*1 really Mr. Kirk had to treat all of wanted grandnephews equally, grandnieces
he would not have made distributions original
of the trust estate all of the until died, nephews nieces and
seven he would have a distribution
then made grand-
equal per capita shares to all Instead, they grandnephews.
nieces and per stirpes, of course means
shared equal treat- did not all receive
ment. Kirk cannot know Mr. meant
We what said,
say, we know he what me. I
meaning of what said is clear to it mean artificially construe
something else. GANT, JJ., join in this
COMBS
dissenting opinion. DAVIS, Appellant,
Sheila
COMMONWEALTH
Kentucky, Appellee.
No. 88-SC-755-MR.
Supreme Kentucky. Court of
Sept. 6, 1990. *2 Pearl, Pearl, Musselwhite,
Nick L. Gohman, P.S.C., & Rad- Wheatley, Smith cliff, appellant. for Gen., Cowan, Atty. Robert W. Frederic J. Attys. Hensley, Sonego, Asst. and Ian G. Frankfort, Gen., appellee. OF THE COURT OPINION Appellant Sheila Davis was convicted Court of intentional the Hardin Circuit sought murder. The Commonwealth death, penalty was sen- prison tenced to life in without benefit twenty-five parole for at least probation or a mat- years. appeals to this Court as right. ter of We affirm. 20, 1987, appel- August
On husband, Davis, found lant’s James W. Ranger of his locked Ford in the back ga- parking pickup truck in a Louisville pаrked rage. The truck was backwards truck the rear of the space into a so that plywood A board visually protected. body, substantially decomposed covered concealing it from view. further investigating Suspecting play, foul summoned the Common- police officer Examiner, George Chief Medical wealth’s Nichols, II, to the scene. Dr. Nichols R. complete autopsy find- to make was unable corpse. of the condition of the ings because sign of brain Although no skull fracture discovered, hemorrhaging Dr. Nichols appearance of three from the concluded forehead found on victim’s wounds injury complicity cause of death was a blunt force Sheila “for murder and Davis to the head. death of James William Davis.” changed County Venue was to Hardin presence From thе food found April 19. Trial commenced Hardin tract, digestive opined Dr. Nichols August Circuit of 1988. Court the victim died within 60 to 90 minutes However, after he ate. doctor testified sought prove Commonwealth long he could not determine Mr. how *3 appellant, in acting alone or concert with Davis His had been dead. blood contained lover, Stoker, her murdered hus- Ron her an level of at least .16 time alcohol at the proceeds. band to obtain his life insurance death, his apparently of and he had vomit- Appellant misrepre- had both Stoker shortly dying. ed before relationship investigating sented their to trial, appellant’s testimony At tracked maintaining by officers that their affair investigating the offi- story relayed to ended well before the victim’s death. during cers interviews conducted several proseсution Numerous witnesses testified body soon after her husband’s was discov- contrary. prosecution to the relied army ered. was in the The victim and heavily testimony concerning appellant’s on He, appellant stationed at Fort Knox. and incriminating inactions actions and near the Radcliff, nearby their in Ken- children lived disappearance time of to her husband’s tucky. Appellant Saturday, stated that on prove her guilt. 15, 1987, August Mr. Davis ate dinner Appellant’s and then house on pos- around 8:00 P.M. left the defense centered the sometime after 10:00 P.M. He was de- sibility had died natu- that her husband pressed upcoming to about an transfer expert presented ral medical causes. She South Korea. disputed the medical ex- which concerning the cause aminer’s conclusions Appellant began inquire hus- as to her Godfrey, of Mr. death. Dr. William Davis’s 16, Sunday, August band’s on whereabouts internist, testified that an Elizabethtown 1987, early and found that when awoke opinion, not his the victim did die from night home had not returned from the head. Instead the head friends, blows the contacting com- before. After caused a on police, probably wounds were bolt manding military officers and appellant reported missing body lay her husband in the bed of the truck. which Police re- Kentucky State when she Godfrey impressed Dr. the contents Monday, August on records, turned from work including medical victim’s 21, Friday, August notified on dizziness, pains, pains, syno- chest stomach 1987, discovery of her husband’s (blackouts), cope possible alcoholism. body. consump- that alcohol Godfrey Dr. testified aggravated existing tion could have appellant’s The first of interviews heart and that cardiac disease condition place August investigating officers took on A the cause death. could have been again and she was interviewed essentially treating concurred. physician day August Knox. On 24 next at Fort complaints reported she was taken to the Louisville Police head- He the victim’s quarters year prior more than pains during for three hours chest questioning. She submitted a lie detec- showed Mr. Medical records Davis death. August pro- tor army examination hospital had been admitted duced results. She was noti- inconclusive emergency times six room four last primary suspect fied she was the problem. Fur- months of his life for this during Septem- of her husband death expert testimony revealed the ther victim’s 9, 1987, police depart- ber interview long-standing documented and alсohol ment. she informed of Only then was autopsy results not While the could abuse. rights. constitutional disease as cause confirm heart death, possi- refute 7, 1988, County neither could the Jefferson April
On bility. against an indictment Jury returned Grand by crimi- caused may not have been others death suggested also weigh jury was entitled agency, the responsible for the victim’s nal
may have been prevailing conflicting garage. evidence.” being parking taken to the defendant’s determining a criminal supposition There was husband rule is found visiting girlfriend or a directed verdict may have died while entitlement to Sawhill, Ky., 660 location. in an otherwise awkward while Commonwealth The evidence established that victim “ relationships. engaged in extramarital as a whole ‘If under the evidence can’t be summary, appellant contends shе clearly unreasonable not be if murder occurred convicted of murder guilty, he is defendant jury to find the prove failed to and that the Commonwealth ac- directed verdict of entitled to a ” this crime was committed. (citing v. Com- at 5 Trowel quittal.’ Id. (1977)). monwealth, Ky., 550 S.W.2d presents appeal, appellant On this applies ad allegations of error. We first This standard to evidence twelve *4 sufficiency delicti, to evidence of challenges her as well as corpus dress very they guilt. strike at the the evidence defendant’s case. heart of the a direct- of entitlement to Upon her claim verdict, contends that appellant ed Appellant claims the Commonwealth exclusively on almost relied was Commonwealth prove failed to that the victim’s death life collect husband’s Citing her mоtive—to by caused violence. Hibbard v. her re- proceeds and to continue Commonwealth, 574 insurance Ky., 291 S.W.2d prove she (1956), lationship her lover—to argues that circumstantial evi- with have She claims to support committed the murder. dence is insufficient to a conviction prejudicial evidence upon highly proof hy- been tried where the raises reasonable lifestyle character and by of her moral pothesis other than death occasioned bad argues Finally, she de- and not for murder. explain the death of the violence evidence, on circumstantial cannot be convicted Reviewing the relevant ceased. inno- if is as consistent with that her such she asserts that it was established guilt. v. Com- by cence as with Collinsworth husband’s death was not caused blunt (1972). monwealth, Ky., 476 S.W.2d further forcе trauma to the head. She “more agree the evidence must do weapon, murder We notes the absence of a suspicion.” finger of Mat- death, identity point than time of of a co-con- Commonwealth, Ky., 481 S.W.2d spirator. thews v. 647, 648-49 relied on the conclu- The Commonwealth built case was by medical The Commonwealth’s the state’s chief sion drawn upon circumstantial evidence. the cause of Mr. examiner to determine pulled truck was Although admitting testified that victim’s death. Davis’s disap- night of his reviewing garage their on into did not have the benefit this was established that drawing pearance. his con- It was medical records in victim’s her testimo- coupled with clusion, firm cross- unusual. When Dr. Nichols held under board, plywood the Common- finding by ny his of death examination on showed an argued that these events despite being questioned wealth injury, force blunt body. and conceal the jury opportunity to load theory.” The the so-called “bolt was de- plywood board testimony of two The it the also had before depression in a or signed to cover well by appellant. While experts medical called installed form Mr. Davis had wooden disagreed the medical examiner’s with carry- purpose of for the conclusion, con- rear of his truck Godfrey conceded that Dr. in this well It was ing army equipment. he was sidering circumstances which witness- body found. Several that his found, murdered. the victim have been plywood board that because Ky., 579 es testified Murtaugh truck, the in the back of the though around said rattled Instead, it was carried it. seldom which indicated that victim “there was evidence Later, appel- usually garage. Appellant to find her husband. when kept in the tes- disap- in Florida night visiting tified that on the her husband her in-laws lant was with peared, gone funeral, she discovered the board was be- after the victim’s brother garage wanting from the returned from when she suspicious of her reasons for came foregoing running an errand. From the city her husband to return to the where evidence, expla- in the absence of another ap- murdered. Near the time had been nation, clearly it was not unreasonable pellant’s arrest she asked brother-in- truck to conclude that the victim’s grand- her children see their law to be sure garage pulled inside the so that summers, implying a knowl- parents in the could loaded and hidden be edge imprisonment. she faced plywood board. appellant emphasized that brother-in-law Then “summers” аnd not “summer.” said Conflicting presented as to evidence was asked her for a favor. the victim’s brother the time the the time of death relation to telling her He recalled his last meal. The medical ex- victim ate aminer’s that the victim ate less over, all I don’t care how “When this is con- than hours before his death was two out, you I care if are convict- comes don’t theory sistent with Commonwealth’s whatever, ed, over,- if or you are left time he left that Mr. Davis was dead got to tell but when it’s all over the house after 10:00 P.M. as my me the truth because it was brother.” Appellant challenged Dr. Nich- testified. “Okay.” appellant responded To this expert’s ols’ conclusion her medical Linebaugh, babysitter, Cindy a former many such as stress opinion that factors *5 appel- after the victim’s death testified that digestion. can slow Under and alcohol planned to build a house lant told her she died several theory, the victim could have life her lover out of the for herself and hours later. Appellant shown proceeds. was insurance that there prosecutor The established policy prior to knowledge of the to have robbery or sexual abuse was no evidence of alleged to death. She was her husband’s secondary a defense of the victim to rebut incriminating possibly made other have may have encoun- theory that the victim Linebaugh such as “the to Ms. statements drinking at a Louisville tered trouble while smart, so damned cops thought they were contained the tavern. The victim’s wallet got figured it all out they think appellant dollars testified she knew four into the body I lifted the except for hоw had when he left the house. ap- babysitter also recalled The truck.” easy ac- The Commonwealth established “they” thought would pellant saying she parking garage on unguarded cess jail time in spend only a little because weekends, appellant that familiar with was in self-defense. proven they acted would be area; by the Louisville and established get the get out and “they” Then testimony inmate at the Hardin of a fellow Linebaugh anyway. money [insurance] appellant familiar County was Jail that near the also testified and her husband garage parking weekend access to with persist- appellant was of the funeral time point- found. It also where the victim was stains, trying to remove blood about ent knowledge of the victim’s appellant’s ed to nose, bloody by a child’s allegedly cаused hand, allegedly police offi- before broken upholstery. her car from informed her of it. cers many presented wit- The Commonwealth evi- Adding weight to the circumstantial appellant’s affair testify about nesses to pattern a of admis- against appellant, dence while admitted that Ron Stoker. She with through statements she sions was woven after his failure searching for her husband and friends. family members made to Stoker, home, did not call return upset he was testified that victim’s brother friend of the Davis- although he was a both was appellant because before al- implication was Stoker very hard es. The trying found he felt she was statement, eight, see issue further discussion of this 1. For a infra. witness,
ready happened the defense cross- what had to Mr. eleventh-hour knew purposes impeachmеnt examined her for Appellant Davis. and Stoker lied to the police investigation present declined surrebuttal evi- during the their but a does not disclose de- ongoing affair. dence. testified military prosecut- fense motion for a continuance. concerned about reducing adultery, possibly her for 9.42(a) of Criminal Rule the Rules death benefits the chil- husband’s permits Procedure the trial court allow dren of the affair. and because Stoker phase during the rebuttal evidence-in-chief appellant telephone face- discontinued good of trial “for reason furtherance murder, after to-face communication great justice.” has accorded This Court babysitter testified Stoker determining discretion to the trial court previously bought and installed radios CB such should be when evidеnce received. appellant’s in his and vehicles. Stoker was Commonwealth, Ky., 544 Pilon v. staying at appellant’s house the time of 228, There is no contention her arrest. relevant, damaging, though this testi In Nugent 639 mony deliberately withheld applied S.W.2d 761 the Saw- Commonwealth in order to take undue sufficiency standard of of evi- hill/Trowel advantage appellant. dence based on circumstantial evidence. showing of “When there is no clear arbi- proof While the Commonwealth’s in this discretion, trariness or an abuse of overwhelming, case was not when the vari- ruling of not be dis- the trial court will together, ous items of evidence are added turbed.” Id. appears upon mosaic reasonable normally be party per- While a should not could look and conclude that mitted offer additional after guilty Certainly murder. the evi- evidence, announcing conclusion of its dence point “finger did more than certainly precluded from in- should be suspicion” solely on based motive. The troduction of after an- evidence-in-chief correctly trial court overruled appellant’s nouncing that no rebuttal evidence will be
motion for directed verdict. proba- presented, we cannot overlook
We to appellant’s now turn our attention tive nature so offered and *6 claims of trial error. prior unavailability. If the record its dem- part onstrated faith on the of the any bad Appellant contends that the trial not hesitate to we would court erred when allowed the Common hold the admission of such evidence during wealth to introduce evidence-in-chief amounted to of the trial court’s an abuse the close of rebuttal and after all the evi case, being the discretion. This not how- prosecution dence. After the announced ever, we of the trial court’s find no abuse closed, taken, at appellant’s the 9.42(e). application of RCr discretion its request, During to view the Davis home. break, babysitter allegation ap In of error lunch a former for the her next court previously pellant Davis had not been maintains that the trial should children who paralegal granted motion for new trial testify called to told a with the have her prosecutor’s year newly office that a the based on discovered evidence. Sev before jury returned its Davis had told her that she eral weeks after the ver murder Sheila obtained, dict, by kill her court wanted Ron Stoker to husband for defense counsel order, report prepared by proceeds. Upon toxicology re the life insurance (CHR) courtroom, Resources turning the the Common the Cabinet for Human report Toxicology Laboratory. its This requested permission wealth revoke and by De used the medical examiner relied not to offer rebuttal evidence. decision report finding nega of objected. upon autopsy fense court the counsel trial Appellant argues, granted toxicology on the tive results. the Commonwealth’smotion however, positive tests showed the defense be “sur- that several condition that allowed results, which, supplied to direct of this rebuttal.” After examination trial, during prior significantly this prior would have nation. At no time to or the defense and the she ad- affected both outcome three-to-four hour interview was complains rights, required by Mi- the trial. She that the Com- vised of her 436, Arizona, 86 S.Ct. comply pre- monwealth failed to with the randa v. 384 U.S. (1966), although she discovery agreement by order and trial L.Ed.2d prosecutor supply the defense all she had become the focus with claims deprived of investigation and test results non-results. Further murder alleges inadequate opportunity to of action. freedom present testimony newly on the discovered does the Appellant does not cite nor information. transcript appear to contain hearing. The court order position suppression
It trial Commonwealth’s toxicology suppress report overruling appellant’s the results of the were motion to contained, provided appellаnt, only and thus witness at states that she was report. autopsy ruling judge on the found that suppression hearing. motion, the trial court considered both the accom- question, in the incident in arguments counsel States panied agents two the United witness, Ward, the Commonwealth’s Mike Army Investigation Division from Criminal specialist a forensic scientist with CHR County for an County to Jefferson Hardin at prepared toxicology report who is- police officers. interview with two concerning sue. Mr. Ward testified accompanied agents free- “Defendant tested, the for which he tests substances voluntarily. ly and She was interviewed significance positive employed, and the police room at the station two preliminary results on medications several agents police The CID waited officers. theory the defensе of the case. relevant to never advised that she outside. She was conclusively He stated detected that she was not was under arrest or drugs in of the victim the blood bile any time. At the free to leave conclu- ethyl alcohol. He furnished his other than statement, de- sion of interview report directly the medical examiner. home driven back to her fendant was August agents.” Order of the CID The trial court found that Common- produce the results of the toxi- wealth did
cology appellant. has failed to test to dispute gist Appellant does not Instead, explain how evidence she “Findings of Fact.” trial court’s hearing presented on a later date would disagrees the court’s conclusion materiality of the indi- have established police she made her statements light of the forensic vidual test results voluntarily. this occasion specialist’s testimony that none of sub- proce- provides the Rule 9.78 Criminal present. for which he tested were stances suppres- conducting hearings on dure for startling appellant’s contention as to the As *7 for motions, as the standard as well sion report was exculpatory nature of the and deter- of the trial court’s appellate review evidence, supported by the her motion not mination. This properly trial was overruled. for new suppress to moves “If a defendant ... is merit. claim of error without or of ... a confession the admission ... alleged to incriminating statements Next, other appellant contends that state police him to authori- by prior to have been made police made to officers ments she ties, conduct аn trial court shall rights ... the being advised of her constitutional presence hearing outside the evidentiary suppressed. asserts should have thereof jury and at the conclusion offi of the lengthy with two the interview findings re- into the record shall enter Department on Louisville Police cers at the fact raised solving essential issues of the 24, 1987, a “custodial interro August was necessary and objection or compelled by to the motion during gation” which ruling. supported by support the her Fifth to in violation of statements make If the incrimi- substantial against self privilege Amendment find- factual
949 Moreover, (1968). the ings L.Ed.2d record the trial court shall be conclu- 1180 by the trial sive.” discloses no abuse discretion excusing juror, court in a with a doctor’s Appellant ruling has failed to that the show hand, in an for obvious recommendation suрported by below not substantial ailment. any showing evidence. “In the absence of to the contrary, we assume the correctness complains because Appellant next ruling by Harper of the trial the court.” v. permitted question police a she was not to 665, Commonwealth, Ky., 694 S.W.2d 668 lie the detec detective about results 1178, (1985), denied, 476 U.S. 106 cert. test to her. She claims tor administered 2906, 992 It is S.Ct. 90 L.Ed.2d the unfairly prejudiced by being not she was duty attacking sufficiency party a the eyes herself in the able defend a produce pro evidence to record of the had been earlier informed a which ceeding identify the trial court’s error prosecution appellant admitted witness that findings produce in its of fact. Failure to the do having taken test. We not be precludes a appellate suсh record review. enjoyed lieve the an Commonwealth Harper, committed the advantage, in unfair that the full context of Davis, oversight by neglecting same as has comment reveals that the re witness’ choosing not avail herself of ve- specifically by the mark solicited provided prepare hicle CR 75.13 a prosecutor, appear particularly does nor it narrative statement for inclusion damaging.2 record in of a lieu mechanical or steno- held in importantly, More this Court Rob graphic suppression hearing. record of a Commonwealth, Ky., erts v. 657 S.W.2d reason presented why No is 943, “any 944 reference to supplemented. has not been This Court is also polygraph exam error.” See Ice appellant’s will not entertain claim of error 674-75, Commonwealth, Ky., 671, 667 S.W.2d supрorted only by when a motion and an denied, 860, 105 U.S. S.Ct. ert. c order. 192, (1984). The trial court L.Ed.2d Appellant also claims the trial court properly in the instant case sustained the day erred when on fifth of trial objection appellant’s Commonwealth’s juror holding excused a for illness without attempt to exact further hearing. Although an on-the-record de objec lie detector exam. There was dismissal, objected fense counsel passing first tion defense counsel to the request opportunity did not an test. Appellant reference to the concedes juror. requires Rule Criminal 9.22 find that this was a tactical decision. We made, ruling at the time a the action alleged in this error. no merit objecting party desires must be assignment Appellant’s made next of er known to court. first tape requested on record ror concerns a recorded statement examination witnesses, prosecution key motion for new trial. This issue is not one preserved babysitter, Cindy Linebaugh. properly Davis’ former our review. Blan police Linebaugh originally contacted ton v. 429 S.W.2d denied, 407, Crimestop- cert. sub v. October 1987 as result of nom. Blanton re- pers presentation television. She Ropke, 390 U.S. 88 S.Ct. it, "Q.35 new different. She said about what was Did discussions with her *8 plans? they as to her future her the Louisville Police had taken into given Department questioned Yes, and a and her A. sir. test, longer no lie and that she was a detector yu saying Q.36 do What recall that? suspect. all how he hit night We had learned everybody A. The came in first we through bed, telephone girls gone from behind conversations. and the to and Sheila and I only thing long new that I heard on that was that went out in the front and had drive hand, she told me this. he had a broken and conversation. The conversation was same ones, thing only along begin Asking That’s was new.” as a lot the other to with. know, added.) you (emphasis happened, she III what had what knew TE 391-92. to ported person no who is said although appellant had at “When both husband, told made the out-of-court statement time her she killed her have appears as reported incriminating person says who a number of state- n supra, ments, recited, subject to some of under oath and which are witnesses simply jus- the discussion of the issue. cross-examination there is directed verdict jury to permitting for not tification Linebaugh testimony, appel- To rebut the evidence, hear, they as all substantive attempted tape lant to introduce a record- say subject have to on the and both Linebaugh deposition prior taken Id. truth.” determine wherein lies the proceedings in a civil criminal related case, recording transcript and a and of an Linebaugh conducted in de- interview with In Jett we identified several limitations Because no formal fense counsel’s office. purpose for expanding on the rule evidence, proof offer of was made on this prior be inconsistent statements clear, entirely in her the record is not im- for as well as admitted substantive argues tape brief recorded here, First, peachment applicable and use. admitted in conversations should have been prior statement must be “relevant Linebaugh’s order either to rebut substan- distinguished as the merits case Specifically, clarify tive or to it. Second, the Id. from collateral issues.” Linebaugh points explanations by 43.08 must requirements foundation of CR incriminating which showed that some give the witness whose be met order appellant may ac- statements attributed proper supplemented “a testimony is to be appellant’s recitation of tually have been give timely opportunity to his version and theory of the case.3 someone else’s of it.” Id. explanation or appellant offered the second re- Later that be The Commonwealth contends rebutting Line- cording purpose for the recording transcript tape cause the baugh’s stand accusation from the witness witness, proper foun provided to the pressure or harassment de- of undue 43.08; CR dation was not established. fense counsel. McQueen Commоnwealth, Ky., 721 v. denied, cert. 694, 701-702, of- 481 U.S. The trial court overruled the second fering attempt impeach the wit- 95 L.Ed.2d as an S.Ct. provides: issue. He declined to Rule 43.08 ness on a collateral Civil recordings transcripts as admit offered of other evidence can be “Before appel- they originally offered because were time having made at another the witness proper failed to establish a founda- lant had statement, in- he must be a different admitting prior inconsistent tion concerning it, circum- with the quired of recordings Appellant filed statement. time, persons place, and stances of transcripts on avowal. examining correctly as the present, it be in them; and, present can party Jett cites if wit- be shown to the writing, it must (1969) support Ky., 436 S.W.2d explain ness, opportunity to it. Jett, with the said, claim. they They are so damned smart. during think example, interview with de- 3. For counsel, everything figured Cindy Linebaugh ap- they got out thing stated that have [sic] fense pellant truck, least body up innocence to her at asserted her into the except I lifted the how exchange. following times. Next came the five what she said. part about you Now the counsel]: "NICK told she didn’t [defense In as much as she NICK: got they it, I to Louis- don’t know how that’s anything assume to do with ville. right? telling you they told her she was what say did that. CINDY: She Yes, angry, she was mad. she was CINDY: But NICK: ... hours, questioned she was had been though. say CINDY: She didn’t Louisville yes Defendant’s Exhibit upset, she was mad.” got, they thing are so [sic] NICK: How I added.) (Avowal) (emphasis 10-11. 2 at got it in the truck were her CINDY: How she words. *9 recited appear that the factors
The court such evidence to It would allow be support of were by appellant in her motion impossible when it is to com- introduced in trial court persuasive with the ply with this rule of the somewhat because absence to reduce her bond hearing judge or that the elected the trial witness the $50,000 transcript of contradicted, As no sought to be and when the full cash. record, can- in the party hearing appears finds that has bail impeaching court the its added.) the trial abused good (emphasis in not conclude that court acted faith.” v. Pea- discretion. Commonwealth See agree that a not proper We foundation was cock, (1986). 701 S.W.2d Moreover, established. shows prior state- that the witness admitted presents next issues two upon confronted ments when she was First, con arising jury selection. she from cross-examination; thus there was no bona tends trial court erred in conduct that the inconsistency.4 Further, pur- the оther fide of voir dire on the issue individual pose for which the evidence was offered imposition penalty. the death Without conclusion, clearly In collateral. jurors improperly specifying were which trial court acted its discretion within cause, trial appellant claims the struck for excluding the recorded statements of wit- prosecu court should not have allowed Cindy Linebaugh. ness jurors ex question who tor further appellant prejudice Next asserts undue imposing after pressed difficulty death ability to her to assist in her own defense test. “passed” Witherspoon by the trial court’s refusal to release her on Illinois, Witherspoon 391 U.S. recognizance. her own L.Ed.2d 776 S.Ct. chambers, judge the trial addressed Appellant contends that under the juror individually as each follows: 4.10, conditions set forth in RCr shе was clearly qualified released on to be her own asking questions “The I am these reason recognizance. points following to the it individually pertains is because record, three facts: criminal children to particular fact in case the Grand this for, making payments, care house substan Jury on a has indicted defendant history, conduct, prior course of tial work charge Murder, means Capital policy life proceeds of insurance in the impo- prosecutor going is seek $250,000 being held in amount of escrow. if penalty sition of the defendant death release, pretrial In her motion for in this case. I need to guilty found What argued presumption that of inno also you, personally, have know is whether greater cence should have had force and conscientious, religious any moral, or nature effect view of the weak scruples imposition against against her. penalty?” death juror’s He ask further about the The Commonwealth counters the tri- if deny ability the law the first answer court has discretion to bail follow al Further, prosecutor Then the under 4.02. affirmative. capital case RCr RCr was 4.16(1) were invited to directs that “shall be commen- defense counsel bail juror. Occasionally one them asked gravity surate with offense consider juror he or could charged.” whether always do it. [by A. told me she didn’t “Q.38 Did I ask She’s defense not counsel]: you question: deposition you explained Q.40 Davis ever ‘Did Sheila tell this And in that she had involvement death it everything Sheila told about how was, husband?’, ‘No, your answer police happened reference how the was with did do it. Several times she told me she not Marty happened, did happened, said it said me that she didn’t do it.’ told you not? always [by Linebaugh]: Sheila has told A. me A. I be sure of You asked cannot that. me she did do it. already I be- months after I had talked. later through- Q.39 time You said that numerous added). yes.” (emphasis V mainly, TE 573 lieve deposition? that entire out *10 952 including In claim error re range penalties,
the full
of
her second
of
dire,
twenty years.
garding
appellant
voir
contends
minimum of
restricting
court erred in
defense
trial
prospective jurors
The four
whom the
proposed
questioning.
counsel’s
Counsel
prosecutor
successfully
moved
to strike
jury
Jury proce
to instruct the
Grand
cause all stated
would either be un-
presump
dure
it reflects on the
and how
give
penalty
the death
able or reluctant to
tion of
The trial court refused
innocence.
129,
#
any
under
set of facts. Juror
who
lessоn, noting
that it had al
allow
reluctance,
expressed
up by say-
followed
no
ready
instructed the
to afford
penalty].”
against
“I am
death
[the
weight
Jury’s indictment.
to the Grand
applied in
The current standard to be
no
of the trial court’s
There was
abuse
such circumstances was enunciated
regard to the examination
discretion with
412,
Witt, 469 U.S.
Wainwright v.
jurors.
(1985).
rele-
juries implicit v.Witt unreason- jury’s verdict not to render In standard. Grooms duty of discharge of this Court’s able. said, Ky., 756 S.W.2d review, alleged by every error appellate considered, “Conversely, juror thoroughly should be excused has principles appropriate legal if he would be unable for cause discussed circumstances, case, extenuating cir how the Court applied. no matter In such be, impo to consider the determination cumstances that the must remember pre penalty reserved to the sition of the minimum function the facts is the (emphasis reviewing duty law.” Id. at 137 is limited to scribed its jury and added). Appellant received a fair of law. questions Hardin Circuit judgment of the trial. The practice for a trial a better It would be is affirmed. Court penalty voir dire conducting death judge inquire to RCr 9.38 pursuant range the full ability to consider
juror’s COMBS, GANT, STEPHENS, C.J., and However, appel- capital cases. penalties in LEIBSON, VANCE asking this from prevented lant was JJ., WINTERSHEIMER, concur. complain be- question. She cannot now LAMBERT, J., by separate dissents consistently to take advan- failed cause she opinion. to do so. tage opportunity LAMBERT, Justice, Q.56 you tell the ladies and dissenting. Would gentlemen your opinion of the what I opinion dissent from the of the Court was? of the death of Jim Davis cause for the reason the Commonwealth *11 death of Mr. my opinion In A. prove beyond failed to a reasonable doubt result of a blunt force Davis was the that the victim was murdered. injury head. trial, ap- At the doctor who testified that, why Q.57 you explain Would extremely im- pellant stated that it wаs death? you feel that is the cause of probable that the victim died of force blunt any A. I found no evidence of other by the trauma to the head as contended type trauma which had been of external prosecution. of the On behalf Common- applied body. his I found no evidence wealth, however, Dr. Nichols testified shot, existing disease. He was not direct examination as follows: stabbed, strangled, any in oth- or beaten Q.52 findings? any there other Were clearly, body. er And he area of A. The intracranial examination was found, body because of where identifying performed. There was no ex- didn’t die from natural disease and drive ternal or internal skull fracture associat- himself there. ed with the three wounds of the forehead foregoing testimony, From the it is clear This, scalp area I it. described fracture, skull that the victim had no however, does not mean that substantial sack) intact, (brain dura and the brain intracranial trauma had not occurred. post liquified to such an extent that a brain, at the time examina- impossible. mortem examination of it was tion, shrunken, liquified, consisted of a fact, In testified that from the Dr. Nichols mass, green putrefac- as a result of the impossible condition of the brain was tion that I talked It confined about. was hemorrhage. determine if there was a brain to a membrane which covers the brain Moreover, that he was unable he testified spinal and extends down the cord. The type of blunt instrument determine what is called the dura. The dura membrane injury admitted that caused the head intact, there were no skull fractures injury could have been caused identified, liquifiеd. It brain was bed, theory. the defense bolt the truck injured could have well been substantial- Nevertheless, opined, upon Dr. Nichols ly, injured. it also not have been any explanation other for the absence of Iway you There is can tell that one death, that the cause of death was victim’s way or the other. Because force trauma to the head. blunt case, brain, longer in this is no before the Court is whether I substance that can make that determi- is sufficient as a matter of such evidence nation with. mur- permit jury determination of law Q.53 present Was there blood Disregard- beyond der a reasonable doubt. portion your examination of the doctors, testimony appellant’s from brain? view, is Dr. Nichols’ i.e. death must have No, Blood, present, A. sir. if injury caused head because liquified as a result оf the same injury, no other sufficient to make found liquified process that had the brain. many In cases such prima facia case? Q..54 Anything your else in examina- reasoning entirely ac- deductive would be the internal remains of Jim tion decomposed case the ceptable, this Davis? and the absence condition No, A. sir. such any apparent cause of death renders Q.55 of this Did at the conclusion inherently Dr. approach unreliable. of Jim Davis come autopsy examination opinion was without a sufficient Nichols’ your professional ex- a conclusion permit determi- predicate factual of death? pertise as to the cause beyond thereon a reasonable nation based Yes, I doubt. A. did.
954 Commonwealth, Ky.,
In Timmons v. (1977), this Court said S.W.2d requires probability
“What the law likely
has as more been defined than not.” Swearer,
In Alexander analyzed require- this Court expert opinion.
ments We held
opinion assumption must not be based on Alexander undisclosed facts. not- impact
ed jury, the “obvious on a unbiased, objective police- of an *12 v. Conley, Wells Finally,
man.” assump- S.W.2d 496 use of
tion by expert rejected. witnesses was portion
When the of Dr. Nichols’ testimo-
ny quoted objectively herein exam-
ined, nothing it amounts to more than as- deduction,
sumption. By simple Dr. Nich- decidedly opin-
ols nonscientific achieved status, however,
ion. By virtue of his
opinion expressed accepted by
jury- DEVONDALE, Kentucky,
CITY OF Graymoor-Devondale, City of
n/k/a
Movant, STALLINGS, al., Respondents. et
S.J.
No. 89-SC-169-DG.
Supreme Kentucky. Court of
Sept.