Cash v. Commonwealth , 1995 Ky. LEXIS 34 ( 1995 )

STUMBO, Justice.

This appeal arises from the judgment of conviction of appellant, Angela R. Cash, for first-degree manslaughter, for which she received a sentence of imprisonment for thirteen years.

Appellant was charged with the murder of Russell Carter, who died of a gunshot wound on December 28, 1991, at the Hill-Top Lounge in McCracken County. Evidence indicated Carter was shot by appellant around 1:00 a.m., December 28,1991, after a number of verbal altercations throughout the evening of December 27, 1991. Tommy Morefield and Sharon Grooms accompanied Cash to the Hill-Top Lounge. Witnesses testified that appellant and Carter were acquaintances and had been arguing throughout the evening. Appellant had been drinking prior to her arrival at the Hill-Top Lounge and continued to drink throughout the night.

Around 1:00 a.m. on December 28, appellant and Carter began to argue while Carter was sitting in the driver’s seat of a car of another acquaintance, Sue Skaggs. Carter exited the automobile leaving Skaggs to stop the car. A number of witnesses testified concerning the events leading up to the death of Carter. Ultimately, Carter was shot around 1:00 a.m. and died of internal hemorrhaging. Any additional facts necessary to our analysis will be set forth in the context of our discussion of the issues.

On appeal, appellant raises two issues. First, appellant asserts that the prosecutor engaged in misconduct which precluded the testimony of a vital defense witness.

On the evening of July 13,1992, during the trial of appellant, the prosecutor spoke with two prosecution witnesses, Tommy Morefield and Sharon Grooms. Both witnesses indicated to the prosecutor that they had lied to the grand jury concerning their involvement with appellant after the shooting of Carter. At the grand jury hearing, both witnesses testified they did not take appellant home and did not see her until the morning of December 29, 1991. However, in fact, they had driven appellant home. The prosecutor told More-field and Grooms that if they responded truthfully and honestly to all the questions at trial, he would have no intention of charging them with perjury.

The prosecutor called Morefield as a witness on July 14, 1992. Morefield answered the questions asked of him by the prosecutor. During an in-chambers conference, the prosecutor again assured Morefield that if More-field testified truthfully and honestly, he had no intention to prosecute him for perjury. Morefield testified. The prosecutor did not call Grooms to the stand as a witness for the Commonwealth.

On the same day, the defense counsel called Sharon Grooms as a witness. Before she took the stand, an in-chambers conference was held to advise her of her right not to incriminate herself. The following exchange took place:

THE COURT: AND WHAT I NEED TO DO IS ASK YOU WHETHER YOU WANT TO INVOKE YOUR RIGHT TO REMAIN SILENT ON THESE CHARGES.

MS. GROOMS: I WANT TO GO AHEAD AND SAY IT AND GET IT OVER WITH.

THE COURT: DO YOU UNDERSTAND THAT IF YOU DO SAY IT AND GET IT OVER WITH, THAT THE STATE MAY THEN PROSECUTE YOU FOR PERJURY?

MS. GROOMS: YOU DID SAY YESTERDAY THAT IF I GOT UP THERE AND TOLD THE TRUTH THAT YOU’D—

MR. KALTENBACH: —I’M NOT MAKING ANY PROMISES.

Grooms then told the court that the prosecutor had advised her that if she testified truthfully at trial he would not prosecute her. The prosecutor stated that if Grooms testified and committed perjury, he “may well prosecute.” In addition, on three separate occasions during continued questioning by the trial judge and continued comments by the prosecutor, Grooms indicated that she understood the consequences of her testimony, and yet, she still wanted to testify. However, Grooms eventually decided to invoke her privilege against compulsory self-incrimination after speaking briefly to another public defender. She testified for the defense only through an avowal.

This Court in Workman v. Commonwealth, Ky., 580 S.W.2d 206 (1979), overruled on other grounds by Morton v. Commonwealth, Ky., 817 S.W.2d 218 (1991), dealt with an analogous situation. In Workman, appellant filed a motion to dismiss the indictment of murder supported by an affidavit which alleged that the Commonwealth “entered into an agreement with Workman to abandon their prosecution of him if he passed a polygraph examination given by the Kentucky State Police.” Workman, 580 S.W.2d at 207. Although Workman passed the exam, the Commonwealth did not uphold its bargain. According to this Court, the question was not whether the Commonwealth’s bargain was wise or foolish. Instead, the question was whether the Commonwealth should be permitted to break its word. This Court held:

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. We are faced with a hard choice, but in the last analysis we find it less evil that a criminal should escape punishment than that the government should be allowed to welsh on its bargain.

Id.

While the factual circumstances are different in Workman and the present case, the principle is the same. In Workman, the Commonwealth failed to uphold the promise made to a defendant. In the present case, the Commonwealth failed to uphold a promise made to a witness. Both violations rise to a level of prosecutorial misconduct which “breeds contempt for integrity and good faith” and “destroys the confidence of citizens in the operation of their government and invites them to disregard their obligations.” Id. Both violations denied the defendants an opportunity for a just resolution of their cases.

In this case, the two witnesses, Morefield and Grooms, were treated substantially different. Yet, both Morefield and Grooms met together with the prosecutor on the night before they were to testify. Both Morefield and Grooms admittedly lied to the grand jury concerning whether they gave appellant a ride home. Both witnesses were promised by the prosecutor if they would testify truthfully and honestly to all the questions, the prosecutor had no intention of pursuing criminal charges.

The prosecutor upheld his promise to Morefield. In chambers, the prosecutor reiterated his promise in front of the judge. As a result, Morefield testified. However, the prosecutor opted not to call Grooms to testify. When the defense counsel called Grooms to testify as a defense witness, the prosecutor refused to abide by the promise he had made to her. In fact, he threatened prosecution stating, “I may well prosecute.”

In effect, the prosecutor prevented Grooms from testifying about the events leading up to the shooting of Carter. Specifically, Grooms would testify that as appellant was walking away from Skaggs’ car, Carter exited the vehicle and grabbed appellant, pulled her and bumped her against Skaggs’ car. In addition, Carter threatened to “whip her ass.” The testimony of Grooms was not cumulative in nature. Instead, it was important to the resolution of appellant’s case. The prosecutor used his power to prevent a witness who had additional evidence from testifying after originally promising her that all he wanted was truth and honesty from her.

Such conduct by the prosecutor was a violation of the principles as set out in Workman, and thus, will not be tolerated by this Court. As a result, we must reverse the conviction of appellant and remand for a new trial at which the witnesses can testify truthfully without fear that the prosecutor will seek criminal charges against them. This Court, however, is not saying that these witnesses are free to testify in any manner which suits the occasion. Should the Commonwealth determine that the testimony at a subsequent trial is indeed untruthful, criminal charges are always a possibility.

Second, appellant claims that she was substantially prejudiced by the trial court’s failure to instruct the jury correctly on the burden of proof as to voluntary intoxication.

RCr 9.22 requires a party to make “known to the court the action he desires the court to take or his objection to the action of the court.” West v. Commonwealth, Ky., 780 S.W.2d 600, 602 (1989). Failure to comply with this rule renders an error unpreserved. Bowers v. Commonwealth, Ky., 555 S.W.2d 241 (1977). Appellant did not object to the alleged incorrect jury instruction, and, therefore, this “error” is deemed unpreserved.

Pursuant to RCr 10.26, this Court may review an unpreserved error and grant appropriate relief provided this Court determines that manifest injustice resulted from that error. However, this “error” does not rise to a level of palpable error to warrant review pursuant to Rule 10.26.

For the reasons set forth above, we reverse the conviction of appellant for first-degree manslaughter and remand for a new trial, and for further proceedings consistent with this opinion.

STEPHENS, C.J., and LAMBERT and LEIBSON, JJ., concur. REYNOLDS, J., dissents by separate opinion in which SPAIN and WINTERSHEIMER, JJ., join.