Humphrey v. Com.

• Decision Date: 04 June 1992
• Docket Number: No. 88-SC-897-MR,88-SC-897-MR
• Citation: 836 S.W.2d 865
• Parties: Brenda HUMPHREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 865

836 S.W.2d 865

Brenda HUMPHREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-897-MR.

Supreme Court of Kentucky.

June 4, 1992.

Julie Namkin, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., David A. Smith, Elizabeth A. Myerscough, Asst. Attys. Gen., Crim. Appellate Div., Frankfort, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Brenda Humphrey of capital kidnapping, facilitation of murder, first-degree robbery, facilitation of first-degree rape and criminal conspiracy. The jury fixed punishment for the capital kidnapping at life in prison without the possibility of parole for 25 years. Humphrey was sentenced to a total of 40 years in prison on other charges, which sentence was enhanced to 50 years on her guilty plea as a first-degree persistent felony offender.

Twelve issues were raised by the brief and supplemental brief of Humphrey. We will consider each of the allegations of error.

Humphrey was tried jointly with Gregory Wilson in connection with the death of a woman who was kidnapped at knife point outside of her apartment in Covington. The victim was placed in the backseat of a car driven by Humphrey and raped, robbed and murdered. Her body was dumped in a rural part of Indiana, just west of Indianapolis.

I

The first issue is whether evidence of Humphrey's guilt on the robbery charge was sufficient to withstand a motion for directed verdict. Initially, we must observe that the argument now presented was not properly preserved for appellate review. At trial, Humphrey challenged the sufficiency of the evidence pertaining to both the elements of robbery; theft and force. However on appeal, she limits her argument to the element of force. Humphrey, who was represented by counsel, did not object to the giving of a first-degree robbery instruction, nor did she tender an instruction on a lesser degree of robbery or theft.

An examination of the record in this case indicates that there was sufficient evidence from which a reasonable juror could infer that Humphrey threatened and used force and caused physical injury. The trial judge did not err in allowing the robbery charge to go to the jury. There was testimony that not only had she helped plan the robbery, but she also aided in subduing the victim during the robbery. The evidence of force and injury was sufficient to sustain a robbery conviction. We have considered the supplemental authority cited by Humphrey and find it to be not applicable. The legal standard for determining whether a case should go to the jury is established in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). The appellate standard of review was first enunciated in Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1984) and reiterated in Benham v. Commonwealth, Ky., 816 S.W.2d 186 (1991).

II

Humphrey next argues on appeal that the trial judge committed reversible error when he allowed her to be placed in the death-eligible class for her accomplice-to-kidnapping conviction despite the verdict of the jury finding her not guilty of murder. It is admitted that this issue is not preserved but it is requested that the Court review it pursuant to RCr 10.26.

Humphrey was not sentenced to death. It is conceded that Humphrey facilitated an intentional murder. She was a principal in robbery and a co-conspirator as well. An accomplice to a capital offense is eligible for the same punishment as the principal. Halvorsen v. Commonwealth, Ky., 730 S.W.2d 921 (1986). Humphrey's participation in the series of criminal activities leading to the victim's death was significant. We find no reason to review this allegation of error on the basis of RCr 10.26 or Stone v. Commonwealth, Ky. 418 S.W.2d 646 (1967).

III

Humphrey claims that she was denied her constitutional guarantee against double jeopardy and her right to have the class of persons eligible for the death penalty genuinely narrowed when the trial judge improperly allowed the underlying felony of robbery to be used at the guilt phase to obtain a substantive first-degree robbery conviction and as an element of the felony kidnapping conviction and then allow the same underlying felony to be used at the penalty phase as the sole aggravating factor to place her in the death-eligible class. This issue was not preserved but can be reviewed pursuant to a double jeopardy analysis.

The victim was abducted near her home and forced into her own car by Wilson. She was then driven to an isolated area near the flood wall and forced by Wilson to lie face down on the grass while Humphrey went to obtain gas for the automobile. Upon Humphrey's return, the victim was again forced into the automobile in the back seat with Wilson. During this time, the victim was raped, robbed and murdered. The double jeopardy theory does not apply. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). When the restraint has progressed beyond that which occurs immediately with and incidental to the commission of an offense, such as robbery or rape, the offender is guilty of kidnapping and the exemption statute does not apply. Gilbert v. Commonwealth, Ky., 637 S.W.2d 632 (1982).

Humphrey's second double jeopardy contention is that the rape and robbery convictions cannot be used to prove aggravating circumstances for kidnapping at the penalty phase. K.R.S. 532.025 does not mandate that the accused be punished for the same offense twice. The statute only requires that the aggravating circumstances be used to determine only whether the crime of kidnapping should carry the death penalty. K.R.S. 532.025(1)(b).

Simply because the aggravating circumstance is duplicative to one of the underlying offenses does not mean that the accused is being punished twice for the same offense. The underlying offenses were only factors to be considered as to whether the punishment for kidnapping should be death. Humphrey was not subjected to double jeopardy or multiple punishment for the same offense. Cf. Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).

IV

Humphrey contends that she was entitled to a separate trial and that the trial judge should have on his own motion ordered the cases severed. In the alternative, she claims her mistrial motion should have been granted because codefendant Wilson's pro se representation denied her a fair trial.

It was not necessary for the trial judge to sua sponte order separate trials. In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the U.S. Supreme Court rejected a claim that a joint trial of a capital defendant and a noncapital defendant deprived the latter of due process because in a separate trial his jury could not be death qualified.

A criminal defendant is not entitled to severance unless there is a positive showing prior to trial that joinder would be unduly prejudicial. RCr 9.16. Commonwealth v. Rogers, Ky., 698 S.W.2d 839 (1985). The trial judge has considerable discretion in ruling on such on such a motion. Wilson v. Commonwealth, Ky., 695 S.W.2d 854 (1985); Rachel v. Commonwealth, Ky., 523 S.W.2d 395 (1975). The joinder of defendants Wilson and Humphrey for trial did not unfairly prejudice Humphrey.

The contention by Humphrey that evidence unrelated to her was introduced during her trial which would have been excluded had separate trials been granted is without merit. The fact that evidence may pertain to one defendant but not the other is insufficient to establish the kind of prejudice needed for separate trials. Hoskins v. Commonwealth, Ky., 374 S.W.2d 839 (1964).

V

Humphrey claims that she was denied her right to confrontation when codefendant Wilson made his own closing argument and said that Humphrey told her sister she killed the victim. Wilson did not testify at trial and there was no evidence to support his statement.

The jury had been informed that opening and closing statements were not evidence. Wilson's statement did inculpate Humphrey but was not vitally important to the prosecution's case. United States v. Sacco, 563 F.2d 552 (2nd Cir.1977). The prosecution objected to the statement. Defense counsel also objected but did not seek an admonition from the court. A review of the record indicates that Humphrey suffered no manifest injustice or prejudice as a result of Wilson's statement. Wilson denied he ever met or even knew the victim, but was convicted of murder by the jury. Humphrey was only convicted of facilitation to murder.

VI

In brief and at oral argument, counsel for Humphrey argues that she was denied effective assistance of counsel because her trial lawyer had previously represented a prosecution witness. Humphrey says this representation resulted in an automatic conflict for her trial attorney because he failed to use privileged information in cross-examining the witness or feared misuse of such information in his cross-examination. Humphrey urges United States v. Jeffers, 520 F.2d 1256 (7th Cir.1975) as her legal authority.

We do not agree. Humphrey was not denied effective assistance of counsel, a fair trial or due process of law because her trial attorney represented a prosecution witness on an unrelated charge. Jeffers, supra, observes that in determining whether a conflict actually exists, the courts must examine the particular circumstances. The trial judge asked defense counsel to go into more detail with the witness if she had any difficulty with his cross-examining her. The witness's attorney-client privilege was involved, not the defendant's. The trial judge noted that defense counsel did not want to put himself into a position which might lead to difficulties, and defense counsel responded that he had no problem. As noted in Jeffers, courts can generally rely on the sound discretion of members of the bar to treat privileged information with appropriate respect.

The mere fact that an attorney is...