# Murphy v. Commonwealth > Kentucky Supreme Court · May 11, 1983 · 652 S.W.2d 69 URL: https://www.frixlaw.com/law-library/cases/9680406 ## Case - **Full name:** Gregory Arnold MURPHY, Appellant, v COMMONWEALTH of Kentucky, Appellee; And Gregory Arnold MURPHY, Movant/Appellant, v. COMMONWEALTH of Kentucky, Respondent/Appellee - **Court:** Kentucky Supreme Court - **Decided:** May 11, 1983 - **Citations:** 652 S.W.2d 69; 1983 Ky. LEXIS 249 - **Precedential status:** Published - **Opinion:** Dissent by Leibson - **Judges:** Stephens, Aker, Gant, Stephenson, Vance, Winter-Sheimer, Leibson - **Cited by:** 31 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/9680406 ## Opinion text LEIBSON, Justice, dissenting. I respectfully dissent. This case contains at least two errors so prejudicial as to warrant reversal. First, the trial court erred in refusing to give the appellant’s tendered accomplice instruction. The instruction properly characterized the codefendant, Crittenden, as an accomplice as a matter of law and set forth the mandate of former RCr 9.62 that the conviction cannot be based on the uncorroborated testimony of an accomplice. To convict the jury must believe there was additional evidence tending to connect the defendant to the crime. The majority opinion acknowledges that appellant was entitled to an instruction under Commonwealth v. Brown, Ky., 619 S.W.2d 699 (1981), but overrules that case. I believe that the reasoning in Brown is sound and disagree that it should be overruled. Further, I believe that the accomplice rule has merit. This case is a prime example of a person convicted almost entirely on the testimony of an accomplice who gave prior inconsistent statements and whose motives for testifying are highly suspect. In Commonwealth v. Brown, supra, this court held that retroactive abolition of RCr 9.62 is ex post facto when applied to persons allegedly committing crimes while the accomplice rule was still in effect. The court noted that the rule’s abrogation enables the Commonwealth to convict on less evidence than previously required and concluded that “allowing the Commonwealth to proceed with this advantage would violate Section 19 of our Constitution and Article 1, Section 10 of the Constitution of the United States, both of which forbid ex post facto laws.” Id. at 703 . The holding in Brown is supported by a long line of cases beginning with Calder v. Bull, 3 U.S. 386 , 3 Dall. 386 , 1 L.Ed. 648 (1798). Calder holds at page 390: “An ex post facto law, within the meaning of the U.S. Constitution, is one which ... alters the legal rules of evidence, and receives less, or different testimony, than the law required at the commission of the offense, in order to convict the offender.” The United States Supreme Court has long recognized that certain procedural changes can fall within the prohibition of the ex post facto clause. In Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 *76 (1882), the court stated at page 226, 2 S.Ct. at 450 -51: “(A)ny law passed after the commission of an offense which ... (i)n relation to that offense, or its consequences, alters the situation of a party to his disadvantage, ... is an ex post facto law .... No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.” The United States Supreme Court has made it clear that judicial decisions, like legislative enactments, are ex post facto if applied retroactively to change either the quantum or kind of proof necessary to show guilt. See Bouie v. City of Columbia, 378 U.S. 347 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964). The majority opinion cites Hopt v. Utah, 110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 (1884), in support of its conclusion that the abolition of RCr 9.62 is a procedural change which does not alter the amount of proof necessary to convict. But a close reading of Hopt reveals that the court distinguished between laws which merely change eviden-tiary rules and those which change necessary proof. The court said at page 589, 4 S.Ct. at 210 : “Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto .... (T)hey do not ... alter the degree, or lessen the amount or measure of proof which was made necessary to conviction when the crime was committed.” (emphasis added). Thus, the court actually reaffirmed its earlier holding that procedural changes which lessen the quantity or degree of proof necessary to establish guilt are in conflict with the ex post facto clause. Clearly, appellant’s conviction in the present case is based on less evidence than was required by former RCr 9.62. A conviction based solely on the uncorroborated testimony of an accomplice is, by definition, a conviction based on less evidence than one based on accomplice testimony plus corroboration. The additional evidence is the independent evidence which tends to connect the accused to the commission of the crime. Additional evidence is required to prevent one from being convicted solely on his being “fingered” by another participant, because accusations by participants against each other tend to be unreliable. Taylor v. Commonwealth, Ky., 461 S.W.2d 920 , (1970), cert. denied, 404 U.S. 837 , 92 S.Ct. 126 , 30 L.Ed.2d 70 (1971). Because I believe that the reasons for the corroboration requirement of RCr 9.62 are as valid now as they ever were, I would not hasten the rule’s demise by applying its abolition retroactively. More importantly, I believe that constitutional principles require the prospective application approved in Commonwealth v. Brown, supra. The second error by the trial court is its failure to strike incriminating references to the appellant in the statements of the code-fendant Crittenden. These statements were improperly admitted against appellant under the United States Supreme Court decision in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). The majority concludes that this was harmless error because Crittenden later testified consistently with his previously admitted statements. Crittenden’s testimony certainly was not consistent with both of his prior statements because they were in part contradictory. Moreover, the effect of admitting the statements was to force appellant to testify in violation of his constitutional right to remain silent. The order of proof at trial required appellant to go forward before his codefendant Crittenden. Appellant was placed in the untenable position of having to testify in order to rebut Crittenden’s statements and present a defense in his own behalf. I do not agree with the majority opinion that appellant precipitated this error by failing to demand a change in the order of proof. This position is more innovative than realistic. It is manifestly unfair to force appellant to surrender one constitutional right in order to protect another. Simmons v. United *77 States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680406. Public record. Not legal advice.