King v. Com., No. 2007-SC-000713-MR.

• Decision Date: 22 January 2009
• Docket Number: No. 2007-SC-000713-MR.
• Citation: 276 S.W.3d 270
• Parties: Ricky KING, a/k/a Ricky Neal, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

276 S.W.3d 270

Ricky KING, a/k/a Ricky Neal, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000713-MR.

Supreme Court of Kentucky.

January 22, 2009.

Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, James Chesnut Maxson, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice VENTERS.

Appellant, Ricky King (a/k/a Ricky Neal), was convicted by a McCreary Circuit Court jury of complicity to murder and first-degree robbery. For these crimes, Appellant accepted a negotiated sentence of thirty-five years imprisonment. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110.

Appellant asserts six arguments on his appeal: 1) that he should have been granted a separate trial from his co-defendant Kim Dalton; 2) that the trial court denied his right of confrontation by limiting his impeachment of a key witness; 3) that the introduction of other crimes evidence was prejudicial to him; 4) that the Commonwealth improperly cross-examined his co-defendant causing him prejudice; 5) that the introduction into evidence of his co-defendant guilty pleas prejudiced him; and 6) that the trial court improperly denied his jury challenges for cause. For the foregoing reasons, we now affirm Appellant's conviction and sentence.

On the night of December 15, 2006, Morris King¹, a sixty-five year-old resident of Burnside, Kentucky, went to a bar he regularly frequented in Winfield, Tennessee. There he ran into Appellant, Kim Dalton, Rocky King, Danny Bryant, and Harold King.² The evidence presented at trial indicated that this group of individuals, believing Morris was rich, devised a plan to rob him. Several bar patrons testified that they were worried about Morris's safety that night because members of the group openly discussed robbing him.

As Morris was leaving the bar, Appellant tried to convince Morris to let him drive his car. This plan was foiled by one of the bar patrons. The group including Appellant then left the bar just ahead of Morris and traveled north on U.S. Highway 27. Testimony at trial indicated that once the group had driven a few miles, Appellant requested that he be allowed to drive the car. This request was granted and Appellant took over driving. Appellant then pulled off the road and waited for Morris to drive by.

Several members of the group testified that once Morris's truck drove past, Appellant pulled in behind him and began to honk his horn and flash his lights. Morris pulled over to the side of the road. Appellant and Rocky spoke with Morris and convinced him to let them into his truck. Appellant instructed Rocky to drive the three of them to a remote part of McCreary County. The rest of the group followed in their car. As they drove, Morris pulled a gun on Appellant and Rocky.

Once they got to the final destination, Bryant got into the truck as Appellant got out to talk with the rest of the group. Morris, apparently realizing that the group intended to harm him, fired a warning shot. Bryant and Morris struggled for the gun. Appellant then jumped back in the truck and wrestled the gun away from Morris. Rocky testified at trial that Appellant fired one shot at Morris. This shot hit Morris in the neck. Rocky then testified that he took the gun from Appellant and five or six minutes later shot Morris three or four more times. One of the shots killed Morris. After the shooting, Dalton took Morris's wallet which contained a hundred dollar bill. The group decided to split the money evenly amongst themselves.

After staying the night at Appellant's mother's house, the group conspired to conceal evidence of the crime. Morris's wallet was burned and the gun was thrown in a creek. However, despite their best efforts, a search of Morris's body and truck turned up substantial forensic evidence linking them to the crime.

After a short investigation, Appellant, Dalton, Bryant, Rocky, and Harold were indicted for the murder and first-degree robbery of Morris. Bryant, Rocky, and Harold all accepted plea deals in exchange for testifying at Appellant and Dalton's joint trial. The jury found both Appellant and Dalton guilty of first-degree robbery and complicity to murder.

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR A SEPARATE TRIAL.

Appellant's first allegation of error is that the trial court abused its discretion by denying his and Dalton's multiple motions for a separate trial. Appellant argues that separate trials should have been granted because his and Dalton's defenses were antagonistic. In particular Appellant complains that he had to jointly exercise his peremptory strikes with Dalton despite having different defenses, that Dalton was the source of Appellant's other crimes evidence that was introduced at trial, that Dalton's counsel helped prosecute Appellant, and that the jury gave both of them identical sentences.

RCr 9.16 allows the trial court to order separate trials if it appears that a defendant will be prejudiced by the joinder of trials. However, the decision whether to grant a separate trial is within the sound discretion of the trial court. Rachel v. Commonwealth, 523 S.W.2d 395, 399 (Ky. 1975). We have never held as a matter of law that severance is required if the co-defendants have antagonistic defenses. Id. There must be some other factor present before we will reverse the trial judge's decision not to grant separate trials. Id. at 399-400.

The trial court did not abuse its discretion in denying Appellant's motion for a joint trial. While it could be argued that Appellant and Dalton's defenses were antagonistic, no other factor indicating prejudice is present. The same evidence that was presented in the joint trial could have been admitted in a separate trial against Appellant. See Commonwealth v. Rogers, 698 S.W.2d 839, 841 (Ky.1985) (holding that the trial court did not abuse its discretion in failing to grant defendant's motion for separate trial, since co-defendant would have given same testimony in two separate trials, and none of material testimony would have been inadmissible against defendant had he been tried separately). Appellant and Dalton's sharing of peremptory strikes is mandated by RCr 9.40 in joint trials. Additionally, Appellant accepted his sentence in a deal with the Commonwealth and thus no jury bias can be inferred. Accordingly, we cannot find that the trial court abused its discretion in denying the motion for a separate trial and there is no error here.

II. THE TRIAL COURT COMMITTED NO ERROR IN LIMITING THE CROSS-EXAMINATION OF BRYANT

Appellant next argues that the trial court improperly limited his ability to impeach Bryant's testimony. Prior to trial, Bryant accepted a deal to plead guilty to facilitation to murder and facilitation to robbery and become a witness for the Commonwealth. However, Bryant had not been sentenced for his crimes by the time he testified at Appellant's trial. Dalton attempted to impeach Bryant on this fact. The implication was that Bryant's testimony was tainted in favor of the Commonwealth in an attempt to receive a lower sentence for his crimes. The Commonwealth objected to this impeachment and the trial court sustained that objection. Appellant never attempted to impeach Bryant on the fact that he had not been sentenced. However, Appellant and Dalton both extensively impeached Bryant on his plea agreement in general.

Appellant did not properly preserve this alleged error for appellate review. Since Appellant never attempted to impeach Bryant he thus did not let the trial court know of his preferred outcome. See RCr 9.22. Appellant cannot use his co-defendant's actions to preserve error he claims. See generally Brown v. Commonwealth, 780 S.W.2d 627, 629 (Ky.1989) (holding that an objection made by co-defendant does not preserve the error for the defendant unless the co-defendant makes it clear that the objection is for both parties or the defendant makes his own objection). Thus, we will review this allegation under our palpable error standard. RCr 10.26.

"Whenever limitations on the right of cross-examination are analyzed, it should be remembered that the right implicated is a fundamental constitutional right and that such limitations should be cautiously applied." Commonwealth v. Maddox, 955 S.W.2d 718, 720 (Ky.1997). "Witness credibility is always at issue and relevant evidence which affects credibility should not be excluded." Id. at 721. However, "defendants cannot run rough-shod [over witnesses], doing precisely as they please, simply because cross-examination is underway. So long as a reasonably complete picture of the witness's veracity, bias, and motivation is developed, the judge enjoys power and discretion to set appropriate boundaries." Id. quoting United States v. Boylan, 898 F.2d 230, 254 (1st Cir.1990). Here, the trial record indicates that Appellant and Dalton repeatedly questioned Bryant about his plea agreement. In fact combined, Appellant and Dalton cross-examined Bryant for nearly twenty minutes. The trial judge reasonably limited Dalton's impeachment of Bryant after he believed the subject had been thoroughly covered. Appellant and Dalton certainly were able to develop a "reasonably complete picture" of Bryant's potential motivations to be untruthful. There is no error, much less palpable error here.

III. THE INTRODUCTION OF APPELLANT'S BAD ACTS EVIDENCE WAS HARMLESS ERROR

Appellant next argues that the trial court impermissibly allowed the admission of his prior bad acts into evidence. In particular, Appellant argues that Dalton's testimony informed the jury that he had been in jail for domestic violence against his wife and that there had been an emergency protective order taken out against him. Dalton also testified that Appellant was considered to be a "really bad" person by a Kentucky State Police detect...