Lynem v. Com.
| Decision Date | 11 April 1978 |
| Citation | 565 S.W.2d 141 |
| Parties | Freddie LYNEM, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.
Freddie Lynem appeals from a judgment sentencing him to imprisonment for 20 years pursuant to a jury verdict finding him guilty of robbery in the first degree under the provisions of KRS 515.020.
As grounds for reversal it is argued: (1) that the prosecutor improperly commented on Freddie's custodial silence; (2) that the trial court's instructions were improper; (3) that the trial judge erred by allowing introduction of other criminal activity by Freddie; (4) the closing argument of the prosecutor was inflammatory and prejudicial; and (5) that the trial court erred by denying Freddie's request for a pre-trial line-up.
Counsel at the trial level was the local public defender of Fayette County. On this appeal, Freddie is represented by the public defender of the Commonwealth.
Richard Vance, Harold Greathouse, and D. H. Leach, businessmen from North Vernon, Indiana, spent a pleasant day at the races at Keeneland on October 20, 1976. Fortune smiled on them, as they were each heavy winners. They enjoyed the races, as well as the beautiful Kentucky Autumn. Each of them was exuberant as their selected horses won. After each race each of them would quench his thirst with his favorite brand of beer.
After the last race, Freddie approached them as they were celebrating their good day at the races. Freddie sold a watch to Vance for $10.00. He then sought a ride to Lexington. Bolstered by the beer and their winnings, Vance, Greathouse, and Leach were in a jovial mood. They gave Freddie a ride to Lexington. On their way they stopped at a liquor store. They bought a bottle of whiskey for their own use and a bottle of wine for Freddie.
Subsequently, they went to the University Inn and rented two rooms. They had several drinks. Freddie, who turned out to be a skillful con artist, was very helpful. He went to the desk clerk and procured a key for one of the rooms, and also brought a bucket of ice. In the meantime, Freddie offered to obtain some girls for Vance, Greathouse, and Leach. In testifying about that matter, Vance said to Freddie:
When Greathouse came back to the motel room he had already handed the keys "to the colored boy" (Freddie). Greathouse went back out to go with Freddie but he had already left in Vance's Cadillac automobile. In approximately 45 minutes, Freddie returned accompanied by another colored boy. In reference to his companion, Freddie said: "This is my 'procurer,' and pulled that pistol out from out from under wherever he had it and he stuck it in Gabby's face." The man who accompanied Freddie had on one of those "long coats." He opened the coat and had a shotgun. He said, "Boys, I want your money." So at the point of a pistol by Freddie and at the point of a shotgun by Freddie's colored companion, who was Gary Shanks, they robbed Vance of $800.00, Greathouse of $1,000.00, and Leach of $180.00. They then fled the scene.
Freddie left Lexington on the 11 o'clock bus for Pontiac, Michigan. Subsequently, he was arrested in Pontiac on a charge of three counts of first-degree robbery. He was extradited to Lexington, Kentucky, on May 4, 1977, and was tried on May 27, 1977.
Vance, Greathouse, and Leach reported the robbery to the police and at the Lexington Police Station they were shown the photographs of some 50 persons. From the photographs Vance and Leach picked out those of Freddie Lynem and Gary Shanks. Greathouse was unable to identify the photographs that night. Freddie was described by the victims as being slender, and having an afro haircut, and he was ". . . light-complected colored fellow." He was wearing a white hat and underneath it was a turban. All of the witnesses for the Commonwealth described him as having a gold tooth. Some of the witnesses testified that he was wearing an earring.
Vance, Greathouse, and Leach testified that the amount they had to drink didn't affect their judgment. That was corroborated by the police, as well as by the desk clerk at the University Inn. Vance's explanation about taking up with a stranger was as follows:
At the close of the testimony for the Commonwealth, Freddie took the witness stand in his own defense. He agreed with most of the testimony of Vance, Greathouse, and Leach, but denied that he committed armed robbery. Freddie testified he committed theft by unlawful taking. He further testified that one of the men asked him if he knew where they could get some "good women." Freddie told him he was talking to the right person. Freddie told an incredible story that the men gave him $700.00 so that he could impress the women with the kind of money they would be able to get and that Greathouse delivered the car keys to him. He rode around in the car for a while as if the car belonged to him. He testified that he drove over to the home of his girl friend, Sarah Dunson, and showed her the seven $100 bills.
Sarah Dunson testified that Freddie came by her house between 5 and 6:30 P.M. on October 20, 1976, and that he was driving a blue Cadillac. She testified that Freddie gave her $2.00 and that the only other money she saw in Freddie's possession was two $1.00 bills.
The court now directs its attention to the issues presented on appeal.
Freddie first contends the prosecutor erred by commenting on his custodial silence. During the redirect examination of Detective Giles, the Commonwealth's Attorney asked this question:
Because Freddie had not made any statement his trial counsel must not have thought it hurt, because he didn't voice any objection. In the absence of an objection or some other prompt request for...
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...v. Commonwealth, 801 S.W.2d 665 (1990). They were within the reasonable latitude permitted during closing argument. Cf. Lynem v. Commonwealth, 565 S.W.2d 141 (1978). Id. at 178-79. Later, in reviewing the 11.42 proceedings, the Kentucky court was faced with the direct allegation that counse......
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...608 F.2d 247 (6th Cir. 1979). The prosecution is given reasonably wide latitude in argument to persuade the jurors. Lynem v. Commonwealth, Ky., 565 S.W.2d 141 (1978). The brutality of the murder and the amount of evidence make it unlikely that the prosecutorial comments would have affected ......
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