BILL FRED HAMILTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: January 29, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS.
1997-CA-000762-MR AND 1997-CA-001230-MR
BILL FRED HAMILTON
v.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 95-CR-000113
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GARDNER, AND MILLER, JUDGES.
MILLER, JUDGE: Bill Fred Hamilton (Hamilton) brings these appeals
from a March 14, 1997 judgment of the Knox Circuit Court.
We
affirm.
On December 8, 1995, Hamilton was indicted on one count
of promoting gambling in the first degree (Ky. Rev. Stat. (KRS)
528.020), one count of possession of alcoholic beverages with
intent to sell in a dry territory (KRS 242.230), and operation of
a place of entertainment without a permit (KRS 231.020).
A jury
trial ensued on February 12, 1997, whereafter, Hamilton was found
guilty of promoting gambling in the first degree and possession
of alcoholic beverages with intent to sell in a dry territory.
On March 14, 1997, he was sentenced to five years' imprisonment
on the former charge and 90 days on the latter.
Hamilton appeals
from this judgment.
Subsequent to sentencing, on March 12, 1997, Hamilton
filed a motion for a new trial. Ky. R. Crim. P. (RCr) 10.06.
motion was denied and Hamilton appealed.
The
On April 18, 1997,
after discovering alleged juror and prosecutorial misconduct,
Hamilton filed a second motion for a new trial.
hearing was held on May 9, 1997.
to support his allegations.
denied the motion.
RCr 10.06.
A
Hamilton called three witnesses
On May 12, 1997, the circuit court
Hamilton filed a second appeal.
The two
appeals were consolidated by this Court.
Hamilton assigns several points of error.
He first
asserts that he was denied a fair trial when three jurors failed
to disclose during voir dire that they had “personal knowledge of
the facts upon which the conviction was based.”
When reviewing
the denial of a motion for new trial, the standard is whether the
trial court abused its discretion.
Copley v. Commonwealth, Ky.,
854 S.W.2d 748 (1993), and Commonwealth v. Littrell, Ky., 677
S.W.2d 881 (1984).
Having reviewed the record and applicable law, we do
not believe the court abused its discretion on this point.
The
gambling and alcohol sales operation were located adjacent to
premises on which two legitimate businesses (a pawnshop and a
flea market) were located.
Hamilton does not allege that the
gambling operation was observable from these other businesses, so
we assume it was not.
The testimony presented by Hamilton’s
witnesses merely reveals that two jurors and one juror’s husband
either conducted business or were observed at one of these
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legitimate businesses.
The testimony also disclosed that one of
said jurors, Reba Hensley, was observed playing a slot machine
which was on sale at the pawnshop.
As it was on display only
because it was for sale, there was no payout.
witnesses were his previous employees.
Two of Hamilton’s
The third witness was
Hamilton’s close friend and owned some portion of the premises in
question.
Noting the witnesses' close ties to Hamilton and
perceiving no misconduct by the jurors, we find no error.
Hamilton further maintains that one of the jurors was a
“first cousin” to the prosecutor, Tom Smith (Smith), thus, he was
denied a fair trial.
We first point out that said juror was not
Smith’s first cousin but rather his father's first cousin.
According to Smith, he has hundreds of relatives and neither he
nor the juror in question was aware of the relationship.
In sum,
we do not believe the trial court abused its discretion in
denying Hamilton’s motion for a new trial based on juror or
prosecutorial misconduct.
Hamilton next complains about the Commonwealth’s
failure to disclose, prior to trial, a letter written by
government witness Mary Lawson (Lawson).
Specifically, he argues
that the letter was exculpatory and as such, the failure to
disclose same resulted in a denial of his due process rights and
denied him a fair trial.
Lawson, who worked with Hamilton at the
gambling operations, gave a taped statement to Detective Fuson,
and implicated Hamilton as the owner and operator of the gambling
operation.
She subsequently wrote a letter to the Commonwealth
Attorney proclaiming that everything she stated in the
aforementioned tape was a lie, that she was intoxicated when she
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made the statement, and that she was coerced into making same.
Hamilton maintains that he was not informed of the existence of
this letter prior to trial.
Nevertheless, during direct
examination by the Commonwealth at trial, Lawson testified to
essentially the same information contained in the letter.
Under
these circumstances we believe our standard of review is whether
the newly discovered evidence, if it had been
known to the jury, would have created a
reasonable doubt as to guilt which would not
otherwise have existed without the evidence.
[United States v.] Agurs 427 U.S. [92] at
112, 96 S.Ct. 2392[, 49 L. Ed. 2d 342(1976)].
Williams v. Commonwealth, Ky., 569 S.W.2d 139, 143-144 (1978).
We are of the opinion that had the letter somehow been ruled
admissible and had the jury been aware of its contents, the
verdict would have remained the same.
We come to this conclusion
because the information contained within the letter was revealed
during Lawson’s testimony.
We do not believe its introduction
would have created reasonable doubt as to Hamilton’s guilt.
Accordingly, we perceive no error on this issue.
Hamilton next purports that the circuit court committed
reversible error when it allowed into evidence Lawson's taped
pre-trial statement and a video of Billy Hamilton’s (Billy)
divorce hearing.
Specifically, he propounds that the proper
foundation was not laid to introduce said items.
Objections
concerning the foundation of evidence must be made at trial and
are waived if not made until a new trial motion.
Commonwealth, Ky., 433 S.W.2d 355 (1968).
Arnold v.
Hamilton first raised
this issue, regarding Lawson’s pre-trial statement, in his motion
for a new trial.
Hence, this point of error was not properly
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preserved for our review.
Hamilton, nevertheless, asks us to
review same under the substantial error rule.
RCr 10.26.
We do
not perceive claimed error to have affected Hamilton’s
substantial rights and, thus, is not palpable.
RCr 10.26 and Ky.
R. Evid. (KRE) 103(e).
Hamilton’s challenge to the admissibility of Billy’s
divorce hearing video, however, was properly preserved.
In
regard thereto, Hamilton asserts that the prosecution did not
properly inquire of Billy concerning the substance of his prior
testimony as required by KRE 613 and Fisher v. Duckworth, Ky.,
738 S.W.2d 810 (1987) and KRE 613.
The purpose behind KRE 613
and the holding in Duckworth is to allow a witness a chance to
explain his prior inconsistent statements.
In the case sub
judice, the record reflects that Billy was given ample
opportunity to explain the discrepancies between his prior
testimony and his trial testimony.
Hence, we are of the opinion
that any error which may have occurred was harmless.
See KRE 103
and RCr 9.24.
Hamilton also claims that the court erred by allowing
the jury to play Lawson’s taped statement during their
deliberations.
As the tape was introduced into evidence, we
believe it was proper for the jury to have and to play it in the
jury room during deliberations.
RCr 9.72.
Hence, we find no
error.
Next, Hamilton advances the theory that he was denied a
fair trial because two witnesses favorable to him were
incarcerated subsequent to giving testimony at trial.
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Out of the
jury’s presence, Lawson was taken into custody because the court
believed there was a risk that she may not appear for sentencing
in a criminal case against her.
Billy, likewise, was taken into
custody out of the jury’s presence.
After hearing the video tape
of Billy’s prior statement under oath and his trial testimony,
the circuit court apparently believed Billy committed blatant
perjury and thus contempt of court.
It is not our duty to pass
judgment on the court’s actions as they pertain to parties not
now before us.
As they relate to Hamilton, however, we fail to
see how he was harmed by the court’s actions as they occurred
outside the presence of the jury and other witnesses.
As such,
we cannot say the court committed reversible error.
Next, Hamilton complains that the circuit court
improperly prohibited one of his witnesses, Faye Knuckles, from
testifying in his behalf.
The rule on separation of witnesses
was invoked by the court prior to the Commonwealth’s opening
statement.
RCr 9.48.
Knuckles, nevertheless, remained in the
courtroom and observed a substantial portion of the proceedings.
When she was called as a witness, the court enforced the rule and
barred her from testifying.
It is well established that it is
within the court’s discretion to prohibit a witness from
testifying after s/he has been exposed to testimony in a case.
Jones v. Commonwealth, Ky., 623 S.W.2d 226 (1981).
Knuckles was
in the courtroom for two days during the trial.
Further, her
proposed testimony was, admittedly, incidental.
We, thus,
perceive no abuse of discretion in the circuit court’s ruling.
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Last, Hamilton insists that the cumulative effect of
the errors resulted in denying him a fair trial.
For the reasons
set forth herein, we reject this argument.
For the foregoing reasons, we affirm the judgment of
the Knox Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Dean
London, KY
A. B. Chandler III
Attorney General
and
Dana M. Todd
Assistant Attorney General
Frankfort, KY
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