Rolli v. Com., 84-CA-432-MR
| Decision Date | 02 November 1984 |
| Docket Number | No. 84-CA-432-MR,84-CA-432-MR |
| Parties | Phillip ROLLI, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
James A. Harris, Jr., Osborne & Harris, Paducah, for appellant.
David L. Armstrong, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
Before HOWARD, LESTER and WHITE, JJ.
This is an appeal from a judgment of the Lyon Circuit Court which upheld a jury verdict convicting appellant of theft by deception. Appellant claims that a new trial is warranted, alleging that the prosecution suppressed exculpatory evidence, and failed to comply with RCr 7.24 and RCr 7.26.
On April 1, 1983, the Lyon County Grand Jury returned an indictment charging Phillip Rolli with arson in the second degree, theft by deception, theft by failure to make the required disposition, and bigamy. The bigamy charge was ordered severed for trial, and the charge alleging theft by failure to make required disposition was dismissed upon Rolli's motion for directed verdict at the close of the Commonwealth's case in chief. The jury returned a not guilty verdict on the arson charge and sentenced appellant to one year imprisonment on the remaining charge.
The testimony at trial revealed that Rolli was the manager of Daytona Land Campground in 1981, when a fire occurred there which destroyed a clubhouse on the premises. Ann Sutton, a witness for the Commonwealth, testified that she was the former wife of the appellant, and that she had worked with him at the campground. At trial, Sutton testified that she was present at a meeting between Rolli and the owners of the corporation where it was proposed and agreed to acquire new insurance on the clubhouse and then burn the building. She further stated that she assisted Rolli in drawing up an inventory of items destroyed in the fire which she claims were not, in fact, destroyed.
The grand jury transcript shows that Sutton had previously testified under oath that she had no knowledge of suspicious circumstances concerning the fire until six months after the clubhouse burned and that the owner had no knowledge of a plan to deliberately burn the premises. She acknowledged during trial that she had committed perjury before the grand jury and stated that she had told the Commonwealth of her changed testimony about two months prior to trial.
On the morning of the third day of trial, in an in-chambers hearing, it was revealed that Sutton, in cooperation with the Commonwealth attorney and the police, had placed telephone calls to one of the company's owners in Chicago. These conversations were taped by the Commonwealth, and allegedly were part of an effort to entice the owner, a Mr. Malley, into making incriminating statements.
At this hearing, it was also disclosed that Malley had sent an affidavit to the Commonwealth attorney, prior to trial, which stated that Sutton had attempted to extort $2,500 from Malley during the above-mentioned phone conversations.
Upon learning of all of this activity, appellant's counsel moved the court to either strike the testimony of Ann Sutton, dismiss the prosecution, grant a mistrial, or grant a continuance. These motions were based on appellant's claim that the Commonwealth had violated a discovery order by failing to inform appellant of Sutton's grand jury perjury, of the taped phone calls, or of the affidavit from Malley. Appellant's counsel argued then, and argues on appeal, that the above actions constituted deliberate misconduct and suppression of exculpatory evidence in violation of due process.
The Commonwealth's attorney, in response, maintained that the suppressed evidence was not exculpatory and did not prejudice the appellant. The trial court, after listening to the tapes and after viewing the affidavit, denied all of defendant's/appellant's motions. Having attempted to set out rather complicated facts, we can now turn to a...
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