# Petition — Rodgers v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 953

## Text

FILED
APR 11 1980 |

> Bupreme Court, U, my

MICHAEL RODAK, JR., CLERK
eee. so bis #ive» ry

~ ewe

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1972%3A1. Public record. Not legal advice.