WILLIAM EUGENE THOMPSON V COMMONWEALTH OF KENTUCKY
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RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,iuyrtmt 01ourf of
1998-SC-0277-MR
AND
2001-SC-0869-MR
41
10AT
WILLIAM EUGENE THOMPSON
APPELLANT
APPEALS FROM LYON CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
1986-CR-0033
V
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
Appellant, William Eugene Thompson, appeals from a sentence of death
imposed by the Lyon Circuit Court. Appellant was convicted of murder, robbery in the
first degree, and escape in the first degree . Appellant was originally tried before a jury
in Lyon County, and was found guilty and sentenced to death, twenty years, and ten
years, respectively . On direct appeal, this Court reversed that conviction and
remanded, determining that the trial court had refused to grant five valid strikes for
cause and erroneously used a prior murder conviction still pending on appeal as an
aggravator.
1 Thompson v. Commonwealth , Ky., 862 S.W .2d 871 (1993).
Upon remand, Appellant pled guilty to all three charges. A second penalty phase
trial was conducted, at which Appellant was again sentenced to death . Appellant
waived jury sentencing of the non-capital offenses, and was sentenced to two
consecutive terms of imprisonment totaling twenty years . The appeal in Case No .
1998-SC-0277-MR stems from the trial court's ruling that Appellant was competent to
enter a guilty plea . The appeal in Case No . 2001-SC-0869-MR stems from the trial
court's acceptance of Appellant's guilty plea, and the trial court's acceptance of the
sentencing jury's recommendation of death .
At the time of this crime, Appellant was serving a life sentence for murder. He
was transferred to the Western Kentucky Farm Center, a minimum security prison
facility that includes an inmate-operated dairy farm. During the early morning hours of
May 9, 1986, Appellant and his supervisor, Fred Cash, reported to work at the dairy
barn . According to Appellant, he became enraged outside a calf barn while he and Mr.
Cash were attempting to start some equipment . Appellant admits striking Mr. Cash
once to the head with a hammer. Little is known about exactly what transpired
thereafter, as Appellant claims to have "blacked out." However, the evidence reveals
that Mr. Cash's skull was crushed by numerous blows to the head with a hammer and
his body was dragged into a calfs stall . According to Appellant, upon realizing what he
had done, he removed Mr. Cash's pocketknife, keys and wallet, and left the Farm
Center in the prison dairy truck . Appellant fled to the nearby town of Princeton, where
he purchased a ticket and boarded a bus bound for Madisonville . The authorities
apprehended Appellant in Madisonville .
Appellant appeals as a matter of right, presenting twenty-nine claims of error. For
convenience sake, we have grouped Appellant's claims into various categories . Many
of Appellant's cited errors are unpreserved . Nonetheless, in light of the penalty
imposed in this matter and pursuant to KRS 532 .075(2), we will consider even
unpreserved issues . The standard of review of unpreserved errors in a case in which
the death penalty has been imposed is as follows :
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 ~uilty of a capital crime, or the death
penalty may not have been imposed .
Competency Hearing
After hearing oral argument on Appellant's original appeal, we held that the trial
court failed to hold the competency hearing required by KRS 504.100(3) before
accepting Appellant's guilty plea .3 Instead of reversing Appellant's conviction, we
remanded the case to the trial court to determine whether a retrospective competency
hearing was possible and, if possible, to hold the hearing .4 On remand, the trial court
concluded that it was possible to hold a meaningful retrospective competency hearing .
At the conclusion of the hearing, the trial court found that Appellant was competent to
enter a guilty plea . As provided for in our order, Appellant now appeals the trial court's
ruling, which has been consolidated with his appeal from his guilty plea and sentence.5
2 Johnson v. Commonwealth , Ky., 103 S.W.3d 687, 691 (2003), citing Sanders v.
Commonwealth, Ky., 801 S.W.2d 665, 668 (1991) .
3Thompson v. Commonwealth , Ky., 56 S .W .3d 406 (2001) .
4_Id . at 410 .
5Id .
We first address the trial court's finding that holding a retrospective competency hearing
would not violate Appellant's due process rights .
In our opinion and order remanding the case for a retrospective competency
hearing, we provided significant guidance to the trial court. "The test to be applied in
determining whether a retrospective competency hearing is permissible is whether the
quantity and quality of available evidence is adequate to arrive at an assessment that
could be labeled as more than mere speculation ."6 Further, we stated that
[a] retrospective competency hearing, may satisfy the requirements of due
process provided it is based on evidence related to observations made or
knowledge possessed at the time of trial . Other factors bearing on the
constitutional permissibility of a retrospective hearing include : (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 non-experts--including
counsel and the trial judge--who had the ability to observe and interact
with the defendant during trial.7
Based on the quantity and quality of the evidence available, the trial court
concluded that a meaningful retrospective competency hearing could be held . This
evidence included the written transcript of the January 12, 1995 hearing in which
Appellant withdrew his plea of not guilty and entered an unconditional guilty plea . The
record also contains the competency evaluation report by Dr. Candace Walker, who
was the psychiatric expert from the Kentucky Correctional Psychiatric Center (KCPC)
who examined Appellant prior to the January 12 hearing . Additionally, the trial judge,
who was the same judge who accepted Appellant's guilty plea, had available his own
recollections of the hearing and his own observations of Appellant's behavior as well as
6Thompson , 56 S.W .3d at 409 (internal quotation marks omitted) .
7Id . (internal quotation, marks and citations omitted) .
that of trial counsel . Finally, the record contains defense counsels' assertions that
Appellant was competent to plead guilty .8
We agree with the trial court's conclusion that there was sufficient evidence
available to conduct a meaningful competency hearing on remand .9 We now turn to
the retrospective hearing itself.
To be competent to plead guilty, a defendant must have "sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding-and
whether he has a rational as well as factual understanding of the proceedings against
him."' ° Competency determinations are made based on a preponderance of the
evidence standard . 11 A review of the evidence introduced at the retrospective
competency hearing shows that there was substantial evidence to support the trial
court's ruling that Appellant was competent to plead guilty on January 12, 1995 .
The trial court reviewed Dr. Walker's competency evaluation report. The report
was completed and transmitted to defense counsel and the trial court a few days before
the January 12 hearing . The report concluded that Appellant was competent to plead
8See Lopez v. Walker, 239 F . Supp. 2d 368, 374 (S.D.N.Y. 2003). (Defense
counsel's representations as to defendant's competency or incompetency are
particularly important .)
9 See Revnolds v. Norris, 86 F.3d 796, 803 (8th Cir. 1996) (holding that a
meaningful hearing could be held based on similar evidence in the record and other
evidence available to be heard at the hearing) .
10
Dusky v. United States , 362 U .S . 402, 80 S . Ct . 788, 789, 4 L. Ed. 2d 824,
825 (1960).
11
See Mozee v. Commonwealth , Ky., 769 S .W .2d 757, 758 (1989) (strongly
implying that this is the standard) ; accord Allen v. Mullin, 368 F.3d 1220, 1239 (10th Cir.
2004); United States v. Morrison , 153 F.3d 34, 46 (2nd Cir. 1998) ; see also Cooper v.
Oklahoma , 517 U .S . 348, 355, 116 S. Ct. 1373, 1377, 134 L. Ed . 2d 498, 506 (1996).
("A State may presume that the defendant is competent and require him to shoulder the
burden of proving his incompetence by a preponderance of the evidence .")
guilty . During the retrospective hearing, the trial court-relying on the record from the
January 12 hearing-noted that defense counsel had agreed with the report's
conclusion and had affirmatively stated that competency was no longer an issue for the
defense. The trial court reviewed the Boykin colloquy it held with Appellant before
accepting his guilty plea. The trial court heard the testimony of the Commonwealth's
Attorney who prosecuted the case against Appellant . (Defense counsel was absent.
From the record, it does not appear that either defense counsel was subpoenaed to
testify at the retrospective hearing .) And finally, the trial court reviewed the deposition
of Dr. Walker made in preparation for the retrospective hearing and introduced into
evidence . In the deposition, Dr. Walker was extensively questioned by the
Commonwealth and cross-examined by the defense. Little of this evidence places
Appellant's competency in doubt and most of it supports the trial court's ultimate ruling
that Appellant was competent to plead guilty. Thus, we conclude that the trial court's
ruling was supported by substantial evidence and, therefore, was not clearly
erroneous. 12 Finally, we note that competency claims raised on appeal may be based
on violations of both procedural and substantive due process . 13 ,A procedural
competency claim is based upon a trial court's alleged failure to hold a competency
hearing, or an adequate competency hearing, while a substantive competency claim is
founded on the allegation that an individual was tried and convicted while, in fact,
incompetent ." 14 ,Claims involving these principles raise similar but distinct issues : the
12 U
nited States v. Branham , 97 F .3d 835, 855 (6th Cir. 1996) (competency
determinations are findings of fact).
13Vogt v. United States , 88 F .3d 587, 590 (8th Cir. 1996), cert . denied , 502 U .S .
1092, 112 S . Ct. 1164, 117 L. Ed . 2d 411 (1992).
14 M
cGregor v. Gibson , 248 F.3d 946, 951 (10th Cir. 2001).
issue in a substantive competency claim is whether the defendant was in fact
competent to stand trial, but the issue in a procedural competency claim is whether the
trial court should have conducted a competency hearing ." 15 Thus, the underlying trial
court error, which was a failure to hold the competency hearing required by KRS
504.100 or a hearing that was adequate to protect Appellant's due process rights,
concerned a violation of procedural due process.
The purpose of the competency hearingthe procedural due process right-is to
ensure that the substantive due process violation does not occur, i .e . , the
Commonwealth does not try an incompetent criminal defendant.
16
We therefore
conclude our discussion of the competency issue with an examination of the procedural
safeguards required by statute at competency hearings, and whether these were
provided at Appellant's retrospective hearing .
KRS 504.080 sets forth the procedural requirements for a competency hearing
when a hearing is required by KRS 504 .100 . 17 One of the statute's requirements is that
the examining psychiatrist must be present at the hearing unless the doctor's presence
is waived by the defendant .' 8 Additionally, the hearing must be "an evidentiary hearing
with the right to examine the witnesses.
' 9
Finally, the statute implies a right to call
independent experts retained by the defendant who "participated in" the competency
15
Id . at 590-91 .
16Vog
t , 88 F.3d at 590 .
17Gabbard v. Commonwealth , Ky., 887 S .W .2d 547, 551 (1994).
18 KRS 504.080(3).
19
Id . (emphasis in original) .
evaluation . 20 These rights and requirements likewise apply to any retrospective
competency hearing .
The retrospective hearing was clearly an evidentiary hearing in which Appellant
was present . Defense counsel had the opportunity to both call and cross-examine
witnesses . While Dr. Walker did not appear at the hearing itself, she was deposed and
defense counsel had ample opportunity to cross-examine her conclusions and question
her methods . Her deposition was introduced at the retrospective hearing . Thus, the
procedural safeguards required by statute were afforded at the retrospective hearing .
Because these safeguards are equal to or go beyond what is required by the United
States and Kentucky Constitutions, we conclude that the retrospective hearing provided
adequate procedural safeguards to determine the issue of Appellant's competency to
plead guilty. On appeal, Appellant argues that he was denied procedural due process
at the retrospective hearing because the trial court denied his motion for funds for an
independent expert to examine Appellant . This expert, who was retained to examine
Appellant prior to entering his guilty plea, never examined or observed Appellant
because Appellant refused to meet with him . Thus, the expert never "participated in"
the competency evaluation of Appellant prior to the January 12 hearing and no
argument can be made that the expert's presence was required by KRS 504.080 . The
trial court denied the funds on grounds that the expert's testimony would not be relevant
because a current examination would have little bearing on the question of Appellant's
20
See KRS 504.080(5) .
See Medina v. California , 505 U .S. 437, 453, 112 S. Ct . 2572, 2581, 120 L . Ed .
2d 353, 368 (1992).
21
mental state seven years before . The trial court did not abuse its discretion in denying
Appellant's motion for expert funds on these grounds. 22
For the reasons stated above, we affirm the trial court's ruling on remand that
Appellant was competent to enter an unconditional guilty plea on January 12, 1995.
Evidentiary Issues
Refusal to Allow Jury to Rehear Testimony
About three hours into deliberations, the jury foreman requested that the jury be
permitted to rehear Appellant's testimony. The trial court responded that the transcript
had not yet been prepared by the court reporter, and that the jury would have to rely on
its own recollections in deliberations. No objections were entered to the trial court's
decision . Appellant now argues that the trial court's denial of the jury's request
constitutes reversible error. According to Appellant, the jury's request indicated
possible confusion or misunderstanding, and that he was prejudiced when the jury
eventually rendered its decision without the benefit of rehearing his testimony .
"Any decision to allow the jury to have testimony replayed during its deliberations
is within the sound discretion of the trial judge ." 23 We find no abuse of discretion in this
case. The jury foreman made a plain request to the trial judge to rehear Appellant's
testimony, and did not elaborate as to the reason for the request . The trial court was
not presented with any indication that the jury was confused about Appellant's
testimony, nor did the jury state or imply that a verdict could not be reached without a
transcript or recording of the testimony . Moreover, the request was never reiterated .
22 D
illingham v. Commonwealth , Ky., 995 S .W .2d 377, 381 (1999), cert. denied, 528
U .S. 1166, 120 S . Ct. 1186, 145 L. Ed. 2d 1092 (2000). (A trial court's denial of funds for the
assistance of experts is reviewed for abuse of discretion .)
23 B aze v. Commonwealth , Ky.,
965 S.W .2d 817, 825 (1997) .
Having no reason to suspect that the jury was confused or unable to continue
deliberations, we conclude that the trial court did not abuse its discretion in denying the
jury's request to rehear Appellant's testimony.
Admission of Crime Scene Photographs and Murder Weapon
Appellant's next claim is that photographs of the crime scene and the actual
murder weapon were improperly admitted into evidence . The admitted photographs
depicted the crime scene, the bloodstained stall in which Mr. Cash's body was
eventually found, and Mr. Cash's corpse. Appellant contends that the photographs and
the bloody weapon were rendered irrelevant by his guilty plea, and that their gruesome
nature served only to inflame and incite the jury to recommend death .
At the outset, the Commonwealth asserts that this issue is unpreserved for
review. The record reflects that, at the time the photographs and weapon were
admitted, defense counsel entered a renewed objection. Apparently, defense counsel
was reiterating an objection that had been entered previously by Appellant's former
counsel ; however, the basis of the objection was not restated and the record does not
include the actual pretrial motion . Nonetheless, it is clear from the transcript that the
trial court was aware of and familiar with the basis of the objection, and that a pretrial
motion objecting to the photographs had been denied. 24 Of course, the burden rests
with Appellant to provide to this Court a complete and comprehensive record upon
which to base appellate review. However, out of an abundance of caution and in light
24
Upon defense counsel's renewed objection to the showing of the photographs
to the jury, the trial court responded as follows : "Let the record show that prior to the
trial in pretrial motions, objections to the showing of these photographs to the jury has
(sic) been raised by the defense. That objection has been denied by the court."
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of the penalty imposed in this case, we will consider the admissibility of the photographs
and weapon as if the issue had been properly and fully preserved at trial .
Appellant first argues that the photographs were so heinous and gruesome that
any relevancy to the proceedings was outweighed by the possibility that the
photographs would inflame and incite the jury to recommend death . The crime to which
Appellant pled guilty is, by its nature, violent and gruesome. It necessarily follows that
the evidence introduced by the prosecution to prove its case during the penalty phase
will be disturbing, as well . However, Appellant does not contend that the photographs
failed to portray the crime scene or the victim's body accurately. 25 An otherwise
admissible photograph does not become inadmissible solely because it is gruesome
and the crime is heinous. 26 Therefore, the trial court did not err in refusing to exclude
the photographs simply because they were gruesome.
Appellant raises an alternative argument regarding the admissibility of the
photographs and the murder weapon : Appellant challenges the relevancy of the
exhibits in light of his guilty plea. The Commonwealth, however, has a right to prove its
case to the jury with competent evidence even when the defendant pleads guilty. 27 In
this case, Appellant stated that he did not remember anything past the first hammer
blow to Mr. Cash's head . The photographs were presented to the jury in an effort by
the Commonwealth to challenge Appellant's credibility by depicting the crime scene, the
distance Appellant had to drag Mr. Cash's body to the stall, the number of wounds
25S
ee Johnson v. Commonwealth , Ky., 103 S .W.3d 687, 696 (2003) .
26Barnett v .ommonwea ,y., 9792d 98 102 (1998) . S ee also
Clth K
S .W .,
Chumbler v. Commonwealth , Ky., 905 S.W .2d 488, 496 (1995) .
27 G
all v. Commonwealth , Ky ., 607 S.W.2d 97,107 (1980), cert . denied, 450 U .S .
989, 101 S. Ct. 1529, 67 t_. Ed . 2d 824 (1981).
inflicted upon Mr. Cash, and to corroborate certain testimony of the prosecution's
witnesses . The murder weapon was used to apprise the jury of the circumstances of
the crime and to corroborate witness Dale Watson's testimony that the hammer was the
weapon depicted in the photographs of the crime scene.
"An appellate court should reverse a trial court's ruling under KRE 403 only if
there has been an abuse of discretion ." 28 In making its determination, the trial court
must weigh the probative value of the evidence against the risk of undue prejudice .
Here, the photographs and the hammer were admitted to corroborate the testimony of
several key witnesses . More importantly, the trial court correctly noted that a sufficient
amount of evidence must be presented to the jury in a penalty phase proceeding where
no trial has occurred, as the jury cannot be expected to make its determination without
a comprehensive understanding of the serious nature of the charge . We conclude that
the trial court based its decision on sound reasoning, and therefore no abuse of
discretion occurred .
Admission of Allegedly Prejudicial Evidence from Appellant's First Trial
Next, Appellant enters a general challenge to virtually all evidence admitted by
the Commonwealth . Relying on Old Chief v. United States, 29 Appellant argues that all
evidence of the crime beyond a recitation of the elements to which he confessed is
inadmissible . In Old Chief, the U .S . Supreme Court concluded that, when a defendant
has offered to stipulate to a prior conviction, evidence of the conviction is still relevant,
though its relevance was outweighed by undue prejudice and therefore inadmissible
under FRE 403. Appellant further argues that the guidelines set forth in Boone v.
28Barnett , 979 S .W .2d at 103.
29
519 U .S . 172, 117 S . Ct . 644,136 L . Ed . 2d 574 (1997) .
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Commonwealth 30 require the trial court to prohibit any evidence of Appellant's crimes
beyond the description of the crimes, including the elements, and the fact that Appellant
had pled guilty to said crimes.
Appellant's reliance on both Old Chief and Boone is misplaced . Both cases
involved situations in which a guilt phase trial was held, thus providing the court with a
certain body of evidence from which to extract evidence for purposes of sentencing .
Here, no guilt phase trial ever occurred, as Appellant pled guilty. While the types of
admissible evidence delineated in Boone are guidelines for the trial court, we do not
agree with Appellant that Boone should be read as a strict limitation on the types of
evidence admissible in a penalty phase trial where the defendant has pled guilty .
Nor
does Boone itself purport to create such a strict limitation : the Court in Boone provided
a list of what types of evidence "might be pertinent."s, Here, because no guilt phase
trial occurred, the types of admissible evidence set forth in Boone alone were
insufficient in this case to adequately apprise the jury of the nature of Appellant's
crimes. As noted in Boone itself, the sentencing jury cannot be expected to fix
punishment "in a vacuum without any knowledge of the defendant's past criminal record
or other matters that might be pertinent to consider in the assessment of an appropriate
penalty."
32
With that principle in mind, the trial court must use its discretion in admitting
relevant evidence that will sufficiently inform the jury of the crimes committed, while
avoiding undue prejudice . Here, we conclude that the trial court violated neither Boone
nor Old Chief in admitting evidence of Appellant's crimes. The evidence admitted 30Ky .,
821 S.W.2d 813, 814 (1992) .
Id . at 814.
32B oone, 821 S .W .2d at 814, citing from Commonwealth v.
Reneer, Ky., 734
S.W .2d 794, 797 (1987).
31
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including the testimony of pathologist Roberta Conrad to which Appellant objects
particularly - was relevant and reasonably calculated to inform the jury of the nature of
the crimes and did not unduly prejudice Appellant . Accordingly, we find no error.
Admission of So-Called Blood Spatter Evidence
Appellant's final evidentiary claim involves so-called blood spatter evidence, the
admission of which Appellant challenges with three distinct arguments . The
Commonwealth sought to establish that blood spatters were found inside the calf stall in
which Mr. Cash's body was found . The presence of blood spatters inside the stall
would tend to support the Commonwealth's theory that Appellant beat Mr. Cash both
inside and outside the calf stall . Defense counsel entered an objection to the
admission of this evidence, and the trial court entertained extensive and lengthy
arguments in chambers concerning the matter . The Commonwealth asserted that
blood spatter evidence was relevant to undermine Appellant's credibility, as Appellant
testified at his original trial that no assault occurred in the stall. The trial court ultimately
prohibited any expert evidence concerning the possibility of an additional assault in the
calf stall or the presence of blood spatters in the calf stall, on the grounds that it had not
been admitted at the first trial . 33 The trial court did permit the Commonwealth to admit
photographs of the crime scene, as well as the testimony of investigating officers as to
what they observed in the calf stall, including the presence of fresh blood . However,
the trial court sternly and unequivocally prohibited the Commonwealth from allowing the
investigating officers to conclude that the presence of blood spatters in the calf stall
indicated that a second assault occurred .
33
See n:14, infra .
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The testimony at the heart of Appellant's claims of error is that of Sheriff Ronald
Murphy, who was the investigating officer and personally observed Mr. Cash's body in
the calf stall . The trial court permitted Sheriff Murphy to testify that he found Mr. Cash's
body in the stall and observed "bloody spots around the body and around the straw
there and around the head ." Sheriff Murphy further testified that he noticed a curry
comb "laying right close to his head and it had blood spots all over it" and that the
"straw around the upper part of his body had blood specks all over it." Finally, the
Commonwealth asked Sheriff Murphy if the blood on the hay and on the curry comb
appeared to be fresh blood, and the witness replied in the affirmative . Appellant now
objects to the admission of this testimony on two grounds.
Appellant first challenges the admission of Sheriff Murphy's testimony on
grounds that it was inadmissible because it was not introduced at his first trial. The trial
court had ordered that the Commonwealth would not be permitted to introduce
evidence that had not been introduced at the first trial . 34 Appellant argues that the
admission of the testimony of Ronald Murphy, an investigating officer, violated this
order. Without analyzing whether a violation of this order would even constitute
reversible error, we conclude that this argument is without merit because the
Commonwealth did not introduce any new evidence .
Ronald Murphy's testimony was limited to his own observations when he found
Mr. Cash's body in the stall . After reviewing his testimony at both proceedings, we
conclude that his testimony at the penalty phase proceedings did not substantively
By order dated January 13, 1998, the trial court ruled : ". . . the
Commonwealth has advised the Court and counsel for the Defendant that it does not
intend to introduce any new evidence at the penalty phase other than the evidence
presented at the original trial ."
34
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expand the testimony he gave at Appellant's first trial . Nor did Sheriff Murphy testify as
to blood spatters in relation to the second assault theory as Appellant argues; rather,
Sheriff Murphy merely stated that he observed fresh blood on the hay and the curry
comb that were found inside the stall with Mr. Cash's body. Having determined that no
new evidence was admitted, we find no error.
Appellant next argues that Sheriff Murphy's testimony constitutes expert
testimony on blood spatters within the meaning of KRE 702, and therefore it was error
for the trial court to admit such testimony without the benefit of a hearing pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc. 35 Further, Appellant argues that it was
an abuse of discretion for the trial court to deny his motion for a continuance for the
purpose of refuting Sheriff Murphy's expert testimony . We find both arguments to be
without merit .
Upon review of Sheriff Murphy's testimony, we do not believe that he testified as
an expert witness, and therefore KRE 702 and Daubert have no application . Sheriff
Murphy testified as to his observations upon entering the stall : that he observed blood
on the hay and the curry comb near Mr. Cash's body, and that in his opinion the blood
was fresh. We simply do not agree with Appellant's characterization of Sheriff Murphy's
testimony as expert testimony based on "scientific, technical, or other specialized
knowledge" within the meaning of KRE 702 . Murphy never testified regarding blood
spatter patterns ; in fact, the term "blood spatter" is not to be found once in the entirety
of his testimony . His testimony was limited to his own observations . It does not take an
35
509 U .S . 579, 113 S . Ct . 2786, 126 L. Ed. 2d 469 (19931.
-16-
expert to identify blood around a dead body, nor to give an opinion as to whether blood
appears fresh . Whether a witness is a qualified expert is a matter within the sound
discretion of the trial court . 36 Here, as Sheriff Murphy's testimony was limited solely to
his personal observations on the morning of the murder, we are not persuaded that the
trial court in any way abused its discretion . Accordingly, no abuse of discretion
occurred when the trial court denied Appellant's motion for a continuance .
Admission of Statements and Items Seized from Appellant's Person
Appellant next claims that the trial court erroneously permitted the
Commonwealth to introduce statements he made to police at the time of his arrest and
items seized from his person . This issue is unpreserved . Defense counsel filed no
motions to suppress the statements made by Appellant after he was apprehended at
the Madisonville bus station or to suppress the knife, bus ticket, and bloody shoes
found on Appellant at the time of the arrest. Rather, Appellant now argues that the trial
court should have conducted a suppression hearing on its own motion.
At the outset, it should be noted that the entry of a valid guilty plea effectively
waives all defenses other than that the indictment charged no offense .
37
Further, a
guilty plea constitutes a break in the chain of events, and the defendant therefore may
not raise independent claims related to the deprivation of constitutional rights occurring
before entry of the guilty plea .3s Where a defendant has entered an unconditional plea
of guilty, he may not later challenge allegedly improper lineup identifications or the
36Cormney v. Commonwealth , Ky . App ., 943 S .W .2d 629, 634 n.2 (1997).
37Quarles v. Commonwealth , Ky., 456 S.W.2d 693, 694 (1970).
38Centers v. Commonwealth , Ky. App., 799 S .W .2d 51, 55 (1990), citing White v.
Sowders, 644 F .2d 1177 (6th Cir.1980) .
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police's failure to provide Miranda warnings . 39 Accordingly, Appellant now is unable to
challenge the constitutionality of his arrest and the admission of certain pieces of
evidence due to his unconditional plea of guilty.
Interestingly, Appellant essentially concedes this conclusion . Rather, according
to Appellant, the principle set forth in Quarles and its progeny - that a valid guilty plea
waives all defenses other than that no offense has been charged by the indictment does not apply in situations where only the sentence, not the validity of the guilty plea,
is being challenged . Appellant insists that Sanders v. Commonwealth 40 is inapplicable
to this issue, as the Commonwealth proposes, because the suppression issue there
related only to the defendant's guilt. Furthermore, Appellant notes that the court in
Sanders specifically stated that a valid guilty plea does not waive a right to appeal the
sentence .
41
Here, Appellant argues that a suppression hearing should have been
conducted to limit the evidence introduced during the penalty phase, and such a
challenge is not waived by entry of a valid and unconditional guilty plea .
Unfortunately, we cannot reach the merits of this novel issue because no motion
to suppress was ever presented to the trial court. Of course, in capital cases, we will
review even unpreserved errors pursuant to Sanders . 42 However, such an analysis is
necessarily predicated upon a determination that an error actually occurred . Here, no
error occurred because the trial court has no duty to conduct a suppression hearing on
its own motion . We find this argument similar to Appellant's assertion, infra, that the
39Thomas v. Commonwealth , Ky., 459 S .W.2d 72 (1970).
40Ky .
App., 663 S .W .2d 216 (1983).
41
Id . at 218.
42Ky 801
S .W.2d 665, 668 (19911,
,
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trial court should have, sua sponte , offered him an opportunity to withdraw his guilty
plea. The trial court must ensure a fair trial ; the trial court is not burdened by the duty to
try the case on behalf of defense counsel . Even when an objection or motion has been
made, the burden continues to rest with the movant to insist that the trial court render a
ruling ; otherwise, the objection is waived. 43 Hence, absent a defense motion to
suppress, the trial court committed no error in admitting the evidence to which Appellant
now objects .
Arguments Relating to Appellant's Plea of Guilty
Validity of Guilty Plea
Appellant raises two issues surrounding his plea of guilty to capital murder, firstdegree robbery, and first-degree escape . First, Appellant argues that his due process
rights were violated when the trial court accepted his guilty plea because he failed to
admit each element of both the murder and robbery charge . After a review of the
record and considering the totality of the circumstances surrounding Appellant's guilty
plea, we conclude that Appellant's guilty plea was made voluntarily and with
understanding of the charges and, therefore, no due process violation occurred .
Appellant contends that he never admitted to one element required for the
murder charge and one element required for the first-degree robbery charge, and
therefore the trial court should not have accepted his guilty plea . The element of
murder, as defined by KRS 507.020, which Appellant claims he did not admit is "to
cause the death of another." Appellant denies admitting to the trial court that he
administered the fatal blow to Cash . At his first trial, Appellant testified that he
remembered striking Cash one time with the hammer, but does not remember any
43 B
ell v . Commonwealth , Ky. App., 473 S.W.2d 820, 821 (1971).
_19_
subsequent blows . Thus, according to Appellant, he never admitted that he dealt the
fatal blow to Cash ; Appellant also raises the possibility that another inmate could have
administered subsequent blows to Cash .
Appellant makes a similar claim with respect to the first-degree robbery charge .
He argues that he did not admit to all the elements of first-degree robbery: that crime
requires the actor to be "in the course of committing a theft" and Appellant claims that
he did not admit to being in the course of committing a theft when he removed money
from Cash's wallet. 44 Appellant told the trial court that he did not form the intent to take
anything from Cash until after Cash was unconscious . By virtue of this statement,
Appellant opines, he was not in the course of committing a theft when he assaulted
Cash and therefore his guilty plea to first-degree robbery is invalid .
In asserting that he did not specifically admit to each element of the charges, we
believe that Appellant is essentially challenging the sufficiency of the evidence against
him. It is well-settled law in Kentucky that a voluntary, intelligent plea of guilty precludes
a postjudgment challenge to the sufficiency of the evidence . 45 Therefore, the relevant
inquiry becomes whether Appellant's guilty plea was voluntary and intelligent . Appellant
argues that his guilty plea was not voluntary because the record reflects that he entered
the plea with an apparent lack of understanding of the charges . To support this
contention, Appellant points to his own statements during the plea colloquy . While
explaining the crimes to the trial court, Appellant repeatedly impressed that he did not
44 KRS 515 .020 .
45T
aylor v. Commonwealth , Ky. App ., 724 S .W .2d 223, 225 (1986). See also
Menna v. New York, 423 U.S . 61 n .2, 96 S . Ct. 241 n.2, 46 L . Ed . 2d 195 n .2 (1975)
("[a] counseled plea of guilty is an admission of factual guilt so reliable that, where
voluntary and intelligent it quite validly removes the issue of factual guilt from the
case ) .
-20-
pre-plan Cash's murder, that he did not kill Cash in order to effectuate an escape plan,
and that he did not decide to take Cash's wallet until after he assaulted Cash . 46
Appellant argues that these statements evidence that he did not fully understand the
charges against him, and therefore the trial court erred in concluding that the guilty plea
was voluntary and intelligent .
A trial court may not accept a plea of guilty without an affirmative showing that
the plea is entered intelligently and voluntarily. 47 The trial court must be satisfied that
the defendant has a full understanding of what the guilty plea connotes and its
consequences . 48 In reviewing the validity of a guilty plea, an appellate court must
examine the totality of the circumstances and determine whether an intelligent plea was
entered voluntarily and with understanding of the charges. 49
46
When asked to explain the crimes, Appellant made the following statements : "I
know that there are those that believe that I done this for the purpose of escaping and
there are those that will always believe that . . . I had less than three and a half years to
the Parole Board and for me to do that intentionally, I just had to want to throw my life
completely away . . . I had nothing planned . If I had anything planned or it was done
intentionally with the amount of hours that I had after the thing happened, I probably
would not have gotten caught at that particular time . But I made some bad decisions
and I done things that, you know, that it is just simply ridiculous to say that it was
planned."
The trial court asked Appellant what he did after striking Mr. Cash with the
hammer, to which Appellant replied : "I realized . . . what had happened and the escape
and the robbery came afterwards . Yes, I did go in his pockets, I would assume, and got
his wallet, me thinking that he may have had some money on him or something like
this, but I just basically got into the truck and left . . . . But I can tell you, that did not
happen because I wanted to escape."
47 RCr .08
8
; Boykin v . Alabama , 395 U .S . 238, 242, 89 S. Ct. 1709, 1711, 23 L.
Ed . 2d 274, 279 (1969).
48Fontaine v. United States , 526 F .2d 514, 516 (6th Cir. 1975) .
49Kotas v. Commonwealth , Ky ., 565 S .W .2d 445, 447 (1978), citing Brady v .
United States , 397 U .S. 742, 90 S . Ct. 1463, 25 L . Ed . 2d 747 (1970) .
-21-
After a thorough review of the record, we are not persuaded that Appellant
lacked a full understanding of the charges against him . Appellant signed a motion to
enter a guilty plea in this matter, as well as a statement waiving his rights as a criminal
defendant . Appellant stated to the trial court that he freely signed and fully understood
both documents. In addition to a discussion concerning Appellant's waiver of rights
form, which alone would satisfy the requirements of Boykin ,50 the trial court engaged in
an extensive colloquy with Appellant . Appellant again was reminded of his rights as a
criminal defendant and in particular the rights specified in Boykin, he was apprised of
the nature of the charges against him, he was made aware of the penalties which he
faced and the aggravators that would be applied against him, and he was questioned
as to whether he was satisfied with his legal representation . Moreover, he was given
the opportunity to explain, in his own words, the crimes to which he pled guilty . In
response to the trial court's questions, Appellant made numerous declarations of guilt
before the trial court ; this Court has recognized that solemn declarations in open court
carry a strong presumption of veracity. 51 In reviewing the totality of the circumstances,
we also bear in mind the lengthy procedural history of this matter: we find it difficult to
believe that Appellant lacked an understanding of the charges against him when he had
already endured an entire trial and appeal on the same three charges . In light of the
foregoing, and with particular regard being paid to the thorough and lengthy plea
colloquy conducted by the trial court, we conclude that Appellant entered his guilty plea
knowingly and voluntarily. Therefore, Appellant may not now challenge the sufficiency
50C rawford v.
Commonwealth , Ky., 789 S .W .2d 779, 780 (1990).
51 Cen
ters , 799 S .W .2d at 54 .
-22-
of the evidence against him. Accordingly, Appellant's due process rights have not been
violated .
Failure to Offer Opportunity to Withdraw Guilty Plea
Appellant next claims that he should have been afforded an opportunity to
withdraw his guilty plea once it was determined that a jury would fix his punishment .
Appellant entered his unconditional plea of guilty pursuant to RCr 8 .08 at a hearing held
on January 12, 1995 . At the same hearing, but before the plea was accepted, the trial
court considered a motion in which the Commonwealth sought to demand the
empanelment of a jury for the sentencing phase pursuant to RCr 9 .26, despite the fact
that Appellant had validly waived his right to jury sentencing . The trial court denied the
motion, and the Commonwealth stated its intent to appeal that decision . Understanding
that this Court would soon determine the issue conclusively, the trial court agreed to
postpone sentencing Appellant until a decision in Commonwealth v. Johnson 52 was
rendered . Thereafter, the Court of Appeals considered the Commonwealth's appeal in
this matter and remanded for jury sentencing in light of Johnson.
Appellant now argues that the trial court should have offered him an opportunity
to withdraw his guilty plea before the jury-sentencing phase commenced . What is
conspicuously and inexplicably absent, however, is a defense motion to withdraw the
guilty plea. Appellant acknowledges that the lack of a motion to withdraw renders this
issue unpreserved, but nonetheless asks us to review the trial court's failure to requestion him as to his guilty plea for palpable error.
52Ky .,
910 S.W .2d 229 (1995) (holding that RCr 9 .84 requires a jury verdict on
sentencing in capital cases absent an agreement o f all parties) .
-23-
The Appellant's arguments are without merit. Absent a defense motion, a trial
court is not required to sua sponte offer defendants an opportunity to withdraw guilty
pleas . The fact that the applicable law concerning jury sentencing in capital cases
shifted during the pendency of this case in no way creates a duty in the trial court to requestion Appellant about his plea . Therefore, we conclude that no reversible error
occurred .
Challenges Concerning Statutory Aggravators
Appellant makes several claims of error with respect to the use of aggravating
circumstances during the penalty phase proceedings . Specifically, Appellant alleges
that: (1) the trial court erred in permitting the Commonwealth to use heinousness as an
aggravator; (2) that Appellant's prior capital conviction was improperly used as an
aggravator; and (3) that the, trial court erred in failing to direct a verdict for failure to
prove all elements of the aggravators .
Heinousness as an Aggravator
Appellant first claims that his Eighth Amendment rights were violated when the
Commonwealth urged the jury to impose the death penalty based on the heinousness
of the crime . This issue is unpreserved for appellate review, and therefore we will
consider the matter under the test set forth in Sanders . 53 Appellant contends that the
Commonwealth emphasized the heinousness of the crime to such a degree that it
essentially asked the jury to base a sentence of death on the heinousness of the crime .
Appellant bases this argument solely on the Commonwealth's Attorney's use of the
word "heinous" four times in its opening statement.
53
Id
-24-
We have reviewed the Commonwealth's Attorney's opening statement and find
no error .
During his opening, the Commonwealth's Attorney stated to the jury: "The
crimes are heinous and the Commonwealth seeks a punishment that befits the nature
of these heinous acts ." Later in opening statement, the Commonwealth's Attorney
twice referred to Appellant's actions as "heinous ." Attorneys are afforded much leeway
in making opening statements and closing arguments . 54 It must also be remembered
that attorneys are presenting arguments to the jury, not evidence. We do not agree that
the Commonwealth exceeded its boundaries in referring to Appellant's crimes as
"heinous ."
Furthermore, we do not believe that the Commonwealth's Attorney's use of the
word "heinous" to describe the crimes elevated "heinousness" to the level of an
aggravating circumstance . The Commonwealth's Attorney enumerated for the jury
three statutory aggravators under KRS 532 .025(2)(x) that were being applied in this
case ; heinousness was not among them. The trial court instructed the jury only on
those three statutory aggravators . While Appellant is correct in stating that the use of
heinousness as an aggravator would be unconstitutional, there is simply no evidence
whatsoever that heinousness was used in this case as an aggravating factor.
Prior Conviction as an Aggravator
Error is next cited where the trial court allowed the admission of Appellant's 1974
willful murder conviction as an aggravator because it was not a capital conviction as
required by KRS 532 .025(2)(x)(1) . Appellant challenges the trial court's ruling on two
54Wage
r v. Commonwealth , Ky., 751 S.W.2d 28, 30 (1988) ; Lynem v.
Commonwealth , Ky., 565 S .W .2d 141,145 (1978).
55 M
aynard v. Cartwright, 486 U .S . 356, 108 S . Ct. 1853, 100 L. Ed . 2d 372
(1988).
-25-
grounds : (1) that his 1974 conviction was not a capital conviction as required by KRS
532.025(2)(x)(1), and (2) that the absence of a record in the 1974 willful murder case
left Appellant with no way to be heard in a challenge to the validity of the prior
conviction .
Appellant was convicted in 1974 of willful murder. He argues that the conviction
was not a capital conviction as required by KRS 532 .025(2)(x)(1) because, at the time
of sentencing, a federal moratorium against the death penalty was in place, as a result
of the U .S. Supreme Court holding in Furman v. Georgia.
56
Hence, according to
Appellant, the conviction was not a capital conviction because the death penalty was
not an option at that time. We can dispense with this argument without determining
whether a murder conviction obtained during the federal moratorium against the death
penalty is nonetheless a capital conviction for purposes of KRS 532 .025(2)(x)(1) . "A
statutory aggravating circumstance serves to place the appellant in the class eligible for
the death penalty."
57
Appellant was already eligible for the death penalty.
58
Thus, we
need not decide whether the 1974 willful murder conviction was a "capital" conviction
for purposes of KRS 532 .025(2)(x)(1) . Furthermore, we find no merit to Appellant's
assertion that this issue renders KRS 535.010 and KRS 532.025(2)(x)(1)
unconstitutionally vague .
Appellant also challenges the use of his 1974 conviction as an aggravator on the
grounds that no record of that trial exists . Appellant argues that he was never afforded
an effective appeal due to the absence of a trial record, rendering the conviction
56
408 U .S . 238, 98 S . Ct. 2726, 33 L. Ed. 2d 346 (1972).
57Bevins v. Commonwealth , Ky., 712 S .W.2d 932, 935 (1986). See also Zant v.
Stephens , 456 U .S . 410, 102 S . Ct. 1856, 72 L. Ed . 2d 222 (1982).
s
KRS 532 .025(2)(x)(5) .
-26-
constitutionally infirm, and therefore improperly admitted as an aggravator in the
present matter. Of course, as stated above, this argument does not warrant reversal as
the jury properly found the presence of another statutory aggravating factor, which
alone would authorize imposition of the death penalty . However, we will briefly address
Appellant's statement in his brief that this Court "affirmed the 1974 conviction, despite
the absence of any record," in violation of Section 115 of the Kentucky Constitution,
which entitles all criminal defendants to one appeal "upon the record ." To state that
Appellant was never afforded the opportunity of an effective appeal is materially
misleading and hints at serious impropriety on the part of this Court . In an unpublished
opinion rendered in May of 1994, this Court unanimously voted to affirm Appellant's
1974 willful murder conviction . While noting the unusual procedural circumstances of
the case due to apparent limitations of the record, this Court, after careful consideration
as evidenced by the lengthy review of the procedural and factual history of the case,
determined that "the record on appeal in this case as approved and settled by the Pike
Circuit Court pursuant to CR 75 .13, is sufficient to provide for effective appellate review
of the proceedings in the trial court leading to the appellant's conviction of the crime of
willful murder and his sentence to life imprisonment. ,60 Appellant was convicted by a
jury and enjoyed effective appellate review ; thus, the introduction of this conviction as a
statutory aggravating factor was not improper .
Directed Verdict
Appellant next claims that the trial court erroneously denied his motion for a
directed verdict because the Commonwealth failed to prove all elements of the
59Thompson v. Commonwealth , Ky., 86-SC-566-TG (1994) .
so ld . at 10 .
-2 7-
aggravators applied. The appropriate standard for determining whether a trial court
should grant a motion for a directed verdict is whether, drawing all fair and reasonable
inferences in favor of the Commonwealth, the evidence was sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that the defendant is guilty ; if so,
a directed verdict should be denied . 61 The trial court denied Appellant's motion,
explaining that the Commonwealth had offered proof of the aggravators . We agree.
The jury found two aggravators beyond a reasonable doubt in this case, and substantial
evidence was offered to prove each. The Commonwealth called the clerk of the Pike
Circuit Court to testify regarding Appellant's prior murder conviction ; the Commonwealth
likewise proved that Appellant was incarcerated and that Mr. Cash was a prison
employee at the time of the murder . The trial court did not err in denying Appellant's
motion for a directed verdict.
Jury Sentencing Over Defense Objection
Appellant argues that the trial court erroneously allowed jury sentencing over
defense objection . In actuality, Appellant is challenging this Court's decision in
Commonwealth v. Johnson , and asks us to reverse that decision . 62 We decline to do
so. Johnson requires a jury verdict on sentencing in capital cases except upon the
agreement of all parties. 63 In this case, the Commonwealth never agreed to waive jury
sentencing. Therefore, the trial court properly denied Appellant's motion in opposition
of jury sentencing.
61 Commonwealth
62Ky .,
v . Benham , Ky., 816 S .W .2d 186,188 (1991).
910 S .W.2d 229 (1995).
63
Id. at 281 .
-28-
Hearing Concerning Effect of Woodall Case
Appellant next claims the trial court erred in denying a motion by which he
requested a hearing to consider the effect a trial in a nearby county might have on his
sentencing proceedings . Appellant alleges that the capital murder trial of Robert Keith
Woodall, which began shortly after Appellant's penalty phase proceedings, was so
sensational and shocking that the trial court should have conducted a hearing to
determine if that matter would affect Appellant's sentencing trial. We find no merit to
this argument. The motion presented to the trial court did not allege that Appellant
would be prejudiced by the Woodall trial in some way; rather, it discussed the conflicts
that existed because defense counsel was assigned to both trials . The motion was
denied, and we conclude that the trial court did not abuse its discretion in doing so.
Claims of Prosecutorial Misconduct
Appellant claims that he was denied a fair trial due to improper comments made
by the Commonwealth's Attorney during opening and closing statements . He directs
this Court's attention to six separate instances of alleged misconduct during either
opening or closing statements . In reviewing allegations of prosecutorial misconduct,
"the relevant inquiry on appeal should always center around the overall fairness of the
trial, not the culpability of the prosecutor." 64 Particularly, in reviewing opening and
closing statements for prosecutorial misconduct, the arguments must be considered as
a whole . 65
Appellant's first claim of prosecutorial misconduct is that the Commonwealth's
Attorney improperly used the terms "heinous" and "vicious" to describe the crimes and
64Maxie v. Commonwealth , Ky., 82 S.W.3d 860, 866 (2002) .
65Y nq
ou
v. Commonwealth, Ky., 25 S.W.3d 66, ?4-75 (2000).
-29-
Appellant, essentially imploring the jury to consider the heinous nature of the crimes as
an aggravating circumstance . Appellant is simply rehashing an argument previously
raised in this appeal and addressed, supra . We find no error.
Appellant next claims that the prosecuting attorney made comments that created
the impression that the prosecution was acting on behalf of the victim rather than the
Commonwealth .
66
Of course, a Commonwealth's Attorney is just that - a
representative of the Commonwealth, not the victim, and it is improper for the
Commonwealth's Attorney to suggest otherwise . Nonetheless, while perhaps
approaching the line of impropriety, we conclude that these statements fall within the
wide latitude afforded attorneys in presenting closing arguments . 67
Appellant cites error where the Commonwealth's Attorney made statements
improperly urging the jury to sentence based on sympathy for the victim, which also
served to glorify and enlarge the victim. 68 While the victim may be described to the
jury, the victim may not be glorified or enlarged . 69 Reading the prosecution's closing
66
During closing argument, the Commonwealth's Attorney stated : "[T]here's also
a burden that is being borne today and that is as a Commonwealth Attorney
representing a person who is not here today - an empty chair - Charles Fred Cash
taken from us by this man - this killer. That is a burden that is very very heavy. As a
representative of the Commonwealth to speak on behalf of one that has been
murdered . I am the last one on this earth to speak on behalf of Mr. Cash."
67 B
owling v. Commonwealth , Ky., 873 S.W.2d 175,178 (1993), cert. denied , 513
U .S. 862, 115 S. Ct. 176, 130 L. Ed . 2d 112 (1994).
68During his closing, the prosecutor argued the following : "You are here today to
impose a punishment and that punishment is death because life has not deterred this
defendant. . . . Charles Fred Cash is serving an eternal sentence because of this man .
Why should this defendant's fate be any different than Mr. Cash's? Death brought us to
this place . . . . Justice dictates a finding and a fixing of punishment of death . They will
ask for mercy. When they ask for mercy, I want you to remember Fred Cash . When
they cry for leniency, remember Fred Cash . That's all any prosecutor can ask."
69Bow
ling v . Commonwealth , KY., 942 S .W .2d 293, 302-03 (1997).
-30-
argument as a whole, we conclude that Mr. Cash was not improperly glorified or
enlarged in the minds of the jury. Appellant's other claims with respect to this portion of
the Commonwealth's closing argument are equally without merit.
Appellant's next claim of prosecutorial misconduct is that the Commonwealth's
Attorney improperly suggested that he had "done [his] part"' in prosecuting Appellant
and that the jury was the "final link ." 70 We do not agree that the prosecuting attorney's
statements constitute a suggestion that the jury was simply the "last link" in a chain, or
that the Commonwealth's comment rendered the death penalty a foregone conclusion .
Nor do we agree with Appellant's assertion that the jury's decision-making authority was
infringed upon. We find no error.
According to Appellant, the Commonwealth improperly insinuated that Appellant
should be sentenced to death for exercising his right to be sentenced before a judge
and jury, where the victim was simply murdered senselessly .71 Again, we find no error
70
The portion of the Commonwealth's closing argument to which Appellant
objects is the following : "Ladies and Gentlemen, I stand before you just as a man. I'm
not trying to lay any kind of guilt trip on you whatsoever . I'm not trying to arouse any
passion . I didn't create those exhibits. I have tried to introduce the evidence as best I
could and this is something that I did not take lightly and I have never done this before
- standing before a group of jurors and asking that the ultimate penalty be imposed ."
Then, later in the argument, the prosecuting attorney concluded : "I carry a note with me
and I have carried it every day in this trial. It's from my son. He said, do the best you
can, Dad . I've done that. I've done all I can do . I'm going to turn it into your hands but I
ask that when you go back there, you look at those exhibits and you consider all of the
evidence and you write those three aggravators down on Verdict Form Number Four
and you fix this killer's punishment at death ."
71 The Commonwealth's Attorney argued the following during his closing: "William
Eugene Thompson has been represented by very able and very competent counsel .
He has presented evidence in his own behalf . In short, we have spent a considerable
amount of time in this matter. But you know, that is as it should be because that is only
just and proper, plus it is the law. William Eugene Thompson has received a fair trial,
done according to proper legal procedures . . . . There in that early morning hour,
Charles Fred Cash, a correctional employee, in the course of performing his duty at the
Western Kentucky Fare; Center, a complex operated by the Department of Corrections,
-3 1-
in these statements .
Finally, Appellant alleges that the Commonwealth's Attorney improperly vilified
him by using the terms "mean," "evil," and "vile" to describe him. Upon review of the
entire argument, we do not agree that these comments rise to the level of prohibited
vilification or abuse of a defendant. Accordingly, we find no error.
Jury Instructions
Appellant argues that the jury instructions were constitutionally defective .
He
raises sixteen distinct claims of error with respect to the jury instructions given during
the penalty phase proceedings . All but one issue are unpreserved and will be reviewed
pursuant to Sanders . 73 In determining if an error occurred, it is necessary to set forth
the appropriate analytical framework to be used in challenges to jury instructions :
[T]he proper inquiry in such cases is whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that
prevents a consideration of the constitutionally relevant evidence .
Although a defendant need not establish that the jury was more likely than
not to have been impermissibly inhibited by the instruction, a capital
sentencing proceeding is not inconsistent with the Eighth Amendment if
there is only a possibility of such an inhibition . This "reasonable
likelihood" standard, we think, better accommodates the concerns of
finality and accuracy than does a standard which makes the inquiry
dependant upon a single hypothetical "reasonable" juror who might have
interpreted the instruction .74
Appellant first maintains that, because the jury was informed that its verdict must
be unanimous, the jury could have mistakenly believed that it was required to find the
received no trial. That morning, this Defendant, a convicted killer acted as Fred Cash's
judge, acted as his jury and he acted as his executioner ."
72 S anborn v.
Commonwealth , Ky., 754 S .W.2d 534, 544-45 (1988).
73 Ky .,
801 S.W .2d 665, 668 (1991) .
74 B
oyde v. California , 494 U.S . 370, 380, 110 S. Ct. 1190, 1198, 108 L . Ed . 2d
316, 329 (1990).
-32-
existence of mitigating factors unanimously as well, before such factors could be
considered in arriving at a verdict . He argues that such an instruction permitting nonunanimity should have been given, and that the failure to so instruct the jury rendered
its verdict so unreliable as to require reversal. This issue was not preserved; however,
no such instruction was required and therefore, no error occurred . 75
Appellant next claims that the format of the verdict forms could have led the jury
to believe that, once an aggravator had been found beyond a reasonable doubt, the
only permissible sentence would be death . This argument is wholly without merit. An
examination of the jury instructions reveals that the jury was informed it could
recommend a sentence other than death even if aggravating factors had been found
beyond a reasonable doubt. Instruction Four - Authorized Sentence plainly states:
"But even if you have found the aggravating circumstance or circumstances to be true
beyond a reasonable doubt, you may still impose any of the four punishments for
Murder listed above ." Thus, we find no error. 76
Appellant next raises a similar argument : that the jury should have been
instructed that it did not have to recommend death even if it found no mitigating
circumstances or even, in the alternative, if the jury found that the aggravating
circumstances outweighed the mitigating circumstances. Again, the instructions
themselves belie this contention : the jury was instructed "if upon the whole case you
have a reasonable doubt whether the Defendant should be sentenced to death, you
75Tamme v. Commonwealth , Ky ., 973 S .W .2d 13, 37 (1998). ("The instructions
did not imply that unanimity was required on mitigators and there is no requirement that
a jury be instructed that their findings on mitigation need not be unanimous .") See also
Kordenbrock v. Scrogg , 919 F .2d 1091, 1121 (6th Cir. 1990) .
76See Foley v. Commonwealth , Ky., 942 S .W.2d 876, 888-89 (1996).
-33-
shall instead fix his punishment at a sentence of imprisonment." The jury was properly
instructed that the finding of aggravating circumstances, even coupled with the absence
of any mitigating factors, did not require imposition of the death penalty . 77
Appellant next cites error where the trial court did not instruct the jury on nonstatutory mitigating circumstances . The jury was instructed to consider mitigating
factors that had been presented in the evidence,
including those aspects of the defendant's character, background and
those facts and circumstances of the particular offense of which he is
guilty, to wit : the murder of Charles Fred Cash, about which he has
offered evidence in mitigation of the penalty to be imposed upon him and
which you believe from the evidence to be true.
Nothing in the instructions prohibited the jury from considering all evidence of mitigation
that was presented, nor was defense counsel prevented from arguing evidence of
mitigation . Such a "catch-all" provision in the mitigation instruction has been
determined to be adequate, and there is no need to instruct the jury on specific nonstatutory mitigators . 78
Appellant next contends that he was entitled to a directed verdict on mitigating
circumstances, because the Commonwealth did not present any evidence to rebut the
instructed statutory mitigators or the non-statutory mitigators. Therefore, according to
Appellant, the trial court should have directed a verdict and ordered the jury that it must
consider all of the mitigation evidence, in lieu of the tendered instruction which stated
that the jury need only consider such evidence in mitigation that "you believe to be
true." This issue is unpreserved as no motion for a directed verdict was presented to
the trial court . Regardless, this claim does not warrant reversal as no error occurred .
77
Id . at 889.
78Tamme , 973
S .W .?d at 37 .
-34-
"There is no evidence that Kentucky law considers it appropriate, and there is no case
holding that the United States Constitution requires (or even allows) directed verdicts on
mitigating circumstances."
79
In rejecting a claim that a directed verdict should have
been granted as to a capital defendant's mitigating circumstance of intoxication, the
Sixth Circuit explained why Kentucky's status as a "non-balancing" state with respect to
capital sentencing defeats the argument :
[I]n Kentucky, a jury can refuse to give the death penalty as an act of
mercy, even if there are no mitigating circumstances, or it can impose it
even in the presence of a mitigating circumstance, so long as the
defendant is "death qualified" by the presence of one statutory
aggravating factor. Therefore, even a directed verdict on the issue of
intoxication would not per se exclude the possibility of the jury
80
recommending the death sentence.
Therefore, we conclude that no error occurred .
Appellant's contention that the instructions failed to state the burden of proof
regarding the existence of aggravating circumstances is without merit. The instructions
clearly apprised the jury that the existence of any aggravating factor had to be found
beyond a reasonable doubt.
Appellant raises ten additional arguments concerning the penalty phase
instructions, as enumerated below. Each is essentially a plea to overturn longestablished precedent, and we decline to do so. First, Appellant challenges the trial
court's failure to inform the jury about parole . However, it would have been clear and
reversible error to admit such evidence .
81
Appellant cites error where the jury was not
79McQueen v. Scroggy, 99 F.3d 1302, 1331 (6th Cir. 1996). See also Mills v.
Commonwealth , Ky., 996 S .W.2d 473, 493 (1999).
80
Id . at 1332 .
8' Mills, 996 S .W .2d at 493, citing Perdue v. Commonwealth , Ky ., 916 S .W .2d
143, 164 (19951/ .
-35-
instructed that it should not be influenced by passion or prejudice . No such instruction
is required .82 No error occurred where the jury was not requested to put in writing its
findings as to whether each mitigating circumstance did or did not exist, as there is no
such requirement . 83 The trial court was not required to define the concept or role of
mitigating circumstances to the jury, nor to set forth for the jury the standard of proof
required .
84
The trial court also was not under a duty to instruct the jury that it could
reject the death penalty based on its sympathy for Appellant . 85 Likewise, a burden of
proof instruction regarding the existence of aggravating circumstances and that such
factors must outweigh the mitigating factors is not required under Kentucky law where
the jury has been otherwise properly instructed to weigh the evidence . 86 An instruction
requiring that the aggravators outweigh the mitigators beyond a reasonable doubt is
also not required under Kentucky law. 87 An instruction limiting the jury's consideration
to only those aggravating factors enumerated in KRS 532 .025 is not required .88 The
allegation that "reasonable doubt" should have been defined for the benefit of the jury is
without merit ; this Court has consistently held that reasonable doubt need not be
82 Perdue v. Commonwealth , Ky., 916 S .W .2d 148, 169 (1996).
83
KRS 532.025(3); Smith v. Commonwealth , Ky., 734 S.W.2d 437, 451 (1987).
84Ta m me , 973 S .W.2d at 37-38 .
85 S
affle v. Parks , 494 U .S. 484, 100 S. Ct. 1257, 108 L . Ed . 2d 415 (1990).
86 S
mith v. Commonwealth , Ky., 599 S .W .2d 900, 912 (1980). ("So long as we
have properly instructed jurors to weigh the evidence in their deliberations, without the
court having to encroach on their prerogatives, we do not need to instruct the jury on
the weight of aggravating and mitigating circumstances .")
ht
KRS 532 .025; Bowling , 942 S .W .2d at 306.
88 S
mith, 599 S.W.2d at 911 . ("The court properly declined to instruct the jury
that it could not consider any aggravating factors not enumerated in KRS 532 .025(2).
Such an instruction would have been improper .")
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defined, in accordance with RCr 9.56(2). 89 No error occurred where the trial court did
not inform the jury of the consequences of its sentence, i .e . that a death sentence
would actually result in electrocution . 90 Appellant's argument regarding an instruction
concerning the presumption of innocence is without merit; the jury was instructed that
any aggravating factor had to be determined beyond a reasonable doubt. Finally,
residual doubt of guilt is not a mitigating circumstance and no error occurred because
the jury was not so instructed. 91
Sentencing
Appellant raises three arguments with respect to the trial judge's sentencing.
First, Appellant claims that the trial court did not consider non-statutory mitigators .
However, Appellant fails to provide any evidence that the trial judge failed to consider
evidence of mitigation . In fact, the trial court stated on the record, during the
sentencing hearing, that it had considered all of the evidence, arguments, and motions
presented . This argument is unfounded .
Appellant next cites error where the trial court failed to make specific written
findings regarding mitigating circumstances . This argument is also without merit; the
trial court is not required to make specific findings of mitigating factors. 92
Likewise, Appellant's contention that there is no articulated standard of review for
89Id. at 911 . ("Counsel for appellant offered instructions in which 'reasonable
doubt' was attempted to be defined ; however, the trial court refused to give them, and
properl~r so .")
~Bowling , 942 S .W.2d at 306. ("Such an instruction is not required by law and
its omission cannot be considered error. A jury selecting death as a sentence must be
presumed to know that death will be the result of that sentence.")
91 Bussell v. Commonwealth , Ky., 882 S .W .2d 111, 115 (1994).
92Bowlina,
942 S .W .2d at 306 .
-3 7-
the trial court in determining sentence is without merit . 93 The trial court acted within its
discretion in upholding the jury's sentencing recommendation .
Jury Selection Issues
Excusal of Five Jurors Based on Attitudes Toward the Death Penalty
Appellant asserts that the trial court deprived him of a fair and impartial jury by
improperly excusing five prospective jurors based on their opposition to the death
penalty. The basis of this contention is that the trial court inadequately questioned
prospective jurors CM, BC, RD, WH, and JS after they expressed their reservations .
A prospective juror may be excluded for cause because of his or her views on
capital punishment if those views would "prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath ."
94
The mere expression of reservations or scruples about capital punishment is not
enough to determine that person's position "[u]nless a venireman states unambiguously
that he would automatically vote against the imposition of capital punishment no matter
what the trial might reveal ." 95 The excusal of jurors for cause is a matter within the
sound discretion of the trial court . 96
In response to questioning by the court, CM stated that she could not put
anybody to death because of her religious beliefs . BC stated repeatedly that she did
not believe in capital punishment and would not impose it under any circumstances .
93 1d
94Caudill v. Commonwealth , Ky., 120 S.W.3d 635, 654 (2003) (quoting
Wainwright v. Witt, 469 U .S . 412, 105 S. Ct . 844, 83 L. Ed . 2d 841 (1985) .
95
Id . (quoting Witherspoon v. Illinois , 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed . 2d
776 (1968)) .
96Furnish v. Commonwealth , Ky., 95 S .W .3d 34, 44 (2002), cert . denied ,
U .S .
, 124 S . Ct . 115, 157 L . Ed . 2d 80 (2003).
-3 8-
RD told the court that she would automatically exclude the death penalty from
consideration. WH also stated that he did not believe in capital punishment and would
not consider it. After hearing the range of possible punishments, JS initially stated that
she had a problem with the death penalty because of her religious beliefs, but that
circumstances might modify that feeling. She went on to say that neither twenty years'
imprisonment nor life imprisonment was enough punishment for murder. She stated
that life without the possibility of parole was enough . We are convinced that the
prospective jurors unequivocally stated their inability to impose the death penalty under
any circumstances. In the case of JS, although she stated that circumstances might
affect her opposition to capital punishment, she also stated that she could not consider
the minimum sentence either .
97
There was no abuse of discretion .
Failure to Excuse Jurors for Cause
Appellant also argues that he was denied a fair and impartial jury by the trial
court's failure to excuse six jurors for cause because of their attitudes in favor of the
death penalty.
Prospective jurors should be excused for cause if they would automatically
impose the death penalty upon a finding of guilt.
98
Jurors must be able to consider the
entire range of penalties for intentional murder and cannot favor the death penalty to
the exclusion of all other penalties prescribed by law.
99
The test for determining
whether a juror should be stricken for cause is "whether, after having heard all of the
97 S
ee Grooms v. Commonwealth , Ky., 756 S .W .2d 131, 137 (1988).
98Caudill , supra, ( citing Morgan v. Illinois , 504 U.S . 719, 112 S . Ct. 2222, 119 L .
Ed . 2d 492 (1992)) .
99
Id . at 655 .
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evidence, the prospective juror can conform his views to the requirements of the law
and render a fair and impartial verdict." 100 Agreement and immediate embracement
with the law when it is presented in its most abstract or extreme manner is not a
prerequisite for qualification . 101 "The fact that some potential jurors expressed a
tendency toward the most severe penalty when presented with specific situations does
not automatically preclude their service."' 02 Again, the determination of this matter is
within the sound discretion of the trial court.
In this case, the trial court conducted a thorough individual voir dire. The court
informed each juror of the entire range of penalties and the existence of aggravating
and mitigating factors . The court inquired as to whether each juror would be able to
consider these issues and follow the court's instructions pertaining to them. The court
also discerned the extent to which the jurors may have been affected by publicity .
Counsel for both the Commonwealth and defense were permitted to ask follow-up
questions . There was some confusion among the jurors regarding the use of mitigating
evidence, however, the court cleared this up when it explained that mitigating evidence
does not go to guilt or innocence, but rather to fixing the severity of punishment . The
six jurors at issue were all able to articulate that they could consider the entire range of
penalties as well as the evidence of aggravating and mitigating factors in determining
punishment . The jurors also expressed that they would be able to follow the
instructions of the court in accordance with the law and that neither their attitude nor
100 M
abe v. Commonwealth , Ky., 884 S.W.2d 668, 671 (1994).
Id .
102 Bowling
v. Commonwealth , 873 S .W.2d at 177.
101
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their judgment was affected by any outside influence. There was no abuse of
discretion .
Refusal to Grant Additional Peremptory Challenges
Appellant argues that he was denied a fair and impartial jury by the trial court's
refusal to grant him additional peremptory challenges .
Appellant was granted the amount of peremptory challenges required by RCr
9.40 . The decision to grant additional peremptories is within the sound discretion of the
trial court.' 03 The trial court did not abuse its discretion.
Morgan claim
Appellant also claims that he was not afforded the opportunity to adequately
question jurors about their attitude towards the death penalty in light of the aggravators
presented by the Commonwealth. The trial court did ask the prospective jurors whether
they could consider the full range of penalties for Appellant where evidence would be
presented of three aggravating factors, in addition to evidence of mitigating
circumstances . Appellant requested the court to ask the jurors a slightly different
question regarding their attitude towards the death penalty : that is, if they would
automatically impose the death sentence if the three aggravators were proven beyond a
reasonable doubt . The trial court denied defense counsel's request, determining that
the proposed question impermissibly asked a prospective juror to commit to a verdict
before hearing the evidence . The trial court also noted that it felt that the proposed
question was essentially a re-wording of questions already being posed . Appellant
claims that the trial court's ruling denied him due process of law because he was not
103Tamme, 973 S .W .2d at
96 .
-4 1-
able to intelligently exercise his preemptory challenges and challenges for cause in
striking prospective jurors .
Appellant's reliance on Morgan v. Illinois is misplaced .
104
In Morgan , it was
determined that the defendant should have been permitted to inquire whether a
prospective juror would automatically impose the death penalty upon conviction ; i .e . , if
the prospective juror would recommend death regardless of any evidence in mitigation,
so long as the defendant was proven guilty beyond a reasonable doubt . The question
actually posed by the trial court in Morgan - that is, whether a prospective juror would
"follow the instructions on the law" - was insufficient to satisfy the due process right to
make meaningful inquiry into jurors' biases and views towards the death penalty . 105
Morgan concerns itself with the defendant's right to make inquiry ; it does not set forth
an affirmative right to ask certain specific questions of prospective jurors, as Appellant
asserts . Where a defendant is seeking to determine prospective jurors' attitudes
towards the death penalty, "it would be a game of semantics, not law, to conclude that
the failure to phrase a question in a specific way is fatal where other questions are
equally illuminating ." 106
Here, Appellant's proposed question seeks to determine whether a prospective
juror is so biased in favor of the death penalty, that he or she would automatically
impose it upon a finding of aggravating circumstances. Essentially, Appellant was
seeking to determine whether a prospective juror would consider evidence in mitigation,
even where aggravating factors existed . We conclude that the permitted voir dire was
104
504 U .S. 719, 112 S . Ct . 2222, 119 L. Ed . 2d 492 (1992) .
504 U .S. at 723, 112 S. Ct. at 2226, 119 L . Ed . 2d at 499.
106McQ ueen , 99 F.3d
at 1330.
105
-42-
sufficient and thorough enough to elicit the information sought by Appellant . After
reciting the aggravating circumstances in the case, defense counsel asked the voir dire
panel if "those facts that you will find make you believe that maybe there's already an
opinion in your mind or in your head about what needs to be done?" Defense counsel
was permitted to ask each juror whether he or she could consider all ranges of
penalties. The trial court also engaged in questioning concerning jurors' attitudes
towards the death penalty, specifically asking jurors whether they would consider all
range of penalties in light of the evidence and whether they had already formed an
opinion based on the preliminary facts presented (which included a synopsis of the
circumstances of the crime and the aggravators to be applied in the case) .
The extent of and scope of direct questioning during voir dire examination is a
matter within the sound discretion of the trial court.' 07 The trial court determined that
the information sought by Appellant was already being elicited by other questions, and
the record supports this conclusion. We find no abuse of discretion .
Death Qualification
Finally, Appellant argues that death qualification of a jury is unconstitutional .
This Court and the United States Supreme Court have rejected this argument. 108
Double Jeopardy
Appellant claims that he was exposed to double jeopardy where the parole board
ordered a serve-out of his sentence from the 1974 willful murder conviction because of
the murder of Mr. Cash, and then Appellant was sentenced to death for the same
107Tamme , 973
S .W .2d at 25.
108 Lockhart v. McCree , 476 U .S . 162, 165, 106 S . Ct. 1758, 1760, 90 L. Ed. 2d
137, 142 (1986); Buchanan v. Kentucky, 483 U .S. 402, 107 S. Ct . 2906, 97 L . Ed . 2d
336 (1987); Sanders v .Commonwealth , Ky., 801 S .W .2d 665, 672 (1991).
-43-
crime . Appellant argues that he is being punished twice for the same crime in violation
of his Constitutional rights .
Appellant waived this issue. Defense counsel presented the question of double
jeopardy to the trial court, at which time the trial court instructed defense counsel to
submit a written memorandum . Defense counsel did not submit a memorandum and
the issue was not thereafter considered .
Regardless, Appellant's contention is without merit . Double jeopardy does not
apply to parole or probation revocation proceedings because the threat of a negative
parole board finding does not rise to the level of being "put in jeopardy" in the
Constitutional sense . 109 In other words, a parole or probation hearing simply is not the
equivalent of a criminal prosecution because a conviction could not flow from such a
proceeding .
110
Therefore, we conclude that double jeopardy does not bar the
Commonwealth from sentencing Appellant to death for the murder of Mr. Cash where
that behavior was also used adversely against Appellant at his parole hearing .' 11
Proportionality Review
Pursuant to KRS 532 .075, we have reviewed the death sentence imposed
109 U
nited States v. Miller, 797 F.2d 336, 340 (6th Cir. 1986) (concluding that
double jeopardy did not preclude the Government from prosecuting defendant for illegal
activity where it had previously and unsuccessfully attempted to have defendant's
probation revoked for the same activity). See also United States v. Whitney , 649 F.2d
296, 298 (5th Cir. 1981) (noting that "parole and probation revocation proceedings are
not designed to punish a criminal defendant for violation of a criminal law . . . [but] to
determine whether a parolee or probationer has violated the conditions of his parole or
probation") .
1101d
. at 340 .
ill Cf. St . Clair v. Roark, Ky., 10 S .W .3d 482, 487 (2000) . ("Nor is it double
jeopardy to impose a separate penalty for one offense while using the same offense as
an aggravating circumstance authorizing imposition of capital punishment for another
offense.")
-44-
herein . Our review of the record and consideration of counsels' arguments indicates
that the sentence was not imposed under the influence of passion, prejudice or any
other arbitrary factor.
112
Rather, the sentence was based on Appellant's own admission
of the crimes and the substantial evidence presented in support of two statutory
aggravating factors .
Contrary to Appellant's assertion, the evidence of mitigation did not outweigh the
evidence of aggravation . While defense counsel did present a significant amount of
evidence in mitigation, especially concerning Appellant's background and mental state,
the evidence of aggravation was substantial and compelling . The sentencing jury found
the existence of two statutory aggravating factors beyond a reasonable doubt, and
there was ample evidence to support this finding . 113
Our review indicates that this sentence of death is neither excessive nor
disproportionate to the penalty imposed in other similar capital cases, considering both
the crime and this particular defendant. 114 In conducting a proportionality review, we
must consider not only whether other criminal defendants received the death penalty for
similar crimes, but also whether Appellant's sentence is disproportionate in relation to
this crime.
115
We have reviewed those cases since 1970 in which the death penalty
was imposed for a single murder and conclude that the punishment herein is not
excessive or disproportionate . In particular, we have considered the cases of Johnson
112KRS
532 .075(3)(a).
532.075(3)(b) .
114KRS
532.075(3)(c).
115KRS 532.075; See also IVIcQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996) .
113KRS
-45-
v. Commonwealth 116 and Mills v. Commonwealth, 117 both involving a single murder
victim. Nor do we believe that the death sentence is disproportionate with respect to
Appellant and the crimes to which he pled guilty . The fact that the victim was an
employee of the prison facility, that the victim was beaten repeatedly and viciously to
the head with a hammer, then dragged and left to perish in a barn stall, that Appellant
thereafter robbed the victim and escaped from the prison facility, and the admitted lack
of any cognizable motive are significant to this determination . Therefore, there was no
error.
Constitutionality of Death Penalty
Appellant asks this Court to declare Kentucky's death penalty statute
unconstitutional . The constitutionality of the death penalty statute is well settled .
118
Appellant's assertion that Kentucky's death penalty statute operates in a
discriminatory and arbitrary fashion is without merit. Its application cannot be
considered arbitrary in light of the guidelines for its imposition set forth in KRS 532.035
and KRS 532.075 . 119
Appellant was not denied effective assistance of counsel, rational sentencing,
due process or equal protection of the law where he was denied access to this Court's
compilation of KRS 532.075 data . 120
Kentucky's proportionality review is constitutional and comports with statutory
116Ky .,
103 S.W .3d 687(2003).
996 S.W .2d 473 (1999).
118S kaggs v. Commonwealth , Ky., 694 S .W.2d 672, 682
(1985).
119
Bowling, 942 S .W .2d at 306 . See also Tamme, 973 S .W.2d at 40.
120 H arper
v. Commonwealth , Ky., 694 S.W .2d 665, 670-671 (1995), cert. denied ,
476 t1 .S .1178, 106 S . Ct. 2906, 90 I-. Ed . 2d 992 (1986).
117Ky .,
-46-
requirements and the federal Constitution . 121 Appellant asserts that KRS 532 .075 is
unconstitutional because it lacks sufficient articulated standards, thus denying him
procedural due process of law; this argument has been presented, considered and
rejected by this Court on numerous occasions. 122
Cumulative Error
Appellant received a fundamentally fair penalty proceeding and there was
insufficient harmless error to create a cumulative effect that would mandate reversal for
a new trial .
For all of the foregoing reasons, the judgments and sentences imposed by the
Lyon Circuit Court are affirmed .
All concur .
121
122
Sanders, 801 S .W.2d at 683 .
Id. ; See also Foley , 942 S.W.2d at 890; Bowling, 873 S .W.2d at 182.
-47-
COUNSEL FOR APPELLANT :
Oleh R. Tustaniwsky
Susan Jackson Balliet
Assistant Public Advocates
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General of Kentucky
Connie Vance Malone
David A. Smith
Michael G . Wilson
Assistant Attorneys General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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