Russell v. Com.

• Citation: 482 S.W.2d 584
• Parties: Oscar Clay RUSSELL, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 23 June 1972
• Court: United States State Supreme Court (Kentucky)

Page 584

482 S.W.2d 584

Oscar Clay RUSSELL, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 23, 1972.

Gerald E. Benzinger, Harry K. Aurandt, Covington, for appellant.

Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellee.

CATINNA, Commissioner.

Oscar Clay Russell, Jr., was tried pursuant to an indictment charging indecent or immoral practices with infants under fifteen years of age. Count One charged practices with Douglas Thompson on March 27, 1970; Count Two charged practices with Douglas Thompson on April 3, 1970; and Count Three charged practices with Lucy Thompson on March 21, 1970.

Count Two of the indictment was withdrawn by the prosecution at the conclusion of the Commonwealth's evidence. The jury found Russell guilty as charged on Counts One and Three of the indictment.

Russell's punishment was fixed at ten years in the penitentiary on Count One and ten years in the penitentiary on Count Three. Over the objection of the defense, the trial judge ordered that the two sentences be served consecutively.

Russell presents six claims of error, asserting that (1) the court erred in overruling appellant's motion for separate trials on each count set out in the indictment; (2) the court erred in overruling motion of appellant's counsel for a psychiatric examination of appellant; (3) the appellant's right to a fair trial was prejudiced by remarks made in open court by a prospective juror on voir dire; (4) the appellant's right to a fair trial was prejudiced by remarks made in open court by the Commonwealth's attorney during cross-examination of appellant; (5) the appellant was denied his constitutional right to a preliminary hearing on Count One of the indictment; and (6) the indictment was defective since it did not state as an element of the charge that appellant was seventeen years of age or over. We affirm the judgment.

Prior to and during March 1970, Russell and Edna Thompson, mother of Douglas and Lucy Thompson, together with her ten children, lived in a four-room house on 3--L Highway in Covington, Kentucky. They were not husband and wife but had lived together for more than seven years. Edna had four children by her husband Thompson, and six children had been born to Russell and Edna. Edna testified that she was pregnant and that Russell was the father of this child also.

Douglas Thompson, age 13, testified that the practices charged in Count One were committed in a bedroom of the house on ,3--L Highway in the afternoon, but before Russell went to work at 2 p.m.; that his mother was at work at the time, but the other children, except two, were at home; and that he was then directed to 'fix him something to eat.'

Russell admits that he was at the house on 3--L Highway on March 27, 1970; that at a time just before he went to work he was in the bedroom with Douglas; and that 'he made me a cup of coffee, and I went to work.' He denies that he engaged in any indecent or immoral practices with Douglas.

Lucy Thompson, age 10, testified that the practices charged in Count Three were committed in the bedroom of the house on 3--L Highway; that she was in bed with her mother and Russell; that while 'he was laying kind of on top of my mother * * * he played with me.' She testified that at the time she was living with an aunt but 'they came and picked me up for the weekend and a picnic.'

Russell testified that on March 21, 1970, Lucy was visiting her mother for the weekend; that on this night he was in bed with the mother and Lucy; that the mother had brought her in the bedroom and placed her in bed with them. He denies any indecent and immoral practices with Lucy Thompson. His explanation of the bedroom scene is as follows: 'We started making love and Lucy was in the bed, and I made her mother take her back and put her in her own bed where she was at.'

Was it error for the trial court to refuse appellant's motion for a separate trial on each count of the indictment?

RCr 6.18, RCr 9.12, and RCr 9.16 require consideration on this problem. RCr 6.18 permits the joinder of two or more offenses in the same indictment in separate counts, if the offenses are of the same or similar character. RCr 9.12 permits two or more indictments to be consolidated for trial together if the offenses could have been joined in a single indictment. RCr 9.16 requires the trial court to order separate trials of counts where it is made to appear to the court that a defendant will be prejudiced by a joint trial.

The bare fact that two or more counts are joined in a single indictment under RCr 6.18 or could be consolidated for trial under RCr 9.12 does not require or even permit a joint trial of counts under all circumstances.

This court, in Russell v. Commonwealth, Ky., 403 S.W.2d 694 (1966), said that RCr 6.18 clearly permits offenses 'to be joined and tried together.' We have now determined that this language goes beyond the true scope of RCr 6.18 which is concerned only with the composition of an indictment and not with a trial of the offenses charged.

Even though the joinder of offenses is permissible under RCr 6.18, if a defendant makes a timely motion under RCr 9.16 and shows prejudice, the court should grant separate trials. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964).

The granting or denying of a motion for separate trials under RCr 9.16 is a discretionary function of the trial court which must weigh prejudice to the defendant caused by the joinder of offenses. Since this matter is addressed to the sound discretion of the trial court, a conviction will be reversed only if the refusal of the trial court to grant the relief is a clear abuse of discretion and prejudice to the defendant is positively shown. It is incumbent upon an appellant seeking to show such abuse to make a positive showing of the prejudice which has resulted. He must show something more than the fact that a separate trial might offer a better chance of acquittal or a less severe penalty. Cf. Marcum v. Commonwealth, Ky., 390 S.W.2d 884 (1965); Brown v. Commonwealth, Ky., 458 S.W.2d 444 (1970); United States v. Levrie, 445 F.2d 429 (CA5th Cir. 1971); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964).

An important factor in determining whether a joinder of offenses for trial is prejudicial is whether the evidence of one of the offenses would be admissible in a separate trial for the other offense. If the evidence is admissible, the joinder of offenses, in most instances, will not be prejudicial. Marcum v. Commonwealth, Ky., 390 S.W.2d 884 (1965); United States v. Begun, 446 F.2d 32 (CA9th Cir. 1971).

The general and well-established rule in criminal cases in this state is that evidence which in any manner shows or tends to show that a defendant has committed another offense independent of that for which he is on trial is inadmissible. Keith v. Commonwealth, Ky., 251 S.W.2d 850 (1952).

As an exception to this general rule, we hold that in sex crimes evidence of prior acts of the same nature committed upon the same...