Davis v. Com.
| Decision Date | 18 December 1970 |
| Parties | Raymond Lawson DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
R. D. McAfee, Clifford F. Duncan, Jr., Louisville, for appellant.
John B. Breckinridge, Atty. Gen., William Bryan Martin, Asst. Atty. Gen., Frankfort, for appellee.
DAVIS, Commissioner.
Raymond Lawson Davis was found guilty of dwelling-house breaking and sentenced to imprisonment for two years, pursuant to the jury's verdict. KRS 433.180.
Although several assignments of error are presented, it is not necessary to recite or discuss all of them, since the judgment must be reversed for prejudicial error in compelling the appellant to defend seven felony charges in one trial, in the particular circumstances to be related.
On January 24, 1968, the grand jury returned an indictment against appellant, leveling charges of seven felonies against him. Taking the indictment 'by the numbers,' according to its seven counts, appellant was charged with: (1) breaking and entering the dwelling of James Yates with intent to detain a female, on or about November 13, 1967; (2) on or about November 14, 1967, again breaking and entering Yates' dwelling with intent to detain a female; (3) breaking and entering the dwelling house of Mary Stiff on November 21, 1967, with intent to steal (upon which count appellant was convicted); (4) detaining a female, Brenda Yates, on or about November 13, 1967; (5) the same offense mentioned in count (4), alleged to have occurred November 14, 1967; (6) rape of Barbara Cornett, a female over twelve years of age, on or about the 2nd day of November 1967; and (7) robbing Priscilla Warren of her purse containing money, etc., on or about November 5, 1967, by use of force and violence.
Appellant made timely motion that the Commonwealth be required to elect which of the charges it would prosecute first and for a separation of the various counts for trial. This motion was accompanied by a motion for a bill of particulars.
So far as appears of record, no written order was entered disposing of the motion to separate, but on March 26, 1968, the court ordered that a bill of particulars be furnished. RCr 6.22. On May 31, 1968, the Commonwealth's attorney filed what he later characterized as a 'cursory' bill of particulars, and accurately so, as appears when the bill is considered; it recited in relevant part:
'The Commonwealth's Attorney at this time is unable to state or estimate the exact time of day that each or any of the offenses occurred, which are the subject of the indictment.
'The Commonwealth's Attorney at this time is unable to state or estimate the exact place, street, alley, house or building that each or any of the offenses occurred which are the subject of the indictment.'
The appellant's legal problems became somewhat more entangled when he was indicted on May 22, 1968, for the capital offense of rape (KRS 435.090), allegedly committed on May 16 or 17, 1968, while he was at liberty on bail on the other charges. For a while, at least, it appears that the latter charge was ordered consolidated for trial with the first seven, but on July 17, 1968, as the trial of the seven-count indictment began, the subsequent rape charge was reassigned for separate trial. 1
As late as June 12, 1968, the appellant excepted to the bill of particulars 'as sham and vague and an avoidance of the duty of the Commonwealth Attorney's office.' A renewed motion for severance was apparently never ruled on in writing, although appellant's counsel asserted in a pretrial motion that the trial judge (not the same judge who presided at the trial) had orally directed the entry of an order of severance. In like manner, the record is silent as to any action of the court respecting the 'exceptions' to the bill of particulars.
When the case, involving seven counts of felony, came on for trial on July 17, 1968, appellant's chief counsel (Honorable Marion Vance) was not in count. Honorable R. D. McAfee sought a continuance, assuring the court of his unfamiliarity with the charges and that his employment had never encompassed trial responsibility. Mr. McAfee offered to present an affidavit, but the court informed him that the case could not be postponed.
A jury was selected; the Commonwealth was permitted to amend a count of the indictment by changing the alleged date of the offense from December 9, 1967, to November 5, 1967. Mr. McAfee pointed out to the court that he had never talked with the accused and stated: 'I'd like at least five minutes to talk to him.' The court declared a recess of fifteen minutes; the reporter's note reflects that the recess was for twenty-five minutes.
The Commonwealth's motion to 'nolle pros' 2 count (5) of the indictment was sustained just prior to the Commonwealth's opening statement to the jury. During the voir-dire examination of prospective jurors, reference was had to count (5).
After presenting evidence pertaining to the remaining six counts in the indictment, the Commonwealth dismissed the...
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