Davis v. Com.

• Decision Date: 16 September 1977
• Citation: 555 S.W.2d 575
• Parties: Oakley DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 575

555 S.W.2d 575

Oakley DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Sept. 16, 1977.

Harold G. Slone, Lexington, for appellant.

Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.

STERNBERG, Justice.

Appellant, 26 years of age, was indicted on May 25, 1976, by the Fayette County Grand Jury for first-degree robbery (KRS 515.020) and murder (KRS 507.020). Upon a jury trial in the Fayette Circuit Court, he was found guilty on both offenses and sentenced to 20 years' imprisonment for murder and 10 years' for robbery, said sentences to run consecutively.

As lifted from appellant's brief, the issues on this appeal are:

"I. Can the Commonwealth elicit testimony of statements allegedly made by appellant which inferred a disposition toward committing a criminal act, when the statements did not establish identity, guilty knowledge, intent or motive and the issue of appellant's character had not been placed in issue by appellant?

II. In the Commonwealth's chief case, is it permissible to impeach appellant by showing evidence that prior statements made out of court were inconsistent and contradictory without laying a proper foundation and without permitting appellant to confront the pre-trial statement on the witness stand?

III. When photographs showing bloody pictures establishing stipulated facts are presented into evidence, did the trial court err in admitting evidence which had less probative weight than prejudicial effect?"

On April 22, 1976, between 2:30 and 3:00 p. m., the Hanover Liquor Store was robbed and its clerk, Alan Rankin, was murdered. Rankin received a .25-caliber bullet wound to the left temporal region of his head and six slash wounds to the back of his neck. Three .25-caliber shell casings were found in a pool of blood where the deceased had fallen. The weapons were not recovered and there was no witness to the killing.

Commencing in February, 1976, the appellant shared an apartment with a female companion. This arrangement was upsetting to her parents and they were trying desperately to disrupt it and take their daughter home. However, appellant was able to persuade his concubine to stay with him and to resist the efforts of her parents. Shortly after this clandestine relationship started, appellant showed his companion a silver-colored automatic pistol. She expressed displeasure with the weapon and he put it away. The witness testified that on several occasions during the time they lived together the appellant talked of armed robberies. No specifics were mentioned, and she considered the statements were made in jest. She further testified that in April the appellant sold a brown revolver to Mr. Gilbert Coreman.

On the morning of April 22, 1976, the appellant, driving his companion's car, left the apartment for the avowed purpose of seeking work, but he returned between 10:30 and 11:00 a. m., without success. In the afternoon of the same day, and between 1:30 and 2:00 p. m., appellant left the apartment to go get some wine. His companion left to make a telephone call to her mother. About an hour later the appellant returned to the apartment carrying two paper bags, each containing a bottle of T. J. Swann wine. Soon thereafter, while appellant was changing his clothes preparatory to going to the beach at Boonesboro, Kentucky, he displayed a large amount of money, consisting of a $20 bill and many $1 bills. At about 3:30 p. m. the parties went to the beach, but after only about thirty minutes or so they returned to the apartment, where they stayed the rest of the evening.

Bernard Howard, a witness for the Commonwealth, testified that he and the appellant, sometime around Christmas 1975, went to a dump near Lexington, Kentucky, for target practice. They had two pistols, both belonging to appellant. He stated that one pistol was a .22-caliber revolver and the other a small gun, but he could not identify the caliber, except that it was a silver-colored automatic. On this occasion the witness, Howard, shot the .22-caliber pistol and the appellant shot the other gun. Howard directed the police officers to the target area, where nine .25-caliber shell casings were recovered by the officers. Later, they were identified as having been fired from the same gun which fired the three shots found at the scene of the robbery.

William Stewart testified that on the day of the murder and robbery, between 9:30 and 10:00 a. m., the appellant visited him at his home. While there the appellant showed him a .25-caliber automatic pistol, which he took from his hip pocket, and talked of needing money and of armed robberies. Stewart was not familiar with guns so appellant removed the ammunition clip. The record reflects that in conversation before the trial judge and out of the hearing of the jury, the court was told that this witness, if permitted to do so, would testify that the appellant bragged that he had gotten away with robbing a grocery store in Louisville and with robbing the manager's apartment at the apartment complex where he lived. Counsel for appellant objected to the introduction of this testimony. The objection was sustained. The jury was not permitted to hear any of the testimony relating to the other two robberies. The court did permit the jury to receive the testimony of Stewart relative to the other conversation with appellant.

On the day of the commission of the offenses and between 2:00 and 2:30 p. m., Lucian Lynn and Andy Caudill had driven to the Hanover Liquor Store where they bought a six-pack of beer. The appellant was there at the same time, having arrived there just prior to their arrival. He bought a $1.47 bottle of wine. The cash register receipt numbers for these two sales were 150 and 149 respectively. The appellant drove east on Richmond Road, the same direction in which these witnesses were traveling. He preceded them for about five miles until he turned off at the Idle Hour Shopping Center, where they parted directions.

Gilbert Coreman testified that on the 13th or 14th of April, 1976, appellant accosted him about buying a pistol. An hour or so later Coreman went to the appellant's apartment and waited for appellant to bring the gun so that he could examine it. It was a .22-caliber white-handled revolver. The witness paid $20 for the weapon.

On the fateful day, at about 3:00 p. m., William Evans went to the liquor store to buy a six-pack of Pepsi and a bag of pork...