JOHN WAYNE COLLINS V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : JUNE 17, 2010
NOT TO BE PUBLISHED
Sixyrrmr C~Vurf of ~rufurhv
2008-SC-000107-MR
JOHN WAYNE COLLINS
APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, SPECIAL JUDGE
NO . 2007-CR-00804
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
John Wayne Collins appeals as a matter of right from a judgment of the
Warren Circuit Court convicting him of two counts of murder and imposing a
sentence of life without the possibility of parole for a minimum of twenty-five
years for each count. A kidnapping charge was dismissed by the trial court on
Appellant's motion for directed verdict. The charges against Appellant alleged
that he shot and killed Stevie Collins and that, several days later, Appellant
shot and killed Christa Wilson, who had been one of the witnesses to the
murder of Stevie Collins . Although the crimes occurred in Clay County, the
inability to seat an impartial jury there resulted in a transfer of the case to
Warren Circuit Court.
On appeal, Appellant asserts 1) that he was prejudiced by joinder of the
two murder charges; 2) that he should have been granted a mistrial after a
witness improperly commented on a prior assault; 3) that the erroneous
admission of hearsay statements attributed to Appellant's father constituted
reversible error; and 4) that allowing the wife of one of the victims to remain in
the courtroom as a "victim's representative" violated Appellant's due process
rights . As Appellant's assertions of error do not merit relief, we affirm the trial
court's judgment .
RELEVANT FACTS
On October 10, 2004, Appellant and his girlfriend, Christa Wilson, were
visiting Appellant's father, Harold Wayne Collins, and then-stepmother, April
Sizemore Collins. Another friend, Natasha Saylor, was also present. Everyone
was on the porch of the home, visiting and drinking, when Stevie Collins pulled
into the driveway, exited his vehicle and approached the porch. Stevie Collins
extended an invitation for them to accompany him to church, and Appellant's
father invited Stevie into the house . Appellant's father then shot Stevie in the
face, whereupon Stevie fell to the floor and began pleading for his life .
Appellant told his father that they could not let Stevie leave there . Appellant's
father agreed and instructed Appellant to finish the job . Appellant retrieved his
own gun and shot Stevie seven or eight times more, killing Stevie. A possible
explanation for Stevie Collins's murder was revealed at trial when witnesses,
including Appellant's uncle, Joe B . Collins, testified that his brother,
Appellant's developmentally disabled uncle, had been murdered and
dismembered in 1997, and that it was believed that Stevie Collins was
responsible for the uncle's murder. After the shooting, the group left in three
different vehicles and met up again at a relative's house in Henry County,
where they continued to drink and sleep.
Meanwhile, police were dispatched to the murder scene . Kentucky State
Police Sergeant, John Yates, one of the investigating officers, testified that one
9mm round was discovered on the front porch and eight SKS rounds were
found in the yard on either side of the porch. Later, when Appellant's father
was arrested, a 9mm handgun was retrieved from his vehicle . Ammunition
fitting the description of the ammunition retrieved from Stevie Collins's body
was found in Appellant's vehicle . However, lab results on the weapons were
inconclusive .
Although Appellant's girlfriend, Christa Wilson, Appellant's stepmother,
April Sizemore Collins, and Natasha Saylor all repeatedly denied any knowledge
of Stevie Collins's murder during the initial police investigation, both Natasha
and April testified at trial to a substantially similar version of events, consistent
with the factual summary set out hereinabove . Both also testified that they
initially lied to the police because they had been threatened not to speak of
Stevie Collins's shooting. April had been threatened by her then-husband,
Appellant's father, while Natasha had been threatened by both Appellant and
his father.
Forty days after Stevie Collins was murdered, the body of Christa Wilson
was found face down in a creek . She died from a gunshot wound to the head .
Christa had last been seen with Appellant. Paint that was discovered on a rock
near Christa's body appeared to have been the result of a vehicle scraping the
rock, and Appellant's vehicle appeared to have been damaged in the rear
bumper area. A sample of the paint was compared with a paint sample taken
from Appellant's vehicle, the one he was driving when Christa was last seen
with him . At trial, a forensic science specialist for the Kentucky State Police
(KSP) and a defense expert witness testified concerning the results. The KSP
specialist testified that the paint layer from the rock sample was identical to
the paint layer from Appellant's vehicle in all areas, i.e., color, type, structure,
texture, and elemental composition . The defense expert testified that the
substrata of the paint samples differed in thickness and that the bottom layer
did not match . For this reason, the defense expert disagreed that the paint
samples were identical, but he did admit that the paint samples were extremely
similar. Further, the defense expert explained that paint layer thickness varies
across each vehicle and, in fact, two samples taken from Appellant's vehicle
varied in thickness. He also testified that the difference in substrates could be
the result of previous repairs made to the vehicle .
Ultimately, Appellant was tried and convicted for both the murder of
Stevie Collins and the murder of Christa Wilson . Appellant had, initially, been
indicted for Stevie Collins's murder. While Appellant was awaiting trial on that
charge, he was indicted for the kidnapping and murder of Christa Wilson . As a
jury was being selected for the Stevie Collins's murder, the Commonwealth
moved to consolidate the two cases . Over Appellant's objection, the trial court
granted consolidation, but gave Appellant a continuance . The Commonwealth
filed a notice of intent to seek the death penalty based upon intentional killing
and multiple deaths. Subsequently, Appellant moved to sever the offenses,
arguing that his option to testify at trial was compromised by joinder given his
conflicting theories of defense. The trial court denied the motion, concluding
that evidence in each case would presumably be admissible in the other. As
stated above, when an impartial jury could not be seated in Clay County, the
case was transferred to the Warren Circuit Court. Appellant renewed his
motion to sever after transfer, but the Warren Circuit Court also concluded
that joinder was appropriate, and denied the motion to sever.
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion By Refusing to Sever the
Two Murder Charges.
Appellant contends that the trial court committed reversible error by
refusing to sever the two murder charges against him . This argument was
properly preserved by Appellant's timely objection to consolidation of the
charges and by his subsequent motions to sever . We review the denial of a
motion to sever for abuse of discretion . Debruler v. Commonwealth, 231 S .W.3d
752 (Ky. 2007) ; Roark v. Commonwealth, 90 S .W.3d 24 (Ky . 2002), and we will
not grant relief unless the refusal to sever prejudiced the defendant. Parker v.
Commonwealth, 291 S.W.3d 647, 657 (Ky. 2009) .
Kentucky Rule of Criminal Procedure RCr 9 .12 permits two or more
indictments to be consolidated for trial if joinder of the offenses in a single
indictment would have been proper under RCr 6.18 . That rule permits
offenses to be joined where "the offenses are of the same or similar character or
are based on the same acts or transactions connected together or constituting
part of a common scheme or plan." However, RCr 9 .16 requires a trial court to
order separate trials "[i]f it appears that a defendant or the Commonwealth is
or will be prejudiced by a joinder of offenses[ .]" This Court has recognized that
"`prejudice' is a relative term" and, in the context of a criminal proceeding,
means only that which is unnecessary or unreasonably hurtful, given that
having to stand trial is, itself, inherently prejudicial . Ware v. Commonwealth,
537 S.W.2d 174, 176 (Ky . 1976) ; Romans v. Commonwealth, 547 S.W .2d 128,
131 (Ky. 1977) .
Throughout these proceedings, Appellant has argued a particular
manner in which he was prejudiced by joinder of the charges ; namely, that his
right to testify in his own defense was compromised . While Appellant wished to
testify in support of his claim ofjustification for Stevie Collins's murder, he
wanted to invoke his privilege not to testify in Christa Wilson's murder. This
issue has not been much addressed in our cases. The federal courts, however,
under their similar rules of joinder and severance, have noted that, while
courts zealously guard a defendant's Fifth Amendment right not to testify at all,
"the case law is less protective of a defendant's right to testify selectively."
United States v. Fenton, 367 F.3d 14, 22
(1St
Cir. 2004) . A defendant who
argues for severance on the basis of selective testimony "must make a
`persuasive and detailed showing regarding the testimony he would give on the
one count he wishes severed and the reason he cannot testify on the other
counts.' United States v. McCarther, 596 F.3d 438, 443 (8th Cir. 2010) (quoting
United States v. Possick, 849 F.2d 332, 338 (8th Cir . 1988)) . The United States
Circuit Court for the Sixth Circuit has held that severance is not required
unless the defendant "`makes a convincing showing that he has both important
testimony to give concerning one count and a strong need to refrain from
testifying on the other."' United States v. Bowker, 372 F.3d 365, 385 (6th Cir .
2004), vacated on other grounds, 543 U .S . 1182 (2005) (quoting United States v.
Martin, 18 F.3d 1515, 1518-19 (10th Cir. 1994)) . Otherwise, "severance would
be available to a defendant virtually on demand ." Fenton, 367 F .3d at 23 .
This Court reached a similar conclusion in Owens v. Commonwealth, 572
S .W.2d 415, 416 (Ky. 1977) :
[Defendant] argues that he was confounded in his
defense for the reason he wished to testify as to one
charge, but not the others . . . . This argument in the
absence of other compelling factors ordinarily is not
sufficient to warrant a severance. Otherwise, it would
have the effect of nullifying the provisions of RCr 9 .12,
consolidation of offenses for trial.
Here, Appellant has not made a persuasive and detailed showing of
"compelling factors" that would justify his selective testimony. He has not
shown that his testimony regarding Stevie Collins's murder was vital, as he
was able to assert his justification defense through other witnesses who
testified to the victim's alleged involvement in the murder of Appellant's uncle.
And he has made no showing of a strong need to refrain from testifying with
respect to Christa's murder . See, e.g., Bowker, supra, and McCarther, supra.
The trial court did not abuse its discretion, therefore, by denying Appellant's
severance motion on the ground of selective testimony.
Nor was severance required on the ground that the two murders were not
sufficiently related. A primary test for determining whether undue prejudice
will result from a joinder of offenses is whether evidence necessary to prove one
offense would be admissible in a trial of the other offense . Roark v.
Commonwealth, supra. As noted, a trial court's decision to join offenses related
in this way will not be disturbed absent an abuse of discretion . Debruler v.
Commonwealth, supra; Roark, supra. We agree with the Commonwealth that
there was no abuse of discretion here, because the two murders were based on
"transactions connected together." RCr 6.18 . 1 Clearly, evidence of Stevie
The dissent focuses on the fact that RCr 6 .18 authorizes joinder of two offenses
only if "the offenses are of the same or similar character or are based on the same
acts or transactions connected together or constituting parts of a common scheme
or plan," but says nothing about the propriety of joinder hinging on whether it
would be prejudicial or not. The dissent's emphasis on RCr 6.18 misconceives our
standard of review . If we reviewed severance rulings de novo, then we would indeed
begin where the trial court begins and ask anew whether RCr 6.18's conditions had
been met. In fact, however, "we may only reverse a trial court's joinder decision
upon `a showing of prejudice and clear abuse of discretion ."' Parker v.
Commonwealth, 291 S .W.3d 647, 657 (Ky . 2009) (quoting from Jackson v.
Commonwealth, 20 S .W.3d 906, 908 (Ky. 2000)) . This is why our severance cases
almost uniformly begin and end with an analysis of prejudice and is likely why the
case upon which the dissent relies, Sebastian v. Commonwealth, 623 S.W.2d 880
(Ky. 1981), has not been cited a single time in this context in the nearly thirty years
since it was decided . Under our standard of review, a trial court's misapplication of
RCr 6 .18 that did not result in prejudice to the defendant would amount at most to
a harmless error . Moreover, when considering the trial court's application of RCr
6 .18, the question on review is not whether we think the joined offenses "are of the
same or similar character or are based on the same acts or transactions connected
together or constituting parts of a common scheme or plan," but rather whether a
reasonable person could have so concluded. The dissent thinks not, apparently,
but in arriving at that conclusion it errs in asserting that the evidence before the
trial court contained nothing to suggest that Appellant's motivation "was in any way
connected to the murder of Steve Collins ." On the contrary, in making its ruling the
trial court had before it the Commonwealth's representations, which the defense did
not dispute, that Christa Wilson and two other women witnessed Appellant murder
Steve Collins, which fact alone connects the two crimes and permits a reasonable
inference of motive . The court also heard that shortly prior to her death Wilson
confided to a friend that Appellant had threatened her and warned her not to
Collins's murder would have been admissible in a separate trial of Christa
Wilson's murder, since the alleged motive for the second murder was
Appellant's desire to cover up the first murder by eliminating one who had
witnessed it. KRE 404(b) (evidence of other bad acts is admissible to prove
motive .); Tucker v. Commonwealth, 916 S .W .2d 181 (Ky. 1996) (evidence that
defendant had shot a witness of a prior crime was admissible to show that
charged shooting was similarly motivated.) . Similarly, evidence of Christa's
murder would have been admissible in a separate trial of Stevie Collins's
murder, since evidence that one has attempted to cover up a crime is
circumstantial proof of one's consciousness of guilt regarding that crime . KRE
404(b) (evidence of other bad acts is admissible to prove intent.) ; Major v.
Commonwealth, 177 S.W .3d 700 (Ky. 2005) (evidence that defendant beat a
potential witness was admissible as proof of consciousness of guilt.) ; Foley v.
Commonwealth, 942 S .W.2d 876, 887 (Ky . 1996) ("Any attempt to suppress a
witness', testimony . . . is evidence tending to show [a consciousness of] guilt.") .
The trial court did not abuse its discretion, therefore, by deeming the two
murders sufficiently related to be tried together.
divulge what she knew and that she was afraid of him . Further, the court heard
that after Wilson's murder, another of the women who witnessed Steve Collins's
murder was brutally assaulted and left for dead by Appellant's close relatives . The
Commonwealth's theory of Christa's murder, therefore, was hardly spun out of
whole cloth, as the dissent suggests, and the trial court's conclusion that the two
murders were transactions sufficiently "connected together" to satisfy RCr 6 .18 was
not arbitrary or unreasonable.
II. Natasha Saylor's Statement Concerning a Prior Assault Against Her
Did Not Warrant a Mistrial.
Prior to trial, Appellant filed a motion to exclude evidence of Natasha
Saylor's assault. Four male relatives of Appellant had attacked Ms. Saylor and
slashed her throat. Three of her attackers were .convicted and the fourth
negotiated a plea. Although Appellant and his father were referenced
throughout the assault trial, neither was charged for the offense . Accordingly,
Appellant's motion sought to "exclude any mention of or evidence associated
with the Natasha Saylor assault trial, as well as the mention of [the four
individuals charged with the assault] and their respective convictions." 2
At a hearing on the motion, the prosecutor stated that he did not have a
problem with the request "unless they [defense counsel] were to open a door
through their cross-examination . . . we'll stay away from that, we don't have
any problem with it." Defense counsel responded that she intended to probe
Saylor's mental and physical state and that what she was asking the court to
preclude was "her explaining how she got that way . . . I mean I don't know
that I can keep her from expressing her opinion as to why she thinks that
happened ." The Commonwealth responded that if defense counsel's questions
resulted in mention of the assault and resulting injuries, he should be able to
follow up by asking Saylor how she sustained those injuries . Recognizing that
the primary concern was that defense counsel's question would open the door
2 Although the parties repeatedly referred to the case as an "assault trial" even
though the discussions were outside the hearing of the jury, the charges and
resulting convictions consisted of attempted murder and intimidating a witness.
See Hatfield v. Commonwealth, 250 S .W.3d 590 (Ky. 2008) .
10
to the testimony and that the Commonwealth otherwise agreed to the exclusion
of the evidence, the trial court denied the motion and cautioned defense
counsel not to open the door to the very evidence she wished to exclude.
As anticipated, Saylor referenced the assault at trial in response to one of
defense counsel's questions. Specifically, defense counsel asked Saylor, "You
indicated that you were scared for your life . Who were you afraid of?" Saylor
responded, "To be honest, I was afraid of the whole family. That's why I never
told anyone until my throat got cut ." Defense counsel immediately moved for a
mistrial. The Commonwealth responded that defense counsel's question
opened the door, while defense counsel contended that Saylor's answer was not
responsive to her question. The trial court denied the request for a mistrial
and defense counsel declined an admonition, opining that it would just draw
more attention to the testimony. The trial court did rule, however, that Saylor's
brief reference to the assault did not open the door for the Commonwealth to
pursue the matter. The matter was not mentioned again and it was never
revealed that the assault had been committed by relatives of Appellant .
Under these circumstances, we cannot agree with Appellant's contention
that Saylor's comment was grounds for a mistrial . "A mistrial is an extreme
remedy and should be resorted to only when there appears in the record a
manifest necessity for such an action or an urgent or real necessity." Graves,
285 S.W .3d 734, 737 (Ky. 2009) (quoting Bray v. Commonwealth, 177 S .W.3d
741, 752 (Ky. 2005)) . The trial court did not abuse its discretion in refusing to
declare a mistrial.
III. The Admission of Hearsay Statements Attributed to Harold Wayne
Collins Did Not Constitute Reversible Error
During direct examination, April Sizemore Collins referenced a message
that Appellant's father, Harold Wayne Collins, had left on her cell phone
voicemail. When she began to repeat the message, "They've already found one
body," defense counsel objected on hearsay grounds. Although the trial court
overruled the objection, the Commonwealth instructed April to refrain from
repeating the contents of any threats and to merely answer whether she had
been threatened . On cross-examination, however, defense counsel elicited the
content of the voicemail. Specifically, defense counsel asked April, "Harold
Wayne told you that they'd already found one body up on Hector, and asked
you if you wanted to be next, didn't he?" April responded affirmatively and
defense counsel continued, "And that's where Christa Gail Wilson's body was
found wasn't it?" Again, April answered affirmatively.
Under these circumstances, we must agree with the Commonwealth that
defense counsel on cross-examination opened a door that had been willingly
closed by the Commonwealth . Appellant may not argue error in admission of
testimony that he intentionally elicited .
IV. Allowing the Victim's Wife to Remain in the Courtroom Did Not
Constitute Reversible Error.
Upon the request of a party, KRE 615 mandates that the trial court
exclude witnesses from the courtroom except when they are testifying .
However, the Rule does not authorize the exclusion of 1) a party; 2) "[aln officer
or employee of a party which is not a natural person designated as its
12
representative by its attorney;" or 3) "[a] person whose presence is shown by a
party to be essential to the presentation of the party's cause." KRE 615 .
Commonly, a lead detective or investigator is allowed to remain in the
courtroom under the second exception . Justice v. Commonwealth, 987 S.W .2d
306 (Ky.-1998) ; Dillingham v. Commonwealth, 995 S .W .2d 377 (Ky . 1999) . In
this case, two primary detectives remained in the courtroom without objection .
The Commonwealth also requested that Stevie Collins's widow, Donna Collins,
be allowed to remain in the courtroom as a "victim's representative ." Although
Appellant initially objected, both parties expressed satisfaction when the trial
court ruled that Donna Collins could remain in the courtroom only on the
condition that the Commonwealth minimize her exposure to other witnesses'
testimony by calling her promptly. Although the Commonwealth did not want
to call the victim's widow as his first witness, he did agree that she would be
his second or third witness. At this point, the record reveals that Appellant
waived any objection to Donna Collins remaining in the courtroom.
Subsequently, however, the Commonwealth informed the court that
because it did not want to subject Donna Collins to the stress of testifying, it
had decided not to call her at all, but offered for the defense to go ahead and do
so, in keeping with the previous agreement and ruling that she could remain in
the courtroom so long as she testified promptly. Appellant declined to call her
"out-of-order," and instead renewed his objection to Donna Collins's remaining
in the courtroom, reiterating that KRE 615 provided no exemption for a
"victim's representative ." While Appellant's counsel expressed a personal
13
understanding of Donna Collins's desire to remain in the courtroom, she
unequivocally objected on the record. Thus, the Commonwealth's contention
that Appellant waived any objection is unsupported by the record.
This Court addressed a similar factual scenario in Hatfield v.
Commonwealth, supra, wherein the victim's grandfather was permitted to
remain in the courtroom even though he was a witness for the Commonwealth
and did not testify until the, end of the Commonwealth's case-in-chief. The
Court held that a "victim's representative" may fall within the third exception to
KRE 615 in certain circumstances, but there must be a showing that the
witness is "essential to the presentation of the party's cause." KRE 615(3) . The
Hatfield Court reasoned that failure to exclude the victim's grandfather from
the courtroom was error because the required showing had not been made.
Likewise, no such showing was made to justify Donna Collins's presence in the
court. However, the Hatfield Court proceeded to deem the error harmless . In
so doing, the Court distinguished Mills v. Commonwealth, 95 S .W .3d 838 (Ky.
2003), the case upon which Appellant relies. Mills held that permitting a
robbery witness to remain in the courtroom constituted reversible error .
However, the witness in Mills was the sole witness to the robbery, rendering his
credibility of critical importance . In contrast, the testimony of the victim's
grandfather in Hatfield was largely duplicative and was not "of an
indispensable nature to the outcome of the trial." Hatfield, 250 S .W.3d at 595 .
Because the circumstances here are more akin to those in Hatfield, Appellant's
reliance on Mills is unpersuasive.
14
Donna Collins remained in the courtroom for the entire proceeding and
was called as Appellant's first defense witness. She testified that her deceased
husband did not carry guns regularly, that she had never heard that
Appellant's father blamed Stevie for Appellant's uncle's murder, and that Stevie
was right-handed .
Before this Court, Appellant argues that allowing Donna Collins to
remain in the courtroom enabled her to conform or adjust her testimony based
on the testimony she had heard during the Commonwealth's case-in-chief.
Most damning, he argues, was Donna Collins's testimony that Stevie was righthanded, given the prior testimony that gunshot residue was detected on
Stevie's left hand. Nevertheless, we are persuaded that any error was
harmless . Donna Collins did not witness the murder and her testimony was
merely to offer background information on the victim. As the Commonwealth
points out, it is highly unlikely that she would have testified differently had she
not heard the other witnesses, particularly with regard to her testimony that
the victim was right-handed .
CONCLUSION
Appellant has failed to show that he was unduly prejudiced by joinder of
the two murder charges . Further, Appellant is not entitled to relief based on
Natasha Saylor's brief and vague reference to a prior assault. Nor is he entitled
to relief based on hearsay evidence that he elicited . Finally, although the
required showing was not made to support the decision to allow Donna Collins
to remain in the courtroom, the error was harmless . Accordingly, Appellant's
convictions are affirmed.
Minton, C .J. ; Abramson, Cunningham, and Scott, JJ ., concur. Venters,
J ., dissents by separate opinion in which Noble and Schroder, JJ ., join .
VENTERS, J., DISSENTING : I respectfully decline to join the Majority
opinion because I disagree with its conclusion that Appellant's two murder
charges were properly tried together, and therefore I dissent.
The Majority focuses on the question of whether the trial erred in
"refusing to sever the two murder charges." In so doing, it fails to give
appropriate consideration to the more fundamental issue of whether the two
charges were properly joined in the first place. RCr 9 .16 requires severance of
the charges when a joint trial will be prejudicial. However, RCr 9 .16's
requirement for a finding of prejudice has no application whatsoever unless the
requirements of RCr 6 .18 have first been satisfied . Improperly joined charges
cannot be consolidated for trial, notwithstanding the presence or absence of
prejudice . Sebastian v. Commonwealth, 623 S.W . 2d 880, 881 (Ky. 1981) .
The inquiry is controlled by RCr 6.18, which in conjunction with RCr
9 .12, provides that two or more offenses may be joined for a common trial only
if they are "of the same or similar character" or "are based on the same acts or
transactions connected together or constituting parts of a common scheme or
plan." The Majority opinion brushes quickly past the issue, stating simply, "We
agree with the Commonwealth that there was no abuse of discretion here
because the two murders were based on `transactions connected together."
(emphasis added) .
There is no evidence that the Steve Collins' murder was in any way
connected to the murder of Christa Wilson nearly six weeks later. Steve Collins
arrived for an unexpected visit at Harold Collins' home and despite his
apparently friendly approach, was spontaneously shot and wounded by Harold
Collins, whose motivation was alleged to be revenge. Appellant, impelled
simply by the desire to finish what Harold had started, obtained a gun and
shot Collins several more times, killing him . Everyone present at the scene,
including Harold and Appellant, promptly left the area, leaving the body where
it fell at Harold's front porch. Christa, Appellant's girlfriend, who had been
present when Collins was killed, left the scene with Appellant and continued
her relationship with him until her death several weeks later .
While there is sufficient circumstantial evidence to conclude that
Appellant killed Christa, the only thing that connects these two crimes is the
Commonwealth's supposition, its theory, on why she was killed . There is
absolutely no evidence that suggests his motivation was in any way connected
to the murder of Steve Collins. The Commonwealth's theory is a mere possible
explanation with no evidentiary link that connects together the two murders .
The murder of a young woman at the hands of her boyfriend is, unfortunately,
an all too common occurrence and the proof that Appellant did it is hardly
dependant upon the motivation theorized by the Commonwealth. I am aware
of no authority in the form of appellate decisions or otherwise, that condones
17
the joinder of dissimilar crimes for a common trial simply because it is the
Commonwealth's theory, unsupported by any evidentiary link, that the two
crimes are "transactions connected together." The only connection between
them is that Appellant was charged with both. Thus, by the rationale of the
majority opinion, two charges against a single defendant may always be
consolidated for a joint trial so long as the Commonwealth's subjective theory,
rather than its objective evidence, supplies the connecting link. For the same
reasons, the two murders cannot reasonably be seen as parts of "a common
scheme or plan."
The Commonwealth's whole theory of the case precludes joinder on the
grounds that the two murders were of the "same or similar character ." The
Steve Collins' murder was an unplanned spontaneous event, instigated by
another (Harold) for revenge, in which Appellant subsequently took a
subordinate but decisive role. According to the Commonwealth's theory, and
not the Commonwealth's evidence, Christa's murder was premeditated to
eliminate a witness. No one even suggests that two murders were the result of
the "the same acts ."
The most frequently stated interpretation of proper joinder under of RCr
6 .18 is found in the cases cited in the Majority opinion3 , and it holds that
joinder is proper when the two crimes are closely related in character,
circumstance and time. The two murders involved here conform to none of
3 Debruler v. Commonwealth, 231 S.W.3d 752, 760 (Ky. 2007) and Tucker v.
Commonwealth, 916 S.W.2d 181, 184 (Ky. 1996) (reversed on other grounds in
Lanham v. Commonwealth, 171 S.W.3d 14 (Ky.2005)) .
18
those factors . Joining them for trial with no evidentiary connection between
them was not authorized by the Rules of Criminal Procedure. Moreover,
Appellant was deprived of a fair trial by the inherently prejudicial joinder of two
crimes that were not closely related in character, circumstance or time.
The premise for the majority's conclusion that Appellant was not
prejudiced by the last-minute decision to try him simultaneously for two
murders instead of one rests upon its conception that "prejudice is a relative
term." It completes the analysis with a circular argument and an illusory
justification for the joinder. The majority reasons: Because it was proper to try
Appellant for both murders simultaneously, he was not unnecessarily or
unreasonably prejudiced ; because he was not prejudiced by the trial, the two
murder charges were properly consolidated.
Noble and Schroder, JJ ., join.
COUNSEL FOR APPELLANT:
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
19
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.