Stopher v. Commonwealth

STOPHER, Christian Vincent

Appellant, Kentucky,

COMMONWEALTH

Appellee.

No. 1998-SC-0334-MR. Kentucky.

Supreme Court

April 2001. Aug.

As Amended 21, 2001.

Rehearing Denied Nov. Wheeler,

Dоnna Boyce, L. Randall L. Department Advocacy, of Public Frank- fort, appellant. for III, General, A.B. Chandler Attorney Roncarti, Heilman, Susan Elizabeth A. As- General, Attorney sistant Appel- Criminal Division, Frankfort, appellee. late for 793 nience, GRAVES, categorized these issues we have Justice. To eight sections. the extent into Stopher, Vincent was convict- Appellant, unpreserved, it has been reviewed error is for the in the Circuit Court ed Jefferson set forth with standard accordance Deputy County murder of Jefferson Sher- 776 v. Cosby Hans, and to death. iff sentenced Gregory denied, (1989), 493 U.S. cert. S.W.2d also and sen- Appellant was convicted L.Ed.2d 963 S.Ct. wan- years to five for one count of tenced overruled, v. (1989), Clair part, St. and each endangerment, years ton two i.e., (1999), Roark, Ky., 10 S.W.3d 482 po- assault third-degree four counts justifica whether there was reasonable Appellant pled to be- guilty lice officers. explanation for counsel’s tion or defense second-degree persistent felony of- ing a object, totality and whether the failure fender. persuasive circumstances either of the 10, 1997, Deputy March Hans re- On been the defendant would not have a call Louisville sponded to made to the capital or that he offense guilty found Department concerning a distur- Police the death sen not have received would Appellant’s Deputy bance at home. When unpreserved error. See for the tence but location, Appellant Hans arrived Commonwealth, Ky., also Tamme police approached began cruiser and (1998), denied, cert. 525 U.S. Deputy striking attempted Hans. Hans 143 L.Ed.2d pinned himself but him Appellant defend seat of the the result to the cruiser with PRETRIAL I. ISSUES Deputy Hans’ left hand and arm were trapped Appellant un- body. beneath 1. Indictment Deрuty pressed handgun, holstered Hans’ argument the indict- Appellant’s face, gun

the barrel of the into Hans’ provide requisite failed to notice ment pulled trigger. Immediately thereaf- capital that he would be tried for a offense ter, got out police cruiser indictment, which was lacks merit. witness, pointed gun at a Steve clearly on March returned Porter, afraid to be Porter. he was about KRS Appellant with “Murder charged shot, dropped to his knees and raised his Capital years Offense 20 to life 507.020 Appellant pulled how- trigger, hands. the parole years.” or life without for 25 death ever, jammed not fire. gun the and would Moreover, July in the Common- time, the At this other officers arrived on Aggrava- a formal of wealth filed “Notice apprehended Appellant. scene and Wit- Circumstances,” that the which stated ting Appellant enraged nesses stated case prosecuted capital a case would be hoped that he the officer had and shouted the fact that aggravating based on wres- required Four officers were to died. victim was “killing was intentional and the ground to the and handcuff Appellant tle sheriff, at the time deputy engaged ...a struggling him. officers were While performance act in the lawful of the Appellant, grabbed he another offi- with that at no Appellant concedes duties.” it. weapon attempted and to fire cer’s appeal com- prior to this did counsel time publi- an notice.

Following highly plain extensive and of insufficient trial, Appellant guilty found cized Jury Proceedings 2. Grand murder and was sentenced intentional Appellant thirty- appeal, Appellant raises takes issue with several death. On grand proceedings. aspects of the allegations of For conve- three error. We note at the outset that bеfore court age, there should have been a “cooling off’ will province invade the grand of the jury, period before grand jury convened. “a defendant must flagrant demonstrate a Actually, the immediacy of the delibera- grand abuse of the jury process that re tions and indictment may prevented have prejudice sulted actual deprived and grand jurors obtaining from additional in- grand jury of autonomous and unbiased formation about the murder. Had the de- judgment.” Baker, Commonwealth v. Ky. liberations been delayed, exposure to addi- App., 11 S.W.3d tional coverage media would have been Appellant certain. prejudiced by was not First, Appellant urges this Court grand jury proceedings, nor was the to declare part unconstitutional grand jury deprived of its unbiased judg- RCr provides: 5.08 which “If the defen ment due to immediacy proceed- dant notifies the attorney for the Common Baker, ings. supra. wealth writing present of his desire to evidence grand before the jury, the attor 3. Judicial Recusal ney for the Commonwealth shall so inform indictment, Following the defense grand jury. grand jurors may counsel filed a motion requesting appoint hear evidence for the defendant but are ment special of a judge from outside of required Appellant do so.” argues County. Appellant Jefferson alleged that that requiring a go defendant to through no Jefferson Judge Circuit could be fair the Commonwealth’s attorney, the adver impartial and because a close relationship party, sarial present order to evidence existed between the County Jefferson grand to the jury is a constitutional viola Department Sheriffs and the judiciary. tion. authority cites no for his The trial court denied the motion and position, and we opinion are of the subsequently Court ruled that there sincе the were Commonwealth charged is with grounds insufficient is, appoint special assisting grand fact, jury, it judge. appropriate party to grand jury inform the that a present defendant wishes to evi 26A.015(2) requires KRS recusal dence. RCr 5.41. There is no constitu judge “personal when a has preju bias or tional right appear grand before the [,]” dice concerning party ... or “has

jury; RCr 5.08 an indulgence of this knowledge other circumstances in Court. We find no capital distinction for a which his impartiality might reasonably be case. 26A.015(2)(a) questioned.” (e); KRS Next, Appellant argues that under RCr 3C(1). 4.300, see SCR Canon The burden 5.02(c), §§ Kentucky and 109 of the proof required for recusal of a trial Constitution, the trial required court was judge anis onerous one. There must be a to grand instruct the jury on the entire law showing of facts “of a character calculated concerning Appellant homicide. theorizes seriously impair judge’s to impartiality the grand that the required was to start and sway judgment.” Foster v. Com offense, with the most basic reckless homi- monwealth, 759, Ky., 348 S.W.2d 760 cide, and consider whether the evidence (1961), denied, 993, cert. 368 U.S. 82 S.Ct. supported charge a thereof. argu- This 613, (1962); 7 L.Ed.2d 530 see also John ment is without merit and requires no (1953). Ducobu, Ky., son v. 258 S.W.2d 509 further discussion. The mere belief that the judge will not

Finally, Appellant contends that since a impartial afford fair and trial is not generated this case extensive media cover- grounds sufficient for recusal. Webb v.

795 (1993). Here, wealth, Ky., 862 S.W.2d 871 904 S.W.2d 4, matter, (1995). original set the November in has the trial court Appellant, Appel- April in 1997. As requisite burden. trial date to meet the failed that the exten- previously alleged lant has instances, to various es- Appellant cites jury pro- grand tainted the publicity sive hours, he be- motion which pecially during that he certainly deny cannot ceedings, he preju- judge’s the trial lieves demonstrate bе- publicity long fully aware of was However, him. the record against dice of venue was petition change for a fore the exasperation trial reveals that the court’s Moreover, to claim unjustified it is filed. filings minute at times was due last court’s refusal to consider error in the trial duplicative and often motions voluminous 21, 1997, hear- at the petition the October fact, judge the trial by the defense. it was filed the in of the fact that ing light point Appellant at one did comment court ruled on day Had the trial before. flurry the of mo- “killing trees” with Appellant would hearing, the issue rulings by tions. also cites that the trial court argue have a basis to evidentiary issues in the trial court on given have due consideration could not proof of favor Commonwealth only one of documents such a volume “Al- prejudice disagree. and bias. We day. trial not a textbook though judge judicial patience, find no example of we Furthermore, the trial court did Bussell [Appellant’s] rights.”

violation of denying its discretion not abuse Commonwealth, Ky., v. 882 S.W.2d to a trial right on the merits. The petition (1994). by a fair trial Appellant received ac criminally to the by jury guarantees impartial judge. fair and impartial, panel a fair trial cused It acknowl jurors. readily is indifferent Change Venue is, however, that wide discretion edged, 21, 1997, day On the before the October be, trial court vested in the and should filed a pretrial hearing, defense counsel ques determining change of venue when fifteen-page petition change for a of venue Commonwealth, Ky., 870 tion. v. Jacobs included one hundred and sixteen (1994). weight given is Great S.W.2d and affidavits. At the pages exhibits because the trial court’s decision to the objected hearing, Commonwealth county pre and is judge present that it not received the grounds had v. the situation. Nickell sumed to know p.m. day until 5:00 on the before pleading Commonwealth, Ky., 371 S.W.2d 849 thus had not had time to hearing publicity “It is not the amount respond such. The trial court review or be determines that venue should which peti- that it would not consider the ruled public opinion is so changed; it is whether until time as it could review the tion such a fair trial.” Kor preclude as to aroused and attachments. On Oc- lengthy pleading Commonwealth, Ky., 700 denbrock the trial court denied tober (1985), denied, cert. issue could be petition, stating 90 L.Ed.2d U.S. reviewed, necessary, following if voir dire. (1986), granted, part, on other habeas 919 F.2d Scroggy, v. petition grounds, a Kordenbrock This Court has held that (6th cir.1990), denied, 499 U.S. cert. days prior 1091 change for of venue filed two a 1608, 970, 669 113 L.Ed.2d trial, 111 S.Ct. the defendant was well to where Commonwealth, (1991); Foster v. see also publicity, was insuffi pretrial aware of denied, (1991), cert. 670 Ky., 827 S.W.2d Thompson v. Common- cient notice. 796 921, 337, 506 U.S. 113 121 S.Ct. L.Ed.2d 5. Pro Se Motion Substitution for of (1992).

254 Further: Counsel Appellant’s argument that the tri jurors may [T] mere fact have al court erred in failing hearing to hold a heard, talked or read about a case does on his for a motion substitution of counsel venue, require change a absent a only unpreserved, is not unpersua but also showing that there is a reasonable likeli- trial, days prior Appellant sive. Four to hood that the descriptions accounts or pro filed a se motion for a substitution of investigation judicial proceed- grounds counsel on the that defense coun ings prejudiced have the defendant.... sel was overworked on other cases and Prejudice may must be shown unless it developed that a conflict had between clearly implied given be a case from Appellant counsel and regarding his de totality of the circumstances. did, fact, fense. The trial court hold a Commonwealth, Montgomery v. 819 heаring at which time defense counsel stat 713, (1991); Hodge S.W.2d 716 see also Appellant ed that wished to “remand” his Commonwealth, Ky., (2000), 17 S.W.3d 824 motion. The trial court inquired Appel denied, 1018, 581, cert. 531 121 U.S. S.Ct. decision, lant as to whether that was his 148 L.Ed.2d 498 Appellant responded which in the affirma Thus, tive. unnecessary it was for the The voir dire examination in this trial inquire court to further as to the although jurors case reveals that many grounds for the motion. Deputy murder, had heard about Hans’ most knew little more than what was read II. JURY ISSUES signifi to them from the indictment. It is jurors cant that of questioned, only the 95 1. Excusáis Cause for 40%, opin were excused based on The decision whether to excuse facts, ions guilt, knowledge excess juror for a cause is matter within the penalty. or refusal to consider the death sound discretion of the trial court. If the upheld This penalty Court has death trial court abuses its by improp discretion panel conviction where over 50% of the erly failing challenge to sustain a McQueen was excused. v. Common cause, it is reversible error because the wealth, (1986), Ky., cert. peremptory defendant had to use a chal denied, 469 U.S. 105 S.Ct. lenge deprived thereby was of its use (1984). Contrary Appel L.Ed.2d 205 otherwise. Thomas v. assertion, lant’s this case does not rise to (1993), Ky., 864 S.W.2d cert. de Jacobs, swpra, level of in which 112 out nied, 510 U.S. jurors pre of 153 were excused based on 564(1994). L.Ed.2d Individual voir dire guilt, conceived notions of and of the 38 in this case in an effort to conducted court, jurors accepted by opin 19 had juror prospective was able insure that each ions of guilt, ultimately of whom sat on penalties range ap the full consider the jury that convicted the defendant. Id. plicable charged. Appellant to the crimes jurors at 415. None of the who sat on the per required contends that he was use panel expressed preconceived this case jurors emptory challenges on five who Appellant’s notions of guilt. simply We do should excused for cause. have been prejudiced by not find that grant change the trial court’s refusal to 313 stated that he believed Juror eye” philosophy, of venue. in an for an and that “eye the information the facts of about or no only appropriate sentence death was the vague idea as to only the most However, case and he killing. for an intentional juror a law. At such time applicable law and he would follow the concluded that in their the facts presented with is often vote not be his automatic that death would he could and asked if fight harshest guilt hearing the evidence at without pun- minimum of a imposition consider phase. to jurors find it difficult Many ishment. that she initially stated Juror punishment when of minimum conceive intoxi not think she could consider did suggest only the most given the facts as factor, although she mitigating cation as a many cit- punishment. Similarly, severe to do clearly admitted that if instructed so being are to learn izens astounded comply. by judge, she would or alcohol drugs influence of under the by them as factors considered may be court that 323 informed the Juror punishment which should mitigating the police a former officer. his father was Predictably, when asked imposed. be However, he that he did not have noted under the they being believe whether preference police officers and that any punishment, mitigate influence should family his connection to the law enforce A negative. often in the the answer is profession would in no manner affect ment required is not per disqualification se ability on the his to decide case based instant- merely juror a does not because com presented. evidence Hе further concept present- ly every legal embrace drugs and alcohol considering mented examination. The during voir dire ed as factors would be difficult. mitigating with juror agrees a test is not whether stated that he too be Juror 361 in presented it is the most the law when an intentionally lieved that one who kills whether, The test is extreme manner. put other should be to death as well. evidence, all of the having after heard However, he that he would con did state juror can conform prospective full range penalties. sider the of the law and requirements views to the impartial verdict. render a fair Juror 394 voiced concern about an serving juror unpleasant experience reveals a thor- The record this case Specifically, felt that she had she by the trial ough voir dire examination jury foreperson been coerced Giving due deference court and counsel. acquit a defendant who later committed opportunity of the trial court to the Neither nor murder. Juror prospective the demeanor of observe above-challenged jurors, expressed any the substance of jurors and understand guilt opinion as to questions, we their answers to voir dire the case. prejudged beliefs about find no error. duty

The trial court has the striking Appellant also attacks the jurors prospective the answers of evaluate jurors prospective of two because for cause juror’s knowl light and in context penal the death imposing of their views on understanding of the of the facts and edge signif that she had ty. 354 revealed Juror guided by law. are our decision We penalty, about the death icant reservations Commonwealth, Ky., 884 S.W.2d Mabe v. really her that it would bother and stated (1994),in which stated: we punishment. such Juror to consider pen the death problem with when a also voiced dire examination occurs Voir not want stated that he would alty has little prospective juror quite possibly placed murder, in position having be receiving to con- Hans’ Social Securi punishment. (SSI) it sider as a The trial judge ty Appellant’s Income benefits. correctly ‍‌‌‌‌‌​‌​‌​​‌‌​​​‌​‌‌​​‌​​​​​​‌‌​​‌​‌​‌‌‌​‌​​​‌​‌‍jurors. excused both Wain- counsel asked Security the Social Adminis Witt, wright 469 U.S. 105 S.Ct. tration the reason for the benefits and was (1985); Tamme, 83 L.Ed.2d 841 supra. allegedly told that Porter received benefits for a disability. mental Pursuant to El 2. Peremptory Strikes Commonwealth, dred v. Ky., 906 S.W.2d Appellant’s contention that tri (1994), denied, cert. 516 U.S. al court’s allocation peremptory strikes (1996), S.Ct. 134 L.Ed.2d 111 Appel erroneous is without merit. trial hearing court ordered a and directed interpretation lant’s 9.40 incor RCr is produce any Porter to medical records 9.40(2) language pro rect. The of RCr possession. his vides if jurors alternate are to be hearing, At the the Commonwealth stat- seated, challenges the number of for “each not, fact, ed that Porter any did have side and each defendant shall be increased personal records relating to his SSI bene- Contrary Appellant’s interpre one.” to fits. During questioning, Porter stated tation, in a case where there is only one that he was for receiving obesity, benefits defendant, here, present such as is that he was not under the care of defense “side” and the “defendant” are one physician, drawing and that he had been and the Springer same. See v. Common the benefits for approximately years. three wealth, Ap 998 S.W.2d 439 Defense counsel moved Porter be re- pellant was not entitled to two additional quired sign to a release so that his records peremptory challenges. Security could be obtained from the Social Appellant also contends that Administration. The trial court denied the peremptory challenges number of Further, trial, beginning motion. at the allocated in inadequate capi RCr 9.40 is the court in limine denied a defense motion cases, tal and that trial court should prohibit testifying. Porter from granted request have chal twenty Appellant argues that there was credible lenges. grant per Whether to additional incompetent evidence that Porter was emptory challenges clearly is within the testify, yet point any specific fails to discretion of the trial court. Brewster v. proof of such. At time did no counsel Commonwealth, Ky., 568 S.W.2d 232 produce documenting specifi- an affidavit (1978); Turpin v. Ky., 780 cally public who defender’s office denied, (1989), cert. U.S. spoke Security with the Social Administra- 108 L.Ed.2d 769 tion, which agency individual at that (1990). Neither the fact that this was a receiving informed counsel that Porter was publicized capital case nor that it was a disability. benefits for a mental A bald automatically Appellant case entitled spoke assertion “someone with some- challenges. additional discern no We one who said ...” to war- is not sufficient abuse of in the trial rul discretion court’s personal rant an intrusion into a witness’ ing. history. medical III. WITNESS ISSUES certainly correct that Testimony Porter Steve trial court could have ordered an in cam- trial, inspection pro- Prior to the defense learned era of Porter’s records to Porter, However, defense coun- Deputy privacy. Steve witness to tect his of drugs under the influence evidence that he was produce sel failed to “articulable Hans, we Deputy he murdered inquiry a reasonable of the time [Port- that raisefd] Eldred, Powell’s prejudice su- discern the of history.” mental health fail to er’s] Furthermore, that testi- pra. consistently testimony. This has hеld Hamilton’s Court clearly Appellant’s a trial court does not abuse its discretion con- mony was to rebut refusing permit to to be cross- shooting witness was accidental. tention that the history examined about his or her mental trial court denied her Simply because the where there is no substantial basis for the testimony during the Commonwealth’s Huber, Id., inquiry. Commonwealth v. in chief because it was somewhat case S.W.2d 490 hearsay, it was within suspect largely tes- permit discretion to her to the court’s Appellant also takes issue with the tify in rebuttal. testimony to trial court’s refusal allow brother, Porter, Steve Porter’s Jason Lay Opinion Testimony Shawna history, mental concerning Steve Porter’s Gritton impeach credibility. his Jason Porter argues girl that his Appellant avowal that Steve Porter had testified Nonetheless, friend, Gritton, psychiatric have been under care. Shawna should been hold, appear compelled permitted testify concerning we are as we did with his records, Porter’s SSI that defense counsel she viewed him on television ance when avowal, failed to establish a reasonable basis for day By of the murder. Gritton testimony. Jason Porter’s The trial court on the Appellant stated that when she saw in refusing did not abuse its discretion television, story presumably during a news testimony murder, of Jason Porter. thought she he covering “real acting and was looked “different” 2. Rebuttal Testimony to introduce sought weird.” The defense admitting There was no error in testimony Appel that to demonstrate testimony “County” the rebuttal of Kevin high on and lacked the lant was LSD Powell and Selesia Hamilton. Powell tes murder. requisite intent for Appellant tified that he was with on the 701, Opinion testimony by KRE morning of the murder and that the two witnesses, lay provides: Ap had taken LSD. Powell later wrote to as an testifying If the witness is not pellant sаying willing testify he was testimony in the expert, the witness’ they f_up all on acid.” Powell “were limit- opinions and inferences is form Appellant testified in later rebuttal opinions or inferences which ed to those him him telling exactly sent a letter how to are: testify, testimony and that some (a) Rationally perception Hamil- based on the

Appellant requested was not true. witness; with ton testified rebuttal she was Deputy Powell when Hans Appellant and (b) understanding a clear Helpful to Appellant’s arrived at home. She stated testimony or the deter- of the witness’ cruiser, police Appellant that when saw a fact in issue. mination of said, cop. “A I’ll kill this f_cop, he case, Ap- observation of In this Gritton’s motherf_” in person rather than pellant on television question to the of admis- germane evi was not

The admission of rebuttal certainly could have ex- judicial sibility. She largely dence is a matter of discre Appellant looked pressed opinion Appellant tion. 9.42. Since admitted RCr normally Appellant different than he night looked. Not- had even met until the withstanding, perceive prejudice we fail to provide expert before he was to testi opinion, such, from the exclusion of and mony any opinion Gritton’s at trial. As Dr. denying thus conclude that error in Evans could have rendered would have her testimony was harmless. RCr 9.24. arguably been based on self-serving Unquestionably, just an individual who has statements of and the state look, going murdered another is to and ments of defense witnesses who were act, probably “different.” Merely because clearly sympathetic Appellant. to See Appellant expressions exhibited facial Commonwealth, Ky., Sanborn v. Gritton had not previously observed does (1994), denied, cert. prove high not that he was on LSD. Grit- 133 L.Ed.2d U.S. S.Ct. testimony simply ton’s would not have helpful any

been to a determination fact of scientific, technical, special- “If or other in issue. knowledge ized will assist the trier of fact 4. Dr. Testimony Evans’ to understand the evidence or to deter- issue, mine a fact in qualified witness as expert, Defense toxicologist Dr. expert an ... in may testify thereto Evans, samples Michael testified of opinion form of an or otherwise.” KRE Appellant’s day urine taken the after the An expert opinion 702. can his base murder ethyltripto- contained traces of an witnesses, the testimony of other or even substance, mine-like which is similar to a hearsay, if he states that it is the basis for compound sometimes found LSD. More opinion type and that it is the of over, Dr. Evans testified about general upon experts information which in the field effects of it LSD how affects brain 703(a). KRE reasonably rely. situa- However, system. nervous Dr. Evans Sanborn, presented supra, tion is distin- permitted express opinion was not an in that the guishable from this case trial Appellant to whether he believed was on precluded court Sanborn witness from Deputy LSD at the time of Hans’ murder. repeating out-of-court the defendant’s expert Dr. Evans was retained as an event, triggering identification of provide testimony medical as to whether which was claim of extreme the basis of his performed any the tests office his found disturbance, there was ab- emotional since hallucinogens samples in the taken from support a solutely no other evidence to Appellant. qualified Dr. Evans was While triggering event and the defendant’s state- give testimony composi- on the chemical subject ment was not to cross-examination. samples, tion of the he not qualified opinion Notwithstanding, we are provide opinion Appel- an as to whether best, would, Dr. testimony Evan’s day lant’s of actions on the the murder assistance to the questionable have been of were consistent with someone who was not reveal LSD in jury since his tests did by During affected LSD. avowal testimo- urine, there was no ny, Appellant’s and since opinion Dr. Evans stated that his presented from other witnesses testimony based on his review of the evidence witnesses, ingested by defense the crime scene video as to the amount of LSD Appellant the murder. depicting Appellant’s struggle day with officers on the arrested, words, opinion could not being as he was and his interview other Dr. Evan’s Appellant. helped jurors with Dr. Evans conceded that to understand the have as- testimony presented he and could not have had heard the evidence Appel- determining the witnesses for the and sisted them in whether was, fact, Testimony ofMyrl Reed by affected at the lant LSD such, Deputy time he murdered Hans. As testified at trial that when Reed properly limited his testimo- the trial court television, the murder on he heard about ny drug. to the effects of the general immediately drove to the scene and he police struggling with witnessed 5.Testimony Bishop Ernest him. attempt in an to subdue and handcuff pro- Appellant’s argument that he was cross-examination, defense counsel On cross-examining Bishop, hibited from inter Reed whether he had been asked informant, Ap- jailhouse is without merit. Nunn, investigator an with viewed Rose pellant question Bishop was able to con- Office, the Louisville Public Defender’s cerning allegedly the statements made to month after the murder. Reed about a by Appellant, prior him criminal histo- inter that he did not recall such stated ry, plea negotiation exchange and his in sought view. Defense counsel thereafter testimony Appellant. Al- against for his report to introduce Nunn’s as a business what though Bishop’s testimony regarding 803(6) through KRE the tes record under Appellant happened day him on the of told investigator.1 The trial timony of another contrary testimony the to the murder was witnesses, ob court sustained the Commonwealth’s jury of other the was more than We, too, capable credibility jection. agree report the assessing Bishop’s of 803(6) telling and or an deciding qualify whether not he was does not under the Moreover, Appel- the truth. we decline Prater exception hearsay to the rule. See rigorous Resources, lant’s invitation to establish stan- Ky., 954 v. Cabinet Human for testimony jailhouse dards of (1997). Moreover, the rule S.W.2d 954 safeguards snitches. Sufficient are al- that admission can be contains disclaimer in ready contained our civil and criminal or denied if “the source of the information rules. No error occurred. prepara the method or circumstances of lack of trustworthiness.” tion indicate also find no error in

We the trial court’s 803(6). report KRE Inasmuch as Nunn’s Appellant’s suppress denial of motion to anticipation Appellant’s in of prepared testimony Bishop’s grounds on the trial, in specifically preparation and more Appellant’s rights Sixth Amendment were defense, trial court did Appellant’s of Bishop governmen- violated when acted as excluding its discretion in it. not abuse agent soliciting Ap- tal in statements from pellant. absolutely There is no evidence prosecutor agent

that the other Testimony 7. David Hans Bishop the Commonwealth induced to talk Appellant’s in We find no merit Appellant bragging or listen to his about unduly prejudiced he was contention that Deputy the murder of Hans. The testimo- son, David, who also a by Deputy Hans’ is ny at trial indicated that had officer, police testifying uniform. Bishop. all volunteered information Deputy Hans wаs a jury was aware Bishop certainly familiar with While that his police officer and was informed penal system, evidently and had acted well. David did not son was an officer as jailhouse past, as a informant he an opinion guilt an or serve as render acting governmental agent was not as a expert any manner. Brown Com Appellant to incrimi- and did not induce Cf (1999). monwealth, Ky., 983 S.W.2d 513 nate himself. 1. had since lo Florida and was unavailable trial. Nunn moved charges min- dict all since the approximately David testified for one Common guilt phase, during “atmosphere ute in the which time wealth’s evidence lacked the son, he identified himself as the victim’s produce of verisimilitude” and “fitness to picture identified a of the victim and the Appellant emphasizes the fact conviction.” police badge, and informed the victim’s that the had Commonwealth the burden of family. about the victim’s No error intent, proving which he maintains it failed occurred. However, may to do. intent be inferred person presumed from actions because

IV. EVIDENTIARY ISSUES probable logical to intend the conse conduct, quences person’s and a of his Photographs crime scene and victim may from state of mind be inferred actions The Commonwealth introduced preceding following charged of photographs Deputy police two Hans’ Commonwealth, Ky., fense. Hudson v. cruiser that showed a blood trail where his (1998); 979 S.W.2d Parker v. Com body had been removed from the vehicle. monwealth, (1997), Ky., 952 S.W.2d 209 Appellant argues photographs denied, cert. 522 U.S. depictions were not accurate of the crime viewing 140 L.Ed.2d 126 After prejudicial. scene and were thus dis-We light evidence most favorable agree. pres- There would have been blood that prosecution, we hold rational trier if ent in the vehicle even the removal of beyond of fact could have found a reason body posi- Hans’ had not left a trail. His Appellant that intended to com able doubt in dispute, tion in the vehicle was not and charged. mit the crimes for which he was photographs it was evident from the that Benham, Ky., Commonwealth v. 816 the by marks were caused his removal. 186, (1991); Virgi 187 Jackson v. S.W.2d objects Appellant also to the nia, 443 U.S. 99 S.Ct. 61 autopsy photographs introduction of four (1979). L.Ed.2d 560 testimony George the of Dr. Nich during photo ols. Dr. Nichols testified that the 3.Humanization Victims graphs depicted position gun the Appellant claims the trial court fired, the time it was where the bullet allowing Deputy in Hans’ son to erred body, path that it entered Han’s and in a testify uniform and show the in Appellant stating traveled. is incorrect father, picture allowing of his and Colo simply photographs because the were Cain, Deputy commanding nel Hans’ Jim inflammatory they were inadmissible. officer, Deputy as to Hans’ dedi testify an accurate de photographs The were profession peers. Appel and cation to his injuries piction Deputy Hans’ and aided argues testimony lant that such constitut testimony. general Dr. Nichols’ “[T]he prejudicial Deputy ed evidence that Hans are photographs rule is that relevant not man, highly “a dedicated family was just they grue inadmissible because are officer, helpful, very caring, well-respected, they depict some and the crime is hei respect digni with and treated others Eldred, 704; supra, at Clark v. nous.” may attributes well be ty.” While those Commonwealth, Ky., 833 S.W.2d 793 accurate, testimony as characterize the ‍‌‌‌‌‌​‌​‌​​‌‌​​​‌​‌‌​​‌​​​​​​‌‌​​‌​‌​‌‌‌​‌​​​‌​‌‍we (1991). Deputy showing than

nothing more 2. Directed Verdicts being. human Hans was a can be identified as

Appellant that the trial A murder victim argues statistic, and state- than a naked granting court erred directed vеr- more intoxication identifying correctly ments the victims as individ- court ruled that the beings personalities ual human with the fact situa- defense instruction covered unduly prejudice does not activities presented. tion jury. defendant or inflame the Just as Appellant argues further jury visually appellant observed the EED is an element of murder and that the courtroom, jury may receive required prove Commonwealth adequate description

an word of the vic- recently held to absence thereof. We have long glorified tim as as the victim is not Commonwealth, contrary Spears v. enlarged. (2000). Ky., 30 While S.W.3d Bowling Ky., every required prove Commonwealth is denied, (1997), 302-303 cert. S.W.2d beyond element of murder reasonable 522 U.S. 139 L.Ed.2d doubt, disprove it not affirmatively need (1997); Hodge, supra. see also EED unless the evidence of such is so unduly prejudicial. evidence was not acquittal that it overwhelming necessitates V. INSTRUCTIONS 154; charge. Id. at the murder KRS 500.070; see also Wellman v. Common 1. Guilt Phase. wealth, Appellant contends that he was entitled to both an intoxication defense Also, Appellant was not enti instruction, given, which he and an tled to a self-defense instruction on the Extreme Emotional instruc Disturbance just charges. assault Given that he had tion. claims there was evidence officer, police argument murdered a that, him, slipped unbeknownst to someone threatening gestures pri- that he made no LSD into his drink during early morn being or to tackled other officers is murder, ing prior hours to the and that the disingenuous. Testimony somewhat clear triggered LSD a state enraged, of mind so ly restraining Appellant established that inflamed or disturbed as to overcome his required police several officers. More judgment and cause him to act under the over, Appellant managed even to unholster force of EED. McClellаn v. Common weapon another during strug officer’s wealth, (1986), Ky., 715 S.W.2d 464 cert. justified in gle. certainly Police were us denied, 1057, 935, 479 U.S. 93 ing they the force that did. There is no (1987). L.Ed.2d 986 right an during to use self-defense arrest.

There absolutely was no evidence Commonwealth, Ky., Baze v. 965 S.W.2d presented Appellant unknowingly that (1997), denied, 817 cert. 523 U.S. 118 “slipped” Notwithstanding, the LSD. there (1998). 1536, 140 S.Ct. L.Ed.2d 685 no demonstrating also evidence Appellant EED properly acted under at the time he The trial court refused to Deputy Appellant jury murdered Hans. has on the definition and instruct 9.56; EED. doubt. regarding meaning mischaracterized law reasonable RCr McClellan, Callahan, supra. Ky., A not en v. 675 defendant is Commonwealth (1984). merely Appellant titled to an EED instruction be S.W.2d 391 was not de resulting prived right cause he exhibits behavior from of his constitutional to instruc Bowling supported the effects of substance abuse. tions on lesser-included offenses Commonwealth, in Ky., simply the evidence because the S.W.2d (1993), denied, 862, 115 required jury acquit Ap cert. structions 513 U.S. S.Ct. (1994). pellant greater charges 130 L.Ed.2d The trial in order to (1997); Ap- offenses. 139 L.Ed.2d 63 Sanders

consider the lesser-included S.Ct. pellant authority, no and we find v. 801 S.W.2d 665 has cited (1990), denied, none, the trial cert. 502 U.S. S.Ct. proposition for the jail- There is required court was to instruct on a 116 L.Ed.2d 76 no. jury that the did not testifying. suggest house informant’s benefit from evidence to Appellant’s upbringing, its deci- consider childhood jury was instructed base family, of his friends and and his sion on the evidence alone and did not love Moreover, young three children. the trial need to be instructed on influence “passion prejudice.” Finally, refusing the trial court did not err to instruct the and proof mitigat jurors jury court informed the the first that the standard ing preponderance is a phase guilt of trial was to determine circumstances phase pun- jury required is not then second would consider the evidence. “Since or in- miti- findings regards ishment. No additional admonition to make with them, required. struction was is gators, only but to consider there proof.” no to define the standard of need guilt phase in- We conclude Tamme, supra, at 38. Nor is there complete. thorough structions were jury on requirement to instruct the “resid mitigating factors. Bus Penalty Phase ual doubt” as sell, supra. errors, Appellant multiple claims complains that was entitled Appellant are standard death he penalty most which statutory mitigator penalty phase in the instruc to an instruction arguments, KRS any tions. find no merit in of these of extreme emotional disturbance. We 532.025(2)(b)(2). contends that repeatedly Appellant held claims. This Court has precip- of LSD requirement “unknowing” ingestion that there is no that a be a state trip” triggered that its on itated a “bad which specifically findings instructed enraged, are not to be unani of mind so inflamed disturbed mitigation required 180; As we have Bowling, judgment. mous. as to overcome his supra, herein, Tamme, theo- already only constitu stated is this supra. Nor is there incredulous, simply it not the law requirement ry tional that the trial court de but explain respect to EED. was not mitigating fine circumstances or with an instruction on the “Jury function. at the entitled to either their instructions of capital mitigator trial defense of EED or the such. stage sentence of a need preju- persuaded Nor are we that he was any particular phrases include words or to the location of the intoxication concept mitigation of or the diced define the Id., of instruction mitigator. language The the mitigating function of circumstances.” in essentially identical to that contained (quoting 973 at 38 Waters v. Thom S.W.2d (11th 532.025(2)(b)(7), Cir.1995), to the as, 1506, 1528 and conforms 46 F.3d cert. KRS denied, 856, 160, instruction con- mitigating 133 circumstances 516 U.S. 116 S.Ct. (1995)). Cooper, Kentucky tained in Instructions 103 L.Ed.2d (4th Juries, 12.05, § at 734 ed. Anderson was instructed in a jury The 1999). any and all provision catch-all to consider Appellant was not entitled it found relevant. mitigating factors which parole. eligibility an on his for requirement to enumerate instruction There is no Commonwealth, Ky., 916 Perdue v. S.W.2d non-statutory factor detail. each denied, 855, (1995), Commonwealth, 148, 519 164 cert. U.S. Haight v. 938 S.W.2d (1996). denied, 96 Nor (1996), 117 136 L.Ed.2d cert. 522 U.S. 118 S.Ct. 243

805 required appeal. Any the trial court to inform the raised in this consideration was death, appeal alleged prosecutorial miscon- jury that if it returned a sentence of the duct must center on overall fairness Appellant would indeed be electrocuted. Commonwealth, Ky., v. the trial. Partin reject Appellant’s also claim that the We (1996). justify In order to S.W.2d jury required specific findings was to make reversal, prosecutor the the misconduct of mitigating Skaggs circumstances. v. must be so serious as to render the entire Commonwealth, Ky., 694 fundamentally trial unfair. Summitt (1985), denied, cert. 476 U.S. (6th Bordenkircher, F.2d 247 Cir. (1986). S.Ct. 90 L.Ed.2d 678 1979), Commonwealth, Ky., Chumbler v. Finally, Appellant argues penal that the (1995). 905 S.W.2d 488 ty phase verdict forms were flawed be Appellant’s first claim of miscon they jury cause the required to sentence duct concerns the cross-examination of his him parole to death or life without for brother, Stopher, about Appellant’s John twenty-five years upon finding an prior assaulting police arrest for officer. aggravating circumstance. Again, this is fact, charge such had been dismissed. previously rejected claim which has been However, prosecutor had the documen by this Court. Wilson v. indicating Appellant tation had been (1992), denied, Ky., 836 S.W.2d 872 cert. offense, for such and we conclude arrested 507 U.S. 123 L.Ed.2d question good asked faith. (1993), overruled, part, St. Clair v. Appellant also takes issue with what he Roark, Ky., 10 S.W.3d 482 injections prior considers to be other forms, verdict which are identical tо those bad through acts into evidence the testi approved 12.10, in Cooper, § supra, mony McGiveny, of Jennifer Shawna Grit- 742-45, jury are clear that the is not re ton, However, and Tina Anderson. a re quired to find an aggravating circumstance testimony view of the witnesses’ reveals impose unless it pen intends the death prosecutor merely impeach alty or parole twenty-five life without for ing statements that had never Moreover, years. the “Authorized Sen been drugs involved with and could not tences” options instruction clarifies the intentionally prosecu- commit murder. No states, specifically “The find torial misconduct these instances oc ing of an aggravating circumstance ... curred. require does not imposition Appellant argues prosecution penalty death in prison life without tape plea negotia- withheld recorded parole benefit of twenty-five years.” Bishop. tions of witness Ernest Defense penalty phase There was no in the error fully counsel was informed of the terms of instructions. plea agreement subpoenaed and even Bishop’s public inquire defender to about VI. PROSECUTORIAL MISCONDUCT parameters the of such. No misconduct in alleges sixty-one part on the of the Commonwealth was prosecutorial stances of misconduct “be demonstrated. ginning with the first utterances of the Attorney continuing Commonwealth’s and Appellant’s numerous claims of until closing argument his last breath occurring during opening misconduct and Perdue, penalty phase the of trial.” su lack closing arguments merit. We have pra, Many complaints at 154. consistently opening closing the are held that and repetitive other, arguments prosecu- of each or of other issues are not evidence and

806 during jurors place “A the themselves the shoes tors have a wide latitude both. victim, tactics, glorify of the nor did he the victim. prosecutor may may comment on evidence, may comment on comment Appellant’s The remainder falsity position.”

as to the of the defense have been reviewed claims of misconduct Commonwealth, Slaughter Ky., 744 unpreserved, to be insubstantial found denied, (1987), 490 cert. note that several claims harmless. We 104 L.Ed.2d U.S. S.Ct. unpreserved character merely were issues Appellant may While find the for the prosecutorial ized as misconduct defense prosecutor’s characterization of his appeal. them on Issues purpose raising harsh, it did not theory “stupid” rather of evidence or tes involving the admission proper closing argu the bounds of exceed court, upon by the trial timony, when ruled of the and did not affect the outcome ment misconduct. prosecutorial do not constitute prosecutor Nor find that the trial. do we Commonwealth, fact, Ky., In in Davis v. during closing the evidence ar misstated (1998), this Court 967 S.W.2d are gument. alleged “The misstatements despite the trend recently explained interpre accurately more characterized as many unpreserved issues as classify Tamme, supra, tations of the evidence.” misconduct, actually prosecutorial such at 39. occurs when a conviction is obtained only knowing of false evidence. by the use claims Appellant raises several phase as during penalty of misconduct the evaluating the overall fairness First, Appellant prej claims he was well. trial, conclude that the conduct we cannot sat, in uni udiced because Officer Roehrs prosecutor the was so serious as to form, on bench behind the Common fundamentally un- render the entire trial during penalty phase. wealth’s table Chumbler, prosecutorial supra. fair. undisputed it is that the courtroom Since excess, any, non-prejudi- if there trial, and capacity during was at the entire cial. present were that uniformed officers preju throughout, we fail to discern ISSUES MISCELLANEOUS VII. Next, Appellant dice. contends Ap prosecutor improperly cross-examined 1. Residual Doubt Appellant’s in pellant’s regarding brother activity. The trial court gang McCree, volvement Citing Lockhart v. opened had the door ruled that the defense 90 L.Ed.2d U.S. questioning and that to this line of (1986), if that even Appellant contends permitted inquire prosecutor was about con support his evidence was sufficient such, Appellant’s involvement. As viction, violates the his death sentence be deemed prosecutor’s question cannot of the United States Eighth Amendment Finally, Appellant maintains misconduct. the evidence fails to Constitution since prosecution guilt that the violated “Golden of inten foreclose all doubt about penalty phase closing presented, during Rule” murder. “As thus tional In Dean v. is akin to a argument. disagree. concept We of ‘residual doubt’ jury nullification. 777 S.W.2d 900 included version of lesser instructions, Bus (1989), ‍‌‌‌‌‌​‌​‌​​‌‌​​​‌​‌‌​​‌​​​​​​‌‌​​‌​‌​‌‌‌​‌​​​‌​‌‍prosecutor may plays It no role we stated that Commonwealth, ap in [supra], or to reach a sell v. cajole jury coerce a not or Tamme, supra, at 40. pellate ask review.” prosecutor no time did the verdict. At

807 Constitutionality provide by death sentence ure to access to data collected 532.075(6)did pursuant this Court to KRS “Appellant’s arguments that the death Appellant process due of law. deny not penalty discriminatory arbitrary, is Id.; Commonwealth, Ky., v. 694 Harper statutory and that our not scheme does denied, 665, (1985), 671 cert. 476 S.W.2d provide constitutionally adequate guidance 1178, 2906, 90 L.Ed.2d 992 U.S. 106 S.Ct. capital sentencing juries, have been (1986). It is not unconstitutional raised, rejected by considered and this Mills, qualify” jury. supra; “death Hodge, Court numerous occasions.” Wilson, process at 890. Due supra, 854; Tamme, supra, e.g., supra, at at 40- judge played not violated since the trial 41; 306; Bowling, supra, 942 at S.W.2d separate contemplated and distinct role as Commonwealth, Foley Ky., v. 942 S.W.2d 532.025 and KRS 532.030. Mat KRS 876, (1996), denied, 893, 890 cert. 522 U.S. Commonwealth, Ky., v. thews 709 S.W.2d 234, (1997); 139 L.Ed.2d 165 denied, (1985), 871, cert. 479 107 U.S. Bussell, 115; Sanders, supra, at supra, (1986). The S.Ct. 93 L.Ed.2d 170 respect 683. Our views with to those ar- required trial is not to articulate judge guments unchanged. remain that role. persuaded Nor are we that a trial

judge constitutionally to in required 4.Cumulative Error struct aggravating circum Appellant fundamentally received a fair outweigh mitigating stances must circum trial and we find instances of insufficient Bowling, supra, stances. 942 S.W.2d at harmless error to create a cumulative ef 306; Sanders, 682-83; supra, at Ice v. fect which would warrant reversal for Commonwealth, Ky., S.W.2d Tamme, supra; compare new trial. Funk 671(1984), denied, cert. 469 U.S. Commonwealth, Ky., v. 842 S.W.2d 476 (1984); S.Ct. 83 L.Ed.2d 125 Smith v. (1992). Commonwealth, Ky., 599 S.W.2d 900 (1980). event, any certainly we do not VIII. PROPORTIONALITY REVIEW

find mitigating that the out circumstances weighed the aggravating 532.075, circumstances Pursuant to KRS we have this case. imposed reviewed the death sentence here imposed in and conclude that it 3. Other issues passion, under the influence of prejudice, of a tape arbitrary use video record other factor. Further more, did not Appellant’s equal protec supports finding violate the evidence rights aggravating tion and does not constitute revers an circumstance. We have ible error. fails to cite to a also considered whether the sentence of single disproportionate item evidence which is not death is excessive or cases, appellate penalty imposed record which would been have similar statute, transcription required by included had a method been and have therefore employed. Appellant demonstrates no considered all circumstances of the crimes prejudice as a result of the video record committed here and all of the evidence agree surrounding Appellant and we do not that such has denied and his back appellate him ground. effective counsel. Mills The information used consider ing penalty compiled has been in ac denied, (1999), 532.075(6)(a),(b), cert. 528 U.S. cordance with KRS (c). considered all of the cases in S.Ct. 145 L.Ed.2d 1088 Fail- We have 808 KELLER, Justice, imposed dissenting. since penalty

which the death 1970, both the crime and the considering 11(1) I dissent from Section of the ma- previ defendant. cases have been Similar the trial jority opinion concerning court’s this in a number of ously by recited Court rulings Stopher’s challenges for cause Commonwealth, decisions. Simmons v. separately regarding and write Section denied, (1988), Ky., 746 S.W.2d 393 cert. III(4)’s regarding conclusions Dr. Evans’s 1328, 1059, 109 103 L.Ed.2d 489 U.S. S.Ct. testimony. majority’s I from the dissent (1989), provides comprehensive list 596 trial result because I believe the court incorporated by herein reference. which is it abused its discretion when denied Sto- particularly considered those We have # for cause to Juror pher’s challenge a defendant was sentenced to death which existing jurisprudence, this Court’s Under unaccompanied by for intentional murders improper the trial court’s failure to sustain other criminal behavior directed toward for cause is reversible error challenge victims, burglary, robbery, rape, e.g., ruling deprives the because the erroneous etc., Mills, Foley, supra; viz: supra; defendant of the use of one of his or her 175; Haight, Bowling, supra, 873 S.W.2d I challenges.1 Although will peremptory Commonwealth, Ky., supra; Epperson v. I opinion articulate within this reasons (1990), denied, cert. 502 809 S.W.2d 835 should reconsider this believe the Court 1065, 955, 112 117 L.Ed.2d 122 U.S. S.Ct. holding, the does not dis- Commonwealth Commonwealth, (1992); Ky., v. 734 Smith I pute viability, and must conform its (1987), denied, 437 cert. 484 U.S. S.W.2d chooses to precedent until this Court this 762, (1988); 98 L.Ed.2d 778 correct it. v. Slaughter, supra; Bevins Common (1986), wealth, 712 932 cert. Ky., S.W.2d 1(A) TO SUSTAIN —FAILURE denied, 479 107 93 U.S. S.Ct. CHALLENGE STOPHER’S (1987); Harper, supra; and L.Ed.2d 1010 # 361 TO JUROR Commonwealth, McQueen Ky., 669 responses # my opinion, Juror 361’s (1984), denied, 469 cert. U.S. him the trial asked of questions to the (1984). 893, 105 S.Ct. 83 L.Ed.2d 205 (“TC”), Attorney court Commonwealth’s review, we have deter On the basis of this (“Com.”), defense counsel Stopher’s that the of death this mined sentence (“Def.”) clearly voir dire during individual disproportionate case is excessive not consider that he could demonstrated cases, imposed in con penalty similar range penalties: full and the defen sidering both the crimes Now, jury if that sits TC: dant. case, the evidence in hearing after all of the Jef- judgment and sentence case, to find the defendant were affirmed. ferson Circuit Court are and, murder, if of intentional guilty ag- certain jury were to also find COOPER, GRAVES, LAMBERT, C.J., exist, then circumstances to gravating WINTERSHEIMER, JOHNSTONE, and be asked to select would J.J. concur. appropriate punishment assign it would have the KELLER, J., that offense. And separate dissents punishment STUMBO, J., option assessing joins. opinion in which L.Ed.2d S.Ct. 1. See Thomas v. denied, (1993), U.S. cert. S.W.2d 252 from following ranges one of the of The Commonwealth’s voir dire then estab- moral, I penalty you. that will describe to lished that # 361 had no ethi- Juror jury The could sentence the defendant cal, religious objections or to the death period to a of confinement of no less penalty imposi- and that he considered the twenty years penitentiary than in the “fit, a penalty tion of the death to be any years term of excess of moral, govern- of proper” function twenty years up including to and life then re- ment. The Commonwealth imprisonment. jury Or the could sen- phrased inquiry: the trial court’s the imprison- tence defendant to life In involving Com.: a case a defendant possibility parole ment without the of guilty intentionally found of who was twenty-five years. jury for theOr deputy murdering a sheriff while could sentence the defendant to death. duty, you the line of would be able to Now, again, you if were one of those fairly range penal- consider the full of did, indicated, jurors jury and the as by judge. ties as described the guilty find the defendant of intentional words, life, years to life twenty other murder, after that verdict were deter- possibility parole the without by jury mined the and announced twenty-five years, up including to and court, here in open the I would be penalty? the death advising jury the that there would be phase a second trial. the That #361: [Inaudible] phase second of the trial would be a You could? You Com.: could consider phase. time, At sentencing that them all? jury would possibly then hear addi- presented tional evidence it Yes, to which # I 361: could consider them all. would be exclusively focused on the Voir dire examination the defense then sentencing aspect. jury, after that # established Juror 361 believed that information, hearing that would then penalty the death serves a func- deterrent be asked to return jury to the room (“With penalty, a tion the death that’s up then to deliberate and come minds, good people’s toway change know- appropriate Now, with the sentence. ing you’re going get penal- if the death time, the second time that ty, not to commit the crimes in the first deliberate, jury goes back to they now one.”) place your life for another After — have and can consider all the evidence agreeing people with defense counsel that they phase heard in the first despite possibility still commit murder evidence, the trial as well all if # penalty, of the death Juror 361 admitted any, they heard in the second рenalty that he believed that the death phase Now, my question of the trial. ques- should be used more often. Further is, you you if were a member of tioning raised serious doubts about Juror that jury, you, affixing could ability range # 361’s to consider full appropriate punishment, consider penalties: range entire of sentences that I’ve just you told all the along with facts person Def.: Once has found been presented have the case beyond crime guilty of a reasonable up and then come with a fair and doubt, where, is there crime after appropriate sentence? penalties what being range told are, Yes, you every- would exclude # 361: I believe so. I believe I thing penalty? could. but death all the evidence as I men- understanding hearing # I’m not what 361: earlier, you’re asking. you were to find the tioned to guilty defendant of the intentional words, judge In if the said Def.: other police per- murder of a officer in the could, for you say hypothetically, let’s crime, years duty, it then be twenty the low end is formance of his would this jail high is the death jury they and the end that my duty to instruct anything penalty you and can consider following punish- could consider the any there crime between. Is ments, they’re along the and those where, you, any- we don’t consider for just you lines I’ve described to —that penalty death thing else but the any punishment of you can consider —that to be a got crime’s so bad that it’s twenty years imprison- no than less death case? or up imprisonment, ment to life life words, you not fol- TC: other could imprisonment possibility without the low the court’s instruction to consider twenty-five years, or parole of for You range penalty. the whole possible punishment. death And as just on the nature automatically would considering discussing and with ... of the crime jurors deliberating, and your fellow OK, you I believe if kill yeah, #361: it you wоuld be asked and would be somebody, possible you it’s should be my you that take part of instructions death, put to too. your into into consideration and factor then, you saying Are since this is Def.: judgment you the matters heard have the death of a case where we phase trial as well in the initial officer, if found police Vincent any might present- matters that be as Stopher beyond a reasonable guilty the trial. phase ed at that second intentionally killing po- doubt of indicated, And, phase the second as officer, it’s automatic he lice information the trial would include penalty the death should receive mat- tend to even treat the might punish- other the exclusion you might than have ter more serious any- ment? You wouldn’t consider Or, possible. if on the initially, that’s penalty? thing else but death hand, present information might other Honestly, yeah. pen- # The death 361: to, that would tend while leave I what I would choose. alty believe is serious, give tend to quite matter but OK, “you if need to judge Def.: said impression of mitigating a more you twenty years or life without consider something extenuat- the defendant — pen- parole twenty or life or death perhaps, not a de- ing explanation, or going to consider alty,” you’re not fense, you know some- at least let but those, only going to consider you’re thing person this is and about who appro- penalty being the death to be that’s considered sometimes case, that what priate one at, tend to look matters which would you’re saying? towards perhaps, attention your direct #361: Yes. It might sentence. a less serious upon you than asked the Court or have weight The Commonwealth have that but, juror, and the Court again question you, you know upon that effect (cid:127) again inquired: juror is allowed and instructed Now, you if matters. consider these Mr. Yustas [Sto- As indicated

TC: juror as a under counsel], in that situation jury, if after were pher’s trial circumstances, you juror, you those would could follow the be instructions go your jurors able to back with fellow of the court and all consider matters fully discuss and deliberate with presented you that are or would aspects them all the of the case and your personal feelings you so drive possible punishments all the or would “well, you say such that would if we you, upon retiring to deliberate you you guilty, only found then the sentence, “Nah, just decide state he penalty that fit for you’re is death” officer, police killed a and death is the you possible pen- could consider other only I appropri- sentence that think is depending alties on the facts ate”? particular ... case # probably 361: I could dif- weigh the Sure, # pos- 361: I could consider other ference, but, me, to it doesn’t matter if could, penalties, yeah, yeah, sible I police a anybody. it’s officer or I I really but don’t think I’m under- mean, you if deliberately kill some- standing. You mean could I choose body, you you got deserve what com- something besides the death penalty? ing. TC: Yes. OK, however, you, person- TC: and can OK, sure, sure, # 361: I could. By

alize it? that I mean —that’s I your general take to be impression of Let it way, TC: me ask and I’m anybody that takes a somebody life of inartful, being you but let me ask this. unlawfully you personalize could —but you your Can conceive—I’ll use termi- by, particular case, it in a look at that, nology of, knowing in- — charged who’s and who’s been convict- murder,2 jury tentional that the has ed and make a decision as to right under the law to sentence individual based on the facts of that anywhere twenty years up from to case, you or would say tend to “don’t including range death—all that all you care who are you’re or what like way twenty years way from all the you or where came from or anything, up knowing to that that’s what death — it”? you this is Or could consider do, jury the law gives right to personal aspects aspects of the case situation, can you conceive of a factual itself? it, telling without us about a set of Sure, it, #361: I yeah. could consider circumstances, you where could be- But, still, know, I you way I feel person that a lieve could be sentenced is, you it if about take a life—deliber- something to other than death for the ately you it, say do an eye for —how intentional murder of someone? eye, tooth, an a tooth for a that kind Sure, # yes, 361: I could. of deal. That’s Iway feel about it. questioned The defense then Juror #361 TC: -I way you understand the feel concerning ability to consider the mini- guess about it. I I’m trying what penalty twenty mum years: distinguish and are counsel concerned might your is that if feeling, you be but Def.: Can conceive of a where case you juror are asked to sit a you on this have an intentional murder where case and take the oath to as a gets twenty years? serve the defendant Although question appears possibility the trial court’s defendant to death or life without otherwise, imply aggra twenty years. parole must find an for five KRS vating may it circumstance before sentence 532.025(3). reviewing give courts must due Although but I can right,

# 361: I don’t think it’s determinations,6 but, to trial court that, say, deference yeah, like I when see responsibility our we must abdicate somebody— kill you error. review those determinations for trial court’s decision that my opinion, the you yourself Def.: conceive of ever Can possible # consider all 361 could Juror years as a valid considering twenty I clearly erroneous. While penalties in an intentional murder sentence # invocation of am troubled Juror 361’s case? “eye eye, for ‍‌‌‌‌‌​‌​‌​​‌‌​​​‌​‌‌​​‌​​​​​​‌‌​​‌​‌​‌‌‌​‌​​​‌​‌‍an tоoth the Old Testament #361: No. maxim, margin I find no for tooth” initially withheld his rul- The trial court response to interpretations of his different ing Stopher’s challenging motion Juror Contrary of him. question the final asked cause, but later denied the chal- # 361 for at the the trial court’s characterization # 361 could lenge and decided that Juror challenge for ruling of its on the time juror despite his fulfill his duties as a cause, propose a counsel did not defense him re- questions answers to the asked # 361 if hypothetical stark and ask Juror court penalty. the death The trial garding the minimum sentence. he could consider # dismissed Juror 361’s answer defense if # 361 could Defense counsel asked Juror question final as “under the stark counsel’s murder any conceive of intentional police of a reality presented killing pen- minimum could consider the which he —the twenty the duty- officer in the line of answered with an alty, and Juror #361 —that him not make sense to under years did ques- This was the last unequivocal “no.” compared it to circumstances” and those 361, and, in clear of # tion asked Juror by this Court the situation addressed terms, it struck at the unambiguous and Stopher used a Mabe v. Commonwealth.3 the trial question heart of the before to remove Juror peremptory challenge per- # his court—could Juror 361 set aside #361. possible all convictions and consider sonal loudly, unequiv- and penalties. clearly, He Commonwealth,4 this Grooms “no.” ocally answered juror excused held that “a should be Court if contends Although for cause he would be unable the Commonwealth dur- case, the cir- # 361 indicated elsewhere extenuating no matter how that Juror cumstances, dire that he could imposition ing of his individual voir to consider the court, trial follow the instructions penalty prescribed by minimum law.”5 the (1994): 4. 756 S.W.2d 131 3. Ky., 884 S.W.2d presented juror with the is often [A] v. Common- also Morris 5. Id. at 137. See light he their harshest and asked if facts in ("Both (1989) wealth, Ky., 766 S.W.2d imposition of a minimum could consider defendant are and the Commonwealth punishment. Many jurors find it difficult to who will consider panel jurors of entitled to a punishment conceive of minimum when Those who range punishment. the entire of suggest only given the most severe facts as by the Court for be struck will not should punishment.... test is not whether Id.). cause.” agrees pre- when it is juror with the law the most extreme manner. The sented in Commonwealth, supra note 3 at 6. See Mabe v. whether, having heard all of the test is after ("The recognizes the trial court that evidence, law prospective juror can conform to determine discretion is vested with broad requirements the law views to the juror be ex- prospective should whether a impartial verdict. and render a fair and Id.). cused for cause.” Id. soundly rejected peremptory challenge we have the idea that a he used a to remove potential juror’s answer to a “magic ques- panel. # I Juror 361 from have care- tion” ends the ability record, discussion of his fully videotaped and reviewed Although ques- serve.7 Juror # 361 was general and individual voir dire re- tioned a ability number times about his jurors vealed that each of the who deliber- to consider full range penalties, he Stopher’s punishment ated crime and once, once, directly only asked fairly impartially. My could do so whether he could consider the minimum only my reverse vote reflects conclusion penalty of if twenty years had found Stopher peremptory used one of his murder, a defendant guilty intentional juror challenges to exclude a when he and he stated that he could not. The should not have had to do so.

juror’s statement he could “choose I by incongruity am struck of these something cry other than death” is a fаr Stopher two was tried conclusions— from an assurance that he could consider impartial jury, fair and and I must vote to range penalties entire as the trial Accordingly, reverse. I believe this is an court would instruct him. Juror # 361’s appropriate express my opinion time to juror answers mirror those given by a existing this Court should reconsider who, Court, according to the Grooms precedent decreeing automatic revers- should have been excluded.8 Accordingly, ible error exists whenever a trial court I believe the trial court erred when it implicates error a defendant’s exercise of failed to # excuse Juror peremptory challenges.

1(B) ERROR —REVERSIBLE adoption This Court’s of RCr 9.40 allows I Because believe the trial parties court errone- in a criminal9 case to remove a ously failed to Stopher’s challenge sustain given jurors by peremptory number of to Juror # 361 and because Ken- existing challenge showing without cause. While tucky requires caselaw reversal currently provide under we a base allotment of circumstances, (8) such I dissent eight peremptory from the re- challenges to each side, sult reached majority defense, and would the Commonwealth and the Stopher’s (3) reverse conviction and felony remand a criminal case and three the case to the trial court for peremptory a new trial. challenges to each side a express I must my case, discomfort with this misdemeanor criminal we could allow result, however, because I cannot larger peremptory challenges, ascertain a number of Stopher how any tangible number,10 suffered disad- a smaller and we could even vantage from the trial ruling provide court’s after peremp- delete the rule and for no 1893, Montgomery 7. See 1877 to the defense could exercise (1991). (20) twenty challenges. peremptory In peremptory challenges the number of allowed Supra 8. note 4 at 135-137. (15). by the defense was reduced to fifteen In peremptory challenges the number of expressed My apply views herein would given eight to the defense was reduced to equally peremptory challenges exercised in From 1877 until we allowed the Com- civil cases. (5) only perempto- monwealth to exercise five fact, perempto- 10. In the current allocation of challenges. ry we RCr amended ry challenges felony only cases has existed ad- 9.40 to eliminate the defense’s numerical past century, since and over the vantage, prosecution and we now allow the peremptory challenges number of available to (8) eight challenges. exercise such criminal defendants has decreased. From op- label to the defendant’s right” stantial criminal challenges whatsoever tory chal- peremptory of the United States exercise provision portunity cases. No chal- peremptory requires Constitution a who cannot otherwise lenges, defendant in criminal cases: lenge procedures now claim prejudice14 may demonstrate recognized peremp- that long haveWe denied a “substantial that he or she was constitution- challenges are not of tory ruling “required” a trial court right” when a They are means al dimension. challenges to to use one of its the defense impartial jury. the end of an achieve juror the trial court should remove a which impar- is as the sits long So removed for cause. have tial, had to fact that the defendant support no for the contention I can find challenge to achieve peremptory a use pеremptory ability to exercise not mean the Sixth does result rights. challenges implicates substantial Amendment was violated.11 in the process protections None of the due undoubtedly allows 9.40 While RCr per- requires States Constitution United perempto- to exercise criminal defendants challenges: emptory my I have doubts about ry challenges, a we must reverse conclusion that Court’s obligation no constitutional [TJhere infringes ruling a trial court case whenever challenges]. [peremptory to allow Bes- rights.”12 “substantial upon these challenges permitted are Peremptory the exer- right upon towing substantial by statute only government, when the one challenge serves peremptory cise of a law, appropriate it deems or decisional manu- only function function and one —-it given parties to exclude to allow in cases where error factures reversible persons who otherwise number of by a fair and been decided the case has satisfy requirements would we rhetorical label impartial jury. The petit jury.15 service on challenges upon peremptory placed have Alabama,16 the United States In Swain v. than circumvent nothing more does per- while Supreme recognized Court and insulate of RCr 9.2413 last sentence at common existed emptory challenges harmless rulings court from class of trial law, was not whol- right source of this “the we attach the “sub- analysis. When error 81, 88, ("Turpin can Oklahoma, supra note 1 v. 108 487 U.S. 11. Ross v. 80, 2273, (1988) (cita- vi constitutional prejudice L.Ed.2d 90 no or S.Ct. 101 demonstrate omitted). removed for jurors tions were because the olation Id.)', Dunbar v. Com by cause the defense.” Commonwealth, supra note 1 v. 12. Thomas 852, (1991) monwealth, 853 S.W.2d 809 ("The specifying the number of rules 258-9 Commonwealth, supra by v. Thomas overruled challenges techni- peremptоry are not mere ("Even have been juror should if a note 1 calities, rights they and are to are substantial cause, vio error does not such removed for 259.). fully Id. at enforced.” be impartial right an constitutional late the actually sit on the person proceeding did every stage of the if the court at 13. "The Id.). disregard any error or defect in jury.” must the substantial proceeding does not affect rights parties.” RCr 9.24. Co., of the 500 Concrete v. Leesville 15. Edmonson 2077, 620, 614, 114 L.Ed.2d S.Ct. U.S. here, when, defen- case E.g., as is the 14. (1991). peremptory subsequently his or her dant used any juror whom the challenges to exclude 380 U.S. to excuse for improperly failed trial court L.Ed.2d Commonwealth, Ky., 780 Turpin See v. cause. (1989) by Thomas overruled Oklahoma,18 ly clear.”17 In Ross if peremptories v. ber of he would have High peremptory Court declined to view separately.19 tried challenges right as an unfettered and not- Martinez-Salazar;20 In United States incongruity rights ed the rhetoric Supreme the United States Court unani- exercising with both the realities of such mously agreed that a defendant who uses a challenges legis- and the manner in which peremptory challenge juror to remove a latures have modified them: erroneously whom the trial court declined think there nothing arbitrary We is deprived to excuse for cause “has not been [requiring irrational about that a defen- right”21 rule-based or constitutional peremptory dant use challenges to cure because the defendant has choice by erroneous refusals trial court to peremptory whether to exercise a chal- jurors cause], excuse which subor- juror: lenge to remove that dinates the absolute freedom- to use objecting After to the District Court’s peremptory challenge as one wishes to denial of challenge, his for-cause Mar- gоal empaneling impartial an jury. option letting tinez-Salazar had the Indeed, concept a peremptory and, petit jury upon Gilbert sit on the challenge a totally freewheeling right conviction, pursuing Sixth Amendment by unconstrained any procedural re- Instead, challenge appeal. Martinez- quirement to imagine. As difficult Salazar elected to use a challenge to pointed by out dissenters Swain: remove Gilbert because he did not want This Court has sanctioned numer- Gilbert to jury. sit on his This was ous upon incursions right to chal- Martinez-Salazar’s choice. The District lenge peremptorily. may Defendants 24(b) Court did not demand—and Rule together

be tried even though the ex- require did not Martinez-Salazar —that by ercise one of right challenge peremptory use a challenge curatively. peremptorily may deprive his code- choosing to remove rather Gilbert juror fendant of a he may desires or than taking appeal, his chances on Mar- require that codefendant to use his tinez-Salazar did not lose a peremptory challenges way other than he Rather, challenge. he used the chal- wishes. A may defendant required be lenge principal in line with a reason for challenges prior exercise his to the peremptories: State, help secure the consti- so that may some be wasted on tutional jurors guarantee impar- of trial an whom the State would have Moreover, tial jury. the immediate challenged. Congress may regulate choice Martinez-Salazar confronted —to the number of peremptory challenges objection stand his to the erroneous available defendants statute and may challenge denial of the require codefendants to be treat- for cause or to ed a single peremptory challenge as defendant so that use a to effect an each only has a small portion of the num- instantaneous cure of the error —eom- 304, 774, 17. Id. 20. 528 U.S. S.Ct. 145 L.Ed.2d Supra 18. note 11. 304, 307, 774, 21. Id. at 528 U.S. 120 S.Ct. 90, 2279, 19. Id. at 487 U.S. at 108 S.Ct. at (citations omitted). 145 L.Ed.2d 792 (emphasis 101 L.Ed.2d at 91 added and cita- omitted). tions reality scope of ports “right” with the selec- Constitution. As the this process.22 tion changes phases moon, with the how- ever, I imagine cannot how we con- ever Supreme States ob- United Court cluded to exercise ability peremp- that the violation,23 process no due and the served tory important is such an challenges right Appeal applied (cid:127)Circuit Courts of have this prejudice that may presumed. be reasoning to both federal24 and state25 criminal matters. A recap may brief be order —this Kentucky may provide Unquestionably, Court a defendant’s has decided exercise guaranteed by for not rights United challenges a peremptory constitutes Constitution, procedural and our States right” despite “substantial the fact that no protections may exceed those available on provision identifiable of either United Thomas, the federal level. this Court Kentucky compels States Constitution implied the opportunity to exercise epitomizes “rights such conclusion. This peremptory challenges constitutes a sub- talk,” a term observers of the American right challenges’ stantial because such legal system to define our inclination use importance insuring procedural due “rights” into all towards the elevation process. In as much as Edmonson v. legal matters: Leesville Concrete Co.26 holds percolates through The law talk that Constitution not re- United States does however, today, far society American is quire that states allow defendants to exer- nineteenth-century removed ver- from peremptory chаllenges, prior cise our Tocqueville’s day talk in sions .... [L]aw holdings premise thus rest on nearly rights so with not saturated process protections Kentucky’s due extend talk as been since end of it has further than that of States United short, legal speech World II. In War that, state, and funda- Constitution today morally more good deal neu- process fair require mental notions of tral, adversarial, rights-oriented and we grant defendants license to exclude it than inwas 1881. jurors fairly can and delib- impartially who telling more indicator of There is no and guih/innocence punishment. erate. legal to which notions have extent spent century if we Even had the last penetrated political and popular both through the extent of this eroding “right” increasing tendency than our discourse gradual per- in the reductions number of rights, speak ... in terms of emptory challenges available defendants every controversy frame cases, nearly social dispute I would felony our “sub- Yet, for most a clash of our rights. I rights” stantial characterization because history, political discourse not so support Kentucky can find no for it Quinn, See, 315-16, e.g., 24. F.3d 22. at 528 U.S. S.Ct. United States Id. Cir.2000) (6th ("By removing 781-2, Ju- 865-6 145 L.Ed.2d 792. Quinn #35, peremptory ror exercised challenge that it was intended in the manner 304, 317, at 528 U.S. Id. right impartial to an to be assure his used—to ("Martinez-Salazar L.Ed.2d 792 precisely jury.... system worked as in- The perempto- were his codefendant accorded 11 Id.). tended.” 24(b) ry challenges, the exact Rule number (c) in this case. Martinez-Salazar allowed See, Brigano, e.g., 25. 232 F.3d Wolfe precisely provided; what received federal law (6th Cir.2000). 501-2 tenably assert of his he cannot violation Id.). right Supra due process.” to 26. 15. Fifth Amendment note liberally rights salted with I talk as it is ans because see no reason for this Court today, nor was to rights legal- engage interpretation discourse so an erroneous of high ruling istic. our evidence rules to affirm a which rights The season of came the trial upon only the land court never made. After review- recently, pro- rather case, pelled ing the video record in I by, and itself this do not promoting, gradu- a prohibited believe the trial court ever Dr. al evolution in the role of the courts.27 testifying Stopher’s Evans from be- “rights Such talk” is no means innocu- day Deputy havior on the he killed Hans ous, and: Stopher indicated that was under the influ- [R]ights operates talk often at cross- hallucinogen. ence of a purposes rights with our venerable tra- initially The Commonwealth asked that within perfectly dition. It fits the ten- prohibit the trial court Dr. Evans from second currently preferred by formats However, testifying regard. this after media, the news severely but constricts hearing the trial court held a to ascertain opportunities for ongoing the sort of dia- the nature of and testimony, basis logue upon regime which a of ordered it testify ruled that Dr. Evans could toas liberty ultimately depends. A rapidly findings a chemical analysis of of Sto- expanding catalog rights ... risks and, pher’s samples blood and if urine trivializing core democratic values.28 foundation, testimony provided proper a to I believe our characterization perempto- opinions Stopher his as to whether ry challenges as substantial rights elevates under the of hallucinogen. influence a form over substance and detracts from the that, suggested light Commonwealth question true of whether the trial court the trial it ruling, court’s intended to cross- impartial seated fair and jury to decide a examine Dr. regarding Stopher’s Evans guilt defendant’s or innocence. past violent criminal history, which Dr. upon precedent While reliance impor- Evans admitted he had not considered tant, “the doctrine of stare decisis does not forming opinion, to contest the weight commit us to the sanctification of ancient which the assign opin- should to that fallacy.”29 I believe it is time for this ion. realizing potential opportu- After Court to reexamine its decisional law con- nity specific costs soliciting opinion cerning peremptory challenges used to ex- Evans, decided, from Dr. the defense uni- jurors cuse whom the trial court has erro- laterally, scope to limit the of its examina- neously failed to excuse for cause. Rather tion Dr. Evans: deeming than such errors “automatic re- prosecu- Def: accede [the We’ll to his error,” versible bring we should Kentucky statement that Dr. can- tor’s] Evans law in accordance with the prevailing fed- specific finding not make as to his jurisprudence. eral observations as to what Vincent Sto- pher present did but instead II. TESTIMONY OF DR. EVANS jury what the effects are of LSD and I also write separately respect with hallucinogens. say We also that we 111(4) Section of the majority opinion him testify are entitled for as to which testimony addresses the of Dr. Ev- foreign substances that he found. Glendon, Mary Rights Hays, Ky., 27. Ann Talk: The Im- 29. Hilen v. 673 S.W.2d Discourse, (The poverishment Political 3-4 1991). Free Press Id. at xi. objection majority opinion I reaches three con- don’t think there’s TC: to testi- respect clusions with Dr. Evans’s to that. (1) to testi- mony: qualified Dr. Evans was Oh, they Def: I were—he want- thought analysis Stopher’s of fy as to his chemical ited limited. urine, opinion to give blood and but not his acceptance, the I TC: After court’s Stopher’s behavior at regarding whether ruling think the Commonwealth’s Deputy Hans was con- the time he killed analysis' the basically, on chemical —he by a halluci- sistent with someone affected testify could as to that basis. (2) proper had no basis nogen; Dr. Evans Well, testify can Very Def: well. he as (3) opinion; testimony his and this as specifically to—not to Sto- Vincent jury’s not determi- would have assisted the pher what the effects are. I note the trial court nation. would —but that, in findings, made none these and of of Right. And the effects his TC: conclusions, majority the reaching these analysis. chemical court,31 as reviewing not but a acts as Def: Yes. finder of fact. The record in this case and Simply put, prevent the trial court did not squarely the law in this Commonwealth any of Dr. introducing the defense from contradict each of these conclusions. proffered testimony. Evans’s The defense evidentiary hearing, At the trial court’s to decided “fold its hand” appears have to qualifications. Evans to Dr. testified the concluding after Commonwealth appeal, Stopher appropriately de- On ruling held better one.30 We have no “impecca- qualifications as scribes those review. partial qualifications A list of ble.” those me to My review of the record leads the (1) of de- would include: Bachelor Science question that the of whether the (2) conclusion A Biology Chemistry; and grees have Dr. trial court should allowed Evans from Indiana Uni- Toxicology Ph.D. the testify opinion largely aca- (3) to his Medicine; Post-doc- versity of School However, the majority demic. because Toxicology the National toral work in (4) Health, erroneously question, has decided that decades of almost two Institute (5) Toxicology; incorrect conclusions majority’s legal of board certification case, experience I into the teaching law of will become the this feel and research Associ- abuse as tenured compelled drug to address those conclusions. effects Stopher’s took the threat of the Common- brief nеver identifies an adverse therefore ruling by essentially Accordingly, seriously. the trial court and admits wealth Dr. Evans that the "folded” on this issue: testify defense as to his determination that did day of Vince the crime behavior After that it the Commonwealth threatened being completely with his consistent past (yet again) bring up Vince’s would high on LSD. things does [Dr. Evans] arrests and "the he (citations at 84 to record Stopher” not know about Vince the defense Brief for added). emphasis omitted and finally making acceded to Dr. Evans not specific findings to his from observations Thomp- Goodyear Tire & Co. 31. See Rubber recordings videotape actions of Vince’s ("KRE son, (2000) Ky., 11 S.W.3d listening day of the crime from discretionary gives court the the trial day descriptions of his behavior the abuse, authority, to deter- for its reviewable (Essentially, crime. the Commonwealth light expert testimony in admissibility of mine get objection, to managed, had over defense occasions, particular facts and circumstances jury, on in front of the several Id.); Vince.) particular v. Com- case.” Mitchell alleged past arrests of The defense monwealth, again Ky., 908 S.W.2d happen did not want ate day Deputy Professor of Medicine at the Universi- he killed Hans which the (5) Illinois; ty of and over provided one hundred defense to him. Dr. Evans testi- (100) field, publications scientific in his commonly always fied that he if not forms many drug of which addressed abuse is- opinions on the basis of similar materi- sues and drugs upon him, the effect of human provided als and even before we behavior. Dr. Evans defined the field of adopted KRE this Court believed toxicology as “the study of the effect of experts may on rely exactly types these drugs on the system central nervous Although materials.33 the Commonwealth brain function as well as behavior” and argues that Dr. Evans’s reliance on third- emphasized an important aspect party improper, information is KRE toxicology drugs is the effect of on human law, Kentucky case and common sense in- Evans, behavior. Dr. a former Indiana experts validate the contention that all State Toxicologist, has testified in civil and must be also occurrence witnesses. proceedings criminal at request I majority cannot fathom how the can prosecutors and defense counsel as well as testimony conclude that Dr. Evans’s would plaintiffs counsel for both and defendants. “assist trier of fact to understand Dr. absolutely qualified Evans was to testi- the evidence or to determine a fact fy as to hallucinogens the effect have on issue.”34 There was never issue in human express opinion behavior and to an Stopher this case about whether killed as to whether certain behaviors were indic- The Deputy only Hans. relevant issue was ative hallucinogen use. majority’s The Stopher’s mental state the time at he did only conclusion is not wrong but indefensi- Stopher so and whether should receive the ble. penalty. Stopher’s death defense was that 703(a) KRE permissible defines the bas- having hallucinogenic trip he was a “bad” expert’s opinions: Hans, es an Deputy the time he killed and the argued defense that Stopher’s culpability

The particular facts or data in the was thus reduced mur- below intentional upon case expert which an an bases disputed der. The Commonwealth opinion or may per- inference be those contention. Dr. Evans’s ad- testimony expert ceived or made known to the very dressed this issue. at or before the hearing. type If of reasonably relied upon by experts in the majority’s contention that Dr. Ev- particular informing opinions or field testimony ans’s would have been оf little upon subject, inferences facts value no because test revealed LSD data need not be admissible in evi- Stopher’s or urine ignores blood Dr. Ev- dence.32 that, testimony pho- ans’s because LSD is At evidentiary Dr. hearing, chemically Evans tes- tosensitive decomposes tified that he based his exposed conclusion that when light, he would have been Stopher was under the a hallu- surprised samples pro- influence of to find in the LSD cinogen findings on his samples from the chemical vided to him because those were analysis Stopher’s blood and urine protected fight. as neither frozen nor from interviews, however, well discovery as witness mate- testify, Dr. Evans did that his rials, videotape and a Stopher made of Stopher’s sample advanced tests on urine 703(a) added). (emphasis 32. KRE 34.KRE 702. Commonwealth, Ky.,

33. See Buckler v. ethyltriptomine-like substance

indicated BOARD EDUCATION OF ERLAN the chemical “back- OF typically which forms LSD, DIS GER-ELSMERE SCHOOL present bone” and which would be TRICT, Molley, Harold C. James E. Stopher’s system if LSD in decom- had Steiden, Appel Ensor and William posed. testimony Dr. Evans’s Sto- lants, pher’s day on the question behavior hallucinogenic of a consistent with use v. drug unquestionably have satisfied would CODE, Appellee. Bill relevancy requirement of KRE 401 as “the

evidence which made existence No. 2000-SC-0104-DG. consequence fact that is of the determi- Kentucky. Court Supreme probable nation of the action more or less probable than it the evi- would be without Aug. 2001. dence.” Rehearing Denied Nov.

Stopher presents no renewable issue testimony Dr.

concerning Evans’s because that evi- trial court did not exclude However, agree

dence. I cannot with the

majority’s gratuitous conclusion

trial should not have allowed Dr. court testify opinions

Evans to to his because

I find clearly those conclusions ‍‌‌‌‌‌​‌​‌​​‌‌​​​‌​‌‌​​‌​​​​​​‌‌​​‌​‌​‌‌‌​‌​​​‌​‌‍erroneous. law, existing

Under Court’s case

trial error court committed reversible Stopher’s challenge

when it overruled Thus, I would reverse and

Juror #361. case the trial for a

remand the court

new trial.

STUMBO, J., joins this dissent. Stringer expert determining the cause Common- of a medical 35. KRE 401. See also (1997) wealth, physical order to understand condition in 956 S.W.2d 889-892 890). (''[JJurors the evidence....” Id. at usually ... do need the assistance

Case Details

Case Name: Stopher v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Aug 15, 2001

Citation: 57 S.W.3d 787

Docket Number: 1998-SC-0334-MR

Court Abbreviation: Ky.