*1 SANBORN, Appellant, Lee Parramore
COMMONWEALTH
Kentucky, Appellee.
No. 84-SC-566-MR.
Supreme Kentucky. Court of
June 1988. *4 II, Namkin, Aprile, Rod-
J. Vincent Julie McDaniel, Advocates, ney Asst. Public Frankfort, appellant. for Gen., Armstrong, Atty. L. David David Smith, Harned, Attys. A. Michael Asst. Gen., Frankfort, Hamilton, Sp. R. Bruce Gen., Atty. LaGrange, appellee. Asst. OPINION OF THE COURT and convicted of appellant The was tried murder, first-degree rape, first- intentional first-degree kidnap- degree sodomy, and ping. jury imposed sentence of murder, a sentence to life death for and imprisonment for the other three each of offenses, has entered and the trial court judgment accordingly.1 Common- particularly proved evidence vi- wealth’s murder, shocking premeditated cious and assign- inundating Appellant sixty-one 1. flow to drown out the The Brief for raises This threatens (the pages length ments "Appendix” legitimate arguments, plenty. of error and of which there are included). "Reply and Brief' not penalty justified. driveway, at the end of her with- and death road Nevertheless, system awakening in our an accused has out her son. Her car was guarantees to a certain minimum fair trial morning, the next surrounded found there mandated, process, constitutionally due large of a attack. A vicious drawing lynching, the line between law and pool from of blood was found several feet regardless apply revolting cir- wrapped car. The victim’s curlers princi- cumstances of the offense. These ground hair were scattered around on the ples mandate that we reverse for trial error glasses lay Her and inside car. on willfully engaged prosecutor, and ground outside the car. Inside the car inexcusably judge. tolerated the trial evidence, including gory there was bits pieces bloody keys flesh. Her Opinion
We will undertake to dis- ignition, partially position. in a An individually only cuss those errors which jammed umbrella had been inside the driv- cumulatively require that the verdict door, open. aside, er’s which could not be forced judgment be set and such other assignments of error as could become police pro- officials The Sheriff and other points It of contention at a new trial. neighbor- ceeded forthwith to canvass the unduly prolong Opinion, already hood, home. which included length, burdensome in to discuss claims was at home and invited the which are not error or errors which are They officers in. noted blood under instance, unlikely to recur. For the case pants on his cuticles and blood smeared was tried less than three and a half months door, shoes, legs. setting His near the occurrence, despite from its the date of the stained, fresh were blood and he had a complexity. The defense claims this fore- *5 large scratch on his face. There was a physical closed efforts to examine passenger floor and amount of blood on the investigate potential and defenses relat- to the seat of his car. He was arrested on (or ed to mental disease or defect even hours later basis of this evidence. Several trial); that, further, competency to stand found, nude, partially body the victim’s was change a because the trial court refused miles from her home. a few venue, precipitately in trial was held a multiple had died of stab The victim community small where the hideous details times, nine wounds. She had been stabbed were still vivid the minds the venire- diagnosed post-mor- three of which were set men. Since the convictions must be a number of tem. Her hands showed grounds, go into aside on other we need not likely would have occurred wounds which these claims.2 herself. There attempting to defend may proof The Commonwealth’s be sum- body physical evidence found on the was The victim lived with marized as follows. occurred, indicating in- sexual contact her and three children on a farm husband vaginal penetration and oral sod- cluding County. appellant was a Henry expert testimony this evi- omy. The about employee former on this farm. After leav- appellant the to these acts. dence tied appellant was hos- employment his family. tile and vindictive towards Laboratory testing that blood established hands, knife, appellant’s his found on the evening On the of October shoes, throughout his pants, tee shirt and 11-year old son. home with her victim was car, belonged Fibers all to victim. daughter had younger and Her husband his tee appellant’s from the seat covers and Her older hospitalized in Louisville. been blouse, found on the victim’s shirt were Sometime daughter away at school. was fingernails, inside her underneath her and induced to evening late that the victim was turn, In from the victim’s car down to mouth. fibers hurriedly dress and drive her say, represents cases. prepare the usual in such post-trial to to 2. The time consumed record, briefing, equal- transcript justice justice delayed Precipitate trial and the and are and appeal delay years before the reprehensible. caused a four ly ready argument. Sad was to be heard on oral jacket and policy blouse were found inside the aware of the court’s order such to appellant’s car. trial, days disclosure ten or twelve before prosecutor erased tapes. stated on evidence, In physical addition record, upon produce when called there testimony was considerable witness tapes: crime; connecting appellant tes- “They anticipation were erased timony days that a few before crime rulings.... get Court’s I Iwhat want appellant talking “revenge”; about them, notes, off my make and erase appellant’s testimony that car was ob- them.” driveway served in victim’s both in the afternoon before the crime that same prosecutor right claims he has night; (of testimony questionable ad- destroy tapes. specious, such The claim is missibility) telephone call from about unforgivable. and his tactics appellant to the victim. tape-recorded Three of those with inter- After his arrest the was inter- by views testified as witnesses called police by viewed at the courthouse officer 7.26(1) RCr Commonwealth. states: Attorney. the Commonwealth At that “Before a witness called the Common- gave tape-recorded time he statement testifies, attorney wealth for the which he admitted he drove his car to the produce commonwealth shall state- leading driveway to the victim’s home be- ment of form the witness of a occurred, fore the crimes denied recording possession document its he was the one who the charged committed subject which relates to matter of the offenses. The substance of the witness’s ... is or statement effect there purports a substantially to be verbatim car, two others in his two brothers whom statement made him. statement Such identify, refused to it and that was these shall be made available for examination two people other who “hurt” the victim. and use the defendant.” tape-recorded appel- statement We need point not decide at what before lant going claimed the reason for his prosecutor witnesses testified the driveway victim’s simply provide compelled produce tapes. should be
transportation for one of these individuals point The critical is the made victim, to talk to the then forced *6 using such notes as would assist him car, the victim into and he when real- persons prosecu- these as witnesses for the ized they hurting were victim tion, destroyed tapes, and then so that stopped his car ordered them out. The not these verbatim statements were avail- appellant proof offered no to substantiate any point. able for the at This defense this alibi. proof There was no of the exist- proportions misconduct of constitutional ence brothers, of two and there was 83, Brady Maryland, under 373 U.S. 83 trial investigation at that an 215, S.Ct. 10 L.Ed.2d 219 proved they did not exist. progeny. Brady
its rules that where the I. PREJUDICIAL ERRORS prosecutor “withholds evidence on demand which, available, an if accused made prosecutorial three There are errors might] exculpate would tend to him or [or so require substantial each would penalty,” reduce the such is a violation judgment reversed. be Id., process. 87-88, due 373 83 U.S. at 1) intentionally erased S.Ct. at 1197. tape-recorded statements four wit- nesses, three whom trial testified tapes These verbatim as such against appellant. the “best evidence” of the contents of the sought pretrial by (Lawson, defense dis- Kentucky witnesses’ statements covery (2d Handbook, motion to obtain the statements of Evidence Law 7.15 ed. § prospective 1984)), summary prose this motion by witnesses. While and a made pending, prosecutor, destroyed who was cutor does not before he them
540 by reporter court while listen- Prejudice presumed where the official suffice. prosecutor destroys evidence. Hilliard tape played as it was to the (9th Spalding, courtroom, stating F.2d 1446-47 Cir. quotes appellant 719 v. Pol 1983). United States got point, As stated “I have drunk.” at this shouldn’t lock, (D.Mass.1976): F.Supp. counsel, “the Com- As stated defense passes beyond the line of action “Such interpret- Attorney’s office has monwealth imperfection and falls human tolerable manner, and tape in a certain ed ... unfair- of fundamental into the realm absolutely input no has had the Defendant ness.” they interpreta- into how would view Pollock, ac- In the court held such jurors] tape, have tion of the [the However, in this called for dismissal. tion is, printed transcript, which before them a witnesses, case, testimony of these fact, Attorney’s ver- the Commonwealth important, was not essential to the while agree with tape.” of the We can but sion request- case. The relief Commonwealth’s further statement defense counsel’s was not dismissal or exclu- ed and denied “certainly sway them procedure sion, simply permitting instruction interpretation proper jurors] as to the [the inference for jury to draw a favorable tape.” of the of the from the destruction the defendant problems remedy for the The trial court’s give Reversal with directions evidence. places in the created appropriate is the requested instruction which were inaudi- tape-recorded statement Maniccia, N.W.2d State v. remedy. understand, simply made ble or difficult (Iowa App.1984), in similar circum- court’s solution situation worse. The stances, missing evi- the court held that a yellow marker highlight with a offset sufficient to dence instruction was Attorney’s version Commonwealth We so hold prosecutor’s misconduct. prejudicial remarks. It was questionable here. or unintelli- enhance the inaudible error to arrest After his statement portions of the defendant’s gible police to a gave tape-recorded statement version, written with the Commonwealth’s Attorney. officer and the Commonwealth being the error was exacerbated recording, the introducing tape Prior to yellow marker. highlighted with a permitted, and was prosecutor moved for ver his written objection, over to furnish of a trial the discretion It is within this statement transcription sion portions whether because judge to decide listening jury, to assist indistinct, tape are inaudible in approximately tape. There were excluded. United tape must entire disagreed with stances where the defense Robinson, 707 F.2d (6th States v. interpre the Commonwealth’s transcribed however, not, Cir.1983). within It is tape. The Commonwealth tation provide of the court discretion portions *7 Attorney freely conceded that inaudi of the prosecutor’s the version He to understand. tape were difficult the The trial court’s portions. or indistinct ble furnishing his the reason for gave this as transcript permit use of the the decision use, tape jurors’ for the version re requiring a of discretion was an abuse the rea it should have been when instead appellant’s conviction. versal use. refusing such son for transcript admitted was fact Exhibit, and as a Commonwealth’s page four of the Com- example, on For to use in its the available for transcript appel- was Attorney’s monwealth deliberations, error compounded the even have “I shouldn’t quoted saying as lant is transcript, made further. wrong.” The trial been to, information Maniccia, required infer that the are not at 259: supra, N.W.2d
3. State be, recording if tape on the contained available, there existed you from the evidence that "If find favorable to to the state and adverse recording intention- tape that the state ... and you may, defendant." recording, but destroyed tape ally Court, argument in applies extrajudicial At oral before our is the statement to a responding question, the Common- police prove officer offered “not to fact Attorney passed tape wealth to us off rather for” the explain ... but basis as the But transcript.” “court’s the record by taken of- subsequently police action from testimony contains sworn the Com- Commonwealth, Ky., ficer. Manz v. Attorney’s secretary monwealth establish- prem- The fundamental transcript prepared that this was underlying testimony ise the use of such is her, court, not of and at direction admissibility “investigative of hear- not the Attorney. the Commonwealth That same say” act” doctrine: but “verbal transcript testimony of contains sworn evidence; hearsay is not it is not “This Attorney explaining the Commonwealth purpose proving admitted for the of this, why he did as follows: said, pur- of truth what was but for times, is hear “Sanborn difficult to at pose describing the relevant details because of the of his head and movement Preston v. Common- place.” took what away machine, body you from the but wealth, Ky., attention, you pay can hear him if close relevancy Its does not turn on whether it, replay you and sometimes have to but prove the information asserted tends to pick up. can it disprove an issue in but on controversy, that, Q. you 49. Because of did cause offi- police whether action taken transcript di- your be made under response cer in to the information was supervision rection that conversa- controversy. furnished is an issue tion? persons pos- from in the information other A. I did.” police session of a officer at time he Attorney The Commonwealth was in vio- an arrest is issue makes irrelevant to lation of his duties as officer of this an guilt or a crimi- innocence the trial of represented Court when he to us oral may nal case. Such become information argument a transcript pre- that this was if legality relevant a criminal case pared by the trial court. is It the arrest at issue. was relevant which, alone, standing The third error Manz, supra, for and because reason requires reversal is the extensive use legality police roadblock at is- police from three different offi- sue. repeating cers what told to them should, all, once Prosecutors persons whom during interviewed “investigative hearsay” abandon the term course investigation, of their offered under misnomer, oxymoron. The rule is as a an guise “investigative so-called hear- may testify in- police that a officer about say” exception hearsay to the rule. him only furnished to where it formation Perhaps help it would to state force explain the action that taken tends to fully hearsay at the outset less is no police of this by the officer as a result hearsay police supplies because a officer taking information of that action is short, separate evidence. there is no an Such is issue case. information rule, such, investigative is admissible, prove told then not the facts hearsay exception hearsay to the rule. officer, only why police prove police officer then acted as he did. It is Kentucky Evi- As stated Lawson’s Handbook, only 1984), about dence Law (2d admissible there an issue 8.00 ed. § if police officer’s distinguishing action. the “verbal act” doctrine extrajudicial hearsay, state- from “[a]n case, objec- Turning present over *8 proper nonhearsay ment has a use when tion: (not substance) part its its utterance is a 1) Trooper Taylor Bright Police was the issues the case.” Emphasis origi- permitted in erroneously testify about example
nal. One of this which Lawson provides response in a tele explaining he received variety in “a wide formation phone investigate call he miscellaneous situations” where this rule made potential suspect. question whereabouts another objection of whether was “[T]he He suspect testified that he confirmed the made only significant at the trial level is was at work at the critical time. may reasonably where it be inferred that appellant intentionally object failed to for 2) witness, Powell, key Ray A Sheriff reasons of trial tactics.” Ice v. Com permitted was to summarize information monwealth, Ky., 667 S.W.2d from forty fifty interviews with some or persons Campbellsburg by area testi- fying to his conclusion based in- on these deciding Often whether the failure to terviews. He testified the two brothers object was from inadvertence or was a trial appellant whom the blamed for presents imponderable problem. tactic crimes did not exist. The substance of Here, collectively the errors taken mandate Powell’s was he did not obtain reversal, eliminating quibble the need to people information from the whom he questions preservation. over individual alibi; verifying appellant’s interviewed 1) laundry We turn first to a mis- list of indicating that he had found no information engaged by prosecutor conduct appellant “ran with” or had two close jury against appellant. inflame the friends as he claimed. complaints regard in this fall into three Perkins, Detective Robert who also categories: (1) parade family members alibi, investigated was primarily sym- utilized as witnesses to elicit investiga- asked whether as a result of his victim; pathy (2) comment, for the unfair anyone tion he was led to believe was with nature, demeaning and abusive calculat- appellant night question, on the prejudice ed to and his coun- “No, responded, person which he no at all (3) utilizing eyes jury; sel in the was seen with Pat Sanborn.” Sheriff, witness, key psy- the local as a intimidating keeping chologically by force In examples each of these three we are charge. in his dealing “investigative indeed hear- say.” police In each instance the officer recognized Our Court has that a testifying as to information furnished background re certain amount of by persons to him whom interviewed. garding the is relevant to under victim problem is the information inad- crime; standing nature of the vic hearsay. missible because it was It was McQueen mere tims are not “statistics.” stated, relevant for the truth of what was Ky., 669 any nonhearsay explain not for use to (1984). Nevertheless, improper it is police actions of the officers. actions guilt its decision on base police taken officers not at innocence, appropriate punish or on the issue. ment, Zant, on who is the victim. Moore (11th Cir.1984),Kravitch, 722 F.2d II. CUMULATIVE ERRORS J., concurring. Benge v. Common We next discuss errors which would not wealth, Ky. error, qualify individually as reversible but holding applied precept, we cumulatively that effect. have improperly introduced evi instances, to, although objected In some “to the deceased was a member dence show taken sufficient- separately the error is not church, drink the time he did not ly require serious to reversal. In other killed, regularly attended church preserved instances the error is not sang meeting.” We stated: objection. sufficient just great a crime to kill the “It is 532.075(2) kill hardened criminal as it is to KRS mandates that death most upright illustrious citizen the penalty Supreme cases the shall re- most Court land; good or bad “any by way errors enumerated hence evidence view proper one slain has no appeal,” just preserved and not those morals of the contemporaneous objection. place a trial for murder.” Id. *9 recently, And more in Ice v. from Common- result the introduction of evi- wealth, Ky., dence. ...” at 688. 675-77 S.W.2d introducing we condemned evidence where In Ky., Nickell v. purpose engender sym- the obvious was “to 145, 147(1978), S.W.2d stated we that testi pathy for family.” the victim and her wife, mony from the deceased’s who was murder, not a witness to the “as to when principle punish- that conviction and she saw her last husband alive and to the contingent ment are upon not who was the ages and number of her children ... was concept victim is a difficult explain to solely designed immaterial and play public present climate of victim’s upon jury.” the emotions of the So too advocacy. Nevertheless, it is fundamental was much of the of the victim’s to our system justice American can- husband, her three children and her moth ignored not be in individual cases. er, jury in introduced before the this case. case, present In the husband, the victim’s operandi The Commonwealth’s modus son, mother, daughters, ages and two nine- present case exceeded reasonable seventeen, teen and each in turn were inflammatory limitation. nature of proof called. The included victim that the outweighed much of this evidence far its “a Henry County,” was former Miss “a relatively evidentiary remote prove value to beautiful, attractive, woman,” energetic “a permitted facts at issue. The use of such mother, wife, homemaker, and a and a evidence was an abuse of discretion. helped farm,” run the articles of the vic- penalty phase closing argument, In the clothing tim’s introduced bit from bit prosecutor argument renewed occasionally these different witnesses ac- impact consider the of this crime on the companied by crying and sniffling, and a family victim’s it reciting followed photograph of the victim decorating wed- poem.” response “Barbara’s favorite ding anniversary or cake. All this was question presented prosecutor to the impassioned followed closing argu- argument oral of this case before the Su- calling ment devastating attention to the Court, preme prosecutor acknowledged impact family, on the objection while was familiar with and liked grounds was overruled on the that it was nothing in poem, there was the record “fair comment” on evidence. Certain- to indicate the deceased even aware of ly, it was comment the evidence that its existence. This kind of misconduct is, had been question introduced. The designated deny must be as calculated to it “fair”? What are limita- reasonable right the accused’s to a fair trial and due introducing tions on this type of evidence? process guaranteed by of law as the Fifth Fourteenth Amendments the United lies in The answer that in rule Constitution, States and Section Eleven of each instance court must balance Kentucky our Constitution. probative (its impor value of tending prove tance terms of fact in appel The record sustains the issue) (un against inflammatory its complaint prosecutor nature lant’s re prejudice opposing party), due and peatedly improper made comments of a de limit or meaning exclude such evidence nature about where defense counsel and inflammatory clearly outweighs Throughout proceed effect the accused. ings prosecutor probative Empire Corpora engaged in a value. Metal con Wohlwender, sidered effort to ridicule Ky., tion v. and intimidate de (1969), quoted in fense counsel. Morrison v. Common wealth, (1983): Ky., 661 S.W.2d presence Much this was outside
“[A]ny evidentiary remote value that jury. While prejudicial, less this would details of personal the decedent’s life no improper intimidating. make it less may outweighed by have had far example, point suppression For at one in a certainty prejudice plaintiff’s objected hearing defense counsel and the jurors case responded by threatening minds de- *10 544 prosecutor questioned an ex he “ram it The
fense counsel that down point pert called the defense about your At another dur- witness ‘damn’throat.” fee, stating: you “And that’s what ing discovery hearing, defense counsel his a Henry County to to see want the court to direct attempted right to assert the certain only office, pay you?” evidence to Such served prosecutor’s and the Henry prejudice jurors, citizens of prosecutor responded “You’re not man against appellant. County, During hearing, enough another to.” stated, point prosecutor object “I’d one prosecutor improperly The defined I in everything if was their shoes.” prohibited jury, to the reasonable doubt prosecutor Callahan, made such re- Ky., At trial the 675 v. Commonwealth (1984). marks as: being called a liar a “I’m tired of suggest prosecutor repeatedly The of—.” bunch danger argument jury in to the ed liar, calling though, they keep “If me a this man community they if “turned something else done. going there’s to be stated, point he “that’s the loose.” At one destroy going I’m evidence on them.” Henry County rid you man want loose going pop gums one more “He’s streets, roads, walking your then ing your time and —.” point, up you.” And at another that’s him you turn intentional murder “Gifs comments were made at the While these Henry adjoining and loose to live here presumably outside of the hear- bench and counties.” inappro- jury, flagrantly this is in- priate plainly misconduct calculated to condemned precise This misconduct was court opposing counsel. No timidate Commonwealth, Ky., 667 S.W.2d in Ice v. it. should tolerate (1984), in Payne and v. Common- (1981), wealth, Ky., 623 S.W.2d improper comments There were other stating: our Court record presence jury. The defense coun- prosecutor, prosecutor “[NJeither open shows that court sel, may make com- nor the court defense counsel of “trick accused partic- consequences of a ment about the At another pulled psychiatrist.” that during criminal any time ular verdict at hearing jury, point, within trial.” tough, adversary, “You commented to his point And at another you, ain’t Receveur.” prosecutor argued point one At having counsel of he accused defense hiding appellant to the exhibit, when defense “ruined” an and counsel defenses” because “secret behind accusation, prose- protested the counsel marked for identifica an exhibit had had lie, in “That is a chimed cutor’s assistant At tion, jury. two not shown (6) told six
Judge,
she has now
which
prosecu
points in the record
different
times.”
portions of
suggested
tor
motion
deleted on
which had been
exhibits
miscon-
fails to
The record
substantiate
being unfairly
defense counsel were
justify-
part of defense counsel
duct on the
In Moore v. Com
jury.
hidden from the
assault
ing this “no holds barred”
426, 438
monwealth, Ky., 634 S.W.2d
unrelenting at-
prosecutor’s
occurred. The
for similar mis
reversed
our Court
throughout
defense counsel
tack on
conduct.
grossly improper. A
trial
to make unfounded
permitted
“must not be
pros
During closing argument opposing
inflammatory attacks on the
dog
appellant as
“black
vilified the
ecutor
Young,
advocate.” United States
“monster”;
as a
night”; and as
of a
1038, 1043,
1, 9,
84 L.Ed.2d
105 S.Ct.
U.S.
night
the road at
“coyote that
roamed
on”;
knife
hunting
to use this
women
“repeatedly
has
Our Court
misconduct
as a “wolf.”
litany
prosecutorial
prosecu-
arguments
condemned
continues:
indulged
tors have
in vilification
right
pur
and abuse
King
defendant.”
Common-
sue this cross-examination
the circum
wealth,
Ky. 775,
Ky., 253
bias,
i.e.,
presented.
stances
witness’
place
argument
is no
There
him
what motivated
to come forward after
degrading terminology.
scurrilous
silence,
four months
was relevant to the
*11
46,
Commonwealth,
Ky.
East v.
249
60
testimony.
credibility
of his
The
credibility
137,
(1933).
140
testimony
always
of a
relevant
is
witness’
issue,
may
at
and the trial court
not ex
replete
The record is
instances
impeaches credibility
clude evidence that
the
where
misstated the evi-
though
testimony
even
such
would
inad
dence,
relating
the
misstated
law
both
prove
missible to
issue in
substantive
the
guilt and
punishment. Perhaps
to
to
the
Kentucky,
683,
case.
Crane v.
476 U.S.
most
closing
serious misstatement was the
2142,
(1986),
106 S.Ct.
The court stated for is not States Court Caldwell doing any ironclad, so was “so be that there won’t and use of the word “recommend” you hesitation about when per se is not reversible error. Matthews v. [the answers] important in.” This func- Commonwealth, come defeats an Ky., 709 S.W.2d tion of voir dire. being Since this is on case reversed grounds, we decide other need not whether popular misconception It is a “voir dire” such use as occurred here amounted to an speak means “to It is instead truth.” say It is sufficient to is abuse. it meaning they term “to see what French least, at the the court borderline concept recognizes the crit- say.” will stay should caution to exercise observing pro- importance visually ical within line next time. well formulating spective jurors they while are questions. Cutting off answers to voir dire 6) key prosecu- local sheriff was im- materially opportunity this observe Among tion witness this case. other pairs right chal- the exercise of the things, provided important he impairs guar- lenges. It the fundamental scene, covering investigation at rights antees of the of the accused Sec- physical of much of the introduction evi- Kentucky Eleven of the Constitution. tion dence, any verification for lack of pretrial statement made preliminary acquaint- While instructions claiming provided appellant he judicial jury with the nature for who com- transportation two brothers ju- process perfectly proper, providing are mitted crimes. they questions specific rors in advance with in ad- prepare asked so can will be first-cousin. The Sheriff was the victim’s such is an abuse questions vance to answer Unfortunately, he also related one dire which not tolerated. voir must case, James jurors who tried juror’s This wife was sheriff’s question in case as Snider. There is also a this point At in the voir first-cousin. one dire the Commonwealth’s comments to whether if its testified that there was a improperly suggested jury that Juror Snider evidence, verdict, conflict in the he would “have to reached a and who returned the might say.” lean what the towards Sheriff Placing courtroom. sheriff, Juror Snider should have been excused for custody who had been cause, questionable witness, but he not. It is important prosecution key at preserved whether error properly is stages proceedings of these violated the because issue was first raised mo- principle separation of witnesses. See tion for a trial. new claims Louisiana, 466, 473, Turner v. U.S. sufficiently preserved, if this issue was not 546, 550, S.Ct. 13 L.Ed.2d it under anyway should be reviewed KRS Supreme wherein the States Court United 532.075(2). stated in similar circumstances:
Juror should “And it Snider have been excused even if could be assumed that for authority Pennington deputies cause under never [who witnesses] Commonwealth, Ky., S.W.2d 221 did directly any discuss the case juror Pennington held that who jury, blinking members it would be prose- was on a first-cousin basis with reality recognize prej- not to the extreme key cution’s witness should have been ex- udice inherent this continual associa- cause, though cused for even disclaimed throughout tion the trial between bias, probability because jurors “[i]t key two witnesses prejudice bias or that is determinative prosecution.” Id. ruling challenge Id., on a for cause.” present case the sheriff was not 224. *13 witness, only key a but also a first cousin The definition what of consti of by affinity a first victim and cousin requiring tutes a relationship” ju “close a to Juror The existed Snider. situation that ror to be dismissed for is not clear. cause when in placed charge he was of and in Ordinarily it is within the of discretion jury appear- contact with the exudes the trial court as whether to a excuse first- prejudice. ance of by affinity. cousin Such is not the case here where there There still more factor were further answers was one showing probability appearance compounding prejudice. of bias toward the of testimony. Recently, in phase Marsch v. At the where the Com crucial trial 830, monwealth, Ky., 743 833 jury penalty, S.W.2d was to consider the death this (1988), we held the trial court erred in same Juror was of his Snider informed failing prospective ju to excuse for unexpected day cause father’s death. before The death, rors persons hospi who were married to who his father’s Snider’s wife was victim, third of spite personal second or cousins talized. In disas these where, here, ters, there expressed willingness were additional cir Juror Snider trial,” implying cumstances carry per bias. “to on was with objections. mitted to do so over defense often As is the case a mistake with Given of circumstances combination the_ nature, of this subsequent events com above, relationship discussed pounded sheriff, problem. after key and the sheriff who was witness witness, being put charge was in appear person charge jury, jury jury sequestered. when the was De impropriety pres ance continued avail, objected fense counsel com no jury ence of Juror on the Snider plaining “unspoken influence that circumstances amounts to a denial a fair presence may upon his have them in the trial. course of their deliberations in ... such a Then, 165, jury Commonwealth, Ky. serious case.” when the went Baker v. 280 upon penalty, out to it 132 deliberate death S.W.2d 766 cited Com- was authority contrary, the sheriff who took the instructions monwealth as room, and, Baker, (not jury inapposite. into the the jury when In the accused deliberating, Commonwealth) finished it the sheriff wished the jury’s delibera- despite who informed court tions to continue the death of a 548
family sponsive present open member. In circumstances did not comment door to it is juror unreasonable to believe that the storm of evidence that followed. dispassionately could concentrate on the Evidence, Jones As stated process, deliberative or indeed the con- 4, (6th 1972), “rebutting Vol. 24.1 ed. § presence tinued of Juror Snider on the evidence means ... evidence denial of mind-set ju- not skew the of other some the answering affirmative fact which jurors openly expressed sym- rors. Other party prove.” gen has endeavored to pathy plight agreed do eral rule has is that a witness who testified In Cherry whatever needed to do. Snider good party may of a character Director, Corrections, Bd. State 635 “if asked on cross-examination has not 414, (5th Cir.1981), F.2d 420 circumstanc- that; party heard that the has done es present, much serious than the less proof may not be made wit other appropriate court it was to de- held that party nesses rebuttal that the had done circumstances, present clare a mistrial. Etherton v. Com things question.” before, considering gone that had all to do monwealth, 553, 343, Ky. 55 246 S.W.2d otherwise an abuse of discretion. per The trial court refused to In presenting the of the ex- mit of a cross-examination witness for wife and step-daughter Commonwealth bring Commonwealth to out that he was on indeed, rule; violated this abused it in a second-degree active probation wanton shocking A manner. number have cases endangerment at the time of trial. This been reversed because Commonwealth testified a witness who he saw the far appropriate exceeded rebuttal in this driveway car at the the vic Commonwealth, respect: Rose v. Ky. day tim’s residence on the of the crime. (1941); Shell S.W.2d denied this trial court cross-examina Ky. qualify tion for reason the offense did not v. Common- (1932); Warner felony. However, aas conviction of a wealth, (1981); 26-27 Ky., 621 S.W.2d type proper of cross-examination was un examples. of the appropri- are The abuse *14 Alaska, der authority of Davis v. 415 U.S. testimony ate limitations on such rebuttal 308, 316, 1105, 1109-10, 39 L.Ed.2d S.Ct. present beyond in the case went far proof 353-54 because that a Rose, Shell and Warner cases. probation witness is on active is admissible 9) jury court erred The trial testify motivation in show the “witness’ procedures, judge selection that ex ing.” proper Such cross-examination “is a jurors prospective cused a number of with important and function constitution recording out a reason for excuses on cross-examination,” ally protected right of This qualification form. violated right and included within the defendant’s 29A.080, 29A.100(2), and the KRS Adminis by revealing “possi to discredit a witness Justice, trative the Court of Procedures of biases, or prejudices, ble ulterior motives of 14(2). gave later The trial court reasons § the witness.” excused, why jurors as to is no penalty phase, subsequent explanation this substi At on the compliance pretext rebutting contemporaneous a casual tute for with comment a The reason ap statutory effect rules. behind defense witness to the lover,” im such rules is to insure selection of an pellant peace “a the Common Ice v. partial appellant’s jury. the stand the wealth called to J., supra, (Leibson, highly at 683 con step-daughter, gave who ex-wife and curring), a similar dereliction. un we criticized inflammatory detailed about importance again emphasize the charged allegedly Once we crimes committed compliance with selec against them, involving upon fami of substantial assault in an procedures tion mandated effort ly rape step-daughter. members and provide impartial jury. an unre- The defense witness’ brief and 10) Finally, napping, sodomy, and improper rape, there ex and foreclosed parte prosecu aggravating necessary communication between circumstances During penalty tor and the court. penalty. death to inflict the phase, parte granted the trial court an ex In closing argument prosecutor un- compelling motion for an order the attend derstandably this ridiculed defense. How- ance of the a ex-wife as wit ever, point at one went too argues ness. The Commonwealth this ex far, just arguing that the as parte proper conference was a because if guilty he murdered victim and then subpoena may parte obtained ex from be her, just had sexual relations with as of the court trial. But this clerk before deserving punishment. Obviously, a de- obtaining parte does not excuse an or ex one, fense of nature a is difficult hard- judge der from the of the court trial after justice. ly appealing lay jurors’ sense Then, every has commenced. re order argued counsel for instruc- Defense quested a the court is matter be corpse, tion on crime of abuse of a presence addressed in opposing appropriate submitting for the defendant’s “dangerous procedure” It a counsel. is theory. This was based the Commenta- “gross appearance and a breach of the (1974) ry Chapter to KRS states: which justice principal when the defendant’s ad chapter penalize “This does not sexual versary given private is access to the ear of Robbins, intercourse deviate sexual intercourse the court.” Haller v. F.2d (1st Cir.1969). body_ dead human If ... [a] prosecution activity sort III. POTENTIAL THE ERRORS IN brought necessary, it can be under abuse INSTRUCTIONS BE TO AVOIDED of a corpse....” Commentary also See A UPON RETRIAL (1974) KRS 525.120. There were no reversible errors argued kidnapping, Counsel instructions properly preserved that were rape, sodomy used the statutes all Nevertheless, by objection. there were “person,” living, term means questions appeal number raised on being. Although breathing, human the tri- which need addressed in order to instruct al court refused to on abuse of a giving avoid error in the at of instructions corpse, did find merit in the court sufficient subsequent trial. argument defense counsel’s to insert the primary theory defense person” “a after victim’s name words trial was that the victim was instructions, stabbed to “per- to define a driveway death her then transported living, being.” son” as “a human alleged to Martini where Lane sexual general court is rule is “the Obviously, theory *15 offenses occurred. this required every to instruct on state of the square does not with pretrial the accused’s reasonably the case deducible from evi- indicating statement that the victim was Commonwealth, Ragland Ky., dence.” when put alive he her But out car. (1967). And, a “defend- square it does with physical some the theory his ant is entitled to have suggesting evidence that the victim was jury.” Davis v. case submitted mortally clothing wounded before her was Commonwealth, Ky., 252 S.W.2d removed, and with ac- so much of the exculpatory cused’s statement as claimed the is such that Where evidence yet that no sexual offenses had occurred jury any con the could come to of several point put he where the two brothers clusions, required the trial court is to sub and the deceased out of the car because alterna mit the instructions on various fighting. jury If the believed Commonwealth, Ky., if tives. Pace theory, this concluded that jury right to in prove to the S.W.2d Commonwealth failed doubt, embodying an of contrary beyond a structions alternative reasonable fense, negated theory kid- is the theory defense conviction for defendant’s case, (b) not an in- wealth’s evidence or from countervail- accommodated ing struction the defendant will be found that evidence that is sufficient to raise a guilty if has failed respect not the Commonwealth reasonable doubt with ele- prove charged in indict- the offense question.” ment in beyond ment a reasonable doubt. Sanborn appellant’s theory of case hardly expect to exonerate could kidnapping, particular and in misconduct, him in the face of his criminal offenses, sex were committed after the vic- why and this was the reason his counsel already tim dead. If at the next trial requested instructions on a crime support any there is substantial presented ground a middle between the theory, entitled this will be severely punished acquit- offense more upon request accordingly, to instructions tal. jury being left with no rather than except acquit
It is fundamental that a criminal to convict or alternative “by duty principal charges. case it is the of the court op give the accused the instructions to Next, appellant argues instruc portunity for the to determine given on tions should have been wanton merits of lawful defense which murder, second-degree manslaughter and Ky. has.” Curtis v. homicide, upon tape- premised reckless 1105, 1107(1916). As stated 184 S.W. effect that he did recorded statement to the Commonwealth, Ky., 555 S.W. Brown v. murder, simply instead not commit the (1977): 2d did. No instruc assisted the two men who referring “Whether one is to one [the] requested regard in this at the tions were affirmative ‘defenses’ criminal [in trial, error, any, failing give if and the offense, or to a lesser the eviden- code] Never preserved. instructions is not such tiary proof are situation burden theless, trial, under the same at the next suggesting that a the same. Evidence above, appel premised if the hypotheses as guilty a lesser offense defendant was theory, requests instructions on lant is, principle, in fact and in a defense giving such instructions must be though against higher charge, it is considered. technical mean- not a ‘defense’within the and remand- The within case is reversed Kentucky ing of that term as used conformity trial in ed for a new Code, cf., Penal KRS 500.070.” opinion. may appear In one sense it misnomer to refer to the situation that exists when C.J., STEPHENS, LAMBERT accused admits to a state of facts JJ., LEIBSON, concur. offense, deny- while constitutes a criminal JJ., VANCE, in re- concur GANT and a more further facts that constitute only. sults offense, But serious as a “defense.” WINTERSHEIMER, J., by sepa- dissents against the doing accused defends so the STEPHENSON, J., opinion in which rate Palmore, charge. principal As stated joins. Juries, 1.06 Kentucky Instructions § (Supp.1979): Justice, WINTERSHEIMER, usually speak “Although opinions dissenting. *16 is ‘sufficient’ terms of ‘evidence’that strongly dissent from respectfully I but degree, lower call for an instruction on a defendant the majority opinion the because quite clearly recognized that it should be the fundamentally fair trial and a received an instruction often the basis for such by majori- complained of the alleged errors per- proof deficiency will be some jury. of the prejudice the verdict ty did not of the taining to an essential element triumph tragic decision is a higher majority the from
crime that differentiates (a) system over substance. so-called may of the degree. This result the lower trial, is entitled to a fair Every defendant in the Common- from a mere weakness
551
majority
but not
the
perfect
a textbook
one. See Brown ments
raised
were
now
States,
223,
v.
98
comply
United
411 U.S.
S.Ct.
adhered to.
failure to
(1973).
require
RCr
not
There is no case which answer is has that the declarant not heard any deciding type us assistance in person, inference However, suggested but the jurisdictions issue. other have from aggregate considered this answers is not matter have determined police that the that testimony of officers the declarant not heard of investi- such a gating “nonpersons” person, the existence of person is but rather such does not admissible. exist.” State, 97, 98-99, Thomas v. 54 Okla.Cr. majority opinion greater The will add a 14 P.2d is similar in that a unnecessary prosecutor’s burden to the al- deputy concerning sheriff testified his in- ready difficult proving negative, task of quiry per- about the existence of a certain person. nonexistence of a stated, son. The court Oklahoma “That We must what majority now turn to there are certain matters which cannot al- describes as errors cumulative which re- ways proven by be positive testimony.” It quire required reversal. This is Court is not always possible produce a witness every review in a pen- claimed error death testify who can per- that there is no such alty case. That does not mean we are son. obliged to reverse a decision because The testimony substance of the witness’ majority harmless error. The admits opinion person that his no such that the so-called cumulative errors are in exists; opinion is based on the fact many preserved cases not others not inquiry. Testimony he made of the sufficiently require serious to reversal. person nonexistence of a claimed is a regard alleged prosecutorial miscon- opinion may matter of be based on duct, arguments nearly present- half of the usually what is hearsay. termed Such ed properly preserved appel- were not strictly speaking is not hear- alleged late review. such Nonetheless say, tending evidence circumstantial errors should be It should reviewed. prove that the claimed individual had recognized that in a trial there two-month no existence in fact. par- can be mistakes all and omissions Kern, Iowa,
State v.
307 N.W.2d
Consequently
ties.
rule
a death
(1981), adopted
the view
Oklahoma
penalty situation
should be re-
all errors
court.
viewed has value.
Supreme
Court of Delaware also fol
prosecutor’s
regarding
statements
analysis
lowed the
Thomas v. State
Dut
living
fact that the
human
victim was
State,
(Del.Supr.1982),
ton v.
A.2d
being
although
family,
very
and had a
dra-
stating
dealing
that the
of cases
majority
presentation,
unduly
matic
did not
in-
negative
inquiries appear
from
results
jury.
majority opinion
flame the
itself
inability
allow such evidence of
inquirer
proving
describes the evidence here as
diligent
to find after a
search and
shocking
particularly
premedi-
this is circumstantial
vicious and
nonex
question.
istence
of the fact in
tated murder. The
had no need
jury.
inflame the
It was the fact of the wish to
be excused. This Court is not
produced
majority
murder
verdict.
bound
citation to a federal
*19
Director,
Cherry
circuit court in
v.
State
prosecutor’s
de
The
behavior towards
Corrections,
(5th
414
Bd.
635 F.2d
Cir.
prosecu-
fense counsel does not amount to
1981).
preju
would be
torial misconduct which
dicial to the defendant. Most of the com
permit
The refusal to
cross-examination
plained of comments were made outside the
prosecution
proba-
of a
witness about
hearing
jury. Actually,
both counsel
tion statute was not error. A misdemeanor
exchanged
rough
rather
remarks about
endangerment
conviction for wanton
has
exchanges
each other.
of these
af
None
impeach
never
been admissible
credi-
fected the outcome.
United States v. bility
Cf.
of a witness. Cotton v. Common-
499,
1974,
103
76
Hasting, 461 U.S.
S.Ct.
wealth,
(1970).
Ky., 454
The
S.W.2d 698
(1983);
Young,
L.Ed.2d 96
v.
United States
majority
reliance
on Davis v. Alas-
1,
1038,
1
470 U.S.
105 S.Ct.
84 L.Ed.2d
ka,
415 U.S.
94 S.Ct.
39 L.Ed.2d
(1985).
best, majority
Even taken at its
(1974),
is strained. The
in this
witness
during
opinion refers to items discussed
probation
type
case is not on
for the same
argument
penalty phase.
closing
offense,
suspect,
he was not a
his testimo-
regard
only
relate
Any error
would
ny was not evasive and he was not a mate-
phase.
rial witness.
judge
prospective jurors
The trial
read
assignments
alleged
The other
error
questions it intended to ask each individual-
significant enough
are not
even when
ly.
majority
the defendant nor the
Neither
require
viewed as cumulative to
reversal.
procedure
authority
can cite
that this
unanimously
previously
This Court has
scope
jury inquiry is best
error. The
nonprejudicial
determined that the
error or
governed by the wise and liberal discretion
applies
penalty
in death
harmless error rule
judge. The
of such
of the trial
exercise
Commonwealth, Ky.,
cases.
Stanford
discretion does not constitute reversible er-
(1987).
could not
734 S.W.2d
ap-
clearly
ror unless
abused and when it
ignore
physical
the abundant
evidence re-
prejudice has
pears that harmful
been
lating
guilt. The error
to the defendant’s
Commonwealth,
thereby.
caused
v.Webb
earnestly urged by majority
so
is harm-
(1958).
Ky.,
That is not the
Chap-
beyond any
less
reasonable doubt.
case in this situation.
California, 386 U.S.
87 S.Ct.
man v.
county
The conduct of the
sheriff was
(1967). Nothing
could
17 L.Ed.2d
question of
not
reversible error. The
changed the result in this case and
have
juror
to exclude a
on the basis of
whether
nothing could have added much fuel to the
relationship
ordinarily
close
within
Commonwealth, Ky.,
fire.
Timmons
judge.
of the trial
Here
sound discretion
in this
The result
there is no abuse of that discretion.
upon
not
different
case will
question of
regard
is true in
same
Considering
ultimate retrial.
the entire
jurors.
Turn-
separation witnesses
possibility that
case there is no substantial
466, 473,
Louisiana,
85 S.Ct.
379 U.S.
er v.
any different and the
the result would be
deals with
13 L.Ed.2d
clearly nonprejudicial.
alleged errors are
association as dis-
continuous and intimate
9.24;
Abernathy v.
RCr
ju-
tinguished from a brief encounter with
Ky.,
rors. There juror excuse judge of the trial
refusal family, in his
Snyder of the death because juror did not
is not reversible error.