KIMBERLY SPRINGER V. COMMONWEALTH OF KENTUCKY AND ALEXANDRA EADES V. COMMONWEALTH OF KENTUCKY
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:
AS MODIFIED:
MAY 3, 1999
RENDERED:
APRIL 22, 1999
TO BE PUBLISHED
96-SC-502
KIMBERLY
SPRINGER
/.:,*r /
APPEAL FROM KENTON CIRCIX&?,&&
HONORABLE PATRICIA M. S&'&L;;j%DGE
95-CR-307-1
v.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
96-SC-503-MR
ALEXANDRAEADES
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
95-CR-307-2
V.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING
AND
REMANDING
Ernest Springer was killed by a single gunshot wound to his
left temple while asleep in his bed during the early morning
hours of May 21, 1995.
wife's
sister, Alexandra
His wife, Kimberly
Springer,
and
his
Eades, were jointly charged with his
murder.
On the c .".J of the murder, Eades confessed to police that
she fired the fatal shot and Springer confessed to being an
At trial, Springer claimed she shot and killed her
accomplice.
husband because of physical and sexual abuse which he had
inflicted upon her, and because of his threat to sexually abuse
her
Eades denied any involvement in the killing.
daughter.
Eades was convicted as the principal and Springer as an
accomplice to the murder.
imprisonment.
KY- Const.
Each was sentenced to thirty years
Both appeal to this Court as a matter of right.
§ 110(2) (b).
The claims of error are that (1) the
appellants were not allotted the proper number of peremptory
strikes;
(2) their respective confessions should have been
suppressed;
have
been
(3) evidence of prior sexual acts by Springer should
suppressed;
(4) and (5) the jury was improperly
(6)
insufficient
to
support
Eades's
conviction;
improperly limited the scope of voir dire;
the evidence was
(7)
instructed with respect to both defendants;
the trial judge
(8)
Springer's
counsel
was absent at critical stages of the proceedings; and (9) at
sentencing,
Springer
from KRS 533.060(l)
was
denied
the
domestic
violence
exemptions
and KRS 439.3401(4).
I.
PEREMPTORY
STRIKES.
The trial judge seated one alternate juror and allotted nine
peremptory strikes to the Commonwealth and a total of eleven
peremptory strikes to the appellants, nine to be exercised
jointly and one each to be exercised independently of the other.
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Appellants
claim
peremptory
that
strikes.
they . ,,re
entitled to at least twelve
We conclude that they were entitled to
thirteen.
Prior to September 15, 1990, RCr
9.40 provided in pertinent
part as follows:
If the offense charged is a felony, the
(1)
Commonwealth is entitled to five (5) peremptory
challenges and the defendant or defendants jointly to
eight (8) peremptory challenges. . . .
If one (1) or two (2) additional jurors are
called2) the number of peremptory challenges allowed
each side shall be increased by one (1).
If more than one defendant is being tried,
(3)
the court may at its discretion allow additional
peremptory challenges to each defendant.
Under this version of the Rule, the trial judge was granted
substantial
latitude
in
challenges
to
780 S.w.2d
619 (1989),
V.
15,
codefendants.
Commonwealth,
1990,
RCr
allocating
KY.,
E.s.,
(or
not)
Turnin
additional
peremptory
v. Commonwealth, KY.,
cert. denied, 494 U.S. 1058 (1990); Smith
375 S.W.2d
819 (1964).
Effective
September
9.40 was amended as follows (underlined portions
added, crossed-out
portions
deleted):
If the offense charged is a felony, the
(1)
Commonwealth is entitled to five (5) peremptory
challenges and the defendant or defendants jointly to
eight (8) peremptory challenges. . . .
If one (1) or two (2) additional jurors are
calleA2) the number of peremptory challenges allowed
each side and each defendant shall be increased by one
(1).
If more than one defendant is being tried,
(3)
., .
[ttle LQrn+nEq at Ita d-1 CLbw-adckLLI~
LO] each defendantIT] shall be
entitled to at least one additional peremotorv
challenae to be exercised indeoendentlv of anv other
defendant.
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Subsection (1) was amen<?1,
increase
the
Commonwealth's
effective October 1, 1994, to
peremptory
challenges
to
eight.
Thus, the basic entitlement to peremptory challenges under RCr
9.40(l) is eight for the Commonwealth and eight for the defense.
If more than one defendant is being tried, the defendants are
entitled to a total of ten peremptory challenges: eight to be
exercised jointly pursuant to RCr 9.40(l), and one each to be
exercised
independently
additional
(alternate)
pursuant
jurors
to RCr
are
9.40(3).
seated,
the
If one or two
defendants
entitled to a total of thirteen peremptory challenges:
be exercised jointly pursuant to RCr 9.40(l)
be exercised independently pursuant to RCr
are
nine to
and (2); one each to
9.40(3);
and an
additional one each to be exercised independently pursuant to RCr
9.40 (2) :
RCr 9.40(l) -- 8 (per side)
RCr 9.40(3) -- 2 (one per defendant if tried jointly)
RCr 9.40(2) -- 1 (one "each side" if alternate
jurors seated)
RCr 9.40(2) -- 2 (one "each defendant" if alternate
jurors seated)
13 total.
The trial judge interpreted subsections (2) and (3) of the
Rule as mutually exclusive,
subsection
(3)
allowing
each
reasoning that the provision in
defendant "one
additional
peremptory
challenge to be exercised independently" applies only if no
alternate jurors are seated, and that the provision in subsection
(2) that the peremptory challenges for "each
defendant shall be
increased by one (1)" applies only if alternate jurors are
seated.
However,
this interpretation ignores the fact that
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without subsection (3),
each defendant c'-;,
"additional
challenge
peremptory
to
be
which "shall be increased by one (1)"
jurors are seated.
not have an
exercised
independently"
in the event alternate
Although the 1990 amendment of RCr 9.40
resulted in an awkward arrangement of the subsections of that
rule, the intent of the amendment is clear.
If more than one
defendant is tried, each defendant is entitled to at least one
additional
peremptory
challenge
to
be
exercised
independently;
and if one or two alternate jurors are seated at that trial,
those additional peremptories are increased by one each for a
total of two per defendant.
In Kentuckv Farm Bureau Mut. Ins. Co. v. Cook, Ky., 590
S.W.2d
875 (1979),
we held that an erroneous allocation of
peremptory challenges is not subject to harmless error analysis,
and that "reversal and a new trial should be awarded as a matter
of law."
Id. at 877.
252 (1993),
In Thomas v. Commonwealth,
cert. denied, 510 U.S. 1177 (1994),
Ky.,
864 S.W.2d
we reiterated
this principle in the context of a criminal trial and held that,
Il[t]he
not
be
rules specifying the number of peremptory challenges are
mere
fully
technicalities, they are substantial rights and are to
enforced."
Id. at 259.
Accordingly,
this case must be
reversed for a new trial because of the failure to allot
appellants the proper number of peremptory strikes.
Because
the
other issues raised by the appellants are likely to recur upon
retrial,
those issues will also be addressed in this opinion.
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II.
CONFESSIONS.
The police arrived at the Springer residence at
5:25
approximately
crime
scene
8:lO a.m.
a.m. on the morning of May 25 and began their
investigation, which
Springer,
was
completed
at
approximately
Eades and a friend, Juan Cardonas, remained
in the living room of the residence during this phase of the
investigation.
Although
appellants
claim
they
were
denied
access
to family and friends during this period, the police
ingress/egress log reflects and the trial judge found that Ruby
Eades, mother of the appellants, was admitted to the residence at
6:lO a.m. and remained until 8:lO a.m., and that at least three
other family members or friends were also present in the
residence for shorter periods of time.
At 8:lO a.m., both
appellants left the residence and accompanied police officers to
the police station.
At approximately lo:20
a.m., Springer was informed of her
rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602,
16 L.Ed.2d 694 (19661,
and gave a statement in which she
denied any involvement in the death of her husband. At
approximately
11:55
a.m., Eades was advised of her Miranda rights
and was requested to make a statement.
She protested that this
was not a good time to be interrogated, because she had been up
all night drinking and smoking marijuana.
However,
she did not
request counsel and did not specifically assert her right against
self-incrimination.
She then gave a statement in which she
denied any involvement in the death of Ernest Springer.
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The
police officers discussed among themselves the conte::l,
of the
respective statements given by Springer and Eades and concluded
that
the
sisters
were
withholding
information.
They decided to
"run a ruse" on Eades.
There had been an unrelated homicide at the Springer
residence
several
months
earlier, following which a neighbor, Mr.
Shide, had taken it upon himself to use his police scanner to
intercept
cordless
residence.
telephone
calls
emanating
from
the
Springer
He used a video recorder to tape the contents of
these calls and furnished the police a copy of the videotape,
which
included
recorded
recordings
conversations
of
were
Ernest
Springer's
generally
voice.
The
and
contained
innocuous
nothing tending to incriminate the conversants
in any criminal
Although the recordings had nothing to do with the
activity.
investigation
of
Ernest
Springer's
death,
the
police
officers
decided to use the videotape to convince Eades that the Springer
residence
was
being
electronically
monitored
for
criminal
activity and, thus, that they already knew who had killed Ernest
Springer.
At approximately 2:00 p.m., Eades was again advised of her
Miranda
rights.
She was told that the police had been monitoring
the Springer residence and Shide's
videotape was played in
support of that assertion.
Several times during this
interrogation
"1 can't tell you what you want me to
Eades
stated,
tell you," or "I can't do it, it's going to hurt."
Although
Eades now claims that she was thereby invoking her right to
-
7
-
silence,
the officers believed that her statements only T-I-lected
her desire to protect her sister.
interrogation
and, ultimately,
. . . I killed Ernie."
statement, she asked,
Eades
They persisted in their
confessed
that "1 did it
When Eades was asked to give a formal
"Do we have to do this now?" and expressed
concern for her children.
She was advised that someone had gone
for her children, and that it would be best to make a formal
statement while events were still fresh in her mind.
Eades
then
gave a formal recorded statement in which she described shooting
Ernest Springer at close range while Kimberly Springer stood
nearby.
After giving this statement, Eades was permitted to call
her mother and was overheard to say, "I did it, I did it, I did
it. . . . He wasn't nothing but trash."
At 3:52 p.m., Kimberly Springer was again advised of her
Miranda rights and was told that Eades had given a statement.
Springer then gave a recorded statement in which she related that
Eades had killed Ernest Springer because of abuse, including
sexual abuse, which Ernest had inflicted upon her (Kimberly) over
a period of time.
A.
Voluntariness.
Following
a
suppression
hearing, the trial judge entered
extensive findings of fact and conclusions of law in which she
found that the totality of the circumstances indicated that both
confessions
were
voluntary.
Specifically,
the trial judge found
that neither appellant was intoxicated at the time of her
confession;
that their wills were not overborne by threats or by
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a denial of food, sleep, or access to friends and family; that
neither was under arrest and both were free to leave the Springer
residence and the police station at any time.
This
latter
finding was supported by evidence that both Springer and Eades
were advised by the officers at the conclusion of their
respective first statements that they were free to leave.
these
findings
were
supported
by
substantial
evidence
All of
presented
at the suppression hearing and, thus, are conclusive.
RCr 9.78.
There was no error in admitting the confessions into evidence at
trial.
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041,
36 L.Ed.2d 854 (1973); Ledbetter v. Edwards, 35 F.3d
Cir.
1062 (6th
19941, cert. denied, 515 U.S. 1145 (1995).
B.
Invocation
of
silence.
Eades asserts for the first time on this appeal that the
statements she made during her second interrogation, i.e.,
"I
can't tell you what you want me to tell you," and "I can't do it,
it's going to hurt,"
remain
silent.
amounted to an invocation of her right to
This issue was not preserved for the purpose of
determining whether the admission of her confession at the first
trial would be grounds for reversal and a retrial.
A new theory
of error cannot be raised for the first time on appeal.
9.22; RunDee v. Commonwealth, Ky., 821 S.W.2d
RCr
484, 486 (1991).
However,
since we have already determined that Eades must be
retried,
the issue is ripe for determination as to whether the
confession
is
admissible
at
retrial.
- 9 -
It is unnecessary to determine whether the statements in
question constituted a revocation of Eades's previous waiver of
her right to remain silent.
Cruz,
Comnare
978 F.2d 537 (9th Cir. 1992),
United States v. Garciacert. denied, 508 U.S. 955
(1993) (an equivocal or ambiguous invocation of the right to
silence
requires
cessation
of
all
interrogation
except
for
questions designed to clarify the request) with United States v.
Ramirez,
117 s.ct.
79 F.3d 298 (2d Cir. 1996),
140
cert. denied,
U.S.
,
(1996) (invocation of the right to silence after
previous waiver must be clear); cf. Davis v. United States, 512
U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d
362 (1994) (invocation of
the right to counsel after previous waiver must be by clear
request before law enforcement officers are required to cease
interrogation).
The requirement stated in Miranda, suora, 384
U.S. at 473-74, 86 S.Ct.
at 1627 and clarified in Michisan v.
Moslev, 423 U.S. 96, 96 S.Ct.
321, 46 L.Ed.2d 313 (1975) that
interrogation must cease once the suspect invokes his right to
silence applies only to a custodial interrogation.
Miranda's commandment that questioning cease when a
suspect indicates he intends to exercise his Fifth
Amendment privilege does not apply, however, in
situations . . _ where the defendant has available the
easier and more effective method of invoking the
privilege simply by leaving. . . . Law enforcement
officers enjoy the same liberty as every other citizen
to address questions to other persons.
When those
persons are not in custody or deprived of their freedom
of action in any significant way, they have an equal
right to ignore such questions and do not need the
protection of Miranda.
State v. Davis, 290 S.E.2d
574, 585 (N-C. 19821, habeas cornus
denied sub nom., Davis v. Allsbrooks, 778 F.2d
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168, 170
(4th Cir. 1985); cf. California v. Beheler, 463 U.S. 1121, 103
s.ct. 3517,
492,
77 L.Ed.2d
1275 (1983); Oregon v. Mathiason, 429 U.S.
97 s.ct. 711, 50 L.Ed.2d
714 (1977).
The
trial
judge's
finding that neither appellant was in custody at the time of her
confession is conclusive of this issue.
C.
Emolovment
RCr 9.78.
of a ruse.
Eades also asserts that her confession should have been
suppressed because it was induced by use of Shide's videotape,
which led her to believe that the police already had proof of her
guilt.
However,
deception,"
the mere employment of a ruse, or "strategic
does not render a confession involuntary so long as
the ploy does not rise to the level of compulsion or coercion.
Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 2397, 110
L.Ed.2d
243 (1990).
More
specifically, a
misrepresentation
by
interrogators of the strength of their case against the suspect
does
not
render
an
otherwise
voluntary
confession
inadmissible.
Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992), cert.
denied,
506 U.S. 1082 (1993).
By inducing Eades to believe that
they already knew who killed Ernest Springer, her interrogators
did not lead her to consider anything beyond her own beliefs
regarding
her
actual
guilt
or
innocence.
Id.
"Of
the numerous
varieties of police trickery, . . . a lie that relates to a
suspect's connection to the crime is the least likely to render a
confession
involuntary."
Id.,
citing W. LaFave
& J. Israel,
Criminal Procedure § 6.2(c), pp. 446-48 (1984); United States v.
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Velascuez,
denied,
885 F.2d 1076, 1088-89 & n. 11 (3d Cir. 19891, cert-
494 U.S. 1017 (1990).
D.
Use of illesallv
Finally,
recorded conversations.
Eades claims, also for the first time on appeal,
that her confession should have been suppressed because the
acquisition and use of the recorded telephone calls violated both
federal and state law.
KRS 526.060.
suora,
this
18 U.S.C. § 2510, et sea.; KRS 526.020;
As with her "invocation
otherwise
unpreserved
of
claim
silence"
is
ripe
with respect to the admissibility of Eades's
argument,
for
determination
confession upon
retrial.
In Brock v. Commonwealth,
KY.,
947 S.W.2d
24 (19971,
the
issue was whether the trial court had properly suppressed audio
recordings
the
of
telephone
conversations
which
tended
to
exculpate
defendant, but which had been obtained by private citizens in
violation of KRS 526.020.
We pointed out that the exclusionary
rule applies only to evidence obtained in violation of a
constitutional
right, and that the Fourth Amendment to the United
States Constitution and Section 10 of the Constitution of
Kentucky apply only to state actions, not actions of private
citizens.
Id. at 29.
Whether the provisions of the federal
wiretapping act, 18 U.S.C. § 2510, et sea.,
might have mandated
suppression was an issue not raised in Brock.
The
pertinent
provisions of that act are as follows:
S 2518 (10) (a) :
Any aggrieved person in any trial,
hearing, or proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of the United States, a State, or a political
- 12
-
subdivision thereof, may move to suppress the contents
of any wire or oral communication intercepted pursuant
to this chapter, or evidence derived therefrom . . _ .
S 2515:
Whenever any wire or oral communication has
been intercepted, no part of the contents of the
communication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other
proceeding in or before any court, grand jury,
department, officer, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or a political subdivision thereof if
the disclosure of that information would be in
violation of this chapter.
3 2511(l) (c) :
[Any person who1 intentionally
discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic
communication, knowing or having reason to know that
the information was obtained through the interception
of a wire, oral, or electronic communication in
violation of this subsection [shall be punished as
provided in subsection (4) or shall be subject to suit
as provided in subsection (5)l.
18 U.S.C. § 2510(11) defines an "aggrieved person" as a
person who was a party to any intercepted wire, oral, or
electronic communication or a person against whom the
interception
was
directed.
Eades does not fall within this
definition.
Thus, § 2518(10) (a) has no application here.
Nor does § 2515 apply to Eades.
States,
In Alderman v. United
394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969),
the
United States Supreme Court held that evidence derived from an
illegal wire tap is excluded only if offered against the person
who was the target of the wire tap.
States,
316 U.S. 114, 62 S.Ct.
In Goldstein v. United
1000, 86 L-Ed. 1312 (1942),
the
Court interpreted provisions of the Communications Act of 1934,
47 U.S.C. § 605, which are almost identical to those contained in
18 U.S.C. §§ 2515 and 2511(1)(c).
In Goldstein, the
- 13 -
illegally
I-lcercepted
messages were not introduced at trial, but were
divulged to certain witnesses who were thereby induced to testify
against
the
divulgence
defendants.
to
the
Goldstein held that even though
witnesses
of
the
unlawfully
intercepted
communications was in violation of the statute, such did not
render the testimony so procured inadmissible against persons who
were not parties to the communications.
These cases are in accord with the 400-year-old "mischief
rule" of statutory construction that a statute must be read in
the light of the mischief to be corrected and the end to be
obtained.
Havden's
Case, 3 Co. Rep. 72, 76 Eng. Rep. 687 (1584).
That rule still applies to the construction of statutes in this
jurisdiction, Citv of Louisville v. Helman, KY., 253 S.W.2d
600 (19521,
Congress.
as well as those enacted by the United States
Warner v. Goltra, 293 U.S. 155, 158, 55 S.Ct. 46, 48,
79 L-Ed. 254 (1934); Anderson v. Thompson, 658 F.2d
(7th Cir. 1981).
wiretapping
598,
and
1205, 1213
The mischief to be corrected by antianti-eavesdropping
statutes
is
the
acquisition
of
evidence against a suspect by an illegal search and seizure in
the form of an unauthorized interception of his own private
communications,
subsequent
and the use of that evidence against him in a
proceeding.
The use of such evidence against a person
such as Alexandra Eades, who was not a party to the intercepted
communications,
is not precluded by 18 U.S.C. § 2510, et sea. and
KRS 526.010, et seq.
to
the
admissibility
Nor do these statutes have any application
of
Kimberly
Springer's
- 14 -
confession.
Although
she was a :-,~dent
illegally
the
of the home from which the communications were
intercepted, and her voice does appear occasionally on
videotape, the recording was not used to induce her
confession and there is no evidence that she knew at that time
that the videotape even existed, much less that it had been used
to induce Eades's confession.
Since
Kimberly
testified
at
trial
that she, not Eades, shot and killed Ernest Springer, she could
not have been prejudiced by the introduction of Eades's
confession in which Eades took the blame and described Kimberly's
participation
as
being
that
III.
The
instances
Commonwealth
of
sexual
of
a
bystander/accomplice.
PRIOR SEXUAL ACTS.
introduced
conduct
evidence
involving
of
four
Kimberly
specific
Springer,
which
the appellants assert was irrelevant except to prove that she was
a person of immoral character-l
included
(1)
another man;
evidence
of
an
These
instances
extra-marital
of
conduct
relationship
with
(2) evidence of a willingness to engage in a three-
person sexual encounter with her husband and another man; (3)
evidence of actual participation in a three-person sexual
encounter with her husband and another woman; and
(4)
evidence
identifying and characterizing the contents of a brown briefcase.
We note at the outset that KRE 404(b)(l) has no application
1 Although none of this evidence pertained to Eades, she
implausibly asserts that because she and Springer are sisters,
the jury could have inferred that they inherited the same
character flaws.
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to this evide-,,.
That Rule proscribes the introduction of
evidence tending to prove a particular character trait "in order
to show action in conformity therewith."
Evidence
of
immorality
would not tend to prove a propensity or predisposition to commit
homicide.
Thus, the evidence must be tested by the general rule
of relevancy, i.e., whether it has "any tendency to make the
existence of any fact that is of conseo-uence
to the determination
of the action more probable or less probable than it would be
without
the
evidence."
KRE 401.
(Emphasis
added.)
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.
An item of evidence, being but a single link in
the chain of proof, need not prove conclusively the
proposition for which it is offered.
It need not even
make that proposition appear more probable than
not. . . . It is enough if the item could reasonably
show that a fact is slightly more probable than it
would appear without that evidence.
Even after the
probative force of the evidence is spent, the
proposition for which it is offered still can seem
quite improbable.
Turner v. Commonwealth, KY.,
R. Lawson, The Kentuckv
914 S.W.2d
343, 346 (1996),
ouotinq,
Evidence Law Handbook § 2.05, p. 53 (3d
ed. Michie 1993) and Cleary, McCormick on Evidence 542-43 (3d ed.
1984).
A.
Extra-marital
Kenneth
Clark
relationship
testified
that
with
Clark.
Kimberly
Springer
began
making
sexual advances toward him approximately one month prior to her
husband's
death.
On the first occasion, she was waiting for
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Clark when he arrived a: &e parking lot of his apartment.
She
wanted to know when they were going to go out together and
suggested that they go to his apartment.
offer, but the two kissed each other.
Clark
Springer
Clark not tell her husband about this incident.
this
requested
On
that
another
Springer entered a bathroom while Clark was urinating
occasion,
and fondled his buttocks.
four or five occasions.
engaged
declined
Springer
visited
Clark's
apartment
on
On two or three of these occasions, they
in llflirtation"
and mutual fondling, but not sexual
intercourse.
While at a bar with some other people just two
nights
Ernest
before
Springer's
death, Kimberly
Springer
pulled
Clark into the women's restroom where they embraced and kissed.
In addition to this evidence, the
that
Kimberly
$55,000.00
Springer
was
the
prosecutor
beneficiary
of
introduced
evidence
approximately
in life insurance policies owned by her husband.
The prosecutor's theory was that Springer's motive in
killing her husband was to free herself for other romantic
interests while obtaining the benefits of his life insurance
policies.
Evidence
that
a
defendant
was
romantically
involved
with another person is relevant to establish a motive to kill
that
defendant's
S.W.2d
942
Chumbler v. Commonwealth,
Ky.,
905
488, 493 (1995); Davis v. Commonwealth, KY., 795 S.W.2d
(1990);
(1998) .
spouse.
cf. Tamme v. Commonwealth,
KY.,
973 S.W.2d
13,
Clark's evidence was admissible for this purpose.
- 17 -
34-35
B.
Three-oerson sex 1 :':,I Chandler.
During
her
tape-recorded
confession,
Kimberly
Springer
described to the police specific instances of spousal abuse
alleged to have been perpetrated against her by her husband.
One
such allegation was that he tried to force her to engage in
three-person sex with himself and another man, Charlie Chandler.
Chandler
testified
in
the
Commonwealth's
case-in-chief
that
in September 1994, he was watching television in the living room
of the Springers' residence while Ernest and Kimberly were having
sexual relations in the bedroom.
Ernest called Chandler into the
bedroom and invited him to join in the sexual activity.
According
to
participate
fact,
Chandler, Kimberly
in
this
proposed
indicated
no
three-person
unwillingness
sexual
to
encounter.
In
Chandler testified that when he declined the offer and
started to leave the bedroom, Kimberly called out to him, "Please
don't leave, Charlie; it's alright."
Chandler's
testimony
of
Kimberly's
willingness
to
participate in this proposed sexual encounter was admissible to
rebut her claim that this incident amounted to an act of sexual
abuse perpetrated against her by her husband.
It is immaterial
that the evidence was offered during the Commonwealth's case-inchief, since the assertion of sexual abuse had already been
introduced
during
the
playing
of
Kimberly's
taped
confession.
The statements in the confession were admissible as admissions.
KRE 801A(b) (1).
Once
introduced, the
Commonwealth
was
entitled
to refute those statements and was not required to wait until
- 18 -
rebuttal,
an opportunity which might c-,der
have occurred if
Springer had chosen to rely on her taped statements instead of
testifying in her own defense.
Remember,
in her taped statement,
Springer not only accused the victim of being a batterer, she
also accused Eades of being the murderer.
C.
Three-oerson sex with Girdler.
In her taped statement, Springer also accused the victim of
forcing her to engage in a three-person sexual encounter with an
unnamed
woman.
diagnosed
Dr.
Springer
Rosewater, the
as
suffering
clinical
psychologist
from "battered
woman
who
syndrome,"
testified that Springer had identified the female participant in
this encounter as a woman named "Dawn."
Commonwealth
produced
Dawn
Girdler,
who
In rebuttal, the
testified
that
she
indeed
participated in a three-person sexual encounter with Ernest and
Kimberly
Springer.
She further testified that it was Kimberly,
not Ernest, who solicited her participation in that encounter,
that Kimberly did not appear to be under duress during the
encounter,
and that Kimberly afterwards proposed that they do it
again on a future occasion.
Girdler's
testimony
was
properly
admitted to rebut Kimberly's claim that her husband sexually
abused her by forcing her to engage in three-person sex with
himself and another woman.
D.
Contents of the brown briefcase.
Police Chief Thomas Collins testified that at the conclusion
of her taped confession, Springer told him that the contents of a
brown briefcase located at the Springer residence would prove all
- 19 -
Springer l
of her allegations of abuse.
Search"
form and Police Sgt. Benny
briefcase
photograph
Springer,
and
reviewed
album
a
its
videotape
Johnson
contents.
containing
nude
depicting
s-;,uted a "Consent to
retrieved
the
The contents consisted of a
photographs
Ernest
and
of
Kimberly
Kimberly
Springer
engaging in explicit sexual acts, and certain sexual devices,
which
Johnson
characterized
as
"marital
aids."
In response to a motion in limine to suppress this evidence,
the trial judge ruled that the evidence was relevant to disprove
Kimberly's claim of sexual abuse, but that the probative value of
displaying the contents of the briefcase to the jury was
substantially
403.
outweighed
by
the
danger
of
undue
prejudice.
KRE
Thus, Johnson was permitted to tell the jury what he found
in the briefcase and to express his opinion that the briefcase
did not contain evidence of sexual abuse, but rather evidence of
"two consenting adults having fun."
Both Springer and Eades
claim that the introduction of this evidence was so highly
prejudicial that it should have been suppressed in its entirety.
Springer continues to claim on appeal that the contents of the
briefcase prove her claim of sexual abuse.
The trial judge's compromise ruling was an appropriate
solution to this dilemma.
Springer claimed that the contents of
the briefcase would prove her "battered woman" defense.
Commonwealth was
entitled
to
prove
otherwise.
The
It is immaterial
that Springer made her claim before trial rather than at trial.
This evidence warranted an inference that if Springer made a
- 20 -
false claim of abuse with respect to the contents -L the
briefcase,
abuse.
she might also be falsifying her other claims of
Sgt. Johnson's descriptions of the sexual devices as
"marital
aids" and the activities portrayed in the videotape and
photographs
as "consenting
adults
having
fun"
were
proper
subjects of lay opinion, KRE 701, and were not prejudicial
characterizations.
Consensual
sexual
activity
between
a
husband
and wife is not evidence of an immoral character per se.
If
Springer believes that the contents of the briefcase prove her
allegations of abuse, she can, upon retrial, withdraw
her
motion
to suppress and introduce those contents in support of her
defense.
defense,
However,
having claimed that the evidence proves her
she cannot prevent the Commonwealth from proving
otherwise.
IV.
A.
JURY
INSTRUCTIONS/SPRINGER.
Intoxication.
There
substantial
was
evidence
quantities
that
of
Kimberly
Springer
consumed
alcohol, Valium and diet pills on the
day and evening before her husband was killed.
She asserts that
this evidence of her drunkenness entitled her to an instruction
on the defense of intoxication.
KRS 501.080.
However,
evidence
of intoxication will support a criminal defense only if the
evidence is sufficient to support a doubt that the defendant knew
what she was doing when the offense was committed.
In order to
justify an instruction on intoxication, there must be evidence
- 21 -
not only that the defendant was drunk, but that she '-'rthat she did not know what she was doing.
Stanford
so drunk
v.
Commonwealth, Ky., 793 S.W.2d
112, 117-18 (1990);
Commonwealth,
511 (1977); Jewel1 v. Commonwealth,
KY-,
Ky., 550 S.W.2d
549 S.W.2d 807 (19971,
Commonwealth,
Meadows v.
overruled on other crounds,
Pavne v.
Ky., 623 S.W.2d 867 (1981).
Kimberly testified that shortly before the killing, her
husband had called her away from a party at a neighbor's
residence and forced her to engage in oral sex with him; and that
he
also
threatened
to
force
Kimberly's
to engage in oral sex with him.
thirteen-year-old
daughter
(At the time, Kimberly's
daughter was 600 miles away and was not expected to return to
Kentucky for several weeks.)
Kimberly then returned to the
neighbor's house and asked Alexandra to accompany her back to her
residence to get a coat.
On the way, Kimberly stopped at her
pickup truck and retrieved a handgun she had borrowed earlier
from her aunt.
The two sisters had already entered the house
when Alexandra pointed out that Kimberly did not even know how to
fire the weapon.
They left the house and walked down to the Ohio
River where Alexandra test-fired the gun by firing a shot into
the river.
They then returned to the Springer residence.
Kimberly testified that she walked into the bedroom, pointed the
gun at her husband, and shot him.
Although
she
testified
at
trial that she could not remember certain things that happened
before and after the shooting, she did not claim that these
lapses in memory were due to intoxication.
- 22 -
In addition, Dr. Rosewater, Springer's expert in support c'
her
"battered
woman
syndrome"
defense, testified
unequivocally
that Springer's consumption of alcohol and pills did not render
her so intoxicated that she lacked intent or did not know what
she was doing when she killed her husband.
that Kimberly told her llexplicitly"
Rosewater
testified
that she was the one who
pulled the trigger, not Alexandra Eades.
In short, Kimberly's
defense was not that she could not form the requisite intent to
murder her husband because of intoxication, but that she killed
him intentionally in self-protection because of what he had done
to her and what he threatened to do to her daughter.
Such
evidence did not warrant an instruction on the defense of
intoxication.
B.
First-dearee
disturbance.
manslaughter/extreme
emotional
Springer asserts that she was entitled to instructions on
first-degree manslaughter as a lesser included offense of murder
and
a
concomitant
instruction
on
KRS 507.020(1)(a); KRS 507.030(l)
KY.,
813 S.W.2d
811, 815 (1991),
Elliott v. Commonwealth,
KY.,
extreme
emotional
disturbance.
(b); Holbrook v. Commonwealth,
overruled on other srounds,
976 S.W.2d
416 (1998).
She
identifies the victim's threat to sexually abuse her daughter as
the "triggering
Commonwealth,
KY. t
KY.,
888 S.W.2d
S.W.2d
event" required by our case law.
895 S.W.2d
v.
953 (1995); Cecil v. Commonwealth,
669 (1994); Foster v. Commonwealth, KY., 827
670, 678 (1991),
Specifically,
Whitaker
cert. denied, 506 U.S. 921 (1992).
she testified that after the threat, "all she could
- 23 -
think about" was what her husband had threatened to do to her
daughter.
The Commonwealth asserts that an instruction on the
defense of extreme emotional disturbance is warranted only when
the killing occurs concurrently with the triggering event or
shortly
thereafter.
However,
our precedents only require that
the triggering event be "sudden
at 678.
sunra,
as
the
event
remains
McClellan
v. Commonwealth,
onset
extreme
the
uninterrupted."
Foster,
There is no definite time frame involved, so long
triggering
of
and
KY.,
emotional
uninterrupted.
715 S.W.2d
We
recognized
464 (1986) that the
disturbance "may be more gradual than
'flash point' normally associated with sudden heat of
passion,"
so long as the condition is "a
temporary
disturbance
the emotions as opposed to mental derangement per se."
468.
in
of
Id. at
The fact that the triggering event may have festered for a
time in Springer's mind before the explosive event occurred does
not preclude a finding that she killed her husband while under
the
influence
of
extreme
emotional
disturbance.
A defendant is entitled to an instruction on any lawful
defense which she has.
534,
550 (19881,
Sanborn v. Commonwealth,
KY.,
cert. denied, 516 U.S. 854 (1995).
754
S.W.2d
Although
a
lesser included offense is not a defense within the technical
meaning of those terms as used in the penal code, it is in fact
and
principle, a defense against the higher charge.
Commonwealth, KY.,
U.S. 989 (19811,
Commonwealth,
607 S.W.2d
97, 108 (1980),
cert. denied, 450
overruled on other grounds, Pavne
KY.,
623 S.W.2d
Gall v.
v.
867 (1981); Brown v. Commonwealth,
- 24 -
KY.,
555 S.W.2d
252, 257 (1977); cf. Coffev v. Messer, KY.,
If
the
defendant
introduces
945
S.W.2d
944, 946 (1997).
testimony,
which,
if believed, would support an inference that she is guilty
of a lesser offense than the crime charged, she is entitled to an
instruction on that offense.
If, upon retrial, the evidence is
the same, Springer will be entitled to instructions on firstdegree
manslaughter
C.
and
extreme
emotional
disturbance.
Self-orotection.
Springer's primary defense was that she acted under a belief
in the need for self-protection, which belief was induced by her
affliction
with
the
"battered
woman
syndrome."
She
presented
substantial evidence of physical and sexual abuse inflicted upon
her by her husband, as well as expert testimony from which the
jury could conclude that she was suffering from the syndrome at
the time she participated in the killing of her husband.
The
trial judge instructed the jury on self-protection as a defense
to the charge that Springer was the principal to the homicide,
but not as a defense to the charge that she was an accomplice.
In fact, Springer
conceded
at
trial
that
self-protection
unavailable as a defense to a charge of complicity.
she
withdraws
this
concession
and,
presumably,
will
was
On appeal,
claim
entitlement to a self-protection instruction as a defense to both
theories
on
determining
9.54 (21,
retrial.
whether
Thus, though unpreserved for the purpose of
Springer's
conviction
should
be
reversed,
the issue is ripe for determination as to whether the
instruction should be given upon retrial.
- 25 -
RCr
The
Commonwealth
asserts
that
self-defense
is
available
only
to a principal, and is unavailable to one who whose liability is
predicated
upon
acting
self-protection
in
complicity; and that Springer could not have been
under
either
theory,
because
the
victim
was asleep, thus could not have been threatening her with the
"imminent use of unlawful physical force.1'
KRS 503.050(l).
Prior to the adoption of the penal code, it was generally
held that an aider and abettor could not be convicted if the
principal
S.W.2d
was
acquitted.
682 (1979).
KRS 502.030(l).
E.g., Rutland
However,
590
proposition
That
v. Commonwealth, KY.,
specifically
in
is
rejected
even in the pre-penal code era, it was
accepted that the liability of an accomplice is determined by his
or her own mens rea and not that of the principal.
If one commits a crime and another is actually present
aiding, abetting, assisting, or encouraging its
commission, the latter thereby becomes a participant, a
principal in the second degree, and his culpability is
determined by his motives. . . .
Fuson v. Commonwealth, 199 Ky. 804, 251 S.W. 995, 997 (1923).
Although the homicidal act may be attributed to both
participants,
degree
of
the liability of each is measured by his or her own
culpability.
R. Lawson and W. Fortune, Kentuckv
Criminal Law § 3-3(c)(2),
p. II4
(LEXIS 1998), quoting Model
Penal Code and Commentaries, Pt. I, § 2.06, p. 321 (1985).
Springer's claim of self-defense was premised upon her "battered
woman
syndrome"
support
an
evidence.
instruction
on
Logically,
if such evidence would
self-protection,
- 26 -
it
is
immaterial
whether
Springer, herself, pulled the trigger or whether she
aided, solicited,
commanded or conspired with another to do so.
In Commonwealth v. Rose, KY.,
denied,
484 U.S. 838 (1987),
syndrome"
we
725 S.W.2d
described
588 (19871,
the
"battered
cert.
woman
as a mental condition which "tends to explain why a
person suffering from the syndrome would not leave her mate and
would be driven by fear of continuing episodes of increased
aggression
necessary
against
in
her
herself
to
perceive
certain
conduct
was
self-defense, even though another person not
suffering from such a condition might believe or behave
differently."
Id. at 590-91; see also Dver v. Commonwealth, KY.,
816 S.W.2d 647, 654 (1991) overrulins Commonwealth v. Craiq, KY.,
783 S.W.2d 387 (1990),
which
had
temporarily
overruled
Rose.
1992,
our legislature added two new provisions to KRS Chapter
503.
KRS 503.010(3)
justification
defined "imminent," a key word in the
statutes,
as
follows:
"Imminent" means impending danger, and, in the context
of domestic violence and abuse as defined by KRS
403.720, belief that danger is imminent can be inferred
from a past pattern of repeated serious abuse.
KRS 503.050, the statute authorizing the use of physical
force
in
self-protection, was amended to add a new subsection
(3) :
Any evidence presented by the defendant to establish
the existence of a prior act or acts of domestic
violence and abuse as defined in KRS 403.720 by the
person against whom the defendant is charged with
employing physical force shall be admissible under this
section.
- 27 -
In
KRS
403.720(l)
defines "domestic violence and abuse"
as
follows:
"Domestic violence and abuse" means physical injury,
serious physical injury, sexual abuse, assault or the
infliction of fear of imminent physical injury, serious
physical injury, sexual abuse, or assault between
family members or members of an unmarried couple.
(Emphasis added.)
The enactment of KRS 503.010(l)
and KRS 503.050(3)
shortly
after the emergence of the "battered woman syndrome" as a
phenomenon
scientifically
accepted
in
the
medical
community
reflects a legislative intent to allow the defense of selfprotection to be premised upon "battered woman syndromel'
evidence.
If sufficient competent evidence is introduced to
create a jury issue that a defendant was a victim of domestic
violence and abuse and killed or assaulted his or her abuser
under a belief that there was an "impending danger" of being
subjected to unlawful physical force at the hands of the abuser,
that defendant is entitled to an instruction on self-protection.
Because of the nature of this claim, the
instruction
normally
will be accompanied, as here, by the wanton or reckless belief
qualification set forth in KRS 503.120(l).
Commonwealth, Ky., 767 S.W.2d
other
Shannon v.
548, 548-51 (1988),
grounds, Elliott v. Commonwealth, KY.,
overruled on
976 S.W.2d 416
(1998).
If the evidence is the same upon retrial, Springer will be
entitled to instructions on self-protection as a defense to both
the principal and accomplice theories of liability.
- 28 -
V.
A.
JURY INSTRUCTIONS/EADES.
Second-desree
manslaushter.
The trial judge determined that there was sufficient
evidence to warrant an instruction on the defense of voluntary
intoxication with respect to the culpability of Eades.
Eades's
request
for
an
instruction
on
second-degree
as a lesser included offense was denied.
Commonwealth,
KY.,
However,
manslaughter
As we held in Slaven v.
962 S.W.2d 845 (1997):
[Wlhile voluntary intoxication is a defense to
intentional murder, it is not a defense to seconddegree manslaughter.
McGuire v. Commonwealth, KY., 885
S.W.2d 931, 934-35 (1994).
A jury's belief that a
defendant was so voluntarily intoxicated that he did
not form the requisite intent to commit murder does not
require an acquittal, but could reduce the offense from
intentional homicide to wanton homicide, i.e., seconddegree manslaughter.
KRS 501.080 (1974 Commentary);
Meadows v. Commonwealth, KY., 550 S.W.2d 511, 513
(1977) . The failure to instruct on second-degree
manslaughter as a lesser include offense of murder was
prejudicial error.
Cannon v. Commonwealth, KY., 777
S.W.2d 591, 596 (1989).
Slaven, suora, at 857.
If the evidence is the same on retrial,
Eades will be entitled to an instruction on second-degree
manslaughter as a lesser included offense of murder.
B.
Protection
of
another.
Eades asserts that if Springer is entitled to an instruction
on the defense of self-protection, then she is entitled to an
instruction
the
defense
of
protection
of
another.
There are pre-penal code cases which
503.070.
proposition
defense,
on
that "[wlhatever
support
KRS
the
one may lawfully do in his own
another may do for him." Bisas
- 29 -
v. Commonwealth, 164 Ky.
223,
175 S Yap. 379 (1915); Stanley
S.W. 155 (1887).
v. Commonwealth, 86 Ky. 440, 6
See also Utterback v. Commonwealth, 105 Ky.
723, 49 S.W. 479, 483 (1899):
"[IIf he so fired the fatal shot
in defense of his son, he is excusable or not according as the
son would be guilty had he then fired the shot himself in his own
defense."
However,
it was also held that an intentional killing
in defense of another was justified only if the defendant
believed that the victim was about to kill or do great bodily
harm to such other person.
S.W.2d
521, 524 (1960).
White v. Commonwealth,
Finally,
KY.,
333
there was no requirement to
instruct on the defense of protection of another if the defendant
made no claim to having so acted and no inference could be drawn
from the evidence that it was reasonably necessary to do so.
Adams v. Commonwealth, 292 Ky. 786, 168 S.W.2d
V.
Commonwealth, 268 Ky. 277,
104 S.W.2d
40 (1943); Farlev
972 (1937).
If the defender uses non-deadly physical force in protection
of another, he is judged by his own subjective belief as to
whether the person being protected would have been privileged to
act
in
self-protection.
KRS 503.070(l).
However, if, as here,
deadly force is used, the defender is judged in accordance with
the circumstances as they actually existed with respect to
whether the person being protected would have been privileged to
use
deadly
physical
force
in
self-protection.
KRS 503.070(2) (b).
This latter provision is contrary to the law of most other
jurisdictions,
R. Lawson and W. Fortune, supra, § 4-3(b) (3),
Perkins on Criminal Law 1021 (2d ed. Foundation
- 30 -
Press
19691,
but
represents a codifici..:.lan
Commonwealth,
sunra,
of the holding in Stanlev v.
that a defender intervenes at his peril if
the person he killed was not at fault. Id.,
6 S.W. at 156.
Bearing these principles in mind, there are several reasons
why Eades was not entitled to an instruction on protection of
another.
her
At trial, she claimed no involvement in the crime. In
confession, she did not claim to have killed Ernest Springer
in defense of her sister.
Kimberly
Springer's
entitlement
to
a
self-protection instruction was premised not on the facts as they
actually
existed, but upon her theory that her affliction with
the "battered woman syndrome" caused her to believe it was
necessary to kill her sleeping husband.
Eades was not suffering
from "battered woman syndrome;" thus, her culpability is not
dependent upon a syndrome-induced belief in the need to use
deadly physical force in defense of Kimberly Springer, but upon
the facts as they actually existed.
while asleep in his bed.
Ernest
Springer
was
killed
Under the actually existing facts,
there was no need to kill Ernest Springer in order to protect
Kimberly
from "imminent
death, serious physical injury . . . or
[forcible] sexual intercoursel'
"The
V.
at his hands. KRS 503.070(2)
fear of future danger will not justify a homicide."
Commonwealth, 240 Ky. 473, 42 S.W.2d
(a).
Grubbs
702, 703 (1931).
Although Grubbs pre-dates the penal code, that principle was
codified by use of the word l'imminent"
statutes.
in the justification
R. Lawson and W. Fortune, supra, § 4-2(b) (3), p. 139.
While evidence of domestic violence and abuse and affliction with
- 31 -
"battered woman syndrome"
principle,
.&lay create an exception to that
that exception is unavailable to Eades.
VI.
SUFFICIENCY OF THE EVIDENCE/EADES.
Eades asserts that absent her confession, there was
insufficient
evidence
to
support
her
conviction.
She
believes that the corroboration requirement of RCr
to corroborative evidence of her guilt.
mistakenly
9.60 relates
In fact, the
corroboration requirement addresses itself to whether a crime was
committed,
V.
not to whether the defendant committed it.
Commonwealth,
Ky., 744 S.W.2d
490 U.S. 1113 (1989).
407, 410 (19871,
Slaushter
cert. denied,
Once the corpus delicti has been
established,
the defendant's guilt may be established entirely by
confession.
Dolan v. Commonwealth, KY.,
(1971).
468 S.W.2d 277, 282
Ernest Springer was killed by a single gunshot wound to
the left temple while apparently asleep in his bed.
that fired the shot was never found, a
against a claim of suicide.
fact
strongly
Even without Eades's
The
weapon
militating
confession,
there was sufficient evidence to establish the corpus delicti.
VII.
VOIR DIRE.
During voir dire, Springer's
counsel
was
prevented
from
inquiring as to whether the jurors could consider the full range
of penalties which might be authorized upon conviction,
including
the minimum penalty for conviction of an authorized lesser
included
offense,
(for murder).
i.e., one year (for reckless homicide) to life
Instead, she was permitted to inquire only as to
- 32 -
whether the jury could consider t1.-
..tinimum
penalty
authorized
for the most serious offense of which she could be convicted,
i.e.,
KY.,
twenty years (for murder).
812 S.W.2d
152 (1991),
In Shields v. Commonwealth,
cert. denied, 502 U.S. 1065 (1992),
we held:
In order to be qualified to sit as a juror in a
criminal case, a member of the venire must be able to
consider any permissible punishment.
If he cannot,
then he properly may be challenged for cause.
Id. at 153.
In Anderson v. Commonwealth, Ky., 864 S.W.2d
909
we held that defense counsel should have been able to
(19931,
question the venire as to whether the jurors lYcould
consider the
entire range of penalties in the event a guilty verdict was
returned."
Id. at 911.
In our most recent pronouncement on this
issue, we held that the prosecutor was properly permitted to
inform the jury that the range of permissible penalties,
including those for lesser included offenses, was from one day to
life in prison.
153-54
Samnles v. Commonwealth, KY.,
983 S.W.2d
151,
(1998).
In the case at bar, the
jurors
received
instructions
authorizing them to find Springer guilty of murder or of one of
several
lesser
offenses, including
reckless
homicide.
It was
error to limit her counsel's inquiry only to whether the jurors
could consider the full range of penalties available for the most
serious offense of which they could return a conviction.
retrial,
Upon
counsel will be permitted to inquire whether potential
jurors can consider the full range of penalties for all offenses
- 33 -
of which Springer might be convicted, :'_.e.,
one year to life in
prison.
VIII.
ABSENCE OF COUNSEL.
Springer asserts she was denied her right to counsel,
because her attorney was absent at critical stages of the
proceedings,
pre-trial
a: during the avowal testimony of a witness at a
suppression
hearing, during a hearing on a pre-trial
motion to suppress evidence of her prior sexual acts, and during
an
instruction
conference.
This argument is totally devoid of
merit.
The avowal testimony was that of Dr. Paul Deardorff, an
expert retained by Eades to offer evidence concerning her
intellectual
credibility
limitations
of
her
for
the
confession.
purpose
of
undermining
the
His report was in the record; he
purported to offer no evidence relevant to the guilt or innocence
of Springer; and neither Eades nor Springer asserts that any of
his avowal evidence was erroneously excluded at trial.
As for the other two "absences," Springer
two
attorneys.
hearing
there
two
and
off-the-record
chair
the
instruction
another on the record.
the
instruction
conference.
In fact,
conferences, one off the record and
So-called
instruction
counsel" was present
Ironically,
represented
by
One co-counsel was present at both the pre-trial
suppression
were
was
at
"lead counsel" was present at
conference
the
and
so-called
on-the-record
"second
conference.
it was Springer's lead counsel who conceded at the
- 34 -
off-the-record conference that Springer was nol ,,ltitled
self-protection defense to the charge of complicity.
the-record
to a
At the on-
conference, second chair counsel advised the judge
that he disagreed with lead counsel on that point.
IX.
KRS 533.060(l)
SENTENCING.
provides that a person convicted of a Class
A, B or C felony which involved "the use of a weapon from which a
shot or projectile may be discharged that is readily capable of
producing death or other physical injury" is not eligible for
probation,
shock
probation, or
conditional
discharge.
A 1992
amendment of this statute created an exception:
. . . when the person establishes that the person
against whom the weapon was used had previously or was
then engaged in an act or acts of domestic violence and
abuse as defined in KRS 403.720 against either the
person convicted or a family member as defined in KRS
403.720 of the person convicted.
If the person
convicted claims to be exempt from this statute because
that person was the victim of domestic violence and
abuse as defined in KRS 403.720, the trial judge shall
conduct a hearing and make findings to determine the
validity of the claim and applicability of this
The findings of the court shall be noted in
exemption.
the final judgment.
1992 Ky. Acts ch. 173 § 3.
KRS
for
439.3401
prisoners
provides
classified
as
minimum
parole
"violent
eligibility
offenders."
guidelines
The 1992
legislature also amended this statute to add a new subsection
(4) :
This section shall not apply to a person who has
been determined by a court to have been a victim of
domestic violence or abuse pursuant to KRS 533.060 with
- 35 -
regard to the offenses involving the death ol L.le
victim or serious physical injury to the victim. . . .
1992 Ky. Acts ch. 173 § 4.
Thus, the
legislature
determined,
for
whatever
reason,
that
the exemption from the probation or conditional discharge
restrictions
in KFZS
533.060(l)
applies whether the domestic
violence and abuse occurred previous to the offense or at the
time the offense was committed; but the exemption from the parole
restrictions in KRS 439.3401 applies only if the domestic
violence and abuse was "involvedl'
in the offense.
The trial
judge interpreted both of these provisions to mean that the
exemptions applied only if the domestic violence and abuse was
involved in the offense, and found that such was not the
situation in this case.
The trial judge is not required to
accept the defendant's version of the events surrounding the
offense;
clearly
thus, the trial judge's finding on this issue was not
erroneous
and
would
have
precluded
Springer
benefitting from the exemption in KRS 439.3401(4).
from
However,
the
trial judge should have made an additional finding whether
Springer had been previously subjected to domestic violence and
abuse so as to fall within the exemption in KRS 503.060(l).
Nevertheless,
prejudice
the failure to make that additional finding did not
Springer, because the trial judge treated her as if she
were eligible for probation or conditional discharge, but found
that such a disposition was inappropriate because it would unduly
depreciate the seriousness of the crime.
Hucrhes v. Commonwealth,
KY.,
875 S.W.2d
- 36 -
KRS 533.010(2)
99 (1994).
(c); cf.
For the reasons stated herein, the
convictions
and
sentences
imposed on both Springer and Eades are reversed and this case is
remanded to the Kenton Circuit Court for a new trial in
accordance with the contents of this opinion.
Cooper and Johnstone, JJ., concur.
Lambert,
C-J.,
concurs as to Parts II, IV, V, VI, VII, VIII
and IX, and dissents as to Parts I and III.
Graves, J., concurs as to Parts II, III, IV, V, VI, VII,
VIII and IX, and dissents as to Part I by separate opinion, in
which he is joined by Lambert, C.J., and Wintersheimer, J.
Stephens and Stumbo, JJ., concur as to Parts I, II, IV, V,
VI, VII, VIII and IX.
separate
Stumbo, J., dissents as to Part III by
opinion, in which she is joined by Lambert,
C-J., and
Stephens, J.
Wintersheimer,
J., concurs as to Parts II, III, IV-A, V-B,
VI, VIII and IX, and dissents by separate opinion as to Parts I,
IV-B and C, V-A and VII, in which he is joined by Lambert, C.J.,
and Graves, J., as to Part I.
- 37 -
ATTORNEY
FOR
APPELLANT
SPRINGER:
Thomas M. Ransdell
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
ATTORNEY
FOR
APPELLANT
EADES:
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
ATTORNEYS
FOR
APPELLEES:
A. B. Chandler, III
Attorney General
State Capitol
P-0. Box 2000
Frankfort, KY 40602-2000
Samuel J. Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY
40601-8204
- 38 -
RENDERED: APRIL 22,
TO BE PUBLISHED
1999
96-SC-502-MR
KIMBERLY
SPRINGER
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
95-CR-307-1
V.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
96-SC-503-MR
ALEXANDRA
APPELLANT
EADES
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
95-CR-307-2
V.
COMMONWEALTH
OF
KENTUCKY
DISSENTING
Respectfully,
that
finds
challenges.
jointly
entitled
OPINION
BY
JUSTICE
GRAVES
I must dissent from so much of the opinion
reversible
The
APPELLEE
error
majority
to
13
in
the
opinion
peremptory
allocation
holds
that
challenges.
of
peremptory
the
appellants
The
trial
interpretation of the rules so as to allow 11 peremptory
were
court's
challenges
is
reasonable.
Under the facts of this case, I would
apply a harmless error analysis and affirm the judgment of the
trial court.
Therefore,
I would modify the inflexible holding in
Kentuckv Farm Bureau Mut. Ins. Co. v. Cook, Ky., 590 S.W.2d 875
(1979) .
Lambert,
C.J., and Wintersheimer, J., join in this dissent.
RENDERED:
April 22, 1999
TO BE PUBLISHED
96-SC-502-MR
KIMBERLY
APPELLANT
SPRINGER
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
95-CR-307-1
V.
COMMONWEALTH
OF
APPELLEE
KENTUCKY
96-SC-503-MR
APPELLANT
ALEXANDRAEADES
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
95-CR-307-2
V.
COMMONWEALTH
OF
KENTUCKY
DISSENTING
Respectfully,
APPELLEE
OPINION
BY
JUSTICE
STUMBO
I must dissent from that part of the majority
opinion (part III) which concludes evidence of Springer's prior
sexual activity was properly admitted at trial.
I believe the
probative value of all of this evidence was substantially
outweighed by its potential to unduly prejudice the jury against
Springer.
KRE 403.
The probative value of Kenneth Clark's testimony that he and
Springer
had
minimal.
kissed, fondled, and flirted on a few occasions was
This
evidence, which was presented to support the
theory that Springer killed her husband in an effort to free
herself to be with her llloverll
really fell considerably short of proving this
intercourse),
motive,
(the two never even had sexual
but went far towards painting Springer as an irreverent,
immoral woman deserving of some sort of castigation.
Given
the
tenuous probative value of this evidence when compared to the
extreme prejudice it was likely to generate, I would have held
the evidence inadmissible under KRE 403.
I disagree with the majority's approval of the
Similarly,
admission
to
of
testimony
participate
in
regarding
three-person
admission of Sgt. Johnsonls
brown
briefcase.
Although
Springer's
sexual
apparent
intercourse,
willingness
and
the
description of the contents of the
the
Commonwealth
argues
this
evidence
was crucial to rebut Springer's claims of abuse, in reality, the
Commonwealth
introduced
no
evidence
to
rebut
the
overwhelming
evidence Springer introduced to show she was repeatedly battered
by her husband.
Contrary
to
the
Commonwealth's
purported
reason
for introducing the evidence of Springer's past sexual conduct,
this evidence did little to dispel the notion that Springer was
physically abused by her husband, but
nonetheless
had
the
desired
effect of portraying her as far outside the sexual mainstream so
as to incur the wrath of the jurors and invite them to convict
Springer for her sexual predilections rather than for any crime
she may have committed.
than
This evidence was far more prejudicial
probative, and should have been excluded at trial.
-2-
;dstly I would note that, although the trial judge did
conclude that displaying the contents of the briefcase might
unduly prejudice Springer in violation of KRE 403, she
nevertheless
permitted
Sgt. Johnson to describe the contents and
to opine that the photographs and videotape depicted "two
consenting
adults
having
protecting
Springer
from
fun."
the
This ruling fell far short of
extreme
prejudice
that
inevitably
would result from such a biased description of evidence.
retrial,
again,
Upon
should the Commonwealth seek to introduce this evidence
I would respectfully suggest that Sgt. Johnson be made to
limit his description to clinical terms, i.e., "two adults
engaging
in
Lambert,
intercourse,
apparently
consensual."
C.J., and Stephens, J., join.
-3-
RENDERED: APRIL 22, 1999
TO BE PUBLISHED
96-SC-502-MR
KIMBERLY
APPELLANT
SPRINGER
APPEAL FROM KENTON CIRCUIT COURT
HON. PATRICIA SUMME, JUDGE
CRIMINAL ACTION NO. 95-CR-307-1
v.
APPELLEE
OF KENTUCKY
COMMONWEALTH
96-SC-503-MR
AND
APPELLANT
ALEXANDRAEADES
APPEAL FROM KENTON CIRCUIT COURT
HON. PATRICIA SUMME, JUDGE
CRIMINAL ACTION NO. 95-CR-307-2
v.
COMMONWEALTH
APPELLEE
OF KENTUCKY
DISSENTING
OPINION
BY
JUSTICE
WINTERSHEIMER
I join the dissenting opinion authored by Justice Graves in
regard to the interpretation of the law concerning peremptory
strikes.
In addition, I would respectfully dissent from the
majority opinion in regard to three other issues discussed in it.
The circuit judge properly determined that no jury
instruction
on
the
lesser-included
offense
of
second-degree
manslaughter was warranted by the evidence in the Eades case.
Initially,
I do not believe that the question was properly
I
’
Evidence
preserved for app ,Ilate review pursuant to RCr 9.54(2).
was presented that Eades did the shooting and that it was a
premeditated
statements
and
deliberate
regarding
the
There
act.
were
conflicting
facts, but unless the jury believed that
Eades was not guilty at all, they must have believed that she
intentionally
killed
the
The trial court is required to
victim.
instruct only on those lesser-included offenses which are
supported by the evidence.
The majority opinion concedes the fact that the claim of
self-defense was not preserved for appellate review.
My review of the record indicates that defense counsel
agreed with the decision of the trial court on the issue of the
voir dire of the jury as to penalty ranges for the possible
lesser-included
offenses.
This issue was not properly preserved
for appellate review.
Under all the circumstances, it would appear that there is
no substantial possibility that the result in these cases would
have been any different in the absence of the alleged
irregularity.
RCr 9.24.
Thus any errors are nonprejudicial.
Any defendant is guaranteed a fair trial, but that does not mean
a perfect trial free from any and all possible error.
V.
Tucker,
417 U.S. 433, 94 S.Ct.
2357, 41 L.Ed.2d
Michigan
182 (1974).
"What it does mean is that a litigant is entitled to at least one
tolerably fair trial of his action."
KY.,
554 S.W.2d 84 (1977).
indicates
that
the
McDonald v. Commonwealth,
A review of the entire proceedings
defendants
received
a
fundamentally
trial.
I would affirm the convictions in all respects.
2
fair
Lambert,
I.
C.J., ::LI~
Graves, J., join this dissent as to part
.
c
96-SC-502-MR
KIMBERLY
SPRINGER
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
95-CR-307-1
V.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
96-SC-503-MR
ALEXANDRA
EADES
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
95-CR-307-2
V.
COMMONWEALTH
OF
KENTUCKY
ORDER
APPELLEE
MODIFYING
On the Court's own motion, the
OPINION
original
opinion
rendered
herein on April 22, 1999, is hereby modified by substituting a
new page 37, attached
hereto, in lieu of page 37 of the opinion
as originally
rendered.
Said modification is made to correct
thi .s Court's vote and does not affect the holding.
ENTERED:
May 3, 1999.
- 2 -
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