Thomas v. Com.

• Decision Date: 02 June 1978
• Citation: 574 S.W.2d 903
• Parties: Charles Edward THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee (two cases).
• Court: Kentucky Court of Appeals

Page 903

574 S.W.2d 903

Charles Edward THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee (two cases).

Court of Appeals of Kentucky.

June 2, 1978.

Discretionary Review Denied Jan. 9, 1979.

Jack Emory Farley, Public Defender, Commonwealth of Kentucky, Kevin Michael McNally, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Rodney V. Tapp, Asst. Atty. Gen., Frankfort, for appellee.

Before MARTIN, C. J., and HAYES and WINTERSHEIMER, JJ.

HAYES, Judge.

Appellant, Charles Edward Thomas, appeals from his conviction in the Madison Circuit Court of terroristic threatening and from an order of that court overruling his motion for a new trial based on newly discovered evidence.

Appellant was living in Richmond, Kentucky, when his estranged wife, Gladys Thomas, returned from Chicago, Illinois, on June 26, 1976, in order to attempt a reconciliation of their marriage.

On July 15, 1976, Mrs. Thomas swore out a complaint against appellant alleging that on the previous day he threatened to kill her. Appellant was convicted in the Richmond Police Court of terroristic threatening in violation of KRS 508.080 and was sentenced to twelve (12) months in the county jail on September 21, 1976.

Appellant appealed this conviction and a trial De novo was held in the Madison Circuit Court on June 28, 1977.

The case for the Commonwealth was based solely on the testimony of Gladys Thomas. Mrs. Thomas on direct examination stated that on the Friday before she went to swear out the warrant that she was in her front yard cutting weeds with a butcher knife when appellant came out of the house, hit her across the back with his hand, laughed and ran into a barber shop next door. Appellant then came back laughing and hit her across the back with a belt and then ran into a liquor store about three doors down from the house. Appellant continued to aggravate Mrs. Thomas until she asked him to go and get her a coke.

Mrs. Thomas then testified thusly:

. . . So, we went about an hour, an hour and a half after my mom left and he came in and said, "I told you to get ready to go," and I said, "I'm not going," and he grabbed me by the hair of the head and threw me against the refrigerator and said, "you are going or I will kill you and prove self-defense. This is one time everything is on my side. So, just get dressed and let's go somewhere and show everybody what a happy family we are." . . .

Next, Mrs. Thomas gave testimony concerning the circumstances surrounding the threat which is the basis for the charge against appellant:

. . . So, on Wednesday, he came in and he said, "I will come home. I'm coming home." I said, "you can't. You absolutely cannot. I went and applied for welfare," and he said, "I have to tell the man, Mr. Clark, that I'm here or I'll be in trouble." One thing led to another and he jumped up in the middle of the floor and said, "you and Brenda have got me against the wall. You're going to get me in trouble. I will cut both your heads off before I go back." Those are almost the exact words. And I looked around and the little girl was standing right in the screen door . . .

On cross-examination, Mrs. Thomas testified that this threat was made in the late afternoon and that on the next morning, on July 15, 1976, she went and got a warrant.

Appellant's evidence consisted of the testimony of five (5) witnesses. Two witnesses, Paul Rucker and Cecil Ballard, testified about the backslapping incident which appeared to them to be just horseplay. Neither witness knew on which date this incident took place.

Dewey Allen and Linda Ross both testified that appellant had supper at the Ross home on the evening of July 14, 1976.

Mrs. Ross testified that appellant arrived at her home between 6:00 to 6:30 p. m. that evening and left between 9:00 to 9:30 p. m. Dewey Allen testified that on July 14, 1976, between 4:00 and 5:00 p. m., he met appellant at Bluegrass Liquors and that he and appellant went to the home of Linda Ross for supper. Allen and appellant left Mrs. Ross's home about 9:00 p. m. and went back to Bluegrass Liquors and stayed there together until 10:30 or 11:00 p. m. Another witness, Carol Richards, substantiated the testimony of Dewey Allen and Linda Ross.

Mrs. Thomas also gave further testimony to the effect that the threat was made before 4:00 p. m.

A verdict of guilty was returned by the jury, which fixed appellant's punishment at imprisonment for six (6) months.

Subsequently, appellant filed a pro se motion for a new trial on the grounds of newly discovered evidence which consisted of three (3) "unsworn affidavits". Two (2) of these affidavits were given by Paul Rucker and Cecil Ballard, who were witnesses at the previous trial. These affidavits merely indicated that the backslapping incident occurred on or about July 9, 1976, and not on July 14, 1976.

A third affidavit was given by Irene McWhorter, Mrs. Thomas's mother, which merely again placed the time of the backslapping incident to have occurred around 2:30 p. m. on July 9, 1976.

The trial court overruled appellant's pro se motion on September 22, 1977, thusly:

. . . The defendant having filed, pro se, a Motion Seeking a New Trial Based Upon Newly Discovered Evidence, said evidence being based principally upon the unsworn statements of Paul Rucker and Cecil Ballard, each of whom testified on defendant's behalf on the trial of this matter, and further based upon the unsworn statement of Irene McWhorter, which specifically states that she has no knowledge of the events and acts that resulted in defendant's conviction, and the Court being sufficiently advised, orders that said motion be and the same hereby is OVERRULED. . . .

Appellant in his direct appeal makes three (3) allegations of error: First, the evidence introduced at trial is insufficient to support his conviction. Second, that appellant's conviction has been based solely on highly inflammatory and irrelevant testimony, thus denying him a fair trial. Third, appellant has been denied due process of law in violation of the Kentucky and United States Constitutions because KRS 508.080(1)(a) is unconstitutionally vague and overbroad.

Appellant's first contention that it was clearly unreasonable for the jury to find the defendant guilty is clearly unfounded. In the case at bar, the jury, acting as the trier of fact, believed Mrs. Thomas's story. The additional witnesses added little if anything to the case for the defense. We cannot say that their verdict was not based on substantial evidence.

This court feels that the evidence presented by the Commonwealth established the offense of terroristic threatening and that it was proper for the trial court to submit the case to the jury. Smith v. Commonwealth, Ky., 263 S.W.2d 929 (1954).

Second, appellant argues that he was substantially prejudiced by certain irrelevant and highly inflammatory portions of Mrs. Thomas's testimony.

Appellant cites several examples. When asked why she came back from Chicago, Mrs. Thomas replied, "I thought that anything would be better than staying here and putting up with him and He did touch my child in a sexual way and he even tried to . . .."

Appellant's trial counsel objected to this statement immediately and the trial court properly admonished the jury.

When asked if she had testified about the alleged threat at some other hearing, Mrs. Thomas replied that she gave testimony at appellant's parole revocation hearing. Whereupon appellant's trial counsel objected and the jury was once again properly admonished by the trial court.

Mrs. Thomas also gave testimony which stated that while she lived in Chicago, appellant lived with another woman and that this woman was pregnant with his child. Further that this same woman had taken a warrant out against him and finally that appellant's threat caused Mrs. Thomas's daughter so much distress that, "she stayed up all night, having nightmares about him cutting my throat and drinking the blood . . .." These statements made by Mrs. Thomas were never objected to by appellant's trial counsel.

Appellant argues and cites several cases including Acres v. Commonwealth, Ky., 259 S.W.2d 38 (1953), for the authority that testimony on collateral matters which is introduced solely for the purpose of smearing the character of the defendant or for the purpose of showing other offenses constitutes reversible error.

This is certainly true; but the conviction in Acres v. Commonwealth, supra was reversed because the trial court let the prejudicial testimony in and failed to admonish the jury to disregard it.

In this case, the trial court admonished the jury to disregard every statement made by Mrs. Thomas that appellant's trial counsel objected to. The trial counsel did not ask for a mistrial. As to those statements which were not objected to, we cannot consider them because they have not been preserved for appellate review.

It almost seems ironic for appellant to raise a cry against this prejudicial testimony on appeal when appellant's own trial counsel stated in his closing argument that the appellant, "is not on trial for being on parole."

In any case, appellant has failed to show that any of these alleged inflammatory statements were so prejudicial as to constitute "palpable error" so as to deny appellant's right to a fair trial. Salisbury v. Commonwealth, Ky.App., 556 S.W.2d 922 (1977).

Third, appellant attacks his conviction under KRS 508.080(1)(a) by alleging that this statute is unconstitutionally vague and overbroad. Appellant states that this defect can be cured by narrowing the application of this statute by this court on appellate review.

KRS 508.080 provides thusly:

. . . (1) A person is guilty of terroristic threatening when:

(a) He threatens to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person; or

(b) He intentionally makes false...