JOHN MILLS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JOHN
APRIL 22, 1999
TO BE PUBLISHED
MILLS
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
95-CR-98
v.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
On August 30, 1995, Arthur L. Phipps was stabbed to death.
Appellant,
John Mills, was convicted of Phipps's murder, first-
degree
burglary, and first-degree robbery and was sentenced to
death.
He appeals to this Court as a matter of right, raising
some thirty-two issues on appeal.
We affirm both the conviction
and the sentence.
Phipps's
body.
son-in-law,
Terry
Sutherland,
discovered
Phipps's
On the day of the murder, Sutherland twice went to
Phipps's
house.
in good spirits.
On the first occasion, he left Phipps alive and
Upon arriving the second time, he discovered a
trail of blood leading up the front steps.
of blood through the house.
He followed the trail
Sutherland found puddles of blood in
the living room, and more blood in Phipps's bedroom and bathroom.
He followed the blood trail to the kitchen where he found a pair
of pants lying on the floor.
Unable to locate Phipps inside the
house, Sutherland went back outside where he found Phipps's body.
While securing the crime scene, State Trooper Clyde Wells
discovered a trail of blood leading away from Phipps's body.
Wells and another police officer followed the blood trail to the
front of a house rented from Phipps by Mills.
Wells saw blood on
the exterior walls of the house, on the front door, and a trail
of blood crossing the front porch which led to a window. As
Wells walked past a window at the back of the house, Mills opened
Wells identified himself as a
the window and stared at Wells.
police officer and ordered Mills to remain where he was.
Wells
then went to the rear door of the house, which was open, and went
inside.
The house was unlit and dark
Wells
navigated
through
the
house with the aid of a flashlight until he was able to locate a
light switch.
Wells flipped the switch and found Mills standing
inside a doorway.
Mills put up his hands and surrendered to
Wells, whereupon Wells placed Mills in custody by putting him in
handcuffs and advising him of his rights pursuant to Miranda v.
Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Detective Gary Partin
followed Wells into the house.
Partin
placed Mills under arrest for Phipps's murder and also advised
him of his Miranda rights.
speak with him.
Partin
Mills told Partin
he did not want to
and Wells escorted Mills outside the
-2-
At some point, the handcuffs were removed from Mills
house.
Also, at
because he was bleeding profusely from the left wrist.
some point, Partin
directed Sergeant Charles Elliot to bring a
video camera to the crime scene.
Detective Ancil
approximately
ten
Hall arrived at Phipps's
minutes
after Partin.
residence
Shortly
thereafter,
he
was advised that a suspect was in custody at a nearby residence.
When Hall arrived at Mills' house, Mills was lying on the ground
covered with blood.
Either prior to or after Hall's arrival,
medical personnel arrived on the scene and began treating Mills'
injuries.
Partin
informed Hall that he (Partin)
advised Mills of his Miranda rights.
informed Mills of those rights.
already had
Nonetheless,
and
the
taped
again
Mills told Hall that he would
talk to him, and Hall proceeded to question Mills.
during
Hall
At some point
interrogation, Elliot arrived with the video camera
Mills'
confession.
The
videotape
of
Mills'
confession
circumstance
existed
which
was played in its entirety before the jury.
I.
Mills
argues
that
ARREST
no
AND
exigent
SEARCH
allowed the police to make a warrantless entry into his home to
effectuate
However,
his
arrest.
This allegation of error is unpreserved.
because the death penalty was imposed in this case, we
review this error under the standard set forth in Sanders v.
Commonwealth,
831,
KY.,
801 S.W.2d
665 (19901,
cert. denied, 502 U.S.
112 s. ct. 107, 116 L. Ed. 2d 76 (1991):
-3-
Assuming that the so-called error occurred,
(1) whether there is
we begin by inquiring:
a reasonable justification or explanation for
defense counsel's failure to object, e.g.,
whether the failure might have been a
legitimate trial tactic; and (2) if there is
no reasonable explanation, whether the
unpreserved error was prejudicial, i.e.,
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. at 668.
V.
However,
Commonwealth,
KY.,
we are not bound to assume error.
916 s.w.2d
148, 154 (1995),
Perdue
cert. denied,
519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96 (1996).
The police followed a blood trail to Mills' residence.
There was fresh blood on the walls of the house, on an open
window,
and on the door and the porch.
Detective
Partin
testified that based upon this physical evidence, he suspected
that the perpetrator was inside the house and was wounded as
well.
Upon these facts, defense counsel could have made no
legitimate
argument
that
the
police
lacked
exigent
circumstances
to enter Mills' residence at the time in order to render
immediate
385,
V.
aid
392-93,
and
assistance.
See Mincev v. Arizona, 437 U.S.
98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978); Todd
Commonwealth, KY.,
716 S.W.2d
242, 247-48 (1986).
The mere
fact that the suspected perpetrator was also the person aided and
assisted does not remove exigency of the circumstance.
Mills'
argument that the search of the house was illegal and
the fruits of that search should have been suppressed is also
unpreserved.
To the extent that this argument is based upon the
-4-
argument that his arrest was illegal, that part of the argument
is disposed of immediately above.
The additional basis urged for
finding the search to be illegal is on the grounds that there was
no warrant for the search which occurred after Mills had been
arrested and escorted outside of the house for medical treatment.
Clearly,
the exigent circumstances had vanished at that point.
However,
I1 [clonsent is one of the exceptions to the requirement
for a warrant."
(1992).
To
be
Cook v. Commonwealth, KY.,
constitutionally
valid,
the
826 S.W.2d 329, 331
Commonwealth
must
prove by a preponderance of the evidence that consent was
voluntarily
given.
Id.
"The
question of voluntariness turns on
a careful scrutiny of all the surrounding circumstances in a
specific
case."
Id.
On the videotape, the
following
exchange
between
Detective
Hall and Mills occurs:
Hall:
Can we go in [your house] and look
around?
Mills:
I got the key right in my pocket.
* * * *
Hall:
You don't care if we go in and look
around?
Mills:
Buddy open the door.
I don't care.
* * * *
Hall:
You understand you don't have to let us
look, now?
Mills:
I don't give a - -k.
f
-5-
Upon these facts, defense counsel could have made no
legitimate argument that Mills did not voluntarily consent to the
search of his house.
II.
VOLUNTARINESS
OF
THE
CONFESSION
On February 27, 1996, Mills filed a motion entitled:
Motion
for the Court to in-camera review the video-taped interview of
the defendant to determine the admissibility of said video-taoed
In the motion, Mills argued that the trial court
statement.
should suppress his confession on grounds that his intoxication
and
injuries
rendered
the
confession
involuntary
and
unreliable.
Upon review of the videotape, the trial court found that Mills'
intoxication did not rise to the level of mania required by Britt
V.
Commonwealth,
KY.,
512 S.W.2d
further found Mills' injuries
render
the
confession
496 (1974).
were
involuntary.
not
The trial court
sufficiently
Finally,
serious
to
the trial court
found that Mills' confession was not the product of duress or
coercion.
Mills argues that the trial court's in camera review of the
videotape did not satisfy the requirements of RCr 9.78, which are
mandatory.
The rule requires the trial court to hold an
evidentiary hearing whenever a defendant moves to suppress a
confession
made
to
police
authorities.
In this case, the trial
court did not hold an evidentiary hearing.
The
Commonwealth
argues that because an in camera review was all that Mills asked
for,
that was all he was entitled to.
-6-
Reluctantly,
we
disagree.
RCr
9.78 places affirmative duties upon the trial court.
The rule does not require that the defendant move for an
evidentiary
hearing.
Instead,
the rule mandates that a trial
court shall hold an evidentiary hearing outside of the presence
of the jury whenever a defendant moves to suppress a confession
or other incriminating statements made to the police.
In the case at bar, the trial court erred when it failed to
hold an evidentiary hearing to determine the admissibility of the
confession.
However,
the error was harmless.
Most of Mills' confession
was
videotaped.
There are no
material or substantial facts in dispute surrounding the events
occurring during the making of Mills' confession.
In Jackson v.
Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964),
the
United States Supreme Court stated that, absent a substantial
factual dispute in the evidence, voluntariness
of
may be properly decided by a reviewing court.
Id. at 391-92, 84
s. ct. at 1789.
a
confession
The voluntariness of a confession is assessed
based on the totality of circumstances surrounding the making of
the
confession.
(1970),
438
Allee v. Commonwealth, KY.,
454 S.W.2d 336, 341
cert. granted, 400 U.S. 990, 91 S. Ct. 454, 27 L. Ed. 2d
(1971),
case dismissed, 401 U.S. 950, 91 S. Ct. 1186, 28 L.
Ed. 2d 234 (1971).
While the facts occurring at the time Mills confessed are
not in dispute, Mills argues that there are other subjective
factors that must be considered in assessing the totality of the
circumstances
surrounding
the
making
-7-
of
his
confession.
he argues that his relatively low IQ (76) and his
Specifically,
limited
educational
background
render
his
confession
involuntary.
Under the Due Process Clause of the Fourteenth Amendment,
the question of the voluntariness of a confession turns on the
presence or absence of coercive police activity.
Colorado v.
Connellv, 479 U.S. 157, 167, 107 S. Ct. 515, 522, 93 L. Ed. 2d
473 (1986).
Likewise,
state action is required before a
confession may be found not voluntary under Section 11 of the
Kentucky
75,
Constitution.
76 (1995).
Commonwealth v. Cooner, KY.,
Thus, while
low
intelligence
and
899 S.W.2d
limited
education are elements to be considered in the totality of the
circumstances analysis, Allee,
454 S.W.2d
at 341, these factors
are only relevant inasmuch as their presence causes a defendant
to be predisposed to yield to coercive police tactics.
Therefore,
upon careful review of the videotape, and
taking into account the additional circumstances of Mills' low IQ
and limited intelligence, we conclude that Mills' confession was
voluntary.
The record contains no evidence of police "coercion
of a confession [obtained] by physical violence or deliberate
means calculated to break [Mills']
will."
Oregon v. Elstad, 470
U.S. 298, 312, 105 S. Ct. 1285, 1295, 84 L. Ed. 2d 222 (1985).
What the tape reveals is Mills answering willingly questions
posed to him by Detective Hall.
Additionally,
Mills does not
appear to be so intoxicated or injured so as to render his
confession
unreliable.
See Britt, 512 S.W.2d
at 500 (the issue
is not whether a drunk's confession is a product of free
-8-
volition, but rather whether the confessor was in sufficient
possession of his faculties to give a reliable statement).
III.
WAIVER OF MIRANDA RIGHTS
The question of whether a defendant has voluntarily waived
his Miranda rights is analyzed somewhat differently than the
question
of
whether
the
underlying
confession
is
voluntary.
As
stated in Colorado v. Snrinq, 479 U.S. 564, 573, 107 S. Ct. 851,
857,
93 L. Ed. 2d 954 (19871,
Connellv,
which was decided a year after
sunra:
A statement is not "compelledl' within the
meaning of the Fifth Amendment if an
individual l'voluntarily, knowingly and
intelligently" waives his constitutional
privilege.
Miranda v. Arizona, suora, at
444, 16 L. Ed. 2d 694, 86 S. Ct. at
1612 . . . .
The inquiry whether a waiver is
coerced "has two distinct dimensions." Moran v.
Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S.
ct. 1135 (1986):
"First the relinquishment of the
right must have been voluntary in
the sense that it was the product
of a free and deliberate choice
rather than intimidation, coercion,
or deception.
Second, the waiver
must have been made with a full
awareness both of the nature of the
right being abandoned and the
consequences of the decision to
abandon it.
Only if the 'totality
of the circumstances surrounding
the interrogation' reveal both an
uncoerced choice and the requisite
level of comprehension may a court
properly conclude that the Miranda
rights have been waived."
Ibid.
(quoting Fare v. Michael C., 442
U.S. 707, 725, 61 L. Ed. 2d 197, 99
S. Ct. 2560 (1979)).
-9-
Additionally,
the Commonwealth only needs to prove waiver of
Connellv,
Miranda rights by a preponderance of the evidence.
Addressing the second prong of
U.S. at 168, 107 S. Ct. at 522.
the inquiry first, clearly
479
Mills
knowingly
and
intelligently
waived his Miranda rights.
On August 2, 1996, Mills made a motion in limine to suppress
his confession on the grounds that he was not given his Miranda
rights or,
inadequate.
in the alternative, that the rights given were
The trial court held an evidentiary hearing and
determined that Mills was given adequate warnings and had
voluntarily
waived
his
rights.
The record reveals that at least
two different officers testified that they read Mills his rights
and that Mills understood the rights read to him.
Detective Partin
Further,
stated that, after he read Mills his rights,
Mills refused to talk with him and, thereby, invoked his right to
remain
silent.
Mills did not testify at the hearing.
There was no testimony or evidence given at the hearing to
contradict
the
police
officers' testimony
that
Mills
was
advised
of his rights, that he understood the rights read to him, and
that he knowingly waived them.
462 S.W.2d
124,
See Reeves v. Commonwealth,
KY.,
926, 930 (1971), cert. denied, 404 U.S. 836, 92 S. Ct.
30 L. Ed. 2d 69 (1971) (uncontradicted testimony by
witnesses for the Commonwealth satisfied a burden of proof higher
than preponderance of the evidence to show waiver).
Moreover,
Mills was no stranger to the criminal justice system and did in
fact exercise his right to remain silent.
-lO-
Turning now to the first inquiry set forth in Snring, sunra,
we likewise conclude that Mills voluntarily waived his Fifth
Amendment
privilege.
This inquiry,
like the inquiry into the
voluntariness of his confession, turns on state action.
479 U.S. at 574, 107 S. Ct. at 857.
the
evidentiary
hearing.
Snrinq,
Mills did not testify at
Nor did he introduce any other evidence
of coercion at the hearing.
Thus, the finding that Mills'
confession was not coerced should be conclusive on the issue of
whether the waiver of Miranda rights was coerced.
However,
on
appeal he makes an argument in favor of coercion which was not
raised at the evidentiary hearing.
Specifically,
he argues that
waiver was coerced when he was questioned a second time by
Detective
Hall.
We examine this possible error under the
standard set forth in Sanders, suora.
In Michisan v. Moslev, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed.
2d 313, the United States Supreme Court held that the police may
question a suspect, who had previously invoked his right to
remain silent, provided the police "scrupulously
suspect's right to cut off questioning.
326.
honor"
the
Id. at 104, 96 S. Ct. at
The Court then set forth the particular circumstances
present in that case, which led the Court to conclude that the
police
had "scrupulously
questioning.
honored I1 Mosley's
These factors were:
(1)
right to cut off
Mosley
was
carefully
advised of his rights prior to his initial interrogation, he
orally acknowledged those rights, and signed a printed
notification-of-rights
form;
(2)
the
-ll-
detective
conducting
the
interrogation
immediately
ceased
questioning
Mosley
after
he
invoked his right to remain silent and did not resume questioning
or try to persuade Mosley to reconsider his decision;
(3)
Mosley
was questioned about a different crime more than two hours later
at a different location by a different officer;
and (4) Mosley
was given a fresh set of Miranda warnings prior to the second
Id. at 104-05, 96 S. Ct. at 326-27.
interrogation.
The Moslev Court did not state that these factors were
exclusive
or
exhaustive.
above the others.
case-by-case
Nor did it elevate any single factor
Thus, we approach the Moslev analysis on a
basis.
Accord Christooher
v. Florida, 824 F.2d 836
(11th Cir. 1987); United States v. Hsu, 852 F.2d 407, 411 (9th
Cir.
1988) (all relevant factors are to be considered). In
examining all the relevant factors, we conclude that the police
scrupulously
honored
Mills' right to cut off questioning.
When Detective Partin
first advised Mills of his rights,
Mills stated that he would not talk to Partin.
As there is no
argument to the contrary, we assume that at that point in time
Mills properly invoked his right to remain silent.
Partin
did not question Mills further.
to change his mind.
Nor did he pressure him
Detective Hall re-advised Mills of his
rights prior to questioning him.
talk to Partin,
Thereupon,
Further,
where Mills refused to
he was willing to talk to Hall.
This is
significant because the right to cut off questioning centers on
the defendant's ability to "control the time at which questioning
-12-
occurs,
the
subjects
questioning."
discussed, and the duration of the
Moslev, 423 U.S. at 103-04, 96 S. Ct. at 326.
While there is no direct testimony as to the amount of time
which lapsed between Mills' refusal to talk to Detective Partin
and the questioning conducted by Detective Hall, the record
indicates that it was a fairly short time, probably not more than
ten or twenty minutes.
Mills argues that this short lapse in
time and the fact that he was questioned regarding the same crime
The lapse of time is clearly
are in conflict with Moslev.
relevant to the Moslev inquiry.
("To
See id
-A at 102,
96 S. Ct. at 326
permit the continuation of custodial interrogation after a
momentary
cessation
would
clearly
frustrate
the
purposes
of
Miranda by allowing repeated rounds of questioning to undermine
the will of the person being questioned.").
constitutionality
of
a
subsequent
police
However,
interview
"the
depends
not
on
its subject matter, but rather on whether the police in
conducting
the
interview
sought
resolve to remain silent."
650,
659 (7th Cir. 19981,
ct. 626,
to
undermine
the
suspect's
United States v. Schwensow, 151 F.3d
cert. denied,
L. Ed. 2d (19981,
U.S.
, 119 s.
citing cases from other
circuits holding the same.
While the relatively short lapse of time between Mills'
original invocation of his right to remain silent and his
subsequent questioning gives us some concern, in this case, it
does not weigh heavily enough in the totality of the
circumstances
to
render
Mills' waiver of his Miranda rights
-13-
We note that the second questioning was done by a
involuntary.
different officer who was familiar to Mills and who also advised
Mills of his Miranda rights.
by Partin
Thus, the
and the subsequent questioning
cessation
by
questioning
were
Hall
of
compatible
with Mills' right to control the questioning by allowing Mills to
determine with whom he would and would not talk.
Therefore,
Mills'
we
conclude
the
police
right to cut off questioning.
scrupulously
Consequently,
of his Miranda rights was not coerced.
Upon
the
honored
Mills'
facts
waiver
contained
in the record, we conclude that there was no error to justify
relief under the unpreserved error rule for death penalty cases
set forth in Sanders, supra.
The trial court did not abuse its discretion in finding that
Mills
voluntarily,
Miranda
knowingly, and
intelligently
Mills
argues
that
PRIOR BAD ACTS
improper
character
of KRE 404(b) was admitted against him.
admitted
Mills;
his
rights.
IV.
was
waived
(2)
through:
evidence
The
in
disputed
violation
evidence
(1) the testimony of his wife, Sharon
his former cellmate, Sam Shepherd; and (3)
Mills' own
confession.
The Commonwealth called Sharon as a witness.
Prior to her
testimony, defense counsel informed the trial court, out of the
hearing of the jury, that Mills had been advised of his right to
invoke the husband-wife privilege of JXRE 504, and that he had
-14-
declined to exercise the privilege.
During
the
course of her
testimony, defense counsel asked to approach the bench after
Sharon testified that Mills had asked for her keys to the family
van.
At a bench conference, defense counsel stated that Mills was
not charged with battery of his wife or his children.
The
Commonwealth Attorney stated that the evidence, in light of
defense
counsel's
Mills' mental
opening
argument
intoxication
and
state, was relevant to show Mills' state of mind
immediately prior to the murder.
Mills'
concerning
Defense
state of mind was relevant-l
counsel
However,
agreed
that
he argued that
evidence of state of mind could be extracted through general
testimony rather than getting
into
specifics.
The trial court ruled as follows:
At this point, I will rule that the
Commonwealth can address [Mills' state of
mind].
[The Commonwealth] should not get
into specifics, but . . . it may very well be
that I will allow this on rebuttal, given
[defense counsel's line of questioning during
voir dire] and statements and crossexamination that I've heard thus far.
B u t
will on direct limit it, rather order that
the Commonwealth limit its questions about
the specific activities [that] the defendant
. . . was engaged in with his wife or
children.
But I will allow the Commonwealth
to. . . generally elicit responses from
[Sharon] regarding his being upset and his
aggressive nature and his very strong desire
to use the vehicle and being upset with her
over that.
the
I
'It is worth noting that Mills' theory of the case included
defenses of intoxication and extreme emotional disturbance.
-15-
After
continued
the
above-described
questioning
bench
conference,
Thereafter,
Sharon.
the
Sharon
Commonwealth
stated
that
John pushed her in an attempt to get the keys to the van.
Defense
which
counsel
the
again
A bench conference followed in
objected.
Commonwealth's
Attorney
expressed
by the trial court's previous ruling.
its previous ruling.
Following
this
The
bench
some
trial
confusion
court
conference,
caused
reiterated
the
Commonwealth's Attorney asked Sharon if she and Mills had had a
fight.
Sharon
replied:
"No.
I wouldn't consider it a fight. It
was more of a disagreement, maybe a little tug wrestle."
was no objection to this testimony.
Later, Sharon
There
testified
concerning a subsequent physical altercation she had with Mills.
Specifically,
she testified that Mills pushed her down, took the
van keys from her, and that Mills tried to pull her out of the
van after she had gotten in the driver's side of the van.
On appeal, Mills argues that the trial court erred in
failing
to
exclude
the
above-outlined
testimony.
While the trial
court's ruling was not a model of clarity, the ruling effectively
sustained
Mills' objection to the evidence in question by
preventing
specific
the
acts.
Commonwealth
from
eliciting
testimony
concerning
In the absence of any challenge or subsequent
ruling to the contrary, we assume that the ruling was broad
enough to encompass the evidence in question.
Thus, the issue
before us does not concern whether the trial court's ruling was
correct.
Rather,
the alleged error involves the introduction of
-16-
testimony,
objection
which was contrary to that order, and to which no
was
raised.
Upon the record before us, it appears that the better
course for defense counsel would have been to object to Sharon's
testimony
against
concerning
Mills
was
physical
absolutely
abuse.
However,
overwhelming.
the
evidence
Further,
Sharon's
testimony of abuse was brief and summary in nature.
Thus, we
conclude that the totality of the circumstances are not
persuasive
that, minus the testimony of abuse, Mills would not
have been found guilty of a capital crime or that he would not
have been sentenced to death.
Sanders,
There is no reversible error under
sunra.
Next,
in response to a question by the Commonwealth, Sam
Shepherd made a reference to Mills' prior incarceration.
is, Shepherd's
testimony
was,
in
effect,
that
Mills
That
previously
had been convicted and imprisoned for some unspecified crime.
Mills moved for a mistrial at this point, which was denied by the
trial court.
general
However,
admonition.
the trial court did give the jury a
On appeal, Mills does not argue that the
trial court erred in failing to grant a mistrial.
Nor does he
present any argument to rebut the presumption that the trial
court's admonition cured the error.
Commonwealth, KY.,
862 S.W.2d
856, 859 (1993),
grounds bv Strinaer v. Commonwealth,
Consequently,
See Alexander v.
KY.,
overruled on other
956 S.W.2d 883 (1997).
there is nothing for us to review.
Shepherd also testified as follows:
-17-
Well from what I gathered, that [on] the day
. . . the murder occurred, [Mills] and his
wife had had problems.
They was . . .
fighting over the keys to the van or
something, and she finally took him to town.
He wanted to go to town and buy some
marijuana and apparently they got into a big
racket and she finally got away from him.
There was no objection to this testimony.
marijuana,
it is reasonable that defense counsel did not object
to this evidence because it supported
defense.
As to the
Mills'
intoxication
In fact, defense counsel elicited from a defense
witness, Dr. Simon, that, just prior to the murder, Mills went to
get a "bag of weed."
The remaining testimony is very brief and
summary in nature.
Further,
testimony
the
concerning
same
it is merely cumulative to Sharon's
incident
discussed
above.
Thus,
defense counsel reasonably could have assumed that there was
nothing to gain from objecting to Shepherd's brief reference to
the confrontation between Mills and his wife over the keys to the
van.
There is no error under Sanders, sunra.
The
last
allegation
testimony
about
Phipps's
murder.
of
error
concerning
Shepherd
involves
Mills' behavior while in jail awaiting trial on
This testimony came in the form of responsive
answers to questions posed by the defense in an effort to impeach
Shepherd.
"One who asks questions which call for an answer has
waived any objection to the answer if it is responsive."
V.
Commonwealth, KY.,
Finally,
663 S.W.2d
Ester,
213, 216 (1983).
in the videotape of the confession played in full
to the jury, Mills says,
"Gary Martin I don't like him no way.
He sent me to the penitentiary for something I didn't do."
-18-
Defense counsel did not move in limine to redact this statement.
Nor did defense counsel object when the videotape was played in
court.
Defense counsel was aware well before trial of the
videotaped
us,
confession
and
its
contents.
Upon the record before
it again appears that the better course for defense counsel
would have been to move to redact the statement.
However,
given
the overwhelming evidence of Mills' guilt, the totality of the
circumstances are not persuasive that, had the videotape been
redacted,
Mills would not have been convicted of a capital crime.
There is no reversible error under Sanders, supra.
V.
WAIVER
OF
COMPETENCY
HEARING
On November 7, 1995, Mills filed notice of his intention to
introduce
evidence
concerning
mental
defect pursuant to KRS 504.070.
illness,
insanity,
or
mental
One month later, the trial court
entered an order of psychiatric evaluation which required a
psychiatric examination to determine whether Mills was: (1)
incompetent to stand trial as defined by KRS 504.060(4);
insane as defined by KRS 504.060(5).
and (2)
Mills was examined by KCPC
psychiatrist Dr. Steven J. Simon, who determined that he was able
to understand the nature of the proceedings against him and
assist in his own defense.
At a pre-trial hearing on August 2, 1996, the Commonwealth
moved the trial court to set a hearing to determine Mills'
competency to stand trial.
After
a
lengthy
discussion
concerning
competency, defense counsel stated that competency was not an
-19-
issue and waived the hearing.
On appeal, Mills argues that a
competency hearing pursuant to KRS 504.100(3)
is mandatory and
cannot be waived by a defendant.
Criminal prosecution of a defendant who is incompetent to
stand trial is a violation of due process of law under the
Fourteenth
Amendment.
Medina v. California,
505 U.S. 437, 439,
112 S. Ct. 2572, 2574, 120 L. Ed. 2d 353 (1992).
Further,
once
facts known to a trial court are sufficient to place a
defendant's competence to stand trial in question, the trial
court must hold an evidentiary hearing to determine the question.
See Drape v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43
L. Ed. 2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 385-86, 86
S. Ct. 836, 842, 15 L. Ed. 2d 815 (1966).
Evidence of a
defendant's irrational behavior, his demeanor in court, and any
prior medical opinion on competence to stand trial are all
relevant facts for a court to consider.
95 S. Ct. at 908.
constitutional
KRS 504.100 is entirely consistent with these
requirements.
KRS 504.100(l)
psychiatrist
mental
Drape, 420 U.S. at 180,
"to
condition"
requires a court to appoint a psychologist or
examine, treat and report on the defendant's
whenever "the
court has reasonable grounds to
believe that the defendant is incompetent to stand trial."
504.100(3)
KRS
states that after such a report is filed, "the court
shall hold a hearing to determine whether the defendant is
competent to stand trial."
Section
-2o-
(3)
is
clearly
mandatory.
Moreover,
United
States
Supreme
Court
decisions
indicate
strongly that a defendant cannot waive a competency hearing.
See Pate, 383 U.S. at 384, 86 S. Ct. at 841; Medina, 505 U.S. at
449-50, 112 S. Ct. at 2579.
504.100(3)
The competency hearing of KRS
is mandatory and cannot be waived by a defendant.
standard of review in such a case is,
"Whether
a
The
reasonable
j udge , situated as was the trial court judge whose failure to
conduct an evidentiary hearing is being reviewed, should have
experienced doubt with respect to competency to stand trial."
Williams v. Bordenkircher,
cert. denied,
696 F.2d 464, 467 (6th Cir. 19831,
461 U.S. 916, 103 S. Ct. 1898, 77 L. Ed. 2d 287
(1983).
On appeal, Mills relies on his psychiatric report to show
that he was incompetent to stand trial.
However,
the
report
specifically concluded that Mills was competent to stand trial.
Thus, the report does not support Mills' argument on appeal.
Mills points to nothing else that should have caused the trial
court to question his competency to stand trial.
Finally, it is
clear from the record that the trial judge did not order the
psychiatric examination due to a belief that there were
reasonable
Rather,
grounds
to
question
Mills' competency to stand trial.
the trial court merely ordered the examination out of
expediency
in
response to Mills' notice of November 7, 1995.
Thus, upon
review of the record, we conclude that Mills has
failed to establish any factual basis which should have caused
the trial court to experience reasonable doubt as to Mills'
-21-
competence to stand trial.
Therefore,
we hold that it was
harmless error for the trial court to allow Mills to waive the
mandatory competency hearing of KRS 504.100(3).
VI.
JURY
SELECTION
First, Mills argues that the scope of the voir dire was too
limited to allow him to adequately question prospective jurors
concerning their views on the death penalty.
We
have
carefully
reviewed the questions asked by the court and counsel for both
sides during voir dire.
The voir dire was clearly sufficient to
elicit the potential jurors' views on the death penalty.
The
scope of the voir dire conformed with, or exceeded, the voir dire
approved of in Folev v. Commonwealth, KY., 953 S.W.2d
(1997),
cert. denied,
2d 522 (19981,
argument.
U.S.
924, 931
, 118 S. Ct. 1375, 140 L. Ed.
wherein the appellant made basically the same
This argument has no merit.
Next, Mills argues that the trial court erred in failing to
strike two jurors for cause because of their views toward alcohol
and drug abuse.
Whether a juror should be excused for cause is
within the sound discretion of the trial court. Id.
The
trial
court's decision will not be disturbed absent a clear abuse of
discretion.
Id.
Further,
the issue of how alcohol and drug
abuse can serve as a lldefensell
to an intentional crime and can
serve to mitigate punishment can be confusing to a lay person.
Mabe v. Commonwealth,
KY.,
884 S.W.2d
668, 670 (1994).
Upon
careful review of the voir dire we cannot say that the trial
-22-
court abused its discretion in denying Mills' motions to strike
these two jurors for cause.
Finally,
There was no error.
Mills argues that the trial court improperly
excused one juror for cause.
On appeal, Mills seems to argue
that she was excused solely because she was equivocal as to
whether she could impose the death penalty.
However,
the trial
court's ruling makes clear that she was excused because of the
nervousness she exhibited in response to questions by the court
and counsel and because of a partial medical excuse which stated
that she had a nervous disorder.
We have carefully reviewed the
The trial court did not
voir dire of the juror in question.
abuse its discretion in granting the Commonwealth's motion to
strike the juror in question for cause.
VII.
VIDEOTAPE OF THE CRIME SCENE
A videotape of the crime scene was introduced pursuant to
the testimony of Detective Partin.
videotape,
Partin
Additionally,
During the playing of the
commented on the images being displayed.
the videotape shows images of the victim.
There
was no objection to the playing of the videotape, nor was there
any objection to Partin's
commentary.
Prior to the playing of the videotape, the following
exchange between Partin
and the Commonwealth's Attorney (CA)
occurred:
CA:
During your state police training, have you
been trained in the science of understanding
blood patterns?
-23-
Partin:
CA:
In doing so, are blood
part of the training?
Partin:
Yes sir.
CA:
Explain to the jury what that is.
Partin:
Mills
Yes sir.
Blood spatter training is when you
look at the pattern of blood on an
object and being able to see how
that pattern may have gotten there.
For instance, in a lot of stabbing
cases, for instance, if someone is
stabbing someone they would bring
the knife back this way, blood
would be in like a streak, a dotted
That's called "cast off."
streak.
Other type of spatters would be
like swabs of hair--hair type
imprints against . . . walls, that
Blood drops would
type of thing.
be able to tell . . . whether this
was a drop coming straight down or
[were] drops coming from a moving
object.
spatters
argues that this testimony was insufficient to
establish Partin's
qualifications as an expert witness in blood
spatter
We note that defense counsel did not object to
Partin's
evidence.
qualifications as an expert witness.
court did not expressly recognize Partin
allowing
Partin
While
trial
as an expert witness, by
to testify concerning blood spatter evidence, the
trial court ruled by implication that Partin
was so qualified.
Guvther v. Nationwide Mutual Fire Insurance Comnanv,
238,
the
428 S.E.2d
243 (N.C. App. 1993).
While we believe that Partin
was qualified to render expert
testimony on blood spatter evidence, assuming
is correct, the error was harmless.
-24-
Partin
arguendo
that
Mills
referred to blood
spatter evidence only once during the narrative of the videotape.
Referring to blood spots seen on a wall in a particular room,
Partin
concluded that Phipps was attacked in this room with a
knife.
This conclusion was based on his interpretation of the
blood spots, which he characterized as being "cast off."
Given all the
was no dispute that Phipps was stabbed repeatedly.
other
There
evidence linking Mills to the murder and to the house,
that Phipps was stabbed with a knife in a particular
testimony
room hardly could have been prejudicial to Mills' case.
The rest of Partin's
testimony in connection with the
narration of the videotape did not rely on any blood spatter
expertise.
it is based on Partin's
Rather,
own personal
observations and perceptions of the crime scene.
Thus, we
examine the rest of the challenged testimony to determine whether
it was proper lay testimony.
On appeal, Mills
that the video showed:
occurred;
argues
that
Partin
improperly
speculated
(1) where three different attacks
(2) where the first attack occurred;
took something from a vase;
(3) where Mills
(4) where Mills left a boot print on
a door; and (5) that a particular wood chip came from a certain
hoe handle.
Mills
argues
that
these
allegedly
improper
speculations invaded the province of the jury and, further, only
served to inflame the jury.
this
Because there was no objection to
testimony, we review these allegations of error pursuant to
Sanders,
supra.
KRE 701 states:
-25-
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are:
(a) Rationally based on the perception of the
witness; and
(b) Helpful to a clear understanding of the
witness' testimony or the determination of a
fact in issue.
However,
KRE 701 must be read in conjunction with KRE 602, which
limits a lay witness's testimony to matters to which he has
personal
knowledge.
Initially,
Partin
we note that Mills' suggestion on appeal that
identified him, by name, in the challenged testimony is
not supported by the record.
videotape,
who
Partin
attacked
During his commentary of the
never referred to Mills by name as the person
Phipps, as the person who left a boot print on the
door, or who took something from a vase.
Rather,
Partin,
who
examined the crime scene and was present when the videotape was
made, testified to the locations where Phipps was attacked,
without
naming
the
attacker.
With the exception of the brief
reference to blood spatter evidence outlined above, Partin's
testimony as to the location of where the attacks occurred was
rationally based on his perceptions of the crime scene, e-a.,
pooling and the amount of blood evidenced on the videotape.
did Partin
Rather,
the
Nor
state that Mills took something out of a vase.
Partin
testified merely that Irhel' --without
to the pronoun-- took something from a vase.
-26-
any
reference
As to Partin's
testimony regarding the boot print, Partin
testified that a 'Idry
boot print" could be seen on a door in
response to a question concerning how the door was forced open.
Finally,
Partin
in pointing out the wood chip seen on the
videotape,
stated that it probably came from a hoe handle,
previously
introduced into evidence and was physically
which was
in
front
of him at the time.
On review of the challenged
comprised
opinions
and
inferences
testimony, we conclude that it
that
were rationally
based
on
Partin's
own perceptions of which he had personal knowledge.
Further,
we conclude the testimony was helpful to the jury in
evaluating the images displayed on the videotape.
conclude
that
the
challenged
testimony did not violate the
limitations of KRE 701 and KPE 602.
Partin's
Thus, we
The
challenged
portion
of
testimony was not in error.
Next, Mills argues that the display of Phipps's
body should
have been excluded because its probative value was substantially
outweighed by the danger of undue prejudice.
KFLE 403.
review of the tape, we conclude that the "videotape
Upon
evidence
does
not fall outside of the broad category of photographs which we
have found admissible under a liberal approach recognized in
Gall v. Commonwealth, KY.,
607 S.W.2d
97, 106 (19801,
continued through Waser v. Commonwealth, KY.,
(1988) ."
(1989).
Milburn v. Commonwealth, KY.,
There was no error.
-27-
and
751 S.W.2d 28, 31
788 S.W.2d 253, 257
VIII.
EXCLUSION
OF
EVIDENCE
Mills presents nine questions asked of a number of
witnesses to which the trial court sustained the Commonwealth's
objection
on
hearsay
grounds.
Mills
argues
that
by
preventing
the witnesses from responding to these questions, the trial court
denied him due process of law by depriving him of the opportunity
to present a defense.
court's
rulings
Mississinoi,
(1973),
where
were
Mills does not argue that the trial
incorrect.
Rather, he relies on Chambers v.
410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297
wherein the Supreme Court held, "In
constitutional
rights
directly
these circumstances,
affecting
the
ascertainment
of guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice."
S. Ct. at 1049.
Id. at 302, 93
Mills' reliance on Chambers is misplaced.
In Chambers, the appellant was convicted of shooting a
police officer to death.
Mississippi's
evidentiary
Id at 285, 93 S. Ct. at 1041.
rules
in
question
utterly
prevented
the
appellant from putting on evidence that one Gabe McDonald had
made a sworn confession to the murder and that McDonald had made
statements to others implicating himself as the shooter.
This
evidence was excluded either as hearsay or because it violated
the rule, in effect in Mississippi at that time, that a party may
not impeach.his
own witness, or on both grounds.
Id. at 294, 93
S. Ct. at 1045.
In the case at bar, Mills has made no showing that the trial
court's ruling prevented him from introducing the evidence he
-28-
sought to put before the jury.
Mills has only shown that the
trial court prevented him from introducing the evidence through
Chambers
hearsay.
holds
that
application
of
evidentiary
rules
cannot be applied so as to completely bar all avenues for
presenting
a viable
defense.
It does not hold that evidentiary
rules cannot be applied so as to properly channel the avenues
Exclusion
available for presenting a defense.
of
the
testimony
in question did not violate Mills' right to due process of law.
IX.
DIRECTED
VERDICT
Mills argues that the trial court erred in denying his
motions for directed verdicts of acquittal on the charges of
first-degree
burglary
and
first-degree
robbery.
Specifically,
Mills argues that there was no evidence introduced that he
entered
Phipps's
residence
without
permission,
Phipps's residence to commit a crime.
Further,
or
that
he
entered
he argues that
there was no evidence introduced to show that Mills committed the
charged crimes after his license to remain in Phipps's residence
expired.
Next, Mills argues that there was no evidence
introduced to show that he used physical force on Phipps with the
intent to accomplish theft, as is required by KRS 515.020.
"On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the defendant is entitled to
a directed verdict of acquittal.11
816 S.W.2d 186, 187 (1991).
-29-
Commonwealth
v. Benham,
KY.,
-
Mills was convicted
he remained in Phipps's
of
first-degree
burglary
on
grounds
house or on his property without
permission with the intention of committing a crime, i.e.,
See KFtS 511.020.
V.
Commonwealth,
that
theft.
His argument on appeal is contrary to Tribbett
KY.,
561 S.W.2d
662 (1978),
in which we held
that the license of invitees expired at the death of the victim,
and,
thus, when the invitees stayed on the premises after the
victim's death they remained unlawfully on the premises within
the meaning of KRS 511.020.
crime scene and Partin's
Id. at 663.
The videotape of the
testimony as to the relevant sequence of
events presented ample evidence that Mills remained on the
premises with the intention of committing a crime after his
license expired upon Phipps's death.
Concerning the lack of evidence to show the use of physical
force with the intent to accomplish theft, we note that intent
can be inferred from the act itself and the surrounding
circumstances.
(1970);
(1992).
Stevens v. Commonwealth, KY.,
462 S.W.2d 182, 184
Lambert v. Commonwealth, Ky. App., 835 S.W.2d
Again, the
videotape
and
Partin's
testimony
299, 301
presented
sufficient evidence for the Commonwealth to survive a directed
verdict under Benham.
Further,
Sam Shepherd testified that Mills
told him that he "went up there to rob the old man."
Viewing
this evidence in the light most favorable to the Commonwealth,
id.,
we conclude that Mills was not entitled to a directed
verdict on either charge.
-3o-
X.
GUILT
PHASE
INSTRUCTIONS
Mills argues that the trial court erred because it failed
to:
(1) give a separate instruction on intoxication; (2) give an
instruction
on
theft;
(3) give definitions of reasonable doubt
and the Commonwealth's burden of proof; and (4) give a definition
of "Enter
the
or Remain Unlawfully."
instruction
on
presumption
Additionally,
of
innocence
Mills
was
argues
that
constitutionally
deficient.
We begin our discussion on these issues by noting that
neither
the
Commonwealth,
to the trial court.
nor
Moreover,
failure to define "Enter
the
defense,
defense
tendered
counsel
or Remain Unlawfully."
only
instructions
objected
to
He did not
object to any of the other defects in the instructions alleged on
appeal.
Thus, these issues are unpreserved and are reviewed
under the standard set forth in Sanders, supra.
The instruction on intentional murder, of which Mills was
convicted,
states:
You will find the Defendant guilty of Murder under
this instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about
August 30, 1995 . . . he killed Arthur L.
Phipps by stabbing him with a knife and
striking him with a blunt object;
B. That in so doing, he caused the death
of Arthur L. Phipps intentionally and not
while acting under the influence of extreme
emotional
disturbance;
-31-
C. That at the time he committed the
offense of murder he was not so intoxicated
that he did not form the intention to commit
the offense.
Whenever
voluntary
a
defendant
adduces
sufficient
evidence
of
intoxication, the defendant is entitled to an
instruction on the defense of intoxication.
Commonwealth,
KY.,
575 S.W.2d
Brown v.
451, 452 (1978).
The
instruction
should be given separately in substantially the following form:
Although you might otherwise find the defendant guilty
of murder under Instruction [yl or first degree
manslaughter under Instruction [zl, if at the time he
killed X (if he did so) he was so drunk that he did not
have the intention of committing a crime, you shall
find him not guilty under those instructions.
Id.
Thus, under Brown, the trial court should have given a
separate instruction on intoxication that follows the model form.
However,
this does not end the inquiry.
In both Mabe, 884 S.W.2d
962 S.W.2d
KY.,
separate
form.
845, 857 (1997),
instructions
on
v. Commonwealth,
the appellants were each given
voluntary
intoxication
in
the
model
The appellant in Mabe argued "that an instruction on
intoxication
for
at 672, and Slaven
should
intentional
have
murder
been
and
as a separate instruction."
appellant in Slaven
included
first-degree
within
the
instructions
manslaughter
Mabe, 884 S.W.2d at 672.
rather
than
The
refined the argument and claimed "that since
the Commonwealth has the burden to disprove the defense of
intoxication, . . . the absence of intoxication should have been
included as an element of the offense of murder."
S.W.2d at 857.
-32-
Slaven,
962
In Mabe, we relied on Brown, sunra, to hold that there was
no error in giving a separate instruction.
672.
Mabe, 884 S.W.2d at
We relied on both Mabe and Brown to reach the same holding
in Slaven.
Slaven,
962 S.W.2d at 857.
As we explained in
Slaven:
However, it is the presence of intent, not the absence
of intoxication, that is the relevant element of the
If intoxication negates intent, it would be
offense.
redundant to instruct the jury that the Commonwealth
must prove both intent and the absence of intoxication.
Compare the defense of self-protection, which does not
negate an element of the offense, but provides a
justification for committing the other elements of the
The separate instruction on intoxication
offense.
explains to the jury how that defense affects the
It is unnecessary to repeat that
element of intent.
explanation in the instruction on the primary offense.
Id.
(internal
inclusion
of
citations
the
omitted).
intoxication
Thus,
Slaven
instruction
on the principal offense is not necessary.
holds
within
the
that
instruction
It does not hold that
to do so is error.
In any event, assuming error arsuendo, it is reasonable to
conclude that the failure to object to the intoxication
instruction was a legitimate trial tactic.
That is, defense
counsel may well have determined that the inclusion of the
intoxication instruction as an element of the offense in the
murder instruction was more beneficial to Mills than a separate
intoxication
instruction
would
have
been.
Moreover,
Mills has
offered no credible argument as to how the failure to ask for a
separate
instruction
on
intoxication
prejudiced
his
case.
is no possible reversible error under Sanders, sunra.
-33-
There
Next, Mills argues that it was error for the trial court to
instruct the jury on theft.
In
the
videotaped
confession,
Mills
The jury found otherwise.
denied taking anything from Phipps.
No reasonable juror could have found that Mills did not use force
The
or the threat of force to deprive Phipps of his property.
argument has no merit.
Next, Mills argues that the trial court should have defined
"reasonable
Mills
doubt" and the Commonwealth's burden of proof.
makes no mention of RCr 9.56(2), which
prohibits
definition
reasonable
Moreover,
a definition of
doubt
"reasonable
in
doubt"
the
is
instructions.
not
constitutionally
S.W.2d at 161.
Further,
establishes
Commonwealth's
without
the
the
first
required.
instruction
burden
of
of
Perdue,
916
clearly
proof.
The argument is
merit.
Next, Mills argues that the trial court should have defined
"Enter or Remain Unlawfully" because the term, as it appeared in
the
first-degree
burglary
instruction, was confusing to the jury.
We presume that the jury consisted of persons of common sense.
The argument is without merit.
Finally, Mills argues that the instruction on the
presumption
of
innocence
was
constitutionally
deficient.
The
instruction is identical to the model instruction found in 1
Cooper,
Kentuckv Instructions to Juries (Criminal), § 2.02.
This
form of instruction has repeatedly been found sufficient by this
Court.
(1984)).
Id. (citing Commonwealth v. Callahan, KY.,
675 S.W.2d 391
Again, the argument is utterly without merit.
-34-
XI.
PROSECUTORIAL
MISCONDUCT
Mills argues that a number of comments made by the
Commonwealth's Attorney in his closing arguments in both the
guilt and penalty phases were improper and only served to inflame
No objection was made to any of these remarks.
the jury.
careful review of the record, we
conclude
Attorney's
within
closing
arguments
fell
to both sides during closing argument.
Commonwealth, Ky., 744 S.W.2d
U.S. 1113,
that
the
the
great
Upon
Commonwealth's
leeway
allowed
See Slaushter v.
407, 412 (19881,
cert. denied, 490
109 S. Ct. 3174, 104 L. Ed. 2d 1036 (1989).
There was
no error.
XII.
PENALTY
PHASE
INSTRUCTIONS
Mills raises nineteen (19) errors in the penalty
instructions.
reality,
Most of these allegations of error are, in
invitations
to
overturn
long-established
precedent.
No
objection to any of these instructions was made to the trial
court.
The verdict forms did not, in effect, direct the jury to
sentence Mills to death or life without possibility of parole for
twenty-five (25) years upon finding the existence of an
aggravating
factor
beyond
Authorized
Sentences
a
states
reasonable
in
the
doubt.
last
The
paragraph,
Instruction
"However,
on
even
if you are satisfied from the evidence beyond a reasonable doubt
that one or more of the aggravating circumstances is true, you
are not required to impose life without benefit of probation or
-35-
-
parole for a minimum of 25 years or death."
This
instruction
clearly informed the jury that, despite the finding of one or
more
aggravators, it could fix Mills' sentence
at
the
authorized
sentences of a term of years of twenty (20) years or more, or
imprisonment
similar
for
life.
See Perdue,
916 S.W.2d
at 168 (upholding
instructions).
A number of identical issues were raised in Tamme
Commonwealth,
KY.,
973
, 119 S. Ct. 1056,
arguments,
we
S.w.2d
13
(19981,
cert.
L. Ed. 2d ( 1 9 9 9 ) .
v.
denied, U.S.
To these same
stated:
The instruction on mitigating circumstances included
the catch-all provisions, "any other circumstance or
circumstances arising from the evidence which you, the
jury, deem to have mitigating value," and "those
aspects of the defendants' character and the facts and
circumstances of the offense about which he has offered
evidence in mitigation." There was no need to instruct
on any specific nonstatutory mitigators. Haisht v.
Commonwealth, Ky ., 938 S.W.2d 243 (1996); Perdue v.
Commonwealth, KY., 916 S.W.2d 148 (19951, cert. denied,
U.S.
, 117 s. ct. 151, 136 L. Ed. 2d 96 (1996);
Sanders v. Commonwealth, suora.
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.
Bowlins v. Commonwealth, suora, 873 S.W.2d at 180.
Nor
is there a constitutional requirement to provide a
formal definition of mitigating circumstances or their
function.
"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." Waters v.
Thomas, 46 F.3d 1506, 1528 (11th Cir. 19951, cert.
denied, 516 U.S. 856, 116 S. Ct. 160, 133 L. Ed. 2d 103
(1995).
. . . Since 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
Cf. Bowling v. Commonwealth, suora, 873
of proof.
S.W.2d at 180; Skasss v. Commonwealth, KY., 694 S.W.2d
672 (19851, cert. denied, 502 U.S. 844, 112 S. Ct. 140,
-36-
-
116 L. Ed. 2d 106 (1991).
Nor is there any requirement
to instruct the jury on l'residual doubt" as a
mitigating factor.
Bussell v. Commonwealth, supra, at
115.
Id. at 37-38.
Contrary to Mills' argument on appeal that evidence of
parole eligibility should have been admitted during the penalty
phase,
it would have been clear, reversible error to admit such
evidence.
Perdue,
916 S.W.2d at 164.
An instruction to the jury
to avoid passion or prejudice in fixing the death penalty is not
required.
snonte
Id. at 169.
The trial court was not required to sua
instruct the jury that the defendant has a right not to
testify in the penalty phase and no adverse inference
drawn from his failure to do so.
S.W.2d
192,
671, 677 (19841,
factors
Commonwealth, KY.,
U.S.
be
KY.,
667
cert. denied, 469 U.S. 860, 105 S. Ct.
83 L. Ed. 2d 125 (1984).
mitigating
Ice v. Commonwealth,
shall
against
A jury is not required to weigh
aggravating
942 S.W.2d
factors.
293, 306 (19971,
Bowling v.
cert. denied,
, 118 S. Ct. 451, 139 L. Ed. 2d 387 (1997).
The law
does not require a jury to be instructed that a sentence of death
would
result
in
his
Additionally,
limited
the
jury's
electrocution.
Id.
Mills argues that:
consideration
adduced at the penalty phase;
of
(1) the instructions
mitigation
to
evidence
(2) the instructions directed the
jury to find the existence of aggravating circumstances; and (3)
the instructions failed to limit the jury's consideration of the
aggravating
circumstances
to
those
listed.
We have reviewed the
instructions and have determined that these arguments have no
-37-
merit.
Likewise,
his argument that the trial court should have
granted
a
merit.
Any other arguments concerning the penalty phase
directed
verdict
on
mitigating
circumstances
is
without
instructions not listed above have been reviewed and are devoid
of any merit.
XIII.
COMMENTS TO THE JURY
The jurors retired to deliberate at 4:42 p.m.
the jury returned to the courtroom with a question.
At 9:27 p.m.,
The trial
court noted that it had received the question, but did not repeat
it for the record.
the question was.
The record does not otherwise reflect what
The trial court responded to the question by
telling the jurors that they could quit for the night, in which
case they would be sequestered, or that they could take a break,
eat dinner, and
continue
the second option.
their
deliberations.
The
jurors
elected
After a short break, they returned to the
jury room to deliberate at 9:54 p.m.
The jury returned to the
courtroom with a death verdict at 3:58 a.m.
Mills
argues
that
the choice of sequestration or deliberation coerced the jury into
returning a sentence of death.
We note that while the exact question is not known, careful
examination of the portion of the videotape at issue reveals that
the jury did not inform the trial court that it was deadlocked.
Had it done so, the trial court's comments to the jury would have
violated RCr 9.57.
Of course, comments made in violation of RCr
9.57 do not create reversible error m se.
-38-
Commonwealth
v.
Mitchell,
KY.,
943 S.W.2d
When such an error
625, 627 (1997).
the focus on appeal is whether the comment itself was
occurs,
coercive.
We believe that in this situation the focus is
Id.
The
likewise on whether the comment was coercive.
difference
in
the two situations is that a violation of RCr 9.57 always results
in error, which is subject to a harmless error analysis, whereas
a response by the trial court to a question by the jury after it
has begun to deliberate only results in error if the comment is
in fact coercive.
In Tarrence v. Commonwealth,
cert. denied,
KY.,
265 S.W.2d 40 (19531,
348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706 (1954),
a deputy sheriff repeatedly asked the jury, under direction of
the trial court, whether
they
wanted
to
continue
whether wanted to go to a hotel for the night.
jury
preferred
Tarrence
Court
to
emphasized,
[the decision to
preference
remain.
continue
Id.
deliberations
Id. at 52.
or
The
In finding no coercion, the
"[IIt is manifest from the record that
deliberations]
was
the
express
of the jury and there was no objection." Id.
was even less possibility of coercion in the case at bar.
There
The
trial court merely responded to a legitimate question from the
jury.
It did not, as was done in Tarrence, disrupt jury
deliberations by interjecting the question of whether the jurors
wanted to continue or retire to a hotel.
Further,
clearly indicated that they wanted to continue.
error.
-39-
the jury
There was no
XIV.
"[Flirst-degree
are
three
separate
DOUBLE
JEOPARDY
burglary, first-degree
offenses."
S.W.2d 648, 654 (1987).
robbery
and
Kinser v. Commonwealth,
Nonetheless,
Mills
makes
murder
KY.,
three
741
different
double jeopardy arguments based on his convictions for these
three
separate
offenses.
KY.,
Commonwealth,
He relies primarily on O'Hara v.
781 S.W.2d
514 (1989).
The test to determine whether a prosecution for two
different
offenses
results
in
violation
of
constitutional
and
statutory double jeopardy principles is set forth in Commonwealth
V.
Burffe,
KY.,
947 S.W.2d
805 (1996),
cert. denied,
, 118 S. Ct. 422, 139 L. Ed. 2d 323 (1997).
U.S.
"We are to
determine whether the act or transaction complained of
constitutes a violation of two distinct statutes and, if it does,
if each statute requires proof of a fact the other does not."
O'Hara
Id. at 811.
stands for the proposition that the double
jeopardy analysis of Burse has to take into account both the
offenses charged in the indictment and the jury instructions.
Accord Butts v. Commonwealth, KY.,
953 S.W.2d
943, 945 (1997).
In the case at bar, Mills only includes the jury instructions in
his
argument.
The relevant elements in the jury instruction on the murder
convictions
are:
[Mills] killed Arthur L. Phipps by stabbing him
A.
with a knife and striking him with a blunt object;
B.
That in so doing, he caused the death of Arthur L.
Phipps intentionally . . . .
-4o-
The relevant elements in the jury instructions on the firstdegree
burglary
instructions
are:
[Mills] remained in a building owned by Arthur L.
A.
Phipps without permission . . . .
B.
That in so doing, he knew he did not have such
permission;
C.
That he did so with the intention of committing a
crime therein;
D.
That in effecting entry or while in the building or
in immediate flight therefrom, he used or threatened
the use of a dangerous instrument against Arthur L.
Phipps and/or caused physical injury to Arthur L.
Phipps. . . .
The relevant elements in the jury instructions on the firstdegree
robbery
conviction
are:
A.
[Mills] stole prescription drugs; and/or a changepurse and its contents; and/or keys from Arthur L.
Phipps;
That in the course of so doing with intent to
B.
accomplish the theft, he used physical force upon
Arthur L. Phipps;
C.
That when he did so, he was armed with a knife and
a blunt object;
Thus, applying the same-elements test of Burge to the
instructions set forth above, we
conclude
that
convictions
for
these three offenses do not violate double jeopardy principles.
The murder instruction requires proof of Phipps's
death, which
element is not required by the instructions on burglary or
robbery.
Next, the
burglary
Mills remained on Phipps's
instruction
requires
proof
that
property without permission and that
he knew that he did not have permission, which elements are not
required by the instructions on murder and robbery.
-41-
Finally,
the
robbery instruction requires proof that Mills stole certain items
from Phipps, which element is not required by the instructions on
murder
and
burglary.
Mills argues that the reuse of the robbery and
Finally,
burglary convictions at the guilt phase cannot be used to prove
This
aggravating circumstances for murder at the penalty phase.
same argument was raised and rejected in Bowlinq, 942 S.W.2d
at
308.
xv.
RATIONAL
SENTENCING
Mills argues that he did not receive a rational sentence
because the trial court:
(1)
considered
a
non-statutory
aggravator,
specifically the heinousness of the crime;
to
mitigators;
consider
mitigators;
sentencing
(2) failed
(3) failed to make findings as to
and (4) failed to articulate its role in the
procedure.
In response, we note the following:
(1) Unlike the jury,
"the trial court is not limited to statutory aggravating
circumstances."
423 (19851,
Matthews v. Commonwealth, KY.,
709 S.W.2d
414,
cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed.
2d 170 (1986).
Further,
we found no error in the trial court's
consideration of the heinous nature of the murder as a nonstatutory
aggravating
circumstance.
Tamme,
759 S.W.2d at 55; (2)
Review of the record reveals that the trial court did consider
mitigating
make
circumstances;
specific
findings
as
(3) The trial court is not required to
to
mitigating
-42-
circumstances.
Bowlinq,
-
942 S.W.2d at 306;
(4) The trial court acted within its
discretion in upholding the jury's recommended sentence of death.
"The contention that there is no properly articulated standard of
review for the trial court in such a circumstance is without
merit."
Id.
XVI.
OTHER
ISSUES
"Imposition of the death penalty does not violate the
constitutional
proscription
against
cruel
and
unusual
punishment.
Nor is its application arbitrary in view of the guidelines for
its imposition provided by KRS 532.025 and KRS 532.075.
electrocution is not cruel and unusual punishment."
S.W.2d
at 40 (internal citations omitted).
Failure
Death
by
Tamme, 973
to
provide
access to data collected by this Court pursuant to KRS 532.075(6)
did not deny Mills due process of law.
KY., 694 S.W.2d 665, 671 (19851,
Harrier v. Commonwealth,
cert. denied, 476 U.S. 1178, 106
S. Ct. 2906, 90 L. Ed. 2d 992 (1986).
Mills'
argument
that
Kentucky's proportionality review violates due process of law is
without
jury.
merit.
It is not unconstitutional to "death
Wilson v. Commonwealth, KY., 836 S.W.2d
qualify"
a
872, 890 (1992)
(citing Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L.
Ed. 2d 137 (1986)).
Mills' argument that the use of a videotaped
record denied him effective assistance of appellate counsel is
without
merit.
-43-
-
XVII.
KRS
532.07513)
Pursuant to KRS 532.075(3),
REVIEW
we have reviewed this record and
determined that the sentence of death was not imposed under the
influence
of
passion,
prejudice, or any other arbitrary factor.
There was ample evidence to support the finding of the
aggravating
burglary.
factors
of
first-degree
robbery
and
first-degree
We have also reviewed all cases decided since 1970 in
We
which the death penalty was imposed.
have
particularly
considered those in which a defendant was sentenced to death for
intentional
murders
unaccompanied
by
other
criminal
behavior
directed toward the victims, e.g., burglary, robbery, rape, etc.,
viz:
Folev,
Commonwealth,
942 S.W.2d
KY.,
938 S.W.2d
, 118 S. Ct. 110,
Commonwealth,
1065,
KY.,
876; Bowlinq, 873 S.W.2d
243 (19961,
175; Haiaht v.
cert. denied,
U.S.
139 L. Ed. 2d 63 (1997); Eoperson v.
809 S.W.2d
835 (1990),
cert. denied, 502 U.S.
112 s. ct. 955, 117 L. Ed. 2d 123 (1992); Smith v.
Commonwealth,
KY.,
734 S.W.2d
437 (1987),
cert. denied, 484 U.S.
1036, 108 S. Ct 762, 98 L. Ed. 2d 778 (1988); Slauahter, 744
S.W.2d
415; Bevins v. Commonwealth, KY.,
cert. denied,
932 (19861,
479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010
(1987); Haroer,
V.
712 S.W.2d
Commonwealth,
694 S.W.2d
KY.,
665 (1985) (two murders); and McOueen
669 S.W.2d
519 (19841,
cert. denied, 469
U-Se 893, 105 S. Ct. 269, 83 L. Ed. 2d 205 (1984).
of this review, we have determined,that
On the basis
the sentence of death in
this case is not excessive or disproportionate to the penalty
-44-
imposed in similar cases, considering both the crimes and the
defendant.
For the foregoing reasons, the judgment of the Knox Circuit
Court is affirmed.
All concur.
COUNSEL
FOR
APPELLANT:
Richard Hoffman
Oleh R. Tustaniwsky
Assistant Public Advocates
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL
FOR
APPELLEE:
A. B. Chandler, III
Attorney General of
Kentucky
Kent T. Young
Paul D. Gilbert
Assistant Attorneys General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
Thomas V. Handy
Special Assistant Attorney
105 East Fourth Street
London, KY 40741
General
-45-
96-SC-0966-MR
JOHN MILLS
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
95CR-98
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING
The petition for rehearing filed by Appellant, John Mills, is hereby DENIED.
All concur.
ENTERED: August 26, 1999.
SUSAN SToKLey CLARY
CLERK
OFFICE OFTHE CLERK
%JFREME COURT OF &3N’I’UCXY
ROOM
209, STATE CAP~L
700 CAPITAL AVE.
FRANKFORT, KENTUCKY 40601-3488
(502) 564-4720
FAX No.
564-5491
CERTIFICATION
I, Susan Stokley Clary, Clerk of the Supreme Court of Kentucky, do hereby certify that the
attached order denying appellant John Mills Petition for Rehearing of the Court’s Opinion rendered
April 22, 1999, and the order directing the Clerk of the Supreme Court to issue a Mandate in this
matter and a copy of the Mandate, all dated August 26, 1999, in the matter styled JOHN MILLS
VS. COMMONWEALTH OF KENTUCKY, File No. 96-SC-0966, Knox Circuit Court No.95CR-0098, are true and correct copies of the original Orders and Mandate as they appear on file in
my office.
Done this 26’h day of August, 1999, at Frankfort, Ky.
SUSAN STOKLEY CLARY, CLERK
SUPREME COURT OF KENTUCKY
Deputy Clerk
96-SC-000966-MR
APPELLANT
JOHN MILLS
V.
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
(KNOX CIRCUIT COURT NO. 95CR-00098)
APPELLEE
COMMONWEALTH OF KENTUCKY
ORDER REQUIRING MANDATE
Effective July 1, 198 1, the Supreme Court adopted the following rule, CR 76.30(2)(f): “NO
mandate shall be required to effectuate the final decision of an appellate court, whether entered by
order or by opinion.” However, in order to satisfy the provisions of KRS 43 1.2 18, it is hereby
ordered that the Clerk of the Supreme Court of Kentucky issue a mandate in this appeal in order to
make effective the opinion disposing of the appeal.
ENTERED: August 26,1999
/
Chief Justice
Supreme Court of Kentucky
MANDATE
FdeNo.
96-SC-0966-MR
Opinion Rendered APRIL 22, 19 9 9
vs.
COMMONWEALTH OF KENTUCKY
Appeal From KNOX
Circuit Court Action No.
95-CR-0098
The Court being sufficiently advised, it seems to them there
is no error in the judgment herein.
It is therefore considered that said judgment be affirmed,
and same shall be carried into execution as provided by law on
the fifth Friday following the date of the issuance of this Mandate,
which is ordered to be certified to the Superintendent (Warden)
of the Kentucky State Penitentiary at Eddyville, Kentucky.'
August 26, 1999
Appellant, John Mills Petition for
Rehearing of the Court's Opinion
rendered April 22, 1999, is denied.
A Copy - Attest:
Issued
1999
. . . . August. . . . . 26. . ..(..............................................
..........
...
Form SCC-9
BY
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