*1 SIMMONS, Jr., Appellant, A. Beoria
COMMONWEALTH
Kentucky, Appellee.
No. 85-SC-629-MR.
Supreme Kentucky. Court of
Jan. 1988. Rehearing on
As Modified Denial of
March 1988. *2 III, Taylor
Daniel T. Schadd, Robert D. Louisville, Robinson, M. Gail Asst. Public Advocate, Frankfort, appellant. for Mary-James Young, Virgil III, W. Webb Gen., Frankfort, Attys. Asst. appellee. for OPINION THE OF COURT Simmons, Beoria A. Jr. was convicted of murders, rapes, three attempted three one murder, attempted rape, one and four kid- nappings. He was sentenced death for murders, each of the three to death for three of the kidnappings, years’ impris- attempted murder, onment for years’ imprisonment attempted rape, years’ imprisonment and 20 for the other kidnapping charge. charges All of the perpetrated upon arose from assaults four Louisville, Kentucky. women in Sixteen-year-old K.D. Heaton was accost- by appellant gunpoint ed at as she stood waiting for a bus. He took her in his Iroquois automobile to Park Louisville attempted rape her. She had possession appel- knife her and slashed escape. repeatedly lant and made her attempted rape reported police. to the Meanwhile, appellant sought had hospital, medical assistance at a where he injured by people claimed to have been who however, suspect- police, robbed him. The ed a connection between the stab wounds stabbing by appellant suffered and the reported by an assailant Ms. which Heaton. his
Appellant’s pistol was recovered from
automobile,
and ballistic tests showed
weapon
had been used in three earlier
gave
murders. The
a statement
having
inter-
which he admitted
sexual
other
course with the three
women
per-
each
them. He also
that he killed
mitted his statement of his involvement
tape
crimes to
recorded.
these
In each of the three murders committed
reported
Dr. Ravani
to the court that
competent
separate
prior
on
occasions
to stand trial.
assault
Heaton,
Cheryl Stuckey
Ms.
Both Dr. Ravani and
testi-
on
stated that he
appellant:
fied in
street,
behalf of
Dr. Ravani at
picked up the
on
victims
guilt phase
Cheryl
of the trial and
while,
rode around
his car
Stuckey
guilt
at
and the sentenc-
both
engaged
later
in consentual sexual rela-
ing phase. Although
employed by
he was
tions, after which each of the women de-
*3
state,
Dr. Ravani testified that he was
money.
ensuing argument
In
manded
employed by
prosecution
and that
money,
about
he shot each of the three
give
only job
independent
his
was to
an
victims,
death,
causing their
and he left the
concerning
answer
the mental status of the
city park
of two of them in a
bodies
and
persons
examined
him. He also stated
shot,
lying
other was left
where she
was
him,
in majority
of cases referred to
vicinity
of River
Road
Louisville.
report
degree
his
showed some
of mental
Appellant
Degree in
has a Bachelor’s
so-
deficiency.
work,
cial
and at the time of his arrest was
necessity
failed to show a
employed
halfway
as a counselor at a
expert
requested.
for the
he
He
assistance
parolees.
house for
general
only
expert
stated in
terms
Appellant
grounds
has asserted 34
for
prepare adequate-
assistance
needed to
was
reversal of his conviction in his brief and
hearing.
ly
possible
for trial and
sentence
addressed some of those
at oral ar-
issues
any
He did not state the names of
doctor or
gument.
opinion
This
will focus on all of
he
social worker that
desired to examine
by appellant’s
the issues addressed
counsel
him,
nor
he furnish
did
estimate
argument plus
presented
at oral
others
cost. He further did not state
he
what
which,
court,
opinion
the brief
in the
this
expected to show or in what manner the
Allegations
merit discussion.
of errors
any spe-
requested assistance would be of
patently
which we consider to be
without
challenge
no
cific benefit to him. He made
merit will not be addressed herein.
competency
or that
of Dr. Ravani
uncooperative
him or
Dr. Ravani was
with
FUNDS FOR EXPERT WITNESSES
consultation.
was not available for
Appellant first contends that he
de-
only objection
that he made to
process
nied due
of law when the trial
pursuant to the
examination Dr. Ravani
court overruled his motions to advance
order,
given
court
that the information
psychological
funds for
psychiatric
and
ex-
treated with
to Dr. Ravani would not be
amination and
Appellant
assistance.
re-
but, nevertheless,
confidentiality,
he used
quested
provided
that funds be
for the
as a
his behalf.
Dr. Ravani
witness
appointment
independent psychia-
of two
presented
psychiatric
no
Commonwealth
trists,
independent psychologists,
two
and
support
any aggravating
evidence
one licensed clinical social worker to exam-
See,
capital
in these
murder cases.
factor
ine him.
(11th Cir.
Kemp,
Bowden v.
An is defendant entitled reasonably expert required The trial courts are not necessary assistance. experts to defense for Young Ky., provide funds (1979); fishing expeditions. Hicks v. K.R.S. 31.110. K.R.S. 31.185 Common (1984). wealth, provides indigent is 670 S.W.2d that an defendant enti process is violation of due tled to use state facilities for There no the evaluation expert appel provide witnesses joint of evidence. On a motion the refusal offers more than the defendant little Kentucky lant was transferred to the Cor where undeveloped request assertion that the Psychiatric rectional an Center for evaluation. Ravani, be beneficial. Cald He examined ed assistance would there a Dr. 320, Mississippi, 472 U.S. psychiatrist, a social well v. consulted with worker, Cheryl L.Ed.2d Stuckey.
We hold provided jurors for cause was not an abuse of discre competent expert psychiatric and social tion. assistance, worker which he utilized in his juror, One during dire, voir indicated trial, and that he failed to establish that that, justified, if impose he could the death expert
further assistance was reasonably penalty. Some during time later necessary for his defense. process selection juror appeared before judge upon stated that reflection
JURY SELECTION
he believed in the death penalty but did not
believe that he
postulated
impose
could
it in any
has
case.
numerous
The court
alleged
juror
then asked the
if
errors in the
he
process.
selection
unable,
any circumstance,
under
He
contends that some
to im-
improp-
pose the death penalty,
juror
erly
excused for
re-
cause when
ex-
plied
thought
that he
he
pressed
could not. This
reservation about their ability to
juror
cause,
was excused for
and we find
vote
the death
and that others
*4
no abuse of discretion in the trial court’s
were not
upon challenge
excused for cause
action.
by appellant
they
when
indicated
they
that
prone
were
toward the death penalty and
juror, during
Another
preliminary voir
could not
range
consider the full
punish-
of
court,
dire questioning by the
answered
provided by
ment
law.
affirmatively
not,
that he could
under any
circumstance,
imposing
consider
the death
The determination of whether to ex
penalty.
juror
This
was excused for cause.
juror
clude a
for cause lies within the
The
objected because he was not
sound discretion of the trial court. We do
opportunity
afforded an
to rehabilitate the
not reverse the action of the trial
in
court
juror. The
jurors by
examination of
coun-
the exercise of its discretion unless the
privilege,
sel is a
right.
not a
RCr 9.38.
exercise of
clearly
discretion is
erroneous.
juror’s response
questions
of the
Commonwealth,
Caldwell
v.
judge
unequivocal,
trial
and we see no
405,
(1982).
part
abuse of discretion on the
of the trial
We
transcript
have read the entire
court.
of the
prospective
voir dire of
panel
Appellant
pro
contends that one
members of whom
makes com
spective juror
discharged
should have been
plaint.
In the
jurors
case of the
excused
for
cause for
reason that she was bi
for cause by reason of
feelings
their
about
against
insanity
ased
the defense of
or
the death penalty, their testimony was such
juror’s response
mental illness. This
as to
any
convince
person
reasonable
that
questions
voir dire
showed her to be a
not,
they
circumstances,
could
any
under
in
intelligent person
mature and
who believed
whatever,
any case
impose
vote to
persons
responsible
that insane
are not
death penalty. Because of
they
this
would their acts and that mental illness should be
prevented
substantially impaired
or
in
mitigation
considered in
punishment.
of
ability
perform
their
their
ju
duties as
Although
expressed
personal feeling
she
a
rors, and it was not an abuse of discretion
insanity
complete
should not be a
de
to strike them
Wainwright
for cause.
v.
crime,
fense to
she did not state that she
Witt,
412,
469 U.S.
105 S.Ct.
83 L.Ed. would be unable to
and the
follow
law
(1985).
2d 841
court,
instructions of the
or that she could
in
any
not
this or
other case be able to
Likewise,
some of the
indi
guilty by
return a verdict of not
reason of
cated their
penalty
belief
the death
in a
insanity. We find no error in the refusal to
proper case, but a review of the entire voir
discharge
juror
for cause.
dire does
any
not reveal that
would inevita
bly impose
every
the death
case
Finally, appellant alleges that it was un-
nor
they
could
consider
ju-
the entire
un-American to excuse
Democratic and
range
penalties
not,
by
any
established
law. The
rors for cause when
could
case,
circumstance,
failure of the
discharge
trial court to
those
im-
under
vote to
appreciate
patience
you’ve
I
procedure
penalty.
death
pose the
process
throughout
approved
our
shown
in this trial has been
used
selection.
court
in Buchanan
(1985)
by the
Ky.,
peremptories in this it should be L.Ed.2d 222 found as made when the list of strikes has been aggravating circumstances in each of the judge returned to the and before the (a) capital three murders: that at the time accepted has parties been and sworn engaged homicide try the case and before the remainder of first-degree rape upon the commission of jurors discharged have been from ser- victim, (b) appellant’s act or acts of vice. killing were intentional and resulted in mul tiple deaths.
In this case questioning the voir dire days consumed four and is tran- kidnapping In each of the three scribed in transcript nine volumes on cases in im which the death appeal. If appellant timely had made a posed, aggravating found an as challenge peremptories exercise circumstance that the committed the trial court could degree upon rape the first the victim. hearing prima have held a to determine if a following K.R.S. 532.025 lists the statu- *6 existed, facie case of if discrimination and tory aggravating circumstances: so, steps the set forth in Batson Ken- “(a)(2) kidnap- of murder The offense or tucky, supra, complied could have been ping committed the offender while with delay. without If it were determined engaged in the commission of ... that challenge any juror the of the rape degree. in the first discrimination, challenge result of that juror could have been disallowed and that “(a)(6) kill- The offender’s act or acts of panel. have remained on the in mul- ing were intentional and resulted As happened, objection it no was made tiple deaths.”
here until appellant after stated his had statutory remaining Appellant satisfaction with contends that jury, discharged “multiple were term must be construed and had left deaths” courtroom, that try and the to to mean more than one death occurs sworn alternative, only sought simultaneously, the case. or in the The relief was a vagueness. It is mistrial and a continuance of the statute is void for the case. We legislature do not think did not use the Commonwealth should be obvious that the stat- subjected deaths” delay to such ex- words “simultaneous additional those penses appellant solicits us to add as would be caused trial ute. The new construing of the appellant when the the intent Gen- could have the words avoided entirely by Assembly. situation mo- eral making timely tion. Ordinarily construe statutes we light plain meaning of the words
Batson
of the
Kentucky,
envisions
supra,
legislative
therein,
to
timely
that a
contained
and resort
motion
made
should be
only
intent
car,
when words used in the statute
was beaten about the head as
ambiguous.
are
ambiguity
We see no
here.
Park,
Iroquois
appellant
drove to
stat-
The statute refers to an act or acts which
ed to her that he
to
wanted
have sexual
multiple
result in
Multiple
deaths.
means
intercourse, that he forced her from the car
one,
more than
beyond dispute
and it is
dragged
park
her into the
where she
appellant
that the acts of
resulted in more
fought
finally escaped
him and
after stab-
than one death.
bing
repeatedly.
him
Aggravating factors are those factors
explieity
Ms. Heaton
testified about the
punishment
which would
to
serve
enhance
upon
appellant’s
force used
her and the
higher degree.
respect
to a
With
attempt
rape
her. The
of the
bodies
propensities
vicious
of a defendant which other three victims were found in secluded
danger
society,
are indicative of his
it is
places,
park,
two of them in a
and had
certainly
compelling
no less
that on three multiple
upon
persons
bruises
their
which
different occasions he had committed a
upon
indicated the use
force
them and
murder than if he had
people
killed three
at
from
struggle
which a
could infer a
or
interpret
one time. We
the act or acts of
part.
resistance on their
The fact
killing
multiple
which result in
deaths to
undergarments
some of their
were tom
person,
mean the deaths of more than one
and scattered about the scene of the mur-
simultaneously
whether
or not.
der was
voluntary
inconsistent with
inter-
course.
other three
victims were killed
vague
statute is not
in its in
pistol
with the same
with which
tent, and we believe that citizens who de
attempted
abducted Ms. Heaton and
obey
sire to
it
difficulty
will have no
rape her.
understanding it. Colten v. Common
wealth, Ky.,
(1971);
victims. He contended in each case that SUPPRESSION OF EVIDENCE *7 the intercourse was with consent of the appellant contends that the tri The question victim. presented is whether by refusing suppress al court erred to there was other evidence from the which by him statements made when he was appellant could conclude that accom- questioned by police hospital officers at the plished the sexual intercourse the use of by refusing suppress and to evidence ob compulsion. forcible through appellant’s tained a search of case, premises his
In each the and automobile. victim is dead and could not testify, but the to was entitled The basis of the motion was that his consider all other circumstances in evidence statements and his consent to a search upon which would indicate the use of force given. voluntarily were not The trial court the victim. suppression hearing, testimony held a and
First,
Heaton,
conclusively
appellant
the
was ad-
knew that Ms.
showed
escaped
life,
hospital
victim
superfi-
who
with
ab- mitted to the
several
her
was
with
ducted from the
compulsively
street and
cial cuts which were cleansed and sutured.
serious,
gunpoint
thought
forced at
get
appellant’s
to
The cuts were not
to
into
be
kept
hospital
was
suffering
any
injury;
but
from
substantial
he
hours for observation and then was re-
hap-
was alert and understood what was
leased.
pening; he was advised of his constitution-
rights
question-
al
on each occasion before
hospital
police
notified the
that a
commenced,
ing
willingly
freely
and he
and
person with stab wounds had been admit-
gave
police.
his statement
to the
ted,
police
hospi-
and a
officer went to the
investigate.
to
At
appel-
tal
that time the
We have reviewed all of the errors al-
suspected
any
lant was not
crime but
leged by appellant and find them to be
regarded as a
He told
was
victim.
the without merit.
investigator
that he had been stabbed
Pursuant to the mandate of K.R.S.
people
attempted
who
to
him.
rob
532.075we have reviewed the entire record
Later,
investigated
this same officer
of this case
have determined that the
and
reported attempted rape and discovered
imposed
sentence of death was not
under
escaped by stabbing
that the victim had
her
passion, prejudice,
or
influence
Appellant im-
assailant numerous times.
arbitrary
other
factor
that the evidence
and
mediately
suspect
attempt-
became
finding
supported
jury’s
of the statu
rape.
police
ed
returned
officers
to
tory aggravating factors enunciated in this
hospital,
reading
and
after
opinion.
compared the sentence
We have
rights, questioned him
his constitutional
this case with other cases which
According
treating physi-
further.
imposed and
death
has been
which
cian,
alert and in control
affirmed since 1970. Those cases
we have
faculties,
only
of his
and his cuts were
are:
superficial.
appeared
he
To the officers
Commonwealth, Ky., 495
v.
S.W.
Scott
alert
to understand the nature of
be
and.
(1973)
2d 800
their
He told the officers that his
visit.
Commonwealth, Ky., 481
v.
S.W.
Leigh
gun
signed
inwas
his automobile and
his
(1972)
2d 75
consent for the search of the automobile.
Commonwealth,
v.
Lenston and Scott
weapon
appellant’s
recovered from
(1973)
Ky.,
automobile used Commonwealth, Ky., 482 S.W.2d v. Call Appel- in three other unsolved murders. (1972) questioned and lant was further admitted his involvement in those cases. Commonwealth, Ky., 503 Caldwell v. (1972) S.W.2d
Appellant’s
upon Mincey
reliance
v. Ari-
Commonwealth,
Tinsley
Tinsley
and
v.
zona,
2408, 57
437 U.S.
98 S.Ct.
(1973)
(1978)
Ky.,
401 Commonwealth, Ky., v.White 671 S.W. failure procedure prej- to utilize the Batson (1984) 2d udiced the defendant.
Harper Commonwealth, Ky., v. (1985)
S.W.2d 665 Commonwealth,
Skaggs Ky., v. 694 S.W. (1985)
2d 672 Commonwealth,
Kordenbrock v. Ky., (1985)
Matthews Ky., v. (1986) S.W.2d SEE, Appellant, Gorden William Commonwealth, v. Marlowe (1986) S.W.2d Commonwealth, Ky.,
Bevins v.
712 S.W.
COMMONWEALTH of
(1986)
2d 932
Kentucky, Appellee.
Willoughby
Halvorsen and
v. Common-
No. 85-SC-878-MR.
wealth,
(1986)
Ky.,
in is not excessive or disproportionate to penalty imposed cases, in similar con-
sidering both the crime and the defendant. judgment is affirmed. sitting.
All All concur.
LEIBSON, J., concurs separate
opinion.
LEIBSON, Justice, concurring.
I concur in the Majority Opinion.
Further, my opinion there is no basis speculation
here for the Common- might
wealth attempting have been to exer- peremptory challenges racially
cise in a
discriminatory manner. The Common- did jurors.
wealth not strike all of the black
Two left on
and one served. danger worst from an all white
is potential being injected for race into discussion room. The Com- exercise peremptory
monwealth’s chal-
lenges did not create a situation where this
type wrongdoing could occur.
In these circumstances there is no reason suspect the Commonwealth was
seeking challenges exercise peremptory
in racially discriminatory manner or that