Chester Merrifield appeals from a judgment sentencing him to death upon conviction of murder.
Around midnight on November 7, 1952, Merrifield, with his wife, brother-in-law and a lady friend of the latter, were at the Stork Club, a roadhouse near Louisville. The brother-in-law became involved in an altercation, which developed into a full-fledged fight outside of the club. As the fight was going on, two county policemen, driving by in a patrol car, saw the disturbance and stopped to investigate. Officer Keown got out of the car on the right side, and Officer Marcum on the left. As Officer Keown approached the group of people he was shot and killed with a .38 caliber revolver. Officer Marcum, a man named Riggs, and a taxi driver named Thomas Sanders all testified that Merrifield fired the shot. Merrifield denied firing the shot, although he admitted having a .38 caliber revolver in his possession immediately before and immediately after the shooting.
There is no contention that the evidence was not sufficient to support the verdict. The alleged errors relate to the admission of incompetent evidence, improper conduct of the Commonwealth's attorney in the voir dire examination, in the opening statement and in the closing argument, and failure of the court to grant a new trial on the ground of newly discovered evidence.
Upon the void dire examination the Commonwealth's attorney stated several times, to different groups of prospective jurors, that the evidence would show that Officer Keown, making what he thought was a routine investigation, got out of the police car and after walking 10 or 15 feet was shot and killed by Merrifield. It is contended that the effect of these statements was to "condition' the jurors to be death-penalty minded, and that the statements were prejudicial. As we see it, the statements merely gave the prospective jurors a general indication of the nature of the offense with which the defendant was charged, and they did not unduly emphasize any details of the case. As the case was developed upon the trial, the only real question was whether Merrifield was the person who fired the fatal shot, and under these circumstances the statements in question could not have been prejudicial.
In his opening statement to the jury the Commonwealth's attorney, after mentioning the importance of finding a motive for the killing, stated that the evidence would show that Merrifield was on parole from a sentence for armed robbery and that it was a violation of his parole for him to carry a weapon or to frequent a place where whiskey was sold. He then said, "In my opinion, Merrifield knew that if he were caught out there with that pistol it was a good possibility that he would have to go back to prison.'
Upon the trial, it was proved that Merrifield had been given a life sentence for armed robbery, and was on parole at the time of the affair at the Stork Club. Upon objection being made to this evidence, the court ruled it admissible, saying:
"No, that shows motive. I will overrule the objection on the ground that the evidence shows motive or reason. It's up to the jury as to whether or not it does. It is competent on that theory. It is up to the jury to determine whether or not this evidence does show motive or reason.'
The appellant maintains that the evidence as to the former conviction for armed robbery was incompetent, and that the court's language in ruling upon the evidence was incorrect; also that the reference to the former conviction in the opening statement, and the Commonwealth's attorney's expression of his opinion as to the motive, were improper.
We think the circumstances of this case were such as to bring it within the rule that evidence of another crime may be admitted to show motive for the commission of the crime under trial; this being an exception to the general rule that evidence of other crimes is not admissible. Manz v. Commonwealth, Ky., 257 S.W.2d 581; Roberson's New Kentucky Criminal Law and Procedure, Second Edition, pages 681, 685, 691, 692. The main question here was whether Merrifield was the person who fired the fatal shot. On the surface, there was no reason for him to do so, and therefore we think it was proper to establish a reason or motive growing out of his fear of reincarceration for violation of parole.
The court's language in ruling on the admissibility of the evidence, though perhaps not well chosen, was sufficient to inform the jury that the evidence concerning the armed robbery conviction and parole was to be considered by the jury as bearing on the question of motive. We find no prejudicial error in the language of the ruling.
Since the evidence in question was competent, the Commonwealth's attorney did not commit error in mentioning it in his opening statement. Criminal Code of Practice, § 220. Although it perhaps was improper for him to express his opinion concerning the motive, we think that the particular expression of opinion, following in context the statement of the facts upon which such an opinion logically could be based, was not prejudicial.
Upon cross-examination of the defendant, the Commonwealth's attorney, after reminding the defendant of his previous testimony that he had no reason to kill a policeman, showed a wrist watch to the defendant, asked him if he was wearing the watch at the time of his arrest, and asked him to read the inscription on the back. Upon objection being made and sustained, no further questions were asked concerning the watch. However, no admonishment was given. The appellant maintains that the asking of the questions was prejudicial, and that an admonishment was required. In his brief, the appellant asserts it was "common knowledge' that the watch in question was supposed to have been stolen in a robbery in Ohio, and that the story had received considerable newspaper publicity.
It is our opinion that the question of whether the reference to the watch was prejudicial must depend upon the character of the reference itself, and not upon alleged extraneous facts not officially known to the jury. At the most, the reference might have raised an inference that Merrifield was wearing some one else's watch. Under the circumstances, we cannot say that this was substantially prejudicial. As a matter of fact, proof that Merrifield was wearing a stolen watch might well have been admissible as tending to prove a motive for the killing. Manz v. Commonwealth, Ky., 257 S.W.2d 581.
During the course of his final argument to the jury, the Commonwealth's attorney donned the uniform cap and coat which Officer Keown was wearing at the time of the killing, and made the point that Merrifield could not possibly have failed to observe that Keown was a police officer. Apparently, the purpose was to discredit Merrifield's statement that he did not see any policemen in uniform at the time of the shooting. The officer's widow was sitting in the courtroom at the time, and when the uniform was donned she burst out weeping and was led from the ...