CHARLES WAYNE BUSSELL V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED: AUGUST 25, 2011
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CHARLES WAYNE RUSSELL
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW C. SELF, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
On December 2, 1990, Shirley Castle and his wife, Beth, became worried
when his sister, Sue Lail, did not arrive at Sunday church services, as was her
custom. Later that day, the Castles went to Lail's house and found no one
home, though her car was parked in the driveway. A copy of the Saturday,
December 1, 1990, Courier-Journal and a breakfast plate were found lying on
a table. When she didn't appear the following day, the Castles called police.
In Lail's living room trash can, officers found a torn check in the amount
of $50 partially made out to "Charles." They also noticed that the Saturday
mail had not been collected. Lail's housekeeper, Mary Dudley, identified
several items that were missing from the home, including Lail's robe and
slippers, a vacuum cleaner, two rings, and sterling silver flatware. Neighbors
told officers that they had seen Lail's handyman, Charles Bussell, working at
the home on Saturday morning around 11:00 a.m.
Officers interviewed Bussell in the days following Lail's disappearance
and learned of his long relationship with her family. Bussell's father had
worked for Lail's father as a handyman. Bussell himself continued the
relationship after his father died and had worked for Sue Lail directly for about
six years at the time of her disappearance. Bussell regularly performed yard
work and repair jobs around Lail's home.
Bussell told officers that he did some painting and yard work for Lail on
the morning of Saturday, December 1, 1990. When he was finished, at about
12:30 p.m., he went to the house to be paid. Lail wrote him a $200 check,
which accounted for 28 hours worked and the cost of two bags of manure to
finish a compost pile. As she wrote the check, according to Bussell, Lail asked
him to paint a rental property she owned. He agreed to do the job for $350,
but asked for an advance on that work. Lail consented and began to write a
$50 check when Busse11 interrupted her, requesting a larger advance. Lail
handed him the check to tear up and throw in the trash can, then wrote a
second check in the amount of $200. As was her custom, Lail wrote all of the
information regarding the checks in her book. Finally, Bussell asked if he
could borrow her vacuum cleaner, which he had occasionally done in the past.
Lail agreed and Bussell left, placing the vacuum in the back seat of his vehicle.
He then took it to the home of Bertha Chambers, his girlfriend, and left it on
her front porch.
About a week later, police received a call from Kay Bobbett. Bobbett told
officers that Robert Joiner, a friend, had given her a ring that she believed
belonged to Sue Lail. When police questioned Joiner, he confirmed that he had
purchased the ring from Bussell for $25 on the evening of December 1, 1990.
He gave it to Bobbett the same day.
Bussell was arrested on December 14, 1990. Police continued to
investigate Lail's disappearance, searching and taking fiber samples from
Busse11's vehicle. It had a dent on the passenger fender and pieces of bark
under the damaged portion. Police also recovered Lail's vacuum cleaner from
Chambers. Chambers related to police that Bussell had given her the vacuum
as an "early Christmas present" and that he had found it at a flea market.
On February 23, 1991, two juveniles discovered Lail's body in a remote
area of the Western Kentucky Fairgrounds. An autopsy revealed that Lail had
been beaten and strangled. She was found wearing a pink robe and slippers.
Police also discovered that a tree near Lail's body had been recently damaged.
In 1994, Bussell was tried, found guilty of robbery and murder, and
sentenced to death. This Court affirmed the \ conviction on direct appeal.
Bussell v. Commonwealth, 882 S.W.2d 111 (Ky. 1994), cert. denied, 513 U.S.
1174 (1995). In 2005, the Christian Circuit Court granted Russell's RCr 11.42
motion, concluding that he had received ineffective assistance of counsel and
that the Commonwealth had failed to disclose exculpatory evidence. This
Court unanimously upheld that order in Commonwealth v. Bussell, 226 S.W.3d
96, 105 (Ky. 2007).
Busse11 was retried in Christian County in 2008. That trial ended in a
mistrial following a hung jury. He was retried again in 2009 and convicted of
robbery and murder. He was sentenced to life without the possibility of parole
for twenty-five years. Bussell now appeals that conviction as a matter of right.
Ky. Const. § 110(b). He raises five issues for appellate review. For the reasons
set forth herein, we affirm.
Admission of Prior Testimony
Bussell first claims that the trial court improperly admitted the 1991
trial testimony of Joiner and Bobbett at the 2009 retrial, in violation of his
Sixth Amendment right to confrontation. To fully understand the issue
surrounding this testimony, further background is necessary.
In 2005, the Christian Circuit Court conducted a hearing on Bussell's
RCr 11.42 motion, alleging ineffective assistance for, in part, his counsel's
failure to adequately investigate and cross-examine Joiner and Bobbett. At
that hearing, Bussell called both as witnesses. The trial court granted
Bussell's RCr 11.42 motion and this Court affirmed that judgment.
Thereafter, the Commonwealth brought new charges and the case
proceeded to retrial in 2008. However, by that time, both Joiner and Bobbett
had died. Accordingly, the Commonwealth sought to introduce their
videotaped testimony at the 1991 trial. Defense counsel vigorously objected,
arguing that the admission of the testimony was a clear violation of Bussell's
confrontation rights because no adequate cross-examination had occurred.
The issue of the testimony of Joiner and Bobbett was debated for nearly
a year during pre-trial hearings. Multiple motions and memoranda of law were
submitted and two lengthy hearings held. Ultimately, the trial court ruled that
testimony from both the 1991 trial and the RCr 11.42 hearing would be
admitted. The trial judge opined that the 1991 trial testimony alone would not
be admissible because the cross-examination had been deemed ineffective.
Though defense counsel disagreed, the trial court believed that the RCr 11.42
testimony would sufficiently augment the 1991 cross-examinations so as to
cure this deficiency. Accordingly, the 2008 jury heard both the 1991 trial and
RCr 11.42 testimony of both Joiner and Bobbett.
After the 2008 trial ended in mistrial, the Commonwealth retried Bussell
for a second time in 2009. Following the 2008 mistrial, defense counsel for
Bussell changed. At the 2009 trial, the Commonwealth again introduced the
1991 trial testimony of both Joiner and Bobbett. However, neither party
introduced the RCr 11.42 hearing testimony.
Thus, we are presented with the issue of Bussell's right to confront the
witnesses brought against him. He argues that it was prejudicial error to
admit the 1991 testimony of Joiner and Bobbett, where counsel failed to
conduct an effective cross-examination. Our analysis must begin with a
determination as to whether the issue is preserved for appellate review.
There is no doubt that defense counsel objected to the admission of any
of the 1991 testimony at the 2008 retrial. However, there is no record of
Busse11's DPA counsel renewing the objection prior to the 2009 retrial; nor did
defense counsel object when the Commonwealth introduced Joiner's and
Bobbett's 1991 trial testimony. A review of the pretrial conferences reveals no
discussion of the issue either. Oddly, though, the only entries into the record
between an October 23, 2008 hearing on venue and the commencement of voir
dire on June 22, 2009 were for defense expense requests.
Of course, it is an appellant's burden to designate the record and to
establish that an error is preserved for our review.
See Bingham v. Davis, 444
S.W.2d 123, 124 (Ky.App. 1969). We cannot rely solely on defense counsel's
objection to this testimony at the 2008 retrial to declare that the issue is
preserved at the 2009 retrial. A mistrial operates to conclude all proceedings
and the legal effect is that no trial occurred. See C.J.S. TRIAL § 92 (2011).
Thus, it was defense counsel's burden to renew the objection or motion at the
2009 retrial, and there is no record of any such renewal.
If unpreserved, Bussell requests palpable error review. Again, due to the
seemingly incomplete appellate record, it is unclear if the trial court even made
a ruling that can be deemed erroneous. While it is possible that the trial court
shifted its prior position and excluded the RCr 11.42 testimony, it seems more
likely that defense counsel made a decision to impeach Joiner's and Bobbett's
1991 testimony through other means. Nonetheless, in light of the very
unusual background and circumstances of this case, we will assume that error
occurred and undertake a palpable error analysis. To do so, it is necessary to
fully understand the nature of Joiner's and Bobbett's testimony in 1991 and
At the 1991 trial, Joiner relayed that Bussell came to his house on the
evening of December 1, 1990, and that he had a ring to sell. Joiner purchased
the ring for $25, paying with a personal check. The following day, December 2,
Joiner asked Bussell if the ring was stolen and Bussell said it was "hot." Then,
on December 3rd, Bussell came back to tell Joiner that the ring was not, in fact,
stolen. At this time, Busse11 asked where the ring was and Joiner informed
him that he had given it to Bobbett. Joiner testified that Bussell "reacted kind
of funny" and "nervous" to learn this news.
Joiner then testified that Bussell appeared on his front porch later that
evening (December 3). He demanded return of the ring. Joiner testified that
Bussell said, "You son of a bitch, I ought to kill you," and tried to enter the
locked front door. Bobbett, who was on the phone with Joiner during this
interaction, hung up and called police at Joiner's behest.
As the trial court concluded in 2005, defense counsel's crossexamination of Joiner was entirely ineffectual. He asked numerous nonleading questions about Joiner's occupation, why he bought the ring, and why
he gave it to Bobbett. He asked several irrelevant questions about Joiner's
relationship with three persons unrelated to the crimes and the fact that
Busse11 had previously borrowed a pistol from Joiner for target practice. None
of these questions elicited any information pertinent to Busse11's defense.
Defense counsel did manage to elicit two valuable pieces of information
on cross-examination. Joiner admitted that he had written Bussell checks
before as loans. Joiner also admitted, when questioned by police detectives,
that he believed he was in "just a little bit of trouble" because of the ring.
At the RCr 11.42 hearing, a more complete picture of Joiner was
presented. Counsel challenged Joiner about numerous inconsistent
statements he had given on the stand at the 1991 trial and to police. These
inconsistent statements concerned how he - had met Bussell, how long he had
known Bobbett, the fact that he was romantically interested in Bobbett in
1991, and the fact that Bobbett had never repaid a $200 loan.
More specifically related to the crimes, Joiner was confronted with the
differing stories that he had told police detectives about the ring. When asked
if he knew where Bussell had gotten the ring, Joiner told detectives three
different versions of the story: that Bussell found it in a box somewhere; that
Lail had sold the ring to Bussell; and that Bussell found it when he was
cleaning out a closet. Joiner provided no explanation for these inconsistencies,
other than his belief that he was in trouble with the police for possessing the
At the 11.42 hearing, Joiner was also questioned about the confrontation
at his home on December
when Bussell appeared on his front porch. Joiner
had testified at the 1991 trial that Bussell had threatened to kill him. At the
11.42 hearing, Joiner admitted that he had a pistol in his hand during this
confrontation. He was also confronted with his statement to police at the time
in which he expressly stated that Busse11 never made any verbal threats at all.
In addition, Joiner's mental limitations came to light during the RCr
11.42 hearing. At the 1991 trial, Joiner stated on cross-examination that he
was on disability for a knee injury. In fact, Joiner was on disability for mental
retardation, a fact which the court took judicial notice of at the hearing. Also,
through several other witnesses at the 11.42 hearing, it was established that
Joiner had a terrible reputation for truthfulness and was known to "tell
stories." It should be noted that Joiner's mental limitations were not plainly
evident at the 1991 trial, particularly because he was never challenged or
confronted with his inconsistent statements.
At the 1991 trial, Bobbett testified that she had known Joiner for about
three months when he gave her the ring. She did not know Bussell, but had
called him after she received the ring from Joiner. Bussell told her that he did
not give or sell the ring to Joiner. Nonetheless, she remained suspicious
because the ring appeared to be valuable, a belief that prompted her call to the
Bobbett corroborated Joiner's testimony about the altercation on
December 3rd. Bobbett said that she was on the phone with Joiner when
Bussell arrived and that she could hear Bussell "cursing and hollering." Joiner
asked her to hang up and call police, which she did.
Defense counsel conducted an extremely brief cross-examination of
Bobbett at the 1991 trial. Through non-leading questions, Bobbett answered
again that she received the ring from Joiner. She added that, when she called
Bussell about the ring, he speculated that some drug dealers may have given it
to Joiner. Little new information was elicited from Bobbett on crossexamination.
At the RCr 11.42 hearing, Bobbett provided testimony that both
contradicted Joiner's previous statements and damaged her own credibility.
She was confronted with a supposed lie she had told Joiner about being in jail
because of the ring, which she denied. Bobbett was also questioned about her
testimony that she had only known Joiner for three months when he gave her
the ring. In fact, Joiner had become Bobbett's neighbor some five years earlier.
Bobbett also directly contradicted several aspects of Joiner's testimony,
including Joiner's claim that Bobbett owed him $200 and his claim that they
were romantically involved.
Most importantly, Bobbett testified at the 11.42 hearing that Joiner told
her that he knew where Lail's body was located, though he never identified an
exact location. He supposedly told Bobbett this before Lail's body was
discovered in February of 1991. Joiner denied ever making this statement to
Palpable Error Analysis
There is nothing in the record to indicate that the trial judge ever had the
opportunity to rule on any objection to the presentation of the 1991 trial
testimony of Joiner and Bobbett. Out of an abundance of caution, however,
and for the sake of judicial economy, we will assume arguendo that it was error
to replay Joiner's and Bobbett's 1991 trial testimony due to the ineffective
cross-examination conducted, and that Bussell's confrontation rights were
violated. Accordingly, we now consider whether this assumed error was
palpable. A palpable error is one which affects the substantial rights of the
defendant and results in manifest injustice. RCr 10.26. To effectively establish
that an error was palpable, the party must show a "probability of a different
result or [an] error so fundamental as to threaten a defendant's entitlement to
due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
Upon an extensive review of the record, we are able to conclude that no
manifest injustice has occurred in this case. Admittedly, Joiner's testimony
was critical to the prosecution's case. Joiner was the only witness to place
Lail's diamond and sapphire ring in Bussell's hand after her disappearance,
which served as the basis for the robbery charge as well as damning evidence
of the murder. Bobbett's testimony, to a certain extent, corroborated Joiner's,
insofar as she testified that Joiner obtained the ring from Bussell.
However, Joiner's testimony was very strongly corroborated by the
personal check that he wrote to Bussell on December 1st. That check was
endorsed by Bussell. When confronted on the stand with that check, BUssell
confirmed that the endorsement was his signature, but offered no credible
explanation or reason why Joiner would write him a check.
More importantly, the damaging potential of the cross-examination of
Joiner and Bobbett was fully realized through other means. In his brief before
this Court, Busse11 explains that the RCr 11.42 examination of Joiner and
Bobbett approximates the cross-examination that should have been conducted
at the 1991 trial. The thrust of the RCr 11.42 examination of Joiner and
Bobbett concerned their reputations for truthfulness and their credibility.
Even without the admission of the RCr 11.42 testimony, defense counsel was
able to seriously attack both Joiner's and Bobbett's credibility through the
testimony of Audrey Canterbury and Mame Bobbett, Kay Bobbett's mother.
Audrey Canterbury testified at the RCr 11.42 hearing and her testimony
was admitted at the 2009 retrial. Days before Joiner's mother died,
Canterbury made a promise to her that she would look after Joiner.
Canterbury explained that Joiner was mentally handicapped, that he was
unable to manage his own affairs, and that he lacked any critical thinking
skills. She related that Joiner was often untruthful and that he made up
stories. For this reason, he was often taken advantage of by his neighbors and,
particularly, by Bobbett. Canterbury was aware that Joiner had purchased
jewelry for Bobbett in the past, and it was Canterbury's opinion that Bobbett
was "rotten to the core" for having accepted expensive gifts from him.
Canterbury even opined that Joiner would lie for Bobbett, if she asked, because
he was infatuated with her.
Bobbett's mother, Mame Bobbett, also testified at the RCr 11.42 hearing
and her testimony was replayed for the 2009 jury. The bulk of her testimony
concerned Joiner's character for untruthfulness and his history of "telling
stories." Like Canterbury, it was Mame Bobbett's stated opinion that Joiner
would lie for her daughter because he was in love with her.
We also consider the overall strength of the prosecution's case. In
addition to the compelling circumstantial evidence of Bussell's guilt, the
Commonwealth presented strong physical evidence. Fibers matching Lail's
carpeting and robe were found in Bussell's car, though he denied that she was
ever in the vehicle. A damaged tree located near Lail's body contained paint
chips forensically similar to paint samples taken from Busse11's vehicle. Both
the car and the tree showed recent damage, which Bussell could not explain.
Though Busse11 took the stand in his own defense, the Commonwealth
was able to highlight key inconsistencies in his story. Bussell was adamant
that Lail wrote him one check for his hours worked and that she started to
write him a second check, but tore it up and then wrote him a third check as
an advance. However, the check numbers do not substantiate this story - the
torn up check was, sequentially, the first check. And, as stated above, Bussell
was unable to explain why he endorsed and cashed a check from Joiner dated
the same day as Lail's disappearance.
Taking all of the circumstances of this case into consideration, we can
conclude that no manifest injustice has occurred. Through the introduction of
the testimony of Mame Bobbett and Canterbury, the defense was able to
seriously damage the credibility of Bobbett and Joiner. Even had the RCr
11.42 testimony been admitted at the trial, we do not believe the jury would
have been left with a significantly different impression of their credibility.
Moreover, in light of the compelling case presented by the Commonwealth, we
do not believe that there exists any probability that the jury would have
acquitted Bussell, even if Joiner's and Bobbett's RCr 11.42 testimony had been
admitted. There was no palpable error.
Bussell claims that the trial court should have recused from the matter.
This argument rests on the fact that the Chief Judge of the circuit had been the
Commonwealth's Attorney at Bussell's first trial. In granting Bussell's RCr
11.42 motion, the trial court found that the Commonwealth withheld
exculpatory information from defense counsel in 1991. This Court upheld that
Much like the preceding allegation of error, Bussell cites exclusively to
arguments made by defense counsel prior to his 2008 retrial. There is no
evidence in the record that the motion to recuse was renewed before the 2009
retrial. For this reason, the issue is not preserved for appellate review and we
decline to address it.
Bussell argues that the trial court improperly changed venue from
Christian County to Hopkins County. He claims that the Commonwealth failed
to satisfy the requirements of KRS 452.210, because it did not make the
requisite showing that a fair trial could not be held in Christian County. The
decision to change venue rests within the sound discretion of the trial court
and will be reviewed for an abuse of discretion., Grooms v. Commonwealth, 756
S.W.2d 131, 133 (Ky. 1988).
The Commonwealth's motion to change venue was based on the difficulty
in seating a jury for the 2008 retrial, over which the same trial judge presided.
In discussing the motion, the trial court explained to defense counsel that most
potential jurors had been exposed to an inordinate amount of pretrial publicity
about the case, that it was one of the most highly publicized cases in Christian
County history, and that even pretrial conferences had garnered a significant
amount of media coverage. The trial court also noted that nearly every piece of
media coverage referenced the fact that Bussell had previously been convicted
and sentenced to death for Lail's murder. Finally, the trial court explained to
defense counsel that, pursuant to RCr 9.30(1)(c), the prior jury panel had been
expanded, yet still the panel was nearly exhausted by valid excusals for cause.
KRS 452.210 does not require a certain type or quantity of proof to
justify a change of venue, as Bussell alleges. Here, it appears the trial court
rested its decision largely on the experience of the prior retrial, which had
concluded a mere three months before. See Nickell v. Commonwealth, 371
S.W.2d 849, 850 (Ky. 1963) ("In the making of such determination the trial
judge has wide discretion in granting or refusing change of venue and his
discretion is given great weight because he is present in the county and
presumed to know the situation."). In light of these circumstances, we find no
abuse of discretion in the trial court's determination that a change of venue
would best ensure a fair and impartial trial.
Bussell argues that the trial court erred in allowing the Commonwealth
to use a peremptory challenge to exclude Juror K, who is African-American. He
claims that the challenge constituted purposeful discrimination within the
meaning of Batson v. Kentucky, 476 U.S. 79 (1986). We disagree.
After both parties made peremptory challenges, defense counsel asked
the Commonwealth to state its reasoning in striking Juror K, one of two
African-Americans on the venire. The Commonwealth answered that he struck
Juror K because she was looking down during questioning and that he felt she
was inattentive and scowling. Defense counsel objected, citing Batson. The
trial court overruled the objection. After the trial, defense counsel filed a
motion for a new trial based on Juror K. He attached an affidavit from Juror K,
in which she stated that she was paying attention to the proceedings. The
motion was denied.
We address possible race-based peremptory challenges by the
prosecution under a three-part analysis:
First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
basis of race; second, if that showing has been made,
the prosecution must offer a race-neutral basis for
striking the juror in question; and third, in light of the
parties' submissions, the trial court must determine
whether the defendant has shown purposeful
Clay v. Commonwealth, 291 S.W.3d 210, 214 (Ky. 2008) (quoting Snyder v.
Louisiana, 552 U.S. 472 (2008)). The trial court's decision is reviewed for an
abuse of discretion. Id.
Because the Commonwealth offered an explanation for the strike, which
the trial court ruled upon, we move to the second prong of the Batson analysis.
See Commonwealth v. Snodgrass, 831 S.W.2d 176, 179 (Ky. 1992). Therefore,
we must consider the reason provided by the Commonwealth. Here, the
Commonwealth's explanation was neutral on its face. "Although the
prosecutor must present a comprehensible reason, the second step of this
process does not demand an explanation that is persuasive, or even plausible;
so long as the reason is not inherently discriminatory, it suffices." Rice v.
Collins, 546 U.S. 333, 338 (2006) (citation and internal quotation marks
Thus, we turn to the third prong of the Batson analysis. In discussing
the motion for a new trial, the trial court correctly explained that strikes based
on a juror's demeanor are allowable.
See Thomas v. Commonwealth, 153
S.W.3d 772, 777 (Ky. 2004) (demeanor is not "categorically inadequate as a
race-neutral explanation for a peremptory strike"). Further, the trial court did
not rely solely on the Commonwealth's assertions, but on his own personal
observations of Juror K, which he specifically stated were "not inconsistent"
with that of the Commonwealth's Attorney. Given the trial court's unique
ability to evaluate the demeanor of both the jurors and the prosecutor, its
ruling stands unless clearly erroneous.
Washington v. Commonwealth, 34
S.W.3d 376, 379-80 (Ky. 2000). There is nothing in the record to establish that
the Commonwealth was acting dishonestly or that the trial court's observations
were erroneous. There was no error.
Cross-Examination of Busse11
Finally, Bussell argues that the Commonwealth was improperly
permitted to ask him, on cross-examination, if he "knew a reason that Bertha
Chambers would say anything that isn't correct." This question arose during a
line of questioning regarding Lail's vacuum cleaner. Chambers testified that
Bussell told her the vacuum cleaner was a gift he had purchased for her at a
flea market. Busse11 later denied this statement, explaining that Lail lent him
the vacuum cleaner and that he left it on Chambers porch for later use. No
objection was made and, therefore, the issue is unpreserved for appellate
review. Bussell requests palpable error review under RCr 10.26.
"A witness should not be required to characterize the testimony of
another witness, particularly a well-respected police officer, as lying. Such a
characterization places the witness in such an unflattering light as to
potentially undermine his entire testimony." Moss v. Commonwealth, 949
S.W.2d 579, 583 (Ky. 1997). However, the Commonwealth is certainly
permitted to bring out the fact that the defendant's testimony contradicts that
of other witnesses. We do not believe the Commonwealth's questions in this
case rise to the level of badgering or the type of "blunt force" condemned in
Moss. Furthermore, this Court, in Moss, made clear that this type of
questioning does not rise to the level of palpable error.
Id. ("Appellant's failure
to object and our failure to regard this as palpable error precludes relief.").
For the foregoing reasons, the judgment of the Christian Circuit Court is
Minton, C.J.; Abramson, Cunningham, Noble, Schroder and Venters, JJ.,
concur. Scott, J., not sitting.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, .KY 40601
COUNSEL FOR APPELLEE:
James Hays Lawson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601