*1 lоgic the same to instructions 6 and apply there sufficient and differ- Again,
7. both, evidence on con-
ential my on both. with
victed This is consistent
dissent Miller v. (Ky.2009). every I concur in
S.W.3d aspect opinion and also com-
other in dealing the trial
mend court’s work set of complex instructions. BROWN, Appellant,
Phillip L. Kentucky,
COMMONWEALTH
Appellee.
No. 2006-SC-000654-MR.
Supreme Kentucky.
June 2010. *10 Rhorer, Potter,
Emily Holt Samuel N. Lynn Donna Boyce, Appellate Branch Manager, Department Advocacy, of Public Frankfort, KY, for Appellant. Counsel General, Conway, Attorney Jack David Barr, General, Wayne Attorney Assistant General, Office of Attorney Office of Crim- Frankfort, KY, Appeals, inal William Rob- Jr., General, Long, Attorney ert Assistant Division, Appellate for Criminal Counsel Appellee.
Opinion Justice ABRAMSON.
Phillip Brown from an appeals August 21, 2006 judgment of Warren Circuit Court, convicting first-degree him bur- 511.020; glary, violation of KRS of first- degree robbery, in violation of KRS 515.020; murder, and of violation KRS 507.020. sentenced prison consecutive twenty-year terms *11 to right he because Sixth Amendment robbery, the and tion his burglary the and both prosecution wit- key the murder. sentenced to death for cross-examine certain was alleged, jury the On improperly and had limited. The Commonwealth nesses been found, early morning remand, hours during that transfer parties agreed to 11, 2001, forcibly en- January of Brown County, to Warren and Brown venue of Bland and Sherry tered residence in in retried the Warren Circuit Court in the of her television stealing that course May 2006. possibly money items set and or other In addition the horrific crime-scene to Bland, purse, her he killed stab- from evidence, beyond established which beating bing her with a steak knife and murdered, that had been doubt Bland Brown repeatedly her with a tire iron. roughly at trial fell proof Commonwealth’s his sen- challenges his conviction and both wit- categories. into three There were tence, by the twenty some errors alleging Palmer, Kemp, Charlene Jerry nesses— raising trial court and several additional Barbara Slater —who connected and penalty. the death We arguments against Kemp, to television Brown the stolen set. respect of with
reject Brown’s claims error Brown, who had been a close friend of conviction, but with him agree to his we morning that at 3:00 or one testified 4:00 improperly subjected that he to murder, about the of the Brown at time second trial. Accord- penalty death his his, apartment with a Kemp’s, had come judgment we the trial ingly, affirm court’s set stolen from television similar one guilty it finds to the extent that Brown kept the Kemp Bland. testified that he charged and sentences him crimes for weeks he heard television a few until twenty-year prison terms for consecutive news a similar had on the television robbery burglary, and but we reverse Bar- taken Bland’s been from residence. Brown’s death sentence for murder Slater, mother, Kemp’s testified bara resentencing respect remand for with too became when she she concerned crime. theft of televi- learned about the Bland’s
RELEVANT FACTS She that she confronted sion. testified him to Brown her concerns and told County Brown’s trial was 2006 Warren apartment. from Kemp’s remove set second for the offenses alleged trial thereafter, according Kemp, he Soon Sherry against Bland. Bland resided Brown the television set to hauled Columbia, Tree in Adair Pine Street outside town on Lane spot Lampton County, Jury an and it was Adair Grand it dumped where on the side Brown on 2002. August indicted Palmer, Kemp’s at the companion road. county Brown was in that and con- tried time, Kemp’s testimony confirmed Sep- three victed the same оffenses their brought Brown had the television to trial, jury tember At that found 2003. that a apartment early morning one aggravating pursuant two circumstances hauled Kemp few weeks later he and had KRS 532.025 but did not recommend remov- away. She testified that before Instead, rec- penalty. death the first set, had it with ing wiped Brown prison ommended a sentence life in it with a blanket. baby bleach and covered parole at least possibility without the (25) Although police did not discover twenty-five years. appealed he and place Kemp television said Judgment, from the Adair Circuit Court it, of that opinion August and in an Brown had left two residents unpublished early in late this reversed Brown’s convic- area testified that March *12 they brother, April of 2000 found a television and his Joseph Kemp, had told matching description him, Brown, set Bland’s they had stolen a televi- lying Lampton beside Lane and hauled it sion set from a woman and that in the dump. course of the theft things gotten “had rough.” Brown claimed to have fabricated proof
The Commonwealth’s also includ- the story in retaliation for Kemps’ Lane, ed Ingram, witnesses —Eddie Archie allegations against him. Stephanie and McClain—who testified that killing. Brown had confessed to the In- To counter this evidence, formidable friends, gram, one of Brown’s testified that sought to show that the group first several months after the killing, Brown of witnesses were testifying falsely be- “just kind Ingram of said that he did it.” they cause bore grudge against uncle; Lane, friend, and another both testified group, second all whom had friend, that a third Shane Hughes, had told legal problems own, of their testify- were them that Brown had confessed to him. ing falsely in exchange for favors from the Lane that according Hughes, testified Commonwealth; and that the group, third said, you Brown had “If don’t I believe did witnesses, the forensic were not certain it, go by open.” back door will be iron, that his DNA was on the tire This particularly significant, statement was even if it was placed could have person because the who discovered Bland’s there themselves mishandling the vari- body had indeed open, found back door given ous exhibits analysis. them for police but the had never made that fact noted, As jury was persuaded by the public. Lane also testified that when he proof Commonwealth’s and found Brown going, asked Brown how his case was guilty of charges. all three Brown raises Brown said that might alright he if appeal. numerous errors on His first con- everybody quit would talking. McClain tention is that because he was sentenced to testified that her boyfriend, another of imprisonment life possibility without the friends, Brown’s told her that Brown had (25) parole twenty-five years killing confessed to the to him. trial, death at his first the Commonwealth The Commonwealth’s line proof third precluded from seeking pen- the death included forensic witnesses analysis whose alty against him at retrial. of one of the weapons, murder the tire iron, had isolated a mixed DNA sample to ANALYSIS which very Brown was a likely contributor. Aggravated I. Brown’s
The DNA Sentence analyst testified that one of the Possibility Life Without male, contributors to of Pa- the mixture was a role for 25 Years at the First Trial that both Bland potential and Brown were Finding contributors, Was a That the Common- and that the odds that per- wealth Had Not son Proved That Death chosen at random from the United Appropriate Penalty Was the States’ and it population would be a contributor Penalty Any 40,000. Precluded the Death 1 in were Subsequent Capi- Trial for the Same played Commonwealth also for the tal Offense. recording a video of Brown’s testimo- ny during his County During law, Adair trial. Kentucky Under murder is a testimony 507.020(2). Brown admitted that in No- capital offense. KRS This vember of he falsely prosecutions had told an means that in for murder the investigating Jerry detective that Kemp Commonwealth is authorized to seek the *13 and, does, time to sübjected a murder not be a second the if it could penalty,
death penalty a retrial was necessi KRS death when calls into effect 532.025. conviction virtue in the improprieties tated of lists various circumstances That statute the North composition jury. of While Car aggravate mitigate or to the tending Pearce, 711, v. 89 olina 395 U.S. S.Ct. con- provides and that a defendant offense (1969) 2072, recognized L.Ed.2d 23 656 capital may a crime be sentenced victed of generally jeopardy there is no double if, if, only but at the conclusion of to death retrying a has bar to defendant who suc of fact— the finder presentence hearing, conviction, cessfully challenged his the the of at jury the existence least —finds “inapplicable “clean slate” rationale is circum- aggravating of the listed one jury appellate or an agrees whenever determines, considering after stances and decides that has prosecution court the in miti- in aggravation all the evidence Bullington, case.” 451 U.S. at proved its pun- appropriate that death is the gation, 443, holding 101 1852. This was a S.Ct. Viewing process, this more ishment. logical extension of both Burks v. United em- jury the instructions particularly, 2141, States, 1, 437 U.S. 98 S.Ct. 57 in sentencing process in the this ployed (1978), 1 held that a defen L.Ed.2d which case, Jeopar- light controlling in of Double dant could not be retried if his conviction dy precedent, we are convinced Clause was reversed because of insufficient evi after Brown’s first trial concluded States, dence, and Green v. 355 United fixing at punishment with verdict the 184, 221, 78 2 L.Ed.2d U.S. S.Ct. 199 aggravated sentence of life without (1957), held conviction of a which less (25) parole twenty-five of possibility for implied offense as an operates er-included years, precluded Commonwealth greater of the acquittal offense. seeking penalty from the death a second By enacting sentencing proce- a capital departs time. Because conclusion this on the dure that resembles a trial issue overrules, from, indeed v. Commonwealth ... guilt innocence Missouri ex- Eldred, (Ky.1998), 973 and Sali- S.W.2d 43 requires plicitly jury determine (Ky.2005), Payne, v. 169 536 nas S.W.3d prosecution “proved whether the has its address detail the evolu- we must some Green, case.” Both Burks and as has controlling Supreme tion of United States noted, exception to been state an this precedent regard issue. Court general upon rule in North Car- relied Missouri, 430, Bullington v. 451 U.S. exception appli- v. Pearce. olina That 1852, (1981), here, 101 S.Ct. L.Ed.2d cable and we therefore refrain Supreme held extending States Court from United the rationale Pearce require very present different facts of the capital sentencing schemes in his Bardgett, case. Chief Justice dis- findings, specific the finder of fact make from the ruling sent of the Missouri if death is to be in addition to imposed, Supreme majority, Court observed that findings rеquired those for conviction of the sentence of imprisonment life which itself, underlying implicate crime his first petitioner received at trial Jeopardy Double Clause Fifth already acquit- meant that “the has That Amendment. commands that Clause the defendant whatever was ted nec- subject ... for person shall “[n]o essary impose the death sentence.” to be put jeopardy same offense twice S.W.2d, agree. at 922. We In Bullington, life or limb.” the Court 445,101 1852. 451 U.S. S.Ct. emerged that a who concluded defendant capital later, from his first trial with a sentence years Three Arizona Rum (50) parole fifty years life for sey, without 467 U.S. 104 S.Ct. (1984), Supreme “when, bar to capital L.Ed.2d 164 further proceedings death, judge’s appeal confronted a case which a trial from a sentence of finding aggravating reviewing of no circumstances court finds the evidence insuffi- judgment imposing support a life cient to aggravating sentence fac- (25) relied, tor on parole twenty-five years sentencing judge without which and, following had been set aside remand but does not find the evidence insufficient *14 grounds, sentencing judge support on other the the penalty.” death In that case, then the aggravating judge found a different circum trial had found the state’s heinous, imposed “especially stance and the death sentence. cruel or depraved” ag- Affirming Supreme gravating the Arizona circumstance present Court’s and im- holding posed the the death sentence violated death sentence on two defen- dants, the Jeopardy Double Clause as construed but Supreme Arizona Court in Bullington, supra, Justice deemed the O’Connor evidence insufficient satisfy particular wrote: aggravator. Reversing and remanding for an error in the guilt phase, jeopardy The double principle relevant Supreme Arizona Court held the de- respondent’s case is the same as that fendants nonetheless subjected could be on Bullington: in acquittal invoked an on remand to penalty the death because there by the merits the sole decisionmaker in was ample evidence that the murder was proceeding is final and bars retrial “pecuniary gain,” for aggravator another on charge. Application the same of the under Arizona law. After the penal- death Bullington principle respon- renders imposed ties were subsequently affirmed dent’s death sentence violation of the Court, Supreme Arizona the United Jeopardy Double Clause because re- Supreme States upheld them as spondent’s initial impris- sentence life well, distinguishing Bullington and Rum- undoubtedly onment was acquittal an on sey: the merits of the central issue in the At no
proceeding ap- point during petitioners’ capi- death was the first —whether propriate punishment sentencing tal respondent’s hearing appeal for did either reviewing offense. The trial court the sentencer or the entered find- prosecution court hold ings denying the existence of had each of the prove seven “failed to case” that statutory aggravating petitioners circum- its stances, law, required by penalty. Plainly, and as state deserved the death sentencing judge acquit, the court then entered in did not for he judgment re- imposed the death spondent’s penalty. favor on the issue of death. While the judgment, Supremе That on Arizona Court held that findings based suffi- in sentencing judge relying cient to erred on the legal establish entitlement to the sentence, heinous, cruel, “especially depraved” life amounts to an or acquittal on circumstance, and, such, aggravating the merits it did not hold as bars retrial appropriateness prosecution of the death has failed to pen- prove alty. penalty. its case for the death 211,104 467 atU.S. S.Ct. 2805. different, related,
A but issue arose two that the in- Bullington proper indicates Arizona, years later in Poland v. quiry 476 U.S. is the sentencer re- whether 147, 148, 106 S.Ct. viewing L.Ed.2d court has “decided that (1986), Supreme when the Court consid- prosecution proved has not its case” that ered jeopardy whether there was a double penalty appropriate. the death acquittal” majority, “implied no the Eldred 154-55,106 (empha- S.Ct. U.S. into the could be read penalty of the death original).
sis
jury’s
first
verdict.
Eldred,
later,
supra,
a decade
Over
confronted
Supreme Court
Kentucky
However,
Stephens
Justice
as Chief
im-
jeopardy
double
first time the
for the
justices,
three
strong
dissent for
wrote
sentencing
Kentucky’s capital
plications
approach really cen-
majority’s
Eldred
and,
Bullington
relying
scheme
that in Missouri the
tered on the fact
be-
no bar to a defendant
Rumsey, found
options for an
sentencing
two
had
following a second
to death
ing sentenced
murder,
Kentucky
whereas
aggravated
a sentence of
having received
despite
trial
range
op-
wide
perceived
there was
parole
possibility
life without
on the “hallmarks
Focusing instead
tions.
(25)
conclusion of
years at the
twenty-five
language in
*15
guilt or innocence”
of a trial on
majority
four-justice
trial. The
his first
the four
the dissent identified
Bullington,
sprang from
Bullington
concluded
which also
present
in that case
factors
Green,
sources,
supra, and
Burks and
two
(1) a
sen-
to Eldred:
bifurcated
applied
there was
was whether
thus the first issue
(2) the burden on
tencing proceeding with
justify
introduced to
the
evidence
sufficient
beyond a reasonable
prove
the state to
Be-
in Eldred’s first trial.
penalty
death
appropriate
was the
sen-
doubt that death
had found the statuto-
jury
the first
cause
(3)
tence,
having produced
with the state
for hire”
factor of “murder
ry aggravating
in
effort to meet that burden
evidence
an
“beyond a reasonable doubt”
the
under
(4)
and, finally,
separate proceeding,
in the
standard,
that “the
majority
the
concluded
in
deliberations
guidance
jury
for the
its
carried its burden
prosecution had
Justice
penalty. Significantly,
about
Chief
El-
appropriate
an
sentence.”
death was
in the
very
the
flaw
Stephens identified
Moreover,
dred,
the
at 47.
973 S.W.2d
our
majority’s analysis which commands
no im-
concluded there had been
majority
re-evaluation:
(the
of Bull-
premise
plied acquittal
Green
in
first
penalty
the death
ington) of
Eldred,
for
penalty
To obtain a death
because,
sentencing
unlike
trial
had the burden of
the Commonwealth
which
in Arizona and Missouri
schemes
things beyond
two
a reasonable
proving
sentencing judge
jury
bilateral
give a
(1)
doubt,
aggrava-
of an
the existence
parole
or life without
choice of either death
(2)
factor,
that Eldred should
ting
years,
number of
Ken-
specified
for a
jury
to death. The
found
be sentenced
jury finds the exis-
tucky
if the
“[e]ven
ag-
that the
bеyond a reasonable doubt
factor,
jury
aggravating
tence of an
for hire existed.
gravator of murder
recommend a sentence within
must still
was further
significantly,
Most
range
possible
sentences.”
the entire
instructed,
upon
you
the whole case
“[i]f
532.030(4)
Indeed, KRS
at 47.
973 S.W.2d
doubt whether
have a reasonable
that even in cases where
provide
does
death,
Defendant should be sentenced
authorized,
jury may
penalty
death
punishment
fix
at a
you shall instead
aggravated
only
the three
recommend
imprisonment.”
sentence of
(death,
parole,
life without
sentences
view,
Bulling-
(25)
according
my
In
twenty-five
parole
life without
ton,
Eldred of the
jury acquitted
associated
years), but also the sentences
punish-
ie.,
when it fixed his
murders,
penalty
death
life or a
non-aggravated
(20)
impris-
at a sentence of
ment for murder
twenty
nor more
term of not less than
(50)
proba-
benefit of
Thus,
onment for life without
years.
in the view
fifty
than
Arizona,
parole
584,
until he
served a v.
609,
tion or
has
536 U.S.
122 S.Ct.
years.
of 25
minimum
2428,
(2002)
erly sentenced to death and will not be Brown contends that the trial court subject penalty during death on retrial made several errors the course Juries, Criminal, 2, majority required 3. As noted footnote to is not lions given Kentucky concludes the instruc- law and should not be Court reasonable doubt 12.08, appearing Kentucky § tion at Instmc- future. 596 He maintains ven- the Sixth Four
jury selection.
that two
Under
B,
teenth Amendments to the United States
irepersons, A and
have been
should
11 of
Ken
and Section
in favor of
Constitution
struck as biased
the Common-
Constitution,
tucky
a criminal defendant is
not. He maintains that
wealth but were
jury.
D,
impartial
help
entitled
an
To
venirepersons,
improp-
two
C and were
protect
right,
that
RCr 9.36 mandates that
erly
cause on the
that
ground
struck for
ground
is reasonable
to be
“[w]hen there
against the
penal-
were biased
death
juror
lieve that a
cannot ren
prospective
ty.
that
He maintains
the trial court
impartial
der a fair and
verdict on the
under
abused is discretion
Batson v. Ken-
evidence,
juror
shall be excused as
79,
1712,
106
90
tucky, 476 U.S.
S.Ct.
this
(1986)
qualified.”
making
determina
upheld
L.Ed.2d 69
when
the Com-
tion,
pro
the trial court is to consider the
an Afri-
peremptory
monwealth’s
strike of
juror’s
spective
responses
voir dire
as well
And,
venireperson.
finally,
can American
during
as his or her demeanor
course
maintains
the trial
Brown
court
dire,
keep
of voir
and is to
mind
its discretion when it
abused
dismissed
of those
generally
totally
it is the
circum
pan-
from the venire an African-American
response
any single
stances
and not
el
member who arrived
the courthouse
question
impartiality
that reveals
or
morning
general
voir
with
dire
“Impartiality,”
lack of it.
we reiterated
system.
his breath and in
alcohol on
Commonwealth,
recently in
v.
Shane
Jury
(Ky.2007),
“is not
selection
criminal cases S.W.3d
a tech
question
in Kentucky
governed by
is
9.30 nical
but a state of mind.” In
RCr
deed,
prospective
9.40 and Part
through
notwithstanding
ju
RCr
Two of the
dire,
responses
during
Administrative Procedures
ror’s
voir
whatever
bias,
provisions
these
his or her
of lack of
protestations
Justice. Under
the trial
familial,
juror’s
relationship,
court is vested with broad
“be it
fi
discretion
close
situational,
process,
oversee the entire
from summon
nancial
of the par
ties, counsel,
ing
choosing
witnesses,”
petit jury
the venire
victims or
is suf
actually
which
“to
require
hears
decides the case.
court
sustain a
ficient
Commonwealth,
challenge
v.
the juror.”
Fields
spective juror impar- A’s examination, B’s voir dire she individual tiality, her manifold connections with law year previ advised the that about a court apt subconsciously enforcement were ously burgla she the victim of a had been make her favor the and its Commonwealth ry. Her had been into house broken when disagree. officer witnesses. We police home, no one household various Although stolen. she items had been had many
We have times held that “the been involved the sub marginally person mere fact that a is a current or sequent investigation, aware that she was police officer is insufficient to war former *20 charged two had been with the individuals removal cause.... Additional ev rant offense, already of them been that one had idence of bias must be shown.” Mills v. sentenced, the Commonwealth, awaiting and that other was (Ky. 95 842 S.W.3d 2003) Commonwealth, questions sentencing. response (citing Young v. 50 of this on her (Ky.2001)). Similarly, 148 we have about the effect incident S.W.3d 598 experience, Brown, relatively non-traumatic was B’s who
ability
pre-judge
not to
credence to her
lending
burglary,
a
she
circumstances
have committed
alleged to
she could base
not
experience
unhesitating
would
assertion
that her own
stated
on the evi
in Brown’s case
that she under-
her decision
and
judgment
color her
those facts and
case was to be decided
Given
presented.
that Brown’s
dence
stood
present-
countervailing
evidence
evi
solely
the basis of the
on
the absence
dence,
moved to have
not abuse its
trial. Brown
trial court did
during
the
ed
ground
on the
juror
refusing
prospec
B struck
to strike
prospective
by
discretion
one of
crime similar to
as victim of a
if the trial
juror
Finally,
a
B.
even
tive
crimes,
apt to harbor a
she was
re
alleged
the
its discretion with
court had abused
re-
against
Again,
him.
bias
it is doubtful
jurors,
subconscious
two
spect to these
demeanor,
B’s
juror
lying
prospective
on
entitled to relief.
Brown would be
information
volunteering
the
candor
per
her
extra
gave
The trial court
and her
experience,
fourteen)
personal
(a
her
about
total of
challenges
emptory
her, the
put to
questions
answers
only the
the
but allowed
Commonwealth
As with
the motion.
trial court denied
required by
challenges
peremptory
nine
chal-
A,
peremptory
a
juror
Brown used
receipt
Whether a defendant’s
RCr 9.40.
B.
juror
remove
lenge to
accorded to the
challenges not
of “extra”
deprivation
the
avoids
Commonwealth
court’s decision was
The trial
Shane,
right discussed
a substantial
po
As with
an
of discretion.
abuse
best left for another
supra,
question
is a
officers,
prospec
fact that a
the mere
lice
dispositive.4
potentially
it
case where
a crime
the victim of
juror
tive
has been
being tried does not
to the crime
similar
its
Did Not Abuse
B. The Trial Court
bias. Ad
disqualifying
by
imply
itself
Two Venire-
Discretion When
Struck
required.
of bias is
ditional evidence
Against
persons
the Death
as Biased
Commonwealth, 63 S.W.3d
v.
Woodall
Penalty.
Commonwealth,
(Ky.2001); Hodge v.
contends that the
Brown next
(Ky.2000); Sanders
S.W.3d
struck two venire-
improperly
trial court
(Ky.
801 S.W.2d
D,
and
on
prospective jurors C
persons,
1990).
bearing on
factors
Obvious
of their reserva
ground
that because
similarity be
are the
likelihoоd of bias
concerning
penalty
the death
tions
crimes,
time
length
tween the
consideration to
full
give
could not
due
juror’s experience,
prospective
since the
to which
range
potential
sentences
prospective
degree
of trauma
parties
As the
cor
subject.
Brown was
totality of all
It
is the
juror suffered.
note,
Supreme
States
circumstances, however,
pro
rectly
United
recently
precedents
reviewed its
must
in Court
responses that
spective juror’s
Here,
them to establish
this area and found
ruling.
the trial court’s
form
principles:
four
following
juror
least
passed
prospective
had
since
year
monwealth,
(Ky.2009),
297 S.W.3d
shortchange
in this manner
"To
a defendant
4.
strike) is
the defendant must
(failing
grant
proper
for cause
now clarifies that
which
effectively give
more
the Commonwealth
chal-
identify jurors
would have been
who
challenges
the defendant.”
peremptory
than
had not
lenged
removed if the defendant
Shane,
Although we need
at 339.
243 S.W.3d
challenge
peremptory
required to use a
been
change applies retro-
not decide whether
erroneously
juror(s)
the trial court
who
case,
actively
we should also note that
to this
to strike for cause.
failed
modified Gabbard v. Com-
Shane has been
*21
First,
has the right
capital punishment
a criminal defendant
don’t know.” “It
—“I
jury
from a
impartial
to an
drawn
venire
depends.” “That would be hard.”—and it
capi-
that has not been tilted in favor of
is the trial court’s difficult task to distin-
punishment by
prosecutorial
tal
selective
guish
potential
jurors
between
whose
Second,
challenges for cause....
equivocation
merely
reflects
careful think-
strong
having
State has
interest
ing and a strong
responsibility
sense of
jurors
apply capital
who are able to
pun-
the face of such an important decision and
ishment within the framework state law
jurors
those
equivocation
whose
signals an
Third,
prescribes....
to balance these
impaired ability
to abide
in-
interests,
juror
substantially
who is
structions
give
capital
and to
punish-
impaired
ability
in his or her
to impose ment the
Kentucky
consideration
law re-
penalty
the death
under the state-law quires. Because this distinction will often
cause,
framework can be excused for
but
be anything but clear
hinge
and will
to a
juror
if the
substantially impaired,
large extent on the trial court’s estimate of
impermissible....
removal for cause is
potential
demeanor,
juror’s
the deci-
Fourth, in determining whether the re-
sion is
particularly
one
within the trial
moval of a potential juror would vindi-
subject
court’s discretion and is
to reversal
cate the State’s interest without violat-
appeal
only for an abuse thereof. Ut-
ing the
right,
defendant’s
the trial court
techt, swpra.
judgment
makes a
in part
based
on the
juror
Potential
C
during
conceded
demeanor
juror,
judgment
owed
voir dire that she would have trouble con
by reviewing
deference
courts.
sidering the
penalty.
death
In response to
Brown,
1, 9,
Uttecht
551 U.S.
127 S.Ct.
questions
counsel,
by defense
she stated
(citations
(2007)
discretion
C
discretion,
contends,
also
its
Brown
cause.
abused
D.
by striking
juror
In Brown’s
potential
D
a
juror
presents
Potential
view,
D
juror
that he
potential
when
said
the
somewhat more difficult case. When
not
he
did
know whether
could consider
he could con
initially
court
asked whether
he meant
penalty,
death
that
D
penalty, potential juror
sider the death
which
weighty
decision
he would not
know,
capi
he did not
that
responded that
know
to make until he had heard the
how
decision,
be a
punishment
tal
would
hard
evidence,
open-
the sort of serious but
know
and that he
not
how he would
could
Supreme
response
minded
that
presented
decide
with all the facts.
until
has
does not conflict
indicated
with
know,”
repeated,
He
“I don’t
several times
jury capable
State’s interest in a
of dutiful-
when
if he could consider the death
asked
ly following
abiding by
its instructions and
however,
clear,
penalty. He also made
its oath.
opposed
that
not
to the death
he was
Again, we are convinced that the trial
se,
penalty,
and three
stated that
per
times
court
not abuse its
did
discretion. We
might
be such that
there
evidence
there
agree
nothing
with Brown that
problem”
imposing
would
“no
it.
be
jury
talismanic about
Commonwealth’s
responses, the
equivocal
Given these
Com
question.
verdict
The stan-
attempted
pin potential ju
monwealth
foreman/death
potential
dard for
disqualifying
juror is
asking
ror D
him
he
down
whether
whether
juror’s
substantially
views
im-
verdict
sign
could
the death
were the
pair
ability
capital
or her
consider
capital punishment
to decide on
and were
punishment
in circumstances where the
jury’s foreperson.
he to
be elected
Assembly
General
has allowed for it. Ju-
signing
replied
Juror D
the verdict
duty
rors are
no
under
serve as fore-
“tough,”
would
that he
not volun
would
role,
person,
potential juror’s
discomfort
hoped
teer for that
he
he
role,
confronted
especially
with that
when
position.
put
would not be
He did
dire,
however,
during
with it out-of-the-blue
voir
say,
that he
refuse to
would
question
sheds
on the
light
little
of his or
sign
something
or that that
verdict
capital punishment.
her
to consider
ability
he
not be able to do.
would
Here,
example, potential juror
for
D’s re-
cause,
juror
In
D for
trial
striking
sponses that he
find the foreperson
would
sign
court
to his reluctance to
referred
role “tough” and would not volunteer for
verdict,
primarily
but focused
on his re-
it,
responses
added little to the
he had
peated uncertainty as to
he could
whether
already given
directly
when asked
if he
penalty.
the death
In the court’s
consider
could
penalty.
the death
The
consider
view,
disqualified
uncertainty
poten-
gave
trial
appropriately
court
the fore-
juror
tial
D. Brown contends that
person/death
questions
verdict
little
question
regarding
Commonwealth’s
weight.
D
juror
sign a
potential
whether
could
not,
improper,
however,
death
The
verdict was
since it devi-
trial court did
abuse
by allowing
ates
its
those
Supreme
questions.
from
United States
discretion
carefully
identifying potential jurors
balanced
for as-
Court’s
standard
addition
who,
another,
sessing juror qualification in this area.
reason or
are
one
dis-
discretion,
The
qualified,
trial court abused its
voir dire is meant
assist the
maintains, by
jurors
allowing
ques-
parties identify
potential
those
to be
juror
tion
by taking potential
peremptorily.
D’s re-
struck
trial court has
*23
allowing
biguous, they
or
a
limiting
broad discretion
could lead
reasonable per-
Fields, 274
son to
he
questioning.
such
S.W.3d at
conclude that
was substantially
impaired
ability
in his
to
foreperson
892-93. The Commonwealth’s
consider the
penalty.
which
death
trial
were not calculated to
court cannot be
questions,
said, therefore,
to
potential
juror’s
commitment
have abused its discre-
elicit
evidence,
making
tion
that determination.
specific
some
view of the
were
within that discretion.
well
Indeed, as the
Supreme
United States
Uttecht,
emphasized
swpra, as-
did the trial court abuse
Nor
its discre-
sessing
juror’s
the potential
demeanor
by striking
juror
tion
D
potential
for
an
plays
important role
determining the
Although
interpretation
cause.
Brown’s
of
potential juror’s qualification, and this is
potential juror
uncertainty
D’s
about his
especially
potential
so where the
juror
ability to consider
death penalty
equivocates
earnestly
as
as did potential
is,
was
plausible,
merely
that it
D.
court
juror
The trial
is in the best
responsible
caution of a
unsure
person
un-
assessment,
position to make that
of
til he had heard the evidence whether
course, which is another reason in close
punishment
capital
imposed,
should
cases such
as this one
defer to that
is not
question
interpre-
whether Brown’s
judgment.
court’s
tation is reasonable but rather whether the
interpretation
trial court’s
was unreason-
C. The Trial Court Did Not Violate
It
able. was not.
Batson When it
Upheld
Peremptory
of an African-American
Strike
Venire-
juror D
Potential
indicated that
person.
question
capital punishment
of
was for him
exceedingly morally fraught and that he
jury
Brown next contends that the
actually
would
know until
confronted
process
tainted
selection
and his Four
feelings
with the decision
how
would
right
equal protec
teenth Amendment
Although
may
sort
themselves out.
he
tion violated when
Commonwealth
meant,
have
as Brown contends and as used one of
peremptory
its
strikes to ex
potential
D’s
juror
some
statements
juror E,
a potential
juror,
cuse
on the
that his
did not
suggest,
hesitation
concern
Brown,
basis of her race.
who is an Afri
punishment
but
capital
pro-
itself
its
can-American,
of murdering
was accused
case,
priety
the facts of the
he also
under
Following
woman.
the removal
Caucasian
that,
suggesting
made statements
when
cause,
potential
jurors
for
there re
decision,
with the
might
faced
actual
he
individuals,
forty
mained a venire of
four
capital punishment
find
too enormous a
whom
where African-Americans. The
penalty
response
even to
In
consider.
challenge
used a peremptory
defense
as to
questions,
one of
Commonwealth’s
African-Americans;
for
pros
one
those
example,
agreed
ability
he
that his
to con-
peremptory challenge
ecution used a
as to
one;
the death
penalty
“impaired.”
sider
one of the African-Americans was
point
At another
if he
lot;
when asked
could
removed
and one served on the
it,
said,
consider
he
“I don’t know.
I
ultimately
sentenced Brown to
I
might
problem
might
prosecution’s
not.”
response
death.
And,
above,
Brown,
virtually every
as noted
peremptory challenge,
citing
time
Bat-
directly
he was asked
he
asserted
Kentucky, supra,
whether
could son
that the
said,
discriminatory
consider
death
he
“I
penalty,
strike was
and moved for a
Thus, although potential ju-
don’t know.”
hearing at which the
would
Commonwealth
responses
equivocal
required
ror D’s
a race-neutral rea-
proffer
were
and am- be
is to
“all of the
of the African-Amer-
trial court
consult
removing
one
son
the issue
upon
that bear
circumstances
venirepersons.
ican
Snyder,
animosity,”
racial
552 U.S.
familiar,
provides a
now
Batson
As is
including
proponent’s
128 S.Ct.
whereby trial
are
three-step process
courts
*24
strike, the
in
the
in-
explaining
demeanor
peremptory juror
that
adjudicate
claims
of
plausibility
explanation,
herent
that
in-
challenges were
on race:
based
the
of
in
treatment
the
consistencies
First,
prima
must make a
defendant
jurors
juror
similarly
stricken
and
situated
peremptory
that a
chal-
showing
facie
class,
suspect
any history
the
and
outside
of
lenge has been exercised
the basis
may
using
the
have of
proponent
peremp-
race[; sjecond,
showing
if that
has been
tory
Snyder,
challenges invidiously.
su-
made,
prosecution
the
must offer a race-
Dretke,
231,
v.
pra; Miller-El
545 U.S.
the
in
striking
juror
neutral basis for
(2005).
2317,
125
omitted). made, showing If is that ma merely burden the ra- noting facie propo- burden then shifts to the strike’s alleged cial circumstances crime and present explanation nent to a race-neutral prosecutor that the struck fact had one removing question. “Al- juror remaining of the four African-American though prosecutor present must a com- essence, venirepersons. argument, His reason, prehensible step the second of this was that strike of an African-Ameri- an process explanation does not demand venireperson gives can rise to an inference plausible; persuasive, that is or even so of if is Afri- discrimination the defendant long inherently as reason is dis- In response, can-American. the Common- Collins, Rice criminatory, suffices.” defense, too, that wealth noted had 333, 338, 546 U.S. 126 S.Ct. panel struck of the African-American one (2006) (citations L.Ed.2d and internal members, perempto- and asserted omitted). The quotation proponent marks ry challenge of the four did not one having articulated non-invidious reason constitute facie of discrimi- prima evidence strike, addition, question presented for the “the at po- explained nation. he stage Batson inquiry the third juror expressed tential E had serious mis- oppo- [the whether defendant strike’s givings penalty, stating about death respon- has shown purposeful type nent] discrimina- that she did not want that 484-85, Snyder, sibility probably sign tion.” 552 U.S. could not a death determination, making 1203. In verdict. The Commonwealth S.Ct. reminded to have poten- the court that it had moved stated she doubted she sign could cause, juror tial E struck for and that in response a death verdict. Her could have E stated that denying juror juror made E stand out the Common- motion— despite she could misgivings her consider wealth’s particularly mind as someone like- penalty sufficiently the death for a serious ly to thwart its to secure a efforts death crime—the trial court had referred the sentence. peremptory Commonwealth to its chal- Moreover, although Snyder and Mil- no
lenges. Brown adduced other circum- the Supreme noted that ler-El tending suggest stances that the Com- prosecutor’s treatment of inconsistent sim- explanation pretextual monwealth’s ilarly situated can be an im- *25 venirepersons that E was juror its strike of discriminato- identifying factor in a portant discrimina- ry, and the court not found in the strike, tory in peremptory those cases the on the Commonwealth’s favor discrimina- disparate treatment was clear and was question, tion that Brown but ruled had only one factor others among tending to prima failed even to meet his facie burden. suggest prosecutors The discrimination. us, On appeal, Brown invites as he did nearly in those cases struck all all of the court, not invite the trial to compare the members, panel African-American and in E potential juror strike of with the Com- explanations both cases their for at least of monwealth’s treatment several white of highly implausi- some were strikes panel expressed members who also reser- hand, Here, ble. on it the other is not penalty, vations about the death but whom undeveloped clear from the record that the Commonwealth not strike. Two of did E juror disparately, was treated the Com- these potential jurors particular other to high monwealth did not seek remove a elicited unsuccessful motions for for-cause proportion of the panel African-American strikes, but were not then struck peremp- members, explanation and its for the strike torily, Although juror as was E. these juror E—her serious reservations about reasonably additional facts could entirely death penalty plausible. —was to thought give rise an inference of these we say In circumstances cannot that discrimination, likely and thus would have clearly by trial court finding erred burden, satisfied facie prima Brown’s peremptory challenge potential juror E the circumstances of this case we are not non-discriminatory, this is so even in and they compel convinced that a finding of light of comparisons with other panel place, discrimination. first Brown’s give members that not Brown did the trial failure comparisons to adduce at trial these opportunity court an to consider. opportunity denied the an Commonwealth to provide racially explanations neutral for D. The Did Not Abuse its Trial Court all, are, them. There after non-racial dif- by Dismissing Venireperson Discretion ferences E and juror jurors between Duty Reported Smelling For Who the Commonwealth not strike did Strongly of Alcohol. may, point from the Commonwealth’s view, respect to Finally with the selec Both of telling. been the other jury, tion Brown contends that the panel who members elicited for-cause mo- tions, trial court discretion when example, abused its answered Common- potential juror wealth’s voir F from the veni- question signing dire about dismissed saying morning group the death verdict re. On the voir dire by although they begin, days would find it difficult was to after of individ could do several E, hand, dire, that. juror Potential the other voir a bailiff to the court reported ual court abuse its discre- Nor the trial did F “reeked” of alcohol. juror potential juror F. Part dismissing potential parties, tion court informed the of the Procedures potential juror II of the Administrative presence questioned their selection juror having jury consumed concerns F. The denied of Justice having but admitted 17 of that Part morning, management. alcohol that Section night. He previous beer the in con- drunk some trial court to hold authorizes the test, registered which given breath juror give “who fails to tempt any potential 0.037, not concentration a breath-alcohol court, or ... who otherwise attention intoxication. indicative of alcohol strongly This sec- complete jury service.” fails to (for purposes KRS 189A.010 upon the trial court discretion tion confers Cf. laws, person with a breath-alcohol DUI process manage selection presumed than 0.05 is concentration less contempt jurors by holding punish alcohol.). the influence be under through process who interfere with testified, however, that while he A bailiff This dis- or otherwise. lack of attention leading juror F from the court house impose authority cretion includes test, he the breath jail to administer sanction of dismissal for serious the lesser *26 having difficulty F follow- juror observed where, as decorum breaches court’s F’s juror He also observed ing directions. here, concerns significant the breach raises that were range at close and saw eyes cannot be relied potential juror F opinion, juror In the bailiffs’ dilated. non-disrup- and attentively to serve upon if something, of the influence was under in court appearance F’s tively. Juror something else. not alcohol then alcohol, his dilated smelling strongly of not juror Because F’s breath test did while disorientation eyes, apparent and his alcohol establish that he had consumed concerns raised such being jail led him in morning, the court did hold trial court’s decision justified and did, however, juror contempt. It dismiss There was him from the venire. dismiss venire, that in its explaining F from the no abuse of discretion. potential juror’s appearance view of alcohol on his strong court with a odor Re- No The Trial Court Committed IV. a lack of pronounced manifested so
breath Evidentiary Errors. versible processes for the court and its respect Brown’s numerous turn next We unreliability as to high degree of such of evidentiary error. As errors claims of juror unqualified for service. render admission, challenges he the Common- Al- objected the dismissal. Brown testimony his from wealth’s use of potential juror though counsel noted evidence, trial, DNA its cross- previous its African-American, he disavowed F was an numer- concerning him examination of that the any suggestion in the next breath tattoos, depictions ous its use He ob- racially motivated. dismissal autopsy photographs, crime scene and however, dismissal, because jected to the hearsay statements and its introduction test not establish that juror F’s breath did Stephanie during testimonies the influence of alcohol juror F was under He contends Jerry Kemp. McClain and appeal, he had broken law. On or that by excluding the trial court erred juror characterize F’s attempts Brown shortly of a note written to Bland evidence “troubling” juror because of dismissal as death, by limiting the cross- her before race, trial counsel ex- but as noted F’s by boyfriend, of Bland’s examination dismissal any claim that the pressly waived Joseph Jerry excluding evidence race. had to do with Kemp were involved the theft of a tele- Fifth Amendment did not bar the record- from another year vision woman about a ing, counsel moved to have the allegedly after Bland’s murder. We review a trial prejudicial and portions irrelevant redact- evidentiary rulings court’s for abuse of ed. The court denied that motion and discretion, Walker 288 permitted the play Commonwealth to (Ky.2009), S.W.Sd 729 and subject to the recording prior of Brown’s testimony in its palpable harmless and error rules dis- entirety. Brown maintains that the trial cussed above. court by erred refusing to limit the Com- monwealth’s use of the recording to rebut- A. The Trial Court Did Not Abuse its tal and by refusing to redact twelve refer- by Admitting Discretion Brown’s Testi- trial, ences to prior three references mony From His First Trial. having made to incarcerated, been Hearsay Court’s Failure to Redact Por- and three references to witnesses who ei- Testimony tions of that Was Error but ther did not testify at Brown’s second trial Harmless. at all or who not testify did at the second above, during As noted its case-in-chief trial about an incident raised at the first play Commonwealth moved to trial.5 Although agree we with Brown that jury the recording video of Brown’s testi- the trial court erred refusing to redact mony during his first trial. In that testi- portions of Brown’s prior testimony, we mony Brown being admitted familiar with are convinced that the error was harmless. Bland’s residence because one of his aunts *27 there; had lived that he unemployed was 1. Testimony Brown’s Prior Was Not 2000; January
in and that he could not by Barred Either the Constitution or account for his during whereabouts by Against Hearsay. the Rule 10, 11, 12, nights January peri- theAs Commonwealth correct in And, od which the murder occurred. as United, notes, ly States, in Harrison v. above, 392 noted he admitted having falsely 219, 222, 2008, U.S. 88 S.Ct. 20 L.Ed.2d accused the Kemp being brothers of in- (1968), 1047 the United Supreme States in the volved crime. Defense counsel ob- recognized the “general evidentiary jected ground on the recording rule that a defendant’s testimony at a for would amount to compelled testimony in mer trial is admissible against evidence violation of Brown’s Fifth Amendment him in later privilege proceedings.” The testify against Court ex himself. plained that Counsel defendant who argued “[a] also both that the chooses to record- testify ing privilege against waives his unduly prejudicial, compul was because it sory apparent made self-incrimination respect fact that to the Brown had trial, previously testimony gives, stood he por- and also that and that waiver is no tions of less recording complete effective or were irrelevant or because the de unduly prejudicial, may because fendant referred have been motivated to take testimony presented witnesses and place witness stand in the only by first the first trial but not at the strength second. reason of the When evi lawful the trial court indicated that in its view the dence against adduced him.” Id. Numer- Although sought 5. Cheryl redaction of the hearsay ences to Haskins's statements other matters complains about which he discussed infra. appeal, he did not seek redaction of the refer-
606 Testimony 2. Prior decisions The Use of Brown’s support, federal and state
ous
Subject
to the Rules
Rele-
See,
Was
reiterate,
e.g.,
that rule.
develop
Redactions Should
vance and While
(8th
Duchi,
F.2d
States v.
944
391
United
Made, Any
Have Been
Violation of
Mortensen,
Cir.1991);
v.
860
United States
Relevance Rules Was Harmless.
(9th Cir.1988);
v.
United States
F.2d 948
notes,
(2nd Cir.1973);
correctly
Bohle,
As Brown
State
address
for the situation be
the nature
questions put
to him.
significantly
fore us is
different.
Any consequence
inherently
so
a part of
jury
does not contend that his second
was
the criminal process, even if some element
prior
prejudice
it,
informed of either his
conviction or of
attaches to
provide
cannot
the reason for his retrial. Absent such an grounds for
prejudice
relief because the
express
jury’s indepen
invasion of the
cannot be deemed unfair or unreasonable.
dence,
Cook,
the fact that
the jury may
961,
State v.
281 Kan.
135 P.3d
Cf.
(2006)
being
been aware that Brown was
retried
(jurors’
awareness “of a
no
infringed upon
right
previous
more
to be
conviction for the same crime is
presumed innocent
than
the jury’s
does
not inherently prejudicial.”); State v. Al-
bert,
(La.1980)
awareness that the defendant was arrest
381 So.2d
(prosecu-
ed, indicted,
put
Hodge
on trial.
tor’s
prior
reference to
trial but not to
Commonwealth,
mistrial.).
(Ky.2000)
Likewise, when a defendant succeeds in three
during
references he made
his first-
*29
having his conviction overturned and his
trial testimony
having
to
been incarcerated
retried,
very
case
it
if
likely,
is
not inevit-
should
pursuant
have been redacted
to
able, that
404(b),
the fact of retrial will in some KRE
generally
the rule that
ex-
way
brought
crimes,
to the jury’s attention.
wrongs,
cludes evidence of other
or
case,
example,
this
for
one of the first-trial
acts when offered as mere character evi-
witnesses,
Williams,
Katherine
was un- dence.
need not
the applicabili-
We
decide
trial,
rule,
available at the time of the
ty
second
of the
for even if the incarceration
redacted,
and the video recording
testimony
of her
references should have been
played
was
entirety by agreement
its
trial court’s
clearly
refusal to do so was
Williams,
(5th
(4th
1983).
6. United States v.
jury’s impression of his or on character its sample characterized as mixed DNA own to jury’s have affected the decision. non-bloody from the end of the tire iron Sherry used to kill analyst Bland. The Similarly, the improper evidence testified that one contributors Ingram that Brown threatened Eddie sample Sherry was male and that both Joseph Kemp was cumulative Lane’s Bland were potential and Brown contribu- testimony Brown quoting saying as that he analyst tors. The further testified “might if people quit be fine would talk potential odds of choosing contributor at ing,” alleged and the not threats were such random population from the United States on their swayed own would have 40,000. were about 1 in Brown contends jury. alleged Brown was to have ver analyst’s that the results in this case were bally Ingram threatened and to have insufficiently probative to be admitted into Kemp. thrown basketball at That evi evidence, and that even if the results were likely dence not to have aroused the exaggerat- admissible the Commonwealth jury’s against or passions to have their in a significance ed manner calculat- probative significant seemed so as to bear ed to mislead the when it introduced ly event, judgment. In Eddie Adair County sug- census data meant Ingram testified the second trial and county’s gest population was too was available for cross-examination on this a potential small to allow for contributor sum, although issue. the trial court other than Brown. Brown concedes that when it apply erred refused to rules of his first contention the admissi- regarding recording relevance to the of Brown’s bility first- analysis pre- of the DNA testimony portions trial and to redact object served.7 He did trial testimony, the error was harmless Notwith- admission of the census data. and thus objection, does not entitle Brown to relief. standing that the Common- challenge reliability 7. Brown did not first or second trial. admissibility the DNA at either evidence *31 610 tion, power.” not the it does limit tribunal’s that because Brown did
wealth maintains
605, 618,
v.
460
California,
his first
Arizona
U.S.
appeal,
raise either issue in
not
(1983);
75
318
evidence and
103 S.Ct.
L.Ed.2d
admissibility of the DNA
the
S.W.2d 794
Sherley
the
the
v.
has become
“law of
the census data
such,
subject
As
is
case,”
subject
(Ky.1994).
doctrine
not now
review.
and is
therefore,
issues,
by
is
exceptions.
A court
not bound
of these
Our discussion
doctrine,
example,
where there has
consideration of the
begins with a
related
change in the law.
intervening
“law of
and “waiv- been an
Id.
doctrines of
the case”
court, moreover, may deviate
appellate
An
er.”
previous
if its
decision
from the doctrine
Doctrine
1. The Law-Of-The-Case
work
“clearly erroneous and would
a
Only
Questions
Applies
injustice.”
California,
Arizona v.
manifest
Actually Decided.
8,103
at 618
S.Ct.
n.
1382.
U.S.
“Law of
case” refers to a
general
the law-of-
Although
giving substance
handful of related rules
applies only to
the-case doctrine
matters
a
general principle
court ad
appellate
of
an
court
the merits which
has
dressing
a lawsuit
phases
later
of
should decided, Davis v. Island Creek Coal Com
reopen
by
not
decided
that court
questions
(Ky.1998),
S.W.2d 712
an exten
pany, 969
during
a
court
earlier
higher
phases
or
sion of the core
doctrine
law-of-the-case
is
Miller,
18B
and
litigation.
Wright,
precludes
an appellate
the rule
court
Procedure,
Cooper,
Practice and
Federal
reviewing
just prior appellate
from
not
(2002).
rules,
§ 4478
One
for еxam
rulings, but decisions
the trial court
rule, provides
ple, the so-called mandate
but
which could have been
were not chal
higher
from a
a
remand
court
prior appeal.
in a
In
lenged
Common
give
obey
lower court must
effect to
Schaefer,
wealth v.
S.W.2d
higher
necessarily
or
express
court’s
(Ky.1982),
appel
this
held that an
implied holdings and
Id.
instructions.
power
late coui’t “has no
on a second ap
Wilson,
Buckley
(Ky.
v.
Law
case
doctrine, however, not
in manner
jurisdictional
failing
one.
to raise the issue
con
policy
court’s general
“Law of
case directs a court’s discre-
sistent
*32
Jerry Kemp,
v. Pi
from John
piecemeal appeals.
Thompson,
Crocker
a
against
Aviation,
Inc.,
Brown,
Strode,
Eugene
The Commonwealth’s DNA tes- ants was at each location or locus.8 testified, using profile, tified that what have become stan- A she was the list of techniques analyzing dard and kits for at all thirteen sites. Two DNA variants samples, analyzed samples profiles pro- DNA are said to match —as Bland’s she taken Brown, Joseph profile from Bland file from sev- from matched obtained Although analyst say express- adopted 8. for use in the did not so as national standard (CO- ly, employed System appears she Combined DNA Identification tests DIS) by Congress examined the thirteen which have in 1994. loci been established *33 reasons for again explaining without the samples crime-scene blood
eral
—if
conclusions,
the
her
that the results from
all thirteen locations. The
are identical at
such
“match”,
statistically relevant sites were
analyst
of a
the
testi-
seven
significance
could be
fied,
that neither Brown nor Bland
could be estimated from statistical
potential
excluded as a
contributor
concerning
frequency
data
the
which
Brown be excluded
at
occur mixture.9 Nor could
possible
the
variants
each site
if the weak indi-
example,
potential
as a
contributor
sample population.
within a
For
were
cations from the six inconclusive sites
analyst
the
testified that the odds of choos-
Although
into
the an-
at
from taken
consideration.
ing
person
an unrelated
random
recognized
alyst’s
testimony implicitly
with Bland’s
population
the United States
be one
the contributors to
of 1 in 108 Bland to
profile were on
order
mixture,
likely
testify expressly
that the
she did not
quadrillion, making
highly
any
assumption,
proffer
from that
nor did she
samples
crime scene blood
came
explanation about
difference between
Bland.
separate
in which
can be
profiles
mixtures
noted,
analyst
that
As
also testified
separate pro-
identified and those in which
sample
non-bloody
from the
isolated
analyst
not
The
did
apparent.
files are
mixed,
end of the tire iron was
that is
however,
testify,
that a different statistical
sample containing DNA from more than
to mixtures than to
applied
calculation was
person.
explain
not
how she
one
She did
testimony
single
samples,
source
conclusion,
nor
ex-
reached
did she
that,
suggests
purposes
for statistical
plain why
sample
she concluded
least,
incapable
she treated the mixture as
people
came from two
not more. She
ana-
separate profiles.
into
The
division
explain
analysis
did
that in addition to the
lyst testified that on the basis of
seven
locations,
of the thirteen variable
she also
(loci) yielding statistically meaningful
sites
procedure
conducted a standard
to deter-
results,
choosing
potential
the odds of
pres-
mine which sex chromosomes were
at random from
contributor
the United
procedure yielded
presence
ent. That
40,000.
population
States
were about 1 in
mixture,
y-chromosome
of one
in the
the ana-
Pressed
y-chromosome
since
males have a
she
agreed that this
that one would
lyst
meant
could conclude that one of the contributors
40,000
expect
people
to have to test
to find
non-bloody
mixture on the
end of
potential
one
contributor. The Common-
the tire iron
male. She further testi-
introduced,
wealth then
over Brown’s ob-
analysis
fied
the successful
jection, data from the 1990 United States
depended
the thirteen
locations
variable
population
census to the effect that the
sufficiently
intense indication of the vari-
17,000
County
persons,
Adair
was some
ant
at that
of a
present
Analysis
location.
roughly half of whom were male. The
site that does
exceed a certain thresh-
express during
made
implication,
intended
intensity
old of
is deemed inconclusive for
closing argument,
Commonwealth’s
site,
particular
may
although there
40,000
every
persons only
was that out of
particular
a weak indication of a
variant.
potential
one would be a
contributor to
iron,
sample
For the mixed
from the tire
mixture,
County
and Adair
did not
yield-
six of the thirteen variable locations
enough people
potential
to include a
con-
low-intensity,
ed
Sev-
inconclusive results.
tributor other than Brown and Bland.
sites, however, yielded sufficiently
en
in-
analyst’s
that the
matching
tense results for
and statistical
Brown contends
testified,
essentially
analysis
analyst
testimony
that the
purposes.
although
9.
in DNA literature
as a "non-exclusion.”
This result
referred to
inconclusive,10
analysis
of the mixture was
and he
of the DNA mixture from the non-
analyses
insists that
inconclusive DNA
bloody end of the tire iron was so lacking
*34
no
He
probative
value.
also contends
in probative value as to be inadmissible.
misrepresented
the Commonwealth
Although
analyst’s
as noted the
testimony
40,-
significance
the statistical
of the 1 in
conclusory,
somewhat
the lack of de
by
figure
purporting
to relate it to
tail did not render her testimony meaning
county
Although
irrelevant
census data.
less. Numerous courts have addressed
agree
we
that the Commonwealth’s statis-
the scientific reliability of PCR-based anal-
flawed,
arguments
tical
were
for the most
yses of mixed DNA samples, as occurred
part,
challenge
to the DNA evidence
here,
upheld
and have
the technique as
preserved
was not raised and hence not
at
reliable,
providing
probative evidence con
relief,
provides
ground
trial.
It
for
cerning
composition of
therefore,
potential
only to the extent
Brown,
to palpable
amounts
error.
See,
contributors to such mixtures.11
e.g.,
course, bears the
of establishing
burden
Bander,
State v.
690,
150 Wash.App.
error,
palpable
and as he has failed to
(2009);
States,
P.3d 1242
Roberts v. United
whether
show
and to what extent he was
(D.C.2007);
a. The
explaining
Commonwealth’s DNA Evi-
Sufficiently
dence Was
Proba-
the statistical relevance of the non-exclu
tive to be Admissible.
results.)
sion
Courts are divided on
results,
whether
whether a
statistics,
Before
“match” or a
considering the
“non-exclusion,”
first reject
we
Brown’s contention that the
accompanied
must be
10. This is an incorrect characterization of the
law
training
practices.
about
enforcement
testimony.
analysis
A DNA
that is "inconclu-
v.
Roush
Pari-Mutuel Commission
State
generally
provides
sive’' is
one that
no infor- Wyoming,
(Wyo.1996),
statistics ap- testify id. alleles population, in the relevant did not that Brown’s result locations, 851-53,12 those but samples producing peared at but mixed Brown, routinely deemed one non-exclusion results are locations did not exclude those at first whether it was probative glance admissible. cannot tell merely presence of his alleles or indicate, analysis cases DNA As these that made of inconsistent alleles absence analyst and character- allows an to isolate However, the potential him a contributor. vary segments DNA from ize the *35 analyst subsequently testify did poly- thirteen person at the person statistically signifi- of the the basis seven (loci). genetic locations These morphic locations, Strode, Thompson, and the cant At each of variants are known as alleles. contributors, Kemps could not have been locations, thirteen an individual has a the choosing po- of a randomly and the odds alleles, from of inherited each pair one nar- significantly tential contributor were may alleles biological parent. pair The of 40,000. in it to 1 These facts make same, rowed or it the and it may be different be appear that Brown’s had to clear alleles pattern twenty-six the of alleles—two at is all, several, significant if not the seven of the thirteen consti- each of locations—that Furthermore, analyst testi- profiles an Two locations. the profile. tutes individual’s effect, location, fied, twenty-six to “match” all in even the are said if alleles at no ones, presence, analytic process coincide. The identifies inconclusive was there the present suggestion, the alleles at each locus. Since the of an allele incon- or even more than two al- being each individual has no a contributor. sistent with Brown’s locus, if analysis at a the reveals the sample leles The in the of DNA presence mixed than presence given at a locus of more two consistent with DNA and ab- Brown’s alleles, may the sam- out, it be concluded that of DNA him as the ana- ruling sence analyzed being includes DNA from ple testified, is evidence lyst clearly probative ie., mixed sam- person, more than one a weapon. linking Brown to the murder ple. Evidently that the case here. locations, Thus, despite the six inconclusive couch analyst Because the did not her analysis sample yielded of the mixed alleles, explanation terms of is not error, results it was not probative which possible precisely to know what she meant error, palpable the trial much less when she testified that the results for six court to admit.
of the locations were inconclusive. She b. The Commonwealth’s Statistical meant locations may have that at those no Errors Do Entitle Brown Not allele was sufficient intensi- measured with to Relief. may that while ty, or she have meant some appeared intensity alleles sufficient course, DNA never analysis, not. case would some did neither “conclusively” matching establishes that ren- inconclusiveness at those six locations from Such profiles come the same source. inconclusive, the entire analysis der as only a match the known establishes Brown contends. with the completely source is consistent sample. significance of such At of the in the unknown The seven locations mixed iron, depends a match on how common or rare sample appeared from the alleles tire pop- statis- DNA in some intensity particular profile with sufficient to count for is evidence even in the 12. In Sholler v. 969 S.W.2d match was admissible accompanying (Ky.1998), held that statistics. this Court DNA absence interest, case, ulation that is fact estimated this non-exclusion from mix- ture, concerning frequently from by calculating data how the probability that an occur the population, person various alleles within unrelated chosen at random from Bander, State supra. Analysts given population often would not be exclud- or, significance noted, a match convey the as ed.13 As analyst testified this rule, allele, 13. "Once crime-scene and known-source uct if there is a match for each samples (1/10 1/5) typed compared expert DNA have been can x multiply x 1/20 analyst 1,000 and the person forensic has determined that achieve the result that samples sufficiently are similar such that will match all three sites. originated have expressed could from the typically same -PE AT as 1 in num- source, analyst people must then determine the ber of could been the source significance profiles. sample. statistical There of the unknown widely recognized are two discriminating power statistical calcula- The of a PE calculation performed convey can according tions that increases number of loci at probative profile typed matching value of a DNA ac- reported. which are alleles *36 loci, cording process.... greater the matching PCR-STR DNA the of number the Board, Advisory Population greater frequencies [Statistical the number of that can be Affecting Genetics Issues Evaluation the multiplied, resulting prob- the ain smaller overall of Frequency ability. Occurrence DNA probability, Cal- “The smaller that the of of Profiles Database(s), Population greater culated Pertinent the that the likelihood two DNA sam- from NO., 3, ¶¶ ples person.” FORENSIC SCI. COMM. 17-18 came from the same NCR II at (2000)]. Thus, type The first very probability strongly of calculation esti- 127. a small (PE) probability suggests mates the exclusion or samples “that the either two came match, probability of a ex- person very unlikely random which from the same or a coin- presses probability person the that a random cidence has NCR II occurred.” at 127. profile has the DNA as product same the evidence The rule can be used in a PE calcula- or, words, profile probability other ambiguous sample, in the that an tion for mixed-source i.e., person by a easily random is not excluded the evi- one whose contributors are not analyst dence. Given that distinguishable major the forensic has as either minor. suspect a doing concluded that or known is a step source But so an involves extra that is not possible sample contributor to the unknown application product included in the of the rule light consistency profiles, single-source of the between sample sample to a or a where “regarded PE can be estimate the major as an and minor contributors can be distin- question: probabili- answer guished. What is the The National Research ex- Council ty person suspect, the that a other than ran- plained pattern suspect's 1992 that a "[i]f domly pоpulation, selected from the will have pattern, appro- is within found the mixed the profile?” this on DNA [Committee Forensic priate frequency assign such a 'match' Update, Science: An National Research frequencies genotypes the sum of the of all Council, The Evaluation of Forensic DNA Evi- (i.e., that are are contained within that a (1996) II], NCR of) dence] [ hereinafter subject the pattern." mixed COMMITTEE The PE product calculation is on the based ON DNA TECHNOLOGY IN SCI- FORENSIC rule, ENCE, COUNCIL, Using analyst rule. this multiply the will NATIONAL RESEARCH frequencies particular ap- the at which alleles DNA IN TECHNOLOGY FORENSIC SCI- (1992). pear specific loci multiple each other to deter- ENCE The addition of frequency mine frequencies specific captures the with which the overall allelic at a locus genotype sample probability of the tested ex- person could be the one could pected appear in population. sample The fac- to a contributed DNA with multi- PE multiple tors used in are calculations derived from allelic markers. The combination of population databases frequencies frequency that document the fre- that is results in a sum quency particular greater single with which appear frequency alleles than that a of the Washington] pair. resulting greater across a number of loci. [The allelic Because Supreme prod- ensuing multiplica- Court illustrated the use of the factor will used in tion, greater uct PE product rule in a calculation: final will also be instance, For allele may frequencies A be found in 1 of all than if of the had been individ- 20; every people; ually multiplied by allele B found in 1 end re- each other. The prod- and allele found in probability C 1 of 5. Under the of a match sult is that random randomly expect tested before one would find choosing odds of case that the Koehler, “Er- of the match. J. population United another Jonathan general from the Exaggeration to the tire in the contributor ror and Presentation potential States Trial,” 40,000. 1 in She not 34 Jurimetries was did DNA Evidence at iron mixture asked, (Fall 1993). also, how was she she ar- See McDan- explain, nor Journal 21 — Assuming Broim, U.S.-, figure. rived at United iel v. 130 S.Ct. — 280,000,000, L.Ed.2d-(2010). she of about population Although States these expect that one would further testified random extrapolations from the erroneous 7,000 potential uncommon, to contain about population each match statistic are one response contributors. error to over- instance the statistical tends analyst agreed prosecutor’s questions, strength of varying degrees state to 40,000 persons need to test that one would Koehler, supra. evidence. DNA potential to find a con- expecting case, before Where, evidentiary as this then ar- tributor. Commonwealth than one sample is mixture more above, gued, as noted that because DNA, the ran- person’s the calculation of County Adair about population of statistic, or more accu- perhaps dom match 17,000 unlikely persons it was contributor rately potential the random than county a contributor other included statistic, complicated is somewhat more county that the Brown. Brown maintains single sample. case than in the of a source population however, data irrelevant *37 Again, use of the the statistic argument based that Commonwealth’s widely mixed case has been sample the significance the of the exaggerated Bander, data upheld. In- supra. See State v. agree we with Although DNA evidence. deed, appears it in the of a that case mixed contentions, not these do entitle sample, provides that statistic a conserva- to Brown relief. of probability choosing tive estimate the of a from potential contributor random the noted, analysts DNA frequent As population. (citing Id. reference Roberts ly express significance the of their results States, Hence, supra). the United in X that there is a 1 chance by observing 40,000 statistic for the tire iron mixture a member of the refer that non-related quadrillion the 1 statistic for versus population selected at random would ence from items at the samples various crime potential evidentiary source of the be profile scene which matched Bland’s Apparently, this not the sample. DNA sample in 17 for the the 1 trillion statistic saying as that there is a 1 in X same from Strode’s coveralls that matched evidentiary sample chance that the came profile. Strode’s other than the defendant. from someone not as that it that the saying appears It is the same there is While Common- may 1 in X that the defendant is not wealth well have invited its DNA chance 40,000 the as to that guilty. saying analyst testify inaccurately It is not same that persons there is a 1 in X chance that there exists would have to be tested before one expect poten- the person another who matches defen would to encounter another contributor, profile. posed objection And not the as tial Brown no dant’s it is same not even people X would have to be this statement at trial does saying that his or DNA to correspondingly greater will for a mixed- her the could contributed Bander, single-source sample than for a sam- sample.” source unknown evidence words, likely ple. omitted). will be more (footnote other it P.3d at 1249-50 population that a random member palpable likely label error. We conclude legitimate proof now it effect palpable it error. And while is not Brown’s DNA was consistent with the irrele- county clearly census data DNA mixture obtained from the tire iron present- vant the statistical evidence as randomly the odds of choosing a (since on a ed that evidence based potential contributor mixture were general random selection from United fairly Although we agree narrow. nothing and said about population States Brown, therefore, the Common- County selection of non-random Adair presentation wealth’s of its DNA evidence residents), is not apparent at all what flawless, was not he has failed to show that extent, any, by if was prejudiced prejudicial. the flaws were To the limited utterly these errors. Brown has failed to preserved extent that Brown claim one significance demonstrate statistical by objecting County error to the Adair the errors or show that accurate testi- data, data, irrelevant, though Census mony meaningfully would have been less was rendered analyst’s harmless damning testimony given, par- than the as express 40,000 testimony that the 1 in ticularly light ap- of the conservative statistic possibility did rule out the analyst De- proach apparently took. finding potential other contributors to the errors, moreover, spite the the evidence tire iron mixture in County. Adair indicated that Brown was far from C. The Trial Court Abused its Dis- possible Sig- contributor to the mixture. by Permitting cretion Cross-Examina- nificantly, through cross-examination of Concerning Tattoos, tion Brown’s But analyst, Brown established that not- Respect With to Brown’s Convictions withstanding the Commonwealth’s Adair the Error Was Harmless. data, 40,000 County 1 in census statis- body January Bland’s was discovered on did possibility tic not rule out the find- 12, 2001, and same ing day other later that Ken- potential contributors in Adair *38 circumstances, County. tucky State Police opened these in- detective the Under the investigation. During night troduction of data was harmless the census late and, otherwise, early morning has meet January Brown failed to hours between his that showing burden of the City Common- police and a Columbia officer wealth’s a statistical evidence amounted to stopped for an traffic outstanding Brown Brown, palpable error. McDaniel v. violation, in the and course of his interview Cf. supra, (explaining testimony mistak- noticed the of Brown’s left inside enly stating significance the of statistical a passed wrist bore cuts and scratches. He nullify DNA did match not the probative on that information to the detective inves- evidence). value of the DNA tigating January On Bland’s murder. pho- the detective interviewed and summary, DNA evidence is powerful tographed the cut and scratches on evidence that reason material mis- Brown’s wrist. At trial the Common- representations significance apt of its are wealth moved to the Here, however, photograph introduce to be prejudicial. where ground on the the scratches on virtually objection pertinent no raised trial, Brown’s wrist were with the that in consistent Brown has failed show theory and of the Commonwealth’s Brown had possible itself Commonwealth’s bulky, misstatement of the lifted and carried Bland’s 27-inch statistical ramifica- likely photograph tions of DNA television. The also depicted the evidence affected weight jury the verdict. fore- Whatever tattoo the inside of Brown’s left may given evidence this is far more ann. The tattoo shows a demonic hand name, a a six- dog, cross with his father’s the earth and its fingers clutching its “untouchable”, star, finger gesture raised in a familiar the word point
middle that the tattoo was his contempt. Arguing “only why”, grand- of God knows phrase objected to the name, rose, unduly prejudicial, Brown his the name of mother’s overruled the photo, but the trial court “re- neighborhood, a skull and the word introduced objection. The Commonwealth closing spect.” During argument, referring the tattoo. photo without of three Commonwealth reminded hand, “untouchable”, tattoos —the specific during tattoo became an issue again The “only why”— knows phrase and the God testimony. The Commonwealth’s Brown’s phrase that the referred suggested that none examiners had testified forensic together murder and that Bland’s hairs collected from Bland’s the several of one conveyed three tattoos the attitude At the time residence matched Brown’s. capable apparently of such an senseless trial, To head was shaved. Brown’s all crime. Brown contends that impression his shaved counter might pho- for the absence his tattoo evidence—the Commonwealth’s head account scene, counsel hair from the crime Brown’s the hand tattoo and all of tograph showing during direct examination introduced concerning that and cross-examination Brown from near time photo of evi- his other tattoos —was mere character shaved, offense, 404(b) was not when his head under dence inadmissible KRE theory obviously to advance the defense un- further that the tattoo evidence was could have been that he had hair which fairly so much so to be prejudicial and as had he at the crime scene. shed been Although KRE under 403. inadmissible as to show photo cropped had been so con- disagree we with Brown’s contention arms, which bear several tattoos. Brown’s cerning photograph, the Commonwealth’s photo if the When counsel asked Brown which without mention was introduced accurately appearance in represented his proper of the tattoo and served a eviden- January 2001, that it did but he testified im- tiary agree we that he was purpose, that it failed to show tat- volunteered properly respect cross-examined. With toos. conviction, we are convinced that Brown’s the error was harmless. The error cross-examination,
On Common- respect not harmless with to Brown’s sen- Brown to confirm that he wealth asked *39 tence, however, require and would resen- tattoos, did, prosecu- when he had resentencing re- tencing even were not tor him what the tattoos said and asked quired jeopardy grounds. on double represented. objection Defense counsel’s overruled, the ground was that Brown’s assertion, Contrary Brown’s door, had testimony opened
direct
his
scratched
photograph
of
cut and
descrip-
to elicit
prosecutor proceeded
tending
relevant evidence
tattoos,14
wrist was
of
in-
tions
several
Brown’s
(ie.
photo
long
show that not
before the
from the Com-
cluding the demonic hand
murder)
right
the time of
Brown
at
prior exhibit. Asked what
monwealth’s
“F_k
bulky object
as a
meant,
heavy,
had carried
such
replied,
tattoo
Brown
large
Brown’s own account
questioning,
further
television.
the world.” Under
moving large
had scratched himself
more tattoos on
he
Brown described eleven
name,
gave
out of a friend’s car
They
speakers
his
included his son’s
stereo
arms.
pho-
displayed
plainly
on the
14.
were
to the
the one tattoo was
visible
None
the tattoos
noted,
jury by
showing
tograph
wrist.
Brown
his
As
of Brown's
arms.
theory
relevancy.
As
with
agree
to this
defendant. We
Brown that
credence
notes,
concerning
KRE 408 relevant evi
the cross-examination
under
vari-
they
ous
unfairly
if it is
tattoos and what
meant violated
may
dence
be excluded
these
The
prejudicial
if the
effect sub
rules.
evidence
not
prejudicial and
tattoo
issue,
relevant to
material
outweighs
proba
merely
the evidence’s
but
stantially
tended to
in
Commonwealth,
suggest,
the case of the three
tive value. Ware v.
negative
singled
by
tattoos
out
the Com-
(Ky.1976) (Generally
un
S.W.2d
“
monwealth, that Brown
rules,
sort
‘[prejudiced’
der our
means un
angry, disaffected person capable of mur-
fairly prejudiced.”).
unfairly
Evidence is
dering Sherry Bland.
prejudicial
“if it will induce the
basis,
improper
on an
com
decide
case
The Commonwealth’s contention
one,
monly an emotional
rather
than on
opened
that Brown
door
this evi
presented.”
the evidence
States v.
United
dence
referring
during
to his tattoos
(7th Cir.2003)
Thomas,
321 F.3d
his direct examination is of no avail. As
(citations
quotation
and internal
marks
recently explained
we
in Commonwealth
omitted).
objected
When Brown
Stone,
(Ky.2009),
v.
“
nothing, certainly nothing was harmless. argue or evidence to exculpatory, about either the tattoos his used the tattoo character, might which then have been as an outsider to regarded Brown himself “only subject by society to rebuttal Commonwealth. and the law and that with the Commonwealth, v. 158 S.W.3d may he have been why” God knows tattoo Metcalf Cf. (“The (Ky.2005) prosecutor may these admitting Bland’s murder. On however, introduce evidence of the accused’s bad points, the tattoo evidence added only to evidence of the character rebut already very jury little to what the had charac- good accused’s character.... And knew, jury example, learned. tеr in the form evidence is admissible felon, many a convicted opinion, not in- reputation specific drug were convicted felons and his friends conduct.”) stances of Nor did introduction users, steadily been em- that he had not open cropped photograph of the the door not maintain ployed, and that he did his because, again, it did not amount to an own residence but lived semi-nomadic by “good” Brown of character assertion periods at staying existence for brief might response. which invited sister, grandmother, the homes of his his and various friends. That Brown had tat- distinguishable This case is thus from rebellious, toos reflective of a even crime- Urbanski S.W.2d tinged, surprise life would have come as no (Ky.1975),on which re- the Commonwealth jury to the and would not have substantial- lies, pre-dating a case the current rules of ly swayed guilt its or innocence determina- evidence. In that case a defendant ac- Similarly, jury already tion. had drug cused of crimes was deemed to have heard from several of Brown’s friends that “good” made a rebuttable assertion of committing he had admitted the crimes character, anti-drug or at least of charac- against Bland. The Commonwealth’s un- ter, by appearing court well-dressed and “only supported speculation about the God well-groomed. By flying under such “false little, why” anything, if knows tattoo added colors,” predecessor opined, our Moreover, jury evidence. photograph defendant invited evidence—a tattoos, heard about Brown’s numerous descriptions “hippy- verbal his—of names, several bearing family members’ appearance like” at other Id. at times. 8. were more and thus extent those assuming Even that on its narrow facts humanizing, jury was a total- given law, it good Urbanski remains does not aid ly impression messages skewed here neither Commonwealth because evidence, body. Ultimately, the tattoo the photograph Brown introduced nor his although improper, was harmless error. testimony volunteering photo that the did (the Winstead, at See 283 S.W.3d court not show his tattoos amounted to an asser- say judg- “can fair assurance tion of character to which the Common- substantively swayed by ment was not all, wealth much respond could less with error”). tattoo evidence violative of KRE 403 and 404(b). The trial court abused discre- its respect With to Brown’s death by ruling tion otherwise. sentence, however, we cannot with confi
Although say swayed by the trial court dence that the was not should permitted not have tattoo improper Commonwealth to evidence. The Com *41 tattoos, regarding paint cross-exam Brown monwealth used that evidence to agree picture particularly we with the of a remorseless crime Commonwealth that may respect picture with to Brown’s conviction the er- and that well have contributed
621 jury’s photograph, admissible, conclusion that death that a to this second otherwise had appropriate sentence. Even does not become inadmissible be- simply properly subject to the death Brown been gruesome cause it is and the crime is trial, therefore, in his second we penalty otherwise, heinous.... the rule “Were compelled been to vacate his would have the state precluded would be from prov- resentencing. and remand for sentence ing the commission of a crime by that is nature repulsive.... heinous and D. The Trial Did Not Abuse its photographs Where the nothing by Admitting Autopsy reveal[ ] and Discretion more than the scene of the crime Photographs and and a Crime Crime Scene person[ ], Video. of the ] Scene victim[ [a]re incompetent.” not body Bland’s was discovered with Funk, (quoting at 479 from Salisbury v. days in two or three of her murder. witnesses, Commonwealth, Through four the Common 417 244 (Ky.1967), S.W.2d photo omitted). introduced a number of still wealth other citation have applied We recording graphs depicting and a video this rule to crime scene autopsy pho- and body and scene the crime. The tos, Commonwealth, Epperson v. recording fifteen-minute video was made (Ky.1991); S.W.2d Dant v. Common- coroner, by through and introduced wealth, 258 12 (Ky.2008), S.W.3d and to investigation who used it to illustrate his videos, crime scene Fields v. Common- photos scene. Several still of the wealth, 12 (Ky.2000). S.W.3d 275 through scene were introduced two of the general here, The applies rule where investigating pho officers. Several more there is no contention photo that the and through tos were introduced the medical depict video evidence fails to the results of examiner, who used them to illustrate the autopsy the crime. The photos this case autopsy course and results of his examina numerous, were indeed but that was be- photos tion. Several of the and some two numerous, injuries minutes total coroner’s video show cause Bland’s were body’s badly beaten and con bloodied because the evidence was cumulative. Although dition. objected trial Brown extent injuries and nature of Bland’s autopsy photos, he contends relevant, out, as the points Commonwealth now that much of the crime scene de not only to show the cause of Bland’s piction as well was cumulative inflam death, but tending also as to show the matory prejudicial its effect sub attacker, murderous intent of her the like- stantially outweighed probative its value. even, ly weapons, sort of murder be- disagree. We cause of the extreme brutality the as- sault, that persons likelihood Although correctly *42 to Lane were then admissi- Properly Admit- statements
E. The Trial Court
of a
inconsistent statements
Hearsay
prior
ble as
Testi-
Stephanie
ted
McClain’s
Thurman;
801A(a)(l);
KRE
witness.
mony.
Commonwealth, 436
v.
S.W.2d
Jett
trial,
called
At
Commonwealth
was
(Ky.1969).
proper
The
foundation
friends, and
Dudley, one of Brown’s
Adam
of Lane’s testimo-
laid for
admission
conversations,
if, in one of their
asked him
if he had made
ny by asking Hughes
that he murdered
Brown had not admitted
613(a);
Lane. KRE
statements
to
that Brown had
Dudley
Bland.
denied
Hughes
Thurman. The fact
him or that he
an admission to
made such
the particu-
asked if he had made
never
girl
to his
the admission
repeated
had
to
is of no conse-
lar statements
Lane
Thereupon,
the Commonwealth
friend.
making any
quence. Hughes denied
McClain,
Stephanie
girlfriend,
called the
Brown
to Lane about what
statements
Dudley had told her
testified that
who
to him.
had said
Brown,
in a
conversation
phone
Commonwealth,
v.
2003-SC-1023-
Brown
to Bland’s murder.
had confessed
2005).15
25,
MR,
(Aug.
At to intro Beaty ful defense. v. 125 (Ky.2003); deliv v. apparently duce the note Fortner S.W.3d 196 Holmes South 319, afternoon, Carolina, 1727, Wednesday 164 ered to Bland U.S. 126 S.Ct. (2006). right drug L.Ed.2d 503 This includes use him a gave Strode’s reason right both the to confront the witnesses favor the and no evi- remotely dence against sug- suggesting him with evidence that Strode reasonably had reason, bias, gestive Beaty, supra; drug-related otherwise, Davis Alaska, against biased Brown. The trial U.S. S.Ct. court *45 (1974), did by not abuse its discretion right foreclosing L.Ed.2d 347 as well as the to speculation on those points. present reasonably evidence suggestive charged that someone committed the else Right H. Brown’s to Present a De- Holmes, crimes. Beaty; supra. A defen- by Infringed fense Not Was the Exclu- however, liberty, dant is not at present “to Kemps sion of Evidence That the Were unsupported in the guise theories of cross- Subsequently Involved in the Theft of a jury specu- examination and invite the to Television. sup-
late as to some cause other than one
Brown further contends that his
ported by the evidence.”
v.
Davenport
right
present
to
a
was infringed
defense
(Ky.
177 S.W.3d
when
trial
court excluded evidence
2005)
Maddox,
(citing
Commonwealth
that,
year
murder,
a
about
after Bland’s
(Ky.1997),
quota-
S.W.2d 718
internal
Jerry
Joseph
Kemp were involved in
omitted).
Holmes,
tion marks
See also
of a
a
theft
television from woman’s
(“Constitu-
person committed
Jury
nying
Receiv-
right,
That
Instruction on
charged....
which he is
however,
is
ing
Property.
not unlimited. Evidence
Stolen
be-
automatically
simply
admissible
trial
Brown next contends that the
else
tends to show that someone
cause it
erred when it refused
instruct
court
in-
For
committed
offense....
as the
on what Brown characterizes
stance,
alone is insuffi-
motive evidence
receiving
offense of
stolen
lesser-included
admissibility....
guarantee
cient
He
that he was enti
maintains
property.
for evidence of
can
said
same
an
on the
tled to such
instruction based
Jerry
Evidence that
opportunity....
Kemp and
testimony
Jerry
Charlene
Kemp
involved with or
Joseph
were
*46
the
that
Brown
Farmer
to
effect
when
of a second stolen
possession
were in
January
them
set in
brought
the television
a
the
nearly year
present
after
television
that
it “from
2001 he said
he had obtained
nei-
was committed demonstrated
crime
the
The trial
a crack head down at
Pike.”
ther
nor
this case.
opportunity
motive
tendered instruction
court disallowed the
Moreover, although Brown had indicated
in its view that slender reed of
because
police
to the
earlier in a statement
enough
permit
to
a ra
evidence was not
pres-
the
where involved
the
Kemps
juror to
that Brown—not
tional
conclude
crime,
story
ent
he recanted that
entire-
of
of
withstanding
defense
total denial
at
He still claimed
he did
ly
trial.
having anything whatsoever
to do
offenses,
present
not
the
but
commit
guilty
or her television set—was not
testified,
Bland
longer
no
cast-
when
he was
he
stealing
of
Bland’s television but
ing any
Kemps.
blame on the
Brown
receiving it
some
guilty
somehow
from
present
to
a
right
was not denied his
trial
one else. Brown contends that
the
the
of the
by
defense
exclusion
“reverse
404(b)”
by refusing
give
jury
to
the
court erred
evidence.
option.
disagree.
We
Commonwealth,
Brown v.
2003-SC-1023-
2005)
MR,
(Aug.
An additional reason for uphold Improper A. It Was Not for the decision, Pros- ing the trial court’s although a *47 Veracity ecutor to Ask a Whose Witness reason not by relied on the trial court Impeached Had Been Whether itself, that, He Had points as the Commonwealth Truthfully. Testified out, while lesser included offenses must be included in the if adequately instructions One questions to which evidence, by the supported “the fact that Brown objected was during asked the redi the evidence support guilty would verdict rect examination Ingram. In Eddie on a lesser uncharged offense dоes not recalled, gram, it will be testified that entitle a defendant to an instruction on Brown confessed Ingram these crimes to Commonwealth, that offense.” Hudson v. friend, himself and to a mutual Shane 17, Here, 202 (Ky.2006). S.W.3d 21 receiv cross-examination, Hughes. During coun ing property stolen is not a lesser-included sought sel for Brown impeach Ingram’s to robbery, offense of Roark v. Common veracity by suggesting Ingram was wealth, 90 (Ky.2002), S.W.3d 24 it is a testifying favorably to the Commonwealth offense, lesser-uncharged and thus even in exchange leniency for with respect to had the evidence supported guilty ver redirect, criminal charges of his own. On offense, dict on that Brown was not enti the Commonwealth asked Ingram whether tled to a receiving-stolen-property instruc had in fact received benefit in ex tion. change testimony for his and whether you jury “what told the about what the VI. Brown’s Trial Was Not Rendered you defendant told has been the truth.” Unfair Prosecutorial Miscon- objected Brown question, this latter duct. trial objection, court overruled the Brown complains next of sev Ingram testimony affirmed that his had eral instances of what he characterizes as been truthful. prosecutorial misconduct. Some this misconduct took the allegedly form of im Brown observes that the credi proper questions, generally questions bility of a generally witness is a matter for upon prosecution asked redirect of determine, wit and insists that the nesses, allegedly and some prosecutor’s occurred dur- province invasion of that de-
628 short-circuiting correct, little risk of poses Brown is a fair trial. nied Brown determination, the risk credibility jury’s course, permit- one witness is not for one witness vouches posed that is when asked, ted, not be to comment and should another. truthfulness of another witness’s upon the Commonwealth, 949 v.
testimony. Moss
Here,
of In-
cross-examination
Brown’s
Nor is a witness
(Ky.1997).
S.W.2d
Ingram’s crimi-
length with
gram dealt at
his or her own testimo-
allowed to bolster
that he had
possibility
and the
past
nal
until it has been attacked
ny unless and
from the Common-
something
gain
801A(a)(2) (lim-
See,
KRE
way.
e.g.,
some
by testifying against
wealth
Brown.
prior
underscored,
a witness’s
consistent
iting the use of
italicized and
implication,
statements);
Skipper,
v.
N.C.
State
lying so as
benefit
Ingram
(1994)
circumstances,
during
the trial
(improper
S.E.2d 252
In
himself.
these
by per-
if
is be-
to ask
its discretion
direct examination
witness
court did not abuse
truthful).
Ingram
to ask
mitting
a witness has been
the Commonwealth
ing
Once
however,
testimony regard-
whether his
party
“the
on redirect
impeached,
introduc-
was the truth.
ing Brown’s confessions
to corrob-
may
him
introduce evidence
ing
testimony
support
his credibil-
orate his
ques-
object
did not
to similar
ity.” Samples
to Archie Lane and
posed
tions
on redirect
(citations
(Ky.1998)
S.W.2d
McClain,
likewise testi-
Stephanie
who
omitted).
quotation
internal
marks
of Brown’s con-
had learned
fied
on cross-exami-
and were attacked
fession
rule
general
under this
Whether
favor
having
currying
nation as
reasons
if
has
merely asking the witness
he or she
light
our
with the Commonwealth.
*48
method of reha
proper
been truthful is a
the
respect
to
Common-
discussion
not to
question
appears
a
that
bilitation is
Ingram, we
efforts to rehabilitate
wealth’s
A few courts
widely
been
addressed.
have
and unob-
that the similar
are convinced
ques
of such
expressed disapproval
Lane
and
rehabilitation
jectеd-to
Block,
tions,
Highland Park v.
e.g., City of
Brown’s trial fun-
did not render
McClain
241,
285,
6 Ill.Dec.
362
Ill.App.3d
48
damentally unfair.
(1977) (in
light
N.E.2d 1107
witness’s
to the Fact
A Witness’s Reference
B.
oath,
meaningfully re
question
the
is not
Not Consented to
That Brown Had
habilitative),
them,
have approved
others
Admo-
Was Cured
Sufficient
Search
States,
ed further
he learned from
in November 2001
it himself. The
that
provide
to
request
Jerry
Joseph Kemp
but
that
response,
Thompson
to that
objected
defendant
he, Brown,
appeal,
On
accusations
was overruled.
had made
objection
his
the extent
Brown testi-
acknowledged that to
in Bland’s murder.
this
involved
sug-
to
response tended
him to con-
prosecutor’s
prompted
fied that information
Kemps.
the burden of
against
the defendant bore
gest that
coct false accusations
improper,
testimony,
innocent it was
Brown
himself
in his
proving
point
At another
appropriate
was not
held that relief
of certain of the
but
to have learned
claimed
because, notwithstanding
prosecutor’s
Thomp-
him not from
allegations against
clear that the defen-
impropriety,
it was
discovery
Dur-
papers.
from his
son but
a fair trial at which
dant had received
prosecutor
ing
closing argument,
his
and understood
jury had been instructed
testimony tending to
that Brown’s
argued
the burden
bore
that the Commonwealth
him
knowl-
Thompson gave
claim that
every charge.
(as
each element of
proving
having
opposed
the crime
to
edge of
fact, given
hand)
can be said here.
by
The same
the fact
was belied
gained it first
prosecutor’s questions
Thompson
not called
that the defense had
—which
in a
momentary asides
only
amounted
to
testify.
to
days
for several
trial
lasted
—were
prosecu
contends that the
prosecu-
than the
much less troublesome
but he has
improper,
tor’s comment was
Shabazz,
no
there was
tor’s remarks
why. He refers us to
explain
failed to
objection, the evidence
contemporaneous
Commonwealth,
Ky.
v.
Sexton
substantial, and the
against Brown was
(1947),
largely supersed
ease
S.W.2d
correctly
as to the
jury was
instructed
ed
Bixler
are
proof,
burden of
we
Commonwealth’s
Sexton, according
(Ky.2006).
S.W.3d
prosecutor’s improprie-
convinced that
Brown,
during clos
improper
makes it
a manifest
if
did not constitute
ty,
any,
unfavorably on
ing argument to comment
trial funda-
injustice or render Brown’s
failure to call a witness
opposing
side’s
mentally unfair.
incompetent
been
to testi
who would have
object what he
Brown also failed to
have testified
fy or who would
couple
improper guilt
were a
now claims
or irrelevant matters. He fails
immaterial
closing arguments.
complains
He
phase
Thomp
applies
how this rule
explain
vouched
prosecutor
improperly
testimony regard
Although Brown’s
son.
by asserting
his witnesses
Thompson
ambiguous,
that ambi
ing
This
here and told the truth.”
up
“came
*50
Thompson’s
guity hardly establishes
however,
construed,
fairly
remark can be
necessarily
im
testimony would
have been
prosecutor’s per-
not as a statement of
material,
nothing
to
to
points
and Brown
on the ve-
sonal belief but as
comment
Thompson would have been
suggest that
It
racity
discussed above.
most
debate
testify.
the defen
incompetent to
When
trial
assuredly
not render Brown’s
did
testifies,
is allowed to
prosecutor
dant
manifestly unjust.
credibility.
comment on
defendant’s
Commonwealth,
973 S.W.2d
trial rendered Tamme v.
Nor was Brown’s
may
Such comment
include
during
(Ky.1998).
prosecutor’s
unfair
comment
witnesses
the absence of obvious
noting
had not called John
closing that Brown
the de
the absence tends to belie
Thompson was a where
Thompson as a witness.
Brown,
v.
at
fendant’s claims. Maxie
Common-
acquaintance of
friend or
wealth,
case,
(Ky.2002).
procedures
which
harmless
all respects
from
aside
Brown’s death
individually, may be deemed reversible if
therefore, we
penalty,
hereby affirm the
their cumulative effect
render
August
Judgment
of the Warren
fundamentally
trial
We have
unfair.
found
Circuit Court.
error
cumulative
where
individual
substantial,
were
errors
themselves
bor
NOBLE, J., concurs.
least,
dering,
prejudicial.
on the
Funk
Commonwealth,
Where,
suрra.
v.
in
as
J.,
CUNNINGHAM,
concurs in result
case, however,
this
none of
errors indi
only by separate
in which
opinion
vidually
raised
real
question
preju
MINTON, C.J., joins.
dice,
we
declined to hold that
prejudice
plus
absence
absence of
ABRAMSON, J., concurring in part and
prejudice
up
prejudice.
somehow
adds
dissenting
part by separate opinion
Furnish
tencing Error Have All Been I write that emphasize Kentucky to law Rendered Moot. fact, jury does not a require the find as doubt, beyond Brown raises several a reasonable that the death argu- additional challenging ments the capital sentencing penalty appropriate penalty. is the How- 632 case,
ever, jected argument in- that the failure in such an the particular this reason, jury ap- I is given. For that the to find that death require struction was only. beyond to concur in result ren- propriate am constrained a reasonable doubt a death statute unconstitu- penalty ders pen the jury recommends death When a Benson, See, v. 52 e.g., People tional. 532.025(3) only that the alty, requires KRS 827, 754, Cal.Rptr. 276 802 P.2d Cal.3d ... the jury “designate writing aggrava (1990) 330, (again rejecting 362 claim that or circumstances which ting circumstance requires U.S. Constitution instruction a doubt.” This beyond it found reasonable beyond jury appropriate must find death is “[tjhere is previously has stated Court doubt). a See reasonable also State v. jury requirement no the instructed Jenkins, 164, 15 St.3d 473 N.E.2d Ohio appropriate pun is to find that death the (1984) 264, (jury 280 need not be statutori- beyond doubt.” ishment reasonable ly required penalty determine death is Commonwealth, 672, 694 S.W.2d Skaggs v. procedural safeguards appropriate where (vacated (Ky.1985) part by Skaggs v. 680 appropriateness). ensure Parker, (6th Cir.2000)). F.3d 261 Be 235 Kentucky’s penalty death statute cause persuaded I am the use the the suitably narrows class of defendants penalty reasonable doubt standard the penalty, are then eligible who the death purpose. arena would serve little When sentencing guides jury’s directs the and aggra is the jury directed to consider objective clear and stan discretion with circumstances, vating mitigating and dards, repeatedly it has been held constitu fix punishment, jury then to is essen requirement. such See tional absent tially determining what believes to be 867, v. 680 Scroggy, F.Supp. Kordenbroek I con appropriate penalty. reject (“[T]he Kentucky stat (E.D.Ky.1988) 898 that a instruction tention reasonable doubt Eighth is in violation ute underscores, jury, level of ex for the Amendments.”). Fourteenth See also pected certainty I trust in its decision. McQueen 1302, Scroggy, F.3d 1333 v. 99 has capital sentencing jury little doubt as (6th Cir.1996); v. Thompson Common Rather, of its profound nature task. wealth, 22, (Ky.2004); Ice v. 147 S.W.3d 55 I with the agree Supreme California Court Commonwealth, 671, (Ky. 667 679 S.W.2d doubt is reasonable standard 1984); 607 Gall v. S.W.2d fact- associated traditional “term[] 97,113 (Ky.1980). “inherently finding” and not suited Supreme specifi- has not U.S. sentencing moral and normative” function. cally persua- addressed what standard 730, 779, 42 People Rodriguez, v. Cal.3d is required Eighth sion Amendment (Cal.1986). P.2d Cal.Rptr. Rather, proceedings. its penalty death many It is unknown to the writer how on the overall focus has remained statuto- people today on death were sentenced row ry ability capri- and its to reduce scheme requiring without instructions arbitrary imposition cious or the death beyond find death a reasonable doubt. It penalty. Gregg Georgia, v. See U.S. many pled guilty is unknown how 153, 188-95, 2909, 49 96 S.Ct. L.Ed.2d 859 (1976). such, were sentenced to death without the court employ some states As finding appropriate beyond that death was in determining reasonable doubt standard reason, a reasonable doubt. For that I death appropriateness penalty. See, Wood, emphasize write to that no such instruction e.g., 648 P.2d State (Utah 1982). however, Others, required appropriate. have re- either
633 issue, Lastly, agree and on another I penalty the death where the first jury that the introduction of the evidence something tattoo chooses less than death as the error, guilt stage although in the appropriate sentence. However, I that
harmless. believe is sentencing Tat- purposes.
admissible
VENTERS, J., joins.
toos,
stickers,
bumper
like
are manifesta-
SCOTT, J.,
in
concurring
part and
of
person’s
tions
attitude toward the
dissenting in part:
around them.
It is both relevant
world
probative
and
to sentencing.
Although
as
majority
I concur with the
on
issues,
the other
I must
as
dissent
MINTON, C.J., joins.
majority’s finding of an “implied acquittal”
(in-
in
opinion
Section I. of the majority
J.,
ABRAMSON,
part
concurring in
and
cluding their
of
reversal
Commonwealth v.
dissenting
part:
in
Eldred,
(Ky.1998)
43
S.W.2d
and Sali-
respectfully
majori-
I
dissent from the
v. Payne,
(Ky.2005)),
nas
634
in
Thus,
shortly after
5191 disaster
explicitly
we
the Comair
539.
S.W.3d
publicity
Due
adverse
surround-
2006.
to
upheld Eldred.
and similar adver-
ing the advertisement
However,
departs
now
from
this Court
attorneys, Chalik im-
other
tisements
that the
As I do not believe
both.
advertisement;
it ran
mediately pulled the
in
in
in
Salinas
wrong Eldred
day.
only one
(with
in
concurring),
and
defer-
all
attempt
comply
to
with
ence to all who
Nevertheless,
Inquiry
the KBA
Com-
Court,
we
this
when and as
decisions of
charge against
issued a four-count
mission
them,
here
join
majority
I
make
cannot
Chalik based on
advertisement. While
Thus, I
and
reversing
dissent
course.
were based on rules
two of
counts
affirm
death pen-
conviction and
would
of a client
prohibiting direct solicitation
alty
consistent with
entered in this case
disaster,
days of a
these
thirty
within
opinions
our
Eldred
Salinas.
prior
ultimately
upon
were
counts
dismissed
agreement
response
KBA’s
Chalik’s
SCHRODER, J., joins.
a
advertisement is not the
newspaper
that
contemplated by
solicitation
type of direct
alleged
Rules. Another count
that the
misleading.
was false or
advertisement
count,
too,
KBA
this
agreed
The
dismissed, upon
should be
Chalik’s submis-
support
of factual
for the assertion
sion
concerning
advertisement
made
CHALIK, Movant,
Faye
Debi
experts
airplane
Chalik’s access
family
her
involved the build-
business
airports and air
traffic control
ing of
ASSOCIATION,
BAR
KENTUCKY
remaining
The
con-
equipment.
count
Respondent.
timely
a
failure to
submit
cerned Chalik’s
No. 2010-SC-000277-KB.
advertisement, along
of the
with the
copy
fee,
Although
required
KBA.
Chalik
Kentucky.
Supreme Court
day
KBA the
copy
faxed a
to the
same
17, 2010.
June
newspaper,
it was
submitted
fee
filing
did not tender the
until
she
AND
OPINION
ORDER
following day when she mailed the KBA
Debi Chalik moves this Court
enter
Kentucky
Su-
copy
advertisement.
Reprimand.
imposing
an order
Public
3.130-7.05(2)
preme
requires
Court Rule
Kentucky
Bar Association
response, the
of the advertisement
that submission
(KBA) agrees
requested
with the
sanction.
fee,
KBA,
by the
accompanied
filing
Chalik,
whose KBA member number
publication
occur
later than the
“shall
no
and whose bar roster address is
admits to a
the advertisement.” Movant
Plantation,
Court,
NW 1st
Florida
3.130-7.05(2)
moves
violation
SCR
practice
law in this
was admitted
Reprimand.
a Public
this Court for
23, 2000.
Commonwealth on October
appropriate
this is an
agrees
KBA
and, upon consideration of the
sanction
arises
disciplinary
This
matter
from
record,
ne-
impose
we
of and
approve
newspaper
advertisement
Chalik
gotiated
placed
Lexington
in the
Herald-Leader
sanction.
notes
knowledge of the crime would be afraid to
disapproved
that we have
of the use of
come forward. The trial court did not
photos depicting badly decomposed or mu
abuse its discretion
under KRE 403
tilated bodies the condition of which no
admitting
autopsy photos.
The unob-
longer accurately reflects the results of the
jected-to
depictions
crime scene
were rele-
crime,
Commonwealth,
Funk
Commonwealth,vant for the same purposes, and their ad-
(Ky.1992);
S.W.2d 476
Clark v.
erroneous,
mission likewise was not
much
(Ky.1992);
S.W.2d
Hol
83
palpably
land v.
less
so. Brown is not entitled to