Cotton v. Com.

• Decision Date: 20 March 1970
• Citation: 454 S.W.2d 698
• Parties: Gilbert COTTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 698

454 S.W.2d 698

Gilbert COTTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 20, 1970.

As Modified on Denial of Rehearing May 29, 1970.

Foster V. Jones, Jr., Louisville, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

REED, Judge.

Appellant, Gilbert Cotton, was found guilty by a trial jury of attempted armed robbery (KRS 433.150) of the Fihe-Kupper Pharmacy, Shively, Kentucky, and of the armed robbery (KRS 433.140) of Voelker's Pharmacy, Louisville, Kentucky. The attempted armed robbery took place at about 9 o'clock one morning and the armed robbery took place later the same day at about 8 o'clock in the evening. Some narcotics were stolen in the course of the armed robbery. Appellant's punishment was fixed at life imprisonment on both charges. The judgment of conviction directed that the sentences be served concurrently.

Cotton asserts that prejudicial error was committed at his trial in several respects. We have examined the record and reject all of his allegations of prejudicial error except for two instances wherein his right to a fair trial was clearly violated. We, therefore, reverse the judgment and direct that appellant be retried.

Although appellant complains that a pretrial line-up violated the requirement of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the record shows that there was no objection interposed to the testimony of the witnesses for the prosecution in which an in-court identification of Cotton was made. Two of these prosecution witnesses stated that they picked appellant's photograph out from some pictures. The procedure was substantially the same approved in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

The robberies took place in well-lighted stores. The appellant wore no mask. Five people were able to see him for periods ranging up to five minutes and the witnesses picked out his photograph less than a day or two after the crime while their memories were still fresh, but before Cotton was represented by counsel. When the total situation is considered, we are convinced beyond any doubt that the reason no objection was made to the in-court identification of the appellant by these witnesses was the clarity with which it was demonstrated that their identification of the appellant was not tainted by any unfair line-up procedure. We find no prejudicial error presented by this asserted ground.

Appellant also argues that he was precipitously forced into trial on one of the charges before he was prepared to make defense. We need not even consider whether any error occurred in this area because we are directing a new trial in this case and the situation about which complaint is directed cannot recur.

Ila Johnson, a witness for the defense, was asked on cross-examination if she had been convicted of a felony. The witness admitted the conviction. No evidence was introduced concerning the identity of the felony. Nevertheless, during the final argument to the jury, the attorney representing the Commonwealth argued to the jury that this witness during her appearance on the witness stand was 'so full of narcotics it was perfectly obvious that she didn't know where she was.' Cotton's attorney objected. The trial judge in reply interjected: 'It is just an argument. She has been convicted on narcotics.' There was no evidence in the record to this effect and the fact that the trial judge injected it aggravated the error to the level of clear prejudice to the appellant's right to a fair trial.

The Commonwealth argues that 'this evidence was introduced to show a motive for Cotton's stealing drugs.' The plain truth is that the evidence was never introduced. There was no such evidence. We cannot sanction the action of the trial judge in advising the jury that a witness had been convicted of a particular crime where no such evidence has even been offered, much less introduced.

A very important problem raised in the case concerns the conduct of the prosecution in its efforts to show the jury that appellant had been previously convicted of felonies. At the time of the trial of this case, Cowan v. Commonwealth, Ky., 407 S.W.2d 695, had been the recognized law in this jurisdiction for almost two years. In spite of the clear direction given in that case, the prosecutor in this case asked the defendant on cross-examination if he hadn't been in the penitentiary six times. The trial judge directed the prosecutor to just ask if the defendant had been convicted of a felony. Contrary to that specific admonition by the trial judge the prosecutor then again said: 'Tell the jury how many times * * *.' The trial judge thereupon properly intervened and again directed that the defendant be asked if he had been convicted of a felony. The defendant then admitted a prior felony conviction. Thereupon the trial judge gave the usual admonition to the effect that this evidence must only be considered by the jury for the purpose of affecting the defendant's credibility as a witness and not as evidence of guilt of the crimes with which he was charged. Defendant's counsel properly preserved the error by motion that the jury be discharged.

Later in the trial, the prosecutor in cross-examining a defense witness, Roy Williams, asked: 'You have been convicted of the offense of armed robbery have you not?' The witness replied in the affirmative. Defendant's counsel again objected. On this occasion, the trial judge made no ruling on...