Campbell v. Com.

• Decision Date: 21 February 1978
• Citation: 564 S.W.2d 528
• Parties: Leroy CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. John CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 528

564 S.W.2d 528

Leroy CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

John CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Feb. 21, 1978.

As Modified May 2, 1978.

Jack Emory Farley, Public Defender, William M. Radigan, M. Gail Robinson Asst. Public Defenders, Frankfort, for appellant Leroy Campbell.

Alva A. Hollon, Hazard, Henry L. Rosenthal, Jr., Winchester, for appellant John Campbell.

Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.

CLAYTON, Justice.

First cousins John and Leroy Campbell appeal from judgments sentencing each to 20 years' imprisonment for murdering 63-year-old Pearl Campbell (no relation) by stabbing him with a knife. Cf. KRS 507.020.

We reverse as to both. It is our conclusion that there was not enough evidence to justify John's conviction for murder; and while we are convinced that there was sufficient evidence to support Leroy's conviction, it is our opinion that he did not receive a fair and impartial trial due to improper conduct on the part of the prosecuting attorney.

Pearl Campbell's body, clothed in a faded plaid shirt and trousers, was discovered on Monday, July 12, 1976, in a wooded area in Clark County near the Clintonville Road, about one-tenth of a mile from the Van Meter Road intersection. An autopsy revealed the cause of death to be a stab wound to the heart, which resulted in bleeding in the chest cavity. Time of death was ascertained to be between 4 and 5 p.m. on the previous Saturday, July 10.

The evidence presented by the Commonwealth established that earlier that same Saturday, around 1 p.m., Leroy Campbell had entered the Dew Drop Inn, a tavern in downtown Lexington owned by one Woodrow Duff. Upon being informed by Duff that the pub was not open for business, Leroy departed. Sometime between 2 and 2:45 p.m., however, he returned, this time accompanied by John Campbell, Pearl Campbell and Roger Garrett, ¹ all with whom Duff was well acquainted. The four men strode past the front of Duff's building to an adjacent parking lot, where each drank from something in a paper sack in Pearl's possession, then climbed into a small green automobile with the letters SS on the side. This car was later shown to be a Chevrolet Nova Super Sport belonging to Leroy's brother Sam and bearing Indiana license plate number 93G7519.

High school students Lee Bryant and Lisa Imig testified that later that afternoon, between 4 and 5 p.m., they were driving home with some carry-out food on the Clintonville Road when they spotted a late-model Nova parked on the shoulder of the road, some 45 feet from Van Meter Road. Next to the car, two men had pulled another man up from a ditch by the road and were holding his arms while yet another man struck him repeatedly with his fists. Although neither Miss Bryant nor Miss Imig could identify the culprits, they did note that the victim was an older man and that he was wearing a plaid shirt. As their car got closer, the three men placed their arms around the older man, in the words of Miss Bryant, "like they were trying to give the impression that they were all friends," and waved at the girls. After Miss Bryant and Miss Imig had passed, the three men resumed their assault.

Farmers Bill Lamb, Earl Noble, Tommy Neal and James Hounshell were also travelers on the Clintonville Road during this time period, all returning home after spraying tobacco earlier in the day. Lamb, who was driving alone in his own vehicle, stated that as he approached Van Meter Road, he had to swerve around a Chevrolet which was parked partially on and partially off the side of the road. As he passed by the car, he saw three men standing on the edge of the road with their backs to him.

Noble, Neal and Hounshell were riding in Noble's pickup truck, like Lamb heading south. Approximately 100 feet from Van Meter Road, the southbound lane was blocked by an automobile with an Indiana tag. Neal and Hounshell testified that the car was a green Nova; Hounshell further remembered that the first two digits of the license number were "93". As Noble reduced his speed, a curly-headed man around 6 feet tall ran across the road in front of them and climbed a fence. Both Noble and Neal positively identified this man as Leroy Campbell.

At the conclusion of the prosecution's case, John and Leroy each moved for a directed verdict of acquittal. After both motions had been denied, Leroy took the stand and asserted an alibi defense, which was supported to some extent by the affidavits of two out-of-state witnesses, Everett and Laura Belle Garrett. John did not testify, nor did he call any witnesses in his own behalf.

At the close of all the evidence, John and Leroy renewed their motions for directed verdicts, but again were overruled. The trial court then instructed the jury on murder, aiding and abetting murder, first-degree manslaughter and aiding and abetting first-degree manslaughter. It is from the jury's verdicts finding each guilty under the first-mentioned instruction that John and Leroy now appeal.

John's only, and Leroy's first, contention is that the evidence presented by the Commonwealth at trial was entirely insufficient to warrant submission of the case to the jury. There is no doubt that Pearl Campbell's death was caused by a criminal act, since the autopsy revealed that he had suffered several stab wounds as well as a blow to the head. The crucial question, therefore, is whether the Commonwealth adequately demonstrated that John or Leroy, or both, either actually committed the murder of Pearl Campbell or at least aided in its commission.

With respect to John, it will be recalled that he was never identified as being at the scene of the crime. Thus, while the similarity between the number of persons seen entering the green Nova in front of Woodrow Duff's tavern and the number of persons spotted near the Clintonville Road on Saturday, July 10, 1976, may raise one's eyebrow a bit, the only evidence which can truly be said to connect John in particular with the homicide is the fact that he was in the company of Pearl Campbell some one to three hours prior to the murder. This court has consistently held like evidence insufficient to prove a criminal act or agency. See, e. g., Hollin v. Commonwealth, Ky.,307 S.W.2d 910 (1957); Morgan v. Commonwealth, 285 Ky. 184, 147 S.W.2d 378 (1941). Because such an agency on the part of John was not satisfactorily established, the trial court erred by refusing to grant John's motion for a directed verdict of acquittal and his conviction must be reversed on this ground.

With respect to Leroy, on the other hand, the evidence did tend to establish the necessary agency. Although it is true that the evidence technically does not support the jury's finding that Leroy murdered Pearl, since we do not know who actually stabbed him, see Marcum v. Commonwealth, Ky., 496 S.W.2d 346 (1973), the evidence was certainly sufficient to submit the case to the jury on the theory that Leroy was an accomplice in the murder. For this reason, the trial court acted properly in denying Leroy's motion for a directed verdict. A motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal i. e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses. Compare Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525, 529 (1977), with Trowel v. Commonwealth, Ky., 550 S.W.2d 530, 533 (1977). The proper method for obtaining relief in this situation would have been to object to the instruction upon which the jury's finding that Leroy stabbed Pearl was based; because Leroy failed to do so, he cannot now be allowed to complain. RCr 9.54(2).

Leroy's next contention is that the trial court committed...