Young v. Commonwealth

to find that not Respondent Court has YOUNG, Appellant, failing

shown for to meet the Gerald cause CLE year requirements for ended June does, however, 2000. The Commission Kentucky, leniency by COMMONWEALTH

recommend this Court for Re- Appellee, Rather spondent. suspension, than requests Respondent Commission that the pay penalty, plus be ordered to a $500.00

costs the amount of $130.00. Thomas, Appellant, F. Erskin requests The Commission also this specify that a time extension pursu- Court Kentucky, Appellee, Commonwealth ant to SCR 3.667 will not be available Respondent for the current educational year or the ending year June next

ending 2002. Morbley, June Appellant, Darrell C. satisfactory find penalty We this and so Christopher order S. Burnside pay Kentucky, Appellee. Commonwealth disregard Supreme Court 1998-SC-0584-MR, Nos. 1998-SC-0607- non-compli-

rules and and for procedure, andMR requirement ance with 1998-SC-0963-TG. the CLE 30, 2000, in year educational ended June Kentucky. Supreme Court $500.00, plus the amount of costs in the $130.00, $630.00, amount of total of to be April 2001. twenty days date paid within Rehearing Aug. 2001. Denied Further, 3.667, pursuant to SCR Order. Respondent may apply time ex- years ending

tension for the educational 2001 and June 2002. Failure

June fine or pay complete

to either the CLE in the

requirements future will result 3.669(4).

suspension pursuant SCR

All concur. January

ENTERED: Joseph E. Lambert

/s/

CHIEF JUSTICE Man- Boyce, Appellate

Donna L. Branch Advocacy, ager, Public Department of Frankfort, KY, Hoffman, Richard Assis- Advocate, Department tant of Pub- Public Frankfort, appellant Ger- Advocacy, lic (1998-SC-0584-MR). ald Young General, Chandler, III, Attorney A.B. KY, L. Frankfort, Young, Kent T. William Daniel, General, II, Attorneys Assistant General, Ap- Attorney Criminal Office Frankfort, Division, appellee pellate (1998-SC- Kentucky Commonwealth 0584-MR). Richmond, Shaw, appellant for

Elizabeth (1998-SC-0607-MR). Erskin F. Thomas General, Chandler, Attorney III, A.B. KY, L. Frankfort, Young, Kent T. William General, Daniel, Attorneys II, Assistant General, Ap- Attorney Criminal Office of Frankfort, Division, appellee pellate (1998-SC- Kentucky Commonwealth 0607-MR). Lewter, County Legal Fayette

V. Gene Aid, Inc., Darrell Lexington, appellant (1998-SC-0963-TG). Morbley C. General, Chandler, III, Attorney A.B. Frankfort, KY, Shepherd, Kent Dennis W. Daniel, II, Assistant T. L. Young, William Attorneys General, Attorney prison probation pa- Office Gen- without benefit or eral, Division, Appellate Criminal Frank- years. role for twenty-five Young was fort, appellee Commonwealth Ken- complicity convicted of murder and sen- (1998-SC-0963-TG). tucky Morbley tenced to death. was convicted of facilitation of murder sentenced to five COOPER, Justice. years prison. in 13, 1997, On June Osama Shalash was Young appeal to and Thomas this Court fatally Lexington shot Mall parking right. Ky. as a matter Const. in front of Perkins’ Restaurant Lex- lot 532.075(1). 110(2)(b); § Morbley’s KRS ington, Kentucky. Appellants Gerald appeal was transferred this Court so Young, Erskin Thomas Darrell Morb- that all three could be appeals considered were ley jointly indicted for his murder. 74.02(2). together. CR We reverse trial, the proved At Commonwealth that Young’s sentence of death because there is and Young Shalash were cocaine traffick- no aggravating applicable circumstance and that Young regularly purchased ers his participation the murder of Shalash. large quantities of from cocaine Shalash (3). 532.025(2), In all KRS other respects, for resale to lesser dealers. There was imposed convictions and sentences that Young purchase evidence intended to $50,000.00 upon Appellants Shalash, worth of from are affirmed. cocaine $25,000.00 only Shalash had worth Young paid of cocaine to sell. Shalash I. AGGRAVATING CIRCUMSTANCE. $25,000.00 for the cocaine and entrusted A sentence of death or of with life $25,000.00 remaining possession parole out benefit of probation for twen associates, of one of Young’s Leslie Mulli- ty-five years imposed cannot be unless the gan. There Young was evidence that had beyond has found reasonable doubt previously “shorted” Shalash another designated writing least one drug transaction. The Commonwealth’s of the statutory aggravating circumstances theory of the case was that Shalash robbed 532.025(2)(a), enumerated in or an KRS Mulligan $25,000.00 at gunpoint; other aggravating circumstance and, “otherwise in revenge, hired Young Thomas to law,”1 applies authorized to the defen end, kill Shalash. To arranged 532.025(2),(3); dant. KRS see Smith v. meeting with at the Lexington Shalash Ky., 599 S.W.2d parking Morbley, Mall lot. another of associates, Young’s parties appeal to this agree drove Thomas to and statutory aggravating from the cir Lexington Mall where Thomas applicable shot and killed cumstance to the Shalash. Thomas was con- facts of this 532.025(2)(a)4, of victed murder and sentenced to life in case is KRS viz: Murder, 532.025(2). Ky., by 1. In rized Harris law.” KRS of denied, (1990), course, S.W.2d 924, cert. proscribed by is KRS 507.020. While 113 L.Ed.2d 252 kidnapping capital to a is enhanced offense if capital punishment we held that could be subsequent the victim is not released alive or imposed upon a defendant convicted of kid ly kidnapping, dies as a result of the the napping during if he also his victim murdered additional element intent to kill in of KRS kidnapping. Kidnapping the course of the is 507.020(1)(a) provides statutory aggrava the capital offense and Hams holds that mur ting authorizing capital punish circumstance der, though aggravating not an circumstance Roark, kidnapping. ment for St. Clair v. 532.025(2)(a), “ag in enumerated KRS is an 486-87 gravating otherwise ] autho- circumstance! value, thing monetary of of or for The committed the other offender offense another, profit. for the other murder for himself or money any or other purpose receiving of course, already jury Of the had value, thing or other monetary of for mur Young guilty complicity of found profit. der; and there was no evidence (2)(a)4 kill ag- Young’s hiring Thomas to only contains the motive Subsection [Young] “for purpose circumstance enumerated Shalash was the of gravating 532.025(2) receiving money thing other of premised upon any KRS or is value, monetary profit.” or other The prem- motive. The are for defendant’s others defendant, the of upon imposition ised of the instruction authorized status victim, punishment jury if the capital upon of the the nature of the status or killed “for jury that it believed that Thomas Shalash offense. The was instructed receiving money of capital upon purpose [Thomas] impose punishment could value, any thing or Thomas, killer, monetary or other of only if it the hired believed profit.” for other The issue is wheth here beyond from reasonable the evidence murder, motive accomplice er an whose doubt that: death revenge, was can be sentenced to of The committed the offense defendant monetary because the killer’s motive was another, Murder for himself or re previously been gain.2 We purpose receiving money any of or other whether KRS quired decide value, other thing monetary or for of 532.025(2)(a)4 imposition authorizes profit. penalty upon one who hires another death Thus, the lan- parroted the instruction kill, doing whose so motive 532.025(2)(a)4, and Thomas guage KRS money any or other “receiving unrelated to was does not assert on that there appeal value, thing monetary prof or for other application warrant insufficient evidence to 3it.” to him. aggravating circumstance code, adoption penal Prior to the im- The instructed that it could provided murder statute sim- Kentucky’s capital upon Young, who pose punishment ply: Shalash, if to kill it hired Thomas Any mur- person who commits willful a rea- beyond

believed from evidence punished by confinement der shall be that: sonable doubt life, by penitentiary or death. committed the offense of defendant ch. (repealed Ky.Acts, murder Complicity to Murder and the KRS 435.010 1975). Thomas, 406, 336, § January eff. Under Erskin was committed statute, murderer any that a convicted receiving money whether purpose here, been Young could not have because 2. We not address Commonwealth’s do preserved finding proof that this issue was not contention death and a sentenced to absent reviewing a convic by timely objection. 532.025(2)(a)4 In aggravator. of the KRS tion in which the death has been error, including imposed, claims those all Commonwealth, Ky., 780 In Brown v. ap unpreserved, which are addressed on are denied, (1989), 494 U.S. 627 cert. object fairly be peal to unless the failure can 1087, 1825, S.Ct. 108 L.Ed.2d 954 110 strategy, or if error can attributed to (1990), that the defendant there evidence fairly KRS be characterized harmless. to in the who the killer intended share hired 532.075(2); Sanders policy. proceeds life insurance of the victim’s 665, denied, (1990), 502 cert. 668 Id. at 630. 107, 831, 116 L.Ed.2d 76 U.S. 112 S.Ct. apply of Neither those circumstances

157 degree. be to death or life in for murder in the first would sentenced tence prison Juries, however, was left to the unfettered discretion simply convicted of a less- 1962, jury. ex By of similar statutes er of homicide in those cases where degree every jurisdiction in in isted the United not to the death they impose penal- chose that death States had not abolished the ty, legislatures “jury this nul- accepted and penalty. Model Penal Code and Commen their statutes to amending lification” taries, II, 210.6, 4(c), § Part Comment at grant juries they were al- discretion (A.L.I.1980) (hereinafter 131 Commentar ready exercising. ). 1959, In the American Institute ies Law standard, by neither rule nor Guided adopted a provision Model Penal Code fit,” reject as it [sees] “free select or aggravating set forth cir mitigating between im- jury that must choose life guide judges juries cumstances to in prisonment capital punishment can determining capital punishment whether must do nothing do little more—and in appropriate particular would case. express less—than the conscience of the Id., 6, 1, 110, Comment at at Comment community question on the ultimate of in aggravating 136-42. The circumstance death. life or the Model Penal corresponds Code Illinois, 519, 510, Witherspoon v. 391 U.S. 532.025(2)(a)4 KRS is found at Section 1770, (1968) 1775, 88 L.Ed.2d S.Ct. 20 776 210.6(3)(g): murder “The was committed Bernette, 359, People v. 30 (quoting Ill.2d pecuniary 1972, gain.” As of no Amer (1964)). 436, 197 N.E.2d jurisdiction adopted ican had 210.6 Section Commentaries, of the Model Penal Code. of important [0]ne the most functions 13, at supra, Comment 167-68. any jury perform making can such a a link California, In McGautha selection to maintain between 402 U.S. contemporary community S.Ct. L.Ed.2d 711 values and the argued it was system- behalf of the link penal condemned without which the —a murderer that the absence of punishment standards of determination could hard guide a jury’s discretion on the issue ly “the evolving reflect standards of de punishment capital was unconstitutional as that mark cency progress of a ma being “fundamentally and, thus, lawless” society.” turing violation the Due Process of the Clause Id. at n. S.Ct. at 519-20 1775-76 Fourteenth Amendment. Id. at Dulles, Trop (quoting contention, at Addressing S.Ct. 590, 598, (1958)). L.Ed.2d 630 Harlan history Justice traced the precedents, these Citing Supreme death from Exodus 21:12-13 McGautha, rejected supra, Court through England Unit- laws of and the argument against Due Process discretion- 197-203, ed States. Id. at ary jury sentencing. 1462-65; Commentaries, supra, see also light history, experience, In the Coan, Sym- at 121-32 Comment and M. present and the limitations of human posium Kentucky on the New Penal Code: knowledge, quite impossible we find it and Disposition Classification of Offenses (1972- say committing to the Offenders, untrammeled Ky.L.J. 738-39 73). summarize, power pro- To rule discretion common law capital mandated death all life or death in convicted murder- nounce cases is legislative Subsequent anything ers. offensive to the Constitu- enactments distinguished degrees homi- between tion. States are entitled to assume cide, retaining mandatory jurors truly death sen- with the confronted 257, at 92 S.Ct. at 2735-36 decreeing of See 408 U.S. responsibility

awesome J., at 307- (Douglas, concurring); will act with U.S. death for a fellow human 08, (Stewart, J., of at 2761 concur regard consequences due for the their 92 S.Ct. ring). variety and will a of decision consider factors, of many which will been Meanwhile, pursuant joint to a resolu- by by ar- suggested the evidence or the Kentucky tion Assem- of the General guments of defense counsel. For a Commission bly,5 Kentucky the Crime had the attempt catalog appropri- court penal a draft prepared proposed of a new ate factors in this elusive area could com- Kentucky. The draft was code the expand scope inhibit rather than of in pleted published and November 1971 consideration, for no list circum- and, revision, by after some was enacted really complete. ever stances would be Assembly6 with an effec- 1972 General variety The infinite of cases facets 1, Palmore, July tive date of 1974. J. general would to each case make stan- Symposium Kentucky on Penal Preface meaningless plate” dards either “boiler (1972-73). Code, Ky.L.J. The 1972 or a of the obvious that no statement statute, murder new KRS version

jury would need. 507.020, rendition was enacted before the 207-08, at at 402 U.S. 91 S.Ct. 1467-68. change penalty of Furman and did not statute, former provision KRS 1972, plurality4 That in 1971. In was 435.010, permit jury but continued Supreme of the held in Furman v. Court in in prison death or life its 238, impose 2726, Georgia, 408 U.S. 92 S.Ct. go (1972) penal The code did not discretion. new leaving L.Ed.2d 346 that statutes July originally into on entirely to effect imposition penalty of the death scheduled, reenacted the 1974 jurors was unguided discretion of violated Eighth Assembly General with modifications and proscription Amendment January 1, given new date of punishment. and unusual Id. effective against cruel statute, 306-10, (Stewart, J., 507.020, at 2760-63 1975.7 murder KRS 92 S.Ct. 310-14, imposition of require at was amended to concurring); id. at ("White,J., cir- aggravating see death under six concurring); Gregg penalty 2763-65 cumstances, avoiding n. the Furman Georgia, thus (1976) life problem leaving the decision of or 49 L.Ed.2d 859 (“[sjince the unfettered discretion separately death to five Justices wrote Furman, guilty of jury. If a found a defendant support judgments murder, no discre- aggravated there was holding may of the Court be viewed as exercise; was mandated.8 by those who con- tion to death position taken Members aggravating One of the six circumstances judgments the narrowest curred KRS was Mr. in the 1974 version of 507.020 grounds Justice Stewart —Mr. "White”). decide, killing act defendant’s was “[t]he did not Furman Justice hire.”9 however, profit mandating the intentional whether statutes added.) (Emphasis would unconstitutional. death 406, § Ky.Acts, 7. 1974 ch. 337. 4. Justices and Marshall concurred Brennan capital punish- result but asserted that per ment is se unconstitutional. 275(1). 61(2), § Ky.Acts, 8. ch Ky.Acts, 5. 1968 ch. 406, 61(2)(a). § Ky.Acts, 9. 1974 ch. Ky.Acts, 6. 1972 ch. 385.

159 State, 776, Following the invalidation of its 250 Ga. 301 S.E.2d statuto- Castell v. Furman, ry 234, (1983), trial, scheme Georgia enacted new 250 on denial 252 of penalty new death statute incorporating 418, 314 S.E.2d 210 cert. de Ga. approach provid- the Model Penal Code of nied, 873, 230, 469 U.S. 83 ing statutory mitigating aggravating and (1984); Whittington L.Ed.2d 159 cf. guide jury circumstances to the in its deci- State, Ga. 313 S.E.2d impose sion whether to the death penalty (1984). in a given However, language case.10 the Gregg Georgia, In the supra, United of Georgia’s “pecuniary gain” aggravator Supreme Georgia’s upheld States Court requirement differed from the in Section statute, penalty finding that new death the

210.6(3)(g) of Model Penal Code aggravating enumerated circumstances “the pecuniary murder was committed for vague pro- so or were not so broad as added), gain,” (emphasis providing instead inadequate juries guidance charged vide that “[t]he committed the offender offense duty recommending of or impos- with the another, of murder for himself or ing capital sentences cases. purpose receiving money of or other any thing monetary value.” Ga.Code Ann. basic The concern of Furman cen- 17-10-30(b)(4) added). Thus, § (emphasis those who tered on defendants were be- 210.6(3)(g) whereas Section Model ing capriciously condemned to death required Code that the motive for the of- arbitrarily. procedures Under the be- been pecuniary gain, must have fense case, fore the Court in that sentencing Georgia required statute motive of to give authorities were not directed at- i.e., offender, defendant, must have tention the nature or circumstances of been pecuniary (monetary) gain. the crime committed or the character adopted States that language or un- record the defendant. Left the Model Penal Code have “mo found the guided, juries imposed the death sen- tive requirement for the offense” inclusive a way only tence in be called could enough apply to the hired Georgia sentencing freakish. new killer, but also to the one procured who contrast, procedures, by jury’s focus the State, E.g., services. Wilson v. his/her particularized on the attention nature of Nev. P.2d Hop and the particularized the crime charac- State, kinson v. (Wyo.1983), P.2d the individual teristics of defendant. denied, rt. ce jury permitted to While the consider 78 L.Ed.2d 246 Georgia, any or circum- aggravating mitigating hand, has other not relied on the “mo stances, it must identify find tive requirement offender” in sub statutory aggravating least one factor (b)(4) section its statute to authorize may impose, it before capital punishment for one an who hires way In this jury’s death. discretion murder, other to commit but on a different No longer is channeled. can wan- aggravating circumstance contained tonly freakishly the death impose (b)(6) statute, subsection of its viz: “The sentence; always it is circumscribed offender or caused directed another legislative guidelines. commit the or murder murder committed 206-07, an agent employee per (empha- of another Id. at 96 S.Ct. at 2940-41 10—30(b)(6); added). § son.” Ann. Ga.Code sis 17— Ga.L., § p.

10. 1973 Thus, Assembly adopted the day Gregg, On same it rendered it.” the General the (b)(4) Supreme Georgia Court also rendered Woodson the verbatim subsection of Carolina, North 96 S.Ct. clause statute12 but added the additional L.Ed.2d held which it profit,” “or for which retained other mandatory penalty North Carolina’s death profit language from the hire” of “for or because, statute unconstitutional inter 507.020(2). Sig- the 1974 of version KRS alia, significance to rele- it accorded “no nificantly, Assembly not the did General vant of the character and record of facets language ... of the retain the “for hire” or circum- the individual offender adopt did 1974 statute and not “direcG particular Id. at stances of offense.” found subsec- aggravator ed another” course, at 2991. Of Woodson (b)(6) Georgia tion of the statute. effectively also invalidated the 1974 ver- thirty-eight present, At laws of 507.020(2). sion of KRS pen- the death permit imposition states Woodson, Gregg In and response All thir- alty upon of murder.13 conviction Assembly Kentucky General was called finding least one ty-eight require into 1976 and special session December statutory aggravating circumstance as 507.020(2),11 time again amended KRS imposition of death prerequisite to provide merely capi- is a “[m]urder Virginia15 are and penalty. Montana14 532.025, offense,” tal and enacted KRS not only penalty states that do death adopted Georgia/Model which Penal pecuniary gain” aggravator include a “for (1) enumerating specific approach Code Thirteen statutory in their schemes. aggravating mitigating circumstances or provisions identical adopted states have guide penalty in its decision 210.6(3)(g) of virtually identical Section (2) requiring finding beyond a rea- i.e., Code, the Model Penal at least sonable doubt the existence of of- mo- offender, to the fense, opposed statutory aggravating one circumstance pecuniary Eighteen gain.16 tivated can capital punishment imposed. before states, those with including provi- three of supra, aggravating As circum- noted or virtually sions identical identical 532.025(2)(a)4 is in KRS specified stance § 210.6(3)(g), Model have stat- Penal Code committed the offense offender “[t]he or providing hiring another, spécífícally utes or for the of murder for himself to commit procuring otherwise another purpose money any other receiving value, monetary aggravating murder an circumstance.17 thing prof- or for other 13A-5-49(6), (ex. sess.), § Ky.Acts §§ 2. 16. Ala.Code Ark.Code Ann. 11. ch. 604(6); § § 16-11- Colo.Rev.Stat.Ann. 5-^4— Georgia served as the model 12. The statute 103(5)(h); Del.Code Ann. tit. Lawson, Ken for KRS 532.025. Palmore 921.141(5)(i); 4209(e)(l)o; § § Fla.Stat.Ann. (Criminal), § 2.08 tucky Juries Instructions to 19-2515(h)(4); § Ann. Idaho Miss.Code Code (Comment) (3d Anderson ed. 99-19-101(5)(f); § § 29- Neb.Rev.Stat. supp.). 200.033-6; 2523(l)(c); § Nev.Rev.Stat. VII(i); § N.C.Gen. N.H.Rev.Stat.Ann. 630:5 permit imposition that do 13. Those 15A-2000(e)(6); § Ann. Utah Code Stat. Alaska, Hawaii, Iowa, penalty death are 76-5-202(l)(£); § Wyo.Stat.Ann. § 6-2- Minnesota, Massachusetts, Maine, Michigan, 102(h)(vi). Dakota, Island, Vermont, West Rhode North Virginia and Wisconsin. 13-703F-4; § 17. Ariz.Rev.Stat. Conn.Gen. 53a-46a(i)(5); § § Idaho Code 19- Stat. § 46-18-303. Mont.Code Ann. 5/9-l(b)(5); 2515(h)(4); § Ill.Comp.Stat. 35-50-2-9(b)(5); § Kan.Stat.Ann. Ind.Code §Ann. 15. Va.Code 19.2-264.2. discretionary, ment. the kind of Colorado’s statute not has the Model That is aggravator, Penal Code but also has an ad hoc of the death application the defen- aggravating specifically circumstance that condemned Furman Geor kill party agreement supra, dant was a to an gia, supra. Gregg Georgia, In another.18 California has the Model Supreme upheld both the United States Court aggravator provision Code and a separate only Georgia’s penalty statute new death the death if the defen- authorizing penalty legislative guidelines because it contained accomplice dant another was an with to circumscribing imposition the of the death aggravating applies whom an circumstance 206-07, at penalty. 428 96 S.Ct. U.S. and if defendant intended the equally 2940-41. It clear that individu is victim would be killed.19 New Mexico20 alized is a consideration Constitutional and have circum- aggravating Ohio21 an capital pun prerequisite imposition stance that the offense “was committed for Ohio, Id.; ishment. see also Lockett v. 438 hire.” In to three Georgia, addition other 586, 605, 2954, 2965, U.S. 98 S.Ct. 57 provisions language states have with simi- (1978); v. L.Ed.2d 973 Woodson North ie., 532.025(2)(a)4, lar to KRS the Carolina, 96 supra, U.S. at S.Ct. motive pecuniary gain, by Supreme at 2991. offender’s As observed each, Georgia, adopted like has also Court of Missouri: aggravating additional circumstance that obvious, penal- To state the the death “[t]he offender caused or directed another ty all of crimi- differs from other forms Kentucky commit murder....”22 has nal The death penalty sanction. reflects the only statutory a “pecuni- scheme with a societal judgment person’s a acts ary gain” aggravator containing neither fit [sic] render them no to be longer Penal language Model Code applying among a of such judgment us. Such a offense, aggravator opposed as magnitude jury so final that deliber- and offender, to the nor an aggravating cir- subject carefully ations over the must be specifically cumstance applicable to one legal channelled to consider who procures hires or otherwise another to justifications punishment and commit murder. broad, the more often emotional re- Thus, death penalty sponse general. The cannot im the crime in be posed jury simply setting statutory because we or the out be instructions lieve particular the actions cir- aggravating motives of circumstances —those deserving capital that, found, defendant are punish- justify if cumstances 21-4625(4); § subjected La.Code be Crim.Proc.Ann. art. to the death was mandat 905.4A(5); 413(d)(7); Florida, § Md.Ann.Code art. ed Enmund v. 29-2523(1 )(c); § (1982); Neb.Rev.Stat. NJ.Stat.Ann. 73 L.Ed.2d 1140 but see l-3-c(4)(e); § § Arizona, 2C:1 N.Y.Penal Law 125.27- Tison v. U.S. l(a)(vi); 701.12-3; § Okla.Stat. tit. Or. (1987) (non-triggerman 95 L.Ed.2d 127 163.095(l)(b); § Rev.Stat. 42 Pa.Cons.Stat. accomplice be can sentenced to death under 9711(d)(2), § § Ann. Tenn.Code Ann. 39—13— murder). constituting felony facts 204(i)(4); 19.03(a)(3); § Tex.Penal Code Ann. § 76-5-202(l)(g); Utah Code Ann. Wash.Rev. § 20. N.M.Stat.Ann. 31-20A-5F. 10.95.020(5). § Code Ann. 2929.04(2). § 21. Ohio Rev.Code Ann. 16-ll-103(5)(e). § 18. Colo.Rev.Stat.Ann. (6); 565.032-2(4) 190.2(a)(1) (c). § § 22. and Code and Mo.Rev.Stat. Cal.Penal 16-3-20(C)(a)(4) § requirement accomplice that an S.C.Code Ann. must 23A-27A-1(3) § intended in order victim be killed S.D.Codified Laws Commonwealth, Ky., unquestionably Skinner death sentence —must convicted own (1993), focused on the murderer’s S.W.2d Commonwealth character, record and individual mindset (1980), Yeager, 599 S.W.2d 458 betrayed by her own conduct. Al- Commonwealth, Ky., Ray person though permissible it is to find in which an all were cases guilty murder for acts done concert guilty by complicity accomplice was found another, permissible with it is never high to a of an offense that was enhanced person sentence death acts of er it while degree because was committed another. with actor was armed a dead principal (Mo. Isa, State v. 902-03 ly principal or actor weapon because the 1993). injury the physical inflicted on victim. words, penal In the death other hold that under KRS simply Those cases cannot ty vicariously imposed. be Absént 502.020(1), guilty the accomplice is the statutory spe circumstance aggravating fact, principal. offense the In same as to the the cifically applicable defendant or 502.020(1) “A person is provides: KRS conduct, be defendant’s own cannot he/she by an committed another guilty of offense subjected penalty. to the death Unlike the ” added.) person (Emphasis when.... legislatures of thirty-five of the other thir However, the do hold that those cases not ty-seven penalty death states the as accomplice punished same must be statutes, legislature our has chosen not to principal example, For principal. the 532.025(2) aggravating an include KRS shock probation, for might ineligible be hired, circumstance to one who applicable discharge probation, or because conditional to commit procured or directed another the parole at probation was on or he/she unlike legislature, murder. Nor our has 533.060(2). KRS time of offense. a provi enacted legislature, California accomplice an That does mean that not imposition sion death authorizing parole not or at probation who was accomplice of upon who is an penalty one ineligible also be time of offense would aggravating an circum another to whom probation or condi probation, for shock applies. specification aggra stance discharge. specifically, tional More legislature’s is the vating circumstances subject to By principal might that a unambiguous its fact prerogative, not ours. 532.025(2)(a)4 applies KRS has language,23 capital punishment because- he/she who commits the of only to a defendant a capital for prior record conviction purpose “for the of receiv fense of murder 532.025(2)(a)l, not mean offense, does KRS monetary ing money any thing or other prior such a accomplice without that an value, profit.” the stat other While capital to subject would also be record Thomas, the hired clearly applies ute to course, result punishment. a different Of case, apply in this it does not killer circum the aggravating would obtain if mur procuring Young whose motive offense, itself, e.g., stance, separate awas revenge, monetary not der of Shalash was KRS degree, first robbery gain. 532.025(2)(a)2, accomplice was also and the aggravating guilty by complicity cited in the

We find cases ante, dissenting opinion, inapposite. to be offense. 729, 731 Lundergan, Ky., 847 S.W.2d ambiguous, language

23. Even if the were Ky., 695 give Roney v. lenity” require it the would us "rule of (1985). interpretation. Commonwealth more lenient Atizona, object In Tison did not to the trial supra, Appellants note not, here, ag- the issue was as judge’s interpretation whether an erroneous of RCr applicable gravating only factor to the the trial argued only judge 9.40 principal vicariously applied could be more grant peremp had the discretion fact, accomplice. an In there three were tory penal in a death strikes defendants aggravating specifically applicable factors by ty required than are the rule. case the accomplice’s conduct in Gabow, Tison. Thus, issue was not at U.S. 1680. The preserved appellate Kentucky review. Florida, issue was whether Enmund v. Cook, Ky., Farm Bureau Mut. Ins. Co. supra, note precluded imposition 875, 877 non-trig- the death because the B. Failure to strike cause. robbery to a german accomplice fatal did Thomas Appellants assert not robbery intend that victims be error in the court’s refusal to strike killed. Tison held that Enmund does cause, eight jurors for all of whom were preclude capital punishment in a situation subsequently peremptory excused where the non-triggerman accomplice was strikes. major robbery, a in participant he knew that lethal force would employed Juror a scout pilot No. 932 was accomplish robbery, partic- and his for the National Guard. He advised dur ipation knowledge with such amounted to ing general helped voir dire that he had reckless indifference to human 481 life. Kentucky State Police search for mari 158, here, at U.S. 107 S.Ct. 1688. As juana marijuana of the part eradication accomplice’s eligibility pun- for capital force; task that drug suspects had shot at depended ishment not on the mens rea him even on and wounded him one occa triggerman, on his rea but own mens sion; he that had testified as witness in a and the nature of his own conduct. prosecution drug trafficking; and that Having determined that im- Young was position drugs his on was “zero tolerance.” death, properly sentenced we not need He that his employees also advised one of address the appeal other issues on that course, police to a was married officer. Of apply only to penalty death cases. Nor there although would be evidence that ai'e we bound mandate of KRS both and drag Shalash were deal 532.075(2) to consider other that issues ers, murder, were with Appellants charged

were not properly preserved for appellate in trafficking not with controlled sub review. stances. Juror No. 932 stated that his would his background ability not affect II. JURY ISSUES. impartial juror sit as an on case. He

A. Peremptory strikes. during also advised individual voir dire joint Since this was trial of three could the full range he consider jurors defendants and be mitigating alternate were would penalties consider ing seated, Appellants to a deciding penalties were entitled factors before in the peremptory total of fifteen RCr Appellants strikes. event were convicted. Even if 9.40; Commonwealth, had, himself, Springer v. Ky., police 998 Juror No. 932 been a (1999). 439, Instead, they officer, required S.W.2d 443-45 such would not per- allotted a total of he v. were twelve be excused cause. Sanders Com monwealth, 665, emptories. Ky., in Gabow As v. Common 801 670 S.W.2d wealth, denied, 63, (2000), (1990), 831, Ky., 34 74-75 112 S.W.3d cert. 502 U.S. S.Ct.

164

107, range penalties 116 L.Ed.2d 76 There no could consider the full responded in him for cause. that she could not failing error excuse consider penalty. death When asked a second expressed Juror Nos. 891 and 90k time, responded that she she would have a circum mitigating reservations about time, time.” “hard When asked third stances, they would fol both indicated that she not think she responded she did low in that regard the court’s instructions penalty. the death could consider Juror range penal consider the full would could No. 831 advised she consider 847, 848, 874, ties. Juror Nos. and 876 all penalty only multiple a case of the death strong held views favor death juror disqualified murders. A sit on a However, each penalty. advised that he/ death is an avail case which the range she the full of penal would consider juror if that punishment able states no failing ties. There was error impose penalty. could not the death he/she any jurors excuse of these cause. Commonwealth, Ky., Davis v. 795 S.W.2d Commonwealth, Bowling Ky., v. 873 Commonwealth, (1990); Ky., 942 Moore (1993), denied, 177 cert. 513 S.W.2d denied, (1988), 34 cert. 494 U.S. L.Ed.2d 112 U.S. L.Ed.2d 774 110 S.Ct. (1994) (juror disqualified because he/ (1990); Simmons long penalties, she favors severe so as the denied, (1988), cert. 746 S.W.2d 393 juror range penal will consider the full 1328, 103 L.Ed.2d U.S. ties); Commonwealth, Ky. Williams v. cf. Commonwealth, Ky., Stanford (1992) (juror App., 829 S.W.2d can aff'd, by clarifying himself his rehabilitate (1989). L.Ed.2d 306 views). her The trial did not discre judge abuse strong Juror held No. also for jurors tion in these two cause. excusing penalty, in favor of the death views Alleged juror. sleeping D. he consider full range stated would In penalties. response question to a from Appellants juror slept claim a dur counsel, No. 808 if he defense stated that guilt phase closing ar ing portions of the appropriate, he thought penalty death guments again during asleep and fell did not know if he would consider lesser At the Young’s penalty phase argument. course, if he con penalty. already Of had arguments, penalty phase conclusion of the range penalties the full and sidered moved for a mistrial Appellants appropri decided that death was the most grounds juror that had not heard all of ate it to reason that he penalty, stands evidence, render an thus could not penalty not then consider a that he would judge trial had independent decision. The already inappropriate. had decided was fact that the about the previously inquired to failing No error occurred excuse juror eyes her closed and the often had juror Bowling v. for cause. Common from juror explained that she suffered had wealth, supra, anemia, caused her to cell which sickle cause. C. Excusáis for eyes. response In to motion close her mistrial, juror called to the in the for a was

Appellants assert error she had insisted that judge’s jurors to two bench where she decision excuse during occurred they they everything heard that had for cause because advised no error overrul in this trial. There was could not consider the death Shrout ing asked if she the motion mistrial. Juror No. was case. 79k Commonwealth, Ky. However, credibility witnesses (1928). 726, 727 weight given testimony sworn

are for the to decide. Commonwealth III. SUFFICIENCY OF Smith, Ky., 5 S.W.3d

THE EVIDENCE. Estep (1997). Commonwealth ad-

Appellants they claim should duced sufficient evidence reasonable have received directed verdicts of acquittal jurors beyond conclude reasonable primary because the witnesses for the thus, Appellants guilty; doubt that were Commonwealth were incredible as a mat the trial overruled their judge properly ter of law. The key Commonwealth’s wit acquittal. motions for directed verdicts of girlfriend, nesses were Young’s Johnetta Benham, Ky., Commonwealth v. Girard, informant, jailhouse and a Danny S.W.2d 186 Craddock. Girard testified she was $25,000.00 present during the cocaine Appellant Additionally, Morbley Shalash;

transaction between claims there was evidence insufficient that Young told her that Shalash had convict him of facilitation mur criminal robbed Mulligan Leslie of the remaining 506.080(1) der. KRS provides: $25,000.00; going that he was to have Sha- person A guilty is criminal facili- (Girard) it; lash killed for she met when, tation acting knowledge with airport, Thomas at the drove him to a person committing another or intends motel, paid for his motel room with crime, he engages commit a in con- money given by Young; to her that on the duct knowingly provides per- which such day murder, drove Young she to the son or opportunity with the means Lexington Mall lot in parking Young’s Mit the commission of the crime and which automobile; subishi that Morbley and in fact person aids such commit the Thomas in a followed maroon Cadillac crime. she, driven Morbley; and that as Young, Morbley asserts there no girlfriend, Shalash and Shalash’s Pruitt, knowledge Kim evidence that he had that preparing prior were to enter Per Restaurant, Thomas kins’ intended to kill Shalash. As ex up Thomas ran behind Commonwealth, them in plained and shot and Chumbler v. killed Shalash. Crad- dock testified that to convict of he was incarcerated complicity, with Young County jury at the the must find the defen Scott Detention - occur, Center dant August from intended the murder September facilitation, 1997 and that him convict of the Young told need find paid he $25,000.00 that the defendant knew the principal have Shalash killed because actor was a going Shalash had to commit crime. Ei Mulligan. robbed Leslie way, (necessary ther intent to convict of Appellants point out that the evi complicity) knowledge or (necessary to dence offered and Girard Craddock was facilitation) convict of can be inferred from respects by contradicted some other the defendant’s conduct. Id. at 499. Specifically, Mulligan witnesses. testified that there was no deal drug and that she IV. OF ADMISSIBILITY EVIDENCE. was not Appellants robbed. also claim A Hearsay: KRE 802. that neither Girard Craddock nor are wor thy of they given belief were Officer because Lee Shimizu arrived at Perkins’ in exchange “deals” their Restaurant testimony. approximately seven minutes narration shooting Joyce the and interviewed sion because the described after occurred); Combs, already a at restaurant who which had Sla waitress the events Commonwealth, Ky., ven shooting. the claimed to witnessed (1997) (declarant’s statement the killer was a 854-55 Combs told Shimizu that “not home” was male, 5'6", that the defendant was at complex- black about medium ion, present impression, and a but her state wearing a dark shirt white sense the had home left the in a ment that defendant come cap, baseball and he scene not within subsequently departed maroon with and was 1980’smodel Cadillac a white exception because it described events top. description Shimizu broadcast this occurred); Later, already radio. which had Jarvis police police over the station, 469- Ky., 960 S.W.2d the killer as Combs described (child’s (1998) that she saw weighing pounds, eigh- statement approximately old, years wearing the defendant kill her mother was teen nineteen and no exception because there was cap. unable to iden- within the red baseball She was as made tify photo line-up. from a Thomas evidence the statement was Thomas male, complexion, killing immediately occurred or there is a 6'1" dark black after). thirty-one weighing pounds years at the time of the murder. Other old description Nor Combs’s was saw Thomas run from Per- witnesses who an utter killer as excited admissible kins’ to the maroon Cadillac Restaurant Commonwealth, supra, In Jarvis v. ance. build,” “thin,” described him as “small weighed repeated we the factors build,” “in strong early “medium to his determining an out-of-court state whether mid-twenties, tall, twenties, proba- not real 803(2): under KRE ment is admissible eight five to five foot bly foot six inches (i) the main act lapse of time between

inches.” (ii) declaration, the opportunity and the trial, By Joyce disappeared. had Combs (iii) fabrication, in- or likelihood of Appellants sought to introduce her de- (iv) fabrication, the actual ducement scription through the tes- murderer declarant, (v) place excitement judge timony of Shimizu. Officer (vi) declaration, presence objection to sustained the Commonwealth’s of the act or of visible results there hearsay Appellants assert evidence. re- the utterance occurrence which repetition of Combs’s de- that Shimizu’s (vii) lates, whether utterance killer scription of the was admissible (viii) response question, made KRE impression, a present either sense in- against whether declaration was utterance, 803(1), or an KRE excited self-serving. terest or 803(2). (quoting Id. Souder v. Common at 470 (1986), wealth, in Ky., 719 733 was S.W.2d statement to Shimizu

Combs’s Lawson, Kentucky quoting turn R. The because the present impression not a sense (2d § ed. Laio 8.60B contemporaneous Evidence Handbook was not made statement 1984)). v. clarified Smith describing with was or Michie We ly the event she Commonwealth, 266, 268 788 Ky., Fields v. Com S.W.2d immediately thereafter. denied, 111 monwealth, cert. 498 U.S. Ky., 279-80 (1990) (2000) (audio that the 112 L.Ed.2d description of crime scene test pose do not true-false investigating of above criteria investigation by recorded only as admissibility, rather act inves but of the shortly completion ficer after determining guidelines to be considered present impres- sense was not tigation identification). quent they admissibility. particular Whether a state Nor were ad- qualifies ment as an excited utterance de acts.” White v. missible as “verbal See Commonwealth, (1999). pends on the circumstances of each case 5 S.W.3d arguable point; and is often an and “when sought evidence to be elic The is trial so the court’s decision to admit that ited from is identical to usual Shimizu or exclude the evidence is entitled to def ly objected by “investiga as defendants Souder, supra, erence.” That at 733. is Commonwealth, tive hearsay.” Slaven v. way saying but another that when the Commonwealth, 859; supra, v. at Sanborn depends determination upon the resolution Ky., 754 S.W.2d “Investi fact, question a preliminary the reso gative hearsay” equally inadmissible lution is by judge determined the trial against against a the Commonwealth as 104(a) under KRE pre the basis defendant. su Fields evidence, ponderance Bourjaily police may at A pra, testify officer States, United by about information him furnished to an 2775, 2778-79, (1987); L.Ed.2d absent witness if that information will resolution not be un overturned explain tends to the action was taken erroneous, i.e., less clearly unsup unless by police officer as a result of the ported by substantial evidence. Com Cf. the taking information and of that action is Deloney, Ky., monwealth v. an issue in case. Daniel Common (2000) (trial 471, 473-74 judge’s findings of wealth, Ky., 905 S.W.2d clearly fact are supported not if erroneous Commonwealth, supra, Sanborn v. at 541. evidence). by substantial so, If the out-of-court is not statement Officer Shimizu testified that he chose to hearsay, it prove is not offered to because interview Combs because was “not she as the truth of the matter but to asserted stressed” as the other at witnesses explain why the officer acted as he did. scene. description Combs’s of the killer The fact description caused a Shimizu not spontaneous was response was police the killer to be over broadcast inquiry Thus, to a direct Shimizu. radio was not issue in case. there was substantial to support evidence only purpose introducing the details of judge’s the trial finding that Combs’s that description prove would be statement not an excited utterance. description Thomas; fit Combs’s did not Nor were description Combs’s thus, it prove would have been offered to of the killer and her to identify failure and, thus, truth description of Combs’s Thomas during photo line-up admissi Thomas was the killer. 801A(a)(3) ble under KRE statements crimes, B. v/rongs, Other acts: KRE “of person identification of a made after M(b). perceiving person.” applies That rule

only if the declarant Appellants testifies at and a assert it was error to foundation is laid accordance with KRE permit the Commonwealth to introduce ev 80lA(a). 613. KRE drug See also Summitt v. idence that was a dealer. Commonwealth, Ky., 550 Specifically, proved S.W.2d 548 the Commonwealth (1977) (repetition murder, of an eyewitness’s de that within a month the before scription physical Young of the characteristics of and Shalash traveled to Texas to perpetrator the is gether purchase large not admissible unless to a of co amount eyewitness testifies, caine; occasion, only the Young and then that another on attempts rebuttal of to her subse- the Lexington parking discredit met Shalash at Mall 168 $28,000.00 Shalash, response question by prosecutor to a to

lot and transferred Young preferred to look at inferentially payment for controlled that she not substances; objec- The only defendants. Young “shorted” Shalash other transaction; by elicited and that tion was that her answer was a drug on another not leading question. preserved Error is Mulligan Leslie of the Shalash robbed $25,000.00 objec- if for wrong reason stated that remained from intend Commonwealth, supra, at $50,000.00 with tion. Tamme v. ed cocaine transaction Sha- by of statements robbery was Nor do either these lash. The evidence 33. under Young palpable to amount to error prove had motive Girard admissible Commonwealth, 103(e) Shalash, 10.26. kill KRE and RCr Craddock Brown merely Young, Ky., expressed and the no fear 983 S.W.2d (Craddock) he would be prior dealings evidence of the between remarked that he Young walking” man returned and Shalash was admissible to “dead when prison, of the disdain Mulligan presumably knew had because prove that Shalash $25,000.00 jailhouse infor- Young’s prisoners have for and had a motive other it, supported the Common mants. take which did, fact, theory that wealth’s Shalash Impeachment: D. KRE (who robbed) being Mulligan rob denied murder, Johnetta Girard After the Young revenge. killed Shalash in and that po by hours interrogated was six pur This within the “other evidence falls the interrogation lice and was recorded 404(b)(1). KRE pose” provision of Cf. trial, audiotapes. At Girard number of Commonwealth, Ky., Tamme her. Young had beaten testified that denied, (1998), cert. if she counsel When asked Thomas’s (1999) 143 L.Ed.2d her during had made the same accusation (the specifically purposes the rule listed responded that police interrogation, Girard exhaustive). are than illustrative rather attorney could recall. Thomas’s she not ERE C. Character accused: hours entire six proposed play then

m(a)(l). not had audiotapes prove that Girard permit Appellants it was error assert her. Young had beaten police told the prosecution witnesses Girard Crad- judge ruled that counsel testify of Young dock to to their fear play any portions Thomas could Thomas, grounds presumably on and/or inconsistent prior contained tapes which of bad improper that such was evidence play could not statements but that she 404(a); character. KRE Eldred Com entirety. in their tapes monwealth, suggest do not Girard Appellants denied, cert. U.S. interrogation during her recorded denied 1034, 134 L.Ed.2d her; thus, if, as Young had beaten in that re- posits, was silent that she did Thomas she

Girard testified inconsistent state- gard, prior there no during police tell truth her interro not re- tapes ment and the would gation she was afraid because prior of a consistent objection to vealed the absence There was no Thomas. trun- present KRE in its preserved it statement. testimony, thus was 103(a)(1); version,24 only that provides KRE RCr cated appellate review. occasion, credibility may of a be attacked witness another Girard testified 9.22. On legislative history KRE 608. supra, at 29 for the 24. See Tamme v.

169 by statement, supported opin evidence the form much of so thereof reputation. pro ought ion Civil Rule 48.07 “which fairness be considered ie., it,” may “by that a impeached contemporaneously por vides witness be with evidence, contradictory by specific he showing that tion which concerns the matter by party. had made statements different his the from introduced adverse White Commonwealth, present testimony, byor that his 292 166 Ky. evidence S.W.2d (1942). general reputation for ren is untruthfulness 877 The issue whether “the him unworthy ders of belief.” meaning portion Neither the included is altered permits by impeachment by portion.” rule the absence the Commonwealth excluded Collins, prior (1996). Ky., of a consistent statement. haveWe 933 814 S.W.2d held that when a witness at professes objective prevent The of KRE “is to 106 a assertion, making prior misleading not remember a a impression as result of an can impeached introducing be a incomplete reproduction a statement.” he/she prior statement of the Lawson, witness wherein the Id. R. (quoting Kentucky The Ev (3d 1.20, assertion was Manning § made. v. Com idence Law Handbook at 48 ed. monwealth, (2000); 1993)). Ky., 23 S.W.3d 613 Michie See Gabow v. Common Commonwealth, wealth, see also Wise v. Ky.App., supra, Thus, at 68 n. 2. Young (1978). 472 prior would permitted play not been the is assertion then treated as entirety substantive in their audiotapes even if he had under Kentucky evidence KRE requested. law. so 801A(a)(1), Commonwealth, Ky., Jett v. Relevancy F. demonstrative evi- (1969). 436 S.W.2d 788 We are to no cited Jfil, dence: KRE KRE 103. authority permits witness, pro who shot, After being Shalash prior fesses to remember making a through crawled the entrance Perkins’ assertion, impeached by to be introducing Restaurant where he died. The death prior statement of the witness wherein captured by scene was a video surveillance assertion was not made. camera, and videotape played ” E. “Rule completeness: ERE 106. at trial. previously We have held

Thomas’s counsel videotape scene, also asserted that a of a crime including at trial that if played Thomas any portion position body of the victim’s and the of the audiotapes purpose of impeach injuries, location nature of the victim’s ment, KRE permit Young 106 would just is photograph, as admissible as a as play the tapes remainder their proper suming a foundation is laid. Bedell (who entirety. appeal, Young Commonwealth, On did not v. Ky., 870 S.W.2d 779 request permission to play Commonwealth, tapes Milburn v. trial) argues (1989). necessary play true, that it was S.W.2d This is even entire six hours to show though may how Girard’s the scene depicted grue be during interroga statement “evolved” some. Mills v. Ky., 996 tion. Young request denied, Since did-not cert. audiotapes remainder of the played, U.S. L.Ed.2d argument is not preserved appellate Obviously, the actual death of Regardless, review. KRE only applies victim rarely captured murder on vid “an party,” However, adverse eotape. such evidence is un parties. Thomas were not Fur doubtedly probative adverse of the issue of corpus thermore, the rule not require does intro delicti. We discern in the no error intro duction of the writing entire or recorded Nor videotape. duction of did the trial

170 441, permitting Ky., err in v. Sego, court the Commonwealth monwealth 872 S.W.2d (1994). autopsy photographs three of way to introduce 444 That is but another of body showing for the purpose Shalash’s of saying opinion witness’s must be the location of the fatal Davis v. wounds. based on witness’s own observations. Commonwealth, 574, Ky., 967 S.W.2d 579 purport opinion did not her Girard base (1998); Commonwealth, Ky., Parker v. 952 perceptions on her or own observations of denied, S.W.2d 218 cert. 522 Morbley’s actions and reactions. The 1066, 140 U.S. L.Ed.2d 126 opinion articulated basis for her was the (1998). hearsay by information furnished to her may Young. expert’s opinion While an Lay opinion:

G. KRE 701. on facts or data based otherwise inadmissi Morbley the trial erred in judge asserts evidence, 703(a), e.g., hearsay, ble as KRE permitting not him to introduce two state- lay opinion witness’s must be based on by during ments made Johnetta Girard personal knowledge percep own or his/her (1) police interrogation: her did she 701(a); 602; tions. KRE KRE v. Mills Morbley going not think knew what was Commonwealth, supra, at 488. (2) on; and the reason did not she Morbley think knew to kill plan Y. INSTRUCTIONS. Young

Shalash was because later told her got that when back in the car Thomas jury Young asserts the was im scared, said, Morbley crying, was it find him properly instructed that could on?” going going “What’s on? What’s complicity if he with “a guilty acted person” intentionally killed Shalash who con The second statement requiring jury instead to find that i.e., layers hearsay, tained two Girard in complicity specifically he acted with testifying Young told her that what Although Girard Thomas. testified him, Thomas told neither which falls Shalash, to kill Crad- hired Thomas hearsay exception within an to the rule. identify not hired killer dock did Thus, clearly the second statement was Thus, permitted name. the instruction inadmissible. KRE 805. Girard did not if it Young guilty to find even disre to formu state what evidence caused her testimony but believed garded Girard’s opinion expressed in the first late the testimony. pred KRS 502.020 Craddock’s statement, thus, it impossible deter guilt upon acting in with complicity icates opinion rationally mine if the was based instruction con person.” “another required by own upon perceptions her statute, 701(a). language formed to may Generally, KRE a witness thus, not erroneous. Commonwealth testify to the mental of anoth impressions Hightower, Ky. 149 S.W. Commonwealth, v. supra, v. er. Tamme (1912); 33-34; Commonwealth, McGuire Common Ky., 702 Adcock v. cf. (1994). wealth, Ky., 885 S.W.2d exception An oc judge did the err in refusing if Nor opinion curs is based on wit doubt,” 9.56, “reasonable RCr Com percep ness’s own factual observations or define Commonwealth, Callahan, Ky., supra, monwealth tions. Tamme v. (1984), give “collective more detailed at 35. We have held that the burden type opinion if instruction the Commonwealth’s applies facts rule” Nebraska, U.S. proof. an Victor v. expressing opinion the witness is about 1239, 1243, 127 L.Ed.2d 583 emotions another’s mental conditions and Gall “as manifested to that witness.” Com-

171 ” 97, denied, (1980), ‘well, “something S.W.2d 110 cert. 450 good.’ to the effect 989, 1529, U.S. 101 S.Ct. L.Ed.2d preserved by 67 824 Neither of these issues were (1981), avowal, ground, Payne preserved ap- overruled on other thus neither is Commonwealth, Ky., 103(a)(2); pellate 623 S.W.2d 867 KRE review. Common- (1981). Ferrell, 520, Ky., wealth v. 17 S.W.3d 523 (2000). Finally, Young asserts that he was There was also no error in the from Kim Pruitt if prevented asking Sha- failure, judge’s trial sponte, sua to include out,” people lash had “ratted implying a “no adverse inference” instruction in the these unnamed others had a kill motive to penalty phase instructions. That instruc fact, In Shalash. defense counsel ulti- required only tion is requested when mately inquiry did make this of Pruitt who request no was made this case. RCr responded knowledge that she had no 9.54(3); Commonwealth, Skaggs v. Ky., such facts but always Shalash was 672, (1985), denied, 680 cert. watching his back because he was afraid of 1130, 1998, 476 U.S. 106 S.Ct. 90 L.Ed.2d being caught by police. This claim of (1986); Commonwealth, 678 Ice obviously error is meritless. 671, denied, (1984), cert. 192, U.S. 105 S.Ct. 83 L.Ed.2d 125 VII. ALLEGED DENIAL OF

(1984). Furthermore, the failure in PRESUMPTION OF jury struct the to draw no adverse “infer INNOCENCE. ence of guilt” from the failure defendant’s testify, required by 9.54(3), as RCr There no reason to assume where, pointless here, would be jury as that Appellants prejudiced by being were already had found guilty the defendant by security escorted into the courtroom only deliberating was appropriate personnel. Appellants wearing were not penalty. Compare Hibbard v. Common jail handcuffs, clothing or and the record wealth, Ky., (1983), 661 S.W.2d 473 cert. many security person does not reflect how denied, 466 U.S. 104 S.Ct. nel were involved. The could well (1984). L.Ed.2d 161 have security personnel assumed that the protect Appellants were there to from Sha-

YI. ALLEGED DENIAL family protect lash’s and friends as to OF DEFENSE. public from Appellants. Holbrook v. Young 560, 569, asserts he improperly Flynn, right denied the to introduce evidence 89 L.Ed.2d 525 Hodge v. identifying persons other might who Ky., 17 S.W.3d 839- denied, killed Shalash. He claims Kim Pruitt cert. U.S.

would have testified that “Wingate Appel 148 L.Ed.2d 498 killing Anthony brothers” were accused of Young’s complaint prospective lant that a Taylor, “Short Man” juror an associate of the him in observed handcuffs as he was victim; that one of Wingates leaving matched day elevator the second killer; Joyce description Combs’s supported by is not the record. The juror and that the brothers were pos question known stated that he did not see sess a red Cadillac. also Appellant asserts leave the elevator but had been Leek, that Leslie another of hallway Shalash’s as asked to leave the the ele before sociates, arrived; would have testified that when vator and that he had not dis father, Shalash, any po victim’s Mohammed cussed the occurrence with other murder, jurors. was told of the responded Appellants request he tential did not respects, judgments juror In all other that this be excused this reason. imposed by Young’s claim that he conviction and sentences Equally meritless is Fayette respect Circuit Court with to all presumption was denied innocence Appellants the fact that the read the three are affirmed. prosecutor during opening indictment to the The judge previously had statement. C.J., GRAVES, LAMBERT, jury on read the indictment to the the first STUMBO, JOHNSTONE, KELLER and and day Young of trial does articulate JJ., concur. prejudiced by a second

why he was read- Furthermore, objection was no ing. there J., in part concurs WINTERSHEIMER reading, the second thus the issue is not separate opinion. and in part by dissents preserved appellate for review.

WINTERSHEIMER, Justice, ALLEGED PROSECUTORIAL VIII. dissenting concurring part part. and MISCONDUCT. majority opinion I fully concur with the Young mis prosecutorial asserts Thomas affirming the convictions in the following conduct statement made However, respectfully I Morbley. must his by prosecutor during penalty phase part opinion which dissent from that of the argument: the conviction as be- reverses Now, now, Kentucky right law we under aggra- I as cause believe instruction guarantee those defen- cannot that two vating circumstance was correct. right will back dants not be opinion majority Although the learned it.... can’t street. We can’t do We reversal, presents plausible argument a for they again. that won’t do it guarantee it v. convincing. is not Skinner is public protected The entitled be (1993), Ky a ., 864 S.W.2d 290 bur people Young.... from like Gerald case, accomplice may glary notes that an This statement did not cross the aggravated a for confederate’s liable argument a legitimate line between Commonwealth, Ky., v. Ray offense. penalty prosecutorial severe miscon case, (1977), robbery also S.W.2d 482 Young’s prosecutori claims of duct. other an supports proposition accom unpreserved claims al misconduct are but aggravated plice may be liable for unpreserved We of error. reiterate confederate, although having of a offense of error resuscitated claims cannot be circum knowledge aggravating no “prosecuto- labeling cumulatively them Yeag v. also Commonwealth stance. See misconduct.” Davis v. rial Common which, er, (1980), in Ky., 599 S.W.2d 458 wealth, robbery. accomplice an to a volves find Finally, we no “cumulative error” Appellants’ warrant a reversal of would Arizona, 137, 107 Tison convictions. a case involv- 95 L.Ed.2d penalty per- ing felony im- murder death Accordingly, the sentence death not kill intend kill Young is vacated sons who did upon Appellant posed in- major personal who had a Fayette is to the victims but and his case remanded - to show a a new the events so as solely penalty Court volvement Circuit indifference to human life was not jury shall be instructed reckless phase, at which the Amendment. Eighth that can be held to violate the maximum escaped an sons of imprisonment him for life. case involved the imposed upon prisoner who had been convicted of mur- MURPHY, Appellant, Ronnell

dering prison guard. Perhaps necessary legisla- it is for the Kentucky, COMMONWEALTH aggravating ture to include an circum- Appellee, 532.025(2) stance in applicable KRS to one hired, procured who or directed another to Kentucky, Appellant, Commonwealth of commit murder. Murphy, Appellee, Ronnell and Murphy, Appellant, Ronnell v. Kentucky, Appellee,

Commonwealth of and (a/k/a Sprowls Dennis Dennis Randall Lawler), Appellant, v. Kentucky, Appellee,

Commonwealth Kentucky, Appellant, Commonwealth of (a/k/a Sprowls, Dennis Dennis Randall Lawler), Appellee, Weathers, Appellant, Brandon Kentucky, Appellee, Commonwealth of Kentucky, Appellant, Commonwealth Weathers, Appellee. Brandon 1997-SC-0595-MR, Nos. 1997-SC-0607- MR, 1998-SC-0960-MR, 1997-SC- 0606-MR, 1997-SC-0621-MR, 1997- SC-0616-MR and 1997-SC-0622-MR. Supreme Kentucky. Court of April 2001.

Rehearing Aug. Denied

Case Details

Case Name: Young v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Apr 26, 2001

Citation: 50 S.W.3d 148

Docket Number: 1998-SC-0584-MR, 1998-SC-0607-MR and 1998-SC-0963-TG

Court Abbreviation: Ky.