Peggy Mina pled guilty to complicity to murder, complicity to robbery in the first degree, and complicity to burglary in the first degree in the stabbing death of Homer Carrender. Under her plea agreement, the penalty was to be determined by a jury which returned a verdict of life without parole on the murder charge. Mina appeals as a matter of right from a judgment of the Pulaski Circuit Court sentencing her in accord with the jury's verdict. Mina raises four issues on appeal: (1) the trial court erred in failing to strike two jurors for cause; (2) Mina was entitled to a jury instruction on extreme emotional disturbance as a mitigating circumstance; (3) portions of a guilty plea colloquy were erroneously deemed admissible; and 4) the trial court abused its discretion when it allowed gruesome photographs and video to be admitted into evidence. For the reasons stated herein, we affirm.
On November 6, 2009, Raphael Robinson went to the home of seventy-two year old Homer Carrender where he robbed him of three guns and $3000 in cash before brutally beating and stabbing him to death. In the subsequent investigation, Detective Lieutenant Shannon Smith of the Somerset Police Department discovered that Robinson had been living with his aunt, Peggy Mina, prior to the crime. Over the course of three interviews with Mina, Detective Smith learned that Mina helped Robinson plan the robbery and gave him her car to use on the day of the crime. Mina admitted that she knew that Robinson intended to kill Carrender, and that she believed that Robinson struck him on the head with a rifle. After the murder, Mina instructed Robinson to throw the evidence of the crime into a dumpster behind her residence.
Mina was indicted on charges of complicity to murder, complicity to robbery in the first degree, complicity to burglary in the first degree, and theft by unlawful taking.
Mina contends that the trial court's failure to excuse two jurors for cause substantially infringed on her right to a fair trial and constituted reversible error. She argues that Juror 242 and Juror 289 should have been excused because they could not consider the full penalty range.
During voir dire, Mina's counsel asked the panel if anyone believed that death or life in prison is the only "acceptable result" when someone is charged with murder. One potential juror agreed, and when defense counsel asked if anyone shared this opinion, four other members of the panel, including Juror 289 and Juror 242, raised their hands. Defense counsel proceeded to ask Juror 289 and Juror 242 independently if this belief would prevent them from considering a lower penalty, specifically twenty to fifty years' imprisonment. Juror 289 responded that she could consider a lower penalty and would listen to all of the facts. Juror 242 answered that he could consider fifty years and "that's about it." Mina's counsel moved to strike four jurors for cause, including Juror 289 and Juror 242, based on their inability to consider the entire range of punishment.
When the trial court subsequently questioned the two challenged jurors individually, both agreed that they could follow the court's instructions and consider the entire penalty range. They further stated that they would listen to all of the evidence and not automatically impose a sentence. Finding no probability of bias or prejudice based on the entirety of the jurors' responses, the trial court denied Mina's motions to strike Juror 242 and Juror 289.
Kentucky Rule of Criminal Procedure ("RCr") 9.36 requires the excusal of a potential juror if there is a reasonable ground to believe that the juror is unable to conform his or her views to the requirements of the law and render a fair and impartial verdict. The trial court must consider the entirety of the juror's responses and demeanor during voir dire in order to weigh the probability of bias. Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007). On appeal, a trial court's decision on whether to excuse a juror for cause is reviewed for abuse of discretion. Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003). Upon review of the record, we find that the trial court did not abuse its discretion in refusing to strike these two particular jurors for cause.
As often noted, a prospective juror who favors severe penalties should not be automatically disqualified so long as he or she can consider the entire range of punishment. Hodge v. Commonwealth, 17 S.W.3d 824, 837 (Ky. 2000). Similarly, a juror who is reluctant to consider minimum penalties, but can otherwise meaningfully consider all penalties and follow the court's instructions, is not per se disqualified. Mabe v. Commonwealth, 884 S.W.2d 668, 670 (1994). Even those jurors who subscribe to the proverbial "eye for an eye" view of punishment may still be capable of listening to all of the evidence, heeding the court's instructions, and rendering a fair and impartial verdict. See Mabe, 884 S.W.2d at 670; Hodge, 17 S.W.3d at 836-37; Stopher v. Commonwealth, 57 S.W.3d 787, 796 (Ky. 2001); Soto v. Commonwealth, 139 S.W.3d 827, 849 (Ky. 2004).
We have previously held that the trial court has the "duty to evaluate the answers of prospective jurors in context and in light of the juror's knowledge of the facts and understanding of the law." Stopher, 57 S.W.3d at 797. In the present case, the trial court properly assessed the entirety of Juror 242 and Juror 289's responses in denying the motions to strike for cause. Initially, no potential jurors revealed an inability to consider all penalties. Despite Juror 242's subsequent indication that he could only consider fifty years' imprisonment as the appropriate punishment for an intentional murder, he nevertheless stated that he would not automatically impose the harshest punishment without first considering the evidence. Additionally, both Juror 242 and Juror 289 identified a distinction between accomplice liability and principal liability, and stated to the court that their views on punishment differed according to the defendant's role in the crime. While Mina would have us focus on isolated questions, some leading, posed by defense counsel, the entirety of the jurors' responses during voir dire reflected their ability and willingness to consider the full range of penalties.
Although Mina asserts that the trial court failed to recognize the jurors' "flawed understanding" of the legal concept of accomplice liability, such is not grounds for excusal for cause. See Mabe, 884 S.W.2d at 671 ("Voir dire examination occurs when a prospective juror quite properly has little or no information about the facts of the case and only the most vague ideas as to the applicable law."). Furthermore, we reject Mina's contention that the trial court's questions during individual voir dire failed to reveal any true insight into the potential jurors' minds. Juror 242 and Juror 289 asserted that they could consider the full penalty range before defense counsel attempted to lead them down the "proverbial garden path" with a hypothetical case. See Walker, 288 S.W.3d at 737.
In light of the record and applicable law, we cannot say that the trial court abused its discretion in denying the motions to strike Juror 242 and Juror 289 for cause. Both potential jurors expressed their ability to consider the full penalty range, their willingness to follow the court's instructions, and their desire to hear all of the evidence before setting a sentence. In sum, the trial court did not err.
Next, Mina claims that she was entitled to an instruction on the statutory mitigating factor of extreme emotional disturbance ("EED") pursuant to Kentucky Revised Statute (KRS) 532.025(2),
On the final day of the trial, the Commonwealth objected to including EED as a specific mitigating factor in the jury instructions, arguing that aside from the death of Mina's sister several months before the murder, no evidence of EED had been presented. The Commonwealth contended that there had been no testimony offered to suggest that Mina was distraught or upset on the day of the murder, and in fact it was clear that she knew Robinson was going to rob and kill Carrender. The trial court sustained the Commonwealth's objection and the jury did not receive a separate EED mitigation instruction.
While there is no statutory definition of EED as a mitigating circumstance, this Court has defined EED as "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986).
Mina argued before the trial court that learning of her husband's affair with co-defendant Robinson's sister was the triggering event that led to her involvement in Carrender's murder. On appeal, Mina has expanded this argument to encompass her difficult childhood and the death of her sister nine months before the crime as events contributing to her alleged EED.
We have held that evidence of emotional disturbance "based on gradual victimization from [a defendant's] environment" is insufficient absent some showing of adequate provocation, or a "triggering event," to justify an EED instruction. Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991); see also Benjamin v. Commonwealth, 266 S.W.3d 775, 782 (Ky. 2008). Relying on this Court's decision in Benjamin v. Commonwealth, Mina claims that the death of her sister and her abusive childhood, coupled with her husband's affair, "fester in [her] mind." 266 S.W.2d 775, 782-83. Her triggering event, therefore, was the "impact of a series of events" as described by this Court in Benjamin. Id. at 783.
As noted by the Commonwealth, our holding in Benjamin reiterated that there must be adequate provocation that is "sudden and uninterrupted" to compel an EED mitigation instruction. Id. Here, there was simply insufficient evidence presented to suggest that Mina experienced a "sudden and uninterrupted" triggering event sufficient to warrant an EED mitigation instruction. Mina's daughter testified that her mother and Robinson acted like "nothing was wrong" on the night of the murder. According to the testimony of Evelyn Falcon, Mina's sister and Robinson's mother, Mina even "kind of knew" about her husband's relationship with Robinson's sister well before the murder. These events, and their alleged cumulative triggering effect, do not support the contention that Mina was adequately provoked to complicity in the murder of Carrender.
Mina compares the facts supporting EED in her case to those presented in Smith, 845 S.W.2d 534. In Smith, this Court concluded that a thrice divorced defendant, suffering from the death of his son, experienced EED which impelled him to murder a woman who spurned his romantic advances and was, therefore, entitled to a penalty phase EED instruction. Id. at 539-40. We reached a similar conclusion in Hunter, 869 S.W.2d 719. In that case we found that a man of limited mental capacities, who was involved in a marriage fraught with regular infidelities and who engaged in a volatile argument on the night of the offense, was entitled to an EED instruction in the penalty phase of his trial for the murder of his wife. Id. at 726.
When compared to the evidence presented in the instant case, the facts in Smith and Hunter are clearly distinguishable.
The jury was entitled to take into account Mina's mental state on the days leading up to the murder, as well as to consider her tragic childhood and tumultuous marriage.
Mina argues that the portion of the videotaped colloquy wherein it is revealed that Commonwealth agreed not to seek the death penalty in exchange for her guilty plea was inadmissible under Kentucky Rule of Evidence ("KRE") 410 and other evidentiary rules. Although the challenged portion of the colloquy was ultimately not admitted, Mina claims that she was prejudiced by the trial court's ruling that it was admissible because it forced her to not argue that she deserved credit for accepting responsibility for her crimes.
When the Commonwealth sought to admit Mina's videotaped plea colloquy into evidence, both parties agreed that any plea negotiations would not be played for the jury. However, the prosecutor posited that if Mina were to argue that the jury should consider her acceptance of responsibility as a relevant circumstance, the Commonwealth should be permitted to argue that she avoided the death penalty in exchange for her plea. Mina's defense counsel claimed that the fact that she had accepted some responsibility for the crime by pleading guilty would be appropriate to argue. He further stated that plea negotiations would be inadmissible under KRE 410, and he believed that any reference by the Commonwealth to the fact that the death penalty was "off the table" would be an argument based on facts outside of the record.
Taking the defense's objection as a motion in limine, the trial court reviewed the colloquy and denied the motion. The trial court determined that the challenged portion of the video, which was a recitation of the agreement and did not contain plea negotiations, would be admissible if Mina sought to argue that the jury should consider the fact that she accepted responsibility by pleading guilty to the charged offenses. Ultimately, defense counsel did not argue that Mina accepted responsibility by entering a plea, and the challenged portion of the colloquy was never played for the jury.
On appeal, Mina contends that the portion of the colloquy discussing the death penalty was inadmissible under KRE 408(2), which prohibits the introduction of evidence of a compromise or agreement to compromise to prove liability.
The facts and claims before us are similar to an argument that was presented to this Court in Neal v. Commonwealth, 95 S.W.3d 843 (Ky. 2003). The defendant Neal was found guilty of wanton murder. 95 S.W.3d at 847. During penalty phase proceedings, Neal sought to introduce evidence of his participation in various in jail classes in order to show that he was capable of rehabilitation. Id. at 853. When the trial court in Neal concluded that the Commonwealth would be permitted to introduce evidence that Neal had incurred disciplinary write-ups while incarcerated as rebuttal evidence, Neal did not introduce the rehabilitative information. Id. On appeal, Neal argued that the prosecution should have been precluded from rebutting his mitigation evidence of rehabilitation with evidence that Neal had incurred disciplinary write-ups while incarcerated. Id. In affirming the trial court, the Court found that evidence of Neal's disciplinary write-ups would have been admissible as rebuttal evidence if Neal had proffered evidence of his participation in jail rehabilitative programs. Id.
Like the trial court's conclusion in Neal, the trial court in the instant case ruled that the Commonwealth would be permitted to offer this evidence only to rebut a claim that Mina showed remorse by pleading guilty and accepting her role in the crimes. Thus, evidence that the Commonwealth agreed not to seek the death penalty was probative to rebut the contention that Mina pled guilty solely as an act of genuine remorse.
To the extent that the challenged portion of the colloquy would have been offered as rebuttal evidence, we find that neither KRE 408 nor KRE 403 bars its admission. KRE 408(2) prohibits a party from introducing evidence of compromise or offers to compromise in order to prove liability or validity of an amount related to the claim. The plain language of the rule limits its application to "claim[s] which [are] disputed as to either validity or amount" and evidence offered "to prove liability for or invalidity of the claim or its amount." KRE 408(2). The rule, however, does not require exclusion when evidence of compromise is "offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." KRE 408(2). In our view, assuming the rule even applies under these circumstances (a rather large assumption given liability was conceded and no "amount" is at issue) rebutting mitigating evidence falls within the "another purpose" c arve-out of KRE 408. See, e.g., Neal, 95 S.W.3d at 852-53 ("A plea offer by the prosecution is not an aspect of the character of the defendant, nor is it a circumstance of the offense, or a mitigating aspect of the record of the defendant. The only pertinent inquiry for the jury in this case was what the jury believed was the appropriate punishment for the crimes.").
Nor does KRE 403 demand the plea colloquy's exclusion. Mina claims it was highly prejudicial for the jury to know the death penalty had been an option and Mina pled guilty to avoid it. However, even highly prejudicial evidence may be admitted as rebuttal evidence when the defendant's own efforts render the evidence relevant.
As for Mina's right to present mitigating circumstances as a part of her defense, Mina's reliance on Hannah v. Commonwealth, 306 S.W.3d 509 (Ky. 2010) is misplaced. In Hannah, the trial court prohibited a murder defendant from arguing during summation whether he had a duty to retreat. 306 S.W.3d at 515. The Commonwealth, however, was permitted to argue that the defendant could have retreated before shooting the victim. Id. This Court recognized that the question of whether an individual is privileged to defend himself and stand his ground is a question for the jury, and, therefore, the defendant in Hannah should have been permitted to address that issue during closing arguments. Id. We found error and reversed, holding that the trial court erroneously prohibited the Hannah defendant from presenting his case to the jury. Id.
Unlike Hannah, the trial court in the present case did not prohibit Mina from addressing or advancing any particular argument. Mina, having alluded to deserving some "credit" from the penalty phase jury for pleading guilty during voir dire, was entitled to proceed with the argument. The trial court only determined that Mina could not present the "benefit" of the plea (i.e. proof of her acceptance of responsibility) while prohibiting the Commonwealth from revealing the entire agreement. This does not amount to abuse of discretion. See also Fredline v. Commonwealth, 241 S.W.3d 793 (Ky. 2007) (finding no abuse of discretion where a court's denial of a continuance resulted in a change of trial strategy with no identifiable prejudice arising from the trial court's ruling). Therefore, her statutory right to present mitigating evidence provided by KRS 532.025(2) was not violated.
There was thus no violation of KRE 408 or KRE 403 and no interference with Mina's right to present mitigating evidence pursuant to KRS 532.025(2). In short, the trial court's ruling on the plea colloquy issue did not constitute error, much less palpable error. See RCr 10.26.
Mina's final argument is that the trial court erred in allowing the prosecutor to introduce photographs and crime scene video depicting Carrender's wounded body. She claims that there was no dispute as to the extent or nature of the victim's injuries, and the probative value of the photographs and video was outweighed by their undue prejudice.
The Commonwealth sought to admit four photographs of Carrender.'s body into evidence. The autopsy photographs depicted wounds to the victim's head, stab wounds on the victim's chest and neck, and defensive wounds on the victim's right hand. A fourth photograph showed the stab wounds to Carrender's chest cavity where the skin had been removed during an autopsy. Mina objected to the introduction of the photographs, arguing that she had pled guilty, and the evidence wasn't relevant given that she was charged as an accomplice. When the Commonwealth sought to introduce a video taken by police officers depicting the crime scene, Mina objected on the same grounds as the photographs. The trial court overruled all of the objections concerning the photographs and video.
The admissibility of photographs must be examined under KRE 403, which states in pertinent part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice[.]" The trial court is given broad discretion in determining the admissibility of evidence and an appellate court will disturb that determination only when there has been an abuse of discretion. Page, 149 S.W.3d at 420. A photograph is not automatically inadmissible simply because it is gruesome. Hunt v. Commonwealth, 304 S.W.3d 15, 41 (Ky. 2009). This Court has generally held that photographs of the deceased victim will be deemed inadmissible when they depict "mutilation, decomposition and decay not directly related to the crime." Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992). When gruesome photographs tend to reveal relevant facts surrounding the commission of the crime, KRE 403 will not preclude their admission simply because the photographs depict a heinous crime. Adkins, 96 S.W.3d at 794. The same rule applies to crime scene videos. Fields v. Commonwealth, 12 S.W.3d 275, 279 (Ky. 2000) ("A videotape of a crime scene, including the position of the victim's body and the location and nature of the victim's injuries, is just as admissible as a photograph, assuming a proper foundation is laid.").
Applying the rule adduced in Funk to the case at bar, we agree that the trial court did not abuse its discretion in admitting the photographs and video. This Court has held that autopsy photographs depicting manipulation of the victim's body are admissible so long as relevant evidence is revealed. In Quarels v. Commonwealth, 142 S.W.3d 73 (Ky. 2004), this Court found that an autopsy photograph displaying the victim's brain with the skull removed was properly admitted by the trial court, as it showed bruising inside of the victim's scalp and proved intent to kill. We reached a similar conclusion in Ratliff v. Commonwealth, 194 S.W.3d 258, 271 (Ky. 2006), finding that admission of autopsy photographs depicting bruising to the victim's bowels did not constitute an abuse of discretion because the photos revealed internal damage to the victim.
While the autopsy photograph depicting Carrender's chest cavity was certainly graphic, it accurately portrayed the nature and extent of his extensive internal injuries. The prosecution argued that the chest wound shown in the autopsy photo was the injury that caused Carrender's death.
We also find that the crime scene video was properly admitted. The footage, which included a "walk-through" of the entire apartment with Carrender's body on the living room floor, was relevant because it showed the scene of the crime which Mina helped plan. See Fields, 12 S.W.3d at 279 (citing Mills v. Commonwealth, 996 S.W.2d 473, 489 (Ky. 1999) ("If relevant and probative of an issue in the case, a videotape of a crime scene, like a crime scene photograph, is admissible even though gruesome.")). Like the photographs, the video's probative value was not outweighed by the danger of undue prejudice.
Mina argues that her role as an accomplice renders the photographs and video irrelevant to prove any fact related to the charged offenses. This argument is unavailing. Here, the Commonwealth offered proof of Mina's efforts to orchestrate the Carrender robbery. Mina admitted to giving Robinson pertinent information about the victim and loaning him her car so that he could commit the crime. She was aware that Robinson not only intended to rob Carrender, but that he intended to kill him as well. The admitted photographs depict the results of the brutal crime with which Mina was admittedly involved. See Hudson v. Commonwealth, 385 S.W.3d 411, 419 (Ky. 2012) (evidence of accomplice's prior shooting was admissible and highly relevant to connect defendant to charged offense even though the defendant had not participated in the prior shooting).
Given Mina's substantial participation in, indeed even primary orchestration of, the crimes, we must reject the argument that photographs and video of the victim's body were irrelevant to her sentencing. C.f. Funk, 842 S.W.2d at 479 (crime scene photographs that were irrelevant to the commission of the crime were erroneously admitted where the defendant's proof of guilt was not overwhelming). The trial court did not abuse its discretion in admitting the photographs and the crime scene video.
In sum, we find no error in Mina's penalty phase proceeding and conclude that she was fairly sentenced. Accordingly, we affirm the Judgment of Pulaski Circuit Court.
All sitting. All concur.
