Leigh v. Com.

• Citation: 481 S.W.2d 75
• Parties: William Alvin LEIGH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 04 February 1972
• Court: United States State Supreme Court (Kentucky)

Page 75

481 S.W.2d 75

William Alvin LEIGH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 4, 1972.

Rehearing Denied June 23, 1972.

W. H. Bixler, Covington, for appellant.

John B. Breckinridge, Atty. Gen., John C. Ryan, Sp. Asst. Atty. Gen., Frankfort, for appellee.

EDWARD P. HILL, Jr., Judge.

This appeal is from a judgment of the Kenton Circuit Court after a jury trial finding appellant guilty of wilful murder and imposing the death sentence.

In the evening hours of October 25, 1969, Charles Oelsner was shot and killed at his liquor store in Covington, Kentucky, during an attempted armed robbery by two Negro men. There were two eyewitnesses present in the store, Mrs. Charles Oelsner and Mrs. Dorothy Deitz, who testified that the appellant, Leigh, fired the shot that killed Mr. Oelsner. In addition, Leigh's accomplice, Lovelace, testified that Leigh fired the fatal shot.

Mrs. Oelsner and Mrs. Deitz were transported to Dayton, Ohio, to view a line-up, in which appellee Leigh was included, on November 13, 1969, eighteen days after the shooting. Mrs. Deitz made a definite identification of the appellant, and Mrs. Oelsner made a tentative identification. Also present at the Dayton line-up was a Mr. Mitchell, who identified Leigh as the person who shot and wounded him while Leigh and Lovelace were attempting to rob the liquor store in which he worked in Cincinnati twenty minutes after Mr. Oelsner was killed. The bullet taken from Oelsner proved to be from the same gun that shot Mr. Mitchell.

Opon Leigh's arrest, he called his girl friend and told her to get rid of the gun he had given her to keep for him. Both Leigh and his girl friend testified as to this fact. Also, two of Leigh's acquaintances testified that Leigh told them he robbed a liquor store and shot a man who later died.

Appellant sets forth eight grounds for reversal. They will be discussed individually in the sequence in which they occurred at the trial.

The appellant moved for a change of venue on March 18, 1970, setting forth several grounds including the fact that the victim was well known; that a deputy sheriff was related to the victim; and that the public outrage was such as would prevent his receiving a fair trial in Kenton County. Accompanying this motion was an 'affidavit' signed by counsel for appellant. This was not notarized.

The motion was overruled by the trial judge, relying on KRS 452.220(2). This statute requires that the petition be verified by the defendant and the filing of affidavits of at least two other credible persons. Because these requirements were not complied with, the motion properly was overruled. Also, there is nothing in the record to indicate that appellant's counsel sought permission of the court for time to comply with the statute.

On March 31, 1970, both sides had accepted eight jurors, and the court was adjourned until April 1, 1970. The eight jurors were sequestered; and when court reconvened to select the rest of the jurors, one of the eight stated to the court that he had subsequently recalled hearing an account of the incident and that he had already formed an opinion in the matter. The trial judge, after questioning the juror, excused him for cause. Counsel for appellant argues in his brief that the trial court was in error in not discharging the other seven jurors who had already been accepted by both sides. Counsel for appellant states that this was error as a matter of law but offers absolutely no authority to support his position. This court, in Pennington v. Commonwealth, Ky., 455 S.W.2d 530, 532 (1970), made the following comment upon the trial judge's discretion in such matters:

'* * * After jurors or prospective jurors in a capital case have been accepted and until the trial is over they are to be kept together and separate from outside influence, except as otherwise provided. This does not mean, however, that if one of them is for some reason eliminated after being sequestered with the others he must be regarded as having been an outsider. Until Mrs. Melton was released by the trial court she was just as much a juror or prospective juror as were the others. She had been accepted by both sides. The situation that developed thereafter was the same as if she had become ill, or had died, or had been excused for some other good cause. She did not become, retroactively, a 'stranger."

On the morning of April 2, 1970, before the complete jury had been selected and at the time the sequestered jurors were being brought to the courtroom, two of the jurors, Grace Auge and Alice Castleman, separated from the panel and Mrs. Aruge talked to her father in the courthouse hall. The duration of the conversation was a matter of seconds and the sheriff was in her company. The sheriff testified in an in-chambers hearing that Mrs. Aruge asked him if she could speak with her father, and he said: 'Yes, but I will have to be there with you.' He further testified that her father asked if she needed any money for meals, and she replied no, that her husband had sent her some money. This testimony was corroborated by the other juror, Mrs. Castleman.

The appellant does not allege that improper communications were involved but presumably asserts that any violation of sequestration is reversible error. The only authority cited by counsel for appellant is KRS 29.265, which states: 'No officer, party to an action pending, or his attorney or attorneys shall, without leave of court, converse with the jury or any member thereof upon any subject after they have been sworn.'

This statute is not an express prohibition against conversation with all individuals and is not, therefore, exactly in point. However, this conversation was a violation of the court's admonition given pursuant to RCr 9.70. The trial judge conducted an in-chambers hearing in which he determined that the breach of sequestration was not improper. This...