KENNY WAYNE COLLINS v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 22, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
97-CA-0431-MR
KENNY WAYNE COLLINS
APPELLANT
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE R. CLETUS MARICLE
ACTION NO. 96-CR-00017
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * * * *
BEFORE:
GUIDUGIL, KNOX, and
GUIDUGLI, JUDGE.
MILLER, JUDGES.
Kenny Wayne Collins (Collins) brings this
direct appeal of a final judgment of the Clay Circuit Court
entered on February 11, 1997, sentencing him to three years in
prison for theft by unlawful taking over $300 following a jury
verdict.
We affirm.
On November 23, 1995, two large wooden spools of
industrial grade rubber coated copper wire were stolen from the
Clay Building Supply store in Burning Springs, Kentucky.
The two
spools were estimated to be worth approximately $640 by the store
owner.
On the night of November 23, 1995, the Clay County
Sheriff's Department received information regarding the possible
theft of some copper wire.
Acting on the information, Deputy
Sheriff Jeff Ruth and Manchester Police Officer Kevin Johnson
were sent to Matthew Helton's residence in the Gum Branch area in
an attempt to obtain further information.
Helton told the police
that Collins had come to his house in a black Chevette with some
wire stolen from Clay Building Supply and wanted him to help sell
it.
Helton told them that Collins had burned the rubber coating
off the wire at a vacant lot near Helton's residence.
After speaking with Helton, the two police officers
went to Collins' grandfather's residence in an attempt to find
Collins.
Upon arriving, they saw a black Chevette and noticed
some copper wire that appeared to be burnt lying in the back of
the car.
The police were unable to locate Collins, but they
decided to impound the black Chevette.
Due to inclement weather,
Deputy Sheriff Ruth waited until the next day to go to the vacant
lot and investigate the location identified by Helton as the
place where the wire had been burned.
Ruth discovered the burned
remnants of some wooden spools, one of which still had the name
Clay Building visible on it.
Deputy Sheriff Ruth took several
photographs of the scene at that time.
The next day, Deputy Sheriff Ruth and Sheriff Edd
Jordan returned to Helton's residence to interview him.
At that
time, Helton gave a more extensive audiotaped statement
implicating Collins in the possible theft of the wire from Clay
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Building Supply.
Helton stated that Collins admitted having
stolen the wire from the Clay Building Supply store.
He also
told the police that he saw the name of the store imprinted on
the spools of wire in Collins' black Chevette.
Collins was
arrested for theft a few days later.
On March 7, 1996, the Clay County Grand Jury indicted
Collins on one felony count of theft by unlawful taking over $300
(Kentucky Revised Statute (KRS) 514.030).
During the trial, the
Commonwealth called Matthew Helton, the three police officers and
the owner of Clay Building Supply as witnesses.
On January 14,
1997, after a one-day trial, the jury convicted Collins of theft
by unlawful taking.
On February 11, 1997, the trial court
sentenced Collins consistent with the jury recommendation to
three years imprisonment.
This appeal followed.
Collins argues that the trial court erred by failing to
grant his motion for a directed verdict.
He further contends
that because Matthew Helton was incompetent to testify, the
conviction should be reversed.
Collins points to testimony by
Helton that he had a learning disability and was semi-illiterate
as evidence that Helton was incompetent.
Collins' position,
however, fails to distinguish properly between the separate
evidentiary concepts of competency and credibility.
The rules of evidence and case law clearly indicate
that witness competency must be raised before the trial court.
KRE 601 codifies the traditional general presumption that "every
person is considered competent to testify except as provided by
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the rules of evidence or statute."
KRE 601(b) states that a
person may be disqualified to testify as a witness if he lacks
the capacity to perceive the matters involved in his testimony,
or if at the time of trial he lacks the capacity to recollect
facts, to express himself in an understandable manner, or to
understand the obligation to tell the truth.
However, the
initial determination on competency is to be made by the trial
judge.
KRE 601(b).
Generally, a defendant must make a contemporaneous
objection to evidence admitted at trial in order to preserve any
alleged error for appellate review.
RCr 9.22.
"RCr 9.22 imposes
upon a party the duty to make 'known to the court the action he
desires the court to take or his objection to the action of the
court. . . .'
Failure to comply with this rule renders an error
unpreserved."
West v. Commonwealth, Ky., 780 S.W.2d 600, 602
(1989) citing Bowers v. Commonwealth, Ky., 555 S.W.2d 241 (1977).
Where evidence is otherwise relevant, an objection seeking
exclusion of the evidence must be sufficiently specific to bring
it to the attention of the trial court.
Commonwealth, Ky., 483 S.W.2d 105 (1972).
Richardson v.
The contemporaneous
objection rule is necessary in order to give the trial court an
opportunity to correct any error.
889 S.W.2d 794, 798 (1994).
Sherley v. Commonwealth, Ky.,
All witnesses are presumed to be
competent and "the burden of showing incompetency is on the party
objecting on that ground."
Causey v. Commonwealth, Ky., 550
S.W.2d 494 (1977).
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While Collins seeks reversal of his conviction on
appeal because of Helton's alleged incompetency, defense counsel
never sought a competency hearing and did not raise a
contemporaneous objection or seek to strike Helton's testimony
based on incompetency.
During cross-examination, the trial court
restricted defense counsel's attempt to challenge Helton's
competency through questions related to an opinion by Helton's
attorney on his client's competency.
Defense counsel, however,
did not seek to have the trial court determine Helton's
competency; rather, he attempted to raise doubts about Helton's
credibility.
Collins' suggestion that any error in admitting
Helton's testimony because he was incompetent to testify as a
witness was preserved by appellant's motions for a directed
verdict is misplaced.
Defense counsel moved for a directed
verdict at the close of the Commonwealth's case based on
insufficiency of the evidence, related in large part to Helton's
"credibility problems."
At the close of the defense case,
counsel renewed his motion for directed verdict "for the same
reasons" as the initial motion for directed verdict.
These
motions were not sufficiently specific to raise adequately before
the trial court any complaint concerning Helton's competency.
An
appellant cannot raise a new or different theory of error in the
appellate court from that raised in the trial court.
Commonwealth, Ky., 821 S.W.2d 484, 486 (1991).
Ruppee v.
As a result,
Collins failed to preserve for appellate review the issue of the
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inadmissibility of Helton's entire testimony because of
incompetency.
Even though Collins failed to preserve the issue of
Helton's competency, this Court may review the issue under RCr
10.26, which authorizes the appellate court to grant relief
involving a palpable error affecting the substantial rights of
the defendant that results in manifest injustice.
Although he
has not specifically referred to RCr 10.26, Collins argues that
it would be fundamentally unfair and a violation of due process
to permit him to be convicted by the testimony of an incompetent
witness.
Admission of testimony by an incompetent witness that
is crucial or highly significant to the criminal prosecution
implicates due process concerns.
Sinclair v. Wainwright, 814
F.2d 1516, 1522-23 (11th Cir. 1989).
A conviction in violation
of due process may constitute palpable error under RCr 10.26.
Perkins v. Commonwealth, Ky. App., 694 S.W.2d 721 (1985).
Nevertheless, review under RCr 10.26 is more restrictive than
that under the harmless error principle available for errors
preserved on the trial court level.
Sherley v. Commonwealth,
Ky., 889 S.W.2d 794, 802 (1994)(Leibson, J. concurring).
RCr
10.26 involves palpable errors of a legal rule that seriously
affect the fairness, integrity or public reputation of judicial
proceedings.
Brock v. Commonwealth, Ky., 947 S.W.2d 24, 28
(1997)(citing United States v. Filani, 74 F.3d 378, 387 (2nd Cir.
1996)).
After a review of the record, we believe Collins has not
demonstrated entitlement to relief under RCr 10.26.
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First, Collins has not shown that an "error" occurred
by the trial court's allowing Helton to testify because Collins
has not established that Helton was in fact incompetent at the
time of the trial or when he gave his statements to the police
shortly after the theft of the wire.
Collins contends that
Helton was evaluated for competency in January 1997 in a separate
criminal proceeding, and he was declared incompetent to stand
trial in October 1997.1
Even assuming this fact is true, it does
not clearly establish that Helton was incompetent to testify.
As
discussed earlier, a witness initially is presumed competent.
The standard for competency to stand trial involves the ability
to understand the proceedings and assist counsel in preparing a
defense, while competency to testify involves the capacity to
perceive, recollect facts, express oneself and understand the
obligation to tell the truth.
Godinez v. Moran, 509 U.S. 389,
113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993)(discussing competency
to stand trial); Wombles, 831 S.W.2d 172, 174 (1992)(involving
competency of child witness); KRE 601(b).
In United States v. Phibbs, 999 F.2d 1053 (6th Cir),
cert. denied, 510 U.S. 1119, 114 S. Ct. 1070, 127 L. Ed. 2d 389
(1993), the Sixth Circuit affirmed the trial court's finding that
two prosecution witnesses were competent to testify even though
one witness had been found incompetent to stand trial previously,
had a history of auditory delusions and had spent time in mental
1
We note that there is nothing in the record to substantiate
this assertion except for Collins' statement in his reply brief.
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health facilities, and the other witness had been declared unable
to assist in his upcoming trial by a psychiatrist.
The trial
court noted that the relevant time period involved in assessing
credibility was when the witness testified.
The appellate court
indicated that as long as the witnesses were minimally capable of
offering reliable evidence, any possible weaknesses in their
testimony could be attacked on cross-examination and went to
credibility, which was a jury issue.
Id. at 1070.
Similarly,
the fact that Helton was found incompetent to stand trial over
ten months after the trial at which he testified as a witness is
insufficient to establish that he was incompetent to testify.
Moreover, Collins' counsel was allowed to cross-examine Helton
fully on the inconsistencies in his prior statements to the
police and during his prior interview with defense counsel.
The
mere fact that the Commonwealth had to use his recorded statement
to the police to refresh his recollection did not render Helton
incompetent.
KRE 612 and KRE 803(5).
In conclusion, Collins has
not rebutted the presumption that Helton was competent to
testify, and therefore has failed to demonstrate an "error"
subject to review under RCr 10.26.
Second, a review of the trial record reveals that
Helton's performance did not clearly suggest that he was
incompetent.
While he professed an inability to remember the
exact content of much of his prior conversations with the police
and defense counsel, he did remember some portions of the
statements.
Helton also was able to express himself in an
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understandable manner while testifying.
Consequently, we cannot
say that any alleged error was "palpable."
Absent a "palpable
error", Collins is not entitled to relief under RCr 10.26.
The final issue involves whether the trial court erred
by refusing to grant Collins' motions for directed verdict.
In
Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991), the Kentucky
Supreme Court reiterated the standard for handling a motion for
directed verdict as follows:
On motion for directed verdict, the trial
court must draw all fair and reasonable
inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe
beyond a reasonable doubt that the defendant
is guilty, a directed verdict should not be
given. For the purpose of ruling on the
motion, the trial court must assume that the
evidence for the Commonwealth is true, but
reserving to the jury questions as to the
credibility and weight to be given to such
testimony.
816 S.W.2d at 187.
The standard for appellate review of a denial
of a motion for directed verdict based on insufficient evidence
dictates that if under the evidence as a whole it would not be
clearly unreasonable for a jury to find the defendant guilty, he
is not entitled to a directed verdict of acquittal.
Benham, 816
S.W.2d at 187; Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 160,
(1995).
Moreover, a conviction may properly be based on
circumstantial evidence when that evidence is of such character
that reasonable minds would be justified in concluding that the
defendant was guilty beyond a reasonable doubt.
Commonwealth, Ky., 860 S.W.2d 760 (1993).
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Baker v.
In the case at bar, the Commonwealth presented
sufficient evidence to withstand the defense motion for a
directed verdict.
Matthew Helton provided substantial
information linking Collins with the theft of the copper wire.
Helton also testified that Collins admitted having stolen the
wire.
In addition, the testimony of the police witnesses
supported Helton's testimony.
For instance, Deputy Sheriff Ruth
found evidence that Clay Building Supply wire had been burned in
the location identified by Helton.
Deputy Ruth also saw burnt
wire in the rear of the black Chevette parked where Collins
resided shortly after the theft.
Both Sheriff Jordan and Officer
Johnson testified that Collins usually drove a black Chevette.
While Helton's testimony was inconsistent at times, this was an
issue of credibility for the jury.
As the court stated in Leigh
v. Commonwealth, Ky., 481 S.W.2d 75, 79 (1972):
"In any trial
there is the ever present possibility that a witness may not be
telling the truth. . . .
The jury decides what testimony to
believe, and the mere possibility that a witness did not tell the
truth is not a ground for reversal."
Viewing the evidence as a
whole and in the light most favorable to the Commonwealth, there
was sufficient evidence for a reasonable juror to believe that
Collins was guilty of stealing the wire from Clay Building
Supply.
For the foregoing reasons, we affirm the judgment of
the Clay Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paula Fitzgerald
Louisville, Kentucky
A. B. Chandler III
Attorney General
J. T. Blaine Lewis
Assistant Attorney General
Frankfort, Kentucky
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