Skaggs v. Commonwealth

rеported, only but was placed recorded on audio and seized on this point to raise a tape, portion and that a tape of that previously has nonexistent. misplaced. been appellant relies on ordinary circumstances, Under where remaining portion tape claim- testimony such provided as has been indi- ruling that the of the trial admit- cates the trial ruling court’s was errone- ting his confession was erroneous. That ous, I impose upon would not a defendant portion of tape which remains includes provide burden to a complete transcript testimony to the effect that he asked to supрression of a hearing claiming before lawyer see his questioned, before he was error in suppress. However, failure to I and was told that he “wouldn’t need an agree with the result case attorney(;) they (attorneys) that all would because I am convinced the claimed error my do is money.” take did not occur. pretrial

At the hearing the burden is on

the Commonwealth to show the confession properly by preponderance obtained

of the Lego evidence. Twomey, 30 L.Ed.2d 618 circumstances,

Under ordinary if record, incomplete, albeit

to the effect that the confession was not

properly obtained, I duty see no on the SKAGGS, Leroy Appellant, David appellant provide a narrative statement supplementing such record. All he could COMMONWEALTH of add is what he claims was not said. Hоw- Kentucky, Appellee. ever, in this compelling case there are cir- indicating cumstances that the trial court Supreme Kentucky. Court did not err. 1985. First, we testimony have the trial of both police present, Rehearing Sept. officers indicating who were Denied 1985. questioning and, initial was routine by implication, appellant did not ask to

see attorney questioning before the be-

gan.

Next, the transcript suppression of the

hearing 27, 1982, September was filed on 5, 1982,

the trial commenced on October twenty-one January months later on

30, 1984, Appellant the Brief for filed. Appel-

It is that this inconceivable Brief for

lant failing would not have claimed error in suppress grounds this confession on this

if there was substance to the claim

that the Commonwealth had failed to make prima

out a facie case for admission of the suppression hearing.

confession at the point Supple- is first raised in the Appellant

mental Briеf for filed November Patently appellant 1984. has belat-

edly portion tape discovered á of ‍‌‌‌‌‌​‌​​‌​‌​‌​​​‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌‌‌‍the suppression hearing has been mis- West, Advocate, K. Asst.

Linda Public Proctor, Boyce Donna Asst. Public Advo- cate, Frankfort, appellant. for Gen., Armstrong, Atty. David L. Suzanne Johnson, Guss, Christopher Attys. W. Asst. Gen., Frankfort, appellee. WINTERSHEIMER, Justice. convicted the murders of wife, and Mae Herman Matthews his Mat- He to death for thews. was sentenced both crimes. 76-year-old, a

Herman Matthews was metal His scrap semi-retired dealer. wife years helped in frequently was 67 old and the business. Their home was connected to place He conducted a their of business. always lаrge carried cash business premises. May the On sums of cash on neighbor body a the discovered in his place Herman Matthews business. police body of the found the Mae Later living room. Herman Matthews in the times, three once in the Matthews was shot chest, back and right once lower also suffered a once the left arm. He being hit injury head consistent with with falling. with The head hammer and not to the chest injury gunshot and the wounds causing capable of back were each independently injuries. Mrs. other death wounds, gunshot two Matthews suffered and one in the upper in the left chest one while One wound occurred left abdomen. while she standing and the other she was lying down. Columbus, investigation police led questioned they Skaggs. Indiana where a waiver of having After him execute form, dried rights officers noticed blood the police Skaggs While the were on shoes. shoes, examining Skaggs fled. After the warning chase in which 20 minute foot fired, Skaggs apprehended. shots were charges on He was arrested Indiana jail. local returned Indiana, May Kentucky constitutionality On still in Kentucky of the police again questioned Skaggs again after statute. advising rights. him of them He told The trial did not commit re he time at the of the Mat- denying Skaggs’ versible error in renewed killings, an accomplice, thewses but John change mоtion for a venue at second Davis, pulled trigger. May On dur- sentencing Skaggs argues trial. that the trip Glasgow, Kentucky, publicity prior penalty phase of the police footprint

told on door of prevented seating second trial of an the Matthews house was his that he impartial jury. He also maintains attempted to kick the door to bur- granted should have his motion glarize. a change for venue. He contends investigation Police indicated that al- the amount of publicity attention and Davis, leged accomplice, involved the whole perva incident received sowas with the crimes. view In of this informa- prevented seating that it sive of an tion, 18, 1981, police again impartial jury in County. Barren questioned Skaggs and told him that he Careful examination of the entire record attorney had a to an and that one had jurors fails indicate that actu- appointed been him if he wanted the ally guilt phase seated at the of the trial police attorney. call indi- any preconceived held notion about his attorney, cated he did not want guilt which could be laid aside. Of the subsequent interrogation, he jurors pen- twelve returned who having confessed to murders committed the alty, during four stated individual voir dire of Herman and Mae Matthews the they publicity had seen or heard little noor a robbery course of and stated he had the Six about case. others said that al- acted alone. though they exposed had been to some publicity, they opinion not an had formed trial, jury

After a was convicted on that Juror based fact. Baxter stated of the murders of Herman and Mae Mat- that she could set aside information re- thews, guilty and he was found on also two proceedings ceived outside the and render a robbery of burglary. counts At the solely Al- decision based on the evidence. sentencing phase conviction, of the murder though juror asked Vance was not the jury agree penal- wаs unable on the particular questions during the individual ties for the two murders and was subse- concerning publicity, dire she voir was quently discharged. Approximately three respond present and did not to the trial later, 22, months on June the questions judge’s concerning publicity di- phase retried jury was and new selected. panel. rected entire Much the of same evidence introduced at guilt phase the of the first trial intro- trial The record shows the phase. duced at the retrial of the panel members of ei- excused several the judgment sentencing Skaggs The final they already because formed an ther the of Mae for murder Herman and exposure of opinion because undue July on 1982. Matthews entered proceedings. prior the appeal directly This to this Court followed. record of the indicates the bulk the judgment This Court affirms of the pretrial publicity long jury occurred before trial court. began guilt phase the of selection on February 1982. Collins v. trial counsel, Skaggs, through thir- his raises (6th Cir.), cert. 539 F.2d den. Egeler, alleged ty-two assignments this of error L.Ed.2d 171 428 U.S. S.Ct. 1) appeal. They grouped are as follows: (1976). 2) issues; jury alleged venue errors trial; 3) called, phase errors of the 15 were guilt of claims of Out 43 veniremen 4) questions cause, penalty phase including about for 3 on excused issue, These сlaims are taken from by per statements. and 15 were struck suppression hearing challenges parties. testimony his at the of the There emptory findings community of such and not of fact of not the existence from 9.78, of to RCr the find- prevent as selection trial court. Pursuant prejudice would Commonwealth, jury. ings trial shall be Gall proper of fact of the court (1980), den. Ky., 607 S.W.2d cert. conclusive. 989, 101 In this case the accused was advised by Skaggs cited authorities rights. At “Miranda” repeatedly his influence distinguishable. The are every rejected stage proceedings he pervade proceedings. media did It not at his the assistance of counsel. ultimately ap- request that counsel trial discretion in the court’s pointed, but rather because of the cautious weight given great because be matter will judge. concern of the trial county There the situation. presumed know accused It is fundamental that an discretion in the no abuse of has been right of his counsel as must be informed change of of the venue. denial motion well as to remain silent once his Commonwealth, Ky., 371

Nickell However, investigation focuses on him. S.W.2d Jasper v. rights may these be waived. The trial did not commit re Commonwealth, Ky., 471 S.W.2d 7 denying error motion of versible suspected The fact crime has that one of a chаnge for a of venue because of prevent does him attorney present no guilt pretrial publicity during the trial. confessing crime so from his if he does knowing that voluntarily his confession coverage, A careful of the media review may against him. be used general specific voir dire indicates circumstances, that under all police bargain is allegation of a His actually guilt phase seated at the ac representation to an unconvincing. impartial. trial was The denial the mo- cooperative cused who is a confessor change tion for a of venue was not an cooperation made the fact be would abuse of discretion. is not prosecuting known to authorities the jurors None of the indicated that their render a confession involun sufficient to any exposure publicity adversely Curtis, States 562 F.2d United tary. ability affected their to decide the case on (9th Cir., 1977), den., cert. 439 U.S. 1153 the evidence alone. There was no commu (1978). 910, 279, 58 256 L.Ed.2d S.Ct. nity atmosphere prejudicial jur that so the custody argument that while in His could than impartial. ors be considered less Indiana, represented by an attor in he ‍‌‌‌‌‌​‌​​‌​‌​‌​​​‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌‌‌‍was allegations A careful review of all charge and the failure ney on another presented by Skaggs indicates there is Kentucky police notify that attor probability no considerable of the accused merit. ney questioning without being impartial a fair and unable obtain United argument rejected in This has been county trial in the in which he was tried. Cir.), (5th Vasquez, States F.2d 730 Commonwealth, Ky., Payne v. 623 S.W.2d 181, 836, cert. 414 U.S. 94 S.Ct. den. 909, 102 (1981), cert. 456 U.S. den. (1973). L.Ed.2d 72 1758, 72 L.Ed.2d 167 Kentucky argument once not commit reversible trial did appointed the accused overruling suppress in motion to counsel had been error right at a his to counsel incriminating by statements made could not waive certain See unpersuasive. interrogation later Skaggs police on several differ- officers 1974). (8th Cir., Wolff, he was Moore argues 495 F.2d Skaggs ent occasions. findings of judge As the noted his police “deal and this “coer- trial offered a 1981, fact, morning destroyed voluntariness of his cion” 6.78

Skaggs appeared in district court and ad- the mental health of the defendant and his vised the ability that he did not want capacity regarding an the murders. attorney and was jail. Skaggs ordered back to opportunity was not denied an thereafter, Shortly present evidence, mitigating district recon- that evidence appointed merely sidered and public disputed. the local prop- de- represent erly Skaggs. time, fender to instructed in At this accordance with the stat- Skaggs respect. neither utes this lawyer nоr the had been consulted. police Soon thereafter The evidence of the criminal alleged accomplice learned that the was not record of properly introduced. and, involved in the they crimes went to the In past he had been convicted of first- jail and Skaggs they told ques- wanted to degree robbery twice, second-degree escape police tion him further. The advised him banditry and auto in Indiana. Evidence of that the appointed public court had de- previous properly criminal record can be fender and lawyer offered to call the be- prove introduced to mitigating cir fore questioning. further The accused cumstance of the absence of a criminal police told the that he did not want an record did not exist. Barclay v. Flor attorney present. If an accused can volun- ida, tarily right waive his to counsel before one L.Ed.2d 1134 The instruction in appointed, has been compelling there is no very this case is approved similar to that may reason to hold that he voluntarily Commonwealth, Ky., Smith v. 599 S.W.2d present waive his to have counsel at Skaggs, Here Rowland interrogation ap- after counsel has been accused, father of the was asked on cross- pointed. examination whether his son had convic activity tions for criminal after he left circumstances, In view of all the home. Thus the defendant himself intro judge properly voluntary admitted the regarding past duced evidence criminal statements of who had waived his history mitigating as a circumstance. right to have counsel during the questioning. requisite statutory aggra Once vating exist, factor has been found to The contention that the trial aggravating prior factor of a criminal his judge should have declared a mistrial when tory may ag be considered as prosecutor passing made a reference gravation by jury during the sentenc reading of the confession to the ing stage. Stephens, Zant v. 462 U.S. 862 portion effect that a of it had been deleted at 103 S.Ct. 2733 at mistrial, is without merit. In order for a Zant, supra. 235 at In the U.S. Su appear there must in the record “a mani preme prior Court held that the defendant’s fest necessity for such an action or an properly criminal record was admitted un urgent necessity.” or real Wiley v. Com Georgia der a statute similar to KRS 532.- monwealth, Ky.App., 575 S.W.2d 166 025(l)(a), though statutory even one of the (1979); Commonwealth, Brown Ky., 558 aggravating circumstances for which the (1977). S.W.2d 599 considered, may evidence have been was vague constitutionally held to be under prosecution’s The rebuttal of the state law. mitigating presented by Skaggs was not reversible and did not affect the arguments by Skaggs The advanced right of to such previously rejected by evidence. have been this Court McQueen testimony appropri Gall, The of Dr. Ravini supra, was v. Common- wealth, testimony ate as rebuttal to the Ky., of Dr. S.W.2d The Bresler, conflicting prior and the result of the criminal record of the defendant is deny Skaggs precisely type evidence did not of information that the present mitigating psy The jury making evidence. two should have considered its experts disagreed chiatric as to the state of as determination to sentence this case. case, 532.025(l)(a) In references death KRS The factual provides if the trial court is reversed that аs jury’s a recommendation were sentence in the appeal of error because by message unaccompanied any that presentence hearing, the trial new which jury of was lessened in responsibility may apply only to the be ordered shall degree and were re any the remarks clearly punishment. This issue of statute error. versible contemplates similar to this case a situation jury where a was used different 532.025(l)(b) KRS states that penalty phase. See Smith v. Common- death case is to “recom jury in a wealth, Ky., S.W.2d 900 The a sentence for the defendant. mend” jury in a fixing by capital a a sentence jury was made of its The awаre is not case is a recommendation which bind option impose penalty. not to Gall, supra. judge. trial It ing on the essen penalty phase instructions were appear simple common sense be would tially the as those v. Com same Smith word accept the fact that the “recom monwealth, provid The trial court supra. is in the statute and it is mendation” used various at ed form for the alternatives clearly proper to to it as such. The refer mitigating the end of the instructions. The when, error occurs because additional aggravating set circumstances were comments, message conveyed jury out in 1 and 2. The Instructions through final one. also Instructions 3 and juror’s decision not the Ice v. advised Commonwealth, question as to authorized sentences and the Ky., 667 S.W.2d 671 jury doubt. The was well reasonable Skaggs to aware that it need not sentence jury Here the was told its verdict awas aggravating an cir death even if it found recommendation but that information was A careful examination of the cumstance. accompanied any by never inference that charge jury indicated jury entire that responsibilities its were less. it life sentence knew could recommend a The record is references by full of both aggravating if circum even it found prosecution аnd defense serious- a reasonable There beyond stance doubt. jury ness of the matter that the was to sentence. is no reason to reverse pro- consider. asked one sentencing phase The second consisted juror if spective he could send a man to testimony 16 of the witnesses who from death. defense counsel stated that the guilt phase. testified Informed at prosecutor asking jury to sentence Skaggs’ presented convictions and murder to die the accused in the electric chair. The evidence, nearly identical with abundant jury completely totally aware of phase, brought guilt forward at the rеsponsibilities. its sentencing jury posi- in a the second jury as it no from the first tion different penalty phase instructions were upon the embarked Skaggs alleges proper. numerous errors argues He regarding instructions. exception to the Skaggs also takes guilt penalty phases both should be trial court’s instruction jury retried because the which determined have phase in the trial should punishment the same aggravat the elements of the instructed on guilt. argument determined He makes this authority Skaggs cites no factors. pretrial despite a motion defense trial find cannot requirement, such a we separate guilt During juries argument. counsel for on the and any for the rationale trial, sentencing phases. Skaggs Skaggs ex- was guilt phase Counsel first-degree robbery and pressly proceed guilty elected to with retrial on found phase jury burglary a different to KRS 515.020 pursuant before jury require To penal- it was determined that the first KRS 511.020. after of rob- finding on the elements jury deadlocked. to make a ty was 680

bery burglary, unanimity would render the first presumption and the of inno- verdict useless. a Such construction is con- cence. proper. The instructions were 532.025(l)(a); trary to the law. See KRS The instructions Commonwealth, supra. v. Smith phase proper. were Similar instructions have been found to be correct. Zаnt v. argument jury The that the was Stephens, 462 U.S. 103 S.Ct. properly mitiga not advised of role of judge’s L.Ed.2d 235 The trial com- totally tion is without merit. Instructions juror ments to Smith were not intended to 1(a) (b) No. specific set out two exam mistrial, provoke and did not a and there- ples by mitigating of what was meant cir jeopardy prevent fore double did not re- a judge cumstances. The trial also instruct of the death jury ed age, to consider the defendant’s character and record and other fact or judge The trial was faced with a mitigating. circumstance it considered In juror requested difficult situation. A had a “mitigating struction No. 6 also defined permission conferenсe and with from both put circumstances” as factors forth to attorneys judge agreed to meet with appropriate show the sentence is a sen juror. jury deliberating had been jury tence prop other than death. The hours, juror excess twelve and the erly mitigation instructed on the nature of question parole. a about The trial apply and was admonished that law judge properly they informed him that presented. to the evidence v. Smith Com must base their decision on monwealth, supra. require There is no presented given. and the instructions jury ment findings make written deliberate, jury returned to and an hour mitigation. on they later the foreman announced were time, hopelessly deadlocked. At the de give specific Failure to in discharge jury fense counsel moved to proof struction on who has the burden of complied. and the trial court required. Gall, supra. jury argues now that the trial repeatedly advised as to who had the bur intentionally acted so force as to proof den of and what that burden was. retrying seek a and that him mistrial under requirement There aggravating is no these circumstances amounts to double outweigh mitigating circumstances circum jeopardy. A careful examination of the beyond stances reasonable doubt. every- recоrd indicates the trial did Smith, supra. requirement There is no thing power in his to avoid a mistrial. jury be instructed to find that appropriate punishment death is the be general is that rule double yond jury reasonable doubt. The was in prevent reprosecution jeopardy does not imposition penal structed that of the death develop are not where circumstances which ty only permitted they if found exist judi prosecutorial attributable to either or aggravating beyond ence of circumstances cial misconduct. See United States a reasonable doubt. Such an instruction is Jorn, U.S. giv sufficient. There was no error in not instruction on the the аc testify. Commonwealth, Ky., Stamps cused not to Such an instruction is (1983), given only requests specifically applies it. when defendant S.W.2d request require No holding Oregon Kennedy, was made. There is no jury ment that be instructed to dis 72 L.Ed.2d 416 U.S. (1982), regard passion prejudice. jeopardy or This double clause in matter Supreme Kentucky. taken of on voir dire. It was also The United States care proper jury parole recognized to instruct the has also that the double Court jeopardy to define reasonable doubt instruc clause will not bar retrial where properly advised as to the first trial is terminated manifest tions. The Hunter, 532.025(l)(b) clearly contem necessity. See v. KRS Wade (1949). plates pen a jury L.Ed. 974 recommendation death jury. In alty by cases tried a the absence repeatedly juror The trial court informed findings by jury jury a where the is the define im- law did not life Smith deadlocked, judge authority has the trial no question speculation and on the prisonment any fix to sentence. Commonwealth Skaggs jurors. forbidden to now ob- Crooks, (1983). Ky., S.W.2d 475 meeting only trial jects judge to the with authority Skaggs Georgia by The cited 9.74, juror as a one violation RCr which persuasive. Though similar, Ken- not requested requires by that no information tucky statute penalty has distinct jury given open shall be unless it is in Georgia. Georgia differences from law presеnce jury. in the of the entire court specifically requires the .trial court to sen- agreed meeting counsel and Here all jury tence the defendant when the fails to objections error, any to it. The if waived Georgia recommend a death sentence. nonprejudicial, it any, is and is both waived 532.025(3) Ann. 26-3102. KRS Code unpreserved. § and Franklin v. Common- question. silent on this wealth, Ky:, 477 S.W.2d Skaggs request did court not to re- There is no confusion or uncer peat jury its admonition to the entire and tainty as to what course should be followed previous the court’s statements were clear during jury when the deadlocks unequivocal. may now and He not com- phasе capital of a case. failure of a plain Ice, court’s failure to do so. jury to a results ‍‌‌‌‌‌​‌​​‌​‌​‌​​​‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌‌‌‍in a mistrial reach verdict supra, at 677. permits the matter to be retried. Mil State, 376 at ler v. 237 Ga. S.E.2d judge’s a pardon The trial reference to p. penalty phase A trial of the provoke not intended to and did following jury a deadlocked does not vio Skaggs move for a mistrial. trial late either the Federal or State constitu judge juror admonished Smith that consid- prohibition against jeopardy. tional double any consequences, erations of future such Retrial under these circumstances does parole pardon, place as had no jeopardy constitute under KRS 505.- double finding of jury’s Payne fact. v. Common- upon permits proper 030 which retrial ter wealth, Ky., 623 S.W.2d expressly mination. moved for jury any comment was advise the con consented a mistrial while the court totally improper such were considerations currently declaration determined and forbidden. necessity. no mistrial There was A careful review of the trial com- court’s having court’s a new trial error the trial plete juror conversation with Smith indi- he cates that was concerned jurors understand that the verdict be must We have considered whether returned in with the dispropor accordаnce evidence sentence of death is excessive or There is imposed and with instructions. no indi- tionate to in similar by provoke court to regard cation of intent in this considered cases have out of that the jury a mistrial fear here the crimes and all of committed likely to return a life sentence. double surrounding his back jeopardy clause does not bar retrial. ground. of the Court has been

The trial not commit reversible Data the use did failing compiled with KRS 532.- impose a sentence once in accordance error 075(6)(a), (b) (c). carefully first We have deadlocked reviewed all the cases which the phаse. Skaggs sentenc- waived January complain penalty imposed after position and is now in no Commonwealth, Ky., any way by erred as follows: Scott (1972); Ice, supra. Leigh 495 S.W.2d 800 failing to him. See Common- sentence (cid:127)682 wealth, Ky., (1972); 481 S.W.2d 75 Lenston robbery after a imposi- indicates that the Commonwealth, Ky., and Scott v. 497 tion of the penalty death in this case is not (1973);

S.W.2d 561 Call v. Common disproportionate type of offense. wealth, Ky., (1972); See, Cald 482 S.W.2d 770 McQueen, supra; White, supra. Commonwealth, well v. Ky., 503 S.W.2d Kentucky's death penalty statute (1972); Tinsley Tinsley and 485 v. Com arguments is constitutional. present monwealth, Ky., (1973); 495 S.W.2d 776 ed here are unconvincing and are similar to Commonwealth, Galbreath v. Ky., 492 those found to be without merit (1973); and S.W.2d 882 Caine McIntosh v. McQueen, supra. Skaggs has not demon Commonwealth, Ky., 491 S.W.2d 824 strated that the Kentucky Commonwealth, Ky., (1973); Hudson v. arbitrary, statute is discriminatory or (1980); 597 S.W.2d 610 Meadows v. Com freakishly applied for the same reasons set monwealth, Ky., (1977); 550 S.W.2d 511 McQueen. out Commonwealth, Ky., v. 550 S.W.2d Self judgment (1977); conviction is affirmed. Boyd Commonwealth, v. Ky., (1977); 550 S.W.2d 507 Smith v. Common STEPHENS, C.J.,

wealth, AKER, Ky., (1980); STE- Gall v. S.W.2d 900 PHENSON, Commonwealth, VANCE and Ky., (1980); WINTERSHEIM- S.W.2d 97 McQueen ‍‌‌‌‌‌​‌​​‌​‌​‌​​​‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌‌‌‍ER, JJ., Commonwealth, concur. Ky., 669 (1984); White v. Common S.W.2d 519 GANT, J., concurs in result. wealth, Ky., (1984); 671 S.W.2d 241 Commonwealth, LEIBSON, J., Harper separate opin- dissents Ky., 694 S.W. ion. 2d 665 Gall, McQueen, All except of these cases LEIBSON, Justice, dissenting. Harper, White have had the death Respectfully, following I dissent for the penalty set aside for the reason the statute reasоns: was invalid under Furman v. Georgia, 1) prior history Evidence of of non-as- U.S. 92 S.Ct. 33 L.Ed.2d 346 saultive criminal erroneously behavior was (1972). In making comparative study of admitted at the

these cases and the circumstances in this case, we are opinion 532.025(2)(b) that the death specifies KRS the de- sentence here is dispropor- not excessive or may present sig- fendant evidence of “no tionate to the penalty imposed in history prior activity” the above nificant criminal enumerated cases. “mitigating as one of the circumstances.” Skaggs presented no such evidence. He Skaggs raises the issue of whether the open subject. did not thе door to this public compiled advocate is entitled to data pursuant this Court statutory “aggravating KRS 532.- circumstanc- 075(6)(a), (b) (c). (KRS previ- 532.025(2)(a)) This pre- Court has es” do include ously public decided general history defender is vious criminal as a statu- parte, Ex Far- factor; entitled to such data. tory aggravating proof ley, Ky., Gall, (1978); su- of serious assaultive 570 S.W.2d 617 history “substantial ” pra. criminal (Em- There is no need to reexamine convictions permitted. this is again. added) issue phasis Kentucky permit aggra statute was We should not evidence of constitutionally applied Skaggs. vating There circumstances other than those stat requirement mitigating no utory aggrаvating cir- circumstances which the outweigh aggravating cumstances cir- law allows. Such evidence was erroneous Maggard propor- obviously prejudicial. cumstances. The death sentence is State, Fl., A cert. den. tionate this case. careful review of 399 So.2d involving imposition cases of the death U.S. 70 L.Ed.2d 598 for a murder that occurred finding penalty. The Florida, 103 trial in not the death Barclay v. (1983), erro- parole problem could not be addressed majority opinion dire, subject in as neously cited since to raise the is to voir holding Stephens, 462 point otherwise. Zant v. At the trial problem. cause the one 2733, 862, 235 103 S.Ct. U.S. stated into the reсord that the infor- (1983), inap- majority opinion cited prosecutor press from the mation to proof of a posite. It is concerned with clearly press irrelevant and errone- was (“sub- aggravating circumstance statutory change in Failing grant a of venue ous. history crimi- stantial of serious assaultive circumstances was an abuse of dis- these convictions”), unconstitutionally held nal 717, Dowd, v. 366 U.S. cretion. See Irvin Court; vague by Georgia Supreme (1961); Shep- 6 L.Ed.2d 751 nonstatutory the unfettered use of with Maxwell, 333, 86 pard 384 U.S. S.Ct. aggravating circumstances. 1507, 16 L.Ed.2d 600 2) giv- suppress the Failure to confession 4) and Mills should have Jurors Stilts response police- in appellant en to a penalty excused for cause at the trial. been interrogation ap- conducted initiated after possibility parole Mills about the of knew pellant represented by counsel. by it. and admitted she would be influenced Perhaps admitting appellant’s first opinion Stilts stated that he had formed an statement, May given in Indiana on appropriate that the death at approved although can be counsel juror the time of the first trial. Such a grounds that his then was not on by asking him should not be “rehabilitated” attorney for Indiana of- unrelated put opinion aside and whether he could fenses. But second statement Dowd, Thе supra. fair. Irvin v. be by police-initiated 1981 was conducted princi- application calls for situation interrogation after the accused had been ple implied presumed Penning- bias. Court, arraigned Kentucky in District Commonwealth, Ky., 316 S.W.2d ton v. appellant appointed the officers knew 221 charges question. in counsel on the Under 5) errors are: Other cumulative Arizona, Edwards v. U.S. a) repeated to collat- Error in references (1981) S.Ct. 68 L.Ed.2d 378 (1) selling drugs il- activity: eral criminal suppressed. thus obtained must be Our time”; (3) (2) legally; having “pulled de- squarely Recently, in decision is conflict. persons a list of with the fendant was on Illinois, -, Smith (4) robbery; propensity to commit (1984), L.Ed.2d thе United gun. defendant had a stolen Supreme States Court reaffirmed and reen- ruling in forced its Edwards. We are not b) repeated prosecutor’s references ‍‌‌‌‌‌​‌​​‌​‌​‌​​​‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌‌‌‍officially disagree free to with the United being only “a recom- juror’s duty as Supreme interpretation Court’s States our recent decision mendation.” See the U.S. Constitution. Commonwealth, Ky., 695 S.W.2d Ward 3) erroneously The trial court refused a change trial of the of venue the second glaring deficiency in this case is the fairness that re- problem fundamental with change of grant failure to sulted from place only three

The new trial took trial to consider the venue for the seсond months after the mistrial of prosecutor created the penalty. quoted phase. prosecutor had been unacceptable pre- problem by generating media, stating extensively in local news shut off publicity. The defense was seeking he the death be- court refused directions: the four different parole, that there potential cause of the life; limit change venue or in- to either money was an enormous amount of jurors individual voir dire accused, court refused retrying and that volved publicity exposure pretrial regarding first duty derelict in at the its group voir dire in such circumstances impossible. COOK, Appellant, Richard H. SERVICE;

PADUCAH RECAPPING Wells, Secretary

John Calhoun of La Fund), (Special

bor Cabinet Work Compensation Board, Appellees.

ers’

Supreme of Kentucky. Court 1985.

Rehearing Sept. 5, Denied 1985.

Case Details

Case Name: Skaggs v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: May 23, 1985

Citation: 694 S.W.2d 672

Court Abbreviation: Ky.