Russell Winstead appeals as a matter of right
Winstead's appeal seeks reversal of the judgment by raising several challenging issues relating to the trial of his case. Upon review of the full record, we conclude that Winstead received a fundamentally fair trial, so we affirm both of his convictions and the sentences imposed. But we must vacate the judgment on our own motion because the trial court erred by ordering Winstead's sentences to run consecutively rather than concurrently.
On the night Ann Branson was stabbed to death, a witness reported seeing her nephew, Russell Winstead, at or near Branson's driveway. No eyewitnesses to the murder ever came forward. No scientific evidence was ever produced linking Winstead to the crime. But Winstead was the immediate object of suspicion because he was known to have recently borrowed substantial sums of money from Branson to cover his gambling debts.
As the investigation progressed, two developments sharpened the focus on Winstead. First, police found hidden under Winstead's mattress at home a knife consistent with that used to stab Branson. Second, Winstead's wife contacted police and changed her initial statement to them concerning a critical piece of the investigation: the time Winstead arrived home on the night of Branson's murder.
Winstead was charged with murdering Branson and with robbing her of a check he had allegedly written to her. He then fled to Costa Rica but was eventually extradited to the United States. The charges proceeded to a jury trial resulting in his convictions and sentences.
Winstead urges us to reverse the judgment because he alleges that the trial court erred by:
Winstead contends the trial court erred by permitting his ex-wife, Terri Rainwater, to testify in contravention of the spousal privilege set forth in KRE 504. We conclude that any error was harmless.
Rainwater was Winstead's wife at the time of the murder, but the two had separated and divorced by the time of trial. Police initially interviewed Rainwater when investigating the murder, and she reported that Winstead had returned home at approximately 7:30 the night of the murder. Later on, she contacted the police through counsel and told police that she had not been truthful in her initial interview with them. In a second interview, Rainwater told police that Winstead had not arrived home until about 9:05 on the night of the murder. She later explained in her trial testimony that she had made the initial, false statement because her husband told her to do so.
The 7:30 to 9 p.m. time difference was critical information because Branson was last seen leaving a church service at about 7 p.m. Her housekeeper reported receiving a call from her about 9 p.m. The medical examiner determined that Branson had probably died sometime that evening after returning from the church service.
Winstead filed a motion in limine seeking to bar Rainwater at trial from testifying at all about events occurring during their marriage and seeking to exclude confidential statements made by him to Rainwater during their marriage. And this motion sought to exclude in particular the communications between Winstead and Rainwater concerning what she should tell police about his whereabouts the night of the murder. But the trial court ruled that communications between spouses about establishing an alibi were not privileged because an alibi, by its very nature, was intended for disclosure.
Winstead contends that the trial court erred in this ruling because "[t]he confidential communication between the husband and spouse was not just the alleged alibi but the request that it be communicated as an alibi" and "there can be no doubt that [Winstead] would not have intended
Rainwater testified at trial over Winstead's objection. She told the jury that Winstead arrived home about 9:05 on the night of the murder. She also testified that a few days after the murder, Winstead told her that because of his gambling problems, she should tell police he arrived home at 7:30 the night of the murder. Rainwater further testified that Winstead told her that on the evening of the murder he had been in a church parking lot having a discussion with a friend, Rick Blanchard.
Rainwater testified that no one else was present when Winstead asked her to tell police he arrived home at the earlier time. She also testified that Winstead told her that he had had a discussion with his father and that he and his father had decided what to do before Winstead told her to say he arrived home at the earlier time. She further testified that Winstead later told his friend Blanchard to borrow a drill "to support the story." The Commonwealth points out that Blanchard testified to borrowing a drill from Winstead the night of the murder.
KRE 504 contains two separate evidentiary privileges. The first, contained in section (a), is the testimonial privilege "by which a spouse may refuse to testify, or may prevent the other spouse from testifying against him or her, as to events occurring after the date of their marriage...."
But the lingering question is whether the challenged portion of Rainwater's testimony was a confidential communication that should have been barred under the marital communication privilege of KRE 504(b). That marital communications privilege (as to confidential communications made during the marriage) survives
The Commonwealth responds that because Rainwater testified to Winstead's telling her that he discussed this concocted alibi with others, his communications with her were meant for disclosure, rendering the privilege nonexistent or waived. The Commonwealth further argues that even if the trial court did err in failing to exclude as privileged the challenged alibi request, the error was harmless because the jury would nevertheless have heard Rainwater recant her original time estimate in favor of the later time.
Winstead also contends that Rainwater should not have been allowed to testify about the time he actually did arrive home the night of the murder because her observation of his arrival time would itself be considered a confidential communication under the broad definition of communication used in cases like Slaven v. Commonwealth.
KRE 504(b) states, "[a]n individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage." Under KRE 504(b), a communication is considered confidential when "it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person."
In Slaven, we quoted with approval a case from 1890 for the conclusion that the term communication is so broad that it may not be
As the Commonwealth notes, the broad definition of communication in Slaven seems to be contrary to the principle that spousal privileges are to be narrowly construed.
The question of whether we should limit what may properly be deemed a communication
So, because the only challenged non-verbal communication in this case was not confidential, we need not revisit in this case whether our broad definition of communication in this context needs to be narrowed. Rather, we need only determine whether a request to one's spouse to communicate an alibi to police is privileged. This appears to be a matter of first impression in Kentucky.
Other courts and commentators have split over this issue. For example, in a decision relied upon by the Commonwealth, the Supreme Court of Arkansas has ruled that the spousal privilege is inapplicable when one spouse asks another to communicate a false alibi to the authorities because the requesting spouse expects the other spouse to communicate the fabrication to the authorities. The Arkansas court reasons that the communication between spouses is not privileged here because the requestor intended the alibi to be disclosed to a third party.
On the other hand, this approach is criticized by the esteemed FEDERAL PRACTICE AND PROCEDURE treatise, which opines that "[w]hen a husband tells his wife to give the police a false alibi, what he intends to be conveyed to the police is the false story, not his direction to his wife to tell that story."
Despite our disapproval of the act of requesting one's spouse to give false information to police, we nonetheless must follow the plain language of KRE 504(b) to prohibit admission of such requests where such a request is communicated privately to the spouse and the request itself is not intended for disclosure to others.
In the case at hand, Winstead's request was made privately to Rainwater because no one else was present to witness this communication made by Winstead to Rainwater. Whether Winstead's request that Rainwater give certain false information to police was intended for disclosure to others is a more difficult question to answer. The parties have cited nothing in the record to suggest that anyone else directly testified to Winstead's having told them that he requested his wife to give the specified, and apparently false, information to police. But Rainwater testified that Winstead told her that he had had a discussion with his father and that he and his father had made a decision about what to do before directing her to tell police he got home at the earlier time of 7:30 p.m. Although this testimony from Rainwater implies that Winstead and his father may have discussed what Rainwater and others should tell police about Winstead's whereabouts the night of the murder, this testimony does not specifically show that Winstead had disclosed or intended to disclose his specific request to Rainwater to others or that he had told or intended to disclose this information to others.
Although a private communication from one spouse to another requesting that false alibi information be given to police would be privileged under KRE 504(b) so long as the request itself was not intended for disclosure to others, any error by the trial court in admitting Rainwater's testimony of the request here was harmless.
Rainwater's testimony that Winstead told Blanchard to borrow a drill to "support the story" was properly admitted because this alleged communication to Blanchard in Rainwater's presence was clearly not privileged under KRE 504 because it was not a communication to a spouse and was not made privately.
Despite the circumstantial nature of the evidence against Winstead and the highly probative value of the evidence of Winstead's whereabouts during the evening of the murder, given other evidence of guilt, the circumstances of his flight to Costa Rica, and his apparent motive for killing Branson, we can say with "fair assurance" that "the judgment was not substantially swayed by the error"; and, thus, the error was harmless.
Winstead contends that his Sixth Amendment rights were violated by the Commonwealth's presentation of the testimony of jailhouse informants Fred Roulette and Daniel Morseman, whom he alleges the Commonwealth used to gather incriminating evidence against him. He concedes that this alleged error is unpreserved, but he contends that it amounts to palpable error under RCr 10.26.
As Winstead points out, we recently acknowledged United States Supreme Court authority providing that the government's use of a jailhouse informant deliberately to elicit incriminating statements from the accused following invocation of the right to counsel violates the Sixth Amendment.
Roulette testified that Winstead pressed him to write letters to the Commonwealth confessing to Branson's murder. And it appeared that the conditions of Roulette's incarceration improved after he informed the Commonwealth of Winstead's promptings. But Winstead does not directly allege that the information was deliberately elicited using government action.
Applying the McBeath requirements to the facts of this case, the trial court did not engage in palpable error in allowing the unobjected-to presentation of this testimony. The first requirement, that the right to counsel has attached, appears to be satisfied since Winstead had been indicted long before these jailhouse communications occurred.
Nonetheless, even assuming for the sake of argument that the second requirement is fulfilled by Roulette and Morseman acting as government agents because they eventually perhaps received more favorable treatment for their testimony and other cooperation with the government, the third requirement of deliberately eliciting incriminating information was not clearly established. Other than Roulette's letter to Winstead at an officer's direction asking for assurances that Roulette was not forgotten, there is no evidence that Roulette or Morseman ever questioned Winstead in any manner or used other techniques deliberately to elicit incriminating information.
Any error in the admission of this testimony was not palpable. The most incriminating statement attributed to Winstead— his asking Roulette to confess—was not as a result of questioning by Roulette but, apparently, was initiated by Winstead. Such actions as Roulette writing Winstead a letter asking for assurances that Roulette was not forgotten might amount to actions designed to elicit incriminating evidence while acting as a government agent, but the response Roulette received was a letter by Morseman—not Winstead. And the letter itself was innocuous because it did not directly contain a confession. The letter only obliquely stated that Roulette was not forgotten by his friends or that he had friends who would be true to their word.
As we recognized in McBeath, a defendant must show that police and their informant did more than merely listen but, instead, took some action deliberately designed to elicit incriminating remarks. There is no evidence that the most damaging incriminating remarks by Winstead— asking Roulette to confess—was in response to any action by Roulette or law enforcement authorities; rather, it appears that Winstead himself set that ball in motion. Although other remarks by Winstead might have been elicited from jailhouse informants acting as government agents—such as the cryptic letter sent by Morseman in response to Roulette's letter asking for assurance—these remarks had little incriminating value by themselves. These remarks had no substantial effect on the trial and did not result in manifest injustice. So, to the extent that the trial court erred in permitting the unobjected-to introduction of this testimony, the error was not palpable and is not cause for reversal of Winstead's convictions.
Winstead contends he was entitled to a directed verdict on the murder and robbery charges. We disagree. Even ignoring any evidence that he asked his wife to lie about his whereabouts on the night of the murder or that he bribed another inmate to take responsibility for the crimes, the evidence was sufficient to withstand a directed verdict motion.
The familiar standard for ruling on a motion for directed verdict is as follows:
The case against Winstead was entirely circumstantial. But even "circumstantial evidence may form the basis for a conviction so long as the evidence is sufficient to convince a reasonable jury of guilt."
The evidence showed that:
Winstead alleges that the prosecutor made improper statements in closing argument that necessitate reversal. We disagree.
Winstead identifies four instances during the prosecutor's closing argument in which the prosecutor allegedly misstated the evidence. In each of these instances, Winstead objected; and the trial court admonished the jury.
In the first instance of alleged prosecutorial misconduct, the prosecutor misquoted the testimony of a microbiologist at the Kentucky State Police Lab as stating that hair follicles recovered from the crime scene did not have roots. In fact, the microbiologist actually stated that his report did not indicate whether these hair follicles had roots or not. The hair follicles were determined not to be those of Branson or Winstead, and they were not submitted for DNA analysis. The trial court admonished the jury that despite the Commonwealth's quoting the microbiologist as saying the hair did not have roots, the microbiologist actually stated that his report did not say whether the hair had roots or not. The trial court further stated that the jury could reach its own conclusion regarding why the hair had not been submitted for DNA analysis but reiterated that there was no testimony that there were no roots attached to the hair.
In the second instance of alleged prosecutorial misconduct, the prosecutor argued that Winstead had given Branson a check for which Winstead had insufficient funds to cover and that Winstead came to her house to retrieve the check from Branson because he could have faced felony charges for issuing a cold check. Upon Winstead's objection, the trial court admonished the jury that there was no evidence of a felony because there was no evidence that the alleged act of writing a cold check was a felony or that any prosecution would follow for this act.
In the third instance of alleged prosecutorial misconduct, Winstead complains that the prosecutor misstated the medical examiner's testimony as indicating that a knife found under Winstead's mattress was "the one knife that fits into the wound" when, in fact, the medical examiner merely stated the knife was consistent with the wounds but did not say it "fit the wounds" or that it was definitely the knife used on the victim.
From our review of the videotape of the trial, it appears that the statement about the knife fitting the wounds occurred while the prosecutor was trying to emphasize the significance of the medical examiner's statement that the knife was consistent with the wounds. Reminding the jury of evidence that Winstead had gotten a relative to go to his former marital home weeks after the murder to retrieve a particular knife from his collection of knives, the prosecutor asked the jury to consider "[w]hat are the chances that he would send someone in the middle of the night to get
The fourth instance of alleged prosecutorial misconduct in misstating evidence involved the prosecutor misquoting Winstead's former Costa Rican girlfriend as stating that Winstead told her "if you think I could kill my aunt, don't you think I could kill you too." Winstead argues that she actually testified to his saying "if I killed my aunt, why haven't I killed you?" According to Winstead, the misstatement was material because the change in language made it more of a threat. Upon Winstead's objection, the trial court admonished the jury about what the witness had actually said. In doing so, the trial court first noted what the prosecutor had quoted the girlfriend as saying before telling the jury what she had actually said.
We do not condone misstatements of the evidence, whether made intentionally or carelessly; but the misstatements here were not so egregious or prejudicial as to require reversal especially in light of the trial court's admonitions correcting such misstatements for the jury.
In addition to the four misstatements of evidence, Winstead alleges that the prosecutor engaged in further misconduct by concluding his closing argument with his personal opinion that Winstead "did it." But, from our review of the trial videotape, it appears more accurate to say that the prosecutor was arguing that the jury should find that "he did it" instead of offering the prosecutor's personal opinion that "he did it." The prosecutor concluded his closing argument by pointing out various items of circumstantial evidence of guilt and analogizing the jury's task to a game of "liar's poker" and directing the jury to "put the chips in and say, I call. You don't have the hand. He did it."
Although trial counsel must base their arguments to the jury upon the evidence presented and not upon counsel's personal opinion of the defendant's guilt,
In sum, we discern no reason to reverse based upon the alleged instances of prosecutorial misconduct.
Winstead contends that the trial court erred in denying his motion for a mistrial and his request to examine jurors individually after a court security officer informed the trial court that some jurors had been observed using their cell phones during penalty phase deliberations. Upon the trial court's questioning of the jury as a group, the foreperson acknowledged that some individual jurors had used cell phones during deliberations. Also, some individual jurors admitted to the trial court that they had used cell phones during both the guilt phase deliberations and during the penalty phase deliberations. The jurors all stated that their cell phone calls involved personal matters, such as checking to make sure children arrived home safely and checking in with work. The jurors who admitted to making calls all represented that none of these calls concerned the case they were trying. We also note that although the trial court admitted to having failed to admonish jurors against using their cell phones in deliberations, the trial court had appropriately admonished the jurors not to discuss the case with others who were not jurors.
Winstead contends that the trial court should have declared a mistrial because of the jurors' unmonitored cell phone conversations during deliberations. In support, he cites a decades-old case that required reversal or mistrial where there existed an opportunity for outside influence upon jurors—even without actual proof of improper influence—in connection with one juror's unmonitored telephone call made during deliberation.
We agree with Winstead's argument that the jurors' use of cell phones could easily result in opportunities for improper outside influence. On a broader scope, jurors' access to any electronic communication device or media at anytime during their jury service provides an opportunity for improper outside influence on jury decisions. For that reason, the wary trial judge must clearly admonish jurors at the commencement of trial and at other times when the jurors separate during the trial to avoid using their computers, laptops, cell phones, and other electronic communication devices to communicate with anyone or perform any research on any matter connected with the trial of the case. And when the jury retires to consider its verdict, the trial judge must direct a court official to collect and store all cell phones or other electronic communication devices until deliberations are complete. During deliberations, the court may release the cell phones or other electronic communication
In the case at hand, we find the trial court's handling of the matter appropriate under our more recent precedents dealing with juror misconduct in general in which we have acknowledged the discretion afforded to trial courts in dealing with such matters.
Winstead argues that the trial court erred in denying his motion for a new trial because he could not be subject to any type of life sentence under the terms of the agreement reached by the United States and Costa Rica concerning his extradition from Costa Rica. We disagree because we construe the agreement
Winstead submitted a memorandum to the trial court in support of his motion for a new trial, arguing, among other issues, that the LWOP/25 sentence that he received violated the terms of his extradition. Attached to his memorandum was a copy of a diplomatic note, Note 185, conveying the United States government's response to Costa Rican requests for assurances regarding sentencing limitations.
International extraditions are governed by any applicable treaties between the two nations. In this case, the Extradition Treaty between the United States and Costa Rica controls, along with any conditions that the two nations have agreed to in negotiations about any individual fugitive.
In Winstead's case, extradition negotiations are memorialized in Note 185, which the United States Government sent to the Costa Rican government. Note 185 opens by acknowledging Costa Rica's requests for assurances, stating that "[t]he Embassy takes note that, as a condition for the extradition of Mr. Winstead, the Costa Rican authorities have requested assurances that Mr. Winstead will not be subjected to the death penalty, life imprisonment, or cruel or degrading treatment." Note 185 then contains the United States' response to Costa Rica's requests for assurances. After assuring Costa Rica that Winstead would not be subjected to the death penalty, Note 185 provides that "the Government of the United States informs the Government of Costa Rica that if Mr. Winstead is extradited to the United States... [he] will not receive a sentence that requires him to spend his natural life in prison as a punishment for committing the offenses charged."
Apparently, Note 185 was the final communication between the two nations before Costa Rica extradited Winstead. And the parties have not cited any evidence of record of further negotiations. So we appropriately treat Note 185 as the last word memorializing the sentence-limitation terms of the extradition agreement between the United States and Costa Rica regarding Winstead.
Over Winstead's objection, the trial court permitted the jury to recommend a sentence of LWOP/25. The jury recommended LWOP/25, and the trial court sentenced Winstead in accordance with that recommendation. Winstead argues that the plain language of Note 185 prohibits life imprisonment as a possible punishment. This extradition-related issue appears to be a matter of first impression in Kentucky.
Under the principle of specialty, the individual who has been extradited
Winstead contends that the trial court violated the terms of his extradition when it instructed the jury that LWOP/25 was a sentencing option and when it sentenced him to LWOP/25. He argues that any type of life sentence in this case was impermissible because of Costa Rica's apparent requests for assurances that he would not be subject to life imprisonment and of communications made to him by Costa Rican judicial officials during extradition proceedings, which allegedly indicated that he would not be subject to any type of life sentence in the United States. However, neither such requests for assurances nor such communications by Costa Rican officials, by themselves, precludes a sentence of life imprisonment unless the United States agreed to that sentencing limitation.
Essentially, even though Note 185 ostensibly reflects a request by Costa Rica that no life sentence be imposed, the United States does not simply parrot the exact requested assurance. Presumably, if it saw fit, the United States government could have followed the language of the noted request for assurance and assured Costa Rica that Winstead would not be "subject to life imprisonment" similarly to the response it gave to the request for assurance that the death penalty would not be imposed. Instead, the United States government responded to Costa Rica's purported request for assurance of no life imprisonment
The Commonwealth contends that the fact that Winstead will be eligible for parole in 25 years satisfies Note 185 because the possibility of parole means that Winstead will not necessarily be required to spend his natural life in prison since he will become eligible for parole under KRS 532.030 after 25 years. But Winstead counters by asserting that parole is a mere possibility, not a right, and that he will be required to spend his natural life in prison if he does not receive parole.
Although the assurance is not necessarily ambiguous on its face, the parties' arguments reveal a latent ambiguity concerning whether the assurance would be satisfied by any type of life sentence offering the possibility of parole. We believe the ambiguity is properly resolved in favor of allowing the LWOP/25 sentencing option because evidence of record supports the Commonwealth's interpretation of Note 185—the document that sets forth the agreed-upon terms of Winstead's extradition.
In resolving the ambiguity about the meaning of the assurance that Winstead would not receive "a sentence which requires him to spend his natural life in prison[,]" we look to the Declaration of Mary D. Rodriguez.
Specifically, Rodriguez, who is apparently an experienced United States Justice Department official assigned to facilitating extradition proceedings with Costa Rica and other Latin American nations,
Before arriving at this conclusion, Rodriguez noted that Costa Rica had accepted the United States' assurances and extradited Winstead in February 2006 and, also, detailed the history of negotiations between the two countries, including the United States' extradition request and Costa Rica's requests for assurances. We note that although Costa Rica's requests for assurances and other unilateral communications are not controlling, Rodriguez found that even these requests for assurances would not preclude a life sentence so long as the possibility for parole existed:
Rodriguez also stated that based on her review of Winstead's file, attorneys for the Justice Department had been in close communication with attorneys for the Commonwealth of Kentucky and were satisfied that the Commonwealth of Kentucky would be able to comply with the assurances requested by Costa Rica.
In addition to the support provided for the Commonwealth's interpretation in Rodriguez's Declaration, the trial court also articulated a plain-meaning approach to defining "life imprisonment" when resolving the translation controversy that we regard as apropos in interpreting the connotations of the assurance given that Winstead would not receive a sentence which required him to spend his natural life in prison:
As the trial court orally explained in a hearing, we cannot presume that the Costa Rican government would be aware of Kentucky's statutory sentencing scheme; and the fact that under our statutes, a life sentence other than perhaps a sentence of life without parole does not necessarily mean that one will literally remain in prison until death.
Although we otherwise affirm Winstead's sentence, we must vacate the judgment because it provides that the twenty years' imprisonment sentence for robbery run consecutively with the LWOP/25 sentence for murder.
In the original version of this opinion, rendered April 22, 2010, this Court, sua sponte, noted that Judge James C. Brantley, the Hopkins Circuit judge who presided over Winstead's trial, conducted the trial in Muhlenberg County before a Muhlenberg County jury. This was done apparently without having the case formally transferred to Muhlenberg Circuit Court. Nor did he have himself designated as a special judge by the Chief Justice or chief regional judge. In a petition for rehearing, Winstead argued that Judge Brantley lacked territorial jurisdiction to preside over the case and, as a result, the judgment was void. The parties were ordered to prepare supplemental briefs concerning the issue of territorial jurisdiction and the ongoing application of Wolfenbarger v. Commonwealth, 936 S.W.2d 770 (Ky.App.1996).
In Wolfenbarger, the Court of Appeals considered a similar factual situation. Wolfenbarger committed crimes in Boone County and was eventually brought to trial in Boone Circuit Court. On the day of trial, however, he was patient in a Kenton County hospital. With the consent of Wolfenbarger,
In considering the validity of the judgment, the Court of Appeals noted that the "physical location of Wolfenbarger's trial does not directly involve either subject matter jurisdiction or venue." Id. at 773. Rather, the Court of Appeals focused its holding on the concept of territorial jurisdiction—that is, the geographical limitations on a court's authority. Characterizing territorial jurisdiction as "akin to subject matter jurisdiction," the Court of Appeals concluded that the trial court lacked authority to conduct the trial in Kenton County because the Boone Circuit judge was never sworn as a special judge.
The reasoning in Wolfenbarger is flawed. While acknowledging that the Kentucky Constitution creates one Court of Justice for the entire state, the panel nonetheless adhered to pre-Judicial Amendment cases to conclude that the judgment was void. Indeed, prior to passage of the Judicial Amendment in 1975, a court's jurisdiction was limited by the geographic boundaries of the district. "The court of the justice of the peace for a magistral district could no more be lawfully held without the territorial limits of such district, than the county, or quarterly, or circuit courts, for one county could be lawfully held in another county." Wolfenbarger, 936 S.W.2d at 774 (quoting Wheeler v. Schulman, 165 Ky. 185, 176 S.W. 1017, 1019 (1915)). Judges lacked any jurisdiction or authority to conduct proceedings outside of the geographic bounds of the district, and any resulting judgment or order was void ab initio.
As other states have done, Kentucky removed this territorial limitation through creation of a unified court system. Ky. Const. § 109. See also Wayne R. Lafave, Jerold H. Israel & Nancy J. King, 4 Crim. Proc. § 16.1(a) (3d ed. 2009). The Judicial Amendment is clear that there is one circuit court for the entire state, and all of its judges are members of the same court with equal power to act throughout the Commonwealth. See Baze v. Commonwealth, 276 S.W.3d 761, 767 (Ky.2008). This Court has explained:
Richmond v. Commonwealth, 637 S.W.2d 642, 646 (Ky.1982).
Thus, since passage of the Judicial Amendment, territorial jurisdiction no longer confines a judge's authority to his or her home district or circuit. Procedural requisites and venue provisions restrict a circuit judge's ability to act outside of the home circuit. However, these limitations do not undermine the judge's basic authority to adjudicate matters that fall within the subject matter jurisdiction of the Circuit Court. See Baze, 276 S.W.3d at 767 ("[O]ur statutes and this Court's rules place geographical boundaries on a court's power to hear a case."). Wolfenbarger is erroneous in this regard and, to the extent
Nevertheless, an error occurred in this case when Judge Brantley was not sworn as a special judge in Muhlenberg County. SCR 1.040(1) provides that "[n]o judge shall conduct any judicial proceeding, other than the issuance of warrants, outside his own circuit or district unless designated by the Chief Justice or by the Chief Judge of an administrative region." In asserting a violation of this rule, Winstead is essentially challenging Judge Brantley's qualifications or capacity to act.
However, Winstead has raised this argument for the first time in a petition for rehearing. As early as 1860, Kentucky courts recognized that challenges to the qualifications of a judge must be timely made, or they are deemed waived. Vandever v. Vandever, 60 Ky. 137 (1860). In 1899, Kentucky's highest court held:
Salyer v. Napier, 21 Ky. L.Rptr. 172, 51 S.W. 10, 11 (1899). See also Kentucky Utilities Co. v. South East Coal Co., 836 S.W.2d 407, 409 (Ky.1992) (challenge to the appointment of a Special Justice, made for the first time in a petition for rehearing, was rejected, with this Court noting that "a party must timely object or be deemed to have any waived any such objection."); Jacobs v. Commonwealth, 947 S.W.2d 416, 418 (Ky.App.1997) (collecting Kentucky authority supporting rule that "objection to one acting as special judge cannot be made for the time on appeal"). Cf. Helton v. Commonwealth, 256 S.W.2d 14 (Ky.1953) (conviction reversed where defendant's seasonable objections to the authority of the special judge were improperly overruled).
Winstead moved the trial court to change the venue of his trial and that motion was properly granted. He raises no other challenge to Judge Brantley's qualifications to preside over the trial in Muhlenberg County, other than this administrative defect, and Winstead has shown absolutely no prejudice stemming from Judge Brantley's presiding over this trial in Muhlenberg County. Neither do we find any. At no time did Winstead bring the defect in appointment to Judge Brantley's attention, nor did he raise the issue on direct appeal. We have no hesitation in concluding that Winstead has waived any objection to Judge Brantley's authority to preside over his trial.
This Court affirms both convictions and the sentences imposed for each, but we must vacate the judgment because the sentences cannot legally run consecutively. Accordingly, we remand this case to the trial court with directions to resentence Winstead to concurrent sentences and enter a new judgment consistent with this opinion.
All sitting. All concur.
We also note that another witness testified to seeing a white pickup truck in Branson's driveway the night of the murder. Although that witness was not able to identify the vehicle with specificity nor identify anyone in the vehicle, her testimony about seeing a white truck in the driveway added to the evidence of Winstead's guilt because Winstead was known to drive a white truck.
At the time of the hearing on jury instructions, the trial court indicated that it did not actually have a copy of Note 185; but based on the documents before it (the extradition treaty and a written translation of an audiotaped Costa Rican court hearing concerning Winstead's extradition), which stated that Winstead would not receive a sentence of life without parole, it found that the LWOP/25 sentencing option was permissible. Evidence challenging the accuracy of the translation of the Costa Rican court hearing on Winstead's extradition was not presented until after the trial.
