GERALD YOUNG V. COMMONWEALTH OF KENTUCKY and ERSKIN F. THOMAS V. COMMONWEALTH OF KENTUCKY AND DARRELL C. MORBLEY TRANSFER FAYETTE CIRCUIT COURT V. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 26,200l
TO BE PUBLISHED
1998-SC-0584-MR
GERALD YOUNG
V.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
97-CR-1069-2
COMMONWEALTH OF KENTUCKY
AND
ERSKIN
V.
1998-SC-0607-MR
APPELLANT
F. THOMAS
APPEAL FROM FAYElTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
97-CR-1069-I
COMMONWEALTH OF KENTUCKY
APPELLEE
1998-SC-0963-TG
AND
DARRELL C. MORBLEY
V.
APPELLEE
APPELLANT
TRANSFER FROM COURT OF APPEALS
1998-CA-1817
FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
97-CR-1069-3
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
AS TO 1998-SC-0584-MR,
AFFIRMING AS TO 1998-SC-0607-MR AND
AFFIRMING AS TO 1998-SC-0963-TG
On June 13, 1997, Osama Shalash was fatally shot in the Lexington Mall parking
lot in front of Perkins’ Restaurant in Lexington, Kentucky. Appellants Gerald Young,
Erskin Thomas and Darrell Morbley were jointly indicted for his murder. At trial, the
Commonwealth proved that Shalash and Young were cocaine traffickers and that
Young regularly purchased large quantities of cocaine from Shalash for resale to lesser
dealers. There was evidence that Young intended to purchase $SO,OOO.OO worth of
cocaine from Shalash, but that Shalash only had $25000.00 worth of cocaine to sell.
Young paid Shalash $25000.00 for the cocaine and entrusted the remaining
$25,000.00 to the possession of one of Young’s associates, Leslie Mulligan. There was
evidence that Young had previously “shorted” Shalash on another drug transaction.
The Commonwealth’s theory of the case was that Shalash robbed Mulligan of the
$25,000.00 at gunpoint; and, in revenge, Young hired Thomas to kill Shalash. To that
end, Young arranged a meeting with Shalash at the Lexington Mall parking lot.
Morbley, another of Young’s associates, drove Thomas to and from the Lexington Mall
where Thomas shot and killed Shalash. Thomas was convicted of murder and
sentenced to life in prison without benefit of probation or parole for twenty-five years.
Young was convicted of complicity to murder and sentenced to death. Morbley was
convicted of facilitation of murder and sentenced to five years in prison.
Young and Thomas appeal to this Court as a matter of right. Ky. Const. 5
110(2)(b); KRS 532.075(l). Morbley’s appeal was transferred to this Court so that all
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three appeals could be considered together. CR 74.02(2). We reverse Young’s
sentence of death because there is no aggravating circumstance applicable to his
participation in the murder of Shalash. KRS 532.025(2),(3). In all other respects, the
convictions and sentences imposed upon Appellants are affirmed.
I. AGGRAVATING CIRCUMSTANCE.
A sentence of death or of life without benefit of probation or parole for twenty-five
years cannot be imposed unless the jury has found beyond a reasonable doubt and
designated in writing that at least one of the statutory aggravating circumstances
enumerated in KRS 532.025(2)(a), or another aggravating circumstance “otherwise
authorized by law,“’ applies to the defendant. KRS 532.025(2),(3); see Smith v.
Commonwealth, Ky., 599 S.W.2d 900, 912 (1980). The parties to this appeal agree
that the only statutory aggravating circumstance applicable to the facts of this case is
KRS 532.025(2)(a)4, viz:
The offender committed the offense of murder for himself or another, for
the purpose of receiving money or any other thing of monetary value, or
for other profit.
Subsection (2)(a)4 contains the only aggravating circumstance enumerated in
KRS 532.025(2) that is premised upon the defendant’s motive. The others are
’ In Harris v. Commonwealth, Ky., 793 S.W.2d 802, 805 (1990), cert. denied,
499 U.S. 924 (1991), we held that capital punishment could be imposed upon a
defendant convicted of kidnapping if he also murdered his victim during the course of
the kidnapping. Kidnapping is a capital offense and Harris holds that murder, though
not an aggravating circumstance enumerated in KRS 532.025(2)(a), is an “aggravating
circumstance[ ] otherwise authorized by law.” KRS 532.025(2). Murder, of course, is
proscribed by KRS 507.020. While kidnapping is enhanced to a capital offense if the
victim is not released alive or subsequently dies as a result of the kidnapping, the
additional element of intent to kill in KRS 507.020(1)(a) provides the statutory
aggravating circumstance authorizing capital punishment for kidnapping. St. Clair v.
Roark, Ky., IO S.W.3d 482, 486-87 (1999).
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premised upon the status of the defendant, the status of the victim, or the nature of the
offense. The jury was instructed that it could impose capital punishment upon Thomas,
the hired killer, only if it believed from the evidence beyond a reasonable doubt that:
The defendant committed the offense of Murder for himself or another, for
the purpose of receiving money or any other thing of monetary value, or
for other profit.
Thus, the instruction parroted the language of KRS 532.025(2)(a)4, and Thomas
does not assert on appeal that there was insufficient evidence to warrant application of
the aggravating circumstance to him. The jury was instructed that it could impose
capital punishment upon Young, who hired Thomas to kill Shalash, only if it believed
from the evidence beyond a reasonable doubt that:
The defendant committed the offense of Complicity to Murder and the
murder was committed by Erskin Thomas, for the purpose of receiving
money or any other thing of monetary value, or for other profit.
Of course, the jury had already found Young guilty of complicity to murder; and
there was no evidence that Young’s motive in hiring Thomas to kill Shalash was “for the
purpose of [Young] receiving money or any other thing of monetary value, or for other
profit.” The instruction authorized the imposition of capital punishment upon Young if
the jury believed that Thomas killed Shalash “for the purpose of phomas] receiving
money or any other thing of monetary value, or for other profit.“ The issue here is
whether an accomplice to murder, whose motive was revenge, can be sentenced to
death because the killer’s motive was monetary gain.2 We have not previously been
2 We do not address the Commonwealth’s contention that this issue was not
preserved by timely objection. In reviewing a conviction in which the death penalty has
been imposed, all claims of error, including those which are unpreserved, are
addressed on appeal unless the failure to object can fairly be attributed to trial strategy,
or if the error can fairly be characterized as harmless. KRS 532.0X(2); Sanders v.
Commonwealth, Ky., 801 S.W.2d 665, 668 (1990), cert. denied, 502 U.S. 831
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required to decide whether KRS 532.025(2)(a)4 authorizes imposition of the death
penalty upon one who hires another to kill, but whose motive in doing so is unrelated to
“receiving money or any other thing of monetary value, or for other profit.“3
Prior to the adoption of the penal code, Kentucky’s murder statute provided
simply:
Any person who commits willful murder shall be punished by
confinement in the penitentiary for life, or by death.
KRS 435.010 (repealed 1974 Ky. Acts, ch. 406, 5 336, eff. January 1, 1975). Under
that statute, whether a convicted murderer would be sentenced to death or to life in
prison was left to the unfettered discretion of the jury. By 1962, similar statutes existed
in every jurisdiction in the United States that had not abolished the death penalty.
Model Penal Code and Commentaries, Part II, § 210.6, Comment 4(c), at 131 (A.L.I.
1980) (hereinafter Commentaries). In 1959, the American Law Institute adopted a
Model Penal Code provision that set forth aggravating and mitigating circumstances to
guide judges and juries in determining whether capital punishment would be
appropriate in a particular case. Id., Comment 1, at 110, Comment 6, at 136-42. The
aggravating circumstance in the Model Penal Code that corresponds to KRS
532.025(2)(a)4 is found at Section 210.6(3)(g): “The murder was committed for
pecuniary gain.” As of 1972, no American jurisdiction had adopted Section 210.6 of the
Model Penal Code. Commentaries, supra, Comment 13, at 167-68.
(1991). Neither of those circumstances apply here, because Young could not have
been sentenced to death absent proof and a finding of the KRS 532.025(2)(a)4
aggravator.
3 In Brown v. Commonwealth, Ky., 780 S.W.2d 627 (1989), cert. denied, 494
U.S. 1087 (1990) there was evidence that the defendant who hired the killer intended
to share in the proceeds of the victim’s life insurance policy. Id. at 630.
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In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971)
it was argued on behalf of the condemned murderer that the absence of standards to
guide a jury’s discretion on the issue of capital punishment was unconstitutional as
being “fundamentally lawless” and, thus, in violation of the Due Process Clause of the
Fourteenth Amendment. Id. at 196, 91 S.Ct. at 1461. Addressing this contention,
Justice Harlan traced the history of the death penalty from Exodus 21:12-13 through the
laws of England and the United States. Id. at 197-203, 91 S.Ct. at 1462-65; see also
Commentaries, suora, Comment 4, at 121-32 and M. Coan, Symposium on the New
Kentuckv Penal Code: Classification of Offenses and Disoosition of Offenders, 61 Ky.
L.J. 734, 738-39 (1972-73). To summarize, the common law rule mandated death for
all convicted murderers. Subsequent legislative enactments distinguished between
degrees of homicide, retaining the mandatory death sentence only for murder in the first
degree. Juries, however, simply convicted of a lesser degree of homicide in those
cases where they chose not to impose the death penalty, and legislatures accepted this
“jury nullification” by amending their statutes to grant juries the discretion they were
already exercising.
Guided by neither rule nor standard, “free to select or reject as it [sees]
fit,” a jury that must choose between life imprisonment and capital
punishment can do little more -- and must do nothing less - than express
the conscience of the community on the ultimate question of life or death.
VVithersooon
v. Illinois, 391 U.S. 510, 519, 88 SCt. 1770, 1775, 20 L.Ed. 2d 776
(1968) (quoting Peoole v. Bernettes, 197 N.E.2d 436, 443 (Ill. 1964)).
[O]ne of the most important functions any jury can perform in making such
a selection is to maintain a link between contemporary community values
and the penal system -- a link without which the determination of
punishment could hardly reflect “the evolving standards of decency that
mark the progress of a maturing society.”
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id. at 519-20 n.15, 88 SCt. at 177576 (quoting Trap v. Dulles, 356 U.S. 86, 101, 78
S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)).
Citing these precedents, the Supreme Court in McGautha, supra, rejected the
Due Process argument against discretionary jury sentencing.
In the light of history, experience, and the present limitations of
human knowledge, we find it quite impossible to say that committing to the
untrammeled discretion of the jury the power to pronounce life or death in
capital cases is offensive to anything in the Constitution. The States are
entitled to assume that jurors confronted with the truly awesome
responsibility of decreeing death for a fellow human will act with due
regard for the consequences of their decision and will consider a variety of
factors, many of which will have been suggested by the evidence or by the
arguments of defense counsel. For a court to attempt to catalog the
appropriate factors in this elusive area could inhibit rather than expand the
scope of consideration, for no list of circumstances would ever be really
complete. The infinite variety of cases and facets to each case would
make general standards either meaningless “boiler plate” or a statement
of the obvious that no jury would need.
402 U.S. at 207-08, 91 S.Ct. at 1467-68.
That was in 1971. In 1972, a pluraliv of the Supreme Court held in Furman v.
Georqia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that statutes leaving
imposition of the death penalty entirely to the unguided discretion of jurors violated the
Id. a Amendment proscription against cruel6and unusual punishment.
Eighth
t
3
0
I
0
,
92 S.Ct. at 2760-63 (Stewart, J., concurring); id. at 310-14, 92 S.Ct. at 2763-65 (White,
J., concurring); see Greaa v. Georaia, 428 U.S. 153, 169, n.15, 96 SCt. 2909, 2923, 49
L.Ed.2d 859 (1976) (“[slince five Justices wrote separately in support of the judgments
in Furman, the holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds -- Mr. Justice
4 Justices Brennan and Marshall concurred in the result but asserted that capital
punishment is per se unconstitutional.
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Stewart and Mr. Justice White”). Furman did not decide, however, whether statutes
mandatinq the death penalty would be unconstitutional. See 408 U.S. at 257, 92 SCt.
at 2735-36 (Douglas, J., concurring); 408 U.S. at 307-08, 92 S.Ct. at 2761 (Stewart, J.,
concurring).
Meanwhile, pursuant to a joint resolution of the 1968 Kentucky General
Assembly,’ the Kentucky Crime Commission had prepared a draft of a proposed new
penal code for Kentucky. The draft was completed and published in November 1971
and, after some revision, was enacted by the 1972 General Assembly’ with an effective
date of July I, 1974. J. Palmore, Preface to Svmoosium on Kentuckv Penal Code, 61
Ky. L.J. 620 (1972-73). The 1972 version of the new murder statute, KRS 507.020,
was enacted before the rendition of Furman and did not change the penalty provision of
the former statute, KRS 435.010, but continued to permit the jury to impose death or life
in prison in its discretion. The new penal code did not go into effect on July 1, 1974, as
originally scheduled, but was reenacted by the 1974 General Assembly with
modifications and given a new effective date of January 1, 1 975.7 The murder statute,
KRS 507.020, was amended to reauire imposition of the death penalty under six
aggravating circumstances, thus avoiding the Furman problem of leaving the decision
of life or death to the unfettered discretion of a jury. If a jury found a defendant guilty of
aggravated murder, there was no discretion to exercise; death was mandated.8 One of
’ 1968 Ky. Acts, ch. 230.
6 1972 Ky. Acts, ch. 385.
7 1974 Ky. Acts, ch. 406, 5 337.
8 1974 Ky. Acts, c h 406, §§ 61(2), 275(l).
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the six aggravating circumstances in the 1974 version of KRS 507.020 was that “[t]he
defendant’s act of killing was intentional and was for profit or hire.“g (Emphasis added.)
Following the invalidation of its statutory scheme in Furman, Georgia enacted a
new death penalty statute incorporating the Model Penal Code approach of providing
statutory aggravating and mitigating circumstances to guide the jury in its decision
whether to impose the death penalty in a given case.” However, the language of
Georgia’s “pecuniary gain” aggravator differed from the requirement in Section
210.6(3)(g) of the Model Penal Code that “the murder was committed for pecuniary
gain,” (emphasis added), providing instead that “[t]he offender committed the offense of
murder for himself or another, for the purpose of receiving money or any other thing of
monetary value.” Ga. Code Ann. 5 17-10-30(b)(4) (emphasis added). Thus, whereas
Section 210.6(3)(g) of the Model Code required that the motive for the offense must
have been pecuniary gain, the Georgia statute required that the motive of the offender,
i.e., the defendant, must have been pecuniary (monetary) gain.
States that have adopted the language of the Model Penal Code have found the
“motive for the offense” requirement inclusive enough to apply not only to the hired
killer, but also to the one who procured .his/her services. b, Wilson v. State, 664 P.2d
328, 337 (Nev. 1983); Hopkinson v. State, 664 P.2d 43, 59 (Wyo. 1983), cert. denied,
464 U.S. 908 (1983). Georgia, on the other hand, has not relied on the “motive of the
offender” requirement in subsection (b)(4) of its statute to authorize capital punishment
for one who hires another to commit murder, but on a different aggravating
circumstance contained in subsection (b)(6) of its statute, &: “The offender caused or
g 1974 Ky. Acts, ch. 406, § 61(2)(a).
lo 1973 Ga. L., p. 159, § 3.
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directed another to commit the murder or committed murder as an agent or employee
of another person.” Ga. Code Ann. § 17-10-30(b)(6); Castell v. State, 301 S.E.2d 234,
250 (Ga. 1983), on denial of new trial, 314 S.E.2d 210 (Ga. 1984), cert. denied, 469
U.S. 873 (1984); cf. Whittinaton v. State, 313 S.E.2d 73, 82 (Ga. 1984).
In Greaa v. Georaia, supra, the United States Supreme Court upheld Georgia’s
new death penalty statute, finding that the enumerated aggravating circumstances were
not so vague or so broad as to provide inadequate guidance to juries charged with the
duty of recommending or imposing sentences in capital cases.
The basic concern of Furman centered on those defendants who
were being condemned to death capriciously and arbitrarily. Under the
procedures before the Court in that case, sentencing authorities were not
directed to give attention to the nature or circumstances of the crime
committed or to the character or record of the defendant. Left unguided,
juries imposed the death sentence in a way that could only be called
freakish. The new Georgia sentencing procedures, by contrast, focus the
jury’s attention on the oarticularized nature of the crime and the
particularized characteristics of the individual defendant. While the jury is
permitted to consider any aggravating or mitigating circumstances, it must
find and identifv at least one statutorv aaaravatina factor before it mav
imoose a oenaltv of death. In this way the jury’s discretion is channeled.
No longer can a jury wantonly and freakishly impose the death sentence;
it is alwavs circumscribed bv the leaislative auidelines.
Id. at 206-07, 96 S.Ct. at 2940-41 (emphasis added).
On the same day it rendered
Greaq, the Supreme Court also rendered Woodson
v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which held
North Carolina’s mandatory death penalty statute unconstitutional because, inter alia, it
accorded “no significance to relevant facets of the character and record of the individual
offender or the circumstances of the particular offense.” Id. at 304, 96 S.Ct. at 2991.
Of course, Woodson
also effectively invalidated the 1974 version of KRS 507.020(2).
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In response to Gregg and Woodson,
the Kentucky General Assembly was called
into special session in December 1976 and again amended KRS 507.020(2),” this time
to provide merely that “[mlurder is a capital offense,” and enacted KRS 532.025, which
adopted the Georgia/Model Penal Code approach of (1) enumerating specific
aggravating and mitigating circumstances to guide the jury in its penalty decision and
(2) requiring a finding beyond a reasonable doubt of the existence of at least one
statutory aggravating circumstance before capital punishment can be imposed. As
noted supra, the aggravating circumstance specified in KRS 532.025(2)(a)4 is that
“[t]he offender committed the offense of murder for himself or another, for the purpose
of receiving money or any other thing of monetary value, or for other profit.” Thus, the
General Assembly adopted verbatim subsection (b)(4) of the Georgia statute12 but
added the additional clause “or for other profit,” which it retained from the “for profit or
hire” language of the 1974 version of KRS 507.020(2). Significantly, the General
Assembly did not retain the “for . . . hire” language of the 1974 statute and did not
adopt the “directed another” aggravator found in subsection (b)(6) of the Georgia
statute.
At present, the laws of thirty-eight states permit imposition of the death penalty
upon conviction of murder.13
All thirty-eight require a finding of at least one statutory
aggravating circumstance as a prerequisite to imposition of the death penalty
” 1976 Ky. Acts (ex. sess.), ch. 15, §§ 1, 2.
l2 The Georgia statute served as the model for KRS 532.025. Palmore and
Lawson, Kentuckv Instructions to Juries (Criminal), § 2.08 (Comment) (3d ed. Anderson
1975, 1979 supp.).
l3 Thosethat do not permit imposition of the death penalty are Alaska, Hawaii,
Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island,
Vermont, West Virginia and Wisconsin.
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Montana14 and Virginia15 are the only death penalty states that do not include a “for
pecuniary gain” aggravator in their statutory schemes. Thirteen states have adopted
provisions identical or virtually identical to Section 210.6(3)(g) of the Model Penal Code,
i.e., that the offense, as opposed to the offender, was motivated by pecuniary gain.16
Eighteen states, including three of those with provisions identical or virtually identical to
Model Penal Code $j 210.6(3)(g), have statutes specifically providing that hiring or
otherwise procuring another to commit murder is an aggravating circumstance.‘7
Colorado’s statute not only has the Model Penal Code aggravator, but also has an
aggravating circumstance that the defendant was a party to an agreement to kill
another.18
California has both the Model Code aggravator and a separate provision
authorizing the death penalty if the defendant was an accomplice with another to whom
an aggravating circumstance applies and if the defendant intended that the victim would
l4 Mont. Code Ann. 5 46-18-303.
l5 Va. Code Ann. § 19.2-264.2.
l6 Ala. Code § 13A-5-49(6); Ark. Code Ann. 5 54-604(6); Colo. Rev. Stat. Ann.
§ 16-I 1-103(5)(h); Del. Code Ann. tit. 11, § 4209(e)(l)o; Fla. Stat. Ann. § 921.141(5)(f);
Idaho Code § 19-2515(h)(4); Miss. Code Ann. § 99-l 9-l 01(5)(f); Neb. Rev. Stat. § 292523(l)(c); Nev. Rev. Stat. § 200.033-6; N.H. Rev. Stat. Ann. § 630:5 VII(i); N.C. Gen.
Stat. 5 15A-2000(e)(6); Utah Code Ann. $j 76-5-202(1)(f); Wyo. Stat. Ann. 5 6-2102(h)(vi).
” Ariz. Rev. Stat. § 13-703F-4; Conn. Gen. Stat. 5 53a46a(i)(5); Idaho Code §
19-2515(h)(4); 720 III. Comp. Stat. $j 5/9-1(b)(5); Ind. Code § 35-50-2-9(b)(5); Kan. Stat.
Ann. § 214625(4); La. Code Crim. Proc. Ann. art. 905.4A(5); Md. Ann. Code art. 27, §
413(d)(7); Neb. Rev. Stat. § 29-2523(1)(c); N.J. Stat. Ann. $j 2C:ll-3-c(4)(e); N.Y.
Penal Law $j 125.27-l(a)(vi); Okla. Stat. tit. 21, § 701.12-3; Or. Rev. Stat. 5
163.095(1)(b); 42 Pa. Cons. Stat. Ann. § 971 l(d)(2); Tenn. Code Ann. § 39-13204(i)(4); Tex. Penal Code Ann. § 19.03(a)(3); Utah Code Ann. § 76-5-202(1)(g); Wash.
Rev. Code Ann: $j 10.95.020(5).
l8 Colo. Rev. Stat. Ann. $j 16-I 1-103(5)(e).
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be killed.lg New Mexico*’ and Ohio*’ have an aggravating circumstance that the
offense “was committed for hire.” In addition to Georgia, three other states have
provisions with language similar to KRS 532.025(2)(a)4, i.e., that the offender’s motive
was pecuniary gain, but each, like Georgia, has also adopted the additional aggravating
circumstance that “[t]he offender caused or directed another to commit murder . . _ .‘I**
Kentucky has the only statutory scheme with a “pecuniary gain” aggravator containing
neither the Model Penal Code language applying the aggravator to the offense, as
opposed to the offender, nor an aggravating circumstance specifically applicable to one
who hires or otherwise procures another to commit murder.
The death penalty cannot be imposed simply because we or the jury believe the
actions or motives of a particular defendant are deserving of capital punishment. That
is the kind of discretionary, ad hoc application of the death penalty specifically
condemned in Furman v. Georqia, In Greqa v. Georaia, supra, the United States
supra.
Supreme Court upheld Georgia’s new death penalty statute only because it contained
leaislative guidelines circumscribing the imposition of the death penalty. 428 U.S. at
206-07, 96 SCt. at 294041. It is equally clear that individualized consideration is a
Constitutional prerequisite for imposition of capital punishment. Id.; see also Lockett v.
” Cal. Penal Code § 190.2(a)(l) and (c). The requirement that an accomplice
must have intended that the victim be killed in order to be subjected to the death
penalty was mandated by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d
1140 (1982); but see Tison v. Arizona, 481 U.S. 137, 107 SCt. 1676, 95 L.Ed.2d 127
(1987) (non-triggerman accomplice can be sentenced to death under facts constituting
felony murder).
*’ N.M. Stat. Ann. § 31-20A-5F.
*’ Ohio Rev. Code Ann. § 2929.04(2).
Z MO. Rev. Stat. § 565.032-2(4) and (6); SC. Code Ann. § 16-3-20(C)(a)(4) and
(6); S.D. Codified Laws § 23A-27A-l(3) and (5).
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Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); Woodson
v.
North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2991. As observed by the Supreme
Court of Missouri:
To state the obvious, the death penalty differs from all other forms
of criminal sanction. The death penalty reflects a societal judgment that a
person’s acts render them [sic] no longer fit to be among us. Such a
judgment is of such a magnitude and so final that jury deliberations over
the subject must be carefully channelled to consider only the legal
justifications for the punishment and not the more broad, often emotional
response to the crime in general. Thus, jury instructions setting out
statutory aggravating circumstances -- those circumstances that, if found,
justify the death sentence - must be unquestionably focused on the
convicted murderer’s own character, record and individual mindset as
betrayed by her own conduct. Although it is permissible to find a person
guilty of murder for acts done in concert with another, it is never
permissible to sentence a person to death for acts of another.
State v. Isa, 850 S.W.2d 876, 902-03 (MO. 1993).
In other words, the death penalty cannot be vicariously imposed. Absent a
statutory aggravating circumstance specifically applicable to the defendant or the
defendant’s own conduct, he/she cannot be subjected to the death penalty. Unlike the
legislatures of thirty-five of the other thirty-seven states that have death penalty
statutes, our legislature has chosen not to include in KRS 532.025(2) an aggravating
circumstance applicable to one who hired, procured or directed another to commit
murder. Nor has our legislature, unlike the California legislature, enacted a provision
authorizing imposition of the death penalty upon one who is an accomplice of another
to whom an aggravating circumstance applies. The specification of aggravating
circumstances is the legislature’s prerogative, not ours. By its unambiguous
language,23
KRS 532.025(2)(a)4 applies only to a defendant who commits the offense
23 Even if the language were ambiguous, the “rule of lenity” would require us to
give it the more lenient interpretation. Commonwealth v. Lunderoan, Ky., 847 S.W.2d
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of murder “for the purpose of receiving money or any other thing of monetary value, or
for other profit.” While the statute clearly applies to Thomas, the hired killer in this
case, it does not apply to Young whose motive in procuring the murder of Shalash was
revenge, not monetary gain.
We find the cases cited in the dissenting opinion, ante, to be inapposite. Skinner
v. Commonwealth, Ky., 864 S.W.2d 290 (1993) Commonwealth v. Yeaaer, Ky., 599
S.W.2d 458 (1980), and Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977), all were
cases in which an accomplice was found guilty by complicity of an offense that was
enhanced to a higher degree because it was committed while the principal actor was
armed with a deadly weapon or because the principal actor inflicted physical injury on
the victim. Those cases simply hold that under KRS 502.020(l), the accomplice is
guilty of the same offense as the principal. In fact, KRS 502.020(l) provides: “A
person is guilty of an offense committed by another person when . . . .” (Emphasis
added.) However, those cases do not hold that the accomplice must be punished the
same as the principal. For example, a principal might be ineligible for probation, shock
probation, or conditional discharge because he/she was on probation or parole at the
time of the offense. KRS 533.060(2). That does not mean that an accomplice who was
not on probation or parole at the time of the offense would also be ineligible for
probation, shock probation or conditional discharge. More specifically, the fact that a
principal might be subject to capital punishment because he/she has a prior record of
conviction for a capital offense, KRS 532.025(2)(a)l, does not mean that an
accomplice without such a prior record would also be subject to capital punishment. Of
729, 731 (1993); Ronev v. Commonwealth, Ky., 695 S.W.2d 863, 864 (1985).
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course, a different result would obtain if the aggravating circumstance, itself, was a
separate offense, &g., robbery in the first degree, KRS 532.025(2)(a)2, and the
accomplice was also guilty by complicity of the aggravating offense.
In Tison v. Arizona, suora, note 19, the issue was not, as here, whether an
aggravating factor applicable only to the principal could be vicariously applied to an
accomplice. In fact, there were three aggravating factors specifically applicable to the
accomplice’s conduct in Tison. 481 U.S. at 142, 107 S.Ct. at 1680. The only issue was
whether Enmund v. Florida, supra, note 19, precluded imposition of the death penalty
because the non-triggerman accomplice to a fatal robbery did not intend that the
robbery victims be killed. Tison held that Enmund does not preclude capital
punishment in a situation where the non-triggerman accomplice was a major participant
in the robbery, he knew that lethal force would be employed to accomplish the robbery,
and his participation with such knowledge amounted to reckless indifference to human
life. 481 U.S. at 158, 107 S.Ct. at 1688. As here, the accomplice’s eligibility for capital
punishment depended not on the mens rea of the triggerman, but on his own mens rea
and the nature of his own conduct.
Having determined that Young was improperly sentenced to death, we need not
address the other issues on appeal that apply only to death penalty cases. Nor are we
bound by the mandate of KRS 532.075(2) to consider other issues that were not
properly preserved for appellate review.
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II. JURY ISSUES.
A. Peremptorv strikes.
Since this was a joint trial of three defendants and alternate jurors were being
seated, Appellants were entitled to a total of fifteen peremptory strikes. RCr 9.40;
Sbrinaer v. Commonwealth, KY., 998 S.W.2d 439, 443-45 (1999). Instead, they were
allotted a total of only twelve peremptories. As in Gabow v. Commonwealth, Ky., 34
S.W.3d 63, 74-75 (2000) Appellants did not object to the trial judge’s erroneous
interpretation of RCr 9.40 but argued only that the trial judge had the discretion to grant
more peremptory strikes to defendants in a death penalty case than are required by the
rule. Thus, as in Gabow, this issue was not preserved for appellate review. Kentucky
Farm Bureau Mut. Ins. Co. v. Cook, KY., 590 S.W.2d 875, 877 (1979).
B. Failure to strike for cause.
Appellants Young and Thomas assert error in the trial court’s refusal to strike
eight jurors for cause, all of whom were subsequently excused by peremptory strikes.
Juror No. 932 was a scout pilot for the National Guard. He advised during
general voir dire that he had helped the Kentucky State Police search for marijuana as
part of the marijuana eradication task force; that drug suspects had shot at him and
even wounded him on one occasion; that he had testified as a witness in a prosecution
for drug trafficking; and that his position on drugs was “zero tolerance.” He also
advised that one of his employees was married to a police officer. Of course, although
there would be evidence that both Young and Shalash were drug dealers, Appellants
were charged with murder, not with trafficking in controlled substances. Juror No. 932
stated that his b,ackground would not affect his ability to sit as an impartial juror on this
case. He also advised during individual voir dire that he could consider the full range of
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penalties and would consider mitigating factors before deciding on penalties in the
event Appellants were convicted. Even if Juror No. 932 had, himself, been a police
officer, such would not have required that he be excused for cause. Sanders v.
Commonwealth, Ky., 801 S.W.2d 665, 670 (1990), cert. denied, 502 U.S. 831 (1991).
There was no error in failing to excuse him for cause.
Juror Nos. 891 and 904 expressed reservations about mitigating circumstances,
but both indicated they would follow the court’s instructions in that regard and would
consider the full range of penalties. Juror Nos. 847. 848, 874, and 876 all held strong
views in favor of the death penalty. However, each advised that he/she would consider
the full range of penalties. There was no error in failing to excuse any of these jurors
for cause. Bowlina v. Commonwealth, Ky., 873 S.W.2d 175, 177 (1993) cert. denied,
513 U.S. 862 (1994) (juror not disqualified because he/she favors severe penalties, so
long as the juror will consider the full range of penalties); cf. Williams v.
Commonwealth, Ky. App., 829 S.W.2d 942, 943 (1992) (juror can rehabilitate himself
by clarifying his views).
Juror No. 808 also held strong views in favor of the death penalty, but stated he
would consider the full range of penalties. In response to a question from defense
counsel, No. 808 stated that if he thought the death penalty appropriate, he did not
know if he would consider a lesser penalty. Of course, if he had already considered the
full range of penalties and decided that death was the most appropriate penalty, it
stands to reason that he would not then consider a penalty that he had already decided
was inappropriate. No error occurred in failing to excuse this juror for cause. Bowling
v. Commonwealth, supra, at 177.
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C. Excusals for cause.
Appellants assert error in the trial judge’s decision to excuse two jurors for cause
because they advised that they could not consider the death penalty in this case. Juror
No. 794 was asked if she could consider the full range of penalties and responded that
she could not consider the death penalty. When asked a second time, she responded
that she would have a “hard time.” When asked a third time, she responded that she
did not think she could consider the death penalty. Juror No. 831 advised that she
could consider the death penalty only in a case of multiple murders. A juror is
disqualified to sit on a case in which the death penalty is an available punishment if that
juror states that he/she could not impose the death penalty. Davis v. Commonwealth,
Ky., 795 S.W.Zd 942 (1990); Moore v. Commonwealth, Ky., 771 S.W.2d 34 (1988),
cert. denied, 494 U.S. 1060 (1990); Simmons v. Commonwealth, Ky., 746 S.W.2d 393
(1988), cert. denied, 489 U.S. 1059 (1990); Stanford v. Commonwealth, Ky., 734
S.W.2d 781 (1987), a 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). The
trial judge did not abuse her discretion in excusing these two jurors for cause.
D. Alleaed sleeoina juror.
Appellants claim a juror slept during portions of the guilt phase closing
arguments and fell asleep again during Young’s penalty phase argument. At the
conclusion of the penalty phase arguments, Appellants moved for a mistrial on grounds
that the juror had not heard all of the evidence, thus could not render an independent
decision. The trial judge had previously inquired about the fact that the juror often had
her eyes closed and the juror had explained that she suffered from sickle cell anemia,
which caused her to close her eyes. In response to the motion for a mistrial, the juror
was called to the bench where she insisted that she had heard everything that had
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occurred during the trial. There was no error in overruling the motion for mistrial.
Shrout v. Commonwealth, 226 Ky. 660, 11 S.W.2d 726, 727 (1928).
III. SUFFICIENCY OF THE EVIDENCE.
Appellants claim they should have received directed verdicts of acquittal
because the primary witnesses for the Commonwealth were incredible as a matter of
law. The Commonwealth’s key witnesses were Young’s girlfriend, Johnetta Girard, and
a jailhouse informant, Danny Craddock. Girard testified that she was present during the
$25,000.00 cocaine transaction between Young and Shalash; that Young told her that
Shalash had robbed Leslie Mulligan of the remaining $25,000.00; that he was going to
have Shalash killed for it; that she (Girard) met Thomas at the airport, drove him to a
motel, and paid for his motel room with money given to her by Young; that on the day of
the murder, she drove Young to the Lexington Mall parking lot in Young’s Mitsubishi
automobile; that Morbley and Thomas followed in a maroon Cadillac driven by Morbley;
and that as she, Young, Shalash and Shalash’s girlfriend, Kim Pruitt, were preparing to
enter Perkins’ Restaurant, Thomas ran up behind them and shot and killed Shalash.
Craddock testified that he was incarcerated with Young at the Scott County Detention
Center from August 11 - September 2, 1997 and that Young told him that he paid
$25,000.00 to have Shalash killed because Shalash had robbed Leslie Mulligan.
Appellants point out that the evidence offered by Girard and Craddock was
contradicted in some respects by other witnesses. Specifically, Mulligan testified that
there was no drug deal and that she was not robbed. Appellants also claim that neither
Girard nor Craddock are worthy of belief because they were given “deals” in exchange
for their testimony. However, the credibility of witnesses and the weight to be given to
-2o-
sworn testimony are for the jury to decide. Commonwealth v. Smith, KY., 5 S.W.3d
126, 129 (1999); Ester, v Commonwealth, Ky., 957 S.W.2d 191, 193 (1997). The
Commonwealth adduced sufficient evidence for reasonable jurors to conclude beyond a
reasonable doubt that Appellants were guilty; thus, the trial judge properly overruled
their motions for directed verdicts of acquittal. Commonwealth v. Benham, Ky., 816
S.W.2d 186 (1991).
Additionally, Appellant Morbley claims there was insufficient evidence to convict
him of criminal facilitation of murder. KRS 506.080(l) provides:
A person is guilty of criminal facilitation when, acting with
knowledge that another person is committing or intends to commit a
crime, he engages in conduct which knowingly provides such person with
the means or opportunity for the commission of the crime and which in
fact aids such person to commit the crime.
Morbley asserts there was no evidence that he had prior knowledge that Thomas
intended to kill Shalash. As explained in Chumbler v. Commonwealth, Ky., 905 S.W.2d
488 (1995) to convict of complicity, the jury must find the defendant intended that the
murder occur, but to convict of facilitation, the jury need find only that the defendant
knew the principal actor was going to commit a crime. Either way, intent (necessary to
convict of complicity) or knowledge (necessary to convict of facilitation) can be inferred
from the defendants conduct. Id. at 499.
IV. ADMISSIBILITY OF EVIDENCE.
A. Hearsav: KRE 802.
Officer Lee Shimizu arrived at Perkins’ Restaurant approximately seven minutes
after the shooting and interviewed Joyce Combs, a waitress at the restaurant who
claimed to have witnessed the shooting. Combs told Shimizu that the killer was a black
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male, about 5’6”, medium complexion, wearing a dark shirt and a white baseball cap,
and that he left the scene in a 1980’s model maroon Cadillac with a white top. Shimizu
broadcast this description over the police radio. Later, at the police station, Combs
described the killer as weighing approximately 150 pounds, eighteen or nineteen years
old, and wearing a red baseball cap. She was unable to identify Thomas from a photo
line-up. Thomas is a 6’1” black male, dark complexion, weighing 180 pounds and
thirty-one years old at the time of the murder. Other witnesses who saw Thomas run
from Perkins’ Restaurant to the maroon Cadillac described him as “thin,” “small in
build,” “medium to strong build,” and “in his early twenties, mid-twenties, not real tall,
probably five foot six inches to five foot eight inches.”
By trial, Joyce Combs had disappeared. Appellants sought to introduce her
description of the murderer through the testimony of Officer Shimizu. The trial judge
sustained the Commonwealth’s objection to this hearsay evidence. Appellants assert
that Shimizu’s repetition of Combs’s description of the killer was admissible as either a
present sense impression, KRE 803(l), or an excited utterance, KRE 803(2).
Combs’s statement to Shimizu was not a present sense impression because the
statement was not made contemporaneously with the event she was describing or
immediately thereafter. Fields v. Commonwealth, KY., 12 S.W.3d
275, 279-80 (2000)
(audio description of crime scene investigation recorded by investigating officer shortly
after completion of the investigation was not a present sense impression because the
narration described events which had already occurred); Slaven v. Commonwealth, Ky.,
962 S.W.2d 845, 854-55 (1997) (declarant’s statement that the defendant was “not at
home” was a present sense impression, but her statement that the defendant had come
home and subsequently departed was not within the exception because it described
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events which had already occurred); Jarvis v. Commonwealth, Ky., 960 S.W.2d 466,
469-70 (1998) (child’s statement that she saw the defendant kill her mother was not
within the exception because there was no evidence that the statement was made as
the killing occurred or immediately thereafter).
Nor was Combs’s description of the killer admissible as an excited utterance. In
Jarvis v. Commonwealth, suora, we repeated the factors to be weighed in determining
whether an out-of-court statement is admissible under KRE 803(2):
(i) lapse of time between the main act and the declaration, (ii) the
opportunity or likelihood of fabrication, (iii) the inducement to fabrication,
(iv) the actual excitement of the declarant, (v) the place of the declaration,
(vi) the presence there of visible results of the act or occurrence to which
the utterance relates, (vii) whether the utterance was made in response to
a question, and (viii) whether the declaration was against interest or selfserving.
Id. at 470 (quoting Souder v. Commonwealth, Ky., 719 S.W.2d 730, 733 (1986) in turn
quoting R. Lawson, The Kentuckv Evidence Law Handbook § 8.60B (2d ed. Michie
1984)). We clarified in Smith v. Commonwealth, Ky., 788 S.W.2d 266, 268 (1990), cert.
denied, 498 U.S. 852 (1990) that the above criteria do not pose a true-false test for
admissibility, but rather act only as guidelines to be considered in determining
admissibility. Whether a particular statement qualifies as an excited utterance depends
on the circumstances of each case and is often an arguable point; and “when this is so
the trial court’s decision to admit or exclude the evidence is entitled to deference.”
Souder, supra, at 733. That is but another way of saying that when the determination
depends upon the resolution of a preliminary question of fact, the resolution is
determined by the trial judge under KRE 104(a) on the basis of a preponderance of the
evidence, Bouriailv v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778-79, 97
L.Ed.2d 144 (1987); and the resolution will not be overturned unless clearly erroneous,
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i.e., unless unsupported by substantial evidence. Cf. Commonwealth v. Delonev, Ky.,
20 S.W.3d 471, 473-74 (2000) (trial judge’s findings of fact are not clearly erroneous if
supported by substantial evidence).
Officer Shimizu testified that he chose to interview Combs because she was “not
as stressed” as the other witnesses at the scene. Combs’s description of the killer was
not spontaneous but was in response to a direct inquiry by Shimizu. Thus, there was
substantial evidence to support the trial judge’s finding that Combs’s statement was not
an excited utterance.
Nor were Combs’s description of the killer and her failure to identify Thomas
during the photo line-up admissible under KRE 8OlA(a)(3) as statements “of
identification of a person made after perceiving the person.“ That rule applies only if
the declarant testifies at trial and a foundation is laid in accordance with KRE 613. KRE
801A(a). See also Summitt v. Commonwealth, Ky., 550 S.W.2d 548 (1977) (repetition
of an eyewitness’s description of the physical characteristics of the perpetrator is not
admissible unless the eyewitness testifies, and then only in rebuttal of attempts to
discredit her subsequent identification). Nor were they admissible as “verbal acts.”
See White v. Commonwealth, Ky., 5 S.W.3d 140 (1999).
The evidence sought to be elicited from Shimizu is identical to that usually
objected to by defendants as “investigative hearsay.” Slaven v. Commonwealth, subra,
at 859; Sanborn v. Commonwealth, KY., 754 S.W.2d
534, 541 (1988). “Investigative
hearsay” is equally inadmissible against the Commonwealth as against a defendant.
Fields v. Commonwealth, supra, at 284. A police officer
may testify about information
furnished to him, by an absent witness only if that information tends to explain the action
that was taken by the police officer as a result of the information and the taking of that
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action is an issue in the case. Daniel v. Commonwealth, Ky., 905 S.W.2d 76, 79
(1995); Sanborn v. Commonwealth, supra, , t541. o u t - o f - c o u r t s t a t e m e n t i s
I f s o at h e
not hearsay, because it is not offered to prove the truth of the matter asserted but to
explain why the officer acted as he did. The fact that Shimizu caused a description of
the killer to be broadcast over police radio was not at issue in the case. The only
purpose for introducing the details of that description would be to prove that Combs’s
description did not fit Thomas; thus, it would have been offered to prove the truth of
Combs’s description and, thus, that Thomas was not the killer.
B. Other crimes, wronas. or acts: KRE 404(b).
Appellants assert it was error to permit the Commonwealth to introduce evidence
that Young was a drug dealer. Specifically, the Commonwealth proved that within a
month before the murder, Young and Shalash traveled to Texas together to purchase a
large amount of cocaine; that on another occasion, Young met Shalash at the
Lexington Mall parking lot and transferred $28,000.00 to Shalash, inferentially as
payment for controlled substances; that Young “shorted” Shalash on another drug
transaction; and that Shalash robbed Leslie Mulligan of the $25000.00 that remained
from the intended $50,000.00 cocaine transaction with Shalash. The evidence of the
robbery was admissible to prove Young had a motive to kill Shalash, Brown v.
Commonwealth, Ky., 983 S.W.2d 513, 516 (1999); and the evidence of the prior
dealings between Young and Shalash was admissible to prove that Shalash knew
Mulligan had Young’s $25,000.00 and had a motive to take it, which supported the
Commonwealth’s theory that Shalash did, in fact, rob Mulligan (who denied being
robbed) and that Young killed Shalash in revenge. This evidence falls within the “other
purpose” provision of KRE 404(b)(l). Cf. Tamme v. Commonwealth, Ky., 973 S.W.2d
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73, 29 (1998), cert. denied, 525 U.S. 7 153 (1999) (the specifically listed purposes in the
rule are illustrative rather than exhaustive).
C. Character of accused: KRE 404(a)(l).
Appellants assert it was error to permit prosecution witnesses Girard and
Craddock to testify to their fear of Young and/or Thomas, presumably on grounds that
such was improper evidence of bad character. KRE 404(a); Eldred v. Commonwealth,
Ky., 906 S.W.2d 694, 704 (1994), cert. denied, 516 U.S. 1164 (1996).
Girard testified that she did not tell the truth during her police interrogation
because she was afraid of Young and Thomas. There was no objection to this
testimony, thus it was not preserved for appellate review. KRE 103(a)(l); RCr 9.22.
On another occasion, Girard testified in response to a question by the prosecutor that
she preferred not to look at Young and the other defendants. The only objection was
that her answer was elicited by a leading question. Error is not preserved if the wrong
reason is stated for the objection. Tamme v. Commonwealth, supra, at 33. Nor do
either of these statements by Girard amount to palpable error under KRE 103(e) and
RCr 10.26. Craddock expressed no fear of Young, but merely remarked that he
(Craddock) would be a “dead man walking” when he returned to prison, presumably
because of the disdain other prisoners have for jailhouse informants.
D. Imoeachment: KRE 608.
After the murder, Johnetta Girard was interrogated for six hours by the police
and the interrogation was recorded on a number of audiotapes. At trial, Girard testified
that Young had beaten her. When asked by Thomas’s counsel if she had made the
same accusation during her police interrogation, Girard responded that she could not
recall. Thomas’s attorney then proposed to play the entire six hours of audiotapes to
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prove that Girard had not told the police that Young had beaten her. The trial judge
ruled that counsel for Thomas could play any portions of the tapes which contained
prior inconsistent statements but that she could not play the tapes in their entirety.
Appellants do not suggest that Girard denied during her recorded interrogation
that Young had beaten her; thus, if, as Thomas posits, she was silent in that regard,
there was no prior inconsistent statement and the tapes would only have revealed the
absence of a prior consistent statement. KRE 608, in its present truncated version,24
provides only that the credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation. Civil Rule 43.07 provides that a witness may be
impeached “by contradictory evidence, by showing that he had made statements
different from his present testimony, or by evidence that his general reputation for
untruthfulness renders him unworthy of belief.” Neither rule permits impeachment by
the absence of a prior consistent statement. We have held that when a witness at trial
professes not to remember making a prior assertion, he/she can be impeached by
introducing a prior statement of the witness wherein the assertion was made. Manning
v. Commonwealth, Ky., 23 S.W.3d 610, 613 (2000); see also Wtse v. Commonwealth,
Ky. App., 600 S.W.2d 470, 472 (1978). The prior assertion is then treated as
substantive evidence under Kentucky law. KRE 801A(s)(l);
Jett v. Commonwealth,
Ky., 436 S.W.2d 788 (1969). We are cited to no authority that permits a witness, who
professes not to remember making a prior assertion, to be impeached by introducing a
prior statement of the witness wherein the assertion was not made.
24 See Tamme v. Commonwealth, supra, at 29 for the legislative history of KRE
608.
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E. “Rule of completeness:” KRE 106.
Thomas’s counsel also asserted at trial that if Thomas played any portion of the
audiotapes for purpose of impeachment, KRE 106 would permit Young to play the
remainder of the tapes in their entirety. On appeal, Young (who did not request
permission to play the tapes at trial) argues that it was necessary to play the entire six
hours to show how Girard’s statement “evolved” during the interrogation. Since Young
did not request that the remainder of the audiotapes be played, the argument is not
preserved for appellate review. Regardless, KRE 106 only applies to “an adverse
party,” and Young and Thomas were not adverse parties. Furthermore, the rule does
not require introduction of the entire writing or recorded statement, but only so much
thereof “which ought in fairness to be considered contemporaneously with it,” i.e., that
portion which concerns the specific matter introduced by the adverse party. White v.
Commonwealth, 292 Ky. 416, 166 S.W.2d 873, 877 (1942). The issue is whether “the
meaning of the included portion is altered by the excluded portion.” Commonwealth v.
Collins, Ky., 933 S.W.2d 811, 814 (1996). The objective of KRE 106 “is to prevent a
misleading impression as a result of an incomplete reproduction of a statement.” Id.
(quoting R. Lawson, The Kentucky Evidence Law Handbook § 1.20, at 48 (3d ed.
Michie 1993)). See Gabow v. Commonwealth, supra, at 68 n-2. Thus, Young would
not have been permitted to play the audiotapes in their entirety even if he had so
requested.
F. Relevancv of demonstrative evidence: KRE 401. KRE 403.
After being shot, Shalash crawled through the entrance of Perkins’ Restaurant
where he died. The death scene was captured by a video surveillance camera, and the
videotape was played for the jury at trial. We have previously held that a videotape of a
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crime scene, including the position of the victim’s body and the location and nature of
the victim’s injuries, is just as admissible as a photograph, assuming a proper
foundation is laid. Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993); Milburn v.
Commonwealth, Ky., 788 S.W.2d
253 (1989). This is true, even though the scene
depicted may be gruesome. Mills v. Commonwealth, Ky., 996 S.W.2d 473, 489 (1999),
cert. denied, 528 U.S. 1164 (2000). Obviously, the actual death of a murder victim is
rarely captured on videotape. However, such evidence is undoubtedly probative of the
issue of corpus delicti. We discern no error in the introduction of the videotape. Nor
did the trial court err in permitting the Commonwealth to introduce three autopsy
photographs of Shalash’s body for the purpose of showing the location of the fatal
wounds. Davis v. Commonwealth, Ky., 967 S.W.2d
574, 579 (1998); Parker v.
Commonwealth, Ky., 952 S.W.2d 209, 213 (1997), cert. denied, 522 U.S. 1122 (1998).
G. Lay opinion: KRE 701.
Morbley asserts the trial judge erred in not permitting him to introduce two
statements made by Johnetta Girard during her police interrogation: (1) that she did
not think Morbley knew what was going on; and (2) that the reason she did not think
Morbley knew of the plan to kill Shalash was because Young later told her that when
Thomas got back in the car Morbley was crying, scared, and said, “What’s going on?
What’s going on?”
The second statement contained two layers of hearsay, i.e., Girard testifying to
what Young told her that Thomas told him, neither of which falls within an exception to
the hearsay rule. Thus, the second statement was clearly inadmissible. KRE 805.
Girard did not state what evidence caused her to formulate the opinion expressed in the
first statement, thus, it is impossible to determine if the opinion was rationally based
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upon her own perceptions as required by KRE 701(a). Generally, a witness may not
testify to the mental impressions of another. Tamme v. Commonwealth, suora, at 3334; Adcock v. Commonwealth, KY., 702 S.W.2d
440,442 (1986). An exception occurs
if the opinion is based on the witness’s own factual observations or perceptions.
Tamme v. Commonwealth, supra, at 35. We have held that the “collective facts rule”
applies to this type of opinion if the witness is expressing an opinion about another’s
mental conditions and emotions “as manifested to that witness.” Commonwealth v.
Sego, Ky., 872 S.W.2d 441,444 (1994). That is but another way of saying that the
witness’s opinion must be based on the witness’s own observations. Girard did not
purport to base her opinion on her own observations or perceptions of Morbley’s actions
and reactions. The only articulated basis for her opinion was the hearsay information
furnished to her by Young. While an expert’s opinion may be based on facts or data
otherwise inadmissible as evidence, m, hearsay, KRE 703(a), a lay witness’s opinion
must be based on his/her own personal knowledge or perceptions. KRE 701 (a); KRE
602; Mills v. Commonwealth, supra, at 488.
V. INSTRUCTIONS.
Young asserts the jury was improperly instructed that it could find him guilty if he
acted in complicity with “a person” who intentionally killed Shalash instead of requiring
the jury to find that he acted in complicity specifically with Thomas. Although Girard
testified that Young hired Thomas to kill Shalash, Craddock did not identify the hired
killer by name. Thus, the instruction permitted the jury to find Young guilty even if it
disregarded Girard’s testimony but believed Craddock’s testimony. KRS 502.020
predicates guilt upon acting in complicity with “another person.” The instruction
-3o-
conformed to the language of the statute, thus, was not erroneous. Commonwealth v.
Hiahtower, 149 Ky. 563, 149 S.W. 971, 972 (1912); cf. McGuire v. Commonwealth, Ky.,
885 S.W.2d 931, 936 (1994). Nor did the trial judge err in refusing to define
“reasonable doubt,” RCr 9.56, Commonwealth v. Callahan, Ky., 675 S.W.2d 391
(1984) or to give a more detailed instruction on the Commonwealth’s burden of proof.
Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct.1239, 1243, 127 L.Ed.2d 583 (1994); Gall v.
Commonwealth, Ky., 607 S.W.2d 97, 1 IO (1980) cert. denied, 450 U.S. 989 (1981),
overruled on other arounds, Pavne v. Commonwealth, Ky., 625 S.W.2d 867 (1981).
There was also no error in the trial judge’s failure, sua sponte, to include a “no
adverse inference” instruction in the penalty phase instructions. That instruction is
required only when requested and no request was made in this case. RCr 9.54(3);
Skaaas v. Commonwealth, Ky., 694 S.W.2d 672, 680 (1985), cert. denied, 476 US.
1130 (1986); Ice v. Commonwealth, Ky., 667 S.W.2d 671, 677 (1984), cert. denied, 469
U.S. 860 (1984). Furthermore, the failure to instruct the jury to draw no adverse
“inference of guilt” from the defendant’s failure to testify, as required by RCr 9.54(3),
would be pointless where, as here, the jury had already found the defendant guilty and
was only deliberating the appropriate penalty. Comoare Hibbard v. Commonwealth,
Ky., 661 S.W.2d 473 (1983), cert. denied, 466 U.S. 907 (1984).
VI. ALLEGED DENIAL OF DEFENSE.
Young asserts he was improperly denied the right to introduce evidence
identifying other persons who might have killed Shalash. He claims Kim Pruitt would
have testified that the “Wrngate brothers” were accused of killing Anthony “Short Man”
Taylor, an associate of the victim; that one of the Wrngates matched Joyce Combs’s
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I
description of the killer; and that the brothers were known to possess a red Cadillac.
Young also asserts that Leslie Leek, another of Shalash’s associates, would have
testified that when the victim’s father, Mohammed Shalash, was told of the murder, he
responded “something to the effect of ‘well, good.“’ Neither of these issues were
preserved by avowal, thus neither is preserved for appellate review. KRE 103 (a)(2);
Commonwealth v. Ferrell, Ky., 17 S.W.3d
520, 523 (2000). Finally, Young asserts that
he was prevented from asking Kim Pruitt if Shalash had “ratted people out,” implying
that these unnamed others had a motive to kill Shalash. In fact, defense counsel
ultimately did make this inquiry of Pruitt who responded that she had no knowledge of
such facts but that Shalash was always watching his back because he was afraid of
being caught by the police. This claim of error is obviously meritless.
VII. ALLEGED DENIAL OF PRESUMPTION OF INNOCENCE.
There is no reason to assume that Appellants were prejudiced by being escorted
into the courtroom by security personnel. Appellants were not wearing jail clothing or
handcuffs, and the record does not reflect how many security personnel were involved.
The jury could as well have assumed that the security personnel were there to protect
Appellants from Shalash’s family and friends as to protect the public from Appellants.
Holbrook v. Flvnn, 475 U.S. 560, 569, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986);
Hodae v. Commonwealth, Ky., 17 S.W.3d 824, 839-40 (2000), cert. denied, - U.S.
-, 121 S.Ct. 581 (2000). Appellant Young’s complaint that a prospective juror
observed him in handcuffs as he was leaving the elevator on the second day of trial is
not supported by the record. The juror in question stated that he did not see Appellant
leave the elevator but had been asked to leave the hallway before the elevator arrived;
-32-
and that he had not discussed the occurrence with any other potential jurors.
Appellants did not request that this juror be excused for this reason. Equally meritless
is Young’s claim that he was denied the presumption of innocence by the fact that the
prosecutor read the indictment to the jury during opening statement. The trial judge
had previously read the indictment to the jury on the first day of trial and Young does
not articulate why he was prejudiced by a second reading. Furthermore, there was no
objection to the second reading, thus the issue is not preserved for appellate review.
VIII. ALLEGED PROSECUTORIAL MISCONDUCT.
Young asserts prosecutorial misconduct in the following statement made by the
prosecutor during his penalty phase argument:
Now, under Kentucky law right now, we cannot guarantee that those two
defendants will not be right back on the street. We can’t do it. . . . We
can’t guarantee-that they won’t do it again. The public is entitled to be
protected from people like Gerald Young. . . .
This statement did not cross the line between legitimate argument for a severe
penalty and prosecutorial misconduct. Young’s other claims of prosecutorial
misconduct are but unpreserved claims of error. We reiterate that unpreserved claims
of error cannot be resuscitated by labeling them cumulatively as “prosecutorial
misconduct.” Davis v. Commonwealth, Ky., 967 S.W.2d
574, 579 (1998). Finally, we
find no “cumulative error” that would warrant a reversal of Appellants’ convictions.
Accordingly, the sentence of death imposed upon Appellant Young is vacated
and his case is remanded to the Fayette Circuit Court solely for a new penalty phase, at
which the jury shall be instructed that the maximum penalty that can be imposed upon
him is imprisonment for life. In all other respects, the judgments of conviction and
-33-
sentences imposed by the Fayette Circuit Court with respect to all three Appellants are
affirmed.
Lambert, C.J., Graves, Johnstone, Keller and Stumbo, JJ., concur.
Wintersheimer J., concurs in part and dissents in part by separate opinion.
-34-
I
COUNSEL FOR APPELLANT GERALD YOUNG (1998-SC-0584-MR):
Donna L. Boyce
Appellate Branch Manager
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (1998-SC-0584-MR):
A. B. Chandler, Ill
Attorney General
State Capitol
Frankfort, KY 40601
Kent T. Young
William L. Daniel, II
Assistant Attorneys General
Ofice of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort KY 40601-8204
-35-
COUNSEL FOR APPELLANT ERSKIN
F. THOMAS (1998-SC-0607-MR):
Elizabeth Shaw
225 West Irvine Street
P.O. Box 644
Richmond, KY 40475
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (1998-SC-0607-MR):
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Kent T. Young
William L. Daniel, II
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLANT DARRELL C. MORBLEY (1998-SC-0963-TG):
V. Gene Lewter
Fayette County Legal Aid, Inc.
111 Church Street
Lexington, KY 40507
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (1998-SC-0963-TG):
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Dennis W. Shepherd
Kent T. Young
William L. Daniel, II
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
-36-
RENDERED: APRIL 26,200l
TO BE PUBLISHED
1998-SC-0584-MR
APPELLANT
GERALD YOUNG
V.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
97-CR-1069-2
COMMONWEALTH OF KENTUCKY
1998-SC-0607-MR
AND
ERSKIN
V.
APPELLANT
F. THOMAS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
97-CR-1069-I
COMMONWEALTH OF KENTUCKY
APPELLEE
1998-SC-0963-TG
AND
DARRELL C. MORBLEY
V.
APPELLEE
APPELLANT
TRANSFER FROM COURT OF APPEALS
1998-CA-1817
FAYEll-E CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
97-CR-1069-3
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE WINTERSHEIMER
CONCURRING IN PART AND DISSENTING IN PART
I fully concur with the majority opinion in affirming the convictions of Thomas and
Morbley. However, I must respectfully dissent from that part of the opinion which
reverses the conviction as to Young because I believe the instruction as to aggravating
circumstance was correct.
Although the learned majority opinion presents a plausible argument for reversal,
it is not convincing. Skinner v. Commonwealth, Ky., 864 S.W.2d 290 (1993) a burglary
case, notes that an accomplice may be liable for a confederate’s aggravated offense.
Rav v. Commonwealth, Ky., 550 S.W.2d 482 (1977) a robbery case, also supports the
proposition that an accomplice may be liable for the aggravated offense of a
confederate, although having no knowledge of the aggravating circumstance. See also
Commonwealth v. Yeaaer, Ky., 599 S.W.2d 458 (1980) which involves an accomplice
to a robbery.
Tison v. Arizona, 481 U.S. 137,107 SCt. 1676,95 L.Ed.2d 127 (1987), a case
involving a felony murder death penalty for persons who did not kill or intend to kill
victims but who had a major personal involvement in the events so as to show a
reckless indifference to human life was not held to violate the Eighth Amendment. The
case involved the sons of an escaped prisoner who had been convicted of murdering a
prison guard.
Perhaps it is necessary for the legislature to include an aggravating
circumstance in KRS 532.025(2) applicable to one who hired, procured or directed
another to commit murder.
-2-
1998-SC-0584-MR
GERALD YOUNG
V.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
97-CR-1069-2
COMMONWEALTH OF KENTUCKY
ORDER DENYING PETITION FOR REHEARING
The petition for rehearing is denied.
All concur.
ENTERED: August 23, 2001.
APPELLEE
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