Ruppee v. Commonwealth

VANCE, Justice. The appellant, Keith Ruppee, appeals from his conviction of robbery and as a first-degree persistent felony offender for which he received an enhanced sentence of life imprisonment. This is the second conviction of the appellant on this charge. His first conviction was reversed by this court after he had already served 2V2 years of his sentence. He contends that the Commonwealth’s Attorney misstated the law in the penalty phase argument to the jury which led the jury to fix a higher sentence than it would have imposed otherwise. In his remarks to the jury, the Commonwealth’s Attorney commented on the fact that if convicted as a persistent felony offender, the appellant would be required to serve a minimum of 10 years before he would be eligible for parole but that he would be credited with the 2½ years he previously served. He stated: “Now under normal parole guidelines a life sentence means eight years. He serves eight years and he is eligible to get out. It makes you sick doesn’t it but that is the way it is because there is no where to put them. Now the persistent felony offender in the first degree changes that just a little bit. Because it requires him to serve a minimum of ten years. And thats (sic) all. You give him lif, (sic) he is going to serve ten years. If you give him twenty years, he is going to serve ten years. So it really doesn’t matter. We are going to be asking for a life sentence just to get the message [853] across to this guy. Its (sic) only going to mean ten years any way. [[Image here]] “So they try and lay the guilt thing on you. Please don’t do this to me. Hey, you didn’t do it to him, he did it to himself. What we are doing is getting him off the street, OK That is what we are doing. Its (sic) not only to punish him but to protect everybody else. OK That is what we are doing. So don’t feel bad about giving a life sentence or 90 years or 80 years or 20 years or whatever you do. It doesn’t matter. He is going to serve the same amount of time and that is seven and a half years. “MR. SCHILLER: Your Honor I’m going to have to object. I don’t usually object on these but I’m going to have to object to that evidence. The evidence as shown indicates the date at which a person is eligible or— “MR. BENTON: Mr. Schiller is arguing law and if he wants to argue the law lets (sic) approach the bench.” Since it is true the appellant had already served 2⅝ years on a conviction for this charge before it was overturned and remanded for a new trial, it is likewise true that he would be credited with that time on any new sentence he might receive on retrial. It is also true that he would only have to serve 7⅜ years of any new sentence before he would be eligible for parole. But it is not true that he would only have to serve 7½ years upon conviction regardless of the length of his sentence, whether it be 20 years, 80 years, or life imprisonment. There is no guarantee that appellant will be paroled at his first eligibility date. Further, it is possible that with a sentence of 80 years or life imprisonment, he might be required to serve a term considerably longer than 7½ years. Even if paroled at the earliest possible date, he would remain under the sentence and could be recommitted if he violated the terms of the parole. The prosecutor misstated the law. His misstatement was objected to by the appellant. The trial court did not rule upon the objection, but neither did the court admonish the jury or correct the misstatement. The jury was left with the impression that if it imposed a life sentence the appellant would not serve longer than 7½ years and that, in his case, a life sentence would constitute no greater punishment than did a sentence of 20 years. As a practical matter, if this conviction were to be affirmed, the appellant might be paroled at the end of 7½ years. This is not necessarily so, however, and a jury should not be misadvised by the Commonwealth’s Attorney as to the legal effect of its verdict, nor should a verdict based upon such a misstatement of the law be allowed to stand. The appellant also contends the trial court erred by refusing to admit competent and relevant evidence at the trial. A store clerk identified appellant as the person who committed the robbery. She denied that she had ever stated that she was unsure as to whether appellant committed the robbery. Four witnesses were produced by appellant who testified they heard the store clerk state to a police officer at a preliminary hearing that the witness was not sure of her identification of appellant. The appellant also offered to prove that the police officer to whom the store clerk had made this statement attempted to coerce the clerk into making a positive identification of appellant by stating to her, “Don’t let that guy’s looks intimidate you. You know that’s him. We know that’s him. Now go in there and identify him as being the man.” This proffered testimony was refused admission on the ground that it was hearsay. The purpose of the testimony was to attack the credibility of the witness who identified the appellant by showing that the identification may have resulted from coercion and intimidation by a police officer. It was not offered to prove the truth of a statement but only to show that such a statement was made. Testimony substantially to the same effect, if offered upon retrial, will be admissible in evidence. The appellant’s allegation concerning a parole officer’s testimony relating to appel [854] lant’s conviction of a number of criminal offenses other than the two convictions upon which his first-degree persistent felony offender status was predicated is not preserved for review, and his contention concerning identification based upon a suggestive photo display is without merit. The judgment is reversed for further proceedings consistent with this opinion. STEPHENS, C.J., and GANT, LAMBERT and LEIBSON, JJ., concur. WINTERSHEIMER, J., dissents by separate opinion in which STEPHENSON, J., joins.