Wilson v. Commonwealth

872

X McCree, on that basis. Lockhart v. 476 162, 1758, U.S. 106 S.Ct. 90 L.Ed.2d 137 Humphrey The conviction of for (1986). robbery conspiracy robbery to commit jeopardy did not constitute double or multi ple punishment. Humphrey argues that XII conspiracy conviction should be dis Humphrey process was not denied due missed because there no evidence of law or a fair trial reason of the introduc any agreement other than to commit rob photographs corresponding tion of tes bery. testimony Maloney and other timony. photos We have reviewed plan evidence indicate conspiracy by a do they inflammatory not believe were kidnap both defendants to rob the vic passions served to arouse the in

tim illegal and to take other actions Commonwealth, any way. Holland v. Cf. necessary to in achieve success the criminal (1986); Ky., 703 S.W.2d 876 v. Clark Com enterprise. It is reasonable to infer that monwealth, Ky., 833 S.W.2d 793 Humphrey kidnap Wilson and intended to judgment of conviction is affirmed. in robbery victim order to commit and sub sequently to kill decided her so as not to be STEPHENS, C.J., LAMBERT, identified, raped by and the victim was SPAIN, JJ., REYNOLDS and concur. period of her abduction prior to the murder. LEIBSON, J., by separate dissents opinion, COMBS, J., in 506.110(2) joins. which specifically

K.R.S. authorized punishment robbery for as an addition to LEIBSON, Justice, dissenting part. and not a conspiracy substitute for in cases Respectfully, I from dissent so much of meeting the standards of the statute. The holding Humphrey’s as affirms convic- offenses separate are considered and a conspiracy. tion for claim jeopardy of double is no bar cumu- lative sentences. v. Garrett United I do so for the same reasons I stated in States, supra; Hunter, Missouri v. 459 Commonwealth, Ky., v. 359, 673, U.S. 74 L.Ed.2d 535 872, my opinion therein “Dissent- S.W.2d (1983). Ingram Commonwealth, Ky., ing in Part.” (1990) applicable. S.W.2d is not COMBS, J., joins this dissent. 506.110(3)

K.R.S. is of no assis Humphrey tance this situation. Here opportunity

her to discontinue the criminal

enterprise presented when she went gas for the automobile. There was a

break the so-called continuous course of

conduct. WILSON, Gregory Appellant, XI

Humphrey contends that her Kentucky, COMMONWEALTH impartial jury to an was denied because Appellee. prosecutor eight peremptory of nine used challenges jurors reserva remove No. 88-SC-896-MR. penalty. tions towards the death Supreme Kentucky. Court of There was no reversible error because it jury in 1992. improper qualify is not to death June Buchanan, capital supra. case. Poten- Rehearing Denied Oct. 1992. jurors only tial whose common attitude is opposition capital punishment do not up constitutionally recognizable

make

group exempt peremptory challenge employee

The victim was a restaurant May 29, Newport. Friday, On 1987 at p.m., 11:45 she left her best house friend’s going straight said she home. prosecution presented evidence that parked just her car her she outside of apartment Covington when she ab- Hum- ducted Wilson and co-defendant knife phrey point. sources,

Testimony at trial from various including Humphrey, indicated that the vic- tim was forced into the back of her seat Humphrey car. drove car to the own in Covington. flood wall took the up out of the car and took her on victim and made her lie her flood wall down with Humphrey put eyes closed while went to car. returned gas Humphrey After station, gas again forced Wilson into seat the car. the victim the back of her Wilson made the victim unbutton undressing the vic- blouse. Wilson finished raped her hands tim and her. He then tied Bruck, Atty., David Chief Carolina South cord, began lamp a and the victim with Columbia, Defense, Appellate of Office her she begging for her life. Wilson told S.C., Conte, Jr., Diego, Mario Gerald San said, Humphrey “You would have die. Cal., Carran, ap- Covington, Robert for W. are, us. and have seen You know who we pellant. begging, kept The victim you have die.” Gorman, Gen., A. Atty. Chris David I die.” “Please don’t kill me. don’t want to Smith, Gen., A. Atty. Asst. Elizabeth strangled and her to robbed her Wilson Gen., Myerscough, Atty. Appel- Asst. Crim. line they before crossed state death Div., Frankfort, for appellee. late Indiana. into Broderick, Director, Div., Mary Defender disposed Humphrey and Wilson Ass’n, Legal Nat. Aid & Defender Wash- in a wooded thicket corpse naked victim’s Koosed, D.C., ington, Margery B. Profes- County, Later in rural Hendrix Indiana. Law, University of Akron School of sor 30, Saturday, May Wil- morning, that same Law, Akron, Ohio, Baldani, Russell Bal- J. Holiday Humphrey stopped at a and son dani, Richardson, Lexington, Rowland & Crawfordsville, According Indiana. Inn in Legal amicus Nat. Aid and De- for curiae card, Humphrey and a registration to a fender Ass’n. hotel at 4:19 a.m. guest checked into the pair there identified Two of maids WINTERSHEIMER, Justice. Humphrey. and as Wilson Gregory appeals judgment from a Wilson proceeded to a Humphrey him and jury on a verdict which convicted based Danville, Illinois murder, rape, Shoe kidnapping, first-degree Payless Store card used to conspira- the victim’s credit was first-degree robbery and criminal where purchase pairs He two of women’s shoes robbery. sentenced cy to commit was May hosiery. day, kidnapping Later same murder and some to death on the 30, 1987, Humphrey to a went prison terms convictions and to consecutive cred- 20, first- where victim’s years respectively for K-Mart Danville 20 and 10 purchases total- was to make rape, first-degree robbery and crim- it card used degree purchases in these robbery. ling Included conspiracy to commit $227.46. inal of the victim’s the back seat of semen on and a woman’s were a man’s Seiko watch belonging to those hairs similar and car. Head for each. Wilson Gruen watch $68.00 found inside the vic- Humphrey were a Humphrey paid cash for number also similar to and head hairs car. Pubic clothing. Later tim’s items and some cosmetic were also found belonging to Wilson used those credit card was day, the victim’s handwriting ex- car. A the victim’s gas an Amoco inside purchase make a $24.50 Humphrey had au- pert established Urbana-Champagne, Illinois. station A receipts. card forged credit thored the 31, Hum- Sunday, May Wilson and On the hotel room where Wilson search of Humphrey’s phrey returned to the home of produced various Humphrey were arrested friend, Beverly Finkenstead. Finken- best price clothing, bearing K-Mart all items Humphrey had a K- testified that stead tags. They in it. both bag Mart blouse witness Humphrey only defense wearing each had a watch on were of the guilt/innocence phase 7, during the Humphrey Sunday, On June necklace. closing argu- gave his own trial. Wilson her details of Finkenstead and told visited jury he was ment in which he told crimes in which she and Wilson knew the victim” Eight guilty, he “never met nor previous participated the weekend. later, 15, Humphrey told her sister that she report- Finkenstead days on June guilty returned police Humphrey had told killed the victim. ed to the what County, After against the Hendrix both defendants. her. Also on June verdicts sum- Department phase, Indiana Sheriff’s was sentenced penalty corpse moned to a wooded thicket where murder. He was kidnapping death prison had been discovered. terms of sentenced to consecutive respectively for first- years 20 and 10 to determine the Authorities were able first-degree robbery and crim- degree rape, only by comparing its identity corpse robbery. conspiracy to commit inal X- remaining teeth with the victim’s dental counsel, The cause of death could not be rays. Wilson, raises through appellate of internal determined due to absence assignments alleged error twenty-four entomologist organs. A forensic testified carefully reviewed appeal. We have that, mag- blowfly on the extent of based and this presented by Wilson all the issues got development corpse, and on the question of concentrate on the opinion will 15 to estimated time of death had occurred right denied his Wilson was whether days prior to his June 16 examination ap- assistance counsel or effective corpse. William counsel pointment of volunteer Allegations Hagedorn and John Foote. Maloney told cell mate Willis de- Wilson merit will to be without which we consider including the initial tails of the crimes here. addressed not be the victim and intent had been “snatch” her; still alive the victim was rob I II& her; that money her was taken from when de- argues the trial court they crossed Wilson was killed before the victim counsel, effective Indiana; him of his corpse prived line into that the the state protection equal no assistance of counsel badly decomposed that would be so grant pretrial motion to they by refusing to his up; and that had sperm show would counsel discharge appointed his volunteer purchase, credit card to the victim’s used competent repre- was who he claims were things, a watch Wilson among other capital a defendant. his arrest sent wearing at the time of which it out by signing Humphrey later obtained 1, 1987, Clyde Richardson and July On also told jailers. Wilson from one of the appointed represent Megerle were Steve I they find what used Maloney, “I bet can’t 27,1987. Trial was set for October Wilson. strangle her with.” concerning filed an affidavit his Richardson sought At a continuance. poor health Maloney’s Humphrey’s account subsequent hearing, Megerle revealed presence by the rape was corroborated capital him in that he wanted to withdraw because of a resent case. When Conte Hage- previously represented attempted bring conflict since he had forth evidence behavior, alleged past witnesses for the unethical Commonwealth. dorn’s hearing. judge terminated the per- Megerle was On November McNally trial, mitted to and Kevin many points withdraw At Advocacy Department from the of Public repeated court-ap- his assertion that appointed that another were, and advised pointed standby use counsel to Wil- appointed At local counsel would be soon. words, ill-trained, “unprepared, ill- son’s hearing, subsequent the trial set a necessary compe- equipped, and lacked the September, 1988 trial date and indicated experience” objected tence and to the help public that he the local defender would Sixth, Eighth proceeding based on the administrator, Carran, Robert find local Fourteenth Amendments. Wilson made meantime, McNally counsel. In the filed a despite the fact that the these assertions resign- motion to because was withdraw previ- Hagedorn record indicated that had ing planned from the DPA and never ously tried fifteen murder cases. The DPA lead counsel in the case. Washington, Under Strickland v. replace McNally. declined to Public Advo- 668, 104 2052, 80 L.Ed.2d 674 466 U.S. though cate Paul Isaacs testified that even (1984), prevail in order to under an ineffec lawyers 34 of Ken- DPA had handled all claim, a defen assistance of counsel tive eases, tucky’s capital they other were too performance dant must show that counsel’s 17,1988, busy May to take on this one. On requires showing that deficient. This Judge posted County Lape at the Kenton made errors so serious that counsel repre- a “Plea” for counsel to Courthouse functioning guar as the “counsel” was not sent Wilson. Amend defendant the Sixth anteed the 1, 1988, court entered On June the trial Second, must ment. the defendant show permitting McNally to an order withdraw performance prejudiced that the deficient representing and ordered him requires showing This the defense. Hage- file to to turn over Wilson’s William so serious as to de counsel’s errors were dorn, responded Judge’s who had to the of a fair trial. Unless prive the defendant counsel, represent offer to plea for with an showings, it can makes both a defendant pro as lead counsel. He also bono or death not be said that conviction Sullivan, Foote and Sharon appointed John in the from a sentence resulted breakdown as co-coun- ordered that Richardson remain adversary process renders the result that Richardson, Foote and sel and ordered that 687, 104 at at S.Ct. unreliable. 466 U.S. appropriate “shall allowed the Sullivan be deciding ineffec A an actual 2064. court through services the Northern fee for their judge the reasonable tiveness claim must Sullivan, Defender, Inc.” Kentucky Public challenged conduct on the counsel’s ness of later, asked the Court to recon- two weeks case, as of particular viewed facts as counsel. appointing the order her sider conduct. A convicted the time of counsel’s making of ineffective 6, 1988, a claim permitted trial court defendant July On identify acts or omis must assistance Richardson and Sullivan to withdraw alleged not to that are file sions of counsel Richardson to turn Wilson’s directed profes the result of reasonable pro filed a have been Hagedorn. Wilson then over must then de judgment. The court Judge Lape and sional disqualify motion to se whether, of all the circum light regarding turning termine to the order objected stances, acts or omissions mo- the identified hearing files. A on Wilson’s over his range profession 16, wide of were outside the August on 1988. tion was conducted making that competent hearing by ally assistance. represented at the Wilson was determination, keep in the court should of National Association Mario Conte of the function, as elaborated ap- mind that counsel’s Lawyers. Wilson’s Defense Criminal norms, is to make Hage- prevailing professional argue that parent purpose was in the testing process work rep- competent to adversarial Foote were not dorn and

879 time, that Hagedorn made a concede case. At the same detective particular recognize is were fingerprints should that counsel he had said no court when car, really ade meant strongly presumed to have rendered he found on the victim’s significant quate fingerprints assistance make all of the defendants’ that none in the reasonable only decisions exercise of were the found because theirs were at 466 U.S. 104 S.Ct. judgment. brought at being He fingerprints considered. Any perfor 2066. deficiencies counsel’s hairs testimony pubic out Caucasian prejudicial must defense in mance to the inside to the victim’s were found dissimilar order to constitute ineffective assistance car; none of the from Wilson’s fibers under the 466 Constitution. U.S. any from the clothes matched taken fibers 104 at 2067. car; inside and that found victim’s blood years car could have there for been has applied This Court the Strickland scienti- age of blood cannot be because penalty in the death cases Gall standard fically determined. Commonwealth, Ky., 702 S.W.2d McQueen (1985), Commonwealth, Ky., of what highly brief is critical Wilson’s (1986) and Moore v. Com- S.W.2d lengthy he terms and bizarre remarks monwealth, Ky., 771 S.W.2d sentencing. Howev- Hagedorn prior his remarks, er, and consider- have read we Applying the standard Strickland content, find them to be ing the whole case, accept to this we cannot Wilson’s argument plausible thought-provoking as contention that was denied effective against imposing penalty. death counsel. examination sistance of A careful the record own indicates Wilson’s reply in his contends brief severely hampered actions the efforts applica is not that the Strickland standard counsel to assist him. the start of Prior to the trial and that the issue is whether ble dire, voir Wilson told the trial court grant pretrial pro his se court’s refusal rejecting the and assistance he was advice discharge appointed his motion However, Hagedorn and Wil Foote. counsel, him of his effec deprived rights to allege son’s brief fails to that even one equal protec assistance counsel and tive juror improperly impaneled. line is the bottom tion. He contends that allow to make an did not defense counsel trust his he did not could not argument opening closing statement or court that the trial appointed counsel and guilt phase of the trial. Wilson inquiry have conducted an extensive should testify call did not allow counsel to background, appointed counsel’s into told repeatedly defense witnesses. Wilson alleged prior acts fitness and qualifications, Hagedorn the court that Foote did not of misconduct. represent repre him but that he could not contention rejected similar We himself. sent McQueen, unani- this Court supra, wherein Hagedorn did allow cross-ex- mously stated: prosecution amine ten of the witnesses. McQueen’s argu- There is no basis for indicates extent that The record that to the so penalty death cases are ment that by Hagedorn permitted participate to represent entirely dif- as to different Wilson, performance He his was effective. Strickland, expertise. of su- ferent area pathologist from the elicited forensic effectiveness the standard for pra, sets cause of death was unknown and the involving the it counsel and was a case of rape no on the vic- there was evidence of at 701. penalty. 721 S.W.2d death corpse. effectively challenged He the tim’s correctly observed Justice O’Connor had es- credibility entomologist who Strickland: got time He the the of death. timated availability post the of intrusive to admit he had been told witness or of prior inquiry attorney performance to into disappearance the victim’s date of guidelines its evaluation resulting of for corpse his examination detailed of in- encourage proliferation opinion. would challenges. effectiveness trials stance. Wilson has failed to demonstrate Criminal by resolved unfavorably any way prejudiced to the defendant that he was increasingly Hagedorn’s performance. Considering would to come be followed all trial, by a second one of guilt, we fail to see evidence how counsel’s perfor unsuccessful Counsel’s any defense. different had verdict would have been willingness mance and even to serve supplied criminal Wilson been best adversely could affected. Intensive attorney in the nation. defense scrutiny rigid require of counsel III acceptable

ments assistance could dampen impair the inde ardor the trial court Wilson claims that counsel, pendence discourage of defense Chap Kentucky Revised Statutes violated un acceptance assigned cases and rights deprived ter 31 and him of his attorney dermine trust between equal effective assistance of counsel and 690, 104 at 2066. client. 466 U.S. at protection by circumventing public de system appointing unqualified fender adopting consequences the inten- ordering the fiscal volunteers rather than scrutiny such as pretrial sive of counsel provide adequate funds so that the court an even by advocated Wilson would have assign could public defender administrator devastating effect. If more and adverse represent competent, qualified counsel to adopted, such a standard were we shudder him. impact it have on the to think of would

willingness attorneys indigent serve We find no merit to this contention. Wil- pro defendants bono. reply that neither son concedes his brief statutes, nor the United authority by Chapter cited 31 of the

We are mindful of the Constitutions, Kentucky prohibit Wilson but we fail to find those cases States appointing a circuit from a volunteer any grant authority for a trial court represent a the bar to indigent put ap pro his bono member of allow an defendant to capital in a case. For reasons pointed alleged past on trial for defendant counsel II, arguments I we Johnson, previously in transgressions. 475 stated Sawicki Hagedorn (6th Cir.1973), reject contention that pre- decided Wilson’s F.2d 183 ap- unqualified and Foote were volunteers and involved a situation where Strickland from prevent public defender appointed pointed counsel was dis the defendant’s assigning competent, qualified counsel. by and the defendant missed the trial court In proceed without counsel. was forced IV Mintzes, (6th Cir. 733 F.2d 1984), found ineffective assistance was argues the trial court pres in the where defense counsel stated deprived him of his to make ence of the that he refused forcing proceed pro him to se over any objections; that he refused further him then isolated repeated objections and trial; and that he was no continue the than that of advice other attorney. This case longer the defendant’s objected. to whom appointed counsel presents no such situation. ar during oral Wilson’s counsel asserted committed re gument that the trial court order to warrant substitution of a constitutional dimension trial, must versible error a defendant of counsel Hagedorn failing accept him to cause, to force good such as a conflict show attorneys. Wilson’s coun interest, and Foote as his complete breakdown of commu he could questioned as to whether nication, conflict which sel was or an irreconcilable posi verdict, authority support in of his any cite apparently unjust and leads to an by citing responded Mar attorney’s tion. Counsel prejudice by the demonstrate (11th Wilson, 925 F.2d 374 Cir. Dugger, F.2d at supra, 733 shall performance. 1991) Amend argued and that the Sixth 427, set Applying 428. the standards important Circuit, right to counsel was more that ment we find Wilson was the Sixth rights under outweighed in- a defendant’s in this and effective assistance not denied California, 806, represent Faretta v. 422 U.S. yourself. appointing, I am and 2525, 45 L.Ed.2d 562 appointed, appoint have and will Mr. Hagedorn represent and Mr. Foote to Marshall, however, In supra, the trial you. you repre- If do not wish them to judge only inquired defendant you, they sent will be out to assist there whether represent he wanted to himself. you you you repre- if If to wish. wish prosecutor When the requested that yourself, sent under the Constitutional explain trial court to the defendant me, have you Amendments indicated to proceed- drawbacks and disadvantages sir, you certainly have I right, that and se, ing pro judge trial stated: certainly you will let do that. I that believe Mr. Marshall is aware of responded, “I do.” going represent what it’s to to be like later, Moments did He said he not himself. is not unfamiliar with the system, proceed pro shall “want to say, obviously we se” because “I and it’s proceed better to have an don't attorney pro than not know how se." have attorney. an 376. F.2d at Judge Lape explained also to Wilson his The prosecutor proceeded to option proceeding warn the pro se bene- with the dangers defendant of pro- some of the fit of standby Judge Lape counsel. ceeding pro se. The trial court made no explain also length careful to at some inquiry other into the defendant’s aware- perils proceeding pro se: proceeding pro ness of se. The defen- Now, Wilson, you Mr. had indicated in discharged dant’s left attorney the court- your you motion before that were not room proceeded then with the going permit Mr. Hage- Foote and Mr. representing defendant himself alone. The represent you dorn to for the reasons Court on went to find that under the law of you that, have outlined I’ve ad- circuit, Marshall’s were actions insuffi- you vised under that Faretta Califor- cient to invoke the Sixth right Amendment nia, Supreme Court or that of self-representation. The trial court com- you’re certainly represent entitled to forcing mitted reversible error in Marshall yourself. my obligation But it’s also proceed without counsel. sir, you, you tell after have indicated to not, however, any We do language find skilled, you’re me that that a Defen- suggests Marshall which that the trial dant need not himself have the skill and court should have forced the defendant to experience lawyer to com- order have accept representation continued to pletely intelligently competently of the assistant Public Defender. choose should representation. self You dangers be made disad- aware this case the trial repeatedly vantages representation of self so that tried to warn Wilson of the hazards he was you you’re doing you’re what selection, know that facing. During jury before indi- doing your eyes open. with In other began, vidual dire voir Wilson told the trial words, sir, you represent rejecting court that he was if choose to advice and indicated, Hagedorn yourself capital you assistance of and Foote and that, proceeding pro case, he was you you se. offense choose to do consequences, you know the could cer- responded asking The trial court twice tainly be sentenced to the electric chair lawyers Wilson whether other you guilty should the find then agreed defend him. answered subsequently agree. I order and if negatively point both times. At that that, you knowing certainly So have the trial court advised Wilson of constitu- right yourself, I represent but want proceed tional pro se with the so, you you you to understand if do of standby appointed assistance do so at risk. represent him: accept Judge Lape engaged You do not have to Mr. on-the- Foote or then Hagedorn. go there, Mr. may colloquy You out record Wilson to make abso- sir, lutely pro- under Faretta versus certain that Wilson’s decision to California No, sir. knowing, intelligent and DEFENDANT WILSON: pro ceed se was voluntary: realize, not, you do LAPE: You JUDGE simply, Judge, quite in MR. BURING: you charged the crimes that are with sir morning light of the events this with murder, robbery, rape, kidnapping, Wilson, respect to Mr. Defendant Wilson conspiracy? himself, I representing in this action Yes, sir. DEFENDANT WILSON: to to call the attention wanted if you LAPE: Do realize that JUDGE a case the name of United Court crimes, you’re guilty of the found McDowell, Circuit It’s Sixth States crime, you could be sentenced to that case, court 814 F.2d decided penitentiary years for term of copy, I I want have two have a to you be that could be sen- ultimate could I for the But copies, have one Court. to chair? tenced the electric interesting respect I find most what Yes, sir. DEFENDANT WILSON: this, issue, I it’s a similar and what to if you Do realize that LAPE: JUDGE call the Court’s attention would like to to you I tell represent yourself, cannot you time, for review at this the Court’s case, you to or even advise try the how repre- wants to that where an individual case, try say I will to to but how himself, apparently in the there are sent this, any objectionable that if there are Judges of the Fed- guidebook for District brought Common- up matters in a book entitled eral District Court Attorney, I shall so state that wealth for States District

Bench Book United record. questions the Sixth Judges Court Circuit, juris- obviously Well, which covers this I’d like DEFENDANT WILSON: federally ought say to be asked myself. diction don’t know how to assert I to ought understanding. have to a clear myself. defend proceed again, I And before we start going I’m Okay. But LAPE: JUDGE just Court. to tender to the wanted you I after ask you make a statement let to take a few mo- If the Court wanted questions. these feel, so that it ments review that right. All DEFENDANT WILSON: that it’s comfortable— feels Are right, you All sir. LAPE: JUDGE Okay. LAPE: JUDGE Kentucky Rules familiar with discussions with MR. BURING:—in its of evidence? Procedure and Criminal Wilson, proceed then can Mr. we No, sir. DEFENDANT WILSON: there, thought but I we’d take care you real- right. All Do LAPE: JUDGE present rather than wait. time provide are rules that ize that those Buring, I’ve re- LAPE: Mr. JUDGE conducted? how trials are that, many of and I viewed believe Yes, sir. DEFENDANT WILSON: asked have questions that would be you if realize that LAPE: Do JUDGE comments that Mr. been answered stand, you you decide to take the witness to me in chambers before Wilson made testimony by asking present your must jury in presence of the out of the yourself? questions of appointed counsel and the presence of his Yes, sir. WILSON: DEFENDANT and Ms. Humphrey, Ms. counsel for However, there was Humphrey Okay. right, herself. sir. All LAPE: JUDGE here I did not couple matters in far opinion that it my Then it is would address, so, therefore, I’m going ask by a you be defended better He can questions of Mr. Wilson. these by representing lawyer than trained He have them. doesn’t choose answer think it is unwise I believe and yourself. Wilson, you have Mr. answer them. yourself. try represent you to law? studied law, ever you’re familiar with You’re not No, procedure, sir. DEFENDANT WILSON: court familiar with the of evi- the rules not familiar with you repre- you’re Have ever LAPE: JUDGE earlier, I dence, this time as I did and at yourself action? a criminal sented

883 strongly urge you try right not The to repre- to assistance counsel yourself. right dispense to with sent the correlative a help legal lawyer’s are formalisms. not May speak? DEFENDANT I WILSON: go They on to rest considerations that your it LAPE: Is decision en- JUDGE position accused’s the substance of an voluntary part, sir, tirely? your Is it on before the law.... Constitution Hagedorn to not have Mr. and Mr. Foote lawyer upon defen- does not force a a assigned I your whom have to case? Is dant. 514 S.W.2d at 695. represent your voluntarily it desire to yourself? McDowell, In F.2d States v. 814 United DEFENDANT I’m not volun- WILSON: (6th Cir.1987), judge’s Federal 245 the trial myself. tarily representing I don’t know pro- the to inquiry into defendant’s decision myself. represent repre- to I how can’t than pro ceed was much less se extensive myself. I right sent But have a to com- case, by present that trial in the petent counsel. suffi- but the Sixth Circuit found it to be Well, gone JUDGE LAPE: we’ve over rejected cient. defen- The Court also that, you, asking I’m you did wish to argument dant’s that the trial was court represent yourself in proceedings. these required sponte to sua declare a mistrial do, you you doing If I want—Are this grounds on that defendant was voluntarily, than you’ve other what said? receiving a fair trial. The Court found that only thing I “unfair” about the trial was DEFENDANT WILSON: don’t know myself. representing how to defend the defendant was not very himself well and that he had refused right. Very good, LAPE: All JUDGE standby ap- to of the make use right. All I assign still Mr. William pointed by the court. F.2d at 247-251. Hagedorn your Foote coun- John you sel. If to wish have them— Kelm, In United States v. 827 F.2d object. DEFENDANT I WILSON: (9th Cir.1987), the defendant was indicted you If LAPE: JUDGE wish have on failure to file fed- two counts willful sir, you, you them may certainly assist eral tax The trial was income returns. request them to so. If you do choose not continued four times due the defendant’s to, you voluntarily relinquish repre- their trial, a failure to retain counsel. Prior to time, sentation. And at this I find that deter- hearing purpose held for the was knowingly Defendant has and volun- to re- mining the status of Kelm’s efforts right tarily waived his counsel if use Kelm, through standby tain coun- counsel. chooses, he I permit so and will him to sel, that he been informed court himself, represent request counsel, he but that did unable to obtain assigned help him him lawyers two representa- not want waive his Now, minute, if so he chooses. wait a finding Court that the tion. The made statement, Mr. wanted to make a questionnaire to use Kelm of a detailed Hagedorn. Mr. requirement that counsel be counsel and I’ve said DEFENDANT WILSON: No. lawyer had de- experienced tax trial say. what I’ve had to terred and hindered counsel selection. You LAPE: finished? You JUDGE eventually tried Kelm The case was All right, have. sir. defense, conducting his own assisted reading the record It is clear day standby second counsel. On judge zealously made Wilson trial, was informed the Court he Kelm dangers path aware of represent himself and asked unable to had chosen. appointed. request was counsel be Barker, guilty Ky., After he found on both 514 S.W.2d 692 denied. Wake (1974), Court, counts, appealed that he citing Kelm on basis Adams United McCann, representation of States, ex rel. 317 U.S. denied effective (1942), Amendment. 87 L.Ed. stated: counsel under Sixth 884 consequently they prohib- rejected argument and were Ninth Circuit this record regulations that: by jail

and found from contact visits. ited in rejected a similar claim the This Court light persistent of to Kelm’s refusal penalty of Moore v. Common- death case accept appointed attorney, to hire his an wealth, correctly The trial court supra. attorney, expressly own or to waive his any individual could informed Wilson that attorney, right to an the district court’s during visiting regular him hours. visit grant decision not to further continuanc- Moreover, es was “fair and reasonable.” V reading is of

we think it a fair the record as a whole that Kelm understood the right his he was denied to Wilson claims self-repre- dangers disadvantages of and complaint stems from public a trial. His to sentation. He knew he was entitled lawyer Rob- removal of then-DPA Gail the counsel, yet establishes that the record trial court’s behest. Wilson inson the open himself he elected to defend with alleges litany also offers a of incidents omitted.) (Citations eyes. 827 F.2d at by attempts judge the trial to isolate were 1322. supporters. him friends and delayed year a Wilson’s trial was over trial, the trial the outset of the Near problems attorney an to procuring due to in spectators of court informed the behavior McDowell, represent him. As in Kelm inappropriate the courtroom. deemed reading that fair of the record we believe a again day, next the court remind- trial clearly a whole indicates that Wilson gestures spectators ed between dangers disadvantages understood spectators party involved would self-representation. He knew he was of permitted result in the and would not be counsel, yet clearly entitled to the record court- spectator’s being removed from the proceed to with establishes that he elected Later, personnel informed the court room. eyes open. his wide laughing and spectator was judge that a juror a making expressions while facial course of conduct Wilson’s again, questioned. being Once was persistent accept to his trial his refusal concerning the audience court admonished counsel, hire appointed his refusal to his proper courtroom behavior. attorney expressly own or to waive attorney, to his insistence that right day of lunch on the last After break attorney met appoint him an who the court Attorney testimony during guilt phase, penalty specifications as a death Wilson’s at the bench that notified the court Foote expert clearly put judge the trial between spectator attempting a he had observed proverbial place. and a hard We rock in Wilson. Wilson contact with make the trial court’s decision believe spectator was formed the court standby coun- proceed Wilson to with allow The court had the bailiff Robinson. Gail fair and the circumstances sel under comply Instead tell Robinson leave. reasonable. request, she asked ing with the bailiff’s judge refused the the court. The trial court address complains also that the to leave. We cannot request and asked her than that of him from advice other isolated accept assertion Robinson’s objected. Wilson’s appointed to whom he public him his a removal denied contention. The no merit We find ejected from the courtroom rules trial. She was only reinforcing the court was trial comport reasonable with County Jail. for failure Kenton established judge guidelines only established jail inmates are Contact visits decorum. The exclu record, clergy maintain order permitted with counsel person from the remainder of one governmental officials sion other and certain witness last wanted cross-examination as social workers. such hardly charac can be guilt phase of Neil attorneys McNally, Kevin Walker public There of a trial. terized as a denial visits. allowed contact Bob Carran invoking denial present question is no were counsel of of these individuals None public trial. United We believe that the trial Agurs, States v. U.S. acting (1976), authority within his to maintain 49 L.Ed.2d held that control of under the Brady Preston v. disclosure, the courtroom. Com- standard of monwealth, Ky., (1966). prosecutor 406 S.W.2d 398 will not have violated his or her duty constitutional disclosure unless his complains Wilson also significance omission is of such a to result friend, Thompson, Eddie was excluded in the denial of the defendant’s ato from the We find courtroom. no merit in fair trial. complaint. Thompson Wilson’s was sub We carefully have examined the record poenaed by the Commonwealth in anticipa in this prosecutor case and find that tion of being possible as a called witness. disclosed all the relevant information he Wilson had filed affidavits Thomp which required to disclose under RCr 7.24. testified, son witnessed. If Wilson Moreover, any Wilson fails show how anticipated Commonwealth introduc the requested allegedly information not dis- tion of Thompson the affidavits via might closed possibly could have affected the out- necessary impeachment be purposes. for come. separation trial court had invoked the complaint Wilson has no of denial of of witnesses Thompson rule and therefore cross-examination. He received the legitimately had been infor- excluded from the mation to which he was entitled. proceedings. event, Even any stipu Wilson information, with this Wilson chose not lated that he signed the affidavits. Conse cross-examine Maloney. quently, Thompson rejoin was allowed to spectators, having only por missed a tion of proceedings. the voir dire VII that the trial judge claims

Wilson VI should disqualified have been from the case personal because he had a bias and hostili Wilson rights contends that his of con- ty Wilson; toward he prejudged had frontation process and due were violated presence gave the case appear and his by the trial court’s of requests denial partiality. ance of impeachment relevant information concern- ing prosecution Maloney. witness argues judge that the trial exhib- hostility ited bias and him alleg- toward requested very long list of edly asshole; calling him noting an Maloney’s information to credibility. attack apparently any lawyer; not trust Wilson did Wilson claims such information was excul expressing engag- a belief that Wilson was patory and required to be disclosed tactics, ing in speaking obstructionist under Brady Maryland, U.S. to Wilson in an of voice angry tone before (1963). 10 L.Ed.2d 215 Among jury. some of the items requested copies were July 29, on Wilson filed a motion 1988 to all correctional files institution of the wit have judge the trial recuse himself. The ness; any organizations to which Maloney motion was to the Chief forwarded Justice belonged; any had ever information Malo- of the Kentucky Supreme Court to be con- ney may provided any governmen have pursuant sidered as a recusal affidavit authority tal any jurisdiction any case; 26A.020(1). K.R.S. The Chief Justice de- any prior Maloney instances lying ever motion, finding nied the it insufficient any or exaggerating; inmates the Com special indicate that judge ap- should be may jail monwealth have interviewed at the pointed. thorough After a review of the they spoke determine whether with Wil showing record we find that Wilson’s is son; every case in which the Common still insufficient. Clearly wealth used informants. Wilson’s request possible any exceeded exculpatory fails make citation to the properly material or information attainable record where the trial court stated he was under 7.24. engaged RCr tactics. obstructionist As to expression cannot alleged asshole comment and trial be deemed voice, prejudging this has the case.

judge’s tone Court taken lengthy capital toll a judicial notice allegation find no merit in Wilson’s We judge. Scruggs on a trial trial exacts prejudged trial the case that the court Commonwealth, Ky., 566 S.W.2d 405 appointed counsel was because assumed if judge Even the trial did make an permit allega- refused competent and remark, intemperate whether Wilson’s against Hage- of unethical conduct tions rights must determined were violated be argument pre- rejected dorn. We have Preston, supra. from the whole record. prejudge A viously. does pretrial reading by making assumption that coun- An of the entire rec- exhaustive competent. must as- sel is Counsel ord indicates that the trial court treated competent performance of respect sumed until the and allowed Wilson to Wilson with particular in a before the counsel case anything insert desired into the record contrary. the court demonstrates Strick- trial. Wilson received a fair We ensure supra; Washington, United States land v. trial court’s have documented earlier the 648, 2039, Cronic, 466 80 104 S.Ct. U.S. advise of the hazards of efforts to Wilson (1984). 657 L.Ed.2d The trial proceeding without counsel. if the court informed Wilson even if the finally contends that even brought up objectionable Commonwealth prejudiced, appear- not the trial court were matters, the the court would so state mandating rever- partiality existed ance of file, The court allowed Wilson record. 26A.020(1) safeguard is avail- sal. K.R.S. a the for fairness daily, almost same motion able to defendants for determination before justice. The judge permitted even Wil- alleged partiality trial of the existence immediately closing his son a before recess procedure was by trial court. This the not feel “too statement because Wilson did by No ade- and used Wilson. available Considering all the good right now.” cir- quate partiality was demon- showing of case, we that the cumstances of this believe strated. patience great and excel- trial court showed judicial temperament in the conduct of lent VIII the trial. grant failure asserts that the Humphrey denied separate him trial charge the had a

Wilson’s trial sentencing con- by him fair trial and reliable supported the is a prejudged issues not Sixth, Eighth Fourteenth the trary to the The trial court’s comment that record. Constitu- Amendments to the United States attorneys is not Wilson doesn’t trust with- 2, Ken- 4, and 17 the early January tion and Sections As as out foundation. 1987, tucky his Constitution. complaining about Wilson was However, his behalf. attorneys’ actions on significant interests are is clear that It context, by the remark viewed in the whole of the ac- having joint a trial served to indicate that the appeared the court trial single the before cused and codefendant providing concerned about Wil- court was penalty phases guilt and jury as to both the had whom he some son counsel with with much same evidence would of the because rapport. phases capital presented be at both to burden appropriate It is not reject trial. Wilson’s contention We also having to prosecution it the defense because prejudged court his case trial testimony twice. present the evidence Hagedorn and Foote would be indicated in a 1, underlying the state’s interest September Also at the for Wilson promoting is a related interest important joint trial context is date. The trial consistency judi- reliability judge’s remarks. considering when may interest that benefit process, cial know he was Hagedorn whether wanted well, noncapital because defendant responsible trying for case going to be complete more view obtains a 1, The trial court’s 1988. September on charges relating to the than all acts point continuity of need to ensure at possible would ence in separate unduly be trials and the record where he may reliably prejudiced be to arrive this. able more its regarding conclusion guilt or innocence argues that evidence un- also particular of a assign defendant and to related to him introduced fairly respective responsibilities of each trial have been but would excluded sentencing. defendant at state’s inter- separate granted. been He contends trials est in joint is also to a connected Cosby that this constitutes error under concern not required undergo that it Commonwealth, Ky., S.W.2d 367 presenting the burden of the same evidence (1989). agree. Cosby, We do defendants, juries different where two codefendant’s that the other de- statement only eligible one of is for a death whom required fendant alone stabbed the victim sentence, charged arising are with crimes separate provide reversal for tri- failure out the events. same Buchanan v. Ken- though als even the court admonished the tucky, 483 U.S. 107 S.Ct. 97 jury evidence that the statement was not L.Ed.2d 336 However, against the defendant. the case legitimate Due preference to this against Cosby was not defendant joint trials, a defendant entitled to is not on overwhelming was based circum- positive severance unless he makes a show- stantial state- evidence. codefendant’s ing prior joinder trial that to would be only ment was the evidence of defendant’s 9.16; unduly prejudicial. RCr Common- knife, argument closing by use of a the and Rogers, Ky., wealth v. 698 S.W.2d 839 attorney implied codefendant’s that the de- (1985). fendant “blank” to in the was the referred Cosby applicable statement. is not to this reviewing A will not court re Humphrey ease. Both and admit- Wilson grant verse a sepa conviction for failure to persons. ted the to other The crimes evi- rate it is clearly trials unless convinced that during guilt phase presented dence the prejudice occurred and that the likelihood against largely was the same evi- of prejudice so clearly was demonstrated to Moreover, against Humphrey. dence Hum- the trial as to make his failure to phrey the testified case-in-chief grant severance abuse of discretion. subject was to cross-examination Wil- Epperson Hodge Commonwealth, v. son. Ky., (1991); 809 S.W.2d 835 Wilson v. Commonwealth, Ky., S.W.2d 695 854 joinder unduly We fail to find how the (1985); Commonwealth, Ky., Rachel v. 523 prejudiced the one Wilson. Wilson was (1975). S.W.2d 395 A defendant must show victim, actually raped who and killed the so antagonism prevented that jury a from be unexpected it him to was not for receive ing separate able distinctively and treat greater Humphrey punishment than on particular evidence that is relevant to each true charges. those The same was con- antagonism defendant at trial and that the cerning kidnapping for it charge the was between will codefendants mislead or con Humphrey Wilson more so than who actu- Gallo, fuse jury. the United States ally being prevented the victim from re- Cf. (6th Cir.1985); 763 F.2d 1504 United States jury Wilson and leased alive. The found Cir.1988). Horton, (6th F.2d robbery the Humphrey equally guilty on charge. complains that Hum phrey Humphrey’s participation a asserted coercion defense which extent of significant, antagonistic was with his lack of a defense. the crimes dis- was but per jury That the the jointly defenses of indicted tinction could have been lost on antagonistic may only sons a factor her absence from Wilson’s trial. Hum- is making phrey’s served reminder to presence for the trial court consider in his as a solely jury respon- or her a defen was not determination to whether that Wilson circum- prejudiced by joint dant trial. sible for the crimes. Under these will be a Rachel, McQueen, stances, no supra; supra. Wilson we find abuse of discretion point any specific has failed to out refer- the trial court. prejudged he had the case. Of the

IX because jurors three remaining only had alleges the trial court problem knowledge of Wilson’s vis-a-vis by denying fair his re denied him a trial they had no counsel. All three indicated refusing for of venue and quest change a being involved problem with Wilson sequester jury during the trial. Wil of his and this fact would defense case change a did file motion for son a ability their sit as a have no effect on con pursuant K.R.S. 452.210 and venue juror. Only one of these individuals served hearing by trial sequently there was no showing no jury. on the There was However, specifically this issue. court on pervaded jurors the media accounts reviewing we carefully the record after prevented having a fair Wilson from no that the find there was indication trial. fair im jury anything seated was but

partial. he was de Wilson also contends process due

Under either the a the trial court nied fair trial because 452.210, change prior a of venue sequester jury clause K.R.S. to the failed to appears if it granted should be case determination submission a trial in the defendant cannot have fair guilt sentencing guilt and between pending. is county prosecution wherein the agree. stages the trial. We do not Commonwealth, Ky., 568 Brewster v. sequester jury resides with decision to change In order for S.W.2d 232 the trial court from the in the discretion of granted of venue to be there must be proceedings. The court onset of 1) showing prejudicial that: There has been proper precautions insure the undertook trial, 2) prior coverage, It occurred news spectators, parties jury isolated from 3) coverage is effect of such news and The selected, press. and the Once trial. likely prevent a fair reasonably properly ad group kept together as Brewster, citing Max supra, Sheppard v. sen resumption of the Prior to monished. 333, 1507, 16 well, 384 U.S. hearing, tencing questioned the trial court (1966). that The mere fact L.Ed.2d 600 expo possible media jurors the about heard, read jurors may have talked or affirmatively. juror responded sure. No to a case is not sufficient sustain about to demonstrate how has failed Wilson venue, change a show motion for of absent any prejudice by the exercise suffered descriptions ing that the accounts or the trial court’s discretion. investigation proceedings have judicial The defendant. Brewster. prejudiced the X has discretion this determina trial court in the record There is no evidence Kor lightly not be disturbed. tion and will anything other Wilson was tried that Commonwealth, Ky., denbrock asser impartial jury. His a fair and than (1985). S.W.2d 384 process was a jury selection tion that indicates An of the record examination Wilson, on his merit. “sham” is without juror that, although every potential almost own, in the voir participate decided not something about heard or read had seek remove process and did not dire of the victim or arrest disappearance initial carefully judge The trial cause. jurors for defendants, most did not remember exercising per procedure for explained the case. prejudged the and had not details challenges but Wilson refused emptory challenges standby his or allow exercise his allowed the Common- The trial court Attorney Hagedorn him. to assist peremptories each defen- counsel wealth ten dire which prepared general voir to ex- had panel A from which dant fourteen. complete. some time indi- have taken after would peremptories was obtained ercise attorney Foote were also Hagedorn and only 56 dire examination vidual voir jurors question prospective 56, only prepared four were jurors. Of potential dire. On the individual voir Only juror of cause. one excused for dire, did voir day first of individual to be excused for cause had four excused question Foote to prospective jurors. allow was also relevant to of when issue It was day not until the second of individu- victim died. prohibited

al voir dire that Wilson standby participating counsel fur- XII ther He individual voir dire. cannot be equal pro heard to not denied complain he did not was receive impartial fair and tection jury. process of the law or due Com- because Stanford monwealth, Ky., (1987). independent 734 S.W.2d 781 no experts testified in his be half. prosecution Wilson contends that the addition, effectively cannot heavily expert relied testimony on the of a prejudiced maintain that any way he was pathologist, entomologist serologist regard because of a lack of information in while he expert was without assistance. jury sheets/questionnaire. data Wilson now claims that his counsel re- There is no indication that jury fused to obtain of experts. the assistance panel was representative of blacks. 11, 1988, February On the trial allo- panel Wilson’s calculation of blacks on the $2,500 cated experts for the use of to assist figure was is range This within the 4.76%. the defense and indicated as the need community of blacks in the which is indicat funds, any, arose for more if necessity in the ed record to no more be than 7%. for such expenditures would panel have was at selected random a approved by computer attorney the court. Wilson’s process operated by the Secre time, McNally, at tary arranged Kevin State. An examination of the rec experts analysis, serology ord indicates in hair that there was no violation family background. Batson v. Funds Kentucky, approved 476 U.S. were 106 S.Ct. pay experts prosecu L.Ed.2d 69 the three time. peremptory tion exercised one There is challenge no indication the record that against person a black McNally experts and a suitable neu ever used these once the explanation tral given for the exclu funds were made available. When attor- juror. sion of this ney McNally was released as counsel of record, he to turn declined over defense

XI files appointed standby to Wilson’s Wilson, without argument authorization from Wilson’s that he deprived of a Wilson the process fair trial and due refused to allow new counsel unnecessary the admission of access and inflam to the files. matory photographs testimony and is total noted, previously As we although have ly without merit. An examination of the intermittently accept Wilson refused to the

photographs in the record indicates that counsel, standby assistance of his he did gruesome there are no photographs of a attorney want to Hagedorn cross-examine corpse anything or else would serve to the “scientific The record witnesses.” indi- prejudice jury. inflame or photos the The Hagedorn cates effectively cross-ex- great foliage disclose a deal of in a rural amined the pathologist, entomologist the setting the location and condition of serologist. and the body. photograph any the No reflects in testimony expert prosecution The of the flammatory scene. The introduction of a simply the testimony tended to corroborate single photograph of the victim taken be of other McQueen lay witnesses. Wilson does not fore death permissible. was exactly indicate the Commonwealth, how use of his Ky., own S.W.2d 519 experts might (1984). have affected his own de- objected Wilson also to the testimo fense outcome ny entomologist of the or the ultimate of the case. concerning forensic blowfly cycles. standby He refused to his life find no error in allow We allowing any expert call either testimony. lay. The condition or witnesses no corpse Consequently, which victim’s was found was an he has basis on which to important testimony complain issue of fact. The now Court. 9.24. RCr Cf.

XIII XVI he Wilson contends that was argues he de was deprived right jury by his to a of fair prived a fair trial of of the admission qualification jurors death exclu “matching” of hair which not evidence was jurors by prose death-scrupled sion sufficiently scientifically An ex reliable. peremptory challenges. cutor’s exercise in pert testified that hairs found witness agree. proper is We do not It death car of similar in side the the victim were capital qualify jury case. There is microscopic comparison pubic head prosecu prohibition constitutional to a no from samples hair taken Wilson’s Wilson. using peremptory challenges to remove tor argument goes weight evi to the capital pun potential jurors. Opposition to admissibility. its dence rather than to put person in a does not constitu ishment comparisons are witness testified that such tionally recognizable group exempt not Wilson could not be au conclusive but challenge on Lock peremptory that basis. tomatically expert out. The testimo ruled McCree, 162, 106 hart v. 476 U.S. concerning comparisons hair was ny (1986). 90 L.Ed.2d 137 properly introduced. v. Common Ford wealth, (1983); Ky., Mur 665 S.W.2d Commonwealth,

phy Ky., 652 S.W.2d XVII argues that his constitutional against jeopardy as

guaranty double well multiple pun- to be free from as XIV he was con- was violated when ishments he was entitled Wilson claims that robbery commit conspiracy to victed to a mistrial when the mother the victim robbery. in the allegedly had an emotional outburst in the courtroom. The incident occurred robbery and The conviction morning Humphrey codefendant before not con robbery to commit did conspiracy did advise the trial testified. Wilson Kentucky jeopardy under stitute double alleged time judge until some after Federal The evi or the Constitution. law judge skeptical occurrence. The trial conspir presented plan dence indicated labeling of the as an of Wilson’s incident victim kidnap acy by both defendants judge noted that “outburst.” The trial other her as take rob well no leave and that she made saw the woman the suc illegal in order to achieve actions There is indication that the trial noise. no enter completion of their criminal cessful his discretion and there abused codefendants prise. is clear that It showing any prejudice to Wilson. no kidnap the victim order intended to as to is silent whether record subsequently the robbery commit present incident took when the was even killing of the victim rape by and the in the best place. The trial Clearly there were occurred. by Wilson whether remedial position to determine kidnapping multiple illegal actions necessary preserve decorum action was 506.110(2)applies. robbery and and K.R.S. Preston, supra. a fair trial. and ensure

XVIII XV death sen imposition The and a sentence kidnapping for death deprived not of a fair tence Wilson was pursuant improper for murder was potential juror did not sit who when Kentucky existing enunciated considering law the case was on the Taylor v. Common Cosby, supra, and The to fair for cause. excused (1991). wealth, Cosby unqual Ky., if S.W.2d infringed impartial jury is not merge kidnapping murder and deci stated that juror participate does not ified stage. A defendant the enhancement the case. Sanders Common sion of punished for both (1991). can be convicted wealth, Ky., 801 S.W.2d offenses, but not sentenced to death for ished for the same offense twice. The kidnapping if he is also sentenced to only requires death statute aggravating that the for murder. aspect This of the case re- circumstances only be used to determine quires a remand for resentencing on kid- whether the crime of murder should re- napping as a Class A Felony. penalty. ceive the death If aggrava-

ting proved, circumstance cannot be then penalty XIX of death cannot imposed. be 532.030(2). K.R.S. robbery maintains that rape were not properly prove used to Simply because aggravating circum- an element of kidnapping or to establish duplicates stance one underlying of- aggravating circumstances for murder and fenses does not mean that the defendant is kidnapping. The argument basis for his is being punished twice for the same offense. jeopardy. double recog K.R.S. 509.050 underlying The only offenses were factors nizes that the support felonies used to kid to be considered as punish- to whether the napping may punished separate ment for murder should be death. Wilson Application crimes. kidnapping ex subjected was not jeopardy double or emption case-by-case statute is on a basis. multiple punishment for the same offense. Where goes the restraint beyond that which occurs immediately with and inciden XX tal to the offense, commission of an such as argues that he was denied rape or robbery, the guilty offender is process due prosecution law because the kidnapping exemption and the statute does used the prove same facts to separate two not apply. Commonwealth, Gilbert v. aggravating circumstances, murder com Ky., (1982). 637 S.W.2d 632 Here the re mitted robbery commission of a necessary straint complete the crimes of and murder profit. committed for

rape robbery was not close in distance aggravating The circumstance of rob- and brief in time. Timmons v. Common bery taking relates to the of the victim’s wealth, Ky., 555 S.W.2d 234 The property in the committing course of theft. victim was abducted and forced into her 515.020(1). K.R.S. The murder profit own car Wilson. She was then driven aggravating goes beyond circumstance by Humphrey to an area behind the flood property time when her physically tak- wall where she was forced out of the car en committing from her the course of while Humphrey went fill the automobile theft. The credit cards of the victim were gas. rape No robbery or had oc day used the after her death when Wilson curred at this time. Humphrey When re Humphrey purchased a number of turned, the victim was again forced into the items for themselves with the cards. car in the back seat with Wilson while Clearly, they something obtained of mone- Humphrey along drove fi Ohio River tary profited value which them. Use of the nally crossing into Indiana near Hebron. credit cards is not the same act as the During drive, the victim was robbed robbery of aggrava- the victim. The two raped as well as killed. The restraint ting circumstances are not the same as to of the victim was not incidental to the place. either time or jury properly robbery rape. commission of aggra- found the existence of distinct two argument second by Wilson is vating factors. rape that the and robbery convictions at guilt phase the cannot prove event, be used to any In the aggravating cir aggravating circumstances for first-degree murder and robbery cumstances of and kidnapping at the penalty phase. The first-degree rape ra are sufficient to sustain tionale in used Phelps, v. 484 the death sentence. Simmons v. Com Lowenfield 231, 546, U.S. 108 S.Ct. monwealth, (1988); 98 L.Ed.2d 568 Ky., 746 S.W.2d 393 (1988) applicable is here. 862, K.R.S. 532.025 Stephens, Zant v. 462 U.S. 103 S.Ct. require does not that pun- 2733, (1983). the defendant be 77 L.Ed.2d 235 892 garding aggravating

XXI circumstance were properly clear. The in- imposed The on death sentence finding aggravating structed that the of an inappropriate, arbitrary, Wilson was not require imposition circumstance did not of discriminatory, disproportion unusual or penalty. Skaggs v. Common- the death fixed ate. The sentence was not because wealth, (1985). Ky., 672 694 S.W.2d limit was black or because he chose to standby participation counsel’s in his imposed The sentences were be defense. XXIV guilty charged. cause he was found as argument final cumula Wilson’s about 532.075, misplaced. Pursuant to K.R.S. have we In of the fact tive error is view and specific made a careful review of the record any we re did determine have the death error, any determined sentence we do not find cumula versible imposed of McDonald v. Common was not under the influence tive error. Cf. arbitrary wealth, passion, (1977) prejudice any or other Ky., 554 84 S.W.2d Tucker, 446, exces- Michigan factor. The sentence was not v. death 417 433 at U.S. im- disproportionate penalty 2365, sive the 41 L.Ed.2d 182 94 S.Ct. 2357 posed in since 1970 con- (1974). similar sentences fair He received a trial. sidering crime and the defendant. both the judgment The of is affirmed. conviction previously cases been recited Those have imposi- This matter is remanded to the v. Simmons recently in this Court most regard kidnap- tion sentence Commonwealth, Ky., 393 746 S.W.2d ping charge. (1988) incorporated list is herein reference, case is and our review this LAMBERT, STEPHENS, C.J., and 532.075(5). in accordance with K.R.S. REYNOLDS, SPAIN and addition, ease we have also considered the WINTERSHEIMER, JJ., concur. Commonwealth, of Moore v. 771 Ky., LEIBSON, J., separate opinion files a v. Epperson Hodge (1989); S.W.2d 34 COMBS, J., part, dissenting in which Commonwealth, 835 Ky., 809 S.W.2d joins. Commonwealth, Ky., Taylor (1991), (1991). 72 We have conducted S.W.2d LEIBSON, Justice, part. dissenting independent an review of all circum- I from so much of Respectfully, dissent they stances conclude that exceed conviction holding as affirms Wilson’s capital pun- justifying minimum threshold conspiracy. ishment. general rule

KRS 506.110 embodies XXII one cannot be convicted both crime the actu- conspiracy to commit a capital penalty phase The instructions underlying theory of this The al crime. jury’s properly guided and channeled the conspiracy, being propounds that rule discretion. merges into com- preparation, act of of con- The lesser offense pleted offense. XXIII larger crimi- spiracy part becomes complaint format Wilson’s about nal act. sentencing is capital verdict forms in the double conviction A statute bars merit. review of verdict without objec- situation where all criminal interpretation the potential forms and conspiracy have been consum- tives jurors gave involves consideration them Thus, convictions. The in mated and received they given. were the instructions conspiratorial agreement contains quiry make a “reasonable where we involves what objectives, KRS 506.- multiple criminal juror” charge would understand Franklin, 110(2) substan- permits a conviction for the mean. Frances U.S. conspiracy if some of for the tive crime and L.Ed.2d 344 a conviction objectives re- have not reached given to the its specific instructions for a substantive crime. In this situation conspiratorial agreement has not whole NATIONAL MORGANFIELD merged for the

completely into convictions BANK, Appellant, conspiracy, The substantive criminal acts. comprised multiple objectives, remains larger criminal

separate and than the one SONS, A Partner DAMIEN ELDER & conviction. Elder; Elder; Jerry ship; Rob Damien Elder; Tommy (Bobby) Eld ert J. instance, suppose For Smith & Wesson er, Appellees. robberies, conspire to commit four but police apprehend the third rob- them after No. 91-SC-516-DG. bery. The defendants can be convicted conspiracy the three and the robberies Kentucky. Supreme Court make four robberies. If we weren’t al- conspiracy in this lowed to convict of the Sept. 1992. situation, agreeing to make then the act of robbery go unpunished.

a fourth would

However, if Wesson had success- Smith &

fully committed all four before robberies arrest, only legitimately con-

their we could them of the four and could

vict robberies conspiracy add on a conviction. completely merged into the

conspiracy has No act

commission of the four robberies. unpunished. preparation remains

general rule that bars double conviction apply

would in this scenario. case, assuming present arguendo

In the proved conspira-

that the Commonwealth

cy containing multiple objectives existed kidnapping robbery,

both KRS 506.-

110(2) permit does not a conviction of both robbery conspira-

kidnapping and AND the

cy kidnap All and rob. of the criminal

objectives conspiracy merged have

into the the substantive convictions for general barring

crimes. The rule the dou- apply. Every act of

ble conviction should merged

preparation has into the commis- crime a conviction.

sion of the and received

Nothing punish. is left to explained

All in the Model Pe- of this is Commentaries, by the

nal Code and drafted Institute, which was the

American Law Code, Kentucky KRS

source of the Penal

506.110.

COMBS, J., joins this dissent.

Case Details

Case Name: Wilson v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jun 4, 1992

Citation: 836 S.W.2d 872

Docket Number: 88-SC-896-MR

Court Abbreviation: Ky.