2d 770
• Parties: Robert Kenclare CALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 770

482 S.W.2d 770

Robert Kenclare CALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 30, 1972.

Athol Lee Taylor, Thomas L. Waller, Taylor & Waller, Burlyn Pike, Norman Lemme, Pike & Lemme, C. V. Sanders, J. D. Buckman, Jr., Shepherdsville, for appellant.

Ed W. Hancock, Atty. Gen., John M. Famularo, Asst. Atty. Gen., Frankfort, for appellee.

EDWARD P. HILL, Judge.

This appeal is from a judgment of the Bullitt Circuit Court, entered after a jury trial, imposing the death penalty for the offense of wilful murder and a ten-year sentence for the offense of armed robbery.

On March 2, 1970, Paul Kidd, the victim, left Louisville via Preston Highway en route to Shepherdsville where he taught school. He was not heard from again until March 8, 1970, when his body was found in a barn near the Kentucky Turnpike by a small boy who lived nearby. Four .22 caliber bullets were removed from Kidd's body.

Three witnesses, Ollie Chelf, Raymond Reed and Gilbert Arnold, testified that on the afternoon of March 2, 1970, they observed the appellant in a service statiion located on Preston Highway; that he left on foot a short time after 5 p.m. and was apparently hitchhiking south.

The appellant was located and apprehended in Florida a few weeks later in possession of the victim's automobile, overcoat, briefcase, wallet, credit cards, and other personal papers. The appellant's father testified that he found a .22 caliber pistol in the car and turned it over to FBI agents. The pistol was not introduced into evidence due to an illegal search and seizure. Also the appellant cashed a check by the victim's wife payable to the victim. The store which cashed the check took a photograph of the appellant and the check presented. The check involved contained what purported to be the signature of the victim and the signature of the appellant. The manager of the store where the check was cashed stated that Call appeared to be reluctant to endorse the check.

The appellant offered no proof, but his theory of defense, as brought out by cross-examination and closing argument, was that he bought Kidd's car from someone named Terry Russo in the west end of Louisville. The price was $200 and Russo threw in the overcoat, briefcase, wallet, credit cards, and other papers. It is unnecessary to review the evidence in more detail because no question is raised regarding the sufficiency of such.

Appellant presents the following arguments of reversible error. They will be discussed seriatim.

First the appellant argues that jurors were excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The format on voir dire was as follows: 'Do you feel like you have conscientious scruples about finding a person guilty, fixing their punishment at death under any case whatsover?' A 'yes' answer resulted in the prospective juror's being excused for cause. In Geary v. Commonwealth, Ky., (decided March 3, 1972), this court held that an essentially identical format was free of the error condemned in Witherspoon, supra, and related cases. We find no merit in this argument.

Next the appellant contends that the trial court erred in permitting the jury to remain unsworn overnight after aceptance by both sides.

The jurors were properly admonished and guarded and there is no allegation of any impropriety or irregularity. In the absence of such a showing the Rules of Criminal Procedure are satisfied by substantial compliance. See Leigh v. Commonwealth, Ky., 481 S.W.2d 75 (decided February 4, 1972), and Cosby v. Commonwealth, Ky., 451 S.W.2d 653 (1970).

The appellant also contends he was denied a fair trial because one of the jurors was guarded by tne sheriff's wife who was not properly appointed a deputy sheriff as required by KRS 70.030. The irregularity in her qualification was that the county judge had not approved the appointment. She was a de facto officer. Furthermore, all attorneys for appellant agreed that the sheriff's wife be sworn to accompany the lady juror.

Next the appellant argues that the court erred in refusing to allow him to show the manner in which the jury was guarded. This is a matter within the sound discretion of the trial judge and will not be disturbed unless clearly in error. Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962). Since no suggestion of improper conduct appears in the record, the decision was a proper one. In Cosby v. Commonwealth, supra, this court said at page 654 of 451 S.W.2d:

'The gist of the matter is that absent some showing that a juror has been improperly approached, or that an opportunity for influencing a juror has occurred, substantial compliance with rules such as RCr 9.70 will suffice.'

Therefore, since there is no hint of any improper action on the part of anyone, the trial judge cannot be said to have abused a sound discretion in overruling appellant's motion. Had an allegation been made which, if true, would affect the fairness of the trial or raised a suspicion of irregularity, then the failure to hold a hearing might have been reversible error, and the burden of proof in event of a hearing would have been upon the Commonwealth. Hudson v. Commonwealth, Ky., 449 S.W.2d 218.

Next the appellant claims error by the trial court in overruling his motion for a mistrial based upon interrogation of the witnesses. First he attacks the interrogation of Mr. Doer, an FBI agent. Appellant alleges that the county attorney, during Doer's examination, referred to 'which murder' thereby informing the jury of another murder charge in Florida. A thorough search of the record, as appellee points out, reveals no such comment. However, the prosecutor did ask Doer 'what murder' he was referring to. The question was objected to and the trial judge admonished the jury not to consider the remark.

The following excerpt comes from the direct testimony of the sheriff who brought the appellant back from Florida to stand trial:

'2 Now, on the trip back, did you have any converdation with the defendant Call, and if so, please tell what you stated to him and what he stated to you?

'A Yes. It was very little conversation, I'll put it that way, but somewhere as we were approximately half way up through Georgia, we had ridden for miles and miles, and no one had any conversation, so Mr. Spurrier was driving and I was on the opposite side in the front of the automobile. Mr. Call was in the back, and I turned around to Mr. Call and of course, I told Mr. Call, I said 'You were advised of your rights...