Harris v. Commonwealth

HARRIS, Anthony Appellant, John

COMMONWEALTH of

Kentucky, Appellee.

No. 88-SC-45-MR.

Supreme Kentucky. Court 15, 1990.

March

As Modified on Denial of Sept.

Rehearing 1990. Niehaus, Deputy Appellate

J. David De- fender, Defender, Jefferson Dist. Public Louisville, appellant. for Cowan, Gen., Atty. Ian Frederic J. G. Gen., Frankfort, Sonego, Atty. for Asst. appellee.

STEPHENS, Chief Justice. Harris, Anthony Appellant, John was murder, kidnapping, wanton convicted evidence, tampering physical with these sen- corpse. abuse of a He received tences: life without imprison- years kidnapping; for the life murder; years’ imprisonment ment for five tampering; and 12 months and a $500 corpse. appeals fine for abuse of a He right. convictionas a matter of We affirm. Testimony appellant at trial was that the planned “playing joke” on a on Sabra Ann Timothy El- Diamond and invited James join Testimony more to him. established appellant planned stop and Elmore gun Ms. Diamond’s car and shoot a into the night April air scare her. On pair followed her a car driven They stopped Elmore. her on a desert- by blocking ed road her car Elmore’s with loaded, ap- Carrying pistol, car. cocked pellant approached her car on the driver’s speak side. Ms. Diamond refused to with appellant pointed pistol him. The then head, opened at the and she the car victim’s “lunged” at him. she door and out When gun appellant pulled reached for the gunshot trigger. The victim died from a wound to head.

Appellant confessed that he and Elmore placed body in Ms. Diamond’s Elmore’s car. They LaGrange dragged drove woods, body appel- victim’s into the where lant removed her clothes and covered the corpse leaves. There with was evidence corpse subjected that the was to sexual intercourse. Elmore testified that he ob- Appel- appellant commit act. served purse from her car. lant took the victim’s police determined that a small amount money missing purse. from her As result, charged also with tampering physical robbery and evi- First, prongs. claims that jury acquitted dence. The him on the rob- two the lan- guage of not properly the indictment did bery charge. Second, charge offense. he com- eight Appellant presents assignments of plains instruction error. will address them in order We phase guilt/innocence at the close presented in his brief. require proof of the trial failed to victim’s First, appellant claims his con death. police sup the should fession to have been argument, appellant to cor- As the first pressed it was obtained in the ab because rectly kidnapping capital is a that states repeatedly he sence of counsel after had not offense is released when the victim lawyer. The held requested a trial 509.040(2). Appellant argues alive. KRS hearing pursuant evidentiary an to RCr specifical- did not that since indictment the 9.78 and found that Harris’s statement was allege re- ly that Ms. Diamond was not given voluntarily and that his claim of a alive, capital kidnapping not leased was The request was not for counsel credible. alleged. form Appellant favors over sub- ruling trial record shows that the court’s shows that one stance. The record count evidence, supported by and its substantial original indictment an of both the findings are therefore conclusive. factual kidnapping amended stated that version 9.78; RCr Halvorsen v. charged capital as a offense. being was denied, Ky., 730 921 cert. S.W.2d the Count two victim suffered stated 484 108 98 407 L.Ed.2d proceeding capital death. the notice Both (1987). suppress appellant’s The motion to particulars the noted that the bill of properly confession was overruled. kidnap appel- a result of the victim died as therefore, Appellant hold, next that it was claims lant’s actions. We jury court to the error for the trial instruct the indictment appellant was not misled murder, in on because there was penalty Wylie wanton as to the and its basis. jury Commonwealth, (1977). from the 1 Ky., sufficient evidence which 556 S.W.2d 6.12; that he acted under “cir could conclude The sufficient. RCr indictment was manifesting Commonwealth, Ky., extreme indiffer 554 cumstances Howard v. life,” required by (1977). as KRS ence to human S.W.2d 375 507.020(l)(b). Appellant preserve to failed argu appellant’s second We find making specific objection. this issue trial, At one. defense ment be a curious Duke, 9.64(2); RCr Commonwealth v. instructing jury argued against counsel (1988). appellant Even if 750 S.W.2d 432 capital kidnapping, and record on preserved allegation of properly had kidnapping instruc capital no shows that error, The argument is without merit. his guilt/innocence in the tion was that the evidence was suffi record shows complains now phase. appellant Yet in support cient to the wanton murder submitted to the instruction loaded, appellant carrying struction: not require did jury at the close of evidence point pistol, and admitted intent to cocked This of death. is the proof the victim’s admit did not intent to it the victim but at kidnapping to a very that enhances element Nichols cause her death. v. Common attempts Appellant to as offense. wealth, Ky., 932 cert. 657 S.W.2d granting very of the relief sign error denied, 79 requested. (1984). The murder 691 wanton L.Ed.2d of Further, allegation error is appellant’s proper. instruction was evi- There was sufficient without merit. alleged errors involves next series The jury to find that presented for the dence appellant’s kidnapping con- propriety released alive. After the victim not viction. evidence, it found jury heard all of kidnap- had murdered argues capital of that a therefore ping Any error was alleged victim. proved, neither nor fense was His has harmless. kidnapping. argument respect to (1987). Next, ag The literal lan- appellant argues that his S.W.2d in gravated imprisonment guage sentence of life of the last sentence subsection parole years apparent for 25 the statute’s without is in conflict with parts is error because the did general purpose, gathered from all as aggravating find circum language not one must of the statute. literal 532.025(2)(a). in stances enumerated Simpson, Ky., 174 surrender. Oates argument, appellant points making In S.W.2d 532.025(3), language to the in KRS Therefore, they exist under the facts as that, “In cases unless at least one states all case, found in this hold that we statutory aggravating circumstances sup- proper aggravating circumstance of this sec enumerated subsection parole for port the sentence of life without found, tion is so the death years. imprisonment for life without sentence to Appellant next contends that it was probation until benefit mur jeopardy to convict him of both minimum of twen double defendant has served a sentence, Appellant ar capital kidnapping. der and ty-five years of his shall not be added). require proof of imposed” (emphasis gues that murder does not capital kidnapping, in any fact not included aggravating The record shows that the out in and thus under the test set Block jury beyond circumstance the found which States, 284 U.S. burger v. United designated a doubt and in writ- reasonable 76 L.Ed. 306 the murder that “in the course of the commis- merge capital kidnapping. charge must into Kidnapping, sion of the murdered [Harris] argument premise rests on the that This Appellant Ann correct Sabra Diamond.” is necessary to proof of the death is victim’s stating aggravating in circum- that kidnapping under the offense of establish among is not the in stance seven listed disagree. KRS 509.040. We 532.025(2)(a). However, he overlooks the introductory language very of that subsec- kidnapping The elements of and murder tion, expressly authorizes the 509.040(1) 507.020, in and are set out KRS jury “any aggravating cir- and to consider respectively. cumstances otherwise authorized law.” (1) Kidnapping.— person is A 509.040. Here, “aggravating circumstance oth- unlawfully he guilty of when provided by authorized is erwise law” person another and when his restrains section of the stat- intent is: ute, 509.040(2), kidnap- which makes reward; (a) hold him for ransom or To ping a offense when victim or not released alive. (b) accomplish or to advance the To agree We that subsection 3 of KRS 532.- felony; or commission of a believe, inartfully 025 is drafted. We how- (c) bodily injury inflict or to terror- To ever, the reference in subsection another; or ize the victim or aggravating “statutory circumstances enu- (d) performance interfere To in 2” merated subsection is a reference to function; governmental political of a or 2, merely por- all of subsection not to that or specific aggravating cir- tion which lists (e) hostage. use him as a shield or To sup- interpretation This finds cumstances. person is A 509.020. Murder.— 1(b) port in subsection of the statute. Sub- guilty of murder when: 1(b) section directs the in all death (a) to cause the death of With intent penalty cases to determine the existence the death of person, he causes another any aggravating circumstances “as defined except person; third person such or of a (2),” added) (emphasis in subsection person not any prosecution in shall jury’s considera- hence does not limit if guilty under this subsection he act- be aggravating circumstances tion to those influence of extreme emo- ed under the specifically enumerated. See that are Commonwealth, for which there was Ky., 734 tional disturbance Stanford excuse, explanation correctly reasonable lant claims that when alternative grounds finding guilt presented reasonableness of which is to be deter- are in viewpoint instruction, person mined from the of a in an all of these theories must be supported by defendant’s situation under the cir- evidence to assure una- Commonwealth, nimity. Ky., as the cumstances defendant believed Boulder v. However, nothing them be. contained 610 S.W.2d 615 overruled on other in grounds, this section shall constitute a defense Dale v. prosecution preclude

to a for or claims that convic- S.W.2d manslaughter degree purposes tion of the first none of these unlawful crime; any beyond other shown a reasonable doubt. He suggests jury acquitted that since the him (b) to, Including, not limited but robbery, relying it could not have been operation of a motor vehicle under cir- felony satisfy on this the first basis for a manifesting cumstances extreme indif- finding guilt. life, wantonly human en- ference to gages grave in conduct which creates a Appellant states that he could not person risk of death to another raise this issue before the returned its thereby per- causes the death of another possible verdict because of the number of son. However, if verdicts available. improp require proof Murder does not believed that the instructions were Kidnapping erly phrased in the so as to victim had been restrained. alternative require proof not would does of death of create verdict Therefore, unanimous, objected victim. the offenses do not not be he should have merge jeopardy ground jury and there is no vio on this before the was sent double 9.54(2). phase guilty/innocence lation at the of the back to deliberate. RCr sentencing stage trial. It is not until the aside, is not a Preservation issues this kidnapping merge. that murder and could Boulder, in it supra, situation as where point proof kidnap It this is at that only theory guilt one of was was clear that ping necessary victim’s death is to enhance supported by the In the case at evidence. kidnapping capital kidnapping. Cosby to v. bar, the record sufficient evidence to shows Commonwealth, 367, Ky., 373 776 S.W.2d grounds given in support the alternative — denied, -, -, cert. finding for a kidnapping instruction 880, (1990). 110 S.Ct. 107 L.Ed.2d 963 See guilt. Wager 751 S.W.2d felony, to intent to As commit 28, Florida, (1988); 30 Hildwin v. 490 U.S. question appellant here is not whether ac 2055, (1989). 104 L.Ed.2d 728 felony, he tually committed a but whether bar, however, In was appellant the case at unlawfully intended to do so at the time he act, punished not twice for the same but restrained Ms. Diamond. McClellan separate punished rather was two Commonwealth, Ky., 715 S.W.2d There no double courses of conduct. was denied, cert. stage either. jeopardy violation at this (1987). jury The 93 L.Ed.2d 986 S.Ct. Blockburger, 52 at 182. testimony examiner heard from the medical Focusing kidnapping on the instruc it could concluded that the from which have tion, argument appellant next advances appellant moved victim was still alive when that he did receive a unanimous verdict not testimony body. jury heard her The also 9.82(1). required by as RCr he appellant from were Elmore that they not certain the was dead when kidnapping instruction at victim also required the her. The medical examiner close of evidence in case moved body dead doubt that found evidence that victim’s beyond to find a reasonable intercourse, and subjected to sexual appellant Ms. Diamond with- was restrained ap doing, appel- Elmore testified that he had observed out that in so her consent and 1) 2) pellant an act. The state felony, or to commit such lant intended to commit a not be Appel- is such that it would bodily injury to terrorize. the evidence cause or Gilbert, apply. supra. to statute does not clearly juror unreasonable for a believe argues appellant restrained the victim without That case here. that is the purpose did so the intent to to harass the her consent and his criminal Boulder, 509), rape. 617. (a Chapter S.W.2d at purpose outside victim short, very restraint was the duration of ground finding guilt un- The second did not exceed that and that the restraint instruction, an intent to der offense. We normally associated with the terrorize, bodily injury cause or to also is disagree. by sufficient Accord- supported evidence. confession, appellant’s pulled he out to above, testimony established As stated concealed, pistol loaded when victim victim, ap- appellant stopped the rejected attempts to converse after loaded, pistol, cocked proached her awith stop her to her car on a deserted forced head, her and then pointed pistol at night. that the road at We hold evidence lunged pulled trigger when victim permit sufficient to find The murder of the victim out of the car. beyond a reasonable doubt that deprivation liberty clearly exceeds the bodily injury intended to terrorize cause appel- ordinarily incident to the harassment to the victim at the time of the restraint. intended, any lant claims to have purposes found in the the other criminal kidnap argues Harris also kidnapping instruction. Moore v. statute, 509.050, See ping exemption Commonwealth, Ky., 634 S.W.2d applied preclude the should have been to the Appellant was not entitled proceeding kid Commonwealth from on the 509.050. charge. Appellant benefit of KRS nap is entitled to exemption only if benefit of the statute assignment er Appellant’s final are mandated the evi three factors erroneously trial acted ror is that the First, purpose appellant’s dence. criminal excluding psychological evidence certain must the commission of an of have been sentencing phase. The trial offered in the Chapter fense defined outside KRS 504.070(1), which court relied on KRS which deals with and related “A defendant who intends to states that Second, appellant’s offenses. interference illness or introduce of his mental evidence liberty with the must have oc victim’s the offense shall file insanity at the time of immediately curred with and incidental to of his intention at least twen written notice Third, the the commission of offense. ty days trial.” Because before interference must not have exceeded that notice, requisite the trial had not ordinarily which is incident to commission appellant’s men court excluded evidence of step of the offense referred to in 1. KRS state, by psychologist, a clinical tal offered 509.050; Commonwealth, Ky., Griffin testify re psychologist to but allowed the 514, (1978). 516 S.W.2d IQ re appellant’s and chances for garding exemption The statute is tested on a habilitation. case-by-case basis. Gilbert v. Common argues that since he was offer- wealth, Ky., 637 S.W.2d sentencing phase ing testimony in the denied, 459 103 S.Ct. cert. mitigation, and not as a purposes of for case, every In how 74 L.Ed.2d 998 crime, provisions the notice defense to the ever, jump through all the defendant must apply. 504.070 should not of KRS hoops to entitled to the three of these be exemption. think the benefit of the We penalty death In cases for which the all clear at least appellant in this case failed to authorized, 532.025(2) directs may KRS be hoop. the third mitigating cir- jury to consider certain Assuming psycholo- that re- cumstances. this Court has determined When admissi- gist’s testimony would have been progressed beyond straint has which statute, any error exclud- under this immediately with and incidental ble occurs testimony, taken The offense, offender it was harmless. the commission of an avowal, appellant suffered by kidnapping, exemption guilty and 509.040, kidnapping is personality disorder Pursuant to KRS from borderline capital “when the victim is not traits, a offense depression, anxiety, and narcissistic released alive....” self-esteem, difficulty in in poor and had relationships as a result. terpersonal How provides that: KRS 532.030 ever, expert permitted testify a person is convicted of “When superior capa appellant’s intellectual about punishment offense he shall have his bilities, activity, prior his lack of criminal death, imprison- fixed at or at a term of history drug his lack of a of alcohol or probation benefit of ment life without abuse, amenability to rehabilitation. and minimum or until he has served a appellant’s from jurors The also heard (25) sentence, twenty-five years of his mitigat family, friends testified to who life, to a sentence of or to a term of or also note ing circumstances as well. We (20) twenty years.” not less than that a in a death case recom 532.025(2)provides: KRS sentence, binding which is not on mends a “In all cases of offenses judge. Skaggs penalty may authorized the death be cert. de 694 S.W.2d consider, judge include shall shall nied, jury for it to in his instructions to the 532.025(l)(b). (1986); L.Ed.2d 678 KRS consider, any mitigating circumstances testimony The trial heard the avowal aggravating circumstances otherwise determining to consider it in and was able any of the authorized law and follow- to reduce the sentence whether aggravating circum- ing statutory ... considering appel imposed. After had may supported by the stances which be character, history, and circum lant’s added) (Emphasis evidence.” stances, judge imposed the trial the sen 532.025(3)provides part: in relevant The ex jury. recommended tence (1) least one “In all cases unless at testimony, condition if clusion of mental statutory aggravating circum- error, was harmless. stances enumerated in subsection reasons, appellant’s foregoing For the penal- the death found, so this section is is affirmed. conviction imprisonment for ty or the sentence to pa- probation or

life benefit of without has served a the defendant role until GANT, STEPHENS, C.J., COMBS, (25) years of his twenty-five minimum of WINTERSHEIMER, JJ., LAMBERT and (Em- sentence, imposed.” shall not be concur. added) phasis LEIBSON, J., by separate dissents interpretation is strained Majority’s VANCE, J., joins. opinion in which give effect to the statute as and fails to victim is not When whole. Justice,

LEIBSON, dissenting. alive,” kidnap- this fact makes “released offense, no stat- but there is ping a portion from that Respectfully, I dissent also, in specifies that this and of ute that affirms the Majority Opinion of the itself, aggravating circumstance mak- is an possibility of sentence of life without the eligible pen- for the death ing the offender (25) twenty-five years on parole for alty. up- Majority kidnapping conviction. The on the holds the sentence basis 532.025(2) aggra- Certainly, KRS allows in the course of murder of the victim spe- vating other than those circumstances aggravat- of is an commission to be cifically enumerated that section by by circumstance “otherwise authorized in its into consideration taken quoting addition, using Majority by deliberations, by so holds law.” The but in “and,” despite requires at portion conjunctive the statute and statute only a statutory cir- statutorily enumerated cir- one of the enumerated fact that no least the death found before required by cumstances be cumstances were found as twenty- 532.025(3). parole for 532.025(2) penalty or life without and KRS parole twenty- (25) imposed. This of death or life without for years five can be is so Assembly years, the crime is murder the General regardless of whether five kidnapping. in KRS 532.- kidnapping or murder and so enumerated should have inescapable 025(2). This conclusion is because oth- Assembly the General have erwise would aggravated pun- I on the would reverse disjunctive

used the “or” instead of the to the court for ishment and remand trial phrases conjunctive “and” the two between resentencing in accordance with KRS 532.- 532.025(2). in KRS 030. why logic There is still another reason

compels interpretation of our death VANCE, J., joins this dissent.

penalty statute. The statute was written eye complying an with the then

recent decisions of the United States Su- mini-

preme stating Court constitutional penalty Gregg

mums a death statute. 153, 2909, 49 Georgia,

v. 428 U.S. 96 S.Ct. (1976), rehearing

L.Ed.2d 859 denied 197, 198, 96 S.Ct. 50 L.Ed.2d 158 WOODS, Appellant, Melvin jury’s mandates “a discretion must v. channeled, always be ... it is circum- legislative guidelines.” scribed COMMONWEALTH statutory interpretation Majority in our Kentucky, Appellee. Opinion specify eliminates the need to No. 89-SC-194-MR. statutory aggravating put circumstance to Kentucky. eligible Supreme the defendant in the class for the Court of required penalty death as United States June 1990. Supreme interpreta- Court decisions. Our Rehearing Sept. 1990. Denied case, any capital tion would extend to murder case as well as a case

where the victim not released alive. interpretation

We have fashioned an penalty

our death statute that fail the will

constitutional minimum. Our decision in-

terprets permit our statutes to the death (as

penalty imposed to be well as life with- twenty-five

out the

years) statutory narrowing without the eligible required by

the death Gregg class Georgia, supra, Georgia, v. Furman

408 U.S. 33 L.Ed.2d 346 progeny. example, and their For 420, 100 Godfrey Georgia,

see (1980), holding 64 L.Ed.2d 398 portion Georgia

unconstitutional a allowing

statute death when outrageously

the murder was found vile, inhuman,

wantonly as a horrible vague to as a substantive

statute too serve

predicate. statutory aggra-

If is to be a circumstance, itself,

vating in and of eligible a murderer for the

makes

Case Details

Case Name: Harris v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Sep 6, 1990

Citation: 793 S.W.2d 802

Docket Number: 88-SC-45-MR

Court Abbreviation: Ky.