*1 SOMMERS, Appellant David Louis KENTUCKY,
COMMONWEALTH of
Appellee.
No. 89-SC-882-MR.
Supreme Kentucky. Court of
Sept. 24, 1992.
Rehearing Denied Dec. *2 (Sherry)
beth Sommers. In 1988, girls’ petitioned mother the dis- appoint trict court the Sommerses as her guardians. daughters’ failed to Sommers appear hearing, the guardianship at and granted. petition was never officially continued girls to live with the Som- merses, however. 1, 1988,
On December the Sommerses’ destroyed by house fire. Carrie’s Stephanie’s bodies were discovered Forensic tests ruins. indicated deaths had not resulted from fire or inhalation, from smoke rather from but physi- suffocation fire. Other investiga- cal evidence indicated to arson deliberately tors that fire had been set. 15, 1988, On December on indicted two counts of murder. The Commonwealth’s thesis was that Sommers previously girls sexually; abused the had killed them in order to silence them; and that he had burned house in attempt to conceal the homicides. I. PRE-TRIAL ISSUES A. RECUSATION appeal The first issue raised is whether the trial discre abused his denying tion in defendant’s motion recusation. indictment,
After the in late December gave the news media the case exten- Allison, Advocate, Marie Asst. Public coverage. particular sive Of relevance Frankfort, Dept, Advocacy, Public reportage appeal, this included inter- appellant. views with unveiled criticism of Dis- Gorman, Atty. Chris Gen. Denise Judge Graves, trict presided Court who had McElvein, Gen., Garrison Atty. Asst. Crim. guardianship proceedings begun over the Div., Frankfort, Appellate appellee. in September. examples We cite coverage, all taken media from the Padu- COMBS, Justice. 15, 1988, On under cah Sun. December David Louis Sommers convicted in front-page banner “Sommers indicted McCrackеn Circuit Court of two counts of deaths,” sister “Of- sub-headline murder, and sentenced to two consecutive say system ficials failed due to lack of 500-year imprisonment. ap- He terms of personnel,” knowledge, paragraph the lead peals as a right. matter of read: sisters, 13-year-old County Judge The victims were Bill McCracken District and 12-year-old Stephanie Carrie VanMe- said if he had more about known In girls’ background Sommers, ter. summer of David L. parents apparently them in the probably granted abandoned would not him neighbors, of their guardianship teen-age care David Eliza- limited of two no- murdering protect he is these two because accused of earlier chance help. for its body this month. ever asked interview, reported on De- yet The article on: another went 22, 1988: cember “Hindsight 20-20, always these but *3 if documents had routine,” said that types guardianships Graves are presented to him he would have been Graves said. guardianship obligated under the sign law to them.... Why were Sommers and his former 29, 1988, story appearing A on December wife, drug who were under indictment on change says under the headline “Graves charges, granted guardian [sic] law,” began: guardianship in needed state’s Sept. two 26? ... was The fact that David Sommers trafficking charges he facing drug signed Graves said that at the time he sought guardianship of two sisters whom guardianships for the in VanMeters allegedly he not in itself killed later was September, he wasn’t aware Som- him, enough against to rule District mers had been indicted two months earli- Judge Bill Graves said. drug charges.
er on four He also said he wasn’t aware Graves said thаt had Sommers been charged Sommers had been a month ear- jail on that warrant when abuse] [sexual County lier in Christian with sexual scheduled, hearing “I petition five-year-old girl. abuse of a (guardianship) could refused him following day On the reported: the Sun capacity because that relates to his Judge District Bill today Graves said girls. for the he made care But once signed petition by Angela that he never bond, eligible again.” he’d have been making VanMeter Sommers and his ex- 1989, Judge ap- January Graves was wife, Elizabeth, girls’ guardians. pointed judge, until interim circuit to serve (in election he November which was candidate). Judge capacity, In that Graves Graves said he didn’t have all the evi- presided over trial of the instant Thursday dence when he told The Padu- began which on October apparеntly signed peti- cah Sun he tion, validating it. 11, 1989, defense, On cit- (the
ing KRS 26A.015 and SCR 4.300 Code Conduct), Judge of Judicial moved signed “I assumed I routinely,” argued to surrender the case. The defense today, explaining why Graves said Judge impartiality might rea- Graves’ thought signed paper. he had sonably questioned in of all the be view appearing An editorial on December circumstances—his involvement 1988, and protects entitled “Who the chil- guardianship proceedings, his statements dren?” commented: following indictment, press his every step So there were failures at knowledge extra-judicial of Sommers’ back- tragedy: this ground, and his insistence on an October Judge handling Graves’ casual being 23rd trial date while a candidate for these serious matters means that he November, juxtaposed election with the probably would have entrusted two publicity adverse which had received as young girls to the care of a man under girls’ a result of the deaths. drug indictment and with a child-molesta- C(l) provides, Canon 3 of SCR 4.300 pending. tion warrant part, judge disqualify that “A him- should proceeding in impartiali-
self in a which his state, variety ty might reasonably questioned....” 4. The which has a wide be services, protection According of child didn’t have a to KRS 26A.015: (2) Any justice presumed responsible Court the unfavorable Justice disqualify embarrassment, ... shall himself in publicity, and likely any proceeding: Judge subjected. which Graves was
negative information about Sommers was reading likewise available to view- (e) knowledge Where he has ing public, perhaps who also absorbed the impar- other circumstances in daily press biases exhibited in the cover- tiality might reasonably questioned. be age. Aware as well of much of the state’s totality, Viewed circumstances of the evidence, surely public generally be- persuade Judge instant case us guilty, likely lieved Sommers more than impartiality might reasonably Graves’ *4 not, applaud and would a conviction. It questioned, Judge and moreover that argue would not be to unreasonable that knowledge Graves had these of circum- Judge gain significant pub- Graves stood to stances. by conducting lic favor a trial in which a Underlying coverage the media concern- guilty high- verdict returned in this Judge ing and guardianship Graves the profile shortly before the November question were the more or less concealed election. presumptions the that deaths were homi- itWere not for this last cоnsider guilty. cides and that Sommers was Ab- ation, might swayed by be Common we the presumptions, sent those there would have argument the wealth’s that motion recus- been no reason link conspicuously so ing not timely may filed. It well be indictment of Sommers with criticism of impar judge’s unreasonable to a system,” particularly Judge “the and tiality months after all the circumstances coverage began Graves. The with the known, tending justify challenge are premise child-protection system that substantially pro has after case failed, explore had and undertook to how Here, however, gressed. setting the order why. premise But the itself was valid for case trial on October and over if only presence the children’s with Som- ruling the defense motion to set trial exposed peril, mers them to unusual February, August 30, wаs entered on in turn was only evident if Sommers was of proximity This the trial date to guilty. forthcoming election, all view of The same Judge bias attributed circumstances, and, was a substantial we say ”; system Graves: “Officials failed ... believe, not in the mo unreasonable factor says change “Graves needed in state’s tion of recusation filed on guardianship law.” From his own state- Judge integ- We are confident of Graves’ peti- ments that he denied the rity. doWe not conclude that he enter- tion had he been aware of Sommers’ back- bias, judicial tained a conscious or that ground, that, his “Hindsight always is 20- performance by improper was influenced 20,” one might reasonably Judge infer that Graves, sub-conscious motivation. But the issue is otherwise, consciously or in fact Judge not whether was in fact im- presumрtion. shared While some of his issue, partial. i.e., On the true whether his clearly explanation statements constituted impartiality might ques- court, reasonably be procedures these state- tioned, hold under we that the circum- event, as did clearly ments not. In stances it was indeed reasonable appears objective Judge to an that observer question Judge Graves, impar- defense to too, Graves’ that felt the law had failed. tiality, and that denial of the motion of said, publicly expressed As we have that recusation constituted an abuse discre- necessarily a presump- view carried with it tion. guilt, tion of Sommers’ which could be knowledge reinforced that Sommers had B. DEFENSE EXPERTS crimes, charged including other with sexual
child
abuse. And if
appeal
Sommers was
second issue on
prеsumably guilty it
that he
denying
follows
was whether the trial
erred in
court
Commonwealth, Ky., 734
pathol-
funding
defense motion for the
Smith
(1987),
had ad-
the defendant
S.W.2d
ogist
investigator to serve as
and an arson
peo-
killed a number
mittedly shot and
and/or witnesses for the de-
consultants
pathologist
funding for a
ple, yet requested
fense.
affirmed the
expert. We
and a ballistics
indi-
It is conceded that Sommers was an
funding, saying:
denial of
gent
Recognizing
pro-
due
defendant.
mental
prove
seeks to
his
Here Smith
requires
indigence may not de-
cess
testimony of either
ballis-
state
right
prive a criminal defendant of the
crime scene reconstruc-
tics
defense,
31.110(1)
present an effective
KRS
We do
believe
tion witness....
provides
needy person charged
with
claims
expert assistance Smith
serious crime is entitled:
his de-
anything
to do with
needed
(a)
attorney
represented by
To
be
that the murders were
fense which was
having
person
to the same extent as a
wanton,
The evi-
than intentional.
rather
entitled;
so
own counsel is
avail-
he believed he needed was
dence
(b)
necessary
provided
through
To
with the
the use
state
able
advantage
representation
facilities. He did
take
services and facilities of
*5
At
trial he
available.
including investigation
prepa-
the assistance
and other
the firearms exam-
cross-examined both
courts in
the defen-
ration. The
which
sergeant
charge
police
and the
iner
dant is tried shall waive all costs.
,the
The
investigation of
homicides.
the
provides:
KRS 31.185
he had
examiner indicated that
firearms
Any defending attorney operating un-
coopеrated
case with and
discussed the
provisions
chapter
der the
of this
is enti-
the
attorney.
defense
Under
with the
tled to use the same state facilities for
circumstances,
appear that
it does not
the evaluation of evidence as are avail-
independent
of an
ballistics
the services
representing
attorney
able to the
the
reasonably necessary.
expert were
If
Commonwealth.
he considers their
at
Id.
impractical,
may
use
the court concerned
Commonwealth, Ky.,
In
Simmons
private
to
authorize the use of
facilities
(1988), the defendant was
4. Because the duties of this would be conflict of interest to abe II. GUILT/INNOCENCE “court-appointed defense consultant” in PHASE ISSUES any especially but cases which might this office be a material on A. EVIDENCE witness of the behalf Commonwealth. 1. OTHER CRIMES Appellant argues prejudiced that he was If forced to act as a defense con- playing jury tape- bеfore sultant, place any this would member of given to a recorded interview which he had position the Fire Marshal’s Office in the newspaper reporter shortly after the indict- having report any incriminating evi- interview, ment. In the Sommers men- dence the course of said assis- separate pending charge tioned a of child consultation, tance for and this would Objection sexual raised to abuse. been practical create difficulties both for the playing tape grounds that it fire marshal involved as well as the de- provided previewed had not been to nor Further, lawyer. fense person said However, the defense. counsel acceded to placed position testify- would be the court’s decision to allow review of the ing, effect, against fire аnother mar- tape jury. after it had played shal. The Commonwealth maintains that the is- presented Counsel also the affidavit of preserved. sue has question not been Captain Fentress, Larry Legal Officer with admissibility squarely framed. Police, Kentucky State which affidavit reversing Because we are on other included: grounds, unnecessary it is to discuss this 8. Affiant assignment states that the Surely prior in detail. to a second officer, police of a state to take sworn trial, opportunity the defense will have an upon probable law enforcement cause to recording to examine the and move for believe that violation of law has oc- *7 presented jury. redaction it is before curred, to assist in the defense of a crimi- Appellant complains also of а reference defendant, places nal the officer in a charge by Sherry to the sexual abuse Som- position possible conflict of interest mers, a in Commonwealth’s witness rebut- should he discover additional incrimina- Again questions tal. the Commonwealth ting evidence the course of his preservation, alleged and whether the error public assistance to the defender. prejudicial. reversing As was we are The defense informed the court that it had grounds, other we need not decide the issue contacted a independent number of ex- present posture. in its perts, eye economy, with an present- ed estimates of the costs. The defense Appellant jury maintains that that, request moved should the indepen- that was made aware Sommers had been deniеd, dent be the court “at an charged drug trafficking. with A witness appoint absolute minimum” the office of drug for the trafficking defense mentioned Examiner, the State Medical the State Fire charges against Sherry Sommers. The Kentucky Marshal’s office and the State prosecutor objected, adding, not “We’ve consultants, provide Police to un- brought up, going if but he’s to talk der confidentiality. orders to observe Sherry drug trafficking about and her us,
To it is charge, ought clear from the record that the I think he to be admonished story.” defense demonstrated “reasonable necessi- to tell the whole The court in ty,” and was entitled to the assistance of structed the witness not to mention other pathologist crimes, indepen- following and an independent prosecutor which the equivalent. cоmmented, “Well, dent arson or the hardly We it seems fair to now, Honor, hold that the denial of the motion to your autho- me that Mr. Sommers has not been in being prosecutor mentioned that same situa- child molester. The in- tion.” The preserved, quired was not but as to for her the reason accusation. it is prosecutor’s Upon objection hearsay, manifest that com- in- the court ments, court, open repeat jury informed the not to state- structed witness prejudicial evidence, properly facts not ments made others out of defen- testified, repeated presence. should in the of dant’s She then with- event objection, a second had trial. out further that she had girls, the VanMeter as a conversations with THE 2.“CHOKE BABY” she, which result of conversations then together, she and the confronted Som- neighbor A of the Sommerses testified mers with the accusation. She described for the Commonwealth that two- Sommers’ his reaction: year-old (whom daughter he had removed house), burning it, from the playing [F]irst, deny while he tried to but then fire, neighbor’s with the sorry son after the had said he did it and and he put her hands around his neck and shook again. would never do it him, saying.... Upon objection, the wit- occasion, On according another to the wit- ness was quote not allowed to the child. ness: defendant, Later, cross-examining the said, you “I again He told I'd never do it prosecutor referred to the described inci- won’t, anybody and I but if ever finds dent if and asked Sommers had observed out, you I’ll kill all.” activity similar in his own house. Som- Appellant complains that the testi- now responded mers that the conduct resembled mony implies very hearsay to which game, baby,” Sherry “choke raised, i.e., objection had that the chil- frequently played had with the child. dren told the Sommers had witness that closing argument, prosecutor inaccu- had molested which the them. fact rately paraphrased neighbor’s original seeking prove, Commonwealth testimony to be: homicide, order motive to establish a girl up said the little went to her [S]he sexually was that abused put own son her ... hands around his truly damaging children. The evidence choking said, neck and started regard testimony Som- baby, “Choke the baby.” choke the mers had admitted the fact. The evidence argue: He went on to as to the circumstances which culminated Well, gentlemen, ladies and as sick and for the admission was offered seems, just as sad as it if little what proving content, purpose of its own but saw murder her house that [child] merely provide foundation. Admission *8 night and reenacted for us over there proper present of in that evidence was the next door ?... context. object ques- did The defense not 4.REMOTE FELONY
tioning prosecutor’s Sommers nor the argument. original objection The been had The defendant testified in his own sustained, and no further relief was re- prosecutor’s question The first on behalf. quested. We will therefore not the review cross-examination was whether Sommers issue, observing beyond medical felony. had ever been convicted The positively examiner had testified that the objected grounds no hear not manually strangled,” victim “was ing had held to determine whether the question which invites one to the relevance unduly prejudiced by defendant would be episode. of the entire such evidence. Commonwealth v. Rich ardson, Ky., (1984). 515 After S.W.2d
3.HEARSAY
brief
conference
which the
bench
Sherry
was called as a
court
informed
was
that Sommers had been
burglary
eighteen
testi
years
witness
the Commonwealth. She
convicted
some
before,
fied
objection
that she
accused the defendant of
overruled. The
present
answered,
had not been
“Approximately 17 or 18 record
that he
witness
showed
by counsel.
years ago, yes.”
guilty plea was entered
The defense did not re-
Alabama,
quest
jury
that the
be admonished to con-
v.
395 U.S.
Boykin
Cf
.
(1969).
respect
sider the evidence
L.Ed.2d 274
While
with
89 S.Ct.
credibility.
Commonwealth,
See Hall v.
controls
are
convinced that Woods
we
not
(1991).
Ky.,
enhanced for a of dissents suppression separate opinion, fense entitled to of evi in which REYNOLDS and SPAIN, JJ., join. dence of the earlier conviction where 888
REYNOLDS, Justice, dissenting. sions heard evidence about defense ex- perts. suggestions trial judge The offered Respectfully, I dissent. regarding persons the defendant could con- The trial court did not abuse its discre- sult, actually but few were utilized. appellant’s tion when of motion recusation Contrary opinion, to the majority ap- 26A.015(2)(a), (e) was denied. KRS pellant could have had assistance of 4.300, C(l) provide SCR Canon 3 a that experts, state but indicated he did not judge disqualify pro- should himself in experts want the use of state or facilities. ceeding personal where he has a or bias Sommers maintains that refusal was based prejudice concerning party and that a experts on the that the fact state were not judge disqualify any pro- should himself in loyal” “defense or “defense oriented.” In ceeding in impartiality might which his rea- essence, expеrts had conducted “di- sonably questioned. research,” is, sup- rective research to comments, judge’s The trial which were port appellant, a certain conclusion. The motion, the basis of the recusal were not however, challenged experts never at reasonably questioned by appellant. The hearing. either The court is not only recusal motion was made some three determine, ready position to nor should it trial; weeks before commencement of be, particular expert prosecu- whether is made nine after months the comments torial or defense oriented. judge; the trial and only made after the Additionally, appellant trial had ruled 19 different de- never made a showing counsel fense motions. The mo- clear as to his experts recusal what would tion, remarked, as the Commonwealth show in what manner his would not should be used as last Appellant resort po- assist him. mentioned other hearings the outcome witnesses, on motions and do expert tential but failed to men- meet not with counsel’s desires. tion the name some them esti- Clearly mates of cost. courts trial are majority appellant’s concedes recusal required provide not funds for defense timely motion was speculates, filed. It fishing Hicks; expeditions. counsel’s Sim- however, ruling, inwas Commonwealth, Ky., mons v. 746 S.W.2d election, proximity forthcoming close (1988). There no violation of due was a factor in the judge’s trial decision. process provide expert in the refusal to Why should .speculate this Court that a where the defense offers little judge’s political decisions are in the ab- witnesses undeveloped more than an assertion that sence direct evidence? Should in-we requested helpful. assistance would be scrutiny speculation crease our so as to Hicks, supra. Appellant’s assertion was judicial high profile invalidate decisions simply fishing expedition to find a de- year? cases an election This Court fense oriented testify is not be cast in the role of second favorably. type This activity should not guessing trial court decisions the ab- be condoned. sence a clear abuse of discretion. issues, remaining except for the in The trial court did not abuse its discre- conviction, prior felony troduction of the denying
tion in the defense counsel’s mo- either, majority concedes, were as the funding pathologist tion for and an preserved or question harmless. The investigator. arson It is axiomatic that appellant’s prior felony properly pre indigent defendants are entitled to reason- sented the Commonwealth. ably necessary expert Common Young assistance. Commonwealth, Richardson, Ky., wealth v. Ky., S.W.2d 378 S.W.2d 515 (1984). (1979). permitting Prior to Implicit this standard is that *10 trial some discretion rests court should have with the trial court. determined the effect, Commonwealth, prejudicial however, Ky., v. trial Hicks 670 S.W.2d court (1984). 837 trial held a discretionally prejudi court bench conference as to the public expend declined to objection funds for defense cial effect after the defense experts. The court on appellant’s two different occa- before was answer. This harm
889
asserting disqualification is
instance,
Promptness in
less in this
since the
convic
awaiting
party from
appellant subsequent
necessary
prevent
which the
to
tion about
ly
years
taking
17
18
old.
testified was
See
action. Crow
the outcome before
Richardson, supra.
(6th Cir.1984).
Conlan,
I affirm the conviction. in- record shows that Sommers murders on December' dicted for the WINTERSHEIMER, JJ., join SPAIN newspaper items of the seven 1988. Six this dissent. publish- Judge were mention Graves WINTERSHEIMER, Justice, dissenting. December, or his 1988. Sommers ed filing nine months before counsel waited ma- respectfully I must dissent from the 11,1989. September on his motion to recuse jority opinion judge did because trial not his discretion when he refused to abuse by represented Originally, Sommers was himself, judge and the trial did not recuse prior lawyers who filed 27 motions two his discretion he deniеd a mo- abuse when filing of the motion to recuse. the date of pathologist and tion for a defense-oriented 22,1989, motion Sommers filed a On March expert. arson change of and the memorandum venue Sep- on The motion to recuse was filed approxi- contained support of the motion 11, 1989, approximately 4 tember weeks mately newspaper articles. Of these 25 the scheduled trial. No affidavit before support the mo- reproduced nine are motion, support was filed in but was filed six months tion to recuse which copies newspaper of ten articles were at- Consequently at least two of later. the memorandum filed tached to Som- Judge Graves’ defense team were aware mers’ counsel. Seven of the articles men- 22, 1989, press by March statements to newspaper Judge tioned Graves. The arti- change of venue was when the motion for Judge cles indicated that Graves made re- these state- made. If Sommers believed reporter checking marks to a without complaint provided ments a basis for judge reporter records first. The told a judge, he part of the trial about bias on judge signed pa- that as a district he had him at that should moved to recuse pers granting guardianship Sommers’ over motion was time. The 1989 children who had died in the fire. two trial the October made four weeks before Judge later Graves corrected his comments time, Judge Graves had By date. spoke reporters clarify what had motions approximately on 19 defense ruled happened actually in district court. The already conducted numerous hear- and had petition appoint mother had filed a Som- of the case. ings related to the substance guardian mers of her two children and A the record demonstrates review of Judge stated on that he never ruled considerable work Sommers waited until ap- the matter because Sommers did not file his motion to completed to had been pear morning in court on the sched- used as a recuse. Recusal should hearing. Consequently, Judge uled the outcome of motions last resort when sign nor did he Graves never saw Sommers please any counsel. hearings do not granting guardianship him an order by the two children. The school attended entirely Although it is not clear from petition present- two treated the initial record, entered the a third defense counsel them the mother and Mrs. Som- ed to original be- picture one of the team erroneously mers as a court order and thus signed motion to recuse was came ill. The guardianship of Sommers on indicated A review of the by the third counsel alone. the school records. irrita- indicates that there was some record part judge of the trial directed tion In this situation the motion to recuse possible to the new third counsel for timely provided trial filed as delay bringing the motion to recuse. Commonwealth, Ky., Kohler v. nothing to indicate that the brief (1973) There is Murray v. Com S.W.2d (1971). defendant. monwealth, irritation was directed to the Ky., 473 S.W.2d *11 890
The new counsel was
put
later allowed to
for the
Young
evaluation
evidence.
v.
in by
what
avowal
his witness would
Commonwealth,
Ky.,
No petition mention was made of A
guardianship. review of the conduct of judge during trial the trial reveals no
evidence or impartiality. of bias See Mar- Commonwealth, Ky.,
lowe v. 709 S.W.2d (1986). BILLINGS, Aubrey Appellant, Marion The trial also did not abuse his discretion denied Sommers’ motion for funds pathologist for defense-oriented Kentucky, COMMONWEALTH of expert. arson Appellee. Sommers stated that he did not want to No. 91-SC-317-MR. use state or facilities because such Supreme Kentucky. Court of impractical facilities were all the wit- nesses were for the Commonwealth. Dec. Clearly has argument waived inaccessibility about the state facilities.
They were available to him but he did not accept
choose to their assistance. provides indigent
K.R.S. 31.185 de-
fendants are entitled to state use facilities