Wilson v. Com., s. 87-CA-969-M
| Citation | 761 S.W.2d 182 |
| Decision Date | 18 November 1988 |
| Docket Number | 87-CA-1834-MR,Nos. 87-CA-969-M,s. 87-CA-969-M |
| Parties | Allen Wayne WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee (Two Cases). |
| Court | Court of Appeals of Kentucky |
Dennis L. Mattingly, Louisville, Michael O. Hayes, Owensboro, for appellant.
Frederic J. Cowan, Atty. Gen., Elizabeth A. Myerscough, Asst. Atty. Gen., Frankfort, for appellee.
Before HOWERTON, C.J., and GUDGEL and WILHOIT, JJ.
These appeals are from a judgment of the McLean Circuit Court sentencing the appellant to ten years' imprisonment for second-degree arson, and from an order denying on procedural grounds the appellant's motions to vacate that judgment based primarily on grounds of newly discovered evidence and the ineffective assistance of trial counsel. We shall first consider the appeal from the judgment convicting and sentencing the appellant to prison.
The appellant argues that the trial court erred in allowing a prosecution witness to testify that he had heard on the streets that the appellant had set the fire, out of which the arson charge stemmed, for drug money and to pay off his creditors. This testimony, while technically objectionable as hearsay, in context was harmless, particularly in light of the witness's testimony that he personally had heard the appellant say that he had started the fire because "he needed some money to make some dope deals and because people he owed money to were hassling him for it." The witness was a very reluctant and fearful one, and it must have been obvious to the jury that his story about what he had heard on the street concerning the appellant was related to escape the sole blame for "ratting" on the appellant. Although this witness was both reluctant and fearful and was declared to be a hostile witness by the court, we cannot agree with the appellant that the record discloses him to have been incompetent to give evidence.
The witness's testimony concerning the appellant's motive for setting the fire, even though it shows evidence of other criminal conduct, was not inadmissible because of that fact. See Raeber v. Commonwealth, Ky., 558 S.W.2d 609 (1977). Furthermore, the jury was admonished by the trial court that it should consider this evidence of other criminal activity only for the purpose of establishing a motive.
The appellant also argues that the rule in Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969), was violated because prior out-of-court statements by the reluctant witness were used not only to impeach his in-court testimony, but also to augment his in-court testimony by admitting into evidence prior material statements which the witness refused or was unable to recall at trial. He also asserts that the Jett Rule was violated because he did not deny his prior statements to begin with, and further that he was not given a "chance to read or hear his prior statement" before it was introduced into evidence against him. With respect to these latter two assertions, they simply are factually incorrect. The witness did deny that he had heard the appellant say anything about the fire at David Hancock's house, and then later stated that when he walked in "they shut up." This was contrary to the prior written statement he had given to an arson investigator. He was handed...
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