Opinion of the Court by Justice SCOTT.
Appellant, Kevin Wayne Dunlap, pled guilty to three counts each of capital murder, capital kidnapping, and tampering with physical evidence, and one count each of attempted murder, first-degree kidnapping, first-degree rape, first-degree arson, and first-degree burglary. The Livingston
On October 15, 2008, Appellant approached Kristy Frensley while she was working in her yard. Kristy's house was for sale and Appellant asked if she would show it to him. Once inside, Appellant put a gun to her head, zip tied her hands and ankles, and moved her to her bedroom. Shortly thereafter, Kristy's three children, Kayla Williams, 17, Kortney Frensley, 14, and Ethan Frensley, 5, returned home from school. Appellant pushed all three children into the bedroom and tied Kayla and Kortney with zip ties and Ethan with pantyhose. He then took the children to a different part of the house.
Appellant returned to Kristy's bedroom and raped her. After giving her a shower, he placed Kristy in her bed, began to strangle her, and attempted to smother her with a pillow. After that, he began cutting her neck. He briefly left the room; when he returned he stabbed Kristy in her left ear and twice in her lower back. Kristy later learned that Appellant had broken off a butter knife in her neck at the handle that had to be surgically removed. Kristy pretended that she was dead by lying still and slowing her breathing. Appellant covered her with a blanket and left the room. Feeling smothered by the blanket, Kristy moved so that her nose was uncovered and she could see.
Appellant poured flammable liquid on the floor of the bedroom and set the bedroom on fire. From her position, Kristy could see Ethan across the hall lying on a pile of pillows. Kristy attempted to rescue him but before she could do so her foot caught fire. She then discovered her legs were not functioning properly and rolled off of her bed to the bedroom's French doors which led to the pool deck. She pulled one of the door handles with her foot but her legs failed her again and she got stuck in the doorframe. Eventually, with her hands still tied, she managed to roll into the pool where a Sheriff's deputy later found her.
The fire caught the attention of neighbors and passers-by and Kayla's body was seen through a window; they punched out the window with their fists and pulled her body outside. The fire was so hot that when they pulled her body out her skin came off in their hands. Kayla's hands were still tied and her mouth was gagged with pantyhose; her throat had been cut from ear to ear, deep enough that her trachea was visible. A steak knife blade was protruding from her back through her sweater. Remarkably, Kayla was still alive, gasping for breath and gurgling. Two women attempted CPR, but Kayla died in the yard from her wounds.
The fire destroyed the home, burning Kortney and Ethan's bodies. An autopsy revealed that Ethan had two stab wounds to the chest (including one that penetrated his heart), six stab wounds to his back and one to his stomach. Kortney had three stab wounds to her chest that penetrated the left lung and one stab wound to the right side of the neck. The doctor who performed the children's autopsies testified that all three children died from the stab wounds.
Based on an eyewitness description of a vehicle seen at the Frensley's house that day, a search warrant was issued for Appellant's home. Law enforcement officers seized several items linking him to the
Appellant was indicted by a Trigg County Grand Jury for three counts each of capital murder, capital kidnapping, and tampering with physical evidence; and one count each of attempted murder, first-degree burglary, first-degree arson, and first-degree rape. Upon joint motion by the Commonwealth and Appellant, the Trigg Circuit Court granted a change of venue to the Livingston Circuit Court. Thereafter, the Commonwealth's Attorney gave notice that he was seeking the death penalty.
Two months prior to trial, Appellant was sent to the Kentucky Correctional Psychiatric Center (KCPC) for a thirty-day evaluation of his competency to stand trial and criminal responsibility. The Livingston Circuit Court held a competency hearing on January 22, 2010, approximately three weeks prior to the trial date. The court heard the testimony of Dr. Amy Trivette, the psychiatrist supervising Appellant's evaluation at KCPC, who testified that Appellant understood the nature and consequences of the charges against him and had a general understanding of the courtroom proceedings and the individuals involved. Consistent with this testimony, the trial court found Appellant competent to stand trial.
About one month prior to trial, a CT scan revealed two non-specific hyper-attenuated punctuate foci — essentially, abnormal spots — on the right frontal lobe of Appellant's brain. Defense counsel requested a PET scan and an MRI, and moved the trial court for a continuance so the results of these tests could be fully examined. The trial court permitted the tests but denied the continuance. About a week before trial was to begin, the tests revealed that Appellant had an arterial venous malformation (AVM) on his right frontal lobe, measuring approximately one cubic inch — a tangle of arteries and veins existed where cortical matter would be on a normally-developed brain.
The day before jury selection was to begin, Appellant informed the court that he wanted to change his plea from Not Guilty to Guilty but Mentally Ill (GBMI). He also informed the court that if it did not accept his GBMI plea then he wished to enter a plea of Guilty. In light of the newly discovered AVM, defense counsel moved to stay the proceedings and have Appellant reevaluated. After hearing testimony from Appellant's expert witness, Dr. Michael Nicholas, the trial court denied counsel's request to stay the proceedings, rejected Appellant's request to plead GBMI, and accepted his Guilty plea.
Appellant reserved his right to be sentenced by a jury for his capital convictions, and a capital sentencing proceeding began on February 10, 2010, lasting two weeks. After deliberating for three hours, the jury recommended a death sentence on each of
Appellant seeks review of twenty-one related issues (plus a separate "cumulative error" argument), "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.
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.'" Id. (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 this Court 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).
Appellant first argues that the trial court violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it rejected his GBMI plea, denied his requests for a continuance and a second competency evaluation, accepted his guilty plea, and asked him to admit to the statutory aggravating circumstances.
On the day before jury selection was to begin, Appellant informed the trial court that he wanted to change his plea from Not Guilty to GBMI, but added that if the trial court did not accept his GBMI plea, then he wished to plead Guilty. He asked to enter this plea against the advice of his attorneys who stated that in their opinion, the decision was not knowingly, intelligently, and voluntarily made, but was instead the product of mental illness — specifically, a previously diagnosed depressive disorder and organic brain damage. The trial court conducted a plea colloquy, heard evidence regarding mental illness, and ultimately concluded that Appellant was competent to enter a new plea. It further concluded that Appellant was not suffering from a mental illness at the time of the murders; it therefore rejected the GBMI plea and accepted the Guilty plea.
Central to Appellant's argument to this Court is the AVM found on his brain six days before he changed his plea. He argues that its discovery "had the potential to change everything. It also had the potential to explain a lot about [his] behavior and mental state, past and present." This, he argues, is because the location of the AVM — the right frontal lobe — is the part of the brain associated with self-control, impulses, and judgment. As such, he contends that (1) he was incompetent to enter a guilty plea, (2) even if he was competent the guilty plea was not knowingly and voluntarily made, (3) the trial court should have granted his requests for a continuance and a new competency hearing, and (4) the trial court erroneously asked him to admit to the aggravating circumstances.
First, Appellant argues that he was incompetent to enter a guilty plea.
"A criminal defendant may not be tried unless he is competent[,] Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966), and he may not waive his right to counsel or plead guilty unless he does so `competently and intelligently,' Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938)...." Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). "A competency determination is based on the preponderance of the evidence standard. We may disturb a trial court's competency determination only if the trial court's decision is clearly erroneous (i.e., not supported by substantial evidence)." Chapman, 265 S.W.3d at 174 (footnotes and citations omitted).
As an initial matter, we must decide what factual standard for determining competency applies to Appellant's situation. In most scenarios, the test for determining competency to plead guilty is the same as determining competency to stand trial: "whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). See also Godinez, 509 U.S. at 398, 113 S.Ct. 2680 (rejecting "the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard"); Chapman, 265 S.W.3d at 175 (same). The trial court applied the Dusky standard in determining that Appellant was competent to enter his guilty plea.
However, in Chapman we held that a different, heightened standard of determining competency applies under a very narrow (and rare) set of circumstances, i.e., "when a defendant desires to plead guilty, waive jury sentencing and presentation of mitigation evidence, and asks the trial court to be sentenced to death." Id. at 180. That standard, adopted from Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), requires the trial court to determine whether the defendant "has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Chapman, 265 S.W.3d at 179 (quoting Rees, 384 U.S. at 314, 86 S.Ct. 1505).
Appellant argues that the circumstances surrounding his guilty plea are sufficiently analogous to those in Chapman to warrant application of the heightened Rees standard. He contends that his failure to affirmatively seek the death penalty (as the appellant in Chapman had) is irrelevant. Rather, he alleges that the consequence of his decision to waive his right to a jury trial, plead guilty to six capital offenses, and admit to three aggravating circumstances that made him death-eligible "was exactly the same as if he had told the trial court he wanted a death sentence." We disagree.
Our holding in Chapman makes clear that the heightened Rees standard applies to one situation: "when a defendant desires to plead guilty, waive jury sentencing and presentation of mitigation evidence, and asks the trial court to be sentenced to death." Id. at 180. We have not extended application of the Rees standard to any other factual scenario.
Accordingly, Appellant was competent to enter a guilty plea if the trial court was satisfied by a preponderance of the evidence that he "ha[d] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and [that] he ha[d] a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402, 80 S.Ct. 788. Under this standard, the trial court found that Appellant was indeed competent to enter a guilty plea. This finding is supported by substantial evidence.
The trial court held a competency hearing on January 22, 2010, at which Dr. Trivette, the KCPC psychiatrist who supervised Appellant's month-long evaluation, offered substantial testimony. She concluded that, to a reasonable degree of medial certainty, Appellant understood the nature and consequences of the proceedings against him and had a general understanding of the courtroom proceedings and the individuals involved. She also stated that he was able to assist his counsel and rationally participate in his own defense.
A mere eighteen days later — and the day before jury selection was to begin — Appellant asked to enter a plea of GBMI, or if rejected, Guilty.
Later in the hearing, the defense's own expert witness, Dr. Nicholas, stated that he "never had an issue with [Appellant's] competency to stand trial."
Appellant next argues that even if he was competent to enter his plea, he did not do so knowingly and voluntarily. He contends that the trial court's colloquy was insufficient to determine whether he understood and appreciated the rights he was waiving. This issue is preserved. Whether a defendant's plea is knowing and voluntary "is inherently fact-sensitive, thus this Court reviews such a determination for clear error, i.e., whether the determination was supported by substantial evidence." Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky.2006) (citations omitted).
On the morning of February 9, 2010, Appellant informed the trial court that he wished to change his plea from Not Guilty to GBMI, but if the court would not accept a GBMI plea, then he wished to plead Guilty. The trial court conducted a plea colloquy lasting approximately twenty-seven minutes, which included the following exchanges relevant to the question of whether Appellant's plea was knowing and voluntary:
"In addition to determining that a defendant who seeks to plead guilty... is competent, a trial court must satisfy itself that the waiver of his constitutional
Turning to the question of voluntariness, "[a] guilty plea is involuntary if the defendant lacked full awareness of the direct consequences of the plea or relied on a misrepresentation by the Commonwealth or the trial court." Id. at 566 (citing Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). To begin with, there is no allegation that the Commonwealth or the trial court made any representations to induce Appellant's plea. Indeed, Appellant acknowledged that "the Commonwealth ha[d] made no agreement with [him] in return for a guilty plea." Furthermore, Appellant acknowledged that he had been advised of and understood his Constitutional rights, but nevertheless wanted to waive those rights. Additionally, the trial court read to Appellant each Count with which he was charged and the penalty range for each offense; Appellant acknowledged that he understood the charges and the penalty ranges, as well as the kidnapping exemption.
Appellant knew precisely what he was giving up by pleading guilty (in lieu of GBMI) including his Constitutional rights and any defenses to his charges, and was fully aware of the consequences of such a plea. See id. at 566 (citing Brady, 397 U.S. at 755, 90 S.Ct. 1463). Accordingly, substantial evidence supports the trial court's conclusion that Appellant's plea was voluntary.
For the same reasons, Appellant's plea was entered knowingly and intelligently. "A guilty plea is intelligent if a defendant is advised by competent counsel regarding the consequences of entering a guilty plea, including the constitutional rights that are waived thereby, is informed of the nature of the charge against him, and is competent at the time the plea is entered." Id. (citing Brady, 397 U.S. at 756, 90 S.Ct. 1463; Boykin, 395 U.S. at 243, 89 S.Ct. 1709). Appellant indicated that he was advised by counsel and the court of "the consequences of entering a guilty plea, including the constitutional rights that are waived thereby, ... [and] of the nature of the charge[s] against him...." Id. (citing Boykin, 395 U.S. at 243, 89 S.Ct. 1709). Having already concluded that Appellant was "competent at the time the plea [was] entered," id. (citing Boykin, 395 U.S. at 243, 89 S.Ct. 1709), we hold that Appellant's plea was knowing, intelligent, and voluntary.
Appellant next argues that the trial court erroneously refused to have him re-evaluated for competency to plead guilty. Specifically, he contends that denying his requests for a continuance, new competency evaluation, and second competency hearing violated his Fourteenth Amendment rights to present a defense and due process of law, and his Eighth Amendment right to rational sentencing. He further argues that the court's ruling deprived his attorneys the opportunity to fulfill their duty to investigate all possible defenses and mitigating circumstances and bolster evidence to support a GBMI plea. This issue is preserved.
Assuming, without deciding, that the discovery of the AVM could have provided reasonable grounds on which to grant a continuance and order a new competency evaluation, having already determined that the trial court properly found him competent to reject the advice of counsel and enter a guilty plea, any error here would be harmless beyond a reasonable doubt. Appellant waived his right to present a defense by virtue of pleading guilty. See, e.g., Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky.1994) ("The general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense.") (citation omitted).
Also, the trial court's ruling on the motion did not "deprive" defense counsel of the opportunity to investigate defenses; rather, Appellant's guilty plea absolved defense counsel of their duty to investigate. The trial court was presented with conflicting wishes of counsel and accused. The trial court exercised its discretion, determined that Appellant was competent, and properly heeded to Appellant's wishes. Defense counsel's duty to investigate possible defenses is outweighed by Appellant's right to pacify a guilty conscience and plead guilty. See Jacobs v. Commonwealth, 870 S.W.2d 412, (Ky.1994) (holding that a competent defendant's right to control his own defense encompasses the right to reject counsel's wishes to present an insanity defense).
Finally, both Dr. Trivette and Dr. Nicholas testified that the AVM would have been present when they respectively found Appellant competent to stand trial. Accordingly,
Appellant next argues that his admission to aggravating circumstances during the plea colloquy was illegal.
As previously noted, during the plea colloquy the trial court recited to Appellant the aggravating circumstances alleged by the Commonwealth:
Later in the colloquy, after Appellant admitted his guilt to each count against him, the following exchange occurred:
Appellant contends that admitting to the aggravating circumstances was outside the scope of his intended plea; he only intended to waive his rights in the guilt phase, and not the sentencing phase; and that he had a constitutional right to have a jury consider the death penalty only after it found the existence of the aggravators beyond a reasonable doubt.
KRS 532.025(2) provides, in relevant part:
Subsection (3) of that statute provides:
Thus, Appellant is correct — the jury must find that the statutory aggravators exist beyond a reasonable doubt before a death sentence may be imposed. See, e.g., Young v. Commonwealth, 50 S.W.3d 148, 155 (Ky.2001).
We agree with Appellant that it was error for the trial court to ask him to admit to the aggravating factors. KRS 532.025 makes clear that aggravators are to be considered by the finder of fact
It is equally clear that Appellant only intended to waive his rights in the guilt phase. First, a handwritten addendum to Appellant's Motion to Enter a Guilty Plea provides that he only intended to waive his rights "in the guilt/innocence phase of the scheduled jury trial." A separate clause added to Appellant's motion provides: "In no event am I waiving my right to have a sentence imposed by a jury." Thus, Appellant intended only to plead guilty to the offenses with which he was charged and not to admit to facts that must be established beyond a reasonable doubt during the sentencing phase. Although a criminal defendant may stipulate to aggravating circumstances, see Furnish v. Commonwealth, 267 S.W.3d 656, 660 (Ky.2007), we believe any stipulation should occur during the sentencing phase and not during a plea colloquy. Although it was not improper to ask Appellant whether he understood the aggravating circumstances alleged by the prosecution, the trial court erred when it asked Appellant to admit to the aggravating circumstances during the plea colloquy. They were simply irrelevant to the guilt phase. We therefore turn our attention to whether the error may be deemed harmless.
First, we must ask whether there was a reasonable justification for defense counsel's failure to object when the trial court asked Appellant to admit to the aggravating circumstances. Sanders, 801 S.W.2d at 668. We answer this question in the negative. This case does not present a scenario in which we could conclude that admitting to aggravating circumstances constitutes sound trial strategy. We can think of no other reason, nor does Appellant offer one, for counsel's failure to object.
Because there is no reasonable justification for Appellant's failure to object, we must ask "whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed." Id. We cannot conclude that, minus the error, Appellant may have escaped the death penalty.
The aggravating circumstances were part and parcel of crimes to which he had already pled guilty. For example, with respect to the aggravating circumstances applicable to the murder counts: (1) "The offense of Murder was committed while the Defendant was engaged in the commission of Arson in the First Degree, Burglary in the First Degree, or Rape the First Degree" was satisfied by his respective guilty pleas to those three crimes; and (2) "The Defendant's act or acts of killing were intentional and resulted in multiple deaths" was satisfied by his guilty pleas to the three murders. With respect to the aggravating circumstance applicable to the kidnapping counts: "The offense of kidnapping was committed while the Defendant was engaged in Arson in the First Degree, Burglary in the First Degree, Rape the First Degree, or Murder in the First Degree" was satisfied by Appellant's respective guilty pleas to those crimes. Thus, we believe that even if the trial court had not asked Appellant to admit to the aggravating factors, the jury would have easily concluded that these aggravators
Finally, we note that despite Appellant's admissions, the jury was properly instructed that it must find beyond a reasonable doubt that one of the statutory aggravators existed in order to impose an enhanced sentence.
Appellant next argues that the trial court improperly permitted the Commonwealth to introduce the videotaped guilty plea colloquy. Specifically, Appellant argues that it was erroneous to allow the jury to hear (1) a plea where the trial court accepted his admission to three aggravating factors and (2) the trial court's finding that Appellant is not mentally ill under Kentucky law. "[W]e review a trial court's evidentiary rulings for an abuse of discretion." Penman, 194 S.W.3d at 245. "The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
On the first day of trial, the Commonwealth admitted into evidence the videotape of the guilty plea colloquy. The Commonwealth did not want to play it at that time and the trial court admitted it as a "non-jury exhibit." Later that day, the Commonwealth sought to introduce Appellant's actual videotaped guilty plea and admission to the aggravating circumstances.
At the end of a fairly lengthy discussion on the matter, the trial court denied the Commonwealth's motion to play the videotape and stated that it was not going to advise the jury that Appellant had admitted to the aggravators during the plea colloquy. As grounds for the denial, the court noted defense counsel's objection that it was questionable whether Appellant understood that his guilty pleas being played for the jury might also extend to his admission to the aggravating factors. The court also noted that it might confuse the jurors to hear the court "weigh in" on the aggravators. The court added that the Commonwealth's hands were not tied because the existence of the aggravators was established by the fact that Appellant pled guilty to committing the crimes. See Section III.A.4, supra.
The following day, the Commonwealth renewed its motion to admit the videotape or, in the alternative, to advise the jury that Appellant had admitted to the aggravators during the plea colloquy. Defense counsel renewed their objection, but added that if the tape was going to be played, the entire discussion should be played. The trial court took the matter under consideration and later ruled that the Commonwealth could play the tape, beginning with defense counsel's argument that, in his opinion, the plea was not being entered knowingly, voluntarily, and intelligently, and excluding Dr. Nicholas's testimony.
Appellant first argues that there is a substantial possibility that the issue of whether the aggravating circumstances existed had already been decided, based on Appellant's admissions to the aggravators during the plea colloquy. KRS 532.025(3) requires the jury to find the existence of aggravating circumstances beyond a reasonable doubt. This issue is preserved.
As previously noted, during the plea colloquy the trial court erroneously asked Appellant to admit, and accepted Appellant's admission, to the aggravating circumstances. This exchange was played for the jury during trial. We conclude that any error in the videotape's admission was cured by instructions that made it abundantly clear that the jury was required to find beyond a reasonable doubt that the aggravators existed.
The first general instruction to the jury, titled "INSTRUCTIONS TO JURY (All Counts)," provided:
(Emphasis added.)
Moreover, The "AUTHORIZED SENTENCES" instruction provided: "[Y]ou cannot fix his sentence at [an enhanced sentence], unless you are satisfied from the evidence beyond a reasonable doubt that one of the statements listed in [the aggravating circumstances instruction] is true in its entirety, in which event you must state in writing ... that you find the aggravating circumstance or circumstances to be true beyond a reasonable doubt." Furthermore, the "AGGRAVATING CIRCUMSTANCES" instruction provided: "[Y]ou shall consider the following aggravating circumstances which you may believe from the evidence beyond a reasonable doubt to be true...." Also, the "REASONABLE DOUBT" instruction provided: "If you have a reasonable doubt as to the truth or existence of an aggravating circumstance listed in [the "Aggravating Circumstances" instruction], you shall not make a finding with respect to it."
Additionally, the verdict form for the aggravating circumstances read: "We, the jury, find beyond a reasonable doubt that the following aggravating circumstance or circumstances exist in this case...." Reasonable jurors would understand these instructions to mean exactly what they say: the jury must determine the existence of the aggravating circumstances beyond a reasonable doubt. "[A] jury is presumed to follow a trial court's instructions...." Dixon v. Commonwealth, 263 S.W.3d 583, 593 (Ky.2008) (citing Matheney v. Commonwealth, 191 S.W.3d 599, 606 (Ky.2006)).
Finally, even if the instructions had not cured any potential error, the error would nevertheless be harmless beyond a reasonable doubt. As noted, the existence of all three aggravating circumstances was satisfied by virtue of Appellant's guilty pleas. See Section III.A.4,
Next, Appellant argues that the trial court's finding that Appellant was not mentally ill as a matter of law prevented the jury from considering mental illness as a mitigator. This issue is unpreserved.
(Emphasis added.) Appellant contends that the trial court's finding that he was not mentally ill as a matter of law prevented the jury from considering mental illness as a mitigator. We disagree.
First, the jury instructions specifically provided that the jury was free to consider mental illness as a mitigator:
"It is a longstanding principle that a jury is presumed to follow a trial court's instructions...." Dixon, 263 S.W.3d at 593 (citing Matheney, 191 S.W.3d at 606). We have been given no reason to believe that this presumption is defeated in this case.
Second, to remove all doubt, the trial court admonished the jury not
"A jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error." Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky.1999), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.2010)).
Id. (citing Derossett v. Commonwealth, 867 S.W.2d 195, 198 (Ky.1993), and Bowler v. Commonwealth, 558 S.W.2d 169, 171 (Ky.1977)). The second exception is inapplicable. With respect to the first exception, we do not believe there is an overwhelming probability that the jury was unable to follow the court's admonition. We therefore hold that the playing of the plea colloquy for the jury did not taint their determination that the aggravating circumstances existed beyond a reasonable doubt, and did not prevent them from considering mental illness as a mitigator.
Appellant next argues that the trial court's finding that he was not mentally ill and its subsequent rejection of his GBMI plea violated his due process right to a fair trial and his Eighth Amendment right to fair sentencing. He alleges that the GBMI statute, KRS 504.130, violates the separation of powers doctrine found in Sections 27 and 28 of the Kentucky Constitution because it imposes an additional element, i.e., the specific preponderance of the evidence burden of proof on the defendant, not found in RCr 8.08. In the alternative, he contends that he proved his mental illness by a preponderance of the evidence and the trial court therefore had no discretion to reject his GBMI plea.
First, Appellant argues that KRS 504.130 is unconstitutional as a violation of separation of powers because it imposes a preponderance of the evidence burden of proof upon a defendant pleading GBMI. He contends that defining and assigning burdens of proof in criminal cases belongs to the judicial branch, and therefore KRS 504.130 intrudes on the province of the Judiciary. This issue is unpreserved.
RCr 8.08 authorizes a trial court to accept a GBMI plea.
Appellant contends that KRS 504.130's imposition of the specific preponderance burden on the defendant violates the separation
We addressed another challenge to the constitutionality of the GBMI statute in Star v. Commonwealth, 313 S.W.3d 30, 37 (Ky.2010). Although the separation of powers argument was not made in that case, Star provides a good starting point for our analysis because we noted the strong presumption in favor of a statute's constitutionality its challenger is required to overcome:
Id., Appellant has not made the requisite showing of unconstitutionality.
Section 116 of the Kentucky Constitution provides that "The Supreme Court shall have the power to prescribe ... rules of practice and procedure for the Court of Justice." Whether burdens of proof are matters of "practice and procedure" or are better characterized as "substantive" law is not always clear. Appellant argues that burdens of proof are a matter of evidence which is procedural and under our exclusive control. However, he cites only one case in support of his argument, Veltrop v. Commonwealth, 269 S.W.3d 15, 17 (Ky. App.2008). In Veltrop, the Court of Appeals was presented with whether the Driving Under the Influence statute is unconstitutional as a violation of separation of powers. Id. The court noted that "[w]hether evidence is relevant to the facts of a case is within the exclusive confines of the `practice and procedure' of the judicial branch of government," id. (citing O'Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky.1995)), but it ultimately held that the appellant did not have standing to challenge the constitutionality of the statute, id. Thus, Veltrop has little value here.
We do not think the issue is as simple as characterizing burdens of proof as matters of evidence. The Superior Court of Pennsylvania dealt with an almost identical issue in Pennsylvania v. Sargent, 349 Pa.Super. 289, 503 A.2d 3 (1986). In Sargent, the appellant challenged the constitutionality of Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa. Cons.Stat. § 9713, as a violation of separation of powers. 503 A.2d at 4. Specifically, he alleged that Section "9713(c), which dictates the burden of proof to be employed at sentencing, violates Article V, § 10(c) of the Pennsylvania Constitution, which gives the judiciary exclusive control over matters of practice and procedure in the courts[.]" Id.
Sargent illustrates precisely why the issue is more complicated than just labeling a burden of proof as a "matter of evidence" and therefore within the exclusive province of the Judiciary:
Id. at 294-96, 503 A.2d 3 (footnotes omitted). The court ultimately held that the statute was not unconstitutional because the "appellant ha[d] not sustained his burden of affirmatively establishing that § 9713(c) is a statute governing procedure in the courts and hence beyond the authority of the Legislature to enact." Id. at 296, 503 A.2d 3.
Likewise, here, Appellant has not sustained his burden of affirmatively establishing that KRS 504.130 is a statute governing procedure in the courts and therefore beyond the authority of the General Assembly to enact. As in Pennsylvania, courts in Kentucky have variously described burdens of proof as procedural or substantive. See, e.g., Rodgers v. Commonwealth, 285 S.W.3d 740, 751 (Ky.2009) (discussing changes in self-defense statute: "[T]he new amendments alter the circumstances constituting self-defense and create certain presumptions which will alter the burden of proof in
We pause here to note that even if we were to deem KRS 504.130(l)(b)'s preponderance of the evidence standard as an unconstitutional encroachment on the Judiciary's rule-making authority, it would not necessarily render the statute void. In Ex parte Auditor of Public Accounts, this Court struck down legislative enactments "authorizing the Supreme Court to appoint a board of bar examiners and to organize and govern the bar, and again requiring that admission fees be remitted to the state treasury." 609 S.W.2d 682, 684 (Ky. 1980). Those statutes were enacted in 1976, shortly after Section 116 of the Kentucky Constitution became effective. See id. We held that those statutes were inconsistent with Section 116 and therefore "void because they purport to erect powers and limitations that no longer fall within the legislative province," i.e., a separation of powers violation. Id. However, we acknowledged that there is a "gray area in which a line between the legislative prerogatives of the General Assembly and the rule-making authority of the courts is not easy to draw." Id. at 688. "The policy of this court is not to contest the propriety of legislation in this area to which we can accede through a wholesome comity." Id.
Similarly, in Ex parte Farley, this Court opined:
570 S.W.2d 617, 624-25 (Ky.1978). Thus, where the General Assembly has enacted legislation that technically violates the separation of powers doctrine but is not inconsistent with a rule promulgated by this Court under its rulemaking authority, we have upheld the statute.
For example, in O'Bryan v. Commonwealth, we held a change of venue statute unconstitutional as a violation of separation
We now turn to whether the trial court properly rejected the GBMI plea. We have not previously established the standard by which an appellate court reviews a trial court's ruling on a GBMI plea. Citing us to Chapman, 265 S.W.3d at 177, the Commonwealth argues that we should review for abuse of discretion, although it acknowledges that Chapman dealt with our review of a plea agreement and not, as here, an unconditional plea.
Appellant, on the other hand, argues that the trial court has no discretion when the requisite showing of mental illness is made. He asserts that where proof exists to support a finding of GBMI, "it is a violation of the due process clause of the Fourteenth Amendment and, in a capital case, the [Eighth] Amendment, as well as Section 1, 2, and 17 of the Kentucky Constitution for a court to then arbitrarily reject the GBMI portion of the plea when the plea would otherwise have been accepted by the court." In this light, Appellant appears to ask us to review the trial court's ruling de novo.
Facially, both RCr 8.08 and KRS 504.130 grant the trial court discretion to deny a GBMI plea. RCr 8.08 explicitly authorizes the trial court to reject the plea, providing in relevant part: "A defendant may plead not guilty, guilty or guilty but mentally ill. The court may refuse to accept a plea of guilty or guilty but mentally ill, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge." (Emphasis added.) KRS 504.130 is less explicit, but uses the same permissive language:
(Emphasis added.) Thus, the rule and the statute vest a certain amount of discretion in the trial court.
However, the discretion built into RCr 8.08 and KRS 504.130 appears to derive from the fact that so many cases are resolved by plea agreements wherein the defendant agrees to plead guilty, usually in exchange for some benefit promised by the Commonwealth. RCr 8.08 and KRS 504.130 preserve the trial court's right to reject the plea agreement if, for example,
It is a different story entirely, however, when a defendant makes an unconditional GBMI plea. If he does not carry his KRS 504.130 burden of proving by a preponderance of the evidence that he was mentally ill at the time of the offense, the trial court clearly has no discretion to accept the GBMI plea; it must reject it because there is an insufficient factual basis to support a finding of mental illness. See KRS 504.130. That is precisely what happened in this case, and it illustrates why the abuse of discretion standard is not the appropriate standard of appellate review for all pleas under RCr 8.08 and KRS 504.130. On the other hand, de novo review is improper because "the trial court is required by statute to make findings of fact with respect to the defendant's mental illness before accepting such a [GBMI] plea." Commonwealth v. Ryan, 5 S.W.3d 113, 115 (Ky.1999), abrogated on other grounds by Hoskins, 150 S.W.3d 1. We are not a fact-finding Court.
Instead, we hold that when a trial court rejects a GBMI plea on the basis that the defendant did not carry his burden of proving, by a preponderance of the evidence, that he was mentally ill at the time of the offense, an appellate court may review that determination, if properly preserved, for clear error. CR 52.01. Under the "clearly erroneous" standard, the trial court's ruling will not be disturbed if it is supported by substantial evidence. See Keeling v. Commonwealth, 381 S.W.3d 248, 262 (Ky.2012) (applying clearly erroneous standard to trial court's competency determination). In Commonwealth v. Harrelson, we applied the "clearly erroneous" standard to a district court's ruling on a motion to dismiss. 14 S.W.3d 541, 548 (Ky.2000). We explained the wisdom in applying that standard:
Id. at 548-49. The same logic applies to review of a trial court's rejection of a GBMI plea.
Applying this standard here, we conclude that the trial court's determination that Appellant was not mentally ill at the time of the offenses is supported by substantial evidence and is therefore not clearly erroneous. KRS 504.060(6) defines mental illness as "substantially impaired capacity to use self-control, judgment, or discretion in the conduct of one's affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms can be related to physiological, psychological, or social factors." Both Dr. Nicholas and Dr. Trivette diagnosed Appellant with an Axis I depressive disorder not otherwise specified. However, Appellant's primary contention, once again, is that the AVM in his brain rendered him mentally ill at the time of the offense.
Prior to the AVM's official diagnosis, Dr. Trivette noted that a CT scan revealed that Appellant had "two non-specific punctuate hyper-attenuated foci" in his right frontal lobe. She concluded, however, that these foci did not affect Appellant's competency or criminal responsibility. Dr. Trivette stated that the foci might be an AVM, which should be followed-up on but was not an urgent issue. She testified that an AVM seems to occur during development of the fetus or soon after birth and that most people who have an AVM are unaware and have no symptoms. She also stated that the AVM would only affect competency or criminal responsibility if it ruptured and bled. It is undisputed that there was no bleeding associated with Appellant's AVM.
On cross-examination, Dr. Trivette stated that the finding from the radiology report concerning the foci had "no clinical significance." She testified that Appellant's neurological examination was normal, and noted that none of his psychological testing indicated any problems in the frontal lobe. In fact, some of the tests that assess frontal lobe function were areas that Appellant "performed relatively better on." Importantly, Dr. Trivette stated that Appellant had "no problems with impulse control or other things that might suggest problems" in the right frontal lobe while he was at KCPC. Although Dr. Trivette's report and testimony were rendered shortly before the AVM was officially discovered, it is undisputed that Appellant had the AVM when Dr. Trivette evaluated him.
Dr. Nicholas testified that he was virtually certain that Appellant had had this AVM from birth. It is undisputed, and the trial court found as a matter of fact, that despite the AVM, Appellant led a relatively normal and crime-free life prior to the murders. He was thirty-six years old and had recently been honorably discharged from the U.S. Army's elite 160th Special Operations Aviation Regiment, known as the "Night Stalkers," where he served as a helicopter mechanic. He was married with three children and had a full-time job.
Appellant wanted the trial court to believe that the AVM, present since birth, only manifested as a mental illness one time in his life — the day he committed the crimes.
Appellant next argues that several errors occurred during the jury selection phase of his sentencing trial. Specifically, he alleges that the trial court abused its discretion when it (1) denied four of defense counsel's challenges for cause, (2) excused four qualified jurors for cause, (3) permitted a husband and wife to serve on the jury together, and (4) placed limits on individual voir dire. These issues are preserved.
As this Court noted in Brown:
313 S.W.3d at 596. Because none of the alleged errors amount to an abuse of the trial court's discretion, Appellant is not entitled to relief on these grounds.
First, Appellant complains that the trial court improperly denied his request to remove four jurors from the venire for cause. He contends that these jurors could not fairly consider the full range of sentences for which he was eligible.
R.O. stated initially that he would be able to follow the court's instructions and consider the entire range of penalties. Later, however, he testified that he would require the defense to put on some sort of mitigation evidence in order for him to consider a penalty of less-than-death. Later, the Commonwealth asked: "If the court says that you cannot draw any adverse inferences [from the defense not presenting mitigation evidence], could you follow that?" R.O. replied "Yes."
Defense counsel followed up:
Defense counsel then moved to strike R.O. for cause on the basis that his answers indicated he could not consider the full range of penalties. The trial court noted that in the context of R.O.'s other answers, it was clear that he would be able to follow the law and make his views conform to the law. Accordingly, the trial court denied the motion to strike R.O. for cause.
Appellant ultimately used a peremptory challenge to remove R.O. from the venire.
J.F. testified initially that he could "definitely" consider and impose the full range of penalties. He then testified that in cases of intentional murder, the death penalty is the only penalty that should be imposed. Thereafter, he indicated that he had formed the opinion that the death penalty should be imposed in this case. However, J.F. then stated that he would be able to consider and impose the other penalties outlined by the trial court. When asked to clarify, J.F. answered that if the jury agreed on a different penalty, he'd "go along with it." Defense counsel asked, "And your opinion right now is that he should get the death penalty?" J.F. answered "yes," but he was willing to listen to the other eleven jurors. Finally, J.F. testified that he would be able to consider and impose the full range of penalties, even if Appellant did not present mitigation evidence, if the trial court instructed him that he could not draw an adverse inference from Appellant's silence.
Appellant moved to strike J.F. for cause. The Commonwealth replied that J.F. had been completely honest from the beginning, stating that he had formed an opinion but that he would be open to considering and imposing the full range of penalties. The trial court denied the motion to strike for cause, quoting from the bench this Court's decision in Mabe, 884 S.W.2d at 671: "Many jurors find it difficult to conceive of minimum punishment when the facts as given suggest only the most severe punishment."
Appellant ultimately used a peremptory challenge to exclude J.F. from the venire.
In response to the trial court's preliminary questions, L.H. indicated that she could consider the full range of penalties and impose a penalty within that range. She also indicated that she could consider mitigating evidence if so instructed. She admitted further that she had thought about the proper penalty and that the only way she would consider the lower end of the penalty range is if Appellant presented mitigating evidence. However, she later conceded that she would be able to follow a "no adverse inference" instruction. She asserted that even if Appellant did not present mitigating evidence that it was "possible, based on the evidence," that she could consider and impose a twenty-year sentence.
Defense counsel moved to strike for cause because she could not consider a lower-range penalty absent mitigating evidence presented by the defense. The trial court denied the motion. It recognized that L.H. was "honest in saying at first blush something on the low end would not be appropriate based upon what we know about his admission," but she "established that she can conform her opinions to follow the law."
In response to the trial court's preliminary questions, V.D. indicated that she could consider the full range of penalties. She also stated that she would be able to consider mitigating evidence if so instructed. When asked if she had already excluded any of the penalties within the penalty range, she conceded that under the circumstances as she understood them, she did not think parole should be an option. She then admitted that she might exclude the "term of years" sentence, i.e., twenty to fifty years' imprisonment. However, she then stated that if the judge instructed her to consider the term of years sentence, and the evidence warranted a sentence of twenty to fifty years' imprisonment, she could impose a sentence in that range.
Defense counsel followed up on V.D.'s answer about excluding the lower range of penalties: "As you sit there, do you really think you could fairly consider and impose, if you felt the evidence warranted it, a punishment from that lower range, including a punishment that might make him eligible for parole?" V.D. answered: "As I sit here today, I can't honestly say that; but I haven't seen any evidence, I haven't seen anything." When asked again, she admitted, "That would be hard for me."
The trial court followed up on this line of questioning and the following exchange occurred:
Defense counsel moved to strike V.D. for cause on the basis that she could not consider a penalty that includes the possibility of parole or imprisonment for a term of years. The trial court denied the motion, noting that it appeared V.D. would not automatically exclude the lower range of penalties if presented with evidence warranting one of those penalties.
Appellant argues that the trial court abused its discretion when it overruled defense counsel's challenges for cause to these four jurors. He argues that he was forced to use peremptory challenges on R.O. and J.F., and if he had not been so forced he would have used those challenges on L.H. and S.B., two of the twelve jurors that ultimately sentenced him to death. We review for abuse of discretion. Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.2007) (citing Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. 2002)).
We succinctly stated the applicable law in Meece v. Commonwealth:
348 S.W.3d 627, 711 (Ky.2011). However, "[a] per se disqualification is not required merely because a juror does not instantly embrace every legal concept presented during voir dire examination." Mabe, 884 S.W.2d at 671. "The test is whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict." Id. Additionally,
Meece, 348 S.W.3d at 710 (citing Springer v. Commonwealth, 998 S.W.2d 439, 456 (Ky.1999)).
In Hodge v. Commonwealth, we noted that the juror in question
17 S.W.3d 824, 837 (Ky.2000). Applying this same logic here, we cannot conclude that the trial court abused its discretion.
Although R.O. stated a preference for the death penalty in the absence of any mitigating evidence, he acknowledged that he could follow the trial court's "no adverse inference" instruction and consider the full range of penalties. Similarly, although L.H. initially indicated that she would have some trouble considering a penalty at the lower end of the penalty range, she ultimately indicated that it was possible that she could impose a twenty-year sentence if the evidence warranted it. Finally, V.D. admitted that it "would be hard for" her to consider a penalty at the lower end of the penalty range, but agreed that her reluctance was based on not having "heard any evidence of how the crimes were committed or mitigation."
Simply put, despite their preference for more severe penalties, these three jurors indicated that they could conform their opinions to follow the law as instructed by the trial court. As we noted in Hodge,
17 S.W.3d at 837 (quoting Mabe, 884 S.W.2d at 671). See also Meece, 348 S.W.3d at 704-12. We must remember that these three veniremembers were subject to voir dire examination armed only with the knowledge that the man sitting at the defense table had pled guilty to murdering three children in horrific fashion. Their initial reluctance to consider the lower range of penalties is not unreasonable. However, each of them indicated that "after [hearing] all of the evidence, [they could] conform [their] views to the requirements of the law and render a fair and impartial verdict." Mabe, 884 S.W.2d at 671. The trial court therefore did not abuse its discretion by denying Appellant's motions to excuse these three jurors for cause.
J.F., however, should have been excused for cause. While all potential jurors bring preconceptions about crime and punishment to the jury-selection process, few state that they have definitively made up their minds about the case for which their suitability as a juror is being examined. J.F. did precisely that by stating that he had formed a steadfast opinion that Appellant should receive the death penalty; no amount of rehabilitation could undo this disqualifying answer.
However, this error is not grounds for reversal because the trial judge wisely accorded the defense eleven peremptory strikes — two more than required under RCr 9.40 — whereas the Commonwealth only received the nine strikes required by the Rule. Appellant was able to remove J.F. with one of those extra strikes and did so. The trial court's wise decision to accord extra peremptory strikes to Appellant assured that one, or even two, errors in "for cause" determinations would not unfairly impact Appellant's "substantial rights" in the jury selection process by essentially giving him fewer peremptory strikes than the Commonwealth. Shane v. Commonwealth, 243 S.W.3d 336, 340-41 (Ky.2008).
Our holding in Shane, that a defendant has a substantial right in the use of his peremptory challenges to create the jury as he wishes — not to correct for mistakes of the trial court — is inapplicable here because when the trial court provides the defendant with additional peremptory challenges in excess of those provided for by Rule or law, the defendant no longer has a vested substantial right to those challenges that he was provided merely as a result of the trial court's discretion. See id. (citing United States v. Martinez-Salami; 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000)) (acknowledging that federal courts, and some state courts, do not find a defendant's use of a peremptory strike to compensate for the court's error in a "for cause" determination to violate any constitutional or rule-based right because the grant of peremptory challenges in those systems are purely within the trial court's discretion).
To be clear, a trial judge acts within his or her discretion where, as here, he or she grants a criminal defendant more peremptory strikes than the Commonwealth receives. Trial judges are not impervious to errors in "for cause" strike determinations. Of course, at a certain point, a trial judge abuses his or her discretion by granting a criminal defendant too many extra strikes. However, in a capital case of this magnitude, we hold that Judge Woodall acted well within his discretion in awarding Appellant two extra peremptory strikes.
Next, Appellant argues that the trial court improperly granted four of the Commonwealth's challenges for cause due to the jurors' alleged inability to impose the death penalty. He contends that dismissal of three of these prospective jurors was improper because despite their reservations and personal convictions against the death penalty, each of them indicated that they would be willing to consider and impose it. The fourth complained-of veniremember was excused because of a relationship to an expert witness but indicated during questioning he thought Appellant was probably mentally ill.
H.C. admitted that he is "not for the death penalty"; he described it as a "personal conviction." When the trial court asked him whether he would be "able to sign a verdict that sentences [Appellant] in this particular case to death," H.C. said "I don't believe I could." Although defense counsel got H.C. to say that he may be able to consider it, he later resubmitted that he would not be able to impose the death penalty. The Commonwealth moved to strike H.C. for cause and the trial court sustained the motion.
S.S. admitted at the outset that she is opposed to the death penalty on religious grounds. She stated that she might be able to consider it but could not say unequivocally that she could impose it. The Commonwealth moved to strike S.S. for cause and the trial court sustained the motion.
C.J. initially indicated that she could consider and impose the full range of penalties. However, she later admitted that she was opposed to the death penalty. When the trial court asked her to give her "best thought on whether [she] would be able to impose the death penalty in a case that involved three murders and three kidnappings among other things," she replied, "I don't know ... probably not."
The Commonwealth moved to strike for cause. Defense counsel objected on the grounds that C.J. did not have personal or religious views that would impair her ability to impose the death penalty. The trial court sustained the motion to strike C.J. for cause.
R.W. indicated that his daughter-in-law was the administrative assistant for Dr. Nicholas, the expert witness psychologist for the defense. Prior to being read a list of prospective witnesses, R.W. did not know that Dr. Nicholas had been retained by the defense, and stated that it would not affect his ability to be a neutral and impartial juror. The Commonwealth initially had no objection based upon this relationship.
During the defense's voir dire, R.W. expressed that he did not think that someone could commit the crimes to which Appellant pled guilty without "something being wrong" with him. When the Commonwealth asked him whether he meant "something mentally," R.W. said "possibly."
After questioning was complete, the Commonwealth moved to strike for cause, stating: "The more I think about this, the Commonwealth is concerned about this relationship between the daughter-in-law and Dr. Nicholas. It's pretty clear that Dr.
Addressing a similar issue, we noted in Brown:
313 S.W.3d at 598-99 (alterations in original). Thus,
Id. at 599. Moreover,
Harris v. Commonwealth, 313 S.W.3d 40, 47 (Ky.2010). See also Meece, 348 S.W.3d at 700-04.
Thus, with respect to H.C., S.S., and C.J., the question is whether their responses to the questions of court and counsel indicated a substantially impaired ability to impose the death penalty. We hold that the trial court fairly concluded that their ability to impose the death penalty was substantially impaired, and it therefore did not abuse its discretion in removing those three jurors for cause.
With respect to R.W., Appellant contends the real reason he was excused was because he expressed an opinion about Appellant being mentally ill. However, the motion to strike was premised upon the relationship between R.W.'s daughter-in-law and Dr. Nicholas, and the trial court sustained that motion based upon the relationship. In Bowman ex rel. Bowman v. Perkins, we noted:
135 S.W.3d 399, 402 (Ky.2004). The trial court determined that R.W.'s familial relationship to Dr. Nicholas was close enough to cause some concern, and we hold that it did not abuse its discretion by striking R.W. for cause.
Next, Appellant argues that the trial court abused its discretion when it permitted a husband and wife, L.C. and D.C., to serve together on his jury over defense counsel's objection. He contends that permitting them to serve together on the jury violates his due process right to a fair and impartial jury. However, rather than argue that L.C. and D.C. were actually biased, he alleges that permitting them to serve together creates a scenario in which their connection creates the appearance of bias, i.e., that they were impliedly or presumptively biased.
We recently addressed this very issue in Harris, 313 S.W.3d at 49. Like Appellant here, the appellant in Harris contended "that married jurors are presumptively not independent and that his right to an impartial jury was thus violated by the presence of a married couple on his jury." We disagreed. The following discussion from Harris explains:
313 S.W.3d at 49-50 (emphasis added).
Here, L.C. and her husband D.C. were both examined during individual voir dire by the Commonwealth, defense counsel, and the trial court. Defense counsel asked D.C. several questions about his ability to serve on the jury with his wife, although no such questions were asked of L.C.
Because their responses included nothing that would have required a dismissal of them individually, and because a married couple serving together on a jury is not presumptively biased, we conclude that the trial court did not abuse its discretion in denying Appellant's motion.
Next, Appellant argues that the trial court violated his right to a fair and impartial jury by limiting individual voir dire. Specifically, he contends that the trial court improperly prevented him from questioning each individual juror about his or her feelings about the death penalty, and whether he or she would be able to consider the full range of penalties even if the defense presented no mitigation evidence.
"[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Fields, 274 S.W.3d at 393 (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)). 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 Meece, we concluded that "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." 348 S.W.3d at 700 (citing Woodall v. Commonwealth, 63 S.W.3d 104, 117 (Ky.2001); Hodge, 17 S.W.3d at 839). We see no reason to deviate from this rule now. Additionally, although the trial court did limit defense counsel's ability to pose theoretical questions regarding lower-range penalties, it was not an unreasonable limitation and was a proper exercise of the trial court's discretion.
Appellant next argues that the trial judge, C.A. Woodall, III, erroneously failed to recuse himself. Specifically, he alleges that the fact that Judge Woodall presided over Kristy Frensley's divorce and custody proceedings, signing the final order awarding Kristy custody of Ethan approximately two weeks before Ethan's murder, rendered his impartiality questionable. In response, the Commonwealth contends that Appellant's motion to recuse was not timely filed, and even if it was, recusal was not warranted. We review a trial judge's denial of a motion to recuse for abuse of discretion. See Hodge, 68 S.W.3d at 345-46. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
Judge Woodall presided over Kristy Frensley's divorce from Jeff Frensley. Jeff filed a motion for change of custody which Judge Woodall, after hearing extensive testimony, ultimately denied. On October 1, 2008, Judge Woodall entered a final order denying Jeff's motion for custody, keeping custody of Ethan with Kristy. Appellant committed the present crimes a mere fifteen days later.
On January 8, 2010, about one month before Appellant's trial was to begin, he filed a motion for the trial judge to recuse due to the previous divorce and custody proceedings. Appellant argued that the trial court's impartiality was questionable because: (1) it would be dealing with issues involving Kristy's credibility; and (2) it had "no doubt established, during the pendency of the divorce and custody proceedings, relationships with both Jeffrey and Kristy Frensley and quite possibly, the children involved." Accordingly, Appellant
At the hearing on Appellant's motion, defense counsel made the following argument:
Judge Woodall responded:
On those grounds, the trial court denied the motion to recuse.
The Commonwealth initially argues that Appellant waived his right to raise a recusal motion by waiting until a month before the trial date to request it. The Commonwealth notes that the divorce and custody proceedings were public record, and that in a January 16, 2009 discovery exchange Appellant received a police report that mentions the Frensleys had recently been involved in a custody battle. Thus, the Commonwealth alleges that as of January 2009 — one year prior to the motion for recusal — Appellant was on notice and had sufficient information with which to investigate the Trigg Circuit Court records and discover Judge Woodall's involvement.
"A motion for recusal should be made immediately upon discovery of the facts upon which the disqualification rests." Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky.1994) (citing Bailey v. Bailey, 474 S.W.2d 389 (Ky.1972); Kohler v. Commonwealth, 492 S.W.2d 198 (Ky. 1973)). "Otherwise, it will be waived." Id. It appears to us that Appellant's motion was timely. Although it was filed one year after Appellant was allegedly "on notice" of the divorce proceedings, and a month before trial was to begin, it appears to have been "made immediately upon discovery upon which the disqualification rests." Appellant's brief claims that the divorce and custody proceedings "came to light" shortly before trial, and Judge Woodall acknowledged at the hearing on the motion that he had not previously disclosed those proceedings to the defense. The Commonwealth directs us to no authority for applying an "on notice" rule for recusal motions, and we decline to do so. We therefore conclude that Appellant's motion was "timely."
Appellant argues that Judge Woodall erroneously failed to recuse himself
KRS 26A.015(2)(e) provides: "Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding ... [w]here he has knowledge of any other circumstances in which his impartiality might reasonably be questioned." See also SCR 4.300, Canon 3E(1). "The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts `of a character calculated seriously to impair the judge's impartiality and sway his judgment.'" Stopher, 57 S.W.3d at 794 (quoting Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky.1961)). Appellant has failed to make the requisite showing.
We do not believe that Judge Woodall's presiding over the Frensley's divorce and custody proceedings creates the appearance of bias, or calls into question his impartiality. Judge Woodall had no relationship with the Frensleys outside the prior proceedings, and Ethan did not appear before the court in the custody case (although Kayla appeared briefly as a witness). Nor was Kristy's credibility at issue in Appellant's case. As the trial court's order noted, it would only be required to determine the admissibility, not the credibility, of evidence offered by Kristy's testimony, e.g., identifying Appellant as the perpetrator; "it is the jury that will determine the weight and credibility of the witness's testimony."
Further, we do not perceive — and Appellant does not allege — any actual bias from Judge Woodall. As the trial court noted: "The Court's only known bias towards Mr. Dunlap is in his favor: he is innocent until proven guilty beyond a reasonable doubt or until he enters a knowing and voluntary guilty plea."
Appellant cites us to several cases which are easily distinguishable from the case at bar. He relies heavily on Sommers v. Commonwealth, 843 S.W.2d 879 (Ky.1992). In Sommers, two young girls were abandoned by their parents and left in the care of their neighbors, the appellant and his wife. Id. at 880. The appellant's house later burned and the remains of the two girls were found in the ruins. Id. Evidence revealed that the girls died of suffocation before the fire consumed them. Id. The appellant was charged with and ultimately convicted of murdering both girls. Id.
After the appellant was indicted, the news media gave the case substantial coverage, including several criticisms of the district court judge who had presided over the guardianship proceedings and purportedly awarded limited guardianship of the girls to the appellant and his wife.
Shortly after the appellant's indictment, the district court judge was named interim circuit court judge and presided over the appellant's murder trial. The appellant moved for recusal on the grounds that
Id. at 881. The judge denied the motion to recuse, and this Court held that the denial constituted an abuse of discretion.
In the case at bar, we have none of the indicia of impartiality that existed in Sommers. Judge Woodall was not criticized in the media for awarding custody of Ethan to Kristy, nor did he use media outlets to justify his custody order after Ethan was murdered; and, in any event, he did not preside over a guardianship action involving Appellant like the judge in Sommers had. Judge Woodall never publicly made any comments about Appellant or the victims and had no extra-judicial knowledge of Appellant or the victims. Finally, in Sommers, the "proximity of the trial date to the forthcoming election, in view of all the circumstances, was a substantial and, we believe, not unreasonable factor...." Id. at 882. Here, there are no similar circumstances that could be looked upon as Judge Woodall trying to make amends for a previous lapse in judgment before an election in which he was a candidate. In short, none of the factors supporting recusal in Sommers are present in this case.
Finally, and perhaps most significantly, is the practical reality of judicial life in a rural, single-circuit-judge setting spanning four counties. Individuals appear before the court in different roles on a regular basis. A trial judge cannot be expected to recuse him- or herself whenever he or she has previously presided over the past dispute of a present party, victim, complaining witness, testifying witness, or accused. Without some appearance of impartiality, recusal is unnecessary. Here, we perceive no appearance of impartiality, and no actual bias is alleged. We therefore conclude that the trial judge did not abuse his discretion in denying Appellant's recusal motion.
Appellant next argues that the Commonwealth engaged in an improper cross-examination of Dr. Nicholas. Specifically, he contends that the prosecutor elicited irrelevant testimony concerning Dr. Nicholas's previous participation as an expert witness for the defense in an unrelated child-murder case. Additionally, he alleges that the Commonwealth's line of questioning was unduly prejudicial.
During the Commonwealth's cross-examination of Dr. Nicholas, the following exchange occurred:
At this point, defense counsel objected on the grounds that the line of questioning was irrelevant. The Commonwealth answered that "it goes to bias," and the trial court overruled the objection. The exchange resumed:
Appellant argues that the trial court erroneously overruled his objection that the Commonwealth's line of questioning sought to elicit irrelevant testimony. Because this issue is preserved by said objection, the trial court's response will be reviewed for abuse of discretion. See Penman, 194 S.W.3d at 245. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
"[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. "A `fact that is of consequence to the determination of the action' includes not only a fact tending to prove an element of the offense, but also a fact tending to disprove a defense. Relevancy is established by any showing of probativeness, however slight." Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky.1999). "Evidence which is not relevant is not admissible." KRE 402. Additionally, we have noted:
McBeath v. Commonwealth, 244 S.W.3d 22, 36 (Ky.2007) (citations and internal quotation marks omitted).
The Commonwealth's line of questioning was a proper method of exploring Dr. Nicholas's partiality and biases. See id. It was relevant to the question of credibility and it potentially affected the weight the jury assigned his testimony. See id. It also exposed that Dr. Nicholas had a financial interest in testifying on Appellant's behalf. Accordingly, the trial court
Appellant next argues that the Commonwealth's line of questioning was unduly prejudicial. This issue is unpreserved.
KRE 403 provides that even relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice...." The Commonwealth's line of questioning was probative for a number of reasons. As previously noted, it exposed that Dr. Nicholas had a financial interest in testifying on Appellant's behalf, and it revealed a potential defense bias. Additionally, it not only established that Dr. Nicholas had testified in another significant trial for the defense but that he had little memory of that previous trial. The lack of memory suggested that Dr. Nicholas was indiscriminate in the number of cases he took. Speaking of Phillip Knee, the murder defendant in the previous case, Dr. Nicholas stated: "I vaguely recall him. I see a lot of patients. I do a lot of cases." Thus, the Commonwealth's line of questioning revealed that Dr. Nicholas worked on so many cases that he could not remember even the more significant ones.
Appellant cites this Court to Minnesota v. Blasus, 445 N.W.2d 535 (Minn.1989) as authority supporting reversal. In Blasus,
Id. at 538-39. The Supreme Court of Minnesota held that this line of questioning was relevant to bias and to correct a false impression left by the defense that Dr. Stephans testified equally often for both parties. Id. at 539. However, the court agreed with the appellant that the questioning was unduly prejudicial because it "placed [the] appellant in the same category as the defendants in the[] brutal murder cases" in which Dr. Stephans had previously testified. Id. "[A]ny impression that Dr. Stephans testified equally often for the prosecution as for the defense had already been corrected before the prosecutor launched into the objectionable questions." Id. at 540. "[T]he murders referred to were gruesome and reprehensible, and the prosecution intended the jury to mentally link appellant with the frightening violence of these other cases, as is evident by the remarks in closing argument." Id. Thus, the Court reversed and remanded for a new trial. Id.
The same issues simply do not exist here. To begin with, the prosecutor only asked Dr. Nicholas about one specific case that he had previously testified at. In Knee v. Commonwealth, No. 2009-CA-002194-MR, 2011 WL 1706612 (Ky.App. May 6, 2011), Phillip Knee was convicted of second-degree manslaughter for the
Although the facts of the Knee case are tragic, it is not the sort of "gruesome and reprehensible" murder case the prosecutor tried to "mentally link" the appellant in Blasus with. 445 N.W.2d at 540. Nor is it alleged that Knee was a high-profile or otherwise infamous case with which the jury would have been familiar. Rather, it is our opinion that this was a proper method with which to expose bias on cross-examination.
Appellant next argues that the trial court erroneously denied his "Motion to Exclude Gruesome Photographs." He alleges that none of the over fifty pictures introduced by the Commonwealth, which he characterizes as "gruesome" and/or "duplicative," were necessary to prove a point in controversy. Thus, he contends, the photographs created undue prejudice substantially outweighing their probative value.
"[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. "Evidence which is not relevant is not admissible." KRE 402. Even relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice...." KRE 403.
Despite Appellant's guilty plea, the Commonwealth was entitled to explain the circumstances surrounding the crimes and the extent of harm inflicted. Furthermore, the photographs served as proof of the malice necessary to establish the appropriateness of the death penalty. Additionally, the photographs were relevant to prove the existence of aggravating circumstances. See KRS 532.025.
For example, one of the aggravating circumstances asked the jury whether it believed "[Appellant's] act or acts of killing were intentional and resulted in multiple deaths." (Emphasis added). Thus, intent was a "fact that [was] of consequence." KRE 401. In Parker v. Commonwealth, we held that "[p]roof of intent in a homicide case may be inferred from the character and extent of the victim's injuries. Intent may be inferred from actions because a person is presumed to intend the logical and probable consequences
Here, the photographs helped illustrate the circumstances surrounding the crimes. They also aided the medical examiner in explaining the nature, extent, and cause of the injuries, and helped establish that the person who inflicted the wounds intended to cause the victims' death. And,
Id. The photographs were therefore relevant.
It is well-established that otherwise admissible photographs are not excludable simply because they are gruesome and the crime is heinous. See, e.g., id. at 106-07; see also Ratliff v. Commonwealth, 194 S.W.3d 258, 271 (Ky. 2006); Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky.1992); Holland v. Commonwealth, 703 S.W.2d 876, 879 (Ky. 1985); Brown v. Commonwealth, 558 S.W.2d 599, 605 (Ky.1977). Appellant, however, cites us to Clark v. Commonwealth, 833 S.W.2d 793 (Ky.1991) as requiring reversal here. In Clark, we noted the general rule that relevant pictures are not excludable simply because they are gruesome "loses considerable force when the condition of the body has been materially altered by mutilation, autopsy, decomposition or other extraneous causes, not related to commission of the crime...." Id. at 794-95 (emphasis added). Here, however, the decomposition of Ethan and Kortney's bodies was directly attributable to the commission of a crime, i.e., arson, to which Appellant pled guilty. Appellant's argument is therefore without merit.
Appellant next argues that the trial court erred in denying his motion to suppress statements he made to law enforcement officers that were allegedly obtained in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and Section Eleven of the Kentucky Constitution. Specifically,
Law enforcement obtained a search warrant and arrived at Appellant's home on October 18, 2009 — three days after the murders. Detective Sam Steger, the supervising detective that morning, made contact with Appellant and asked him one question: "Do you know why we are here?" Appellant responded: "About the Roaring Springs thing," which is a reference to the area where the murders occurred. This was the only substantive question asked of Appellant at his home.
Detective Steger conceded that Appellant was in custody and that he had not read Appellant his Miranda rights.
The officers brought Appellant back to the Christian County Sheriff's Office where Appellant was read his Miranda rights, which he waived in writing. During his five-hour interview, Appellant denied any involvement in the crimes, asserted he was not in Roaring Springs on the date in question, and maintained that his answer to Detective Steger's question was the product of media coverage, and not premised upon any personal knowledge he possessed.
Appellant filed a pretrial motion to suppress and the trial court held a suppression hearing in May 2009. Appellant alleged that his answer to Detective Steger's question was inadmissible because he had not been Mirandized and any statements made thereafter were also inadmissible because they were tainted by the initial un-Mirandized interrogation. The trial court's subsequent order made the following conclusions of law relevant to our discussion: (1) Detective Steger's question amounted to an "interrogation" under Miranda, and "since the Defendant was in custody, given the presumption of inherent coerciveness without Miranda warnings, the unwarned statement must therefore be suppressed"; and (2) relying on Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), Appellant's statements at the Sheriff's Office were not "tainted" by his earlier, non-admissible statement, were given voluntarily after a valid waiver of his rights, and were therefore admissible.
Resolution of this issue requires us to address three sub-issues. First, we must determine whether Appellant, by virtue of his guilty plea, waived his right to challenge the trial court's denial of his suppression motion. If not, we must then determine whether Detective Steger's un-Mirandized question, "Do you know why we are here," constitutes custodial interrogation in violation of Miranda and thereby renders Appellant's answer to that question inadmissible. And, if we answer that
The Commonwealth argues that Appellant waived his right to challenge the trial court's denial of his suppression motion by virtue of his unconditional guilty plea. Summarizing our jurisprudence on this issue, we noted in Thompson v. Commonwealth that
147 S.W.3d 22, 39 (Ky.2004) (citations omitted), superseded by statute on other grounds as recognized in Jackson v. Commonwealth, 363 S.W.3d 11, 19 n. 3 (Ky. 2012). See also Blackledge v. Perry, 417 U.S. 21, 29-30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (summarizing U.S. Supreme Court's jurisprudence with regard to effect of guilty plea on challenging rights violations at subsequent habeas action). What is unclear from our precedents, however, is whether this rule applies equally to situations like the one at bar where a defendant preserves his right to be sentenced by a jury for his capital crimes.
The Supreme Court of Georgia addressed a similar issue in Christenson v. Georgia, 261 Ga. 80, 402 S.E.2d 41 (1991). In Christenson, the defendant was charged with murder and theft of the victim's automobile. Id. at 44. He pled guilty to the theft and was convicted by a jury of murder. Id. at 44, 51. During the sentencing phase, the prosecution offered into evidence a statement the defendant made after his arrest for theft. Id. at 51. The defendant requested a hearing to determine whether the statement was voluntary and whether he had been informed of and waived his Miranda rights. Id. The prosecution argued that was unnecessary because he had pled guilty to theft and thereby waived any objection to the interrogation, id.; the trial court agreed with the prosecution and denied the motion. Id.
The Supreme Court of Georgia disagreed, holding that the defendant's guilty plea to automobile theft did not waive his right to a hearing to determine the statement's admissibility. Id. The Court concluded:
Id. (quoting Hatcher v. Georgia, 259 Ga. 274,
We are persuaded by this analysis and hold that a guilty plea does not waive a challenge to the penalty phase admissibility of a statement allegedly procured in violation of Miranda. First, Miranda warnings are a prophylactic measure "to insure that the right against compulsory self-incrimination was protected." Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). In Estelle v. Smith, the Supreme Court held that this Fifth Amendment right is equally applicable to the guilt and penalty phases of a bifurcated trial:
451 U.S. 454, 462-63, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (citations omitted).
Second, we have previously stated that a guilty plea "waives all defenses to the original charges" (other than that the indictment fails to charge an offense). Corbett v. Commonwealth, 717 S.W.2d 831, 832 (Ky.1986) (emphasis added). Appellant is not challenging his convictions to the original charges, but rather alleging a procedural defect of constitutional magnitude in his penalty phase. We therefore conclude that Appellant did not waive this issue in the penalty phase by virtue of pleading guilty during the guilt phase.
Next, we must determine whether Detective Steger's question, "Do you know why we are here," constitutes custodial interrogation under Miranda, 384 U.S. at 444, 86 S.Ct. 1602. It is uncontested that Appellant was in custody at the time. Thus, the only issue is whether there was an interrogation as defined by law. "[T]he term [interrogation] under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). We conclude that Detective Steger's question does constitute an "interrogation" for Miranda purposes.
First, Detective Steger knew, or should have know, that it was reasonably likely to elicit an incriminating response (which, incidentally, it did). Detective Steger even testified that he considered Appellant's response incriminating. Second, although it could be argued that the question is one that is "normally attendant to arrest and custody," Innis, 446 U.S. at 301, 100 S.Ct. 1682, it is not the sort of
We acknowledge that the Supreme Court of Rhode Island has come to the opposite conclusion, albeit in dicta,
Our conclusion is reinforced by another similar case. In Wisconsin v. Cleaver, law enforcement was called to the defendant's home and informed of a dead infant found in the defendant's closet. 706 N.W.2d 702 (Wis.Ct.App.2005) (unpublished table decision). The defendant was suspected of murdering the infant, retrieved from her place of employment, taken back to her home, and delivered to an officer investigating at the scene of the crime. Id. Without advising the defendant of her Miranda rights, the officer asked her: "Do you know why we're here today?" The defendant answered either "because of my baby" or "because of what you found in my basement." Id. The trial court found that under the totality of the circumstances the officer's question constituted an interrogation and, finding that the defendant was in custody at the time, it suppressed her statement. Id. The appellate court affirmed. Id.
Finally, in Elstad, (which will be discussed in greater detail infra), the U.S. Supreme Court treated a similar, albeit slightly longer, interaction as a custodial interrogation. 470 U.S. at 301, 105 S.Ct. 1285. In Elstad, law enforcement asked the respondent, an eighteen-year-old who
In sum, we hold that Detective Steger's question to Appellant, "Do you know why we are here?" constitutes a custodial interrogation under the facts of this case. Detective Steger arrived at Appellant's home with several law enforcement officers and the S.W.A.T. team; under these circumstances, he should have reasonably expected an incriminating response. That is not to say, however, that an incriminating response was coerced. As Elstad explains, "[t]he failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against Compulsory self-incrimination has not been intelligently exercised." Id. at 310, 105 S.Ct. 1285. Applying this presumption, as we must, we conclude the trial court properly suppressed Appellant's answer to Detective Steger's unwarned question.
Finally, Appellant argues that the statement he gave to detectives at the Christian County Sheriff's Office should have been suppressed because, although he had been properly Mirandized by that point, it was tainted by the previous un-Mirandized exchange between him and Detective Steger. We disagree.
As previously noted, in Elstad, law enforcement asked the respondent whether he knew why they were at his home. Id. at 301, 105 S.Ct. 1285. He responded that he did not, but after another brief exchange he admitted he knew the person who had been burglarized and that he was at the person's home when the burglary occurred. Id. He had not been given Miranda warnings. See id. Later, at the Sheriff's Office, the defendant was read his Miranda rights and, after waiving those rights, he provided a statement acknowledging his role in the crime.
The respondent argued that both statements must be suppressed — the un-Mirandized oral statement "`let the cat out of
Instead, the Court determined that properly-warned statements made subsequent to an un-Mirandized statement should be looked at with an eye toward what Miranda was most concerned with: coercion. Id. at 309, 105 S.Ct. 1285.
Id. This is precisely the situation presented by this case: although Detective Steger failed to issue Miranda warnings, thereby rendering Appellant's "[a]bout the Roaring Springs thing" response inadmissible, the trial court found that his question was "unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will...." Id. Thus, we must determine the admissibility of Appellant's subsequent, post-warning statement by whether it was "knowingly and voluntarily made," or whether it was coerced.
With respect to this question, Appellant argues that he was compelled to explain his answer to Detective Steger's unwarned question, thereby rendering his Mirandized statement not truly voluntary. However, this is the very same "cat out of the bag" theory the Supreme Court debunked in Elstad where it noted that it "has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver." Id. at 312, 105 S.Ct. 1285. "When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder." Id. Thus,
Id. at 314, 105 S.Ct. 1285.
In the case at bar, the trial court made the following relevant findings of fact: (1) "Detective Sgt. Steger's actions and question were not coercive or abusive"; (2) "[Appellant] was advised of his Miranda rights [at the Sheriff's Office] and checked each of them on a written form and stated he understood them and he voluntarily waived them and would make a statement without counsel present"; (3) "[n]either interviewing officer saw any indication that the Defendant was intoxicated or otherwise unable to speak on an intelligent and
Applying the law to these facts, we hold that the trial court properly denied Appellant's motion to suppress the statement he gave to the detectives at the Christian County Sheriff's Office. Although Appellant's answer to Detective Steger's initial question must be suppressed as presumptively coercive, id. at 309, 105 S.Ct. 1285, "[n]o further purpose is served by imputing `taint' to subsequent statements obtained pursuant to a voluntary and knowing waiver," id. at 318, 105 S.Ct. 1285. "[A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. Accordingly, suppression of Appellant's Mirandized statement was unwarranted.
Having concluded that the trial court properly denied Appellant's motion to suppress the statement he gave to law enforcement at the Christian County Sheriff's Office, we must now address whether portions of that recorded statement were properly played for the jury.
Again, we point out that "[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. "A `fact that is of consequence to the determination of the action' includes not only a fact tending to prove an element of the offense, but also a fact tending to disprove a defense. Relevancy is established by any showing of probativeness, however slight." Springer, 998 S.W.2d at 449. "Evidence which is not relevant is not admissible." KRE 402.
The Commonwealth introduced portions of Appellant's videotaped statement to counter Appellant's anticipated mitigation defense that he was mentally ill at the time of the murders and that the AVM on his brain affected his judgment and discretion. The videotaped interview, recorded a mere three days after the crimes, was intended to deflate Appellant's mental illness defense. In this light, we agree that the video had probative value. As the Commonwealth notes, "Appellant attempts to argue that his rape and attempted [murder] of a mother and the murder of her three children were caused by a brain defect but that this same defect had no manifestation in any of his answers, actions, mannerisms, or character as seen in the videotaped statement to police." Because Appellant's mitigation evidence consisted in large part of medical evidence of
Nor do we think its probative value is substantially outweighed by the danger of undue prejudice. Appellant argues that the video "merely showed to the jury that Dunlap initially lied to the police about his involvement. This evidence had already been presented to the jury and the video was cumulative and unduly prejudicial." His argument misses the point. The video was not introduced to demonstrate that Appellant lied to police, but rather that he did not appear to be suffering from a mental illness or brain defect impairing his judgment or discretion. The trial court therefore properly overruled Appellant's motion to exclude the videotape.
Appellant next argues that the trial court erred by failing to declare a mistrial and change of venue after a threatening letter was sent from an unknown source to the Commonwealth's Attorney. This issue is preserved.
Amid the jury selection phase, the Commonwealth's Attorney received a letter, sent to his post office box and addressed to him personally, with no return address. It reads:
Appellant moved for a mistrial and a change of venue based upon the "chilling effect" the letter's contents had on defense counsel. The Commonwealth's Attorney objected to the motion, stating that he did not perceive the letter as a direct threat, and "[a]s far as a chilling effect, I can't see that. This trial has been security conscious and one letter doesn't provide grounds for a mistrial."
The trial court denied Appellant's motion, stating:
Appellant contends that the trial court's ruling violated his Sixth Amendment right to counsel in that the defense team had to operate under a death threat and could not devote its full attention to his defense. Although courthouse security was on heightened alert, Appellant alleges that to "proceed with the entire trial, knowing that one must walk away from the courthouse, enter one's car, drive to another location, and make the round trip the next day, every day, would have a chilling effect on anyone, and necessitate that they `tone down their defense.'"
"Whether to grant a mistrial is within the sound discretion of the trial court, and `such a ruling will not be disturbed absent ... an abuse of that discretion.'" Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky.2005) (quoting Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky.2004)), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.2010). "A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity." Id. (citing Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky. 1985)). "The error must be `of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way [except by grant of a mistrial].'" Id. (quoting Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky.1996)). See also Radford v. Lovelace, 212 S.W.3d 72, 80 (Ky.2006) ("[M]ost critically, the decision should be based on whether the complained of `event ... prevented the [party] from receiving a fundamentally fair trial.'") (quoting Commonwealth v. Scott, 12 S.W.3d 682, 685 (Ky.2000)). "And, the court must always assess if the parties' interest in seeing the first trial through to a verdict [is] outweighed by competing and equally legitimate demand for [protection of the parties' rights and] public justice." Radford, 212 S.W.3d at 80 (quoting Scott, 12 S.W.3d at 685) (internal quotation marks omitted).
When weighing the interests involved, we cannot conclude that the trial court abused its discretion. When the Commonwealth's Attorney received the letter — at the end of the sixth day of trial — he alerted the local law enforcement authorities. The Administrative Office of the Courts was also notified and the trial judge alerted court security officers. Given that the source of the letter was unknown, all necessary steps were taken to ensure the safety of all the parties and the spectators. Granting a mistrial would have erased not only the trial preparations — including subpoenaed witnesses — of both parties, but would have also erased six days of work in choosing a death-penalty-qualified jury. We cannot say that the trial court abused its discretion in concluding that "the parties' interest in seeing the first trial through to a verdict [is] outweighed by competing and equally legitimate demand for [protection of the parties' rights and] public justice." Id. Indeed, we do not believe Appellant's Sixth Amendment rights were violated either by being required
Appellant correctly notes that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). He fails to explain, however, how he was denied this right. It seems to us after an exhaustive review of the record that despite the letter's contents, counsel defended Appellant against the Commonwealth's accusations competently, thoroughly, and admirably. Thus, we cannot say that the trial court clearly abused its discretion by concluding a mistrial was not manifestly necessary; that conclusion is not "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
With respect to the change of venue, Appellant argues that he was denied due process by being tried among an inflamed community atmosphere which precluded the seating of an impartial jury. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Appellant claims that even though there was "a surface indicia of impartiality from prospective jurors, that indicia must be disregarded... [because] `the general atmosphere in the community or courtroom [was] sufficiently inflammatory'" to grant a change of venue. Quoting Murphy v. Florida, 421 U.S. 794, 802, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).
In Sheppard v. Maxwell, the U.S. Supreme Court held that "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity." 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Additionally, KRS 452.210 provides:
Appellant argues that he could not receive a fair trial in Livingston County. We disagree.
There was evidence that one anonymous person — who may or may not have been a member of the community in which Appellant was being tried — was unhappy that our system of justice entitles Appellant to a fair trial before he may be sentenced to death. Without more, one miscreant member of the community cannot dictate where a criminal defendant is tried, especially when that member of the community has shown complete disregard for the American and Kentucky systems of justice by threatening a trial court, an accused, and/or his attorneys. Appellant had already been granted a change of venue from Trigg County to Livingston County upon joint motion of the Commonwealth and defense counsel. Other than this one letter, there was no evidence, much less a "reasonable likelihood," Sheppard, 384 U.S. at 363, 86 S.Ct. 1507, that defendant could not receive a fair trial in Livingston County. Indeed, upon defense counsel's argument that the letter's author may
Thus, we hold that the trial court did not abuse its discretion in denying Appellant's motions for a mistrial and change of venue. Simply put, the letter did not prevent Appellant "from receiving a fundamentally fair trial." Radford, 212 S.W.3d at 80.
Appellant next argues that the mitigating circumstances instruction was unconstitutional because, when read in context with the instructions as a whole, it required the jury to be unanimous in its findings of any mitigating circumstances. This issue is unpreserved.
The mitigating circumstances instruction in this case provided:
Appellant alleges that there is a substantial probability that the jury understood the term "you" to mean "the entire jury unanimously" because most of the other uses of the term "you" in the jury instructions refer to the jury in the collective. Similar arguments were considered, and rejected, in several previous cases. See Meece, 348 S.W.3d at 719; Hunt v. Commonwealth, 304 S.W.3d 15, 50 (2009); Soto, 139 S.W.3d at 870; Caudill v. Commonwealth, 120 S.W.3d 635, 674 (2003); Bowling, 873 S.W.2d at 180. "`The 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, 304 S.W.3d at 50 (quoting Mills, 996 S.W.2d at 492 (citing Bowling, 873 S.W.2d at 180)).
We also note that during his closing argument defense counsel specifically told the jury that it did not have to be unanimous in deciding whether something was or was not mitigating: "Each one of you
Appellant next argues that he was deprived of his right to a unanimous verdict because the aggravating circumstances instruction presented alternate theories — arson, burglary, rape, or murder — and one of those theories, rape, "is totally unsupported by the evidence." This issue is unpreserved;
Appellant cites us to a footnote from this Court's 1980 opinion in Gall v. Commonwealth, where we construed "the statutory language of KRS 532.025(2)(a) pertaining to rape as meaning that the murder was committed incident to a rape, as distinguished from its having been committed during the physical act of sexual intercourse." 607 S.W.2d at 122 n. 10. Then, citing to www.dictionary.com, he explains that incident is defined as "resulting from." Thus, he argues that "the kidnapping and murders of the three children were in no way incidental to — that is, resulting from — the rape of Kristy Frensley, which occurred in a separate room." And, he continues, there is no way to know whether each juror based his or her finding upon a qualifying prior conviction (e.g., arson, burglary, murder), or the unqualified rape conviction when they found the aggravator.
First, we look to Appellant's argument, which rests in large part upon a very selective (and restrictive) definition of the word incident. Black's Law Dictionary (9th ed. 2009) defines incident as "[d]ependent upon, subordinate to, arising out of, or otherwise connected with (something else, usu. of greater importance)." Clearly, Kristy's rape was an act "subordinate to ... or otherwise connected with" the kidnapping and murder of her children in the sense that it was one heinous event in a continuing course of horrific conduct.
Secondly, we consider whether the instructions create a unanimity issue violating Appellant's rights under Section 7 of the Kentucky Constitution. See, e.g., Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky.1978) ("Section 7 of the Kentucky Constitution requires a unanimous verdict reached by a jury of twelve persons in all criminal cases."). Admittedly, this Court has recently expanded its unanimous verdict jurisprudence. See Johnson v. Commonwealth, 405 S.W.3d 439 (Ky.2013); Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky.2013). However, Johnson and Kingrey are distinguishable in that they dealt with a scenario involving multiple instances of a crime under a single count, i.e., where one "general jury verdict [is] based on an instruction including two or more separate instances of a criminal offense." Johnson, 405 S.W.3d at 449. In these types of cases, the jury instruction allows the jury to find the defendant guilty of one count of Crime X, but the indictment alleges an extended occurrence time, say June 2009 through July 2010, and the facts establish that the defendant committed two crimes, one on Date 1 and one on Date 2; a guilty verdict establishes that each juror believed that the defendant committed Crime X, but it is unclear whether they unanimously agreed that he committed it on Date 1 and/or Date 2, during the relevant occurrence period.
Here, we have a situation in which the instructions permit the jury to find aggravating circumstances based upon arson, burglary, or rape for the murder charges, and arson, burglary, rape, or murder for the kidnapping charges, but it is unclear from the verdict forms whether the jury unanimously based its verdict upon the same aggravator or aggravators.
Id. We held that this instruction did not create a unanimity error because both theories, intentionality and wantonness, were supported by the evidence and resulted in the same crime. Id. at 110. Thus, whereas Johnson and Kingrey deal with jury instructions regarding multiple instances of the same crime, Hudson deals with multiple theories, all of which support a conviction for the same offense and are therefore punishable by the same penalties. See also Benjamin v. Commonwealth, 266 S.W.3d 775, 784-85 (Ky.2008); Wells v. Commonwealth, 561 S.W.2d 85, 88 (1978). Appellant's aggravating circumstances instruction is arguably more like the murder instructions in Hudson, Benjamin, and Wells in that the different acts, i.e., arson, burglary, rape, and murder, are all different "theories" that support a conviction of the same "offense," i.e., the aggravating circumstance.
Even if we were to decide (which we do not) that this would create a unanimity error, we still could not conclude that such error would be prejudicial. See Sanders, 801 S.W.2d at 668. First, Appellant's guilty pleas are sufficient by themselves to establish the existence of the aggravating circumstances. With respect to the first aggravating circumstance for the murder conviction: "The offense of Murder was committed while the Defendant was engaged in the commission of Arson in the First Degree, Burglary in the First Degree, or Rape the First Degree" was satisfied by his respective guilty pleas to those three crimes. With respect to the aggravating circumstance for the kidnapping conviction: "The offense of kidnapping was committed while the Defendant was engaged in Arson in the First Degree, Burglary in the First Degree, Rape the First Degree, or Murder in the First Degree" was satisfied by Appellant's respective guilty pleas to those crimes. Thus, there is a virtual certainty that, under the facts of this case, the jury unanimously found that those aggravating circumstances existed beyond a reasonable doubt.
Second, with respect to the three murder convictions, the jury found a second, separate and independent aggravating circumstance to exist in which no unanimity issue is alleged (or possible): "The Defendant's act or acts of killing were intentional and resulted in multiple deaths." See note 34, supra. Thus, even if we threw out the instruction to which Appellant now assigns unanimity error, the jury's death penalty recommendation would still rest upon an independent aggravator, found to exist beyond a reasonable doubt with regard to the three murders. Accordingly, we cannot conclude that "minus the error,... the death penalty may not have been imposed." Sanders, 801 S.W.2d at 668.
Appellant next argues that that the penalty phase jury instructions denied him reliable capital sentencing, and violated his right to a fair trial and due process. He assigns seven separate errors to the jury instructions; we will address each in turn.
Appellant argues that the trial court erred by failing to instruct the jury that a non-death verdict was possible even if it found aggravating circumstances existed. This issue is unpreserved.
First, the jury instructions and verdict forms comport with Kentucky Instructions to Juries (Criminal) § 12.10 (rev. 5th ed. Cooper 2012). "[W]e do not deem the use of [Section 12.10] to be reversible error." Caudill, 120 S.W.3d at 675. See also Hodge, 17 S.W.3d at 854; Foley v. Commonwealth, 942 S.W.2d 876, 888 (Ky. 1996).
Clearly, then, Appellant's argument is without merit.
Appellant next argues that the trial court's reasonable doubt instruction invaded the province of the jury and caused it to believe that it must impose the death penalty unless there was a reasonable doubt that death was the appropriate punishment. We have previously considered, and rejected, this argument. See Parrish v. Commonwealth, 121 S.W.3d 198, 206 (Ky. 2003) ("The abstract analysis urged by Parrish is logically flawed. The mechanics of the argument resemble a tautology in that it is composed of simpler statements in a fashion that makes it seem true whether the simpler statements are true or false."), overruled on other grounds by Brown, 313 S.W.3d 577. The instructions provide: "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." Considering an identical instruction in Parrish, we concluded: "These instructions do not violate the statutory system, nor do they invade the province of the jury." Id. Thus, Appellant's argument is without merit.
Appellant next argues that the trial court should have instructed the jury that
Appellant cites us to no authority supporting the argument that the jury should have been instructed that a death sentence would be carried out by means of lethal injection. And,
Meece, 348 S.W.3d at 722. Our position remains unchanged.
Appellant next argues that the trial court erred by failing to instruct the jury to make findings concerning non-statutory aggravating circumstances. This issue is vague and unpreserved.
To begin with, it is entirely unclear why Appellant would want a jury to be instructed that it could consider non-statutory aggravators in addition to statutory aggravators. It seems to us that the fewer aggravators under consideration, the less likely it is he will receive an enhanced sentence. And even if we were to deem this to be error, we fail to perceive how it could have been prejudicial. Appellant received six death sentences based upon the jury's finding of statutory aggravators; how he possibly could have been prejudiced by the trial court's failure to instruct the jury that an enhanced sentence could also be imposed upon a finding of non-statutory aggravating circumstances escapes us.
In any event, Appellant is incorrect in arguing that a death sentence may rest upon a finding of non-statutory aggravating circumstances. Although he contends that this was our holding in Jacobs v. Commonwealth, 870 S.W.2d 412, 419 (Ky.1994), we do not read Jacobs to stand for that proposition. And even if Jacobs did so hold, it would have been superseded by our more recent pronouncement in Hunt where we rejected the very argument Appellant is making here:
Appellant next argues that the jury instructions were erroneous because they failed to require the jury to prepare written mitigation findings. This issue is unpreserved. In Smith v. Commonwealth, 599 S.W.2d 900 (Ky.1980), defense counsel tendered an instruction along these lines and this Court held it was not error for the trial court to reject the instruction. Id. at 912. Appellant therefore urges us to overrule Smith. Finding no compelling reason to do so, we decline his invitation and repeat: "There is no requirement that the jury make written findings on mitigation." Skaggs, 694 S.W.2d at 680.
Appellant next argues that an instruction "informing the jury that a death sentence cannot be imposed simply because of passion or prejudice should have been given." This issue is unpreserved. KRS 532.075(3)(a), however, requires this Court to determine whether a death sentence "was imposed under the influence of passion, prejudice, or any other arbitrary factor...." 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. See Meece, 348 S.W.3d at 723.
Appellant next argues that the trial court failed to (1) define mitigating circumstances and (2) specify the standard of proof regarding mitigation. He contends that by failing to explain to the jury that it could find a mitigating factor if supported by "any evidence," by a "preponderance of the evidence," or "if you believe it to be true," there is "more than a substantial probability that the jurors erroneously believe[d] the burden is on a defendant to prove a mitigating factor beyond a reasonable doubt." This issue was preserved by Appellant's proposed jury instructions. RCr 9.54(2).
With respect to mitigating circumstances, the jury was instructed as follows:
We conclude that the trial court's instructions were adequate.
With respect to the argument that the instructions lack a sufficient definition, there is no constitutional requirement "to provide a formal definition of mitigating circumstances or their function." Tamme v. Commonwealth, 973 S.W.2d 13, 37 (Ky. 1998). "`Jury instructions at the sentence stage of a capital trial need not include any particular words or phrases to define the concept of mitigation or the function of mitigating circumstances.'" Id. (quoting Waters v. Thomas, 46 F.3d 1506, 1528 (11th Cir.1995)).
With respect to the argument that the instructions fail to offer a standard of proof, "[s]ince a jury is not required to make findings with regards to mitigators, but only to consider them, there is no need to define the standard of proof." Tamme, 973 S.W.2d at 38. See also Stopher, 57 S.W.3d at 804. And, in any event, the trial court's instructions and Appellant's proposed instructions use an identical "standard"; both provide that the jury "shall consider such mitigating or extenuating facts and circumstances as have been presented to you in the evidence and you believe to be true...." See note 38, supra. Appellant is not entitled to relief on this issue.
In sum, Appellant was not denied due process, a fair penalty hearing, or reliable sentencing by the trial court's instructions to the jury.
Appellant next argues that he was denied due process when the trial court enhanced his sentence using aggravating circumstances not presented to a grand jury or charged in his indictment. He contends that the U.S. Supreme Court's decisions in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), require that aggravating circumstances be charged in the indictment if the prosecution wants to use them to increase punishment. We have previously considered, and rejected, this very argument. See, e.g., Hunt, 304 S.W.3d at 54; Ernst v. Commonwealth, 160 S.W.3d 744, 752 (Ky.2005); Soto, 139
Appellant next argues that his rights to be free from being placed in double jeopardy and from being punished twice for the same conduct was violated when (1) he was convicted of murder and capital kidnapping based on the same killing of the same victim, and (2) that same murder was used as an aggravating circumstance to enhance his kidnapping sentence to make him death-eligible, i.e., "double enhancement." He contends that these scenarios violate his rights under the double jeopardy clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), as well as his Eighth Amendment right to be free of cruel and unusual punishments. See also Ky. Const. §§ 13, 17. This issue is unpreserved.
We have previously considered, and rejected, both of Appellant's arguments. With respect to the argument that one cannot be convicted of both murder and capital kidnapping based upon the same killing of the same victim, see St. Clair v. Roark, 10 S.W.3d 482, 487 (Ky.1999).
Appellant next argues that the jury's "duplicative use of several aggravators" to support the death sentence for each of the three murder convictions was improper. Specifically, he contends that the doctrine of "mutually supporting aggravating circumstances" precludes the imposition of multiple death sentences based on the reciprocal use of the aggravator of "multiple murder." He alleges that this practice violates the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, and Sections 1, 2, 3, 11, 13, 17, and 26 of the Kentucky Constitution, as well as KRS 505.020. This issue is unpreserved.
Essentially, Appellant argues that the statutory aggravator found in KRS 532.025(2)(a)6. — "The offender's act or acts of killing were intentional and resulted in multiple deaths" — is unconstitutional. We have previously held that this provision is constitutional. Bowling v. Commonwealth, 942 S.W.2d 293, 305 (Ky.1997), overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441 (Ky.2011); Bowling, 873 S.W.2d at 181; Simmons v.
Appellant next argues that the trial court violated the Fifth Amendment's prohibition against double jeopardy when it used his convictions for arson, burglary, rape, and murder as the aggravating circumstances required to impose his death sentences. See also Ky. Const. § 13. This issue is unpreserved. However, we have previously considered, and rejected, Appellant's argument. See Woodall, 63 S.W.3d at 132; Bowling, 942 S.W.2d at 308; Perdue, 916 S.W.2d at 161; Wilson v. Commonwealth, 836 S.W.2d 872, 891 (Ky. 1992), overruled on other grounds by St. Clair, 10 S.W.3d at 487; Sanders, 801 S.W.2d at 682. The U.S. Supreme Court has also rejected this argument. See Witte v. United States, 515 U.S. 389, 398, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) ("[W]e specifically have rejected the claim that double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime."); Williams v. Oklahoma, 358 U.S. 576, 585-86, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959). Appellant is therefore not entitled to relief on this issue.
Appellant next argues that imposing a death sentence for kidnapping that results in death violates the Eighth Amendment's prohibition against cruel and unusual punishment. See also Ky. Const. § 13. We have previously considered, and rejected, Appellant's argument. See Salinas v. Commonwealth, 84 S.W.3d 913, 916 (Ky. 2002); St. Clair, 10 S.W.3d at 486. He contends, however, that because the majority of jurisdictions do not impose the death penalty for kidnapping that results in death,
Appellant next argues that sentencing him to death violates the Eighth Amendment's prohibition against cruel and unusual punishment. See also Ky. Const. § 17. Specifically, he contends that he is "mentally ill" and urges this Court to announce a new categorical bar to imposing the death penalty upon mentally ill persons. This issue was preserved by Appellant's motion titled "Motion to Exclude Death Penalty Because Defendant is Mentally Ill"; we will therefore assume for the sake of argument that Appellant suffers from a mental illness.
In a relatively recent, evolving line of cases, the U.S. Supreme Court has held that the Eighth and Fourteenth Amendments to the U.S. Constitution prohibit the
We are not prepared to hold that mentally ill persons are categorically ineligible for the death penalty. To begin with, "[m]ental illnesses come in many forms; different illnesses may affect a defendant's moral responsibility or deterrability in different ways and to different degrees." Ohio v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 1059 (2006). A categorical bar, applying equally to persons suffering from paranoid schizophrenia and bulimia, would be unwise.
Rather, we are persuaded by the reasoning in Hancock, where the Supreme Court of Ohio declined to establish a categorical bar to imposing the death penalty upon all persons with even severe mental illnesses. Id. It is better, we think, to acknowledge that like its Ohio counterpart, KRS 532.025(2)(b)
Id. at 1059-60. Accordingly, even assuming Appellant is mentally ill, he is not entitled to relief on these grounds.
Appellant next argues that his death sentences are arbitrary and disproportionate in light of (1) the mitigating circumstances surrounding his crimes, and (2) other cases with similar offenses and aggravators in which the defendant did not receive the death penalty. Thus, he apparently alleges that his death sentences are cruel and unusual, U.S. Const. amend. XIII, XIV, Ky. Const. § 17, and violate his guarantee to equal protection of the law, U.S. Const. amend XIV. This issue is unpreserved.
Appellant first argues that his brain malformation, depression, anxiety disorder, history of substance and alcohol abuse, family circumstances, military service, and minimal criminal record provide sufficient mitigation to render his death sentences arbitrary and disproportionate. We disagree.
Here, the jury found the following aggravating circumstances to exist with respect to all three murders: (1) "The offense of murder was committed while the Defendant was engaged in the commission of Arson in the First Degree, Burglary in the First Degree, or Rape in the First Degree, and (2) The Defendant's act or acts of killing were intentional and resulted in multiple deaths." Additionally, the jury found the following aggravating circumstance existed with respect to each capital kidnapping charge: "The offense of Kidnapping was committed while the Defendant was engaged in the commission of Arson in the First Degree, Burglary in the First Degree, Rape in the First Degree, or Murder in the First Degree." Clearly, then, the jury was authorized to recommend the death penalty.
In addition to the statutory aggravators, the heinousness of the crimes persuades us that the death sentence was neither arbitrary nor disproportionate. Appellant pled guilty to kidnapping three children, stabbing them to death, and setting their house on fire. He stabbed Ethan, a five-year-old child, nine times: twice in the chest (including one that penetrated his heart), five times in his left back, once in his right back, and once in his stomach. He stabbed Kortney, a fourteen-year-old child, four times: three times in her chest (penetrating her left lung) and once to the right side of her neck. He tied seventeen-year-old Kayla's hands and gagged her mouth before cutting her throat from ear to ear, deep enough that her trachea was visible. I this light, it strains logic to characterize Appellant's death sentences as "arbitrary." The Constitution does not require a sentencing jury to completely discount the heinousness of the crimes in favor of mitigating circumstances.
Moreover, as we recently recounted:
Meece, 348 S.W.3d at 726. Here, the evidence was more than sufficient and the jury's findings supported a sentence of death. Thus, Appellant's death sentence was neither arbitrary nor disproportionate to the evidence adduced.
Nor are we persuaded that Appellant's sentences are disproportionate in relation to similar crimes.
Hunt, 304 S.W.3d at 52. Appellant cites us to Commonwealth v. Reyes, 764 S.W.2d 62 (Ky.1989); Sommers v. Commonwealth, 843 S.W.2d 879 (Ky.1992); and Commonwealth v. Phon, 17 S.W.3d 106 (Ky.2000), as cases that involve individuals who "`deserve' capital punishment as much, or more so than he [but] have escaped it." Appellant's argument is belied by the faulty premise that all heinous murders must be punished by death. To the contrary, "a jury can reject a death sentence for any (or no) reason at all." Ordway, 391 S.W.3d at 786.
In any event, pursuant to our statutory requirement, we have thoroughly reviewed the record and conclude that the death sentence rendered in this case was not imposed under the influence of prejudice, passion, or any other arbitrary factor. Nor is the sentence disproportionate to the penalty imposed in similar cases which we have reviewed. We paid particularly close attention to those cases involving multiple intentional murders, as listed in Hodge, 17 S.W.3d at 855, and those rendered subsequent to Hodge. See Ordway, 391 S.W.3d 762; Meece, 348 S.W.3d 627; Chapman, 265 S.W.3d 156; Epperson v. Commonwealth, 197 S.W.3d 46 (Ky.2006); Soto, 139 S.W.3d 827; Garland v. Commonwealth, 127 S.W.3d 529 (Ky.2003); Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky.2003); Parrish, 121 S.W.3d 198; and Osborne v. Commonwealth, 43 S.W.3d 234 (Ky.2001). We have also considered the cases Appellant cited involving multiple murders that did not result in the death penalty. See Phon, 17 S.W.3d 106;
Appellant next assigns error to this Court's method of proportionality review. First, he contends that our proportionality review is flawed because it is limited to only those cases in which the death penalty was imposed, and not to all other "similar cases" in which death was not imposed; he also suggests that our review is limited to only those cases which have been affirmed on appeal. Second, he alleges that his inability to access data collected pursuant to KRS 532.075(6) violates various constitutional rights. We have previously considered, and rejected, both of these arguments. See, e.g., Hunt, 304 S.W.3d 15, 52 (Ky.2009).
For the sake of clarity and completeness, we repeat:
Id. at 52-53. Accordingly, Appellant is not entitled to relief on this issue.
Appellant next contends — in five separate sub-arguments — that the death penalty is unconstitutional. We will address each argument in turn.
First, relying upon Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky.1994), and Harris v. Commonwealth, 793 S.W.2d 802 (Ky.1990), Appellant argues that KRS 532.025 is unconstitutional in that it makes all murder defendants death eligible because murder is a capital offense. This, Appellant 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
Appellant next argues that the statutory scheme by which he was sentenced to death provides no standards to guide the sentencer's decisions. In this respect, he makes several arguments — all of which we have previously rejected. Thus, we repeat what we have previously held:
Fields, 274 S.W.3d at 419. Appellant is not entitled to relief on this issue.
Appellant next argues that that the death penalty is applied in a discriminatory manner in Kentucky in that it is disproportionately imposed against African Americans and males. However, both this Court and the Sixth Circuit have rejected this argument. McQueen v. Scroggy, 99 F.3d 1302, 1333 (6th Cir.1996), overruled on other grounds by In re Abdur' Rahman, 392 F.3d 174 (6th Cir.2004); Epperson, 197 S.W.3d at 62-63. And, we are not persuaded to hold otherwise now.
We pause here to note, as did the Sixth Circuit in McQueen, that Appellant's "primary claim appears to be that the death penalty is disproportionately applied to blacks in the State of Kentucky." 99 F.3d at 1333. Because Appellant is white, "it is doubtful that [his] claim that the operation of Kentucky's death penalty statute is racially biased has anything other than an academic relevance to this case." Id.
Appellant next argues 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.
Finally, Appellant argues that we should reconsider the constitutionality of the death penalty in light of the statistical data reflecting wrongful convictions in capital cases. We begin by noting that this request is somewhat disingenuous in Appellant's case considering he pled guilty to six capital offenses and DNA evidence supported this plea. Second, as we noted in Meece:
348 S.W.3d at 728. Thus, Appellant is not entitled to relief on this issue.
Appellant's final argument is that if we do not find any individual issue sufficient to require reversal, then we should set aside his convictions and sentences on the basis of the cumulative errors he has identified. Our review of the entire case reveals that Appellant received a fundamentally fair trial and that there is no cumulative effect or error that would mandate reversal. See Bowling, 942 S.W.2d at 308.
For the foregoing reasons, the judgment and sentence of the Livingston Circuit Court is affirmed.
MINTON, C.J., ABRAMSON, KELLER, NOBLE, SCOTT, and VENTERS, JJ., sitting. All concur. CUNNINGHAM, J., not sitting.
250 S.W.3d 590, 598-99 (Ky.2008). After quoting Drafters' Commentary, we summarized that the policy behind the kidnapping exemption statute was "to alleviate the problem of overzealous prosecution, by tacking on kidnapping charges to certain crimes through a hypertechnical application of the statutory language." Id. at 599.
With respect to the kidnapping aggravating circumstance: "The offense of kidnapping was committed while the Defendant was engaged in Arson in the First Degree, Burglary in the First Degree, Rape the First Degree, or Murder in the First Degree" was satisfied by Appellant's respective guilty pleas to those crimes.
Subsection (3) of that statute provides:
RCr 9.54(2) provides: "No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection." We conclude that Appellant's proposed instructions did not "fairly and adequately" bring the unanimity issue — the issue about which he now complains — to the attention of the trial court.
The verdict form for Kidnapping provides, in relevant part:
Thus, we hold this proposed instruction sufficiently preserved the issue.
