Minor v. Com.

• Decision Date: 03 December 1971
• Citation: 478 S.W.2d 716
• Parties: John Allen MINOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 716

478 S.W.2d 716

John Allen MINOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Dec. 3, 1971.

Rehearing Denied April 28, 1972.

Robert P. Hastings, Hardy, Logan & Hastings, Louisville, Robert R. Riggle, Jeffersontown, Ind., for appellant.

John B. Breckinridge, Atty. Gen., Douglas E. Johnson, Sp. Asst. Atty. Gen., Frankfort, for appellee.

EDWARD P. HILL, Jr., Judge.

This is a belated appeal granted by the Jefferson Circuit Court in a hearing on appellant's RCr 11.42 motion to vacate a 1969 conviction on charges of armed robbery and wilful murder. The appellant was given two life sentences. He presents two arguments in an effort to reverse his conviction. First he contends the evidence was insufficient to support the verdict of the jury; and second, he insists that the attorney for the Commonwealth made inflammatory and prejudicial argument.

While there was some confusion in the identification of the appellant and his codefendant, there was clear and positive evidence as to the identity of the appellant and as to the fact that appellant and his codefendant were equally guilty in a joint undertaking to rob the complaining witness and his companion; and that in the process of doing so, the companion was shot and killed. We think the evidence was sufficient to sustain and support the verdict.

Furthermore, it appears from the record, and is admitted by counsel for appellant, that appellant's trial counsel made no motion for a directed verdict of acquittal either at the close of the Commonwealth's case or at the close of all the evidence. The first mention of the sufficiency of the evidence to convict appears in appellant's motion and grounds for a new trial. Consequently, the trial court had no opportunity during the trial to rule on the sufficiency of the evidence to support the verdict. RCr 10.12. The claimed error of the trial court was not preserved for appellate review. It is only in cases where the judgment of conviction imposes the death penalty that this court will abrogate its well-established rule of procedure and review questions that have not been previously preserved for appellate review. Cf. Anderson v. Commonwealth, 302 Ky. 275, 194 S.W.2d 530.

In fairness to appellant's present counsel, it should be observed here that he was not the attorney representing appellant at the trial court level.

Next we turn to appellant's contention that he was prejudiced by the closing argument for the Commonwealth. We quote herewith the portion of the argument for the Commonwealth which is charged to be prejudicial:

'* * * If you are wanted for a crime you didn't commit and you knew the police were looking for you, any knew good citizen would go to the police and say, 'I was at home in bed.' * * * Now, I submit, think about that. If you were charged with an offense or if I am, or the Judge is, why, the first thing we would do would be to go to the police--'Mr. Policeman, you're all wrong. I was at home in bed and my two sisters will tell you that.' * * * And not until a year later--'I'll tell you nothing'--not quoting the evidence literally--' I'll tell you nothing. Prove it on me.' And he told them nothing on the advice of his counsel and I'm not criticizing counsel * * *. Let me call your attention to something. Why wasn't the codefendant called? The processes of this Court are open. Why wasn't Leon Wilson called and put on that witness stand?

'MR. SHOEBE: Judge, I would like to object because, of course the Commonwealth could have called him, too.

'THE COURT: That's true. Either side could have called him.

'MR. OUSLEY: I will accept that statement with some reservation. I will accept it but what will these fellows tell the Commonwealth of Kentucky? What will they tell the police? Why, they'll laugh in your face and they'll spit in your face. They'll tell the Commonwealth nothing. That's the reason the Commonwealth doesn't call them. We could have called him. Wilson, if it is true, could have said 'It's over with. It's the end.' He could have said 'He wasn't with me.' They didn't dare call him.'

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