Meadows v. Com., CA-56-MR

• Decision Date: 13 May 1977
• Docket Number: No. CA-56-MR,CA-56-MR
• Citation: 551 S.W.2d 253
• Parties: Ronnie MEADOWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 253

551 S.W.2d 253

Ronnie MEADOWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. CA-56-MR.

Court of Appeals of Kentucky.

May 13, 1977.

Jack Emory Farley, Public Defender, Com. of Ky., Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Com. of Ky., Frankfort, J. Albert Jones, Commonwealth's Atty., 2nd Judicial District, Paducah, for appellee.

Before GANT, LESTER and PARK, JJ.

GANT, Judge.

Appellant was convicted of Burglary in the First Degree under Ky.Rev.Stat. 511.020. This appeal was taken alleging two errors; the first was that evidence of other crimes was admitted at the trial and, second, that the conviction, if any, should have been of Third Degree Burglary rather than First Degree Burglary.

The particular crime charged in this case resulted from a break-in at a dwelling house, a house trailer, which was unoccupied at the time, at which the Appellant stole a shotgun and several shells, together with certain other property. During the trial, in order to prove the possession of the shotgun which was later seen by a witness, Charles Grief, the Commonwealth Attorney asked Mr. Grief if he had seen the Appellant before this trial, apparently intending to elicit the answer that he had seen the Appellant in his home when he was holding the gun on him, and Mr. Grief answered that he had seen him "at the murder trial." Objection was made to this reference and the trial court admonished the prosecutor, out of the hearing of the jury, that there should be no further evidence concerning the murder.

Subsequently, in questioning the witness Grief concerning a lunch box which was left at his home, the prosecutor asked the witness if he had seen the lunch box before, apparently intending to prove that it had been found at his house, to which the witness answered that he had seen the lunch box "when they carried my wife out of the house." Objection was made to this statement and on both of these occasions a mistrial was requested but the court overruled the motion and admonished the jury not to consider the statements.

In isolation, these two statements might have been some cause for concern to this Court in considering the case. However, in view of the total evidence, if they were erroneous at all they were certainly harmless. The Supreme Court of the United States has stated:

In reviewing criminal cases, it is particularly important for appellate courts to relive the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. Frankfurter, J., concurring in Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704, 714 (1943).

We can hardly concur with the allegation of the Appellant that the prosecutor was guilty of misconduct. In the first place, the answers volunteered by the witness Grief were not responsive to the questions and the prosecutor can hardly be accused of misconduct when a witness makes unresponsive answers of a voluntary nature.

To put this entire matter in proper perspective, an examination of the bill of particulars requested by counsel for the Appellant at the trial level indicates just how careful the prosecutor was. The bill of particulars indicates that in the late afternoon or early evening of May 24, 1975, the Appellant broke into the mobile home, which burglary was the subject of this particular action, and stole a shotgun, a watch, a lunch box, automobile keys, shotgun shells and shotgun slugs. The bill of particulars then sets out that between this incident and five o'clock in the morning the Appellant stole three separate vehicles and sometime between 5:40 a.m. and 5:45 a.m. on May 25, 1977, the witness, Charles Grief, was awakened by hearing voices from the kitchen of his home. He heard his wife scream and simultaneously heard a shot. He picked up a pistol and confronted the Appellant, who then fled from the house, Mr. Grief finding his wife's dead body on the floor of the kitchen where a shotgun had blown off a part of her forearm and left a hole in her chest of such size that the coroner could remove the shotgun wadding by placing his hand into the wound. The bill of particulars further outlines that the Appellant confessed to all these crimes, the burglary, the three car thefts and the murder; that he took the sheriff to the place where he had hidden the gun; that he had the watch on his person, and that the lunch box which was left at the home of Mr. Grief during the murder contained the car keys belonging to the various vehicles and to the persons whose home had been burglarized and further contained his parole papers. Under these circumstances, this Court considers it remarkable that Mr. Grief was able to be even partially objective in testifying in this case and considering the wealth of evidence at the command of the prosecutor, he can hardly be accused of misconduct. The confession was not read, as it contained references to the other crimes; no reference was made to the parole papers of the Appellant which were found in the lunch box. In fact, virtually none of the available evidence was presented to the jury except as it related to the burglary itself. The Appellant herein is not unlike...