FRED FURNISH V COMMONWEALTH OF KENTUCKY
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*uVreme Tourt of ]KentuckV
1999-SC-0676-MR
FRED FURNISH
V
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
CRIMINAL NO. 98-CR-00384
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
Affirming, In Part, and Reversing and Remanding . In Part
Appellant, Fred Furnish, was convicted in the Kenton Circuit Court of murder and
was sentenced to death . In addition, Appellant received enhanced sentences of thirty
years for first-degree burglary, life imprisonment for first-degree robbery, ten years for
theft by unlawful taking over $300, and ten years for obtaining money by fraud, by virtue
of his being found to be a first-degree persistent felony offender. He appeals to this
Court as a matter of right.
On the afternoon of Thursday June 25, 1998, 66-year-old Jean Williamson was
discovered dead in her home . Williamson's body was found in a kneeling position,
leaning over the bathtub, in the master bathroom . Williamson was fully clothed and
blood was found in the master bedroom, indicating that her body had been moved into
the bathroom after death . An autopsy revealed the cause of death to be strangulation,
and a washcloth is believed to have been the murder weapon . A search of the crime
scene revealed no forced entry and no identifiable fingerprints . Williamson's bedroom,
as well as the bedroom of her daughter, Gail, were ransacked and jewelry and credit
cards were stolen . On August 14, 1998, Appellant was indicted in the Kenton Circuit
Court for murder, first-degree robbery, burglary, receiving goods and services by fraud,
theft by unlawful taking, and for being a first-degree persistent felony offender .
At trial, defense counsel conceded that Appellant was a "thief and a burglar,"
and that he had been in the Williamson residence on the day of the murder, but denied
that Appellant murdered Williamson . It was the defense theory that Appellant and
another person had intended to burglarize the Williamson residence but that this other
"mystery person" is the one who murdered Williamson .
The Commonwealth introduced evidence that Appellant, who was employed by
Kiwi Carpet Cleaners, had been in the Williamson residence on May 19th, approximately
one month before the murder . In fact, the indictment for theft by unlawful taking over
$300 related to jewelry that Appellant stole from the Williamson residence while he was
there cleaning the carpets on May 19th . In addition, on the day of the murder, several
neighbors observed a man, later identified as Appellant, walking near the Williamson
residence . Police recovered Williamson's jewelry from numerous acquaintances of
Appellant . Further, video surveillance tapes from several area banks depicted
Appellant using Williamson's ATM card to obtain cash in the hours following her death .
On appeal, Appellant raises numerous allegations of error, many of which are
unpreserved . For convenience, we have categorized these issues into five sections .
To the extent that any error is unpreserved, it has been reviewed in accordance with the
standard set forth in Cosby v. Commonwealth , Ky., 776 S.W.2d 367 (1989), cert.
denied , 493 U .S. 1063 (1989), overruled , in art, St. Clair v. Roark, Ky., 10 S.W.3d 482
(1999), i.e., whether there was a reasonable justification or explanation for defense
counsel's failure to object, and whether the totality of the circumstances is persuasive
either that the defendant would not have been found guilty of a capital offense or that
he would not have received the death sentence but for the unpreserved error. See also
Tamme v. Commonwealth , Ky., 973 S.W.2d 13 (1998), cert. denied , 525 U .S . 1153
(1999) .
After reviewing the record and hearing oral argument, we affirm Appellant's
convictions . However, because Appellant was erroneously denied an instruction on life
without the benefit of probation or parole, we remand this matter to the Kenton Circuit
Court for a new penalty phase in accordance with this opinion . As such, we need not
address those issues pertaining to the penalty phase which are not likely to reoccur on
remand .
I . PRETRIAL ISSUES
1 . Indictment
Appellant argues that the grand jury indictment was defective because it failed to
state the culpable mens rea for the charges of murder, receiving goods and services by
fraud, and theft by unlawful taking over $300 . We have repeatedly held that an
indictment is sufficient if it fairly informs the defendant of the nature of the crime with
which he is charged. Stephenson v. Commonwealth, Ky., 982 S .W.2d 200 (1998) ;
Thomas v . Commonwealth , Ky ., 931 S .W.2d 446 (1996) ; Wylie v. Commonwealth , Ky.,
556 S .W.2d 1 (1977) . At his arraignment, Appellant stated that he understood the
charges contained in the indictment . At no point did Appellant allege that notice was
insufficient. Reversal is not warranted on this issue.
Appellant also contends that because the Grand Jury failed to include
aggravating circumstances in the murder indictment the prosecution was precluded
from seeking the death penalty. We disagree . The indictment, which was returned on
August 14, 1998, clearly charged Appellant with "Murder, a capital offense, when he
caused the death of Jean Williamson, by strangling her to death, in violation of KRS
507.020 . . . ." Moreover, on the same date that the indictment was returned, the
Commonwealth filed a formal "Notice of Aggravating Circumstances," which stated that
the case would be prosecuted as a capital case based on the aggravating
circumstances of the murder being committed while Appellant was engaged in the
commission of first-degree robbery and first-degree burglary. At no time prior to this
appeal did defense counsel complain of insufficient notice and Appellant may not claim
such at this time.
2. Denial of Continuance
Appellant argues that he was prejudiced by the trial court's refusal to grant a 35day continuance . Appellant alleges that the trial court was more concerned with judicial
economy and Appellant's trial interfering with other matters on the docket than with
ensuring that Appellant received "meaningful access to justice ." Appellant contends
that this denial of a continuance violated his right to both federal and state due process
standards by failing to provide him with the opportunity for complete evaluation,
preparation, and presentation of a defense . Hunter v. Commonwealth, Ky., 869 S .W .2d
719, 722-24 (1994) ; see also Ake v. Oklahoma , 470 U .S . 68, 105 S.Ct. 1087, 84
L .Ed.2d 53 (1985) . The trial court's extensive order demonstrates that this issue lacks
merit .
Appellant was indicted on August 24, 1998, and the trial court initially scheduled
a trial date of January 26, 1999. In December, defense counsel moved to continue the
trial until June 1999, to allow more time for preparation . Following a hearing, the trial
court granted a continuance until April 13, 1999. Throughout numerous pretrial
hearings, counsel was reminded that the April trial date was "firm."
On March 31, 1999, a hearing was held concerning the Commonwealth's intent
to introduce KRE 404(b) evidence . At the close of the hearing, the Court afforded the
parties an opportunity to file supplemental authority prior to 2:00 p.m. on April
1St .
This
extension of time was a result of defense counsel's assertion that certain materials
needed to be presented ex parte to avoid revealing confidential defense matters to the
Commonwealth . The record indicates that after defense counsel failed to file any
additional materials, counsel's office was called and the trial court was informed that the
defense had decided not to file any supplemental pleadings .
However, on April 5th , the defense filed a "Supplemental Affidavit in Support of
Motion to Continue ." The affidavit did not relate to any confidential matters as
previously represented by defense counsel, but rather reasserted counsel's "bald
assertions" that the defense had been too busy to prepare for trial and needed
additional time .
On April 7, 1999, the trial court entered an 18-page order detailing the procedural
history of the case and extensively addressing the continuance issue. The Court noted
that although 35 days was, facially, a minimal extension, it believed defense counsel
was aware that the request was not realistic, in that on the day counsel sought to have
the trial begin, eight other jury matters were scheduled, most of which involved
representation by defense counsel's own office; that the courthouse was scheduled to
move in June; that another death penalty case scheduled for September 1999 would
likely delay the trial in this case until late Fall 1999 or Winter 2000 ; and that, in fact, if
Appellant's trial was scheduled during the same quarterly jury panel as the other death
penalty case, defense counsel would object if one panel was utilized for two death
penalty proceedings . Thus, the trial court ruled the inconvenience to the litigants,
witnesses, counsel and the court was significant.
Furthermore, the trial court acknowledged that although there had only been one
prior continuance, a ten-month period to prepare a death penalty case was sufficient
and additional continuances should not have been necessary. The trial court opined
that perhaps the public defender's office was not engaging in an efficient use of time.
The trial court further stated that the record was devoid of any evidence
indicating the delay was caused by Appellant himself and noted that Appellant was
represented by three competent attorneys . Consequently, the trial court concluded that
defense counsel's request for additional time to conduct independent testing of
fingerprint evidence and to retain additional expert witnesses weighed in favor of
granting a continuance to avoid any prejudice to Appellant . Accordingly, the trial court
granted a 14-day continuance .
Snodgrass v. Commonwealth , Ky., 814 S.W.2d 579 (1991), sets forth the seven
factors to be considered by the trial court in ruling upon a motion for continuance :
(1)
length of delay sought ; (2) previous continuances ; (3) inconvenience to litigants,
witnesses, counsel, and the court ; (4) whether the delay is purposeful or is caused by
the accused; (5) availability of other competent counsel, if at issue; (6) complexity of the
case ; and (7) whether denying the continuance would lead to identifiable prejudice . As
noted above, the trial court considered each factor.
The trial court's order clearly reveals that it exhaustively analyzed the
circumstances presented and determined that defense counsel's request was "more for
the appellate record" and contained primarily bald assertions that counsel needed more
time . Even at this point in time, Appellant is unable to set forth anything specific that
would have been done had he received the 35-day continuance . See Foley v.
Commonwealth, Ky., 953 S .W .2d 924, 937 (1997), cert. denied, 523 U .S. 1053 (1998) .
The trial court has broad discretion in granting or denying a motion for continuance, and
that discretion was not abused in this case . RCr 9 .04.
3. Conflict of Interest
In a related issue, Appellant alleges that the trial court's April 7th order denying
his request for a 35-day continuance created serious conflict of interest questions
between Appellant and defense counsel .
In a diatribe on Kentucky's Code of Professional Responsibility, Appellant claims
that the trial court implied defense counsel was not providing adequate representation .
After receiving the order, defense counsel filed a motion to withdraw on the grounds
that such was mandated KRPC 1 .16(a), since a conflict of interest existed between
counsel and Appellant . On appeal, Appellant now opines that he was entitled to some
form of remedial relief. Essentially, Appellant argues that the trial court should have
recused itself from a hearing to determine whether its order did, in fact, create a conflict
and, if so, what remedial action was required . We find this argument to border on
frivolous .
While the trial court, in its April 7th order, opined that defense counsel was aware
that a 35-day continuance was unrealistic and was requested more for the benefit of
the appellate record, the trial court further stated, "Defendant has three skilled,
experienced and competent lawyers who are vigorous in their representation of him ."
At no time did the trial court accuse defense counsel of "violations of the ethical duties
of representation" as is alleged in Appellant's brief. Furthermore, we are of the opinion
that although the trial court should have refrained from expounding on its perceived
deficiencies of the public defender system, such comments certainly did not rise to the
level of creating a conflict of interest between defense counsel and Appellant, nor did
they warrant recusal .
4 . Judicial Bias
Appellant argues that the trial judge should have recused prior to the sentencing
hearing because he had already decided to sentence Appellant to death . Appellant's
argument is based upon the following statement by the court:
With the verdict, it's my understanding by statute or rule with the - with the
sentence that's been recommended by the jury, the Court must do a
written report to the Supreme Court, in addition to the formal sentencing
document. So, I need a PSI to complete that report, because there's a lot
of information that goes in there that's not been presented in this trial .
Appellant contends that the above language indicates that the trial court did not
consider any additional information and merely "rubber stamped" the jury's
recommendation of death . As this case is being remanded for a new penalty phase, we
need not address this issue other than to conclude that we do not find any indication
that the trial court was biased against Appellant .
II . JUROR ISSUES
1 . Limitations on Voir Dire
Appellant argues that he was denied the opportunity to voir dire potential jurors
on the full range of penalties. Specifically, defense counsel sought to elicit from
potential jurors whether they could impose a minimum sentence of twenty years for
murder . At a bench conference, the trial court stated :
[Y]ou can identify clearly . . . . the four possible range of penalties, term of
years imprisonment not less than 20, term of life in prison, term of life in
prison without parole for at least 25 years, and death. Clearly can be
identified, "Can you consider the full range of penalties?" As a follow-up
question, as Mr. Spicer was attempting to do yesterday, I will not allow,
"Can you consider 20 years?" I will allow, "Can you consider a penalty of
20 years to the most severe penalty of death?" Because that
encompasses the full range of penalties . Twenty years is not an option,
by itself . That option is . . . not less than 20 years . Which means 20
years to life.
And I want to make it clear for the record, there is not an option, as a fifth
alternative, to pick 20 years. That misleads the jury. There is an option to
pick a term of not less than 20 years, or 20 years to life . Acknowledging
that under the instructions of the court, based upon the proof and the
facts of this case, the jury very well could retire to the jury room, and if
they find Mr. Furnish guilty, sentence him to 20 years . But that will be a
choice of 20 years to life, that will not be a fifth option of 20 years only.
Counsel is entitled to question jurors on whether they "could consider the entire
range of penalties in the event a guilty verdict was returned ." Anderson v .
Commonwealth , Ky., 864 S.W.2d 909, 911 (1993) ; see also Springer v .
Commonwealth , Ky., 998 S.W.2d 439 (1999) .
Contrary to Appellant's assertion, this
case is not analogous to Fugate v. Commonwealth , Ky., 993 S.W.2d 931, 938 (1999),
wherein the trial court "directed the defendant to mention only the terms `minimum and
maximum' without mentioning any specific number of years." Here, defense counsel
was not impeded from inquiring whether potential jurors could consider the full range of
penalties, including a term of not less than twenty years. No error occurred .
Appellant also claims
prejudicial error because he was not permitted to question
the panel on drug addiction as a mitigating circumstance and the presumption of
innocence, as well as what he perceives as an incorrect definition of "substantial ."
Suffice it to say, we have reviewed these claims and have determined that the trial court
properly curtailed questions that were not proper and only confused the panel.
The remainder of Appellant's complaints concern his belief that the prosecutor
was given a greater preference and latitude during voir dire questioning . The record
refutes such a claim .
The extent of direct questioning by counsel during voir dire is a
matter within the discretion of the trial court.
Grooms v. Commonwealth , Ky., 756
S .W .2d 131, 134 (1988) . The trial court correctly limited defense counsel's questioning
when it became clear that jurors found the inquiry confusing . Both parties were able to
thoroughly voir dire the panel and the trial court stated that it looked to the "totality of
the answers" in ruling on the challenges for cause.
2 . Excusals for Cause
The decision whether to excuse a juror for cause is a matter within the sound
discretion of the trial court . If the trial court abuses its discretion by improperly failing to
sustain a challenge for cause, it is reversible error because the defendant had to use a
peremptory challenge and was thereby deprived of its use otherwise . Thomas v.
Commonwealth , Ky., 864 S .W.2d 252, 259 (1993), cert. denied , 510 U .S . 1177 (1994) .
While it is unnecessary to discuss Appellant's arguments relating to those jurors he
believes should have been excused due to their inability to consider the full range of
penalties, he also alleges that several jurors should have been excused due to their
connection to the charged crimes or exposure to publicity .
Juror Griffith was an employee of PNC Bank, although at a different branch than
the one where Appellant used Williamson's ATM card . Juror Griffith commented that
she was familiar with the type of video system used at PNC banks and that she had on
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occasion been responsible for changing the videotape at her branch. Griffith also
stated that she was acquainted with the Commonwealth's witness, Fred Mattress, a
PNC Bank employee who testified regarding the bank's video camera system .
However, Griffith noted that she worked at a different branch than Mattress and had not
heard any details of the case . Griffith stated that she could base her decision on the
evidence she heard in the courtroom.
Although defense counsel did not move to excuse Juror Griffith, Appellant now
argues that the trial court should have sua s onte removed her for cause . We
disagree . We do not find Juror Griffith's knowledge of the video system particularly
relevant since there was no issue raised that the cameras that captured Appellant using
Williamson's ATM card were malfunctioning or somehow inaccurate . Further, neither
Juror Griffith's acquaintance with Mattress nor her employment with PNC warranted her
excusal for cause . Compare Marsch v. Commonwealth, Ky., 743 S .W.2d 830 (1987) .
Juror Griffith clearly expressed that she would consider only the law and facts of the
case in making her decision .
Jurors Brosmore and Hofacre were likewise not required to be excused for cause
after stating they were aware of publicity following the crimes . "The fact that a
prospective juror may have some knowledge of a case does not establish objective
bias." Fol" , supra , at 932 . In McQueen v. Scrogay, 99 F .3d 1302, 1319-20 (6t' Cir.
1997), cert. denied sub nom , McQueen v. Parker, 520 U .S . 1257 (1997), the Sixth
Circuit Court of Appeals stated:
There is no per se rule that mere exposure to media reports about a case
merits exclusion of a juror. To the contrary, in order to merit
disqualification of a juror, the media reports must engender a
predisposition or bias that cannot be put aside, requiring the juror to
decide a case one way or the other . . . . There is no constitutional
prohibition against jurors simply knowing the parties involved or having
knowledge of the case . The Constitution does not require ignorant or
uninformed jurors; it requires impartial jurors . While it may be sound trial
strategy for an attorney to exclude anyone with knowledge of the facts or
the parties, such a result is not mandated by the Constitution .
All of the challenged jurors in this case stated that they could be impartial and
base a decision on the facts and evidence presented . Disqualification was not
warranted.
3 . Peremptory Challenges
Appellant's argument that the trial court's allocation of peremptory strikes was
erroneous is without merit . RCr 9.40(2) provides that if alternate jurors are to be
seated, the number of challenges for "each side and each defendant shall be increased
by one ." Contrary to Appellant's interpretation, in a case where there is only one
defendant, such as is present here, the defense "side" and the "defendant" are one and
the same . Sr)rinaer v. Commonwealth , supra, at 444 . The trial court properly ruled that
Appellant was entitled to one, not two, additional peremptory strikes .
Nor are we persuaded by Appellant's proposition that defendants should be
given additional peremptory strikes to "offset the [prosecution's] tremendous advantage
of knowing more about panel members and being an elected official trying a case with
jurors selected from the registered voters list ." While certainly novel, this notion is
utterly without any basis in our case law or criminal rules on the grounds asserted . The
decision whether to grant additional peremptories is within the discretion of the trial
court and will not be disturbed absent an abuse of that discretion . Bowling v.
Commonwealth , Ky., 942 S.W.2d 293, 308 (1997), cert . denied , 522 U .S. 986 (1997) .
Ill. EVIDENTIARY ISSUES
1 . Purchas e and Use of Crack Cocaine
Prior to trial, the Commonwealth filed a notice pursuant to KRE 404(c) of its
intent to introduce evidence pertaining to Appellant's purchase and use of crack
cocaine during the evening of June 25, 1998, and the morning of June 26, 1998 . The
Commonwealth stated that evidence of Appellant's purchase of drugs with money
obtained through the use of Williamson's stolen ATM card demonstrated motive and
was "interwoven with other evidence essential to the case in that the separation of this
evidence cannot be accomplished without serious adverse effect to Plaintiff." Over
defense objection, the trial court ultimately ruled that while evidence of Appellant's
cocaine use prior to the offenses was not admissible, evidence of Appellant's actions
"surrounding his commission of the offense of receiving goods and services obtained by
fraud on June 25-26" was intertwined with facts of the other crimes and that the
probative value outweighed any prejudicial effect . We agree .
Appellant contends that the evidence of his crack cocaine purchase and use was
not relevant because defense counsel admitted that Appellant had committed all of the
crimes except murder . Notwithstanding, the trial court properly held that the evidence
was inextricably intertwined so as to be admissible under KRE 404(b) . Appellant is not
entitled to stipulate away otherwise competent evidence simply because he does not
want the jury to hear such . Barnett v. Commonwealth, Ky., 979 S.W.2d 98 (1998) ;
Chumbler v. Commonwealth , Ky., 905 S.W .2d 488 (1995) . The evidence of Appellant's
use of crack cocaine showed that he used Williamson's ATM card to obtain money to
purchase the drugs . Clearly, such evidence is intertwined with the evidence pertaining
to the other charges in this case . Cf Funk v. Commonwealth, Ky., 842 S .W .2d 476
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(1992) . No error occurred .
2. Prior theft
Pursuant to KRE 404(b), the Commonwealth introduced the testimony of Betty
Geiman, who testified that Appellant had cleaned her carpets on April 17, 1998, while
he was employed with Kiwi Carpet Cleaning . On June 12, 1998, Appellant returned to
Geiman's home on a bicycle and requested to inspect her carpets. Geiman testified
that she was unaware Appellant was no longer employed by Kiwi and allowed him to
enter her home when she noticed that his bike had a flat tire . After looking at the
carpets, Geiman left Appellant alone in the kitchen to make several phone calls to
ostensibly get help with his bicycle . At some point after Appellant left, Geiman went to
retrieve her purse from the kitchen and realized that her wallet was missing . On crossexamination, Geiman conceded that she did not actually see Appellant take her wallet
nor had she used her wallet for two days prior to realizing it was missing .
Defense counsel did not object to Geiman's testimony and Appellant concedes
that this issue is not preserved . However, in cases in which the death penalty has been
imposed, a two part inquiry is made to determine whether there is a reasonable
justification or explanation for counsel's failure to object, and, if there is no reasonable
explanation, whether the unpreserved error was prejudicial . Sanders v.
Commonwealth , Ky., 801 S.W.2d 665, 668 (1990), cert. denied , 502 U .S . 831 (1991)
(citing Cosby , supra ).
We are of the opinion that it was reasonable trial strategy not to object to
Geiman's testimony because it supported defense counsel's opening proposition that
while Appellant was a thief, he was not a murderer. Geiman was not injured in any
manner nor was she physically threatened by Appellant . The allegation was that he
14
simply stole her wallet. As such, we do not believe her testimony was prejudicial to
Appellant . Reversal is not warranted .
3. Comment on pre-arrest silence
On June 28, 1998, a search warrant was obtained for the residence of Dawn
Godsey, Appellant's cousin, where Appellant had been staying . Appellant was present
when officers arrived and he was handcuffed for the protection of the officers .
Appellant was specifically told he was not under arrest . Appellant was taken to a
Kenton County Police Department conference room pending execution of the warrants .
While there, he told various officers "I don't know what you're talking about" and "I got
nothing else to say" when asked about Williamson's murder .
At trial, Detective Denham repeated Appellant's statements, as did the
prosecutor during closing arguments . Appellant contends that as a result, he was
denied his constitutional right to remain silent and that his statements were not
admissible since he was not Mirandized prior to making them . Miranda v. Arizona , 384
U.S . 436, 86 S .Ct. 1602, 16 L.Ed .2d 694 (1966) .
We need not engage in a lengthy constitutional analysis of whether Appellant
was or was not in custody and whether his Miranda rights were, in fact, violated . A
review of Appellant's statements lead us to the inescapable conclusion that he did not
remain silent, but rather denied any knowledge of the crimes . At no point did Appellant
state that he did not wish to talk to the officers or that he desired questioning to cease
until he could speak with an attorney . Appellant quite simply denied his involvement .
As such, we fail to see how Appellant's constitutional rights were violated by Officer
Denham's testimony .
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4 . Criminal History
The Commonwealth introduced testimony of three police officers concerning
their previous interactions with Appellant . Police Chief Fred Anderson testified about
his general familiarity with Appellant . Detective Embry stated that he had obtained a
photograph of Appellant for identification purposes from the Hamilton County Detention
Center. Finally, Detective Wallace testified that during a search of Dawn Godsey's
home, where Appellant was known to frequently stay, he discovered a Halloween mask
and a pistol in the refrigerator. Again, Appellant concedes that no objection was raised
to the testimony of the officers .
Appellant contends that the officers' testimony was violative of KRE 404 in that it
served no other purpose than to imply that he had a criminal history and to show
character in conformity therewith. We disagree .
Nothing in the officers' testimony suggested that their prior contacts with
Appellant were criminal in nature . Chief Anderson simply stated that he had known
Appellant from "probably in the early to mid 80's" and that he was "generally familiar
with him ." Anderson's association with Appellant could have occurred in a multitude of
situations . Nor do we find Detective Embry's testimony about the photograph of
Appellant reversible error. At no point did Detective Embry inform the jury that it was a
mug shot or comment on Appellant's charges in Hamilton County . Finally, we fail to
perceive the prejudice of Wallace's reference to the pistol and Halloween mask.
Possession of either, in and of itself, is not a bad act or evidence of a crime .
Furthermore, even Detective Wallace stated that while finding the items in the
refrigerator was "out of the ordinary," they "really meant nothing to this case ."
We conclude that counsel made a strategic decision not to object and possibly
16
create the inference that Appellant had a problematic history with police .
Notwithstanding, we find that Appellant was not prejudiced by the evidence and the
outcome of the trial would not have been different in its absence.
5 . Evidence Pertaining to Use of Gloves
The Commonwealth theorized that Appellant wore surgical gloves during the
commission of the crimes, thus accounting for the lack of fingerprints police found in the
Williamson residence . In fact, police recovered a box of surgical gloves from Dawn
Godsey's residence . The day before trial, defense counsel learned that some types of
surgical gloves are lubricated with cornstarch and that the Commonwealth had
conducted testing on a box of gloves similar to those found in Godsey's residence . The
Commonwealth sought to introduce a photograph of the gloves found in Godsey's
residence, a laboratory report indicating that cornstarch was found in Williamson's car
and on her wallet, and photographs of Williamson's car depicting the white smears.
Thereafter, the defense moved to exclude any evidence relating to cornstarch .
Due to the lateness of the Commonwealth's tests, the trial court ruled that the
report was inadmissible, and that the prosecution was prohibited from presenting
expert testimony concerning the use of cornstarch to lubricate surgical gloves .
However, the court ruled that the photograph of the gloves and the photograph of
Williamson's car depicting the white residue were admissible . Appellant thereafter
moved to exclude the photographs on the grounds that no testing had been conducted
on the actual gloves found in Godsey's residence, and that no other evidence
connected those particular gloves to the crime scene . The motion was denied . At trial,
Detective Rolfson testified that he processed the crime scene for fingerprints but found
none that were identifiable . He further informed the jury that he found a "white
17
substance" smeared on the console of Williamson's car and on her wallet.
Appellant argues that photographs were improperly admitted because there was
no evidence that he wore gloves during the commission of the crimes and further, there
was no evidence that the gloves found in Godsey's residence had any connection to the
crime scene . We find no error.
The prosecution's theory was that the absence of any identifiable fingerprints
was reasonably attributed to the use of gloves . Appellant had access to such gloves
and, in fact, residue found in Williamson's car and on her wallet was similar to that
found on surgical gloves . Certainly, the testimony of Detective Rolfson along with the
fact that Appellant had access to surgical gloves was relevant circumstantial evidence .
Although the Commonwealth was properly precluded from making any reference to
cornstarch, the jury could still infer that the lack of fingerprints and the presence of a
white substance smeared on areas at the crime scene indicated the use of gloves
during commission of the crimes.
Nor do we find the prosecutor's reference to the gloves during closing arguments
erroneous . During closing argument a prosecutor may draw reasonable inferences and
propound his explanation of the evidence and why it supports a finding of guilt.
Tamme, supra at 39 .
6 . Alleged Exculpatory Evidence
On May 11, 1999, two weeks into Appellant's trial, while defense counsel was
reviewing notes that Detective Rolfson had used during his testimony, counsel
discovered an e-mail that was first sent to police on July 5, 1998 . The e-mail, sent by
an individual named Art McNeil, stated that McNeil had heard another person "called
Dewey" had provided Appellant transportation to the Williamson's house on June 25th
18
and had possibly participated in the crimes. Defense counsel immediately moved for a
continuance, as well as for exclusion of the death penalty as a sanction for the
nondisclosure by the Commonwealth . The trial court granted the continuance but
denied the motion for sanctions .
Later the same day, a further hearing revealed that a Dewey Jump had been
previously interviewed by police and had an alibi . In fact, Jump was the boyfriend of
Dawn Godsey. Godsey testified that she and Jump had gone to Warsaw, Kentucky on
Wednesday, June 24th, and had not returned until 4:30-5 :00 p .m . the following day,
after the crimes had been committed . The Commonwealth defended that the McNeil
e-mail was not exculpatory evidence but merely rumor and speculation . The
Commonwealth noted that all statements from Jump and Godsey had previously been
provided to the defense . There is some allegation that defense counsel was already
aware of the e-mail as well, however nothing in the record supports such a conclusion .
The following day, defense counsel informed the trial court that they had
investigated the matter and that additional time was unnecessary. The trial thereafter
continued .
We cannot agree with Appellant that the information contained in the e-mail was
exculpatory or that he was prejudiced by the Commonwealth's alleged failure to
disclose such . Godsey was a defense witness and defense counsel had the
opportunity to thoroughly question her about Jump's alibi . Furthermore, no steps were
even taken to discover who Art McNeil was, and whether his information was credible .
In the absence of any supporting evidence, the e-mail was nothing more than
unsubstantiated rumor. The trial court granted Appellant's request for a continuance
and we conclude that no further relief was warranted .
19
7. Humanization of Victim
There was no error in permitting Ed Strohmeier, a close friend of Williamson, to
testify about their growing relationship, Williamson's love for her children and
grandchildren, and about her hobbies and charity work.
A murder victim can be identified as more than a naked statistic, and
statements identifying the victims as individual human beings with
personalties and activities does not unduly prejudice the defendant or
inflame the jury. Just as the jury visually observed the appellant in the
courtroom, the jury may receive an adequate word description of the
victim as long as the victim is not glorified or enlarged .
Bowling, supra, at 302-303 ; see also Hodge v. Commonwealth , Ky., 17 S .W.3d 824,
847 (2000), cert. denied , 531 U .S: 1018 (2000) . The evidence was not unduly
prejudicial .
III. INSTRUCTIONS
1 . Life Without the Benefit of Probation or Parole
On August 14, 1998, Appellant was indicted for conduct which occurred in May
and June of 1998 . In July 1998, the provisions of HB 455 took effect, authorizing, in
part, a sentence of life without the benefit of probation or parole (LWOP) in capital
cases. Prior to trial, Appellant moved the trial court to apply the provisions of HB 455.
The trial court ruled that the decision whether to apply the new sentencing provisions
contained in HB 455 was controlled by KRS 446 .110, which permits a newly enacted
penalty to be applied retroactively if it is mitigating . However, in denying Appellant's
motion, the trial court concluded that the old penalties, including a sentence of death,
were not "clearly mitigated" by the new penalties.
This Court subsequently held to the contrary in Commonwealth v. Phon, Ky., 17
S .W .3d 106 (2000), wherein we specifically stated that life without parole was, in fact, a
20
lesser penalty than death and could be lawfully imposed for a capital offense committed
prior to the effective date of the statute "upon the unqualified consent of the defendant ."
Id . a t 108 .
On appeal, the Commonwealth argues that although the trial court's rationale
was erroneous, Appellant was not entitled to receive the life without parole instruction
because he failed to provide the necessary unqualified consent. It is the
Commonwealth's position that "[g]iven the constitutional implications . . . a request for
the application of HB 455, and specifically the LWOP instruction, should be
accompanied by a knowing, intelligent, and voluntary waiver by Appellant ."
The language of KRS 446.110 provides, in part, "if any penalty, forfeiture or
punishment is mitigated by any provision of the new law, such provision may, by the
consent of the party affected, be applied to any judgment pronounced after the new law
takes effect." And as previously stated, we held in Phon , supra , that KRS 446.110
authorizes retroactive application of life without parole, with a defendant's consent,
since life without parole mitigates the death penalty . Id at 107 .
.
Appellant's motion requesting an instruction on life without parole stated:
Obviously, the defendant could assert his right to be free from ex post
facto application of an arguably more punitive law. He chooses to waive
that right . Ultimately, the new KRS 532.025 does not increase the
potential maximum punishment, for it is still death . It merely adds another
alternative among the non-death options presented to this jury.
In fact, defense counsel informed the trial court that Appellant was "willing to make a
knowing, intelligent and voluntarily (sic) waiver of any right to attack this statute as a
violation of the ex post facto prohibition of the U.S. and Kentucky Constitutions ." Yet,
the Commonwealth argues that Appellant did not provide sufficient consent .
We fail to discern what more Appellant could have done to make his consent any
21
more clear. The Commonwealth alluded during oral argument that Appellant himself,
not trial counsel, had to express his unqualified consent . Such is a ludicrous
proposition . Without question, Appellant's motion satisfied the "unqualified consent"
requirement we established in Phon , supra , and he was entitled to receive an
instruction on life without parole . As such, this case must be remanded for a new
penalty phase.
2. Duplicitous aggravating circumstances
During the penalty phase, the trial court instructed the jury on three aggravating
circumstances :
(a)The offense of Murder was committed while the Defendant was
engaged in the comission of Robbery in the First Degree ; OR (b) The
offense of Murder was committed while the Defendant was engaged in the
comission of Burglary in the First Degree ; OR (c) The offense of Murder
was committed for the purpose of receiving money, or any other thing of
monetary value, or for other profit.
Appellant objected to the third aggravating circumstance on the basis that it was
duplicative of the first two . Appellant argues that the improper cumulation of
aggravating circumstances caused the jury to give undue weight to the mere number of
aggravators and constitutes double jeopardy . We disagree .
Aggravating circumstances are not criminal offenses subject to double jeopardy
considerations . Furthermore, the jury was only required to find that the murder was
committed under one aggravating circumstance . The first two aggravators were clearly
proper. Error, if any, in instructing on the third was harmless and did not prejudice
Appellant . RCr 9 .24.
3. Mitigating Circumstances
Appellant was not entitled to a complicity or accomplice instruction as mitigation .
22
KRS 532.025(2)(b)(5) provides, "[t]he defendant was an accomplice in a capital offense
committed by another person and his participation in the capital offense was relatively
minor." In denying Appellant's request for such mitigating instruction, the trial court
stated
[F]or record purposes, there's no evidence at this time, and, in fact, in the
guilt or innocence phase there was no instruction tendered relating to the
involvement of another person, that would give rise to the jury's
conclusion, in this phase, there being no additional proof, that there was
someone else involved in this matter .
While the "quantum of evidence necessary to sustain a penalty phase instruction
is clearly less" than the evidence required for a guilt phase instruction on the
circumstances which underlie the mitigator, Hunter, supra, a trial court is not required to
give an instruction on a mitigating circumstance unless it is supported by the evidence .
Smith v. Commonwealth , Ky., 845 S.W.2d 534 (1993) . Other than defense counsel's
comments during opening statements, there was no evidence presented that could lead
a jury to believe another individual was involved in the charged crimes.
Notwithstanding, the instructions did include the catchall provision which allowed the
jury to consider "any mitigating circumstances otherwise authorized by law." KRS
532.025(2).
MISCELLANEOUS ISSUES
1 . Defense Counsel's Admissions of Guilt
Appellant argues that the trial court erred by failing to inquire whether Appellant
knowingly and voluntarily consented to defense counsel's admissions of guilt during
opening and closing arguments . Specifically, counsel told the jury during opening
statements that Appellant was a "thief and burglar," and that although he went to
Williamson's residence on the day in question to steal from her, Appellant was not the
23
person who murdered Williamson . Again, during closing arguments, defense counsel
stated that Appellant had committed the other crimes, even the theft of Betty Geiman's
wallet, but he was not a murderer . Appellant, relying on Wiley v. Sowders , 647 F.2d
642(6th Cir. 1981), cert. denied , 454 U.S . 1091 (1981), now argues that the trial court
should have conducted a sua sponte inquiry as to whether Appellant consented to such
a trial strategy .
In Wile~ , the Sixth Circuit Court of Appeals granted a petitioner's request for a
writ of habeas corpus on the grounds that petitioner's counsel had admitted petitioner's
guilt as a trial tactic, but had not gained petitioner's knowing consent prior to the
admission . The Court held:
[A]n attorney may not admit his client's guilt which is contrary to his client's
earlier entered plea of 'not guilty' unless the defendant unequivocally
understands the consequences of the admission . Counsel may believe it
tactically wise to stipulate to a particular element of a charge or to issues
of proof. However, an attorney may not stipulate to facts which amount to
the 'functional equivalent' of a guilty plea .
Id. at 649. (citations omitted) . The Court concluded that the client's knowing consent to
such trial strategy must appear on the record, outside the presence of the jury, in a
manner consistent with Boykin v. Alabama , 395 U.S. 238, 89 S .Ct. 1709, 23 L.Ed .2d
274 (1969) .
However, in a subsequent companion case, Wiley v. Sowders, 669 F.2d 386,
389(6 th Cir. 1982), the Court clarified its prior holding, stating "an on-the-record inquiry
by the trial court to determine whether a criminal defendant has consented to an
admission of guilt during closing arguments represents the preferred practice. But we
did not hold in Wiley, and do not now hold, that due process requires such a practice ."
Thus, contrary to Appellant's argument, the trial court did not err in failing to conduct a
24
sua sponte inquiry as to Appellant's consent to his counsel's strategy.
More importantly, while Appellant couches this issue in terms of the trial court's
duty, this is essentially an ineffective assistance of counsel claim . This court has held
as a general rule that claims of ineffective assistance are not properly raised on direct
appeal, but rather must proceed by way of a post-trial motion under RCr 11 .42 to allow
the trial court the opportunity to review the issues . Humphrey v. Commonwealth , Ky.,
962 S.W.2d 870, 872 (1998) . In fact, the Sixth Circuit recognized that both Wile cases
presented ineffective assistance of counsel claims . However, the Court determined
that although the claims had not been preserved in the trial court, they were fairly
presented to this Court, and as such, Petitioners had exhausted their state remedies .
Wilt, 669 F .2d at 388.
2. Severance of Theft Charge
The trial court did not err in refusing to sever the charge of theft by unlawful
taking over $300 . In denying Appellant's motion, the trial court noted that "such
evidence tends to establish identity, motive, and part of a plan for criminal action . The
passage of time between the offenses charged does not determine or compel
severance . The character of the offenses of May 19 and June 25 are interwoven one
with the other . . . ."
RCr 6 .18 provides that two or more offenses may be charged in the same
indictment if they are of the same or similar character, or are based on the same acts or
transactions connected together or constituting parts of a common scheme or plan .
The two incidents were intertwined in that Appellant first became a suspect in the May
25" crimes after Gail Williamson told police that some jewelry had been stolen on May
19th when Appellant was at the Williamson residence cleaning carpets. Furthermore,
25
evidence of the earlier theft showed that Appellant did not randomly pick Williamson
when he committed the June 25th crimes, rather he had gained knowledge about the
Williamson residence and its contents through his employment with Kiwi Carpet
Cleaning .
A trial court has broad discretion in determining whether to grant a motion for
severance and reversal is not warranted absent an abuse of that discretion . Davis v .
Commonwealth , Ky., 899 S.W.2d 487 (1995) . Certainly, the evidence of the May 19th
theft was prejudicial to Appellant . However, the evidence was also relevant, probative
and within the requirements of RCr 6 .18 . No error occurred .
3. Cumulative Error
Appellant received a fundamentally fair trial and we find that the isolated
instances of harmless error are insufficient to create a cumulative effect which would
warrant reversal of his convictions for a new trial . Tamme, supra ; compare Funk,
supra .
For the foregoing reasons, Appellant's convictions are affirmed . This case is
remanded to the Kenton Circuit Court for a new penalty phase wherein Appellant will be
eligible for an instruction on life without parole .
All concur to affirm the convictions .
Keller, J., concurs, in part, and dissents, in part, by separate opinion in which
Stumbo, J., joins and Johnstone, J., joins, in part as to Limitations on Voir Dire
Examination .
Wintersheimer, J ., concurs, in part, and dissents, in part, by separate opinion .
COUNSEL FOR APPELLANT
Randall L . Wheeler
Thomas M . Ransdell
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE
A.B . Chandler III
Attorney General
Louis F. Mathias, Jr .
Michael G . Wilson
Office of the Attorney General
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED: NOVEMBER 21, 2002
TO BE PUBLISHED
,$Uyumt Olvurf of `tufurhv
'Pt
1999-SC-0676-MR
FRED FURNISH
V
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
CRIMINAL NO . 98-CR-00384
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
Although I agree with the majority opinion's conclusion that the trial court's failure
to instruct the jury as to the sentencing option of life imprisonment without the benefit of
probation or parole (LWOP) requires us to reverse Appellant's sentence of death and
remand Appellant's Murder conviction to the trial court for a new capital sentencing
phase, I write separately because I disagree with the majority's resolution of certain
other issues . Specifically, I disagree with Part II(1) of the majority opinion because I
believe that the trial court's limitations on Appellant's voir dire examination created a
substantial risk that Appellant's death sentence may have been reached by jurors who
were unable to consider the full range of penalties and/or unable to consider Appellant's
alleged intoxication as a mitigating circumstance . Accordingly, I do not believe that the
trial court permitted a constitutionally adequate voir dire examination . And, I dissent
from the majority opinion to the extent that, in addition to the relief granted in the
majority opinion, I would direct the trial court upon remand to allow Appellant to
investigate prospective jurors' abilities to consider the full penalty range and the specific
mitigating circumstances that Appellant intends to present . In addition, I disagree with
the majority's Part III(3) analysis of the issues concerning Appellant's oral statements -or lack thereof -- to the investigating officers. Rather than dismissing Appellant's
allegations of error out-of-hand with the questionable conclusion that Appellant's
allegation of error raises no cognizable constitutional inquiry because "he did not
remain silent, but rather denied any knowledge of the crimes,"' I would hold that these
unpreserved allegations of error are not reviewable by this Court at-this time because
the record suggests that Appellant's failure to object to the introduction of this evidence
may have been trial strategy .
LIMITATIONS ON VOIR DIRE EXAMINATION
In Lockett v. Ohio ,' the United States Supreme Court recognized that the death
penalty is "qualitatively different" from a sentence of imprisonment3 and held that
individualized consideration of the circumstances of a capital crime and the character of
the defendant who committed that crime were critical to prevent its arbitrary
application . Although the Sixth Amendment to the United States Constitution does not
require that a jury make the ultimate determination whether to impose the death
'Majority Opinion at
S.W.3d
(200_) (Slip Op. at 15).
438 U .S. 586, 98 S .Ct. 2954, 57 L .Ed .2d 973 (1978) .
2
3Id. at 438 U .S . at 604, 98 S .Ct. at 2964, 57 L.Ed .2d at 989 .
4 Id . at 438 U .S. at 605, 98 S .Ct. at 2965, 57 L.Ed .2d at 990.
penalty,' the United States Supreme Court has held that, when juries are asked to
deliberate capital punishment, Fourteenth Amendment due process protections require
that those juries be comprised of fair and impartial jurors. Two of the most important
facets of such impartiality are a knowing and informed ability to consider the full range
of punishments' and the ability to consider all relevant mitigation evidence .$
'See Proffitt v. Florida , 428 U .S . 242, 252, 96 S .Ct . 2960, 2966, 49 L.Ed .2d 913,
923 (1976) (plurality opinion) ("It has never [been] suggested that jury sentencing is
constitutionally required ."). But see Ring v. Arizona ,
U .S.
, 122 S.Ct. 2428, 153
L .Ed .2d 556 (2002) (holding that Sixth Amendment requires jury finding as to
aggravating circumstance necessary for imposition of the death penalty).
6Morgan v. Illinois , 504 U .S. 719, 726-7, 112 S .Ct. 2222, 2228-2229, 119
L .Ed .2d 492, 501-2 (1992).
'See Witherspoon v. Illinois , 391 U .S . 510, 522 n .21, 88 S.Ct . 1770, 1777 n .21,
20 L.Ed .2d 776, 785 n.21 (1968) ("The most that can be demanded of a venire[person]
in this regard is that he [or she] be willing to consider all of the penalties provided by
state law[.]"); Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 138 (1988) ("In a capital
case . . . it is especially important that the jury not be comprised of people unwilling to
consider the entire range of punishment in the event of a guilty verdict .").
8Penry v. Lynaugh , 492 U.S . 302, 328, 109 S .Ct. 2934, 2951-2, 106 L.Ed .2d 256,
284 (1989) ("In order to ensure `reliability in the determination that death is the
appropriate punishment in a specific case,' the jury must be able to consider and give
effect to any mitigating evidence relevant to a defendant's background and character or
the circumstances of the crime." (citations omitted)). See also Eddings v. Oklahoma ,
455 U .S . 104, 113-5, 102 S.Ct. 869, 71 L.Ed .2d 1, 10-11 (1982) :
Just as the State may not by statute preclude the
sentencer from considering any mitigating factor, neither
may the sentencer refuse to consider, as a matter of law,
any relevant mitigating evidence . . . . The sentencer . . . may
determine the weight to be given relevant mitigating
evidence . But they may not give it no weight by excluding
such evidence from their consideration.
Id. ; Id . at 455 U .S . 115 n .10, 71 L.Ed .2nd 11 n.10 ("[T]he Oklahoma death penalty
statute permits the defendant to present evidence `as to any mitigating circumstances .'
Lockett requires the sentencer to listen .") ; Morgan v. Illinois , su ra note 6 at 544 U .S . at
739, 112 S .Ct. at 2235,119 L .Ed .2d at 509 ("Any juror to whom mitigating factors are
likewise irrelevant should be disqualified for cause, for that juror has formed an opinion
concerning the merits of the case without basis in the evidence developed at trial .") ;
In Rosales-Lopez v. United States ,9 the United States Supreme Court observed
that a full and adequate voir dire "plays a critical function in assuring the criminal
defendant that his . . . right to an impartial jury will be honored ."" This Court has
reached the same conclusion." However, "[d]espite its importance, the adequacy of
voir dire is not easily subject to appellate review. ,12 Nonetheless, the United States
Supreme Court has conceptualized its review of voir dire adequacy as a situational
inquiry and has articulated a standard under which appellate courts should evaluate an
examination's sufficiency :
Questions . . . might be helpful in ascertaining whether a
juror is impartial . To be constitutionally compelled, however,
it is not enough that such questions be helpful . Rather the
trial court's failure to ask these questions must render the
defendant's trial fundamentally unfair. '3
The Supreme Court has applied this standard in a number of cases in which trial courts
limited the subject matter of voir dire examination and, by way of example, has
concluded that voir dire regarding the subject of racial prejudice is required in capital
Skipper v. South Carolina , 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90 L.Ed .2d 1, 6 (1986)
("Equally clear is the corollary rule that the sentencer may not refuse to consider or be
precluded from considering `any relevant mitigating evidence ."').
9415 U .S . 182, 101 S.Ct. 1629, 68 L .Ed .2d 22 (1981) .
'old . at 451 U .S . at 188, 101 S .Ct. at 1634, 68 L .Ed .2d at 28.
" See Thomas v. Commonwealth , Ky., 864 S.W.2d 252, 259 (1993).
Rosales-Lopez v. United States , supra note 9 at 451 U.S . at 188, 101 S .Ct. at
1634, 68 L . Ed .2d at 28 .
'2
'3Mu'Min v. Virginia, 500 U .S . 415, 425-6, 111 S .Ct. 1899, 1905, 114 L .Ed .2d
493, 506 (1991). See also Turner v. Murray, 476 U.S. 28, 33, 106 S.Ct. 1683, 1687, 90
L .Ed .2d 27, 34-5 (1986) (describing the "broad inquiry" in an allegation of inadequate
voir dire as "whether under all of the circumstances presented there was a
constitutionally significant likelihood that, absent [this] questioning . . . the jurors would
not be indifferent .").
dissonance can exist between the questioner and prospective jurors because of
asymmetrical understandings of legal language and concepts ."
In the case at bar, Appellant wished to examine potential jurors to see if they
could consider the full range of penalties -- including the statutory minimum penalty of
twenty (20) years. The trial court, however, would not allow Appellant to ask
prospective jurors if they could consider the minimum penalty and instead framed the
inquiry regarding the "low end" of the penalty range as whether a jury could consider "a
term of imprisonment of not less than twenty years ." Of course, an affirmative answer
to this question only meant that the juror could consider sentencing Appellant to
imprisonment for some term of years -- perhaps fifty (50), or a hundred (100) or even a
thousand (1000) years -- not that the juror could consider the statutory minimum
sentence . This Court has consistently held that a defendant "is entitled to a jury that
can fairly consider the entire range of punishments for his crimes." 2' And, in Grooms v.
Commonwealth , we held that "a juror should be excused for cause if he would be
unable in any case . . . to consider the imposition of the minimum penalty prescribed by
See Witherspoon v. Illinois , supra note 7 at 319 U .S . at 510 n .9, 88 S .Ct . at
1773, 20 L.Ed .2d at 781 n .9 ("The critical question, of course, is not how the phrases
employed in this area have been construed by courts and commentators . What
matters is how they might be understood -- or misunderstood -- by prospective jurors.");
Wainwriaht v. Witt, supra note 19 at 469 U.S . at 424-5, 105 S.Ct. at 852, 83 L.Ed .2d at
852 ("[M]any venire[persons] . . . may not know how they will react when faced with
imposing the death sentence, or may be unable to articulate . . . their true feelings .") .
20
21Woodall v. Commonwealth , Ky., 63 S .W .3d 104,117 (2002) (emphasis added).
See also Lawson v. Commonwealth , Ky., 53 S.W.2d 534, 541 (2001) ("We remain
convinced that, in all criminal cases, the right to a fair and impartial jury requires the jury
to possess the ability to consider the full range of penalties[ .]" (emphasis added)) ;
Shields v. Commonwealth , Ky., 812 S.W .2d 152, 153 (1991) ("In order to sit as a juror
in a criminal case, a member of the venire must be able to consider any permissible
punishment ." (emphasis added)).
22SuDra
note 7.
law."" Recently, in Lawson v. Commonwealth ," we examined how voir dire regarding
the available penalty range should be conducted in non-capital cases and concluded,
based on our estimation of the "significant opportunity costs [of] overgeneralizing the
inquir/ ,25 that, "the questioner should define the penalty range in terms of the possible
minimum and maximum sentences[. ]26 I can envision no reason for a different rule
regarding voir dire examination as to the minimum penalty in capital cases where the
stakes are far greater. Because the voir dire examination permitted in this case did not
allow the trial court or the parties to assess whether the jurors could consider the
statutory minimum punishment of twenty (20) years, Appellant was "denied the right to
meaningful voir dire on the issue of punishment. ,27
With respect to Appellant's allegation that the trial court unconstitutionally limited
the scope of his voir dire examination by prohibiting him from inquiring whether
prospective jurors could consider the fact that Appellant was under the influence of
drugs and alcohol as a mitigating circumstance, I acknowledge that, in Woodall v.
Commonwealth , this Court held that "it was not an abuse of discretion by the trial
23
Id . a t 137.
"Supra note 21 .
25
Id . at 543 .
Id. at 544. See, etc .., Stopher v. Commonwealth, Ky., 57 S.W .3d 787, 808-812
(2001) (Keller, J., dissenting) (quoting portions of individual voir dire in which trial court
allowed defense counsel to examine juror regarding his ability to consider the minimum
penalty) .
26
27Anderson v. Commonwealth , Ky., 864 S.W.2d 909, 911 (1993) .
28See KRS 532 .025(2)(b)(7) .
21S
u ra note 21 .
judge to restrict the voir dire . . . concerning specific mitigation evidence ."" However, I
did not agree with that holding then
3'
and I do not agree with the citation-free,
conclusory declaration in today's majority opinion that "the trial court properly curtailed
questions that were not proper and only confused the panel. "32 Although Appellant
persuasively argues that evidence of intoxication is a "double-edged sword" that some
jurors will interpret as heightening rather than reducing a defendant's culpability, the
trial court would not allow Appellant to seek out those jurors with more specific
questioning, and instead merely allowed examination as to whether jurors could
consider undefined "mitigating circumstances ." As each juror's answer to this question
would vary according to his or her own conception of what possible "mitigating
circumstances" may exist, I have little confidence that this question reached the heart of
the relevant inquiry -- whether the jurors could consider a mitigating circumstance
specifically authorized by the General Assembly and that Appellant presented in this
case . While the basis for the holding in Woodall was that the examination as to the
specific mitigating circumstance was designed "to oblige jurors to commit themselves by
either accepting a specific mitigator or rejecting it before any evidence was heard, ',33
here, Appellant's proposed question sought only to determine if prospective jurors could
consider intoxication as a mitigating circumstance . As Appellant thus sought no more
than the United States Constitution guarantees him -- fair and impartial jurors who could
So ld . at 116 .
3'
Id . at 135 (Stumbo, J ., dissenting) .
"Majority Opinion, supra note 1 at
(Slip Op. at 10).
"Woodall v. Commonwealth , supra note 21 at 116 .
consider his relevant mitigation evidence31 -- I believe the trial court denied Appellant a
constitutionally adequate voir dire examination by prohibiting such questioning .
Although I believe the erroneous limitation of Appellant's voir dire would require
reversal of Appellant's death sentence even if the trial court had not otherwise
committed reversible error during the capital sentencing phase, the court's failure to
instruct the jury as to LWOP renders the voir dire error largely moot. Upon remand,
however, I would direct the trial court not only to properly instruct the jury as to all
available sentencing options, but also to permit Appellant to conduct a constitutionally
adequate voir dire. .
APPELLANT'S STATEMENTS AND SILENCE
In my opinion,the majority's conclusion that it need not "engage in a lengthy
constitutional analysis of whether Appellant was or was not in custody or whether his
Miranda rights were, in fact, violated [because] [a]t no point did Appellant state that he
did not wish to talk to the officers or that he desired questioning to cease until he could
speak with an attorney"35 is inadequate to address Appellant's allegations of error
concerning his abbreviated statements to the investigating officers. Although the
majority opinion's analysis implicitly assumes that a clear and unequivocal invocation of
the right to remain silent is a necessary precondition to each of Appellant's distinct
arguments for relief, this analysis completely overlooks -- or is at least unresponsive to :
(1) Appellant's allegation that his admission to stealing jewelry from the victim's home
on a prior occasion occurred during a custodial interrogation in which he did not receive
31See supra note 8 and surrounding text.
35
Majority Opinion, supra note 1 at
(Slip Op. at 15).
Miranda warnings ; and (2) a split of authority that currently exists at the United States
Circuit Court level as to whether a state violates a defendant's Fifth Amendment
privilege against self-incrimination when -- as was the case here 36
--
the state, at trial,
utilizes a defendant's silence, including refusals to discuss a matter prior to arrest, as
substantive evidence of the defendant's guilt .37
I nonetheless concur in the majority's conclusion that Appellant's allegations of
error in this regard do not justify our reversal of Appellant's conviction. I note that, in
the trial court, Appellant objected to none of the evidence that he now targets on
appeal, and, .because "it may reasonably be inferred that appellant intentionally failed to
36Specifically, the Commonwealth introduced evidence that: (1) Appellant "made
no comment whatsoever" at the time he was handcuffed ; (2) during both the second
and third times that Appellant was interviewed by Detective Denham and Officer Embry,
Appellant denied any knowledge of the murder and stated that he had "nothing else to
say" ; and (3) that, although the investigating officers gave Appellant "the opportunity to
describe what happened," Appellant never acknowledged the fact that he had been at
the victim's residence and never made mention of a second individual (a defense
initially employed by Appellant at trial) during the interview. During its culpability phase
closing argument, the Commonwealth specifically commented on Appellant's tight lips
in a manner that affirmatively disparaged Appellant's constitutional right not to
incriminate himself:
[Appellant] is attempting at every turn, by virtue of how he
acts, to minimize his risks. If you recall during the course of
the interview that he gave to the police, his standard was "I
don't know what you're talking about" or "I ain't got nothing
to say." In all honesty, ladies and gentlemen, what he was
saying was this, "I'm not going to say anything that I killed
her because I'm going to make you prove it. I'm going to
make you go out and prove that I did it because I, in light of
the fact that i did the act of killing, in order to reduce the risk
of my high risk crime of burglary and robbery, I'm not going
to cop out to it now." And he, in essence, dared the police to
go out and prove him wrong.
See Combs v. Coyle , 205 F.3d 269, 282-283 (6th Cir. 2000) (collecting cases) .
The Sixth Circuit holds that "the use of a defendant's prearrest silence as substantive
evidence of guilt violates the Fifth Amendment's privilege against self-incrimination ." Id.
at 283 .
3'
-1 0-
object for reasons of trial strategy,"" these unpreserved allegations of "error'' are, thus,
inappropriate subjects for our review on direct appeal. 39 Fact patterns akin to the one
presented here -- where the Commonwealth seeks to present statements obtained from
a defendant during what is arguably a custodial interrogation, and there is an issue of
whether the defendant was informed of his Miranda rights prior to the questioning -would usually alert a criminal defense attorney that a suppression issue might exist.
However, based upon indications from the record in this case -- including : (1)
Appellant's defense counsel's opening statement, in which she emphasized that,
despite extensive questioning by professionals trained in interrogation, Appellant did not
confess to the murder; (2) Appellant's defense counsel's cross-examination of
Detective Denham that resulted in the repetition of Appellant's brief protestations of his
innocence; and (3) defense's closing argument that emphasized that Appellant told the
investigating officers "that he didn't kill her, Mrs. Williamson" and rationalized
Appellant's failure to further confide in the officers as possibly the result of Appellant's
distrust or Appellant's belief that the officers would not help him -- I believe it is a morethan-reasonable assumption that the failure to object constituted reasonable trial
strategy . After all, the small amount of inculpatory information that Appellant gave
during the interviews was consistent with the overall defense strategy of admitting to the
38 1ce v. Commonwealth , Ky., 867 S .W .2d 671, 674 (1984) . See also Cosby v.
Commonwealth , Ky., 776 S.W.2d 367, 369 (1989) (" Ice specifies only that `prejudicial
error' must be reviewed regardless of contemporaneous objection, and we hasten to
reaffirm that this means errors where there is no reasonable justification or explanation
for defense counsel's failure to object, tactical or otherwise . . . .") .
39See Sanders v. Commonwealth , Ky., 801 S .W.2d 665, 668-9 n.1 (1991)
("Generally, once a judgment has become final, such issues constitute a collateral
attack on the judgment imposing sentence, and must be presented to the trial court
pursuant to RCr 11 .42 .").
property crime offenses, but focusing the defense upon the relative dearth of evidence
as to the death-eligible offense . By allowing the Commonwealth to introduce evidence
that Appellant had denied any involvement in the murder, the defense was able to
"have its cake and eat it too" by enjoying the benefit of a "no adverse inference"
instruction while simultaneously placing Appellant's words before the jury without
subjecting Appellant to cross-examination and impeachment with his prior felony
convictions . I also observe that pleadings associated with a motion in limine filed by the
Commonwealth that sought to prohibit the defense from introducing evidence that
Appellant told family members and friends after he was arrested that he had robbed,
but not killed, the victim suggest that the defense team had investigated other bases of
making the jury aware of Appellant's out-of-court denials of his involvement in the
victim's death, but concluded that the hearsay rule stood in the way.
While it is possible that the failure to object was the result of an oversight by
counsel rather than trial strategy -- and, in fact, the ultimate resolution of that issue may
require an evidentiary hearing in a future proceeding -- we need not resolve that issue
conclusively one way or another at this stage . For the purposes of this Court's review
of Appellant's unpreserved allegation of error in a capital case, the first "prong"" of our
inquiry is 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." 4' I believe from the record in this case that Appellant's trial counsel may very
well have concluded that evidence of Appellant's terse declaration of his innocence
4o see Perdue v.
Commonwealth , Ky., 916 S .W .2d 148, 154 (1996) .
4' Sanders v.
Commonwealth , supra note 39 at 668 (emphasis added).
-12-
would "do more good than harm ." For that reason, I would not address the merits of
Appellant's allegations of error concerning the interview statements .
Stumbo, J ., joins . Johnstone, J ., joins in part as to Limitations on Voir Dire
Examination .
RENDERED : NOVEMBER 21, 2002
TO BE PUBLISHED
#uprewt (wart of Xtnturkg
1999-SC-0676-MR
APPELLANT
FRED FURNISH
V
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
CRIMINAL NO. 98-CR-00384
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION CONCURRING IN PART AND DISSENTING IN PART
BY JUSTICE WINTERSHEIMER
I concur with so much of the opinion as affirms the conviction . However, I must
respectfully dissent from that part of the opinion that remands this case to circuit court
for a new penalty phase. The circuit judge was correct in denying the motion for an
instruction on a sentence of life without the benefit of probation or parole . The
conclusion by the trial judge that the old penalties, including a sentence of death, were
not clearly mitigated by the new penalty provisions was proper. The directions of
Commonwealth v. Phon, Ky., 17 S .W.3d 106 (2000), should not be applied
automatically. The trial judge is the key factor in the giving of jury instructions .
If any penalty, forfeiture or punishment is mitigated by any
provision of the new law, such provision may, by the consent
of the party affected, be applied to any judgment
pronounced after the new law takes effect .
I would affirm the conviction and sentence in all respects .
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