Moore v. Com., 80-SC-560-MR
| Decision Date | 15 June 1982 |
| Docket Number | No. 80-SC-560-MR,80-SC-560-MR |
| Citation | 634 S.W.2d 426 |
| Parties | Brian Keith MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Brian Keith Moore was convicted of murder, kidnapping, and robbery in the first degree. Under the judgment of the Jefferson Circuit Court, he was sentenced to death for murder, life imprisonment for kidnapping, and twenty years imprisonment for robbery. This appeal is before us as a matter of right.
On August 15, 1979, the Jefferson County Grand Jury returned a three count indictment against Moore. The first count alleged that on August 10, 1979, the defendant had committed the capital offense of kidnapping by "unlawfully detaining Virgil Harris with the intent to accomplish or advance the commission of a felony." KRS 509.040. Count two alleged that on August 10, 1979, Moore, while armed with a pistol, committed robbery in the first degree by threatening the use of physical force on Virgil Harris in the course of committing a theft. KRS 515.020. The final count charged that on the same day, Moore committed murder by intentionally causing the death of Virgil Harris by shooting him with a pistol. KRS 507.020.
Following his plea of not guilty to all three counts, Moore filed numerous pre-trial discovery and suppression motions. The trial court's rulings on certain of these motions will be discussed in the appropriate parts of this opinion.
The proof introduced by the Commonwealth showed that the decedent, Virgil Harris, was a 77 year-old man who owned and operated an ice cream shop located on Seventh Street in Louisville. He had a regular daily routine which consisted of arriving at the store at 8:30 a. m., going to the bank at about 10:00 a. m., and then to the A&P grocery store. On August 10, 1979, Harris left his store at 11:20 a. m., driving his 1978 maroon Buick. He went to the Liberty National Bank in Shively where he made a deposit and picked up several rolls of coins. After leaving the bank, he purchased bananas at the A&P.
Shortly before noon, an eyewitness in the A&P parking lot saw a young man answering the description of appellant standing near the door of a maroon car, pointing a gun at the driver, an "older" man. Later in the day, appellant was seen driving a maroon Buick. He told a witness that the car belonged to his uncle and that he (appellant) was going to take over the payments.
Lynn Thompson and Kenny Blair, friends of appellant, lived together in an apartment on Shady Villa Drive in Louisville. Appellant spent the night with them on August 8 and 9. Thompson testified that on the afternoon of August 10, Moore came to the apartment carrying a paper sack which contained a money bag, a gun, a clip, several rolls of coins, and some bananas. Appellant stated to her that he had just robbed a "place" of $250.00. He later told Blair that he had followed a man to his car and demanded his money. The man gave appellant the money and then pulled a mask from appellant's face. Appellant told Blair that he wasn't going to let the man live and testify against him, and that he drove the man to the Jefferson Hill Road where he shot and killed him.
Following this conversation with appellant, Blair, who was seeking probation for a recent felony conviction, called his attorney, Murray Turner, and informed him that he had some information about a murder. Turner contacted Judy Feldkamp, an assistant Commonwealth's attorney, and sought a "deal" whereby the Commonwealth would recommend probation for Blair in return for his testifying about the murder.
The police discovered Virgil Harris' car in the parking lot at the Shady Villa Apartment, and found that appellant had the car keys in his possession. He also was wearing Harris' wristwatch. Blair took the police to the scene of the murder, claiming that appellant had taken him there. A battery of scientific tests introduced by the Commonwealth showed that appellant had recently fired a gun, that he had soil on his trousers which was similar to that at the crime scene, and that appellant's fingerprints were in Harris' car and on the coin wrappers. Following appellant's arrest, he made a verbal confession. Evidence of the confession was admitted by the trial judge following a suppression hearing.
Appellant denied that he was guilty and claimed that Kenny Blair was the culprit. There was evidence that appellant was a regular drug user, and he claimed that he was "high" on the day of the crimes. Appellant denied having fired a gun and stated that he had lent the gun to Blair. He admitted driving Harris' car, but stated that Blair had stolen it and that he had borrowed it from Blair. He denied having made the confession to the police. A witness for appellant, James Lofton, who was a prisoner in the Jefferson County Jail, testified that Blair had told him (while both were incarcerated) that he himself had robbed and killed Harris and that he was setting appellant up for Harris' murder.
Appellant has raised thirty alleged errors with respect to both the guilt and the sentencing phases of the trial. While we have examined all points raised, we will discuss only those which have any substance. We have found those not discussed to be without merit.
On the first day of the trial, appellant filed a hand-printed "Notice-Motion-Order," the pertinent part of which is as follows:
"Comes the Defendant, by Brian K. Moore pro se, and respectfully moves the Court to grant a hearing under the provisions of Wake v. Barker, 514 S.W.2d 692 ((Ky.) 1974); and Farretta (sic) v. California (422 U.S. 806), 95 S.Ct. 2525 (45 L.Ed.2d 562) (1975), to determine whether the defendant desires to waive counsel and proceed pro se or wishes to make a limited waiver of counsel, specifying in the latter instance the extent of services he requires for the record." 1
The document was not signed. Appellant also tendered a prepared order to "determine the extent of representation to be provided by the Public Defender." The trial court took no action on the motion.
Appellant now argues that under Faretta, supra, the constitutional right of a defendant to waive his right to assistance of counsel was violated by the failure of the trial court to grant a hearing. We do not agree.
In Faretta, the Supreme Court concluded that the protection of the Sixth Amendment includes the right of an accused to waive counsel to represent himself. In Wake v. Barker, supra, we concluded that the best procedure, upon an unequivocal request to proceed pro se, or an unequivocal request to limit the role of counsel, is for the trial court to conduct a hearing to determine whether the waiver is being made knowingly and intelligently. However, the principles of Faretta and Barker only become applicable when the request to proceed pro se or with counsel in a limited fashion is timely made and is unequivocal.
It cannot be doubted that neither requirement was met in the present case. The unsigned motion was filed on the morning of the trial, which was clearly too late for the court to call and hold a hearing. More importantly, the very wording of the motion shows that the appellant did not know if he wanted to waive counsel or to limit the role of counsel. This is not an unequivocal request within the meaning of Faretta. There being no request, no hearing was necessary.
On September 17, 1979, appellant filed a written request for twenty-three separate items of pre-trial discovery. The trial court ordered discovery "as to all items and/or information to which the defendant is entitled." In response to the trial court's order, the Commonwealth provided all information requested except in certain cases where it argues that it was not required, under Kentucky rules of criminal procedure, to provide such information. The requests denied dealt with:
(1) Written or oral statements by any witnesses implicating appellant.
(2) Local, state and FBI arrest records of all persons the Commonwealth intended to call as witnesses.
(3) All investigative reports of police and statements of witnesses.
On February 28, 1980, appellant filed another pre-trial discovery motion for a disclosure of any and all information that could be used for the possible impeachment of Commonwealth witnesses. Such request was denied by the Commonwealth. It is claimed by appellant that he was denied due process of law by the failure of the Commonwealth to provide this information.
Pre-trial discovery in Kentucky is based on the provisions of RCr 7.24 and 7.26. With respect to the three requests made on September 17, by appellant and denied by the Commonwealth, RCr 7.24 is clear and dispositive. Section (2) provides in pertinent part:
This provision does not authorize pretrial discovery or inspection of reports, memoranda, or other documents made by officers and agents of the Commonwealth in connection with the investigation or prosecution of the case, or of statements made to them by witnesses or prospective witnesses (other than the defendant).
The information at issue comes precisely within the prohibition in this section of the rule. Simply stated, the appellant is not entitled to the information sought. Robinson v. Commonwealth, Ky., 490 S.W.2d 481 (1973).
With respect to the pre-trial discovery of impeachment evidence, the rule is also clear. RCr 7.26 provides for such information to be made...
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