Springer v. Commonwealth

Kimberly SPRINGER, Appellant, Kentucky,

COMMONWEALTH of

Appellee. Eades, Appellant,

Alexandra Kentucky, Appellee.

Commonwealth of

No. 96-SC-502-MR.

Supreme Kentucky. Court of

April 1999. 3,May

As Modified 1999.

Rehearing Sept. Denied 1999. 21,1995. wife, Kimberly May

hours of His sister, Alexandra Springer, and his wife’s Eades, mur- jointly charged with his murder, Eades day der. On the fatal police confessed to that she fired the being shot and confessed to trial, accomplice. At claimed she and killed her husband because of shot physical and sexual abuse which he had her, of his inflicted and because sexually daughter. threat abuse her kill- Eades denied involvement ing. principal Eades was convicted as the accomplice mur- as an to the thirty years der. Each was sentenced to imprisonment. appeal Both to this Court right. Ky. as a matter Const. 110(2)(b). The claims of error are that (1) appellants the were not the allotted (2) strikes; proper peremptory number of their respective confessions should have (3) suppressed; prior been sex- ual by Springer acts should have been (4) (5) suppressed; and im- the properly respect instructed with to both (6) defendants; the evidence was insuffi- (7) conviction; support cient to Eades’s judge improperly scope trial limited (8) dire; voir counsel ab- stages proceedings; sent at critical of the (9) at sentencing, Springer and was denied exemptions domestic violence from 533.060(1) 439.3401(4). and KRS Ransdell, Thomas M. Assistant Public I. PEREMPTORY STRIKES. Advocate, Department Advocacy, of Public judge The trial seated one alter Frankfort, KY, appellant for Springer. juror peremptory nate and allotted nine Hoffman, Richard Assistant Public Ad- strikes to the Commonwealth and a total vocate, Department Advocacy, of Public peremptory appel eleven strikes to the Frankfort, KY, appellant for Eades. lants, jointly nine to be exercised and one Chandler, III, General, Attorney A.B. to independently each be exercised Frankfort, KY, Jr., Floyd, Samuel J. As- claim that Appellants they other. General, Attorney sistant Office of Attor- at peremptory entitled to least twelve General, ney Division, Appellate Criminal they strikes. We conclude that were enti Frankfort, KY, appellees. tled to thirteen. 15, 1990, COOPER, September Prior to RCr 9.40 Justice. provided part in pertinent as follows: single Ernest was killed (1) gunshot temple charged felony, wound to his left while If the offense is a (5) asleep early in his bed during morning the Commonwealth is entitled to five peremptory jointly pursuant and the defen- to be exercised to challenges RCr (8) 9.40(1), and one each exercised jointly eight dant or defendants to be inde- 9.40(3). If pendently pursuant to RCr one peremptory challenges.... (alternate) jurors or two additional are (2) (1) (2) If one two additional seated, defendants are entitled called, jurors peremp- are number of peremptory challenges: total of thirteen tory challenges each side shall allowed jointly pursuant nine to be exercised by one be increased 9.40(1) (2); RCr one each to be exer- (3) If more than is be- one defendant independently pursuant cised to RCr tried, may the court discretion ing its 9.40(3); additional one each to be peremptory challenges allow additional pursuant independently exercised RCr defendant. to each 9.40(2): Rule, this version the trial Under (cid:127)— 9.40(1) side) (per RCr — (one 9.40(3) per if tried RCr defendant latitude in granted substantial jointly) (or not) allocating peremptory additional — (one 9.40(2) if RCr “each side” alternate challenges E.g., Turpin codefendants. seated) jurors — 9.40(2) (one if RCr “each defendant” al- 780 S.W.2d 619 seated) jurors ternate cert, denied, 494 U.S. 13 total. 108 L.Ed.2d 769 Smith judge interpreted The trial subsections Commonwealth, Ky., (2) (3) mutually Rule as exclu- 15,1990, September RCr Effective sive, reasoning provision that the sub- (underlined 9.40 was amended follows (3) allowing each defendant “one section added, portions portions crossed-out delet- peremptory challenge additional to be ex- ed): if independently” applies only no ercised (1) If charged felony, the offense seated, jurors and that alternate are the (5) five the Commonwealth is entitled to (2) per- in the provision subsection peremptory and the defen- challenges emptory challenges for “each defendant (8) jointly eight or defendants dant (1)” applies by be increased one shall peremptory challenges.... However, jurors if alternate are seated. (1) (2) (2) If one additional two fact interpretation ignores the this called, peremp- jurors are the number of (3), defendant without subsection each challenges side and tory allowed each peremptory not have an does “additional by one each shall be increased defendant challenge independently” to be exercised (1)” by be one in which “shall increased (3) If than is be- more one defendant Al- jurors the event alternate are seated. tried, may at its discretion ing [the-eourt 9.40 though the 1990 amendment of RCr n challenges peremptory arrangement allow additional in an of resulted awkward rule, intent each be entitled to of that the to] defendant^] shall the subsections chal- If more than peremptory at least one additional the amendment is clear. one tried, is enti- is defendant lenge independently to be exercised defendant each peremptory tled to at least one additional any other defendant. challenge independently; to be exercised (1) amended, effective Subsection jurors are and if one or two alternate 1, 1994, to the increase Common- October trial, per- additional seated at those eight. peremptory challenges wealth’s each for a emptories by are increased one Thus, peremptory the basic entitlement to per total of two defendant. 9.40(1) eight for challenges under RCr Mut. eight for de- Farm Bureau Kentucky the Commonwealth and Cook, than is be- Ky., If more one defendant 590 S.W.2d 875 fense. Ins. Co. tried, (1979), to a held that an erroneous alloca the defendants are entitled we ing challenges is sub- challenges: eight peremptory tion of peremptory total of ten. jeet analysis, quested pro- to harmless error and that to make a statement. She good “reversal and new trial should be tested that this was not a time to be award- interrogated, up ed as a matter of law.” Id. at 877. because she had been all night drinking smoking marijuana. Thomas v. cert, (1993), denied, However, request S.W.2d 252 510 U.S. did not counsel and specifically right against L.Ed.2d 564 did not assert in principle gave we reiterated this self-incrimination. then a state- She that, any context of a criminal trial and held ment in which she denied involvement specifying per- Springer. rules the number of of Ernest The “[t]he the death emptory are not themselves challenges police among mere technical- officers discussed ities, they rights respective are substantial and are to the contents of the statements fully According- by be enforced.” Id. at 259. and Eades and conclud- given ly, this case must withholding be reversed a new ed that the sisters were infor- appel- They trial because of the failure allot mation. decided to “run a ruse” on proper lants the number peremptory Eades. strikes. Because the other issues raised had homicide There been unrelated appellants likely upon are to recur at the residence months several retrial, those issues will also be addressed earlier, following neighbor, which a Mr. opinion. this Shide, had taken it himself to use his police intercept scanner to cordless tele-

II. CONFESSIONS. phone emanating the Springer calls from police arrived at resi- residence. He used video recorder dence approximately at 5:25 a.m. on the tape the contents of these calls and fur- morning May began 25 and their crime police copy videotape, nished investigation, scene completed which was which recordings included Ernest approximately Springer, 8:10 a.m. Springer’s voice. The recorded conversa- friend, Cardonas, Eades and a Juan re- generally tions were innocuous and con- living mained room of the residence nothing tending tained to incriminate the during phase this Al- investigation. Al- activity. conversants criminal though appellants claim they were denied though recordings nothing had to do family access to during friends investigation with the of Ernest period, police ingress/egress re- log death, police officers decided to use the and judge Ruby flects the trial found that videotape to convince Eades Eades, appellants, mother of the ad- was Springer was being residence electronical- mitted to the residence at 6:10 a.m. and and, ly activity monitored for criminal .m., remained until a 8:10 and that at least thus, they already knew who had family three other members or friends Springer. killed Ernest present were also in the residence for p.m., At approximately 2:00 Eades was .m., periods shorter of time. At a 8:10 again rights. advised of her Miranda She appellants both left the residence and ac- police was told that the had been monitor- companied police police officers to the sta- ing Springer residence and Shide’s tion. videotape played support was of that a.m., approximately At Springer during 10:20 assertion. times this inter- Several stated, was informed of rights pursuant rogation you her to Eades “I can’t tell Arizona, 436, you,” Miranda v. 384 86 “I you U.S. S.Ct. what want me to tell or can’t 1602, it, gave going Although 16 L.Ed.2d 694 and a it’s to hurt” Eades do thereby invoking statement which she denied involve- now claims that she was silence, ment in death of At right her husband. her to the officers believed a.m., approximately 11:55 Eades was ad- that her statements reflected her de- rights protect They persisted vised of her Miranda and was re- sire to her sister. 446 Bustamonte, and, 218, interrogation ultimately,

in their v. 412 93 S.Ct. loth U.S. 2041, confessed that “I it ... I killed v. Eades did 36 L.Ed.2d 854 Ledbetter cert, Edwards, (6th Cir.1994), a give Ernie.” Eades asked to When 35 F.3d 1062 statement, asked, 2584, denied, 1145, she “Do we have formal U.S. 115 S.Ct. for expressed to do this now?” concern L.Ed.2d 833 her children. She was advised that some- B. Invocation silence. children, gone had for her and that it one Eades the first time be best to a statement asserts for would make formal appeal mind. while events were still fresh in her on this the statements i.e., gave during interrogation, a her Eades then formal recorded state- made second shooting you in which she Er- to tell you ment described “I can’t tell what want me hurt,” it, at close while Kimber- range you,” going nest and “I can’t do to it’s ly Springer nearby. giving stood After right amounted to invocation of her statement, permitted pre Eades was remain silent. This issue was not say, call her mother was overheard determining the purpose served for it, it, I I wasn’t “I did did did it.... He at the admission of her confession whether trash.” nothing but grounds first trial would be for rever theory a retrial. A of error sal and new p.m., Kimberly Springer At 3:52 raised time on cannot be for the first of her again rights advised Miranda 9.22; v. appeal. Ruppee RCr Common a given was told that Eades had statement. wealth, Ky., 821 S.W.2d gave then statement recorded However, already we deter since have related had killed which she that Eades retried, mined that Eades must be abuse, Ernest includ- because ripe for as to wheth issue is determination abuse, had inflict- ing sexual which Ernest the confession is admissible at retrial. er period (Kimberly) ed her over time. determine unnecessary It A. Voluntariness. consti question whether the statements previous tuted a revocation of Eades’s Following suppression hearing, right silent. Com waiver of to remain findings judge the trial entered extensive Garciar-Cruz, States pare United fact and conclusions of law in which she cert, (9th denied, Cir.1992), F.2d 537 totality found that the of the circumstances 124 L.Ed.2d 669 U.S. that both were volun indicated confessions (an (1993) equivocal ambiguous invoca or found tary. Specifically, the trial cessa right requires tion of the to silence appellant neither intoxicated except ques interrogation tion of all confession; that their wills the time of her designed clarify request) tions aby were not overborne threats (2d Ramirez, F.3d 298 States United food, sleep, to friends denial of or access cert, 850, Cir.1996), denied, 117 519 U.S. family; that under arrest neither was (1996) (invoca 140, 136 L.Ed.2d 87 S.Ct. and both were free to leave right previous to after tion of the silence police at residence and station clear); v. must be Davis Unit waiver supported finding time. This latter cf. 2350,129 States, 452, 512 U.S. 114 S.Ct. ed that both and Eades by evidence (invocation (1994) right L.Ed.2d 362 by the at the conclu were advised officers previous must be counsel after waiver to respective of their first statements sion enforcement by request clear before law All these they were free to leave. interroga required cease officers are evi findings supported by substantial tion). in Mi stated requirement The at hear presented suppression dence 473-74, randa, 86 S.Ct. and, thus, supra, 384 U.S. at 9.78. are conclusive. RCr ing v. Michigan Mos con 1627 and clarified admitting no error in There was 96, 321, L.Ed.2d 96 46 ley, trial. 423 U.S. S.Ct. into evidence at Schneck- fessions

447 (1993). (1975) By inducing must cease 360 Eades interrogation 318 L.Ed.2d suspect right they already his to si- knew who killed once invokes believe that applies only interroga- lence to custodial did not Springer, interrogators Ernest tion. beyond her anything lead her to consider guilt her actual or regarding own beliefs question-

Miranda’s commandment suspect when a indicates he innocence. Id. “Of the numerous varieties ing cease Fifth police intends to exercise his Amendment ... a lie that relates to a trickery, however, privilege apply, does crime is the suspect’s connection to the ... situations where the defendant has involun- likely least to render a confession available the easier and more effective Id., Israel, tary.” citing W. LaFave & J. invoking simply method of the privilege 6.2(c), § pp. Procedure 446^18 Criminal by Law offi- leaving.... enforcement v. Velasquez, United States 885 enjoy liberty every cers the same (3d 1076, Cir.1989), n. 11 F.2d 1088-89 & cert, questions other citizen to address to oth- denied, 1321, 1017, 494 110 U.S. S.Ct. persons. persons er are not When those (1990). 108 L.Ed.2d 497 custody deprived or of their freedom illegally D. recorded conversa- Use of in any significant way, they of action tions. equal right have an ignore ques- such protection tions and do not need the claims, Finally, Eades also for the Miranda. appeal, first time on that her confession Davis, 400, State v. 305 N.C. 290 S.E.2d suppressed should have been because 574, (1982), corpus 585 habeas denied sub acquisition and use of the recorded tele nom., AUsbrooks, 168, Davis 778 F.2d phone calls violated both federal and state (4th Cir.1985); v. Be- cf California 2510, seq.; law. 18 U.S.C. et KRS heler, 1121, 3517, 463 U.S. 103 S.Ct. 526.020; 526.060. As with her “invo (1983); Oregon L.Ed.2d 1275 v. Mathia- argument, supra, cation of silence” son, 711, 429 U.S. 97 S.Ct. 50 L.Ed.2d unpreserved ripe otherwise claim is trial judge’s finding respect determination admissi appellant neither custody was in at the bility of Eades’s confession retrial. time of her confession is conclusive of this issue. RCr 9.78. In Brock v. Employment C. a ruse. the issue was whether properly suppressed the trial court had

Eades also asserts that her con recordings telephone audio conversa- fession have suppressed should been be exculpate tions which tended to the defen- cause it was induced use Shide’s dant, by pri- which had been obtained but videotape, which led her to believe that the vate citizens violation of KRS 526.020. police already had proof guilt. of her pointed exclusionary out that the rule However, We ruse, employment the mere of a applies obtained in viola- “strategic deception,” or does not render a right, of a and that the tion constitutional involuntary long ploy confession so as the Fourth Amendment to the United States compulsion does not rise to the level of Perkins, coercion. Constitution and Section 10 of the Consti- Illinois 496 U.S. 2394, 2397, Kentucky apply only to state 110 L.Ed.2d tution of actions, specifically, misrepresen private More not actions of citizens. Id. by interrogators strength provisions tation of at 29. the of the fed- Whether act, 2510, § suspect et against wiretapping their case the does not eral 18 U.S.C. suppression an have mandated voluntary seq., might render otherwise confession McGinnis, an not raised in Brock. The inadmissible. Holland v. 963 was issue cert, (7th 1044, Cir.1992), pertinent provisions de of that act are as fol- F.2d 1051 nied, 1082, 1053, 122 506 113 S.Ct. lows: U.S.

448 114, States, (a): 2518(10) v. 316 U.S. person in Goldstein United Any aggrieved

§ (1942), 1000, the 86 L.Ed. 1312 trial, proceeding or 62 S.Ct. any hearing, or officer, court, of the Com- department, interpreted provisions any Court before 605, 1934, § au- 47 regulatory body, or other munications Act of U.S.C. agency, State, States, a to those con- thority of the United or which are almost identical 2511(l)(c). thereof, may §§ move political subdivision 2515 and a tained in 18 U.S.C. any Goldstein, wire or suppress intercepted the contents of mes- illegally the pursu- trial, intercepted oral communication but were not introduced sages chapter, or evidence derived ant to this who divulged to certain witnesses were testify against therefrom.... the thereby induced to even held that any oral defendants. Goldstein § 2515: wire or Whenever witnesses of the intercepted, though divulgencfe no to the communication has been intercepted communications unlawfully of the communica- part of the contents statute, did not and no evidence derived therefrom was in violation of such tion trial, inadmis- any testimony procured so may be received evidence render the parties in or proceeding persons-who other before were not hearing, against or sible court, jury, department, offi- any grand to the communications. cer, agency, regulatory body, legislative in accord with These cases are committee, authority of the or other of 400-year-old “mischief rule” statu States, State, political a or a United must be construction that statute tory if of thereof the disclosure subdivision mischief to be light read in the be in violation of that information would the end to be obtained. corrected and chapter. this 72, Case, Co.Rep. Eng.Rep. 76 Hayden’s 3 2511(l)(c): person inten- [Any § who] applies to That rule still discloses, tionally or endeavors to dis- jurisdiction, of statutes construction close, person the contents any other Helman, Ky., 253 v. City Louisville wire, oral, communi- any or electronic (1952), 598, those as well as cation, having reason to knowing or Congress. States enacted the United know that the information was obtained 155, 158, Goltra, 293 U.S. Warner wire, oral, interception of a through the 46, 48, L.Ed. 254 in violation electronic communication or F.2d Thompson, Anderson punished be [shall of this subsection (7th Cir.1981). to be The mischief (4) or shall be in subsection provided and anti- by anti-wiretapping corrected provided in subsection subject to suit as acquisition is the eavesdropping statutes (5)]. . illegal suspect by an against evidence 2510(11) “ag- § defines an 18 U.S.C. unau in the form an search and seizure was a person” person as a who

grieved private of his own interception thorized wire, oral, intercepted party communications, that evi the use of person or a electronic communication pro subsequent him in a against dence interception direct- against whom against The use of such evidence ceeding. fall this defini- Eades does not within ed. Eades, who Alexandra person such as 2518(10)(a) Thus, applica- § has no tion. intercepted commu party not a tion here. nications, precluded by 18 U.S.C. is not 526.010, seq. et and KRS seq. Eades. et apply § 2515

Nor does any application States, these statutes have Nor do 394 U.S. Alderman v. United Kimberly Springer’s admissibility to the 961, 22 L.Ed.2d 89 S.Ct. was a resident Although she confession. Supreme Court held United States communica from which the of the home illegal tap wire derived from and her intercepted, illegally tions were person against if offered excluded the vid- occasionally on appear does tap. In voice target of the wire who was the eotape, tending in- a fact to recording was not used to action” includes not offense, a prove duce her confession and there is no evi- an element of the but also that the disprove dence that she knew at that time a Rele- tending fact to defense. existed, it videotape even much less that by any showing of vancy is established had been used to induce Eades’s confes- slight. however probativeness, at trial that Kimberly sion. Since testified evidence, being An item but a sin- of she, Eades, killed Ernest shot and proof, link in the chain of need not gle Springer, preju- she could not have been conclusively proposition for prove by diced the introduction of Eades’s con- which it is offered. It need not even and fession which Eades took the blame appear that more proposition make Kimberly’s participation described as be- enough It is if the probable than not.... ing bystander/accomplice. that of a that a fact reasonably item could show probable ap- than it would slightly more III. PRIOR SEXUAL ACTS. pear that evidence. Even after without The Commonwealth introduced evidence probative force of the evidence is specific four instances of sexual conduct spent, proposition for which it is involving Kimberly Springer, ap- which the improbable. can quite offered still seem pellants except assert was irrelevant Turner v. prove person a she was of immoral Lawson, quoting, R. character.1 These instances of in- conduct 2.05, Kentucky Evidence Law Handbook (1) cluded evidence of an extra-marital re- 1993) (3d p. Cleary, ed. Michie (2) man; lationship with another evidence (3d McCormick on Evidence 542-43 a willingness engage three-per- ed.1984). son sexual encounter with her husband relationship A. Extra-marital with (3) man; and another actual evidence of Clark. participation in a three-person sexual en- with counter her husband and another Kim Kenneth Clark testified that (4) woman; identifying and berly Springer began making sexual ad characterizing the of a contents brown approximately him one vances toward briefcase. prior month to her husband’s death. On occasion, waiting

We note the outset the first she was 404(b)(1) KRE application parking has no to this he arrived at the lot of Clark when That proscribes apartment. evidence. Rule the intro his She wanted to know when tending prove they going go together duction of evidence out particular they go apartment. character trait “in to show to his suggested order offer, conformity action in therewith.” Evidence Clark declined this but the two immorality prove requested would not tend to each other. kissed propensity predisposition to commit not tell her husband about this Clark Thus, occasion, Springer homicide. the evidence be another must incident. On general relevancy, tested rule of entered a bathroom while Clark was uri i.e., “any tendency nating whether it has to make and fondled his buttocks. apartment the existence of that is conse visited on four or five Clark’s fact quence to the determination the action occasions. On two or three of these occa sions, mu probable probable they engaged more or less than it “flirtation” and fondling, would be without the evidence.” KRE tual but not sexual intercourse. added.) people just A (Emphasis 401. “fact that is of While at a bar some other death, Ernest consequence nights to the determination of the two before Although they pertained 1. have inferred that inherited the same none this evidence Eades, implausibly because asserts that character flaws. sisters, she and are could against by her perpetrated into the of sexual abuse Kimberly Springer pulled Clark It is immaterial they where embraced her husband. women’s restroom evidence, during was offered the Common- kissed. addition to this evidence case-in-chief, introduced evidence since the assertion prosecutor wealth’s beneficiary already intro- Kimberly Springer was the of sexual abuse had been $55,000.00 in life insurance approximately Kimberly’s during playing- duced policies by owned her husband. in the taped The statements confession. as admissions'. confession were admissible prosecutor’s theory was that 801A(b)(l). introduced, KRE Once in her husband killing motive to refute was entitled Commonwealth in to for other romantic free herself to required and was not those statements obtaining while the benefits of his terests rebuttal, opportunity an which wait until policies. Evidence that a life insurance Springer if had might never have occurred romantically involved with defendant was taped statements rely chosen to on her to establish a person another is relevant in own defense. testifying her instead spouse. to kill that defendant’s motive statement, Remember, taped in her Commonwealth, Ky., 905 Chumbler the victim of accused (1995); Davis Common S.W.2d batterer, Eades of she also accused being wealth, Ky., 795 S.W.2d cf. murderer. being the Commonwealth, Ky., 973 Tamme v.. 34-35 Clark’s with Girdler. Three-person C. sex purpose. for this was admissible statement, Springer taped In her with Chandler. B.Three-person sex forcing her to accused the victim also tape-recorded con During her three-person in sexual encountér engage fession, to Kimberly Springer described Rosewater, woman. Dr. with an unnamed spousal police specific instances diagnosed psychologist who the clinical perpetrated to have been alleged abuse from “battered wom suffering such her her husband. One against had syndrome,” testified that he tried to force her allegation was in this participant the female identified in sex with himself engage three-person a woman named “Dawn.” encounter as man, Charlie Chandler. and another rebuttal, produced the Commonwealth in Girdler, that she who testified in the Common- Dawn Chandler testified three-person sexual September participated deed in wealth’s case-in-chief Kimberly with Ernest in the encounter watching he was television that it was She further testified Springer. residence living Springers’ room of the Ernest, her Kimberly, not who solicited having Kimberly while Ernest n encounter, that Kim in that participation Ernest in the bedroom. sexual relations under duress berly appear to be and in- did not into the bedroom called Chandler encounter, Kimberly and that join activity. during him to the sexual vited they again do it Chandler, proposed that Kimberly indicated afterwards According to testimony occasion. Girdler’s pro- on a future participate this unwillingness no Kimberly’s admitted to rebut properly In was three-person sexual encounter. posed sexually abused that her husband fact, he de- claim testified that when Chandler in three- engage her to by forcing her started to leave clined the offer and wom him, and another with himself bedroom, person out sex Kimberly called leave, Charlie; alright.” it’s an. “Please don’t Kimberly’s will- testimony of Chandler’s the brown D. Contents briefcase. proposed sex-'

ingness participate Collins testi Police Chief Thomas was admissible rebut ual encounter taped of her that at the conclusion to an act fied this incident amounted claim that preju- confession, KRE and were not lay opinion, told him that the con- Springer at the tents of a brown briefcase located dicial characterizations. Consensual sexu- Springer prove residence would all of her wife is activity al between a husband and allegations Springer of abuse. executed a per character not evidence of an immoral Sgt. form and Police “Consent to Search” that contents Springer If believes the se. Benny retrieved the briefcase and Johnson prove allegations her of the briefcase con- retrial, reviewed its contents. The contents abuse, can, her withdraw she photograph containing of a album sisted suppress and introduce those motion to photographs Kimberly Springer, nude support in of her defense. How- contents videotape depicting Kimberly Ernest and ever, that evidence having claimed the acts, Springer engaging explicit sexual defense, prevent the proves her she cannot devices, and certain sexual which Johnson proving from otherwise. Commonwealth characterized as “marital aids.” to response to motion limine IV. JURY evidence, trial suppress this INSTRUCTIONS/SPRINGER. that

ruled evidence was relevant A. Intoxication. abuse, disprove Kimberly’s claim of sexual probative displaying that Kim but value of There was evidence that jury berly Springer quan contents the briefcase to the consumed substantial alcohol, substantially outweighed by the dan- pills Valium and diet on tities Thus, ger prejudice. of undue KRE 403. day evening before her husband permitted Johnson was to tell the that was killed. She asserts he found in what the briefcase and in of her drunkenness entitled her to an express opinion his that the briefcase did intoxication. struction on the defense of abuse, However, not contain evidence of sexual but intox KRS 501.080. evidence of consenting rather evidence of “two adults support ication will a criminal defense fun.” having Springer Both and Eades support if evidence is sufficient to claim that the introduction of this evidence that the defendant knew what she doubt prejudicial it highly so should doing when the offense was commit suppressed in entirety. have been its justify an instruction on ted. order to Springer appeal continues to claim on intoxication, there must be evidence not prove drunk, the contents of the briefcase her but only that the defendant was claim of sexual abuse. that she was so drunk that she did not v. doing. know what she was Stanford judge’s compromise The trial rul Commonwealth, 112, 117- Ky., 793 S.W.2d ing appropriate was an solution to this Commonwealth, (1990); Meadows v. dilemma. claimed that the con (1977); Ky., 550 Jewell v. Com S.W.2d prove tents the briefcase would her monwealth, Ky., 549 S.W.2d 807 “battered woman” defense. The Common grounds, Payne overruled on other v. prove wealth was entitled to It otherwise. Commonwealth, Ky., 623 S.W.2d 867 is immaterial her made trial trial. claim before rather than Kimberly shortly testified that before This evidence warranted inference killing, if made a claim of abuse her husband had called her false respect to at a resi- away party neighbor’s with the contents of the brief from a case, engage other and forced her to oral sex might falsifying she also be dence him; Sgt. descrip claims of abuse. and that he also threatened Johnson’s Kimberly’s thirteen-year-old daugh- tions of the sexual devices as “marital force (At the in oral sex with him. portrayed engage aids” and the ter to activities time, Kimberly’s daughter was 600 miles videotape photographs “consenting expected to return to having proper subjects away adults fun” were and was weeks.) Kimberly grounds, Elliott Kentucky for several identifies the neighbor’s returned to the house 976 S.W.2d 416 She then accompany sexually her back to threat abuse her asked Alexandra victim’s way, a coat. On the re- get daughter “triggering her residence to as the event” truck and Kimberly stopped pickup at her by our case law. Whitaker Com- quired monwealth, had handgun retrieved a borrowed Ky., 895 Commonwealth, had from her aunt. The two sisters Ky., earlier Cecil v. Commonwealth, Alexandra already entered the house when (1994); Ky., Foster v. 669 cert, pointed Kimberly denied, that did not even 670, (1991), out 827 S.W.2d 678 left weapon. They how to fire the 337, know 921, 121 113 L.Ed.2d 506 U.S. S.Ct. down to the Ohio (1992). the house walked that Specifically, 254 she testified gun the River where Alexandra test-fired threat, “all could think about” after the she They into the river. then firing shot her husband had threatened was what Kim- to the residence. returned daughter. The Commonwealth do to her berly that she walked into the testified defense that an on the asserts instruction husband, bedroom, at. her pointed gun the is of extreme emotional disturbance war- Although testified at and shot him. she concur- killing ranted when.the occurs trial that she could not remember certain triggering shortly the event or rently with happened that before and after the things However, precedents only thereafter. our laps- claim that these shooting, she did not event be “sud- require triggering that the in due to intoxication. memory es Foster, supra, at uninterrupted.” den and in- no definite time frame 678. There is Rosewater, addition, Springer’s Dr. volved, event long triggering so as the support of her “battered woman expert uninterrupted. recognized remains We defense, unequivocally testified syndrome” Commonwealth, Ky., 715 v. McClellan consumption alcohol and Springer’s (1986) that the onset of ex- 464 S.W.2d intoxicated that pills did not render her so “may be disturbance treme emotional intent or did not know what she she lacked point’ normal- gradual more than ‘flash she killed- her husband. doing when passion,” ly with sudden heat Kimberly associated testified that told Rosewater temporary is “a long who so as the condition she was the one “explicitly” that opposed of the emotions as Eades. disturbance pulled trigger, not Alexandra short, per se.” Id. at 468. Kimberly’s derangement defense was not mental may triggering intent to event requisite she could not form The fact of intoxi- time in mind murder her husband because have festered for a cation, intentionally killed him event occurred does explosive but that she before he had self-protection of what killed her preclude finding because that she not to do he threatened of ex- done to her what under the influence husband while evidence did daughter. to her Such treme emotional disturbance. the defense of

warrant an instruction on to an A is entitled defendant intoxication. which on lawful defense instruction manslaughter/extreme First-degree B. v. has. Sanborn disturbance. emotional cert, denied, (1988), 534, 550 754 S.W.2d 854,116 154,133 L.Ed.2d 98 516 U.S. that she was Springer asserts (1995). included offense Although a lesser first-degree to instructions on entitled mean within the technical is not a defense offense a lesser included manslaughter as penal as used ing of those terms and a concomitant instruction of murder code, principle, in fact and a defense it is KRS emotional disturbance. on extreme v. charge. Gall Com 507.030(l)(b); against higher 507.020(l)(a); Hol KRS (1980), monwealth, 97, 108 Ky., 607 Commonwealth, S.W.2d Ky., 813 S.W.2d v. brook cert, 1529, 989, denied, 101 S.Ct. (1991), other 450 U.S. overruled on 815 the immi- threatening her with have been L.Ed.2d 824 overruled on other Commonwealth, KRS Ky., physical unlawful force.” nent use of grounds, Payne 503.050(1). (1981); Brown v. Com- monwealth, Ky., 555 S.W.2d code, penal adoption of the Prior to the Messer, Ky., Coffey of. aider and held that an generally it was If the defendant princi- if the could not be convicted abettor which, believed, if testimony, introduces E.g., Rutland v. Com- pal acquitted. is support would an inference that she monwealth, Ky., 590 S.W.2d than the crime guilty of lesser offense rejected in specifically proposition That is entitled to an instruction charged, she 502.030(1). However, in the even If, retrial, the evi- on that offense. era, accepted it was pre-penal code same, Springer dence is the will be entitled liability accomplice of an is determined first-degree manslaugh- to instructions on her own mens rea and not that by his or ter emotional disturbance. and extreme principal. Self-protection. C. a and another is If one commits crime primary was Springer’s defense abetting, assist- actually present aiding, acted under a in the need belief commission, the ing, encouraging or its in self-protection, which belief was thereby participant, a a latter becomes by duced her affliction with the “battered and principal degree, in the second his syndrome.” presented woman She sub culpability by is determined his mo- stantial physical sexual tives .... husband, upon by abuse inflicted her her Commonwealth, 804, Ky. v. 199 251 Fuson expert testimony as well as from which the (1923). 995, Although 997 the homi- S.W. jury suffering could conclude that she was may partici- cidal act be attributed to both syndrome partici from the at the time she by pants, liability of each is measured pated in killing her husband. The R. degree culpability. his or her own trial instructed the on self- Fortune, Kentucky Lawson and W. Crimi- protection a charge as defense to the (LEXIS 3-3(c)(2), 1998), § 114 p. nal Law homicide, principal was the to the Penal Code and Commen- quoting Model charge but not as a defense to the that she taries, 2.06, I, p. Spring- Pt. 321 fact, accomplice. was an con premised er’s claim of self-defense was self-protection ceded at trial that un upon syndrome” her “battered evi- woman charge available as a defense to a of com if such evidence would Logically, dence. plicity. appeal, On she withdraws this self-protection, on it support an instruction and, presumably, concession will claim en herself, Springer, is whether immaterial self-protection titlement to a instruction as aided, pulled trigger or whether she a to both on defense theories retrial. solicited, conspired with an- commanded or Thus, unpreserved purpose though for the other to do so. determining whether convic reversed, 9.54(2), tion should be RCr Rose, Ky., 725 In Commonwealth v. ripe issue is for determination as to wheth cert, denied, (1987), U.S. S.W.2d upon given er the instruction should be (1987), 838, 122, 98 L.Ed.2d 80 108 S.Ct. retrial. syn- the “battered woman we described as a mental condition which drome” that self- The Commonwealth asserts explain why person suffering “tends principal, defense is available to a not leave her syndrome from the would liability unavailable to one who whose is is con- by be driven fear of mate would predicated upon complicity; and that episodes aggression of increased acting tinuing Springer could not have been perceive certain conduct self-protection theory, against under either be- herself self-defense, even asleep, necessary victim not was cause the thus could “impending dan- suffering from a belief that there was person another though subjected physi- to unlawful ger” being or behave might a condition believe such abuser, 590-91; cal force at the hands differently.” Dyer see also Id. on Commonwealth, to an instruction defendant is entitled Ky., 816 S.W.2d v. nature of (1991) self-protection. Because of the overmling Commonwealth claim, normally will be (1990), the instruction which this Craig, Ky., here, by the wanton accompanied, temporarily overruled Rose. had forth set provisions qualification reckless belief added two new legislature our 503.120(1). 503.010(3) v. Common- Shannon de- KRS Chapter 503. KRS KRS wealth, Ky., 767 548-51 “imminent,” justi- S.W.2d key fined word grounds, Elliott statutes, overruled on other as follows: fication Commonwealth, Ky., impending danger, “Imminent” means and, in the context of domestic violence 403.720, defined KRS and abuse as retrial, If the evidence is the same danger imminent can be belief that to instructions on Springer will be entitled repeated past pattern inferred from a defense to both self-protection as serious abuse. accomplice theories of liabili- principal and ty. 503.050, authorizing the the statute physical self-protection, force in use of y. (3): a

amended to add new subsection JURY INSTRUCTIONS/EADES. by the defen- Any presented manslaughter. Second-degree A. prior a to establish the existence of dant trial determined of domestic violence act or acts to war sufficient evidence that there was by the defined in KRS 403.720 abuse as volun on the defense of rant an instruction whom the defendant is person against culpa respect to the tary intoxication with physical force charged employing However, request Eades’s bility of Eades. this section. admissible under shall be man second-degree an instruction on 403.720(1) vio- defines “domestic offense was as a lesser included slaughter as follows: lence and abuse” v. Common denied. As we held Slaven and abuse” means “Domestic violence (1997): wealth, Ky., 962 S.W.2d injury, physical physical injury, serious is a de- voluntary intoxication [W]hile abuse, assault or the sexual of infliction murder, a it is not fense to intentional injury, serious physical imminent of fear manslaughter. second-degree defense to abuse, or assault physical injury, sexual Commonwealth, Ky., 885 McGuire or members family between members (1994). 931, jury’s A be- 934-35 S.W.2d couple. (Emphasis add- an unmarried voluntarily a was so lief that defendant ed.) he did not form intoxicated that 503.010(1) murder does to commit requisite intent The enactment KRS could re- 503.050(3) acquittal, an but require not shortly after and KRS homi- intentional the offense from syn duce of the “battered woman emergence i.e., homicide, second- cide to wanton scientifically ac phenomenon drome” as 501.080 manslaughter. KRS degree community reflects a in the medical cepted (1974 Commentary); Meadows v. Com- to allow the defense legislative intent 511, monwealth, Ky., 550 S.W.2d premised upon “bat self-protection to be (1977). on sec- to instruct The failure If suf syndrome” evidence. tered woman in- manslaughter as a lesser ond-degree introduced to evidence is competent ficient prejudicial of murder was clude offense that a defendant create a issue v.. Cannon error. and abuse of domestic violence victim 591, 596 under his or her abuser killed or assaulted 503.070(2)(b). provision latter Simen, This is KRS supra, at 857. If the evidence retrial, juris- be entitled other on Eades will to the law of most contrary the same is man- second-degree Fortune, an instruction on su- dictions, W. R. Lawson and as a lesser included offense slaughter 4-3(b)(3), Criminal Perkins on pra, murder. (2d Press ed. Foundation Law 1021 another.

B. Protection 1969), a codification of represents but Commonwealth, Stanley v. su- holding in asserts that if Eades peril intervenes at his pra, that a defender on the defense of entitled to instruction not at fault. person he killed was if the to an self-protection, then she is entitled Id., at 156. 6 S.W. protection of on the defense of instruction pre There are another. KRS 503.070. mind, there principles these Bearing support propo penal code cases which why Eades was reasons are several “[wjhatever may lawfully do one sition protection on an instruction entitled to defense, may do for in his own another trial, she claimed no involve- another. At Commonwealth, Ky. Biggs v. him.” confession, she In her ment in the crime. Stanley v. Com 175 S.W. 379 Spring- killed Ernest not claim to have did monwealth, Ky. 6 S.W. Kimberly of her sister. er in defense Commonwealth, 105 also Utterback v. See self-protection Springer’s entitlement to (1899): 479, 483 he Ky. “[I]f 49 S.W. premised not on the facts instruction was son, the fatal shot in defense of his so fired existed, upon her theo- they actually as but the son according he is excusable or not the “battered guilty ry had he then fired the shot that her affliction with would be However, it himself his own defense.” it caused her to believe syndrome” woman killing that an intentional was also held sleeping kill her husband. necessary justified only if the defense of another was suffering from “battered Eades was not defendant believed that the victim thus, culpability is syndrome;” woman bodily kill or do harm to great about to upon syndrome-induced dependent person. v. Common such other White deadly physical in to use belief the need (1960). wealth, 521, Ky., 333 S.W.2d 524 Kimberly Springer, but force in defense of in Finally, requirement there no to was actually existed. upon they the facts as protection struct on the defense of of an asleep Ernest was killed while if defendant made no claim to other facts, actually existing his bed. Under the having so acted and no inference could be to kill Ernest there was no need drawn from the evidence that it was rea from “immi- protect Kimberly in order to sonably necessary to do so. Adams v. death, ... physical injury serious nent Commonwealth, 786, Ky. 292 S.W.2d 168 hands. intercourse” at his sexual [forcible] Commonwealth, (1943); Farley v. 268 40 503.070(2)(a). “The fear of future KRS (1937). 277,104 Ky. S.W.2d 972 justify a homicide.” danger will not non-deadly physical If the defender uses Commonwealth, 473, 42 Ky. 240 Grubbs another, judged he is protection force in of (1931). 702, Although Grubbs S.W.2d subjective belief as to whether by his own code, principle pre-dates penal have being protected would person “immi- the word codified use of was self-protection. to act in privileged been R. justification statutes. nent” 503.070(1). However, if, here, as Fortune, supra, 4- W. Lawson and used, is the defender deadly force is 2(b)(3), evidence of domestic p. 139. Wfliile circum- in accordance with the judged affliction with “bat- and abuse and violence with re- they actually existed stances syndrome” may create tered woman person being protect- spect to whether the exception principle, exception to to use privileged would have been ed Eades. unavailable to self-protection. deadly physical force In THE Id. at 153. Anderson v. Common- VI.SUFFICIENCY OF wealth, (1993), we Ky., 864 S.W.2d 909 EVIDENCE/EADES. held that defense counsel should have been Eades asserts that absent her question able to the venire as to whether confession, there was insufficient evidence range jurors “could consider the entire support mistakenly to her conviction. She penalties guilty in the event a verdict require believes that the corroboration .” at 911. In our most was returned Id. ment of 9.60 relates to corroborative RCr issue, pronouncement recent on this we fact, guilt. evidence of her the corrobo per- prosecutor properly held that the was requirement ration addresses itself range mitted to inform the that the committed, whether a crime was not to penalties, including those for permissible it. whether the defendant committed offenses, day from one lesser included Commonwealth, Slaughter Ky., cert, prison. Samples to life in v. Common- 407, denied, (1998). wealth, Ky., 153-54 983 S.W.2d 1113, 109 104 L.Ed.2d U.S. corpus Once the delicti has bar, jurors received the case established, guilt may been the defendant’s them to find authorizing instructions entirely by Do be established confession. Springer guilty of murder or of one of Commonwealth, .,Ky lan v. offenses, including reckless several lesser Ernest It error to limit her coun- homicide. left by single gunshot killed wound jurors only to whether the inquiry sel’s temple apparently asleep in while his bed. range penalties consider the full could weapon that never fired the shot was for the most serious offense available found, a strongly militating against fact they could return a conviction. which claim of suicide. Even without Eades’s retrial, Upon permitted counsel will be confession, there was sufficient evidence con- inquire potential jurors whether can corpus establish the delicti. penalties the full for all range sider Springer might offenses of which be con-

VII.VOIR DIRE. victed, i.e., year prison. one to life dire, During voir coun prevented inquiring sel was from as to VIII.ABSENCE OF COUNSEL. jurors could the full whether the consider Springer asserts she was denied penalties autho range might which be counsel, attorney her right because conviction, including the mini rized pro stages was absent at critical mum of an autho penalty for conviction testimony ceedings, during viz: the avowal .e., offense, year rized lesser included i one suppression pre-trial of a witness at a murder). (for homicide) (for reckless to life during hearing pre-trial a on a hearing, Instead, permitted inquire only was prior of her suppress motion to the as to whether the could consider acts, an con during sexual instruction most penalty minimum authorized for the totally devoid argument ference. This of which she could be con serious offense of merit. murder). (for

victed, ie., twenty years Shields that of Dr. testimony The avowal was cert, denied, (1991), 502 U.S. Deardorff, expert by retained Paul an 953,117 we held: L.Ed.2d concerning her to offer evidence Eades purpose of juror intellectual limitations for the qualified to as a In order to be sit case, her confes- undermining credibility the in a member of the a criminal record; report in the he His be to consider sion. venire must able cannot, relevant to purported to offer no evidence punishment. If he permissible Springer; innocence of challenged guilt for the or properly may then he be asserts that Eades nor neither cause. judg- final in the be noted erroneously court shall avowal evidence was any of his ment. at trial. excluded ch. 173 3. Ky. Acts “absences,” Spring- the two As for other parole minimum provides 439.3401 KRS attorneys. One represented two er was classi- prisoners for guidelines eligibility pre- the present at both co-counsel was leg- The 1992 offenders.” fied as “violent instruc- hearing and the suppression

trial to add amended this statute islature also fact, were two there tion conference. (4): new subsection conferences, the record one off instruction per- apply not section shall This on the record. So-called and another by a court determined son who has been present at the off-the- counsel” was “lead vio- of domestic been a victim to have and so-called instruction conference record pursuant to KRS 533.060 abuse lence or present at the chair counsel” was “second the involving to the offenses regard Ironically, it conference. on-the-record physical or serious of the victim death counsel who conceded Springer’s lead the victim. injury to conference the off-the-record § 4. Acts ch. 173 Ky. self-protec- to a Springer was not entitled determined, for Thus, legislature the complicity. charge tion defense to reason, exemption from that the whatever conference, second At the on-the-record re- discharge probation or conditional that he advised the chair counsel 533.060(1)applies wheth- in KRS strictions point. counsel on that disagreed with lead oc- violence and abuse the domestic er or at the to the offense previous

curred committed; but the time the offense IX. SENTENCING. restrictions parole from the exemption 533.060(1) provides that a KRS only if the domestic applies .3401 KRS 439 A, B of a Class or C person convicted in the was “involved” violence and abuse weapon involved “the use of a felony which both judge interpreted The trial offense. may projectile or be from which shot the ex- to mean that provisions of these readily capable pro discharged that is if the domestic vio- emptions applied only physical injury” is in the of- ducing death or other was involved and abuse lence fense, such was not probation, and found that eligible probation, not shock judge is The trial this case. A amend situation discharge. conditional ver- accept the defendant’s required exception: created an ment of this statute offense; surrounding sion of the events person establishes that ... when thus, finding on this issue judge’s trial weapon was person against whom the have and would clearly erroneous was not or was then en- previously used had from benefiting Springer from precluded act or acts of domestic gaged an 439.3401(4). How- in KRS exemption and abuse as defined violence ever, have made judge should the trial person con- against either the 403.720 had Springer finding whether additional in defined family member as victed or vio- subjected to domestic previously been If convicted. person 403.720 of the KRS within the as to fall and abuse so lence to be ex- person convicted claims 503.060(1). Neverthe- in KRS exemption per- this statute because empt from less, make that additional the failure to violence was the victim of domestic son prejudice Springer, because did not finding 403.720, in as defined KRS and abuse if were treated her as judge the trial hearing conduct a the trial shall dis- or conditional eligible probation the va- findings disposition make to determine and found that such charge, but unduly it would applicability inappropriate and because lidity of the claim crime. of the the seriousness depreciate of the exemption. findings The this 533.010(2)(c); LAMBERT, C.J, Hughes v. Com- and cf. monwealth, WINTERSHEIMER, J., join in Ky., 875 S.W.2d 99 this dissent. herein, For the reasons stated the con- imposed

victions and sentences on both STUMBO, Justice, dissenting. Springer and Eades are reversed and this Respectfully, I must dissent from case is remanded Kenton Circuit III) part majority opinion (part Court for a new trial in with accordance Springer’s pri- which concludes evidence of opinion. the contents of this activity properly or sexual admitted at probative trial. I believe the value of all of JOHNSTONE, JJ., COOPER and substantially outweighed this evidence was concur. potential unduly prejudice by its Springer. KRE 403. against LAMBERT, C.J., II, concurs as to Parts IV, V, VI, VII, IX, VIII and and dissents probative The value of Kenneth Clark’s as to Parts I and III. kissed, testimony that he and had fondled, and flirted on a few occasions was J., GRAVES, II, III, concurs as to Parts evidence, pre- minimal. This which was IV, V, VI, VII, IX, VIII and and dissents support theory sented to separate in by opinion, as to Part I which killed her in an to free husband effort LAMBERT, C.J., joined by he is and (the herself to be her “lover” two WINTERSHEIMER, J. intercourse), really never even had sexual considerably proving fell short of this mo- JJ., STUMBO, and concur STEPHENS tive, painting Spring- went far towards but II, VI, I, IV, V, VII, as to Parts VIII and irreverent, er immoral woman de- IX. serving castigation. of some sort of Given J., STUMBO, Part III by dissents as to value evi- probative the tenuous of this opinion, joined separate by which she is prej- compared dence when to the extreme LAMBERT, C.J., STEPHENS, J. I likely generate, udice it was would have held the evidence inadmissible under J., WINTERSHEIMER, concurs as to KRE 403. II, III, IV-A, V-B, VI, IX, Parts VIII majority’s I Similarly, disagree with the by separate opinion and dissents as to I, C, VII, testimony approval of the admission of re- Parts TV-B and V-A and LAMBERT, C.J., garding Springer’s apparent willingness to joined by which he is GRAVES, J., three-person participate sexual inter- as to Part I. course, Sgt. and the admission of John- GRAVES, Justice, dissenting. description son’s of the contents of the Although I from brown briefcase. the Common- Respectfully, must dissent so was crucial to opinion argues much of the that finds reversible wealth evidence abuse, in reality, chal- rebut claims of peremptory Springer’s error the allocation of opinion introduced no evidence lenges. majority holds Commonwealth appellants jointly overwhelming entitled to 13 to rebut The trial court’s introduced to show she was re- peremptory challenges. interpretation peatedly of the rules so as to allow battered her husband. Con- purported trary to the Commonwealth’s peremptory challenges is reasonable. Un- case, introducing the evidence of apply facts of this I would reason for der the conduct, past sexual this evi- analysis harmless and affirm the error Therefore, dispel I little to the notion that of the trial court. dence did judgment by her physically was abused modify holding would the inflexible Ken- Cook, husband, Bureau but nonetheless had the desired tucky Farm Mut. Ins. Co. (1979). the portraying her as far outside effect of Ky., the intentionally killed that she so the wrath believed mainstream as to incur sexual in- required trial court is The and to convict victim. jurors the invite them of of- only on those lesser-included rath- struct predilections for her sexual the evi- supported by are com- which any may have fenses er for crime she than preju- more dence. This evidence was far mitted. have been probative, and should dicial than fact opinion the majority concedes at trial. excluded pre- not the claim of self-defense that that, the Lastly although I would note appellate for review. served the displaying did that trial conclude the indicates that record My review unduly might of the briefcase contents agreed the decision defense counsel KRE Springer in prejudice violation dire on the of the voir the trial court issue permitted Sgt. John- she nevertheless for the jury penalty ranges as to opine the and to son to describe contents This is- offenses. possible lesser-included videotape depict- photographs

that the and properly preserved appel- for sue was not consenting fun.” having “two adults ed late review. far ruling protecting This fell short that prejudice from the extreme circumstances, it would all Under inevitably would result from such a biased possi- there is appear that no substantial retrial, description Upon of evidence. cases would bility that the result in these to intro- should the Commonwealth seek any different in the absence have been again, respect- I duce this evidence would any errors alleged irregularity. Thus fully suggest Sgt. be made Johnson defen- Any 9.24. nonprejudicial. are RCr ., terms, description i.e limit his to clinical trial, but guaranteed dant is a fair intercourse, ap- engaging “two adults perfect mean a trial free from does not parently consensual.” Michigan v. Tuck- possible all error. and er, 41 L.Ed.2d 417 U.S. LAMBERT, C.J., STEPHENS, J., and mean is that “What it does join. tolerably is entitled at least one litigant fair trial of his action.” McDonald WINTERSHEIMER, Justice, dissenting. indi- proceedings A review of entire join opinion I authored dissenting funda- received a cates that the defendants in regard interpreta- Graves to the Justice trial. mentally fair concerning peremptory of the law

tion addition, respectfully strikes. I would affirm re- in all I would convictions majority opinion dissent from the re- spects. three other in it. gard to issues discussed judge properly The circuit determined GRAVES, J., LAMBERT, C.J., join jury that no instruction on the lesser-in- part dissent as to I. man- second-degree cluded offense by the evidence slaughter was warranted Initially, Eades case. I do not pre- question properly that the

believe appellate pursuant review

served 9.54(2). presented

RCr Evidence that it was a shooting

Eades did act. There

premeditated deliberate conflicting regarding statements

facts, but unless the believed all, guilty they must have

Eades was

Case Details

Case Name: Springer v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: May 3, 1999

Citation: 998 S.W.2d 439

Docket Number: 96-SC-502-MR

Court Abbreviation: Ky.