*1 876 by Thereafter,
was not affected the exclusion of this appellant each occasion. the testified, evidence. took the stand and under oath of course, judge that the trial had failed to assignment The second of error concerns advise him rights prior of certain to the persistent felony portion the offender of entry plea of the of in guilty the 1976 and requirement case. the Pursuant to the of proceedings. No evidence was Gadd, Ky., v. Commonwealth 665 S.W.2d to the presumption regularity rebut of in (1984), appellant herein filed a mo- relation to the 1970 conviction. At this suppress previous felony tion to convic- juncture, the burden shifted back to the tions which formed the basis of the PFO judgments Commonwealth on the two re- appellant. status of the deem it neces- to, totally ferred and the record is silent on sary procedure to discuss the to be fol- judge the issue of whether the trial advised hearings, lowed at such clarify and to rights. However, him of his the Common- proof necessary burden of for the trial appellant wealth cross-examined the con- properly pur- court to rule on motions filed issue, cerning readily and he admitted opinion suant to our in In research- Gadd. rights knew about which he ing jurisdictions passed those which have contends he was not informed the court. upon question, views, divergent we find The evidence further he indicated was sat- proper procedure but feel the is as follows: isfied with the manner in which he was cases in those which the defend represented by any counsel. We fail to see ant is persistent felony indicted as a of reversible error in the failure of the trial proper fender sup and files motion to court, failure, if there was such to advise press any offenses, prior evidence of his appellant rights of he admits he al- the burden is on the Commonwealth to ready knew existed. prove judgments of conviction each judgment The is affirmed. underlying upon offenses which it rely. presumption regu intends to of All concur. larity of judgment shall be sufficient to original proof. meet the burden of After introduced, judgments of conviction are
the burden shifts to the defendant to show
any infringement rights irregular of his or relies,
ity procedure upon of which he such Alabama,
as those set in Boykin out v. U.S. S.Ct. L.Ed.2d HOLLAND, Appellant, Jack Joe pertinent or other cases. If the v. evidence, presents through defendant his COMMONWEALTH of evidence, or other affirmative Kentucky, Appellee. presumption regulari which refutes the of ty, the burden then falls and Common prove underlying judg wealth to that the JAMES, Appellant, did, ments were entered in a manner which fact, protect rights of the defendant. COMMONWEALTH simply A silent record will suffice. Kentucky, Appellee. Applying procedure this case Kentucky. Supreme Court of us, before we find that the Commonwealth original pre met its burden as hereinabove Dec. by introducing proof scribed 27, 1986. Rehearing Denied Feb. pleas felony charges judgments did show which the convictions and further showed that the
appellant represented by counsel on *2 night. Arrangements made for were
Waldridge to contact Holland and discuss a robbery getting fictitious as a ruse for Holland to talk the Blue crimes about Boar being tape while monitored and recorded *3 by police. tape
The first recorded contact was a telephone by Waldridge call to Holland on Isaacs, Advocate, Larry Paul H. Public 28, May agreed when Holland to meet Wal- Marshall, McDaniel, Rodney Asst. Public dridge day later that to talk about Advocates, Frankfort, for Holland. robbery. meeting fictitious This was moni- through tored a Isaacs, Advocate, surveillance device install- Paul Public Donna Proctor, Boyce Advocate, Waldridge’s ed in Asst. Public vehicle. Police arrested Frankfort, for James. evening. Holland and James later that questioned 12, by police When on June Beshear, Gen., Atty. Steven L. A. David repeated their alibi. Smith, Leeco, Gen., Attys. K. Gail Asst. Frankfort, appellee. for testify Holland did not at trial. He relied on his alibi and James’ and de- THE OPINION OF COURT. witnesses, (whose fense present- case was appellants, Jack Joe Holland and Holland’s), ed before that he and James James, were convicted of first-de- marijuana night smoked all that at the Do gree robbery and the murder of Barbara Drop jury Inn. The found Holland and They Helm. were sentenced to death on robbery and murder of charge years’ impris- the murder and to 20 Judgment Barbara Helm. entered was charge. ap- onment on the robbery They James, against imposing Holland and peal right. to this court as a matter of We years’ imprisonment first-degree for rob- reverse. bery penalty imposed and the death was 20, 1980, January On Helm dis- Barbara for murder. appeared punching after out from work at allege Holland and James numerous er- Cafeteria, Louisville, the Blue Boar Ken- trial, rors in their some of which we have 21,
tucky. picked up January police On found to be meritorious. Holland, Appellant employee Jack an Joe Initially, Holland contends that the trial questioning the Blue Boar for and released refusing jury court erred in to instruct the approximately him hours later. five On testify that his not 24,1980, refusal should January Helm Barbara was found any way arriving dead on a in in in at a roadside embankment Oldham considered County. questioned again Shortly Holland was on trial the United verdict. after January any participation Court, 30. He denied in Supreme States Carter v. Ken- the Blue Boar explained crimes and 288, 1112, 67 tucky, 450 U.S. 101 S.Ct. Appellant Larry had been with James at 241, (1981), Fifth L.Ed.2d held that Drop the Do Inn Bar and later at Wendell’s requires upon request Amendment Tavern, establishments, both Louisville at give judge criminal must a “no ad- trial the time that the crimes occurred. James verse inference” instruction to the questioned gave on and he when a exercises his Fifth and defendant an alibi identical to Holland’s. rights against Fourteenth Amendment remand compulsory self-incrimination. On 21, 1981, George Waldridge May On of- Court, Supreme from the we reversed Car- in the fered information and assistance that he be ter’s conviction and directed investigation exchange Blue Boar for charges arising given Kentucky, a new trial. v. leniency regard to from Carter in Ky., an automobile accident he was involved portray propensi and to their criminal
The Commonwealth submits that tried ty. was decided weeks after Hol It is the established rule of this Com since Carter tried, land was it should not be retro monwealth that such evidence does application the former rule spective where tend to establish the commission of longstanding history of continuous had a charged only crime but tends instead judicial approval, citing United States jury, with the passions arouse the Peltier, U.S. 95 S.Ct. resulting prejudice outweighing often its 374, (1975). disagree. L.Ed.2d probative O’Bryan v. value. Common Oklahoma, 900, 103 S.Ct. Mack v. 459 U.S. wealth, Ky., 634 S.W.2d to be tried Holland and James were entitled of the United States remanded a case charged for the crimes in the indictment one, petitioner’s similar to this in which the Pankey and no others. v. Common appeal to the direct Oklahoma Court wealth, Ky., 485 S.W.2d *4 pending the Appeals Criminal was when editing, proper certain isolated refer With Supreme United States Court announced conversation, during taped ences which its decision Carter. The Oklahoma knowledge may by tend to show Holland of Appeals Court of Criminal determined that surrounding unpublicized certain facts was not to be retroactive Carter crime, may be admissible. The effect. Court vacated judgment and remanded the case for fur Additionally, portions in certain light ther consideration in of its decision in tapes passed Holland stated that he Johnson, United States v. 457 U.S. polygraph and James failed tests. (1982). In 102 S.Ct. polygraph held This court has evidence to Johnson it was held that a decision of because it is neither scien be inadmissible construing Supreme Court the Fourth Commonwealth, tific nor reliable. Ice v. applied retroactively is to to Amendment be (1984). Ky., Any reference yet all convictions were not final at passing polygraph to either Holland a test time the decision was rendered. The Su failing or James a test is therefore inadmis preme remand of to recon Court’s Mack be conclusion, entirety sible. light appar it sidered of Johnson makes tapes except previ for the is inadmissible ent that the intended Carter ously specific exceptions they mentioned as applied retroactively to a defendant whose relate Holland. appeal pending was at the it time was announced. Such is the case here. As principal Holland and James’ next applied retroactively Carter to the defend error is that the admission of contention of case, apply ant in that so does to Holland it of the deceased demon photographs color in this case. body subjected strating that the had been by mutilation the time to extensive animal assign Both Holland and James in photographs had been taken was error to the into trial court’s admission significant proba flammatory and without evidence, objection, over their surveillance agree. general tive value. We It is the tapes of conversations Holland had with admissi photograph, rule that a otherwise Waldridge, tapes since the were irrelevant ble, simply does not become inadmissible inflammatory. agree. and We The Com gruesome and the crime is because it is tapes monwealth contends that reveal Commonwealth, Ky., heinous. Brown v. thirty-one by direct references Holland to However, we find 558 S.W.2d his involvement in the Blue Boar crimes. presen distinguishable in that the this case tapes listened to the and have have animal photographs depicting the tation of thoroughly transcripts examined the there corpse goes beyond far multilation they of and have concluded that have little contested rele value, demonstrating proof a probative only put and served Commonwealth, Ky., Poe v. before the evidence of other crimes for vant fact. identity, Proof of being which Holland and James were not 301 S.W.2d condition and lividity amply was estab- mined that are either moot or without by lished of witnesses who merit. body found the pathologist. and the The judgments of the Oldham Circuit
photographs do not elaborate on the nature Court are reversed. injuries of the victim’s but serve to arouse
passion at sight of extensive animal STEPHENS, C.J., AKER, GANT, Poe, supra. mutilation. LEIBSON, VANCE, STEPHENSON and Next, complains James that the trial JJ., concur. court erred in permitting introduction of an WINTERSHEIMER, J., dissents and pending against indictment the defense wit dissenting files a opinion. ness Wakefield as evidence of motive and in testifying. bias normally While this is WINTERSHEIMER, Justice, dissenting. permissible against prosecution as a wit I respectfully most dissent because I be ness, can way we think of no it demon lieve the errors noted majority did strates motive and bias as to this defense not result an unfair trial for the accused. witness repeated upon and should not be require The law does not that a defendant retrial. perfect trial, receive a textbook only but complains also im- fair trial. Michigan See v. Tucker 417 properly impeached prior felony with con- U.S. 433 at S.Ct. 2357 at 41 L. according victions to rules set out in Cot- Ed.2d 182 *5 Commonwealth, ton v. Ky., 454 S.W.2d reading A careful of the extensive record 698 We need not discuss this at indicates that no essential unfairness oc- length because Commonwealth v. Rich- curred. ardson, Ky., (1984), will Considering quality sufficiency impeachment by prior control felony convic- presented jury, evidence to the I do upon tions a retrial of this case. significant believe the trial errors were argue Holland and James that the enough require reversal. prosecution made deliberate and undue ref post-arrest References to the silence of erence to their failure to make a statement James and Holland were not reversible er- upon questioning they given after were rors. The questioned defendants were rights.” their agree. “Miranda We See total of six receiving times each. After Romans v. Commonwealth, Ky., 547 S.W.2d 128, warning, Miranda gave police 2, February an alibi on repeated 1980. He Lastly, Holland and James com 5, February alibi on remained silent on plain that the trial court erred when it February May 28 and June 11. He re- jury advised the that the court “can peated the alibi on June 12. change” punishment jury may that the gave police Holland the same alibi on impose upon Appellants and that the Com January February 30 and 6. He re- repeatedly monwealth reiterated this to the May repeated mained silent on 28 but jury. agree. The United States Su on alibi June and 12. preme recently held the case of Miss., U.S. -, Holland, following May Caldwell on S.Ct. his arrest gave police that it is re statements to the on June 11 jury’s repeated versible error “to minimize the and 12 in which sense he the alibi he had of responsibility determining for appro January on 30 and priateness of death.” See also Ward v. Considering both defendants Commonwealth, Ky., 695 S.W.2d right claimed the to silence both before and arrest, after the I do not believe evidence
We have examined Holland preju- and James’ at the arrest scene was of silence arguments numerous other and have deter- dicial. photographs
The 8-color of the victim properly
were introduced into evidence. photos
Two of the showed the victim as she
was found at the murder scene and the picture
third morgue picture. is a back-side
They are relevant and admissible for the
purpose presented. They unduly were not
prejudicial because of the animal mutila-
tion. gruesome Whether were is of consequence
no they portray because
body in the condition that it was found.
Considering expert that there was testimo- ny describing shotgun the effect of the Director, Hooper, KBA, Michael Asst. victim, photos blast to the face of the Frankfort, complainant. for might gruesome. be considered less Frank Wermeling, Covington, A. for re- jury The references to the sentence as a spondent. recommendation accompanied by were not any message that the responsibility of the
jury OPINION AND was lessened. The ORDER was told that its verdict was a recommendation but there disciplinary proceeding, In a the Board of responsibilities was inference that its were Kentucky Governors Bar Association thereby. Any lessened impression false on respondent, concluded that Frank W. that score was corrected defense coun- Wermeling, of unethical and sel at trial. unprofessional bring conduct calculated to Kentucky bench and bar of into disre-
I would affirm the conviction. pute. The Board recommends that the re-
spondent suspended practice from the (3) period years, law for a and that *6 required pay he be the costs of this action. adopts findings
The Court and recom- mendations of the Board of Governors. respondent hereby suspended is for a (3) period years and directed here- ASSOCIATION, KENTUCKY BAR pay proceeding. the costs of this Complainant, (20) twenty days Within from the date of Order, entry respondent of this shall notify writing all clients in inability of his (Kenton WERMELING, Frank W. represent photo- them and shall furnish County) Respondent. copies static of said letters of notice to the Kentucky Director Bar Association. Kentucky. Court of Feb. 1986. WINTERSHEIMER, All except concur J., sitting. As amended Feb. 1986.
ENTERED: