Skinner v. Com.

• Decision Date: 28 October 1993
• Docket Number: 92-SC-394-T,Nos. 92-SC-216-M,92-SC-395-TG,s. 92-SC-216-M
• Citation: 864 S.W.2d 290
• Parties: Herschel SKINNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Billy GRIFFIETH, Appellant, v. COMMONWEALTH of Kentucky, Appellee. James MADDEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 290

864 S.W.2d 290

Herschel SKINNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Billy GRIFFIETH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

James MADDEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 92-SC-216-MR, 92-SC-394-TG, 92-SC-395-TG.

Supreme Court of Kentucky.

Oct. 28, 1993.

Paul J. Neel, Jr., Appellate Public Advocate, Louisville, for appellants.

Chris Gorman, Atty. Gen., Vickie L. Wise, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.

COMBS, Justice.

Herschel Skinner, Billy Joe Griffieth and James Madden were tried jointly and convicted on various charges involving a residential burglary. Skinner was convicted of burglary in the first degree, for which he was sentenced to fifteen years; wanton endangerment in the first degree, for which he was sentenced to five years; and as a persistent felony offender in the second degree, for which his sentences were enhanced to thirty and ten years, respectively. He appeals to this Court as a matter of right. Griffieth was convicted of burglary in the second degree and sentenced to five years; Madden was convicted of burglary in the second degree by complicity and sentenced to ten years; their appeals to the Court of Appeals were transferred to be heard and considered with Skinner's appeal.

There was evidence that on July 4, 1991, the three appellants, along with one Nathan Hale, decided to burglarize the Layton residence while the Laytons were at work. Occupying a green station wagon, the four first drove to the Laytons' place of employment and ascertained that both their vehicles were there. The men then drove to the Laytons' neighborhood, where they inquired of several neighbors as to the Laytons' whereabouts and the exact location of their home. Skinner and Hale alit from the car and entered the house, where they collected various valuables which they eventually loaded into a wheelbarrow. Madden and Griffieth drove away, Griffieth later returning to the house on foot and Madden driving to a pre-arranged meeting point beyond a meadow behind the house. Hale, Skinner and Griffieth began crossing the meadow with the laden wheelbarrow.

In the meantime, suspicious neighbors had alerted the Laytons and the police. One neighbor, Owen Golden, armed himself, approached the three men, and ordered them to stop. Golden and Skinner exchanged gunfire, each firing two or three shots. The intruders fled, abandoning the wheelbarrow.

Police found Madden driving the green station wagon in the vicinity, and arrested him. Madden volunteered a statement implicating his companions. Hale, who had been recognized by Golden, was also subsequently arrested and gave a statement. As part of a plea bargain, Hale testified for the Commonwealth at trial.

A. No. 92-SC-216-MR

Skinner raises six issues on appeal: 1) whether the trial court denied him due process in not accepting or enforcing a purported plea agreement; 2) whether the trial court erred to Skinner's substantial prejudice in denying his motion for separate trial; 3) whether the trial court erred in admitting into evidence a statement of Skinner's in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); 4) whether the trial court erred in not granting Skinner's motion for mistrial based on an inconsistent jury verdict; 5) whether the trial court erred in not granting Skinner's motion for directed verdict on the charge of attempted murder; and 6) whether the trial court erred in overruling an objection to alleged prosecutorial misconduct during the sentencing phase of trial.

On the day of trial--February 10, 1992--counsel informed the court that Skinner wished to accept a plea bargain offered by the Commonwealth in October 1991, whereunder, in exchange for a plea of guilty, the Commonwealth would recommend sentences of ten years for burglary and ten years for attempted murder, and dismissal of the PFO charge. The Commonwealth countered that those terms had been part of a joint offer extended to all defendants and conditioned upon acceptance by them all. Since some defendants had rejected the offer, the Commonwealth considered it withdrawn. Moreover, only a few days before trial, the Commonwealth had reached a separate agreement with defendant Hale, indicating that the prior offer was no longer open. The trial court concluded that there was no bargain; it expressed a willingness to accept a plea on any charge contained in the indictment, but no willingness to amend or dismiss any charge. The trial court did, we note, accept Hale's plea to a charge of second-degree burglary (amended from first-degree).

According to RCr 8.08, the court "may refuse to accept a plea of guilty." The discretion of the trial court exists whether the proposed guilty plea is offered with or without consideration in the form of a plea agreement. In view of that discretion, we are unable to conclude that Skinner could have reasonably relied on the purported agreement to the point of neglecting his defense in the event of rejection. Furthermore, the trial court was justified in believing that the offer was conditioned upon unanimous acceptance by all defendants, some of whom had consistently rejected the offer. We are not persuaded by Skinner's citations to Workman v. Commonwealth, Ky., 580 S.W.2d 206 (1979) and Colbert v. Commonwealth, Ky., 306 S.W.2d 825 (1957) (both of which rulings with respect to polygraph evidence were overruled in Morton v. Commonwealth, Ky., 817 S.W.2d 218 (1991)). In Workman, the Commonwealth had agreed to dismiss the indictment if Workman submitted to and passed a polygraph examination administered by the Kentucky State Police. Workman apparently took and passed three examinations, at least one of which was requested by the Commonwealth's Attorney and conducted by the State Police. Workman moved the trial court to enforce the bargain and dismiss the indictment, providing affidavits and test results. The Commonwealth made no response, yet the court denied the motion without explanation. On appeal, it was observed that the record "disclosed no rational basis which would relieve the attorney for the Commonwealth from the performance of his bargain or justify the refusal of the trial judge to grant the motion to dismiss." Id., 580 S.W.2d at 207. Colbert, supra, held polygraph results inadmissible over objection, absent the defendant's stipulation. In the present case, there appears ample rational basis both to question the existence of an agreement, and to justify the trial court's refusal to accept a guilty plea conditioned on dismissal of the PFO indictment (which dismissal is itself subject to the court's discretionary approval--RCr 9.64). We perceive no abuse of discretion.

Skinner's second argument is that the trial court abused its discretion in overruling his motion for a separate trial. He maintains that: a) facing the most serious charges and the most severe penalties, he was prejudiced by evidence of his co-defendants' misdeeds; b) Griffieth and Madden, who did not testify, might have in a separate trial given testimony favorable to Skinner; c) before Hale's decision to plead and testify, the Commonwealth had intended to use his and Madden's confessions (with references to Skinner redacted), the "existence" of which confessions required a separate trial.

RCr 9.16 requires the trial court to grant severance if it appears that a defendant will be prejudiced by a joint trial. a) A generalized concern for the taint of co-defendants' relevant misdeeds, if sufficient to require severance, would essentially prohibit joint trials; b) the assertion that Griffieth and Madden "might have" given testimony favorable to Skinner in a separate trial is purest speculation; c) the statements of Hale and Madden, had they been used at all, would have been admissible in a joint trial if properly redacted. Skinner does not demonstrate either that prejudice was apparent to the trial court, or that the court abused its discretion in denying his motion for severance. See Humphrey v. Commonwealth, Ky., 836 S.W.2d 865 (1992); Commonwealth v. Rogers, Ky., 698 S.W.2d 839 (1985); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The case of Lowe v. Commonwealth, Ky., 487 S.W.2d 935 (1972), cited by the appellant, is readily distinguishable. There, reversible error was found in the admission into evidence of the unredacted statement of a non-testifying co-defendant saying that Lowe was "in on" the crime.

Skinner's third contention is that the trial court erroneously overruled his motion to suppress testimony by police officers concerning incriminating statements allegedly made by Skinner after he had invoked his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the suppression hearing, one officer testified that he ceased questioning Skinner upon invocation of the right to an attorney, but that shortly thereafter Skinner initiated further conversation about the burglary, and volunteered statements, not in response to questioning.

A second officer, who was assigned to help transport Skinner about a month later, testified that, although informed of his rights and reminded that his attorney had advised him not to talk to police, Skinner nevertheless initiated conversation, made self-incriminating statements, and attempted to strike a bargain. At the conclusion of the suppression hearing, the trial court ruled that the statements were voluntarily given and not made in response to police questioning, and overruled the motion to suppress.

Once he has invoked his right to consult with counsel before further interrogation, an accused

is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police. [Emphasis added.]

Edwards v. Arizona, 451 U.S. 477,...