Opinion of the Court by Justice SCOTT.
William Harry Meece (Meece) appeals from the judgment of the Warren Circuit Court sentencing him to consecutive twenty-year terms of confinement (for a total of forty years) on two convictions of robbery and burglary, both of the first degree, and to death for each of three convictions for murder.
According to evidence introduced at trial, Meece shot and killed Joe Wellnitz, his wife, Beth, and their son Dennis in their home in Columbia, Adair County, Kentucky in the early morning hours of February 26, 1993, at the behest, and with the assistance of, their daughter, Meg Wellnitz Appleton (Wellnitz). The murders occurred during the commission of a robbery and burglary (both in the first degree) and were otherwise committed for profit.
In February 2003—ten years after the murders—an Adair County Grand Jury
Meece's first trial began in November 2004, but ended with the tender of his guilty plea (following voir dire) upon the Commonwealth's recommendation of a sentence of life without parole for twenty-five years. This plea, however, was later set aside upon Meece's motion and new counsel were then appointed. Thereafter, the parties agreed to a transfer of venue to the Warren Circuit Court. Trial was rescheduled for August 21, 2006 and concluded with the sentencing verdict on September 18, 2006. He was convicted and sentenced as indicated.
Meece seeks review of forty-five listed issues, "some of which comprise numerous sub-issues, and many of which were not preserved for review pursuant to RCr 9.22 or 9.54." Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky.1990). "Indeed, more than a few . . . were not even raised below." Id.
Thus, in other instances they would be treated as unpreserved. However, "[w]here the death penalty has been imposed, we nonetheless review allegations of these quasi errors."
Id. (internal citations omitted); See also Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky.2003).
"The rationale for this rule is fairly straightforward. Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers." Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice process. Id.; See also KRS 532.075(2) ("The Supreme Court shall consider . . . any errors enumerated by way of appeal.").
Preserved errors are reviewed under normal standards. As noted in Brown v. Commonwealth, "preserved evidentiary and other non-constitutional errors will be deemed harmless under RCr 9.24 and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), if we can say with fair assurance that the judgment was not substantially swayed by the error." 313 S.W.3d 577, 595 (Ky.2010). "Our inquiry is not simply `whether there [is] enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.'" Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky.2010) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). "As to those preserved constitutional errors which are subject to harmless error review, they must be shown to be `harmless beyond a reasonable doubt' in order to be deemed harmless." Id.
Moreover, we review a trial court's evidentiary rulings for an abuse of discretion. Penman v. Commonwealth,
On appellate review of a trial court's denial of a motion to suppress, we apply the two-step process set out in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by Kentucky in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998). We review the trial court's findings of fact under the substantial evidence standard. Id. at 8. Under this standard, the trial court's findings of fact will be deemed conclusive if supported by substantial evidence. RCr 9.78. Finally, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).
Meece first contends that the trial court should have suppressed his two videotaped statements made subsequent to his entering into and executing a plea agreement with the Commonwealth on November 15, 2004.
On November 15, 2004, several days into jury selection during his first trial, Meece entered into, and executed, a plea agreement with the Commonwealth, under the terms of which the Commonwealth would recommend that Meece be sentenced to life without the possibility of probation or parole for twenty-five years (LWOP-25) and Meece agreed to give truthful statements regarding his involvement in the Wellnitz family murders and to testify against his co-defendant, Wellnitz.
Immediately following the execution of the plea agreement, Meece gave his first video statement detailing his involvement in the Wellnitz murders. This statement established that Meece entered the Wellnitz family home in the early morning hours of February 26, 1993, and shot and killed the Wellnitz family at the encouragement of, and with the assistance of, their daughter,
Following execution of the plea agreement and following his statement of November 15, 2004, Meece entered a formal guilty plea in the trial court. At the time of the plea, the trial court informed Meece that "the agreement is conditioned upon you providing a truthful, recorded statement," and on "cooperating fully with the Commonwealth in the prosecution" of Wellnitz. Meece was also told that "[i]f for any reason [you fail] to abide by the terms set forth, I have just read, said failure shall be grounds to set aside the Commonwealth's offer on a plea of guilty and this matter shall proceed to trial by jury." Thereafter, the court proceeded with the plea colloquy and asked Meece if he was satisfied with the services of his attorney and Meece replied "I believe my complaints with my original representation, Ms. Niemi, are well recorded on the record."
The court then asked Meece if he was pleading guilty due to threats, promises, or pressure from others, and Meece responded, "I believe the pressure should be obvious, but I am pleading guilty of my own free will." Following the full colloquy, the court found Meece intelligently, knowingly, and voluntarily waived his rights, and that there was a factual basis for the plea of guilty. The court did not, however, formally accept the plea, but set final sentencing for February 22, 2005.
Several months later, Meece—asserting the visitation with his children had been delayed and terminated early—moved to withdraw his guilty plea.
Following the withdrawal, Meece filed a pro se motion to suppress the two video statements of November 15 and December 15, 2004. He was joined in this motion by his new counsel. The matter was heard by the court on July 31, 2006, after which the trial court ruled that the post-plea statements given by Meece on November 15 and December 15, 2004 were admissible. These statements were introduced by the Commonwealth against Meece at trial.
Consistent with his arguments at trial, Meece contends that KRE 410, as interpreted
In Roberts, supra, the appellant was a suspect in a series of armed robberies. After his arrest, he "was worried about being charged as a persistent felony offender (PFO) and requested [the detective] to contact the Commonwealth's Attorney's office." Id. at 5. "Specifically, Roberts feared that his PFO status would enhance his punishment to an `astronomical' number of years." Id. The detective then contacted the Commonwealth's Attorney's office which assured the detective that the appellant "would not be charged with PFO [in the first degree] if he gave a complete, detailed and truthful statement concerning the robberies in question which could be corroborated by a police investigation." Id. This assurance was then conveyed by the detective to the appellant "on
Relying upon United States v. Robertson, 582 F.2d 1356, 1365 (5th Cir. 1978), we defined plea discussions as "discussions in advance of the time for pleading with a view to an agreement whereby the defendant will enter a plea in the hope of receiving certain charge or sentence concessions."
Roberts, 896 S.W.2d at 6 (citing Robertson, 582 F.2d at 1366). "To determine whether a discussion should be characterized as a plea negotiation and as inadmissible, the trial court should carefully consider the totality of the circumstances." Robertson, 582 F.2d at 1366. "[U]nder a totality of the circumstances approach, an accused's subsequent account of his prior subjective mental impressions cannot be considered the sole determinative factor." Id. In this respect, we noted that "[t]he intent is to protect the accused's subjective expectations while protecting against subsequent, self-serving claims by the accused." Roberts, 896 S.W.2d at 6. Given that the appellant in Roberts accepted the Commonwealth's plea offer by the sole act of then giving the statement concerning his participation in eight of the robberies, we held his statement met the two-part test established in Robertson and was a statement "made in the course of plea discussions" and was therefore protected by KRE 410. Roberts, 896 S.W.2d at 6.
Here, however, Meece and the Commonwealth discussed, negotiated, and executed a formal plea agreement prior to his statements. This contrasts with Meece's contention at the suppression hearing on July 31, 2006, that he believed that these two post-plea statements were part and parcel of the plea negotiations. Moreover, at this hearing, Meece and the Commonwealth stipulated:
Meece also conceded these facts during examination under oath. Specifically, he agreed that the plea agreement was signed prior to his having made the November 15, 2004 statement. He also conceded that he was informed of his Miranda warnings prior to making either statement. On
"Suppressing evidence of such negotiations serves the policy of insuring a free dialogue only when the accused and the government actually engage in plea negotiations: `discussions in advance of the time for pleading with a view to an agreement whereby the defendant will enter a plea in the hope of receiving certain charge or sentence concessions.'" Robertson, 582 F.2d at 1365. Moreover, the policy underlying KRE 410 (and its federal counterpart) is to allow a defendant to freely negotiate a plea agreement without fear that any statements he makes to solicit a plea agreement "will [later] be used against him." United States v. Lloyd, 43 F.3d 1183, 1186 (8th Cir.1994) (quoting United States v. Knight, 867 F.2d 1285, 1288 (11th Cir.1989)). "However, once a plea agreement has been reached, statements made thereafter are not entitled to the exclusionary protection embodied in [the rule]." Id.; See also United States v. Jones, 469 F.3d 563, 567 (6th Cir.2006) ("The case law is clear that statements made to authorities pursuant to cooperation plea agreements are not protected because they are not `made in the course of plea discussions.'"); United States v. Marks, 209 F.3d 577, 582 (6th Cir.2000) ("[Statements made after a plea agreement is finalized are not `made in the course of plea discussions.'") (citing United States v. Watkins, 85 F.3d 498, 500 (10th Cir.1996)); United States v. Davis, 617 F.2d 677, 685 (D.C.Cir.1979) ("Excluding testimony made after and pursuant to the agreement would not serve the purpose of encouraging compromise.")
Here, the evidence supports the trial court's findings from the July 31, 2006 hearing that Meece and the Commonwealth entered into the plea agreement on November 15, 2004, they signed the plea agreement prior to the statements of November 15, 2004 and December 15, 2004, the plea agreement was finalized prior to Meece making the statements, and no plea discussions took place after the agreement was signed. Thus, the court concluded that the post-plea statements were admissible and not made in the course of plea discussions, relying on United States v. Marks, supra. We agree.
Moreover, considering the totality of the circumstances, we reach the same result applying the Robertson test adopted under Roberts, even though Robertson was decided on differing and more expansive language. See, supra, n. 7. Allowing Meece the benefit of the doubt as to whether he exhibited an actual subjective expectation to negotiate a plea at the time of the separate statements, we cannot find, under the second prong, that any expectation he had was reasonable.
Once a cooperation plea agreement is negotiated, a defendant's cooperation thereafter is not solicitation, discussion or negotiation of a plea, but rather, compliance. Contrastingly, the earlier proffer to the Commonwealth by his then counsel of evidence concerning the purchase of the Browning Hi-Power pistol by Wellnitz was made with a view to precipitating, discussing, and negotiating a plea, and thus falls squarely within the protective realm of KRE 410 as a statement made in the course of plea discussions; yet, those made in compliance with a negotiated plea—such as his two post—plea statements made in the case at hand-do not. Thus, we find no error and the statements were admissible.
Apparently anticipating our decision on this issue, Meece asserts that any application of KRE 410 to the facts at
Having been based upon the two-part test adopted from Robertson, Roberts clearly envisioned KRE 410's outer limits to be the negotiation of the plea. Roberts, 896 S.W.2d at 6 ("Whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion.").
Moreover, Kreps v. Commonwealth, 286 S.W.3d 213, 219 (Ky.2009), is consistent with this limitation. ("The more difficult question is whether Kreps made his statement in the course of a plea discussion."). In Roberts, the defendant accepted the open oral plea offer by making the statement. Id. In Kreps, as in Roberts, the defendant accepted the oral plea offer by making the confession. Id. at 220. ("Based on `the totality of the objective circumstances,' it was reasonable for Kreps to expect that he was participating in a plea negotiation and that he would be charged with [lesser] felonies that would run concurrently if he confessed.") (emphasis added).
In this instance, the cooperation plea agreement was fully negotiated and signed before the statements, thus, the statements were given in compliance with it rather than in acceptance of it. See United States v. Newbert, 504 F.3d 180, 185 (1st Cir.2007) ("Basic contract principles apply to the construction of plea agreements."). "Excluding testimony made after and pursuant to the agreement would not serve the purpose of encouraging compromise." Davis, 617 F.2d at 685.
Thus, our decision today is a predictable application of KRE 410, given that the plea agreement had been negotiated and executed prior to the statements given in compliance therewith. Thus, "[t]he conclusion is inescapable that [Meece's] convictions [in this regard] are in keeping with the principles of due process." Helpenstine v. Commonwealth, 566 S.W.2d 415, 417 (Ky. 1978).
Meece also argues that the statements should have been suppressed as they were involuntarily induced by promises of leniency in the plea agreement, including, as he asserts, the promise that he would have an extended visit with his children. As support, he cites his conflict with prior counsel (alleging a lack of preparation in certain regards) and the trial court's comments made to him during the formal tender of his guilty plea that he had to confess or he would be facing the death penalty. He also asserts that his response to the Miranda warnings in his December 15, 2004 statement that "[y]eah, I understand those rights and this conversation is having to be made as a part of an outstanding plea agreement," demonstrates his waiver was involuntary.
In Bailey v. Commonwealth, we recognized that the Due Process Clause requires confessions be made voluntarily in order to be admissible, noting that "`[if the defendant's] will has been overborne and his capacity for self-determination critically impaired, the use of [the] confession
In determining whether a confession is the result of coercion, "one must look at the totality of the circumstances to assess whether police obtained evidence by overbearing the defendant's will through making credible threats." Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky. 1999). In making this determination, the court should consider three factors: "1) whether the police activity was `objectively coercive;' 2) whether the coercion overbore the will of the defendant; and 3) whether the defendant showed that the coercive police activity was the `crucial motivating factor' behind the defendant's confession." Id. (quoting Morgan v. Commonwealth, 809 S.W.2d 704, 707 (Ky.1991)).
First, under circumstances such as this, a coercive or improper governmental activity "`is a necessary predicate to the finding that a confession is not voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); See also Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). In this respect, "[i]t would be anomalous . . . to hold that the state's actions [in offering the sought-after plea agreement] were `improper' when they are" expressly contemplated by a rule such as our KRE 410. Wright v. State, 307 Md. 552, 515 A.2d 1157, 1174 (1986), abrogated on other grounds by Price v. State, 405 Md. 10, 949 A.2d 619 (2008).
Although relevant, a defendant's concerns about the criminal defense services of his counsel do not reach the level of governmental activity necessary to a finding that a confession was not voluntary. Moreover, Meece was not told by the trial judge "he had to confess or he would be facing the death penalty"; he was told that consistent with the plea agreement, he had to testify truthfully or he would violate the agreement and he would be facing trial again.
As to any coercive aspect of the alleged promise of the Commonwealth to see that Meece got an extended visit with his children, Meece conceded in his December 15, 2004 statement that the Commonwealth's Attorney would only encourage Meece's attorney to set up the visit and would not do anything to hinder it. He further acknowledged that the Commonwealth's Attorney had fulfilled his part. We also note the court's finding, supported by substantial evidence, that Meece's visitation with his children was not a part of the plea agreement—it was never mentioned in the plea agreement, nor mentioned in the lengthy statement that Meece gave after the execution of the plea agreement on November 15, 2004. It was something Meece hoped to get, but that depended upon his ex-wife, Regina Meade, not the Commonwealth.
Even so, Meece testified he never intended to honor the plea agreement—it was just a tool to get a new trial with new counsel. We also note that each of the statements was given in the presence of his attorney and only after he had been given, acknowledged, and waived his Miranda rights. "There is [simply] no evidence in this record that [Meece's] will was
In his motion to suppress the statements of November 15 and December 15, 2004, Meece also asked that any evidence of his actual "guilty plea" be suppressed. The court thereafter denied the motion to suppress the statements, but did not address the issue as to the formal guilty plea rendered by Meece in open court. In fact, no evidence of his formal "guilty plea" was introduced,
The Commonwealth counters that evidence of Meece's formal "guilty plea" was not introduced at trial, only his statements of November 15 and December 15, 2004. Moreover, they argue that at no point during either of these statements does any party expressly indicate that Meece has or will plead guilty to the crimes charged in this case. They assert that the two references to "a plea" are so vague as to be meaningless to a lay person. They also argue that Meece's failure to object to these two references was trial strategy because he intended to and did attack the truthfulness of the statements at trial, attempted to explain that he lied in the statements as part of his plan to delay being tried until he could obtain more competent counsel and a new trial, and (as he said) so he could facilitate an extended visit with his children. As indicated, he testified at trial that he never intended to follow through with the plea.
In Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), the trial court allowed the defendant to withdraw his plea of guilty and proceed to trial, yet allowed the prosecution to introduce a certified copy of his former guilty plea. The United States Supreme Court reversed, noting:
Id. at 224-225, 47 S.Ct. 582 (quoting White v. State, 51 Ga. 285, 289 (1874)); See also KRE 410(1) (prohibiting evidence of "a
Here, at trial, the Commonwealth presented the videotape of Meece's December 15, 2004 video statement first. This statement began as follows:
(Emphasis added). Meece then went on to describe Wellnitz's involvement in the murders, testified again about how he got in the house with the key she had given him and then went room-to-room killing the Wellnitz family.
Later, the Commonwealth played the video of Meece's November 15, 2004 statement, the pertinent parts of which were:
Meece then detailed the planning and execution of the Wellnitz family murders. In this statement, he particularly described the killing of the Wellnitz family:
The videotape later concluded:
(Emphasis added).
It is fair to say that when KRE 410 prohibits evidence in a criminal proceeding of "a plea of guilty which was later withdrawn," it means any evidence of that plea. It is also fair to assume, contrary to the Commonwealth's assertion, that references to a "plea" or "an outstanding plea agreement" or you will "enter your formal plea in open court and then we come back, is that fair?," within the context of the detailed statements concerning the Wellnitz family murders, could be understood by a lay juror as referring to Meece's forthcoming "guilty plea." Thus, it is violative of KRE 410(1) and its admission into evidence was error. Under these circumstances, we see no distinction between evidence that a defendant intends to plead guilty and evidence that he has already done so.
Still, given the voluminous motions filed and heard in this case and the multitude of objections made during trial, and in particular the time spent by the parties and the court dealing with the KRE 410 questions, it is difficult to understand why the simple solution of redaction was not called to the court's attention. Granted, the original motion to suppress did reference the
Yet still, at trial, it is hard to overlook two separate comments in the videotaped statements which referenced "a plea," and although the obligation to do so should fall upon all of the parties, the burden to do so lies with the defense. Thompson v. Commonwealth, 147 S.W.3d 22, 40 (Ky.2004) ("Even when an objection or motion has been made, the burden continues to rest with the movant to insist that the trial court render a ruling; otherwise, the objection is waived."). "It should not be permissible to frame an objection that . . . will serve to save a question on appeal [, the `guilty plea,'] and yet conceal the real complaint [, two quick references to his `forthcoming plea,'] from the trial court." West v. Commonwealth, 780 S.W.2d 600, 603 (Ky.1989) (citing 7 W. Bertelsman and K. Philipps, Kentucky Practice, Rule 46 at 154-157 (4th ed.1984)).
In this respect, RCr 9.22 requires a contemporaneous objection to exclude evidence, unless the court has ruled upon a fact-specific, detailed motion in limine that fairly and adequately apprised the court of the specific evidence—not just the class of evidence—to be excluded and the basis for the objection. Lanham v. Commonwealth, 171 S.W.3d 14 (Ky.2005), overruling in part Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky.1996); Davis v. Commonwealth, 147 S.W.3d 709, 722-23 (Ky.2004). In this instance, although the motion, in its preamble, addressed the exclusion of both videotaped statements and the actual "guilty plea," i.e., the formal plea—the arguments and order addressed only the admissibility of the two statements. In his brief, Meece has not directed us to any part of the record where counsel made, or reiterated, or renewed, a request for ruling on these two indirect comments to "a plea." Thus, given Meece's failure to object at the time the evidence was offered, as well as his failure to request a ruling of the trial court in this regard on his motion in limine, or for that matter, to request a redaction, the error was waived.
Thus, we address the error under the standard set forth in Sanders, 801 S.W.2d at 668. "Recognizing the requirements of KRS 532.075(2), we [have] noted that such do not require `total abandonment of the rules of preservation.'" West, 780 S.W.2d at 603; See also Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). And, "[i]n the absence of exceptional circumstances, a defendant is bound by the trial strategy adopted by his counsel even if made without prior consultation with the defendant. The defendant's counsel cannot deliberately forego making an objection to a curable trial defect when he is aware of the basis for an objection." West, 780 S.W.2d at 602.
Here, Meece, joined by counsel, specifically mentioned KRE 410's ban on evidence of a "guilty plea" in the motion to suppress. However, once the court ruled on the admissibility of the statements, they made no additional, or clarifying, requests for any ruling as to the references to "a plea" in the statements. Although that failure may be explained by the fact that the formal guilty plea was not introduced into evidence, it still does not explain the failure to object to the comments at issue now, when they were available to Meece and counsel at the time, via the videotape and their transcripts.
Certainly, the record does not suggest that Meece and counsel were unaware of
This having been said, however, we are convinced that under the totality of the other evidence presented, i.e., Meece's statements of November 15 and December 15, 2004, Wellnitz's statements, including her videotaped statement, as well as that of his ex-wife, Regina Meade, who gave testimony that directly incriminated him in the murders (that Meece had the Wellnitzes' safe with him early that morning when he and Wellnitz returned), that Meece would have been found guilty of the capital offenses and given the death penalty even without this alleged error. Thus, any error in this instance was harmless.
Following the murders, Meece and Wellnitz were early suspects. Moreover, evidence came to the attention of the police that Meece had a Browning Hi-Power pistol weeks before the murders. When asked of it, however, Meece explained that he had borrowed it from "a friend of a friend" to see if he might want to buy it. He also admitted to having shot targets with the pistol near Salt Lick, Kentucky, but later decided not to buy it and returned it to the friend a week before the murders. Meece would not tell the police the alleged person's name because the friend was allegedly a felon and possession of a handgun would "have been another crime."
Kentucky State Police (KSP) ballistics experts at the time, however, had tested a Tokarev pistol and found its rifling so similar that they believed the barrel of the murder weapon had been produced on the same machine, either right after the Tokarev or in close proximity. Consequently, their initial list of potential murder weapons contained only two brands of pistols, Tokarevs and Norincos. The pistol Meece had was a Browning.
Meece's first trial began years later in November 2004. Following a week of voir dire, and due to alleged continuing problematic, conflicted relationships with counsel, Meece entered into a plea bargain with the Commonwealth in exchange for the prosecutor's recommendation of life without the possibility of parole for twenty-five years and (as alleged by Meece) the further agreement to assist in an extended visit between Meece and his young children. As noted earlier, this plea was entered and then set aside at Meece's request.
However, these plea discussions were "jumpstarted" by Meece's then counsel offering the Commonwealth previously unknown information about Wellnitz's purchase of the Browning Hi-Power pistol. This disclosure led to the plea discussions and ultimate plea bargain, which Meece testified he needed at the time.
Prior to trial, Meece moved to suppress evidence concerning the purchase pursuant to KRE 410 as "fruit of the poisonous tree." The Commonwealth countered that its discovery was inevitable and that this Commonwealth has never imported the "fruit of the poisonous tree" doctrine into this area.
Following a hearing on the issue on August 11, 2006, the trial court denied Meece's motion in limine, finding: "Wellnitz divulged the information leading to discovery regarding the purchase of the Browning Hi-Power handgun during her December 31, 2004 statement." Furthermore, the trial court indicated that:
Moreover, following Meece's execution of his formal plea agreement on November 15, 2004, Meece gave his first videotaped statement, wherein he was asked and answered in pertinent part, as follows:
Wellnitz gave her statement on December 31, 2004. In her statement, she said that the plan to purchase the gun was suggested by Meece. At the time of the purchase, Meece was not yet twenty-one years old, and as a result, she agreed to purchase it. She went to Sports Unlimited, accompanied by Meece, where she purchased a Browning Hi-Power 9mm under
In its Fourth Amendment context, in order for a defendant to invoke "the fruit of the poisonous tree doctrine," a "defendant must show that: (1) he or she has standing to challenge the original violation, i.e., the tree; (2) the original police activity violated his or her rights; and (3) the evidence sought to be admitted against him or her, i.e., the fruit, was obtained as a result of the original violation." Leslie W. Abramson, 8 Kentucky Practice, Criminal Practice and Procedure, § 17:5 (2010-2011). If so, "[t]he exclusionary rule requires the suppression of any evidence that is either the direct or indirect result of illegal police conduct." Id.
"A court will, however, admit the fruit of the poisonous tree if the prosecutor establishes that: (1) the evidence was obtained from a source independent of the primary illegality; (2) the evidence inevitably would have been discovered in the course of the investigation; or (3) the connection between the challenged evidence and the illegal conduct is so attenuated that it dissipates the taint of the illegal action." Id.
Here, neither Meece's November 15, 2004 statement nor Wellnitz's December 31, 2004 statement is protected by KRE 410. Thus, any application of the "fruit of the poisonous tree" doctrine would be of no benefit. See United States v. Magee, 821 F.2d 234, 243 (5th Cir.1987) ("But, Rule 11(e)(6) and Rule 410 declare inadmissible only statements made during the course of plea discussions. On their face, these rules do not preclude the admission of evidence derived from such statements." Magee went on, however, to find, "it unnecessary, however, to decide whether the[] rules bar evidence derived from such statements because the district court did not err in concluding that the evidence Magee finds objectionable was not derived from Magee's statements.")
We also find it unnecessary in this instance to determine whether derivative evidence is barred by KRE 410, because we conclude that the evidence Meece finds objectionable was derived from his and Wellnitz's statements. Thus, we find no error. See Winstead v. Commonwealth, 283 S.W.3d 678 (Ky.2009).
K.D. Felice was an undercover police officer for the Kentucky State Police (KSP). In March 1994, Meece was working at TrueGreen ChemLawn when Lexington Police Detective Roy Wheat placed Felice on the job with Meece to see what statements Meece might make concerning the Wellnitz murders. Thereafter, Felice rode around with Meece for approximately three weeks while he trained her to be a salesperson. During this association, she fabricated a story about wanting to kill her abusive husband to lure Meece into talking. At the time, she was wired with a transmitter and ultimately about sixty hours of these conversations were recorded. The undercover operation ended after her rejection of Meece's sexual advances as Meece thereafter reported her to the
Prior to trial, Meece moved to suppress evidence of his conversations with Felice on various grounds, including KRE 404, his Fifth Amendment right to remain silent, and his Sixth Amendment right to counsel. The motion to suppress was overruled and Felice testified on direct to statements that Meece made to her during the undercover investigation.
Meece's statements (or conduct) introduced through Felice were:
"We note at the outset that KRE 404(b) is not limited to other acts that are criminal or unlawful, but applies to any acts offered to prove character in order to show action in conformity therewith." Davis v. Commonwealth, 147 S.W.3d 709, 723 (Ky.2004) (citing R. Lawson, The Kentucky Evidence Law Handbook, § 2.25[2], at 125 (3d ed. Michie 1993)). "The word `character,' used most narrowly and accurately, describes the personal disposition or personality of an individual." Lawson, supra, § 2.15[2] at 97. However, such acts must amount to
Moreover, "[t]he proscription in KRE 404(b) does not apply to evidence that is probative for a purpose other than proving a person's character in order to show action in conformity therewith." Davis, 147 S.W.3d at 723. "KRE 404(b)(1) enumerates some of [these] `other purposes,' including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [These] listed purposes are illustrative rather than exhaustive.'" Id. (citing Lawson, supra, § 2.25[2], at 151). And, even so, such evidence must also pass the test of KRE 403. Thus, we review the admissibility of evidence of "other crimes, wrongs, or acts" under the three-part test set out in Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky.1994).
Once it is determined the evidence relates to "other crimes, wrongs or acts," the first inquiry under Bell concerns relevance: "Is the . . . evidence relevant for some purpose other than to prove the criminal disposition of the accused?" Id. "[E]vidence of criminal conduct apart from the crime charged is admissible if the evidence tends to prove a particular way of doing an act, or to prove a particular skill." Commonwealth v. Hodge, 380 Mass. 858, 406 N.E.2d 1015, 1019 (1980) (citing Commonwealth v. Davis, 376 Mass. 777, 384 N.E.2d 181 (1978)). Secondly, the probativeness of the evidence is examined: "Is evidence of the [other crime, wrong, or act] sufficiently probative of [its actual] commission by the accused to warrant its introduction into evidence?" Bell, 875 S.W.2d at 890. Finally, Bell instructs us to look at KRE 403 prejudice: "Does the potential for prejudice from the use of [this] evidence substantially outweigh its probative value?" Id.
The relevancy test is easily understood, while the probativeness "aspect of the Bell test relates to whether there is sufficient evidence that the `other crime, wrong, or act' actually occurred." Davis, 147 S.W.3d at 724. And, "[a]lthough relevant and probative, the evidence can still be excluded [under the prejudice test] if its probative value is substantially outweighed by its prejudicial effect." Id. at 725; KRE 403.
At trial, Felice testified that Meece had a black and white human silhouette target hanging outside his cubicle at ChemLawn with approximately twenty-six bullet holes in an upper body spray pattern.
Under the Bell test, this evidence was clearly relevant to establish Meece's ability, knowledge, and competency with pistols and their shooting. The evidence having established its occurrence meets the second test of probativeness.
Here, "the Commonwealth had the right to show the defendant's particular way of firing at targets representing human beings and his skill in doing so, through the use of evidence of his public acts in the practice of a reputable occupation." Hodge, 406 N.E.2d at 1019. In this case, it was an "upper-body spray." "This evidence, of course, was prejudicial to [Meece], but it was not unfairly prejudicial." United States v. Latorre, 922 F.2d 1, 8-9 (1st Cir.1990) ("The testimony about the prior [crime], if believed, established beyond any doubt that the [defendant] had the experience, skill, knowledge and resources to plan and carry out [another similar crime].").
Many people target practice and, many of those who do, are, or become, good shots. Quite plainly, there is nothing inherently wrong, or unduly prejudicial, with respect to this evidence—even the bragging about, or holding, the pistol with which he professed to have shot the target. Thus, the probative value of this evidence, his knowledge, ability, and competency with pistols, is not substantially outweighed by any undue prejudice, and it was therefore, admissible. There is no abuse of discretion here.
In drawing attention to the pistol he shot at the target, Meece pointed it at Felice during their discussion while they were at his apartment and dry-fired it twice.
Meece argues that the act of dry-firing towards Felice during his explanation of the weapon was nothing more than propensity evidence, as was prohibited in Arnett v. Commonwealth, 470 S.W.2d 834, 837 (Ky.1971). We note, however, that the brandishing of the weapon in Arnett, "tended to show acts which constituted the commission of another offense by the accused (drawing or flourishing a deadly weapon, KRS 435.200) at a different time and place." Id. In this instance, the handling, dry-firing, and explanation of Meece's use of the weapon was a demonstration of his knowledge and competency. Again, we find this evidence to have met the Bell test for admissibility.
The pointing of a pistol, however, at another person, whether loaded or not, would be characterized by any reasonable person as a wrongful or bad act, and therefore carries with it some prejudice. Yet, its value, in this instance, is not substantially outweighed by any undue prejudice his conduct may have brought about, as it demonstrated Meece's knowledge and handling of the pistol he used to make the holes in the silhouette. Therefore, we find no abuse of discretion.
Felice also testified that Meece said "that he had experience lying about himself with a straight face to people. He claims to be good at it . . . he said I can lie with a straight face and not feel bad about
Although a person who visits the murder victims in their home several nights before the murder in order to case the premises must exhibit some unusual control of his emotions and expressions, the other side of this evidence amounts to, "once a liar, always a liar." Given its introduction in the Commonwealth's case-in-chief, rather than having been explored on cross-examination of Meece with a foundation laid via KRE 613(a), it, at least, amounts to a preemptive attack on Meece's credibility prior to his testimony or the beginning of his defense. Moreover, it reflects upon a trait of character within the confines of KRE 404(b). As such, and given its tenuous connection to relevancy as surmised, we cannot help but view its probative value as minimal. Thus, we find its probative value was substantially outweighed by its danger of undue prejudice. KRE 403. Thus, the trial court abused its discretion in this instance and the admission of this comment preemptively attacking Meece's credibility was error.
That is not to say, however, that the error was harmful under our standards. See Winstead, 283 S.W.3d at 688-89 (regarding evidentiary error). This testimony was elicited from Felice rather quickly and was one of several comments allegedly made to her by Meece. Moreover, Meece's own defense and his subsequent denial of the offense was constructed around his alleged ability to lie and deceive people, even his friends.
During his testimony, Meece acknowledged that he had lied a lot in his life, and that he lost count of how many times he has lied to the State Police about this case. According to Meece, his statements of November 15 and December 15, 2004 were fabrications; the timelines and detailed information disclosed therein having come from his reading of the voluminous discovery. According to Meece, he wanted and entered into the original plea agreement solely to get a continuance, new counsel, and another trial. And, when asked if he was good and experienced at lying, he replied, "I'm not very good at it, but I'm experienced at it." He also acknowledged that, "at other times in my life, it [(lying)] has been a problem for me."
Clearly, a significant portion of his testimony concerned his ability and inclination to lie when it benefited him. According to his own defense, he had to be able to lie well, otherwise he could not have gotten the plea deal which gave him the continuance, new attorney, and new trial.
As a general rule, the erroneous admission of evidence in violation of state law is not a federal constitutional error. And, as the Supreme Court of the United States noted in United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983):
(Internal citations omitted); See also RCr 9.24. And, as we explained in Winstead:
283 S.W.3d at 688-689.
Given that Meece's defense was premised upon his videotaped statements of November 15 and December 15, 2004 having been successful lies, and considering the other evidence produced through his ex-wife and Wellnitz, this statement to Felice was indeed harmless.
Meece argues that this statement clearly conveys that he is a violent person who dislikes police. As such, he argues it has no relevance to the charges other than raising an impermissible inference concerning his propensity toward violence and should have therefore been excluded. We agree.
Admittedly, the general inclination here would be to characterize this statement (as to a hypothetical future event) as reflecting a propensity for violence, and therefore falling within the ambit of KRE 404(b), requiring review under the three Bell factors.
Thus, the first inquiry we make is whether the evidence is relevant for some purpose other than to prove the criminal disposition of the accused. We do not believe it is. Granted, the miniscule portion of the population of any civilized society that could commit such a crime as occurred here carries a propensity for violence. Yet, the existence of such a generalized propensity is not sufficient to pass our tests for the identity exception. Clark v. Commonwealth, 223 S.W.3d 90, 98 (Ky. 2007) (This "exception is met only if the conduct that meets the statutory elements evidences such a distinctive pattern as to rise to the level of a signature crime."). This is so, as generally such a propensity's undue prejudicial value is high enough to overwhelm the relative minimal probative value of such a generalized propensity. Thus, as here, the introduction of this statement was error.
An evidentiary error, however, may be deemed harmless, as we noted in Winstead, 283 S.W.3d at 689:
Here, the jury was aware from the evidence of the numerous contacts Meece had with the investigating officers during their lengthy investigation—contacts where nothing threatening to the officers ever
Felice also testified that "Meece made the comment, if you shoot, they'll find you. It may take them thirty years, but they'll find you and you will die when they do. They'll find you; they'll hunt you down like the dog that you are. They will treat you real mean."
Here, the gist of his statement is "you can't get away with murder." The statement was made in 1994 and Meece was not charged and arrested for the crime until almost a decade later. Essentially, however, it has very little, if any relevance and it takes a strained reading to construe it as an admission. Relevant evidence is evidence tending to make a fact or consequence more or less probable. KRE 401. In any event, it could be taken as nothing more than Meece's opinion, and its admission was error. That having been said, however, the comment is so innocuous in its wording and effect as to be harmless under our standards.
As to the last several comments here regarding Meece's "not being a nice person" who knows "how to kill people" because of his training and that it "all becomes a question of logistics," we have already addressed similar matters as to the relevancy and admissibility of such evidence, and again, we find their admission to have been error for the same reasons. However, given the other evidence adduced, i.e., his admission and Wellnitz's statements, the admission of this evidence was harmless.
The comment as to how to get rid of the other evidence of a crime is consistent with his confessional statements as to what he actually did with the various items. It is consistent with the fact that they were never found. Thus, a reasonable juror could have believed that all of these statements referred to and constituted admissions of the crimes charged. As such, these statements were admissible under KRE 801A(b) and outside KRE 404, since they were neither character evidence nor evidence of an "other" crime or bad act.
Thus, as to this evidence, we find no abuse of discretion by the trial court in admitting this evidence within the context of the evidence in this case.
Here, Felice testified, "[w]hen discussing how to act after a murder, I said I'd look guilty. He said, You just act like nothing ever happened, convince yourself it was no big deal.'" This comment reflects upon his psychological ability or capacity to deal with the results. As such, it deals with his character.
Concededly, it opens a circumstantial window to his mind, but one that for reasons we already mentioned was only minimally relevant in defining a person who could commit such a crime as occurred. And as such, it has no relation to any of the exceptions set out in KRE 404(b). Thus, as proof of a character trait, the admission violated KRE 404. Yet, again, when weighed against the other admissible
Meece's defense and admission were, like this, that he often lied to his friends and created scenarios and personalities. According to him, it was just role-playing.
Here, Meece argues that the evidence had no relevance to the case and was otherwise unduly prejudicial.
This argument ignores, however, the fact that the Wellnitzes were shot with 124 grain hollow point ammunition. In recognition of this tie-in to the crime, Meece also argues that the statement should have been redacted to remove the taint of the "fictitious" shoot-out. Yet, this context is important to explain Meece's choice of a "124 grain hollow point" for personal confrontations. Here, the statement is highly relevant and inextricably intertwined with the context within which it was stated. KRE 404(b)(2). Therefore, we find no abuse of discretion in the admission of this statement.
Again, Meece argues this evidence was irrelevant, but if the "head shot" comments were marginally relevant, he asserts that the portion beginning with "Good night" should have been excluded because of its undue prejudice. We agree.
Most would concede that it takes a certain amount of depravity to commit murders such as occurred to the Wellnitz family. Thus, a certain amount of insight into the psychological ability or capability of a defendant to plan and execute, and handle the emotional and psychological ramifications of the results can be relevant. But, this is exactly what KRE 404 prohibits. It is character evidence without the exactness necessary to meet the "identity" exception of KRE 404(b). See Clark, 223 S.W.3d at 96. But, again, its admission was harmless given his and Wellnitz's statements as to the actual events.
Meece argues that this evidence was not relevant and that it was unduly prejudicial. Admittedly, this evidence "was prejudicial to [Meece], but it was not unfairly prejudicial." Latorre, 922 F.2d at 8-9.
Here again, a reasonable juror could have believed that these statements referred to and constituted implicit admissions of the crimes charged as there was no proof that he had some other experience shooting people. And, the smell of cordite occurs even with target practice. Thus, it is not even a "bad act." Plainly, these statements were not introduced merely as evidence of another crime or an uncharged act, but as a statement from him of his own experience in these matters.
Meece makes the same argument with regard to this statement (that this evidence was not relevant and that it was unduly prejudicial).
When considered within the context of the other statements made and given that a reasonable juror could believe that by this, he was really referring to the Wellnitzes, this statement, again, is clearly relevant. Being relevant, its "probative value [was not] substantially outweighed by the danger of undue prejudice." KRE 403. Thus, we find no abuse of discretion here.
Meece argues this entire sequence is extremely prejudicial "because of the way it reflects on Meece's character. Only someone with a propensity for violence would plan someone's murder in such detail. But it has no relevance to the charged crimes." We disagree.
In fact, in his videotaped statements, Meece explained that he threw everything from the Wellnitz murders in a dumpster. Moreover, according to his statements, he surprised the Wellnitz family in the early morning hours. These statements are relevant to the question of Meece's ability and skill to plan and execute the Wellnitz murders. They do not deal with character and are consistent in large part with what occurred. Thus, a reasonable juror could have believed these statements reflected on the Wellnitz murders, and thus, they constituted admissions relative to the crimes. We find no abuse of discretion.
Meece also asserts that Officer Felice's surreptitious questioning of him violated his Fifth and Sixth Amendment rights to remain silent and to counsel under the United States Constitution, as well as under Sections Eleven and Fourteen of the Kentucky Constitution. Following an evidentiary hearing on October 8, 2004, the trial court disagreed, denying his motion to suppress Felice's testimony on these grounds.
In 1993, Meece agreed to submit to a polygraph examination at the Lexington Police Department. During the pre-interview work-up with the polygraph examiner, Detective Dell Jones of the Lexington Police Department, Meece became angry and terminated the examination when the questions veered to the Wellnitz murders.
Thereafter, according to Meece, the examiner purposely delayed unhooking him and continued to try to convince him to continue the exam for ten minutes, that is, until Meece threatened to rip the polygraph leads off. In addition, as he exited the examination room, he was met by police officers in the hallway and—as the officers tried to continue interrogating him—he told them that he had nothing else to say to them without the presence of a lawyer.
KSP Trooper Jeff Hancock testified at the hearing that Meece never indicated any desire for an attorney. Instead, Meece demanded that the officers call ahead or otherwise give him notice before they came back around or he (Meece) would consider their contact an act of hostility. Likewise, KSP Detective Roy Wheat testified that as he met Meece in the hallway after the termination of the polygraph examination, Meece indicated he did not want to talk to the police unless they called ahead and that anything less would be viewed as an act of hostility. According to Detective Wheat, Meece never indicated any desire to contact an attorney or to have an attorney present at any future meetings. Thereafter, the trial court made a finding that "[b]ased upon the testimony the court hereby finds that [Meece] did not invoke his Sixth Amendment right to counsel or his Fifth Amendment right to remain silent. Therefore, the subsequent questioning by Officer Felice will not be suppressed."
"When reviewing [a] trial court's findings of fact after a suppression hearing,
The court found that Meece did not assert his right to remain silent, nor invoke his right to counsel. "If the individual indicates in any matter, at any time prior to or during questioning, that he wishes to remain silent, interrogation must cease." Michigan v. Mosley, 423 U.S. 96, 99, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Yet, even when one does so, the assertion or invocation must be unequivocal. Davis v. United States, 512 U.S. 452, 460-61, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); See also Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) ("There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously."); Ragland v. Commonwealth, 191 S.W.3d 569, 586-87 (Ky.2006).
However, there is "no ritualistic formula or talismanic phrase [that] is essential in order to invoke the privilege against self-incrimination." Emspak v. United States, 349 U.S. 190, 194, 75 S.Ct. 687, 99 L.Ed. 997 (1955); See also Thompkins, 130 S.Ct. at 2260 ("Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his `right to cut off questioning.'") (quoting Mosley, 423 U.S. at 103, 96 S.Ct. 321).
In this instance, Meece was given Miranda warnings during the polygraph examination, and, prior to and after, terminating the polygraph, signed a waiver of his Miranda rights. He then left the station and now asserts he invoked his right to remain silent and his right to counsel and that this invocation barred any further questioning of him by Felice.
"Miranda, itself, was concerned only with custodial interrogation, which means questioning initiated by law enforcement officers after a person has been taken into custody." Soto, 139 S.W.3d at 845. "While a defendant is free `to terminate the questioning . . . [, to] control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation,' [Mosley, 423 U.S. at 103-04, 96 S.Ct. 321], there must be an indication that the defendant has invoked the right to remain silent." Bradley v. Meachum, 918 F.2d 338, 342-43 (2d Cir.1990). And, clearly, Miranda cannot be read "to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." Mosley, 423 U.S. at 102-03, 96 S.Ct. 321.
Moreover, in Maryland v. Shatzer, ___ U.S. ___, 130 S.Ct. 1213, 1222, 175 L.Ed.2d 1045 (2010), the United States Supreme Court determined that "[t]he only logical endpoint of [an] Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)] disability [i.e., a bar to further questions due to a request for counsel,] is termination of Miranda custody and any of its lingering effects. Without that limitation—and barring some purely arbitrary time-limit—every Edwards prohibition of custodial interrogation of a particular suspect would be eternal." The Court then noted:
Id. at 1223 (internal citations omitted).
Here, at some time after the Miranda warnings were given, and the waivers signed, Meece terminated the polygraph examination, got up, and left the premises, essentially telling the police officers that he was through talking and that if they wanted to talk to him again, they better call and check with him. Given the previous Miranda warnings, we view this as an invocation of his right to remain silent. See Thompkins, 130 S.Ct. at 2260. However, consistent with the trial court's findings, we find no invocation of his right to counsel. And, review of the evidence also indicates Meece's "right to cut off questioning" was fully respected, as the questioning ceased and he left the station.
Yet, there is absolutely no support in the record for any compulsion behind any of the statements Meece made to Felice. At no time was he in custody; neither was he under any compulsion sufficient to overcome his free will. As a co-worker
Here, the aborted polygraph interrogation of Meece occurred in late 1993. Officer Felice did not begin her association with him until March 1994. During the association there was no objective evidence of any compulsion, nor had Meece been charged at the time. Thus, we find no violation of Meece's Fifth and Sixth Amendment rights to remain silent or to counsel.
On June 28, 2006, Meece filed a pro se motion in limine seeking to prevent the Commonwealth from introducing "pieces and parts" of his taped statements to Officer Felice without playing all of the taped statements between himself and Felice. The complete tapes cover conversations between Meece and Felice during their association for a period of three weeks and last approximately sixty hours. On August 2, 2006, the trial court entered a written order passing consideration of Meece's motion "until such time as the statements are offered for introduction." At trial, however, the Commonwealth examined Felice about the statements, but never offered to play any of the taped statements. She was then cross-examined by the defense.
Citing to KRE 106, Meece argues that the prosecutor's questioning of Felice "fell far short of a complete picture of the circumstances of the interrogation" and, in the context of his statements, Meece argues his inability to play the lengthy tapes was error.
KRE 106 provides, "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part . . . which ought in fairness to be considered contemporaneously with it." In this respect, we have said:
Schrimsher v. Commonwealth, 190 S.W.3d 318, 331 (Ky.2006).
"Contrary to Appellant's position, KRE 106 does not `open the door' for introduction of the entire statement or make other portions thereof admissible for [just] any reason once an opposing party has introduced a portion of it." Id. Meece does not advise us as to how any statement quoted or paraphrased by Felice was somehow taken out of context or otherwise plucked from the recorded statements so as to mislead the jury as to its meaning. Thus, we find no error.
On October 18, 2004, Meece filed a motion in limine to prohibit the introduction of statements made by Wellnitz solely on the grounds that she was a co-defendant and would be tried separately, and,
During her testimony, however, Wellnitz essentially denied any knowledge of, or any participation in, the murders. According to her testimony at trial, there was no plan to kill her family. She and Meece were studying, feeding her cats, and getting coffee and gas in Lexington during the time of the murders. When questioned about the prior statements she made during her hour and a half long video statement of December 31, 2004 (which she had reviewed), Wellnitz admitted to having made some of the statements inquired of, denied some, and did not remember the others—asserting she was high on Seroquel at the time and had said what she had to say to get the plea bargain she wanted. Like Meece, according to Wellnitz, her story was concocted accurately from all the discovery materials she had read.
Following her cross-examination during the Commonwealth's case-in-chief,
When the tape was thereafter tendered for playing, the Commonwealth also tendered a transcript of the statement prepared by the Commonwealth. Meece's counsel objected on grounds that the audio portion of the videotape was clearly understandable, and thus, a transcript was unnecessary. The Commonwealth responded that the tape was, indeed, difficult to follow at times, and, thus, a transcript was appropriate. Both counsel agreed that the transcript was accurate.
A "trial judge has considerable discretion in determining whether testimony is `inconsistent' with prior statements; inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position." United States v. Dennis, 625 F.2d 782, 795 (8th Cir.1980) (citing United States v. Rogers, 549 F.2d 490,
In Porter v. Commonwealth, this Court dealt with "three separate and conflicting [taped] statements [of a co-defendant witness], all of which were heard by the jury." 892 S.W.2d 594, 595 (Ky.1995). The separate, but first conflicting taped statement was made at the co-defendant's arrest, another during his guilty plea in open court, and the last when he testified against another co-defendant at the co-defendant's trial. In summarizing the conflict between the statements, the Court noted:
Id.
Noting that the appellant in Porter argued that the co-defendant "did not deny making the earlier statement and acknowledged the truth of and the reasoning behind his having made his first statement to the police," we relied upon an earlier holding, noting that "[i]n Commonwealth v. Jackson, Ky., 281 S.W.2d 891, 896 (1955), the Court held that the required inconsistency exists when `the proffered statement and the witness' testimony lead to inconsistent conclusions,'" and affirmed the admission of the statements as inconsistent. Porter, 892 S.W.2d at 596.
Meece cites to Bratcher v. Commonwealth for a different result, arguing that in Bratcher, we upheld the exclusion of a prior taped statement on grounds that the witness' "statements were not prior inconsistent statements as contemplated by KRE 613 because he had already admitted that he lied at the prior suppression hearing." 151 S.W.3d 332, 342 (Ky.2004). We also noted that "[p]laying the videotape would have had no impeachment value and would simply have been cumulative." Id.
In his argument, however, Meece ignores the fact that our standard of review in such matters is one of abuse of discretion. In Bratcher, the appellant's claim was "that introduction of the tape would have enabled the jury to compare [the witness'] demeanor during the suppression hearing where he gave testimony under oath that he later admitted was a lie, with his demeanor during his testimony [to the contrary] at trial." Id. Thus, in addressing the matter, we noted "[s]o long as a reasonably complete picture of the witness' veracity, bias and motivation is developed, the judge enjoys power and discretion to set appropriate boundaries." Id. Therefore, in Bratcher, we held that, "[t]he trial court did not abuse its discretion in refusing to admit the videotape." Id.
Here, however, although Wellnitz did admit to having made several of the statements, she gave inconsistent statements or equivocated on other statements, asserting that she had been "high" at the time. As to the facts she did admit, she asserted that she had purposefully lied in order to get the plea bargain (LWOP-25) and told
Having affirmed the trial court's admission of the taped statement for the aforementioned reasons, we must also note that Meece made no request that any portion of the prior tape be redacted. Thus, two comments by Wellnitz in the taped statements that: (1) Meece was a hit man; and (2) that Wellnitz believed that Meece had a homosexual affair with Randy Appleton—she later married Appleton— got into the evidence.
However, reviewing the evidence as a whole, we are convinced that these two statements were harmless, as Wellnitz also testified that she had an affair with Meece, who was married, and that this was why her mother disapproved of her relationship with him. Moreover, as to the "hit man" comment, the jury was aware of statements he had made to Felice, and there were other comments from various witnesses (including his ex-wife, Meade) of his bragging of being a Navy SEAL and having been involved in "black ops."
Regina Meade was married to Meece from August 1991 through November 2000. Meece alleges that several statements she made during his trial were in violation of KRE 504(b).
KRE 504(b) establishes a marital communications privilege, to wit: "An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage. . . . A communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person." In this respect, we have noted that "[t]he term `confidential' did not include communications made within the hearing of another person, in the presence of another person, or which could have been observed by another person." Slaven v. Commonwealth, 962 S.W.2d 845, 851-52 (Ky.1997) (internal citations omitted).
Meade testified that in the early-morning hours before the Wellnitz family was killed, Meece came upstairs to her bedroom around 1:30 or 2:00 a.m. to tell her he and Wellnitz were leaving to get coffee. Although this statement was mentioned obliquely in Meece's memorandum accompanying his motion to exclude the testimony of Regina Meade pursuant to the "marital privilege," the memorandum did not argue for its exclusion, and therefore, the court, in its order regarding the marital privilege, did not address this statement. Nor did Meece make an objection to this testimony at trial. Even so, Wellnitz testified that she and Meece went out to get coffee and gas that morning.
It is undisputed that this conversation between Meece and Meade took place a couple of weeks after the murders and no one else was present. Moreover, the court ruled that this statement was barred by the marital privilege. KRE 504. Again, however, no objection, or request for admonition, was made to, or regarding, this statement when it came in inadvertently during trial.
This disclosure resulted when Meade was asked, "[d]id you tell them everything that you knew?," to which she replied, "[everything that I could." She was then asked by the Commonwealth, "[w]hat did you mean by that?," to which she replied haltingly, "[e]verything that I could remember—um, um [she paused]—and I was told by my ex-husband I was not allowed to talk to the state police or police in general. They were not allowed in my house."
Given the context of the question, although broad, it does not appear that the question was intentionally framed to elicit this response. Nevertheless, the evidence was heard by the jury without any objection or request for admonition by the defense. "A jury is presumed to follow an admonition to disregard evidence and [an] admonition thus cures any error." Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003).
There being no obvious connection to strategy under Sanders, however, we must consider "whether the . . . error was prejudicial. . . ." 801 S.W.2d at 668.
The statement here reflected that Meece did not want Meade talking to the police. In one respect, it is consistent with Meece's testimony that his life had been ruined solely by his association with Wellnitz and that during and after his association with her, he had been continuously harassed by the police. This sentiment was also—according to Meece and Wellnitz—the cornerstone of a letter Meece wrote to Wellnitz asking for money since his bare association with her had ruined his life. In another respect, it could also reflect a guilty state of mind. However, given the other evidence introduced—even from Meade and Wellnitz—we are convinced that this statement was harmless under our standards.
Meade also testified that Meece discussed "plausible deniability"—"knowledge without knowledge"—with her. He explained he was not telling her stuff so that if she was arrested, she could claim "plausible deniability" and that she did not know anything. Meece asserts this is error, albeit unpreserved. Having reviewed the testimony, however, we find no error,
Meade also testified that when she and Meece went with Wellnitz to the Wellnitzes' home a week after the murders to help pack stuff, Meece made statements to her about the murders.
Although Meade did not testify as to the specific statements that were made to her by Meece, i.e., the positioning of the bodies, she did acknowledge that Meece made statements to her about the murders. During this testimony, she could not remember if Wellnitz was there or not. No objection was made to the statement.
At the earlier evidentiary hearing on the question, Meade testified that Meece pointed out where "Joe's body" was. She also testified that when the statement was made, Wellnitz was in the adjacent kitchen, which was joined to the room in which the statements were made by an open, arched doorway. Here, the trial court heard the evidence, was aware of the size of the home, the proximity of the rooms to one another, and where the parties were at the time. We find these factual findings supported by substantial evidence. That being so, we find no abuse of discretion, or error, in the admission of this statement, as there could be no expectation of privacy with Wellnitz in the adjacent, open room next to them.
Meade also testified that Meece claimed to be an ex-Navy SEAL when he met her at the age of sixteen, and told her that he knew where to hit someone with a bullet to put them down—that a hit to the head would kill a person instantly. Again, no motions were made to prohibit this specific testimony, nor was an objection made at trial following the statement. Moreover, the context within which the answer was given, indicates that the statement was made before the parties' marriage, when they had just begun dating. Therefore, we find no violation of KRE 504.
Meece argues that his Due Process rights were violated by the prosecution's failure to correct Meade's testimony in regard to any agreements she had with the Commonwealth concerning her testimony. Meece further argues that her testimony was perjurous and this was known to the Commonwealth, citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) ("[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. . . . The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.").
"A person is guilty of perjury in the first degree when he makes a material false statement, which he does not believe, in
The Commonwealth asserts, among other arguments, that since the Commonwealth's agreements with Meade were disclosed to the defense in writing three years prior to the trial and again to Meece and counsel at a subsequent hearing two years before the trial, it was the defense's obligation to clear up any confusion while the witness was on the stand at the time. In this regard, Meece offers no explanation as to why no further attempt was made to impeach Meade's testimony to the extent it was anything other than a misunderstanding or innocent oversight.
Meece was extensively involved in the oversight and preparation of his defense and filed numerous pro se motions, one of which was an apparently prophetic pro se motion to bar the prosecutor from introducing false evidence.
However, in its earlier written discovery response of June 30, 2003, the Commonwealth had disclosed:
(Emphasis added). And, at a later hearing in 2004 in the presence of the trial judge, Meece, and his counsel, Commonwealth's Attorney Brian Wright, again summarized the above-referenced agreement, stating:
Following her direct testimony for the Commonwealth, Meade was questioned on cross-examination. Close to the end of her cross-examination, she was asked by the defense, and answered:
Following this colloquy, defense counsel moved on to other areas of inquiry, and after a while, closed the cross-examination. At no time during cross-examination was Meade ever really pressed by the defense on her answers, and neither she, the judge, nor the jury, were provided with a copy of the Commonwealth's written discovery response, nor was the court asked to take judicial notice of the matter. On re-direct, the Commonwealth did not address the matter.
"In order to establish prosecutorial misconduct . . ., the defendant must show (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false.'" Commonwealth v. Spaulding, 991 S.W.2d 651, 654 (Ky.1999) (quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989)). "When [such] perjured testimony could `in any reasonable likelihood have affected the judgment of the jury,' the knowing use by the prosecutor of perjured testimony results in a denial of due process under the Fourteenth Amendment and a new trial is required." Commonwealth v. Spaulding, 991 S.W.2d 651, 655-56 (Ky.1999) (quoting Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).
This rule, however, does not apply if the defendant's failure to impeach the witness's allegedly false testimony is strategic or tactical. Jenkins v. Artuz, 294 F.3d 284, 295 (2d Cir.2002). As was noted in Jenkins:
Jenkins, 294 F.3d at 295. Thus,
Beltran v. Cockrell, 294 F.3d 730, 736 (5th Cir.2002). Therefore,
Evans v. United States, 408 F.2d 369, 370 (7th Cir.1969) (quoting Green v. United States, 256 F.2d 483, 484 (1st Cir.1958)); See also Decker v. United States, 378 F.2d 245, 251 (6th Cir.1967).
In this case, the discovery was substantial—so much so that Meece, and Wellnitz, testified that they "accurately" constructed their allegedly false confessions from it. Moreover, Meece was strongly involved in the discovery process through directions and complaints to counsel, complaints to the court about counsel not having followed or complied with his demands and requests, and numerous pro se motions for discovery and exclusion, as well as having been present at the discovery hearings. In fact, he was present at the discovery hearing when the Commonwealth's Attorney, Brian Wright, again summarized the testimony Meece alleges was false.
Meece complained of this "falsified testimony" in his pro se motion for a new trial filed prior to his sentencing. And, as demonstrated by his pre-trial motion to exclude "false testimony," he knew the law on this subject as well as anyone in the courtroom. Thus, whether the misstatement by Meade was intentional or innocent under the circumstances, given that no explanation for his failure to impeach Meade is given or apparent from the context of the alleged occurrence, one may only conclude that the failure to impeach Meade upon this allegedly false statement was strategic and tactical.
The agreement that the Commonwealth offered to Meade during her first statement of 2002 was disclosed in the 2003 discovery response and could have been used to refresh her memory, or with the court's permission, as an exhibit in order to impeach her after which she could have explained her answer. Moreover, the court was present during Brian Wright's summary of the agreement during the hearing, and, if asked at trial, could have intervened to see that the jury was fully apprised of the circumstances. See KRE 201.
None of this occurred, as it was not requested, which leads to the conclusion that the failure to pursue this matter at a time when it could have been clarified was a strategic or tactical decision. See Sanders, 801 S.W.2d at 668; See also Barham, 595 F.2d at 243, n. 7.
Meece also complains of four hearsay comments made during the testimony of Justin Manley and Meade, none of which were preserved.
During Manley's testimony, he testified that Wellnitz said of Meece: "He's crazy. He says he was, you know, he's killed people, and he's, and he's been in the CIA and stuff like that." This statement occurred when Manley was speaking with Wellnitz (then his wife) regarding a letter he had just read from Meece to her requesting money.
This statement was similar to statements Meece had been making since high school, when he first met Meade, telling her that he was a Navy SEAL. As Randy Appleton—another close friend at
As indicated, Manley also testified as to having read a letter from Meece to Wellnitz. In his recollection, the letter demanded money from Wellnitz "for services [Meece had] rendered so long ago." According to Manley, Wellnitz took the letter, shredded it, and threw it in the trash. Wellnitz admitted she tore it up and threw it away. And, according to Manley, when Wellnitz was asked why she shredded the letter, she stated the letter could be used as evidence against her.
Although at trial, both Wellnitz and Meece attempted to downplay the significance of the letter, both, in their separate taped statements (Wellnitz's of December 31, 2004 and Meece's of November 15, 2004), acknowledged its tenor. In Meece's statement, he said "I sent her a letter in 2000, probably in August, through her grandmother, again hinting at the same thing, I was contemplating coming to the police if she didn't pay me." In her statement, Wellnitz said: "He sent me a letter saying that his life had been ruined and that he had read some book about the witness protection program ... and that if I didn't give him enough money to start a lawn care service that he was going to go to the police and confess as a hit man and get put in the witness protection program to Hawaii."
During trial, Wellnitz was asked about the letter by the Commonwealth. She admitted that Meece had sent her a letter, but did not know the date, yet believed it was a couple of years before they were arrested. According to her testimony at trial, the essence of the letter was that she should give Meece some money to start a business, because his knowing her had ruined his life. On cross-examination by Meece's counsel, she again reiterated that the request was for money because his knowing her had ruined his life. However, she did not perceive the letter as blackmail and did not mention that the request was for "services rendered."
She did acknowledge that the letter was no longer in existence but asserted that Manley had lied about the content of the letter to hurt her as he had previously written her a note to the effect that he knew the letter existed and if she did not let him see their child, he would go to the State Police and ruin her life, even though he knew his version of it was not true. Thus, according to Wellnitz, Manley said "he would tell the police that Meece was wanting to get paid for something." During her testimony, however, she was not asked about her alleged statement to Manley that the letter was destroyed as it "could be used as evidence against [her], you know." This predicate was required. KRE 613.
"A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is: (1) Inconsistent with the declarant's testimony...." KRE 801A(a). KRE 613(a) provides:
Our precedent has "consistently required strict compliance with the foundation requirements of ... KRE 613(a)." Noel v. Commonwealth, 76 S.W.3d 923, 930 (Ky. 2002). The intent of the rule is to first give the witness an opportunity to admit and explain the statement, but if the witness denies it, he may then be impeached by it under KRE 801A(a)(1).
As Wellnitz was not asked about the statement, its elicitation from Manley was error. Yet, given the context—that she had told Manley years before, when they first met, that she was under suspicion, and "that she was innocent, but people in, back in Columbia, Kentucky thought that she was responsible for her family's death"—the impact of the statement, however, was, at best, minimal. Moreover, she admitted in her testimony that the letter no longer existed, denied that it ever said what Manley said it did, and in her statement of December 31, 2004, admitted to tearing it up and throwing it away. In this context, given the other valid evidence introduced, this error was harmless.
Meece also alleges that Wellnitz's statement (as related by Meade) that "Dennis was not supposed to be there!" was hearsay and, thus, error, for reasons that the statements were made by Wellnitz some two hours after the killings and Wellnitz had certainly had time to distance herself from the killings.
Granted, an excited utterance is one made "so near in point of time as to exclude the presumption that it was the result of premeditation or design." Consolidated Coach Corp. v. Earls' Adm'r, 263 Ky. 814, 94 S.W.2d 6, 8 (1936). However, we have never restricted this rule to statements made only during the event perceived. Quite to the contrary, an excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." KRE 803(2). For an out-of-court statement to qualify for admission under KRE 803(2), "`it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation.'" Noel, 76 S.W.3d at 926 (quoting United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980)). Factors relevant to a determination of whether an out-of-court statement is admissible under KRE 803(2) are:
Noel, 76 S.W.3d at 926 (quoting Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (1998)).
These factors are not to be used as a "true-false test for admissibility but, rather, [as] guidelines to be considered in determining admissibility." Id. In Noel, we held the statement at issue inadmissible, as it was made "more than twenty-four hours after the first opportunity to report." Noel, 76 S.W.3d at 927. However,
Here, given the relatively short time lapse between the murders and Meece and Wellnitz's arrival at Meade's Lexington home, the fact that she was "freaking out," saying "she couldn't believe it happened— Dennis wasn't supposed to be there!" and Meece's attempts to calm her down with statements that "everything will be okay— you need to get home before the police find out and call," we are convinced that Wellnitz's statements were "excited utterances." KRE 803(2). Thus, we find no error.
Meade also testified that Wellnitz and Meece returned to her apartment that morning and that Meece was carrying a safe. Meade was then asked by the Commonwealth, "did [Meece] tell you where the safe had come from?" Meade responded that Wellnitz said the safe "came from the house." No objection was made to this non-responsive answer.
Meade later testified that she believed the safe had been opened before it was brought into the house and that she and Meece later had a key made for the safe and she started using it for herself. She turned it over to the Kentucky State Police in 2002. She and Meece later bought another smaller safe.
Wellnitz's statement was allegedly made at the time of their entry into Meade's house around 6:30 or 7:00 a.m. According to Meade, Wellnitz was "freaking out" and saying things like: "I can't believe that it happened. Dennis wasn't supposed to be there!" According to Meade, Wellnitz said if she thought about what happened, that she would lose it. Meanwhile, Meece was trying to calm her down and telling her everything would be okay. He told her she needed to get home before the police found out and called. This entry into the house and the referenced conversation occurred within several hours of the murder of the Wellnitz family.
Given the fact that the statement was made upon Meece and Wellnitz's reentry into Meade's home in the early-morning hours, several hours away from the site of the murders, in Columbia, Kentucky and that they came in carrying a safe, with Meece wearing different clothes than he had left in, and with Wellnitz "freaking out" and making statements that "Dennis shouldn't have been there," the fact that Meade said that Wellnitz said the safe had come from the house added very little to the picture painted by this evidence and could have had absolutely no impact, or sway, on the jury's verdict given this and other evidence. Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. Meece, himself, acknowledged in his November 15, 2004 videotaped statement that he took the safe. Thus, it was harmless.
Meece also complains of the testimony by Torston Rhodes, Director of Engineering for the Sentry Safe Company, the company that made the safe allegedly taken from the Wellnitz home. According to Rhodes, Sentry Safe quit making this safe
Although Meece's original objection to Rhodes' testimony was that it was speculative, once Rhodes was excused from the witness stand following cross-examination, Meece objected on the grounds of hearsay, in that his testimony was based upon a review of company records and information received from other employees of Sentry Safe.
However, the trial court properly exercised its discretion in finding that the witness, as Director of Engineering for Sentry Safe Company, was qualified to express an opinion about his company's past practices. As we have noted, "there is absolutely nothing improper about basing an expert opinion on Tacts and data... made known to the expert at or before the hearing.'" Baraka v. Commonwealth, 194 S.W.3d 313, 314-15 (Ky.2006) (quoting KRE 703(a)).
Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky.1996), is simply not applicable. That case dealt only with the erroneous admission of a facsimile copy of a computer printout of the defendant's prior convictions and charges. Id. Nor is Fulcher v. Motley, 444 F.3d 791 (6th Cir.2006), applicable. That case involved the admission of an unavailable accomplice's out-of-court statement implicating the defendant in the crime. Id. at 798. As we noted in Baraka, "[i]t has been long held that such underlying factual assumptions are properly left for scrutiny during cross-examination." 194 S.W.3d at 315. This is "the primary means by which trial counsel can attempt to persuade jurors of the weight or significance to be attached to the testimony of the witnesses." Brown v. Commonwealth, 934 S.W.2d 242, 247 (Ky.1996). Thus, we find no error.
Meece also complains of the introduction of evidence attempting to connect him and Wellnitz with Wicca worship and the occult, although no objections were made to the introduction of the evidence at trial.
Although this issue cropped up early in the investigation—there was a book of the occult on Beth Wellnitz's nightstand and Wellnitz had a black candle in her bedroom along with a freshman term paper on human sacrifice among the ancient Incan Indians—the prosecutor introduced the jury to this possible occult component in his opening statement. During this statement,
In her statement of December 31, 2004, Wellnitz indicated that they and several of their friends had talked about setting up a commune. According to her, Meece even had a business plan for a commune entitled "Blackwatch Enterprises." It was to be a "David Koresh" kind of colony. In fact, as part of the inducement for the murders, Meece "was promised to get to have his little dream commune" at the Wellnitz farm. Nevertheless, Wellnitz testified that the murders had nothing to do with "Wiccan anything," and that she had only been to "one Wiccan [inaudible] once at Transylvania University and one informational meeting." When asked in her taped statement, however what she would personally gain from the murder of her family and why she went along with it so easily, Wellnitz replied "the commune." When asked why there was never a commune thereafter, she indicated that when her family died the farm was pretty well bankrupt and had to be sold.
In his November 15, 2004 statement, Meece admitted there was "some discussion about whether or not [Meade] and I and my daughter could move onto the farm, I guess there's a cabin on the back of the farm." Moreover, he stated that he was "somewhat involved in some very heavy spiritual issues and that could be called occult, including vampirism and some other things and some magic. As is always said, magic attracts magic, which is personally what attracted me to [Wellnitz] to begin with, and that was a mutual attraction." He explained that "Wicca is an earth-based religion that is encompassing of a long list of beliefs, mostly in elemental —elemental-spiritual powers, that is— witches, warlocks, earth, wind, fire, water, uh, spirits, ghosts, demons, encompasses all of that—good, evil, in an elemental sort of sense." When asked in his first taped statement whether anything of that nature was ever part of what happened, he responded:
(Emphasis added). In his second statement, Meece acknowledged that Wellnitz had told him something to the effect that her mother, Beth Wellnitz, "thought we were a cult ... cultists because my ex-wife
In this regard, in the guilt phase closing argument, the prosecutor stated:
Citing to Dyer v. Commonwealth, 816 S.W.2d 647 (Ky.1991), Meece contends such evidence was nothing more than propensity (character) evidence and was, thus, inadmissible under KRE 404(a). See also State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655, 664 (2007); Mitchell v. State, 298 S.C. 186, 379 S.E.2d 123 (1989); Flanagan v. State, 109 Nev. 50, 846 P.2d 1053, 1056 (1993). Theer, however, addressed conduct which occurred after the murder yet, nevertheless, held it to be harmless under the evidence introduced. 639 S.E.2d 655. Mitchell "dealt with impermissible character evidence supplied in a case where the prosecution had no direct evidence to link the defendant to the crime." Walls v. South Carolina Dept. of Corrections at Perry Correctional Inst, 2009 WL 2423750, p. 5 (D.S.C. Aug. 5, 2009). And, in Flanagan, the evidence of the occult and membership in a "coven" also had no connection or relevance to the crime. As such, the court stated "[t]he prosecution may not raise the issue of appellants' religious beliefs for the bare purpose of demonstrating appellants' bad character. By violating this prohibition, the prosecution invited the jury to try appellants for heresy." 846 P.2d at 1058-59. Flanagan, however, acknowledges that "constitutionally protected activity is admissible ... if it is used for something more than general character evidence." Id., at 1056.
In English, 993 S.W.2d at 943, we noted with regard to KRE 404(b) that:
See also Clark v. O'Dea, 257 F.3d 498, 502 (6th Cir.2001) ("A review of the record demonstrates that the Commonwealth presented evidence ... to substantiate its theory that Warford's death was motivated by the performance of a Satanic ritual. The fact that the Commonwealth's overall proof on this issue in retrospect was not strong does not detract from the initial admissibility of the evidence in question.").
Here, according to Meece, Wellnitz had indicated to him that her mother, Beth Wellnitz, thought they were occultists because Meece and his wife, Meade, were or had been involved in Wicca or witchcraft of some sort. And, according to Wellnitz, part of Meece's compensation for the murders was that he "was promised to get to have his little dream commune" at the Wellnitz farm. According to Wellnitz, except for the bankruptcy and sale of the property after the murders, this probably would have happened. Moreover, as Meece noted, "magic attracts magic, which is personally what attracted me to [Wellnitz] to begin with, and that was a mutual attraction." In this same regard, Meece also noted that "any occult involvement in these murders was entirely secondary to a financial gain motive." (Emphasis added).
Thus, the evidence established attraction between the two key players in the murders as well as motives, all of which were appropriate under KRE 404(b).
Dell Jones was a polygraphist with the Lexington Police Department. In 1993, he began to give Meece a polygraph. However, when the questions turned to the Wellnitz murders, rather than the purchase of the Browning Hi-Power pistol as he alleged he had agreed to, Meece demanded the polygraph cease. According to Jones, from the time of Meece's request to terminate the polygraph, and during the process of his disconnecting the leads from Meece, their conversations dealt only with
Prior to trial, Meece moved pro se to suppress any statement he may have made to Jones on grounds that the waivers were ineffective and his Miranda rights were violated for reasons that he was deceived as to the real purpose for the questioning. According to Meece, he and Detective Wheat had agreed that he would take a polygraph in regard to the Browning Hi-Power pistol. The attempted interrogation, however, dealt with the murders. Because of this, and other alleged coercive actions, Meece contended the waiver was invalid and his Miranda rights were violated, compelling suppression of any statements made to Jones. Following an evidentiary hearing at which Jones testified, the trial court denied the motion, finding the statements Meece made to Jones were voluntary.
In testifying at trial about conversations during this testing,
Meece now argues that, as the Commonwealth failed to prove that his statement to Jones regarding the number of shots fired was not proven to have occurred prior to the attachment of his Miranda rights upon his demand for termination of the test, the admission of the statement was error in violation of Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."). This request must be "scrupulously honored." Mosley, 423 U.S. at 104, 96 S.Ct. 321.
Here, Jones's testimony at the suppression hearing supports a finding that no conversations occurred between Meece and him following the termination and during his disconnection of the leads from Meece except in regard to his explanation of the final waiver Meece needed to sign and an explanation of the testing procedure and questions. Meece, during this time, was becoming agitated and threatened to pull the leads off if Jones did not take them off. Thus, there is no factual basis from which to infer that Meece's statement as to the number of rounds fired during the murder occurred after his demand for termination.
Meece's conduct during the trial discloses exceptional intellectual abilities and his argument that he was deceived as to the nature of the test is unavailing. He was aware of the nature of the test as the questions were asked. He further admits that he was advised by Jones that "you don't have to stay here if you don't want to.... if at any time during this test you want to be out of here, you let me know and you're out." And he did leave. Accordingly, we find no error in the trial court's admission of Jones's testimony.
Meece gave a statement to Detective Wheat at Randy Appleton's apartment
In this conversation, Meece discussed with Wheat his sale of the Browning Hi-Power pistol to an "unnamed" person. And, at the time, he was not in custody. Following the conversation, Wheat and the other officers left Appleton's premises.
Plainly, "coercive police activity is a necessary predicate to the finding that a confession is not Voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Thus, again, we find no error as there is no evidence to indicate the conversations were anything but voluntary.
Contrary to her videotaped statement, during her examination by the Commonwealth at trial, Wellnitz attempted to testify that there was no plan to kill her family and that she and Meece were in Lexington during the time of the killings. During her examination, Wellnitz attempted on several occasions to explain her prior statements by saying that she had lied to get the plea bargain she got and that she was "high" during the statement. Thus, the Commonwealth questioned her extensively concerning prior statements she had made during her videotaped statements.
Following the Commonwealth's closing of her direct examination, the defense propounded questions designed to support her testimony, including that she did not remember much of her December 31, 2004, statement, the statement was concocted accurately from all the particulars available to her from discovery, as well as her access to alleged medications while in jail.
Thereafter, on redirect, the Commonwealth followed up briefly on her testimony regarding her guilty plea in an effort to impeach her testimony. This impeachment purpose is obvious from the context. Moreover, counsel for Meece made no objection to Wellnitz's mention on direct examination of having pled just to get the plea bargain, nor to the Commonwealth's redirect examination that she pled to life without parole for twenty-five years. Thus, this issue is unpreserved.
As aforementioned, we review unpreserved allegations of error in death penalty cases under the standard established in Sanders, 801 S.W.2d at 668; See also Soto v. Commonwealth, 139 S.W.3d 827, 848 (Ky.2004). Here, clearly, Meece's failure to object was trial strategy, as Wellnitz's testimony regarding her statement supported Meece's testimony that his statements were also untruthful. Moreover, it was obviously beneficial to Meece for the jury to know that his alleged accomplice only got life without parole for twenty-five years, which was an option in his sentencing. Still, Meece asserts error predicated upon Commonwealth v. Gaines, 13 S.W.3d 923 (Ky.2000), Parido v. Commonwealth, 547 S.W.2d 125 (Ky.1977), and Tipton v. Commonwealth, 640 S.W.2d 818 (Ky.1982).
In Parido, we plainly stated that, as the witness' "credibility was not an issue, the admission of evidence concerning his guilty plea and the assessed maximum penalty of
In this instance, the Commonwealth did not seek to elicit information about the "guilty plea" on its direct examination. It was volunteered by Wellnitz and supportive of Meece's positions. Thus, the Commonwealth's inquiry of Wellnitz in regard to her plan and sentence was clearly for purposes of impeachment. Thus, aside from Meece's strategy, we find no error.
In addition to diagrams of the crime scene, at trial the Commonwealth played a videotape of the scene and victims during the testimony of the coroner. Thereafter, during the testimony of a KSP detective, twelve photographs of the victims were shown to the jury. Kentucky State Medical Examiner, Barbara Weakley-Jones, also testified extensively about the wounds to each of the bodies and introduced eight enlarged wound charts, as well as nineteen autopsy photographs of the Wellnitz family. Although he failed to preserve this issue at trial, Meece now argues that, as the videotapes and photographs were unnecessary to prove any point in actual controversy, their use was error. We disagree.
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401. Moreover, photographic or video presentations are simply not excludable because they are gruesome and the crime is heinous. Bedell v. Commonwealth, 870 S.W.2d 779 (Ky.1993); Epperson v. Commonwealth, 809 S.W.2d 835 (Ky.1990); Holland v. Commonwealth, 703 S.W.2d 876 (Ky.1985); Gall v. Commonwealth 607 S.W.2d 97 (Ky. 1980) overruled on other grounds by Payne v. Commonwealth, 623 S.W.2d 867 (Ky.1981).
Here, all of the crime scene videos and photographs were relevant to show the circumstances of the crime and the nature of the injuries inflicted by Meece. Not only did these photographs aid the medical examiner in explaining the nature and cause of the victims' injuries and their ultimate deaths, but they also helped establish that the person who inflicted the wounds intended to cause the victims' deaths, as did the crime scene diagrams and videotapes. And, unlike the photographs in Clark v. Commonwealth, 833 S.W.2d 793 (Ky.1991), and Funk v. Commonwealth, 842 S.W.2d 476 (Ky.1992), the photographs and videos in the present case did not depict mutilation, decomposition, or decay not directly related to the crime.
Where depictions relate to an element of the case, a defendant may not deprive the Commonwealth of its right to prove its case by stipulating or not contesting issues to which the proof relates. There was no error here.
During the presentation of his defense, Meece recalled Wellnitz to the stand.
Meece argued, however, that it was not being offered for the truth of the matter asserted, but was non-hearsay (state of mind) evidence admissible under KRE 801(c), offered only to explain her actions. Thereafter, the trial judge reiterated that the testimony was hearsay and admonished the jury not to consider her previous statements regarding what she was told.
Crane, however, "never questioned the power of [the] States to exclude evidence through the application of evidentiary
"An objection on hearsay grounds will often be met with a claim that the statements in question are being offered as non-hearsay. The key to determining whether such a claim is legitimate, or merely a pretext for violating the hearsay rule, is a proper application of the relevancy requirement." Lawson, supra, § 8.05(3), at 558. Relevancy, in this respect, "does not turn on whether the information asserted tends to prove or disprove an issue in controversy, but on whether the action taken by the [witness] in response to the information that was furnished is an issue in controversy." Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky.1988) (plurality op.) overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky.2006).
Here, Wellnitz's state of mind during her statement was an issue, as the jury was presented with her contrasting statements—those made while on trial professing her innocence versus those made in her videotaped statement. Thus, its exclusion was error.
However, given the considerable amount of time she spent during her testimony explaining why she made her confession, notwithstanding her professed innocence, the error was harmless. She was, in fact, allowed to testify that she confessed because, based upon her conversations with her attorney and the literature he gave her, and her desire not to put her grandmother and son through the process of crying and begging for her during the sentencing phase, she decided to confess to get a lighter sentence, since she believed that she would not get a fair trial and would be convicted and given the death penalty otherwise. This was repeated time after time.
Thus, the exclusion of the few particulars she may have added by her recitation of her attorney's statements to her was harmless.
Prior to trial, Meece asked the trial court to take judicial notice of a recitation of fact contained in a related Court of Appeals' opinion dealing with visitation rights in Meece and Meade's dissolution proceeding. In its recitation of facts, the Court of Appeals' opinion stated:
(Emphasis added).
At trial, Meece established during Meade's testimony that the charges she filed against him had been dismissed. Meade denied, however, that the charges were untrue.
Under KRE 201, a court may take judicial notice, or take notice of a fact which is not subject to reasonable dispute in that it is either: "(1) generally known within in the county from which the jurors are drawn, or, in a nonjury matter, the county in which the venue of the action is fixed; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." KRE 201(b). If so taken, "[t]he court shall instruct the jury to accept as conclusive any fact judicially noticed." KRE 201(g).
Here, we are not dealing with a question arising within the knowledge of the community of jurors, but rather, whether its accuracy is "capable of accurate and ready determination." This has been referred to as the "authoritative sources test." Lawson, supra, § 1.00[3][c], at 10. In this regard, Professor Lawson has noted:
Id. (quoting Evidence Rules Study Committee, Kentucky Rules of Evidence—Final Draft, p. 16 (Nov.1989)).
"[W]hen facts do not possess this requisite degree of certainty, the basic standards on which the system of evidence is based require formal proof within the framework of the adversarial system." Id. (quoting 1 Joseph McLaughlin, Weinstein's Federal Evidence, § 201.02[2] (2d ed.2003)). Of course, there is some stringency in the application of KRE 201, "because accepting disputed factual propositions about a case `not tested in the crucible of trial is a sharp departure from standard practice.'" United States v. Hoyts Cinemas Corp., 380 F.3d 558, 570 (1st Cir.2004) (quoting Lussier v. Runyon, 50 F.3d 1103, 1114 (1st Cir. 1995)). Moreover, some courts take the position that "were [it] permissible for a court to take judicial notice of a fact merely because it had been found to be true in some other action, the doctrine of collateral estoppel would be superfluous." Taylor v. Charter Medical Corp., 162 F.3d 827, 830 (5th Cir.1998); See also Liberty Mat. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992); Holloway v. A.L. Lockhart, 813 F.2d 874, 878-79 (8th Cir.1987); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994).
Although a finding of fact may satisfy the indisputability requirement of KRE 201, the requirement has not been satisfied in this case as the proposed fact to be noticed was a county attorney's alleged reason for dismissing the charge. Thus, if true, it was his opinion only—without any support in any underlying court adjudication. Thus, we find no error.
During examination of Meece, his counsel sought to use copies of two letters
Opining that Meece had opened the door to this information, the trial court deferred its ruling until after the Commonwealth's cross-examination. Meece's counsel renewed his request the next day following his closing argument. At this time, the motion to redact was overruled.
Meece now claims that it was reversible error for the trial court to deny him the requested redaction of the two letters. However, it was obvious from the evidence, including Meece's own testimony, that he was incarcerated while awaiting trial.
During the sentencing phase, Meece testified about his love for his three children and his difficulty in corresponding with them due to their mother's uncooperativeness. He also noted that he had not seen his children since the December 2004 meeting facilitated by the withdrawn plea bargain. He was, however, able to correspond with them during several summers when they were at summer camp. In essence, Meece testified that he loved his children and when they could communicate with him, they assured him of their love. Meece's testimony in this regard was uncontested.
As part of this testimony, however, Meece offered copies of several letters he had written to the children while they were at summer camp and several they had written in return. All the letters were excluded on the grounds of hearsay.
While we acknowledge, "[w]e think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision," Gregg v. Georgia, 428 U.S. 153, 204, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), such evidence must still come in under our Rules of Evidence.
This exception deals with a "declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling,
Love, and the capacity to exhibit such, is both an emotional condition and a sensation. Thus, if otherwise relevant, the letters were admissible. And, as aforenoted, we have recognized that brief glimpses of the love a family has for one another can be relevant. Thus, we find that, for purposes of sentencing, glimpses of the bonds between family members and defendants, as well as the victims, are admissible within bounds, for whatever value a jury would give them. See McQueen, 669 S.W.2d 519; Hilbert, 162 S.W.3d 921.
To this extent, the court erred in excluding the letters. However, given the fact of Meece's uncontested testimony about the love between himself and his estranged children, the error is harmless.
David Kaplan was Meade's counsel in her divorce from Meece. Just prior to Meece's guilty plea, Kaplan faxed Brian Wright (the Commonwealth's Attorney prosecuting Meece) a letter stating that if Meece would plead guilty, his wife would agree to allow him a visit with his children so he could explain to them why he would be spending the rest of his life in prison. A copy of the letter was given by Wright to Meece's then-defense counsel. During his testimony, Meece offered a copy of the fax into evidence in support of his evidentiary position that he gave false statements and falsely pled guilty to get this visit with his children,
When offered, the Commonwealth objected on the grounds of hearsay and the court sustained the objection. Meece now asserts that the exclusion was error for reasons the fax was admissible under KRE 801A(b)(2), (3), and (4), and, in the alternative, were it to be hearsay, its exclusion violated the holding of Chambers, 410 U.S. at 302, 93 S.Ct. 1038, i.e., that state hearsay rules must give way to a defendant's right to present a defense.
KRE 801A(b) provides, in essential part, that:
Under KRE 801A(b), the statement must be one "offered against a party." Id. Here, the fax was offered against the Commonwealth without any proof that it had "manifested an adoption or belief in its truth," KRE 801A(b)(2), other than the fact that it received and transmitted the letter from Meade's counsel; or, that the statement was made "by a person authorized by the [Commonwealth] to make a statement concerning the subject," KRE 801A(b)(3), (i.e., David Kaplan); or, that David Kaplan was the Commonwealth's agent for the purpose of facilitating the plea negotiations. Thus, we find no error.
Even so, Meece was not prevented from testifying as to his version of the genesis for his plea agreement. He did so extensively. Thus, in no sense of the word, was Meece denied "a meaningful opportunity to present a complete defense." Crane, 476 U.S. at 690, 106 S.Ct. 2142. And, Chambers, as asserted by Meece, dealt with a significantly different hearsay exception. Thus, even were we to find error in this instance, it would be harmless.
During Meece's case-in-chief, he sought to introduce testimony from Diane Haynes concerning a phone conversation she overheard between Joseph Wellnitz and an unknown third party. The trial court excluded this testimony on grounds of hearsay and relevancy. On avowal, Haynes testified that in the days before their deaths, she was in the Wellnitz's family room with Mr. and Mrs. Wellnitz, when Mr. Wellnitz received a threatening phone call from someone regarding some animals. He spoke with Mrs. Wellnitz about it and Haynes felt concerned about it.
Meece now contends this exclusion impeded his constitutional right to due process to present a defense and evidence of an alternate perpetrator. See Beaty v. Commonwealth, 125 S.W.3d 196 (Ky.2003); Blair v. Commonwealth, 144 S.W.3d 801 (Ky.2004).
Meece "is correct ... that under both the Kentucky and the United States Constitutions, he has the right to present a complete and meaningful defense." Brown, 313 S.W.3d at 624-25 (citing Beaty v. Commonwealth, 125 S.W.3d 196 (Ky.2003)); Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). "A defendant is not at liberty, however, `to present unsupported theories... and invite the jury to speculate as to some cause [for the crime] other than one supported by the evidence.'" Brown, 313 S.W.3d at 625 (quoting Davenport v. Commonwealth, 177 S.W.3d 763, 772 (Ky.2005) (internal citations and quotation marks omitted)). Thus, "[a] trial court may infringe upon this right when the defense theory is `unsupported,' `speculative],' and `far-fetched' and could thereby confuse or mislead the jury." Beaty, 125 S.W.3d at 207 (alteration in original, internal citations omitted).
In this instance, there was no evidence to support the caller having committed any crime. Thus, this evidence was "unsupported, speculative], and far-fetched and could thereby confuse or mislead the jury." Id. (internal quotation marks omitted). There was no abuse of discretion. Thus, again we find no error.
Meece asserts that the trial court erred by preventing him from talking to
Whatever role a defendant may play in a trial, when he takes the stand, he is a witness. "[W]hen a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel's advice." Perry v. Leeke, 488 U.S. 272, 281, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989); See also Beckham v. Commonwealth, 248 S.W.3d 547, 554 (Ky.2008) ("As the Court held in Perry, `we do not believe the defendant has a constitutional right to discuss [his] testimony while it is in process.'").
Moreover, during the June 1, 2010 hearing, when inquired of by the court, Meece asserted that he did not wish to act as his own co-counsel. He also asserted that he did not wish to participate as counsel during trial. Here, in any event, he was the witness.
Meece also complains that the court improperly barred his counsel from interviewing Meade during an overnight recess in the course of her ongoing testimony. However, a "judge's power to control the progress and, within the limits of the adversary system, the shape of the trial includes broad power to sequester witnesses before, during, and after their testimony." Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (citing Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893)); United States v. Robinson, 502 F.2d 894 (7th Cir.1974); United States v. Eastwood, 489 F.2d 818, 821 (5th Cir.1974). Moreover:
Geders, 425 U.S. at 87, 96 S.Ct. 1330.
In Geders, "[t]he trial judge ... sequestered all witnesses for both prosecution and defense and before each recess instructed the testifying witness not to discuss his testimony with anyone. Applied to non-party witnesses who were present to give evidence, the orders were [found to be] within sound judicial discretion...." Id. at 87-88, 96 S.Ct. 1330.
In Beckham, we upheld a trial court's admonition limiting a defendant and his counsel's contact by directing the attorneys not to discuss their "clients ongoing testimony." Beckham, 248 S.W.3d at 553-54. Moreover, we have held that "`[t]he rule clearly does not restrict trial counsel's freedom to confer with his own witness during [a recess during the] trial.'" Smith v. Miller, 127 S.W.3d 644, 646 (Ky.2004) (quoting Reams v. Stutler, 642 S.W.2d 586, 589 (Ky.1982) ("The admonition [disapproved of] was given when a recess was called interrupting respondent's direct examination of Dr. Lyon.")).
Here, Meade was a non-party witness and, as such, the only thing to discuss with her would relate to her testimony, whether already given or to be given the next day. Such a discussion would violate the premises for the rule of sequestration. There was no prohibition of any discussion or investigation of her prior to her testimony, or, for that matter, afterwards—only during her testimony. Thus, we find no error.
Meece also alleges that the trial court erred when it allowed two former lead detectives on the case, Roy Wheat and Dennis Benningfield, to sit at counsel table during the trial.
A similar circumstance was addressed in United States v. Phibbs, 999 F.2d 1053 (6th Cir.1993), in reference to FRE 615(3), a rule identical, in pertinent part, to our KRE 615.
Id.
Likewise, in this case, Wheat and Benningfield were, for the most part, the lead investigators responsible for different periods of time. Given the unique nature and complexity of the case, the vast time period of investigation, and the length and complexity of the trial, the trial court did not abuse its discretion in allowing both to remain at counsel's table to advise the prosecution in its handling of the case.
Meece asserts here that the court erred by placing impermissible restrictions on individual voir dire, alleging that the defense was not allowed to ask jurors their feelings about the death penalty, or about what purpose they thought the death penalty served, or about the specific mitigator of mercy.
During its general statement to the jury at the beginning of the panel's voir dire, the trial court explained the general trial procedure, including the initial guilt phase and the subsequent sentencing phase, along with the requirement of findings of aggravating circumstances prior to the consideration of death as a penalty. Included in this general guidance, the court also explained the interplay of mitigating circumstances, including fairness and mercy, pointing out that even if aggravating circumstances were found beyond a reasonable doubt and no mitigating circumstances were found, death was not mandated. Thereafter, the court began with individual voir dire.
Prior to allowing individual voir dire by counsel, the court explained the range of punishments available to the jury were they to find Meece guilty, including finding the required aggravators beyond a reasonable doubt. The court then inquired of each juror as to whether or not that juror could give serious and meaningful consideration to the entire range of punishment and then, again, made inquiries of each juror as to each of the authorized punishments: a term of years, a life sentence, LWOP-25, and death. The court then inquired as to any juror's prior knowledge concerning the case. Following the court's inquiry, further inquiry as to the juror's proper knowledge, consideration
"[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Fields v. Commonwealth, 274 S.W.3d 375, 393 (Ky.2008) (quoting Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)). However, "it is within the trial court's discretion to limit the scope of voir dire." Fields, 274 S.W.3d at 393 (citing Webb v. Commonwealth, 314 S.W.2d 543, 545 (Ky.1958)). And, appellate review of such a limitation is one for an abuse of discretion. Hayes v. Commonwealth, 175 S.W.3d 574, 583 (Ky. 2005). In this regard, questions as to what a juror's feelings were about the death penalty or what purpose they thought the death penalty or the death penalty's deterrent effect served were properly prohibited. Woodall v. Commonwealth, 63 S.W.3d 104, 117 (Ky.2001); Hodge, 17 S.W.3d at 839.
We have said that "[t]he test for abuse of discretion in this respect is whether an anticipated response to the precluded question would afford the basis for a peremptory challenge or a challenge for cause." Hayes, 175 S.W.3d at 583. However, "[t]he mere fact that more detailed questioning might have somehow helped the accused in exercising peremptory challenges does not suffice to show abuse of... discretion in conducting the examination." Woodall, 63 S.W.3d at 116. Here, counsel were given sufficient leeway in their questioning to develop their challenges for cause.
Meece also complains that after the first several jurors, he was not allowed to question the remaining jurors concerning the specific mitigator of mercy. However, Meece's counsel did include mercy as a mitigator in questions to other jurors.
Meece also alleges additional errors associated with jury selection. These issues were preserved.
He first argues that the court erred in excusing jurors D.S., C.W., and K.D. for cause as they did not express such views as would prevent or substantially impair the performance of their duties in determining the facts and following the court's instructions on the law.
As this Court noted in Brown v. Commonwealth:
313 S.W.3d 577, 596 (Ky.2010).
Further, as noted in Brown:
Brown v. Commonwealth, 313 S.W.3d at 598-99 (alterations in original). Thus,
Id. Moreover,
Harris v. Commonwealth, 313 S.W.3d 40, 47 (Ky.2010).
Having reviewed the colloquy between the court and counsel in regard to Jurors D.S., C.S., and K.D., we find no abuse of discretion by the trial court in its excusal of these jurors for cause.
Juror D.S. was asked, and answered:
Juror C.S. was asked, and answered:
Juror K.D. was asked, and answered:
Following this colloquy between the trial judge and Juror K.D., there was an objection and a bench conference between the attorneys and the court primarily regarding Juror K.D. having formed an opinion about the case, thereafter, the Commonwealth resumed its voir dire of this juror.
From the total context of their answers, we cannot say that the trial court abused its discretion in excusing them under these circumstances. Moreover, as the trial court recognized in its rulings, K.D. acknowledged that he had previously formed an opinion of Meece's guilt. See Montgomery v. Commonwealth, 819 S.W.2d 713, 716 (Ky.1991). Thus, we find no error in the trial court's excusal of these jurors for cause.
During voir dire, Meece challenged Jurors L.W., D.M., S.P., and C.H. for cause. Each challenge was overruled, and subsequently, each of the jurors was removed by a peremptory strike. Meece now alleges error in the failure to remove these juror for cause.
When questioned initially by the court during individual voir dire, L.W. stated that he would give serious and meaningful consideration to all the possible sentences from a term of years up through the death penalty. Thereafter, he was questioned by Meece's counsel, Mr. Eustis, wherein he was asked, and answered:
Thereafter, he was examined by the Commonwealth, and was asked and answered as follows:
D.M., in response to the court's initial inquiry during individual voir dire, also indicated that he could give serious and meaningful consideration to each of the penalty options from the lower term of years all the way up through the death penalty. Thereafter, upon questioning by Meece's counsel, he was asked and answered:
Thereafter, upon further examination by the Commonwealth during voir dire, the witness acknowledged that he would be able to consider all the ranges of punishment before deciding upon which punishment would be appropriate.
S.P. also acknowledged to the court during voir dire that he could give serious and meaningful consideration to the full penalty range. To be sure, he was asked by the court and answered:
S.P. was a college professor. Later, Meece's counsel suggested that some people consider themselves "eye-for-eye" people, and asked S.P. if he was one of them. S.P. responded in the affirmative. S.P. then explained that if you are found guilty of a crime, there should be a "fitting punishment." He was then asked by Meece's counsel, and answered:
S.P. was then asked by defense counsel whether or not he had witnessed the incident between defense counsel and Meece that morning when he came into the courtroom. S.P. acknowledged he had heard Meece make some comment when he came into the courtroom, but that he did not recall what was said and it did not make an impression on him. S.P. was then questioned again by the Commonwealth, and was asked and answered:
In denying the challenge for cause, the court noted:
When challenged for cause upon the primary ground that her deliberations might be affected by the earlier spat in the courtroom between Meece and counsel, the court denied the challenge, noting:
In Hodge v. Commonwealth, we pointed out that the juror in question:
17 S.W.3d 824, 837 (Ky.2000). And for good reason, we reiterated:
Id. (quoting Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky.1994)).
In Hodge, we found no error in the trial court's refusal to strike the juror for cause on the grounds aforementioned. Here, L.W., D.M., and S.P. all responded to the court's specific inquiries to the effect that they could give serious and meaningful consideration to each of the penalty options. Only while being led by Meece's counsel did any of them respond with any preferences or hesitations. Such responses—guided by adversarial counsel—are not unexpected, they are quite common in voir dire prior to final jury selections. Jurors are not experienced or knowledgeable in the law, nor are they expected to be. Their function is one of fact finding, guided under the auspices of the court's instructions as to the law. Aside from any determinations of bias, a critical analysis is whether a juror will follow the instructions on the law as given by the court and can give serious, meaningful, and fair consideration to the full range of penalties. See Springer v. Commonwealth, 998 S.W.2d 439, 456 (Ky.1999).
"In making this determination, the trial court is to consider the prospective juror's voir dire responses as well as his or her demeanor during the course of voir dire, and is to keep in mind that generally it is the [totality] of those circumstances and not the response to any single question that reveals impartiality or the lack of it." Brown, 313 S.W.3d at 596. As we reiterated in Shane, 243 S.W.3d at 338, "impartiality is not a technical question but a state of mind." Based on the foregoing, we find no abuse of discretion in the trial court's denial of Meece's challenges for cause in regard to L.W., D.M., and S.P.
Considering the objection to C.H., the trial court found that she was a highly educated and an intelligent individual who would make an outstanding juror. Acknowledging that she had somewhat of a negative impression of Meece's incident in the courtroom, the trial court denied the motion to strike for cause on grounds that
Here, C.H. did not hear what Meece said, but indicated she could tell that he was "upset with the other lawyer." She also noted that Meece's counsel made comments to him at the time but could not recall what those statements were. She did indicate, however, that the incident left her with a "negative impression," but stated it would probably not affect how she judged Meece if she were picked for the jury.
The incident referred to involved a testy exchange made by Meece to the Commonwealth's Attorney as Meece entered the courtroom early and at a time when several prospective jurors were in there. During the exchange, Meece was also admonished by his own counsel, although it does not appear that any of the jurors contested actually overheard, or could remember, what was said. It is clear, however, that the incident was not inadvertent and that it was instigated by Meece. Given the effect of the incident on C.H., and for that matter S.P., Meece also argues that he was improperly deprived of the peremptory strikes he used to excuse these jurors, due to the court's error in failing to excuse them under RCr 9.36(1). We disagree.
A defendant is guaranteed the right to a fair and impartial jury. U.S. Const, amend. 6, 14; Ky. Const. §§ 2, 7, 11; RCr 9.36(1). To ensure this right, the defendant may challenge a juror for cause "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence...." RCr 9.36. Where the court fails to uphold these rights of a defendant, resulting in his or her use of a peremptory strike to remove such jurors from the panel, such failure is error under Shane v. Commonwealth, 243 S.W.3d 336 (Ky.2007). These rights, however, may be waived by the defendant's own intentional conduct. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In fact, to the extent such conduct is egregious enough, a defendant may be removed from the courtroom during his trial. Id.; RCr 8.28(2).
Shane, upon which Meece relies, simply did not deal with the possibility of bias created by a defendant's own intentional conduct. In this regard, where a defendant's own intentional conduct creates the basis for the allegations of error, we have long recognized an exception to general rules for reasons that "[a] court must guard against allowing a defendant to profit from his own wrong in this way." Allen, 397 U.S. at 345, 90 S.Ct. 1057. This is so because "[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated." Id. at 343, 90 S.Ct. 1057. Such a view protects "the interest of society in an orderly judicial process and is necessary to prevent the paralysis of criminal proceedings and turning them into a farce." Scott v. Commonwealth, 616 S.W.2d 39, 43 (Ky. 1981). The manner and method employed, however, to achieve such protection, must be measured by the need. See Allen, 397 U.S. at 343-47, 90 S.Ct. 1057.
Essentially here, Meece challenges Jurors S.P. and C.H. on additional grounds that his improper conduct made them think less of him, and thus, they could no longer be fair and impartial. Were such the rule, then, of course, a defendant could control the course of a trial by intentionally creating disturbances that caused juror excusals, necessitated continuances, and terminated trials, at their discretion, by mistrial. Such a rule would give to a defendant the right to control the trial,
For this reason, we find no abuse of discretion in the court's failure to excuse S.P. or C.H. on this issue.
Meece further argues that the trial court committed error when the trial court failed to remove jurors C.C., N.J., B.H., and J.M. for cause, suggesting they were unqualified to sit on this case. However, when asked by the trial court following their individual voir dire as to whether he had any motions as to these jurors, Meece's counsel responded "no." We find no error here.
C.C. indicated that he could give serious and meaningful consideration to the full range of penalties. He then stated that if he found Meece guilty of intentional murder, he would pick one of the top two sentences. He then indicated that he may be "reading too much into the court's hypothetical" and stated the sentence imposed would depend on the evidence. After clarification by the court, he agreed that he could consider the full penalty range. Thereafter, during questioning by the Commonwealth and Meece's counsel, C.C. indicated his willingness to consider mitigating evidence, as well as aggravating evidence and made it clear to Meece's counsel that he was definitely not an "automatic death penalty guy." He expressly stated that he could foresee a set of facts or circumstances for which a lesser penalty of twenty to fifty years would be appropriate for an aggravated murder and pointed out that he would consider all the evidence before considering the entire range of the penalties. No motion was made by Meece's counsel to strike C.C. Given this and C.C's statement that he was definitely not an "automatic death penalty guy," it was obviously Meece's strategy to keep him on the jury. Given the totality of the circumstances, the trial court did not abuse its discretion in allowing C.C. to remain on the jury.
B.H. was informed by Meece's counsel that some people refuse to consider certain mitigating factors such as a person's background or upbringing and was then asked whether he was that kind of person. He replied that "he would say that it is a possibility of being considered," but he would have to see what the evidence was. Thereafter, he agreed with counsel that he accepted the concept that mitigating factors such as background are to be considered before choosing which sentence to impose and reiterated that he was not an "eye-for-eye" kind of person and would need to hear all of the evidence before setting the sentence. Again, when asked if there were any motions toward this juror, Meece's counsel responded, "no."
Given the totality of his responses, B.H. was obviously willing and able to considered mitigating evidence presented before choosing a sentence. Thus, he did not hold views that "would prevent or substantially impair" the performance of his duties as a juror, and the trial court properly permitted him to serve in this case. See Wainwright, 469 U.S. at 414, 105 S.Ct. 844. Moreover, given his response that he was not an "eye-for-eye" kind of person, his selection by Meece was obviously strategy. No error exists as to B.H.
M.J. indicated that she had heard part of a story about the case on the Sunday night news. From that story, she learned that three people had been murdered, and that a woman, a sister and daughter to the victims, was involved. She believed that the woman implicated had pled guilty but recently "recanted her plea." She was not aware of Meece's involvement in the murders and expressly indicated that she had not formed any opinion in the case and was willing and able to give Meece the presumption of innocence.
"There is no per se rule that mere exposure to media reports about a case merits exclusion of a juror. To the contrary, in order to merit disqualification of a juror, the media reports must engender a predisposition or bias that cannot be put aside, requiring the juror to decide a case one way or the other." McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir.1996). Even the fact that a juror has read news stories about a case during the course of the trial is not automatically grounds to exclude a juror or declare a mistrial. Byrd v. Commonwealth, 825 S.W.2d 272, 275 (Ky.1992) overruled on other grounds by Shadowen v. Commonwealth, 82 S.W.3d 896 (Ky.2002). Having reviewed the totality of her answers, we again conclude the trial court did not abuse its discretion as to this juror. Again, however, we must acknowledge the obvious strategy in Meece's failure to object to this juror given her limited recollection of Wellnitz's plea and sentencing.
Thus, even aside from Meece's strategy,
Meece also argues, without citation to authority, that the failure to videotape the individual voir dire of the jurors violated his due process rights to a record appropriate for a meaningful appellate review.
In ruling on this motion, the court noted that sixty-nine jurors had already been individually voir dired on audiotape only, and since the court had promised the jurors that they were not normally on videotape in any trial, he was not going to put them on videotape in this instance. Thus, the request was denied. Of the three jurors of whom Meece now complains, only K.D.'s individual voir dire occurred after the request for videotaping.
This Court has vested the trial court with broad discretion to oversee the entire process of jury selection. Fields, 274 S.W.3d 375; Soto, 139 S.W.3d 827. In this regard, this Court has never promulgated a rule or procedure that directs jurors be visibly shown in a videotape of the proceedings. Moreover, until recent years, such proceedings were stenographically transcribed.
Thus, we "adopted videotaping technology as a means to further the ends of justice," Deemer v. Finger, 817 S.W.2d 435, 437 (Ky.1990), and have not, to date, directed that the jury be included within the video (rather, only the audio), nor have we provided the means to do so, as this Court has long felt that preservation of the colloquy between the court, counsel, and the jury is sufficiently preserved by the audiotape. Thus, we find no error.
Here, Meece asserts that the process of death qualification violates fundamental guarantees of equal protection and due process, and denies a defendant a representative jury of his peers. Again, however, both this Court and the United States Supreme Court have rejected this argument. Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987); Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Thompson, 147 S.W.3d at 53; St Clair, 140 S.W.3d at 553; Caudill, 120 S.W.3d at 678; Sanders v. Commonwealth, 801 S.W.2d 665 (Ky.1990). Thus, this argument is without merit.
Meece also contends that as many as thirteen prospective jurors were improperly excused due to their religious beliefs. Having viewed the record, we find this assertion to be incorrect.
To the contrary, the trial court never inquired as to what religion any of these jurors practiced. The inquiry was focused on whether or not each prospective juror could give serious and meaningful consideration to each available penalty, including the death penalty. Where they could not, they were excused. See Mabe, 884 S.W.2d at 671; Harper v. Commonwealth, 694 S.W.2d 665, 668 (Ky. 1985) overruled on other grounds by Barnett v. Commonwealth, 317 S.W.3d 49 (Ky.
Following the court's oral entry of sentence on October 20, 2006, Meece filed an additional (second) motion for new trial, alleging the possible misconduct of a juror during an interview given to WLEX-TV in Lexington, Kentucky on the evening of the sentencing.
The formal entry of the court's sentence (from October 20) occurred on November 13, 2006. The judgment and sentence did not address the October 20 motion. Thereafter, Meece filed a motion to proceed in forma pauperis on November 16, 2006, which was granted on November 27, 2006. His notice of appeal was filed of record on November 27, 2006. According to the record, no ruling has ever been sought or made in the trial court concerning this second motion for new trial alleging possible juror misconduct in the television interview. Thus, even should we desire to do so, there is no record upon which we could review this alleged error.
Although "[a] juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot," RCr 10.04, we noted, in Bowling v. Commonwealth, 168 S.W.3d 2, 7 (Ky.2004), that "[t]o obtain a new trial because of juror mendacity, `a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.'" Bowling, 168 S.W.3d at 9 (quoting Adkins v. Commonwealth, 96 S.W.3d 779,
Here, although Meece's second motion for a new trial, grounded on the alleged WLEX interview, was filed before formal entry of his judgment and sentence on the jury verdict, our Rules of "Procedure do not contemplate or permit the staying of the time for taking an appeal indefinitely by the filing of a series of motions for a new trial." Taylor v. Warman, 331 S.W.2d 899, 900 (Ky.1960). Nor does RCr 10.06(2), allowing a party to "move the appellate court for a stay of the proceedings in the appellate court," apply, as Meece's second post-trial motion was "filed before the ... appeal." Johnson v. Commonwealth, 17 S.W.3d 109, 113 (Ky. 2000).
Thus, we are left with Meece's allegations which raise only the possibility of such conduct and with no record by which to substantiate it. We also note that Meece was not joined in the motion by his appointed counsel and that no subsequent motions were made to bring the matter to the trial court's attention.
There being no record from which we may conduct a fair review, we decline to address this issue further in the context of this direct appeal.
Meece argues that the trial court's jury instructions for first-degree robbery and first-degree burglary were erroneous as they failed to require the jury's determination of whether a "firearm" was used and whether it constituted a "deadly weapon." He argues United States v. Gaudin, 515 U.S. 506, 510-15, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) which certainly hold that the jury should determine the essential elements of an offense, including application of law to fact, such as whether or not a pistol is a "deadly weapon."
Robbery in the first degree, KRS 515.020, is committed:
[W]hen, in the course of committing theft, [a person] uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
Here, the jury was instructed that it must find beyond a reasonable doubt:
C. That when he did so, he was armed with a firearm.
In this regard, the jury was instructed that it must find beyond a reasonable doubt:
AND
E. That Joseph Wellnitz, Elizabeth Wellnitz, and Dennis Wellnitz were not participants in the crime.
Thus, Meece argues that the robbery instruction failed to require a finding that the "firearm" used was a deadly weapon. On the burglary instruction, he argues that the jury was not required to make a determination whether a "firearm" was used and whether it constituted a "deadly weapon."
In the first-degree robbery instruction, the court gave a combined instruction: robbery in the first degree under KRS 515.020(1)(b) ("armed with a deadly weapon" (a firearm)) and KRS 515.020(1)(c) ("uses ... a dangerous instrument [a firearm] upon any person who is not a participant in the crime"). It did not use, however, the term "deadly weapon" or the term "dangerous instrument." "Though not every `dangerous instrument' is a `deadly weapon,' a 'deadly weapon' ordinarily is a `dangerous instrument' as well." Whorton v. Commonwealth, 570 S.W.2d 627, 631 (Ky.1978) rev'd on other grounds by Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) and overruled on other grounds by Polk v. Commonwealth, 679 S.W.2d 231 (Ky.1984). Here, the term used by the court—a "firearm"—is
In a similar case, Thacker v. Commonwealth, 194 S.W.3d 287, 290-91 (Ky.2006), we acknowledged that "[i]n [United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)], the Supreme Court held that the jury should have been entitled to decide the entire essential element, including the application of law to fact," i.e., whether the weapon used was in fact a "deadly weapon" or a "dangerous instrument." However, following Neder v. United States, 527 U.S. 1 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), we acknowledged that the instructional error was harmless. Thacker, 194 S.W.3d at 291. Here, the trial court erred in a similar manner, and, again, following precedent, we find this error to be harmless in this instance.
That is not to say we will continue to do so should trial errors such as this continue. The finding of harmless error should not be used blindly as a means to continue a practice this Court has previously condemned as error. Id. ("This ... ensures that the jury ultimately determines the essential elements of the offense, and acts in accordance with the law.")
In the trial court's instructions for firstdegree burglary, the court gave a combined instruction under KRS 511.020(1)(a) ("armed with ... a deadly weapon") and KRS 511.020(1)(b) ("causes physical injury to any person who is not a participant in the crime"), as well as KRS 511.020(1)(c) ("uses ... a dangerous instrument against any person who is not a participant in the crime"). Again, the evidence fully supported either of these theories, however, as to the court's two theories involving the "deadly weapon," (i.e., armed with or its use) the jury was not allowed to make the determination as to whether the firearm was a "deadly weapon." "Based on the structure of the jury instruction in this case, it appears that the jury was only allowed to make a determination on whether [Meece used] the object in question and that the judge presupposed that the object was a deadly weapon. We have previously found this to be error." Wright v. Commonwealth, 239 S.W.3d 63, 67 (Ky.2007).
However, again, in Wright, we acknowledged that "[a]n error regarding an erroneous jury instruction that omits an essential element of the offense is subject to harmless-error analysis." Id. at 68 (citing Neder, 527 U.S. 1, 119 S.Ct. 1827). Moreover,
Wright, 239 S.W.3d at 68.
Applying our analysis in Thacker and Wright, supra, there is no doubt, given the evidence in this case, that these errors were harmless. Again, however, we caution the bench and bar that the principles of Gaudin are to be followed.
Meece also argues the trial court erred in connection with the penalty phase instructions.
The instructions regarding mitigating circumstances
Meece contends that this instructional format misleads the jury into believing that the requirement of unanimity also applied to any mitigating circumstances, thereby preventing their application upon his behalf in violation of constitutional standards commanding a fair trial, due process, and reliable sentencing. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg, 428 U.S. at 193, 96 S.Ct. 2909. We disagree, as `"[t]he instructions did not imply that unanimity was required on mitigators and there is no requirement that a jury be instructed that their findings on mitigation need not be unanimous.'" Hunt v. Commonwealth, 304 S.W.3d 15, 50 (Ky. 2009), as corrected (Jan. 6, 2010), as modified on denial of reh'g (Mar. 18, 2010) (quoting Mills v. Commonwealth, 996 S.W.2d 473, 492 (Ky.1999)); See also Soto, 139 S.W.3d 827, 870; Caudill v. Commonwealth, 120 S.W.3d 635, 674-75 (Ky.2003); Bowling, 873 S.W.2d at 180.
Here, Meece asserts the court erred by not defining "mitigating circumstances," failing to include a "standard of proof for such evidence, and failing to make it clear to the jury how such evidence may be used in rejecting death as a penalty. However, contrary to this assertion, the jury was instructed on mitigating circumstances under instruction three. See, supra.
Moreover, because KRS 532.025(2) "is stated in mandatory terms and includes the language, `any mitigating factor ... which may be supported by the evidence'.... the quantum of evidence necessary to sustain a penalty phase [mitigating] instruction is clearly less" than that required
Moreover, considering the instructions given, "there is no reasonable possibility that the jury misunderstands] its role in the capital sentencing procedure or misunderstands] the meaning and function of mitigating circumstances." Peek v. Kemp, 784 F.2d 1479, 1494 (11th Cir.1986); See also Skaggs v. Commonwealth, 694 S.W.2d 672, 679 (Ky.1985) ("A careful examination of the entire jury charge indicated that the jury knew it could recommend a [lower] sentence even if it found an aggravating circumstance beyond a reasonable doubt."). Thus, we find no error here.
Meece also contends that the penalty phase instructions were erroneous because they failed to require the jury to prepare written mitigation findings, suggesting that Smith v. Commonwealth, 599 S.W.2d 900 (Ky.1980) should be overruled. We disagree, and "find no compelling need to reconsider this settled issue," Hunt, 304 S.W.3d at 51, as we have previously reiterated, "[t]here is no requirement that the jury make written findings on mitigation." Skaggs, 694 S.W.2d at 680.
Meece contends that it was error to fail to include an instruction requiring the jury to make findings concerning non-statutory aggravators. However, the court's instructions specifically set out the aggravating circumstances in instruction number four. They were: the Murder was committed during the commission of a Burglary in the First Degree; or the Murder was committed during the commission of a Robbery in the First Degree; or the Defendant committed the offense of Murder for profit; or the acts of killing were intentional and resulted in multiple deaths.
Moreover, the jury was instructed under instruction five that they could not:
(Emphasis added). Thereafter, the jury unanimously found that all four of the stated aggravating circumstances existed beyond a reasonable doubt. Clearly, then, in this Commonwealth, "[t]he death penalty may not be imposed without a finding of a statutory aggravating factor beyond a reasonable doubt." Hunt, 304 S.W.3d at 51. Thus, there is no merit to this argument.
Meece also contends that the instructions did not specifically limit aggravating evidence to the facts enumerated in the instructions. This argument is vague and unsupported by the record as previously disclosed. In fact, the instruction specifically listed the aggravators and required their finding beyond a reasonable doubt.
Here, Meece complains that the use of multiple aggravators for each of the three murders creates a significant risk that the jury may give undue weight to the mere number of aggravators found. He further suggests that when the same aggravating factors apply in separate charges, he is essentially condemned multiple times for the same culpable act. However, we recognized in Bowling v. Commonwealth, 942 S.W.2d 293, 308 (Ky. 1997):
See also Furnish, 95 S.W.3d at 51 ("Appellant argues that the improper cumulation of aggravating circumstances caused the jury to give undue weight to the mere number of aggravators and constitutes double jeopardy. We disagree."). Nor do we find it to constitute cruel and unusual punishment.
Meece also contends that the form of the verdict improperly results in the imposition of death or a LWOP-25 if an aggravator is found beyond a reasonable doubt. Again, this argument is meritless.
Instruction number five advised the jury that they could fix Meece's punishment for the separate murders of the Wellnitz family at anywhere between a sentence for a term of years up to death, and then stated:
Thus, "[t]he instructions when considered as a whole, make it clear that the jury was not required to impose a death sentence merely upon a finding of aggravating circumstances." Hunt, 304 S.W.3d at 51.
Meece complains here of the addition of the definition of "for profit" as suggested in Cooper, Kentucky Instructions to Juries § 12.06, to the effect that: "`[f]or profit' means with a motive of `a hope to obtain financial gain' or `a hope to avoid financial loss.'" Although KRS 532.025(2)(a)(4) contains no definition of the language "for the purpose of receiving money or any other thing of monetary value, or for other profit," we find no error in the use of this definition under the evidence adduced in this case as the statutory language imposes no statutory recitation as to the time one is expected to receive value (or that he must actually receive value) for the commission of the crime—it says only that the crime be committed "for the purpose of receiving money or any other thing of monetary value, or
Meece also suggests the jury should have been instructed that it could have returned a sentence of less than death even if it found aggravators but did not find the existence of any mitigators. Again, we disagree, as the instructions here were adequate to so apprise the jury. See Caudill, 120 S.W.3d at 674 ("There was no need to instruct the jury that it could impose a life sentence even if it found an aggravating factor beyond a reasonable doubt").
Moreover, under a similar instruction, we have previously found that "[t]he jury was well aware that it need not sentence [Meece] to death even if it found an aggravating circumstance." Skaggs, 694 S.W.2d at 679. Furthermore:
Caudill, 120 S.W.3d at 674. And, here, in voir dire, the jurors were specifically told this by the trial court. Thus, these instructions did not violate Meece's due process rights or reliable sentencing rights. See Smith, 599 S.W.2d 900.
On this issue, Meece argues that the reasonable doubt sentencing instruction impermissibly suggested that Meece could be sentenced to a lesser punishment "only if there were a reasonable doubt death was the proper penalty." We disagree. When read as a whole, and as explained at trial, the format of the instructions leaves little doubt that all of the sentences lesser than death were available for the jury. See Caudill, 120 S.W.3d at 674. Thus, we find no error.
Meece further argues that the jury should have been instructed that, if sentenced to death, Meece would be "killed by lethal injection" and that an instruction should have been given to accurately inform the jury about parole; issues for which Meece gives no citations to authority.
Plainly, a jury need not be told that "death means death," or that a condemned inmate is not eligible for parole, or that life without the possibility of parole for twenty-five years means what it says. People v. Smith, 30 Cal.4th 581, 134 Cal.Rptr.2d 1, 68 P.3d 302, 339 (2003); State v. Bush, 942 S.W.2d 489, 522-23 (Tenn.1997); State v. Jones, 474 So.2d 919 (La.1985); State v. Brown, 306 N.C. 151, 293 S.E.2d 569 (1982). We should "give the jury some credit for having some amount of common sense." People v. Marlow, 34 Cal.4th 131, 17 Cal.Rptr.3d 825, 96 P.3d 126, 140 (2004). Moreover, we would point out that KRS 532.025 "does not allow the jury to hear information on parole eligibility." Chumbler v. Commonwealth, 905 S.W.2d 488, 497 (Ky.1995). See also Perdue v. Commonwealth, 916 S.W.2d 148, 163 (Ky.1995) ("[U]nder KRS 532.025, when the death penalty is sought, evidence of minimum parole eligibility guidelines may not be introduced at all."). We find no error here.
Citing to KRS 532.075(3)(a), Meece argues that an instruction should have been given preventing the imposition of the death penalty under the influence or passion, prejudice, or other arbitrary factors. The statute, however, requires this Court to make this determination. Moreover, we have previously stated that "[a]n instruction to the jury to avoid passion or prejudice in fixing the death penalty is not required" during the penalty phase of a capital murder trial. Mills, 996 S.W.2d at 493. Thus, no instructional error occurred.
Meece also argues that a jury instruction should have been given that, "if any juror had `any doubt' as to the appropriate punishment, Meece should not be sentenced to death." This Court has recently addressed a similar issue in Brown, 313 S.W.3d 577 at 594, n. 2, 595, n. 3, wherein this Court determined that even a reasonable doubt instruction for imposition of the death penalty is no longer required and should not be given. Meece now asks that such language be reduced to just "any doubt." Again, we disagree and find no error.
On three separate occasions prior to trial (September 21, 2004, May 31, 2005, and August 11, 2006), Meece specifically requested, orally and in writing, that life without parole (LWOP) not be included in the range of sentences to be submitted to the jury in his case. Thus, although the jury was asked on voir dire whether they could consider the full sentence range from twenty years to death, including life without the benefit or probation or parole for a minimum period of twenty-five years, they were not asked if they could consider life without parole.
During discussions concerning his late request for LWOP, the court noted Meece's previous requests that the sentence not be given; as a result, the jury was not voir dired, generally or individually, as to LWOP as they were on the other sentencing options. The court then noted there could very well be some jurors who could not accept a sentence of LWOP, but since the question was never asked, this would never be known. In this regard, the court also noted that, in Commonwealth v. Phon, 17 S.W.3d 106 (Ky.2000), the decision to instruct on LWOP was made by the trial court prior to selection of the jury. Subsequently, the trial court denied Meece's motion to include LWOP in the sentencing instructions.
Meece contends, on the other hand, that while he did not want LWOP included in
We did hold in Phon that "upon the unqualified consent of the defendant, a sentence of life without parole may be lawfully imposed for capital crimes committed before [its enactment on] July 15, 1998." Id. at 108. And, these crimes also occurred prior to its enactment in 1998, i.e., 1993. What we did not answer, however, was when the request must be made.
Although the jurors here were asked whether they could consider sentencing Meece to a term of years, life, LWOP-25, or death, this is not to say that those same jurors would automatically be able to consider life without the possibility of parole, as it is possible that a juror could believe incarceration without the possibility of parole to be a harsher punishment than death, as some today argue. In this same vein, it is also possible that some jurors would not be able to seriously consider a sentence of death if given the option of guaranteeing that a defendant would never be released on parole. Thus, it is possible that the inclusion of LWOP in the range of punishment could have impacted the ability of some of the jurors to consider the full range of punishment, an answer we will never know, as they were not asked due to Meece's refusal to allow the application of LWOP prior to the jury's determination of guilt.
"When the Commonwealth seeks the death penalty, individual voir dire out of the presence of other prospective jurors is required if questions regarding capital punishment . . . are propounded. Further, upon request, the Court shall permit the attorney for the defendant and the Commonwealth to conduct the examination on these issues." RCr 9.38. Pursuant to RCr 9.36(1), both the Commonwealth and the defense are permitted to make challenges for cause, and "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified." Thereafter, each of the parties is given the opportunity to exercise peremptory challenges. RCr 9.36(2), (3) ("Peremptory challenges shall be exercised simultaneously. . . ."; "[a]ll challenges must be made before the jury is sworn"; and "[n]o prospective juror may be challenged after being accepted unless the court for good cause permits it.").
In balancing the rights of the parties to a proper voir dire and selection of a jury, we recognize that "[t]he right of each side to an impartial jury is of great importance." Gossett v. Commonwealth, 426 S.W.2d 485, 487 (Ky.1968) (emphasis added). Moreover, we have recently noted in Shane, "[i]f a right is important enough to be given to a party in the first instance, it must be analyzed to determine if it is substantial, particularly where deprivation of the right results in a final jury that is not the jury a party was entitled to select." 243 S.W.3d at 340. Thus, we insist that the process be fair to both parties.
This may be true in this regard only if the request for the application of a mitigating penalty enacted after the occurrence of the event pursuant to KRS 446.110 is requested prior to the empanelling of the jury. This was not done in this case and
Although the grand jury did not return an indictment that charged the murders were aggravated by the penalty enhancers used at trial, the Commonwealth filed a Notice of Statutory Aggravating Circumstances listing them within a month following the return of the indictment. This notice indicated the Commonwealth's intent to rely upon four of the aggravators found in KRS 532.025(2)(a), as previously noted.
Upon the foregoing, Meece now argues that "[t]he formality, timing and specificity of notice mandated by the U[.]S[.] Constitution were not met in [his] case," a point on which we disagree and which we find to be meritless. Meece also contends that "[additionally, the indictment failed to give the court jurisdiction to try Meece for aggravated murder and subject him to enhanced penalties." For these propositions, Meece cites to Jones v. United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi, 530 U.S. 466, 120 S.Ct. 2348, and Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Again, we find no merit in this allegation of error.
Nor are we influenced by the logic of People v. Lucas, 321 Ill.App.3d 49, 254 Ill.Dec. 163, 746 N.E.2d 1211 (2001) appeal denied, judgment vacated, 202 Ill.2d 686, 270 Ill.Dec. 456, 783 N.E.2d 31 (2003), or State v. Fortin, 178 N.J. 540, 843 A.2d 974 (2004). As we said in St. Clair v. Commonwealth, 140 S.W.3d 510, 534 (Ky. 2004):
St. Clair, 140 S.W.3d at 559-60; See also Hunt, 304 S.W.3d at 54.
Noting his "motherless, lost childhood" and "minimal criminal record," Meece asserts the death penalty as applied to him was arbitrary and disproportionate. He also argues that there are "more deserving" cases in which death was not imposed, and therefore, death is not proper for him. Following an exhaustive review of the record, we disagree.
Lesser sentences imposed upon other defendants by a judge or jury are not relevant in determining the validity of a death sentence or other sentence. See Marshall v. Commonwealth, 60 S.W.3d 513, 523 (Ky.2001); Caudill, 120 S.W.3d at 672. Moreover, the finding of aggravating circumstances:
St. Clair, 140 S.W.3d at 570. Here, the evidence was more than sufficient and the jury's findings supported a sentence of death. Thus, Meece's death sentence was neither arbitrary, nor disproportionate to the evidence adduced.
Moreover,
(Emphasis added). Hunt, 304 S.W.3d at 52.
Pursuant to these requirements, we have reviewed the record and have determined that the death sentence rendered in this case was not imposed under the influence of prejudice, passion, or any other arbitrary factor. Moreover, the sentence is not disproportionate to the penalty imposed in similar cases which we have reviewed as required. For reference, see the list found in Hodge, 17 S.W.3d at 855. See also Parrish v. Commonwealth, 121 S.W.3d 198,
Meece also asserts five grounds which he contends invalidates the imposition of the death penalty in this Commonwealth. We will address each separately.
Relying upon Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky.1994) and Harris v. Commonwealth, 793 S.W.2d 802 (Ky.1990), Meece argues that KRS 532.025 is unconstitutional for reasons that it makes all murder defendants death eligible, because murder is a capital offense. This, Meece asserts, unhinges the Commonwealth's capital sentencing scheme from the procedural and constitutional controls on the decision-makers' judgments mandated by Tuilaepa, 512 U.S. 967, 114 S.Ct. 2630 and Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993). This argument is without merit, as we stated in Young, 50 S.W.3d at 162, "[a]bsent a statutory aggravating circumstance specifically applicable to the defendant or the defendant's own conduct, he/she cannot be subjected to the death penalty."
Meece also contends that the statutory scheme by which he was sentenced to death provides no standards to guide the sentences in its decisions. In this respect, he makes several different arguments; all of which we have previously rejected. Thus, we repeat what we have previously held:
Fields, 274 S.W.3d at 419.
Meece alleges that the death penalty is applied in a discriminatory manner in Kentucky. However, both we and the Sixth Circuit have rejected this argument. McQueen v. Scroggy, 99 F.3d at 1333; Epperson v. Commonwealth, 197 S.W.3d 46, 62-63 (Ky.2006). And, we are not persuaded to hold otherwise now.
Here, Meece asserts that Kentucky's capital sentencing scheme is inherently arbitrary due to the alleged unlimited discretion enjoyed by prosecutors in determining whether to seek the death penalty in a given case. Again, we disagree and respond that "the death penalty is not imposed arbitrarily or capriciously in Kentucky." Fields, 274 S.W.3d at 419 (citing Tamme, 973 S.W.2d at 40-41); See also Hunt, 304 S.W.3d at 55.
Citing to statistical evidence concerning wrongful convictions nationwide, Meece, in his own defense—disconnected from the
In America, courts go to great lengths to protect the innocent and we do not stop with just one review as is evidenced by the statistics cited. With this history and review of process in mind, "precedents of the [United States] Supreme Court prevent us from finding capital punishment unconstitutional based solely on a statistical or theoretical possibility that a defendant might be innocent." United States v. Quinones, 313 F.3d 49, 63 (2d Cir.2002).
Here, overlapping a previous argument, Meece contends that this Court's proportionality review process, as prescribed by KRS 532.075(1) is unconstitutional for reasons that "this Court does not compare cases in which the death penalty was imposed to the penalty imposed in similar cases." In this sense, he alleges that "[t]his Court's universe of cases has been limited solely to those cases in which the death penalty was imposed; not to other `similar cases' in which death was not imposed." Further, he asserts that "[i]t is also limited to only those cases which have been affirmed on appeal." He further contends that he is entitled to access this Court's KRS 532.075(6) database. Again, we disagree as to all assertions.
As we noted in Hunt, 304 S.W.3d at 52-53:
Hunt, 304 S.W.3d at 52-53. Thus, we again find no error.
Again, similar to many cases we have considered, Meece also asserts that lethal injection and electrocution are unconstitutional. Again, given our previous decisions and those of the United States Supreme Court, Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008); Chapman v. Commonwealth, 265 S.W.3d 156 (Ky.2007); Baze v. Rees, 217 S.W.3d 207, 211-12 (Ky. 2006); and Epperson, 197 S.W.3d 46 at 64, we disagree. They are plainly constitutional.
Meece also contends that residual doubt bars the death sentence. Again, we have addressed this issue on many occasions and see no reason to depart from our consistent holding that residual doubt plays no role in appellate review. See, e.g., Hunt, 304 S.W.3d at 55; See also Tamme, 973 S.W.2d at 40; Epperson, 197 S.W.3d at 65 ("The United States Supreme Court and this Court have held that residual doubt is not a mitigating circumstance for the death penalty.").
Lastly, Meece contends that the cumulative effect of the errors found requires reversal. Our review of the entire case,
For the foregoing reasons, the judgment and sentence of the Warren Circuit Court is affirmed.
All sitting. All concur.
Mosley, 423 U.S. at 121, n. 9, 96 S.Ct. 321.
He then goes on to brief the law on this issue, as follows (all punctuation and citations as in original):
The supplemental motion was signed by Meece and contained no affidavits.
Further, the reasonable doubt instruction provided: "If upon the whole case you have a reasonable doubt whether the Defendant should be sentenced to death, you shall instead fix his punishment at a sentence of imprisonment."
Although the form instructions used required a unanimous finding as to the aggravating circumstances, no wording was included requiring a unanimous finding as to any mitigating circumstances.
