*1 THOMAS, Grayson Appellant, Alfred Kentucky,
COMMONWEALTH
Appellee.
No. 88-SC-375-MR. Kentucky.
Supreme Court of
May 1993. Sept.
Rehearing Denied 1993. *2 felony burgla- underlying first-degree
ry. gruesome provided
Morton details slaying. pretrial In his he statement Thomas, only instigator blamed not as the crimes, person these but also as the sole against wielding knife the victim. At persisted trial he his claim that Thomas malefactor, principal was the but he now participating acknowledged slashing Mrs. Nevertheless, Back. Morton testified was her,” gotta stated that “we kill Thomas who Back, caught up to fleeing who first Mrs. Finally, and who slit her throat. Mor- first “just crazy ton that Thomas on testified went her, just cutting carving her and her.” trial, but, testify Thomas did at based statements, pretrial theory his the defense Thomas, throughout the trial was who had claimed was too drunk to what he know happened, spe- too was intoxicated to have a burglarize ring- cific intent to or to be the episode. criminal leader in this Larry Marshall, Namkin, H. Julie Asst. Advocates, Department Public of Public Ad- assign- appeal separate includes 34 Frankfort, vocacy, appellant. for error, as ments of follows: Gorman, Gen., Atty. Chris Elizabeth A. 1) Unduly restricting Witness Morton’s Myerscough, Abby Jones, Attys. Dina Asst. cross-examination. Gen., Frankfort, appellee. for 2) juve- identify to Failure Morton’s two adjudications burglary nile for
LEIBSON, Justice. phase. 1, 1987, Back, 75-year On March Grace 3) trial, provide, prior to Failure details living Sugar old widow alone on Branch in of the deal Commonwealth’s with Morton. Redfox, County, Kentucky, Knott 4) testimony on Morton’s cross-examina- body slashed death. Her mutilated polygraph” tion that he would “take a his lying in the yards found road 150 from her testimony. house. Her house burglarized had been and 5) burned. court’s The trial instructions and prosecutor’s argument ju- suggested to the appellant, Thomas, Grayson Alfred only rors verdict was that their a recommen- Morton, and David William sixteen dation, there was an appeal. and automatic time, charged were separately with murder, 6) first-degree her and with arson testimony part Morton’s was in first-degree burglary. Shortly the tri- of a before tainted fruit violation of the marital confederate, Morton, guilty al pled privilege. communication He then murder. testified as Common- 7) Testimony witness, Ron- from another key wealth’s witness at trial in ex- Thomas’ Thomas, nie constituted both marital commu- change the Commonwealth’s recommen- hearsay nication violations. 30-year of a dation in his case. sentence 8) indepen- provide Failure funds for an guilty Thomas was found of wanton murder psychiatrist. dent first-degree burglary; guilty of ar- 9) psychiatric son. He was sentenced to death for wanton Denial of examination years’ and to imprisonment murder for Morton.
10) and remanded a new Accomplicetestimony corrobo- the case reversed was not (1) are: issues 19-23 with trial. These issues rated. selection, issue references support evidence to a ver- Insufficient being only a to the verdict with reference “felony” murder. dict of wanton re- regard to the recommendation. With *3 12) predicat- A wanton murder instruction error, Majority maining assignments of theory appellant assisted another ed on the unpreserved has concluded that some are charged improper the indictment since worst, error, no or and rest involved committing the crime alone. Thomas with necessary it error. we deem harmless Since 13) on the occurring Failure to instruct defense for errors dur- to reverse this case jury intoxication. the term “rec- ing and use of selection ommend,” detail which will be discussed 14) second-degree on Failure to instruct Opinion, unnecessary it is to address manslaughter. if arguments being rejected, would do as we 15) tres- instruct on criminal Failure to judgment. intended affirm we pass. 16) inflammatory photographs. Use I. OF JUROR SPECIFIC CLAIMS 17) sympathy Evidence used elicit ERRORS SELECTION the victim. implied or ISSUE 19: Jurors who stated 18) closing Prosecutorial misconduct they imposition would automatic favor guilt penalty phas- argument at and both guilt. penalty upon finding a death es. jurors challenged on this There three were 19-23) disqualified Failure to strike Martin, Short, and Marvis ground: Madison for cause. Davidson. Walter 24) grant change venue. Failure to them, Madison Martin Marvis Two of
25-28) penalty phase Short, sug- instruc- initially Errors in manner responded they firmly tions. gesting were committed conviction, upon fur- penalty upon but death 29) Thom- Improper cross-examination of prosecutor elicited from questioning the ther pastor phase. penalty as’ they suggested could responses that them 30) phase penalty The verdict form options. sentencing Further- all consider imposing the improper required it because more, challenged for cause. they were not penalty aggrava- if the found death by the However, the bias demonstrated ting circumstance. Davidson, juror, the third Walter answers of 31) 532.025(2)(b) an unconstitution- KRS is unequivocal: strong and judicial it infringement power al you I believe “DEFENSE COUNSEL: specifies that be instructed shall you opinion as to that had an indicated penalty arguments after of counsel at the if penalty be appropriate would what the penalty phase of a death case. that? guilty. he’s Was I found 32) The in this case is un- death sentence Yes, I do. DAVIDSON: constitutionally disproportional. that DEFENSE COUNSEL: What 33) Young were uncon- adults women opinion? stitutionally jury pool. unrepresented in the Death. DAVIDSON: 34) The of cumulative errors de- effect you prived appellant of his constitutional be COUNSEL: Would DEFENSE penalty fair to a trial. able to consider other you penalty be the that would would death Majority of this Court has concluded you probably point feel that at this would that error has occurred with reference to two for, you guilty? him vote were find prejudicial issues so substantial definitely I it. judgment verdict and must be set aside and would vote for DAVIDSON: having Hall You defi- Gilbert admitted read DEFENSE COUNSEL: would nitely newspaper story was told vote for death? ... police Mr. after he was Morton Yes. DAVIDSON: He then arrested.” was asked: Honor, I Your DEFENSE COUNSEL: you ... Do think DEFENSE COUNSEL: juror.” maybe you you affect make that would prosecutor attempted a rehabilitation likely to him if he [Morton] more believe juror by eliciting positive response of this again? gets the stand and tells questions further whether Davidson Well, yes. HALL: decide evidence “proper based on responses then to reha- The court elicited you penalty phase.” heard in the bias, expression but bilitate this failure to *4 juror had bias This indicated a so challenge falls far sustain the for cause short strong prosecutor’s questions that did not guaranteeing of the standards we set for disqualification. serve to remove the As Montgomery neutral v. Common- Montgomery stated in wealth, supra, by Gilbert Hall was struck Ky., 819 further S.W.2d challenge, peremptory no because the doubt questions provide a do “not device to ‘reha pretrial publicity prej- defense concluded had bilitate’ a who should be considered opinion. udiced his disqualified by personal knowledge his or his 2) McCray Amburgey: past expressed experience, or his attitude as you DEFENSE What have COUNSEL: on voir dire.” you heard about the case the best recall? by Davidson struck chal- peremptory just I heard that he killed AMBURGEY: lenge, by no doubt one exercised defense up the woman cut her set the prosecutor, rather than although this is guess. I house afire implicit explicit rather than DEFENSE that COUNSEL: Did cause preserved. strike not sheets have been you opinion have an to whether he’s Madison Martin and Marvis Short were likely more to have done it or not? struck, not no doubt because the had defense Well, I AMBURGEY: don’t know. run peremptory challenges out of their you DEFENSE Would COUNSEL: be equivocal leaving somewhat answers made honestly presume this time to him able at these undesirables onerous less point? to be innocent at this others, Davidson, against than like Walter point, peremptories whom No. Not at this no. were used. AMBURGEY: DEFENSE COUNSEL: You understand answers, ISSUE 20: Jurors whose or at pre- that under law now he’s answers, implied least some they could not sumed be innocent? evidence, mitigating consider or cer- at least Yeah, I types mitigating tain AMBURGEY: understand that. evidence: Madison Caudill, Bolán, (supra), Martin James Anna DEFENSE COUNSEL: Because what and Eddie Jacobs. heard, you’ve getting right, you if I’m this you presume don’t think that him to challenged None of these were point? be innocent cause, expressed unequivocal and none an No, opinion AMBURGEY: not now. Not strong so that the trial court’s failure them, this far the case.” sponte, to excuse sua should be viewed However, as reversible error. answers their challenged When defense then were suggests such that common sense cause, Amburgey the court undertook to defense would have found it desirable to by explaining him rehabilitate “under peremptory strike them for cause if chal- defendant, Defendant, any the law lenges had not exhausted. been presumed proven guilty,” innocent until response Amburgey ISSUE 21: Jurors elicited a from that “I formed opinion guilt pretrial based on publicity. that.” understand time, you “In and I for cause was overruled. the interest of asked you my Amburgey peremptory was struck chal- can tell he is married to first lenge, no cousin.” doubt the defense. added, object him He “I would not Amburgey, In addition to Hall and chal- questioning him further on [defense counsel] lenges knowledge for cause based particular certainly aspect. That’s gleaned pretrial publicity from were grounds challenge. for an We are automatic eight made for at least more and overruled no relation.” Dixon, Ratliff,
jurors: Larry Helen Marvis back, acknowledged Mr. Dixon was called Short, Craft, Fields, Simon Robert Dean Randy,” “My wife is first cousins to but when Adams, Prater, Gayheart and Paul Paul be- asked, you cause “would that embarrass- positively questions sug- cause answered you ment make tend to lean toward Ran- try impartial gesting they de- be dy’s any,” responded “I he don’t think it side spite previous knowledge. their would.” ISSUE 23: Jurors related to the victim recently examined First-cousin law is most (by affinity, consanguinity). Commonwealth, Ky., Sanborn There, (1988),reversing. 546-47 Juror Steve Hicks stated he was sheriff, witness, key was “the victim’s through his possibly related to victim *5 juror He was related to first-cousin.” also wife: juror’s in that “this was James Snider wife (the “My says if Back vic- wife that Mrs. the sheriffs first-cousin.” We state: tim) any relation to the Reverend I.V. “Juror Snider should have been excused Back, probably then she be related would Pennington authority for of cause under myself.” to Mrs. Back. I don’t know Commonwealth, Ky., 316 S.W.2d juror Pennington held that a his Hicks stated this would not influence prose- a with the decision, on first-cousin basis challenged he for was not key should have been ex- cution’s witness cause. cause, though he disclaimed cused for even jury. Hicks Foreman of the served as bias, probability ‘[i]t is the of suggests Again, common sense Hicks prejudice that is determinative bias or thought been struck because he have Id., ruling cause.’ for part might possibly be of his wife’s victim 224.” family, per- if the defense had had further We state further: nothing provide emptories. But his answers “Ordinarily it of the is within the discretion suggest court should have sua to excuse a first- court to whether for cause. sponte struck Hicks by affinity. Such is not the case cousin 2) juror’s disqualifica- Larry Dixon. This answers here where there were further is an added to the kinship tion based on issue showing probability bias....” leave to file appellant’s motion for case Marsch v. Com- Sanborn then refers to brief, supplemental supplemental with brief monwealth, Ky., 743 S.W.2d attached, juror specifying that this should failing court erred holding “the trial he is been struck for cause because have jurors who were prospective cause excuse for first cousin.” prosecutor’s] [the “married to second or third persons who were married to here, victim, where, as there cousins of dire, initial voir Apparently, on the court’s implying bias.” circumstances were additional relationship to juror acknowledged a Sanborn, supra at 547. At close Andy Campbell, prosecutor. supple- present In case the defense’s Dixon asked that voir dire defense counsel im- circumstances claims further more mental brief get can some called back so we “be voir earlier on responses given plying bias relationship the Common- on this details Mr. when publicity, regarding pretrial re- prosecutor then dire Attorney.” The wealth out he would start asked whether Dixon was plied: considering responsible spouse” Judge Thomas more where the “or his within (Morton). juvenile prohibited degree relationship. case than the Dixon stat- In Sanborn, premise: supra, ed that out with relationship by he would start Marsch and “That’s what the media led me to affinity believe. blood and are treated the same for Then, put way.” I’ll it that prose- purposes juror when the disqualification. Sizemore him, attempted Commonwealth, 637, 276 cutor Ky. to rehabilitate Dixon v. S.W. stated: specifying is an old family “by consanguini relationship, whether was, know, you “The report media like I ty by affinity,” juror disqualifies and is stated, juvenile it was the who was an grounds degree for reversal relation accessory. say, what —like I I Now that’s ship suggests partiality probability was not That is there. what the media resulting therefrom.” said.” Then the court intervened: TO SUMMARIZE: Dixon, you put “Mr. can aside whatever 1) (Dixon) One served who was chal- you try have heard read or the case lenged for cause and who should have been solely you during the evidence hear struck for cause it is obvious the where Com- course of the trial instructions on monwealth knew it error to overrule the given you by the law the Court? previous challenge against ju- cause I DIXON: I believe could. ror because the Commonwealth later offered THE all COURT: That’s we ask and we to excuse him. appreciate your candor....” (Davidson, Hall Three and Am- attempted The Commonwealth to re burgey) cause, challenged who were “magic habilitate Dixon question,” have been struck cause. Subse- contrary Montgomery *6 quently they by peremptory were struck supra. Even if we for purpose assume the challenge. per- Defendant used all of his argument challenge that the for cause based emptory challenges did not ask but for more. knowledge pretrial on publicity prop 3) (Short Ratliff) jurors Two more erly overruled, surely Dixon should have against challenges whom for cause based on been challenged excused when he was later publicity their knowledge pretrial were on when it was revealed that his wife was lodged permitted and overruled were to sit first-cousin prosecutor, to the Mr. Campbell. jury, they on this because disclaimed bias Dixon jury, sat on although common knowledge. from this suggests sense an obviously he was undesir juror. able defense At the conclusion of the (Martin, jurors Bolen, Four other Cau- trial, designate when it was time to the two dill, Hicks, Foreman), the who sat on jurors alternate remaining and send the jury obviously jurors were undesirable case, twelve back to decide the the Common they gave because of the on answers voir wealth offered “agree” to with defense coun dire, contemporaneous but there was no chal- “prior Larry sel’s challenge to Dixon and let lenge unpre- for cause. the error is Thus him be the removed.” But defense counsel served, they perempto- but the fact survived declined. Whether would have cured the ry challenge provides reason to believe the throughout trial, error for Dixon to sit the defense peremptories being ran out of before deliberations, but not in ques final is a moot able to strike them. tion. The fact that he sat with the appellant In that this case it is clear the throughout the trial is reversible error. challenges. all peremptory used of his After prosecutor The ruling peremp- misled the trial court the trial court had finished making 29, into tory panel challenges, per- distinction between relation from a 15 ship by affinity. by challenges, blood and peremptory Code of sons were struck (SCR C(l)(d)) seated; Judicial regulars Ethics 4.300 Canon 14 and were 12 and two to Disqualification and the Statute of Judicial be selected later as alternates. Since the (KRS 26A.015) require disqualification both peremptories defense had nine and the Com- cause;’ six, simple challenge for ... ‘their state- arithmetic confirms
monwealth
ments,
leading
peremp-
given
response
ques-
their
exercised all of
to
that both sides
tory
argues
tions,
challenges.
they
disregard
previ-
all
Commonwealth
that
information,
not
proof
appellant
is
the
did
opinions
relationships
that there
no
ous
jurors
he
claims
willingly leave on
whom now
taken
should not have been
value.’
face
cause, rather
have
struck for
should
been
objective
juror legally
...
bias renders a
just
running
peremptories.
It is
than
out
despite
impartiality.”
partial,
his claim of
so,
likely,
if
more
there were
not
original]
[Emphasis
jurors
panel
the
than those chal-
other
Next,
the Commonwealth contends
who,
lenged for
some
cause
for
reason
because,
preserved
with the
the error is
cause,
challenge
rising to the level of
Larry Dixon
possible exception of Juror
only
appellant’s attorney,
to
were
the
known
ready
agree
whom the Commonwealth was
the
even more undesirable than
ones
trial,
juror partici-
no
to excuse at
end
have
for cause.
should
been excused
challenged
pated in
verdict who
been
prongs
There are two
Common-
cause,
request
appellant’s
nor did
counsel
against failure
excuse
wealth’s defense
challenges on the ba-
peremptory
additional
jurors:
disqualified
failed to excuse dis-
sis
court
qualified jurors
cause. The Common-
First,
suggests
the Commonwealth
language in
argument is based on
wealth’s
expressing disqualifying opinions
that after
Commonwealth,
Turpin
Ky., 780 S.W.2d
jurors
by
were rehabilitated
answers
appel-
wherein we stated
they
leading questions asking
whether
lant,
prejudice
“Turpin can
no
demonstrate
(based on
put
opinions they
held
aside
jurors
or constitutional violation
coverage, relationship
vic
media
news
by
by
peremptory
removed
were
tim,
family
prosecutor,
or the
the victim’s
defense,”
language
Dunbar
etc.)
notwithstanding.
In
impartial
and be
Ky., 809
S.W.2d
view,
once the
Commonwealth’s
(1991), stating
to be
defendant’s
“[a]
agree
accept
responsibility
to decide
infringed only
impartial
tried
an
impartially, any
previous
suggested
bias
unqualified juror
in the deci-
participates
Montgomery
is harmless.
v. Com
answers
have
monwealth,
....
Even if a
been
sion
Ky., 819
cause,
error does not vio-
removed for
such
respect:
the law in this
clarifies
impartial
to an
late
constitutional
*7
‘magic’
‘magic ques-
is
in the
“There
no
actually sit on the
person
if
did not
question
just
It is
another
where
tion.’
jury.”
may
bearing on
the answer
have some
juror
deciding
particular
a
is dis-
whether
language
Turpin
This
and Dunbar is
qualified
prejudice,
or
from what-
bias
provided
procedural rights
conflict with
source, including pretrial publicity.
ever
and RCr
a criminal defendant RCr 9.36
message
trial
from this decision to the
The
9.40,
misunderstanding
premised
a
is
and
pro-
‘magic question’
court is the
does
Supreme
decision
States
Court
United
juror
a
a device to ‘rehabilitate’
who
vide
81,
Oklahoma,
487 U.S.
S.Ct.
in Ross v.
disqualified by his
be considered
(1988).
2273,
role
impartial
the
to an
Ky.,
Sanders v.
801
jury....
(1991)
principal purpose
of voir
explains
S.W.2d 665
the difference
probe
dire is to
prospective juror’s
each
principles,
between
two constitutional
tri
state of mind
to
judge
by
and
enable the trial
impartial
jury
by
al
an
and trial
due
to
law,
determine actual bias
to
process
allow coun
concepts
of
as these
factor into
suspected
sel to assess
prejudice.
bias or
denying challenges for cause. Sanders ex
voir,
Thus, a
dire
plains
examination must
separate
be
these two issues are
and dis
Sanders,
conducted in a manner
that allows the
In
any
tinct.
we asked whether
parties
effectively
to
intelligently
juror
exer
participated
biased
in
of
the decision
260
did,
Concluding
case.
that none
held
of the
death rests else
we
ateness
defendant’s
Id.,
328-29,
by
impartial jury
at
that the
to be tried
where.”
requires
any
infringed.
Caldwell
reversal when
action
was not
That did not end the
however,
prosecutor “mislead[s]
the court or
inquiry,
as the Commonwealth
jury
sentencing process
as to
in the
Secondly,
its role
it.
would have
we treated
way
jury
in a
feel less
jurors
allows the
to
length
unsuccessfully
the three
chal-
responsible
sentencing
than
for the
cause,
it should
lenged
of
none
whom tried
Wainwright,
v.
477
decision.” Darden
U.S.
had
case. We concluded
the trial court
168, 184-85,
2464, 2473, 15,
15,
n.
n.
S.Ct.
refusing
not erred in
to excuse them for
91 L.Ed.2d
Our Court
al
cause, and therefore we did not consider
ready
in
reached a
result
Ice v. Com
similar
whether,
occurred,
had error
such error
monwealth,
(1984),
Ky., 667 S.W.2d
deprived the
would have
defendant of
sub-
stating
penalty
improper
in a death
right provided
stantive
state law—the
convey
by instructions
comment to
or
against
peremptory
qualified
strikes
message
jurors’
responsi
that the
awesome
jurors.
procedural
is not an “im-
This
bility
by the fact that
deci
is lessened
their
partial jury” question,
process”
but a “due
applied
sion is not the final one.” Our Court
Oklahoma, supra, recog-
v.
question. Ross
reasoning
reversing
a death
this same
Dunbar,
Turpin
nizes
distinction.
penalty verdict in
Ward
Oklahoma,
misapplying Ross
do not.
Ky.,
rate joins. which they fair, expressed could not opin- be pre-trial ion publicity. based on Defense LEIBSON, Justice, concurring in unsuccessfully counsel moved to strike ten part/dissenting part. jurors grounds they more for cause on they admitted had read the details of this I concur in Majority Opinion as re- paper. This included two gards jury using selection errors and error in actually case, sat on this Marvis jury’s word “recommend” to describe the Short and Helen Ratliff. setting role in penalty. the death I dissent insofar as it holds there were no other sub- Notwithstanding that voir dire confirmed requiring stantial errors reversal. pervasive There are pre-trial publici- nature of the assignments four other of error ty, venue, which should change and the need for a when have been sustained. defense counsel renewed its motion for a
262 dire,
change guarantee of voir the stitutional of a neutral means of venue end point in was overruled. is the one that the case on the motion What will decide evidence telling the it renew motion open defense can the than presented court rather the dire, if, voir after voir when the answers on opinions jurors bring knowledge and the venue, change need for a of court, dire confirm the in with them to even if the are the motion is nevertheless overruled? willing knowledge and opin- to disclaim such ions. change to an of
Failure venue was abuse discretion the circumstances. The change We should direct a of venue ground should be reversed retrial of this case. grant change to a of trial court directed venue for the next trial. II. LIMITING CROSS-EXAMINATION Dowd, 1639, 717, Irvin v. 366 U.S. 81 S.Ct. MORTON, OF THE KEY PROSE- (1961), jury per- 6 751 involved a L.Ed.2d CUTION WITNESS by newspaper publicity meated in circum- Cross-examination was limited two remarkably present stances similar to the (1) ways: court to trial refused allow Supreme The re- one. United States Court identify previous to defense counsel Morton’s to versed a criminal conviction failure juvenile adjudications burglary convic- venue, grant stating change a of the defen- tions, unduly the trial court restricted his to an dant was denied constitutional into defense counsel’s cross-examination jury. The held fact that impartial Court surrounding plea circumstances Morton’s of ultimately possible it seat of is to a guilty. knowing citizens disclaim intentional First, suppressing to with reference problem, does resolve the nor cure bias previous two evidence Morton had on occa- the error: burglary: of sions been convicted conception. “Impartiality is not a technical 724, Obviously impeachment grounds pri- mind.”
It is a state of
366 U.S. at
felony
nothing
of a
has
do
or conviction
to
at 1643.
S.Ct.
before us. See KRE 609 and
with
issue
Texas,
Estes v.
381 U.S.
S.Ct.
Richardson, Ky.,
Commonwealth
showing
recognizes
263
defense,”
Sparks
As
in
complete
stated
in
193 ent
as discussed
180,
767,
Ky.
Kentucky,
S.W.
the fact
Crane v.
U.S.
106 S.Ct.
2142, 2146,
these offenses could not be identified
was influenced the deal he had made. minor_” relatively offense was testimony Morton’s was that his reason for 532.025(2), Secondly, covering KRS miti- confessing, testifying, and then was remorse gating jury may circumstances which the escaping punishment. rather than Evidence consider, mitigation does not confine regarding attorney’s the details of his rather circumstances, mitigating enumerated but plea negotiations extensive conveyed as “any mitigating calls consideration of cir- may Morton well have tended to refute this cumstances.” claim. The counsel he had received mak- 532.075(3)(c) ing may bearing Finally, deal have had a direct the fact that KRS testimony Court, on the against requires Supreme he now offered on review of a Thomas, case, plea guilty and his obviated death to consider “whether the need for further consideration of the dispropor- attor- sentence of death is excessive or ney/client privilege. legitimate This was penalty imposed tionate to the in similar Alaska, cases,” cross-examination strongly suggests under Davis v. su- probity of evi- Also, pra. qualifies having sentencing disposition denied the dence of the of a con- meaningful defendant “a opportunity pres- mitigating federate as evidence. *12 penitentia- THE TRIAL ed of IV. COURT’S sentence confinement in the ry probation VERDICT FORM life without benefit of or death,” parole years a of 25 or for minimum Although preserved, this error was not it is (2) separate, and two more different forms one should because that be addressed this jury if they for the to elect either execute being and reversed remanded for a or death. new trial. LWOP/25 only place on the forms of verdict jury the has into Otherwise been funnelled provided jury penalty phase to the to the fixing aggravated penalties, one of rather finding “aggravating write in its that circum- retaining option pen- than to fix a lesser the stance or circumstances in this exist case” alty. (Nos. was on the same verdict forms 3 and COMBS, J., joins opinion. STE- which, provided completed, when for confine- C.J., PHENS, joins III parts II and of this (1) penitentiary ment in the for either life opinion. probation parole without benefit of or until the served defendant has a minimum of WINTERSHEIMER, Justice, dissenting. (25) (LWOP/25) (2) twenty-five years or the majority I respectfully dissent from the way death sentence. There was no to com- opinion represents because I believe it a
plete
sign
of
and
either
the verdict forms
ap-
reviewing
substitution of the view of the
finding
aggravating
an
circumstance without
pellate
discretionary
court for the
decisions
fixing
aggravated penalty.
an
judge
regard
the voir
of the trial
to
dire
532.030(1)
penal-
range
covers
of
KRS
jurors.
examination and
of
person
ties
available “when
is convicted of
jurors,
argues
potential
three
offense,”
Thomas
that
capital
to
and
addition
death or
Martin,
Davidson,
have
LWOP/25,
Short and
provides
sentencing
it
for lesser
they
life,
been excused for cause because
would
options of “a sentence of
or to a term of
(20)
automatically
punishment
fix a
of death. He
twenty
years,”
not
than
less
as autho-
to
did not move
strike either Martin
Short
rized sentences.
consequently
ground
allega-
and
clear
This is
at all
from
verdict
properly preserved
appellate
tion is not
provided, although
it
forms
is contradicted
Commonwealth, Ky.,
McDonald v.
review.
No.
Instruction
“Authorized Sentences.”
was not
Davidson
potential
misled
juror. Certainly
both Martin
selected as
verdict
form remains
unresolved.
Cf.
appropriateness
in the
of
believed
Short
State,
Ok.Crim.,
Franks v.
636 P.2d
366-
However,
punishment.
the death
as
where the court decided
“the
preconceived
any
is no
of
there
evidence
using
act
verdict
of
death sentence
form
application
pen-
of the death
belief as
jury’s] findings
could
[the
indicate
have
alty
Thomas did not chal-
to this defendant.
fully
in a
mitigat-
resulted
failure to
consider
lenge for cause either Martin or Short be-
ing
and led
an
circumstances
erroneous
automatically
they
cause he believed
recommendation
sentence.”
death
impose a death sentence.
The verdict forms used
here conformed
Martin, Bo-
Thomas further contends that
Cooper,
prescribed
Kentucky
in 1
In-
those
lán,
properly
were not
Caudill
Jacobs
(Criminal),
12.10
structions
Juries
Sec.
jurors
they
con-
(1993
seated
ed.), but if the verdict forms are mis-
proper
mitigating
sider
evidence. When
legal
say
no
it
leading, it is
answer to
explained,
mitigating
role
evidence was
book,
copied
Cooper’s
it
no
out
serves
recognized
jurors
duty
the four
each of
purpose
perpetuate
this abuse. There is
such
and each
to consider
evidence
why separate
no
verdict forms should
reason
respond properly
indicated he would
select-
upon
provided:
not be
one
which
ques-
manner in
ed to serve. The
which
aggravating
would write whether
what
found,
presented provided some confu-
duly
tions were
*13
strategy.
was a considered trial
v.
face;
neck,
Sanders
3
to the front of the
wounds
Commonwealth,
(1991).
Ky.,
ry challenges. notes, majority victim, opinion
As the
75-year-old living widow alone in rural Knott
County, was slashed to death. Her home burglarized
had been In and burned. addi-
tion, my examination of the record indicates electricity
that the to the house had been cut home;
by tearing circuit breakers outside the circumstances has which notes jurors they ultimately finding sion to the under- aggravating an circumstance but require aggravat- proper did authorizes but does not stood their role. Defense counsel jurors telephone not strike for cause of the four and TV satellite dish wires had However, pursued mentioned. a review of the entire cut victim had been been proceedings beyond voir dire indicates that the de- approximately 150 feet her home numerous chal- brutally inju- fense counsel made other where she was stabbed. The lenges for cause. It would be reasonable to body ries to the victim’s included: 5 stab acceptance four assume these scalp; of the 8 wounds to wounds to the back