Ragland v. Com.

• Decision Date: 17 November 1967
• Citation: 421 S.W.2d 79
• Parties: Kirby RAGLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 79

421 S.W.2d 79

Kirby RAGLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 17, 1967.

Lewis A. White, Mt. Sterling, for appellant.

Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.

CLAY, Commissioner.

Appellant was found guilty of murder and sentenced to life imprisonment. He asserts four reversible errors were committed at the trial.

It is first contended the trial court improperly excused forthwith those members of the jury panel who acknowledged they had conscientious scruples against the imposition of the death penalty. It is argued that while these jurors opposed the death penalty general, further examination may have demonstrated they had no such reservations in this particular case.

RCr 9.36(1) provides in part:

'When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict on the evidence, he shall be excused as disqualified to serve'.

We have held that unqualified opposition to capital punishment is a valid ground for challenge for cause in a case where such punishment is within the scope of the permitted penalty. Carson v. Commonwealth, Ky., 382 S.W.2d 85. Such a commitment by a prospective juror is a clear admission of prejudice and further examining him could serve no useful purpose. The source or strength of his conviction is immaterial. He has denied his impartiality, and the state as well as the defendant is entitled to an impartial trial. See 50 C.J.S. Juries § 275 e., page 1052; 31 Am.Jur., Jury, section 186 (page 160); United States v. Puff, 211 F.2d 171, 48 A.L.R.2d 540 (C.A.2). The trial court properly excused the challenged jurors without permitting further examination of the depth of their disclosed prejudice.

It is next contended the Commonwealth, failed to prove that appellant killed the deceased. (Appellant had offered to stipulate this fact but the Commonwealth declined.) The uncontradicted evidence (including appellant's own testimony) was that appellant, in broad daylight on a public street, at close range, shot Rodney Thompson four times with a pistol. Thompson fell bleeding, was taken to a hospital, and died within two hours. The proof is overwhelming that appellant shot Thompson for the purpose of killing him. The circumstantial evidence would permit to other conclusions than that the shots killed Thompson. This ground for a directed verdict has no merit.

Under RCr 9.48 the trial court separated the witnesses by excluding them from the courtroom (except when testifying). At the conclusions of appellant's evidence, the court permitted two attorneys who had testified for the Commonwealth to testify further in rebuttal. They had been in the courtroom when appellant's evidence was heard. The basis of the court's ruling (after objection) was that 'the rule' was not applicable to attorneys because they were officers of the court.

While Civil Rule 43.09 exempts 'officers of (the) court' from the separation requirement, RCr 9.48 does not include such an exemption. However, it has long been recognized that the separation of witnesses is a matter resting within the sound discretion of the trial court. See Moore v....