CHERYL LYNN GABOW V. COMMONWEALTH OF KENTUCKY AND JAMES CECIL V. COMMONWEALTH OF KENTUCKY
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AMENDED : November 8, 2000
RENDERED: OCTOBER 26,200O
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1998-
CHERYL LYNN GABOW
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
95CR-00751
V.
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
1998-SC-0441
-MR
JAMES CECIL
V.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
95CR-00755
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Cheryl Gabow and her domestic companion, David Brangers, hired James Cecil
and Samuel McMillen to kill Gabow’s husband, Frederick Gabow. On February 17,
1995, McMillen shot and killed Frederick Gabow at Mr. Gabow’s residence in Radcliff.
Kentucky. McMillen, Cecil, Brangers and Cheryl Gabow all confessed to their
respective involvements in the killing and all were indicted for murder. Prior to trial,
Brangers was allowed to plead guilty to criminal facilitation of murder and to accept a
sentence of five years in prison in exchange for his testimony against the others. The
charge against McMillen was severed when a question arose as to his mental
competency to stand trial. James Cecil and Cheryl Gabow were then tried jointly and
both were convicted of murder and sentenced to life in prison without benefit of
probation or parole for twenty-five years. They appeal to this Court as a matter of right.
Ky. Const. § 110(2)(b).
I. FACTS.
David Brangers was the only participant in the conspiracy who testified at trial.
According to Brangers, Cheryl and Frederick Gabow were in the process of a divorce;
and Cheryl believed that if her husband died before the divorce became final on
February 20, 1995, she could collect the proceeds of his $200,000.00 National Guard
life insurance policy. Cheryl Gabow agreed to pay Cecil and McMillen $1 O,OOO.OO of
the life insurance proceeds to kill Frederick Gabow. On the night of February 17, 1995,
local police officers came to the Brangers/Gabow residence and advised that Frederick
Gabow had been shot and was at the hospital. On February 18th, Cecil and McMillen
came to the Brangers/Gabow residence and described how McMillen had shot
Frederick Gabow through a window of his residence, then entered the residence and
shot him again. According to Brangers, Cheryl was upset that her husband was still
alive (he died the next day), because “he was not supposed to suffer.”
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In her confession, Cheryl Gabow admitted hiring Cecil and McMillen to kill her
husband so that she could collect the life insurance proceeds. However, she also
claimed that several days before the murder, she advised both Cecil and McMillen that
she “didn’t want it to happen, that she didn’t want them to do anything,” and that she did
not see Cecil again until the day after the murder. Later in her confession, she claimed
to have had a subsequent conversation only with Cecil, in which she repeated her
renunciation and in which Cecil also renounced any further interest in the plot. Cecil’s
confession does not mention a renunciation either by himself or by Cheryl Gabow. His
version of this conversation was that he told Cheryl that McMillen had gotten drunk and
disappeared with the gun; that Cheryl told him that “it needed to be done” before
Monday because she was going to sign the divorce papers on Monday or Tuesday; and
that he (Cecil) promised her it would be done before Monday. Brangers claimed to
have been present during this conversation. He testified that upon being advised that
McMillen was drunk and had disappeared with the gun, Cheryl remarked that things
were getting “sticky” and “maybe we should back off,” whereupon Cecil responded that
the job would be done even if he (Cecil) had to stab Mr. Gabow to death with a knife.
In their confessions, Cecil and McMillen admitted that they agreed to kill
Frederick Gabow in exchange for payment of $10,000.00;
that Cecil obtained the
murder weapon from a friend of his brother; and that Cecil drove McMillen from
Elizabethtown to the victim’s residence in Radcliff where McMillen shot and killed
Gabow. At trial, the Commonwealth relied primarily on the testimony of Brangers and
the redacted confessions of McMillen, Cecil and Cheryl Gabow.’ McMillen’s confession
’ Although Cecil’s statement was admissible aaainst him and Gabow’s statement
was admissible aaainst her as admissions, KRE 801A(h)(l), McMillen’s statement could
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was redacted to delete any reference to either Cecil or Gabow; Cecil’s confession was
redacted to delete any reference to Gabow; and Gabow’s confession was redacted to
delete any reference to Cecil. Thus, the confessions of both Cecil and Gabow were
redacted to delete any reference to the conversation in which Gabow claimed to have
renounced her role in the conspiracy.
The defense of voluntary and complete renunciation is defined in KRS
502.040(2):
A person is not guilty under KRS 502.010 or 502.020 for
an offense committed by another person when:
Prior to the commission of the offense, he manifests a voluntary
and complete renunciation, as defined in KRS 506.060, of his
criminal purposes and:
Deprives his prior effort of its effectiveness in such
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commission; or
Gives timely warning to the proper law enforcement
(b)
authorities or otherwise makes orooer effort to Prevent
commission of the offense. (Emphasis added.)
At the conclusion of the Commonwealth’s case-in-chief. Gabow announced her
intention to introduce her own unredacted videotaped confession, including the portion
pertaining to her claimed renunciation.* Since Gabow’s unredacted confession
have been admitted only as a statement against his own penal interest under KRE
804(b)(3). A hearsay statement is admissible under that exception only if the declarant
is “unavailable” as defined in KRE 804(a). The record is silent as to the unavailability of
McMillen as a witness. However, the issue is not raised by either party; thus, we
assume that McMillen was deemed unavailable because of a “then existing . . . mental
illness or infirmity” which prevented him from testifying. KRE 804(a)(4).
* The record does not reflect under what theory Gabow was permitted to
introduce her own unredacted confession. Her confession was clearly hearsay, and the
admissions exception under which the Commonwealth introduced the redacted version,
KRE 801A(h)(l), applies only to statements offered against a party. While the rule of
completeness, KRE 106, permits a party against whom a statement is introduced to
introduce any other part of the statement “which ought in fairness to be considered
contemporaneously with it,” the rule does not mean the entire document may be
admitted into evidence, “but only so much as concerns the specific matter the opposite
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inculpated Cecil, the trial judge bifurcated the remainder of the trial per Kinser v.
Commonwealth, Ky., 741 S.W.2d 648 (1987) so that Cecil’s case could be tried to a
conclusion before the introduction of Gabow’s defense. Cecil was convicted and his
trial proceeded to the penalty phase, during which he was permitted to introduce his
own unredacted videotaped confession,3
presumably in support of his claim of the
accomplice mitigating factor. KRS 532.025(2)(b)5.
At the conclusion of the penalty
phase of Cecil’s trial, the guilt phase of Gabow’s trial was resumed and her case was
tried to a conclusion. Gabow did not testify in her own behalf, but introduced her
unredacted videotaped confession in support of her defense of renunciation.
II. CECIL’S APPEAL.
Cecil asserts six errors on appeal: (A) denial of his right to a speedy trial; (B)
failure to sever his trial from that of Gabow; (C) admission at trial of the confessions of
McMillen and Gabow; (D) failure to instruct on criminal facilitation of murder as a lesser
included offense; (E) separation of jurors and ex parte communication between the
judge and jurors during jury deliberations; and (F) ineffective assistance of counsel.
This last claim was not presented to the trial judge for consideration, thus is not ripe for
party opened up.” White v. Commonwealth, 292 Ky. 416, 166 S.W.2d 873, 877 (1942).
“The completeness doctrine is based upon the notion of fairness -- namely, 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 that doctrine ‘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)). This does not mean that by introducing a portion of a defendant’s
confession in which the defendant admits the commission of the criminal offense, the
Commonwealth opens the door for the defendant to use the remainder of that out-ofcourt statement for the purpose of asserting a defense without subjecting it to crossexamination.
3 See discussion supra note 2.
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consideration on appeal. Humohrev v. Commonwealth, Ky., 962 S.W.2d 870, 872
(1998).
A. Speedv trial.
Cecil was arrested on February 28, 1995 and indicted on April 26, 1995. His trial
did not begin until February 23, 1998. During the interim, Cecil’s counsel filed two
motions for a speedy trial, first on August 6, 1996 and again on March 31, 1997. On
May 12, 1997, Cecil filed a pro se statutory speedy trial demand under KRS 500.1 1O.4
Meanwhile, McMillen, who was a juvenile when the murder was committed, had filed a
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petition for a writ of prohibition in the Court of Appeals challenging the constitutionality
of KRS 635.020(4), the statute under which he was transferred from juvenile court to
circuit court to stand trial as an adult. When that petition was denied, McMillen
exercised his right under Section 115 of our Constitution to appeal that denial to this
Court.’
A stay of proceedings was entered on October 24, 1995 and remained in effect
until April 24, 1997.’ On May 21, 1997, the trial court entered an order scheduling the
trial for October 27, 1997. On October 8, 1997, McMillen filed a motion for a
continuance primarily on grounds that his expert witness was unavailable for the
October 27, 1997 trial date
On October 17, 1997, McMillen filed a motion for a
4 Cecil filed several additional pro se motions to remove his court-appointed
counsel on grounds that hrs counsel had failed to move for a speedy trial. However, he
filed only one actual pro se motion demanding a speedy trial. Cf. McDonald v.
Commonwealth, Ky., 569 S.W.2d 134 (1978), cert. denied, 439 U.S. 1119 (1979).
’ 95-CA-2052.
6 95-SC-889-MR.
’ The constitutionality of KRS 635.020(4) was upheld in Commonwealth v.
Halsell, Ky., 934 S.W.2d 552 (1996). McMillen’s appeal was abated pending the
outcome of Halsell.
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psychiatric examination to determine his mental competency to stand trial; and on
October 20, 1997, McMillen filed an additional motion to discover the personnel records
of those officers of the Radcliff Police Department who had participated in investigating
the murder and obtaining the defendants’ confessions. During the last two weeks
before trial, all four defendants filed motions for severance and motions to exclude the
death penalty as a potential punishment.
On the morning of trial, an order was entered
continuing the trial date generally. The record does not reflect the reason for the
continuance or that any of the defendants objected to the continuance. The trial was
subsequently rescheduled for February 23, 1998.
Cecil’s statutory speedy trial claim under KRS 500.110 is easily discarded. That
statute applies only when a defendant is incarcerated for one offense and a detainer
has been lodged against him to answer for another offense. Cf. Huddleston v.
Jenninas, Ky. App., 723 S.W.2d 381, 383 (1986). It does not apply where, as here, a
defendant is seeking a speedy trial of an offense for which he is being held in pre-trial
incarceration. Under that circumstance, a speedy trial demand is treated as an
assertion of the right to a speedy trial guaranteed by the Sixth Amendment of the United
States Constitution and Section 11 of the Constitution of Kentucky.
Four factors are considered in determining whether the Constitutional right to a
speedy trial has been violated: (1) the length of delay; (2) the reason for delay; (3) the
defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant.
Barker v. Winao, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). No single one of
these factors is ultimately determinative by itself.
A defendant’s constitutional right to a speedy trial cannot be established
by any inflexible rule but can be determined only on an ad hoc balancing
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basis, in which the conduct of the prosecution and that of the defendant
are weighed.
Id. at 514, 92 S.Ct. at 2184.
The inquiry first must be triggered by a presumptively prejudicial delay. There is
no bright line rule for determining what length of delay suffices to trigger the inquiry, but
actual prejudice need not be proven to establish a presumptively prejudicial delay.
In
Barker v. Winao, supra, a five year delay was held presumptively prejudicial for a trial
for murder; in McDonald v. Commonwealth, supra note 4, a three year delay was held
presumptively prejudicial for a trial for indecent and immoral practices, assault and
battery, and rape; and in Preston v. Commonwealth, Ky. App., 898 S.W.2d 504 (1995),
a forty-one month delay was held presumptively prejudicial for a trial for drug
possession. We conclude that the thirty-four month delay between indictment and trial
in this case was a presumptively prejudicial delay triggering further inquiry into the
reason for the delay and whether any prejudice resulted.
Nineteen of the thirty-four months between Cecil’s indictment and his trial were
caused by the stay issued by this Court during the pendency of McMillen’s interlocutory
appeal. Generally, time consumed by an interlocutory appeal, even if taken by the
government, is a sufficient reason justifying delay. United States v. Loud Hawk, 474
U.S. 302, 315-16,
106 S.Ct. 648, 656, 8 8 L.Ed.2d 640 (1986). This issue usually
involves an assessment of the purpose and reasonableness of the government’s
appeal. Id.; Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 23 (1998), cert. denied,
525 U.S. 1153 (1999). Here, however, the appeal was filed and the stay obtained not
by the Commonwealth, but by a codefendant. Although the Commonwealth could have
tried Cecil separately from McMillen, which it ultimately was required to do, we do not
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fault the Commonwealth for attempting to resolve the charges against these four
conspirators in one trial. The case was set for trial within a reasonable time after the
stay was lifted. The record does not show and Cecil does not claim that he objected to
the continuance granted on October 27, 1997. If a defendant acquiesces in a delay, he
cannot be heard to complain about the delay. Wells v. Commonwealth, Ky., 892
S.W.2d 299, 303 (1995); Preston v. Commonwealth, supra, at 506.
Finally, although Cecil may have been prejudiced by the mere fact that he was
incarcerated during the delay, Barker v. Winao, supra, 407 U.S. at 532-33, 92 S.Ct. at
2192-93, he has not identified any prejudice with respect to his ability to present his
defense at trial. Tamme v. Commonwealth, supra, at 23. We conclude that the delay in
bringing this case to trial does not justify “the unsatisfactorily severe remedy of
dismissal.” Barker, 407 U.S. at 522, 92 S.Ct. at 2188.
9.
Severance.
The trial judge did not err in overruling Cecil’s motion for a separate trial. RCr
9.16. Joinder under RCr 6.20 is appropriate where, as here, the defendants “are
alleged to have participated in the same act or transaction or in the same series of acts
or transactions constituting an offense or offenses.” Jackson v. Commonwealth, Ky.,
670 S.W.2d 828, 834 (1984) cert. denied, 469 U.S. 1111 (1985); see also Dishman v.
Commonwealth, Ky., 906 S.W.2d 335, 340 (1995). Even if the defendants attempt to
cast blame on each other, severance is not required. United States v. Arthur, 949 F.2d
21 I, 217-I 8 (6th Cir. 1991).
[Nleither antagonistic defenses nor the fact that the evidence for or
against one defendant incriminates the other amounts, by itself, to unfair
prejudice. . . . That different defendants alleged to have been involved in
the same transaction have conflicting versions of what took place, or the
extent to which they participated in it, vel non, is a reason for rather than
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against a joint trial. If one is lying, it is easier for the truth to be determined
if all are required to be tried together.
Ware v. Commonwealth, Ky., 537 S.W.2d 174, 177 (1976).
The Commonwealth’s theory of the case was that Gabow hired Cecil and
McMillen to kill her husband and that Cecil aided and abetted McMillen in carrying out
the murder. Obviously, evidence that Gabow hired McMillen and Cecil to kill her
husband would have been admissible in a separate trial of Cecil to prove his motive for
participating in the murder. Id.
A trial judge has broad discretion in determining whether to grant separate trials
and his/her decision in that regard will not be overturned absent a showing of prejudice
to the defendant and a clear abuse of discretion by the judge. Humbhrev v.
Commonwealth, Ky., 836 S.W.2d 865 (1992); Turoin v. Commonwealth, Ky., 780
S.W.2d 619 (1989), cert. denied, 494 U.S. 1058 (1990). Neither occurred in this case.
C. Admission of confessions of McMillen and Gabow.
Cecil asserts that the admission of the redacted confessions of McMillen and
Gabow violated his right of confrontation guaranteed by the Sixth Amendment of the
United States Constitution and Section 11 of the Constitution of Kentucky.
Specifically,
he claims that the introduction of the confession of a nontestifying codefendant that
inculpates the nonconfessing defendant violates the holding in Bruton v. United States,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, the Bruton rule is not
violated where, as here, the nontestifying codefendant’s confession is redacted so as to
delete not only the name of the nonconfessing defendant, but any reference even to his
or her existence. Grav v. Marvland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294
(1988); Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1977).
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Similarly, we held in Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), cert.
denied, 493 U.S. 1063 (1990), overruled on other arounds, St. Clair v. Roark, Ky., IO
S.W.3d 482 (1999) that a properly redacted statement is one which “does not provide
details that point unerringly to the nonconfessing defendant.” Id. at 370; compare
Roaers v. Commonwealth, Ky., 992 S.W.2d 183 (1999) cert. denied, - U.S. -, 120
s.ct. 450 (1999).
Cecil argues that even though the confessions of both McMillen and Gabow were
redacted so as to delete any reference to his existence, Brangers’s testimony effectively
reinserted his identity as a coconspirator into those confessions. In other words,
although neither McMillen’s nor Gabow’s redacted confession made any mention of
Cecil’s involvement in the conspiracy and murder, Brangers’s testimony inculpated Cecil
in both the conspiracy and the murder described in those confessions. The problem
with this argument is that Brangers did testify at trial and was available for crossexamination. In Richardson v. Marsh, supra, a distinction was drawn between a
nontestifying codefendant’s confession which, as in Bruton, expressly implicates the
nonconfessing defendant as an accomplice, and a confession, as here, which is not
facially incriminating, but which becomes incriminating when linked with evidence
introduced elsewhere at trial. Rejecting the theory of “contextual implication,” the Court
held in Richardson that if the nontestifying codefendant’s confession is redacted so as
to delete any reference to the existence of the nonconfessing defendant, Bruton is not
violated merely because that defendant is linked to the confession by other admissible
evidence. Richardson, 481 U.S. at 208-09, 107 S.Ct. at 1707-08. As suggested in
Richardson, to hold otherwise would virtually eliminate joint trials. Id., 481 U.S. at 20910, 107 S.Ct. at 1708-09.
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Of course, Cecil was not prejudiced by the admission of Gabow’s unredacted
confession, because that did not occur until after Cecil’s case was concluded.
D. Lesser included offense.
Cecil asserts error in the trial judge’s refusal to instruct the jury on criminal
facilitation of murder as a lesser included offense of complicity to murder. As we said in
addressing an identical argument in Houston v. Commonwealth, Ky., 975 S.W.2d 925
(1998):
Although a trial judge has a duty to prepare and give instructions on
the whole law of the case, including any lesser included offenses which
are supported by the evidence, . . . that duty does not require an
instruction on a theory with no evidentiary foundation. . . . An instruction
on a lesser included offense is required only if, considering the totality of
the evidence, the jury might have a reasonable doubt as to the
defendant’s guilt of the greater offense, and yet believe beyond a
reasonable doubt that he is guilty of the lesser offense.
Id. at 929 (citations omitted).
Criminal facilitation occurs when a defendant, with no intent to promote or
commit the crime himself, provides the means or opportunity for another to do so. K R S
506.080; Commonwealth v, Day, Ky., 983 S.W.2d 505, 509 (1999). Cecil did not testify
at trial. In his redacted confession, he admitted that he and McMillen discussed killing
Frederick Gabow because they needed the money, that he (Cecil) obtained the murder
weapon with the intent that it would be used to kill Gabow, and that he drove McMillen
to Gabow’s residence with the intent that McMillen would kill Gabow.
We then drove back to E’town [after obtaining the murder weapon]. While
driving back Sam took the gun and began pointing it saying that Son of a
Bitch was dead, and then we would get the money. I asked him who was
going to do the shooting, and he said that I was going to do it. I told him
that I never had shot anyone and I-, and that I wasn’t going to shoot him.
He said he would do it. On 2/16/95 [actually, 2/17/95] around 1730 or
1800 hours this date I drove Sam to the trailer park so we could do the
jc&. Once we arrived Sam wanted to go to the door and just shoot him. I
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told him that if he was going to do it, then just do it. . . . I drove around for
awhile while Sam kept saying trust me. Give me the gun. He wanted to
get it over with so we could aet the money. He said that he would walk up
to the door and shoot him. I slowed down to about 5 miles an hour and
Sam jumped out. He stepped out of my truck with a gun in his hand. A
22 caliber weapon, and walked toward the trailer park. (Emphasis added.)
As recounted supra, Brangers testified that Cecil was involved in the murder-forhire scheme from the beginning; and that during his conversation with Cheryl Gabow on
the day of the murder, Cecil asserted that Frederick Gabow would be killed even if he
(Cecil) had to stab him with a knife. No evidence was introduced from which a jury
could believe that Cecil obtained the murder weapon and furnished it to McMillen and
drove McMillen to the crime scene, but did not intend for McMillen to kill Frederick
Gabow; thus, there was no evidentiary basis for an instruction on criminal facilitation.
E. Seoaration of iurors and ex barte communication.
During the jury’s deliberations of Cecil’s guilt or innocence, Cecil’s mother
observed several jurors leave the jury room and go to another room. She then saw the
trial judge go to the jury room and speak to someone at the door. Cecil asserts that the
separation of the jurors violated RCr 9.66 (sequestration of the jury) and that the judge’s
ex parte communication, presumably with one or more of the remaining jurors, violated
RCr 8.28(l) (defendant’s right to be present at every critical stage of trial). A post-trial
evidentiary hearing revealed that the trial judge had authorized recesses in deliberations
whenever jurors who were addicted to nicotine needed to leave the jury room to smoke
a cigarette, but only if those jurors were accompanied by a bailiff and the non-smoking
jurors remained in the charge of another bailiff. Two deputy sheriffs, Ron Wilson and
Rick Stickel, were acting as bailiffs at the time. Stickel testified that the jurors knocked
on the door and asked for a “smoke break,” whereupon he accompanied the smokers to
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the smoking area to assure that they had no contact with any outsiders. Wilson
remained with the other jurors until the smokers returned. Meanwhile, one of Cecil’s
attorneys notified the trial judge that some of the jurors had left the jury room. The trial
judge proceeded to the jury room, ascertained what had occurred, and determined that
there had been no violation of the procedures that he had previously authorized.
Criminal Rule 9.66 provides that jurors deliberating a felony charge “shall be
sequestered unless otherwise agreed by the parties with approval of the court.”
That
does not mean that each juror must remain constantly in the presence of the others. If
that were so, jurors would not be permitted to take restroom breaks or to sleep in
separate rooms during an overnight sequestration. The general rule is that a mere
temporary separation of the jury is not grounds for reversal if it appears that no definite
prejudice resulted and there was no opportunity to tamper with the jurors. 75B Am. Jur.
2d Trial 5 1505 (1992). That has long been the rule in Kentucky.
There is more or less separation in the case of every jury required
to be kept together under the law, it being a well known fact that it is a
matter of practical impossibility to keep all twelve members of a jury in
close contact with each other at all times. . . [T]he trend of rulings has
been towards a liberal application and a construction that a substantial
compliance with the statute was sufficient unless there was some fact or
circumstance indicating that a juror had been approached or an
opportunity afforded to influence him.
Lawson v. Commonwealth, 278 Ky. 1, 127 S.W.2d 876, 877 (1939) (citations omitted).
See also Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962) and Anderson v.
Commonwealth, Ky., 353 S.W.2d 381 (1962) cert. denied, 369 U.S. 829 (1962) (jurors
properly permitted to separate by being allowed to make telephone calls to relatives
concerning their personal needs during overnight sequestration); Hendrickson v.
Commonwealth, Ky., 259 S.W.2d 1 (1953) (jurors properly permitted to stay in separate
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hotel rooms during overnight recess); Marcum v. Commonwealth, Ky., 256 S.W.2d 22
(1953) (absent a showing or claim of misconduct, temporary absence of two jurors
following restroom break did not constitute improper separation).
Furthermore, one of Cecil’s attorneys was present in the courtroom when the
separation occurred, and he neither objected nor moved for a mistrial. The issue was
raised for the first time in Cecil’s motion for a new trial; thus, any impropriety with
respect to the custody of the jury was waived. Burkhart v. Commonwealth, 312 Ky. 555,
228 S.W.2d 451,453-54 (1950); Davenport v. Commonwealth, 285 Ky. 628, 148
S.W.2d 1054 (1941).
As for the alleged ex barte communication between the judge and the nonsmoking jurors, we find this brief inquiry prompted by the concerns of Cecil’s counsel to
have been harmless. “There is scarcely a lengthy trial in which one or more jurors do
not have occasion to speak to the trial judge about something, whether it relates to a
matter of personal comfort or to some aspect of the trial.” Rushen v. Sbain, 464 U.S.
114, 118, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267 (1983). In United States v. Gaanon,
470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), the test with respect to whether
an ex carte communication violated the defendant’s right to be present at all critical
stages of his prosecution was stated to be whether the presence of counsel was
necessary to insure fundamental fairness or whether the defendant was deprived of a
“reasonably substantial . . . opportunity to defend against the charge.” id. at 526, 105
S.Ct. at 1484. Here, the communication between the trial judge and the jury was
completely unrelated to the subject matter of the case. Instead, the interaction
amounted to a “short interlude in a complex trial; the conference was not the sort of
event which every defendant had a right personally to attend under the Fifth
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Amendment. [Cecil] could have done nothing had [he] been at the conference, nor
would [he] have gained anything by attending.” Id. at 527, 105 S.Ct. at 1484-85. This
isolated incident neither deprived Cecil of his Constitutionalright to due process of law
nor violated RCr 8.28(l). Rushen v. Spain, supra: cf. Kentuckv v. Stinter, 482 U.S.
730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
III. GABOW’S APPEAL.
Gabow asserts three errors on appeal: (A) improper allocation of peremptory
strikes; (B) failure to suppress her own confession; and (C) admission at trial of the
confessions of Cecil and McMillen.
A. Peremotorv strikes.
In a criminal case where only twelve jurors are to be seated, the prosecution and
the defense are each entitled to eight peremptory strikes. If two or more defendants are
tried jointly, they must share the eight basic peremptories, but each defendant is also
entitled to one additional peremptory to be exercised separately. If alternate jurors are
seated, each side is entitled to nine peremptory strikes; and, if two or more defendants
are tried jointly, they must share those nine, but each defendant is also entitled to two
additional peremptories to be exercised separately. RCr 9.40; Sprinaer v.
Commonwealth, Ky., 998 S.W.2d 439 (1999). In this case, Cecil and Gabow were tried
jointly and two alternate jurors were seated. Thus, they were entitled to nine shared
peremptory strikes and each was entitled to two additional peremptory strikes to be
exercised separately, for a total of thirteen. Instead, they were allotted nine to be
shared and one each to be exercised separately, for a total of eleven.
-16-
The issue was discussed on two separate occasions, first at a pre-trial
conference held on October 20, 1997 and again at a hearing held on February 3, 1998.
At each of those hearings, the trial judge advised the defendants that he interpreted RCr
9.40 to entitle each defendant to only one additional peremptory strike to be exercised
separately.8 During neither of those hearings did Gabow or any of the other defendants
object to this interpretation of RCr 9.40 or offer a contrary interpretation. The defendants
argued only that a trial judge has the inherent discretion in a death penalty case to grant
the defendants more peremptory strikes than are required by the rule.’
In Kentucky Farm Bureau Mutual Insurance Co. v. Cook, Ky., 590 S.W.2d 875
(1979) we held that an improper allocation of peremptory strikes is reversible error “if
the issue is Properly preserved by the adverselv affected litiqant.” id. at 877 (emphasis
added). Cf. Howard v. Commonwealth, Ky. App., 608 S.W.2d 62,‘63 (1980) (adversely
affected party must object to improper jury selection procedures in order to preserve the
issue for appellate review). Where a party specifies his grounds for an objection at trial,
he cannot present a new theory of error on appeal. Ruppee v. Commonwealth, Ky.,
821 S.W.2d 484 (1991). To borrow Justice Lukowsky’s oft-quoted acerbity, “appellants
will not be permitted to feed one can of worms to the trial judge and another to the
appellate court.” Kennedv v Commonwealth, Ky., 544 S.W.2d 219, 222 (1976).
8 The case was tried prior to the rendition of Sprinaer v. Commonwealth, supra.
’ Prior to September 15, 1990, RCr 9.40(3) provided that if more than one
defendant is being tried, “the court may at its discretion allow additional peremptory
challenges to each defendant.” Even after the deletion of that provision, our cases have
continued to suggest in dicta that a trial judge retains the discretion to grant additional
peremptory strikes to a criminal defendant. Tamme v. Commonwealth, supra, at 26;
Bowling v. Commonwealth, Ky., 942 S.W.2d 293, 308 (1997), cert. denied, 522 U.S.
986 (1997); Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 162 (1995), cert. denied,
519 U.S. 855 (1996).
-17-
Gabow’s present claim that RCr 9.40 required the allotment to her of one additional
peremptory strike to be exercised separately was not preserved for appellate review.
Furthermore, we find no abuse of discretion in the trial judge’s refusal to grant the
defendants’ motions for six additional peremptory strikes.
B. Voluntariness of Gabow’s confession.
At the request of Detective Ponder of the Radcliff Police Department, Gabow,
accompanied by Brangers and her children, voluntarily came to the police station,
where she was interviewed first by Ponder, then by Detective Hornback, to whom, after
being given the Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), she confessed her involvement in the murder of her husband.
Gabow moved to suppress her confession on grounds that it was involuntarily obtained.
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Specifically,
she claimed that Ponder overbore her will by promising her that nothing would happen
to her if she confessed, but that she would lose custody of her children if she did not.
Following a suppression hearing, the trial judge entered written findings rejecting
Gabow’s version of these events and accepting Detective Ponder’s version that he did
not promise Gabow leniency in exchange for her confession, but only told her that he
believed she was involved in the murder of her husband and that “it was a shame that
her children had lost their father and now would lose their mother.” The trial judge
found that Gabow “may have told her story in hopes of leniency, but there was no
promise of leniency or a proposal for a deal; certainly no promise not to prosecute.”
These findings are supported by substantial evidence, and thus are conclusive. RCr
9.78; Sprinaer v. Commonwealth, supra, at 446; cf. Talbott v. Commonwealth, Ky., 968
S.W.2d 76, 82 (1998). The Fifth Amendment privilege is not “concerned with moral and
-18-
psychological pressures to confess emanating from sources other than official
coercion.” Oreaon v. Elstad, 470 U.S. 298, 304-05, 105 S.Ct. 1285, 1290, 84 L.Ed.2d
222 (1985). The trial court did not err in refusing to suppress Gabow’s confession.
Henson v. Commonwealth, Ky., 20 S.W.3d 466, 468~70 (2000).
C. Admission of confessions of McMillen and Cecil.
As noted supra, the confessions of McMillen and Cecil which were introduced
during the Commonwealth’s case-in-chief” had been redacted to delete any reference
to even the existence of Cheryl Gabow. Thus, there was no error associated with the
admission of either of those redacted confessions. Grav v. Marvland, suora;
Richardson v. Marsh, supra; Cosbv v. Commonwealth, supra.
Gabow’s primary claim of error is the admission of Cecil’s unredacted confession,
which inculpated her, during the penalty phase of Cecil’s trial, which was tried before the
same jury which subsequently considered the guilt or innocence of Gabow. Remember,
the only reason the admission of Cecil’s unredacted confession occurred before the
completion of the guilt phase of Gabow’s trial was that Gabow intended to and did
introduce her own unredacted confession, which inculpated Cecil. Thus, if the
respective confessions were entirely consistent, the introduction of Cecil’s unredacted
confession would be subject to harmless error analysis. Gill v. Commonwealth, Ky., 7
S.W.3d 365, 368-69 (1999). However, though the confessions are consistent with
respect to the circumstances and motives surrounding the murder-for-hire agreement,
they are arguably inconsistent on the issue of Gabow’s claim of renunciation.
lo See note 1, supra, for a discussion of the evidentiary bases for the
introduction of those confessions.
-19-
Gabow was the first to confess and claimed in her confession that both she and
Cecil had renounced any further interest in the plot to kill her husband. Cecil
subsequently gave a written confession to Detective Hornback, who then read the
statement aloud in a videotaped interview with Cecil, permitting Cecil to make any
desired corrections orexplanations. The videotaped interview, which was played to the
jury, included the following:
Hornback (reading): Okay, on February 17th we woke up and Sam began
drinking vodka.
C o r r e c t .
Cecil:
Hornback (reading): I drove to Cheryl’s house and spoke with her about
Sam. She then brought up the fact that Fred went to work at IO:00 p.m.
and that we needed to be there by 9:30 p.m. to do the job.
Cecil.
-. Correct.
Hornback (reading): Cheryl then said that it needed to be done before
Monday because she was going to sign the divorce papers on Monday or
Tuesday.
Cecil.
-. Correct.
Hornback (reading): I told her that it would be done before Monday
because Sam wanted it done. He said he was tired of waiting around and
he wanted the money.
Cecil- Correct
Cecil’s confession does not mention Gabow’s claimed renunciation. Gabow’s
confession does not mention the above colloquy recounted by Cecil. Thus, neither
confession directly contradicts the other, though each omits a critical fact contained in
the other. Compare Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514
(1986), a double murder case in which the confession of the nontestifying codefendant
directly contradicted the defendant’s claim that she was not involved at all in the death
-2o-
of one victim and that she killed the other victim in self-defense. Here, Gabow claims
that Cecil’s confession “devastated” her renunciation defense, not because it directly
contradicted her claim of renunciation (it did not), but because the jury could have
inferred from Cecil’s confession either that Gabow’s renunciation never occurred or, if it
did, that she changed her mind and rejoined the conspiracy before its objective was
consummated. Thus, Gabow asserts that the admission of Cecil’s confession before
the determination of her guilt or innocence could not have been harmless error. We
agree that Cecil’s confession was not harmless, but do not agree that its admission was
error. The issue is not whether Cecil’s confession prejudiced Gabow, but whether it was
reliable.
Bruton v. United States, supra, holds that a confession by a codefendant which
inculpates a nonconfessing defendant is inadmissible in a joint trial unless the
confessing codefendant elects to testify and is therefore available for cross-examination
with respect to the confession. The Bruton rule is not violated if, as during the
Commonwealth’s case-in-chief, the nontestifying defendant’s confession is so redacted
as to delete any reference to the existence of the nonconfessing codefendant. Gray v.
Marvland, supra; Richardson v. h e d supra. s i o n s
H o w e v e r , t Marsh, e c i
o f
t h e
U n i t e d
States Supreme Court are less clear in a factual context in which each codefendant has
confessed and inculpated the other and both unredacted confessions are admitted into
evidence at a joint trial. In Parker v. Randoloh, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d
713 (1979), a plurality of the Court held that Bruton does not apply where codefendants
have given “interlocking” confessions. Bruton was premised upon the assumption that
the introduction of the confession of a nontestifying codefendant which inculpates the
defendant is so devastating to the defendant that a mere curative admonition will not
-21-
overcome the prejudicial effect of the violation of the defendant’s right of confrontation.
The Parker plurality held that where the confessions of both defendants are admitted,
the defendant is already so devastated by his own confession that the introduction of
the nontestifying codefendant’s interlocking confession could not be any more
devastating to him. Parker v. Randoloh, supra, 442 U.S. at 72-73, 99 S.Ct. at 2139.
Other courts began treating the “interlocking confessions” rationale as an exception to
the Bruton rule. Cf. State v. Bleyl, 435 A.2d 1349 (Me. 1981).
In Lee v. Illinois, supra, the Supreme Court modified the “interlocking
confessions” rationale of Parker v. Randolph, supra, holding that “interlocking” means
that those portions of a codefendant’s statement which bear to any significant degree on
the defendant’s participation in the crime are inadmissable unless “thoroughly
substantiated” by the defendant’s own confession. &, 476 U.S. at 545, 106 S.Ct. at
2064. And in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987)
the Court abandoned the “already devastated” rationale of Parker v. Randolph, holding
that the “interlocking” nature of the confessions does not relate to the harmfulness of
the codefendant’s confession, but to its reliability.
If it confirms essentially the same facts as the defendant’s own confession
it is more likely to be true. Its reliability . . . may be relevant to whether the
confession should (despite the lack of opportunity for cross-examination)
be admitted as evidence aaainst the defendant. . . .
Id. at 192-93, 107 S.Ct. at 1719 (emphasis in original).
In Lee v. Illinois, supra, the Court reiterated its long-held conclusion that the
confession of an accomplice that implicates the defendant is presumptively unreliable,
476 U.S. at 541, 106 S.Ct. at 2062, citing Doualas v. Alabama, 380 U.S. 415, 85 S.Ct.
1074, 13 L.Ed.2d 434 (1965); and that the presumption can be overcome only by
-LL-
sufficient independent “indicia of reliability.” &, 476 U.S. at 539, 106 S.Ct. at 2061,
citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).
Ohio v. Roberts holds that such reliability can be inferred without more where the
evidence falls within a “firmly rooted” exception to the hearsay rule. In other cases, the
evidence must be excluded, “at least absent a showina of oarticularized auarantees of
trustworthiness.” 448 U.S. at 66, 100 S.Ct. at 2539 (emphasis added).
Thus, there currently are three recognized exceptions to the Bruton rule. A
confession of a nontestifying defendant is inadmissible at the trial of a codefendant
unless (1) the confession has been sufficiently redacted in accordance with Gray v.
Marvland and Richardson v. Marsh to delete not only the name but any reference to the
existence of the codefendant; or (2) the confession falls within a “firmly rooted”
exception to the hearsay rule; or (3) the confession possesses “particularized
guarantees of trustworthiness.” The phrase “particularized guarantees of
trustworthiness” means a totality of circumstances rendering the statement at least as
reliable as a “firmly rooted” exception to the hearsay rule. Idaho v. Wriaht, 497 U.S.
805, 820-21, 1 IO S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990). Presumably, this means
that even though a particular guarantee of trustworthiness might be an insufficient
indicia of reliability, an unspecified number of such guarantees, taken together, can
constitute a totality of circumstances which would be just as reliable as a “firmly rooted”
exception to the hearsay rule.
The first exception to Bruton has no application here, because the version of
Cecil’s confession which was introduced during the penalty phase of his trial was
unredacted. As for the second exception to Bruton, the only hearsay exception which
might apply to Cecil’s confession is KRE 804(b)(3), the exception for declarations
-23-
against penal interest.” The United States Supreme Court has yet to render a majority
opinion specifically holding whether that exception is or is not “firmly rooted.” The lead
opinion in Lillv v. Virainia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) is a
plurality opinion and the concurring opinions of Justices Breyer, Scalia and Thomas do
not specify their positions on this issue. Nor do any of the opinions in Williamson v.
United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) specifically
address this issue. Although a footnote in Lee v. Illinois, supra, at 544 n.5, 106 S.Ct. at
2064 n.5 states that the concept of declaration against penal interest “defines too large
a class for meaningful Confrontation Clause analysis,” Justice O’Connor’s lead opinion
in Williamson, 512 at 605, 114 S.Ct. at 2437, states that “we need not decide whether
the hearsay exception for declarations against interest is ‘firmly rooted,“’ indicating that
the issue is still “alive.” However, we need not engage in speculation as to how a
majority of the Supreme Court might ultimately decide this issue; for Cecil’s account of
his February 17, 1995 conversation with Cheryl Gabow falls under the third exception to
Bruton in that it has “particularized guarantees of trustworthiness.” This, of course, is a
fact-intensive inquiry. Li&, 527 U.S. at 136, 119 S.Ct. at 1900.
The mere fact that a statement is self-inculpatory, i.e., a declaration against
penal interest, is, itself, a particularized guarantee of trustworthiness. Williamson, 512
at 605, 114 S.Ct. at 2437. The issue in this respect is whether the statement is truly
” The Commonwealth posits that Cecil’s confession is admissible as a statement
by a coconspirator, KRE 801A(b)(5). However, the confession was made after the
objective of the conspiracy was accomplished, thus was not made “in furtherance of the
conspiracy” as the rule requires. NaDier v. Commonwealth, Ky., 515 S.W.2d 615
(1974); Lawson, suprar note I, i5t 8.30dII, at s s i b l e a s a n “ a d m i s s i o n ”
N o
i s
a m i 404.
under KRE 801A(h)(l), because admissions are admissible only against the declarant
(Cecil). Of course, Cecil’s unredacted confession was introduced b Cecil, not against
him. See notes 1 and 2, supra.
-24-
self-inculpatory or whether it is, in fact, self-exculpatory in that it shifts the blame from
the confessor to his codefendant.‘* Id. at 604, 114 S.Ct. at 2437. In Williamson, the
confessing defendant “admitted involvement, but did so in a way that minimized his own
role and shifted blame to [his codefendant].” Id. at 608, 114 S.Ct. at 2439 (Ginsburg,
J., concurring). Here, Cecil’s account of his February 17th discussion with Cheryl
Gabow was not self-exculpatory in that it neither minimized his role in the killing nor
shifted the blame to Gabow. The very subject of the conversation inculpated Cecil in
the plot to kill Frederick Gabow. Cheryl Gabow would have had no reason to tell Cecil
when the murder needed to take place unless Cecil was also involved in the plot.
“Even statements that are on their face neutral may actually be against the declarant’s
interest.” Id. at 603, 114 S.Ct. at 2436-37. But this conversation was not even facially
neutral. According to Cecil, when Gabow told him that the killing needed to take place
before Monday, he assured her that “it would be done before Monday.” If Cecil’s
motivation had been to minimize his involvement and shift the blame to Gabow, he
presumably would not have repeated his own assurance to Gabow that the murder
would be accomplished on schedule.
In Lillv v. Virainia, supra, it was emphasized that the confession was in response
to a police officer’s leading questions, that the confessor had a natural motive to
exculpate himself, and that the confessor was under the influence of alcohol during the
interrogation. Id. at 139, 119 S.Ct. at 1901. Here, Cecil’s written statement, which was
in narrative form, does not appear to have been in response to leading questions; and
‘* Each statement within the broader narrative must be examined individually to
determine whether it is, in fact, self-inculpatory. Cf. Williamson, 512 U.S. at 600-01,
114 S.Ct. at 2435.
-25-
the videotape shows that his demeanor was calm and that he did not appear to be
under the influence of alcohol or drugs. He may have had a motive to exculpate
himself, but, as noted supra, his statement was not self-exculpatory.
Cruz v. New York, suora, holds that “the defendants confession may be
considered at trial in assessing whether his codefendant’s statements are supported by
sufficient ‘indicia of reliability’ to be directly admissible against him.” 481 U.S. at 193-94,
107 S.Ct. at 1719. In other words, although the interlocking nature of the defendants’
respective confessions is not determinative of admissibility, it is a factor to be
considered in determining whether the codefendant’s confession has sufficient indicia of
reliability to be admissible, i.e., it is another “particularized guarantee[] of
trustworthiness.” Gabow’s own confession confirmed every significant aspect of Cecil’s
confession except the February 17th conversation -- and she did not specifically deny
Cecil’s version of that conversation.‘3
Yet another factor giving Cecil’s account of the February 17th conversation a
particularized guarantee of trustworthiness is that his statement contains information,
i.e., the time Frederick Gabow went to work and the date Cheryl Gabow was going to
sign the divorce papers, which presumably would have been unknown to Cecil unless
furnished to him by Gabow. There is no indication that Cecil knew at the time of his
confession that Gabow had claimed to have renounced her role in the conspiracy. If he
had known of Gabow’s claimed renunciation, Cecil would have had a greater motive to
l3 Although Idaho v. Wriaht, supra, holds that corroboration is not a factor in
considering the reliability of an out-of-court statement, 497 U.S. at 822-24, 110 S.Ct. at
3150-51, that case did not involve confessions of codefendants and did not purport to
overrule Cruz v. New York. In fact, the discussion in Wright appears to pertain to
corroborating physical evidence as opposed to the defendant’s own confession. Id. at
824, 110 S.Ct. at 3151.
-26-
adopt Gabow’s version of the conversation than to contradict it; for Gabow’s version
was that she and Cecil had both renounced any further interest in carrying out the
murder. Finally, if Cecil’s intent had been to contradict Gabow’s version, he presumably
would have done so directly and not merely by inference.14
To summarize, the “particularized guarantees of trustworthiness” which made
Cecil’s statement admissible against Gabow were (1) the statement was self-inculpatory
and did not shift blame from Cecil to Gabow; (2) Gabow’s own confession confirmed
Cecil’s confession in all significant respects except with respect to their February 17th
conversation, and did not directly contradict Cecil’s version of that conversation; (3)
Cecil’s confession attributes statements to Gabow containing information not peculiarly
within Cecil’s knowledge but peculiarly within Gabow’s knowledge; (4) there is no
indication that Cecil knew at the time of his confession that Gabow had claimed to have
renounced her role in the conspiracy; (5) Gabow’s claimed renunciation exculpated
Cecil as well as herself, so that Cecil had no motive to contradict her claim; and (6) if
Cecil had intended to “devastate” Gabow’s renunciation defense, he could have done
so directly instead of only inferentially.
Accordingly, the judgments of conviction and sentences imposed by the Hardin
Circuit Court in both of these cases are affirmed.
l4 Though corroboration is not a factor to be considered in assessing the
reliability of an out-of-court statement, see note 13, supra, we recognize the inherent
probability that Cecil’s version of the February 17th conversation, rather than Gabow’s
version, was true; for later that same day, Cecil did, in fact, participate in the murder of
Frederick Gabow. Why would someone who had been hired to murder a perfect
stranger commit that murder after being advised by the person who had hired, but not
yet paid, him that she had changed her mind and no longer wanted the murder to
occur?
-27-
Lambert, C.J., Graves, Johnstone, Keller and Wintersheimer, JJ., concur.
Stumbo, J., concurs in result only without separate opinion.
-28-
COUNSEL FOR APPELLANT CHERYL LYNN GABOW (1998-SC-0377-MR):
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-0377-MR):
A. B. Chandler, III
Attorney General
State Capitol
Frankfort. KY 40601
Elizabeth A. Heilman
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort KY 40601-8204
COUNSEL FOR APPELLANT JAMES CECIL (1998-SC-0441
-MR):
Lawrence F. Smith
Smith Law Office
363 W. Lincoln Trail Blvd.
Radcliff, KY 40160
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (1998-SC-0441-MR):
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Ian G. Sonego
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
-29-
1998-SC-377-MR
CHERYL
LYNN
GABOW
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
95-CR-0075-1
v.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
1998-SC-0441-MR
JAMES CECIL
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
95-CR-0075-5
v.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
ORDER AMIZNDING
The
opinion
in
the
above-styled
appeals,
rendered
October 26, 2000, is hereby amended to the extent that page 19
has been replaced with an amended page, attached hereto, in order
to reflect a correction to the following listed cite: Gill v.
Commonwealth, Ky., 7 S.W.3d
365, 368-69 (1999).
ENTERED November 8, 2000.
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