DONALD HERB JOHNSON V COMMONWEALTH OF KENTUCKY
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RENDERED : FEBRUARY 20, 2003
TO BE PUBLISHED
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1997-SC-0842-MR
2001-SC-0803-MR
DONALD HERB JOHNSON
V
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
NO. 89-CR-115 and 96-CR-0047
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
On November 29, 1989, sixty-one year old Helen Madden was beaten,
stabbed, mutilated, and tortured to death in the supply storage room of the Laundromat
where she worked . Her body was so disfigured that a co-worker of thirteen years was
unable to identify her. Appellant, Donald Herb Johnson, was subsequently arrested for
the crimes . Pursuant to RCr 8 .08, he entered unconditional guilty pleas in Floyd Circuit
Court to murder, first degree robbery, first degree burglary, and two counts of first
degree sexual abuse .
The prosecution moved for jury sentencing. Appellant opposed the
motion, and the trial court ruled in his favor. The prosecution sought interlocutory relief
from the trial court's order allowing Appellant to waive jury-recommended sentencing
unilaterally . This Court ruled that a prosecutor can insist on jury-recommended
sentencing over a defendant's objection .' After prevailing in this Court, however, the
prosecution consented to Appellant's request to be sentenced solely by the trial court
without intervention of a jury. After hearing evidence on the issue of punishment, the
trial court sentenced Appellant to death, twenty years, fifteen years, and five years for
his crimes . Appellant now appeals as a matter of right from the final judgment .'
Appellant has presented twenty-six separate claims of error, but among
them there is considerable overlap . Four separate claims are presented as to the
alleged lack of a factual basis to support the guilty pleas even though Appellant's
crimes all arose from a single set of operative facts. Various issues are raised with
respect to the validity of Appellant's guilty pleas, and his waiver of jury sentencing is
attacked repeatedly, despite the fact that he insisted he had a right to waive jury
sentencing even before this Court . Finally, Appellant makes certain "boiler plate"
arguments settled by this Court in prior decisions . In this opinion, therefore, we will fully
address the significant issues presented and deal with the others in a more summary
fashion .
Appellant first claims that the trial court erred by accepting his guilty pleas
on all charges. In support of this claim, he contends that the guilty pleas were not
entered knowingly, voluntarily, and intelligently because the trial court did not
specifically inform him of certain matters, discussed in greater detail below. This claim
of error was not preserved for appellate review yet will be addressed pursuant to KRS
' Commonwealth v. Johnson , Ky., 910 S .W .2d 229 (1995).
2Ky. Const . § 110(2)(b) .
The standard of review for unpreserved errors in a case in which the
532.075(2). 3
death penalty has been imposed is properly stated as follows :
Where the death penalty has been imposed, we
nonetheless review allegations of these quasi errors .
Assuming that the so-called error occurred, we begin by
inquiring : (1) whether there is a reasonable justification or
explanation for defense counsel's failure to object, e.g .,
whether the failure might have been a legitimate trial tactic ;
and (2) if there is no reasonable explanation, whether the
unpreserved error was prejudicial, i .e ., whether the
circumstances in totality are persuasive that, minus the
error, the defendant may not have been found guilty of a
capital crime, or the death penalty may not have been
imposed .'
There are four matters that Appellant alleges the trial court should have
informed him of for the guilty pleas to be valid: first, that he had a right to be free from
compulsory self-incrimination and that he would be waiving that right by pleading guilty ;'
second, that he had a right to appeal and that he would be waiving that right by
pleading guilty ;6 third, that he had a right to a jury determination of both guilt and degree
of punishment and that by pleading guilty he would be waiving this right ; and fourth, that
he had a right to the presumption of innocence and that he would be waiving that right
by entering a guilty plea.
'See Rogers v. Commonwealth , Ky., 992 S .W .2d 183,184 (1999)
("unpreserved errors are reviewable in a case where the death penalty has been
imposed") .
'Sanders v. Commonwealth , Ky., 801 S .W .2d 665, 668 (1991).
5U .S. Const . Amendments V, XIV; Ky. Const . §§ 2, 11 ; Boykin v.
Alabama , 395 U.S . 238, 89 S.Ct. 1709, 1712, 23 L.Ed . 274 (1969).
'Ky. Const. § 115 ; KRS 532 .075.
Appellant is correct in the identification of his rights, but in the instance of
a guilty plea, Boykin v. Alabama ' does not require a separate enumeration of rights
waived and separate waivers as to each .' Rather, Boykin requires that the defendant
have a "full understanding of what the plea connotes and its consequences ."' In this
case, prior to accepting the guilty pleas, the trial court asked Appellant twenty questions
pertaining to his understanding of his legal circumstances and consequences . These
questions and Appellant's responses leave no doubt that he was aware of the rights he
was waiving . Thus, there was no error.
Appellant next argues that the trial court's acceptance of the guilty pleas
was in error because a written waiver of Appellant's right to a jury trial was not
procured, as required by RCr 9.26 . This claim of error is not preserved yet will be
reviewed under the standard set forth hereinabove, supra, p . 3 .
Several days before Appellant entered his guilty pleas, he filed a lengthy
memorandum discussing the right to trial by jury on guilt and degree of punishment, and
his desire to waive that right. Appellant vigorously continued to pursue sentencing by
the trial court instead of a jury throughout appellate litigation, as evidenced by
Commonwealth v. Johnson , discussed above . Thus, although there is no official written
plea form signed by Appellant in the record, it is clear that his unswerving trial strategy
involved adamant avoidance of a jury trial and a jury sentencing recommendation .
Given the excessively gruesome nature of the murder, which entailed torture and
7
395 U.S. 238, 89 S .Ct. 1709, 23 L .Ed .2d 274 (1969).
8Fontaine v. United States , 526 F .2d 514, 516 (6th Cir. 1975) .
9Roddy v. Black , 516 F.2d 1380, 1383 (6th Cir. 1975); Sparks v. Sowders ,
852 F.2d 882, 885 (6th Cir. 1988) .
mutilation of an elderly victim, this strategy was not unreasonable . The abhorrent details
of
this murder would not have invited sympathy from a jury. Thus Appellant's current
claims of error with regard to the lack of a jury trial, after he assiduously evaded a jury
trial, do not warrant reversal . Although there appears to be no reasonable explanation
for defense counsel's failure to obtain a formal written waiver, this unpreserved error was
not prejudicial .
Appellant's next significant claim is that the trial court erred by failing to
hold a hearing to determine his competency to plead guilty . This claim of error is not
preserved, yet will be reviewed under the standard set forth in Sanders .
The facts giving rise to this claim are as follows. In March 1991, defense
neuropsychologist Dr. Engum performed a two day psychological and
neuropsychological examination of Appellant . In October 1992, Dr. Deland of the
Kentucky Correctional and Psychiatric Center ("KCPC") first concluded that Appellant
was competent . On May 13, 1994, the trial court ordered that Appellant again be
examined at KCPC. On June 10, 1994, the trial court ordered Appellant transported to
KCPC for "medical treatment, including treatment for any mental conditions ." On June
13, 1994, the prosecution filed a motion requesting that Appellant undergo a
competency evaluation at KCPC pursuant to KRS 504 .080 and KRS 504 . 100. As
grounds for the evaluation, the prosecution referred to a psychological report, issued by
DPA psychologist Dr. Robert Berland in early April 1994, that did not make a specific
determination that Appellant was either competent or incompetent . Thereafter, Dr.
Deland of KCPC examined Appellant and filed a report finding him competent on June
14, 1994.
Appellant pled guilty three days later, on June 17, 1994. At the hearing in
which the trial court accepted Appellant's guilty plea, defense counsel conceded the
issue of competency . In accepting the guilty plea, the trial court relied on defense
counsel's stated belief that Appellant was competent as well as a review of the
psychological reports indicating that Appellant was competent . However, despite this
colloquy and review of information regarding Appellant's competency, it appears that no
formal competency hearing was held .
The statutory requirements for competency determinations are governed
by KRS 504.100 . Specifically, KRS 504 .1 00(l) requires a court to appoint a
psychologist or psychiatrist "to examine, treat and report on the defendant's mental
condition" whenever "the court has reasonable grounds to believe that the defendant is
incompetent to stand trial." The trial court's actions observed the statutory mandate .
KRS 504 .100(3) states that after the report is filed, "the court shall hold a hearing to
determine whether the defendant is competent to stand trial." The statutory language
"shall hold" indicates that section 3 is mandatory and cannot be waived by the
defendant.'° Thus, despite the trial court's consideration of Appellant's competency and
defense counsel's concession thereof at the plea hearing, it was error to fail to hold a
formal competency hearing as required by KRS 504 .100(3). By Opinion and Order
rendered June 14, 2001, we so held and remanded this cause to the trial court to
determine 1) whether a retrospective competency hearing was permissible, and if so, 2)
to conduct such a competency hearing .
'° Mills v. Commonwealth , Ky., 996 S .W .2d 473, 486 (1999).
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On July 2, 2001, the trial court held a hearing to determine whether a
retrospective competency hearing would be permissible and found that it would be
possible to conduct a proper hearing . On August 29-30, 2001, the trial court conducted
the hearing and concluded that Appellant had been competent to enter his guilty plea in
June of 1994. Appellant now appeals from the trial court's rulings, presenting four
separate claims of error.
Appellant first contends that his due process rights were violated because
the trial court's finding of the permissibility of a retrospective hearing was not supported
by sufficiently reliable evidence . We disagree . In the recent case of Thompson v.
Commonwealth," this Court considered the prior rule requiring reversal of a case for
failure to hold a competency hearing '2 and concluded that retrospective competency
hearings were now a permissible remedy for such error . A retrospective competency
hearing satisfies "the requirements of due process provided it is based upon evidence
related to observations made or knowledge possessed at the time of trial. "'3 The
"quantity and quality of available evidence [should be] adequate to arrive at an
assessment that could be labeled as more than mere speculation ." Some factors
bearing upon the permissibility of a retrospective competency hearing are : 1) the length
of time between the retrospective hearing and the trial, 2) the availability of transcript or
video record of the relevant proceedings, 3) the existence of mental examinations
conducted close in time to the trial date, and 4) the availability of the recollections of
"Ky., 56 S .W.2d 3d 406, 408-410 (2001).
The prior rule requiring reversal was announced in Hayden v.
Commonwealth , Ky., 563 S .W .2d 720 (1978) .
12
13
Crement v . Chapleau, 62 F . 3d 167, 169 (6th Cir. 1995).
non-experts - including counsel and the trial judge - who had the ability to observe
and interact with the defendant during trial." No single factor is determinative, and the
issue should be decided on a case-by-case basis."
The trial court considered these factors, noting as significant the availability
of the trial court's personal observations of Appellant prior to and during the entry of the
plea, including Appellant's interaction with trial counsel ; the availability of psychological
reports and trial counsel's opinion as to competency ; and the availability of a transcript
of the relevant proceedings . The trial court also considered it significant that there were
mental examinations performed close in time to the entry of the plea. As to the time
lapse between the plea entry and the competency hearing, the trial court referred to this
Court's Opinion and Order stating that seven years between the trial and the
retrospective hearing was not enough in and of itself to deny Appellant due process .
Thus, there was sufficient evidence to sustain the trial court's view that a retrospective
hearing was adequate, and there was no error.
Appellant further contends that the psychological examinations and
evaluations were insufficient to make a reliable determination of his competency. Again,
we disagree . KCPC psychiatrist Frank Deland testified at the August 29-30, 2001
hearing to his knowledge at the time just prior to entry of the guilty plea . Dr. Deland
stated that based upon his discussions with Appellant's trial attorneys, he had been
aware that Appellant was going to enter an open-ended plea. Dr. Deland testified that
the report issued three days before the plea was based upon an evaluation conducted
specifically to update Appellant's competency status in light of the impending plea.
'4
See United States v. Makris , 535 F.2d 899, 904-905 (5th Cir . 1976) .
"Miller v. Dugger , 838 F.2d 1530, 1544 (11 th Cir. 1988) .
Given the significance of the plea, according to Dr. Deland's testimony, he had wanted
to be very thorough regarding Appellant's understanding of the court process . Dr.
Deland testified that he had concluded that Appellant had "much more than a rote
understanding of what was going on," and in fact had "a very deep understanding of
these issues ."
Dr. Deland further testified that he had received no indication from
Appellant's two trial attorneys that they were concerned about Appellant's competency.
DPA psychologist Dr. Berland admitted on both direct and cross-examination that he
had not been able to conclude that Appellant was incompetent when he spoke to him
prior to the guilty plea . Accordingly, there was sufficient evidence for a retrospective
finding of competency .
Appellant's second claim of error with respect to the 2001 competency
hearing was that the trial court improperly placed the burden of proving incompetency on
Appellant . Appellant provides no legitimate support for this claim, and thus it must fail.
Appellant's third allegation regarding the hearing was that the trial judge
erred by not disqualifying himself. In support of this contention, Appellant argues that
the trial judge's reliance on his own observations allowed him to act as an unsworn
witness whose recollections were not subject to the truth-finding mechanism of crossexamination . Appellant's claim must fail, however, as competency determinations are
made by presiding trial judges based in part on their observations, and this does not
thereby convert them into witnesses.
Appellant's last claimed error, which is not preserved, with respect to the
hearing involves allegedly improper hearsay statements . The first statement at issue
came after the Commonwealth asked Dr. Deland if Appellant's trial attorneys "ever
express[ed] any concerns, any doubts in their minds, as to Mr. Johnson's competency?"
Dr. Deland stated that he could "not think of one point where they - where they opined
that he was incompetent because of mental illness or retardation, no ." Dr. Deland later
stated that he had never gotten "an indication from them that they had --they had
concerns about his abilities to understand things in a substantial way." As these are not
hearsay statements, Appellant's claim must fail .
There is more than an implication in Appellant's several briefs to this Court
that his guilty plea in and of itself was a sign of his inability to make rational decisions in
assisting in his defense - that it was a mark of incompetency to plead guilty and be
sentenced by the trial court rather than a jury. When there is strong evidence of a
charged crime, however, such as the heinous and gruesome murder of Helen Madden,
and when there are photographs and other physical evidence showing the perverse
brutality of the crime, and when the defendant's motives do not readily incite sympathy
(he tortured and killed a sixty-one-year-old laundromat worker, because she told him the
shop was closed and he could not use the telephone, and this reminded him of his
mother), it is entirely rational to plead guilty to a judge in the hope of a receiving a more
lenient sentence than from a jury. Indeed, it is not an uncommon trial strategy to avoid
facing a jury in such circumstances . Appellant followed this strategy, as demonstrated
by his vigorous pursuit of judge-only sentencing despite the prosecution's desire for jury
sentencing . This strategy, as with most strategies, entailed a calculated risk. Thus,
Appellant's guilty plea should not be misinterpreted as a symptom of incompetence, but
as a reasonable trial strategy that failed to achieve its desired end .
Appellant's next claim is that the trial court erred by refusing to allow the
forensic pathologist who had performed the autopsy on the victim, Dr. John Hunsaker, to
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testify as to whether he was familiar with the phrase, "pattern of overkill." This claim of
error arose as follows . During the penalty phase, Dr. Hunsaker testified to the nature of
the victim's injuries. Defense counsel asked Dr. Hunsaker on cross-examination if he
was familiar with the phrase "pattern of overkill." The prosecution objected on grounds
that the topic was outside Dr. Hunsaker's field of expertise, i .e., that he was qualified as
a forensic pathologist and not as a psychologist or psychiatrist . The defense attempted
to lay a foundation that would allow Dr. Hunsaker to testify regarding the issue. Dr.
Hunsaker acknowledged familiarity with the concept of overkill as a pattern of physical
injury, yet stated that the concept came from a field other than his own, psychology or
psychiatry, and thus that he could not offer an opinion on the perpetrator's underlying
motivations . The trial court thus sustained the objection . Appellant failed to make an
avowal, and the testimony sought is not obvious . 16 This claim of error is not preserved
yet will be reviewed under the standard set forth hereinabove, supra, p . 3.
Appellant contends that he was denied his right to present relevant
evidence for his defense when Dr. Hunsaker was prevented from testifying that he could
label the pattern of wounds as "overkill ." Appellant argues that such testimony would
have supported the defense theory that based upon his psychological profile, his actions
on the night of the murder were "uncontrollable ." The trial court's ruling on the matter,
however, was correct . Dr. Hunsaker, by his own acknowledgment, was not properly
qualified to testify on "overkill ." He is a forensic pathologist without special qualifications
in psychological profiling . As such, there was no error.
16 Underhill v. Stephenson , Ky., 756 S .W.2d 459, 461 (1988) .
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Appellant next contends that the trial court erred by refusing to let him
withdraw his guilty plea. He contends that the plea should have been withdrawn
because defense counsel offered him erroneous advice upon which he relied in pleading
guilty, i .e., that he could waive his right to jury sentencing . This issue, however, is moot
and therefore need not be addressed for the following reasons. Although this Court held
in Commonwealth v. Johnson" that a capital defendant does not have the right to waive
jury sentencing by making an unconditional plea of guilty, the prosecution in this case
ultimately consented to Appellant's request to be sentenced by the trial court without a
jury's recommendation . As Appellant eventually received the judge-only sentencing he
sought, this claim of error is moot.
Appellant next claims that his guilty plea was not made voluntarily because
his trial counsel allegedly did not advise him that he could have entered a RCr 8.09
conditional guilty plea, rather than a RCr 8 .08 unconditional guilty plea, and thereby
could have raised speedy trial and judge-only sentencing claims upon appeal. As stated
above, Appellant ultimately was sentenced by the judge without a jury's
recommendation, and thus there is no claim of error in this regard . As to the alleged
speedy trial issue, the judge specifically told Appellant during the plea colloquy that by
entering his plea he would be waiving a "speedy and public trial," even though there is
no legal requirement that a judge do so . Thus, Appellant cannot claim that he was not
informed that he waived his right in this matter unknowingly and involuntarily .
Appellant next claims that the case must be remanded for an evidentiary
hearing to determine whether Appellant's trial counsel was ineffective for allegedly not
17
Ky ., 910 S .W .2d 229 (1995) .
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informing Appellant that he could plead guilty conditionally pursuant to RCr 8.09 and
thereby preserving a speedy trial claim for appeal . As stated above, the trial judge
discussed the speedy trial waiver during the guilty plea colloquy, even though there was
no requirement he do so . Thus Appellant's ineffective assistance of counsel claim
based upon the alleged speedy trial issue is without merit.
Appellant's next claim is that the trial court erred when it overruled his
motions to exclude the crime scene video and the crime scene and autopsy
photographs. In support of this claim, Appellant contends that this evidence was
"irrelevant and prejudicially inflammatory ." Appellant does not allege, however, that this
visual evidence failed to portray the crime scene or the victim's injuries accurately, and
thus his claim of error must fail. '8
Appellant next contends that his guilty plea to murder must be vacated
because he was not informed of the nature of the crime by the trial court and because
the prosecution allegedly failed to establish a factual basis for his guilt of murder . This
unpreserved claim of error is addressed sufficiently hereinabove and is patently
groundless .
Appellant next argues that the robbery, burglary, and sexual abuse
convictions are not reliable because the prosecution allegedly did not provide a factual
basis to prove the requisite elements of the crimes. Kentucky courts have long held that
' 8See e.g., Barnett v. Commonwealth , Ky., 979 S.W .2d 98 (a photograph,
otherwise admissible, does not become inadmissible because it is gruesome and the
crime heinous) .
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a guilty plea precludes a postjudgment challenge to the sufficiency of the evidence .'9
Thus, there was no error.
Appellant's next claim is that the trial court erred by allowing the
prosecution to call the victim's sister to the stand during the penalty phase to describe
the deceased Ms. Madden's lifestyle and daily habits. General information about a
victim's life, however, is allowed to be admitted during the penalty phase, and thus there
was no error. 20
Appellant's next claim is that the trial court erred by admitting allegedly
irrelevant and highly inflammatory evidence during the penalty phase of the trial . He
contends that the only issue before the trial court in the penalty phase was the existence
of two statutory aggravating factors, and that more evidence than was necessary to
prove these two factors was admitted . This claim of error is not preserved yet will be
reviewed under the standard set forth hereinabove, supra, p. 3 .
The heinous brutality committed upon the victim by Appellant by its nature
reveals evidence that is inflammatory . The prosecution, in proving its case in the penalty
phase, was limited by the bare facts of the crime, which are dreadful . Appellant does
not contend that the prosecution manipulated, exaggerated, or in any way presented the
facts in an inappropriate manner or false light. The prosecution "has a right to prove its
case . . . even where the defendant pleads guilty." 2' Moreover, it is imperative that a
(1986).
"See e.g., Taylor v. Commonwealth , Ky.App., 724 S .W.2d 223, 225
2°Templeton v. Commonwealth , Ky., 785 S .W.2d 259, 261 (1990);
McQueen v. Commonwealth , Ky., 669 S.W.2d 519 (1984) ; Campbell v.
Commonwealth , Ky ., 788 S .W.2d 260, 263 (1990).
2' Gall v . Commonwealth , Ky ., 607 S .W .2d 97,107 (1980).
- 1 4-
capital sentencer consider all the evidence bearing upon the defendant's character,
record, and circumstances of his crime ." Thus, there was no error.
Appellant's next claim is that the prosecution improperly stated during
formal sentencing that because Appellant had been charged with attempted escape
while awaiting trial that any period of incarceration would be a "gamble" for the
Commonwealth. The prosecutor made this statement after the defense had made its
argument in mitigation of the death sentence . Appellant contends that this statement
deprived him of his right to a fair and rational sentencing hearing . Appellant, however,
neglects to mention two significant facts. First, the initial mention of the escape charge
came not from the prosecution, but from defense counsel in a motion made prior to the
penalty phase . Second, the judge had already fixed Appellant's penalty at death when
the statement was made . Thus, there was no error.
Appellant's next claim is that he was denied a fair and rational sentencing
hearing because the prosecution was allowed to argue that Appellant showed no
remorse for committing the crimes. The prosecution made this argument after Appellant
had expressed his regret for committing the crimes. Specifically, the prosecutor argued
that Appellant's actions immediately following the commission of the crimes indicated a
lack of remorse . A prosecutor is allowed to urge the judge to reject a defendant's
remorse claim,23 however, and thus there was no error.
Appellant next contends that the trial court erred by refusing to instruct on
all Appellant's tendered mitigating circumstances . Appellant's argument that a judge
22
(1978).
See e.g., Lockett v. Ohio, 438 U .S . 586, 98 S .Ct. 2954, 57 L.Ed.2d 973
23MCQueen v. Scroggv, 99 F .3d 1302 (6th Cir. 1996) .
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must formally instruct himself as if he were a jury is without merit and will not be
addressed further.
Appellant's next claim is that prosecutor's closing comments and the trial
courts comments at final sentencing prevented his mitigating evidence from being
considered . This claim of error lacks merit and thus will not be addressed further.
Appellant next contends that his death sentence must be vacated because
it was not the result of rational sentencing but of passion and prejudice . This claim of
error likewise is devoid of merit and will not be further addressed .
Appellant's next claim is that his convictions for murder, robbery, and
burglary violate the prohibition against double jeopardy. Appellant concedes that a
similar argument was rejected by this Court in Mills v. Commonwealth ," but urges this
Court to revisit the argument and reverse Mills . We decline to do so.
Appellant's next claim is that the trial court should have dismissed the
indictment or precluded imposition of the death penalty because the prosecution
opposed certain defense funding requests yet eventually withdrew its opposition . This
claim of error is without merit and will not be discussed further herein .
Appellant's next claim is that the death penalty is "arbitrary and
disproportionate," both under his particular circumstances and in comparison with similar
cases. Although the defense presented an abundance of mitigating evidence, the
aggravating evidence was substantial . As stated in McQueen v. Scrogav , 15 in a
proportionality review,
24Ky.,
996 S.W.2d 473 (1999) .
2599 F .3d 1302 (6th Cir. 1996) .
-16-
It is not simply whether other people have received the death
penalty for crimes similar to McQueen's; it is also whether
McQueen's death sentence is disproportionate to McQueen's
crime . The death penalty is required by the Constitution to
be an individualized sanction based on both the nature of the
crime and the criminal . McQueen received such an
assessment. That the decision was adverse does not make
it unconstitutional .
Considering the extremely brutal nature of the murder at issue here, it cannot be said
that the penalty Appellant received was inappropriate . Moreover, per KRS
532 .075(3)(c), Appellant's penalty is not excessive or disproportionate to the penalty
imposed in similar cases. The particular means of the killing, that the victim was
stabbed at least twenty-four times, sliced, perforated, carved, bitten, sexually mutilated,
tortured, beaten, had her hair ripped out by the roots, and disembowled are significant to
this determination . As such, there was no error.
Appellant next claims that the death penalty as applied in Kentucky is
discriminatory, arbitrary, and disproportionate . This claim has no factual basis in the
record . As such, further consideration is not warranted .
Appellant next argues that there is insufficient statutory guidance for
imposition of the death penalty. Similar arguments were made and rejected in other
death penalty cases, and we likewise reject the argument here .
Appellant's next claim is that the death penalty should be barred in this
case because of "residual doubt" about his mental state, his understanding of the crimes
to which he pled guilty and the effect of that plea, and the reliability of the plea. These
26
Id . a t 1334 .
See e.g., Foley v . Commonwealth , Ky., 942 S.W .2d 876, 890 (1996);
Haiaht v. Commonwealth , Ky., 938 S.W .2d 243, 253 (1996).
27
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individual issues have already been addressed above and will not be considered further
herein .
Appellant's final claim of error is that the cumulative effect of the alleged
preceding errors requires that his convictions and sentences be set aside . Any error in
this case was purely technical and nonprejudicial . Thus, Appellant's cumulative error
argument does not warrant reversal.
For the foregoing reasons, the judgment of the Floyd Circuit Court is
affirmed .
Lambert, C.J., and Graves, Johnstone, and Wintersheimer, JJ ., concur.
Keller, J ., dissents by separate opinion in which Cooper, J., and Stumbo, J., join.
COUNSEL FOR APPELLANT :
Julie Namkin
John Palombi
Assistant Public Advocates
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lake
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B . Chandler III
Attorney General of Kentucky
David A. Smith
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : FEBRUARY 20, 2003
TO BE PUBLISHED
,,$uyrnnr (gourf of '~Rmfurkg
1997-SC-0842-MR
2001-SC-0803-MR
DONALD HERB JOHNSON
V.
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
NO . 89-CR-0115 and 96-CR-0047
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent from the majority opinion, and I would vacate
Appellant's guilty pleas, reverse the judgment of the Floyd Circuit Court, and
remand these indictments to the trial court for further proceedings because the
record in this case is silent as to whether Appellant knowingly and voluntarily
waived two (2) rights guaranteed him by the United States Constitution -- i .e., his
right to trial by jury and his right against self-incrimination .
More than thirty (30) years ago, in Boykin v. Alabama ,' the United States
Supreme Court reversed Boykin's criminal convictions after finding that "[i]t was
error, plain on the face of the record, for the trial judge to accept petitioner's guilty
1 395 U .S. 238, 89 S .Ct. 1709, 23 L.Ed .2d 274 (1969).
plea without an affirmative showing that it was intelligent and voluntary ."2 In doing so,
the Court succinctly identified what we now know as a defendant's " Boykin rights" and
held that a valid guilty plea requires an affirmative, on-the-record waiver of these
important rights :
Several federal constitutional rights are involved in a
waiver that takes place when a plea of guilty is entered in a
state criminal trial. First, is the privilege against compulsory
self-incrimination guaranteed by the Fifth Amendment and
applicable to the States by reason of the Fourteenth.
Second, is the right to trial by jury. Third is the right to
confront one's accusers . We cannot presume a waiver of
these three important federal rights from a silent record.3
Boykin further explains that the serious consequences of a guilty plea require that the
record reflect the waiver:
What is at stake for an accused facing death or
imprisonment demands the utmost solicitude of which courts
are capable in canvassing the matter with the accused to
makes sure he has a full understanding of what the plea
connotes and of its consequences . When the judge
discharges that function, he leaves a record adequate for
any review that may be later sought and forestalls the spinoff of collateral proceedings that seek to probe murky
memories .
In the case at bar, the trial court did not require Appellant to complete a written
guilty plea form ,5 and thus the only evidence in this record as to Appellant's waiver of
2Id . at 395 U .S. 238, 242, 89 S .Ct. 1709, 1711, 23 L.Ed .2d 274, 279 .
'Id . at 395 U .S . 238, 243, 89 S .Ct. 1709, 1712, 23 L.Ed .2d 274, 279-280
(citations omitted and emphasis added) .
4 Id . at 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712-1713, 23 L .Ed .2d 274, 280
(citations omitted) .
5Although the Rules of Criminal Procedure do not require a defendant to file a
written petition to enter a guilty plea, our rules do require that certain Boykin rights be
Continued on next page . . . .
his rights appears in the transcript of the guilty plea colloquy between the trial court and
Appellant . During that colloquy, the trial court made an abbreviated inquiry into
Appellant's understanding of the Constitutional rights that he was waiving with his plea
of guilty:
Trial Court :
Mr. Johnson, your counsel has indicated to the
Court that you wish to change your previously
entered not guilty pleas on the indictments
which have been issued against you. I want to
inform you, Sir, at this time that if you do in fact
change your pleas that you will be waiving
certain rights guaranteed to you by the
Constitution . Among the rights that you would
be waiving, Sir, would be the right to a speedy
and public trial; at which time you would be
represented by counsel and counsel would be
appointed for you if you could not afford to do
so ; and the right to require the Commonwealth
to prove your guilt beyond a reasonable doubt.
Do you understand that you would be waiving
that right?
Defendant :
Yes, Sir.
Trial Court :
Do you likewise understand that you would be
waiving the right to confront and cross-examine
any witnesses against you?
Defendant :
Yeah .
Trial Court:
Do you further understand that you would be
waiving the right to present evidence in your
own defense, including the right to subpoena
witnesses at no cost to you if you could not
afford to do so?
waived in writing, see RCr 9 .26(1) ("Cases required to be tried by jury shall be so tried
unless the defendant waives a jury trial in writing with the approval of the court and the
consent of the Commonwealth," (emphasis added)), and written Motions to Enter Guilty
Pleas are standard practice in most courts, see AOC Form No. 491 . Perhaps the time
has come to incorporate prevailing practice into our Rules of Criminal Procedure.
Defendant :
Yes .
Although, in subsequent proceedings in this matter, the trial court indicated its
belief that it "went a little . . . farther than what was necessary in the taking of Mr.
Johnson's plea," and suggested that it "went into excessive detail with [Mr. Johnson]
concerning the entry of [his] plea . . . [and] his Constitutional rights to a speedy trial and
other Constitutional rights," it appears that the plea colloquy covered just one (1) of the
three (3) Boykin rights and failed even to mention the words "self-incrimination" or
"jury." Accordingly, the record here is silent as to whether Appellant waived his right to
trial by jury6 or his right against self-incrimination, and the conspicuous silence as to
these Boykin rights creates an invalid guilty plea .' Appellant's guilty plea may have
61 realize that the trial court mentioned "the right to a speedy and public trial,"
during the plea colloquy, but this phrasing conspicuously fails to address Appellant's
waiver of his right to a 'lgyr trial . And, I am also aware that the previous appeal from this
indictment in Commonwealth v. Johnson, Ky ., 910 S .W.2d 229 (1995) illustrates that the
issue of whether a jury or the trial judge would decide Appellant's punishment was
heavily litigated in this case. However, I would point out that although the motions,
briefs, and other documents filed in the trial court and in this Court inevitably implicated
Appellant's right to a jury trial, those pleadings were filed by Appellant's counsel, not
Appellant himself, and the right to trial by jury is personal to the defendant. If the only
Bo kin right omitted during the trial court's plea colloquy was Appellant's right to trial by
jury, I would likely vote to remand this case to the trial court for an evidentiary hearing to
determine whether Appellant was cognizant of his right to trial by ju7 and consented to
waiver of that right, see United States v. Garrett , 727 F .2d 1003 (11 t Cir. 1984) . Here,
however, the record is also silent as to Appellant's waiver of his right against selfincrimination, and that error, standing alone, requires reversal .
7The inadequacy of the guilty plea colloquy in this case suggests to me that this
Court should consider adoption of a new Rule of Criminal Procedure requiring a trial
court to advise a defendant of the defendant's Boykin rights and to make a finding that
the defendant has waived each of those rights before accepting a plea of guilty . Such
a rule would constitute a "bookend" to RCr 3 .05, which requires courts to caution the
accused at his or her initial appearance before the court and to advise him or her of
certain rights, and should help to avoid future omissions such as the ones that occurred
here.
been knowing and voluntary, but this Court cannot discern whether it was from the
record before us . As a reviewing court, we have no way of knowing from a silent record
whether Appellant knowingly and voluntarily waived his Boykin rights by entering a
guilty plea, and I would thus reverse the judgment of the Floyd Circuit Court, vacate
Appellant's guilty pleas, and remand these indictments to the trial court for further
proceedings .
Cooper and Stumbo, JJ ., join this dissenting opinion .
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