Wilson v. Com.
| Decision Date | 13 May 1980 |
| Citation | 601 S.W.2d 280 |
| Parties | Shelia WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack E. Farley, Public Advocate, Kevin Michael McNally, M. Gail Robinson, Asst. Public Advocates, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
Appellant Shelia Wilson, 26 years of age, and a male friend, Robert Wayne Goff (Sandy), were jointly indicted by the Christian County Grand Jury for the offense of murder (KRS 507.020(1)(a)). The victim was Michael Lewis Wilson (Mike), husband of appellant and father of their two children. The offense was alleged to have been committed on February 3, 1978, in Christian County, Kentucky. The trial court granted a severance. A two-day trial, which commenced on March 12, 1979, resulted in the appellant's being found guilty and sentenced to 20 years' imprisonment. On March 30, 1979, an order was entered by the trial judge denying probation or conditional discharge. However, the court did enter an order permitting the appellant to appeal in forma pauperis, and the court designated the Office of Public Defender as counsel on this appeal.
On this appeal we are faced with ten alleged errors. Counsel for appellant commences his brief with the suggestion that there is no doubt but that appellant may be guilty of:
but that she is not guilty of murder. He tabulates the punishment for these offenses at up to five years' imprisonment. Although the appellant was charged with murder, the trial court instructed the jury pursuant to "liability for conduct of another." KRS 502.020 (complicity).
"Appellant has been denied due process of law by her conviction of complicity to murder because the record is devoid of evidence of guilt of that offense."
Since this challenge is made at the sufficiency of the evidence, we need to carefully consider its quality.
The appellant, Sandy and Mike had been friends for about five years while living in Gastonia, North Carolina. Mike and the appellant lived in constant marital turmoil. Sandy was more aggressive. He had murdered his wife and, during the period of time mentioned herein, was a fugitive from justice. The appellant, although being pregnant, and her children left Mike and came to Hopkinsville, Kentucky. She and the children lived in Sandy's apartment; however, the appellant was soon followed to Kentucky by her husband Mike (November 1977). The living arrangements then changed. Mike, appellant and their children lived in Sandy's apartment, and Sandy moved in with Sue Duprel and her children in Sue's trailer home. Mike's sojourn was short lived. He and Sandy fought physically as well as verbally, as did Mike and the appellant. On the fateful night the appellant, Mike and Sandy left from Sue's trailer in Sandy's pickup truck, with Shelia doing the driving and Sandy directing the route to be taken. Sandy and Mike had been engaged in their usual quarreling. After driving a short distance appellant stopped the truck. Mike and Sandy got out, but she stayed in the truck. The argument between Mike and Sandy continued. Although friends, Sandy constantly expressed fear that Mike would turn him in to the North Carolina authorities. Eventually Sandy was arrested in California on the fugitive warrant, but not until Mike was long gone. A short while after stopping the truck and Mike and Sandy getting out, Shelia heard a shot; however, when she got out of the truck to investigate, she was directed by Sandy to get back in the truck. One or two more shots were soon fired. Sandy got back in the truck and the appellant drove away, leaving Mike fatally wounded. Upon returning to Sue's trailer home, Sue, Sandy and appellant were seated at the kitchen table talking about what had happened. Sandy said that he had shot Mike three times. Shelia had Mike's wallet and identification cards, which she destroyed.
A chronological outline of the conduct of the parties clarifies the sufficiency of the evidence to withstand the attack:
Counsel for appellant argues that the evidence was wholly insufficient to justify submitting the case to the jury and of supporting the verdict of the jury. The standard by which we are guided is stated in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977), as follows: "If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal." The appellant predicates her argument on the contention that there was no intent to kill shown on behalf of the appellant. Intent is, of course, a necessary element of this offense. However, intent may be shown in many ways. The conduct of the accused both prior to and subsequent to the actual killing is admissible as evidence tending to show facts from which intent can and should be inferred. Kearns v. Commonwealth, 243 Ky. 745, 49 S.W.2d 1009 (1932). The trial judge did not err in refusing to direct a verdict of acquittal.
"Appellant was denied her right to a fair and impartial jury and due process by the trial judge's severe restriction of voir dire."
The answer to appellant's second issue is found in RCr 9.38, which provides as follows:
Appellant is chagrined in that her counsel was not permitted to actively participate in the voir dire interrogation of the members of the jury panel. We have held that the manner of conducting the voir dire is left to the trial judge and his actions will not be disturbed by this court unless he abuses his discretion in the manner in which the jury was voir dired. Woodford v. Commonwealth, Ky., 376 S.W.2d 526 (1964). The purpose of the voir dire interrogation has been expressed in many ways. However, the prime objective of the voir dire is to finally select jurors who will render a fair and impartial verdict.
On January 31, 1979, counsel for appellant filed with the trial court a list of 38 questions which he sought to have included in the voir dire examination. A week or so before the case came on for trial, the trial court denied appellant's motion and on the trial individually conducted the voir dire examination. It was a lengthy and thorough voir dire interrogation. It consisted of 44 typewritten pages of 25 members of the panel before a jury was chosen which was acceptable to all counsel. The Commonwealth used four of its preemptory challenges, and appellant's counsel used five. We do not make mention of the fact that neither of the parties used all of his preemptory challenges to justify the selection of the trial jury but to demonstrate that the trial judge extensively queried the prospective jurors in an effort to secure a panel of jurors that would consider fairly and impartially the evidence so as to provide for an impartial trial. The trial judge, with the assistance of questions submitted by counsel, conducted an intelligent and thorough voir dire examination. In Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974), we wrote:
Counsel for appellant did not make manifest any extraordinary or unusual cause that would require the trial judge to turn the voir dire examination over to counsel. From a review of the record it appears that the trial judge did not abuse his discretion in himself conducting the voir dire examination.
"The repeated introduction of hearsay testimony severely prejudiced appellant and denied her right to confront the witnesses against her in violation of the 6th and 14th amendments to the United States Constitution and Section 11 of the Kentucky Constitution."
A review of the transcript of testimony does reveal that from time to time hearsay testimony was permitted to be introduced; however, we fail to find where any objection was made. We have consistently held that for an issue to be considered on appeal, it must have been raised at the trial level so that the trial judge can have an opportunity to pass on the issue. No objection having been made to the testimony now being complained of, we deem the issue as having been waived. Wilhite v. Commonwealth, Ky., 574 S.W.2d 304 (1978).
"Appellant was denied a fair trial and due process of law by the misconduct of the Commonwealth at trial."
Appellant complains of the alleged misconduct of the Commonwealth in ten instances during the course of the trial. Although complaint is made of ten alleged errors, only two are preserved for appellate review.
One of the alleged errors properly preserved has to do with a statement charged to the Commonwealth's Attorney in his closing argument, that after Mike's body had been found the appellant disposed of his combat boots. The transcript of...
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