JOHN MCGUFFIN v. COMMONWEALTH OF KENTUCKYAnnotate this Case
February 26, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM MONARCH, JUDGE
ACTION NO. 96-CR-0043
COMMONWEALTH OF KENTUCKY
** ** ** ** **
DYCHE, EMBERTON, AND JOHNSON, JUDGES.
John McGuffin (McGuffin) appeals from a judgment
entered by the Grayson Circuit Court on November 8, 1996, that
convicted him of assault in the first degree in violation of
Kentucky Revised Statutes 508.010 and sentenced him to prison for
a term of twelve years.
On May 31, 1996, McGuffin was in his car in Caneyville,
Kentucky, when Jeremy Adam Parks (Parks), a passenger in a truck
moving in the opposite direction, gave McGuffin an offensive hand
McGuffin turned his vehicle around and followed the
truck to its destination, the home of Brad Smith (Smith).
McGuffin asked who had made the gesture and Parks responded that
McGuffin invited Parks to go to another location where
the two of them could fight, but Parks declined and asked
McGuffin to leave.
When McGuffin refused to leave, Parks took
several swings at him through McGuffin's car window and landed at
least one of them on McGuffin's left eye.
McGuffin drove to the home of Dewayne McGuffin
(Dewayne), his father.
He was upset and told his father about
his altercation with Parks.
Dewayne and various family members
and friends were in the midst of planning a cookout.
to McGuffin and Dewayne, the two of them, a friend, Clifford
Morris (Morris), and Morris' girlfriend, Arlene Hayes, drove into
Caneyville to get some bread and soft drinks for the party.
After driving around Caneyville for a while, ostensibly
looking for McGuffin's girlfriend, Nancy Lampton, and an open
grocery store, the four ended up at a gasoline station/food mart
where they ran into Parks and Smith.
There was conflicting evidence as to which of the
participants started this round of bickering.
in the shoulder with a bumper jack.
The encounter ended when
Dewayne shot Parks four times with a handgun.
Morris hit Parks
critically injured and eventually had to undergo open heart
He also lost a significant portion of his colon.
McGuffin, Dewayne, and Morris were each indicted on one
count of assault in the first degree and one count of assault in
the second degree.
in October 1996.
The three were tried together before a jury
McGuffin and Dewayne were represented by
Attorney James Maples, who has continued in that capacity
throughout their appeals.
McGuffin testified that it was Parks
who started the argument at the gasoline station and that Dewayne
shot Parks only after Parks obtained a rifle from the seat of
Smith's pick-up truck.
McGuffin acknowledged that he was aware
of the presence of a gun in his vehicle prior to the shooting,
but stated that the gun was still in the vehicle when he got out.
The Commonwealth's witnesses presented a somewhat different
version of events.
Specifically, several witnesses testified
that the McGuffins were the aggressors and that Parks was not
armed at any time during the confrontation.
Both McGuffin and Dewayne were found guilty of assault
in the first degree.
McGuffin received a sentence of twelve
years and Dewayne received a twenty-year sentence.
McGuffin has raised the following five issues in this
(1) whether the trial court erred when during jury
selection it refused to strike for cause Lillian Bratcher,
mother-in-law of the Grayson County Attorney; (2) whether the
trial court erred during jury deliberations when it sua sponte
suggested that the jury look at the medical evidence; (3) whether
the trial court erred in allowing the statement McGuffin gave to
police on the day of the shooting to be admitted into evidence
since the statement was taken while McGuffin was in custody and
after he expressed a desire to speak to his attorney in violation
of his Miranda1 protections; (4) whether the trial court erred in
denying McGuffin's motion for a directed verdict of acquittal;
and (5) whether the cumulative effect of these alleged errors
deprived McGuffin of a fair trial.
The first three issues raised in McGuffin's appeal were
also raised by Dewayne in his direct appeal to the Supreme Court
That Court found no error in the trial court's
failure to strike venireman Bratcher for cause for the reason
that Bratcher's son-in-law was neither a "witness, party,
counsel, or victim such that bias must be implied to the
potential juror", and despite her close relationship to the
county attorney, Bratcher "expressed no bias" in favor of law
Further, the Court determined that the alleged
error concerning the comment made by the trial court during the
jury's deliberation was not preserved for review.
In any event,
the Court stated that it could not see how the comment could
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
McGuffin v. Commonwealth, 96-SC-1042-MR, memorandum opinion of
the Court rendered November 20, 1997, designated "not to be
cause prejudice, and held that if error occurred, it was
In regard to these two issues, McGuffin has not made
any argument that has not already been addressed by the Supreme
Court or which would lead us to reach a different result.
Dewayne also raised in his appeal to the Supreme Court
the issue concerning the admission of a statement given by
McGuffin to the police in violation of McGuffin's Fifth Amendment
right to counsel.
The Supreme Court did not address the merits
of that issue but instead held that Dewayne lacked standing to
assert this error as such rights are "personal and cannot be
asserted by third parties."
We will discuss the merits of that
issue and our determination that no reversible error occurred.
On the day Parks was shot, McGuffin and Dewayne were
taken into custody and made aware of their Miranda rights.
McGuffin testified that Officer Payton, the chief investigating
officer, asked him three times if he wanted to give a statement,
and that all three times he told Officer Payton that he did not
want to give a statement until he had an opportunity to talk with
McGuffin testified that on the fourth request for a
The facts underpinning this issue are as follows: After the
jury had been deliberating for some time, they returned to the
court room and requested to be shown the victim's scars. The
judge told them he could not have Parks remove his shirt at that
point in the proceeding, but that he could replay that portion of
the video where Parks undressed during his direct examination.
The trial judge started to suggest that the jury could find the
same information in the medical records. However, before he
could finish his sentence, the video of Parks began.
statement he agreed to give one because Officer Payton promised
that if he did so, he would be able to go home.
Although the statement was provided to defense counsel
some time before trial, there was no pre-trial motion to suppress
In the Commonwealth's case-in-chief, Officer
Payton was asked whether McGuffin gave a statement on May 31,
1996, and whether he admitted being at the scene at the time of
No objection was made to these questions, and
Officer Payton answered affirmatively.
of McGuffin while he testified in his own defense, the
Commonwealth's Attorney attempted to impeach him with portions of
the statement that conflicted with his trial testimony.
at this juncture that a motion to suppress was made.
In a hearing held in chambers, Officer Payton's
testimony essentially paralleled that of McGuffin.
Payton acknowledged that more than once McGuffin expressed a
desire to confer with an attorney.
Officer Payton stated that he
believed that McGuffin had talked to an attorney on the phone in
the room in which McGuffin was being detained.
difference between Officer Payton's version of events and
McGuffin's is that Officer Payton remembered asking McGuffin only
three times if he was ready to give a statement, not four.
McGuffin moved for a dismissal of the charges, or in the
alternative, for a mistrial based upon the introduction of the
statement taken in violation of his right to counsel.
the trial court found that McGuffin did not sufficiently assert
his right to counsel so as to create an Edwards4 problem and
ruled that the statement was admissible.
In light of the undisputed factual scenario of
McGuffin's custodial interrogation presented to the trial court,
we disagree with the trial court's ruling that the issue does not
squarely fall within the parameters of Edwards v. Arizona, supra.
In Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d
293 (1990), the Court discussed the Miranda-Edwards Fifth
Amendment Right to Counsel as follows:
Miranda, of course, required police
interrogators to advise criminal
suspects of their rights under the Fifth
and Fourteenth Amendments and set forth
a now-familiar set of suggested
instructions for that purpose. Although
recognizing that the Miranda rules would
result in the exclusion of some
voluntary and reliable statements, the
Court imposed these "prophylactic
standards" on the States, . . . to
safeguard the Fifth Amendment privilege
against self-incrimination. Edwards v.
Arizona added a second layer of
protection to the Miranda rules, holding
that "when an accused has invoked his
right to have counsel present during
custodial interrogation, a valid waiver
of that right cannot be established by
showing only that he responded to
further police-initiated custodial
interrogation even if he has been
advised of his rights.” . . . Edwards
thus established another prophylactic
rule designed to prevent police from
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
badgering a defendant into waiving his
previously asserted Miranda rights.
Id., 494 U.S. at 350, 108 L.Ed.2d at 302 (citations omitted).
See also Linehan v. Commonwealth, Ky., 878 S.W.2d 8 (1994).
The protections provided by Miranda and Edwards are
designed exactly to apply in situations like the one in which
McGuffin found himself.
Clearly, McGuffin's statement should not
have been used by the Commonwealth in presenting its case-inchief.
However, we cannot fault the trial court for the fact
that McGuffin's statement was introduced during the
Commonwealth's case-in-chief as there was no motion to suppress
the statement or any objection made to the testimony elicited
from Officer Payton at that time.
In any event, since the
information concerning the statement introduced during the
Commonwealth's case-in-chief was so limited and not disputed
(that is, that McGuffin gave a statement and admitted being at
the scene of the crime—facts he has never denied), any error
would be harmless.
It was during the cross-examination of McGuffin that
the statement's prejudicial effect became apparent.
when asked to explain certain inconsistencies, admitted lying to
the police about the identity of the person he was going to meet
in Caneyville that day.
Also, he admitted that the statement was
not accurate in regard to his original encounter with Parks.5
In his statement, McGuffin omitted any reference to the hand
Further, McGuffin claimed that, contrary to his statement, Parks
did not drop the rifle he was holding, but merely fell back into
the truck with it.
While pursuant to a proper motion to suppress the
statement would not have been admissible during the
Commonwealth's case-in-chief, the Commonwealth is correct that it
was proper to admit the statement to impeach McGuffin's direct
Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28
L.Ed.2d 1 (1971), forecloses any argument that statements taken
in violation of Miranda are inadmissible for impeachment purposes
Having voluntarily taken the stand,
petitioner was under an obligation to
speak truthfully and accurately, and the
prosecution here did no more than
utilize the traditional truth-testing
devices of the adversary process. Had
inconsistent statements been made by the
accused to some third person, it could
hardly be contended that the conflict
could not be laid before the jury by way
of cross-examination and impeachment.
Id., 401 U.S. at 225-226, 28 L.Ed.2d at 4-5 (footnote omitted).
See also Campbell v. Commonwealth, Ky., 788 S.W.2d 260, 264
(1990); Murphy v. Commonwealth, Ky., 652 S.W.2d 69, 73-74 (1983).
Thus, although the trial court erred in its analysis of the
gesture made by Parks and his response thereto. Instead, he
stated that he was stopped at a parking lot waiting for a friend
when Parks approached his car and hit him in the face three times
with brass knuckles.
issue, it was not error to allow the Commonwealth to use the
statement during its cross-examination of McGuffin.
Finally, we find no error in the trial court's refusal
to direct a verdict of acquittal on the charge of assault in the
There was evidence from which a reasonable jury
could believe that McGuffin was upset and angry about the fight
with Parks earlier that day, that he went to Dewayne’s house to
get a weapon to use against Parks, that he directed the search in
Caneyville for Parks, and that he, knowing that Dewayne had a gun
in his pocket, distracted Parks with verbal taunts and otherwise
aided or attempted to aid Dewayne in assaulting Parks.6
testimony of Parks and others shows that McGuffin and Dewayne
approached Parks, stood on opposite sides of him, threatened and
goaded him, and that Dewayne eventually shot him.
standard of our review articulated in Commonwealth v. Benham,
Ky., 816 S.W.2d 186, 187 (1991), it is apparent that there was no
error in this regard.
Accordingly, finding no error, and thus no cumulative
error, the judgment of the Grayson Circuit Court is affirmed.
The indictment under which McGuffin was tried alleged that he
acted in complicity with others in assaulting Parks. See KRS
502.020. The Commonwealth's theory was that McGuffin sought
Dewayne's help and acted in concert with Dewayne to seek revenge
for Parks' conduct earlier in the afternoon of the shooting.
BRIEF AND ORAL ARGUMENT FOR
BRIEF FOR APPELLEE:
Hon. A. B. Chandler, III
Hon. James A. Maples
Hon. Todd D. Ferguson
ORAL ARGUMENT FOR APPELLEE:
Hon. Todd D. Ferguson