# Springer v. Commonwealth

> Kentucky Supreme Court · May 3, 1999 · 998 S.W.2d 439

URL: https://www.frixlaw.com/law-library/cases/9641930

## Case

- **Full name:** Kimberly SPRINGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee; Alexandra Eades, Appellant, v. Commonwealth of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** May 3, 1999
- **Citations:** 998 S.W.2d 439; 1999 WL 236406
- **Precedential status:** Published
- **Opinion:** Dissent by Wintersheimer
- **Judges:** Graves, Stumbo, Wintersheimer, Cooper, Johnstone
- **Cited by:** 153 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641930

## How later opinions describe it (automated extraction)

- finding defendant not entitled to protection-of- another instruction where “[u]nder the actually existing facts, there was no need to kill [victim] in order to protect [third person] from ‘imminent death, serious physical injury . . . or [forcible] sexual intercourse’ at his h…
- finding that confession was not involuntary despite police ruse, in which police falsely used videotape to convince woman accused of murdering her husband that her calls had been monitored
- explaining that “[a] new theory of error cannot be raised for the first time on appeal”
- stating “[a] new theory of error cannot be raised for the first time on appeal[]”

## Opinion text

WINTERSHEIMER, Justice,
dissenting.
I join the dissenting opinion authored by Justice Graves in regard to the interpretation of the law concerning peremptory strikes. In addition, I would respectfully dissent from the majority opinion in regard to three other issues discussed in it.
The circuit judge properly determined that no jury instruction on the lesser-included offense of second-degree manslaughter was warranted by the evidence in the Eades case. Initially, I do not believe that the question was properly preserved for appellate review pursuant to RCr 9.54(2). Evidence was presented that Eades did the shooting and that it was a premeditated and deliberate act. There were conflicting statements regarding the facts, but unless the jury believed that Eades was not guilty at all, they must have believed that she intentionally killed the victim. The trial court is required to instruct only on those lesser-included offenses which are supported by the evidence.
The majority opinion concedes the fact that the claim of self-defense was not preserved for appellate review.
My review of the record indicates that defense counsel agreed with the decision of the trial court on the issue of the voir dire of the jury as to penalty ranges for the possible lesser-included offenses. This issue was not properly preserved for appellate review.
Under all the circumstances, it would appear that there is no substantial possibility that the result in these cases would have been any different in the absence of the alleged irregularity. Thus any errors are nonprejudicial. RCr 9.24. Any defendant is guaranteed a fair trial, but that does not mean a perfect trial free from any and all possible error. Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974). “What it does mean is that a litigant is entitled to at least one tolerably fair trial of his action.” McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977). A review of the entire proceedings indicates that the defendants received a fundamentally fair trial.
I would affirm the convictions in all respects.
LAMBERT, C.J., and GRAVES, J., join this dissent as to part I.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641930. Public record. Not legal advice.