LONNEY B. SELF V. COMMONWEALTH OF KENTUCKY
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RENDERED: November 13, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-001614-MR
LONNEY B. SELF
V.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
ACTION NOS. 96-CR-899 AND 97-CR-582
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI and HUDDLESTON, Judges.
HUDDLESTON, JUDGE: Lonney B. Self was convicted of Bail Jumping in
the First Degree and of the status offense of being a Persistent
Felony Offender in the Second Degree (PFO), and was sentenced to
imprisonment for five years.
He appeals asserting that the trial
court erred in refusing to grant his motion to continue the trial
of these charges and that it erred in excluding testimony as to
what he had been told by his attorney with regard to his obligation
to appear in court.
In 1994, Self was charged in an indictment with the crime
of Theft By Unlawful Taking over $100.00.
December 2 of that year.
He was arraigned on
Following his arraignment, Self was
ordered to appear for both a pre-trial conference scheduled for
December 6, 1994, and a status hearing scheduled for December 9,
1994.
Since Self's co-defendant had not been arrested at the time
of the pre-trial conference, the trial court continued the status
hearing until January 6, 1995.
Self failed to appear for the status hearing and did not
contact the court to notify it of his whereabouts.
The trial
court, however, was advised by Self's counsel that Self was in
Georgia and had been unable to return to Kentucky because he had
experienced automobile trouble. Self's counsel's motion for a oneweek continuance of the status hearing was denied.
Because of
Self's failure to appear, the trial court revoked his bond and
issued a bench warrant for his arrest.
A bond forfeiture hearing was scheduled for June 9, 1995,
but again Self failed to appear.
One and a half years later, in
December 1996, Self was apprehended and extradited to Kentucky. He
was subsequently indicted for Bail Jumping in the First Degree for
"failing to appear in Fayette Circuit Court on a felony charge."
A status hearing was held on January 10, 1997, at which
the trial court assigned the bail jumping and theft charges for
trial on May 29, 1997.
On May 20, 1997, Self was indicted as a
Second-Degree Persistent Felony Offender.
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At his arraignment on
that charge, the PFO charge was consolidated with the earlier bail
jumping and theft charges and likewise scheduled for trial on May
29, 1997.
On the day of trial, Self's counsel moved the court to
continue the trial on the ground that he had just received notice
of Self's taped confession relating to the theft charge. The trial
court sustained the motion in part and continued the trial of the
theft charge.
Self's counsel explained to the court that a
continuance was required for the bail jumping and PFO charges
because Self wanted to testify and counsel had not prepared Self as
a witness.
The trial court denied the motion, but gave Self's
counsel an opportunity to confer with his client before trial.
At trial, Self attempted to testify about statements made
to
him
by
his
attorney.
The
trial
Commonwealth's objection on hearsay grounds.
Evid. (KRE) 801 and 802.
court
sustained
the
See generally Ky. R.
After Self was found guilty of bail
jumping and of being a PFO, he brought this appeal.
Self asserts that the trial court abused its discretion
when it declined to continue his trial.
He argues that his counsel
focused his trial preparation on the theft charge and not the bail
jumping charge and consequently needed additional time to prepare
for trial on the bail jumping and PFO charges.
In response, the
Commonwealth points out that the trial court scheduled a trial on
the bail jumping charge five months in advance, thus giving Self
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and his counsel more than adequate time to prepare for trial.
Furthermore, Self's motion for a continuance was not filed until
the day the trial was scheduled to commence.
Whether to grant or deny a continuance is a matter within
the discretion of the trial court; and its decision will not be
reversed absent an abuse of discretion.
Ky., 883 S.W.2d 482, 485 (1994).
Johnson v. Commonwealth,
The refusal to grant a motion for
continuance has been found to be an abuse of discretion, for
example, when a defendant accused of rape was assigned counsel only
two days before trial, Taylor v. Commonwealth, Ky., 545 S.W.2d 76
(1976), or when the Commonwealth's attorney misled the defendant
and failed to provide him with exculpatory evidence.
Commonwealth, Ky. App., 747 S.W.2d 607 (1987).
Stump v.
There is no
similarity between those and similar cases and the case at bar.
Inasmuch as Self and his counsel were informed of the trial date
over five months in advance we detect no abuse of discretion in the
denial of Self's motion for a continuance.
The second issue raised by Self relates to the trial
court's refusal to permit testimony regarding statements allegedly
made to him by his counsel.
Self failed to put the proposed
testimony in the record by way of avowal, leaving us to speculate
as to its admissibility and materiality.
Ky. R. Crim. Proc. (RCr)
9.52, entitled "Avowals," provides, in pertinent part, that:
In an action tried by a jury, if an objection to a
4
question propounded to a witness is sustained by the
court, upon request of the examining attorney the witness
may make a specific offer of his answer to the question.
The court shall require the offer to be made out of the
hearing of the jury.
The court may add such other or
further statement as clearly shows the character of the
evidence, the form in which it was offered, the objection
made, and the ruling thereon.
In Cain v. Commonwealth, Ky., 554 S.W.2d 369, 375 (1977),
the Supreme Court said that:
The one other point made by Cain and Morrow was not
preserved for review.
When the trial court would not
permit counsel to cross-examine William Hayes on the
subject of what kind of a deal had been made with the
Commonwealth
in
his
son
Robert's
case,
the
proper
procedure was to move that the examination be conducted
by way of avowal outside the hearing of the jury.
RCr 9.52.
Cf.
The inquiry was, of course, admissible to
discover possible bias on the part of the witness, and
the trial court erred in disallowing it, but without an
avowal
to
show
what
a
witness
would
have
said
an
appellate court has no basis for determining whether an
error
in
excluding
his
prejudicial.
5
proffered
testimony
was
Because Self failed to offer the evidence by way of
avowal, we are unable to determine whether the trial court's
refusal to let him testify as to what his counsel had told him was
hearsay or whether it falls within some exception to the rule
precluding the introduction of hearsay evidence.
we
cannot
determine
whether
the
exclusion
In like manner,
of
the
evidence
prejudiced Self's defense. See RCr 9.24 (harmless errors are to be
disregarded and are not a ground for disturbing a judgment of
conviction).
Therefore, this claimed error cannot form the basis
for reversal of the judgment of conviction.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, Kentucky
A. B. Chandler III
Attorney General
R. Evelyn Freer
Assistant Attorney General
Frankfort, Kentucky
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