ROBERT WHITTEMORE v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 25, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002595-MR
ROBERT WHITTEMORE
v.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
ACTION NO. 02-CR-00178
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
GUIDUGLI, JUDGE:
Robert Whittemore appeals from the judgment of
the Graves Circuit Court reflecting a jury verdict of guilty on
one count each of first-degree possession of a controlled
substance (cocaine) and possession of marijuana.
Whittemore
argues that he was entitled to a change of venue, that the trial
judge should have recused himself, that he should have received
a directed verdict, and that he is entitled to a new trial.
the reasons stated below, we find no error and affirm the
judgment on appeal.
For
On May 20, 2002, the Graves County grand jury indicted
Whittemore on one count each of murder, possession of a
controlled substance (cocaine) and possession of marijuana.
The
indictment came about as a result of a Mayfield police
investigation conducted on October 12, 2001.
Police officer
Donald Worthem went to Whittemore’s residence on that date as a
result of a 911 call.
After entering the residence, Worthem
observed marijuana and marijuana paraphernalia, as well as pill
bottles containing marijuana and crack cocaine.
not present.
Whittemore was
Later that evening after the police were gone,
Whittemore beat his wife, Teresa, to death.
The record indicates that the murder charge was
severed from the drug charges, and trial on the murder charge
was conducted in July 2003.
Whittemore was found guilty of
second-degree manslaughter and sentenced to ten years in prison.
Trial on the drug charges was conducted on September
30, 2003.
Teresa’s brother, Jeff Spraggs, testified that
Whittemore called him on October 12, 2001, and asked him to come
over and call 911.
Spraggs complied, whereupon the police were
summoned and ultimately discovered the marijuana and cocaine.
Spraggs also testified that at the time, Whittemore was married
to Spraggs’ sister, Teresa, and Teresa no longer lived with
Whittemore.
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Officer Worthem testified that as part of his
investigation resulting from the 911 call, he conducted a search
of Whittemore’s residence.
In Whittemore’s bedroom, Worthem
discovered the drugs and drug paraphernalia.
He noted that the
bedroom contained male clothing but no female clothing, and that
the door to the bedroom was padlocked.
Whittemore was not
arrested at the time, as he had fled before Worthem arrived.
At the conclusion of the Commonwealth’s evidence,
Whittemore moved for a directed verdict.
The motion was denied,
at which time the defense rested without presenting evidence.
Whittemore renewed his motion for a directed verdict, which
again was denied.
The jury returned a verdict finding Whittemore guilty
on both counts of the indictment.
Later, during the penalty
phase, the Commonwealth presented evidence that Whittemore had
been convicted of second-degree manslaughter arising from the
beating death of Teresa.1
The jury recommended a sentence of
five years in prison on the cocaine charge, to be served
consecutively to the manslaughter sentence, and one day in
prison for marijuana possession, to be served concurrently.
On October 6, 2003, Whittemore filed a motion for a
new trial.
As a basis for the motion, he argued that the trial
court improperly admitted evidence of prior bad acts at trial,
1
The jury had been made aware of Teresa’s death earlier in the trial when
Spraggs stated that Whittemore killed her.
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i.e., the events resulting in the manslaughter conviction.
The
motion was denied, and Whittemore was sentenced in accordance
with the jury’s recommendation.
This appeal followed.
Whittemore first argues that the trial court
improperly denied his motion for a change of venue.
Prior to
the trial on the drug charges, Whittemore moved for a change of
venue, arguing that the publicity from the first trial made it
impossible for him to receive a fair trial on the drug charges.
He directs our attention to newspaper coverage of the first
trial, which included descriptions of Teresa’s fatal injuries
and statements of her family’s disbelief at the inadequacy of
the 10-year sentence.
He maintains that publicity of the first
trial was so widespread and harmful to his reputation that he
had no opportunity to receive a fair trial on the drug charges
absent a change of venue.
He seeks an order reversing the
judgment on appeal and remanding the matter for a change of
venue and new trial.
We have closely examined the record and the law on
this issue, and find no error in the trial court’s denial of
Whittemore’s motion for a change of venue.
KRS 452.210 states,
When a criminal or penal action is pending
in any Circuit Court, the judge thereof
shall, upon the application of the defendant
or of the state, order the trial to be held
in some adjacent county to which there is no
valid objection, if it appears that the
defendant or the state cannot have a fair
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trial in the county where the prosecution is
pending. If the judge is satisfied that a
fair trial cannot be had in an adjacent
county, he may order the trial to be had in
the most convenient county in which a fair
trial can be had.
The mere fact that jurors may have read about a case is not
sufficient to sustain a motion for change of venue, absent a
showing that there is a reasonable likelihood that the accounts
have prejudiced the defendant.2
Prejudice must be shown unless
it may be clearly implied in a given case from the totality of
the circumstances.3
On motion for change of venue based on
pretrial publicity, the issue is whether public opinion is so
aroused as to preclude a fair trial.4
In the matter at bar, Whittemore relies heavily on two
newspaper articles in support of his claim that adverse pretrial publicity prevented him from receiving a fair trial in
Graves County.
One of the articles was published a few weeks
prior to trial in the matter at bar, and the other was published
approximately two months before.
It is uncontroverted that
Whittemore’s murder trial resulted in adverse publicity, and
that this publicity occurred in the weeks preceding his drug
2
Thurman v. Commonwealth, 975 S.W.2d 888 (Ky. 1998).
3
Id.
4
Foley v. Commonwealth, 942 S.W.2d 846 (Ky. 1996).
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possession trial.
Pretrial publicity, taken alone, however, is
not a sufficient basis for requiring a change of venue.5
A more objective and telling indicator of alleged jury
pool bias is found by polling the petit jury members.
The
record herein indicates that about 10 of 66 potential jurors
indicated that they had heard of Whittemore’s first trial, and 4
of 66 had formed an opinion as to Whittemore’s guilt.
These 4
members were dismissed, leaving 6 of 62 who were aware of
Whittemore’s first trial but who stated that they had not formed
an opinion as to his guilt in the matter at bar.
It is not
clear if any of these prospective jurors went on to be seated as
jury members at trial, but it is worth noting that Whittemore
did not challenge any of the prospective jurors for cause.
When considering a motion for change of venue, the
court must look to the totality of the circumstances surrounding
the case to determine if a change of venue is required.6
On
appeal, our duty is not to examine the motion de novo, but to
determine whether Whittemore has overcome the strong presumption
that the trial judge’s ruling was correct.7
Having examined the
totality of the circumstances as they existed prior to trial,
and considering that the vast majority of the jurors evidenced
5
Thurmond, supra.
6
Thurmond, supra.
7
City of Louisville v. Allen, 385 S.W.2d 179 (Ky. 1964).
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no knowledge of Whittemore’s first trial, we cannot conclude
that the Graves Circuit Court committed reversible error in
denying Whittemore’s motion for a change of venue.
Whittemore next argues that the trial court erred in
failing to grant a new trial after Spraggs testified that
Whittemore had engaged in trafficking in marijuana on the day of
the charged offense and had killed Spraggs’ sister.
The parties
had agreed not to elicit testimony regarding Whittemore’s
alleged drug sales, and Whittemore contends this testimony
violated the agreement and entitles him to a new trial.
As to
Spraggs’ statement that Whittemore killed Spraggs’ sister,
Whittemore concedes that the issue is not preserved but argues
that the admission of this evidence constitutes palpable error.
Whittemore maintains that there exists in the law a general
prohibition against the use of evidence of other crimes or bad
acts to prove the crime charged.
He argues that the
Commonwealth’s violation of this principle, through Spraggs’
testimony, entitles him to a new trial.
We find no error in the trial court’s denial of
Whittemore’s motion for a new trial.
A new trial should be
granted only to avoid manifest injustice,8 and should not be
granted where the admission of impermissible evidence can be
8
Gould v. Charlton Company, Inc., 929 S.W.2d 734 (Ky. 1996).
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cured with an admonition.9
While Spraggs’ utterance that
Whittemore sold marijuana to him arguably was improperly
admitted, it occurred without the Commonwealth’s solicitation.
More importantly, when taken in the context of all of the
evidence against Whittemore, including Spraggs’ other testimony,
the testimony of Worthem, and the physical evidence, we cannot
conclude that Whittemore was subjected to manifest injustice by
Spraggs’ utterance.
Whittemore did not preserve the claim of error arising
from Spraggs’ statement that Whittemore killed Spraggs’ sister,
and it does not rise to the level of palpable error.
“If upon a
consideration of the whole case the Court of Appeals does not
believe that there is a substantial possibility that the result
would have been any different, the irregularity will be held
nonprejudicial.”10
Again, considering the entire case against
Whittemore, we do not believe that a substantial possibility
exists that Whittemore would have been found not guilty but for
Spraggs’ utterance.
Whittemore’s third argument is that he was denied due
process and a fair trial when the trial judge improperly failed
to recuse himself pursuant to KRS 26A.015.
Whittemore notes
that Judge John Daughaday not only presided over Whittemore’s
9
10
Graves v. Commonwealth, 17 S.W.3d 858 (Ky. 2000).
Abernathy v. Commonwealth, 439 S.W.2d 949 (Ky. 1969).
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murder trial, but made statements during the sentencing phase of
the first trial that Whittemore contends demonstrates Judge
Daughaday’s bias against him.
Specifically, Judge Daughaday
stated that he found inconsistencies between Whittemore’s
testimony and the physical evidence.
And in addressing whether
probation was warranted, Judge Daughaday questioned Whittemore’s
truthfulness.
In sum, Whittemore contends that Judge Daughaday
should have recused himself and that Whittemore is entitled to a
new trial.
Whittemore’s argument on this issue is misplaced and
not persuasive.
We find nothing irregular or otherwise improper
in the statements made by Judge Daughaday during sentencing.
the contrary, the trial judge is duty-bound to articulate a
To
legal and factual basis to support the imposition of the
sentence and the decision as to whether the sentence should be
probated.11
The standard for finding judicial bias is very high.
The United States Supreme Court has stated that,
[J]udicial remarks during the course of
a trial that are critical or disapproving
of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not
support a bias or partiality challenge. They
may do so if they reveal an opinion that
derives from an extrajudicial source; and
they will do so if they reveal such a high
degree of favoritism or antagonism as to
11
KRS 533.010.
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make fair judgment impossible.[12]
original.)
(Emphasis
Nothing in the record suggests that the statements
made by Judge Daughaday during sentencing reveal either an
opinion that derives from an extrajudicial source or from a high
degree of favoritism or bias.
Whittemore’s claim of error on
this issue does not form a basis for tampering with the judgment
on appeal.
Lastly, Whittemore argues that the trial court erred
in denying Whittemore’s motion for a directed verdict.
Whittemore contends that the Commonwealth failed to offer any
evidence that Whittemore possessed the cocaine found in the
bedroom.
He notes that Spraggs and Teresa Whittemore were
present in the home on the date at issue, and suggests that the
cocaine could have been placed in the bedroom by either of them.
We find no error on this issue.
As the parties are
aware, Commonwealth v. Benham13 sets forth the standard for
reviewing motions for a directed verdict.
It states that,
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
12
Liteky v. United States, 500 U.S. 540, 555, 114 S.Ct. 1140, 127 L.Ed.2d 474
(1994).
13
816 S.W.2d 186 (Ky. 1991).
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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.
On appellate review, the test of a
directed verdict is, if under the evidence
as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the
defendant is entitled to a directed verdict
of acquittal.[14]
Under the evidence as a whole, it was not clearly
unreasonable for the jury to conclude that Whittemore possessed
the cocaine found in the bedroom.
The cocaine was found at
Whittemore’s residence and in his bedroom, which had a padlock
on the door and which contained only men’s clothing.
Drawing
all fair and reasonable inferences from the evidence in favor of
the Commonwealth, the trial court properly denied Whittemore’s
motion for a directed verdict.
We find no error in this ruling.
For the foregoing reasons, we affirm the judgment of
the Graves Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Misty J. Dugger
Assistant Public Advocate
Department of Public Advocacy
Frankfort, KY
Gregory D. Stumbo
Attorney General
14
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, KY
Id. at 187.
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