Scruggs v. Com.
Decision Date | 11 April 1978 |
Citation | 566 S.W.2d 405 |
Parties | Thomas Lloyd SCRUGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Court | United States State Supreme Court — District of Kentucky |
Robert E. Harrison, David Goin, III, Scottsville, James S. Patrick, Nashville, Tenn., for appellant.
Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
On February 5, 1976, the Grand Jury of Allen County, Kentucky, returned an indictment against the appellant for "the offense of murder by shooting Martha Louise Scruggs with a high powered rifle." KRS 507.020(1)(a). After an eight-day trial the appellant was found guilty of murder and his punishment fixed at 20 years' imprisonment. On this appeal the appellant claims sixteen prejudicial errors.
James and Martha Scruggs had been married for twelve years and had four children, ages 12, 11, 10 and 6. They lived on a farm in the "Settle" community of Allen County, Kentucky. Their married life was not one of comfort and bliss, but rather was a bed of thorns and turmoil. They had separated on more than one occasion, once in the summer of 1975 for about three months. Each of them was finding more pleasure in the company of others, Martha with her paramour and the appellant with his girlfriend. On July 3, 1975, Martha filed a suit for divorce. However, the parties were reconciled in September, 1975, and the divorce suit was dismissed on September 22, 1975. On December 2, 1975, Martha went to her lawyer's office to reinstate her divorce suit, and on December 3, 1975, she disappeared and was not seen thereafter until her dead body was found in a cave on December 14, 1975.
Appellant's first complaint is that the trial judge, in limiting his interrogation of the chief Commonwealth witness Jerry Fann, violated his constitutional right of confrontation. Fann was called as a Commonwealth witness and his presence and participation are evident from the time of Martha's disappearance to the conclusion of the trial. It was Fann who found the victim's corpse. It was Fann who located a tree that had been split by a shot from a high-powered rifle. Fann owned and was in possession of the rifle that was proven to be the murder weapon. Fann was the victim's lover. In an attempt to impeach Fann's testimony, counsel for appellant inquired as to Fann's relationship with the victim. Specifically, counsel asked Fann whether he and the victim had ever engaged in sexual intercourse. At this point the Commonwealth objected, but before the court could rule on the subject Fann responded to the query in the affirmative. The court then sustained the objection and admonished the jury to disregard the witness' answer. From these basic facts the appellant asserts that his constitutional right to confrontation was abridged.
A cursory examination of the record shows this supposition to be without merit. Counsel for appellant conducted an exhaustive cross-examination, consuming over 35 pages in the record. Counsel effectively exposed Fann's relationship to the appellant and to the victim. In a recent opinion this court refused to recognize a Sixth Amendment violation of the right to confrontation when an eyewitness for the prosecution declined to answer a question on cross-examination that was intended to impeach his powers of observation. Kendricks v. Commonwealth, Ky., 557 S.W.2d 417 (1977). The failure of a trial court to admit into evidence one question and answer that is designed to impeach a witness will not give rise to an error of constitutional magnitude, absent unusual circumstances. Assuming arguendo that the proposed question was within the scope of cross-examination, we do not think the denial to ask such a question was prejudicial since it constituted only a minute part of the impeachment effort.
The appellant's second assignment of error also concerns the attempt by counsel to impeach the testimony of Jerry Fann. Fann had been convicted of auto theft some seventeen years prior to the trial of this case. The appellant sought to introduce evidence of this prior felony conviction, but was prohibited from doing so by the trial court. Normally this type of impeachment is proper; however, we observed in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), that the trial court may exclude evidence of prior convictions if the court deems the conviction so remote as to have no bearing on credibility. The appellant asserts that remote felony convictions are subject to exclusion only when the defendant is testifying and that the rule is not applicable to other witnesses. We recognize that the danger of prejudice may be unusually acute when the accused has taken the stand in his own behalf; nevertheless, the rule applies evenhandedly to all witnesses. Bell v. Commonwealth, Ky., 520 S.W.2d 316 (1975). Since the rule was properly applied in this case, there is no error, absent an abuse of judicial discretion. Our examination of the record shows no such abuse.
Appellant's third and fourth assignments of error are predicated upon the assertion that Marlene Shields, secretary to the victim's attorney, was allowed to testify to matters that should have been excluded under the hearsay rule. The record shows that counsel for the appellant withdrew his objection and thus this matter is not preserved for review. RCr 9.22; Bell v. Commonwealth, Ky., 473 S.W.2d 820 (1971).
For his fifth assignment of error the appellant claims that the trial court improperly allowed into evidence threats against the victim attributed to the appellant and made approximately seven months prior to the disappearance of the victim. It is the appellant's contention that this evidence was so remote as to have no probative value.
A party was given by Jerry Fann in either May or August, 1975, to which Thomas and Martha were invited and were in attendance. Martha became staggering drunk and appellant made two threats against her life. In the presence of several women, but not in the hearing of Martha, he said, " * * * well I am getting rid of her; one way or the other I am going to get rid of her." The other threat was,
We cite, with approval, 29 Am.Jur.2d, Evidence, Sec. 253, at page 305, wherein it says:
We believe this evidence to be competent and, as such, we do not believe that it was so remote as to mandate exclusion. Shumate v. Commonwealth, Ky., 433 S.W.2d 340 (1968).
Next, the appellant asserts that the trial court erred by excluding statements allegedly made by the victim on the weekend prior to her disappearance. By way of avowal we are informed that the witness, if allowed to testify, would have stated that the victim had said she would leave her husband and would take no belongings other than the clothes on her back. Also, the appellant argues that the court erroneously prohibited the introduction of the contents of a note which the victim had allegedly written. The appellant testified that on the day of Martha's disappearance he returned home from a trip to Scottsville, Kentucky, and found a note which she had written to him, which allegedly said that she had gone to Nashville, Tennessee, with friends. At the time of the trial the note was reported to have been lost; at least it was not produced at the trial.
The court ruled that evidence relating to the statements allegedly made by the victim on the weekend prior to her disappearance and evidence relating to the contents of the note were hearsay and refused to permit any testimony relating thereto to be introduced. The note, if actually there was such a note, at the most would indicate an intention to go to Nashville. Any other inference would be highly speculative. Assuming that the note did exist and that its contents did express an intention on the part of Martha to go to Nashville and further assuming that the appellant was telling the truth about the note, there is no proof that Martha did go to Nashville, only appellant's testimony that he had a telephone conversation with her in which she said she was in Nashville, thereby lifting himself by his own bootstraps.
Declarations which declare an intent to do a particular thing have been deemed admissible as an exception to the hearsay rule where they possess a high degree of trustworthiness, where they are relevant to an issue in the case, and the declarant is dead or otherwise unavailable. Todd v. Commonwealth, Ky., 511 S.W.2d 239 (1974). In the instant case the verbal statements and the contents of the written note were hearsay. To be admissible they must come within the exception to the hearsay rule. In 29 Am.Jur.2d, Evidence, Sec. 651, it is stated, and was quoted in Todd v. Commonwealth, supra:
In the instant case the person making the statements and writing the note is dead and certainly not...
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