Kinser v. Com.

• Decision Date: 15 October 1987
• Docket Number: 85-SC-1092-MR and 85-SC-1093-MR,Nos. 85-SC-1085-M,s. 85-SC-1085-M
• Citation: Kinser v. Com., 741 S.W.2d 648 (Ky. 1987)
• Parties: Leroy KINSER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Ronald JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Dean VINCENT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

Page 648

741 S.W.2d 648

Leroy KINSER, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

Ronald JOHNSON, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

Dean VINCENT, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

Nos. 85-SC-1085-MR, 85-SC-1092-MR and 85-SC-1093-MR.

Supreme Court of Kentucky.

Oct. 15, 1987.

Rehearing Denied Jan. 21, 1988.

Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellantLeRoy Kinser.

Linda K. West, Asst. Public Advocate, Frankfort, for appellantRonald Johnson.

Rodney McDaniel, Asst. Public Advocate, Frankfort, for appellantDean Vincent.

David Armstrong, Atty. Gen., Elizabeth Marshall, Asst. Atty. Gen., Frankfort, for appellee Com WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Kinser, Johnson and Vincent of first-degree burglary, first-degree robbery, and wanton murder.They were sentenced to terms of twenty years, twenty years, and life.

Various issues were raised by the three appellants with the most consistent complaint being an objection to the bifurcated procedure used by the trial judge.Kinser had given a statement to police which directly implicated Johnson and Vincent.Consequently the trial judge was presented with the problem of the admissibility of this statement against Johnson and Vincent because Kinser was not expected to testify.Rather than granting separate trials, the trial judge bifurcated the trial so that all evidence for the prosecution except for the statement of Kinser was presented to the jury and then all three defenses were submitted.The jury was then instructed as to Johnson and Vincent and a verdict of guilty was returned.The jury then heard evidence as to the penalty phase for the murder convictions of Johnson and Vincent and those penalties were set.Thereafter, the jury heard the evidence regarding Kinser's statement and retired to deliberate his guilt.Upon finding him guilty, his penalty phase was completed and he was sentenced.

Kinser argues that his confession should have been suppressed due to conflicting interests of attorney Logsdon; that he was prejudiced by the bifurcated trial procedure; that the trial judge violated his guarantee against double jeopardy; that he was prejudiced by the comments of the trial judge and that the testimony of Detective Gaddie prejudiced him.

Johnson claims that the statement by Kinser was not properly admitted; that a proper foundation was not laid for the impeachment of Eva Kinser; that he was prejudiced by the bifurcated trial procedure; and that the trial court erred in refusing to grant separate trials.

Vincent maintains that the out-of-court statements made by Kinser and Johnson deprived him of his right to confrontation and cross-examination; that a proper foundation was not laid for the impeachment of Eva Kinser; that he was prejudiced by the bifurcated trial; that he was prejudiced by the testimony of Detective Gaddie; that the closing argument was improper; that the comments of the trial judge were unfair and that the trial judge violated his guarantee against double jeopardy.

During the course of burglarizing the residence of the victim, the intruders severely beat and gagged him.He died either as a result of the attack upon him or the tightness of the gag which rendered him unable to breathe.After hearing the circumstantial evidence of guilt, the jury convicted all three defendants.On appeal they present a united attack on the bifurcated proceeding and each presents additional individual grounds challenging the verdict.

This Court affirms the judgment of the circuit court because the bifurcated trial did not cause any prejudice or violate any substantial rights of the defendants.The procedure was entirely within the discretion of the trial judge pursuant to RCr 9.42 and rather than causing prejudice to Vincent and Johnson, the trial judge actually protected their rights.

I

It was not reversible error for the trial judge to refuse to suppress the pretrial taped confession on the grounds of conflict of interest on the part of counsel.

Kinser argues that his original counsel also represented a potential key prosecution witness.The defense lawyer did represent the daughter of the witness at the time and he had an involvement with the witness by virtue of accompanying her when she turned over to police a roll of dimes given to her by Kinser.Shortly after the confession the lawyer was replaced by other counsel for Kinser.

A careful review of the record indicates that the trial judge did not commit reversible error in determining that the confession by Kinser was entirely voluntary.The evidence indicates that it was his desire to make such a statement.The statement, while implicating himself in the overall crime, served to portray him as a mere bystander to the attacks on the victim.The fact that he was represented by counsel at the time he waived his rights and made a voluntary statement does not make the statement any less voluntary.

The original counsel testified that he talked with Kinser a sufficiently long time to be satisfied that the defendant sincerely desired to make a statement.Kinser's rights were fully discussed and thoroughly explained and he seemed to be under no duress.There was no indication that he was offered any inducement or promise by the prosecution or any police official.Counsel recalled that Kinser was read his rights, understood them and voluntarily waived them.

The evidence indicated that no legal relationship ever existed concurrently between defense counsel and the witness or the lawyer and the defendant.There was no actual conflict of interest and no adverse performance by counsel as a result of any conflict.SeeUnited States v. Knight, 680 F.2d 470(6th Cir.1982)cert. den.459 U.S. 1102, 103 S.Ct. 723, 74 L.Ed.2d 950(1983).

Kinser was not prejudiced by the bifurcated trial procedure.He had completed his case when the jury first began any deliberations.No further defense was made by Kinser after the jury heard his confession.The fact that the jury found the two co-defendants guilty prior to hearing the confession no more prejudiced the jury as to Kinser than would have occurred had the jury considered the guilt of all three at the same time.Kinser had no further case to present at the time the jury deliberated on the guilt of the other co-defendants.

The only effect of the bifurcation was to avoid the prejudice to the co-defendants which could have emanated from the Kinser confession.As to him, the additional element of his confession may have hurt his case, but the same would have been true at an entirely separate trial.United States v. Stratton, 649 F.2d 1066(5th Cir.1981) is not applicable because Kinser had completed his case before the jury first began any deliberations.

The argument that the trial judge violated his guarantee against double jeopardy is without merit.Polk v. Commonwealth, Ky., 679 S.W.2d 231(1984).

Kinser was not prejudiced nor denied due process by the comments of the trial judge.A reading of the entire record indicates the impartiality with which the trial was conducted.The two comments by the trial judge are insignificant and do not amount to reversible error.

The testimony of Detective Gaddie did not prejudice Kinser or deny him due process of law.Any prejudice which could have possibly resulted was cured by the strong admonitions from the trial judge.

II

The out-of-court statement by Kinser that he watched Johnson and Vincent beat and rob the victim was properly admitted as a prior inconsistent statement and limited in its application against Kinser only.

Johnson argues that the trial judge committed error by admitting the out-of-court statement of Kinser made to his sister.During her examination, she testified that she had been interviewed by Detective Gaddie but denied making any statement relative to the involvement in this crime by her brother.After an appropriate foundation was made, the prosecution produced evidence from the detective to the effect that Kinser had told his sister that he was with Johnson and Vincent during the crime but that he stood in the doorway while they went inside and did whatever was done.Johnson argues that because that statement incriminated him and because Kinser did not testify, his rights were violated pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476(1968).Bruton, supra, does not apply because the prosecution offered to sanitize the statement by excising the names of Vincent and Johnson, but the defense objected.Thus, the defendants themselves brought about the harm denounced in Bruton.They cannot complain now.

A proper foundation pursuant to Civil Rule 43.08 was laid for the impeachment of Eva Kinser.The witness was expressly asked about her conversations with the detective and she admitted the conversation.She was then specifically asked about the statement in question, but denied making any such statement.Johnson argues that in order to have a sufficient foundation, she should have been informed of the date and time of the alleged statement.Had Eva denied the conversation with the detective such a foundation would have been necessary.However, she recalled and admitted the conversation but simply denied making any statement relating to the possible involvement of her brother in the crime.The foundation was adequate.Lynch v. Commonwealth, Ky., 472 S.W.2d 263(1971).

Johnson was not prejudiced by the bifurcated trial procedure.It was not an abuse of discretion for the trial judge to deny all of the motions by the three defendants for separate trials even though Kinser had given a statement to police which implicated Johnson and Vincent.This statement was inadmissible as to Johnson and Vincent because Kinser would not be testifying at trial.Bruton.

Due to the nature and complexity of this trial, rather than grant separate trials, the trial...