Petition — Rodgers v. Kentucky

FILED

APR 11 1980 |

> Bupreme Court, U, my

MICHAEL RODAK, JR., CLERK

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

€9-159h

VITUS RODGERS - - - - - Petitioner

027 sus

COMMONWEALTH OF KENTUCKY .- espondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF KENTUCKY

AND APPENDIX

ELMER J. GEORGE

105 West Main Street

Lebanon, Kentucky 40033

(502) 692-2161

9 Counsel for Petitioner

April —~#_, 1980

WESIERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

PAGE

GI a et ee el ca 1- 2

ee oo a a 2

Cele ea aa ae 2- 3

Constitutional Provisions Involved ................. 3

MtnSommemt Of The Oase cow ccc ccc cc cue acc 3- 6

Reasons for Granting the Writ .................... 6-16

First Question: Petitioner Was Denied Due Process

of Law Where There Was a Likelihood of Bias

or an Appearance of Bias That the Judge Was

Unable to Hold the Balance Between Vindicat-

ing the Interests of the Prosecution and the

FREES GTR Sa 6- 9

Second Question: Petitioner Was Denied Due Pro-

cess of Law Where the Trial Judge Refused

Petitioner’s Requested Instruction on Protec-

A SONS ee 9-10

Third Question: Petitioner Was Denied Due Process

of Law Where the Trial Judge Prevented Peti-

tioner From Making His Defense ............. 11-13

Fourth Question: Petitioner Was Denied Due Pro-

cess of Law Where the Trial Judge Allowed the

Prosecution to Introduce Evidence of an Unre-

lated Prior Offense by Petitioner Which Was

Further Developed in Closing Argument by the

I ee gs eg lee cee ccves 13-16

EES AS Glee 16

SES 17-34

Appendix A (Court of Appeals of Kentucky Opin-

ee i wiev sae 17-24

Appendix B (Order Denying Petition for Rehear-

I ke evcacseneeee 25

i

PAGE ©

Appendix C (Order Denying Motion for Discre-

tionary Review, February 7, 1980) ............ 26

Appendix D (Court of Appeals of Kentucky Man-

Gece, POMTORLy GB, TSO). wine's icccceks vockcweccs 27

Appendix E (Order Staying Execution and En-

forcement of Mandate for 90-days, February 11,

ME ek BEES eI NTA ® a OO Oe eae Cb oe ks 28

Appendix F (Casey Circuit Court Criminal Judg-

SU, Se TO OTE). oo iikccbeccs Civaecccc, 26-90

Appendix G (Marion Circuit Court Civil Judgment,

SE PPE Roy bed ehke wn did we Rcboawes eck: 31-32

Appendix H (Affidavit of Counsel, September 5,

SE aS OUR cn aS EPS Kile oh he ae ib ek dl 33-34

a

CITATIONS

Constitutional Provisions:

PAGE

Fifth Amendment, United States Constitution .... 8

Fourteenth Amendment, United States Constitution 8

Cases: kin, 7

Barnes v. Cooper, Ky., 507 S. W. 2d 157 (1974) .... 7

Boyd v. United States, 142 U.S. 450 (1892) ....... 15

Chambers v. Mississippi, 410 U.S. 284 ote | ae 12

Cotton v. Commonwealth, Ky., 454 S.W. 2d 698

COREE Gries cu kag th Reeser ern ia ec 14

Davis v. Alaska, 415 U.S. 308 (1974) ............. 12

Edwards v. United States, 312 U.S. 473 TOD ccc ae

Johnson v. United States, 318 U.S. 189 (1943) .... 15

In re Murchison, 349 U.S. 183 (1955) ............ 8

Proctor v. Warden, 435 U.S. 559 (1978) .......... 6

Smith v. United States, 161 U.S. 85 (1896) ....... 11

Spencer v. Texas, 385 U.S. 554 (1967) ........... 15

Taylor v. Hayes, 418 U.S. 488 SN ed cece 8

Tumey v. Ohio, 273 U.S. 510 (1927) .............. 8

United States v. Brown, 540 F. 2d 364 (8th Cir.

BONE - 5.555 chk RERUA EUR UCN ERAER OUR ee. hes 10

Umited States v. Burks, 470 F. 2d 432 (D.C. Cir.

ROGET 6 05 0:ck badwaksoaN can kaaake ents eee, 11-12

United States v. Winn, 577 F. 2d 86 (9th Cir. 1978) 10

Washington v. Texas, 388 U.S. 14 (1967) ......... 2

Statutes:

Haske. MMMM ICM ORY ook cv acacucuccecedany 5, 7

SAN ED ib 5 6 BGS KS w Rhea cele bh nda ck bas 10

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

Verve Ropgmms 6 ws ee tiie

Vv.

COMMONWEALTH OF KENTUCKY - - Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF KENTUCKY

The Petitioner, Virus Ropcrrs, respectfully prays

that a writ of Certiorari issue to review the Opinion

and Order of the Court of Appeals of Kentucky,

rendered in this proceeding on August 17, 1979.

OPINIONS BELOW

The Opinion of the Court of Appeals of Kentucky

rendered on August 17, 1979 (Appendix A) is not

reported. A Petition for Rehearing was filed and was

denied on October 12, 1979. (Appendix B)

Motion for Discretionary Review was filed in the

Supreme Court of Kentucky and was denied on Feb-

ruary 7, 1980. (Appendix C) Mandate was issued by

the Court of Appeais on February 8, 1980. (Appendix

D)

2

Upon motion of the Petitioner, the Court of Ap-

peals of Kentucky entered an Order to stay execution

and enforcement of the mandate ‘‘for a period of 90-

days,’’ on February 11, 1980 (Appendix E), staying

enforcement of the mandate until May 7, 1980. [Nors:

Petitioner files with this Petition a motion requesting

the United States Supreme Court further to enter an

Order staying enforcement of the Kentucky mandate

pending final disposition of this Certiorari proceeding. ]

JURISDICTION

The Opinion of the Court of Appeals of Kentucky

(Appendix A) was rendered on August 17, 1979; and

a timely Petition for Rehearing was denied by Order

of the Court of Appeals of Kentucky (Appendix B)

on October 12, 1979; and a timely Motion for Discre-

tionary Review was denied by Order of the Supreme

Court of Kentucky (Appendix C) on February 7,

1980; and the Mandate of the Court of Appeals (Ap-

pendix D) was issued on February 8, 1980; and this

Petition for Certiorari was filed within 90-days of that

date. This Court’s jurisdiction is invoked under 28

U.8.C. §1257(3).

QUESTIONS PRESENTED

1, Whether Petitioner was denied due process of

law where there was a likelihood of bias or an appear-

ance of bias that the judge was unable to hold the

balance between vindicating the interests of the prose-

cution and the accused.

3

2. Whether Petitioner was denied due process of

law where the trial judge refused Petitioner’s re-

quested instruction on protection of another.

3. Whether Petitioner was denied due process of

law where the trial judge prevented Petitioner from

making his defense.

4. Whether Petitioner was denied due process of

law where the trial judge allowed the prosecution to

introduce evidence of an unrelated prior offense by

Petitioner which was further developed in closing argu-

ment hy the prosecutor.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Consti-

tution provides in part:

No person shall . . . be deprived of life, lib-

erty, or property, without due process of law... .

STATEMENT OF THE CASE

This is a ease in which a criminal defendant’s trial

was maneuvered into conviction by two first cousins,

the judge and the prosecutor. This instance of ‘‘cousin

justice’’ in the Casey Circuit Court violated due process

of law.

Petitioner Vitus Rodgers was tried for murder in

the Casey Circuit Court and was convicted of man-

slaughter in the first degree. The jury verdict of Oc-

tober 13, 1978, fixed his sentence at fifteen (15) years

imprisonment. (Appendix F) This was Petitioner’s

second trial; the first trial resulted in a hung jury.

4

In subsequent civil litigation arising from the same

facts, Petitioner as defendant was held not liable by

the jury, on a theory of reasonable protection of others.

See Judgment, Marion Circuit Court, Civil Action No.

79-CI-075, entered June 21, 1979. (Appendix G)

The facts underlying these proceedings may be

stated as follows: Petitioner allegedly killed Archie

Lee several hundred yards from Petitioner’s home.

Archie Lee, allegedly the victim, got drunk and made

an armed attack on Petitioner’s home. Immediately

prior to his armed attack, Lee made several provoca-

tive phone calls to Petitioner’s home and threatened

Petitioner’s life. Lee threatened Petitioner’s wife

that he was coming over within five minutes to kill her

husband. [Court of Appeals’ Opinion, p. 2; Appendix,

p. 18.]

Lee came over to Petitioner’s home, and he did fire

shots into Petitioner’s home. Lee then drove away

down the road, turned around, drove back, got out of

his car, and fired two more shots at Petitioner who had

moved into his yard to protect his home from Lee’s

aggression. Lee got into his vehicle again and drove

away down the road, probably contemplating yet

another deadly pass at Petitioner and Petitioner’s

home. This time, however, Petitioner in his red truck

pursued Lee. [Court of Appeals’ Opinion, p. 2; Ap-

pendix, p. 18.]

In order to prevent the aggressor Lee from making

yet another deadly pass at his home and family, Peti-

tioner pursued Lee. Petitioner overtook Lee several

hundred yards from Petitioner’s home and shot him

5

six times. Petitioner turned around and returned to

Lee’s automobile and shot Lee six more times. [ Court

of Appeals’ Opinion, pp. 2, 4; Appendix, pp. 18, 20.]

It was the defense of Rodgers at the trial that he

shot Archie Lee in order to protect his wife and

grandchildren as well as himself. [Court of Ap-

peals’ Opinion, p. 2; Appendix, p. 18.]

Petitioner’s trial in Casey Circuit Court was pre-

sided over by a judge who was not a neutral and im-

partial judge. The judge was, in fact, first cousin to

the prosecuting attorney and was, as such, not disin-

terested in the outcome of Petitioner’s trial. Under

the state statute, K.R.S. 26A.015(2) (d) (2), the com-

mon law of Kentucky, and constitutional principles of

due process, Petitioner was denied a fair trial where

the trial judge was not qualified to preside. In con-

trast, it should be noted that the civil litigation arising

from the same facts which resulted in a jury verdict

of no liability, took place in Marion County before a

qualified and disinterested judge.

At Petitioner’s criminal trial, the Court instructed

the jury as to murder, manslaughter in the first degree,

and self-defense. [T.R., pp. 27-31.] However, the

Court refused Petitioner’s requested instruction on

protection of another. [T.E., unnumbered pages fol-

lowing p. 158.] |

The trial court prevented Petitioner from making

his defense when it refused defense evidence of the

alleged victim’s previous acts of armed violence and

violent tendencies, known to Petitioner at the time of

6

Lee’s armed attack. The refused testimony of Donald

Helm and Otis Helm, sketched in avowal testimony,

demonstrated the alleged victim’s previous violent be-

havior known to Petitioner. [T.E., pp. 157-158.] The

trial judge, as to each witness, summarily ruled, ‘Every

bit of that is incompetent,’ excluded the evidence, and

thus thwarted Petitioner’s right to present his defense.

On the other hand, at trial, the judge allowed his

first cousin the prosecutor to develop collateral evi-

dence of Petitioner’s previous misdemeanor conviction

for assault and to comment on this offense in closing.

[T.E., pp. 124-126, 169.] The admission of such un-

related evidence was prejudicial because it substan-

tially and unfairly weakened the credibility of the

Petitioner and the defense in general.

REASONS FOR GRANTING THE WRIT

First Question: Whether Petitioner Was Denied Due

Process of Law Where There Was a Likelihood of Bias or

an Appearance of Bias That the Judge Was Unable to Hold

the Balance Between Vindicating the Interests of the

Prosecution and the Accused.

In this case, Petitioner was tried before a judge

who was first cousin to the prosecutor. [Affidavit of

Counsel, Appendix H.] This close relationship be-

tween judge and prosecutor denied the appearance of

justice so consistently championed by this Court.

To perform its high function in the best way ‘jus-

tice must satisfy the appearance of justice.’ Proc-

tor v. Warden, 435 U.S. 559, 560 (1978).

—

7

The close relationship between judge and prosecutor

also violated the applicable state statutory provision.

K.R.S. 26A.015(2) (d) (2) provides as follows:

(2) Any justice or judge of the Court of Jus-

tice or master commissioner shall disqualify him-

self in any proceeding:

(d) Where he or his spouse, or a person within

the third degree of relationship to either of them,

or the spouse of such a person:

2. Is acting as a lawyer in the proceeding and

the disqualification is not waived by stipulation of

counsel in the proceeding filed therein.

In the present case, the statutory disqualification of the

trial judge was not waived by stipulation of Petitioner

or Petitioner’s counsel. The trial judge was not quali-

fied to preside.

The close relationship between judge and prosecu-

tor in Petitioner’s case violated the common law as

developed in Kentucky.

We have held that kinship in the degree of

first cousin by blood or marriage is sufficiently

close to require disqualification of a trial judge.

Wells v. Walter, Ky., 501 S. W. 2d 259 (1973).

Barnes v. Cooper, Ky., 507 S.W. 2d 157, 160

(1974).

In the present case, the trial judge was not qualified

under common law to preside over Petitioner’s trial.

8

The close relationship between judge and prosecu- |

tor at Petitioner’s trial violated due process, as guar-

anteed by the Fifth and Fourteenth Amendments.

A fair trial in a fair tribunal is a basic require-

ment of due process. . . . [O]ur system of law

has always endeavored to prevent even the proba-

bility of unfairness. To this end no man can be a

judge in his own case and no man is permitted to

try cases where he has an interest in the outcome.

That interest cannot be defined with precision.

Circumstances and relationships must be consid-

ered. This Court has said, however, that ‘‘every

procedure whick would offer a possible temptation

to the average man as a judge . . . not to hold the

balance nice, clear and true between the State and

the accused, denies the latter due process of law.”

[Citation omitted] . . . But to perform its high

function in the best way ‘‘justice must satisfy the

appearance of justice.’”’ [Citation omitted] In re

Murchison, 349 U.S. 133, 136 (1955).

Followed in Taylor v. Hayes, 418 U.S. 488, 501 (1974) ;

accord, Tumey v. Ohio, 273 U. 8. 510, 532 (1927). In

the present case, the first cousin relationship between

judge and prosecutor denied Petitioner due process.

The close relationship of judge and prosecutor created

“the probability of unfairness’ and gave the trial

judge ‘‘an interest in the outcome,” as condemned in

Murchison, quoted supra. The close relationship be-

tween judge and prosecutor offered a temptation to the

judge ‘‘not to hold the balance nice, clear and true

between the State and the accused,’’ which temptation

denies due process as construed in Murchison, quoted

supra.

9

Clearly, the appearance of justice cannot be satis-

fied where the trial judge is first cousin to the prosecu-

tor in a criminal ease,

The actual effect of the decision of the Court of

Appeals of Kentucky is to approve Petitioner’s con-

viction obtained at a criminal trial in which the judge

and the prosecutor were first cousins. The consequence

of allowing the disputed decision to stand is that

“cousin justice’’ will continue to be approved pro-

cedure for the Casey Circuit Court and throughout

Kentucky wherever first cousins operate in tandem as

judges and prosecutors. Other criminal defendants,

like Petitioner, will continue to be subject to unfairness

and the appearance of unfairness, in the trial of their

cases, in violation of recognized principles of due

process.

Second Question: Whether Petitioner Was Denied Due

Process of Law Where the Trial J udge Refused Petitioner’s

Requested Instruction on Protection of Another.

In this ease, a critical part of Petitioner’s defense

was that he killed Archie Lee to protect himself and

his family from Archie Lee’s armed aggression. The

facts are undisputed that Lee threatened to come to

Petitioner’s home to kill Petitioner, that Lee did come

to Petitioner’s home and fired shots into Petitioner’s

home, that Lee drove away a short distance and re-

turned to fire more shots at Petitioner and Petitioner ’s

home. [Court of Appeals’ Opinion, p. 2; Appendix,

p. 18.] Under these facts, Petitioner’s tendered in-

10

struction on protection of another certainty was jus-

tified and the failure to give it was a denial of due

process.

Protection of another is a defense recognized by

the Kentucky statutes and includes the justifiable use

of deadly physical force by e defendant when the de-

fendant ‘‘believes that such force is necessary to pro-

tect.a third person against imminent death.’’ [K.R.S.

503.070(2).] Petitioner acted in this case to protect

his wife and grandchildren who were at Petitioner’s

home when the armed aggressor Lee was shooting into

it.

It is axiomatic that a defendant is entitled to have

his theory of the case submitted to the jury. United

States v. Brown, 540 F. 2d 364, 380 (8th Cir. 1976) ;

United States v. Winn, 577 F. 2d 86, 90 (9th Cir. 1978).

In the present case, Petitioner was denied that due

process right. It should be noted that the defense

theory which prevailed in the parallel civil proceeding

tried before the Marion Circuit Court was, in fact, the

theory of reasonable protection of others.

The actual effect of the decision of the Court of

Appeals of Kentucky is to approve Petitioner’s con-

viction based on the trial court’s refusal to present

Petitioner’s theory of the case to the jury. This is

another example of unfair: ‘‘cousin justice’’ in the

Casey Circuit Court. The consequence of allowing the

disputed decision to stand is that the practice of re-

fusing tendered instructions on the defendant’s very

real theory in a criminal case, in violation of due pro-

cess, will be encouraged.

11

Third Question: Whether Petitioner Was Denied Due

Process of Law Where the Trial Judge Prevented Peti-

tioner From Making His Defense.

At trial, the judge instructed the jury on self-

defense but refused to allow Petitioner to introduce

evidence as to self-defense. The trial judge refused to

allow evidence as to Petitioner’s knowledge and belief

about th» aggressor Lee’s prior acts of violence and

violent propensities to be presented to the jury. The

thrust of the excluded defense evidence is preserved in

the avowal testimony of Donald Helm and Otis Helm.

[T.E., pp. 157-158. ]

Such defense evidence was certainly admissible to

establish self-defense and to demonstrate the reason-

ableness of Petitioner’s actions. -

[A]ny evidence which, according to the common

experience of mankind, tended to show that the

defendant had reasonable cause to apprehend great

bodily harm from the conduct of the deceased

towards him just before the killing was admissi-

ble . . . . Smith v. United States, 161 U.S. 85, 88

(1896).

Accord, United States v. Burks, 470 F. 2d 482 (D.C.

Cir. 1972), in which the Court stated:

As this court has long recognized, evidence of the

deceased’s violent character, including evidence of

specific violent acts, is admissible where a claim of

self-defense is raised. Such evidence is relevant

on the issue of who was the aggressor and, where

there is evidence that the defendant knew of the

12

deceased’s character, on the issue of whether or

not the defendant reasonably feared he was in

danger of imminent great bodily harm, [Citations

omitted.] Id., at pp. 434-435.

In excluding defense evidence clearly probative as to

self-defense and the reasonableness of Petitioner’s ac-

tions in the protection of himself and his family, the

trial judge effectively denied Petitioners constitutional

right to make a defense.

Few rights are more fundamental than that of

an accused to present witnesses in his own defense.

Chambers v. Mississippi, 410 U. 8. 284, 302 (1973).

In the present case, the trial judge prevented Peti-

tioner from presenting ‘‘his own defense.”’

[H]e has the right to present his own witnesses to

establish a defense. This right is a fundamental

element of due process of law. Washington v.

Texas, 388 U.S. 14, 19 (1967).

Accord, Davis v. Alaska, 415 U.S. 308, 317 (1974) ;

Edwards vy. United States, 312 U.S. 473, 482 (1941).

In the present case, the trial judge denied Petitioner’s

fundamental right ‘‘to establish a defense.”’

The tactic of instructing on self-defense but deny-

ing Petitioner’s proffered evidence on the issue of self-

defense was a fundamentally unfair tactic and a denial

of due process.

The actual effect of the decision of the Court of

Appeals of Kentucky is to approve the trial judge’s

refusal to allow Petitioner to make his defense. The

13

trial judge’s ruling in this regard is another example

of ‘‘cousin justice”’ in the Casey Circuit Court. The

consequence of allowing the disputed decision to stand

is that the egregious practice of giving a self-defense

instruction and not allowing defense evidence as to

self-defense will be encouraged. The denial of a de-

fendant’s fundamental due process right to make a

defense, perhaps his only defense, is encouraged.

Fourth Question: Whether the Petitioner Was Denied

Due Process of Law Where the Trial Judge Allowed the

Prosecution to Introduce Evidence of an Unrelated Prior

Offense by Petitioner Which Was Further Developed in

Closing Argument by the Prosecution.

Although the trial judge excluded defense evidence

relevant to the issue of self-defense and the reasonable-

ness of Petitioner’s actions, the trial judge allowed his

first cousin, the prosecutor, to provoke an opening to

show Petitioner’s previous criminal conviction, unre-

lated to the offense being tried, and to compound that

showing by further prosecutorial reference in closing

argument.

During cross-examination of Petitioner, the prose-

cutor provoked an opening to show the jury Peti-

tioner’s previous criminal conviction. The prosecutor

gratuitously asked:

Q. 33. All the peopie in the courthouse know

you too, don’t they? [T.E., p. 124.]

This provocative question was completely uncalled for.

Defense counsel objected. The trial judge allowed the

prosecutor to continue:

14

. They all know you too, don’t they? [T.E.,

p. 124. ]

Provoked to answer, Petitioner stated that he had not

‘‘been in any trouble for 21 years.”’ [T.E., p. 124. ]

Over strenuous objection by defense counsel, the

trial judge still permitted his first cousin the prosecutor

to ask further. The prosecutor made the most of the

opportunity. He intentionally framed his question in

a substantive way so that evidence of Petitioner’s prior

crime would be presented to the jury.

Q. 36. About a year ago wasn’t you in this

Court and you were tried for cutting your son-in-

law and were given sentence of 12 months in jail

and a $500.00 fine? [T.E., p. 125.]

The trial judge overruled the defense objection and

further evidence of Petitioner’s unrelated offense was

admitted. [T.E., pp. 125-126.] The prosecutor com-

pounded the prejudicial effect of introducing this in-

competent evidence by referring to it again in closing

argument. [T.E., p. 169.]

Such evidence was clearly inadmissible in Kentucky

under the well-known line of cases beginning with the

leading case of Cotton v. Commonwealth, Ky., 454 S.W.

2d 698 (1970). Such evidence of unrelated prior of-

fenses has been repeatedly held incompetent by this

Court.

[E]vidence of prior crimes introduced for no pur-

pose other than to show criminal disposition would

violate the Due Process Clause. Evidence of prior

15

convictions has been forbidden because it jeopar-

dizes the presumption of innocence of the crime

currently charged. A jury might punish an ac-

cused for being guilty of a previous offense, or feel

that incarceration is justified because the accused

is a ‘‘bad man,”’ without regard to his guilt of the

crime currently charged. Of course it flouts human

nature to suppose that a jury would not consider a

defendant’s previous trouble with the law in de-

ciding whether he has committed the crime cur-

rently charged against him. Spencer v. Texas,

385 U.S. 554, 574-575 (1967), Mr. Justice Stewart,

concurring.

Accord, Johnson v. United States, 318 U.S. 189, 195

(1943); Boyd v. United States, 142 U.S. 450, 458

(1892). In the present case, the trial judge should

never have allowed evidence of Petitioner’s unrelated

conduct to be presented to the jury. It was also prose-

cutorial misconduct to have intentionally provoked the

introduction of this incompetent and prejudicial infor-

mation, and to have referred to it again in closing

argument.

The manner in which this incompetent and preju-

dicial evidence of Petitioner’s unrelated conduct was

introduced demonstrates one way in which first cousins

—judge and prosecutor—maneuvered this Petitioner’s

trial into conviction.

The actual effect of the decision of the Court of

Appeals of Kentucky is to approve the introduction of

incompetent and prejudicial evidence which contri-

buted to Petitioner’s conviction, in violation of due

process of law. This is another example of unfair

16

‘cousin justice’’ in the Casey Circuit Court. The trial |

judge refused competent defense evidence relating to

self-defense but allowed incompetent prosecution evi-

dence of Petitioner’s unrelated offense. If that is not

injustice, then there are no steers in Texas! The con-

sequence of allowing the disputed decision to stand is

to encourage prosecutors and judges to provoke and

allow the introduction of evidence of defendants’ prior

unrelated offenses, with the result that convictions will

be obtained in violation of the Due Process Clause.

CONCLUSION

For these reasons, it is respectfully submitted that

a writ of certiorari should issue to review the judgment

and opinion of the Court of Appeals of Kentucky.

Respectfully submitted,

ELMER J. GEORGE

105 West Main Street

Lebanon, Kentucky 40033

(502) 692-2161

Counsel for Petitioner

PORE re ore er

+ ees

APPENDIX

atest ese SRM cs

ar 8 ais

17

APPENDIX A

OPINION RENDERED: AUGUST 17, 1979

NOT TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

No. 79-CA-115-MR

Virus Ropecrrs aR ie ch ae eae - Appellant

v.

CoMMONWEALTH OF KrentTUCKY - - - Appellee

Appeal From Casey Circuit Court

Hon. James C. Carter, Jr., Judge

No. 78-CR-0019

AFFIRMING

Berore: Howarp, Vance and WHITE, JUDGES.

Howarp, Jupar. The appellant was tried and convicted

of the murder of Archie Lee in the Casey Circuit Court

and was sentenced to 15 years imprisonment. He appeals

from this conviction.

The facts of this case are that on the morning of March

9, 1978, Archie Lee and his friend, Glen Cain, drove to

Marion County, Kentucky, where they shot some pool and

bought three cases of malt liquor. To make a long story

short, both Lee and Cain spent the afternoon drinking and

returned to Lee’s home. Cain was apparently so intoxi-

cated that he had passed out and, from the evidence, it

appears that Lee decided to renew an apparent standing

feud with the appellant. There is testimony that Lee and

the appellant were related by marriage and had known each

other for many years and had had previous trouble.

18

On the date of the shooting, the appellant testified that |

Lee had made several provocative phone calls to his home

and had threatened his life. The appellant’s wife stated

that Lee had told her he was coming over to the Rodgers

home within five minutes to kill her husband.

The appellant produced evidence which indicated that

the deceased did approach the appellant’s home and that

he did fire shots into the home. He proceeded down the

road from the Rodgers place and then returned and got out

of his car and fired two more shots at Rodgers, who ap-

parently had gone out into the yard in order to protect his

home and the occupants from the gunfire. The deceased

then got back into his automobile and drove away, with the

appellant in pursuit in his red truck.

Rodgers admitted catching up with the deceased and

shooting him six times and that he then turned around in

Delois Cain’s driveway and returned to the deceased’s auto-

mobile where he shot Archie Lee six more times. It was

the defense of Rodgers at the trial that he shot Archie Lee

in order to protect his wife and grandchildren as well as

himself.

The first alleged error in the conduct of the trial, argued

by the appellant, is that the trial judge should have dis-

qualified himself by reason of the provisions of KRS

26A.015(2)(d)2. This statute reads as follows:

(2) Any justice or judge of the Court of Justice or

master commissioner shall disqualify himself in any

proceeding:

(d) Where he or his spouse, or a person within the

third degree of relationship to either of them, or the

spouse of such a person:

2. Is acting as a lawyer in the proceeding and the

disqualification is not waived by stipulation of

counsel in the proceeding filed therein;

19

The attorney for the appellant claims that the trial

judge and the commonwealth attorney are first cousins,

and therefore, the statute quoted above would have re-

quired that the trial court step down. Unfortunately, there

is nothing in the record that would substantiate this claim.

This allegation was made only after the trial had been con-

cluded and was set out in a motion and grounds for a new

trial which was not verified. Under these circumstances,

we cannot decide the question of whether or not this statute

would apply to require a trial judge to step down in a case

where the prosecutor is or may be within the above quoted

statute. Certainly, we cannot decide this question on this

record and the claim of reversible error is without merit.

The next claim of error has to do with the instructions.

The first complaint in regard to the instructions is that the

trial court gave a qualification of the self-defense instrue-

tion. The qualification reads as follows:

If you believe from the evidence beyond a reasonable

doubt that the defendant, Vitus Rodgers, himself, pur-

sued Archie Lee in his automobile and he, Vitus Rod-

gers, began the encounter by shooting at Archie Lee or

into the automobile occupied by Archie Lee, when it

was not necessary, and when Vitus Rodgers did not

believe it to be necessary in order to protect himself

from physical force he believed Archie Lee was then

and there about to use upon him, then he, the de-

fendant, Vitus Rodgers, was not privileged to act in

self-protection, and you should not excuse the defend-

ant on the grounds of self-defense or apparent neces-

sity.

We find no error with this instruction.

There was strong evidence introduced at the trial to

establish that the appellant pursued the victim and began

20

the encounter by shooting at the victim when it was not

necessary, and when appellant did not believe it was neces-

sary to do so in order to protect himself, After all, the

victim’s automobile was found several] hundred yards from

appellant’s home in a ditch and pointing in a direction away

from the appellant’s house. The motor, headlights, and

windshield wipers were all running as though the victim

were attempting to flee when he was driven into the ditch.

The appellant admitted having shot the victim several

times and then shortly thereafter he returned to the victim’s

car and shot him several more times. Under these circum- -

stances, it cannot be said that the qualification on the self-

defense instruction was improper. Hobbs v. Common-

wealth, Ky., 481 S. W. 2d 81 (1972), and Earl v. Common-

wealth, Ky. App., 569 S. W. 2d 686 (1978).

In connection with the instruction, the appellant com-

plains of certain language in the self-defense instruction,

“then and there,” which he now claims improperly limited

his right to self-defense. However, this same language was

proffered by the appellant in his own self-defense and pro-

tection of another instruction which he requested of the

trial court. Under the facts of this case, we see nothing

improper in the use by the trial court of this language.

The limitation suggested by the use of the words “then and

there” was proper under the circumstances of this case. It

is doubtful, however, that the appellant has properly pre-

served any alleged error in this regard by his failure to

specifically object to this instruction. H oward v. Common-

wealth, Ky., 487 S. W. 2d 689 ( 1972).

_' The next complaint as to the instructions concerns the

failure of the trial court to instruct the jury on the defense

of the protection of another. It is, of course, the law in

this jurisdiction that an individual may use deadly physical

force upon someone in protection of another. KRS 503.070.

However, the use of such deadly physical force is severely

21

limited. The accused must believe that such force is neces-

sary to protect a third person against the use of unlawful

physical force by another and the person whom he seeks to

protect would have been justified in using such force

against the other person.

In this case, however, the appellant apparently warded

off an armed assault by the victim when he shot at or into

the appellant’s home which, at that time, housed the appel-

lant’s wife and grandchildren. He then admittedly got into

his truck and pursued the deceased and shot him under the

circumstances set out previously in this opinion. It ap-

pears to us that once the deceased left the home area of the

appellant and was proceeding away from same and being

chased by the appellant, that neither the appellant’s wife

nor their grandchildren were exposed to any danger from

the assailant and the requisites mandated by KRS 503.070,

for the protection of others simply did not exist. We find

no error in the failure of the trial court to give this in-

struction.

The last allegation of the appellant in regard to the

instructions is that he claims that he was entitled to in-

structions on manslaughter in the second degree and reck-

less homicide. In this case there was no evidentiary frame-

work upon which inferences could be drawn that the ap-

pellant had acted either wantonly or recklessly.

The evidence is clear that the jury could have believed

that the appellant acted in self-defense or that he was

guilty of an intentional homicide and nothing else. The

trial record is devoid of evidence to support the instruc-

tions requested by the appellant with respect to this issue.

Butler v. Commonwealth, Ky., 560 S. W. 2d 814 (1978), and

Flener v. Commonwealth, Ky., 514 8. W. 2d 201 (1974).

The appellant next claims that the trial court committed

prejudicial error in regard to certain rulings the court

made in regard to the evidence.

22

The first pertains to the contention that the trial court

should have permitted the appellant to introduce certain

evidence pertaining to the victim’s alleged violent propensi-

ties and instances of violence. The testimony was elicited

by way of avowal from Otis Helm and Donald Helm, each

of whom set out specifically certain acts of violence directed

towards them and that they had related these instances to

the appellant. The trial court ruled that this evidence was

not competent and properly so. In the first place, there

was ample evidence before the jury that the appellant

knew of Lee’s violent propensities in regard to his previous

actions toward the appellant and, of course, these were

testified to by the appellant and his wife. Also, the deceased

and the appellant were related by marriage and had known

each other for years.

In any event, this type of testimony has never been

permitted in this jurisdiction and in the very recent case of

Parrish v. Commonwealth, Ky., 581 S. W. 2d 560 (1979),

the court, at page 563, stated as follows:

The rule in this jurisdiction is that once the defendant

has adduced some evidence that he acted in self-de-

fense, “Proof of the violent and dangerous character

of deceased can only be made by evidence of his general

reputation in the community for such character, and

not by evidence of specific acts or general bad conduct,

or of isolated facts, which are not connected with the

homicide.”

During the trial, State Police Detective Hadley testified

that a solid projectile appeared to have gone through the

window of the victim’s automobile, leaving a small hole in

the upper lefthand side of that window. Detective Hadley

went on to state that the solid projectile could not have been

fired by a shotgun due to the size of the hole it left and the

configuration of the remaining glass in the rear window.

23

This testimony, of course, would contradict the testimony

of the appellant to some extent since he claimed that when

the deceased drove by the appellant’s home he shot out of

the rear window with his shotgun toward the appellant’s

home. This does not appear to be an error which would so

prejudice the appellant in this case to require reversal.

The police detective’s testimony was nothing more than

a statement of fact based upon common observation of the

small hole in the lefthand side of the window. It is inter-

esting to note that there was a photograph in the record

indicating that the rear window had been shot out at the

time of the investigation of the shooting and it is hard to

see how this testimony would be prejudicial under the cir-

cumstances. There was obviously no other conclusion that

could have been drawn from the facts as observed by De-

tective Hadley and certainly this would not be prejudicial.

See Shewmaker v. Commonwealth, 300 Ky. 607, 189 S. W.

2d 957 (1945). If this was an error, it was trivial in nature

when compared to the uncontradicted evidence in the

record. Hill v. Commonwealth, 229 Ky. 400, 23 S. W. 2d

930 (1929).

In the course of the cross-examination by the Common-

wealth of the appellant, the appellant stated “you show me

where I have been in any trouble for 21 years” in answer to

an unrelated question. Subsequently, the prosecutor asked

the appellant if he had been tried and convicted of a mis-

demeanor involving his son-in-law. The appellant acknowl-

edged that he had. We cannot see any error here since the

appellant himself voluntarily opened up the question of his

prior record and it was proper for the prosecution to

pursue this matter.

The judgment of the trial court is affirmed.

Aut Concur.

24

Attorney for Appellant:

JERRY FOSTER

McANELLY & FOSTER

Court Square

Liberty, Kentucky 42539

Attorneys for Appellee:

ROBERT F. STEPHENS

Attorney General

PATRICK B. KIMBERLIN III

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

25

APPENDIX B

COURT OF APPEALS OF KENTUCKY

No. 79-CA-115-MR

VO ON se ice ge Sy Appellant

Vv.

Appellee

CoMMONWEALTH or Kentucky - -

Appeal From Casey Circuit Court

Hon. James C. Carter, Jr., Judge

No. 78-CR-0019

ORDER DENYING PETITION FOR REHEARING

Brrore: Howarp, Vance and Wuiter, Jupczs.

The Court having considered the Petition for Rehearing

and being sufficiently advised, it is OrperEp that the same

is hereby Drenizp.

Enterep: October 12, 1979

/s/ John D. White

Judge, Court of Appeals

26

APPENDIX C

SUPREME COURT OF KENTUCKY

79-SC-607-D

(79-CA-115-MR)

Me ee eee eee ee ee ee

v.

CoMMONWEALTH OF Kentucky - - - Respondent

Casey Circuit Court

No. 78-CR-0019

ORDER DENYING DISCRETIONARY REVIEW

It is ordered that movant’s motion to supplement the

record with a certified copy of a judgment of the Marion

Circuit Court, styled Alene Lee, Administrator of the

Estate of Archie Lee, Deceased v. Vitis Rodgers [sic],

entered June 21, 1979, be denied.

The motion of Vitus Rodgers for a review of the de-

cision of the Court of Appeals is denied.

Stephens, J., not sitting.

Entered February 7, 1980.

/s/ John S. Palmore

Chief Justice

ee a

27

APPENDIX D

OPINION RENDERED: AUGUST 17, 1979

COURT OF APPEALS OF KENTUCKY.

Vitus Roperrs ;

m File No.

: 79-CA-115-MR

CoMMONWEALTH or KENTUCKY j

Appeal From Casey Circuit Court

Action No. 78-CR-0019

MANDATE —Issued February 8, 1980

The opinion rendered on the above date, a copy of

which is attached hereto and made a part hereof, is now

final. It appearing that there is no error in the judgment of

the Circuit Court, it is therefore the mandate of this Court

that said judgment is hereby ArrmrMep.

October 12, 1979—Appellant’s Petition for Rehearing

Denied.

February 7, 1980—Movant’s Motion for Discretionary

Review by Supreme Court Denied.

A Copy - Attest:

Issued: February 8, 1980

/s/ John C. Scott, Clerk

(Szaz)

28

APPENDIX E

COURT OF APPEALS OF KENTUCKY

No. 79-CA-115-MR

Wee ND 2k me re a Appellant

v.

CoMMONWEALTH or KentUCKY - - - Appellee

Appeal From Casey Circuit Court

Hon. James C. Carter, Jr., Judge

ORDER—Entered February 11, 1980

Upon motion of the Appellant herein, by counsel, to

stay execution and enforcement of the mandate in the

above-captioned case for a period of 90-days pursuant to

C.R. 76.44, and the Court being sufficiently advised, it is

hereby

OrvereD that the Appellant’s motion is GRantep.

/s/ John P. Hayes

Judge

Entered: February 11, 1980

29

APPENDIX F

CASEY CIRCUIT COURT

Ind. No. 78-CR-0019

CoMMONWEALTH OF KENTUCKY - - - Plaintiff

v.

Vitus Rocers - - : - - - Defendant

ORDER—Entered October 19, 1978

This matter having come on for trial by jury on October

10, 1978, the Commonwealth appearing through the Com-

monwealth Attorney and County Attorney, and the De-

fendant Virus Rogers, appearing in person and by counsel,

the Hon. Davy McAnetty, Hon. Jerry Foster, and Hon.

Kart Huppieston, both parties having announced ready

for trial, a jury was ordered, to wit:

Beacham Leach Mildred Helm

Ella Williams Virginia Hogue

Charles Noe Lestor Griffin

Charlie Hatchel Mose Evans

Robert Casey Bill M. Green

Dorothy Preston George Sexton

After hearing the evidence and arguments of counsel,

the jury having received the instructions of the Court,

retired to their room, and after a while, returned into open

court with the following verdict:

“We the jury find the Defendant, Virus Rocers guilty

as charged and fix his punishment at fifteen (15) years, in

the state reformatory S/ George Sexton, Foreman.”

30

Motion having been made by defendant for probation, a

report having been made to the Court by the Probation

Officer, said report showing the results of the investigation

as to the defendant’s history of delinquency or criminality,

physical and mental condition, family situation and back-

ground, economical status, education, occupation, and per-

sonal habits, and the Court having considered the said

report and giving it due consideration, and having reached

the conclusion that the defendant was not eligible for pro-

bation, due to the violent nature of the crime, and for the

reason that to grant probation in this case would unduly

depreciate the seriousness of the defendant’s crime, and the

Court being fully and sufficiently advised,

Now Tuererorr, Ir Is Orperep anp Apsupcep that the

Defendant, Virus Rocrrs, be, and is hereby sentenced to

confinement in the State Reformatory for a period of fifteen

(15) years, on Indictment No. 78 CR 0019, and the Sheriff

of Casey County shall transport the said defendant to the

custody of the Department of Corrections where the said

defendant shall remain for the sentence herein set out.

Given under my hand as Judge of the Casey Circuit

Court, on this the 19th day of October, 1978.

/s/ Jas. C. Carter, Jr., Judge

Casey Circuit Court

ct a ata an hae itt

31

APPENDIX G

MARION CIRCUIT COURT

Civil Action No. 79-CI-075

AuENE Ler, Administratrix of the Estate of

Arcuizt Ler, Deceased . - - - “Plaintiff

v..

Vitis Rocers - - - - - - Defendant

JUDGMENT—Filed June 22, 1979

This cause having come on for trial on June 20, 1979,

pursuant to Order heretofore entered, and Plaintiff having

announced ready, and the Court having overruled Defend-

ant’s Motion for Continuance; whereupon, the parties pro-

ceeded to introduce evidence in their respective behalves

and announced closed, and the Court instructed the jury

which, after having heard arguments of counsel, retired to

consider its verdict and subsequently returned a verdict as

follows:

“We, the jury, find for the Defendant.”

Signed,

Dee Porter Barbara Turpin

Harold Mattingly Isaac Tatum

Violet Bland Theresa Catherine Bell

Geneva Bland Margaret Payne

Hugh A. Glasscock Gerald Hillman

Ir Is, AccorpincLy, ConsIDERED ORDERED AND ADJUDGED

that Plaintiff’s Complaint be and the same is hereby dis-

32

missed, with prejudice, and the cost herein assessed against

Plaintiff.

/8/ Robert M. Spragens

Judge, Marion Circuit Court

June 21st, 1979.

33

APPENDIX H

COURT OF APPEALS OF KENTUCKY

No. 79-CA-115-MR

Vitus Ropcers wea apie - - - Appellant

v.

ComMonwmaLTH or Kentucky - - ~- Appellee

Appeal From Casey Circuit Court

Hon. James C. Carter, Jr., Judge

AFFIDAVIT—September 5, 1979

Statve or Kentucky R

OT.

County or Marion

Comes the affiant, Elmer J. George, and after having

been duly sworn, states and deposes as follows:

1. That he is the attorney of record for the Appellant

in the above-captioned proceedings ;

2. That he made a: good faith effort to obtain for this

Court evidence of the relationship of the Trial Judge and

the Commonwealth Attorney and Prosecutor in the trial of

the above-captioned proceedings held in Casey Circuit

Court on October 11-13, 1978, by preparing a Stipulation of

the Parties and a Statement of the Trial Judge to be exe-

cuted by the appropriate parties;

3. That he contacted Paul Carter, Commonwealth At-

torney and Prosecutor in the trial of the above-captioned

proceedings on Tuesday, September 4, 1979, and requested

34

of Mr. Carter that he sign said stipulation; that Mr. Carter

refused to sign same; however, Mr. Carter did acknowledge

during the conversation that James ©. Carter, Jr., Judge of

the Casey Cireuit Court and Judge in the trial of the above-

captioned proceedings held in Casey Circuit Court on Oc-

tober 11-13, 1978, and himself are first cousins; further, he

stated that the Court of Appeals was aware of this rela-

tionship; |

4, That he further contacted by telephone, on Tuesday,

September 4, 1979, the Hon. James C. Carter, Jr., Judge of

the Casey Circuit Court and Judge in the trial mentioned in

numerical paragraph 3 hereof and requested that he sign

the Statement of the Trial Judge; that he refused but did

state that Paul Carter, Commonwealth Attorney and Prose-

cutor in the trial mentioned in numerical paragraph 3

hereof, and himself are first cousins; further, he stated that

the Court of Appeals knew of the relationship between

Paul and himself.

FurtHer Arriant Sayetu Nor.

/s/ Elmer J. George

Subscribed and sworn to before me by Elmer J. George,

this 5th day of September, 1979.

My Commission expires: February 23, 1983

/s/ Lewis Burton Milward, Jr.

Notary Public

State of Kentucky at Large

le ee