Salisbury v. Com.

• Decision Date: 12 August 1977
• Citation: 556 S.W.2d 922
• Parties: Herbert Gene SALISBURY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 922

556 S.W.2d 922

Herbert Gene SALISBURY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Aug. 12, 1977.

Discretionary Review Denied Nov. 14, 1977.

Robert F. Stephens, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellee.

Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.

Before GANT, LESTER and PARK, JJ.

PARK, Judge.

The indictment in this case charged that the defendant-appellant, Herbert Gene Salisbury, murdered Crit Butler on October 22, 1974, by shooting him with a pistol. Following a trial of the case in the Floyd Circuit Court, a jury returned a verdict finding Salisbury guilty of voluntary manslaughter and fixing his maximum term of imprisonment at thirteen years. Salisbury appeals from the judgment entered by the circuit court on the jury verdict.

As his first ground for reversing the judgment of conviction, Salisbury argues that the trial judge erred in declining to disqualify himself from presiding over the case. In his motion to require the trial judge to vacate the bench, Salisbury's trial counsel stated:

"That the victim, Crit Butler was the son of Bessie Martin Butler, who was the daughter of Crit Martin, after who the victim was named, and Zella Martin; that Judge Hollie Conley married Minnie Martin Conley, who is blood relation to the victim, or married relation to the victim, Crit Butler, herein, and Herbert Gene Salisbury, the legal husband of Diane Rector Salisbury, and to the defendant herein."

This argument is without merit for two reasons. First, the affidavit in support of the motion to vacate fails to show the degree of relationship between the trial judge's wife and the victim, Crit Butler. In the absence of an allegation of the degree of relationship, an appellate court cannot hold that a trial judge erred in refusing to disqualify himself on the grounds of relationship. Second, the motion to vacate the bench came too late. Salisbury was represented by counsel at his arraignment on January 28, 1975, at which time he entered a plea of not guilty. The case was assigned for trial on April 28, 1975, by an order entered April 10, 1975. On April 25, 1975, Salisbury's trial counsel made a motion for a continuance. The motion to vacate the bench was not filed until April 28, 1975. There is nothing in the record to indicate that the relationship between the trial judge's wife and the decedent was unknown to Salisbury prior to April 28, 1975. The motion to vacate the bench was not seasonably made. Neace v. Commonwealth, 233 Ky. 545, 26 S.W.2d 489 (1930).

For his second argument for reversal, Salisbury asserts that the record was insufficient to sustain a verdict of guilty of voluntary manslaughter. Salisbury claims that his own voluntary intoxication was a complete defense to the prosecution and that, in any event, there was no evidence which would justify the giving of a voluntary manslaughter instruction.

Butler was shot around four o'clock in the morning following a night of drinking and card playing by Salisbury, Butler and a third person, Ed Wright. There was very little dispute in the evidence respecting the circumstances leading up to the shooting. All three men were armed. Butler had been losing at cards, and an argument arose over the division of a pot. According to Salisbury who testified on his own behalf, Butler suddenly jumped up from the table with a gun in his hand, and he shot Butler in the face in self-defense. Salisbury testified further that Wright administered the coup de grace by shooting Butler in the head as he lay writhing on the floor. According to Wright, Butler did not have a gun in his hand when he was shot, and Salisbury fired all of the shots. State Trooper Estep testified that he found Salisbury "passed out or asleep" when he arrived at the scene and that a breathalizer test administered at 10:00 a. m. registered a blood alcohol ratio of .21% by weight. Salisbury also testified that he was intoxicated at the time of the shooting.

The evidence in the case indicates that Salisbury was intoxicated at the time of the shooting. However, the evidence is not so overwhelming as to compel a finding by the jury as the trier of fact that Salisbury was intoxicated to the degree that he did not know what he was doing. Salisbury testified to the circumstances of the shooting. He claimed self-defense for the shot he fired and attempted to blame Wright for the fatal shot. Salisbury was not entitled to a directed verdict because of his voluntary intoxication.

Salisbury also claims that he could not properly be convicted of the offense of voluntary manslaughter. It is true that intoxication alone is not sufficient to reduce a homicide from murder to voluntary manslaughter. See Richards v. Commonwealth, Ky., 517 S.W.2d 237 (1974), and Elmore v. Commonwealth, Ky., 520 S.W.2d 328 (1975). However, the opinions in the Richards and Elmore cases also state that a voluntary manslaughter instruction is proper if, in addition to the evidence of intoxication, there is evidence that the shooting occurred in sudden affray or sudden heat of passion. According to Salisbury's own testimony, the argument over the card game was followed by Butler's standing up with a gun in his hand. An instruction on voluntary manslaughter was proper.

For his third grounds for reversal, Salisbury attacks the methods used by the attorney for the Commonwealth to buttress the credibility of Wright's testimony and at the same time undermine Salisbury's credibility. At various stages in the trial, the Commonwealth's attorney directed the jury's attention to the fact that Wright gave the same story to the police immediately following the shooting as he gave from the witness stand. Wright's consistency was contrasted with Salisbury's request for an attorney and his silence at the time of his arrest. In the opening statement, the Commonwealth's attorney stated:

"The defendant said he wanted to see a lawyer and that was his right, and after he said that there wasn't anybody that questioned him. And Ed Wright talked."

During the examination of State Police Detective Rose, the Commonwealth's attorney brought out the fact that Wright gave a voluntary statement after he had been arrested and advised of his constitutional rights. The Commonwealth's attorney did not go into the question of Salisbury's silence in his examination of the arresting officer, State Trooper Estep. During his cross-examination of Salisbury, the Commonwealth's attorney unsuccessfully attempted to extract from Salisbury an admission that the police had asked him what had happened. Salisbury replied: "They advised me of my rights is all."

In his closing argument, the Commonwealth's attorney returned to his theme first raised in the opening statement. With respect to the closing argument, the record reveals:

"Mr. Hammonds has made a great argument here about the fact that we took Ed Wright's statement and we didn't take Gene Salisbury's . . .

MR. HAMMOND: (Counsel for defendant) Your Honor, I made no comment about that.

THE COURT: Sustained.

MR. STUMBO: (Attorney for Commonwealth) Now, let me ask you this question. How are you going to talk to a man when he won't talk to you? The defendant never would talk to you. He waits until he gets in the courtroom to come up with his side of the story. And at the time Ed Wright gave that story to Detective Rose over there he gave him a statement similar to what he testified here in this trial.

MR. HAMMOND: (Counsel for defendant) Your Honor, there's no proof to that.

MR. STUMBO: (Counsel for plaintiff) We've got proof to that. He testified to that.

THE COURT: Overruled, Detective Rose testified to that.

MR. STUMBO: He gave it. He gave us a statement similar to what he testified to and he gave it the day of the shooting. The day after the shooting he gave a statement on the day of the shooting. I'll correct that. He gave it to Detective Rose and he was advised of his rights too like Salisbury was. But, he didn't say, 'I want a lawyer.' He gave it to us. And at that time there was no promise give to him of immunity. At that time there was no promise of immunity to him. Now, all up until this time, at the time of the examining trial, Ed Wright has testified essentially the same story." (emphasis added)

The methods used by the Commonwealth's attorney to impeach Salisbury's credibility were objectionable. When a criminal defendant has received Miranda warnings following arrest, his subsequent silence cannot be used to impeach his testimony at trial. Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976); Cessna v. Commonwealth, Ky., 465 S.W.2d 283 (1971); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The difficulty in this case arises from the fact that Salisbury's trial counsel did not make any objection to the Commonwealth's use of the defendant's silence following his arrest. Under very similar circumstances, this state's highest court has held that the Commonwealth's argument was not subject to appellate review in the absence of an objection at the trial level. Minor v. Commonwealth, Ky., 478 S.W.2d 716 (1971). However, this court is also aware that federal courts do not consider themselves similarly limited in habeas corpus proceedings by a failure to object at the trial level. The very conviction affirmed in the Minor case was set aside by the United States Court of Appeals in Minor v. Black, 527 F.2d 1 (6th Cir. 1975). This court also takes note of the recent decisions of the Supreme Court which indicate that a failure to object at the trial level may bar review of an error by the federal courts. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

Salisbury's appellate counsel asserts that the conviction may be set aside under the "palpable error" rule without regard to the...