*1 SMITH, Johnny Appellant, Marshall
v. Kentucky,
COMMONWEALTH
Appellee. Kentucky.
Supreme Court of 22,
April *2 Advocate, Donna Farley,
Jack Public E. Riddell, Proctor, L. Timothy T. Sara Boyce Frankfort, Advocates, Collins, Asst. Public appellant. Stephens, Gen., Robert F. Atty. tance Reid C. of about feet twenty from Jarvis and James, Gen., Atty. Frankfort, Asst. for ap- fired the first shot into Jarvis’ side. Jarvis pellee. ground. fell to the While Jarvis pleaded life, for his approached within
STERNBERG, Justice. three again. feet of Jarvis and him shot He gun reloaded the and shot 1, 1978, Jarvis a July On third Ronnie Jarvis was killed *3 Together time. appellant the and by three blasts Simms .20-gauge from a shotgun. removed Jarvis’ shooting body roadway from the place took on a and little-used strip road, away drove in driving mine Simms’ car. After about four miles west of Greenville, distance, 16, only they a short Kentucky. August 1978, On returned to the appellant the was victim and robbed him of his having indicted for “com- wallet which mitted by leaving contained After shooting murder and kill- the scene $4. murder, Ronnie Jarvis with a shotgun profit they drove toward Central or for hire during City. and the Simms stated that robbing up course of about six miles said Ronnie the road Ricky they stopped by levy, Jarvis.” a Simms likewise discarded offense; shotgun, was indicted the then proceeded for the same and on how- to Cen- ever, City he tral where part they confessed to his in the act ran the car through and a was car wash. years prison. They appellant’s sentenced to 21 then went to After a four-day apartment they changed trial a where appellant found the their clothes guilty charged as and fixed his and discarded Jarvis’ wallet in punishment a ditch be- at death. appeal building. clothing On this the hind the appellant they which presents alleged 16 had been wearing put empty errors. was in an box and the box was thrown from the car as testimony of Ricky Simms discloses they drove to this clothing, Greenville. Of that he romantically had been involved with t-shirt, pair Simms identified a red a of Jarvis, victim, Carolyn wife of the for over shoes, bluejeans, pair a pair of and a of two killing. months to the About one socks as belonging to him. He also identi- month prior to the killing, Carolyn dis- shoes, pair fied a pair bluejeans, of a of a cussed with her Simms desire to have her socks, pair shirt, long-sleeve and some husband killed. agreed Simms to do the underwear as the clothes Smith had worn job, but did not out the carry dastardly night killing. the deed. Carolyn became incensed with him Thus get threatened to someone Simms detailed the events leading else to do job. up thereof, the days slaying, physical A few before the acts shooting the appellant subsequent was introduced conduct. Carolyn to plan and a second was killing conceived for Jarvis,
Ronnie appellant acting with I. trial court erred “The to executioner, for which he was to receive the prejudice refusing substantial to guns (six). victim’s collection of instruct that Ricky Simms an accomplice as a matter of law 1, 1978, m., On July p. at about 9:00 necessity and on the of corroboration and, Simms went to Jarvis’ home under the accomplice’s testimony.” of an pretense having that he was trouble with car, his help get solicited Jarvis’ it start- All judge proceeded counsel and the trial ed. car, The two of left throughout them Jarvis’ presumption the trial under the with driving. Jarvis Under the direction conspirator that was a to the murder Simms Simms, Jarvis drove to where Simms’ car of Ronnie At the conclusion of all Jarvis. parked. Assuming battery that counsel car, would not start Jarvis went moved to make a determina- check under the hood of the car. Simms that tion as a matter of law Simms was an moved to the rear of so accomplice the car as to be out jury. so instruct Also, the line of the fire. Appellant requested moved he the trial in- from where he hiding had been to a dis- could not be struct the alone; convicted on This testimony testimony of Simms corroborate of Simms. Commonwealth, it other evi- Ky., must be corroborated it In Mouser v. did. (1973), dealing dence connect the with the tending to S.W.2d offense; as to whether a necessity commission of that the of instructions not be person accomplice, corroboration would sufficient if it is an we said: merely showed offense was com- whether “It first should be determined Ap- mitted and the circumstances thereof. accomplice. A conviction Priddy was an 9.62, pellant provides: relied on RCr upon testimony of an cannot be had “Testimony accomplice—A convic- unless corroborated other accomplice tending tion cannot be had connect the defend- upon accomplice of the offense. unless corroborated oth- ant with the commission evidence tending Priddy er to connect the de- If was an RCr 9.62. law,
fendant with the commission of the of- matter of the court should have * * *4 fense; jury and the corroboration is not suffi- instructed the to that effect. cient if it the merely shows that offense If there was a reasonable doubt as to committed, jury was accomplice, and the circumstances whether he was an the thereof. In the absence of corroboration un- question should have determined the * * * law, as required by the court in- If proper der a instruction. as jury struct to render a verdict of not an accom- Priddy matter of law was acquittal.” have declined to plice, the court should present jury.” the issue to the judge refused to so instruct jury. all, The court only pre- instructed on First of the trial found as innocence, sumption of guilt or innocence of a matter of law that was an accom Simms accused, and that plice. agree. Having verdict must be With this we made determination, unanimous. The record reflects that while such a the trial should counsel and the trial judge pursuant were in cham- have instructed 9.62, unless, however, discussing given bers the instructions to be provisions of RCr to the jury, following ap the court made the evidence to convict there was sufficient determination: pellant testimony without the of the accom Commonwealth, plice In Mishler v. Simms. I’m
“Okay, going to delete it Al. On Ky., (1977), the trial court S.W.2d this basis: I’m one going to delete the had found as a matter of law that number objection four over Mr. Miller’s relationship accomplice existed and in Ricky on this basis: That since Simms jury pursuant structed the to RCr 9.62. It has accomplice confessed that he is an as question was therein contended that the law, pur- matter takes it out of the being accomplice an should have been sub view and that leaves the jury. mitted to the We wrote: as of law remaining part a matter for the “ * * * Ordinarily Court and a similar situation to that the instruction is upon given which the Court is called to consider when the evidence for the Com- motions for directed verdict and motions monwealth that primarily is judgment Rightly wrongly n.o.v. and other evi- accomplice objection.” sparse. show his guilt dence of Here there sufficient evidence to convict without the the trial court was labor Evidently, Henderson, testimony of which obviates ing impression under the it had the accomplice instruc- necessity for the right prerogative to determine whether tion.” the evidence constitute was sufficient therefore, need, as a matter of law We to consider Simms to determine a matter of law the evidence offered at the trial quality also it, whether met the standards whether without consider to determine 9.62, accomplice, is suffi prescribed by negate given by RCr the sub sufficiency mission of the evidence to sufficiency cient to convict. it that the was com- required merely evidence to convict is to be of such shows offense thereof,” quality under the evidence a whole mitted and the circumstances clearly it would not be unreasonable for a purpose. would have no guilty. to find the defendant came guns in which the into The manner of the accomplice, other than that ef- appellant’s possession appellant’s factual following discloses situation: forts them are circumstances to to sell 1. The Jarvis came death of about deciding Neverthe- considered in this issue. head, wounds to shotgun reason of his less, brought forth without the evidence neck and chest. Simms, is not Ricky remaining 2. Jarvis firearms: owned six are support a conviction. We sufficient to A Browning Belgian-built a. 30-0-6 ri- of the trial opinion refusal
fle. error. judge to instruct under RCr 9.62 was A .20-gauge Herrington-Richardson b. II. court “The trial erred to
topper shotgun. how the four trunk lant was identified was a hiatus between the counts. and under murder In the case (double-barrel (pistol sold rendered the two office. Ricky the trunk of his car Jarvis a .16 double-barrel Vincent. At guns, shotgun). c. f. A e. A d. A 4. On 3. TBA store A .16-gauge Browning gian-built shotgun clasp. but were gauge shotgun weapons Appellant Appellant Jones .22-caliber and .22-caliber (.22-caliber pistol, .20-gauge shotgun displaying his July appellant rifle) double-barrel In guns at control; on making that time bar, and shotgun retained (double-barrel). and the 24, 1978, July had four of these murder were found sold the 30-0-6 rifle pistol Remington single-barrel) were not car. it makes guns showed prior 5,1978, that is the to sell. an effort to sell the sold; (sweet sixteen). their time when Ronnie trying to sell the and They two of shotgun Jones’ wife sur- weapon. There to the sheriff’s time the .22-caliber automatic Bel- them to purchased no and western way single-barrel rifle. were there thing difference appellant. other killing gave into was not guns appel- Tony rifle, guns style two him at ory? and quent prior emphatically RCr with the 512 be looking offense. In of the S.W.2d 720 whether there was evidence other held not In ant with the commission of the it We must ask ourselves [*] clearly unreasonable his appellant guilty S.W.2d conviction “ * brought appellant has a 9.62, [*] Commonwealth required to, no evidence substantial a verdict of plice’s appellant The second time and whereabouts accomplice at the [*] ** sufficiency said: during ti tendency 520 (1973),we stated: Deskins v. forth witnesses the corroborative time of testimony.” denied evidence as a with the commission by to be (1974), This court has had an prejudice in not itself, and corroborating the accom- acquittal since there which tends to under to connect the so of the evidence having issue, v. Commonwealth,Ky., strong immediately but for a Bowling, alibi murder. any court, whether, when whole, would it who accounted is sufficient therefore, defense. killed Jarvis as to jury to find possible the- immediately consistently than that directing Ky., 497 offense. support *5 connect defend- dealing subse- under He if is met if requirement “The of RCr 9.62 necessary It is not Jarvis was killed. is of such gap minute of in time account- corroborative every unpreju- so, quality RCr that a reasonable phrase ed for. If that was tends to conclude that it 9.62, “(t)he is not sufficient if diced mind can corroboration
905 slaughter establish some fact degree any that links the accused first or other crime; up principal with the fact of the commis- * * * sion of the offense. (b) manifesting Under circumstances Once the testimony an life, extreme indifference to human he ring of truth means of inde- wantonly engaged in conduct which cre- pendent testimony, corroborative a con- grave risk of ates a death to another viction upon can rest thereby causes the death of person accomplice alone. Thus it is unnecessary person.” another that the corroborative testimony establish prosecu Instructions in a criminal guilt. It needs to tend to connect tion must have a source within the frame the accused with the commission of the work of the evidence trial. introduced at the ” * * * offense. Commonwealth, Butler v. 560 Ky., S.W.2d When we consider all of the (1978); Commonwealth, Ky., Pilón v. that of the accompliceas well as that not of (1977). S.W.2d accomplice, it quality is of such case, In the instant there is absolute connects the accused with the commission ly appellant no evidence that the acted un of the crime supports the verdict. The der the dis influence of extreme emotional trial court did not err in refusing to instruct for which turbance there was a reasonable the jury requested appellant. explanation or excuse. Ronnie Jarvis met cold, calculating his death at the hands of a III. “Appellant was process denied due murderer, acting under a conceived when the trial court omitted es- action, plan guns who life valued at six sential element of the offense of and a favor to his friend Rickey Simms and murder in the instructions to the Carolyn Simms’ concubine Jarvis. Since jury.” there was no evidence that acted requested the court to in- under the influence of extreme emotional struct the jury that before the disturbance for which there was a reasona could be found guilty of murder it must excuse, justification ble under the cir *6 find that he was not acting under the influ- be, as he cumstances believed them to there ence of extreme emotional disturbance for no need absolutely was for such an instruc which there was a explanation reasonable given. tion to be The instructions by or excuse. The was not so instructed. the trial proper. court were tried, offense for which was murder, is defined as follows: “Appellant IV. was denied a fair hear- “507.020. (1) person A Murder.— sentencing phase in the of his guilty of murder when: improperly when the trial court (a) With intent to cause the death of prior allowed the introduction of his another person, he causes the death of felony convictions.” person such person; except or of a third remaining This issue and the issues are any prosecution person that in a shall not sentencing portion directed toward the of be guilty under this if he acted subsection bifurcated trial. under the influence of extreme emotional provides 532.025 as follows: KRS
disturbance for which there was a reason- explanation excuse, able or the reasona- hearings Aggravating “Presentence — bleness of which is to be mitigating determined or circumstances—Instruc- the viewpoint person of a in the defend- jury. (l)(a) Upon tions to conviction of a — ant’s situation under the circumstances as pen- defendant in cases where the death imposed hearing defendant believed them to be. How- be a shall be alty may ever, nothing hearing judge contained in this section conducted. In such shall constitute a prosecution defense to a shall hear additional evidence extenua- preclude tion, or a mitigation, aggravation pun- conviction of man- and of ishment, including any prior gravating the record of circumstances otherwise autho- or pleas guilty convictions of by any following criminal and rized law and defendant, pleas of nolo contendere of the cir- statutory aggravating mitigating or any prior or the absence of conviction supported may by cumstances which be pleas: Provided, however, only That such the evidence: aggravation as the state has (a) Aggravating Circumstances: prior to the defendant to his made known kidnap- or 1. The murder offense of judge trial shall be admissible. The shall by person a with a ping was committed argument by also hear the defendant or a record conviction for of the prosecuting attorney, his counsel offense, or the offense of murder was law, punish- provided by regarding as has by person committed a who a sub- imposed. be prosecuting ment to history serious assaultive crim- stantial of open shall attorney and the inal convictions. shall conclude the In cases in argument. kidnap- or 2. The offense of murder penalty may imposed, which the death be ping was while offender committed judge sitting when without a engaged commission of arson in the pro- procedure shall follow additional robbery in the first degree, in the first (2) vided in subsection of this section. degree, first or degree, burglary in the Upon the conclusion the evidence and of sodomy or in the rape degree, in the first arguments impose shall degree. first or shall the trial for the sentence recess purpose taking murder, within the sentence his act of by offender limits If the trial prescribed law. kidnapping knowingly armed robbery, or court is reversed because of appeal on great a death more created risk of hearing, the presentence error in the place person public one in a than new trial which be ordered weapon a or means of destructive device punishment. apply only issue normally device would be other pen- lives of more than one (b) In all cases which the death hazardous imposed person. which are tried alty may upon a return of a verdict by jury, a of- 4. The offender committed the resume guilty by jury, the court shall another, for himself fense murder hear- presentence and conduct the trial a receiving money any purpose hearing shall jury. ing before Such value, thing monetary or for other pre- be conducted same manner profit. other hearings conducted before sentence 5. The offense of murder commit- (a) of this provided paragraph prisoner was a person ted who conclusion of the Upon subsection. employe engaged the victim was prison *7 arguments, judge shall evidence and performance of in the at the time the act instructions, give jury appropriate of his duties. jury shall retire to determine and the killing of 6. The act or acts offender’s any mitigating or whether multiple were intentional and resulted circumstances, as in subsection defined deaths. section, (2) of and to recom- exist killing of offender’s act defendant. mend a sentence for a or victim was state intentional and the judge findings jury, the Upon the officer, police sher- public local official or pre- the limits shall fix a sentence within at time iff, deputy engaged sheriff by scribed law. performance the act the lawful (2) In all cases offenses his duties. authorized, the penalty may the death (b) Mitigating Circumstances. consider, include or he shall judge significant has no con- 1. The for it to his instructions activity. ag- sider, history criminal any mitigating circumstances capital designation. 2. The make such In all cases un- offense was committed while the statutory aggra- defendant was under the influ- less one of the at least vating ence of extreme circumstances enumerated in sub- mental or emotional dis- found, (2) turbance even section of this section is so though the influence of imposed. (En- penalty extreme mental death shall not be or emotional disturbance 15, 2, (Ex. Sess.), ch. is not act. Acts 1976 Sec. sufficient to constitute a defense to 22, 1976.)” effective December the crime. 3. The participant victim was a in the During guilt portion or innocence defendant’s criminal conduct or consented trial, objection without to the criminal act. anyone, appel- counsel for and the engaged following lant himself dia- capital
4. The offense was committed logue: under circumstances which the defendant provide justification
believed to “Q. moral Johnny you have ever been convict- or extenuation for his felony? conduct even ed of a though the circumstances which the de- Yes, A. sir. justi- fendant believed to provide moral Q. When was that? fication or extenuation for his conduct I year A. believe the is 1970. are not sufficient to constitute a defense Q. What was it? to the crime. Breaking entering. A. 5. The defendant was an Q. you How old were then? in a capital offense committed another person participation and his capital twenty-four. A. About offense was relatively minor. Q. you plead guilty charges? Did 6. The defendant acted under duress Yes, A. sir. or under the per- domination of another Q. Appeared in Court one time and son though even the duress or the domi- pled guilty to several counts of bur- nation person of another is not sufficient glary, right? to constitute a defense to the crime. Yes, A. sir.” 7. At the time offense Ordinarily, judge, the trial before the capacity of the defendant to appreci- admitting such would hold an in- ate the criminality of his conduct hearing proprie chambers to determine its requirements of law impaired as a Commonwealth, ty. Ky., Cotton v. result of mental disease or defect or in- (1970). However, ques here the S.W.2d though toxication even impairment posed by tion was one’s own counsel. Such capacity appreci- of the defendant to hearing necessary an in-chambers was not ate the criminality of his conduct or to necessary nor was it for the to inter conform the conduct to the requirements pose. of law is insufficient to constitute a de- thoroughly had After been fense to the crime. interrogated counsel, by his own he was 8. The youth of the defendant at the turned over Attor- Commonwealth’s time of the crime. cross-examination, ney during (3) The instructions as determined course of which the record discloses the the trial to be warranted following interrogation: *8 charge evidence shall be in and in “Upon cross-examination Hon. Dan writing to the jury its deliberation. Cornette, the Attorney, Commonwealth’s jury, The if its verdict be a recommenda- witness testified as follows: death, designate writing, tion of shall Q. you I you say Did understand to that signed by jury, the foreman of the the felony? of ‘a’ had been convicted aggravating circumstance or circumstanc- precise. Three be A. to beyond es which it found a reasonable judge Q. doubt. In nonjury precise cases the Four to be isn’t? criticism of the manner peni- Appellant’s The I was sent to the charges A. on, tentiary reform school in La- brought this evidence was before which Grange, I Kentucky, believe it was merit for at least two jury is without long three It’s been a time charges. First, appellant’s of reasons. the evidence ago I’m not too definite. was, prior objec without felony convictions Q. County, All out of Ken- Jefferson tions, knowledge jury brought to the of tucky? the case guilt phase on the or innocence of Yes, A. sir. and, secondly, the Probation and Parole Of Q. dwelling charge appel One of house break- presenting ficer was the records of
ing? had, convictions, prior copies lant’s of which Yes, trial, to fur days prior A. sir. about been ten appellant by nished the Com to counsel Q. breaking? One store house charge of Attorney. pro In all criminal monwealth’s Yes, A. sir. sought, death penalty where the is ceedings Q. Another charge dwelling of house must conduct a bifurcated trial breaking? proceeding first is the proceeding. The Yes, A. sir. is phase and the second guilt or innocence Q. felony charge And a charge, sentencing phase. All evidence intro possession burglary tools. phase first of the trial is duced in the I that charge. A. do not remember phase. in the latter New admissible stipulate Mr. it? Cornette: You be proposed when to additional stipulate Mr. Miller: I that that’s the is evidence aggravation, used in that correct number. ac required made known to the to be Q. does. Alright, your lawyer sentencing phase of the prior cused to the Alright.” A. trial. KRS 532.025. During sentencing portion of the tri-
al, case, jury Attorney two the same the Commonwealth’s used the instant In witnesses, Pruitt, Joe State Probation phase or innocence guilt that tried the Bland, Officer, James Parole and Dr. G. tried the sen the trial was the Director, Forensic Facility Psychiatry Serv- permitted trial tencing phase. witness, only appellant ices. The used one had made known only such evidence as been Bresler, Elya professional psycholo- Dr. We find prior to the trial. to gist. Before sentenc- proceeding judge in no action of the trial fault with the objected portion, counsel for this instance. felony use of prior his convictions on ground the Commonwealth’s At- Y. “The trial court erred did not torney give prior notice his inten- him prejudice and denied substantial use the sentencing portion tion to them on directing a of law in not requires process trial. due The statute aggravation such as the “only on the factors verdict has to the state made known corrobo- was no evidence since there to his be admissible.” The trial shall testimony.” accomplice’s rating the is to keep purpose requirement testified fully knowledgeable accused what evi- case. guilt phase innocence of this upon by dence relied Common- first admitted on the properly wealth so that accused can make what- is, can without phase of the trial be and it. was no ever efforts he can to meet It evidence, con being further introduced in prior felony his surprise deci arriving at its sidered known to the Com- convictions were well phase. In the event sentencing sion on the and this evidence Attorney, monwealth’s required of a sentencing phase presented already then, jury, new and different guilt or of the trial. be before a phase innocence *9 event, case, may justi- there be some In the instant we have no hesitation fication or excuse to cause the evidence all the evidence finding that from of used first phase brought on the to the guilt in the or presented jury, both jury attention of the phase second of sentencing in the innocence phase trial, having it not had the advantage of 532.025,the sen- phase, required by KRS having heard the evidence on which the imposed by supported by tence it is jury predicated its guilty. verdict of There clearly is not erroneous. evidence and good is no reason to repeat jury to the same what it has already heard. sentencing and denied VI. “The trial court erred jury returned a finding, verdict “The de- by refusing to appellant process due fendant committed the offense of murder give the instructions tendered for himself or purpose another for the of appellant presentence at the hear- receiving money thing or of any other mon- ing.” etary profit,” value or for other and recom- mended that appellant be sentenced to 532.025, provides KRS death. Before making such a recommenda- case, sentencing in a guidelines tion, the jury was instructed that it must Extraordinary the 1976 adopted by Ses believe beyond a reasonable doubt that the Assembly. Appellant sion of the General appellant committed the offense of murder sentencing phase contends that in the for himself or another for the purpose of trial, guilt as well as in the or innocence receiving money thing or any other of mon- phase, judge required give the trial etary or profit. value for other This was 9.62 instruction. The RCr the finding of the jury. sentencing phase the bifurcated trial is argues that he is entitled any way proceeding not in in which there to a favorable finding on the aggravating already is a conviction. The conviction had factors issue since there was no evidence place. apply taken RCr 9.62does not corroborating accomplice’s sentencing phase. support would a finding. such In oth- instruc- Counsel for tendered words, er appellant argues what is that sentencing phase tions on the of the trial when the brought forth in the sought which he to have the trial guilt phase or innocence of the trial is add- jury instruct on the element of the ed to the brought forth in the presumption of innocence. The instructions sentencing phase, it would have been clear- would, language were couched in such ly unreasonable for the jury to find the necessity, prohibited Lave punishment argument of death. This of the death recommending imposition without credence. We have heretofore penalty. sentencing, the element of On opined that it would clearly not have been as follows: informed unreasonable appel- for the to find the “You have tried the defendant and guilty lant of murder when all of the testi- mur- guilty have returned a verdict of mony was necessary considered. It was not placed before der. From the evidence for the sentencing jury to consider you you acquainted in that trial are evidence offered on phase the second crime and circumstances of the facts trial to support finding. presenting its In will now additional itself. You receive circumstances, mitigating determine you evidence from which neither the Commonwealth nor the accused aggra- mitigating whether there are is restricted in the use of the evidence bearing vating facts and circumstances brought which was forth on phase the first After upon question punishment. justifica- of the trial. It is the element of sentence, you tion shall recommend a sentence for the final as measured who, what, when, where, considering In such evi- why the defendant. de- dence as be unfavorable to the developed phases in both fendant, will bear in mind the same proceeding. you bifurcated *10 in the No. you instruction that to “Instruction stage proceeding first of this trial to you is instructed that cannot presumes effect that the law a defendant recommend that defendant be sentenced innocent unless and are satis- you until from the you to death unless are satisfied fied beyond from the evidence a reasona- beyond a doubt that evidence reasonable ble he is guilty. doubt that You shall one of circumstances listed in Instruc- apply that same in deter- presumption entirety No. 3 true in its in which tion mining there you designate writing, whether are event must foreman, ag- bearing signed by the which of the question circumstances you be- gravating circumstances found punishment what adjudged should a doubt to be true. If yond reasonable against him in this case. to the Pursuant list- you believe both of circumstances verdict by you finding returned the de- to you ed in Instruction No. 3 be true fendant guilty of under the murder and appropriate should so indicate on the you stages presented evidence to in both form. of this proceeding you shall recom- following mend to one the Court of the Instruction No. 3 three verdicts: AGGRAVATING CIRCUMSTANCES (20) 1. A twenty years term of or more recommending In a sentence for the in the penitentiary. follow- you defendant shall consider the 2. A imprisonment term of life in the be- you if evidence believe penitentiary. true: doubt to be yond reasonable 3. Death.” 1. The of murder was commit- offense Subsequently, the court instructed the engaged ted while the defendant was writing robbery follows: in the accom- commission
plished shotgun, the use of a deadly weapon. “Instruction 1No. 2. The defendant committed the offense Now, very this is a similar situation himself or another for of murder for going you I am to read yesterday. or receiving money the purpose of change law of the case. There will be a or any thing monetary value other lawyers in order arguments by of the profit. for other today. argue Mr. will Today, Cornette or you If believe either both
first argue. and then Mr. Miller will beyond a above circumstances numbered you Then retire to with the will the room will on you so indicate reasonable doubt written instructions and select one appropriate verdict form. your again and number as foreman then begin your deliberations. 4No. Instruction This Pursuant to is the law case: CIRCUMSTANCES MITIGATING finding you verdict returned for the recommending In the sentence and under guilty defendant murder you shall consider such miti- defendant you in both presented facts circum- gating extenuating trial, stages you recommend of this presented you stances have been following three one of the Court including but limited to the evidence not verdicts: if believe from following you A twenty years 1. term of or more in be true: the penitentiary. his- significant no 1. The defendant has imprisonment 2. A term of life tory activity. criminal penitentiary. was committed 2. The offense while was under Death.” influence of extreme Instruction No. 6 mental emo- *11 though tional disturbance even jury The verdict of the must be unani- influence of extreme mental or emo- signed by mous and must be the foreman tional disturbance is not sufficient to by you.” who will be selected constitute a defense to the crime. jury returned its written rec 3. The defendant was an in a that, ommendation “The defendant commit capital offense committed by another murder ted the offense of for himself or person and participation his another purpose receiving money for the capital offense relatively minor. any thing monetary other value or for 4. The defendant acted under duress or profit.” other The trial of this action com under the domination of per- another 26,1978, September menced on and conclud son even though the duress or the 29, 1978, on September ed at which time domination of person another is not that, 9.56(2) “The provided RCr instructions sufficient to constitute a defense to attempt should not to define the term ‘rea ” the crime. sonable The appellant complains doubt.’ 5. At the time of offense the properly that the trial court did not define capacity of the appreci- defendant to “reasonable doubt.” Counsel ate the criminality of his conduct to offered instructions in which “reasonable requirements impaired of law was defined; attempted doubt” was to be how as a result of mental disease or defect ever, them, give the trial court refused to or intoxication even though the im- properly and so. pairment of the capacity of the de- argues that fendant appreciate the criminality (1) trial should have instructed the of his conduct or to conform the con- jury any that it must consider evidence of duct requirements of law is (2) mitigating circumstances and it insufficient to constitute a defense to any aggravating cannot consider factors not the crime. 532.025(2). enumerated in KRS The court In addition to the foregoing, you should statutory is not limited definition of
consider aspects also those of the defend- mitigating circumstances, but all evidence ant’s character and record which were ap would tend to excuse or alleviate offered mitigation as evidence in of the pellant’s responsibility competent, is and penalty to be imposed you and which so the jury. court instructed The court believe to be you true. Also should con- properly declined to instruct the that it sider those facts and circumstances of the any aggravating could not consider factors particular offense you have found him 532.025(2). not enumerated in KRS Such guilty of that were offered evidence to an instruction would improper. have been mitigate the penalty imposed to be appellant argues that the Com which you believe to be true. prove beyond monwealth must a reasonable doubt the nonexistence of every statutory Instruction No. 5 mitigating circumstance before the REASONABLE DOUBT could find that such circumstance did not If you have a require reasonable doubt as to exist. The statute does not such an the truth or any existence of one of undertaking. onerous The nonexistence of aggravating every circumstances listed in In- mitigating circumstance is tanta you struction No. 3 shall not make any finding guilty mount to a of not finding respect to it. If upon principal offense. Counsel you whole case have pits mitigating against aggravating a reasonable doubt factors whether the defendant should be sen- factors. He tendered instruction as fol you lows, tenced to death shall recommend weight mitigating “If the cir imprisonment cumstance^) sentence of instead. approaches exceeds trial, circumstance(s), we need reach the issues not weight cannot Marshall the selection you Johnny then sentence of the manner of propriety veniremen; As a Smith to death electrocution.” nor whether sentence fact, case; mitigating each every matter of inappropriate not of death circumstance, by mitigat- reason that it death imposition penalty whether the ing, pitted against aggravating circum- the United Kentucky violates the This is so in where one every stances. case Constitutions; whether the nor States other, pitted against set of facts is sentencing exercised discretion must decide whom believe. *12 nor the condition of the appellant; whether deficient; nor whether the record was court that such 532.025(3)provides KRS of the trial to allow failure court jury instructions should be to the pursuant to data to access collected KRS only the are warranted and error. 532.075was statutory aggravating one of the circum a required justify stances is to exist to to objections were made the No long from jury. recommendation the So in Attorney of the Commonwealth’s action jurors to properly we have instructed Simms, the introducing testimony that coin- deliberations, weight evidence the in their dictee, years 21 been to in had sentenced encroach on having without the court to testimony prison, introduction we in prerogatives, their do not need to appellant worked tending to show that the aggravat weight struct the bootleg joint, to the comments of at a and mitigating and circumstances. closing in his Attorney the Commonwealth’s ar Counsel further sentencing phas guilt the argument on and gues one circum only mitigating if absence of an proceedings. of the In the es exists, not be penalty stance death trial being brought before the issue Not so. shall imposed. penalty The death opportunity he would an so that have of the imposed not be unless at least one question, of the pass competency on is circumstances statutory aggravating preserved appellate not review issue is exist, mitigat not one found to that if v. there is no error. McDonald Com and pen death ing circumstance exists that the monwealth, (1977); 84 Ky., 554 S.W.2d imposed. alty cannot Commonwealth, Ky., v. S.W.2d Hopper an in Appellant’s (1974). counsel tendered requiring the of the struction foreman reversed, judgment and this action is writing each miti put whether Muhlenberg Circuit remanded to the is not exist. exists or does gating circumstance keeping new with this for a trial in Court 532.025(3) respect, in this provides KRS opinion. “ * * * jury, verdict be if its death, designate recommendation AKER, PALMORE, J.,C. and CLAY- jury, of the signed by foreman writing, LUKOWSKY, TON, and STEPHENSON or circum circumstance aggravating STERNBERG, JJ., sitting. beyond it found a reasonable stances which ” * * * opinion of the doubt. We are PALMORE, AKER, J.,C. LUKOW- death, where the recommendation JJ., STERNBERG, concur. SKY desig then, event, jury shall in that writing the circum nate in STEPHENSON, JJ., dis- CLAYTON beyond stances which it found to exist sent, dissenting separate and each files a that the doubt. We do not find reasonable opinion. respect. court erred PALMORE, J., separate concur- files a C. judgment In of the fact view LUKOWSKY and being ring opinion re- Muhlenberg Circuit Court STERNBERG, JJ., join. new for a versed and the case remanded Justice, STEPHENSON, dissenting. CLAYTON, Justice, dissenting. with the rever- agree I would Ordinarily I disagree majority. with the One of give an accom- for failure sal of this case prevent reasons behind RCr 9.62 is to However, we have tenta- instruction. plice finger” at accomplice “pointing accomplice rule abolish the tively decided to and, doing, principal so of reflection on the lengthy period after a Wig- nullifying guilt. his own Professor the rule. The instruction viability of more, law, in his treatise on evidence criti- have, ac- give failed to would trial court accomplice rule cized the soundness rule, jury that informed the cording to the when he wrote: it could not convict on law, legislative creation of a rule of [T]he alone, there in addition by introducing refinements of detailed tending must be some other applied jurors, definition to be has a mat- crime. We have held as connect the them merely tended to confuse there is sufficient other ter of law that words, place sounds of and to tending to connect the juggling hands of counsel a formu- set Thus, not with the crime. did practice upon las with which to *13 accomplice testimony stand- convict on the obtaining Wig- chance of a new trial. 7 the failure of the Consequently, alone. more, (Chadbourn Evidence rev. § give accomplice to the instruc- court 1978). absolutely no tion is a formal error with appellant at all. With the prejudice to the Additionally, recognizes this court this tech- being there is no accomplice rule abandoned nical rule to be so weak that we are tenta- giving the longer a valid reason to enforce tively disposed to abolish it. instruction; accordingly, I would not of the present appropri- This case does not the formal error. reverse on this legal ate context in which the rule becomes operative. “tending There was evidence PALMORE, Justice, concurring. Chief (appellant) connect the with commission of the crime” corrobo- regrettable this case must be It accomplice’s testimony. rated the this Once layman that to a would grounds reversed on fairly minimal standard of corroboration appear merely technical. met, here, question
has been as it was 9.62, purpose pre- of which is to RCr accomplice’s then becomes one of the credi- being solely convicted vent an accused from And, bility eyes jury. accomplice without of an out, Wigmore points “credibility is a matter him with tending other evidence to connect variety, impossible of elusive and it is charged, has the commission of the offense in anachronistic determine advance It was history years. of some 200 long story . a man’s must be dis- part of our law expressly made a Wigmore, supra. trusted.” 7 1854, in Assembly in and remained General carried Practice until Code Criminal particular I would hold that under this fairly Until recent into the Rules was in a better fact situation the trial enforced, in that it rigorously times it was that he position to make the determination reversible error for invariably was held a I believe properly. did and that he acted any on it in trial court not to instruct the court is mistaken in this case to substi- suggest- there was evidence case which judgment tute its for that of the trial court. prosecution was ing that a witness for the greater It even a mistake when the case fortiori, the witness A when accomplice. an grounds is this and the for reversal serious of law to have been was found as a matter are this thin. necessary to absolutely it was accomplice convic- judgment I would affirm the convict on his testi- instruct not to course, That, is this case. mony tion of the trial court. alone. sentence past years few the rule has been Over has
eroded to the extent this court instruct on
declined to reverse for failure to corroborating evidence point when the conviction strong enough support That, testimony. the accomplice
without
unfortunately, this case. is not presently our court as members of re- Wigmore’s misgivings
constituted share accomplice
garding soundness also that recent deci- recognize
rule. We Indeed, fudged have on it. we are
sions by eliminating it
disposed abolish law, Nevertheless, is the as of now it
rule. tried. it was law when this man was richly he deserve the electric
Though may
chair, join reversing those us who do that a
judgment principle so because has to be right
man or woman on trial is more
tried accordance the law
important any individual case. than sound, not be and it may rule it very longer, not be law much but and, tried, the law when this man was *14 worth, is entitled
for whatever it he Sternberg, protection. Lukowsky
to its
JJ., join concurring opinion. in this COAL
KENTLAND-ELKHORN Movant, CORPORATION,
v. al.,
Agee Respondents. et SLONE Kentucky.
Supreme Court 13, May Pikeville, Baird, Baird, & John H. Baird
for movant. E. Johnson, Pikeville, Kenneth
Gary C. Labor, Hollis, Counsel, Frank- Dept, of Gen. Counsel, Shadowen, fort, Asst. Cyril E. Louisville, Camp- Labor, Donald Dept, of