Sizemore v. Com., 90-SC-599-MR
| Decision Date | 19 November 1992 |
| Docket Number | No. 90-SC-599-MR,90-SC-599-MR |
| Citation | 844 S.W.2d 397 |
| Parties | Donald SIZEMORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Anna H. Isaacs, Appellate Public Advocate, Sadieville, for appellant.
Chris Gorman, Atty. Gen., Todd D. Ferguson, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.
This appeal is from a judgment based on a jury verdict which convicted Sizemore of wanton murder and sentenced him to 50 years in prison for the murder of his brother.
The questions presented are whether the defendant was denied a fair trial by the refusal of the trial judge to instruct the jury on the defense of justification; whether it was reversible error for the trial judge to exclude certain alleged competent evidence and to admit alleged incompetent evidence and whether the prosecutor misstated the law of homicide to the jury during closing argument.
The evidence indicates that Donald Sizemore and his brother Gene were planting potatoes in his brother's garden with several relatives and friends. Everyone had been drinking. The evidence shows that the victim complained about the defendant's failure to cover the potatoes sufficiently and subsequently the victim attacked his brother, knocked him down, sat on him and hit him several times. Donald said he would kill his brother. Donald got up and said that he needed to go to his house for some cigarettes although there was some evidence that he had a pack in his pocket. The victim told the others to go inside his house. The victim went to his home and obtained his 30/30 rifle. He strapped on a holster containing a .22 pistol and returned to the outside with the rifle being left near the door.
The defendant testified that he shot a .22 pistol out of Gene's hand and that Gene tried to pick up his gun with the same hand but could not and then he tried to pick it up with the other hand. Donald testified that he turned his head and shot several times at his brother. One of the bullets struck Gene and he died as a result of the wound. Seven shell casings were found around the front door of Donald's home. Upon conviction, this appeal followed.
The trial court gave separate instructions on intentional murder, wanton murder, manslaughter in the first degree, and manslaughter in the second degree. It gave a self-defense instruction in connection with intentional murder and its lesser included offenses. The trial judge correctly refused to give a separate instruction regarding self-defense to wanton murder. The defendant was convicted of wanton murder to which the self-defense instruction does not apply as clearly stated in Shannon v. Commonwealth, Ky., 767 S.W.2d 548 (1989).
Donald argues that the trial court committed reversible error when it refused to allow the testimony of Bev Sizemore concerning statements made by Will Sizemore on the grounds of hearsay. Will Sizemore was not present at the time of the shooting and the only knowledge he had was that a pistol was lying on the ground near the victim's body. The substance of the statement came to the attention of the jury from other sources and any possible error from its exclusion was nonprejudicial. It was not reversible error for the trial judge to refuse to allow the testimony of Bev Sizemore.
Donald also claims that the trial judge erred in allowing the testimony of Deputy Davenport concerning the defendant's statement that Gene had whipped him and that he was tired of it and so he settled it himself. Under the circumstances of this case, the testimony of the deputy was not prejudicial or reversible error.
Prior to the opening statements on the day of trial, the prosecution furnished an unsigned statement to the trial judge and the defendant in which Donald admitted shooting Gene. The substance of the statement was contained in the report of the Sheriff which had been previously furnished to the defendant. Defense counsel said that there was no objection to the testimony by the deputy, but she did object to the introduction of the unsigned statement which was not introduced into evidence.
At trial, the deputy testified that Donald admitted shooting the victim. The deputy, using his notes to refresh his recollection, testified that the defendant had said that the victim "had whipped him twice that day and he got tired of him whipping him and he settled it himself." The trial judge overruled Donald's objection to the details of the deputy's testimony which were not in the written statement. The deputy then testified concerning the defendant's statement, including that Gene had beaten him and that he had shot Gene five or six times. There was no objection. Donald's counsel did cross-examine the deputy concerning his memory of the events and the accuracy of his written report.
The substance of the complained of testimony by the deputy was not significantly different from the report of the Sheriff nor from the other testimony of the deputy. The Sheriff's report contained Donald's statement that he had shot the victim. It was uncontested that Donald had been beaten by the victim. Donald's counsel cross-examined the deputy as to why the statement was not in the deputy's notes. No error nor prejudice was present as a result of Deputy Davenport's testimony.
Finally, Donald contends that it was reversible error for the trial judge to deny the defendant's motion for a mistrial following an alleged misstatement of the law of homicide in respect to wanton murder by the prosecutor during the closing argument. This allegation of error has not been properly preserved for appellate review. RCr 9.22. In order to preserve error for appeal with regard to a claimed improper argument, it is necessary to make a contemporaneous objection to the alleged improper remark. McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977). Here the defendant moved for a mistrial based on the comment of the prosecutor only after the jury had begun its deliberations. The alleged error does not rise to the level of a manifest injustice required by RCr 10.26.
In any event, the testimony of the defendant was that he shot a pistol out of the hand of the victim and that while the victim was trying to pick the pistol up with his other hand, he turned his head and fired several times in the direction of the victim. It was not improper for the prosecution to argue for a conviction of wanton murder under the circumstances.
The judgment of conviction is affirmed.
COMBS and LEIBSON, JJ., dissent by filing separate dissenting opinions.
Respectfully, I dissent.
With respect to both intentional murder and wanton murder, the defendant was entitled to a correct instruction on the statutory defense of justification, and the omission of such an instruction constituted prejudicial error, even palpable error resulting in manifest injustice.
First, adequate instruction on justification was mandated by the state of the evidence, from which the jury might have found that the defendant had acted from a perceived need to protect himself. Excerpts from the defendant's testimony convey the gist, and the plausibility, of his justification defense:
Well, we was covering tators and I seen he was trying to start a racket. He told me, "You ain't covering them right."
. . . . .
Well, I just walked over and throwed my hoe down. I know he was trying to start a racket. And I just walked off and went over to them other people's house and sat there.
. . . . .
Well, I stayed over there and Gene come after me.
. . . . .
Yeah, twice. ... [W]hen I wouldn't go, he sent Gary Wayne over there and told them they was some fellow over at my house wanting to see me ... Well, I went back down the road and he motioned for me, when I got back down there in front of his house, he said, "Come back over here a minute." And I thought he was aiming to apologize, you know.
. . . . .
Yeah, and when I got back over there, he come at me and knocked me down and started beating me.
. . . . .
Well, he finally let me up.
. . . . .
I reached for my cigarettes and I never had none. I might have had a pack, but I never had no cigarettes. I said, "I am going over to the house and get me some cigarettes."
. . . . .
I said, "I am going to kill you." He said "You son of a bitch, I will kill you before you get over there to the house." And I walked as fast as I could walk, until I got to the fence there and then I broke into a run and I never even took time to shut my gate and went in the house. And I went plum back in my bedroom and got my gun out of the closet and just brought it there and set it in the corner.
. . . . .
Well, he said he wanted to kill me.
. . . . .
Why, yes, I was afraid of him.
. . . . .
But I just seen him coming down through there with a gun in his hand.
. . . . .
Well, he come down through there and I seen he was aiming to get behind that apple tree, and he was aiming to fall in on my house with that gun.
. . . . .
He shot--he shot in the trailer I had, and he has shot in this house I've got now.
. . . . .
Well, he was aiming to get behind that and start shooting at me, and I shot the gun right out of his hand.
. . . . .
And he bent over and tried to get it with the same hand and it flipped away from him. I waited, and he reached and got it 1 with the other hand, and I didn't want to shoot him (and I love my brother as good as anybody loves their brothers) and he picked it up 2 and I just turned my head and I just shot I don't know how many times. I just turned my head and shot some shots over through there.
(Emphasis and footnotes added.) The defendant also testified that his brother had beaten him in the past, had pulled a gun on him, and had struck him with a gun. When asked why he shot Gene, he replied, "Because he was aiming to shoot...
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