Campbell v. Com.

• Decision Date: 08 February 1990
• Docket Number: No. 87-SC-870-MR,87-SC-870-MR
• Citation: 788 S.W.2d 260
• Parties: Bethalene CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 260

788 S.W.2d 260

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

No. 87-SC-870-MR.

Supreme Court of Kentucky.

Feb. 8, 1990.

Rehearing Denied May 24, 1990.

Gary E. Johnson, Asst. Public Advocate, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Alva A. Hollon, Jr., Sp. Asst. Atty. Gen., Hazard, Beth Lewis Maze, Asst. Atty. Gen., Frankfort, for appellee.

LAMBERT, Justice.

Appellant Bethalene Campbell appeals to this Court as a matter of right from her conviction of first degree manslaughter for the killing of her former high school teacher, Frankie Joe Williams.

Appellant raises eight allegations of error. Some of the facts of the case are in dispute, but basically the events are as follows. Appellant, a resident of Hazard, Kentucky, married during her last year of high school and subsequently "dropped out." Her husband enlisted in the Army and the couple moved to Alabama where her husband took his course in basic training. While in Alabama, appellant's husband began to drink heavily and marital problems arose. During this period, she became romantically involved with George Wolfe, a person she contacted several times on the night of Frankie Joe Williams' death.

In an effort to help her husband with his drinking problem, appellant met with one of his superiors who allegedly "took her up in the mountains" and raped her. This occurred in September, 1986. Afterwards appellant had trouble sleeping. From September to November, she traveled between Kentucky and Alabama.

On the evening of November 17, 1986, appellant was at a party at the home of David Lee Hughes in Hazard, with her brother and several friends. The testimony reflects that the group was playing a card game where the winner of each hand had to drink a glass of wine. All were drunk. There was also testimony of drug use.

In the early morning hours of November 18, 1986, appellant left Hughes' home and took a taxi to the home of Frankie Joe Williams. She had angrily phoned Williams from Hughes' home earlier in the evening after Hughes allegedly had asked her about her relationship with Williams when she was 13 years old, while Williams was her teacher.

Appellant claims that Hughes raped her that evening and then called a cab for her. Appellant alleges that she was taken to Frankie Joe Williams' house against her wishes and David Hughes followed and pulled in the driveway right behind her, and with his gun in his hand, forced her to enter the house. Hughes denies ever being present at Williams' residence that evening.

While in the house, appellant made several calls to George Wolfe in Alabama. She asserts that Williams and Hughes were arguing over money for drugs. Appellant then alleges a total lapse of memory but remembers waking up in bed at the victim's home with no clothes on. She testified that she again telephoned George Wolfe.

Appellant stated that she did not remember picking up a gun and that she did not know where she had found it. She alleged that the bullet she discharged was meant for Hughes. Instead, it hit Frankie Joe Williams in the head. He fell to the ground, mortally wounded. Appellant testified she had no idea where Hughes went but that she went looking for him. She stated that she would have shot him, too, if she had found him, and that "He'd better thank his God that he's not dead."

George Wolfe testified that in conversations with appellant on the evening of Williams' death, she never mentioned David Lee Hughes. Hughes asserts his sexual intercourse with appellant was consensual and that he never left his house, but that appellant took his gun when she went to the victim's home.

After the shooting, appellant made her way to her father's home, clothed only in the victim's robe, and carrying the gun with which she had killed Frankie Joe Williams. Her father phoned the police, and later that morning, appellant gave a statement to Detective Baker. Appellant told Detective Baker that no one else was present at the house of the victim except she and Frankie Joe Williams. She stated that she and the victim had been arguing.

Appellant first contends that she was denied due process of law and the trial court erred by failing to excuse for cause members of the jury pool who were acquainted with either the victim or the victim's family. Her complaint is based on the contention that she was forced to exercise peremptory strikes against seven potential jurors who should have been stricken for cause. After reviewing the transcripts of the voir dire of these seven, we find no evidence of abuse of discretion by the trial judge in not excusing them for cause.

This Court has held that a trial court has considerable discretion to determine whether a juror should be stricken for cause. Specifically, "unless clearly erroneous, the exercise of such discretion is a judicial prerogative and is not subject to review by an appellate court." Scruggs v. Commonwealth, Ky., 566 S.W.2d 405, 410 (1978), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978).

The standard for review of whether a juror should be stricken was enunciated in Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985). We adopted the law as stated in Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4, 7 (1981), that:

"[I]rrespective of the answer given on voir dire, the Court should presume the likelihood of prejudice on the part of a prospective juror because the potential juror has such a close relationship, be it familial, financial or situational, with parties, counsel, victims or witnesses." Ward at 407.

From the record, we discern no close relationship with respect to any of the jurors which would create a presumption of prejudice. None of the disqualifying factors set forth in Ward, supra, or Marsch v. Commonwealth, Ky., 743 S.W.2d 830 (1987), appear here.

In her second allegation of error, appellant contends she was deprived of her constitutional right to a fair trial and due process of law when the trial court denied her motion for a change of venue. Appellant moved orally for a change of venue three days into questioning members of the jury pool for qualification as potential jurors. At that time, 27 of more than 60 jurors had been interviewed individually and partially qualified. Of the 27, 13 informed the trial court during questioning that they knew either the victim or members of his family. Appellant's venue challenge was based primarily on her assertion that she could not be tried fairly by a jury composed of the victim's "friends." The trial judge observed that appellant was "presupposing that all these people who are acquainted with the Williams family are favorably disposed of the Williams family."

Appellant, the Commonwealth and the trial court all agreed that the potential jurors' responses to interview questions over the previous three days comprised the evidence relevant to her motion for change of venue. Nonetheless, over appellant's protest, the trial court insisted upon entertaining a written motion accompanied by affidavits pursuant to KRS 452.220(2) before making a finding.

Appellant now argues that having filed the motion supported by affidavits pursuant to KRS 452.220(2), she was entitled to a change of venue. See Brunner v. Commonwealth, Ky., 395 S.W.2d 382 (1965). In Brunner, the trial court was found to have erred by denying the appellant's application for a change of venue where the Commonwealth filed no counter-affidavits in opposition and the trial court did not hold a hearing on the application. Id. at 384. In the case at bar, the prosecutor did not file a written response to appellant's motion, nor did he produce counter-affidavits or testimony to oppose a venue change.

The Commonwealth argues that the facts were readily distinguishable from those in Brunner, supra. At the outset, the Commonwealth had no reason to file a written response to appellant's oral motion. When the motion was tendered in writing on the morning of the following day, a hearing ensued during which the Commonwealth objected to the motion, citing the meticulous questioning of the qualified potential jurors and their sworn oaths to give appellant a fair trial. The trial judge reserved ruling on the motion until the full jury pool had been questioned, at which time he denied appellant's motion.

Under KRS 452.210, a trial court "shall" order a trial to be held elsewhere "if it appears that the defendant ... cannot have a fair trial in the county where the prosecution is pending." Id. Addressing juror impartiality, the United States Supreme Court has said:

"It is not required ... that the jurors be totally ignorant of the facts and issues involved. In these days of swift widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961).

In Brewster v. Commonwealth, Ky., 568 S.W.2d 232 (1978), this Court recognized that a change of venue is warranted where there is a "reasonable likelihood" the defendant cannot receive a fair trial. Id. at 235. In the instant case, the trial court had before it appellant's motion and affidavits, and five days of potential jurors' responses to questions asked during qualification interviews. Measuring by the "reasonable likelihood" standard, we cannot conclude the trial court lacked sufficient evidence to support its order denying appellant's motion.

"The question of whether venue should be changed addresses itself to the sound discretion of the trial court." Payne v. Commonwealth, Ky., 623 S.W.2d 867, 876 (1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72...