Quarels v. Commonwealth

failing court erred cause the trial respon- criminal eused be absolved of I insanity, not be at all sibility suffering upon from would if found be instruct long-term use of the majority mental illness caused surprised see (sometimes to as of intoxicants referred conviction Appellant’s Murder reverse insanity”). See Am.Jur.2d “settled Appellant’s of the merits we considered Law, (2003); § C.J.S. Criminal claim. self-protection Law, §§ I be- 112-113 Criminal KELLER, C.J., J., LAMBERT, join Tate, swpra, preclude lieve that does not this dissent. bar, at finding the case such therefore, con- Appellant’s would reverse jury on

viction for failure to instruct insanity.

the defense of of errone-

Additionally, absence an self-protection instruc-

ous-belief-qualified mind my

tion additional doubts raises reliability jury’s Murder

about the of the QUARELS, Appellant, Tina M. in- having requested the Despite verdict. was not briefed struction the issue I Accordingly, for the have some Court. KENTUCKY, OF COMMONWEALTH it, e.g., questions about unresolved whether Appellee. case, Appellant in the of would context this whom aggressor” have been an “initial for No. 2002-SC-0289-MR. justification self-protection would Kentucky. of Supreme Court unavailable, 503.060(3), wheth- KRS and/or er fears addressed Appellant’s themselves Aug. sufficiently his in a imminent belief threat from the KRS victim. See

503.050(1). ques- In order to resolve those

tions to determine whether in- give

court’s failure to the requested error, require

struction was a more we inquiry cursory than the one that

thorough oral case. argument

occurred at this

Thus, rendering opinion instead allega-

simply belatedly-raised ignores error, delay rendi-

tion Court should opinion parties

tion and direct both peri- simultaneously,

to file within short (20) time, e.g. twenty days, supple-

od of nor more than fifteen

mental briefs addressing tardily-pre-

pages Appellant’s then, supple- And after

sented claim. filed,

mental are the Court should briefs Although merits claim.

address the supplemental briefs

the content these my

would not alter bottom-line vote convictions be- Appellant’s

reverse both only address Accordingly, we will

trial. retrial. likely to recur on issues those TESTIFY DENIAL RIGHT TO OF made re Prior and became outbursts peated emotional disruptive. After defense hysterical that attor the court counsel advised completely had ney/client communications down, Appel court found broken present to continue lant was unable competency evaluation and ordered state Kentucky Psychiatric Cen Corrеctional mistrial, (KCPC). ter The result was begin did not Appellant’s second trial eventually nearly year until later. KCPC Appellant that was reported to the court trial. competent stand all began, parties the second trial When Appellant’s competency was agreed that longer Appellant no an continued issue. throughout the trial and have outbursts Donna Public Advo- Boyce, L. Assistant forcibly from the courtroom removed was cate, Frankfort, Appellant. Counsel for Appellant one occasion. stated on at least General, Stumbo, Attorney D. Gregory (and at times the court numerous before Jr., Attorney Long, Robert Assistant Wm. jury), in front of the least one time Frankfort, General, Appellee. Counsel for testify on her own behalf. At the desire to case, defense counsel of the defense’s clоse Opinion of the Court Justice still Appellant court that informed the STUMBO. advice, testify, against counsel’s wished to hearing to re- impris- parte an ex Appellant requested was sentenced to life made a Defense counsel possibility parole onment without solve the matter. a deter- for the trial court to make aggravated after mur- motion being convicted arson, appreciate der, Appellant of mination that did not first-degree and two counts stand, consequences taking attempt criminal to commit murder. On prevent her from that the court Appellant gathered November asked children, 2, 5, years doing Defense counsel advised ages her three and 6 so. this, such Ja- old, her, that in a situation as put with doused court them the bed Commonwealth, Ky., on 870 S.W.2d lighter room in fluid and set the bed cobs (1994), thе trial court is to holds that escaped except 2-year-old fire. All Appellant Ju’monie, make determination whether died of smoke inhalation. who intelligently directing her own alleges ap- capable Appellant numerous issues testify by making the decision peal, Ap- but because Court believes ques- The trial court right to on her own behalf. pellant erroneously denied behalf, extensively and strenu- Ap- Appellant tioned testify on her we reverse own she Appellant that ously suggested a new pellant’s conviction and remand for change her mind. continually 107 S.W.3d reasserted her desire to testify, stating In Crawley, adopted we that she would not be able to live with reasoning Third Circuit’s in United States herself unless However, (3rd she told the truth. v. Pennycooke, Cir.1995), 65 F.3d 9 ultimately court found that it that a duty trial court has into inquire would extremely Appel- disagreement detrimental to between a defendant and lant’s defense if she were to in front defense counsel regarding the defendant’s jury based on her prior outbursts if it has reason to believe inability to control her emotions. Af- rights that a defendant’s have wrong- been hearing ter ruling, the court’s ly suppressed. In Crawley, Id. we held stated she wished fire her attor- the trial court’s failure to conduct neys and represent herself so that she such inquiry was reversible error. Id. could take the stand. Appellant asked the We role, did ‍​​‌‌‌​​​​​‌​‌‌​‌​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‍not reach the issue what if court how it deny could her her constitu- any, the trial court play should in deter- rights. tional mining if testifying on one’s own behalf defense, would be detrimental to the nor Jacobs, In this Court held that if a trial did consequences we discuss the questions court has about whether a defen- trial court’s absolute refusal allow the “mentally dant is sufficient” to waive the defendant having to take the stand after insanity though he or she defense—even found that the compe- defendant was not has been found competent to stand trial— tent to direct her own defense. the trial court must determine the defen- capable dant is A voluntarily jurisdictions and intelli- number federal have gently waiving the held that a right testify defense. Id. at 418. If defendant’s to generally the defendant is trial incapable by found cannot be waiving waived de- defense, such defense is fense counsel as a matter counsel entitled to of trial strategy proceed defense, against despite with the a the de- defendant’s wishes. See United Joelson, (9th Cir.1993) protests, fendant’s if his profession- or her States 7 F.3d 174 judgment permit. (upholding al and the evidence Id. conviction after trial court en- The urges couraged apply Commonwealth us to defendant to follow attorney’s the reasoning Jacobs, by advice not testifying first articulated in pre- defendant Commonwealth, sumably by Dean v. Ky., objecting 777 assented not fur- (1989) (overruled ther); Curtis, on grounds, other United States v. 142 F.2d (7th (nonetheless Cir.1984) Commonwealth, Caudill v. Ky., 120 upholding (2003)), S.W.3d 635 conviction present put to situation where counsel to refused where a it defendant asserts the defendant on stand because was right clear testify perjured or defendant would on his her own behalf. have him- We self). so, decline to do holding and find that the

of Jacobs and Dean should be limited to a Likewise, the Sixth Circuit has held that forego defendant’s decision to assert or a the decision of testify whether or particular defense. ultimately lies with the defendant. United Webber, States 208 F.3d 550-551 Our case is replete law with references (6th Cir.2000). right testify to a defendant’s at trial being personal right testify and constitutional right personal to the only defendant, to be knowingly intelligently may only be relinquished by defendant, waived. See Watkins and the defendant’s relin- (2003); 105 S.W.3d Crawley quishment of right must be knowing it error for the that was Appeals held defense counsel’s intentional. The right to deny defendant whether trial court role is to advise defendant such a deci- should take how unwise testify or not the defendant “no matter defendant, ulti- stand, ultimately but it is for the be. proven have may sion” mately, to decide. un- the trial court’s noted that The court to testi- the defendant willingness allow omitted). (Citations “A defendant Id. fact that from the fy might have stemmed reject testify can who wants to disruptive had been Ortega’s conduct contrary insist- to the counsel’s advice While Id. at 261. throughout the trial. communicating with the ing testifying, on court in sympathy for the acknowledging court, counsel.” Id. at discharging trial or “[njone- situation, stated, the court such theless, carefully consider should courts reasoning of agree with the We his or her to exercise request defendant’s to testi that the decision Sixth Circuit rights, particularly constitutional impor fy own defense is of such in one’s “A defendant testify.” Id. contentious decision must be tance that the ultimate sympathetic rights no than a has fewer “And al defendant himself. left to the Id. one.” he conduct his own defense though detriment, ultimately his his choice own refusal that the court’s We believe respect out of ‘that for must be honored error, to allow which is the lifeblood individual from the record though it is clear even ” California, 422 law.’ Farеtta v. U.S. merely trial court was case that the 2525, 2541, 45 L.Ed.2d S.Ct. from herself. protect Appellant trying to Allen, (1975) (quoting Illinois v. 397 U.S. want- repeatedly stated that she 1057, 1064, 350-351, 90 S.Ct. just De- kill her. prosecutors ed J., (Brennan, concur L.Ed.2d Appel- the court fense counsel advised ring)). to use attempt out in an acting lant was his A defendant’s suicide, and to commit penalty the death Fifth, in grounded is own behalf any testimony given might have that also Sixth, to the and Fourteenth Amendments insanity de- Appellant’s on had effect Ar- States Rock v. United Constitution. Appel- found that The trial court fense. kansas, 51-52, 2704, 44, 107 S.Ct. 483 U.S. from a testify lant’s to stemmed desire Webber, (1987); 2708-2709, 97 L.Ed.2d 37 why she did what explain to cathartic need Likewise, con- 208 550. ora1state F.3d at did, in her a desire to aid rather than she all criminal provides “[i]n stitution ultimately court defense. own right prosecutions the accused has Appellant’s it best found that would be Ky. counsel.” be heard himself and of the stand. kept if she off interest were § Kentucky 11. The General As- Const. 421.225, which sembly KRS has enacted the trial it was believe We any penal criminal or that “[i]n states testify duty allow court’s defendant, his own re- on prosecution belief all of the collective regardless testify his own quest, shall be allowed being that such a decision involved behalf, shall be but his failure to do so For “[e]ven exercised. unintelligently any upon presump- commented create personal to a defense more fundamental against tion him.” ... is right self-representation than the own ver present his 258, right an accused’s 261 843 F.2d Ortega O’Leary, In A defen- in his (7th Cir.1988), own words. Court sion events the Seventh Circuit trial). opportunity dant’s to conduct his own de- perjured testimony at A defen- by calling fense incomplete is if witnesses testimоny dant’s legitimately is also sub- may he not present as a himself witness.” ject applicable procedural state and evi- Rock, 52, U.S. at 2704 at S.Ct. Rock, dentiary rules. at n. U.S. 2709, 97 L.Ed.2d 37. 107 S.Ct. 2704. It for is these reasons that we Although we find that apply reasoning choose not to of Ja court in preventing Appellant erred from cobs and the right testify Dean to on testifying, automatic Appel reversal of one’s own behalf. Jacobs Dean advo lant’s if conviction is not mandated cate trial court intervention when defense subject Court finds that such an error is counsel disagree accused on the the harmless analysis espoused error assertion of a defense. While acknowl Chapman California, 386 U.S. edging right the accused’s to make critical (overruled 824,17 S.Ct. L.Ed.2d 705 defense, regarding decisions his own both Abrahamson, part by Breсht v. 507 U.S. ultimately courts leave the decision of 619, 113 S.Ct. 123 L.Ed.2d 353 whether or not to assert a with (1993)). The Seventh Circuit held in Orte Jacobs, 418; trial court. 870 S.W.2d at ga that it although is for a error trial court Dean, 777 at general As a prohibit testifying defendant from matter it though, is advisable that a trial behalf, his or her own such error is not court dispensing should refrain from ad beyond reversible found to be harmless regarding vice a defendant’s decision to a reasonable at doubt. 843 F.2d 261. The at testify as “that intrusion have in Ortega court held that the constitutional the unintended of swaying effect the de effect analyzed of the error should way fendant one or the Penny other.”1 light harmless error standard set cooke, 11; Joelson, F.3d see also Chapman. forth in F.3d at 178. The distinct difference be tween the right nature of the assert “The fact that an error involves a particular defense right and the preclude constitutional does not at trial mandate that we treat each differ analysis.” harmless error Talbott v. Com ently. monwealth, Ky., 968 S.W.2d 83-84 Supreme The United States say

We do not mean to that the applied has analysis harmless error to a defendant’s without limit. See, variety wide of constitutional errors. cases, right ‘may, “The in appropriate bow Fulminante, e.g., 279, Arizona v. 499 to U.S. legitimate accommodate other interests ” (1991) 1246, 111 Rock, in ‍​​‌‌‌​​​​​‌​‌‌​‌​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‍S.Ct. 113 302 the criminal L.Ed.2d process.’ trial 483 (erroneous 55, admission of con involuntary U.S. at (quoting 107 S.Ct. 2704 Cham fession); v. 284, 295, Mississippi, bers v. Clemons 494 U.S. Mississippi 410 U.S. 93 738, 1441, (1990) 1038, 1046, (1973)). S.Ct. 110 S.Ct. 35 L.Ed.2d 108 L.Ed.2d 725 297 Diomande, (unconstitutionally See sentencing- also United States v. 40 overbroad (6th Cir.2002). 120, See, trial); Appx. phase jury capital Fed. in 123 instructions Whiteside, Texas, 249, e.g., 157, Nix v. 475 U.S. Satterwhite v. 486 106 U.S. 108 (1986) (1988) (errone 988, 1792,100 (holding S.Ct. 89 L.Ed.2d 123 S.Ct. 284 L.Ed.2d right present that an no sentencing accusеd has to ous admission of at evidence say testify, Crawley This not a trial court should over the decision as held in inquire apparent disagreement Ky, into an v. 107 S.W.3d 197 (2003). between defense counsel and a defendant

81 944, (1984); 168, phase trial 122 capital right of in violation of 104 S.Ct. 79 L.Ed.2d counsel); 683, counsel, Kentucky, Crane v. deprivation right of 476 U.S. the the (er- 2142, 335, v. Wainwright, 372 U.S. 90 83 Gideon 106 S.Ct. L.Ed.2d 636 792, (1963); testimony exclusion of 799 roneous defendant’s 9 L.Ed.2d S.Ct. trial right impartial his con- of the to an surrounding circumstances of denial Arsdall, Ohio, 510, Tumey v. 47 Delaware Van fession); 475 273 v. judge, U.S. 673, 1431, 437, 106 674 L.Ed. 749 U.S. S.Ct. 89 L.Ed.2d 71 S.Ct. (1986) (erroneous of wit- restriction biased Sixth Circuit has found a cross-examination in of Sixth ness violation right a denial of defendant’s court’s Whorton, 441

Amendment); Kentucky v. testify harmless instances. error certain 786, 2088, U.S. 99 S.Ct. 60 L.Ed.2d 640 Diomande, upheld In court United (1979) (failure jury pre- to instruct on the ruling District Court’s that refused States innocence). of sumption portions a to allow certain defendant’s testimony negate This Court —offered intent — previously has not ad “ prof- denial of a stating ‘[f]or defendant’s dressed whether harmless error stan testimony constitute reversible fered when a trial court applied dard should be testimony error, a must establish rea- impermissibly right denies a defendant light of the guilt sonable doubt about great on her A own behalf. ’ case.” at Appx. record 40 Fed. authority weight type has held this Reifsteck, United States v. (quoting 123 error,” error to be “trial which Cir.1988)). 701, (6th See F.2d 705 841 “quantitatively context of assessed Curtis, v. also 360 Solomon Appx. 21 Fed. Fulminante, presented,” other evidence Cir.2001) (6th (holding that district 307-308, 1264, 499 U.S. 111 S.Ct. at in overturning Michigan erred court thus susceptible analys harmless error Appeals’ ruling that denial See, Ylst, e.g., Martinez v. is.2 951 F.2d was harmless defendant’s (9th Cir.1991); Ortega O’Leary, v. 1153 v. Skeens error); rather than structural (7th Cir.1988); Wright v. 843 F.2d 258 Haskins, 4 Fed. Appx. 236 (6th Cir.2001) Estelle, (5th Peo Cir.1977); F.2d 549 971 (upholding application Ohio court’s state Johnson, ple v. 62 Cal.App.4th 72 error denial the harmless doctrine to the Silva, (1998); State v. Cal.Rptr.2d 805 78 testify). of a defendant’s (over Hawai’i 890 (App.1995) P.2d 702 grounds, Tachibana ruled on other harm- Kentucky applied case law has State, 79 Hawai’i 900 1293 analysis P.2d admis- the erroneous less error Solomon, (1995)); People of Edwards Mich.App. sion of confession violation Arizona, Momon v. (1996); 477,101 N.W.2d 451 U.S. S.Ct. State, (Tenn.1999). (1981), Talbott v. Common- con S.W.3d In L.Ed.2d 378 wealth, trast, (1998), a “structural a trial error” affects the en give tire framework the trial and therefore failure to an instruction to the court’s Fulmi analysis. jury defies harmless error that no should be adverse inference nante, 309, 499 at simply U.S. 111 S.Ct. at 1265. from the fact that a defen- drawn Common- trial, of in Examples testify such structural errors did not at dant McIntosh, (1983), self-repre of wealth right clude: denial the 646 S.W.2d 43 sentation, McKaskle Wiggins, the the 465 U.S. and also when trial court allowed 1710, (1993), required apply 2. Federal circuit 123 to federal courts are S.Ct. L.Ed.2d 353 cases, espoused Chapman error stan- harmless standard in habeas rather than the 619, Abrahamson, applicable ‍​​‌‌‌​​​​​‌​‌‌​‌​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‍appeal. on Id. Brecht 507 U.S. dard direct Commonwealth to on underlying comment the defen- fairness of the trial rather than dant’s constitutional on privilege against virtually self- inevitable of im- presence Fulminante, incrimination, at Blake v. material error.” 499 U.S. 111 S.Ct. 1246 at 113 L.Ed.2d Ky., 646 S.W.2d 718 Arsdall, (quoting Delaware v. Van agree great of weight We with the 673, 681, 1431, 1436, U.S. S.Ct. authority cited above that of de denial (1986)). Accordingly, L.Ed.2d 674 right testify fendant’s on his or her own Appellant court’s failure to allow to take behalf is a “trial-type” constitutional error Appellant the stand denied and federal that is amenable to the harmless error state cоnstitutional on her analysis However, espoused in Chapman. own behalf and we do not find such error case, in the say instant we cannot that the beyond to have been harmless a reason- Appellant failure to allow was light In able doubt. the fact that this beyond harmless error a reasonable doubt. being case is for a we remanded new murder, Appellant capital was indicted for only briefly will address the remainder arson, first-degree and two counts crim on Appellant’s arguments appeal that will attempt inal to commit Appellant murder. likely occur retrial. requested jury and received instructions ill, on insanity guilty mentally and but but RIGHT TO SPEAK AT FINAL ultimately was convicted of each offense SENTENCING HEARING and parole. sentenced to life without We Appellant claims she was also de say cannot Appellant’s tеstimony speak sentencing nied the at her bearing would any not have had on the hearing. The Commonwealth contends jury’s decision to decline to find her insane Appellant given opportunity was or guilty mentally but ill. In such a situa to speak, but chose not to address the tion, we must be able to declare belief already court until after her sentence had that the failure address the adjourned. imposed hearing been and the jury with her own words did not contribute 11.02(1) RCr states that court shall “[t]he to her convictions—and this we are unable ... afford the defendant and defen Chapman, to do. at 386 U.S. 87 S.Ct. opportunity dant’s counsel an to make a at 829. We deem the error this case to statement or statements in the defendant’s be particularly egregious Appel because any behalf and to information presеnt absolutely completely lant was denied mitigation punishment.” Without deter (in any opportunity speak jury to the mining Appel whether the failure to allow cluding at the sentencing phase), even af sentencing hearing lant to speak at the adamantly permis ter she had requested error, would itself be we reversible jury’s sion to do so at least once merely caution the court on retrial to allow presence. hearing Appellant Instead of speak sentencing hear describe her own words what she had (if ing any) requests timely in a she so done, jury permitted to see her States, manner. See Green v. United being effectively “gagged” by the trial U.S. 5 L.Ed.2d 670 S.Ct. forcibly court from drug the court (holding that to afford a de failure room. To hold the error this instance to opportunity speak fendant promote be harmless policy would not Federal sentencing court was a violation of 32(a), interest pur harmless error doctrine Rule Criminal Procedure con serve, ports “public respect process, yet stating to which is for stituted a denial of due harmless). by criminal be process focusing on the that such could error 504.100(B) that after a However, further mandates speak at the sen to performed has been hearing, just competency like the to testi evaluation tencing filed, hold a trial, The “the court shall fy report without limit. court is at is not discretion, not the testimony in whether or hearing in its limit the to determine may stand trial.” competent to duration and content. Id. defendant is held that previously This has TO HOLD COMPETENCY FAILURE mandatory cannot be is hearing HEARING Thompson v. by the defendant. waived Commonwealth, (2001); The trial court declared a mistrial few Ky., 56 S.W.3d trial days Appellant’s into first after sever- Ky., 996 S.W.2d Mills v. hysterical prompted al that de- outbursts report to the court that

fense counsel necessary specifical- it We do not find com- attorney-client communications had not an actual ly whether or determine pletely The trial court or- broken down. case, in this as we are “hearing” was held confined at dered that be KCPC on other reversing Appellant’s conviction began. trial for treatment until her second remand, the trial grounds. Although upon The court later received a certification evi- to hold formal court is well advised were Appellant’s from counsel that there competen- dentiary hearing Appellant’s on grounds Appel- no reasonable to doubt making on the record and cy going competence to lаnt’s current stand trial of its findings support of fact specific psy- aby based on an evaluation KCPC if the subsequent order conclusion its The an or- chologist. trial court entered grounds “has reasonable believe court discharging Appellant der from KCPC stand tri- incompetent is defendant request) returning Appellant its (per 504.100(1). Thompson, 56 KRS See al.” jail to await trial. Defense counsel also at 410. trial court should agreed open Ap- court trial that before professional all evalu- enter into the record pellant’s competency longer no an is- Ap- Appellant’s competency.3 as to ations again Appellant’s sue. outbursts started trial pellant not be retried until the shall midway through trial. her to stand trial. competent court finds Appellant argues that reversible error argues on that the appeal also occurred because the trial court failed to have reevaluated her trial court should hearing competency pursu- hold a formal midway competency through trial due 504.100(1) ant to KRS 504.100. KRS state, which was deteriorating mental her if the court “has reasonable states reemergence of by the clearly reflected is incom- grounds believe the defendant disruptive RCr 8.06 states: behavior. ap- court shall petent stand during pro- or arraignment If psychologist psy- upon one point least grounds examine, report ceedings there are reasonable on chiatrist to treat and lacks the that the defendant mental condition.” believe the defendant’s KRS finding competen- might could then make note that in all cases a full-blown court 3. We stipulations. We reiter- hearing testimony, cy upon evidentiary based those with witness etc., though, defense counsel insists may always necessary. ate that even if In certain issue, instances, competency is not an judicial economy will dictate that grounds reasonable hearing nonetheless has should follow. For court an "abbreviated” incompetent, it is agree stipulate example, believe the defendant counsel evidence, a formal hear- incumbent that the court hold such as a mental health certain ing expert’s finding competency, and the trial issue. 84

capacity to appreciate Commonwealth, Ky., 34, nature and (2002). consequences of the proceedings against Nonetheless, we find no merit to her, him or or participate rationally in Appellant’s claim. This recog- Court has defense, or his all proceedings shall many nized times that there is no authori- be postponed until the incapaci- issue of ty requiring aggravators must be de- ty is by determined as provided KRS scribed the indictment. Wheeler v. 504.100. Commonwealth, 173, Ky., 121 S.W.3d (2003). See also Garland Common- When for competency asked re wealth, (2003). 529, 127 S.W.3d by counsel, evaluation Likewise, Appellant’s argument that Jones court stated that on based her observa States, 227, v. United 526 U.S. 119 S.Ct. tions Appellant, finding and on the (1999), 143 L.Ed.2d 311 mandates KCPC, by competency Appel she believed that aggravating circumstances must be purposefully lant to be disrupting the trial charged the indictment was discussed capable and found that Appellant was by this Court Wheeler. There we stated participating rationally in her own defense. by citation “[t]he Wheeler Jones v. Again, necessarily without determining Statеs, United 526 U.S. 119 S.Ct. error, whether the trial court committed 1215,143 (1999), L.Ed.2d which relates merely we note that a court trial has broad prosecutions, to federal is not contradicto- discretion in this instance and error will Jones, ry to our supra, RCr 6.10. holds not be found a reviewing unless court finds that the indictment should furnish the ac- an abuse of that discretion. Harston cused with a description charge of the Ky., 638 S.W.2d which will enable him to make his de- Wheeler, fense.” 121 S.W.3d at 185. Indeed, required a trial court is merely provision Jones held that a of a postpone RCr 8.06 to proceedings carjacking federal statute that resulted in grounds there are reasonable to believe harsher penalties bodily inju- when serious longer capable defendant is par no or ry death occurred constituted an addi- ticipating rationally her own defense. offense, tional element merely However, rule not place “[t]his does upon aggravating circumstances, thus duty the trial court a hearing hold after should have been described in the indict- hearing in the appearance absence some contrary ment. This is not our reason- of change in the defendant’s condition here. ing ruling competency.” since the Id. Appellant’s indictment dated SUFFICIENCY OF INDICTMENT 3, 1998, December stated that she was murder, ap being charged for the first time on capital with of fense, peal alleges punishable by years that the indictment in her case years; to 50 charge life; any ag “failed the existence of parole; or life without or life with gravating factor that parole would enhance the out for years; or death. The penalty for range murder include the charged indictment also Appellant with ar aggravated of life pa sentence without degree son the first at and criminal argue role.” did not tempt before the February commit murder. On requisite court that she lacked Commonwealth filed Notice of notice of the Circumstances, Commonwealth’s intent to Aggravating sup which aggravated seek an plied sentence and cannot formal notice the Common complain heard to now. Furnish v. prosecute wealth intended to the indict-

85 (murder The Commonwealth while have been excluded. a offense capital ment as arson) Ap- to the was relevant argues photo that pur- engaged in the commission of the of mind at the time of 532.025(1) pellant’s state 532.025. KRS suant to KRS hit Ju’monie by suggesting that she crime give only requires the Commonwealth fire, thus starting to the prior on the head аny to aggravators prior notice of written Appellant’s intent was tending prove Wheeler, 121 at 185. trial. S.W.3d an general rule is that kill the child. The with complied indictment here KRS photograph admissible should otherwise 6.10. An indictment is 532.025 and RCr be- merely from not be excluded evidence the of the if it informs accused sufficient Holland v. Com- gruesome. it is cause with which he she has specific offense monwealth, Ky., 703 S.W.2d 879 misleading. and if it is not charged been (1985). Further, the of whether decision Commonwealth, Ky., Wylie Id. See also v. than probative as more to admit evidence (1977). Here, Appellant 556 S.W.2d only for an abuse of is prejudicial reviewed have had—and will for retrial —sufficient English, Commonwealth discretion. being charged. is notice of with what she We can- Ky., 993 its court abused say that the trial TAPED PHONE CONVERSATIONS in instance. discretion this Appellant argues that allowing the court erred in Commonwealth OF HEAD-BANGING EVIDENCE from taped phone four calls to introduce was argues that ‍​​‌‌‌​​​​​‌​‌‌​‌​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‍she Appellant daughter, jail Appellant between and her establishing complete from prevented argues that was Appellant Khoree. she the trial court refused defense when pro unfairly prejudiced by last-minute previous medical the introduction of allow did not tapes, duction of the as had tending to records show Ju’monie enough adequately all have time review Appellant history banging his head. phone entirety. Appellant’s calls in their in sought admit this evidence rebuttal moot, argument point on this is now as she corresponding and autopsy photo sufficient time to will have review testimony of testimony, medical necessary. Appellant retrial tapes for seen daughter that she hаd Appellant’s only further contends that admission four on the head hit Ju’monie tapes referring portions certain setting the fire. The prior times were derogatory Ju’monie manner as irrelevant. court excluded the evidence only further taken out context and evidence the exclusion this We believe prejudice jury. served before ability counter Appellant’s limited Likewise, defense will now have an attempted to knock that she implication tapes in their opportunity to review fire. unconscious before Ju’monie pertaining make entirety and motions since it proper Such rebuttal evidence any it to have portions relevant wishes fact explain attempt was offered or excluded from evidence. admitted into attempted to party prove. had the adversе Ky. Ky.,

See Keene AUTOPSY PHOTOGRAPH (1948) (overruled 210 S.W.2d Commonwealth, Ky., an au alleges that part, Colbert (1957)). tri Although the Ju’monie with his topsy photograph of 306 S.W.2d making back, bruising offered show al court has broad discretion scalp peeled issues, its evidentiary scalp, in on such highly decisions on the inside his abuse of respect was an flammatory prejudicial should decision wealth, English, discretion. S.W.2d at 945. 85 S.W.3d Accordingly, the trial Commonwealth, court should admit (quoting Stopher Ky., v. Appellant’s rebuttal if (2001)). evidence the issue 57 S.W.3d The same can occurs retrial. Appellant’s be said of claim that she did only intend to burn her to kill home— LESSER-INCLUDED OFFENSES herself and her warranting children —thus Appellant also contends that the an instruction of third-degree arson. “An trial court erroneously refused to instruct instruction on a lesser included is offense jury the on the lesser-included offenses оf required only if, considering totality the of second-degree manslaughter, evidence, second-de jury might have a rea- gree endangerment, wanton and third-de guilt sonable doubt as to the defendant’s gree arson. Appellant argues that there offense, the greater yet beyond and believe that her respect evidence intent with guilty a reasonable doubt that he is of the killing her children had changed after Neal, lesser offense.” S.W.3d fire, setting therefore, and she de Here, jury we do not a believe that could served on second-degree instructions man have had reasonable Appellant doubt that slaughter second-degree and wanton en kill by intended to her children starting Likewise, dangerment. Appellant argues home, yet fire in her did not intend that she was entitled to third-degree damage causе to the structure itself. arson instruction because there was no Therefore, retrial, if. upon the evidence proof that she intended to cause damage here, were the same as Appellant would building. not be entitled to instructions on second- degree manslaughter, second-degree wan- It is true that trial court is “[a] endangerment, third-degree ton and arson. required every theory to instruct on reasonably case deducible from the evi Commonwealth, dence.” v. Manning Ky., DOUBLE JEOPARDY (2000). However, 23 S.W.3d “that Appellant’s argument that her conviction duty require does not an instruction on a first-degree precludes arson the use theory with evidentiary no foundation aggravator an arson with the murder ” Commonwealth, .... Neal v. Ky., 95 is charge without merit. This has (2003). S.W.3d At it was already very argument addressed this uncontroverted that intentional Wilson Ky., 836 S.W.2d

ly hеr lighter set house on fire pouring (1992) (overruled 872, 891 on other bed, fluid on and around the for the sole Roark, grounds, Ky., St. Clair 10 S.W.3d purpose of killing herself and her children. (1999)), where we held: The Appellant’s evidence showed that old require K.R.S. 532.025 does not that the er children escaped Appellant’s without punished defendant be for the help same of- guided and even Appellant herself to twice. The only requires fense statute collapsed. back door before she Even aggravating later circumstances be change did her mind children, only used to determine whether killing about “a person is presumed logical proba crime murder should receive the intend the conduct, penalty. death If the consequences aggravating ble cir- [her] person’s proved, cannot state of mind cumstance be then the inferred preceding penalty from actions following imposed. of death cannot be 532.030(2). charged offense.” Lawson v. Common- K.R.S. by avowal and there- ny preserved was not aggravating circum- because

Simply fore, speculate as to unable to underlying we are duplicates one stance testimony. KRE defen- not mean that the nature of does exact offenses Ferrell, 103(a)(2); for the being punished twice dant Commonwealth offenses underlying same offense. toas factors to be considered only

were for murder punishment whether CONCLUSION was not sub- be death. Wilson should above, hereby we stated For reasons multiple or jected jeopardy double to in the of conviction judgment reverse the for the same offense. punishments remand this Jefferson Circuit an that arson is assertion Appellant’s consistent with for proceedings сase to pursuant of murder included offense opinion. States,

Blockburger v. United 284 U.S. (1932), must L.Ed. 306 52 S.Ct. C.J.; LAMBERT, COOPER Commonwealth, also fail. See Eldred JOHNSTONE, JJ., concur. (overruled Ky., 906 S.W.2d KELLER, J., by separate concurs Barroso, Ky., 122 part, Commonwealth v. opinion. (2003)) (holding that no double to jeopardy violation occurred due defen- WINTERSHEIMER, J., by dissents arson). conviction of murder and dant’s J., GRAVES, separate opinion, with ' There was no error. joining that dissent. PENALTY TESTIMONY PHASE by Concurring opinion Justice

Lastly, Appellant error be claims KELLER. of children Appellant’s cause the father I separately because I concur but write testify penalty in the was allowed penalty agree that evidence at do not as to effect he felt the death phase Ap- only if relevant phase is admissible Ap have on their children. penalty would The 1998 amendment pellant’s character. testimony that this consti pellant claims applica- makes the statute to KRS 532.055 mitigating compa evidence tuted relevant cases, including capital felony all ble impact statement. rable to victim’s Accordingly, defendant “[t]he cases.1 sup- Ohio, mitigation evidence 98 introduce “Lockett U.S. er- Appellant claims (1978), leniency provides port [.]”2 S.Ct. 57 L.Ed.2d of children was of her must ror the father nonstatutory mitigating evidence because about the effect testify not allowed only if it is relevant be admitted children. have on the character, penalty would any record or death defendant’s majority’s opinion agree I with the the offense.” Smith circumstances of Appel- Commonwealth, testimony is not relevant 451- such Ky., 734 S.W.2d clearly character, “evidence it is testimony lant’s but Appellant’s ad- leniency,” and therefore support not have been boyfriend presumably would But, character, as inasmuch and missible. Appellant’s relevant by testimony the excluded therefore, by failed to offer excluded properly exclusion, avowal, concerning issue its testimo- also note that the trial court. We added). 532.055(2)(b) (emphasis 140 S.W.3d KRS 1. St. Clair v. 510, 562. majority opinion, as noted was not her testify desire to on her own behalf. appropriately preserved for this judge Court’s Defense counsel informed the trial However, if again testify review.3 that she Appellant is wished after defense retrial, against case was closed and capital convicted the advice of offense counsel. she should Pursuant to Jacobs v. Common- present allowed such tes- wealth, Ky., (1994), 870 S.W.2d timony in support leniency in the penal- judge hearing conducted extensive ty phase the trial. to determine capable whether she was Dissenting intelligently opinion by directing her own Justice making a decision WINTERSHEIMER. on her own Ultimately, behalf. judge the trial found I must respectfully dissent from ma- it very that would be detrimental to her jority opinion it because was not error for defense case if she were to based on judge deny Quarels previous inability her outbursts and to con- testify on her own behalf. herAt second Quarels trol her emotions. then stated trial, Quarels by jury was convicted a and repre- she wished to fire attorney her and parole sentenced life without for aggra- sent herself so that she could take the murder, twenty years vated for first-de- stand. gree arson and ten for years each of two Jacobs, I find that the rationale of su- criminal attempts to murder. рra, which was first in articulated Dean v. She had been indicted for events occur- Commonwealth, Ky., 777 S.W.2d 900 in ring when she doused the bed in (1989), be controlling in this situation. which she and her lay three children with Dean, In explained this Court “... that lighter ignited fluid it. Quarels and and competent even a defendant found is survived, two the children but her two- trial, may stand not capable he be of mak- year old in resulting child died the fire. an ing intelligent decision about his de- trial, Quarels Prior to her first made re- Jacobs, 418, quoting fense.” at S.W.2d peated emotional outbursts and became Dean, supra. say This Court went on to disruptive hysterical. and Her defense although competent that “... found counsel advised court that the attor- stand the trial court shall a hold ney/client relationship had bro- completely hearing as to ability voluntarily judge ken down and the trial determined intelligently understand and de- waive Quarels that was unable to continue in her pertinent fense” which in that was case. present state and a competency ordered Accordingly, requested counsel a defense evaluation. The result was a mistrial and hearing Quar- to determine whether or not eventually Kentucky Psy- Correctional capable els of intelligently exercising was chiatric Center determined that she was despite her to direct her own defense competent to stand trial. contrary. advice counsel De- obviously counsel that fense was concerned At the second trial which occurred al- if the took defendant the stand testi- later, Quarels year most a continued to fied, waiving she would effect be throughout have outbursts the trial and insanity present- defense counsеl had been forcibly was from removed the courtroom ‍​​‌‌‌​​​​​‌​‌‌​‌​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‍ing beginning since the of this trial. on at least occasion. one She stated judge numerous occasions Clearly, judge before the trial the trial had serious res- at jury least one time front of the ervations as to whether not the defen- Ferrell, Commonwealth majority opin- language of The noble danger appreciate dant could and/or without to mere words ion reduced could be to her damage that occasioned public should doubt meaning. Serious Obviously, if she took the stand. a underlying fairness of to the arise as act in the judge attempt of the defen- interests trial where the best defendant, engaged interest of best fiat. Even ignored by appellate dant are lengthy discussion with her before refus- Sixth Circuit Court the United States testify. judge The trial ing tо allow her the denial of Appeals has determined defendant’s desire concluded can be a defendant that it from the belief did arise Unit- in certain instances. harmless error defense, only would aid her but rather Diomande, Appx. 40 Fed. States ed explain cathartic need serve Cir.2002) (6th quoting United States charges The seriousness of the crimes. Cir.1988). (6th F.2d 701 Reifsteck, aside. against Quarels cannot brushed concerning legal Academic discussions In a new trial these circum- granting and structural of harmless error doctrines stances, apparent it is that the defendant or value to are little interest error again possibility face the of the death could a death potentially faces defendant who can be no doubt from the sentence. There sentence. judge in this case that the trial record trying рrotect the defendant simply of the trial I affirm decision would Quarels from her own foolish behavior. respects. in all judge jury verdict and the repeatedly that she wanted the had stated J., joins just GRAVES, dissenting kill coun-

prosecutors her. Defense judge sel had told the trial that the defen- opinion. acting attempt

dant out an to use the and that penalty

death commit suicide testimony might on the have effect

insanity defense. realize that disappointing

It choosing

majority this case in of Jacobs apply reasoning could well be Gayle FAUST, Appellant, W. to a criminal providing distinct disservice Both in- defendant. Jacobs Dean Kentucky, Tour insanity COMMONWEALTH volved the assertion of an defense. Cabinet, Depart Development ism majority desperate attempts Parks, al., Appellees. et ment case-by-case fashion a distinction based on unconvincing. treatment is No. 2002-SC-0545-DG. of a question There is no Supreme Kentucky. zealously at trial is defendant 26, 2004. Aug. judi- guarded both defendants and However, major- ciary. admitted as

ity is not with- opinion, Surely, qualifications.

out restrictions or for the best interests of

consideration as recognized could be such an

defendant

exception.

Case Details

Case Name: Quarels v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Aug 26, 2004

Citation: 142 S.W.3d 73

Docket Number: 2002-SC-0289-MR

Court Abbreviation: Ky.