*1 CLAIR, Appellant, Michael D. ST. Kentucky,
COMMONWEALTH Appellee. No. 1999-SC-0029-MR. Kentucky. Supreme Court 19, 2004. Feb. 23, 2004. AS Modified Feb. 26, Rehearing Aug. Denied *13 Branch Man- Boyce, Appellate
Donna L. ager, Department Advocacy, of Public Jul- Advocate, Namkin, Public ie Assistant Frankfort, Appellant. for Counsel General, Stumbo, Attorney Gregory D. Smith, Stetler, A. Brian David Tami Allen General, Judy, Attorneys T. Assistant Division, Frankfort, Appellate Criminal Appellee. Counsel for THE COURT OPINION OF
I. INTRODUCTION jury Ap- A found Bullitt Circuit Court Clair, pellant, guilty D. St. of mur- Michael Brady. At the dering Frances subse- C. quent capital sentencing proceeding, jury aggravating found of an presence fixed punish- circumstance and The trial court ment death. entered jury’s judgment in accordance with verdict, Appellant brings now KY. right appeal, matter of CONST. 532.075(1), 110(2)(b); § in which he KRS (58)1 claims of fifty-eight asserts error. record, we affirm After a review conviction, but Appellant’s Murder reverse Court, ("Illegal argument # 16 Appellant initially leave to In to this withdraw his brief Oklahoma”), error, (59) Requires allegations but Return fifty-nine Extradition raised granted Appellant’s motion. and we Appellant subsequently moved the Court his death truck; sentence and remand the pickup case the men then set fire to for the trial court to conduct a new capital Keeling’s truck in pickup order to destroy sentencing phase because the trial court’s any incriminating evidence and erroneously instructions failed to permit handgun used his Brady execute to consider a sentence of life County, secluded area of Bullitt Kentucky; possibility probation without parole thereafter, shortly when Kentucky (“LWOP”). Trooper State Herbert (“Trooper Bennett Bennett”) stop Brady’s initiated traffic II. FACTUAL BACKGROUND vehicle, and Reese were September 1991, In while he was await- *14 driving, Appellant then fired shots from (2) ing sentencing final for two Oklahoma handgun his Trooper that struck Bennett’s convictions, state Murder Appellant es- (6) cruiser; and during ensuing flight— an caped jail Durant, Oklahoma, from in initially Brady’s in pickup subsequent- and accompanied by inmate, another Dennis ly on away foot—Reese was able to split (“Reese”). Gene Reese The two men fled from Appellant and had no further contact facility from the in a vehicle—a pickup with him prior to his arrest. jail and, truck —stolen from a employee In February when that truck gas, County soon ran out of a Bullitt stole truck, pickup another a handgun, and Jury Grand returned an indictment that some ammunition from nearby the home of charged day or “[o]n about the 6th of Stephens (“Stephens”) Vernon and fled October, 1991, in County, Kentucky, Bullitt Dallas, Oklahoma for the of suburbs Tex- Appellant] capital and commit [Reese did then-wife, as. Bylynn, met the by shooting murder Brady Frances C. in brought men Texas and money, them pistol.” with a Subsequently, the Com- clothing, and other items. When Reese monwealth filed a of Notice Intent to Seek subsequently arrested several months Penalty Death Appellant as to in which it Nevada, in Vegas, later Las he confessed 532.025, stated that “[p]ursuant to KRS to his in ensuing involvement crime the Commonwealth will introduce evidence spree. of aggravating circumstances sufficient to Reese, According to after out in hiding imposition warrant of penalty, the death (1) days, Dallas for a few the men: board- specifically prior that the has a defendant Greyhound ed a bus bound for the Pacific capital record of conviction for offenses[.]” Colorado, Northwest but in disembarked plea agreement Reese entered into a with man, Appellant kidnapped where Timo- agreed testify the Commonwealth thy Keeling (“Keeling”), and took his vehi- against Appellant. pled Appellant again, pickup Appellant truck-—and cle— guilty jury and his case was tried before a began driving and Reese back towards in August September 1998. (2) Texas; driving while through New trial, At Appellant employed an alibi de- Mexico, border, but approaching the Texas that, although fense and contended he had Appellant handgun used the stolen to exe- accompanied Reese to New Orleans for a (3) desert; cute in Keeling the the men Dallas, days flight few after initial their Keeling’s pickup then drove truck to New ways upon their re- parted men had Orleans, Louisiana, for a brief time and Dallas, turn to thereafter he and soon though then drove north Arkansas and he returned Oklahoma where hid out on ending Tennessee before up Hardin family shortly the farm of a friend until County, Kentucky, Appellant where kid- man, napped recaptured before he was December Brady another Frances C. (“Brady”) Appellant accompanying and took his vehicle—another denied culpability of conclusion or Mexico and At
Reese to Colorado New jury Appellant guilty found phase, denied that he had ever been further Kentucky. only instruction Accordingly, primary issue under the Murder Murder whether resolution trial was court: given by the trial Appellant specifically or someone else— NO. 1—MURDER INSTRUCTION accomplice— Reese an unidentified and/or Brady. had murdered guilty You will find defendant if, and Murder under this Instruction theory case Commonwealth’s if, you from the evidence only believe Appellant was that himself shot killed that in this beyond a reasonable doubt testimony, In Brady. addition Reese’s 6, 1991, county on about October proved its Commonwealth case Indictment finding before through Trooper Bennett’s identifica- he, herein, in complicity had alone or tion of as the man who fired another, night intentionally two direction on the killed Frances C. shots murder; another man’s identifica- Brady.2 tion being and Reese as capital *15 then a proceeded case to sen- possession Brady’s of a similar to vehicle jury the found the tencing phase where gas a vehicle at store station/convenience only in aggravating circumstance identified (3) area; testimony in to relating the tele- ie., instructions, the De- trial court’s “the phone calls to Appellant’s made friends prior a has record of conviction fendant and in relatives back Oklahoma from a offense,” murder, capital Ap- a and fixed this payphone gas located at sta- same pellant’s punishment ap- at death. This (4) store; testimony iden- tion/convenience peal followed. in tifying Kentucky items found the—on person victim’s in his truck —as pickup and III. ANALYSIS similar’ to or the same that Appel- items TO A. FAILURE INSTRUCT given Appellant lant’s then-wife had to and TOAS LWOP Texas; (5) met them in Reese when she August in and Appellant was tried (“Kin- jailhouse informant, Kincaid Scott he September for conduct that com caid”), who that Appellant testified had 15, 1998, July 1991. mitted October On (6) crime; admitted his in the involvement provisions of the capital sentencing new demonstrating ballistics evidence that the Assembly’s omnibus crime 1998 General handgun have the same could fired shots effect, HB and a legislation, took sen Keeling Brady that killed both and and possibility proba of tence of life without damaged Trooper Bennett’s cruiser and (“LWOP”) parole tion became sen or suggesting composition bullet evidence option capital cases. KRS tencing from the same killed Keel- bullets box any “If forfei provides: penalty, 446.110 ing Brady; testimony the by any mitigated is punishment ture or Appellant’s fingerprints effect that were law, provision provision of new such from found both on items inside recovered affected, by party of the may, consent Brady vehicle and on the outside door judgment any pronounced applied vehicle. the same engages conspiracy with such other "complicity” as in a No. 2 defined or Instruction aids, offense, meaning person guilty person "that a is offense coun- or commit when, person sels, committed another person plan- attempts to aid or such promoting facilitating the com- intention committing ning or the offense.” solicits, commands, offense, he mission after the Commonwealth, new law takes effect.” In a pare Garland v. pretrial (2003) (where motion submitted defense coun S.W.3d 537-38 the de- sel, Appellant the trial advised court request fendant made no for an LWOP law, change in the stated that ac “[t]he instruction). We find no merit hereby cused to application consents of the Commonwealth’s contention in its brief 532.030,” 1998 amendments to KRS that the instructional error in this case was moved the trial court to include LWOP harmless. Accordingly, we Appel- reverse a sentencing option available to the if death lant’s sentence and remand this case proceeded capital the trial sentencing court for a new capital sentenc- phase. As was case in Furnish v. ing phase. Ky., 95 S.W.3d 50-51 Appellant’s reversal Our death sen- - (2002), -, cert. denied U.S. tence remand for a capital new sen- (2003), S.Ct. L.Ed.2d the trial tencing phase partially renders moot or jury regard court declined to instruct the Appellant’s allegations moot several of ing LWOP because it concluded that the Accordingly, opinion error. will not previously sentencing available capital op objections address boiler-plate tions not “clearly mitigated” by were (“Death i.e., to the death penalty, # 53 penalties. Court, new A majority of this Sentence Disproportionate to Co-Indict- however, subsequently oppo reached the Sentence”), ee’s # (“Kentucky’s Dispro- site conclusion when certifying the law portionality Unconstitutional”), Review Phon, Ky., Commonwealth v. (“Residual #55 Doubt Bars Death Sen- 106, 108 (“[U]pon unqualified (“Constitutional tence”), # 56 Challenges *16 defendant, consent of the of sentence life (“No Penalty”), to Death and # 58 Access parole may lawfully without imposed be Data”), Appellant may to assert capital July crimes committed before upon pursue appeal remand and then upon 15,1998.”). again if he receives death Nor sentence. argues The Commonwealth now that al- will of allegations we address other error though the trial court identified an errone- unique that we would characterize to below, ous for its ruling correctly basis capital sentencing phase the Appellant’s at to declined instruct on LWOP (“Immediate trial, i.e., previous # 9 Sen- because the record does not contain evi- (“Exclusion Clair”), tencing of # St. of Appellant’s unquali- dence of personal and Avowals”), Sentencing of Hearing portions fied to an In consent instruction. LWOP (“Improper Penalty #27 Closing Phase Furnish, rejected this Court the Common- (“Denial Argument”), #32 of Motion to argument, wealth’s identical do so and we (“Commonwealth Recuse”), #49 Hugging today. again In to response the Common- Verdict”), Guilty Family Victim’s After and suggestion per- wealth’s that KRS 446.110 (“Coerced Sentence”). # 52 We ad- Death mits trial courts to exercise discretion remaining each Appellant’s allega- dress of to in capital whether instruct on LWOP error, of tions but address the ones that cases, recognize such interpre- we that exclusively capital sentencing relate to permit inconsistency capi- tation would only they may be rele- to extent that sentencing procedures incompa- tal that is to Al- proceedings upon vant remand. process. tible due Accordingly, with we though identify by we will each argument “Appellant’s hold that motion satisfied the subject number, both and we have matter ‘unqualified requirement consent’ we es- Phon, Appellant’s according reorganized claims he to tablished was entitled to the nature of asserted rather pa- receive an instruction on life without error Furnish, place role.” at Com- its sequential Appellant’s 51. than Commonwealth, Ky., 313; brief, allegations Id. Lovitt and we will address reorganized in our order. case, however, agree In we this PRETRIAL
B. ISSUES that the I.A.D.’s the Commonwealth inapplicable to 120-day provision was clock (# 17) 1. TRIAL SPEEDY utilize Kentucky did not this indictment. Appellant February was indicted custody of Appellant. the I.A.D. to obtain from Oklahoma extradited Instead, Ap Kentucky custody obtained of Kentucky to stand trial under this indict- extraditing pursuant him to an pellant May ment in 1995. trial did agreement executive authorized however, August begin, not until Extradition Act Uniform Criminal argues the Commonwealth Appellant that 440.200(1). (“U.C.E.A.”). Ap See KRS delay Kentucky’s bringing him correctly I.A.D.’s pellant observes (1) statutory provisions trial violated both: 120-day may govern even in cases clock Agreement on Detainers Interstate receiving ultimately ob where state (“I.A.D.”), 440.450, KRS his federal through custody tains the accused rights speedy and state constitutional to a I.A.D. means other than the because argues trial. thus held Supreme Court has United States Court should reverse his conviction limit applies time whenev that the I.A.D.’s remand this case court with requesting disposi state “initiates the er a instructions dismiss the indictment. it has charges underlying tion of detainer against a 440.450(Art. IV(3)) lodged prison- state previously pro KRS Mauro, erf,]” 436 U.S. United States vides: 1834, 56 L.Ed.2d 98 S.Ct. In made respect any proceeding (1978). However, given Article, possible by this trial shall in the any us to evidence has cited twenty commenced within one hundred record show the Commonwealth days prisoner arrival of the Kentucky filed a with Okla *17 ever detainer3 state, receiving in the for cause good but authorities, we hold that the I.A.D.’s homa court, prisoner shown in his open the in 120-day inapplicable clock was to this being present, having counsel the court dictment. jurisdiction may any of the grant matter
necessary or
continuance.
reasonable
the
Sixth Amendment
to
The
added).
(Emphasis
guarantees that
States Constitution
United
Thus,
prosecutions,
initi
all
accused
prosecuting authority
the
criminal
the
“[i]n
“[i]f
enjoy
public
right
speedy
be
the
to a
and
proceedings,
prisoner
ates
the
must
shall
Kentucky
the
days
tried within 120
after his arrival
Eleven of
trial[J” Section
him[,]”
ac
jurisdiction
try
provides
Ro
likewise
that an
seeking
the
Constitution
by
public
have a
trial
Ky.,
speedy
v.
913 S.W.2d cused “shall
berson
310,
(1994),
vicinage.”
limitations
This
impartial
and
time
the
312
if the
violated,
allegations
speedy
trial
analyzes
“the
is compelled
are
trial court
Court
test
right violations under the four-factor
charges
prejudice.”
to dismiss the
with
”
by
Dunaway v.
‘a
is
Common-
request
3. "A
is
filed
a criminal
oner
imminent.’
detainer
wealth,
563,
(2001)
justice
agency
(quot-
with
in which
the institution
566
incarcerated, asking
716,
prisoner
Nash,
is
the institution
ing
473 U.S.
Carchman v.
prisoner
agency or
to either
the
for the
hold
3401,
(1985)).
however, that time— single these “[n]o one of (39) elapsed Appellant was before extra- ultimately factors is it- determinative — Kentucky. from dited Oklahoma Dur- self,” Commonwealth, Ky., Gabow (39) thirty-nine months, ing remaining (2000), and “can deter- (5) only on five trial were balancing mined an ad hoc dates rescheduled —four basis[.]” (4) (quoting Id. Wingo, Barker v. at request 407 U.S. at the defense one 2184). (1) S.Ct. We conclude request at the the Commonwealth: delay bringing to trial did (cid:127)The originally scheduled trial date of rights not violate his to a speedy trial. August 14, was rescheduled for inquiry first factor of the 7,May Appellant’s initial 1996 after trial requires showing presumptively pre- of a attorneys, Ray Clooney and Richard Re- judical delay, and we conclude that ceveur, filed a motion to 'withdraw (6½) approximately years six and one-half prior counsel of record less than a week between indictment case is scheduled trial date because of a to trigger inquiry. sufficient further See Department Advocacy Policy of Public (holding Barker Wingo that a five prevented contracting it from year prosecution in a delay murder Clooney for he his services because had presumptively prejudicial); (thirty- Gabow public filed to run office substi- case). four month delay murder Riggs tute counsel Ronald informed the And, slightly jumping ahead to the third required trial court he “at least six factor, that, clear after he was extra mitigation months” to obtain evidence Kentucky but, significantly, dited to — from Oklahoma. Appellant affirmatively and re before— peatedly right speedy asserted his to a May (cid:127)The 1996 trial date was re- Appel trial in the trial Although court. January scheduled for after “ rights lant’s assertions of his are ‘entitled Riggs (citing filed a motion to withdraw strong evidentiary weight’ deciding total, break- complete, “a and severe rights whether the violat defendant’s were *18 of down communications between coun- ed,” Dunaway 60 Defendant”) and sel the and substitute Wingo, 571 (quoting S.W.3d at Barker v. counsel, Catherine Rao-Kamenish and 2192, 531, at 92 S.Ct. at U.S. Wicker, Mary court Jo advised the that 117), speedy L.Ed.2d at we find no trial a permit their schedules not death would presented violation under the facts be trial or the until December fol- penalty (1) delay of majority cause: the the oc lowing year. Appellant curred was in while incarcerated 14, January (cid:127)The 1997 trial date was prior any and Oklahoma to assertion 12,1997, August without rescheduled for (2) trial; of Appellant right speedy his a to defense, the objection the on Com- delay remaining the lion’s share of the was from to because monwealth’s motion continue defense-requested to attributable continu (3) attorney ances; lead had re- prosecuting the Appellant’s unwarranted cently Attorney fail to he suf- assertions demonstrate that left the Office of the authorities, resisted extradi- actively accept an Assis- but position General to a as It is corpus habeas action. Attorney. by filing tion a tant States United record in this case clear from the 12, (cid:127)The 1997 trial date was August to respect no issue with Appellant raised 21, without April rescheduled rights until he was speedy his trial objection Rao- after after defense freon Kentucky. Additionally, the extradited to to with- Kamenish Wicker moved sentencing capital phase begun Commonwealth’s Appellant draw had because that, before the ex- relationship evidence demonstrates treating attorney-client amorous, agreement signed, tradition the State e.g., composing poems as (2) on tried two Appellant of Oklahoma professed which his romantic intentions February in outstanding charges them murder sending his counsel and towards 1994, in depicted suggests delay artwork that naked women. which may of obtaining custody Appellant 21, (cid:127)The trial date was re- April of solely attributable to lack have been August to 1998 at the de- scheduled of part on the of the Commonwealth effort request investigate allow it to fense’s to Kentucky. Accordingly, Appellant’s incriminating allegedly statement hinges thirty-nine speedy trial claim on by Appellant Ap- to Kincaid while made (39) delay he of that occurred in months pellant was incarcerated Oklahoma. after Kentucky. was returned Appellant’s ultimately began trial Au- on gust argues that the Appellant portion that a We observe substantial responsibility for Commonwealth bears the delays request or with those were majority delay, the post-indictment if the tacit consent of the defense. Even (1) (39) specifically: thirty-nine months every responsi- were to resolve “whose we in Appellant remained incarcerated bility?” dispute post-extradition ob- Oklahoma before the Commonwealth favor, however, in it is delays Appellant’s (2) him; custody tained the postpone- Appellant has failed demon- clear date, original Ap- ment of the trial which prejudice post-extradition from this strate pellant unnecessary; contends was And, delay. pending if not incarcerated postponement January 14, trial Kentucky, have would Commonwealth; request date at the of the his Oklahoma under been incarcerated postponement April possibility of parole, life without sentences date, 1998 trial contends unsup- Appellant’s we no merit in find necessary by the was made Common- allegations that the conditions ported to provide timely wealth’s failure discov- Kentucky imprisonment demon- ery. delay. prejudice associated with the strate unpersuasive find equally We person under indictment is
When
conclusory
that he suffered anxi-
assertion
jurisdiction,
another
incarcerated
“[ n u]pon...
delay
a resolution of his
ety from the
Commonwealth
[the
demand
Commonwealth, Ky.
case. See Preston
duty
a dili
has]
constitutional
make
Al-
App., 898
custody
gent, good-faith effort”
obtain
*19
though
argues
ability
that his
to
Appellant
that
for
person
purposes
trial. Smith
by the de-
impaired
mount a
was
374, 383,
575,
defense
Hooey,
v.
393 U.S.
89 S.Ct.
Appellant’s
we
examined each of
lay,
have
579-80,
607,
(empha
21 L.Ed.2d
614
added).
Florida,
have determined
specific complaints and
Dickey
sis
See also
v.
any
they
identifi-
30,
1564,
fail to demonstrate
90
Kentucky. Accordingly, Appellant’s conclude motion for “[w]e funds contained delay in bringing only conclusory this case to trial “[ejmploy- assertions that justify unsatisfactory does not ‘the psychiatrist severe ment of a forensic is an abso- ” Gabow, remedy of necessity dismissal.’ 34 S.W.3d lute Defendant because this has at 70 (quoting Wingo, already Barker v. 407 U.S. been convicted in the state of 522, 2188). at 92 at S.Ct. Oklahoma of four and that murders” “it would be ineffective assistance counsel (# 37) 2.CLIENT-COUNSEL ACCESS not to this Defendant ... have evaluated Appellant argues that his ability by Psychiatrist in competent Forensic confidentially to communicate with his trial order to determine the mental health de- regular fenses, impeded by including counsel on a basis IQ was mental and the illness pretrial in incarceration facilities first of the Defendant.” When the motion came County Jefferson Jail then the for hearing, Appellant’s before the court Kentucky Penitentiary, State where he trial spoken counsel stated that had he was transferred “some between time Octo with a “in psychologist Oklahoma that did 17, ber apparently Clair,” 1997 and March 1998” the work-up on Mr. but St. counsel and, fact, without a order gave court con no indication the substance of that the trial travention of court’s order direct conversation —either at that time or subse- ing quently. denying funds, be transferred to In request for nearby County Hardin “you’re Detention Center the trial telling court observed that space as soon was Appel you you available. me that one but don’t believe need lant’s why you brief identifies no motion for relief know need one” and indicated respect you this issue that was denied that “if can convince me of need ... fact, the trial court. In I’ll record ruling reconsider.” trial court’s that, trial, reflects three weeks before was correct. of a trial “[0]ur review Appellant’s when trial counsel moved pursuant court’s denial funds KRS trial court Appellant’s to order transfer to 31.110 actually is limited to the reasons County Center, presented Hardin Detention Dillingham to the trial court.” Commonwealth, 377, granted trial court the motion with Ky., no Commonwealth, (1999). objection “right from the Ac 381 had no to a cordingly, judge responded psychiatric fishing public in a ex- expedition “[t]he Commonwealth, requests,” pense,” reasonable fashion to defense Kordenbrock v. (1985). 384, Epperson Ky., Ky., 387 “There is S.W.2d Commonwealth (1990), process no due refusal “[t]here violation of deficiency no ... compromising right provide expert when the de- witnesses of ... counsel.” appellant effective Id. fendant offers little more than undevel- properly oped hold that the trial court requested We ad assertion assis- by Appellant, dressed the concerns raised tance would beneficial.” Simmons v. no we find error.
(1988) (citing Mississippi, Caldwell v. 3.DENIAL OF FOR IN- FUNDS L.Ed.2d 231 U.S. 105 S.Ct. DEPENDENT PSYCHIA- (1985)). McKinney v. Common- See also (#10) TRIST wealth, 499, 505 Ky., 60 S.W.3d properly The trial court denied BY 4.PROSECUTION ATTORNEY request Appellant’s for funds retain an (#11) GENERAL’S OFFICE independent psychiatrist Appel because lant that such find no faded to demonstrate funds We merit *20 reasonably necessary unpreserved allegation were to the defense. Office of that the the office Com prose ing pre-empting Attorney improperly the General the attorney!.]” cuted indictment. Section 93 of Id. monwealth’s the Kentucky provides Constitution the correct that Although Appellant is responsibilities of Constitution duties and in case not demonstrate record this does Officers, Attorney including al the State Attorney by the means which the General General, by be law.” prescribed “shall prosecution of this indict- assumed the Attor Accordingly, our statutes make the ment, equally the is clear that nei- record ney “the law officer of the General chief prosecuting any nor local ther And, 15.020. Commonwealth[.]” KRS authority any objection to the Attor- raised en encourage cooperation among law “[t]o in this Of ney prosecution. General’s role officers!,] the provide forcement ... course, Attorney the the “issue” concerns general supervision justice!,] of criminal authority to in- prosecute this General’s ... ... and effi to maintain uniform have been resolved conclu- dictment would cient of the criminal law and enforcement in trial court if had sively the justice the administration of criminal any Attorney objection voiced because Commonwealth,” throughout Com its could have identified General’s office Wilson, Ky., monwealth v. (and, if authority prosecution on the record (1981), Assembly has General to KRS 15.190 or pursuant was assumed 15.700, enacted KRS which establishes 15.200, included the record the integrated prosecutor system unified KRS within so). Kentucky Attorney “with as they General do Accord- request written prosecutor chief of the Commonwealth.” ingly, observe that future cases while we “may act Attorney Given that the General Attorney assumes where General prosecutor ... so when directed be prosecutor role as lead it would a better statute,” Mills, Ky., v. Graham office practice Attorney for the General’s (1985), As General authority of its prose- to make record sembly statutory has enacted a number of indictment, that a pre- cute an we hold provisions Attorney that authorize the sumption regularity attaches such prosecute General to criminal un actions objection particularly no when cases— See, der certain KRS e.g. circumstances. unwilling are to assume raised —and we (when requested writing 15.190 to do so in from the silent record this wrongdoing by County Attorney); or Commonwealth such, As we hold that the office case. (when requested KRS to do so 15.200 Attorney properly prosecuted General officers); writing by other identified KRS Appellant. case against this county ad (prosecution 15.225 financial (theft ministration); KRS 15.231 of identi C. JURY SELECTION ISSUES cases); ty trafficking identity in stolen (violations by KRS facili 15.240 abortion (# U) QUESTIONNAIRE 1. JURY (enforcement ties); KRS 15.242-15.243 consistently trial court ruled (when laws); author election KRS 15.715 prior precedent, Sanborn Court’s Advisory ized to do so the Prosecutors’ Ky., 754 S.W.2d Council). Attorney By authorizing the scope and was “well within the general investigation to direct scope of his discretion control only in prosecution of criminal actions examination,” v. Common voir dire Jacobs situation[s],” “given, limited Hancock (2001), wealth, 435, 444 Ky., 58 S.W.3d (1972), Schroering, Ky., 481 request that all it denied to when legislature provided has a check “[t]he jurors complete prevent Attorney usurp prospective required from General *21 forty-one a four page, question trial Although courts the have discretion to Questionnaire.” prospective jurors “Juror’s Data admonish on Personal these sub-
jects early in process, the voir dire and we it would ADMONISHMENT TO practice believe be the better AS to (# so, agree do we with the Commonwealth PUBLICITY 1D/ALLEGED requires that RCr 9.70 this (#16) MEDIA INCIDENT admonition only jury after the has been selected and Appellant argues that the trial try “jurors” sworn to the case. The term court violated RCr 9.70 and committed as utilized RCr 9.70 refers to the mem- at reversible error of indi beginning jury. bers of a selected and sworn Com- when, vidual dividing voir dire before 9.36(2) pare RCr to (referring “prospective prospective jurors into groups scheduled jurors” cause); challenges context of for days to return on later voir individual (referring jurors” RCr “prospective 9.38 to dire, it to admonish failed them not to read examination). in context of voir dire In about the case. According Appellant, to fact, the Administrative Procedures of the day dire, on the second of individual voir (Ad.Proc.) II, § Court of Justice Part News, The Pioneer local newspaper, ran the jury this require admonition “[i]f is regarding editorial the trial that ad permitted separate^]” to (emphasis add- security dressed precautions the additional ed). To the extent that Schweinefuss involved. The individual voir exami dire Ky., 395 S.W.2d nation revealed that a pro number of the (1965), suggests that an RCr 9.70 admon- spective jurors had either read the article required stage is ishment at this talking Ap overheard others it. about proceedings, hereby it is overruled. Ac- pellant objection raised no at the times he we cordingly, hold that the trial court was claims the admonition should have been required give not to RCr 9.70 admon- given, but moved the trial court for a jurors ishment to the prospective at the mistrial jury and asked it to strike the conclusion the first of voir day dire —or panel prospective jurors when revealed any jury time before the was sworn— during voir they individual dire that were trial and the court properly thus denied aware of the article. Appellant’s motion for a mistrial and to RCr provides: 9.70 jury panel, premised strike the were give on the court’s failure to jurors, permitted sep- whether to admonishment. officers, kept charge arate or must admonished court that any event, agree In with the we duty permit their anyone speak that, Commonwealth under facts of to, with, any or communicate on them case, Appellant the burden to has trial, subject connected Byrd v. Com jury prejudice, show actual attempts that all to do so should be monwealth, Ky., 825 274-75 reported immediately by them to the (1992), and that has failed to court, they and that should not converse how he from prejudiced demonstrate among on con- any subject themselves the trial either court’s failure admonish trial, form, nected with the nor nor ex- not to the case or read about thereon, press any opinion until jurors apparently fact certain were finally coverage. cause be submitted to them. exposed media The trial court, given prosecution, This admonition must be or re- defense counsel adjourn- ferred the court at each each individual voir conducted extensive part any ment. whether dire in to determine
533
McKinney,
jurors
60
prospective
to which
without merit.”
S.W.3d
press accounts
may
exposed might
have
influence
to
fully adequate response
been
It is a
512.
Part
in the
In
their decisions
case.
simply
to
that:
argument
state
Appellant’s
111(C)(4),
ar
infra,
Appellant’s
address
we
un
jurors
of
is not
qualification
“[d]eath
jurors
as to
guments
prospective
the
and
v. Common
constitutional.”
Caudill
jurors whom
the trial
Appellant asserts
wealth,
120
678
S.W.3d
should
excused because of their
court
have
the
also
argues
re
exposure
pretrial publicity.
to
With
erroneously
scope of
trial court
limited the
Appellant’s speculative allegation
to
gard
(fire
find
voir
examination. We
individual
jurors
prospective
that “other
actual
in this
scope of
dire
case constitu
the
voir
might
exposed
publicity
have
to
been
the
has
tionally
judge
“The trial
adequate.
discovered,”
weren’t
we find no actual
but
area
questioning
discretion
the
of
broad
prejudice.
Commonwealth,
dire[,]”
on voir
Woodall
The trial court did not err when
(citing
Ky., 63 S.W.3d
an
request
question
denied
to
Commonwealth, Ky.,
Ward
deputy
under
undefined number of
sheriffs
(1985)),
denied,
835, 123
cert.
U.S.
a tele
oath about
incident
involved
and,
(2002),
Mitigation peremptory challenges does not to per- is evidence about a suffice character, background, son’s or circum- show abuse of discretion in conducting the may Here, stances be considered as a the examination.” Id. at 116. for a imposing pun- reason less severe parties “[b]oth able to thoroughly were ishment than would im- otherwise be Furnish, voir panel[,]” dire the 96 S.W.3d A posed. mitigating circumstance is the 44, and we find no error in the trial circumstance, opposite of an aggravating rulings scope court’s as to of individual may for imposing be a reason a voir questioning. dire more severe than punishment otherwise imposed. be
would
4. APPELLANTS CHALLENGES
you
any
Would
consider
evidence of-
(# 19)
FOR CAUSE
you
in mitigation
punishment,
fered
argues
that erroneous
if instructed to
so
do
the court?
rulings
challenges
on his
for cause denied
you
any
Would
consider
evidence of- him
peremptory
the full
his
use of
chal
in aggravation
punishment,
fered
if
lenges. Appellant
pro
identifies ten
instructed to do
the court?
so
spective jurors
argues
he
the trial
you
Have
anything
read or heard
court should have excused because of their
today?
any-
about
case before
Has
alleged
pretrial
exposure
publicity
thing you may
read or
have
heard
inability
range
their
to consider the full
you
opinion
caused
to form an
concern-
mitigation evi
punishments,
authorized
ing
you
this case? Are
able and willing
dence, or to
their full
on
focus
attentions
disregard anything you may
have
the case.
examined
We have
the tran
heard,
read or
this case
and decide
sole-
dire,
script
general
individual voir
and
on
ly
during
evidence introduced
whole,
and
the voir dire as a
considering
trial?
we conclude
the trial court
did
a list of top
submits
in overruling Appel
abuse its discretion
upon
attempted
question
ics
which he
challenges
lant’s
cause.
for
jurors
prospective
prevented
but
from
was
ju
of whether a
question
“The
doing so when
court
the trial
sustained
ror
for
a
should be excused
cause is matter
objections from the Commonwealth. We
within
discretion of the trial
the sound
properly
find
“the trial court
curtailed
Commonwealth, Ky.,
Thompson
court.”
v.
questions
proper
only
that were not
(1993).
871,
And,
862 S.W.2d
874
because
Furnish,
panel.”
95
confused
S.W.3d
occupies
superior
trial
position
court
at 44. The trial court
well within its
whether, in light
to evaluate
of “all of the
prohibit Appellant
discretion to
from re
evidence,
juror
prospective
can con
already
peating questions
posed by the
requirements
form his
of the
views to
court, Woodall,
118,
S.W.3d at
63
fair and impartial
law and render a
ver
prospective jurors
inquiring generally how
dict,”
Commonwealth,
884
Ky.,
Mabe v.
117,
about the
Id. at
penalty,”
“felt
death
(1994),
S.W.2d
a trial court’s rul
they
“proper
what
considered a
case” for
ings
challenges
on
cause “will not
Hodge,
death
penalty,
S.W.3d at
clearly
...
appeal
reversed on
unless
erro
839, and
they
whether
believed fewer “hei
Commonwealth, Ky., 953
Foley
neous.”
if
pen
nous crimes” would occur
the death
Woodall,
Stopher
also
employed
were
often.
See
alty
more
787, 797
at 117. “The mere fact that
jail escape, burglary,
(“Giving
oppor mony as
due deference to the
ensuing
tunity of the trial court to
theft in
and the
observe
vehicle
Oklahoma
manhunt,
prospective jurors
theft
kidnapping
demeanor
vehicle
Mexico,
of their answers
understand
substance
and murder
New
Colorado
”),
denied,
questions
dire
....
cert.
Troop-
to voir
involving
incident
shooting
and the
152 L.Ed.2d
535 U.S.
S.Ct.
hold that no reversible
er Bennett. We
(2002); Mabe,
rulings
appellant’s challenges
to
ings
permitted
the Commonwealth
cause....
find no error in the court’s
[W]e
104(a).
introduce the
KRE
evidence.
Cf.
rulings.” Id.
Commonwealth, Ky.,
Parker v.
952 S.W.2d
(1997). Here,
properly
the trial
209
court
5. ALLOCATION OF PEREMPTORY
to introduce
permitted
Commonwealth
(#15)
CHALLENGES
and
prior
of
crimes
Appellant’s
evidence
Appellant’s contention that
of
continuous
part
bad acts that were
Kentucky Rules of Criminal Procedure en
“crime
of
in the form of a
course
conduct
(1)
him to
more peremptory
titled
one
escape
spree”
began
Appellant’s
with
challenge than the
re
Commonwealth
his
jail
and
with
from Oklahoma
ended
simply
Appel
ceived is
incorrect. Because
404(b)
KRE
flight
Trooper
from
Bennett.
only
lant was
defendant at trial
provides:
jurors,
trial court
seated alternate
crimes,
Evi-
wrongs, or acts.
Other
properly permitted
trial court
Appellant
crimes,
wrongs,
of
or acts
dence
other
(9)
and the Commonwealth
exercise nine
prove
the character
not admissible
9.40;
each.
peremptory challenges
RCr
Furnish,
person
in order
show action
45-46;
at
Stopher,
S.W.3d
however,
conformity
may,
It
therewith.
at
not
S.W.3d
798. The trial court did
be admissible:
its
Ap
abuse
discretion when
declined
request
pellant’s
challenges
for “bonus”
(1)
purpose,
If offered for some other
peremptory challenges
and allocated
in ac
motive,
as proof
opportunity,
such
Furnish,
cordance with RCr 9.40.
intent,
knowledge,
preparation, plan,
46; Stopher,
at
at 798.
identity,
mistake or
or absence of
accident; or
EVIDENTIARY,
D.
TRIAL
(2)
inextricably
If so
with
intertwined
PROCEDURE, AND JURY
case
other
essential to the
evidence
MANAGEMENT ISSUES
separation
two could
ad-
without
accomplished
serious
1. OTHER BAD ACTS
offering party.
on the
verse effect
1)
(#
EVIDENCE
correctly
court
ruled that testi-
The trial
Appellant complains that much
mony
criminal conduct
at trial was
the Commonwealth’s evidence
Colorado,
Oklahoma,
pri-
and New Mexico
inadmissible evidence of bad character that
Brady
as his
as well
or to Murder
Appel
more
nothing
demonstrated
than
from
shooting
flight
at
activity. post-murder
propensity
lant’s
towards criminal
was relevant and admis-
primarily
upon
Trooper
focuses
the testi-
Bennett
Appellant
404(b)(1)
(2).
under
KRS
sible
both
&
2. STEPHENS’S FORMER
“[Ijdentification
2)
(#
of the defendant as the
TESTIMONY
perpetrator
charged
of the crime
is an
Although
agree
Appel
we
any
prosecu-
essential element in
criminal
lant’s contention that the trial court erred
tion.”
Sanders v.
when it
permitted
Commonwealth
case,
In this
transcript
Stephens’s
introduce a
testi
concerning Appellant’s
the evidence
crime mony
hearing
1992 preliminary
a March
things:
spree, among
proved
other
how
brought
as to
escape charges
Oklahoma
possession
came into
of the mur-
Reese,
against
we find
weapon,
der
see
v. Common-
Appel
error harmless in this case because
Stanford
wealth,
Ky., 793 S.W.2d
lant
himself testified
trial to the same
(“Appellant’s
gun
theft of the
used to com-
significant
At
preliminary
facts.
mit the
charged
crimes
theft of the
that,
hearing,
Sep
testified
on
Stephens
transport
20, 1991:(1)
automobile to
the victim to the
he
“laying
tember
there
*25
point
couch,
so
watching
murder are
interwoven with
on the
the
Lan
Michael
proof
story
“got
the Commonwealth’s
as to render
don
when he
up
on T.V.”
to turn
despite
[Appellant] just
this evidence admissible
the fact
the stove down and
come
it
in
prove
right
top
that
tended to
collateral un-
on
of me and knocked me flat
(2)
(2)
conduct.”);
floor”;
charged
Appellant
in the
a
criminal
demon-
then took
Ruger
.357
the end of the couch and
a motive for his abduction of
off
Brady
strated
Stephens
gunpoint
held
his mother at
and
illustrating Appellant’s penchant
(3)
and
if he had
trucks;
me that
to he would
“[t]old
late-model small pickup
linked
That
my
blow
head off.
he didn’t want
Brady’s
the items
in
found
abandoned
(3)
me,
would”;
hurt
Appellant
but he
held
to Appellant;
suggested
truck
and
sim-
handgun pointed “[r]ight square my
the
in
execution-style
ilarities
kill-
between the
face”
the hammer on it
and “cocked
sever
ings Keeling
Brady
of
in
Mexico and
New
times”;
al
and
Reese and
Kentucky
in
that
in-
created
reasonable
keys
the
subsequently
pickup
took
to a
that
had committed
ference
both
in
Stephens’s
truck from
mother and left
Sanders,
murders.
801
at
See
S.W.2d
674
pickup
driving
Appel
the
and
Reese
(“The
record
remarkable simi-
discloses
—with
lant on the
side.
passenger
crimes[.]”)
larity
respective
between the
such,
ignore
As
is difficult to
“[i]t
Stephens
The record reflects that
died
appellant
his
...
escape
after
went on a
trial,
Appellant’s
before
case came to
and
spree
way
along
crime
murdered
it
likely
prior
is thus
sworn testi-
found
two victims. We have
no basis to mony
under the “for-
would be admissible
rulings
on
disturb
trial court’s
hearsay
testimony” exception
mer
to the
challenged
admission
evidence.”
rule,
804(b)(1).
KRE
We need not address
Commonwealth, Ky.,
Haight v.
however,
S.W.2d
question,
Appel-
because
(1996).
agree
do we
Nor
prior to the
lant’s crime was committed
contention that the Common-
Appellant’s
Kentucky
July
date of the
effective
by presenting
Evidence,
wealth committed “overkill”
transcript
Rules of
and the
was
this other bad acts evidence
excess de-
at
un-
thus not
trial
admissible
“If
tail.
evidence of other crimes is admis-
it
been admissible under
less
“would have
identity
or a
principles
prior
sible
show intent or
com- evidence
existence
Kentucky
plan,
weigh
adoption
mon scheme or
must
Rules
[the
107(b).
Hodge,
it
KRE
See also
evidence for what
is worth[.]” Evidence]”
such
(1990).
And,
Sanders,
pre-KRE
Zandt’s
had contacted them
to trial to
re-
locate and
that witness
garding his
medical condition
client’s
...
prosecution
bears the burden
[and]
physician
Ms. Van Zandt’s
subse-
predicate,”
of establishing that
v.
Ohio
quently
showing
faxed “a letter
that she’s Roberts,
74-5,
56,
2531,
448
100 S.Ct.
U.S.
able
medically
to travel.” The
2543-44,
597,
(1980).
613
L.Ed.2d
able—
Cf.
record reflects that
the Commonwealth
Commonwealth, Ky.,
Justice v.
987 S.W.2d
physician’s
handed the
letter to Appellant’s
306,
(1998) (“put[ting]
the onus” on the
subsequent pleading,
counsel.
In a
804(b)
party offering
under KRE
evidence
explained
the Commonwealth
that:
unavailable).
to show that the witness was
is unable
[T]he witness
to travel
104(a)
(b)
However,
prelimi
the KRE
&
Kentucky for
During
medical reasons.
“[wjhether
nary
determination of
witness
13,
p.m. August
telephone
the 2:30
‘unavailable,’
is
...
matter
is
committed
call,
conference
Commonwealth to the
judge
sound discretion
the trial
stated that the information precipitating whose decision
will not
reversed unless
request
deposition
for a
had been
Lovett,
clearly
unreasonable.”
day.
received that
The
same
Common- S.W.3d at 83. See also Brooks v. Com
wealth had been informed that the wit- monwealth,
Ky., 114 S.W.3d
821-22
approximately
ness is
preg-
months
½
(2003). And,
judge has the “dis-
the trial
reported
nant. She was
to have been
sufficiency
cretion to
determine
hospitalized
day
surgery
associ-
showing
justify
reading
which would
and,
ated
pregnancy
with her
for the
testimony[.]”
an absent
Bruce
witnesses]
trial,
duration of
she is under a doctor’s
Commonwealth, Ky.,
441 S.W.2d
accuracy
order not to
travel....
Although
Commonwealth
this
can
reported information
be ex-
could have made a much cleaner record in
plored during
deposition itself.
tendering
regard by
the letter from
findings
The trial
court’s
its written
court,
physician
Ms. Van Zandt’s
to the
Appellant’s transport
order for
to the de-
filing with
the Court
affidavit from
position in Oklahoma reflect that the trial
physician
prosecutor
either the
him-
or
court accepted
proof
the Commonwealth’s
self,
Brooks,
see
unavailability:
as to Van
“it fur-
Zandt’s
questioning Ms.
Zandt as to her phy-
Van
necessary
ther
it is
appearing that
due to
deposition,
sician’s orders
the video
during
of an
medical condition
essential wit-
the trial court did not abuse its discretion
deposition
ness to
of state
take the out
in finding Ms.
Zandt unavailable on
Van
Zandt,
witness, Bylynn
said
Van
and it
the basis of the
assur-
Commonwealth’s
adequately pro-
further
appearing that
Ruppee
ances. See
tect the defendant Michael Dale St. Clair’s
(1991); Bruce,
Ky., 821
right of
Sixth Amendment
confrontation
Appellant that the fail covery violations in connection with Ms. produce any ure of the to Commonwealth first, testimony. Van As to the Zandt’s testimony sworn as to Van Zandt’s unavail agree Appellant we with that the trial ability made the testify to at trial introduc court Appellant’s should have sustained improper. tion It deposition of her objection testimony Zandt’s to Ms. Van ques “[t]he black-letter law that ultimate that had told her “about break tion was is whether the witness unavailable ing into house” because the despite good-faith prior undertaken this old man’s efforts
541
materiality in the
with
come does not establish
complied
Commonwealth had not
7.24(1)
Id.,
by disclosing
RCr
the substance of
at 112
sense.
U.S.
constitutional
incriminating
this “oral
statement known
20,
2401-02,
at
at
49 L.Ed.2d
n.
96 S.Ct.
attorney
for the
Commonwealth
find no reasonable
354 n. 20. Because we
by” Appellant
have been made
to Ms.
that Ms. Van Zandt’s state-
probability
For
Van Zandt.
the reasons outlined
clothing
Brady’s
found in
ment as to the
111(D)(2), however,
in Part
Appel-
above
in
changed
have
the verdict
pickup would
subsequent testimony
lant’s
own
his
this case if disclosed to the defense
Stephens’s
at
home makes the er-
crimes
trial,
Brady
at
find no
viola-
introduced
we
ror harmless.
find
other
Appellant’s
We
tion in
failure to dis-
the Commonwealth’s
arguments,
allege
that
the Com-
close it.
exculpatory
failed to disclose
monwealth
no evidence
Because there is
evidence, unpersuasive.
gave
that
the Commonwealth
whatsoever
deposition
Prior to the video
promised
anything
or
Ms.
Zandt
Van
presence Appellant
and outside the
testimony,
for
find no
exchange
her
we
counsel,
his
the Commonwealth asked Ms.
Appellant’s
merit
contention that
identify
clothing
Van Zandt to
found in
Brady
Commonwealth violated its
duties
vehicle,
Brady’s
and Ms.
Zandt told
Van
deal,
by failing
agreement,
to disclose an
prosecution
jeans
the blue
that,
indications,
understanding
from all
jacket
army
were not the clothes she had
Appellant’s
did not exist.
trial counsel
brought to her husband
met him
when she
Zandt
vigorously cross-examined Ms. Van
Texas.
asserts that the Com
testifying
as to her motivations for
and her
alleg
monwealth’s failure
disclose this
charged
that she could
as a
concerns
edly exculpatory evidence to the defense in
assisting Appellant
after
co-conspirator
fashion, i.e.,
timely
prior
during
to or
escape.
deposition
video
Appellant’s
when
opportunity
pre
counsel would have an
allega
final
Appellant’s
As to
testimony
presenta
serve
to that effect for
concerning
Zandt’s
tion of error
Ms. Van
trial,
tion at
violated the Commonwealth’s
testimony,
“[a]ny
observe that
decision
we
duties as established in
v.
Brady Mary
testimony
to allow the
to have
re
land,
83,
373 U.S.
83 S.Ct.
10 played during its deliberations is within
(1963).
L.Ed.2d 215
In Brady, the United
judge.”
discretion of the trial
the sound
Supreme
sup
States
Court
“that
held
Commonwealth, Ky.,
Baze
pression of evidence favorable to an ac
(1997).
judge
The trial
upon request
process
cused
violates due
not abuse that discretion when it
case did
where the evidence is material either to
videotaped
Ms.
Zandt’s
de
replayed
Van
guilt
punishment, irrespective
or to
of the
objection that do
position
Appellant’s
over
good faith or bad faith
prosecution.”
“improperly highlight” her
ing so would
Id.,
1196-97,
at
at
U.S.
83 S.Ct.
videotaped de
testimony. Both times the
fundamental,
It is
L.Ed.2d
howev
trial court admon
position
played,
er,
materiality
of a failure
jury to
the witness the
“give
ished the
favorable evidence “must be evalu
disclose
her
you
give
...
would
same credence
ated in the context of the entire record.”
testify
person.”
here to
We
if she were
97, 112,
Agurs,
United States
U.S.
disagree
contention
... in the in Appellant sought back limited or murder jurors’ ability request chilled the to that “directing subjected order that [Reese] testimony additional be read back to them. comprehensive to a forensic mental health trial correctly “[y]ou court answered evaluation, particular with focus on the transcripts cannot back in review diagnosis Identity of Dissociative Disorder 9.74, explained room.” see RCr “[i]f (DID), by professional specially a iswho you particular want a witness’ testi- [sic] field, in qualified prior testifying to mony you by read reporter back to against the The trial herein[.]” accused request.” Court will consider that Given motion, court Appellant’s denied but stated that the trial court had the discretion as to ruling that reconsider its “[i]f would testimony whether and to what extent trial information is that the defendant obtained jury’s would request, be re-read appropriate bring feels would be to court’s commentary “[blearing additional — in Appellant motion the future.” subse- in mind we don’t want to read back unsuccessfully quently moved the trial going the whole trial that’s been on for prior ruling, court to reconsider the but deprive Appellant three weeks”—did not Appellant no submitted additional relevant process. of due information at that time for the court’s Appellant argues appeal consideration. on ISSUES AS CO-INDICTEE TO court should have ordered (# U, 15, 21, 21p,S3, REESE sought pursuant the examination he to CR 17) Sip, 38, & principles process of due 35.01 as well as Reese testified for the better part two and fundamental fairness. We find no er- (2) days during the Commonwealth’s case- ror. beginning in-chief as to the events with his Durant, escape jail from in 35.01, applicable CR which is continuing through Brady’s Oklahoma and proceedings by criminal virtue of RCr kidnapping and murder. The Common- 13.04,provides: theory premised wealth’s of the case was the mental ... condition of a When testimony, fin- largely upon Reese’s custody or party, person or in the gered Appellant person as the who killed party, legal under the control of result, Brady. As a raises sev- the ac- controversy, the court which allegations eral of error address the may party order the pending tion is rulings trial court’s on matters relevant by to a ... mental examination submit testimony ability Appellant’s Reese’s physician appropriate ... or health care discredit impeach otherwise for examination expert, produce or to testimony. grounds We find no for rever- custody con- legal person any Appellant’s allegations. sal in added) (Emphasis trol. cred- Appellant sought attack Reese’s co-indict- Although Appellant’s Reese was ibility that he suffered from with evidence ee, years plead guilty he three before (DID) Identity Dissociative Disorder —a to trial and thus Appellant’s case came argued prevent- condition that the defense action at the time of “party” not a to the having ability ed Reese from to accu- Appellant provides motion. no rately recall relate events and would for his assertion that Reese was warrant him events. After he lead to confabulate legal control custody “in the or under previously learned that Reese had been namely the party, of’ a Commonwealth. diagnosed with DID a Dr. Joann On- testimony contrary, Reese’s trial To the drovik, who examined Reese home permanent that his prosecution a criminal demonstrated connection with *31 Commonwealth of Ken- any agent It thus of of the the Oklahoma State Prison. was Oklahoma, loan” from or appears tucky, that Reese was “on or of the State testify Appellant’s exist, in Oklahoma order to to or agency known either such trial, custody was not “in the or under but any current or custody the and control legal party control of’ a within the the of, attorney or mental agent former Accordingly, contemplation CR 35.01. by or on be- professional employed health ... an provides “CR 35.01 no basis for of, that half Dennis We observe Reese[.]” independent examination.” Bart Com- Commonwealth, Ky., 906 S.W.2d Eldred v. monwealth, 576, Ky., 951 (1994), defined the Commonwealth’s (1997). respect to mental health obligations with narrowly: much more Com- recognize “[t]he we that this records While that fun process obligation Court has held “due includes records monwealth’s may, on the depending damental fairness actually prosecutor, hands of the its the circumstances, entitle to the defendant agencies other of the investigator, and by an alleged have the victim examined (citing Pennsylvania at 702 state.” Id. expert,” Mack v. independent Common Ritchie, 39, 58-59, 107 480 U.S. S.Ct. wealth, Ky., 860 (1987)). 1001-02, Signif- L.Ed.2d added), critical is (emphasis question “the icantly, when his motion was heard the sought by appel whether the evidence the court, Appellant’s trial trial counsel con- importance lant is of such to his defense ceded that the was not Commonwealth outweighs that it potential for harm.” required Appellant’s investiga- to serve Commonwealth, Ky., Turner v. 767 S.W.2d tor: And, vigi must be “[w]e position appears The Commonwealth’s open lant not to the door to opportuni they any obligation to be that don’t have ty defendant a criminal case to in their to obtain this stuff is not ... privacy invade the or to harass the possession, by subpoe- we can obtain it case, witness.” Id. at 559. In Dr. okay. proceed na. And that’s willWe Ondrovik testified for the defense at trial subpoenas to those rec- get obtain Reese, regarding diagnosis her Ap long we can so as the ords as best pellant present was able to this evidence that it has com- Commonwealth asserts jury notwithstanding trial court’s every record plied or turned over us evaluation, denial of his motion for an control, which is its which is within effectively Appellant only denied it has agents, the control of its or which diagnosis more present recent to the ability of and the to obtain knowledge jury. appropriately The trial court denied control over. Appellant’s request psycho for additional is long And so as the Commonwealth logical testing because failed to obligation of its ... and asserts aware sought demonstrate the evidence that, complying with that’s sufficiently important outweigh po tential for harm. okay. As far as the remainder record, by subpoena obtain them we will error, In a allegation related cooperation. with Court’s argues that the trial court im that it explained After Commonwealth order properly denied his motion for an only report over the one and had “turned required would have Common possession,” come into our that had provide Appellant “copies wealth to court denied motion any and all mental health records concern Reese, custody require ... to accumulate ing and control Commonwealth *32 544 records, certainty
Reese’s mental health but ex- which there is a virtual that any pressly permitted Appellant subpoena conversation and the between witness the records himself. And it is clear from lawyer ongoing would relate to the testi the record this case that the trial court Stutler, mony”) with Reams v. subsequently subpoena issued a duces te- 586, (characterizing S.W.2d cum provide for Dr. Ondrovik to records prohibited trial court’s admonition “that upon diagnosis which she based her and conferring counsel from own with his wit psycho- received additional ness ... when a called” as an recess was logical Appellant’s records as a result. discretion”), “abuse of it did not abuse that brief no claim identifies coherent of error. Appellant’s discretion when it denied mo prohibiting tion for an order the Common
Shortly before Dr. Ondrovik testi wealth from communicating with Reese trial, fied at that her she learned mother during any trial recesses that occurred in just During Appel had suffered a stroke. her, testimony. the course of his lant’s direct examination of he first name, testimony solicited concerning her Although ordinarily it is im address, occupation, employment. and proper for the Commonwealth to show Appellant’s Then trial counsel asked: during its case-in-chief that a co-indictee “Doctor, further, go any just before we I already in has been convicted under the you to let if appear want know Commonwealth, dictment, Tipton v. see upset, testifying nervous is not about (1982); Ky., 640 Parido v. here, Simultaneously, is it?” Dr. Ondrovik Ky., 547 “no, replied my,” and the Commonwealth (1977), Ap error in we find no reversible objected. The trial court sustained the pellant’s unpreserved improperly-pre objection. Appellant argues that the trial regarding claims the Common served ruling prevented court’s him from commu wealth’s introduction of such evidence jury that nicating proceed to the open this case. trial counsel’s ings running were later than usual that ing following: statement included the day get because Dr. Ondrovik needed “to pres- Another fact: Dennis Reese was way” family emergen on her because of a Brady’s a role in Frank played ent cy thereby abridged right pres a lot of different murder. You’ll hear defense, him process ent a “denied due coming of them from Den- versions most law, trial, capital a fair and reliable sen played. role he nis Reese as what tencing.” We find no merit to this asser played fact he there. He But the is was correctly trial court sniffed tion. The this a role in it. And he has confessed be- introduce evidence attempt out as an fore this to the murder of Frank Court irrelevant, that, clearly engen while could Brady. sympathy der for the witness. The trial properly
court thus sustained the Com objection. monwealth’s Reese, you I will remind Dennis very again, the man who stood if had the Even the trial court very judge courtroom front of this attorneys from com prohibit discretion to guilty to the pleaded and confessed and during municating with their witnesses Brady. murder of Frank recesses, mid-testimony compare Perry very question during asked first Leeke, 272, 283-4, 488 U.S. S.Ct. (1989) (“[T]he of Reese ze- defense’s cross-examination 601-2, 102 L.Ed.2d roed-in on the fact that Reese had entered to main judge power must also have the guilty, subsequent quo during negotiated plea recess in a tain the status brief Reese, Keeling, killed he cross-examination demonstrated to after *33 that, Ken- by pleading guilty to the through [Keeling’s] wallet and then “went tucky charges, Reese had avoided the up girl of his little picture tore the penalty really “losing any- death without ob Appellant it out the window.” thr[ew] already facing con- thing,” because he was jected of Reese’s testi portions to these sentences in of life secutive Oklahoma mony grounds on the that the Common of possibility parole without and one-hun- its RCr comply wealth had failed to with (160) sixty years. Appellant, dred 7.24(1) by failing to discovery obligation course, objection raised no to the Com- testimony, disclose the substance of this during questioning monwealth’s similar its alleges Appellant’s which he involved “oral Reese, ap- direct examination of and it is trial court incriminating statements.” The parent holdings Tipton that Appellant objection “they to his sustained inapplicable Parido are here because this penalty enforce the death in Texas” state “exception case illustrates the the rule it stricken from the ment and ordered permits ... when the defendant the intro- Although Appellant alleges record. objection duction of such evidence without the introduction of this evidence necessi strategy.” for the of trial Tamme purpose mistrial, tated a the record does riot dem Commonwealth, Ky., ... necessity “a manifest or an onstrate (1998). “Having employed strategy, urgent necessity,” Skaggs or real v. Com Appellant complain cannot heard to af- monwealth, Ky., 694 strategy ter the failed.” Id. We addition- (1985), mistrial, for a and the trial court ally hold that the Commonwealth’s intro- not abuse its therefore did discretion when duction, through the Bullitt Circuit Court Appellant’s it motion. Jones v. denied Clerk, portions colloquy plea Reese’s Ky.App., 662 S.W.2d permissible was this case to rebut (“[W]e rely good must on the opening defense’s statement characteriza- tion plea of that as a to the declaring “confession sense of the trial court Frank Brady,” mistrial[.]”). murder of which created an testimony Because Reese’s inference that Reese during had stated his concerning Appellant’s destruction plea that had personally he shot and killed Keeling’s picture did not involve child’s Gaines, Brady. Commonwealth v. any Appellant, Cf. “statement” Com (2000) (defense opened no obligation monwealth had under RCr testimony door to about co-defendant’s 7.24(1) it, inform and the Appellant plea during its cross-examination of co- correctly Appellant’s trial court overruled defendant). objection, premised exclusively which was statement, opening 7.24(1).
In its alleged on an of RCr breach jury that Commonwealth informed the Appellant is correct would “hear what Michael St. Clair said to erroneously trial court overruled his hear murdering Keeling, Dennis Reese” about objection testimony that say to Reese’s he the man Mex who killed New Kincaid, Part spoken had see infra him abducting stealing ico after his 111(D)(6), testimony regarding Kincaid’s pickup truck Colorado. Reese testified told [Reese] and that me “[h]e [Kincaid] that he remembered that the murder took him at one point what Michael had told place approximately in New Mexico seven if and I told and I—asked me it was true they miles before reached the Texas him I him he write -.” yes and told should Appellant made a state border because subsequently that Kincaid testified Given “they ment to the effect that enforce the him,” and According to to “what Michael had told penalty death Texas.” sign ever testimony abundantly you agree- Reese’s made it Comm.: Did that, from Kincaid’s perspective, clear you testify? would ment account, as Bra- which identified No, Reese: sir. murderer, “true,” dy’s error was Reese, Ap- During its cross-examination of Garland, 127 harmless in this case. See explored Reese’s ex- pellant’s counsel S.W.3d at 540. pectations plea at the time of his as to allegation final of error in testify he asked to whether would be *34 testimony connection with Reese’s involves against Appellant: waiver, privilege issues of and this Now, you back Defense: when were allegation requires a more extensive factu- your guilty here and entered explanation prior al than of the alle- some you expected plea sort In gations. attempts impeach its to come, day you? didn’t would witness, credibility Reese’s as a the de- Yes, Reese: sir. (1) argued fense: that Reese had utilized to discovery provided right. materials that were All You knew when Defense: gaps” supply him to “fill in and to if you plea entered that that testimony details in his that were consis- ever went Michael St. Clair other evi- tent with Commonwealth’s you here would be to trial dence; suggested that Reese had a testify against him. called to agreed to motive to lie because he had suspected Reese: I that. testify exchange against You talked about it? Defense: plea agreement spared that his life. talking Reese: I don’t remember about Reese, During its direct examination it. sought to rebut these Commonwealth talking You remember Defense: don’t claims: attorneys about it? your to I to make this clear. At Comm.: want may Reese: have. We I any spoken time when have important? Defense: Did it seem you any representa- to —when has tive of the Commonwealth plea about the Reese: I was concerned spoken you, they to have ever signing. I bargain that was you your handed statements you Do re- My question is: Defense: you keep and told to them? any discussion about member No, sir. Reese: you’re going whether or they you let read Comm.: Have ever Mi- testify against to to have your statements? if he went to chael St. Clair No, Reese: sir. now? trial as he is you listen they Have ever let Comm.: Yes, sir. Reese: recordings you that tape to that? You remember Defense: do may have made? Yes, Reese: sir. No, Reese: sir. they if And the answer was Defense: you have to you, called would you any benefit expecting Comm.: Are testify. Right? come suggested it been to or has appeal pend- I have no Reese: If didn’t you you anybody from that ing. for tes- would receive benefit today? tifying here relevant provide To further evidence Appellant in- No, impeachment, topics these Reese: sir. counsel, formed the trial court of intention to is furnished with in- its Murrell, attorney rep- case, call Rebecca who relating formation to the Kentucky resented Reese on charges, that process gov- it is a testify provid- as to “whether she recalls by applicable erned rules and him ing copies discovery” of his statutory provisions. being “whether the likelihood of his re- that if provide Defense: Do those rules testify quired against St. Clair if he prosecution posses- is in plea something entered that in fact statement, sion of a whether that was discussed between them.” At a they taped, written conference, explained bench Murrell you provide must dis- Appellant’s trial counsel had informed her covery? her, questions he intended ask Yes, Murrell: sir. Reese, had she discussed this with provide Defense: Do those rules and that Reese had told her “he does not *35 evidence, other items of re- attorney[-]client privi- wish to waive the on, ports, photographs, are so lege” and myself “does not wish either provided you discovery? to Ms. [co-counsel] Schmidt as his counsel in Yes, case, connection Murrell: sir. testify with this to con- cerning any pursuant matters to client they provided Defense: And once are Appellant argued communication.” that: you, your professional to is it (1) attorney-client privilege not practice copy to those materi- Appellant’s relevant to proposed question provide your als and them to as to whether attorney provid- Reese’s had client? materials; him discovery ed with Yes, Murrell: sir. by testifying himself about discussions con- something you Defense: Is that make a cerning plea agreement whether his would point to do? require him testify, to Reese had waived my professional practice Murrell: It is attorney-client privilege respect with to Yes, do that. sir. to any confidential communications concern- argues that trial court erred ing topic. The trial court ruled that it him when would allow to ask the require would not Murrell to answer questions proposed that he to of Mur- ask questions that Appellant’s trial counsel had rell, e., i she and identified, whether Reese discussed permit Appellant but would possibility testify that he would have to ask “whether or not it was [Murrell’s] against Appellant and whether she had customary practice usual and to furnish discovery provided discovery items of her him with materials. furnished to Commonwealth to her clients.” contention that agree Appellant’s We erroneous, rulings court’s were Appellant called Murrell as a witness but find the errors harmless in this case. and, establishing repre- after that she had 503(b) capacity public sented Reese her as KRE provides that: defender, asked: A privilege client has a to refuse Murrell, prevent any person
Defense: Ms. tell disclose and other by discovery disclosing what is meant communi- from confidential a criminal law context? purpose of facilitat- cation made ing professional legal the rendition of laymen’s discovery Murrell: In terms (i) to the client between the process by would be that services defendant, through representative which a client or a of the client was harmless error in lawyer representa- proposed question and the client’s or a lawyer case, however, .... tive of because the record it clear from the bench conference makes 503(a)(5) KRE communica- “[a] states specific knowledge that Murrell had no if tion is ‘confidential’ not intended had Reese with dis- persons disclosed to third other than those whether she furnished file, in furtherance to whom disclosure is made covery materials and that her case professional legal of the rendition of ser- presumably might have refreshed reasonably vices to the client or those nec- destroyed in memory, her had been essary for the transmission of the commu- fact, Appellant’s flood. In trial counsel nication.” during stated to this bench confer- Murrell discussions, proposed question ence that “I know from our Murrell had furnished Reese ques- as whether if you that even were to answer discovery with the materials turned over tion, you to be your answer would have impli did not to her the Commonwealth destroyed the file was don’t know because privilege. “Attorneys KRE cate the Thus, if in the flood.” even the trial court may testify affecting to matters a client ques- permitted Appellant had to ask the long so as such matters do not relate to tion, Murrell’s answer would not have been confidential communications.” Futrell And, probative. by permitting Shadoan, profes- Murrell’s to introduce evidence of Grissom, (citing Hyden Ky. “habit”) (a.k.a. pro- her practice sional *36 (“An attorney may clients, the trial viding discovery to her client, testify affecting as to matters than accommodated the de- court more except as to confidential communica by it to introduce evidence allowing fense tions.”)). If Murrell had testified that she Kentucky. See that is inadmissible Ap to discovery had furnished materials Commonwealth, Ky., 98 Burchett v. pellant, testimony her would have been S.W.3d 492 partici of an act which [s]he “revelation disclosure,” not of a confidential pated, ar agree with We Freeman, 619 F.2d United States testimony concerning that Reese’s gument (5th Cir.1980), 1119-1120 and the Ken attorneys to wheth discussions with his tucky Study Rules Commission’s Evidence testify against required er he would to be commentary “[t]he to KRE 503 states that any privilege as to those Appellant waived privilege not extend to ... non-com does KRE In re communications under original). (emphasis municative acts.” to him on cross- sponse questions posed attorney from Because “[c]ommunications examination, testified at Reese only they are if consti privileged to client attorneys recalled discussions with his he advice, directly indi legal tute or tend or testify and would have to about whether he rectly to reveal the substance of a client have that the “answer” was that he “would confidence,” Lawson, Ken Robert G. appeal an testify” to come unless he had Handbook, § 5.10 at tucky Evidence Law per pending. provides “[a] KRE 509 (3d Ed.1993) (quoting United States privi rules confer a upon whom these son (7th Cir.1990)), Defazio, 899 F.2d privilege waives the lege against disclosure rep “communicative intent” any vestige of consents voluntarily ... discloses or if he opposing par of the resented bundle of the any significant part to disclosure that have been ty’s discovery materials Having disclosed privileged matter.” attorney for his or her duplicated with his of his communications substance of KRE 503. scope client falls outside the KRE not assert the attorneys, Reese could ruling erroneous on this The trial court’s Kincaid testified that “Mi- privilege testimony as a bar to from the defense. attorney killing Mr. Frank as to those same communica- chael admitted to me to that, it tions. Given that Reese testified in the course of that Brady” and understanding conversation, was his that he would be had admitted to however, testify, the trial required ar- shooting Brady. Appellant personally harmless ruling court’s erroneous be- pre- that the trial court should have gues cause, in Appel- the best case scenario for soliciting from the Commonwealth vented lant, testimony Murrell’s would have been Appel- about any testimony from Kincaid merely cumulative. 7.24(9) to him. lant’s confession RCr that: states 6. DISCOVERYAS TO of the any during If at time the course 21) (# KINCAID brought to the atten- proceedings it is The trial court found that party tion court that a has failed inadvertently Commonwealth had breach comply this rule or an order discovery obligations ed its under RCr thereto, may the court pursuant issued 7.24(1) 7.26(1) by failing produce permit the discov- party direct such day Kin- defense—until the Scott ery inspection previ- or of materials not caid, an inmate at the Oklahoma State disclosed, continuance, grant a or ously Prison testified —a letter that Kincaid had introducing in prohibit party from February written to the Commonwealth disclosed, evidence the material not (2½) approximately two and a half 1996— may may enter such other order as years prior Although to trial. the Com just under the circumstances. previously monwealth had disclosed to the Here, prohibited the trial court the Com- defense that the substance of Kincaid’s introducing in evidence monwealth “from testimony was that Appellant had confess disclosed,” find no the material not and we ed to murdering Brady, the letter con abuse of discretion the trial court’s *37 regarding Appel tained substantial detail remedy choice of for the Commonwealth’s incriminating lant’s statement to Kincaid Hodge, violation. See discovery that had not been previously disclosed to at 849-50. defense, ie., the “he admitted to me that Brady
he himself killed Frank in their [sic] IDENTI- TROOPER BENNETT’S Kentucky by shooting him twice with a (# 23) FICATION TESTIMONY (In front) .357 while he was handcuffed. sug maintains that a trooper and also admitted he shot at a K.S. gestive photographic up” procedure “show trying to kill him. St. Clair also told me Trooper employed in this case rendered going being he was [sic] [sic] denie unre Bennett’s identification in Kentucky going and that he was Consequently, Appellant contends liable. Accordingly, pursu blame it on Reese.” (1) sup that the trial court should have: ant to the discretion that the Rules of testimony concerning Trooper all pressed grant Kentucky Criminal Procedure trial identification; and Bennett’s out-of-court violations, see remedy discovery courts iden prohibited Trooper Bennett from 7.24(9), that Kin- RCr court ruled at trial the man who tifying Appellant as caid could “relate the fact that Mr. St. Bra passenger of the side of stepped out informed him that he murdered Clair Mr. and dy’s pickup truck on October Brady, but that it would not ‘allow this in his direction. The trial court fired shots witness to relate the information other ” on evidentiary hearing Ap in conducted contained this letter’ because the Com Trooper Bennett timely pellant’s it to motion at which provided monwealth had ger handgun FBI raised a and fired two Special Agent Phillip Lewzader the trial Following hearing, testified. Bennett shots directed toward Bennett. denying order Ap- court entered a written ducked the dash board of his behind motion to pellant’s suppress up Rang- cruiser and when he raised demon- accurately outlined the facts as emergency lane and exiting er was hearing: strated at the 65. Ben- proceeding north on Interstate 7, 1991, On October Bennett was dis- positive made a nett related that he a a patched investigate report person of the who fired the identification truck on fire on Flint Hill Road. He male, a handgun and that he was white midnight, shortly arrived around or 10", hair pounds, 5' brown black thereafter, pick- a and observed burned (Bennett says a should typo this was —it up smoldering. truck still The fire de- hair) have been brown or blond him partment preceded appar- had scruffy bead. ently A extinguished the fire. witness evening on October Later informed Bennett that a maroon or dark 1991, Bennett, home, in- while Ranger brown was seen in the area. agent that an FBI dispatch formed approximately Bennett left after him. to the wanted to talk to He went normal patrol. minutes and returned to Police Post in Elizabethtown and State During evening, the course of the Lewzader, Special Phillip met with Sonora, Kentucky at the 76 Truck Union of Inves- Agent with the Federal Bureau Stop, a Ranger pick-up he observed to Ben- tigation. Lewzader exhibited parking matching truck in the lot shots). Ben- photographs (mug nett two description given to him the witness. positive nett made a identification lot, passed parking He turned Defendant, Michael photo depicting the around, Ranger that the observed Clair, per- having Dale been the St. park- in another location in the was now him with a son who fired two shots at ing Ranger parking lot. As the left the however, identify handgun; could not lot white males in Bennett observed two Agent Lewza- photograph. on li- the second the vehicle. He ran a check plate proceeded cense and then to follow of either identify der did not the name Ranger onto Interstate 65 headed portrayed photographs. individual approximately north for distance of initially testified that Trooper Bennett miles. he activated his blue two When training identifying *38 he had received lights Ranger abruptly pulled the to the Kentucky Police at the State suspects emergency right stopped the 40 hours of Academy and an additional into pulled lane. Bennett his cruiser the and had made thou- training per year emergency lane and while his cruiser years in the 23 stops sands of vehicle rolling was still he observed someone Kentucky with the that he had been passenger’s from side. Ben- exiting the Police. State car stopped nett his cruiser about two order then identified The trial court’s lengths Ranger. the rear of the behind controlling precedent, applied the passenger standing At that time the was case, of the to the facts precedent right the truck behind the rear behind Bennett’s identifi- Trooper concluded that wheel. cation was reliable: and cold and The weather was clear circum- Considering totality the of the not wear Bennett related that he does case, reviewed in of this when stances light glasses. spot Bennett trained his in Neil v. of the criteria set forth passen- light directly passenger. on the
551
i.e.,
188, 196-7,
despite
suggestiveness,
409
this
Biggers,
[93
U.S.
S.Ct.
able
(1972)
375,
sentation of At the 9. FINGERPRINT EVIDENCE that, hearing, Trooper Bennett testified argues that the trial Appellant Appellant pho- he identified from the when court should have excluded the Common him I tograph presented to “I was sure. at trial be fingerprint wealth’s evidence mean, Agent and Special sure is sure” opportunity cause he was denied Trooper testified that Bennett Lewzader independent testing conduct when absolutely “was certain” of his identifica- Brady’s released and Keel Commonwealth (24) tion, twenty-four than which came less ing’s processed trucks after it the vehicles However, shooting hours after the incident. In addi- fingerprints. “[t]o for latent tion, relief, any required Trooper Bennett’s identification warrant part to demonstrate bad faith on the of the is corroborated Reese’s testi- Commonwealth, Ky., police.” Crowe 38 mony significant circumstantial (2001) 379, (citing Arizona v. totality forensic evidence. of the “[T]he 51, 57, 333, Youngblood, 488 109 S.Ct. U.S. Appellant’s circumstances indicate (1988)). 337, 102 L.Ed.2d See violated,” process rights due were Commonwealth, Ky., Kirk v. 6 S.W.3d also Merriweather, at 451. 99 S.W.3d (1999) (“Absent showing of bad police, failure to part faith on the n (# 25) 8. PHOTOGRAPHS evidence does preserve potentially useful trial, permit At the trial court process not constitute a denial of the due ted the to introduce four Commonwealth Commonwealth, law.”); Ky. Allen v. body— the victim’s pictures teen (1991). 458, 462 Es App., 817 S.W.2d Cf. body depicted four of which at 64 S.W.3d tep (10) of were crime scene and ten (2002) (“[T]he Due Process Clause autopsy. spe taken at an The trial court only pre- when the failure to implicated cifically photographs “the found that ... intentional and the serve evidence was jury making ... question will assist the the evi- potential exculpatory nature of a determination as to the cause death lost at the time was apparent dence was concluded that “the this case” and thus bar, at destroyed.”) In the case outweighs probative value of this evidence response in its explained Commonwealth any possible prejudice to the defendant.” is normal motion that “it photographs, Appellant argues to release motor vehicles police procedure and re “gruesome which he describes as after the vehicles to their lawful owners excluded from petitive” should have been finger- for latent processed have been “substantially prejudicial more evidence as utility, little custody To retain is of prints. KRE probative.” than 403. “[RJelevant on the vehicle fingerprints since the latent inadmissible be pictures are not rendered by the lift- completely removed are often and the crime they gruesome may cause are retention ing process, and continued Commonwealth, Ky., Clark v. heinous.” to the lawful owners very burdensome E-p- See also us to Appellant points 833 S.W.2d of vehicles seized.” (“[E]ven grue person, support record to differ- “nothing they Kirk, if are admissible at 826. photographs some ent conclusion.” value.”). The trial court the Common- probative have further observe We the infor- provided Appellant discretion when it did not abuse its broad wealth *40 lifting to the to introduce and notes incident permitted the Commonwealth mation Woodall, including the inves- Ky., fingerprints, latent photographs. these See lift- from the officers who tigative reports During culpability phase vehicle in I am alone.” its prints, photographs ed the examination of the latent question, and ref- closing argument, the Commonwealth case impressions, distinguishes which argued and questions erenced these Commonwealth, Ky.App., from Green v. diagnosis Dr. was “based on Ondrovik’s (1984), authority 684 S.W.2d questions which had limit- some true/false In upon Appellant past relies. cases custody.” Appel- utility person ed for a lacking and where evidence of bad faith is argues questioning argu- lant that this and and other information incident to *41 554 Commonwealth, questions implied Ky., of Smith that that v. 121 Wheeler (2003). may testify 173,
Smith have been intimidated to Campbell 181 See v. brother, falsely by Appellant’s Richard St. Commonwealth, 260, Ky., 788 S.W.2d 263- Clair, prison. Ap- another inmate in the Commonwealth, (1990); 4 Templeman v. pellant argues questioning this was 259, (1990); McQueen Ky., 261 785 S.W.2d improper because the Commonwealth Commonwealth, Ky., v. 669 S.W.2d failed to demonstrate a sufficient founda- (1984). 523 tion for its assertion of intimidation and questioning as to the Commonwealth’s 12.CULPABILITY PHASE CLOSING whether had the word ‘Bad “use[d] Smith (#27) ARGUMENT to Richard News’ reference St. Clair” culpability The Commonwealth’s he was interviewed Detec- when KSP phase closing argument deprive did not im- permitted impermissible tive character Appellant process right of due or his to a family. plications Appellant about and his reviewing fair trial. claims of error When questioning The was a Commonwealth’s closing “focus on the argument, we over cross-examination, proper topic for of. culpa all fairness of the trial and not the Commonwealth, Ky., Graves v. 17 S.W.3d A bility prosecutor.... prosecutor of the (2000), and ultimate denial Smith’s tactics, may comment on testimony may that “the content of comment on [was] [his] by any at all concern evidence, motivated about may and comment as to the falsi any preju- Richard St. Clair” eliminated ty position.” Slaughter defense Appellant. dice Commonwealth, Ky., 411- 744 S.W.2d justified only when Reversal correctly that Appellant observes we alleged prosecutorial misconduct is so have held that a witness should not be serious as to render the trial fundamental testimony required to characterize the Bordenkircher, ly another as a lie. See Moss v. unfair. witness Summitt (6th Cir.1979); 949 S.W.2d Stopher, F.2d (1997); Tamme, And, case, In S.W.3d at 805. Common although the Commonwealth’s cross-exam beyond permissible go wealth did not ques Appellant ination of included some and there closing argument, boundaries of tioning impermissible under was prosecutorial misconduct is no evidence Moss, we find no reversible error trial funda Appellant’s that would render questioning form of the Commonwealth’s mentally unfair. because “we conclude that the totality persua circumstances are of the (#18) LAPEL PINS 13.KSP proper inquires sive exclusion he de argues that would not have resulted different [a] fair and right to a process nied due and his Caudill, this case.” verdict[ ] at prosecuting impartial jury because at 662. Kentucky torneys in this case wore State pin One was “smaller lapel pins. Police
11.VICTIM SYMPATHY of a dime” and (#26) than the diameter EVIDENCE (1") inch wide and nine- others were one evidence introduced (9/16") find an inch tall. We sixteenths of Brady’s punctuality, Commonwealth as claims that “[t]he overblown music, caring protective talent for sym to a form of lapel pin KSP amounted parameters nature did not exceed the order of law and conveying bolism ideas testimony concerning “who permissible death,” safety security” and “[t]here prior and what the victim was
555
(“Courtrooms
way
kept open
such a
are
not so that
passion
is no
measure the
symbol might
unpersuasive.
invoke”
public
expose wrong
members of the
can
trial court did not abuse its discretion
rather,
they
open to allow the
doing;
are
objection
Appellant’s
when
overruled
to see for
how their
citizens
themselves
power
and declined to exercise a veto
over
impartially applied.”);
laws are
Johnson v.
attorneys’
fashion choices.
(1968)
644, 646
Simpson, Ky., 433 S.W.2d
(“The principle
justice
cannot survive
(# 3)
TRIAL
PUBLIC
...
im
deeply
behind walls of silence is
that,
trial
Appellant argues
before the
judicial
Anglo-American
bedded
our
brought
court’s attention was
to the mat-
However,
systemf.]”).
it is clear that the
ter,
public
members of the
were excluded
“public”
determination of whether a trial is
Kentucky
from his trial proceedings by
contemplation
within the
of these constitu
officers
acting
State Police
the direction
guarantees
inquiry
tional
is a broader
than
Attorney
of Assistant
David
General
Smith Appellant’s
suggest.
contentions would
representative
and another
from the Attor-
predecessor
This
and its
have held
Court
ney
Appellant argues
General’s Office.
(or
single
that the exclusion of a
member
completely
that the trial “was
to the
closed
members)
public
even a
handful
press and public during
days
the five
proceedings
from trial
will not convert an
that,
jury selection” and
during the first
trial into a
cham
public
otherwise
“star
days
six
of the
case-in-
Commonwealth’s
Commonwealth,
Wendling
ber.”
v.
143
chief, officers
certain
excluded
members of
(1911) (“The
587,
205,
Ky.
211
137 S.W.
public, including
a Department of Pub-
11
provision
section
of the Constitution
Advocacy
lic
allegedly
Intern who was
de-
recognizing
right
of an accused to have
entry
nied
to the courtroom on September
public
a
trial
not
does
mean
all
3,
disagree
1998. We
public
present
who desire to be
shall have
claim that
rights
his federal and state
to a
opportunity
requirement
to do so ... ‘The
public trial were
violated
this case.
if ...
fairly
pro
is
observed
a reasonable
The Sixth Amendment to the
portion
public
of the
is
to at
suffered
United
provides:
States Constitution
“In
”)
Cooley,
1
(quoting
tend.’
T.
Constitu
all criminal prosecutions, the accused shall
(6th
Limitations,
ed.)).
tional
378
See
enjoy
right
speedy
public
a
Commonwealth, Ky.,
also Turner v.
trial.”
Kentucky
Section Eleven of the
(1996) (“Removal
343, 348
of one
similarly guarantees
Constitution
crimi
portion
hardly
of a trial
child from
is
nal
right
speedy
defendant’s
to “a
public
equivalent
closing
the courtroom to the
impartial jury
vicinage.”
an
of the
Commonwealth, Ky.,
public.”);
Wilson
rights
These
are “for the
benefit
(1992)(“The
872,
exclusion
836 S.W.2d
accused;
public may
is
see he
person
of one
from the remainder of cross-
fairly
unjustly
dealt with
con
guilt
in the
examination
last witness
demned,
presence
and that the
of interest
phase
hardly
of a trial can
be character
spectators may keep
keenly
ed
his triers
trial.”); Tinsley
a public
ized as denial of
responsibility
alive to a sense of their
776,
Ky.,
importance
of their
functions.”
(1973) (“Representatives of the news
368,
Gannett
v. DePasquale,
Co.
443 U.S.
apparent
present,
media were
and it
380,
2898,
99 S.Ct.
admitted.”). attention, the court denied mo mistrial, tion for a it but made clear that agree we Because with the “anybody to come in that wants this trial the Commonwealth record reflects long they can come in as as behave them public during the exclusion of the carry any weapons” selves and don’t and occurred, Ap individual voir dire if not at steps security took that “if they to inform pellant’s suggestion, trial counsel’s at least a ... misconception public have the is not consent, with we deem any complaint argument excluded In his from this trial.” proceedings those waived and focus court, Appellant’s to the trial trial counsel upon Appellant’s other claim. On June mis-order, stated “where the order or the 1998, the trial court entered an “Order miscommunication, or the or whatever Media,” Pertaining Security to Court and was came from that lead the sheriffs which, among things, required every other believe that their orders were exclude one who entered the courtroom to be public, the .... I I don’t know know it through and scanned searched a metal de didn’t It is come from the Court. not tector, weapons prohibited from the court the order.” To the security Court’s extent room, that no one permit stated would be suggest persons that the that the affidavits ted the to enter exit courtroom on their responsible trial executing the court’s session, own court was volition while may authority, order their have exceeded and to the restricted access second floor of that fact a does not demonstrate denial the These courthouse. measures were Appellant’s right public to a in this procedures consistent that we have Compare case. Jackson Common cases, approved in other and we observe wealth, 422, (1896) Ky. S.W. necessary such measures are often (finding right the abridgment no to a prevent interruptions in the of the flow public presented trial on the facts and possible jury’s trial and diversions of the distinguishing Michigan a case testimony attention from the of the wit the trial informed that court was the sher nesses. These brief and closures limited security iff responsible not for court arbi proceedings significant the were was trarily the upon Appellant’s right excluding public, encroachment to a members of public any trial. the take court “refused to notice the the complaint, and left officer to County Affidavits from Bullitt respecta exercise as to what his discretion Knusler, Deputy Sheriff Charles Sheriff admit.”). ble In the citizens he should Parsley, Kentucky Paul State Police Ser bar, case at trial court remedied the Rowland, geant Richard D. and L. Edward involving incident situation as soon as the Administrative Hoskins of the Office DPA to his brought atten intern was only pub that the Courts stated times tion, “[t]his conclude we prohibited lic or where media from enter meaning of con public trial within ing was when the courtroom court was Tinsley, guarantee.” stitutional by Appel session. Affidavits submitted at 780. sug lant’s and a DPA trial counsel intern gest entry that the intern was denied 15. APPELLANT’S PRESENCE during period the courtroom of time (# AT HEARINGS W when trial court was not session provides: RCr 8.28 not because she “was on list” and had present at the for” one defendant shall par been “vouched of the arraignment, every stage ties. DPA at critical involving When the incident including the trial empaneling to the defense.” United States v. Dock verdict, and the ter, (8th Cir.1995). return of the 58 F.3d at imposition of the sentence. Caudill, 120 Accordingly, 652. Appellant complains of his absence from Appellant’s absence from hearings these pre-trial “at least four post-trial three was not improper. hearings.” however, Appellant, cites no SEQUESTRATION (# 51) AND authority for his assertion that he had a *44 (# 39) SEPARATION 8.28(1)
right under RCr
or the federal or
Appellant contends that he is enti
state constitution
present
to be
at
post-
the
tled to a new trial because the trial court:
trial proceedings.
addition,
In
each of the
(1) refused to sequester
jury
the
from the
“four” dates identified in Appellant’s brief
beginning of voir dire until the end of the
was a
hearing
scheduled
legal argu-
on
(2)
trial; and
permitted
jury
ments,
sepa
and on
none
those occasions was
penalty
rate after
phase
an evidentiary
instructions were
hearing
Specifi-
conducted.
cally,
closing arguments made,
distributed and
the trial court
arguments
heard
from
(1)
but
22,
jury’s
counsel:
before the
January
1996,
on
deliberations com
as to
menced. We find no error.
motions to strike the death
penalty, to dismiss the indictment because
provides:
RCr 9.66
Kentucky
State Police had released
jurors
Whether the
in any case shall
pickup trucks,
to declare KRS 582.025
sequestered
shall be within the dis-
unconstitutional, and to determine whether
court,
cretion of the
except that in the
being
was
pursuant
held
to the
felony
trial of a
charge, after the case is
(2)
I.A.D;
UCEA or the
28,
on October
verdict,
submitted
they
for their
shall be
1996, as to the Commonwealth’s motion to
sequestered unless
agreed by
otherwise
(3)
trial;
28, 1997,
continue the
on June
parties
approval
of the court.
to Appellant’s trial counsel’s motion to
plain
The
language
provides
of this rule
withdraw because of Appellant’s romantic
“[sequestration
required only
is
after
(4)
her;
attachment
9,
on March
felony
a
case has
jury
been submitted to a
1998, as to nothing,
hearing
because the
for its
Bowling
verdict.”
v. Common
23,
was
1998,
rescheduled to March
at
wealth,
Ky.,
175,
873 S.W.2d
182
time
present.
We
added).
(emphasis
Accordingly, until
recently
held that such hearings are not
case is submitted
jury
to the
for its delib
stages
“critical
of the trial” at which the
erations, “sequestration
jury
defendant
of the
is dis
present:
must be
Commonwealth,
cretionary.”
Smith v.
A defendant
is
required
not
to be
(1987).
437,
Ky., 734 S.W.2d
445
See also
present during
argument
legal
Wilson,
(“The
“there is
than
can
selection,” be[,]”
jurors
Washington,
prior
tential
to their
Arizona v.
434 U.S.
Smith,
497, 513,
824, 834,
the trial
S.Ct.
Kentucky
Handbook,
Evidence Law
on
question
punishment.”
The trial
1.05(11)
(Michie 1998) (“The
§
at 17
pro
*46
court did
in denying Appellant’s
not err
tection
a party against
whom mixed
request
separate
for
prohibit
instruction
admissibility evidence is admitted takes
ing
punishment.
discussion of
the form of a
admonition limiting the
Finally, the trial court’s Murder instruc-
scope
proper
evidence to its
pur
tion,
principal
which combined both
and
pose.”).
See also Barth v.
Caudill,
accomplice liability,
proper.
390,
80
(2001),
S.W.3d
396-7
cert.
F.2d The trial 1. FAILURE TO CHARGE AGGRA- court, however, has discretion as to the VATING IN CIRCUMSTANCE timing of the admonition itself. See Unit 18) (# INDICTMENT Chance, ed States v. 306 F.3d 387-88 (6th Cir.2002) (when 404(b) find admitting Appel Rule We no merit in evidence, trial judge has discretion to lant’s contention that the de Commonwealth give cide whether to limiting precluded seeking pen instruction was from the death under Rule 105 at the alty County same time as evi because the Bullitt Grand identify Appel- that true?”
Jury’s
ag
Appellant “[i]s
indictment did not
asked
“Yes,
Although
Appellant’s
lant
it
gravating
responded
circumstance.
“a de
is.”
attorneys
Appel-
cannot
to face
then
fendant
made
the sen
indicated that
be
trial
position
in a
tencing phase
capital
“placed
trial unless he or
lant’s wishes
[them]
given
everything
is first
that is antithetical to
we
she
sufficient notice of
trained
... and
intention to seek the
have ever been
to do
Commonwealth’s
we should do.”
penalty[,]”
everything
death
Commonwealth v. Mari
we believe
(2000),“[tjhere
cle,
Ky., 15
trial counsel moved the trial
Accordingly,
S.W.3d
authority
[Appellant’s]
court
them to
and
supporting
is no
to allow
withdraw
phase.
aggravating
appoint
penalty
claim that an
circumstance
new counsel
in the
denied the motion.
must be described
indictment.”
trial court
Wheeler, at 185. See
S.W.3d
also Gar
trial court
argues:
that the
land,
546; Furnish,
Ky., 127
at
his
by failing
erred
to determine whether
at 41. The
com
Commonwealth
right
mitigation
waiver
to introduce
532.025(l)(a) by providing
with KRS
plied
in-
knowing, voluntary, and
evidence was
“prior
notice
to tri
written
telligent;
the trial court
fact, approximately two
a half
al”-—in
permitted Appellant’s
should have
(2½)
years prior to trial —of the evidence
is-
Although
counsel to withdraw.
both
aggravation that
intended
introduce.
by our
largely
sues
rendered
moot
are
prior
appeal
time
“At no
to this
did de
reversal of
death sentence
no
complain
fense counsel
of insufficient
sentencing phase,
capital
remand for a new
not claim
Appellant may
tice and
such
will
of these
we
address
substance
111(F)(4),infra,
time.” Id. In Part
we
they may
proceed-
issues
relevant
Appellant’s arguments
address
as to
ings upon retrial.
aggravation”
sufficiency
the “evidence
Although
532.025
KRS
notice.
identified
the Commonwealth’s
*47
532.055(2)(b)
to
permit
KRS
a defendant
evidence,
mitigating
the defen
introduce
2.
TO
DECISION NOT
INTRODUCE
dant,
of his
and
is “master
own defense
(#
MITIGATION EVIDENCE
SI
ship[,]”
Common
pilot of the
Jacobs v.
#50)&
wealth,
(1994),
412, 418
Ky., 870 S.W.2d
Appellant
of
guilty
After the
found
ignore
to
the advice
may
and
elect
thus
Murder,
hearing
an ex
parte
held
presentation
to waive the
his counsel and
court’s
Appel-
the trial
chambers which
at 417
id.
mitigating
evidence. Cf.
briefly
lant’s trial
outlined the mit-
counsel
(“[The
to the
grants
Amendment]
Sixth
igation
prepared,
evidence that had been
defense, for
to make his
right
accused the
Appellant
had
informed
trial court
consequences.”)
it is
suffers the
he who
not to
attorneys
his
introduce
instructed
422 U.S.
(citing
California,
Faretta v.
plead
not to
for
mitigation evidence and
(1975)). If a
95 S.Ct.
We with in the Murder lant’s contention that his decision not to the fact that the victim died.4 We By way Grant, example, 4. Larry of the information filed Comes now G. District At- Bryan torney Bryan County, County, prosecutor the in and for State of Oklahoma with Oklahoma, gives the District Court of respect Appellant’s murder of William Hen- Bryan County, State of Oklahoma to know Jr., ry Kelsey, read: and be informed that the above-named De- 562 532.055(2)(a) the introduction of “a
disagree Appellant’s permits contention with the crime.” Robin the trial court should have sustained his general description of evidence, objection Commonwealth, Ky. to this and hold son properly permitted the its intro trial court 853, (1996). of language Because 532.025(l)(a) provides that duction. KRS no a contained more than informations judge “the shall hear additional evidence “general description” prior of any ... of crimi including prior the record convictions, correctly trial court over pleas pleas nal guilty convictions and Appellant’s objection. ruled of the defendant.” See of nolo contendere 532.025(l)(b) (incorporating also KRS RECORD OF CONVIC- “PRIOR capital sentencing same procedures A OF- TION FOR CAPITAL jury). pre a proceedings before We have 5, 6, 8(C)) (# FENSE” viously explained purpose “[t]he (3) separate allega- Each of these three K.R.S. to allow of all 532.025 is evidence upon aggrava- tions of take aim error pertinent relevant and information so that by the in this ting jury circumstance found jury can make informed decision case, ie., prior “the Defendant has rec- in a concerning appropriate sentence murder, capital ord of conviction for Templeman v. Common particular case.” 532.025(2)(a)(l): See offense.” KRS wealth, (1990). Ky., 785 S.W.2d In for which the all cases of offenses Furthermore, 532.055(2)(a), which KRS authorized, penalty may death governs penalty phases felony of “all consider, judge or he shall include shall cases,”5 in permits Commonwealth to the for it to his instructions prior nature of “[t]he troduce evidence any following consider ... statu- [the offenses for which defendant] ... tory aggravating has circumstances convicted.” This Court held that KRS Commonwealth, (1996); Bryan St. Francis fendant Michael Clair did in (1988) (stating on County, Ky., State of Oklahoma or about the May, capital sentencing phase pursuant 1990 commit the crime 12th "the Degree. say Murder in the First That is be conducted before the KRS 532.025 should unlawfully, wrongfully, did Defendant hearing truth-in-sentencing KRS under (cid:127)knowingly, willfully, feloniously, with- 532.055(2)”). Foley v. Cf. authority premeditated out law and with However, design the death of William to effect one statutory to KRS 532.055 recent amendment Jr., Henry Kelsey, being. a human Did interpretation ques- previous into calls our Henry kill one Kel- then and there William enacted, 533.055(3) KRS originally tion. As sey, by means of a with Jr. firearm loaded provided: apply shall not section "This shot, powder and held in the hands of said sentencing hearings provided for in KRS which he fired shot Defendant types Accordingly, certain of evi- 532.025.” Henry body of the said William into the non-capital dence admissible that were causing mortal That Kelsey, Jr. wounds. Truth-in-Sentencing proceedings conducted *49 Kelsey, languish Henry Jr. did said William be under could not admitted KRS 532.055 contrary and to the form of the statutes die Truth-in-Sentencing proceed- capital under provided, in cases and made and and such Allgeier, ings KRS 532.025. under against dignity peace of the State of 532.055(3) (agreeing that KRS 5.W.2d at 746 Oklahoma. applies 532.055 means that of KRS none Perdue, capital sentencing); 916 S.W.2d at has, recognize 5. We that this Court in its however, Assembly, decisions, 164. The 1998 General Truth-in-Sentencing prior treated 532.055(3). language KRS deleted from proceedings capital as in cases distinct from 606, 72, July § Ky. See 1998 Acts. ch. eff. Truth-in-Sentencing proceedings fel- in other Garland, 538; Accordingly, sup- KRS 532.025 now ony cases. See S.W.3d capital plements cases. Allgeier KRS 532.055 may supported by Appellant’s allegations be the evi- the heart of each of error, dence: begin analysis we our there. (a) Aggravating circumstances: This Court has been asked to address
(1) The offense of murder or kid-
532.025(2)(a)(l) only
issues as to KRS
napping was
by
person
committed
Commonwealth, Ky.,
twice.
In Bevins v.
a prior
record of
for a
conviction
(1986),
appellant
935-6
offense,
capital
or the offense of mur-
argued
it
improper
that was
for the trial
der was committed
a person who
(50)
fifty
year
court to consider a
old mur-
has a substantial history of serious
der conviction as a foundation for the “pri-
assaultive criminal convictions.
capital
or record of a
aggravating
offense”
circumstance.
Id. at 935. We did not
argues
first
that KRS
question
address the
presented because
532.025(2)(a)(l) unconstitutionally surren
appellant
appealing
was
from a judg-
ders the decision whether to impose the
(5)
him
convicting
ment
of five
counts of
penalty
death
jury’s subjective
be
arising
murder
out of a “shooting spree,”
liefs
because
is ambiguous and fails to
id. at
already
and was thus
“death
inform the
what facts it must believe
532.025(2)(a)(6).
eligible” under KRS
Id.
presence
find the
aggravating
(7)
later,
years
Seven
in Thompson v.
circumstance. Appellant submits that the
Commonwealth, Ky.,
in the Finally, Appellant argues murder, others. robbery, escape capital the trial court’s sentencing 1986. In this Court stated that phase jury erroneously instructions appellant’s appeal refor County from the Pike 532.025(2)(a)(l) mulated the KRS aggrava willful murder conviction “has never *50 ting circumstance. Because an issue of pending.” been dismissed. It is still first impression concerning the in proper Thompson v. 736 532.025(2)(a)(l) terpretation (1987). 319, of KRS is at 321 S.W.2d 564 532.025(2)(a)(l) upon Templeman, in language Haight in KRS relies
The
“prior”
interpreted
which we
the word
in
aggravator
being “prior
to an
as
a
refers
532.025(l)(a)’s “including the
KRS
record
It
long
of conviction.”
has
been
record
any prior
language
of
criminal convictions”
Kentucky courts
a “convic
held
of
the admission
evidence of
authorizing
tion, which of course means the final
criminal
subsequently-obtained
convictions
upon
cannot be
as a
judgment”
relied
capital sentencing proceeding.
at a
Tem
is
appeal
being
conviction if an
taken
(“[T]he
at 260
pleman,
S.W.2d
785
appeal
“an
in a
case
because
criminal
allowing
prosecu
judge was correct in
judgment,
suspends the
and this [sic]
prior
tion to
of
criminal
introduce evidence
final until
does not become
a termination
subsequent
occurred
convictions which
of
Foure
appeal.”
v. Common
The
of the crime.
term
commission
620,
wealth,
Ky.
S.W.
prior is
of the defendant at the
the status
(1926).
v. Du
See also Commonwealth
at the time of
sentencing,
time of
(1977) (convic
vall,
Ky., 548 S.W.2d
crime.”);
charged
commission
of
being appealed
that is
not final
tion
is
(“There
Haight,
at 253
was no
for impeachment
cannot be used
introduction,
error
the Commonwealth’s
recently
More
Court
purposes).
this
532.025,
pursuant
appellant’s
to KRS
prior
cannot
has held that a
conviction
criminal convictions which occurred and
utilized
truth-in-sentencing
under the
subsequent
became
to his commission
final
persistent felony
statute or the
offender
(citing Temple-
of the instant offenses.”
appeal
if an
is pending.
statutes
Melson man)). Accordingly, the Commonwealth
Commonwealth, Ky.,
that,
satisfy its
argues
proof
burden
532.025(2)(a)(l) aggravating
as to the KRS
circumstance,
only
it need
demonstrate
appellant’s appeal of the 1974
Because
that,
sentencing
capital
pro
at the time d
it
pending,
improper
conviction was
conducted,
defendant’s
ceeding is
crim
aggravating
as an
cir-
for
to be used
for a capi
inal record contains a conviction
532.025.
to this
cumstance KRS
As
tal offense.
issue, majority of the
reverses.
a
Court
language
specific
question,
Without
omitted).
(footnote
Id. at 877
aggravating
utilized
an
circumstance
on
parties’ positions
interpre-
scope.
interpreting
critical
its
See
opposition
in clear
as to
question are
tive
Commonwealth, Ky., 50
Young 532.025(2)(a)(l)
requires
whether KRS
(contrasting
the Model Pe-
capital
conviction
record of
for
“prior
nal Code’s
murder was committed for
“the
the time of the present
exist at
offense”
circumstance
pecuniary gain” aggravating
capital
emphasizes the
offense.
Georgia’s
committed the
“the offender
and cites
past tense of “was committed”
himself or
of murder for
another
offense
support
of its claim that
Thompson
money
any
receiving
or
purpose
for the
appli-
Commonwealth can demonstrate the
aggrava-
monetary value”
other
thing
532.025(2)(a)(l)
cability
aggra-
the KRS
circumstance). Accordingly, we ob-
ting
that,
only
proving
vating circumstance
532.025(2)(a)(l),which was
serve that KRS
committed the
the time that
penalty
death
adapted
Georgia
defendant
from
Kid-
present
Capital
Murder
Supreme
statute the
States
Court
United
offense
had
all
napping,
the defendant
exhausted
Gregg
v. Georgia,
found constitutional
under a
appeals
preexisting
of his or her
[Model § Penal Code deals permit imposition of the death with the past defendant’s behavior as a penalty statutorily-authorized aggra- have circumstance for aggravation. Perhaps that, vating circumstances like KRS strongest popular capital demand for 532.025(2)(a)(l), address prior defendants’ punishment arises where the defendant crimes, majority violent but the of aggra- history has a of violence. Prior convic- vating specifically circumstances ref- felony tion of a involving violence capital to the erence track offenses the Model person suggests 210.6(3)(b)’s support- § two inferences Penal Code “the defendant ing first, escalation of violence: previously the was A language.6 convicted” murder reflects the character of the de- ag- number of other states have broader any fendant rather than extraordinary gravating circumstances that also corre- aspect situation, second, spond in structure to the Model Penal likely defendant to prove danger- penalty jurisdictions Code.7 Five death 13A-5-49(2) ("The which, state, § 6. Ala.Code defendant an offense if committed in this previously was capital convicted of another would constitute violation of either of such offense[.]”); 190.2(2) ("The sections[.]”); 15A-2000(e)(2) § § Cal.Penal Code N.C. Gen.Stat. ("The previously defendant was convicted previously defendant had been murder convict- degree. in the pur- capital felony pre- first or second ed of another For the or had been pose paragraph, viously adjudicated delinquent juvenile of this an offense in a committed jurisdiction, proceeding committing in another which if committed an offense that capital felony would punishable California would be if committed as first or murder, adult.”); 2929.04(A)(5) degree § second Ohio Rev.Code Ann. shall be deemed mur- (“Prior bar, degree.’’); der in the to the offense at the offender first or second was Del.Code 4209(e)(l)(i) ("The § convicted of an Ann. tit. 11 offense an essential element defendant purposeful previously killing was of which was the convicted of or of another murder another[.]”); attempt manslaughter[.]”); or to kill Or.Rev.Stat. Fla. Stat. Ann. 163.095(l)(c) ("The 921.141(5)(b) ("The § § defendant committed previ- defendant was ously having previous- murder after been capital felony[.]”); convicted of convicted another homicide, 19-2515(9)(a) ("The ly any jurisdiction any § Idaho Code defendant previously elements of which was constitute the crime of convicted of another mur- der.”); murder as defined in ORS 163.115 or man- La.Code.Crim. Proc. Ann. art. 905.4A(3) ("The slaughter degree in the first as defined in ORS previously offender had been 163.118.”); 76-5-202(l)(h) murder[.]”); § Utah Code convicted of an Ann. unrelated Miss. ("the (i) 19—101(5)(b)("The previously actor was Code Ann. convicted of: defendant 99— murder, 76-5-202; (ii) aggravated previously Section capital convicted of another murder, 76-5-203[.]”); offense[.]”); Wyo. Section Stat. § Mont.Code Ann. 46-18- 6-2-102(h)(ii) ("The 303(l)(a)(ii) ("The § Ann. defendant was offense was deliberate previously convicted of another murder in the homicide and was committed: ... an of- degree felony involving first aor the use or previously fender who had been convicted of homicide[.]”); person."). threat of violence to the another deliberate Neb.Rev. 29-2523(l)(a) ("The § Stat. pre- offender was viously murder[.]”); 5-4-604(3) ("The convicted of another § 7. Ark.Code person Ann. 125.27(l)(a)(ix) § ("prior N.Y. previously Penal Law felony, committed another an ele- committing killing, the defendant had ment of which was use or threat of vio- been convicted of murder as person defined in this lence to another or the creation of a article, section or section 125.25 of this physical substantial risk of death or serious jurisdiction had injury person.”); been convicted in another to another Colo.Rev.Stat. *52 statutory any prior circumstances time” aggravating have convictions obtained “at a “the con- sentencing.10 Finally, that utilize has been in addition Ken- defendant (1) (4) structure,8 them only tucky, victed” but one of four states’ statutes include an language employs contains limits the expressly aggravating circumstance voice, timing of the other or convic- “the passive conviction offense was committed aggra- a jurisdictions’ by person prior tions.9 Two other a with conviction” word- vating expressly ing.11 Unfortunately, jurisdictions include circumstances these ("The 18-1.3-1201(5)(b) imprisonment § defendant Ann. sentence of life or a sentence of law.”). previously by a was was convicted in this state of death authorized felony involving speci- class 1 or 2 violence as (d)(l 1) ("The § 18-1.3-406, 9. 42 Pa. Cons.Stat. Ann. previously was fied section or has of another defendant been convicted mur- by convicted another state or the United any jurisdiction der committed com- a States of an offense which would constitute at time of mitted either before or felony involving class 1 or violence as de- issue.”). at offense by
fined
Colorado law in section 18-1.3-
405[.]”);
53a-46a(i)(2)
§
Conn. Gen.Stat.
200.033(2):
§
10. Nev.Rev.Stat.
("the defendant committed the offense after
having been
state
by
person
convicted of two or more
The murder
a
was committed
who,
hearing
any
penalty
offenses or two or
federal offense or of
more
at
time
a
is
before
pursuant
one or more state
and one or more
for the
offenses
conducted
murder
NRS
175.552, or
of:
penalty
offenses for
a
is
has been convicted
federal
each of which
...;
(a)
year
may
Another murder
or
imprisonment
one
be
more than
(b)
felony involving
A
the use or threat of
imposed, which offenses were committed on
person
another
....
violence
different occasions and which involved the
subsection,
per-
purposes
a
For the
of this
injury upon
bodily
infliction of serious
anoth-
been convicted
son shall
deemed to have
21-4625(1)
§
person[.]”); Kan.
er
Stat. Ann.
guilt
at the time the
verdict of
is ren-
("The
previously
a
defendant was
convicted of
guilt by
upon pronouncement
dered or
a
great
felony in which the defendant inflicted
judge
judges sitting
jury.
a
or
without
harm, disfigurement,
bodily
dismemberment
("The
2C:ll-3(4)(a)
§
Stat. Ann.
defen-
N.J.
another.’’);
tit.
or death on
Okla. Stat.
convicted,
time,
any
dant has been
an-
701.12(1) ("The
previously
§
was
defendant
section,
purposes
For
of this
a
other murder.
felony involving
a
use or
convicted of
shall
final when sen-
conviction
be deemed
person.”);
of violence to
Tenn.Code
threat
imposed
may
is
be used
tence
39-13-204(2)
("The
§
defendant was
Ann.
aggravating
regardless
factor
of whether
is
previously convicted
one
or more felo-
appeal.”).
on
nies,
present charge,
whose
other than
statutory elements
use of violence
involve the
("The
10(b)(1)
Ann.
offense of
11. Ga.Code
17—
person.”).
to the
by person
a
murder ... was committed
a
with
capital
prior record of
a
felo-
conviction for
("The
13-703(F)(1)
§
defen-
8.Ariz.Rev.Stat.
("The
565.032(2)(1)
ny[.]”);
§
Mo.Rev.Stat.
been convicted of
offense in
dant has
another
by
person
a
with a
offense was committed
States
under Arizona
the United
for which
prior
record of
for murder
conviction
imprisonment
death
law a sentence of life
or
degree,
committed
first
offense was
Comp.
§
imposable.”);
Stat.
was
520 Ill.
5/9-
person
a
who has
more serious assaul-
one or
1(b)(3) ("the
defendant has been convicted
convictions.”); S.C.Code Ann.
tive criminal
murdering
under
two or more individuals
16-3-20(C)(a)(2) ("The
§
murder was com-
(a)
any
of this
or under
subsection
Section
by person
prior
a
conviction
mitted
with a
any
of the United States or of
state
murder.”);
law
§
S.D.
23A-27A-
Codified Laws
similar[.]”);
substantially
35-50-
Ind.Code
1(1) (“The
by person
a
offense was committed
2(b)(7) ("The
been convicted of
defendant has
prior
a
a
record
for Class A
of conviction
murder.”);
felony,
N.H.Rev.Stat. Ann.
another
or Class B
or the offense of murder
("The
630:5(VII)(b)
been
felony
§
defendant has
person
committed
who has
'
of another
or federal offense
for a
of violence as defined
convicted
state
conviction
crime
22-1-2(9).”).
resulting
person,
in the death of a
for which
in subdivision
*53
agree
interpret
do not
on how to
request
this
dant’s
for severance of counts for
In
language.
Stephens Hopper,
241
trial,
Ga.
capital convictions
at trial
obtained
596,
(1978),
Supreme
and an that the accused is (1977); But 283 S.W. guilty. may This accomplished by Reynolds, (holding see at 856 court, confession in open accused that, 43.07, under CR witness “has been a plea guilty or a verdict which ascer- far convicted so as this Rule is concerned” *55 publishes tains and guilt. the fact of We may impeached felony with the believe in majority the of ... cases and conviction it is shown that he has “[i]f been majority jurisdictions the of (although guilty felony of a guilt and his has been noses) we have not counted the word fixed either a plea guilty of or a verdict “conviction” is not limited to a final jury[.]”). For purposes of Ken judgment. tucky’s Felon in a Handgun Possession of Reynolds, Ky., Commonwealth v. 365 statute, 527.040, however, KRS the courts 853, S.W.2d 854 Kentucky See also person have held that a is a “convicted County Association, Judge/Executive 938 upon entry plea felon” of his or her at n. 1 (“Kentucky S.W.2d 584 recog- law Commonwealth, guilty. See Thomas v. equivocal nizes the nature of these terms (2003) (“When 828, Ky., 95 S.W.3d 829 and has held that meaning implicated Appellant freely, knowingly, and intelli depends upon particular statute in gently a plea guilty entered to first- question.”). degree possession of a controlled sub
Kentucky appellate courts have had oc stance, acknowledged having he the fact of casion to interpret the word “convict” or committed a accepted legal crime and re “conviction” in a number of enactments sponsibility Thus, criminal Ap a act. and have concluded that language con pellant’s a status as ‘convicted felon’ was (1) a judgment *56 received.”). it sig therefore find has We 1759, 429, at 100 S.Ct. Godfrey, 446 U.S. Assembly chose nificant that the General 407, 1765, which the consti 64 L.Ed.2d in record of conviction” phrase “prior prohibits. tution 532.025(2)(a)(l) in phrase that KRS —a person’s of a the vernacular notion vokes correctly court also de The trial “judgment of of “criminal record”—instead for a directed ver motion Appellant’s nied conviction,” only have had not which would respect to the KRS acquittal dict of with 11.04,but meaning, see RCr legal a defined 532.025(2)(a)(l) aggravating circumstance. body precedent specifically of also — judgments the final were Although mean interpreting it to Foure Duvall — first two Oklahoma Appellant’s entered According conviction. judgment a final until November convictions Murder that, purposes of KRS ly, conclude we (6) after six weeks approximately or 532.025(2)(a)(l), of conviction “prior record murder, acknowledged Appellant Brady’s plea includes a capital for a offense” testimony that during culpability phase or a by the trial court accepted guilty (2) two of those had been convicted he To the guilty. jury’s judge’s verdict a trial: following Murder counts of contrary reaches a Thompson extent you right had been Defense: Where it is overruled. holding, that; right before before light In of our construction of ‘91? September 532.025(2)(a)(l) aggravating circum KRS Sulfur, I transferred Appellant: was are stance, allegations of error Appellant’s Murray Oklahoma—that First, find that easily we resolved. change County to a —due circumstance satisfies aggravating trial; weeks waiting venue “provide[s] demands Constitutional my trial started before the few distinguishing meaningful basis for of 1991. August imposed penalty] is in which [the cases August a trial You had Defense: not,” it is in which many cases from 1991? 420, 427, 100 Godfrey Georgia, U.S. Yes, sir. Appellant: 1759, 1764, 64 L.Ed.2d S.Ct.
Defense: When did that trial end? 5. PENALTY PHASE INSTRUCTIONS Appellant: September It ended 12 of (#8) raises number you Defense: And guilty were found complaints regarding capi the trial court’s that trial? jury tal Al-' sentencing phase instructions. Yes, sir, Appellant: I was. though allegations we find most of these merit, lacking agree we Defense: And that of? was What were 9.54(1), pursuant RCr you guilty? found required court was to read the capital Appellant: Two counts of murder and jury sentencing phase instructions to the Solicitation of Murder. jury unless both Appellant and the Com agreed According monwealth otherwise. Okay. 12th, Defense: September So on remand, ly, upon the trial court shall read you were awaiting final sen- its jury. instructions tencing on those cases? Appellant’s As to other alle
Appellant: Yes, awaiting sir. I was fi- gations of error in capital sentencing nal sentencing. instructions, phase we hold the trial (2) Because these two murder convictions properly court jury declined to instruct the Brady demonstrated that was murdered that: any aggrava could not consider person “a with a prior record of convic ting factors not enumerated in the instruc offense,” tion capital for a the trial court tions, see Smith correctly denied motion for a (1980); find directed verdict as to the aggravating cir ings mitigating as to circumstances need *57 Benham, cumstance. Commonwealth v. unanimous, Perdue, not be at S.W.2d 186, 187 Although (3) 168; 181; Bowling, 873 S.W.2d at the Commonwealth introduced evidence of verdict of death would result in lethal in (4) all Appellant’s four capital convic Perdue, (4) jection, 169; at it S.W.2d (2) tions at trial —the latter two of which may by passion, not be influenced preju stemmed from a trial conducted in 1994 factors, Id.; arbitrary any dice or other and therefore did part not constitute juror grant Appellant mercy any could “for Appellant’s “prior record of conviction of a reason whatsoever” and that the death capital offense” at the time of Brady’s penalty imposed any juror could not be if murder —we observe that all of them were “any had doubt” as to whether death was capital admissible at the sentencing phase (issues appropriate punishment 532.025(l)(a). pursuant to KRS properly trial court addressed in its our Given construction of the mitigation KRS and doubt instruc reasonable 532.025(2)(a)(l) circumstance, tions); aggravating impose and it could not agree Appellant’s we contention that if it penalty death had reasonable doubts the trial court’s aggra- articulation of that Appellant actually whether fired the shots vating Smith, changed meaning. Brady, circumstance its that killed 599 S.W.2d at remand, Perdue, Upon 166; the trial in- court should 909. See also S.W.2d struct the Stanford, Ky., accordance with the stat- at 744. Fur utory e., ther, language, i. “the com- murder was we find no error in the trial court’s form, by person mitted with a prior Hodge, record verdict see at 854 (2000), capital conviction of a description offense.” or its of one of the analysis of the (though case not with its sentencing options in accordance jury’s i.e., statutory language, imprison relating deposi- to the Van Zandt with the evidence probation tion) benefit of ment “for life without penalty in its reversal for a new minimum of parole until he has served a However, I trial. dissent from phase sentence,” years of his instead conclusion that is eli- majority’s proposed description, which Appellant’s in this case. gible penalty for the death “probation.” omitted word ZANDT I. DEPOSITION. VAN CONCLUSION IV. trial, Zandt, Bylynn At the time of Van reasons, For the above we affirm wife, Durant, former lived Appellant’s
judgment of the Bullitt Circuit Court than two weeks before Oklahoma. Less con- the extent that reflects trial, the tri- petitioned the Commonwealth Murder, Appel- viction for but we reverse her al court for a certificate obtain lant’s sentence of death and remand the at trial. KRS attendance as witness court to conduct a new case for the trial trial, prose- days Five before 421.250. capital sentencing phase. court and defense coun- cutor informed the attorney by telephone that Zandt’s sel Van LAMBERT, C.J., concurs in Parts complica- him that due to had informed (D)(l)-(3) (E), (B), (C), (5)-(18), 111(A), she could pregnancy, tions related to her (F), only in result and IV and concurs Kentucky. prosecutor The not travel 111(D)(4), joins he Justice Part as which take her testimo- permission moved for separate opinion. COOPER’S in Oklahoma. ny deposition COOPER, J., 111(A), concurs Parts prosecutor objected 'grounds on (D)(l)-(3) (5)-(18),(E), and, (B), (C), documentation that Van provided had no only as concurs in result separate opinion, to travel for medical Zandt was unable 111(D)(4) from part and dissents to Part argued The before reasons. issue III(F) Part and Part IV. hearing August oral on court at an J., GRAVES, concurs. hearing transcript states, alia, inter as follows: J., JOHNSTONE, concurs in Parts with the record Defense: are faced [W] (D)(l)-(3) (E) (5)-(18), 111(A),(B), (C), *58 in- has here where Commonwealth 111(D)(4) (F) Parts and and dissents from that Ms. Van troduced no evidence IV, joins he Justice and Part as to which beyond their in fact unavailable Zandt is dissenting opinion. KELLER’S they’re okay, now hearsay say-so and— 111(B), KELLER, J., concurs in Parts ... handing me (E) (D)(l)-(3) (5)-(18), (C), and and and interrupt, your I don’t mean to Pros.: 111(A) only to Part and concurs in result as IAs happened. Honor. Here is what 111(D)(4),III(F), and from Parts dissents telephone we liter- told the Court on the by separate opinion Part IV minutes —well ally learned it within STUMBO, J., joins. calling the Court an hour of me within WINTERSHEIMER, J., concurs in No didn’t we [defense counsel]. only. result than our word but anything have other Justice, have COOPER, Concurring in I would Part officers of the court Dissenting in Part. that would have been sufficient. hoped who was the doctor We have asked affir- majority opinion’s in the I concur con- Zandt to—we treating Ms. Van guilt of this jury’s mance of the verdict attorney copies tacted her us of handed the statement to both who notified this situation. The doctor has judge defense counsel and the trial when faxed showing this morning us a letter Appellant’s argument he at interrupted trav- medically she’s able to 17,1998, August hearing. Appellant never able— certainly given And I el. would have issue again unavailability mentioned you this had I had it. of his ob- (possibly because own desire to deposition mitigating
tain Zandt’s for Van evidence). morning, This I a mo- her playing once received Prior to the counsel], morning trial, tion [defense to testimony at moved we have been contact Ms. Van deposition, only strike but she her because attorney Zandt’s hope sup- and we on cross-examination had refused to identi- with an plement affidavit some fy co-conspirator who her another aided point during the trial —his affidavit. Appellant’s prosecution. efforts hinder substantially say going Which majority opinion correctly The states what doctor’s letter or statement in a that a the Commonwealth witness wishes, has said. And if the Court cannot criminal case be deemed unavail wishes, if we [defense counsel] of KRE purposes able for 804 unless have that will letter to affida- reduced proponent good-faith has shown a effort vit form and have that forwarded presence obtain the at trial. Lo witness’s the doctor. Commonwealth, Ky., vett v. added.) (Emphasis A debate en- lengthy Page, 82-84 Barber v. U.S. Cf. as to sued whether the Commonwealth 719, 724-25, 1318, 1321-22, 88 S.Ct. furnish Appellant summary should with a (1968) (witness L.Ed.2d 255 not unavail expected testimony of Van Zandt’s able for of Confrontation purposes Clause whether, reasons, for security was feasi- good made a unless state faith effort have deposition ble to view the attendance). procure her The burden by two-way video transmission instead of proof in this circumstance is on the Com transporting him to Oklahoma to attend Roberts, monwealth. Ohio 448 U.S. deposition in person. judge The 74-75, 100 2531, 2543, 65 S.Ct. L.Ed.2d ultimately testimony allowed Van Zandt’s (1980); Justice by deposition. to be taken he de- While (1998) (burden 306, 313 on rests summary nied the motion for her Here, the offering party). Commonwealth expected testimony, required Ap- he faith made a effort to Van good obtain pellant transported per- to Oklahoma to by utilizing proce Zandt’s presence sonally attend deposition. deposi- question dures in KRS 421.250. The real Oklahoma, Durant, tion taken in on is not whether Commonwealth made 23, 1998, in August presence Appel- *59 good faith to obtain Van Zandt’s effort lant and counsel for At parties. both the presence proof whether the but was suffi deposition conclusion the for the Com- a was support finding cient to that she monwealth, Appellant deposed separately unavailable. Zandt for purpose eliciting Van the “ mitigating presented during evidence to be ‘Unavailability’ purposes for of KRE penalty phase the of the trial. trial preliminary 804 is a issue for the 104(a).” KRE G. judge under Robert Although the from faxed statement Van Lawson, Kentucky Evidence Law treating physician prosecu- Zandt’s to the ed.2003). (4th 845[7], record, § tor absent from is obvious Handbook at 644 the transcript prosecutor considering preliminary question from the In a con- that the 574 Kentucky admissibility pass evi a return to
eerning hearsay the obtain to before dence, (The a e.g., whether witness is unavail primary trial. Id. at 83. issue able, judge by the trial “is bound the that case the was whether Commonwealth except respect rules those of evidence good had made a faith effort to obtain the 104(a); to KRE v. privileges.” Turner trial.) I witness’s presence would con- Commonwealth, Ky., 5 that hearsay clude the evidence offered (1999). Thus, there was no need for Van prosecutor in this case was sufficient to opinion Zandt’s doctor to render his support finding the trial court’s that Van fact, court or even affidavit. In the Zandt was unavailable “because ... ex- simply have judge accepted could isting physical infirmity.” ... KRE hearsay prosecutor’s statement that Van 804(a)(4). compli Zandt was unavailable because of pregnancy. with her In cations United II. AGGRAVATING McGuire, (9th
States v. F.3d 1192 CIRCUMSTANCE. Cir.2002), that it was held the district majority I also agree opinion with the court in finding did not abuse its discretion Commonwealth, Ky., that Thompson v. that was a witness who seven months (1993),superseded on other S.W.2d 871 pregnant was unavailable on her based 9.38, grounds wrongly was decided by RCr written but unsworn statement doctor’s However, the and should be overruled. pregnancy that her her advanced rendered Due of -the Fifth and undergo unable to stresses of testimo Process Clauses the. ny. also Id. at 1205. See State v. Stew preclude us from Fourteenth Amendments ard, (1976), 547 P.2d 219 Kan. our decision to over- retroactively applying which that a trial court not abuse held did In Thompson rule case. finding its that a was discretion witness Supreme States Court United an prosecutor and unavailable where types prohibited post identified four ex testified wit investigator both facto laws: had physician them treating ness’s advised action, 1st. that makes Every law stages the witness was the late law, of the passing done before not travel Loui pregnancy and could from done, criminal; innocent when trial. siana Kansas for Id. at 780-83. Every 2nd. punishes such action. Similarly, in Brooks crime, or makes it aggravates law that (2003), we held was, when committed. greater than it not abuse its discretion trial court did changes pun- Every 3rd. law that prosecutor’s oral and relying on ishment, greater punish- and inflicts representations prison offi- written ment, annexed to the than the law cials witness was incarcerated where the crime, Every 4th. law when committed. too ill him that the witness was informed evidence, rules of legal that alters the trial, the trial transported less, testimony or different receives of that informa- court’s own confirmation at the of the required than law time pris- tion conversation with by telephone offence, in order to commission Lovett, In on Id. at 821-22. officials. convict offender. judge’s a trial supra, upheld we decision (3 Dall.) 386, 390, Bull, Calder 3 U.S. prosecu- of a critical permit deposition *60 added). (1798) (emphasis 648 These L.Ed. the prosecutor’s tion based on witness categories recognized today. four are still in an mere that the witness was proffer 451, 456, 121 Tennessee, U.S. Rogers 532 Challenge” drug-abuse out-of-state “Teen 1697, 697 1693, 149 L.Ed.2d not S.Ct. program in Dakota and could South
575 1964, In Supreme involving United States cases retroactive constructions of judicial Court held that a decision that has aggravating factors for imposition of the the same effect as legislation retroactive penalty. death Id. at 702 n. 2. warning”
violates the “fair
requirement of
Thus, I
aggravating
conclude that the
the Due Process Clause.
532.025(2)(a)(l)
factor set forth in KRS
aWhen
state court
a
overrules
consis-
applied
cannot be
because
tent
of procedural
line
decisions with the Thompson was the law of this Common-
retroactive effect
denying litigant
a
a wealth at the time his offense
commit-
hearing
case,
in
pending
it thereby
Accordingly,
ted.
I
in
affir-
concur
deprives him of
process
due
of law “in
Appellant’s
mance of
conviction but would
its primary
opportunity
sense of an
to be
reverse the sentence and remand for a
(his)
heard and to defend
substantive
sentencing phase
new
trial at which life
right.”
similarly
When a
unforeseeable
imprisonment would be
maximum pos-
state-court construction of a criminal
penalty.
sible
applied retroactively
statute is
subject
person
liability
criminal
for past
LAMBERT, C.J., joins
only
as to Part I
conduct, the effect
deprive
is to
him of
opinion, concurring
in part and
process
due
of law the sense of fair
dissenting in part.
warning that
contemplated
conduct
KELLER,
constitutes a crime.
Justice, Concurring in Part
Dissenting
Part.
Columbia,
City
347,
Bouie v.
378 U.S.
354-55,
1697, 1703, 12
84 S.Ct.
L.Ed.2d 894
I vote to
Appellant’s
reverse
Murder
(1964) (citation omitted). While
in
Bouie
conviction and to remand the indictment to
volved
retroactive application
judi
of a
the trial court for a new trial at which
interpretation
cial
of a
defining
statute
Appellant would face a maximum term of
conduct,
substantive criminal
holding
its
imprisonment.
life
Specifically, I write
has
consistently
been
applied
judicial
111(D)(4)
separately as to Parts
interpretations
punishment
increase
111(F)(4)
Opinion
of the
of the
and I
Court
beyond what
the defendant could have
would hold that the trial court committed
foreseen at the time of
E.g.,
the offense.
reversible error
permitting the
Nebraska,
(8th
831,
Davis v.
958 F.2d
833
Commonwealth to introduce Ms. Van
Cir.1992);
Fauver,
Helton v.
930 F.2d
videotaped deposition
Zandt’s
without a
(3d
1040,
Cir.1991);
1044-45
Dale v. Hae
constitutionally-adequate showing that Ms.
berlin,
(6th
930,
Cir.1989);
878 F.2d
934
Van Zandt
testify
was unavailable to
Corr.,
Devine v. N.M. Dep’t
866 F.2d
person,
failing
to grant a directed
(10th
339,
Cir.1989);
344-45
People v.
Appellant’s
verdict in
favor as to the KRS
59,
King,
233,
5
Cal.Rptr.2d
Cal.4th
532.025(2)(a)(l) aggravating circumstance
27,
(1993);
P.2d
v. LeCompte,
State
during
capital
Al-
sentencing phase.
(Del.1988)
curiam);
A.2d 1102
(per
Stevens
I
though
disagree with the basis identified
Warden,
114 Nev.
969 P.2d
Opinion
Court
its reversal
(1998);
Davis,
Commonwealth v.
sentence,
Appellant’s
death
I
concur
A.2d
(Pa.Super.Ct.2000).
In
the decision to reverse Appellant’s sen-
Newman,
United States v.
tute the trial roneous. judge’s personal investigation testimony, own in the Ms. Zandt’s which the Van introduced in order to phone form of a call to correctional facil- Commonwealth ity property connect to found personnel who verified the witness’s Kentucky upon to doubt attempt suicide order shed and informed the trial defense, his alibi the admission of this judge transport that the witness for showing without a sufficient evidence contrary trial would be to medical ad- unavailability entitles to a new record, vice.8 that I Given state of trial.11 agreed majority’s with the conclusion properly court allowed the view, In my the trial court further erred Commonwealth to introduce the unavail- Appellant’s when it denied motion for
able
In
testimony.9
witness’s former
directed
verdict
as
the KRS
bar, however,
case at
contains
record
532.025(2)(a)(l) aggravating circumstance.
nothing more than the Commonwealth’s
that,
Accordingly,
Appel-
I would hold
if
representation
oral
that Ms. Van Zandt
guilty
lant
found
upon
were to be
remand
Kentucky
could not
travel
for trial.
(or upon
for a new trial
remand for a new
note,”
allegedly
The “doctor’s
which was
sentencing
by
proceeding, as ordered
possession,
the Commonwealth’s
was majority opinion), he should receive a sen-
part
not made a
of the record. Nor did
imprisonment
twenty
tence
between
any questions
Commonwealth ask
(50)
fifty
years
Thomp-
or life. In
during
Ms. Van Zandt
taking
of the
Commonwealth,12
cor-
son
Court
videotaped deposition
provide
that would
532.025(2)(a)(l)’s
rectly interpreted KRS
evidence for its
regarding
claims
her ina-
“prior
capital
record of conviction for a
of-
bility to travel.
inspection
Because “[a]n
judgment
fense” to mean &
of convic-
final
of the record reveals that
the Common-
capital
By overruling
tion for a
offense.
provided virtually
wealth
no information Thompson
adopting
contrary
to the trial court—let alone ‘substantial
interpretation
language,
novel
of the same
evidence that
support
would
the trial
today’s opinion
only
is inconsistent
finding’10
court’s
trial court’s una- with Appellant’s rights
process13
of due
—the
vailability finding
was unsupported
but
its
common
also
back on
sense
turns
substantial evidence and
clearly
statutory
thus
er-
and its own rules of
construction.
prior
7. Id.
to advise the
to the tak-
failure
defense
ing
videotaped deposition
Van
Ms.
8. Id.
prosecut-
Zandt had informed two
ing attorneys
clothing recov-
that the items of
Brooks,
J.,
(Keller,
9.
ability jurors’ ability assess consider range penalties prevent- full when inquir- attorneys
ed from ing jurors min- whether could consider the penalty twenty years. my
imum In *64 view, repetition the trial court should avoid
of this upon error remand.
JOHNSTONE, J., joins in part as to testimony. Van Zandt STUMBO, J., joins.
MAGELLAN BEHAVIORAL
HEALTH, Appellant, Kelly HELMS; Kerr, James L. Adminis- Judge;
trative Law and The workers’ Compensation Board, Appellees.
No. 2003-CA-001312-WC. Appeals Court of of Kentucky. March 2004. As Modified March Finaldi,
Anthony Fogle, K. Ferreri & Louisville, KY, appellant. Wilhoit, Edelen,
Scott C. Thomas M. Ward, Louisville, KY, for appel- Clark & lee. COMBS, JOHNSON,
Before MINTON, Judges.
OPINION
MINTON, Judge. Health seeks re-
Magellan Behavioral
view of
decision
the Workers’ Com-
part,
Board which affirmed in
pensation
denied,
(2003); Stopherv.
122 S.Ct.
t.
535 U.S.
cer
dissenting),1921,
(2001) (Keller, J.,
808-812
Notes
notes
final
of conviction in
established,
all
that remained was the
Constitution,
Section 254 of the Kentucky
sentence.”);
imposition of
Grace v. Com
(“[I]t
id. at 584
is clear that
the word monwealth,
754,
Ky.App., 915 S.W.2d
756
provision
‘convicts’in this
of the Constitu
(1996) (“[Ojnce
appellant’s plea
tion means one who is convicted and sen
court,
guilty
accepted by
and he
facility
tenced to a state
felony.
for a
A
guilty,
was found
the court to be
he
judgment
sentence and
have
recog
been
purposes
became
‘convicted felon’ for
in Kentucky
being essentially
nized
527.040.”).
KRS
(2)
same.”);
532.055(2)(a)
KRS
of Ken
This Court has observed its
tucky’s Truth-in-Sentencing
statute and
interpretations
different
of “conviction” in
532.080(2)
(3) Kentucky’s
KRS
& of
Persis
different statutes are a function of “an
(PFO) statute,
tent Felony Offender
Mel
attempt by legisla
courts
determine
son v.
Ky., 772 S.W.2d
(1989) (“[A]
631,
Reynolds,
tive intent in each
633
case.”
365
prior
may
conviction
Turning
not
inquiry,
be utilized under
...
to that
KRS 532.055
or
(1)
446.080(4):
again
guidance
under KRS 532.080 ...
we
find
unless:
KRS
appealing
time for
phrases
convictions
ex
“[a]ll
has
words and
shall be construed
570
(1980)
Georgia,
Furman v.
(quoting
approved
to the common and
according
2726, 2764,
Appeals
313,
language.”
238,
As the Court of
92 S.Ct.
use of
U.S.
observed,
“ordinary
popular
(White, J.,
has
concur
L.Ed.2d 346
finding
“refers to a
meaning” of conviction
only provides
ring)). The statute
Kentucky
by plea or
guilt
verdict[.]”
meaning ...
core of
“some ‘common-sense
Judge/Executive Association 938
County
capable of
juries
criminal
should be
”
Further,
n. 1.
our rules
at 584
512 U.S. at
understanding!,]’ Tuilaepa,
statutory
presume
construction
2630, 2632,
967,