*1 discovery of irreparable harm suffer documents, they nor shown
these remedy inadequate. their Appeals is opinion of the Court of affirmed. LAMBERT, J., except
All concur sitting. THOMPSON, Eugene Appellant,
William Kentucky, COMMONWEALTH of Appellee. No. 87-SC-239-MR. Supreme Kentucky. Court of
Sept. 1993. As Amended Oct. *2 Tustaniwsky, Boyce,
Oleh R. Donna L. Frankfort, Dept, Advocacy, ap- of Public pellant. Gorman, Gen., Atty.
Chris A. David Sex- ton, Ullerieh, Gen., Attys. Carol C. Asst. Frankfort, appellee.
OPINION OF THE COURT judgment This is a direct from the Lyon Circuit Court which sentenced appellant, Eugene Thompson, William following He a conviction of murder. twenty also received consecutive terms years degree robbery years for first and ten degree escape. for first
FACTS murder,
Appellant had been convicted of serving and was time therefor. Prior to the incident which led to indictment, appeal, conviction and this appellant had been transferred from the Kentucky Reformatory to the State Western Kentucky Lyon County. Farm Center He assigned daily been had duties at the dairy, working and had been there about five supervisor, weeks before the homicide. His victim, who later became his was Fred Cash. crime, 9, 1986, morning May theOn appellant picked up go to work Cash between 4:00 and 4:30 a.m. The evi- that, although dence shows it was a warm day, appellant wore street clothes under his prison garb, normal work and he wore brown regulation suede shoes rather than work pocket boots. He concealed a razor in his procured jacket eye an extra both glasses, which he did not need. After arriv- farm, ing appellant at the Cash directed help by pulling him start a tractor it with the prison difficulty van. When van, hooking the chain to the Cash took away the chain to the van and hooked it himself. He told that it should not be that difficult to hook the chain to the van. Appellant took the statement as criticism. eyes up His welled with tears. He immedi- ately picked up a hammer and struck Cash in head, kneeling. Appellant Cash time, striking admitted to Cash one but pathologist testified that Cash suffered head, blows, being process was in the Ap- all conviction which twelve hammer appealed. body pellant pulled then Cash’s into stall in barn, nearby bludgeoned where he further I. WAS body then searched the Cash. *3 A TO DENY CHANGE COURT keys,
removed
wallet and knife. He
Cash’s
OF VENUE?
dairy
took
van
drove to Prince-
then
the
and
ton, where,
station,
of
had been set for
gas
The trial
this case
in a
he shaved his
begin
to
several months
on October
goatee
changed his
mustache and
and
hair-
trial,
6,1986,
days before the
On October
two
style.
had
Appellant
previously divested
Change
for
appellant filed a verified “Petition
a
prison
bought
himself of his
clothes. He
Filed with the
of Venue.” KRS 452.210.
Indianapolis,
bus ticket to
Indiana. When
requisite
was an exten
petition and
affidavits
Madisonville,
stopped
the bus
at
an interim
articles,
newspaper
transcripts
array
sive
of
appellant
stop,
was arrested.
concerning
case
of local
radio broadcasts
expressed
plead
desire to
his
a
editor in a local
copy
and
of a letter to the
to
guilty,
accept
penal-
and wanted
the death
residents,
by
paper, signed
150 local
entered,
ty.
guilty plea
No formal
was
how-
to the
conviction.
referred
ever,
trial,
over a
the
and
month before
7, 1986,
day
one
before the
On October
appellant
cooperate
his
began to
coun-
trial,
sampling
a
filed
results of
appellant
the
Although
testify
guilt
sel.
he did
at the
type public opinion poll
jury eligible citi-
of
trial,
testify
phase
penal-
of
he did
at the
his
County. Basically,
Lyon
zens of
it showed
ty phase.
exception
multiple
the
of the
With
Lyon County citi-
high percentage
that a
of
blows, appellant
virtually all
admitted
(94%),thought
zens
the case
knew about
leading up
including
other events
and
the
to
(44%),
preferred the
appellant
guilty
and
closing
appellant’s
murder. At
argument,
(52%).
for
The
appellant
appellant
the
counsel admitted to
Commonwealth, caught
the
short because of
Cash,
corpse
killed
rifled his
for valuables
notice,
very
citizen
late
filed four
affidavits
custody
escaped
and
in the farm vehicle.
which,
effect, opined
in
appropri-
Other facts will be addressed as is
County.
Lyon
fair trial in
receive a
appellant’s
to
arguments
ate
the
discussed
judge
A hearing before the trial
was held
herein.
on
1986. The issue of the lack of
October
Although appellant
thirty-six alleged
raises
filing
petition
of
notice
the
reasonable
brief,
only
errors
we will discuss
of
six
prosecution.
hearing, by
was raised at
carefully
those
have
issues. We
considered
petition
The trial court denied the
for
raised,
thirty
all issues
the other
find
sole reason that
reasonable notice of
have no merit.
given,
required by
motion
as is
KRS
452.220(2). The trial
did not
court
reach
Interestingly enough,
petition.
merits
CONTENTIONS
of
subsequently denying appellant’s
motion
arguments
The
we
chosen to
discuss
trial,
of
judge
for a
stated that “one
new
(1)
are:
it error
trial
to
Was
for the
court
filed
in this
by
the few motions
the defendant
deny appellant’s
change
motion
a
of
for
ven-
may have
merit was motion
case that
(2)
ue;
it
trial
Was
error for the
court to
added.)
(Emphasis
change
venue."
(3)
examination;
restrict voir dire
itWas
excuse,
majority
nar
error for the trial court
fail to
Court believes the
(4)
jury panel;
ruling
certain members
row
correct.
452.220(2)
Although
it
for the
does not define
Was
error
trial court
refuse to
“reasonable,”
said, in
we have
Shelton
instruct the
theft and second
(5)
Commonwealth,
733, 134
escape;
Ky.
it
280
653
Was
error for the trial court to
(1939)
deny
it was not error to
a motion
give
refuse
definition of extreme emo-
disturbance;
(6)
day
change
tional
for a
of venue filed on
Was
error
admit,
aggravating
trial.
also Russell
court
See
circumstance,
Ky.,
majority
appellant’s
evidence of
murder
405 S.W.2d
delay
subject
filing
knowledge
this Court feels that the
of the case is the
matter,
solely
appellant’s
practice”
motion was due
own
the “better
is for the line of
actions,
Watts,
questioning
following
Miller v.
to be conducted outside of the
(whether
(1969)
presence
of other
conducted
“unwarrant
counsel).
by
delay making
ed
the court or
Grooms was
motion amounts to
right
change
following
waiver of the
to seek
of decided
the trial of this case.
venue.” The
believes that
twenty-five venirepersons
The first
pre-trial publicity,
was aware of the
the feel
questioned
group,
were
as a
and then
ings
community
about the
individual counsel. It is a fair statement that
delay
that such a
constituted a waiver of the
inquiries
most of the individual voir dire
cov
right
petition
days
to file a
two
before the
*4
capital punishment
pre-trial publici
ered
trial.
ty.
precluded
The trial court —in advance —
Moreover,
proposition
it
ais
fundamental
asking
counsel from
what kind of evidence or
of law that this
will not
overrule
justify
penalty,
would
a death
as well
crimes
decision of a trial
in these matters
as,
under what circumstances
sentence less
unless it is shown that the trial court abused
appropriate.
than death would be
its discretion. Kordenbrock v. Common-
Following
panel,
the exhaustion of the first
(1985).
wealth, Ky., 700
S.W.2d
Grooms
court, apparently impatient
appel-
at
court on theft
unlawful
and second
COURT TO REFUSE TO GIVE
degree escape. Appellant argued that
EXTREME
DEFINITION OF
EMO-
proper
instructions were
because his defense
TIONAL DISTURBANCE?
killing
Cash was not to
Thus,
robbery
escape.
effectuate a
a rea
guilt-innocence phase
appel
In the
sonable
could doubt that defendant is
trial,
lant’s
was instructed on the
guilty
degree robbery
of first
and first de
degree
offense of murder and first
man
gree escape, but could conclude that he is
slaughter. Under the instruction for mur
guilty of lesser offenses. The trial court
der,
basically parroted
the trial court
rejected appellant’s tendered instructions.
507.020,
statute,
by stating
murder
KRS
guilty
if
would be
of murder
515.020(1)
lists the elements of rob-
acting
killed Fred Cash “not while
under the
bery
degree
in the first
as:
influence of extreme emotional disturbance
A person
guilty
robbery
in the first
justification
for which
there was
reasonable
when,
committing
in the course of
*6
or excuse under the
as he
circumstances
theft, he uses or threatens the immediate
manslaughter
them to be.” The
believed
physical
upon
person
use of
force
another
jury
appel
instruction instructed the
to find
accomplish
with intent
the theft and
guilty manslaughter in
lant
of
the first de
when he:
gree
appellant guilty
if the
did not find
(a)
physical injury
any person
Causes
beyond
of murder and the
finds
a rea
crime;
in
participant
who is not a
or
sonable doubt that
“killed Charles
(b)
deadly weapon;
a
Is armed with
or
“[t]hat
Fred Cash” and
he did so with the
(e)
or
the immediate
Uses
threatens
use
causing
Fred
intention of
Charles
Cash’s
dangerous
upon any person
a
instrument
death.”
asserts that he was enti
participant
who
not a
in
is
the crime.
defining
instruction
the term “ex
tled
an
520.020(1)
escape
defines
in the first
treme emotional disturbance.”
degree
custody
escape
as an
“from
or a
concerning
an
Before
instruction
extreme
facility by the use of force or threat
detention
justified
emotional disturbance is
“there
against
person.”
of force
another
in
something
must be
the evidence sufficient
established, however,
if
“It is
well
whether
de-
to raise a reasonable doubt
only
points
evidence
to the conclusion that
guilty
manslaugh-
is
of murder or
fendant
offense,
guilty
it is
the accused is
of but one
ter.” Gall v.
607
necessary
proper
give
not
or
instructions
(1980),
97,
S.W.2d
108
overruled
embracing
degrees.”
v.
lower
Cox Common-
Commonwealth,
grounds by, Payne
v.
(1973).
wealth,
834,
Ky., 491 S.W.2d
836
(1981). An examination of
877
murder, robbery
enraged,
Appellant’s
final.
trial
temporary
so
a
state
mind
inflamed,
In
escape
this Court
or disturbed
to overcome
was
as
to act
judgment,
appeal
and to cause one
from
appellant’s
one’s
stated that
uncontrollably
force of
impelling
from
conviction “has never
murder
willful
rather
disturbance
the extreme emotional
pending.”
is
still
It
been dismissed.
purposes.
than from evil or malicious
Commonwealth, Ky., 736
Thompson v.
(1987).
319, 321
“uneasy”
Appellant’s being “upset” and
does S.W.2d
not
extreme emotional disturbance
constitute
532.025(2)(a)(l) re-
language in KRS
as defined McClellan.
being
aggravator
“prior
a
rec-
fers to an
The Court reversed and remanded McClel-
long
It has
been held
ord of conviction.”
In
reasons.
McClellan we
lan
several
“conviction,
Kentucky courts that a
subsequent
in a
stated
judgment”
be
means the final
cannot
course
be
as to
definition of
should
instructed
a
if an
is
upon
appeal
as a conviction
relied
However,
extreme emotional disturbance.
being
appeal
“an
criminal
taken because
a
distinguishable
the case
McClellan is
suspends
judgment, and this does
case
presented
today.
before
become final until
termination
significant
as to
McClellan there was
issue
Ky.
Foure v.
appeal.”
an ex-
acting
whether McClellan was
under
See also Com-
283 S.W.
instant
treme emotional disturbance.
In the
Duvall, Ky.,
monwealth
case, there
issue. Appellant
is no such
(conviction
(1977)
being
is
appealed
“uneasy”
“upset”.
said to be
No evi-
impeach-
final and
used for
cannot be
presented
dence was
emotions
recently
purposes).
this Court
ment
More
ranged beyond upset
uneasy.
Under
has held that
conviction cannot
situation,
specific
factual
truth-in-sentencing
utilized under the
statute
the Court does not believe that an instruction
felony
if
persistent
offender statutes
defining extreme emotional
disturbance
pending.
Melson v.
Common-
necessary.
wealth, Ky.,
ED? foregoing For the reasons this case is re- 532.025(2)(a)(l) for retrial in versed and remanded conformi- lists “a opinion ty with the of this Court. capital record conviction for offense” aggravating an circumstance the for which may imposed. Dining ap COMBS, LAMBERT, REYNOLDS, and trial,
pellant’s introduced Commonwealth SPAIN, JJ., concur. aggravator through evidence of the testi STEPHENS, C.J., majority mony concurs in Lyon of the Circuit Clerk. The clerk I opinion exception show with to Issue and Issue testified that he had certified records II, ing separate dissenting opinion in Pike files a was convicted County, respect in under KRS I and II. of willful murder Issue Issue 435.010.1 WINTERSHEIMER, J., separate files a Appellant argues that the conviction from opinion. dissenting ag- improperly as an used LEIBSON, J., sitting. gravator because the 1974 conviction was repealed. 1. Since 1974 KRS 435.010 has been currently "Murder” classified under KRS 507.-
STEPHENS, Justice, dissenting. Chief constitutes an emotional extreme distur- bance.” Id. at 469. respectfully Opinion I dissent from the years in Three later Dean v. Common- majority. wealth, Ky., 777 S.W.2d we “[wjhether stated that extreme emotional I. WAS an disturbance is used as element COURT TO DENY A CHANGE murder, manslaughter, mitigating circum- OF VENUE? instructions, jury stance in- should be reading appropriate the briefs and the structed as to its definition.” case, part transcript in I felt an years Two after Dean we reiterated: overwhelming deja sense of vu. The atmo- separate there should have been a instruc- (or case, sphere surrounding this the action tion emotional on extreme disturbance so it) by judge, lack of the uncontro- could understand how to verted evidence of the attitude commu- apply extreme emotional distress to differ- nity poll by appellant, as shown taken entiate two intentional homicide me, specter all raise of the trial and crimes; intentional murder and man- conviction of Fred Grooms v. Com- Grooms. slaughter degree. in the first monwealth, Ky., 756 S.W.2d Holbrook v. 813 S.W.2d I in dissented and the reasons Holbrook, in in forth, 142,143, identical, except Id. set at are presently was enti- ease before poll. a numerical I difference will tled to a definition of extreme emotional dis- opinion by repeating not overburden this they properly so that differ- turbance verbiage. simply I will refer to it and incor- entiate between murder and first it, reference, porate in this dissent. manslaughter. highly charged atmosphere po- The reasons, I For these on retrial would re- jurors tential in this case is identical to that quire given to the instruction be in Grooms. Ultimate fairness mandates a extreme emotional defines disturbance. change I of venue this case as believed it retrial, proof if the did Grooms. On is the WINTERSHEIMER, Justice, dissenting. same, change I would order a of venue. respectfully I dissent opinion because I do not believe the trial TRIAL II. WAS IT ERROR FOR THE refusing abused his discretion A COURT TO REFUSE TO GIVE strike several and there was DEFINITION OF EXTREME EMO- per- aggravating a sufficient circumstance to TIONAL DISTURBANCE? punishment given in mit the this case. distur- definition of extreme emotional majority opinion mem- states five given should have been to the bance *8 original jury panel strong of the had bers Repeatedly, required this Court has such a preconceived guilt of the notions about the definition. severity punishment the to defendant and 715 McClellan v. and were therefore not fair be administered (1986), 464 this Court stated that jurors. impartial and [wjithout some standard or definition a recognized It that Juror Peek should jury speculate left to in a vacuum as to serve, by the and did not was struck defense might might what circumstances not serve. Juror Holt and Juror Parrish did emotional disturbance. constitute extreme serve, did as did Juror Guess and Juror Assembly did not define Since the General My review of the record indicates Galusha. term, necessary for the the it becomes the with the decision of no dissatisfaction court to do so. to judge trial to allow Jurors Holt and Guess McClellan, challenged. I was not at 467. retrial serve. Juror Galusha McClellan On part of jury can no abuse of discretion on the ordered that the “be instructed as find accepting judge the trial to the definition of the state of mind which
879
sentencing
jurors
closely
conviction in a death
None of
were
related
Commonwealth,
system
contemplated by
hearing.
v.
as
Peterson
the corrections
See
Commonwealth,
(1983),
Ky.,
289,
404
cert.
v.
695 S.W.2d
S.E.2d 520
Ward
225 Va.
302
(1985).
865,
202,
jurors
denied,
been
None
104
78
S.Ct.
464 U.S.
Marsch,
pursuant
283,
supra,
Jordan,
cause
176;
struck for
Ariz.
v.
126
L.Ed.2d
State
Grooms, swpra, Rigsby, supra, or
v.
denied,
986,
Peters
825,
101
P.2d
449
614
cert.
U.S.
(1974).
Ky.
764
505 S.W.2d
(1980);
Spaziano
251
S.Ct.
66 L.Ed.2d
affirmed,
State,
(1983),
Fla., 433
v.
So.2d 508
reveals
theme in re-
This case
a common
3154, L.Ed.2d 340
468 U.S.
104 S.Ct.
82
gard
to the level of
of most
awareness
Pollard,
735
State
panel
Generally, as well as in this
cf.
members.
(1987).
S.W.2d 345
case,
jury duty
of those called for
who
most
particular
actually read or heard about the
conviction
Here
1974 willful murder
very marginal ability
crime involved have a
it was
was used
“essential
because
newspa-
even
to remember
true facts or
possible
it all
relevant infor
have before
Here,
any
per
many
accounts
details.
individual defendant whose
mation about the
jurors
they did
prospective
said
know the
v. Ra
fate it
determine.”
must
California
prosecutor
actually they only recog-
when
mos,
992, 103
3446, L.Ed.2d
S.Ct.
U.S.
capacity
name and
as an
nized his
elected
(1983).
public
the views
official.
review of
open
question
I
believe it is
serious
jurors
capital punishment does
dis-
about
the earlier
whether in this case
use of
anything
prevent
close
that would
or sub-
at all
aggravating
conviction
factor was
as
stantially impair
performance
of their
prejudicial.
Here the
determined
jurors in
duty as
with the
accordance
instruc-
during
Thompson
committed the murder
jurors.
of the court and
oath as
tion
their
Cf.
robbery and
first-degree
commission
Witt,
Wainwright v.
469 U.S.
105 S.Ct.
prisoner
murdered a
who
844,
standards set out in Marsch. many aspects trial of
any partic- the decision as to whether a juror person ular should serve as should primarily rest with the sound discretion of Gary MALLORY, Mallory, Mark Steven judge. Mallory, Jerry French and Ronnie Although there attractiveness to facial French, Appellants, argument first murder convic pending still tion which was should sentencing phase, been used in the not have Boothe, Virginia Jackie MALLORY arguable prejudice as to under these it is Individually Co-Executors Abernathy v. circumstances. Common Cf. Mallory, Appellees. Lillian Estate of wealth, Ky., 439 K.R.S. *9 532.025(2)(a)(l) No. 92-SC-933-DG. prior “a simply requires rec legislature ord of conviction.” If the Kentucky. Supreme Court of only to allow intended the use convictions appeal, had been on direct affirmed Sept. have so stated. Other states pendency concluded
post-conviction proceedings does elimi possibility
nate the of the use