*1 435 i.e., 304.20- policy, KRS inclusion JACOBS, Appellant, Clawvern
020(1), for insured coverage provided entitled to recov- legally “who are persons operators from owners or damages er KENTUCKY, OF COMMONWEALTH of ...
uninsured motor vehicles because Appellee. death, resulting therefrom....” only legal entitlement to recover No. 1997-SC-0248-MR. damages wrongful Kentucky for death in Kentucky. Supreme Court provided by Section 241 of the Constitu- tion and KRS 411.130. There is not and 25, Oct. right a common law never has been wrongful Kentucky. for death in action Adm’r v. National Coal & Iron
Smith’s (1909);
Co., 280, Ky. 135 117 281 S.W. Co., Lexington R.R.
Eden v. & Frankfort (14 B.Mon.) (1853). Ky. “The
maxim, per- moritur cum personalis ‘Actio
sona,’ was the uniform rule of the common
law, (sic), prevails Kentucky to-day
except where has been modified
express language of the Constitution and Co., Gregory
statute.” v. Illinois Cent. R.
Ky., 80 241 cre- S.W. Section right
ates a of action for damages for
wrongful provides death and that “[t]he Assembly may provide
General how the
recovery go shall and to whom be- 411.130(2),
long....” enacting KRS Assembly complied has with General only persons “legally
that mandate. The damages wrongful
entitled to recover”
death from an uninsured motorist are 411.130(2). persons
those listed in It a policy provision
follows absent contrary, persons those are the same legally
who entitled to recover are under coverage policy.
the UM JJ., JOHNSTONE, join
GRAVES concurring opinion. *2 mur
sentence and convictions der, first de attempted kidnapping, the case for a and remanded gree rape remand, a Warren Cir Upon new trial. guilty capi cuit found Jacobs *3 abuse, murder, sexual degree tal first kidnapping and recommended degree first capital for the murder a sentence of death and the Common conviction. Jacobs agreed rights to waive their wealth convictions. At sentencing for the other imposed final the trial court sentencing, by the the death sentenсe recommended murder capital for Jacobs’s conviction (5) years five and concurrent sentences of im degree sexual abuse and life first degree kidnapping for the first prisonment appeals thus to this conviction. Jacobs right. a matter of Court as a review of the record and the After at oral arguments raised the briefs and each con- argument, we affirm of Jacobs’s victions, reverse Jacobs’s sentence but capital murder death and remand Jacobs’s conviction to the trial court for new find no sentencing hearing because we aggravating circumstance which proper holding Our penalty. authorizes the death many arguments renders moot Jacobs’s Boyce, L. Appellate Donna Branch Man- committed indi- allege which errors ager, Department Advocacy, of Public sentencing vidual voir dire and the Frankfort, Gleason, Kelly A. Assistant generically phase as well as those which Advocate, Stanton, Ap- Public Counsel for sentencing proce- Kentucky’s capital indict pellant. alleged will address each of the dures. We Chandler, III, General, Attorney A.B. phase capi- errors and the guilt/innocence Smith, Attorney David A. Assistant Gener- which we find sentencing phase tal error al, General, Attorney Criminal Office dispositive. Division, Frankfort, Appellate Counsel for Appellee. II. ALLEGED GUILT/INNOCENCE PHASE ERRORS
KELLER, Justice. A. DOUBLE JEOPARDY ISSUES I. INTRODUCTION (“Jacobs of an al- argues because Jacobs In Jacobs v. Commonwealth ”)1 instruc- leged I death omission this Court reversed Jacobs’s 870 S.W.2d jury “actually” specifi- trial. competent
tion at his first stand B kidnapping returned a verdict for Class cally alleges by: trial court erred retrial on the which should have barred his objec- sustaining the Commonwealth’s greater capital kidnapping. offense of On expert Whyte’s tion to defense Dr. Alec conviction, appeal original direct from his opinion regarding competence Jacobs’s argued that should re- this Court trial; denying motion stand capital kidnapping verse his conviction be- thereby preventing for funds and alleged cause of this same error in the having expert participate from a defense separately instruction. did not This Court competency evaluations at during Jacobs’s error, this allegation address but the KCPC; improperly assigning the bur- opinion clearly expresses its majority view stand proof competency den of as to *4 of its merits: (4) trial; finding competent to Jacobs, counsel, through raises stand trial and to a dеfense of insan- waive ap in this assignments alleged of error (5) ity; question to failing reconsider peal. pre have reviewed all issues We the course competency during of Jacobs’s Allegations sented er Jacobs.... of trial; denying Jacobs’s mo- have to be ror which we considered supplement transcript tion to the official merit not be without will herein add that the videotapes. record with We find ressed.2 rulings within its discre- trial court’s were allega This found no merit to this Court warranting find error reversal. tion and no it, tion of error the first time Jacobs raised it now that persuasive and we find no more Whyte Dr. Alec testified for jeopar a Appellant has recast as double pretrial competency at Jacobs’s defense dy argument. origi The Jacobs’s allowed hearing. Although the trial court capital nal trial returned a verdict for kid Whyte testify generally Dr. to about the properly napping, and the Commonwealth disorder and manifestations delusional sought retrial of that offense after Jacobs hypothetical questions to about answer I. could affect a criminal how this disorder separate, indistinguishable argu- In two of a during defendant the course ments, jeopardy Jacobs asserts that doublе the trial court sustained Common prohibit convictions for both principles Whyte’s opinion objection to Dr. wealth’s kidnapping capital murder and because trial. competence as to stand capi- murder a lesser included offense of that, preparation for Whyte Dr. testified rejected argu- kidnapping. tal We reports and testimony, his he reviewed Roark,3 and our views ment St. Clair v. materials, many which dated back other unchanged. remain medical eight years, from other almost JACOBS’S B. ISSUES CONCERNING for who had evaluated Jacobs personnel TO STAND COMPETENCY but that he was unable competency, TRIAL evaluation be perform psychiatric his own fifteen cause he met with Jacobs relat- raises a number of issues (15) minutes refused to an- he was before finding to the trial court’s added). kidnapping from enhances the offense of (emphasis 2. Id. at 415 Not so. It felony capital to a offense. class A ("The Ky., 10 S.W.3d 486-7 enhances the victim which is the death of reasoning the conclusion [is] flaw in this offense.” the element which the murder of the victim is intention, Now, been any questions. Whyte Dr. there has no swer further any- purpose no to mislead not make there’s been explained he “could Whyte will hear Dr. body. problems at all determination about the any surprise testify. nothing There is symptoms” during ... caused organically today.... out going nature to come frame, prepared time that short but simply report do not have a other We opinion offer his on the basis of the materi- only thing I could have told than —The al- als he had reviewed. The trial court in a memorandum prosecution] [the Whyte opinion by Dr. express lowed would not talk would have been: Client avowal, Dr. Whyte explained al- not talk to to doctor. Or: Client would support he had no though evidence to doctor, agreed but with Dr. Deland’s finding incompetence present at Syndrome diagnosis. Organic Delusional time, predicted he that Jacobs would “de- mean, nothing here. That’s it. I there’s compensate” the course of the trial. agreement Given the substantial between We ruling believe court’s struck Whyte’s findings, Dr. and Dr. as Deland’s proper respect with to Dr. balance that trial competen- well as the fact court’s Whyte’s opinion testimony and find no cy directly Whyte’s Dr. ruling referenced prejudice ruling. identifiable from the Not testimony, we do not believe the avowal *5 Whyte testify opinion did Dr. to his Whyte’s Dr. affected opinion exclusion of avowal, judge by before means of competency determination or pretrial but he also communicated opinion his via prejudiced otherwise Jacobs. hypothetical questions, answers to and asso prejudice We likewise see no opinions substantially those did not differ ciated with the trial court’s denial of de from those of the other defense witnesses. fense motions for funds to obtain a mental fact, just In to prior competency hear- expert. Initially, health we note that ing, during regarding a bench conference approve trial court did funds for the de reciprocal discovery Whyte’s opin- of Dr. Dr. expert, fense to obtain such and ions, defense “downplayed” counsel at Whyte testified for the defense the com significance Whyte’s Dr. testimony petency expert. hearing as a retained Ja characterized as cumulative to other tes- timing alleged cobs’s error relates to the timony: Al approval the trial court’s of funds. only thing The that Whyte Dr. has though Jacobs asserts that the trial court’s records, done is look at and that’s the rulings initially denying those funds and same records the A.G.’s office has ordering his evaluation at KCPC violated they gave or that to us. There are no statutory right to have defense ex diagnoses going give he is to that will examination,4 pert participate in the Deland, substantially Dr. differ from if any defense does not cite the Court any. nothing going say There is he is assertion of entitlement under KRS going surprise that is to come as a to 504.080(5)until the KCPC evaluation. after prosecution]. facts, There are no [the Deland, Further, evaluator, the KCPC Dr. picked there are no new evidence he’s although apparently subpoenaed by the up. Commonwealth, by was called the defense pretrial expert compe- as an witness at the 504.080(5) ("A Id.)] chapter.” psychologist psy- McCracken Co. See under this Graves, Ky., 885 S.W.2d chiatrist retained the defendant shall be Fiscal Court v. permitted participate any examination testify diagnosis prove of monwealth to the defendant’s com- tency hearing to to the petence beyond reasonable doubt. fact that syndrome a delusional and to the status, a defendant’s mental and therefore In reviewing addition to the testi status, time. competency change can over relating to com mony reports he prejudice Jacobs asserts that suffered trial, at his the trial court petency original from the trial court’s because the ruling evidentiary two-phase pretriаl conducted a significant trial court found Dr. Deland’s hearing question compe on the of Jacobs’s opinion competent was tency. parte ex phase The first was an argu- stand but Jacobs articulates no proceeding which Jacobs’s trial counsel contrary ruling on ment for how past introduced affidavits from Jacobs’s provided a motion for funds would have present attorneys concerning their at testimony. question for him to basis torney-client communications with Jacobs. fact, Whyte, Dr. whom the defense with the During phase, the second Com retained, agreed with Dr. De- eventually introduced tes present, monwealth findings. land’s While no defense-retained a handful of enforcement timony from law expert present mental health for the personnel who had inter and corrections observation, evalua- period two-month expert acted with as well as the tion, KCPC, at defense and treatment and Dr. testimony of both Dr. Deland portion for a of that present Whyte. upon counsel were relied Commonwealth time, Dr. yet the examination of its cross-examination of the defense witnesses and did not offer regarding De- called the defense questions Deland raised no At conclusion of the additiоnal witnesses. procedures. land’s pres hearing, the trial court found Jacobs hearing argument After from the ently competent stand trial and to direct *6 that the bur parties, the trial court ruled his defense: upon prove the defense to Ja den was Well, that [RCr 8.06] we’re all aware of incompetence by preponderance cobs’s a making that in these determi- provides rul argues the that this evidence. Jacobs nations, or not I’m to look at whether policy was in error for a number of appreci- capacity Mr. Jacobs has the that constitutional reasons and submits consequences of the ate the nature and impression of first question this is I him. don’t think proceedings against fact, however, In we answered this Court. the fact that dispute there is much about question this Gabbard Commonw specific if not general, he has at least a ealth,5 arguments and none of Jacobs’s and conse- knowledge, of the nature was persuade us that our conclusion I proceedings. all don’t quences of the provision No of the United States wrong. by ei- has raised think that issue been from re prohibits this Court down question Constitution comes ther side. carry the burden Mr. quiring the defendant or not Jacobs basically to whether in his defense. incompetence,6 rationally participate and we find proving his can previous that aware of all merit contention The Court is well no Mr. upon Jacobs. conducted Kentucky requires the Com- evaluations Constitution hearing proving he is incom- (holding petency that 887 S.W.2d 551 although presumption petent “the defen- trial.'' to stand disappears competent dant is to stand grounds to hold a are reasonable when there 437, 112 California, 505 U.S. 6. See Medina v. competency hearing .... con- [the defendant] S.Ct. 120 L.Ed.2d ultimate burden at com- tinues to bear the finding as it is the I’m trial of this action They’re part all of the record. well testimony of all the that’s been competent aware that Mr. Jacobs is this Court at the concerning competency taken his trial, competent to direct his to stand Quite frankly, trial of this matter. first his defense. attorney as to mind, no this or this there’s doubt had no argues that the trial court mind, that at the time of the Court’s finding. for this As was rational basis probably Mr. was in- first Commonwealth,7 in Harston v. Ja case all competent upon to stand trial based a partisan conclusions flow from cobs’s reports that I’ve reviewed. Howev- evidence: view of the er, today. that’s not the issue The issue competent is whether or not he’s argu- [Appellant] makes extensive today.... stand trial I take note of the regard competency to the ments with that al- testimony fact Dr. Deland’s All insanity issue. issue and though report his is worded that he does in- incompetency and arguments assume agree diagnosis with the of this delusion- elementary to sanity. appear It would disorder, al he went into some detail to ruling that where the is based on us explain what he meant when he said in evidence, is no error. substantial there remission.... said it does exist but [H]e There is an abundance of evidence he’s able to control As those delusions. support ruling [Appel- record to Whyte, to Dr. Dr. Whyte testified that competent was to stand trial.... lant] agree he did with diagnosis previ- ously going guess made even to I back case, ruling the trial court’s phraseology Organic the old Delusion- unquestionably based on substantial evi- al That Syndrome. he felt that Mr. fact, testimony from dence. In none of the suffered from that I condition. lay called the second witnesses doctor, Whyte, asked the if Dr. it was evidentiary hearing supported phase of the opinion develops that once someone finding incompetence, and neither of they that condition whether or not could experts pres- testified that Jacobs was ever competent to stand trial. His trial. Dr. De- ently incompetent to stand response depended upon was it whether land testified that Jacobs’s mental status were, or not his I delusions believe he and that after two improved had *7 trial, during used the word broached the observation, the months of he came to they and if during were not broached “diagnosis conclusion that Jacobs’s hasn’t the trial that would not make him incom- has.” changed, insight but his On petent During to stand trial. the avowal “ability distinguish to basis of Jacobs’s had, to, that we which I refer he did will remaining symptoms are and what his testify that if ... those delusions were presenta- in terms of the what is realistic trial, opin- that in broached his tion,” Dr. Deland testified that it was his in- ion that Mr. Jacobs would become competent that was opinion Jacobs competent. speculative. That’s I don’t Appellant stand trial. be- going happen what’s at this know supporting lack moans the of evidence may very develop trial. It well that finding competent that he was to direct his way, something a mat- but that’s —that’s defense, opinion that at Dr. Deland testified to his approach ter we’ll need to v. Common- S.W.2d 700 8. Id. at 702. See also Mozee wealth, Ky., 769 S.W.2d 758-9 evidence”). (evaluating totality "the of the disorder would interfere with his competent that Jacobs was to do so and sional ability rationally participate his de- explained opinion: the basis for that Dr. testified that his find- fense. Deland pursuing logical He had a reason ings also considered his observations before, this as we talked about defense attorneys his at interaction with Jacobs’s with the and what he issue KCPC: say mount a mental would have to if thought good I it would idea Secondly, pre-
illness defense. he’s not attorneys in and to him his came talked senting anything, any explanations that directly I observe so could They’re are not of this world. not bla- spent my an hour in they did. We over tantly blatantly delusional or unrealistic. discuss- office with Mr. Clawvern Jacobs Thirdly, up he—the issue has come time issues, say I that things and must and time about whether he can again tense; but, all, through Mr. got pretty lawyers. I can cooperate with his maintained his demeanor. cooperated that with me say to that he that throughout the two months he weighed the credi- properly The trial court said, words, And that was there. he his reached conclu- bility of the witnesses and they drop lawyers drop if would supported by sions which were substantial —if case, mentally angle ill on his Thus, we find no error. evidence. with cooperate he said I would have to ruling at the con- After the court’s Plus, a—he has a realistic them. he has hearing, pretrial evidentiary of the clusion say I of—he knows assessment would guilt/inno- the conclusion of the but before facing. what he’s He knows there’s trial, phase cence of Jacobs’s Jacobs’s strong against case him. (4) sepa- asked the trial court four counsel express opinion Dr. Whyte did While competency to revisit the issue. rate times in- inevitably would become prior was made to final A similar motion competent during the course of alleged Each of the motions sentencing. before opinion he offered no as to the issue had further delusion- that Jacobs exhibited presently was the Court —whether Jacobs in the type al described behavior competent to stand trial. parte to ex affidavits counsel submitted evidentiary hear- trial court before the Dr. De- appeal, argues that
On Ja- ing. Two of these motions concerned predicated was on the infor- opinion land’s trial testimo- guilt/innocence phase cobs’s him at the time of his mation available to obviously conducted ny, which dis- and that the information evаluation The trial court presence. trial court’s court attor- closed to the trial to revisit the reasonable cause found no unreliable. neys opinion rendered issue, the motions. and denied each of again appeal, on in the trial court and Both Harston, trial courts have we held that Dr. De- attempt “spin” Jacobs’s counsel *8 reason- whether discretion to determine questions hypothetical land’s answers to competency is- exists to revisit able cause qualifica- him the defense as posed to sues: actual- opinion. Dr. Deland upon tions his salutatory provi- has the recently 8.06] [RCr if had
ly testified that Jacobs proceed- any stage if of the that at thinking and sion the delusional demonstrated a doubt as trial court has ques- suggested by hypothetical behavior obligation there is defense, competency, have to he would tions from the rule does not inquiry. This make an the basis for Jacobs’s statements assess duty to hold trial court a place upon the delu- whether Jacobs’s order to determine ISSUES of C. JURY SELECTION hearing hearing after the absence change in defen- appearance some of com- alleges that the trial court Jacobs com- ruling dant’s condition since the on jury selec- during error mitted reversible (1) Ordinarily application automatically excusing of senior petency. by: tion (2) failing to ex- panel; citizens from the RCr 8.06 would involve some behavior (3) jurors, failing to cause certain cuse for the defendant which part on the of adequate peremptory number of give an to the trial incompetency would indicate (4) failing sequester challenges, Necessarily the trial court has court. (5) denying a defense motion to jury; and and is no respect, discretion there jury panel from the solicit information right compe- to a continual succession of jury questionnaire. through pretrial tency hearings the absence of some that the trial argues Jacobs new factor. There was no abuse dis- automatically exclud- policy court had a part of the trial cretion here on the panel, citizen from the ing any senior denying testimony court in further on claim. The specifically record refutes this already upon.9 the issue ruled stated, “My al- trial court rule is Commonwealth,10 in Pate v. “[t]he As though automatically I exclude don’t judge ample opportunity had an to observe them, (65), sixty-five and they’re if over during competency the defendant they going ... I’m not dоn’t wish to serve hearing and the trial.”11 We find to make serve.” The record also them that the trial court acted within its discre- that: several senior citizens did reflects in denying tion the motions to revisit Ja- and on the not ask to be excused remained (2) the senior citizens who were competency. panel; cobs’s and gave excused valid reasons other than Finally, argues the tri The trial age requests. their for their al court’s failure to supplement the “offi acted within its discretion to deter- court videotapes cial” record with the panel mine members of the have whether him full proceedings right denied to a service, from valid reasons be excused and fair appeal by preventing this Court systematic no evidence of there was fully assessing determining from im- particular group exclusion of a which surrounding competency. issues rights.12 constitutional plicated Jacobs’s allegation completely We find this of error argues that the trial court erred without merit because the record before us by failing to strike for cause seven properly allows us to evaluate each of Ja chal- panel. members of the error, allegations cobs’s and Jacobs has (Jurors jurors lenged three of thеse any argument not articulated coherent as 77) #72, 58, solely on the basis prejudiced by to how he was inability mitigation to consider evi- their event, ruling. court’s the record avail- range penalties dence or the full agreed stipulation indicates that Jacobs case, in a and we believe the able in this stenographic record case disposition in this case renders these alle- appeal. gations alleges would the official record on of error moot. Jacobs Commonwealth, supra 9. Harston v. 7 at at 47. note Id. Commonwealth, supra 701. See also Mozee *9 note 8 at 759. McFerron, Ky., v. 12. See Commonwealth 680 (1984). S.W.2d 924 (1989). Ky., 46 10. 769 S.W.2d 444 (4) (Jurors 66, 4, 61, # this jurors
four
other
Jacobs asserts
adopt
bright-line
requiring
rule
41)
should
apply
presumption
could not
the
of
sequestered
capital
that the
in all
innocence,
by
pas-
would be affected
the
in
closing arguments
cases after
indictment and
sage of time between
they
until
guilt/innocence phase and
ren
fairly
or were
unable to
deter-
otherwise
verdict. Both the
penalty phase
der
guilt
mine Jacobs’s
or innocence. We have
Criminal
Rules of
Procedure16 and our
carefully reviewed the record
the voir
decisions to
prior decisions17 leave such
case,
dire examination in
and find
this
the discretion of the trial court. We find
jurors initially
although the
exhibited some
support
no
for Jacobs’s contention
customary and natural confusion and curi-
Kentucky
United States and
Constitutions
osity, each stated that he or she could require
sequestration
cases.
regard-
follow the trial court’s instructions
The trial court did not abuse its discretion
presump-
ing
proof
the burden of
and the
sequester
motion
denying Jacobs’s
passage
that the
tion of innocence and
jury.
time would not effect his or her decision.
trial court
argued
that the
Accordingly, the trial court did not abuse
erred when it denied his motion to submit
finding
juror qual-
when
each
its discretion
(8)
(52)
eight
fifty-two
question
page,
ified to serve.13
defense counsel
questionnaire
drafted
jury panel.
of the
We find
members
granted
the trial court
with
ruling
the trial court’s
accordance
(11) peremptory
eleven
chal
v.
admonition in Sanborn
Court’s
than
lenges—two
required
more
and well within his dis
Commonwealth18
argues that
RCr 9.40—Jacobs
scope
of voir dire
cretion to control
by denying his
court abused its discretion
examination.19
request
peremptory
for fifteen
chal
D. EVIDENTIARY ISSUES
lenges. As in Brewster v. Commonw
14
ealth,
“we believe the actions of
case-in-chief,
its
the Common-
During
altogether proper
trial
were
and cer
court
five
of the
photos
wealth introduced
tainly do not constitute an abuse of discre
Fleming
Frank
body
victim’s
which Det.
15
Hunsaker uti-
and Medical Examiner John
tion.”
Commonwealth,
proceedings.”
Bowling
Ky.,
v.
873
trial court from the onset of
13. See
175,
(1993) ("A
court has
S.W.2d
177
deciding whether to excuse a
discretion when
Id.);
juror
Thompson
534,
(1988) (criticiz-
v. Com
for cause.”
Ky.,
546
18.
754 S.W.2d
monwealth,
871,
(1993).
Ky.,
874
862 S.W.2d
procedure which
voir dire
trial court's
prospective jurors
study
for-
"allowed
(1978).
Ky.,
responses
presence
14.
445
and trial was
Com-
nature
tween indictment
to describe the condition and
lized
body
injuries
and the
inflicted. Ja-
fault. We find that
of the
monwealth’s
pic-
argues
jury.
cobs
thе introduction of these
properly
court
instructed
unduly
prejudicial.
tures was
While
allegation of error in the
first
Jacobs’s
photo-
has found the introduction of
jeop-
repeats the double
simply
trial court
graphs improper
photographs
where the
kidnapping
ardy argument concerning the
“mutilation,
de-
depict
decomposition and
we ad-
at his first
trial which
verdict
crime,”20
cay
directly
not
related to the
11(A).
in Part
dressed above
relatively non-graphic photographs
these
had considerable relevance to the Com-
allegation
second
of error
Jacobs’s
monwealth’s case. We find that the trial
testimony regarding his
concerns Jacobs’s
properly
probative
court
found that
was a
that
the victim this case
belief
photographs
nature of the
was not “sub-
a friend
prostitute.
testified that
Jacobs
un-
stantially outweighed by
danger
him
and directed
to an Alice
had described
prejudice.”21
due
Lloyd College
prostitute
student
explained
on
Tanya.
named
Jacobs
E.
ISSUES REGARDING GUILT/IN-
crimes,
alleged
the date of these
he drove
IN-
NOCENCE PHASE JURY
to the location described
his friend
STRUCTIONS
approached
until a
who fit
waited
woman
alleges
trial court’s
Jacobs
“Tanya’s” description.
testified
рrejudicially
instructions were
erroneous
asked the woman if she was “Tan
he
(8)
(1)
in eight
respects by:
allowing the
ya,”
replied yes,
that the woman
and that
guilty
capital kidnap-
to find
him in
agreed
she
to come with
his vehicle.
(2)
ping instead of
B kidnapping;
Class
testimony,
On the basis of this
failing to instruct on the “mistake of fact”
at
requested
trial counsel
tendered a
defense; (3) failing to include an instruc-
tempted
degree rape
first
instruction
degree
imprisonment
tion on first
unlawful
outlining
which included an element
kidnapping;
as a
lesser-included offense
501.070, mistake-of-fact defense: “C.
KRS
(4) failing to include an instruction on first
doing,
That in so
Clawvern Jacobs was not
degree manslaughter
aas
lesser-included
Judy
acting out of a mistaken belief
offense to murder and
failing to incor-
willing
Ann
sexual
Howard was
to have
porate an extreme emotional disturbance
orally
with him.” The
intercourse
defense
(5)
instruction;
element in the murder
fail-
requested
language
that similar
be added
clarify
to define reasonable doubt and
instruc
as
element
proof;
the Commonwealth’s burden of
argues
tion.
the trial court erred
inadequately defining
presumption
by failing
jury regarding
to instruct
innocence;
failing to include an instruc-
this defense.
prohibiting
jurors
discussing
tion
from
501.070(1) explains the limited cir-
punishment during
guilt/innocence
their
deliberations;
phase
to in-
cumstances which a mistake of fact con-
failing
jurors
to a crime:
lapse
struct the
that the time
be-
stitutes
defense
Commonwealth,
Commonwealth,
953,
(1995);
Ky.,
Epperson
20. Funk v.
842 S.W.2d
954
476,
(1992).
835,
(1990);
See
v. Com-
478-9
also Clark
Ky., 809 S.W.2d
843
Gall v.
monwealth,
793,
(1991).
Commonwealth,
97,
833 S.W.2d
794
Ky., 607 S.W.2d
106-7
989,
(1980),
S.Ct.
cert. denied
U.S.
Foley
403. See
v. Common
KRE
also
A or as to did not know what he or she was person’s ignorance mistake a matter of fact or law does not relieve sufficiency of the evidence in such liability him of criminal unless: question of law for the situations is case-by-case to determine on a courts (a) ignorance nega- Such or mistake basis.26 culpable tives the existence of the required mental for commis- state de- properly We believe the trial court offense; sion of an request nied for an instruction as (b) The statute under which he is 501.070, to the KRS mistake-of-fact de- there- charged or statute related that his argues fense. expressly provides ig- that such mistaken belief would constitute defense norance, or mistake constitutes a kidnapping degree to the and first sexual exemption; defense or charges abuse because the instructions re- (c) of a ignorance Such or mistake is jury to that “in so restrain- quired the find supports kind that a defense of ing Judy Ann Howard it was the Defen- justification in Pe- as defined accomplish dant’s intention to or advance nal Code.22 Attempted Rape the commission Commonwealth,23 Cheser v. Degree, bodily injury First to inflict or to authority from Appeals reviewed other Howard,” totality Judy terrorize Ann jurisdictions explained presented, of the evidence as well as requires outlining 501.070 an instruction testimony counsel’s characterization of this the mistake-of-fact defense if: the evi “delusional,” find that as lead us to infer jury dence at trial would allow a failing trial court did not err instruct that the actions resulted from defendant’s on such a “mistake.” patently unreasonable a reasonable and bona fide mistake no error We likewise find
fact;24 and one of the circumstances failure to instruct on first the trial court’s .070(l)(a)-(c) are described KRS 501 degree imprisonment unlawful and first present typically, cases where the mis — degree manslaughter as lesser-included of the mental “negates take the existence of and murder. Lesser- fenses to statutorily prescribed ... which is state “appropriate are included offenses of an offense.”25 Ches the commissiоn is such that when the state of the evidence requisite evidentiary er discussed the foun juror might reasonable doubt entertain dation for such an instruction: guilt greater as to defendant’s presen- A defense is so raised offense, beyond reasonable yet believe tation of evidence from which a guilty is doubt that the defendant reasonably could infer that the intent see no evidence lesser offense.”27 We excused, element of the crime is inferences, and, in which would allow such justify that could a reasonable doubt of raising the the absence of evidence guilt the defendant’s as defendant Commonwealth, 501.070(1). Billings 843 27. 22. KRS 890, (1992). Parker v. 894 See also S.W.2d Ky.App., 23. 904 S.W.2d 241-3 Commonwealth, Ky., 211- S.W.2d (1997) ("Lesser-included instruc- offense 24. Id. at 242. proper consider a are if the could tions find greater and also doubt as to the offense Id. guilt beyond doubt on the lesser a reasonable offense.” 26. Id. retrial, who shall de- disturbance, “it the trial court extreme emotional issue of the master of properly court omitted as if the defendant is termine *12 in murder instruction.28 ship”32 by element the the pilot and his own defense ability to holding hearing a “as to Jacobs’ allegations of error last four Jacobs’s intelligently understand voluntarily and trial instructions concerning the court’s ... [insanity] defense such waive without merit. completely are trial court as to finding the upon maintains that instructions defense, de- ability waive such Jacobs’ to the doubt and must define reasonable As ex- be bound.”33 proof, burden of this Court fense counsel shall prosecution’s 11(B) otherwise,29 above, held and the the trial court consistently has in Part plained Supreme agrees.30 United States competent to both stand trial found Jacobs recently approved an instruc- This Court defense. The trial court and to direct his presump- to the trial court’s tion identical bound ruled that counsel were Jacobs’s Finally, we tion of innocence instruction.31 present “not to... the defendant’s decision which re- principle find no constitutional illness,” includ- any evidence of mental in- quires give prophylactic trial courts to avowal, either the ing by during guilt/inno- prohibiting punishment structions discus- penalty phases of the trial. cence incorrectly explaining sion or the reason original filed an action Jacobs’s counsel lapse time indictment and for the between seeking a writ which would this Court trial. appro- an order the trial court “to fashion F. RIGHT JACOBS’S TO CONTROL priate procedure per- method or which will
HIS DEFENSE offers of petitioner’s mit counsel to submit on issue of Mr. proof avowals the I, we addressed ar- and/or Jacobs’s impact upon mental illness and its Jacobs’ gument right present that he had a a conduct, behavior, decision-making, his his defense on the merits which his counsel in the consequence and other matters by presenting insanity denied defense objection to “order upon upcoming proceedings” over his and directed and/or Nebraska, 1, 5, Commonwealth, Ky., v. 511 U.S. 114 28. See Wellman v. 694 30. See Victor 696, (1985). 1239, 583, (1994): v. S.W.2d Commonwealth, 697 See also Gall 127 L.Ed.2d 590 S.Ct. ("An supra note 21 at 108 beyond a reasonable doubt standard require on instruction murder need not process, requirement a due but the acting jury to find that defendant was not prohibits courts Constitution neither trial under the influence of extreme emotional requires defining reasonable doubt nor from something disturbance unless there is Indeed, a course. them to do so as matter of was, suggest thereby that af- evidence to he long on the so as the court instructs fording in that room for reasonable doubt guilt necessity defendant’s respect.” doubt, proved beyond a the Con- reasonable require any particu- not stitution does 9.56(2) ("The 29. See RCr instructions should advising lar form of words be used attempt to define the term ‘reasonablе not ” government’s proof. jury of the burden of Callahan, Id.); doubt.’ Commonwealth v. Added) (Emphasis Id. 391, (1984); S.W.2d Gall v. 675 392-3 Commonwealth, supra note 21 at 110 Hager, Ky., 41 31. See Commonwealth ("[Tjhere decisions have been no authoritative (2001). See also Id. at 847. S.W.3d suggest 'rea- ] since either [Whorton specif- doubt’ must be defined or that sonable I, supra note 1 at 418. proof.” ic reference be made to the burden Commonwealth, Id.); Ky., 570 Whorton v. 33. Id. S.W.2d respondent judge permit relating trial coun- troduce evidence mental health which was “not inconsistent present petitioner’s sel to evidence of men- illness, pursue decision to petitioner tal in order that exercise with” Jacobs’s mer- guilt/innocence phase defense on the right present defense to its. We find no error court’s charges, support jury instructions on less- First, ruling. although our order in Ja- offenses, guilty support er included original action allowed the defense cobs’s mentally finding, present ill evi- but testimony to introduce such avowal support statutory dence in and non- guilt/innocence phase, the de- may statutory mitigating factors which *13 attempt fense made no to do so. Fur- impose penalty convince a to not the ther, disingenuous Appellant’s we find of death[.]” proposed оf this evidence characterization order, unpublished an de- as “not inconsistent with” the chosen granted portion of the relief re to fense. Jacobs’s trial counsel wanted quested, but allowed defense counsel to testimony prove that Ja- introduce during introduce mental health evidence testimony regarding the events cobs’s guilt/innocence phase only the avowal: a sin- leading to his victim’s death —while evi- The trial court’s refusal to allow cere belief—was delusional. dence avowal is an incorrect exten- this evidence sought counsel to introduce Jacobs, supra, against and the sion of the purpose technically for a distinct from that rea- weight clear of the law. For defense, pursuit insanity allowing of an son, grant petition we the for a writ of counsel to introduce evidence defense prohibition following as to the issues. that Jacobs “didn’t know what suggesting hereby The trial court directed certainly talking he was about” would by avowal appellant present, allow “seriously compromise[d] [Jacobs’s] have only, during illness evidence mental defense, well as chosen alternative as guilt phase the trial .... Further- reputational ... inter- threaten[ed] more, penalty there is a the event defense of ests.” The fact that Jacobs’s may present direct tes- phase, petitioner proposed and his trial counsel’s denial timony concerning mitigating factors could both be mental health defense Additionally, pursuant to KRS 582.025. on broadly construed as a “defense to allow avowal the trial court is directed merits” does not harmonize inconsis- testimony as to mental illness issues prop- the trial court tencies. We believe not included the aforemen- expressly could choose to erly found that Jacobs tioned statute. the merits without intro- against defend of his mental illness. ducing that the trial court’s rul- evidence argues competent to The trial court found Jacobs erroneously holdings our interpreted and “master of his own defense incorrectly to direct act as allowed Jacobs ship.” By seeking to intro- any pilot to introduce his trial counsel not mental illness duce evidence of Jacobs’s illness evidence mental wishes, the well-in- attempts against their client’s phase. guilt/innocence at- improperly counsel tentioned defense distinguish right a defendant’s to waive judgment for Ja- tempted replace their questions from other insanity defense ruling properly trial court’s trial cobs’s. The strategy argues that his of trial at the helm. placed to in- should have been allowed counsel Commonwealth, Ky., 777 S.W.2d 34. Dean cir- aggravating following remaining consider see no merit Jacobs’s
We may find from you which error. cumstances phase guilt/innocence allegations (1) doubt to beyond a reasonable court evidence the trial we find: Specifically, be true: its discretion when acted well within motion to denied Jacobs’s counsel’s Judy Ann murdered The defendant
withdraw; prosecutori- the instances of the time Clawvern and that at Howard within the alleged al misconduct fell he Judy Ann Howard Jacobs murdered questioning and ar- permissible bounds of commission of kid- engaged gument; judge’s remote con- napping. Lloyd College did not re- nection to Alice form, indicated that On its verdict recusal; and no combination quire his circumstance be- aggravating it found the warrants reversal errors copied verba- yond a reasonable doubt convictions. No. 3. language tim of Instruction Assem- find that the General Because we III. IMPROPER AGGRAVATING *14 kidnapping as bly has not established CIRCUMSTANCE to the crime of aggravating circumstance only At first the. murder, sentence of we reverse Jacobs’s alleged by circumstance the aggravating and remand the matter to death Commonwealth, in submitted the mur- sentencing non-capital on court for instructions, jury by court’s and found the der. Judy that “at the time he killed Ann was Jacobs, Howard, defendant, the Clawvern Gregg Georgia,36 In v. the United States rape of in engaging commission Supreme legislative examined Court remand, degree.”35 Upon the first the Georgia’s penalty amendments to death gave Commonwealth notice that it would it had declared years statutes four after allege aggravating another circumstance— procedures uncon Georgia’s penalty death that Jacobs murdered Howard Georgia.37 in The stitutional Furman kidnapping. commission of a that the new Gregg court determined passed constitu penalty procedures death jury’s guilt/innocence phase After the emphasized that tional muster guilty verdict found not of which jury’s “channel” a discretion statutes attempted degree first but the less- rape, it penalty by requiring impose the death degree er-included offense first sexual factor: statutory aggravating find a abuse, sentencing the trial court’s jury to con- phase instructions allowed Furman centered concern of basic cir- only possible aggravating sider one being defendants who were on those in determining appropriate cumstance and ar- capriciously condemned to death murder conviction: penalty for Jacobs’s procedures before bitrarily. Under the case, sentencing au- the Court NO. 3 AGGRAVATING INSTRUCTION give not directed to atten- thorities were CIRCUMSTANCES circumstances of tion to the nature or or to the character the defendant the crime committed fixing In a sentence for un- Murder, the defendant. Left you shall or record of for the offense of 2726, I, 33 L.Ed.2d supra 37. 408 U.S. 92 S.Ct. 35. See Jacobs note 1 at 420. (1972). 2909, 49 L.Ed.2d 36. 428 U.S. 96 S.Ct. guided, juries imposed probation parole, the death sen- or or the sentence way in a tence could be called imprisonment for life without benefit Georgia sentencing freakish. The new probation parole until the defen- contrast, procedures, by jury’s focus the twenty- dant a minimum has served particularized attention on nature of sentence, years five of his shall not particularized the crime and the charac- imposed.39 teristics of the individual defendant. eight circum aggravating The list permitted While the to consider 532.025(2)(a) stances contained at KRS circum- aggravating mitigating aggravating not circum does include stances, identify it must find and at least stance found this case. The Common statutory aggravating one factor before Harris opinion wealth cites this Court’s In may impose penalty of death. v. Commonwealth40 in support of its con way jury’s is chan- discretion penalty tention that the trial court’s death jury wantonly No longer neled. can Harris, proper. instructions were we freakishly the death impose sen- juries beyond held that find a reason must tence; always it is circumscribed aggravating able doubt an circumstance legislative guidelines.38 imposing “authorized law” before Kentucky’s statutory penalty death sen- penalty, juries death but need not tencing procedures likewise control necessarily aggravating find one of the by requiring juries identify discretion circumstances enumerated authorized aggravating circumstances be- 532.025(2)(a).41 The Harris identi returning fore of death: sentence *15 kidnapping fied a circumstance within the jury, if The its verdict be a recommen- crime aggravates statute itself which the death, imprisonment dation of or for life capital kidnapping of and affirmed Harris’s probation parole, without benefit of or or possibility pa sentence of life without imprisonment for life without benefit of (25) twenty-five years capital role for for prоbation parole or until the defendant kidnapping: twenty-five has served a minimum of Here, “aggravating the circumstance (25) sentence, years desig- of his shall by provided authorized law” is otherwise writing, signed by nate in the foreman of by penalty kidnapping the section of the aggravating jury, the circumstance statute, 509.040(2), which makes beyond or which it found circumstances kidnapping capital a offense when the cases, nonjury a reasonable doubt. victim is not released alive. designation. judge shall make such criti (1) have levied some observers
In all cases unless at least one
of the
behind the Harris
reasoning
at the
cism
statutory
circumstances
aggravating
viability
not
holding,42we need
address
of this sec-
enumerated
subsection
of the Harris
in this case
found,
holding
because
penalty,
tion
the death
or
is so
Harris holds
only that a defendant
imprisonment
possibility
for life without
supra
Robert G. Lawson and William H. For
Gregg Georgia,
38.
v.
note 36 at 428 U.S.
42. See
2940,
tune,
19-7(c)(2)
§
Kentucky
at
Law
&
at
concurring reasons, I with the concur For these opinion. majority LAMBERT, Justice, Concurring. Chief 532.025(3) as follows: part KRS states
In at least one all cases unless circumstances
statutory aggravating sec-
enumerated in subsection of this found, penalty, the death or
tion is so benefit of
imprisonment life without
probation parole, or the sentence THOMAS, Appellant, Willie imprisonment for life without benefit probation parole until defendant twenty-five a minimum of has served SERVICE; Donna UNITED PARCEL sentence, not be years of his shall Judge; Terry, Administrative Law H. imposed. Board, Compensation and Workers’ 532.025(2)(a)(l-7), statutory In Appellees. aggravating circumstances referred No. 2000-SC-1038-WC. are set forth. A careful ex- hereinabove aggravating cir- amination of the seven Kentucky. Supreme Court of the crime of cumstances fails to reveal Oct. aggravating an factor when kidnapping as underlying crime is murder. While may kidnapping prosecut- the crime of offense, may as
ed as a not serve murder. aggravator the crime of penal- verdict rendered its made
ty phase appellant’s following finding: Ann Judy
The defendant murdered
Howard and that at the time Clawvern Judy
Jacobs murdered Ann Howard he kid- engaged
was the commission of
napping. only circumstance aggravating
Thus the kidnapping
found not an available circum-
kidnapping is
stance. Legislature that the omit-
It is a wonder statutory the act of
ted from the scheme circum- aggravating as an to the crime of murder.
stance an omis- explanation for such
conceivable