Jоe Eddie HUDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
April 1, 1980.
600 S.W.2d 464
Robert F. Stephens, Atty. Gen., James L. Dickinson, K. Gail Leeco, Asst. Atty. Gen., Frankfort, for appellee.
LUKOWSKY, Justice.
On February 10, 1975 two armed men robbed Forton, a driver for Brinks Armored Car Service. During the robbery Forton was shot in the back of the head. He died as a result of his wound. Hudson was indicted for this crime in May, 1975 and arraignеd in January, 1976. He was not tried until May, 1978, primarily because he escaped twice in the interim.
In March, 1977, this court was required by decisions of the Supreme Court of the United Stаtes to hold that the mandatory death penalty authorized by our 1974 murder statute could not be constitutionally imposed. The General Assembly was also aware of the constitutional infirmities of the 1974 death penalty statute. In 1976 it provided for its imposition by defining the discretion in application which is mandated by the decisions of the Supreme Court of the United States. In February, 1978 the Commonwealth decided to seek the death penalty for Hudson pursuant to the 1976 statute.
After hearing substantial eyеwitnesses, accomplice and investigative testimony the trial jury found Hudson guilty of the robbery and murder of Forton. The jury then considered evidence of aggravating and mitigating circumstances and recommended a twenty-year sentence for robbery and the death penalty for murder. Hudson appeals.
The question presented is whether, statutorily, a death sentence pursuant to the 1976 statute may be imposed for a murder committed in 1975. We hold that it can not.
While Boyd v. Commonwealth, Ky., 550 S.W.2d 507 (1977) had not been decided on
Four of our sister jurisdictions have squarely faced the issue presented by this case: Louisiana, California, Idaho and South Carolina. Louisiana, California and Idaho each considered retroactive application of the death penalty in the light of a statute requiring express declaration of retroactivity which was virtually identical to the Kentucky statute. State v. Collins, La., 370 So.2d 533 (1979); People v. Teron, 23 Cal.3d 103, 151 Cal.Rptr. 633, 588 P.2d 773 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979). South Carolina considered this issue, applying the same rule of construction as a matter of its common law. State v. Rodgers, 270 S.C. 285, 242 S.E.2d 215 (1978). Uniformly, these courts have held retroactive application of the death penalty to be impermissible under state law. Kentucky joins their ranks.
We hold as a matter of statutory construction that the death penalty sеntence for a capital offense authorized by
We are now faced with the question of a proper sentence for that conviction. Under the instruction given by the court below, the jury could have fixed Hudson‘s punishment for murder at death or life imprisonment or a term of years not less than twenty. The jury chose death. Clearly, the jury meant to imposе the maximum constitutional punishment authorized by statute. The maximum legally permissible punishment for a murder committed in 1975 in Kentucky is life imprisonment. The punishment to be imposed upon Hudson for the murder of Forton is life imprisonment. Boyd v. Commonwealth, supra; Self v. Commonwealth, Ky., 550 S.W.2d 509 (1977); Meadows v. Commonwealth, Ky., 550 S.W.2d 511 (1977).
In a 122 page brief Hudson, through the Public Advocate, has attacked his conviction with twenty-eight assignments of error, most of which assert that Hudson was denied due process of law at his trial. We have completed the tedious process of evaluating each of these аssignments of error and are satisfied that the decision of the issue discussed in this opinion moots many of them and that the balance are either without merit or harmlеss beyond a reasonable doubt. Therefore, the remainder of the judgment is affirmed.
The judgment of the Jefferson Circuit Court is affirmed in part and reversed in part and the cause is remanded to that
All concur, except STEPHENS, J., who did not sit and CLAYTON, J., who dissents.
CLAYTON, Justice, dissenting.
I must, in gоod faith and conscience, dissent, in part, from the opinion held by the majority of the court in this case. I view Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) as controlling this court‘s disposition of the sentencing issues as presented by the appellant.
In the present case, as in Dobbert, the criminal defendant was sentenced to death for a murder committed during a period in which an invalid death pеnalty statute was operating. The United States Supreme Court ultimately held, in Dobbert, that the unconstitutionality of the death penalty statute for reasons connectеd to its procedural administration did not deprive the defendant of a substantial right in violation of the ex post facto clause of the
“‘[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed’ (citation omitted). [T]he constitutional provision was intendеd to secure substantial personal rights against arbitrary and oppressive legislation (citation omitted) and not to limit the legislative control of remedies аnd modes of procedure which do not affect matters of substance.”
Dobbert, supra, at 293, 97 S.Ct. at 2298. See also, Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) and Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898). For an incisive discussion on ex post facto law, see 53 L.Ed.2d 1146 (1978).
Furthermore, the following language, quoted by the Court in Hopt, supra, applies equally to Hudson, as it did to Dobbert:
“The crime for which the рresent defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.”
Dobbert, supra, at 294, 97 S.Ct. at 2299.
When, in Dobbert, the petitioner argued that his rights had been violated because at the time he committed the murders there was no valid death penalty “in effect,” the Court countered with:
Whether or not the old statute would, in the future, withstand constitutional attack, it clearly indicated [the state‘s] view of the sevеrity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its еxistence provided fair warning as to the degree of culpability which the State ascribed to the act of murder.
Dobbert, supra, at 297, 97 S.Ct. at 2300.
The appellant, Hudson, had more than suffiсient notice at the time he committed and was indicted for the crimes, that murder, as defined in
I would affirm the appellant‘s conviction and sentence as rendered by the Jefferson Circuit Court.