Eldred v. Com.

Decision Date27 October 1994
Docket NumberNo. 91-SC-678-MR,91-SC-678-MR
PartiesFrank ELDRED, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Marie Allison, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Attorney General, David A. Sexton, Assistant Attorney General, Criminal Appellate Division, Frankfort, Robert L. Bertram, Commonwealth Attorney, Jamestown, for appellee.

STUMBO, Justice.

This appeal arises from the judgment of conviction of Appellant, Frank Eldred, for murder, for which he received a sentence of imprisonment for life without the possibility of parole for twenty-five years. He appeals to this Court as a matter of right.

On July 23, 1988, Herbert Cannon was killed when his automobile was burned. The automobile was completely destroyed by the extremely hot fire, which also incinerated the body, although the official cause of death was smoke inhalation and carbon monoxide intoxication. The Commonwealth's theory of the case was that the decedent was killed by Appellant and a confederate, Tommy Perdue, at the request of Cannon's ex-wife, Sue Melton, for the sum of $5,000.

The Commonwealth's case was premised initially upon the testimony of Appellant's girlfriend, Cynthia Moore. She came forward in August 1990 and accused Appellant of the murder based upon statements he had made to her during the course of their relationship. There was additional evidence derived from the investigation of the crime, although it apparently was insufficient to make a case since no indictment was sought until after Moore came forward.

In any event, Appellant was arrested on November 15, 1990. An indictment was filed the next day charging Appellant, Melton, and Perdue, each with murder as a principal, complicity to murder, first degree arson as a principal, and complicity to first degree arson. Since it was asserted that the murder was "for hire," and proper notice having been timely filed, the death penalty was a potential sentence. See KRS 532.025(2)(a)(4).

On December 7, 1990, a trial was scheduled to begin on June 10, 1991. Eventually, the trials of the three co-defendants were severed, and Appellant's was slated to go first. A pre-trial conference was held on Friday, May 31, 1991, at which time it appeared that the trial of Appellant would proceed, and further that neither of the other two co-defendant's would enter any plea agreement. Thereafter, on Wednesday, June 5, 1991, counsel and the trial court held a conference call concerning the status of the case. During the call, there was no mention of any potential plea agreements. At a subsequent hearing on various motions, including one to exclude all out-of-court statements by the co-defendants, on Friday, June 7, 1990, it was first revealed that the Commonwealth might reach an agreement with Melton, which would include her testifying for the Commonwealth at Appellant's trial. Although there was no motion by Appellant for a continuance at that time, the trial court raised the "specter" of a continuance based upon the serious impact such an agreement would have on Appellant's defense. 1

In fact, a plea agreement was reached late on Friday, June 7. The essence of the agreement was that the charges against Melton would be amended to conspiracy to commit first-degree assault and conspiracy to commit kidnapping, which are both punishable as "Class C" felonies. The penalty recommended by the Commonwealth would be ten years on each offense to be served consecutively. She and her family were also to receive adequate protection from the police. In exchange, she agreed to truthfully testify at Appellant's trial. Her sentencing was to be postponed for sixty days in order to allow for the trial of Appellant to be concluded.

The existence of the plea agreement was revealed on the morning of Monday, June 10, 1991, which had been scheduled to be the first day of trial. However, the Commonwealth was not initially prepared to disclose the substance of the plea agreement, the statement made by Melton in reaching the plea agreement, nor apparently any of the previous statements made by her. As a result, Appellant indicated he was not ready for trial, and a continuance was requested. The need for the continuance was based upon the failure to reveal the agreement and any of Melton's statements, as well as the need for additional investigation. Specifically, Appellant's counsel stated that he would now need to interview additional witnesses, whom he had not previously needed to consider in light of the severance of the trial of the co-defendants, and the anticipated order preventing any statements from them being introduced; carefully consider the insurance policy issued on the life of the decedent, which might have been a motive for Melton to kill, as had been suggested by one of the investigating detectives; and follow up on any new leads revealed in this new information, and information which was to be disclosed concerning payments made by the police to, or on behalf, of Moore. In view of the sudden and dramatic change in circumstances, the need for new investigation, and because the Appellant was on trial for a capital offense, a continuance for sixty days was requested. The Commonwealth took the position that no continuance was necessary because it would take a week to seat the jury, which would allow for any needed investigation. The decision on the motion was postponed until the afternoon when Melton's counsel would be available.

At 1:00 p.m., Melton's counsel disclosed the substance of the plea agreement, which was outlined above. The Commonwealth disclosed that there was no record of the statement made during the plea agreement by Melton either by the Commonwealth Attorney or by the investigating detective. Again, the Commonwealth was not prepared to release any statements made by Melton and proposed releasing them only on the morning of trial. After discussion between counsel and the trial court, which included a reiteration by Appellant's counsel of the grounds for continuance previously noted, as well as further explanation of the need for investigation based upon the vast difference between the statement Melton must have made during the plea agreement and her previous statements; the extensive file on Melton, who had been the subject of investigation, since the time of decedent's death; and the need to explore the psychiatric history of Melton, who had asked for a psychiatric examination shortly after her arrest. The trial court determined that a continuation of one week until Monday, June 17, 1991 was sufficient. It was further ordered that the Commonwealth would produce the statement made by Melton as a part of the plea agreement by noon on Wednesday, June 12, 1991, as well as any other statements made by Melton.

On Friday, June 14, 1991, Appellant renewed his motion for a continuance of sixty days. In support of the motion, counsel restated the previous grounds, and pointed out that new lines of investigation developed as a result of the disclosure of Melton's statements. Specifically, questions had been raised about previous fires in which Melton had been involved and had collected insurance proceeds, which related to the allegation that Melton had killed to collect on decedent's life insurance policy, which would also provide a source of payment to Appellant and Perdue. Some investigation had been attempted on Thursday, June 13, 1991, which was the first day it could be attempted after delivery of Melton's statements on the afternoon of Wednesday, June 12, but was not completely successful, because one of the insurance agencies involved was closed. Additionally, there were statements made by Melton to neighbors; an attempt to intimidate one of the neighbors, Wanda Carter, by Melton's boyfriend, Chuck Connors; questions concerning the time and dates of Melton's employment at Lake Lure Lodge; and questions about Melton's alibi witness, all of which needed further investigation. Appellant's counsel pointed out that all the needed investigation had to be accomplished during the remainder of Friday, and over the weekend, since trial was scheduled for Monday, June 17. The Commonwealth took the position that under Appellant's theory one would never be ready to try the case since there would always be other lines of investigation. Apparently, the trial court was persuaded because the motion was overruled.

The case proceeded to trial on Monday, June 17. After final pre-trial motions were considered, voir dire was commenced. Voir dire was conducted through Wednesday, June 19, when it was completed. The Commonwealth presented its case on June 19; Thursday, June 20; Monday, June 24; and concluded on Tuesday, June 25, at which time Appellant presented his case. Instructions were argued on Wednesday, June 26. The guilt phase was concluded with instructions and closing arguments on Thursday, June 27, as was the penalty phase. Appellant was found guilty of murder and first-degree arson, and was sentenced to life without the possibility of parole for twenty-five years and life, respectively. Any additional facts necessary to our analysis will be set forth in the context of our discussion of the issues.

The first issue presented is whether the trial court abused its discretion in not granting Appellant's motion for a continuance of sixty days. A continuance will be granted upon a showing of sufficient cause. RCr 9.04; Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579, 581 (1991). The decision as to whether to grant a continuance is within the sound discretion of the trial court based upon the unique facts and circumstances of the case. Snodgrass, 814 S.W.2d at 581. Factors that should be considered by the trial court include:

(1) The length of delay;

(2) Whether there have been any previous continuances;

(3) The inconvenience to the litigants, witnesses, couns...

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