Rigsby v. Com.
| Court | United States State Supreme Court (Kentucky) |
| Writing for the Court | PALMORE |
| Citation | 495 S.W.2d 795 |
| Parties | Vernon K. RIGSBY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Donald Edward GREEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 16 February 1973 |
Page 795
v.
COMMONWEALTH of Kentucky, Appellee.
Donald Edward GREEN, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
As Modified on Denial of Rehearing June 29, 1973.
Page 797
Howard VanAntwerp, III, Ashland, Kelley Asbury, Catlettsburg, Norris B. Vincent, James Stavros, H. Gene Baldridge, Ashland, for appellants.
Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
VANCE, Commissioner.
Appellants, Vernon K. Rigsby and Donald Edward Green, were jointly tried for (1) the murder of Paul Nichols, (2) the armed robbery of Leslie Lyons and Phillip Davidson and (3) the rapes of Paula Bush, age 17 and Donna Oxley, age 16.
At trial, Green testified in his own behalf, while Rigsby elected not to take the stand. Appellants were convicted and both received ten-year sentences on each charge of armed robbery and twelve years on the rape charges, to be served concurrently. Rigsby was sentenced to twenty-one years' and Green ten years' imprisonment for voluntary manslaughter. The latter sentences are to be served consecutively to those for armed robbery and rape. This appeal was brought only with regard to appellants' convictions of voluntary manslaughter.
Les Lyons, Donna Oxley, Phillip Davidson and Paula Bush were parked at night in Lyons' car on a dirt road in a remote area of Boyd County, Kentucky. An automobile pulled up directly behind the Lyons car and the appellants, Rigsby and Green, accompanied by Paul Nichols, got out of the second car and approached the vehicle containing the four teenagers. The three men were armed with a shotgun and what appeared to be a pistol.
Within the next two hours, Lyons and Davidson were robbed of their wallets, their lives threatened several times, the Bush girl was raped by both Nichols and Rigsby as was Miss Oxley, who was also raped twice by Green, and Paul Nichols was shot to death.
The three men left the scene with the two girls. An argument developed between Green, Nichols and Rigsby and all three men left the car and entered a wooded area. Green was carrying a shotgun. The two girls in the car heard threats against Nichols' life followed by a shotgun blast and Nichols was shot. The girls heard some conversation with respect to what disposition should be made of Nichols' body. When Rigsby and Green returned to the car Rigsby was covered with blood and both he and Green spoke of 'what they had done.'
The girls were returned to their homes without further incident. Within a matter of hours, both appellants surrendered.
Appellants seek reversal of the voluntary manslaughter conviction on a multiplicity of grounds, alleging: (1) The trial court should have granted a continuance to enable the taking of a deposition from a chief prosecuting witness; (2) the court erred in failing to grant each defendant a separate trial, and specifically a separate trial on the charge of murder; (3) a change of venue should have been provided; (4) the court abused its discretion in refusing to strike for cause two prospective jurors, and those jurors professing a belief that voluntary intoxication should not be a factor in determining guilt; (5) the trial court erred in permitting use of the word 'revished' before the jury and evidence concerning an alleged act of oral sex by Green; (6) error in admitting into evidence a statement by the deceased, Nichols, to Les Lyons; (7) the trial court should have granted appellant Green a directed verdict of not guilty, and erred in submitting instructions on wilful murder; (8) failure to instruct on consequences of intoxication with regard to intent and state of mind; and (9) error in failing to grant a mistrial due to prejudicial statements by the prosecuting attorney in his closing argument.
We first deal with appellants' attack on the court's denial of a continuance. The claim arises from the inability of appellants to take the deposition of the witness Davidson prior to the trial date.
Page 798
There is no right to take depositions for discovery in criminal proceedings in Kentucky. Davis v. Commonwealth, Ky., 463 S.W.2d 133 (1971); Wickware v. Commonwealth, Ky., 444 S.W.2d 272 (1969). Even so, questioning of Davidson was permitted the morning of the trial. The trial court directed the appellants to demonstrate the prejudice, if any, resulting from information gained through the 'eleventh hour' deposition. It was indicated that the motion for continuance would be reconsidered in that event. No such showing was made. The trial court did not abuse its discretion in overruling the motion for continuance.
The appellants next contend that separate trials should have been...
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Parson v. Com., No. 2002-SC-0103-MR.
...rules that would have allowed Appellant to take a discovery deposition of a witness for the Commonwealth. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795, 798 (1973), overruled on other grounds by Pendleton v. Commonwealth, Ky., 685 S.W.2d 549, 552 (1985). Here, Appellant would accomplish what ......
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Parson v. Commonwealth, No. 2002-SC-0103-MR (KY 6/21/2004), No. 2002-SC-0103-MR.
...rules that would have allowed Appellant to take a discovery deposition of a witness for the Commonwealth. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795, 798 (1973), overruled on other grounds by Pendleton v. Commonwealth, Ky., 685 S.W.2d 549, 552 (1985). Here, Appellant would accomplish what ......
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Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006), No. 2003-SC-0489-MR.
...right to be tried by an impartial jury is infringed only if an unqualified juror participates in the decision. Rigsby v. Commonwealth, 495 S.W.2d 795 (Ky. 1973); Randolph v. Commonwealth, 716 S.W.2d 253 (Ky. 1986); Sanborn v. Commonwealth, 754 S.W.3d 534 (Ky. 1988). As long as the jury that......
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Morgan v. Com., No. 2003-SC-0489-MR.
...right to be tried by an impartial jury is infringed only if an unqualified juror participates in the decision. Rigsby v. Commonwealth, 495 S.W.2d 795 (Ky.1973); Randolph v. Commonwealth, 716 S.W.2d 253 (Ky. 1986); Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988). As long as the jury that a......
-
Parson v. Com., No. 2002-SC-0103-MR.
...rules that would have allowed Appellant to take a discovery deposition of a witness for the Commonwealth. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795, 798 (1973), overruled on other grounds by Pendleton v. Commonwealth, Ky., 685 S.W.2d 549, 552 (1985). Here, Appellant would accomplish what ......
-
Parson v. Commonwealth, No. 2002-SC-0103-MR (KY 6/21/2004), No. 2002-SC-0103-MR.
...rules that would have allowed Appellant to take a discovery deposition of a witness for the Commonwealth. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795, 798 (1973), overruled on other grounds by Pendleton v. Commonwealth, Ky., 685 S.W.2d 549, 552 (1985). Here, Appellant would accomplish what ......
-
Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006), No. 2003-SC-0489-MR.
...right to be tried by an impartial jury is infringed only if an unqualified juror participates in the decision. Rigsby v. Commonwealth, 495 S.W.2d 795 (Ky. 1973); Randolph v. Commonwealth, 716 S.W.2d 253 (Ky. 1986); Sanborn v. Commonwealth, 754 S.W.3d 534 (Ky. 1988). As long as the jury that......
-
Morgan v. Com., No. 2003-SC-0489-MR.
...right to be tried by an impartial jury is infringed only if an unqualified juror participates in the decision. Rigsby v. Commonwealth, 495 S.W.2d 795 (Ky.1973); Randolph v. Commonwealth, 716 S.W.2d 253 (Ky. 1986); Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988). As long as the jury that a......