SAMUEL STEVEN FIELDS V. COMMONWEALTH OF KENTUCKY
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Courf of
2004-SC-000091-MR
SAMUEL STEVEN FIELDS
APPELLANT
ON APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
NO. 01-CR-00142
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING
Appellant, Samuel Steven Fields, was convicted of murder and first-degree
burglary and sentenced to death . He appeals to this Court as a matter of right, Ky.
Const. ยง110 (2)(b), raising forty-nine allegations of error. For the reasons set forth
herein, we affirm the judgment.
Background
Appellant was convicted of the murder of Bess Horton. During the early morning
hours of August 19, 1993, two Grayson police officers responded to a call from the
duplex apartment of Elmer Pritchard . Pritchard rented the apartment from Bess Horton,
whose own single-family home was located nearby .
When Officers Lindeman and Green arrived in the area, they noticed a light on at
Norton's home and the garage door open. The storm window on the front porch had
been removed and the window was open . The doors were locked and Lindeman went
through the open window into Horton's bedroom . Inside, he found Horton's body lying
on the bed. Her throat had been slashed and a knife had been buried into her right
temple. He also found Appellant in the bedroom . In his possession, he had a small
knife, some jewelry, and other items belonging to Horton . The knife, a small butter
knife, had a broken tip. At trial, the Commonwealth argued Appellant used this knife to
remove screws from a storm window at Horton's house.
Appellant was arrested at the scene but denied killing Horton. According to
Appellant, he had been drinking heavily and consuming "horse tranquilizers" throughout
the afternoon of August 18, 1993 . He was accompanied by his girlfriend, Minnie Burton;
Phyllis Berry; and other friends . After driving around Carter and Boyd Counties for
several hours, Burton and Appellant returned to Grayson and headed for Appellant's
mother's apartment . They continued drinking with Appellant's brother, John Fields, who
also lived at the apartment.
Eventually, Burton and Appellant began fighting and Appellant started throwing
furniture, knives, and other objects around the living room. Burton left, stating that she
was going to her own residence . She also lived in the duplex owned by Horton and
occupied by Pritchard . The testimony concerning what transpired after this point was
conflicting .
Burton testified that she left the apartment because Appellant's behavior scared
her. She headed towards her duplex apartment on Horton's property, but was unable to
gain entry . Pritchard had locked the door because Horton was in the process of evicting
Burton. Burton had lived rent-free in the duplex in exchange for running Horton's
errands and chauffeuring her. The relationship had turned sour, however, and Horton
had turned off the power and water in the duplex in an attempt to force Burton out.
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Thus, on the evening of August 18th, Burton was unable to gain entry into her
apartment .
In light of this circumstance, Burton testified that she sat on the front porch of the
duplex . Appellant arrived some time later with a knife in his hand and was making a
loud commotion . He told Burton that he had killed his brother, John, though Burton also
testified that she did not fully believe the claim (in fact, Appellant had not killed his
brother) . He then took Burton's keys and told her that he would get into the duplex,
implying that he might break in . Burton left, leaving through the backyard of the duplex
as Appellant went around the side to the front door. Unbeknownst to either Burton or
Appellant, Elmer Pritchard had heard the noise outside and had called the police .
Burton testified that she went to the nearby home of her aunt and uncle, Bernice
and Kenny Floyd, and told them about Appellant's claim that he had killed his brother .
She used their telephone to call Phyllis Berry, but did not get through . She departed the
Floyds' house and walked to the home of Mary Click, where she encountered her
cousin, Kim Mayle. Mayle drove Burton back to Appellant's mother's apartment to see if
John Fields was alright . Finding no one home, they returned to Click's house. Burton
slept there, until the next morning when police arrived to question her.
According to Appellant, he left the duplex and walked over to Horton's home to
look for Burton . Appellant told police that Burton was angry with Horton for evicting her
and that she wanted to rob her. Appellant claimed that when he arrived at Horton's
residence, he saw the open window and entered the house through that opening . The
bedroom had already been ransacked, so he began pocketing anything he could find .
Appellant claims that he did not notice Horton's body on the bed until police arrived .
Appellant was tried before a Rowan Circuit Court jury and found guilty of murder
and burglary . He was sentenced to death . On direct appeal, this Court reversed the
judgment. See Fields v. Commonwealth , 12 S .W.3d 275 (Ky. 2000) . Appellant was
retried upon change of venue to the Floyd Circuit Court . He was again convicted of
murder and first-degree burglary and sentenced to death . It is from that judgment that
he now appeals as a matter of right.
Standard of Review
Appellant raises forty-nine issues for our review. In the interest of clarity, we
have grouped these issues into categories . Several of these cited errors are
unpreserved . Nonetheless, in light of the penalty imposed and pursuant to KRS
532.075(2), we review even unpreserved allegations of error. The standard of review
for such unpreserved errors is:
Assuming that the so-called error occurred, we begin by inquiring : (1)
whether there is a reasonable justification or explanation for defense
counsel's failure to object, e.g ., whether the failure might have been a
legitimate trial tactic; and (2) if there is no reasonable explanation, whether
the unpreserved error was prejudicial, i .e., whether the circumstances in
totality are persuasive that, minus the error, the defendant may not have
been found guilty of a capital crime, or the death penalty may not have
been imposed .
Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky. 2003), citin Sanders v.
Commonwealth , 801 S.W.2d 665, 668 (Ky. 1991) .
Jury Issues
Scope of Voir Dire
Appellant alleges that he was denied a fair jury selection process. To support
this contention, Appellant relies on four rulings of the trial court that limited the
parameters of voir dire: (1) the denial of Appellant's motion to use a juror questionnaire ;
(2) the denial of Appellant's motion to ask four specific questions concerning the death
penalty ; (3) the failure to grant alternate questioning of potential jurors during voir dire;
and (4) the failure to grant adequate peremptory challenges . Upon a thorough review of
the relevant portions of the record, we conclude that the jury selection in this case
satisfied due process requirements .
Appellant sought to elicit background information from potential jurors through
the use of an expanded juror questionnaire . According to Appellant, the fourteenquestion form would help to identify areas where further questioning of a juror might be
necessary . It posed open-ended questions such as: "What are your feelings and beliefs
about the death penalty?" and "What type of case comes to mind as appropriate for the
death penalty?"
A central purpose of voir dire is to give the trial court the opportunity to visually
observe the demeanor and affect of a potential juror. The use of a juror questionnaire,
particularly one which poses substantive questions, defeats this purpose . "While
preliminary instructions acquainting the jury with the nature of the judicial process are
perfectly proper, providing jurors in advance with specific questions they will be asked
so they can prepare in advance to answer such questions is an abuse of voir dire which
must not be tolerated." Sanborn v. Commonwealth, 754 S.W.2d 534, 546 (Ky. 1988),
overruled on other rounds bv Hudson v. Commonwealth, 202 S.W.3d 22 (Ky. 2006) .
In denying the use of Appellant's proposed juror questionnaire, the trial court acted well
within the scope of its discretion to control voir dire. See St. Clair v. Commonwealth,
140 S.W.3d 510, 531-32 (Ky. 2004) .
Appellant unsuccessfully moved the trial court to ask each prospective juror four
questions concerning the death penalty.' Though these specific questions were
rejected, Appellant was afforded the opportunity to meaningfully question prospective
jurors about the death penalty . During individual voir dire, the trial court informed
prospective jurors of the possible penalties in the case and inquired whether they could
consider the entire range . Defense counsel was permitted to ask follow-up questions
specifically concerning the death penalty and mitigation, as required by RCr 9.38. While
counsel is entitled to question jurors on whether they can consider the entire range of
penalties should a guilty verdict be returned, there is no "affirmative right to ask certain
specific questions of prospective jurors." Thompson v. Commonwealth, 147 S.W.3d 22,
53 (Ky. 2004) (citation omitted) . "The extent of direct questioning by counsel during voir
dire is a matter within the discretion of the trial court." Tamme v. Commonwealth, 973
S .W.2d 13, 25 (Ky. 1998) . There was no abuse of that discretion in this case.
The trial court denied Appellant's motion to allow the Commonwealth and the
defense to ask alternate questions during voir dire. RCr 9.38 does not set forth an order
in which prospective jurors should be questioned, as Appellant asserts . Rather,
decisions regarding the manner and scope of voir dire lie within the sound discretion of
the trial court. See Webb v. Commonwealth , 314 S .W.2d 543, 545 (Ky. 1958) . There
was no abuse of that discretion .
Appellant requested eighteen peremptory challenges, but was given eleven.
Pursuant to RCr 9.40, he was entitled to ten. "Whether to grant additional peremptory
The proposed questions were: (1) Do you have any feelings or beliefs, one way or the other about the
death penalty?; (2) Have you ever discussed your feelings regarding the death penalty with your family,
friend, or co-workers?; (3) Tell me briefly what your feelings are, if they are any different than what you
have already said?; (4) If you are on a jury, do you have any moral or religious or conscientious
objections that would prevent you from considering the death penalty as a punishment and imposing it, if
you believe it appropriate?
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challenges is clearly within the discretion of the trial court." Stopher v. Commonwealth ,
57 S .W.3d 787, 798 (Ky. 2001) . We find no abuse of discretion in the trial court's
refusal to grant eight additional peremptory challenges.
A capital defendant is entitled to a jury that can fairly consider the entire range of
punishments. Grooms v. Commonwealth, 756 S .W.2d 131 (Ky. 1988) . It is well-settled
that an adequate voir dire examination is mandatory to the seating of a fair and impartial
jury in a death penalty case . Morris v. Commonwealth, 766 S.W.2d 58, 60 (Ky . 1989) .
We have thoroughly reviewed the record in this case and are satisfied that no unfair
restrictions were placed on Appellant's ability to adequately question potential jurors
concerning their opinion about the death penalty .
Voir Dire on Mitigation
Appellant claims that his constitutional right to a fair and impartial jury was
violated when he was unduly restricted from questioning potential jurors about
intoxication as a mitigating factor. Defense counsel sought to pose the following
question to prospective jurors during individual voir dire : "Under the law of Kentucky,
intoxication at the time of the offense is a mitigating circumstance . A mitigating
circumstance is a reason to give a less severe penalty . Is intoxication a factor you, as a
juror, would be able to consider in imposing a punishment, or is that not something you
would be able to consider in imposing a punishment?" The trial court determined that
the question attempted to commit the juror in advance to a certain theory or result.
Instead, during individual voir dire, the trial court defined mitigation generally and asked
prospective jurors if they could follow the instructions to consider mitigating evidence.
However, the trial court did permit questioning about intoxication during general
voir dire. Defense counsel invited the panel to share their experiences "being around
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friends or family that were intoxicated ." A fairly lengthy discussion ensued, wherein the
panel discussed the effects of intoxication on personality and whether intoxicated
persons should be held responsible for their actions despite the impairment. Defense
counsel also asked if any panel member would be unable to hear evidence about
intoxication or drug use because of negative experiences in the past . Finally, defense
counsel inquired whether evidence of intoxication would "in any way impair your ability
to sit and listen to the evidence and consider it in a way the Judge may instruct you to
consider ."
"[P]art of the guarantee of a defendant's right to an impartial jury is an adequate
voir dire to identify unqualified jurors ." Morgan v. Illinois , 504 U .S . 719, 729, 112 S .Ct.
2222, 2230, 119 L.Ed .2d 492 (1992). Nonetheless, it is within the trial court's discretion
to limit the scope of voir dire . Webb , 314 S.W.2d at 545 . "The test for abuse of
discretion in this respect is whether an anticipated response to the precluded question
would afford the basis for a peremptory challenge or a challenge for cause." Hayes v .
Commonwealth , 175 S.W.3d 574, 583 (Ky. 2005).
A similar allegation of error was made in McQueen v . Scrogg , 99 F .3d 1302 (6th
Cir. 1996). Defense counsel for McQueen sought to pose the following question to the
jury panel : "Under our situation of the law on drugs and alcohol, sometimes it can be
used to mitigate the punishment, reduce the crime. Could you agree with that;
understand how that could be?" The trial court refused to allow the question, finding
that it implicated a legal standard . However, defense counsel was able to ask other
questions designed to elicit jurors' attitudes toward alcohol and drugs, such as, "How do
you feel about the use of alcohol?" and "Do you think that the use of drugs or alcohol
could influence a person to do some act they otherwise would not do?" The Sixth
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Circuit found no abuse of discretion in the trial court' limitations : "McQueen had the
opportunity to obtain helpful information with respect to the jurors' views of intoxication
as a mitigating factor." McQueen , 99 F.3d at 1329.
The permitted voir dire in this case was of the same nature as -in McQueen and
was sufficient to satisfy Appellant's right to make inquiry. Defense counsel asked
numerous open-ended questions regarding intoxication and alcohol that successfully
elicited meaningful responses from several jurors . During the discussion, many jurors
candidly offered their experiences with intoxication and revealed their personal attitudes
toward alcohol. The limitations imposed by the trial court did not unduly restrict
Appellant's ability to identify unqualified jurors. There was no abuse of discretion.
Juror Admonition
Appellant claims that the trial court continually failed to adequately admonish the
jury pool. During individual voir dire, the trial court admonished each prospective juror
not to discuss the case with anyone, but did not give any specific admonition to avoid
media coverage . After the first day of trial, the trial court told the empanelled jury to
avoid newspaper and television coverage of the case, but did not specifically mention
radio coverage. Prior to another three day recess, the trial court simply told the jury that
all prior admonitions still applied . Though the issue is unpreserved, Appellant now
argues that these admonitions were insufficient and in violation of the mandates of RCr
9 .70.
RCr 9 .70 does not apply to the jury pool; rather, the admonitions required by the
rule apply "only after the jury has been selected and sworn to try the case ." St. Clair,
140 S.W.3d at 532. Furthermore, it was not error for the trial court to admonish the
empanelled jury by reference. RCr 9.70 specifically permits such method .
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Regardless, Appellant has not provided any indication that the jury conducted
itself contrary to the admonition and, therefore, any supposed error is harmless. See
Salina s v . Commonwealth, 84 S .W.3d 913, 917 (Ky. 2002) .2 Moreover, a review of the
record reveals that the trial court gave numerous, detailed admonitions throughout the
course of this lengthy trial. Thus, while RCr 9 .70 requires an admonition at each
adjournment, "in the absence of some showing of misconduct, substantial compliance
with [the rule] will suffice ." Commonwealth v. Messex, 736 S.W.2d 341, 342 (Ky. 1987).
The error, if any, was undoubtedly harmless.
Mistrial on Basis of Jury Taint
Prior to the commencement of voir dire, a prospective juror asked a, bailiff if "this
was the case which had started the previous year ." Apparently, this juror had heard
about the trial on the radio . In response, the trial court dismissed the entire group of
prospective jurors who were in the courtroom . Appellant moved for a mistrial, arguing
that prospective jurors from the dismissed group might discuss the case with other
potential jurors still on the panel .
A mistrial is an extraordinary remedy that should be granted only when
manifestly necessary . Skaggs v. Commonwealth , 694 S.W.2d 672, 678 (Ky. 1985) .
Appellant's claim is highly speculative . There is no indication that any of the dismissed
jurors discussed the case with other panel members. The trial court made every effort
to avoid any possible taint by dismissing the entire group . A mistrial was not warranted.
See Key v. Commonwealth , 840 S .W.2d 827, 830 (Ky. App. 1992) (affirming denial of a
mistrial where movant's evidence was "nothing more than speculation that the juror
knew [the defendant]") .
2 Likewise, the fact that the trial court had been contacted by a local newspaper does not establish any
misconduct or improper exposure on the part of the jury.
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Strikes for Cause
Appellant challenges the trial court's rulings with respect to six jurors, claiming
that it erred in striking four jurors and in refusing to strike two others. "A potential juror
should be excused for cause only when the juror cannot conform his/her views to the
requirements of the law and render a fair and impartial verdict." Ratliff v.
Commonwealth, 194 S.W.3d 258, 266 (Ky. 2006) . See also RCr 9.36(1) . With respect
to capital cases in particular, a prospective juror must be struck for cause if his views of
capital punishment would "prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath ." Adams v. Texas, 448 U.S.
38, 45, 100 S.Ct . 2521, 2526, 65 L.Ed.2d 581 (1980) . The decision whether to excuse
a juror for cause lies within the sound discretion of the trial court: "[D]eference must be
paid to the trial judge, who sees and hears the juror, in reviewing determinations of
impropriety of challenges for cause." Penman v. Commonwealth, 194 S .W.3d 237, 252
(Ky. 2006) .
Juror 34
Appellant claims that Juror 34 was improperly struck for cause. We have
reviewed the individual voir dire of Juror 34 and find no abuse of discretion . Juror 34
expressed substantial reservations about sentencing a defendant to a term of
imprisonment, stating: "Whether they're guilty or not guilty, I just don't think I could do
it," and "[I] just couldn't live with myself if I had to send somebody to the pen ." She
repeated this sentiment no less than five times . When asked specifically about the
death penalty, Juror 34 replied : "To tell you the truth, I don't know . . . I just don't know if
I could or not." Despite defense counsel's attempts to rehabilitate Juror 34, her
responses, when read in their entirety, made evident her serious reservations about
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sentencing a defendant to a term of imprisonment or death. At no point did Juror 34
ensure the court that she would be able to consider the full range of penalties.
Accordingly, the trial court did not abuse its discretion in excusing this juror for cause.
See Woodall v. Commonwealth , 63 S.W.3d 104, 120 (Ky. 2001) (juror properly struck
for cause who stated that he "didn't think" he could consider the death penalty).
Juror 26
Appellant challenges the trial court's decision to remove Juror 26 for cause. At
the outset of individual voir dire, Juror 26 stated that he could consider the entire range
of penalties . However, as questioning progressed, he expressed an inability to consider
the death penalty. When specifically asked by defense counsel to explain this
discrepancy, Juror 26 replied : "Well, I just - I thought about it, you know, and I just don't
know. I thought about, you know, the four [penalties] that he was talking about there
and the death penalty . I thought about it, and then after I thought about it, you know, I
don't think so ." After further questioning, Juror 26 again expressed his inability to
impose the death penalty and stated that he would be unable to sign a verdict form
recommending death should he be elected foreperson . When read in its entirety, Juror
26's responses evidence an inability to consider the entire range of penalties that would
be included in the court's instructions . As such, he was properly excused for cause .
Juror 27
Juror 27 was properly disqualified due to his inability to consider the death
penalty. He expressly stated during individual voir dire that he would "exclude [the
death penalty] automatically." When defense counsel attempted to rehabilitate this juror
by explaining that he was only required to considerthe death penalty, he stated, "We
(the jury) can discuss it, but that still won't change my mind."
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"[T]he Commonwealth is entitled to have excused for cause a person who has
such conscientious objection to the death penalty that he would never, in any case, no
matter how aggravated the circumstance, vote to impose the death penalty." Grooms,
756 S .W.2d at 137. Juror 27 made clear his inability to consider the death penalty in
any circumstance, even if the court instructed him to do so. He was properly excused
for cause.
Juror 86
Appellant argues that Juror 86 was improperly struck for cause. The trial court
determined that Juror 86 was substantially impaired in his ability to consider the entire
range of penalties . We agree with Appellant that Juror 86 gave contradictory responses
that did not clearly articulate his feelings about the death penalty. At the outset of
questioning, he told the trial court that he would be able to consider the entire range of
penalties, but later responded that he "didn't believe" he could impose the death
penalty. He repeated this sentiment at least three times . While this juror's responses
may have been inconsistent at times, we find no abuse of discretion in the trial court's
decision to disqualify this juror. See Patton v. Yount, 467 U .S . 1025, 1039, 104 S.Ct.
2885, 2893, 81 L.Ed .2d 847 (1984) ("Jurors thus cannot be expected invariably to
express themselves carefully or even consistently . Every trial judge understands this,
and under our system it is that judge who is best situated to determine competency to
serve impartially.") .
Juror 9 7
Appellant also claims that the trial court improperly refused to strike Juror 17 due
to her inability to consider the minimum sentence . Indeed, when questioned by defense
counsel about the proper punishment for an intentional murder, she stated, "I would feel
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it would have to be life without parole for twenty-five years or death if it got to that point."
However, Juror 17 also stated that she would be able to follow all of the court's
instructions ; that she would keep an "open mind" ; and that she would "have to hear the
evidence before [she] could actually pick [a punishment] ." In fact, when specifically
asked by defense counsel whether she would consider a punishment other than death,
Juror 17 replied, "You got the options, and that's what you've got them for, is to consider
them all ."
When Juror 17 expressed a preference for a harsher punishment, it was in
response to defense counsel's hypothetical examples. Such responses are not
determinative of a juror's ability to be fair and impartial :
[A] juror is often presented with the facts in their harshest light and asked
if he could consider imposition of a minimum punishment. Many jurors
find it difficult to conceive of minimum punishment when the facts as given
suggest only the most severe punishment . . . . The test is not whether a
juror agrees with the law when it is presented in the most extreme
manner. The test is whether, after having heard all of the evidence, the
prospective juror can conform his views to the requirements of the law and
render a fair and impartial verdict.
Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994) .
Juror 17's responses throughout the voir dire examination made clear her
willingness to consider all punishments, to follow the court's instructions, and to
consider all the evidence presented . The trial court did not abuse its discretion in
refusing to strike this juror for cause.
Juror 43
The trial court did not err in overruling Appellant's motion to strike Juror 43 for
cause due to her employment as a paralegal in the Floyd County Commonwealth
Attorney's Office. Juror 43 was unequivocal in her willingness to follow the court's
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instructions and to consider the entire range of penalties . She stated on numerous
occasions her desire to "be as fair as I know how to be ."
In Randolph v. Commonwealth , a juror failed to reveal her employment with the
Commonwealth's Attorney during voir dire, even though questions designed to elicit
such information were posed by defense counsel . In reversing the conviction, we held,
"[i]t is obvious that an implied bias challenge lies against juror Miller because her
position as secretary for the Commonwealth's Attorney gives rise to a loyalty to her
employer that would imply bias ." 716 S .W.2d 253, 255 (Ky. 1986) . Still, the trial court
"must determine the existence of bias based on the particular facts of each case." Id.
In Randolph , this Court concluded there were reasonable grounds to believe that the
juror could not render a fair and impartial verdict.
The facts of this case differ significantly. Juror 43 readily provided that she
worked for the Floyd County Commonwealth Attorney's Office and defense counsel was
given the opportunity to question her about her employment and loyalties . Cf.
Randolph , 716 S .W.2d at 256 ("A verdict is improper when a peremptory challenge is
not exercised by reason of false information .") . Unlike in Randolph , Juror 43 was not
employed by the Commonwealth's Attorney who was prosecuting the case. s She
confirmed that she had absolutely no prior knowledge of Appellant's case. Cf.
Randolph , 716 S .W.2d at 255 ("In addition it is entirely possible that she may have been
in a position to have known about the case prior to trial.") .
In light of these circumstances, we do not believe that Juror 43 should have
been removed for cause solely due to her employment. Police officers and other law
enforcement officials are not disqualified to serve as jurors in criminal cases solely on
3 The Carter County Commonwealth's Attorney tried the case. This juror worked in the Floyd County
Commonwealth Attorney's Office .
15
the basis of their employment . Sholler v. Commonwealth, 969 S.W.2d 706, 708 (Ky.
1998). See also Woodall , 63 S.W.3d at 118 (juror's employment with the Kentucky
State Penitentiary not cause for disqualification) . Similarly, Juror 43 should not have
been excused due only to her position in a Commonwealth Attorney's Office that was in
no way involved in Appellant's prosecution . She gave no indication that she was unable
to render a fair and impartial verdict based on the evidence or that she was unable to
follow the court's instructions . As such, there was no error.
Sequestration of Jury
Appellant argues that the jury should have been sequestered during the thirty-six
hour period between the return of the guilty verdict and commencement of the penalty
phase proceedings. Contrary to Appellant's assertions, "RCr 9 .66 does not require that
jurors be sequestered between the guilt and penalty phases of the trial. Sequestration
is required only after a felony case has been submitted to a jury for its verdict." Bowling
v . Commonwealth , 873 S.W.2d 175, 182 (Ky. 1993) . It was within the trial court's
discretion not to sequester the jury between the guilt and penalty phases, which neither
party requested. There was no error.
Definition of Aggravating Circumstances
During individual voir dire, the trial court gave the following definition of
aggravating circumstances to each prospective juror: "Aggravating evidence is evidence
about a person's character, background or circumstance that may be considered as a
reason for imposing a more severe punishment than might otherwise be imposed."
Though no contemporaneous objection was made, Appellant now argues that this
definition is a misstatement of the law and that it impaired the jury's ability to consider
his mitigating evidence .
16
The trial court's definition of aggravating circumstances is, at best, nebulous .
The statutory aggravating factors enumerated in KRS 532.025(2)(a) relate to the
defendant's prior criminal history, the status of the victim, and the circumstances of the
crime. The trial court's definition, instead, gave the erroneous impression that evidence
of Appellant's character, his general background, and his personal circumstances would
be considered as aggravating circumstances . We have recognized that a trial court
may consider nonstatutory aggravating circumstances that, under certain
circumstances, might be characterized as evidence about the defendant's "character,
background or circumstance ." However, in this case, the jury was instructed solely on
the aggravating circumstance found at KRS 532.025(2)(a)(2) : "[t]he offense of murder or
kidnapping was committed while the offender was engaged in the commission of . . .
burglary in the first degree ."
Further, we find no indication that Appellant was prejudiced by the trial court's
definition of aggravating circumstances . The jury unanimously found that Appellant had
murdered Bess Horton during the commission of a burglary . This finding was supported
by substantial evidence, including the significant fact that Appellant was arrested in
Horton's home with her valuables in his pockets. For this reason, we do not believe that
the jury would have recommended a lesser punishment had the trial court provided a
more accurate definition of aggravating circumstances during individual voir dire .
Furthermore, we find no grounds for concluding that the jury's ability to consider
Appellant's mitigating evidence would have been impaired by this error. Accordingly,
reversal is not warranted . See Johnson , 103 S.W.3d at 691 .
Evidentiary Claims
Limits on Cross-Examination of Lindeman and Dobson
Appellant's primary evidentiary claim is that he was improperly limited in his
cross-examination of Officer Lindeman and Jason Dobson . Appellant was not permitted
to question these witnesses about their criminal histories in order to attack credibility
and reveal potential bias. A brief factual recitation is necessary to a full understanding
of this claim .
Officer Lindeman discovered Appellant in Horton's home, arrested him, and
heard his confession . After Appellant's first trial, but before his conviction was reversed
by this Court, Officer Lindeman was charged in Carter District Court with misdemeanor
counts of official misconduct, unlawful transaction with a minor, and harassment. The
charges resulted in a pre-trial diversion agreement and the loss of his job.
Jason Dobson was employed as an EMT in Ashland and treated Appellant for
abrasions to his arm immediately following his arrest. Following Appellant's first trial,
but before the conviction was reversed, Dobson pled guilty to fourth-degree assault of a
patient in police custody. He also lost his job.
We turn first to Lindeman's testimony, which was particularly important because
Appellant made the following confession to him : "Kill me, Ron, just kill me . I stabbed
her and I'm into it big time this time ." Appellant argues that Lindeman's subsequent
guilty plea to official misconduct reflects on his credibility . Further, because Lindeman
did not enter his guilty plea until after Appellant's retrial had been ordered, one could
infer that he forged a good relationship with the Commonwealth in return for favorable
testimony at the retrial .
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Appellant recognizes that KRE 609(x) bars the introduction of Lindeman's
conviction of misdemeanor crimes, but argues that a charge of official misconduct bears
upon his credibility and was, therefore, admissible pursuant to KRE 608(b). The
decision to admit specific instances of conduct concerning a witness' character for
truthfulness rests within the sound discretion of the trial court. See KRE 608(b) . See
also Purcell v. Commonwealth , 149 S.W.3d 382, 398 (Ky. 2004) . That discretion was
not abused in this instance . The claim that Lindeman curried favored with the
Commonwealth by favorably testifying in Appellant's case is purely speculative and
supported by no evidence. Furthermore, the claim is completely undermined by the fact
that Lindeman's testimony did not differ from the testimony he gave at Appellant's first
trial, before he was charged with the misdemeanor counts. See Davenport v.
Commonwealth, 177 S.W.3d 763,769 (Ky. 2005) ("[R]eviewing courts have found
reversible error when the facts clearly support an inference that the witness was biased,
and when the potential for bias exceeds mere speculation ."). The trial court did not
exceed its broad discretion in limiting cross-examination of Lindeman. See
Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) .
Dobson testified about statements that Appellant made to him while he was
being treated for minor abrasions to his arm . According to Dobson, he asked Appellant
where he was wounded and Appellant responded that he was not hurt. When Dobson
asked where all the blood came from, Appellant told him "if you had killed some lady
you would have blood on you too."
Defense counsel sought to cross-examine Dobson about his conviction for
assaulting a patient . At his first trial, Appellant testified that Dobson physically accosted
19
him and "baited" him into a confession. Defense counsel argued that Dobson's later
assault conviction was admissible to support Appellant's claim.
Again, Dobson's misdemeanor assault conviction was not admissible pursuant to
KRE 609. Furthermore, the trial court did not abuse its discretion in refusing to admit
this testimony pursuant to KRE 608(b) . Assault is not a crime which reflects upon "a
witness' character for truthfulness or untruthfulness[ .]" KRE 608(b)(1) . More important,
however, is that Appellant did not testify at his second trial, nor was his prior testimony
admitted . Therefore, the jury never heard Appellant's allegation that Dobson attacked
him and defense counsel had no reason to bolster this claim . For this reason, even if
error occurred, Appellant was not prejudiced .
Exclusion of Testimony Regarding Contents of Horton-s Vehicle
James Craig, an employee of Horton, testified at Appellant's first trial, but was
unavailable at the second trial . His testimony was read into the record. However, over
defense objection, the trial court redacted portions of the testimony concerning Horton's
vehicle . In the redacted portion, Craig testified that he found car keys, beer cans, and
marijuana seeds in the vehicle after Horton's death. Defense counsel sought to elicit
the same testimony from Elmer Pritchard, another Horton employee . Again, the
testimony was excluded .
Appellant now argues that the trial court's exclusion of this testimony denied him
the right to fully present his defense; that is, that Minnie Burton, who had access to
Horton's car, killed Horton . According to Appellant, this testimony tended to prove that
Burton used the keys to enter Horton's home and then threw them into the car on her
way out. Also, defense counsel argued this testimony supported the theory that Horton
had evicted Burton after learning that there were alcohol and drugs in her car.
20
We agree with the trial court that the testimony was irrelevant. Craig and
Pritchard both testified that multiple persons had access to Horton's car. No other
evidence was proffered to prove that Burton was the last person to drive the car or that
the beer cans and marijuana seeds belonged to her. Indeed, as the trial court noted,
there was no evidence linking any particular individual to the vehicle, and the vehicle
was in no way tied to the crime . In short, testimony that beer cans and a set of keys
were found inside Horton's car did not tend to make any relevant fact more or less
likely. See KRE 401 . There was no error.
Exclusion of Kimmel Testimony
Vince Kimmel was an acquaintance of Burton and Appellant who claimed that
Burton once confessed to him that she had committed the murder. Prior to trial,
however, Kimmel was involved in a serious car accident that rendered him incompetent
to testify . In light of his unavailability, defense counsel sought to introduce a recorded
statement Kimmel made to defense investigators . The trial court refused because
Kimmel had not been subject to cross-examination by the Commonwealth and his
statement contained hearsay.4
Appellant argues that this ruling unduly restricted his right to present a defense,
thus, violating his due process rights . The Sixth Amendment guarantees a criminal
defendant's right to present a defense, which includes evidence that someone else
committed the crime. Beaty v. Commonwealth , 125 S .W.3d 196, 207 (Ky. 2003).
However, evidence is not admissible simply because it would tend to prove that another
person was the perpetrator ; and criminal defendants' due process rights are not violated
4 A factual dispute arose about Kimmel's statement. According to defense counsel, Kimmel stated that
Burton confessed to him . The Commonwealth indicated to the trial court that Kimmel told its investigator
that he heard about Burton's confession from a third party .
21
by every limitation placed on the admissibility of evidence . Beaty, 125 S .W.3d at 208 .
Rather, the exclusion of evidence violates a defendant's constitutional rights when "it
significantly undermine[s] fundamental elements of the defendant's defense." United
States v. Scheffer , 523 U.S. 303, 315, 118 S.Ct. 1261, 1267-68, 140 L.Ed .2d 413
(1998) .
Such was not the case here . The evidence sought to be introduced contained
inadmissible hearsay evidence. See KRE 801 ; KRE 804. Furthermore, had Kimmel
been available as a witness, the Commonwealth indicated that it would have crossexamined him regarding his criminal background, mental health issues, and substance
abuse. Because the recorded statement was not subject to cross-examination, it bore
little indicia of reliability . The trial court enjoys broad discretion in decisions concerning
the admissibility of evidence, and we find no abuse of discretion in this instance . See
Olden v. Commonwealth, 203 S .W.3d 672, 677-78 (Ky. 2006) .
Nor do we believe Appellant was wholly prevented from presenting his defense
theory that Burton committed the murder, and his reliance on Chambers v. Mississippi
for this assertion is misplaced . 410 U :S. 284, 93 S .Ct. 1038, 35 L.Ed .2d 297 (1973).
"Chambers holds that application of evidentiary rules cannot be applied so as to
completely bar all avenues for presenting a viable defense. It does not hold that
evidentiary rules cannot be applied so as to properly channel the avenues available for
presenting a defense ." Mills v. Commonwealth , 996 S .W.2d 473, 489 (Ky. 1999) .
Throughout the trial, defense counsel ably injected the possibility that Burton committed
the crime. Significantly, Burton's supposed confession was elicited from two other
testifying witnesses . Appellant's defense was not unduly thwarted by the trial court's
ruling with respect to Kimmel's recorded statement.
22
Sexton Testimony
Appellant argues that the trial court improperly prohibited him from impeaching
Cindy Sexton with a prior inconsistent statement. Following Horton's murder, Sexton
was interviewed by Detective Stevens and revealed a conversation she once had with
Appellant and Burton. During this conversation, Appellant and Burton discussed
robbing Horton and even invited Sexton to participate . Later, Sexton was interviewed
by Gary Sparks, an investigator for the defense . According to Sparks' notes, Sexton
stated that Appellant and Burton also discussed physically harming or killing Horton
during the conversation . At trial, Sexton testified that the conversation related only to
robbing Horton. She further testified that she had given "pretty much the same story" to
both Sparks and Detective Stevens .
Defense counsel sought to impeach Sexton's testimony that she had given the
same statement to both Sparks and Detective Stevens. The trial court overruled
defense counsel's motion to introduce Sparks' investigative report, determining that the
report contained inadmissible hearsay. However, defense counsel was permitted to
recall Sexton during its case-in-chief to refresh her memory of the conversation she had
with Sparks . She testified that she did not recall telling him that Appellant and Burton
discussed harming Horton. Defense counsel then called Sparks . Upon questioning, he
testified : "[Sexton] stated that Minnie stated to her that on - not on one occasion, but on
several occasions, that the old lady ought to be killed ."
Assuming arguendo that the trial court erred in excluding Sparks' investigative
report as substantive evidence, the error was undoubtedly harmless. An error is
harmless "if there is no reasonable possibility that it contributed to the conviction ."
Anderson v. Commonwealth, 231 S.W.3d 117, 122 (Ky. 2007). Here, the jury was
23
aware that Sexton gave slightly differing statements to Sparks and Detective Stevens .
The jury also learned the substance of Sexton's conversation with Sparks and her
allegation that Appellant and Burton discussed harming Horton in addition to robbing
her . As the substance of Sparks' report was fully revealed through his testimony, we
discern no possibility that the result would have been different had the report itself been
admitted . The error, if any, was harmless.
Rebuttal Testimony by Detective Cales
In 2002, following Appellant's first trial, Norma Sloas contacted the Attorney
General's Office and related a conversation she had with Minnie Burton in 1996.
According to Sloas, Burton stopped by her house while she was sitting on the front
porch . Burton told her that she had killed Bess Horton. Burton also warned Sloas not
to repeat the confession to anyone . At trial, Sloas testified to the same facts . However,
she added that Burton was accompanied by her cousin, Kim Mayle, who left before
Burton made the supposed confession.
At trial, the Commonwealth called Detective Cales, who had interviewed Sloas
after her call to the Attorney General's Office, in an attempt to rebut Sloas' testimony.
Apparently, the Commonwealth was under the impression that Sloas did not mention
Mayle's presence when she was initially interviewed by Detective Cales. However,
Detective Cales testified that he could not remember whether Sloas mentioned Mayle or
not.
The trial court enjoys broad discretion in its determination of the admissibility of
rebuttal evidence. See RCr 9 .24; Chestnut v. Commonwealth , 250 S .W.3d 298 (Ky.,
2008) . Here, the trial court acted well within its discretion in permitting the
Commonwealth to rebut Sloas' claim that Burton had confessed. In any event,
24
considering Detective Cales' inability to remember his conversation with Sloas, it is
difficult to conceive any prejudice to Appellant . There was no error.
Bush Testimony
Jhonda Bush lived in the apartment next door to Appellant's mother and was
home the night that Horton was murdered . As stated previously, Appellant and Minnie
Burton were at his mother's apartment several hours before the murder and had gotten
into a loud argument. Because Bush was unavailable at Appellant's first trial, she
provided a written statement that was read into the record . In it, she stated that she
overheard yelling and shouting in the next apartment.a t about 1 :25 on the morning of
August 19t". She heard the sound of glass shattering and then the commotion stopped .
She did not actually see anyone entering or exiting the apartment next door.
During a pretrial hearing at Appellant's second trial, defense counsel moved to
introduce Bush's statement from the first trial . The Commonwealth agreed to stipulate
to the statement's introduction . Though the trial court requested that defense counsel
prepare an order regarding the joint stipulation, none can be found in the record
currently before this Court . Nonetheless, the statement was read to the jury absent an
objection from either party .
Appellant now claims that the introduction of this statement violated his
confrontation rights . In support, he asserts that the statement was inadmissible
because the Commonwealth made no effort to locate Bush and because Appellant had
no opportunity to cross-examine Bush . This argument is without merit, as Appellant
waived this constitutional right .
"[A] criminal defendant may waive the constitutional right to confrontation ."
Parson v. Commonwealth, 144 S .W.3d 775, 783 (Ky. 2004) . "[N]o doubt the privilege
25
(of personally confronting witnesses) may be lost by consent or at times even by
misconduct ." Illinois v Allen , 397 U .S . 337, 342-43, 90 S .Ct. 1057, 1060, 25 L .Ed .2d
353 (1970), quoting Snyder v. Massachusetts , 291 U .S . 97, 106, 54 S .Ct. 330, 332, 78
L .Ed. 674 (1934).5 Furthermore, contrary to Appellant's assertions, the trial court was
not obliged to obtain a personal waiver of his rights ; "Federal courts have uniformly held
that counsel can waive a criminal defendant's Sixth Amendment right of Confrontation
so long as the defendant does not dissent from his attorney's decision, and so long as it
can be said that the attorney's decision was a legitimate trial tactic or part of a prudent
trial strategy ." Parson , 144 S.W.3d at 783 (citations omitted) . See also Palfy v.
Cardwell , 448 F .2d 328, 332 (6t" Cir. 1971) (stipulations containing information which
established defendant's guilt were properly admitted because defendant "knowingly and
intelligently waived his right of confrontation") .
It is evident that Appellant waived his right to confront Bush. It must be
emphasized that defense counsel moved the court to introduce Bush's statement during
a hearing at which defendant was present. See Parson , 144 S .W.3d at 784 ("Appellant
was present and did not dissent from the waiver.") . Of course, Appellant was also
present at trial when the statement was read into the record, again without objection or
comment. Furthermore, admission of Bush's statement was clearly a legitimate trial
tactic. Bush's brief statement pertained only to the time when she heard a fight in
Appellant's mother's apartment; she did not identify the voices she heard or see anyone
leaving the apartment. Both the Commonwealth and the defense relied on this
statement for the limited purpose of establishing a timeline for the evening. It is
reasonable to assume that defense counsel preferred the simple solution of introducing
5 Snyder was overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S .Ct. 1489, 12
L.Ed .2d 653 (1964) .
26
Bush's statement, rather than attempting to locate and subpoena Bush. We conclude
that Appellant knowingly waived his right to confront this witness. There was no error.
Prior Bad Acts Evidence
Appellant claims that the trial court improperly admitted evidence of prior bad
acts in violation of KRE 404(b) . He directs our attention to nine different pieces of
testimony, which we address individually below . No contemporaneous objections were
made. See RCr 9 .22. Thus, if an error occurred in the admission of this testimony, we
determine whether the failure to object was a legitimate trial tactic . If not, we consider
whether the testimony prejudiced Appellant. Johnson, 103 S.W.3d at 691 . Reversal is
required only if we believe that, absent the admission of the testimony, Appellant would
not have been convicted or would not have been sentenced to death . Id .
Drug Use
Christopher Trent testified that he spent the afternoon of August 18th with
Appellant and that they drank beer and smoked marijuana that day. Minnie Burton
testified that Appellant was "pretty high" and "taking pills" when they returned to
Appellant's mother's apartment on the evening of August 18 th. He now complains this
testimony should have been excluded .
Appellant presented a defense of intoxication . To that end, defense counsel
elicited testimony from several witnesses that Appellant was intoxicated . In fact, during
opening arguments, defense counsel stated that Appellant was "highly intoxicated" and
had been "drinking and drugging" all day. For this reason, we see no way in which
6
Defense counsel's statements at the hearing support this conclusion : "[T]here was a stipulation from
what I would consider a pretty unavailable witness . . . . I have no idea where she is now. Unless the
Prosecution has an objection to that, I would like to renew that that be put in or else I'd have to start my
search for this woman ."
27
Appellant was prejudiced by testimony regarding his marijuana use. See Olden, 203
S.W.3d at 675.
Traffic Stop
Officer McDavid performed a traffic stop on a vehicle in which Appellant was a
passenger on the evening of August 18t". McDavid testified that Appellant "made a
derogatory statement toward us." However, prior to McDavid's testimony, defense
counsel had asked another witness, Christopher Trent, if Appellant "got smart-alecky
with the police ." As defense counsel had already elicited identical information from
another witness, any supposed error in the admission of McDavid's statement is
harmless . See Chumbler v. Commonwealth , 905 S.W.2d 488, 494 (Ky. 1995) .
James Berry's Incarceration
When asked what she did on August 18t", Minnie Burton testified that she and
Appellant drove to Ashland to visit Phyllis Berry's brother, James, who had "just gotten
out of the pen." The fact that James Berry was incarcerated does not constitute
evidence of Appellant's character simply because they were acquainted . Moreover, as
this statement was not responsive to any question posed by the Commonwealth, it was
not offered to establish Appellant's character in order to prove action in conformity
therewith. This evidence does not fall within the ambit of KRE 404(b) ; accordingly,
there was no error. See Fields , 12 S.W.3d at 284 (finding no error in admission of
identical testimony at Appellant's first trial) .
Fight at Appellant's Mother's Apartment
In describing what occurred in the hours prior to the murder, Burton testified that
she and Appellant argued while they were at his mother's apartment and that Appellant
threw a knife into the living room during this altercation. John Fields, Appellant's
28
brother, also testified about what transpired in the apartment. He stated that Appellant
had rubbed a large butcher knife up and down his arm .' There was also testimony from
both Burton and Pritchard that Appellant later attempted to break into Burton's
apartment .
All of this testimony directly relates to what transpired immediately before
Horton's murder. It helped to establish why Burton left Appellant's mother's apartment
and why Appellant eventually went to Horton's property . See Smith v. Commonwealth,
366 S.W.2d 902, 906 (Ky. 1963) ("[A]II evidence which is pertinent to the issue and
tends to prove the crime charged against the accused is admissible., although it may
also prove or tend to prove the commission of other crimes by him[.]") . This testimony
was also "inextricably intertwined" with the Commonwealth's proof of Appellant's mental
state at the time of the offenses . KRE 404(b)(2) . There was no error in the admission
of testimony describing Appellant's actions in the. hours before the crime .
Jhonda Bush Stipulation
In the stipulation read to the jury, Jhonda Bush stated that she overheard an
argument in Appellant's mother's apartment and that it sounded as if "they were hitting
each other." She further stated that it sounded like the voices of two men, but that she
could not identify either voice. Bush's statement was entered to establish a timeline of
events and to possibly corroborate Burton's testimony. It was not used to prove
Appellant's character or action in conformity therewith and, thus, does not fall within the
category of evidence prohibited by KRE 404(b). We note also that no prejudice flowed
from this testimony, as Bush did not identify Appellant's voice as one of the voices she
had overheard .
Appellant's brief states that defense counsel objected to this portion of John Fields' testimony. Our
review of the record reveals that counsel was objecting to a different portion of the testimony .
29
Burton's Fear of Appellant
Burton testified that she left Appellant's mother's apartment because he was
acting "wild" and she "was afraid of him ." Kim Mayle, Burton's cousin, likewise testified
that Burton wanted to get away from Appellant that evening . According to Mayle's
testimony, Burton feared Appellant would physically assault her. Burton's aunt, Bernice
Floyd, also testified that Burton expressed a fear of Appellant . None of this testimony
constitutes evidence of "other crimes, wrongs, or acts" committed by Appellant . KRE
404(b) . Rather, this testimony concerns Burton's mental state. There was no KRE
404(b) violation .
Police Competency Evidence
As part of his defense theory, Appellant attempted to establish that the police did
not thoroughly investigate the crime. He claims that numerous trial court rulings
impaired his ability to fully develop this defense . Appellant directs our attention
particularly to four rulings, which we address individually below.
Testimony of Detective Stevens
Kentucky State Police Detective Stevens was the lead investigator of Horton's
murder. On cross-examination, defense counsel asked Detective Stevens if local law
enforcement officers had made comments about how he was handling the investigation ;
he responded in the affirmative .$ Defense counsel then attempted to inquire about an
alleged confrontation between Stevens and a detective from the Grayson Police
Department . The trial court sustained the Commonwealth's objection to this question .
"The presentation of evidence as well as the scope and duration of crossexamination rests in the sound discretion of the trial judge." Moore v. Commonwealth ,
8 Detective Stevens was called as a witness by both the Commonwealth and the defense .
30
771 S.W.2d 34, 38 (Ky. 1988). Here, we agree with the trial court that the testimony
sought from Detective Stevens lacked relevancy . See KRE 402. Whether Stevens
argued with local law enforcement officials about his handling of the investigation is not
relevant to Appellant's guilt, nor does it tend to prove or disprove that the investigation
was handled improperly. There was no abuse of discretion.
Appellant also complains that the Commonwealth was permitted to question
Detective Stevens on cross-examination about the security of the crime scene.
Specifically, the Commonwealth was permitted to ask Detective Stevens why crime
scene tape was removed so quickly after Horton's murder. He explained that the police
removed the crime scene tape to lessen public curiosity and interference with the
investigation . Defense counsel's objection for relevancy was properly overruled .
Defense counsel had elicited testimony that no crime scene tape was around Horton's
home, implying shoddy police work . The Commonwealth was entirely within
permissible bounds to question Detective Stevens about the decision to remove the
crime scene tape .
Admission of Unidentifiable Latent Fingerprints
Appellant claims that the trial court improperly admitted latent fingerprint
evidence collected from a storm window and a glass jar, both found at Horton's home.
All six prints were analyzed but none were identified. Though defense counsel did not
object to the introduction of these fingerprints, Appellant now argues that they were
irrelevant because they were not identified. He also argues that their introduction
improperly "bolstered" the Commonwealth's case . This claim is utterly without merit.
The results of tests performed on fingerprints found at the crime scene are, of course,
relevant to a determination of Appellant's guilt. Moreover, it also rebutted any claims of
31
shoddy police work. Even if improperly admitted, we are unable to fathom how
Appellant was prejudiced by fingerprints that were never identified as his.
Cross-Examination of Murrie O'Brien
Murrie O'Brien, an employee of Horton who performed maintenance work on her
properties, testified that he went to Horton's home on the morning of August 19t" . On
cross-examination, O'Brien stated that he entered the victim's home through the back
door . Over the Commonwealth's objection, defense counsel also inquired whether
O'Brien encountered any police at the scene . He stated that several officers and other
people were present, but that no crime scene tape was around the house.
Later, a juror submitted a question for O'Brien. Though the record does not
reflect the exact wording of the proposed question, it appears that the juror wanted to
ask O'Brien why the police did not stop him from entering, Horton's home. The trial
court rejected this question as speculative and outside O'Brien's knowledge, a
conclusion with which we agree . Contrary to Appellant's assertion, there was no abuse
of discretion.
Limited Examination of John Raybum
Appellant claims that the trial court improperly limited his examination of John
Rayburn, who purchased Horton's home from her estate . Rayburn testified that when
he purchased the home, two storm windows were missing . He attempted to retrieve the
missing storm windows from the Grayson Police Department but was told that they were
evidence and, therefore, unavailable . Some time later, Rayburn testified that Detective
Stevens stopped by the house and asked him to be a witness in Appellant's first trial .
According to Rayburn, Stevens asked him to testify that the original storm windows
were returned to him and installed in the home. Rayburn refused, telling Stevens, "I
32
can't testify to that because that's not the truth ." After this exchange, Rayburn was not
called as a witness at Appellant's first trial. He later contacted the Lexington HeraldLeader, but his call was not returned .
Defense counsel called Rayburn as a witness at Appellant's second trial and
asked him why he had called the Lexington Herald-Leader. The trial court sustained the
Commonwealth's objection to the question on the basis of relevancy. We agree with
the trial court that Rayburn's reason for calling the newspaper was irrelevant . Defense
counsel was given great leeway in its examination of Rayburn and was able to fully
develop Rayburn's allegations of police misconduct . This minor limitation did not
prejudice Appellant or unduly impair his ability to develop his defense. There was no
abuse of discretion .
Opinion Testimony
Murrie O'Brien
Appellant argues that defense counsel was unduly limited in its examination of
Murrie O'Brien, Horton's longtime carpenter and handyman . Defense counsel
questioned O'Brien about the storm windows at Horton's home, although O'Brien had
never worked on those specific windows . In an effort to demonstrate that Appellant did
not have sufficient time to remove all the screws from Horton's storm windows, defense
counsel asked O'Brien how long it "generally takes you to remove screws from a large
storm window if you're trying to remove them out?" The trial court sustained the
Commonwealth's objection . Defense counsel was also prohibited from asking O'Brien if
there were any score marks on the screws found on Horton's front porch. Finally,
defense counsel showed O'Brien the broken knife found on Appellant at the time of his
33
arrest and asked whether he had ever tried to remove screws with such a knife. An
objection to this question was also sustained .
Rulings concerning the admissibility of evidence lie within the sound discretion of
the trial court and are only overturned upon a showing of an abuse of that discretion .
Simpson v. Commonwealth , 889 S.W.2d 781, 783 (Ky. 1994) . In each instance
enumerated above, the trial court did not believe that O'Brien's testimony would assist
the jury. Whether a screw has score marks, and how long it takes to remove a window
screw, are topics well within the average juror's common knowledge and understanding.
Furthermore, the jury was shown the screws and the window itself and, thus, had the
opportunity to make such an assessment . Finally, O'Brien stated that he had never
worked on that particular storm window and had never handled Appellant's knife.
Accordingly, defense counsel's questions pertaining to the window and the knife were
irrelevant. We see no abuse of discretion in the trial court's rulings with respect to this
witness . 9
Detective Stevens
Appellant also challenges the admissibility of testimony from Detective Stevens
about blood evidence. Defense counsel called Detective Stevens to testify about
Norton's bedclothes and to explain why they had not been submitted for scientific
testing . Stevens explained that a cut-out portion of the sheet was tested . On crossexamination, the Commonwealth asked Stevens whether the perpetrator's blood could
have been detected on the sheets in light of the high volume of Norton's blood .
9 A juror submitted a question asking O'Brien how long it "usually takes to install a large storm window?"
The trial court rejected this question . To the extent that Appellant claims this ruling was erroneous, we
find no abuse of discretion .
34
Defense counsel objected, claiming that Stevens was not qualified to give
opinion testimony concerning scientific blood testing . The trial court overruled the
objection and allowed Stevens to answer. He explained that, given his experience in
crime scene investigation, testing would not be fruitful because so much of Horton's
blood was present on the sheets.
Detective Stevens, a twenty-two year veteran of the Kentucky State Police who
had also worked four years in the crime lab, was qualified to answer this question . He
did not testify to the scientific process of blood examination . Cf. Mondie v.
Commonwealth , 158 S .W.3d 203, 213 (Ky. 2005). Rather, his response was limited to
an explanation for his own actions at the crime scene and his motivations for such
actions . As an experienced detective, Stevens was certainly qualified to testify about
what type of evidence is collected at a crime scene and why. See Bush v.
Commonwealth , 839 S.W.2d 550, 555 (Ky. 1992). There was no error.
Dr. Hunsaker
Appellant next complains that Dr. Hunsaker, a forensic pathologist who testified
as an expert for the Commonwealth, was improperly permitted to answer questions
outside his realm of expertise . The trial court relayed the following question submitted
by a juror: "Can the manner in which a person is murdered reflect the mood of the
person committing the crime?" After a bit of confusion about the wording of the
question, Dr. Hunsaker replied with a simple "yes ." There was no contemporaneous
objection .
Appellant relies on our holding in Johnson , where Dr. Hunsaker was asked
questions about psychological profiling and the phenomenon of "overkill ." 103 S .W.3d
at 695 . We agreed with the trial court's finding regarding Dr. Hunsaker's qualifications :
35
"Dr. Hunsaker, by his own acknowledgement, was not properly qualified to testify on
`overkill.' He is a forensic pathologist without special qualifications in psychological
profiling ." Id.
Here, however, Dr. Hunsaker was not asked to give specialized testimony
involving expertise in psychology . Dr. Hunsaker was asked whether the method of
killing can reflect the killer's mood, which he answered in the affirmative without
explanation . He was not asked to analyze the manner of Horton's murder, in particular,
or to give an opinion about the mood of Horton's killer. The simple fact that such
psychological profiling does exist is well within Dr. Hunsaker's area of expertise . There
was no abuse of discretion .
Qualification of Experts
Appellant complains that the trial court improperly qualified four expert witnesses
in front of the jury. Of course, trial courts must be cautious in deeming a witness an
expert. "If the jury is so informed such a conclusion obviously enhances the credibility
of that witness in the eyes of the jury. All such rulings should be made outside the
hearing of the jury and there should be no declaration that the witness is an expert ."
Luttrell v. Commonwealth , 952 S .W.2d 216, 218 (Ky. 1997) . Our review of the record
reveals that three of these witnesses were not referred to as "experts" by the trial court
or the Commonwealth .' ยฐ In the case of Dr. Hunsaker, the Commonwealth did ask the
trial court to allow him to "give his opinions and his expert testimony." Nonetheless, we
find this minor, unpreserved error to be harmless. Dr. Hunsaker's testimony was
necessary mainly to establish time of death. However, the time frame of death he
,ยฐ Instead, the Commonwealth
asked the trial court that the witness be allowed to give his or her opinion
or findings ; e.g., "Your honor, I ask that this witness be allowed to give her observations about any
analysis she's done in this case."
36
provided fit as equally into the defense theory that Burton committed the murder as it
did the Commonwealth's theory. Indeed, the defense favorably referenced not only his
testimony in closing arguments, but also his qualifications and reliability . For this
reason, we discern no prejudice to Appellant's substantial rights. RCr 9.24 .
Floyd Testimony
Barbara Floyd, the daughter of Bernice and Kenny Floyd, testified for the
Commonwealth about Burton's late night visit to the Floyds' home . Floyd stated that
she looked at the clock when Burton arrived and that it was 1 :45 a.m. Because there
was some discrepancy about the timeline of the evening, the Commonwealth posed
several questions about the accuracy of Floyd's clock . Appellant's bald claim that this
testimony was introduced without a proper foundation is entirely without merit. We are
aware of no foundational requirements for asking a witness whether her bedroom clock
is accurate . There was no abuse of discretion .
Hearsay Testimony
After Burton left her aunt's house on the night of the crimes, she encountered her
cousin, Kim Mayle. Mayle gave Burton a ride back to Appellant's mother's apartment to
check on John Fields . Mayle testified that Burton was really nervous and that they
quickly left because Burton feared Appellant would physically assault her.
Bernice Floyd also testified about Burton's nervousness that evening . Burton
told her aunt that Appellant had said he had killed his brother and that he was acting
crazy. Floyd eventually called the police to relay this information .
Appellant now argues this testimony was inadmissible hearsay. However, prior
to both Mayle's and Floyd's testimony, Burton related her nervousness and her fear of
Appellant to the jury during her own testimony. Indeed, defense counsel cross37
examined Mayle about Burton's fear that night. As the jury had already heard an
explanation for Burton's nervousness that evening, any error was undoubtedly
harmless . See Chumbler, 905 S.W.2d at 494. See also Fields, 12 S.W.3d at 284 ("The
fact that Minnie Burton was afraid of the Appellant logically followed the facts that
Appellant had thrown knives at her while at his mother's residence and had told her that
he had just killed his brother.").
Victim Impact Testimony
Appellant claims that the trial court permitted the Commonwealth to inject victim
impact testimony throughout the guilt phase proceedings . He points to the testimony of
several witnesses, as well as questions posed by the Commonwealth during voir dire.
We address each below.
During general voir dire, the Commonwealth gave some general background
information about Horton, including her residence, her community involvement, her
husband's career, and the fact that her nephews are attorneys in Grayson. These
questions were aimed at determining whether any veniremen had a relationship with
Horton or her family that would create bias. The questions did not reference Horton's
"wealth or status in the community," as Appellant contends.
Martha Harber's testimony did not constitute victim impact testimony. Harber,
Norton's niece, gave brief testimony about Horton's personal background, her career,
her marriage, and her community involvement . When she referenced her long and
loving relationship with her aunt, it was to establish her basis of knowledge of Horton's
habits and finances . Nowhere in Harber's brief testimony did she describe the personal
impact of Horton's death. Her testimony humanized Horton; it did not in any way glorify
her. See Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 2004).
38
There was no error in allowing the Commonwealth to display a photograph of
Horton during opening arguments . "A murder victim can be identified as more than a
naked statistic[ .]" Bowling v. Commonwealth , 942 S.W.2d 293, 302 (Ky. 1997) . The
display of one photograph of Horton was not unduly prejudicial. See Hilbert v.
Commonwealth , 162 S.W.3d 921, 927 (Ky. 2005) ("The brief display of the victims' life
portraits . . . was neither excessive nor overly emotional .") .
Barbara Marshall, an employee of Grayson Utility Company, was called by the
defense to testify about Horton cutting off the utilities in Burton's duplex. On crossexamination, the Commonwealth elicited that Horton owned several properties in
Grayson . This question helped to explain why Marshall knew Horton personally,
through her frequent business with the utility company. Later, the Commonwealth
asked if "it is fair to say that Ms. Horton was an important part of Grayson?" Defense
counsel objected ; the trial court allowed the question . We agree with Appellant that this
question lacked relevancy . However, we believe the error was harmless . There is no
indication that the Commonwealth's brief reference to Horton's standing in the
community unduly prejudiced Appellant or denied him a fair trial .
When the Commonwealth asked James Craig if Horton was a "well-liked person"
who "had people coming over," it was to establish that she welcomed both smokers and
non-smokers into her home. The Commonwealth, in inquiring whether Horton kept
belongings in a safe-deposit box, referred to the bank across the street as "her" bank.
Horton, in fact, did'
Phave partial ownership in the bank. There was nothing improper
about the Commonwealth's questions .
During its cross-examination of Detective Stevens, the Commonwealth
questioned him about publicity surrounding the case: "You realize you got quite a case
39
on your hands, correct? Given the person and the way it was done, right?" These
questions were asked to rebut defense counsel's inference that Detective Stevens did
not adequately secure the crime scene and to explain why he was concerned about
public curiosity . There was no error.
Even considering these references to Horton cumulatively, we find no indication
of the type or amount of prejudicial victim information that would require reversal. None
of the above-referenced witnesses were "overly emotional, condemnatory, accusative or
demanding vindication[ .]" Foley v. Commonwealth , 953 S .W.2d 924, 937 (Ky. 1997) .
The Commonwealth's references to Horton were not of an inflammatory nature and did
not approach the type of prejudicial testimony condemned by this Court in Ice v.
Commonwealth , 667 S.W.2d 671, 675-76 (Ky. 1984) .
Marshall Testimony
During its cross-examination of Barbara Marshall, the Commonwealth elicited
that she was acquainted with Appellant ; although she was unaware he dated Burton .
The Commonwealth then asked whether she knew "what kind of problems the
Defendant may have caused for Minnie Burton, if any, with Ms . Horton before she was
killed?" Marshall answered in the negative . This question was clearly in response to
defense counsel's direct examination of the witness, during which Marshall was asked
why Horton wanted the utilities cancelled . Furthermore, as Marshall simply replied "no,"
we can detect no prejudice to Appellant . The trial court did not abuse its discretion .
McDavid Testimony
There was no error in the Commonwealth's reference to Appellant's confession
during its re-direct examination of Officer McDavid, to whom Appellant had made a
derogatory comment during the traffic stop . The Commonwealth attempted to elicit from
40
McDavid, who had known Appellant for many years, whether he could tell the difference
between a "smart-aleck" comment and a confession, as it was the defense's position
that Appellant's confession was simply a sarcastic comment . Appellant's confession
was properly admitted and there was no error in the Commonwealth's subsequent
reference to it.
Images of Crime Scene
The photographic evidence of Horton's body was neither cumulative nor unduly
prejudicial . Photographs of -Norton's body and a video of the crime scene were shown
to the jury, in most instances during the testimony of an investigating officer to describe
the nature of the crime and the crime scene. Dr. Hunsaker referred to photographs of
Horton's body to explain the autopsy procedures and his findings, although no postautopsy photographs were displayed . The Commonwealth used photographs of the
crime scene, which included Horton's body, during its opening and closing arguments .
The trial court conducted the requisite balancing test between the probative value
of these images and their prejudicial effect. See KRE 403. The images depicted a
violent crime scene and, naturally, were gruesome and disturbing . However, Horton's
wounds were critical to a full understanding of the case, particularly in light of defense
counsel's arguments that Burton had enough strength to lodge the knife into Norton's
skull and that Appellant did not have sufficient time to inflict so many wounds .
Furthermore, the Commonwealth was entitled to present its case fully, even if doing so
involved gruesome images, regardless of any defense stipulation as to the manner of
Norton's death . "[T]he prosecution is entitled to prove its case by competent evidence
of its own choosing, and the defendant may not stipulate away the parts of the case that
he does not want the jury to see." Barnett v. Commonwealth , 979 S.W.2d 98, 103 (Ky.
41
1998) . The photographs were not admitted to arouse passion or appall the viewer, as
condemned in Funk v. Commonwealth, 842 S .W.2d 476, 478-480 (Ky. 1992) . There
was no abuse of discretion in the trial court's conclusion that the probative value of
these images outweighed their prejudicial effect . See Roark v. Commonwealth, 90
S.W.3d 24, 37 (Ky. 2002) .
Other Guilt Phase Issues
Jury View of Carter County
The trial court did not err in refusing a jury view of certain areas of Carter County,
including Horton's home and Burton's duplex apartment. The aerial maps,
photographs, and testimony adequately related the area of the crime and the distances
between various locations in Grayson . From this evidence, the jury was able to draw
conclusions about the timeline of the evening of Horton's murder. The trial court did not
abuse its discretion with respect to defense counsel's motion for a jury view. See
Dawes v. Commonwealth , 349 S .W.2d 191, 193 (Ky. 1961).
Venue
Appellant was originally indicted in Carter County. Defense counsel moved the
Carter Circuit Court to transfer venue pursuant to KRS 452 .210, after an unsuccessful
attempt to seat a jury. Venue was transferred to the Morgan Circuit Court but, again, a
jury was unable to be selected . The parties agreed to transfer venue to the Rowan
Circuit Court.
Upon reversal of Appellant's original conviction, this matter was remanded to the
Rowan Circuit Court ." Defense counsel filed a motion requesting the case be
remanded to the Carter Circuit Court, the county of indictment, which was denied.
11
It was by subsequent agreed order that venue was again transferred to the Floyd Circuit Court.
42
There was no error in this decision . The motion was made pursuant to KRS 452.290,
which requires that a case be transferred back to the county of indictment when the trial
court is satisfied that a "state of lawlessness" no longer exists. However, by its own
language, KRS 452 .290 applies only to cases in which venue was originally changed
due to a state of lawlessness pursuant to KRS 452.230 . In this case, venue was
originally transferred from the Carter Circuit Court pursuant to KRS 452 .210. Thus,
KRS 452 .240 prohibits an additional change of venue. The Rowan Circuit Court
retained jurisdiction of the matter upon remand and, therefore, the motion was properly
denied.
Second Competency Evaluation
Prior to Appellant's first trial, a competency evaluation was conducted and a
report issued. However, despite defense counsel's successful motion for a
comprehensive neurological evaluation, there is no evidence in the record that further
testing was conducted or that a competency hearing was held . The Commonwealth
informed the trial court of this circumstance prior to Appellant's second trial . In light of
this Court's decision in Thompson v. Commonwealth , 56 S.W.3d 406, 408 (Ky. 2001),
holding that a KRS 504.100(3) competency hearing cannot be waived, the trial court
ordered a hearing. We find no error in this decision, as defense counsel's motion at the
prior proceedings created "reasonable grounds" for the trial court to question Appellant's
competency. KRS 504 .100(1). Further, we conceive no prejudice to Appellant resulting
from the competency hearing. No prejudicial information was obtained by the
Commonwealth during its questioning of Appellant at the competency hearing . There
was no error .
43
Right to be Present
Appellant complains that two pre-trial hearings were conducted in his absence, in
violation of his Sixth Amendment rights. The first hearing was for the purpose of
providing personnel records of police witnesses to counsel and to-allow defense
counsel to object to certain pieces of KRE 404(b) evidence . The second hearing
concerned the competency of witness, Vince Kimmel, and minor administrative matters .
At both, defense counsel objected to the trial court's decision to conduct the hearings in
Appellant's absence . Nonetheless, the trial court proceeded in light of the expense and
logistical complications of bringing Appellant to the courthouse . 12
RCr 8 .28(1) requires that the defendant "be present at the arraignment, at every
critical stage of the trial including the empanelling of the jury and the return of the
verdict, and at the imposition of the sentence." However, "[a] defendant is not required
to be present during the argument of legal issues between court and counsel ." Caudill
v. Commonwealth , 120 S.W.3d 635, 652 (Ky. 2003) . The first hearing mainly
concerned the admissibility of Appellant's statements to Officer McDavid . There was no
factual dispute about these statements, as both parties were analyzing Appellant's
testimony at his first trial . The arguments to the trial court were purely legal and
concerned the applicability of KRE 404(b) to the statements . The second consisted
only of legal arguments concerning the unavailability of Vince Kimmel . 13 At both,
Appellant's presence would have been of little help to defense counsel. See Lester v.
Commonwealth , 132 S.W.3d 857, 862 (Ky. 2004) . As neither of these hearings
'2
The trial court noted on the record that Appellant was housed in the Rowan County jail, not in Floyd
County, and that he was a security risk due to a prior conviction for escape .
13
Both parties agreed that Kimmel was incompetent to testify . The Commonwealth opposed only
defense counsel's motion for a continuance . The trial court held the matter for further consideration at a
date closer to the start of trial .
44
constituted a "critical stage" in the proceedings, Appellant's substantial rights were not
implicated. We find no abuse of discretion in the trial court's decision to proceed with
the hearings in Appellant's absence .
Guilt Phase Closing Arguments
Appellant asserts that the Commonwealth's guilt phase closing argument was so
prejudicial and inflammatory that he was denied due process of law. He directs our
attention to several instances of improper arguments, which we address individually.
Having reviewed the argument in its entirety, we do not agree with Appellant's
assessment and find nothing improper about the Commonwealth's closing statement.
In examining Burton's actions on the evening of Horton's death, the
Commonwealth rhetorically asked the,jury if it had heard "any other explanation" for
Burton's nervousness. When read in context, this statement cannot fairly be considered
a comment on Appellant's exercise of his Fifth Amendment right to remain silent .
Instead, the Commonwealth is commenting on the lack of a reasonable explanation for
Burton's nervousness. This statement is qualitatively different than the type of
commentary on a defendant's silence, which was condemned in Beavers v.
Commonwealth , 612 S .W.2d 131 (Ky. 1980) .
The Commonwealth did not refer to matters outside the record or misstate the
evidence when it discussed the knife found in Horton's bedroom . Minnie Burton could
not definitively identify the knife as one from her house, but she did testify that it had an
insignia near the handle similar to knives of her own. The Commonwealth urged the
jury to conclude that the knife belonged to Burton based upon her inconclusive
testimony, her willingness to recognize the possibility that the knife belonged to her, and
the cheap quality of the knife as compared to Horton's own knives. The
45
Commonwealth's closing argument in this regard was limited to fair inferences that may
be drawn from the physical evidence and Burton's testimony . See Brown v.
Commonwealth , 174 S.W.3d 421, 431 (Ky. 2005).
The Commonwealth's Attorney did express his personal opinion about the
presence of score marks on the screws taken from Horton's storm window. The
prosecutor stated, "in my opinion . . . . I do see marks." However, the prosecutor
immediately followed this comment with, "But you go with your opinion and that is what
counts." We see nothing improper in this comment .
The Commonwealth did not misstate the law with respect to intoxication and
second-degree manslaughter. The Commonwealth's argument simply urged the jury to
reject second-degree manslaughter in favor of intentional murder and to also reject a
finding of voluntary intoxication . For the reasons stated infra, the jury instructions were
proper and the Commonwealth's closing argument was tailored to these instructions .
There was no error. 14
Guilt Phase Instructions
Wording of Intoxication Instruction
Appellant argues that he was denied due process of law by the wording of the
guilt phase instructions . With respect to the homicide, the trial court instructed the jury
on murder, wanton murder, and second-degree manslaughter . It also delivered a
separate intoxication instruction, which read :
Even though the Defendant might otherwise be guilty of Intentional Murder
and/or First Degree Burglary, you shall not find him guilty under those
Instructions if at the time he committed the offenses, if he did so, he was
so intoxicated that he did not form the intention to commit the offenses .
'4
Appellant's brief complaint that the Commonwealth misstated the evidence as to Appellant's level of
intoxication raises no concern . The error, if any, was undoubtedly harmless as defense counsel made
Appellant's level of intoxication abundantly clear during its own closing argument.
46
An identical intoxication instruction was approved by this Court in Mabe , 884
S.W.2d at 672 . See also Brown v. Commonwealth , 575 S.W.2d 451, 452 (Ky. 1978) .
Appellant, however, argues that the trial court should have included the following
additional language: "If you believe from all the evidence beyond a reasonable doubt
that he did act wantonly as defined under Instruction No.
guilty of Second-Degree Manslaughter under Instruction No.
then you shall find him
." According to
Appellant, the intoxication instruction as delivered gave the jury the erroneous
impression that, if it believed he was voluntarily intoxicated at the time of the crimes, he
would be fully acquitted .
Appellant recognizes the well-settled principle that voluntary intoxication is not an
absolute defense, but rather reduces an intentional crime to one requiring a culpable
mental state of wantonness . Slaven v. Commonwealth, 962 S.W .2d 845, 856-57 (Ky.
1997) . In determining how to convey this premise to the jury, this Court has explained
that a "separate instruction on intoxication explains to the jury how that defense affects
the element of intent . It is unnecessary to repeat that explanation in the instruction on
the primary offense ." Slaven , 962 S.W.2d at 857 (internal citations omitted) . Here,
Appellant is requesting the inverse of the instruction requested in Slaven. Instead of the
effect of the voluntary intoxication instruction being incorporated into the instruction on
the primary offense, Appellant would like that effect explained within the voluntary
intoxication instruction itself. As in Slaven , when read in their entirety, the instructions
delivered in this case accurately state the law and the effect that voluntary intoxication
has on a finding of intentional murder. See Bills v. Commonwealth , 851 S.W.2d 466,
471 (Ky. 1993) ("[J]ury instructions must be read as a whole ."). There was no error.
47
Wording of Intentional Murder Instruction
Appellant makes several other claims of error with respect to the wording of the
jury instructions, none of which require reversal . The language of the intentional murder
instruction was not prejudicial because it required a finding that Appellant killed "Bess
Horton by cutting her throat with a knife ." An identical instruction was approved by this
Court in Appellant's first trial. See Fields , 12 S.W.3d at 285 ("Except for the failure to
include an instruction on second-degree manslaughter, the trial judge's instructions
accurately framed the law of the case."). In Commonwealth v. Hager, we provided a
specimen instruction that included language that the defendant killed the victim "by
stabbing him with a knife ." 41 S.W.3d 828, 846 (Ky. 2001). There was no error.
Wanton Murder
Appellant argues that the trial court erred by instructing the jury on wanton
murder, which he claims was unsupported by the evidence. Without specifically
determining whether the evidence warranted an instruction on wanton murder, we can
conclude that any supposed error was harmless . In Smith v. Commonwealth , we
explained that no prejudice flows to a defendant where the jury is erroneously given an
instruction on a lesser-included offense . "He cannot establish prejudice by showing that
he was subjected to a greater penalty because the penalty options for intentional
murder and wanton murder are the same[.]" 737 S.W.2d 683, 689 (Ky. 1987).
The jury in this case found Appellant guilty of murder beyond a reasonable doubt .
Appellant was not prejudiced by the fact that the jury had the opportunity to find him
guilty of wanton murder, but declined to make such a finding . There is no reasonable
possibility that Appellant would not have been convicted or would not have received the
48
death penalty had the wanton murder instruction not been given . The error, if any, was
harmless .
First-Degree Manslaughter
.11
Appellant was not entitled to an instruction on first-degree manslaughter pursuant
to KRS 507.030(1)(b), because no evidence was presented of an extreme emotional
disturbance (EED) . See Caudill, 120 S .W.3d at 667. An EED is "a n enraged, inflamed,
or disturbed" mental state which causes one to act uncontrollably and for which there is
a reasonable explanation or excuse . McClellan v . Commonwealth, 715 S .W .2d 464,
468-69 (Ky. 1986) . There is also a requirement of provocation, often referred to as the
triggering event. Fields v. Commonwealth , 44 S.W.3d 355, 359 (Ky. 2001).
Here, there was no evidence of either an EED or a triggering event. While the
evidence indicated that Appellant was intoxicated, substance abuse alone does not
authorize a first-degree manslaughter instruction under an EED theory. See Bowling ,
873 S.W.2d at 179. Furthermore, Appellant's fight with Burton at his mother's
apartment does not constitute a triggering event. The uncontroverted testimony was
that Burton left the apartment and that Appellant stayed behind for a half hour with his
brother smoking cigarettes, demonstrating an interruption of the supposed triggering
event. Cf. Springer v. Commonwealth , 998 S.W.2d 439, 452 (Ky. 1999) . Finally, no
explanation was provided as to why the fight with Burton so enraged Appellant; a simple
fight with a girlfriend does not provide a reasonable excuse or explanation for an
enraged or inflamed state of mind . See Caudill , 120 S.W.3d at 668 (resistance to a
demand for money does not amount to a reasonable explanation for an extreme
emotional disturbance) . The trial court did not err in refusing this instruction.
49
Second-Degree Burglary and Criminal Trespass
Appellant was not entitled to a second-degree burglary instruction . The
uncontroverted testimony at trial was that Appellant had a 'knife and razor blades on his
person when he was arrested in Horton's bedroom and, therefore, the trial court
instructed the jury only on first-degree burglary . The fact that the jury might not have
believed this testimony does not warrant instruction on second-degree burglary ; rather,
it would have authorized an acquittal on the first-degree burglary charge . The trial court
has no duty to instruct on theories of the case that are not supported by the evidence .
Payne v. Commonwealth , 656 S .W .2d 719, 721 (Ky. 1983) .
For the same reason, Appellant was not entitled to a first-degree criminal
trespass instruction . There was no evidence that Appellant entered Horton's home for a
lawful purpose without the intent to commit a crime . See Commonwealth v. Sanders ,
685 S.W.2d 557, 559 (Ky. 1985). From the time of entry (after midnight) and the
method of entry (through removal of a storm window), the jury could infer Appellant
entered the home unlawfully. There was no error.
Missing Evidence Instruction
There was no need for a missing evidence instruction concerning the storm
window removed from Horton's home and later lost by the Grayson Police Department .
Due process is implicated only when the failure to preserve or collect evidence was
intentional and the potentially exculpatory nature of the evidence was apparent at the
time it was lost or destroyed . Ester) v. Commonwealth , 64 S.W.3d 805, 810 (Ky. 2002) .
Neither condition is satisfied here. That Detective Stevens might have asked Rayburn
to say the original storm windows were returned does not prove that there was
intentional destruction of evidence; even if believed, it proves only that Detective
50
Stevens was aware the window was lost . There was no other evidence of bad faith .
Furthermore, it must be remembered that, while the storm window itself was not
located, fingerprint testing had already been performed and no latent fingerprints were
recovered. Thus, we fail to see how the exculpatory nature of the window was evident
at the time it was lost or destroyed or how the evidence was adverse to the
Commonwealth and favorable to the defense. There was no error in the trial court's
refusal to deliver a missing evidence instruction .
See Collins v. Commonwealth, 951
S.W.2d 569, 573 (Ky. 1997) (negligence on the part of the Commonwealth in its
preservation of evidence does not rise to the level of bad faith required for a missing
evidence instruction) .
Penalty Phase Issues
Non-Statutory Aggravating Circumstances
Appellant claims that the Commonwealth impermissibly urged the jury to
consider Appellant's demeanor in the courtroom and his criminal history as nonstatutory
aggravating circumstances . We disagree with this assessment . The Commonwealth's
reference to Appellant's demeanor in the courtroom was permissible and did not elevate
"lack of remorse" to the level of an aggravating circumstance . Johnson , 103 S .W .3d at
697.
Furthermore, the jury found the existence of an aggravating circumstance
contained in KRS 532.025(2)(a)(2) : "The offense of murder . . . was committed while the
offender was engaged in the commission of . . . burglary in the first degree . . . :" "A
statutory aggravating circumstance serves to place the appellant in the class eligible for
the death penalty." Blevins v. Commonwealth , 712 S.W.2d 932, 935 (Ky. 1986) . As
51
Appellant was already placed in the class eligible for the death penalty, any
consideration of his lack of remorse was harmless .
Penalty Phase Instructions
Appellant submitted penalty phase instructions which were rejected by the trial
court. He cites numerous errors in the instructions that were delivered to the jury . None
support a finding of error.
"Jury instructions at the sentence stage of a capital trial need not include any
particular words or phrases to define the concept of mitigation or the function of
mitigating circumstances." Tamme, 973 S .W.2d at 37-38. The trial court's instructions
adequately described the function and purpose of mitigating circumstances. The trial
court acted within its discretion in rejecting Appellant's proposed mitigation instruction,
which referred to circumstances or factors that "in fairness and mercy lesson or reduce
his responsibility or moral culpability ."
The trial court was not required to specifically instruct the jury that it could impose
a term of imprisonment, even if it also found the presence of an aggravating
circumstance . From the wording of the instructions and from counsel's closing
argument, the jury was made aware of its option to reject the death penalty.
See
Skaggs , 694 S.W.2d at 679. There was no reversible error.
Appellant urged the trial court to instruct the jury that it need not find the
existence of mitigating circumstances unanimously. "An instruction on non-unanimous
findings on mitigation is not required ." Bowling, 873 S .W.2d at 180. The instructions in
this case did not misinform the jury about mitigating circumstances as in Mills v.
Maryland , 486 U .S . 367, 373-75, 108 S .Ct. 1860, 1865-66, 100 L.Ed .2d 384 (1988).
There was no error.
52
Appellant cites error where the trial court refused to give penalty phase
instructions regarding his parole eligibility. "[P]arole eligibility information which is fully
admissible under KRS 532.055 has no place in a death penalty hearing pursuant to
KRS 532.025. Under no circumstances should parole eligibility enter into death penalty
deliberations ." Perdue v. Commonwealth, 916 S .W.2d 148,164 (Ky. 1995). There was
no error.
There is no need to include a standard of proof such as "beyond a reasonable
doubt" in a mitigating circumstance instruction . The jury is not required to make findings
with respect to mitigation evidence . They are required only to consider such evidence .
Thus, there is no need to define the standard of proof. Tamme, 973 S .W.2d at 38.
The trial court was under no duty to instruct the jury that it must not be influenced
by prejudice or passion . "While such an instruction is permissible, an examination of
these factors should be made by the trial court reviewing a death sentence." Perdue,
916 S .W.2d at 169. No instruction was required in this case .
Appellant sought to instruct the jury that "no juror should surrender his or her
honest conviction as to the weight or effect of the evidence solely because of the
opinion of other jurors ." The instructions satisfactorily informed the jury that its verdict
must be unanimous. The trial court did not err in refusing this instruction .
Appellant contends that he was entitled to a stand-alone instruction regarding
"residual doubt ." The proposed instruction stated : "If any individual juror has any doubt
as to the appropriate punishment, then you shall not sentence Sam Fields to death and
shall instead fix his punishment at a sentence of imprisonment." The trial court's
instructions with respect to reasonable doubt and the unanimity requirement adequately
53
informed the jury of its duty . This proposed instruction was properly denied . See St.
Clair, 140 S .W.3d at 571 .
Appellant makes two final arguments that are without merit. Appellant's
complaints with respect to the composition of the verdict form are baseless . The verdict
form used simple, clear language that did not mislead the jury. Also, there is no
requirement that the jury make written findings with respect to mitigation . Smith v.
Commonwealth , 734 S.W.2d 437,451 (Ky. 1987) .
Commonwealth's Penalty Phase Closing Argument
Appellant complains at length that the Commonwealth's penalty phase closing
argument was highly improper and denied him due process of law. We have reviewed
the Commonwealth's argument in its entirety and have found nothing improper .
Nonetheless, we briefly address Appellant's complaints.
The Commonwealth was entitled to refer to Appellant's entire criminal history,
even though some of his prior convictions are outside of the statutory list of aggravating
circumstances rendering him eligible for the death penalty. KRS 532.025(1)(b)
expressly permits such reference .
The Commonwealth did not use Appellant's escape conviction as a nonstatutory
aggravating circumstance amounting to a claim of future dangerousness . Appellant's
claim to the contrary is not supported by the record . The Commonwealth's reference to
Appellant's escape conviction was a fair commentary on his criminal background.
The Commonwealth did not minimize the jury's responsibility in sentencing
Appellant . Nor did it inform the jury that its decision was only "a recommendation ." Cf.
Ice, 667 S.W.2d at 676.
64
It is not error for the Commonwealth to ask the jury to "fix a punishment that fits
the crime ." Likewise, the Commonwealth's reference to Appellant's demeanor in the
courtroom was not improper, nor was it a comment on Appellant's exercise of his right
to remain silent .
The Commonwealth's very brief statement that the jury "speak[s] for the
community" was undoubtedly harmless. The comment was fleeting and did not appeal
to the jurors' fears or prejudices.
The Commonwealth did not make a "Golden Rule" argument to the jury, nor did it
attempt to use sensationalizing tactics. The closing argument cannot fairly be
characterized as an emotional or inflammatory appeal to the jury on behalf of the family.
Cf. Clark v. Commonwealth, 833 S.W.2d 793, 797 (Ky. 1991) .
Appellant claims that the Commonwealth continually misstated the law in its
penalty phase closing argument. Upon review, the Commonwealth's statements simply
urged the jury to draw certain inferences from the evidence . "[T]he Commonwealth's
Attorney is allowed reasonable latitude in argument to persuade the jurors the matter
should not be dealt with lightly." Lynem v. Commonwealth , 565 S.W.2d 141, 145 (Ky.
1978). The Commonwealth did not exceed these bounds.
Trial Judge's Report
Appellant argues that this Court should articulate clearer standards to be
employed by the trial court in imposing the death penalty . Appellant directs our
attention to the trial court's failure to make findings as to specific mitigating
circumstances . This argument was considered and rejected by this Court in Bowling:
"[T]he trial court was within its proper discretion in upholding the jury's sentence of
55
death . The contention that there is no properly articulated standard of review for the
trial court in such a circumstance is without merit." 942 S.W .2d at 306 .
Statistical Evidence About Parole
Appellant sought to introduce statistical evidence about parole success and
parole criteria during the penalty phase. While the trial court permitted general
evidence of parole eligibility guidelines, it rejected the introduction of parole eligibility
statistics relied on by the Parole Board . The trial court properly rejected this evidence
as it had little relevancy or direct relationship to Appellant's case. There was no error.
Burglary Conviction as an Aggravating Circumstance
The use of Appellant's burglary conviction does not constitute double jeopardy.
This argument was considered and rejected in Bowling : "The underlying offenses were
only factors to be considered as to whether the punishment for murder should be death .
Appellant was not subjected to double jeopardy or multiple punishment for the same
offense." 942 S.W.2d at 308 .
Death Penalty Challenges
Appellant makes several claims of error concerning the death penalty, all of
which have been continually rejected by this Court . We decline the invitation to revisit
these decisions .
There is no error in the removal of jurors who cannot consider the entire range of
penalties, including the death penalty . See Hodge v. Commonwealth, 17 S .W.3d 824,
838 (Ky. 2000).
The constitutionality of the death penalty has been repeatedly recognized .
Thompson , 147 S .W.3d at 55. Further, KRS 532.025 provides adequate standards to
guide the jury in its consideration and imposition of the death penalty . Hodge , 17
56
S .W.3d at 854 . Finally, the death penalty is not imposed arbitrarily or capriciously in
Kentucky. Tamme , 973 S .W.2d at 40-41 .
Kentucky's proportionality review is constitutional and comports with statutory
requirements and the federal Constitution . Sanders , 801 S.W .2d at 683 .
There is no right to access this Court's KRS 532.075 review data . Ex arte
Farley , 570 S.W.2d 617, 624 (Ky. 1978) .
Appellant provides no evidentiary basis for the claim that there was "residual
doubt" as to his guilt . Suffice to say, the evidence was sufficient to support the
conviction .
Lethal injection is not cruel and unusual punishment . Baze v . Rees ,
U.S.
128 S.Ct. 1520, 1526, 170 L. Ed .2d 420 (2008) .
Proportionality Review
Pursuant to KRS 532 .075, we have reviewed the death sentence imposed
herein . We have likewise reviewed the record, the arguments of counsel, and the
evidence presented . We find no indication that the verdict or sentence was imposed
under the influence of passion, prejudice, or other arbitrary factor. See KRS
532 .075(3)(a) . The evidence of the statutory aggravating circumstance of burglary was
substantial and compelling . See KRS 532 .075(3)(b) .
Upon review of those cases in which the death penalty was imposed, we
conclude that Appellant's sentence is neither excessive nor disproportionate . See KRS
532 .075(3)(c) . See also Johnson, 103 S.W.3d at 698; Mills, 996 S .W.2d at 495. We
have given particular attention to those cases where a single murder occurred during
the course of a burglary or robbery . See Caudill v. Commonwealth, 120 S .W.3d 635
(Ky. 2003); Meadows v. Commonwealth , 550 S .W.2d 511 (Ky. 1977); Marlowe v.
57
Commonwealth , 709 S.W.2d 424 (Ky. 1986) . Bess Horton was murdered in a most
brutal manner . Her throat was sliced from ear to ear and a knife was lodged so deeply
into her right temple that it protruded from the left side. Moreover, she was ambushed
in her own home as she slept. Even more significant is the complete lack of any
articulable motive for the crime . See Thompson , 147 S.W.3d at 55. There was no
error .
Cumulative Error
Upon comprehensive review of the proceedings in this case, we are convinced
that Appellant received a fundamentally fair trial and penalty proceeding . There was
insufficient harmless error to create a cumulative effect that would mandate reversal of
Appellant's conviction or sentence.
For the reasons set forth herein, the judgment of the Floyd Circuit Court is
affirmed .
Minton, C.J. ; Abramson, Noble, Schroder, and Venters, JJ., concur. Scott, J., not
sitting.
COUNSEL FOR APPELLANT :
Emily Holt Rhorer
Thomas More Ransdeil
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
David A. Smith
Michael A. Nickles, Jr.
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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