FRED FURNISH V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
CORRECTED : DECEMBER 15,2008
MODIFIED : NOVEMBER 26,,2008
RENDERED : AUGUST 23, 2007
TO BE PUBLISHED
,*uprems ~ourf of ~~
2004-SC-000387-MR
FRED FURNISH
V.
APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
NO. 98-CR-00384
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT
AFFIRMING
This appeal is from a judgment based on a jury verdict imposing
the death penalty upon Appellant, Fred Furnish. For reasons hereinafter
explained, the issues addressed pertain only to the sentencing phase of
Appellant's trial.
This case arose on June 25, 1998, when a 66-year-old widow was
found strangled to death in her Crestview Hills home. The residence had
been ransacked, and jewelry and credit cards were stolen . During the
guilt phase of the trial, the defense conceded that Appellant was "a thief
and a burglar" and that he had been at the residence on the day of the
murder, but denied the actual killing, claiming that another "mystery
person" was the one who murdered the woman. After a 17-day trial, the
jury found Appellant guilty of murder and other offenses including firstdegree robbery and first-degree burglary.
Upon direct appeal, this Court affirmed Appellant's conviction for
murder and other related crimes but held that the trial court erred in
denying Appellant the benefit of a newly enacted statutory provision
which authorized a sentence of life without the benefit of probation or
parole in capital murder cases . For that reason, the case was remanded
for a new penalty phase where Appellant would be given an instruction
on life without possibility of parole .l
At the retrial of the penalty phase, testimony was not received with
respect to Appellant's guilt. A factual narrative, agreed upon by both
parties, was read to the jury and certified copies of the convictions were
introduced . The new jury recommended a death sentence . Appellant
waived a presentence investigation report and requested to be sentenced
immediately after the victim impact statements were presented to the
court. He was again sentenced to death .
In this appeal, Appellant presents numerous assignments of
alleged penalty phase error.
I. Aggravating Circumstances
Under Kentucky law, when a jury returns a verdict of death, it
must designate in writing the aggravating circumstances) which it finds
1 Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002) .
beyond a reasonable doubt.2 In the instant case, the jury in Appellant's
initial trial designated in writing that it found the following aggravating
circumstances beyond a reasonable doubt: "The offense of murder was
committed while the Defendant was engaged in the commission of the
offense of robbery in the first degree and burglary in the first degree and
was committed for the purpose of receiving money or any other thing of
monetary value, or for other profit." As the parties agreed to the
narrative of facts that was read to the second sentencing jury, a narrative
that included the aggravating circumstances previously found, there was
no need to require another factual finding of aggravating circumstances.
Nevertheless, Appellant argues that he was denied due process of
law because the jury that ultimately sentenced him to death relied on the
previous jury's findings of aggravating circumstances rather than making
its own independent finding of aggravators . In our view, by virtue of the
agreed narrative statement, Appellant stipulated to the existence of
aggravators before the second sentencing jury and it was unnecessary to
resubmit the issue . We note, however, that without the stipulation, the
outcome of this issue could be different.
We are not persuaded by Appellant's assertion that Apprendi v.
New Jersey3 and Blakely v. Washington 4 preclude him from stipulating to
KRS 532.025 .
3 530 U .S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
4 542 U.S . 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) .
2
the aggravating factors. Both Apprendi and Blakely concerned the
propriety of shifting certain penalty-enhancing factual determinations
from the jury to the court. Those cases do not prohibit a defendant from
stipulating to penalty-enhancing facts. Indeed, in both cases, the Court
acknowledged that a defendant may either stipulate to the relevant facts
or even consent to the judicial factfinding of certain necessary facts .
Furthermore, Blakely noted that stipulating to facts or agreeing to
judicial factfinding as to sentencing enhancements may be a prudent
strategy if introduction of the relevant evidence proving such facts would
prejudice the defendant. The evil sought to be eliminated by Apprendi
and Blakely was nonconsensual judicial factfinding of penalty-enhancing
factors which infringed a defendant's right to have a jury find every
element of the crime beyond a reasonable doubt. Moreover, nothing in
KRS 532.025 prevents a defendant from stipulating to the existence of
aggravating circumstances nor is it inconsistent with the general rule
that criminal defendants may knowingly and voluntarily waive statutory
rights. Thus, the trial court did not err in determining that Appellant
permissibly stipulated the existence of the aggravating circumstances .
II. Separate Conviction
Appellant also contends that the introduction of a separate murder
conviction should have been inadmissible at the retrial of his penalty
phase because the conviction did not exist at the time of the original
penalty phase. Specifically, in 2002, after Appellant's convictions and
original sentences in the instant case, he entered a guilty plea to the
murder of another elderly woman who had been strangled in her home in
1997. The prosecution introduced evidence of this conviction in the
penalty phase retrial. Appellant claims that because the prior conviction
could not have been used at trial if he had not pursued his appeal,
allowing its introduction at the retrial penalized him for pursuing his
appeal .
While this precise issue appears to be of first impression in
Kentucky, KRS 532 .025(1)(6)KRS 532 .055(2)(a), and our holding in
Templeman v. Commonwealth s are instructive of the issue . KRS
532 .025(t)(b)mandates that a presentencing hearing be conducted before
the jury in which it may consider certain mitigating and aggravating
evidence, including the defendant's record of any prior criminal
convictions or absence of such prior convictions . KRS 532 .055(2)(a)
permits the Commonwealth during the penalty phase to introduce
evidence relevant to sentencing including prior convictions of the
defendant and the nature of such prior offenses .
In Templeman, we explicitly held that the term "prior" referred to
"the status of the defendant at the time of sentencing, not at the time of
the commission of the charged crime."6 In Templeman , we approved
introduction of a conviction that was obtained subsequent to the offense
5 785 S .W.2d 259 (Ky . 1990) .
6 785 S.W .2d at 260.
for which Templeman was being sentenced because at the time of
sentencing it had become a "prior" conviction .
Federal jurisprudence concerning the permissibility of imposing
harsher penalties on a retrial necessitated by a meritorious appeal is also
instructive. Specifically, in Texas v. MCCullough, 7 the U.S . Supreme
Court rejected the contention that a longer sentence upon retrial could
be imposed only if it was based upon conduct of the defendant occurring
after the original trial . The Court held that even where the trial court
imposed a harsher sentence on retrial than the jury had imposed prior to
McCullough's successful motion for a new trial, McCullough's
constitutional due process rights were not violated where the harsher
sentence was not a result of vindictiveness against the defendant for
exercising his constitutional rights. In McCullough , the harsher
sentence was justified by the testimony of additional witnesses and other
evidence that was not presented during the first trial. Further, the Court
contrasted the defendant's right to appeal with the government's right to
present relevant aggravating circumstances as follows :
To be sure, a defendant may be more reluctant
to appeal if there is a risk that new, probative
evidence supporting a longer sentence may be
revealed on retrial. But this Court has never
recognized this "chilling effect" as sufficient
reason to create a constitutional prohibition
against considering relevant information in
assessing sentences.$
475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) .
8 475 U.S. at 143.
7
Furthermore, the Kentucky truth-in-sentencing statute is designed to
provide the jury with information relevant to arriving at an appropriate
sentence for a particular offense. 9
In the instant case, the second sentencing jury was informed that
Appellant had been convicted of having previously murdered another
victim . It is of no significance that Appellant's prior crime did not result
in the required final conviction until after his conviction in this case . At
the penalty phase retrial, the jury was entitled to all relevant evidence
including the evidence of Appellant's prior crime, without regard to when
the conviction occurred . Clearly, under both McCullough and
Templeman , evidence of such conviction was permissible.
III. Estoppel
Appellant claims that the Commonwealth was estopped from
seeking the imposition of the death penalty because it had offered and
accepted a plea of guilty for life without parole for a similar murder and
burglary that Appellant committed . The trial court correctly found that
the Commonwealth was not estopped from seeking the death penalty.
Appellant has given no authority as to why the general rule found in
Taylor v . City of LaGrange, 10 which precludes estoppel against the
Commonwealth should not apply here . In addition, he makes no
contention of detrimental reliance on any representation made by the
9 See Williarns v. Commonwealth, 810 S .W.2d 511 (Ky. 1991) .
1 0 262 Ky. 383, 90 S .W.2d 357 (1936) .
Commonwealth when he entered his plea in the first case, nor that he
otherwise changed his position in a manner that would justify any
estoppel .' 1 Furthermore, the trial court properly declined to conduct a
proportionality review. 12 Thus, this assignment of error is without merit.
N. Jury Selection
Appellant asserts that the trial court erred by excusing for cause,
five jurors who stated that for religious reasons they could not impose
the death penalty. This issue was decided in Parrish v. Commonwealth, 13
and Appellant's claim is, in effect, a request to reconsider the issue. The
jurors here, as those in Parrish, could not consider the full range of
penalties and therefore were properly excused . Thus, the argument is
unavailing .
Appellant also claims that the trial judge erred by failing to excuse
for cause those jurors who could not consider mitigation and those who
could not consider the full range of penalties. In Mabe v.
Commonwealth, 14 this Court considered at great length the standards
relative to the excusal of a juror for cause. We recognized that the trial
11
12
13
14
Revenue Cabinet v. Samani, 757 S .W.2d 199 (Ky.App . 1988) .
See McClellan v . Commonwealth, 715 S.W.2d 464 (Ky. 1986) .
121 S.W.3d 198 (Ky. 2003) .
884 S.W .2d 668 (Ky. 1994) .
court has broad discretion to determine whether a prospective juror
should be so excused . 1 5
The trial court also refused to strike two prospective jurors for their
alleged inability to consider mitigating circumstances. However, both of
the jurors indicated that they would be able to follow the instructions of
the trial judge and put all the facts and circumstances together in
deciding an appropriate punishment . Considering all the circumstances
with due deference to the opportunity of the trial court to observe the
demeanor of the prospective jurors, the decision to deny the motion to
strike was not an abuse of discretion. The trial court correctly refused to
strike prospective jurors for an alleged inability to consider mitigating
circumstances. The trial court also properly declined to strike prospective
jurors for an alleged inability to consider the full range of penalties.
There was no error.
V. Cross-examination of Mitigation Witnesses
Appellant next contends that the cross-examination of his
mitigation witnesses was improper and that the comments of the
prosecutor during closing argument denied him due process.
A careful examination of the record does not support this
argument. Here, the questioning and comments by the prosecutor did
is See also Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L .Ed.2d
847(1984) .
not exceed that authorized by Payne v. Tennessee, 16 on which Appellant
relies . Further, the prosecutorial limits regarding victim impact evidence
enunciated by this Court in Bowling v. Commonwealth 17 were observed .
The prosecutor's conduct was not improper and did not make the jury
more likely to impose a death sentence .
Specifically, Appellant contends that the prosecutor sought to
prejudice the jury by pointing out the fact that he had exercised his right
to a jury trial. During cross-examination of Appellant's sister, the
prosecutor asked, "[Y]our brother exercised his right to go to trial on the,
murder charge that he was facing involving Mrs. Williamson? Didn't
he?" Counsel for Appellant objected and the trial court sustained the
objection but denied the motion for a mistrial . A mistrial is appropriate
"only when there is a fundamental defect in the proceedings which will
result in a manifest injustice." 18 Appellant had already been found guilty,
a fact known to the jury, and the inquiry was not anything novel. Thus,
there was no prejudice to Appellant.
Appellant argues that there was misconduct on the part of the
prosecutor in cross-examining another defense witness when he asked
her if she had e-mailed Appellant or had checked his web site . He
contends this was improper comment on the amenities in prison . We find
16
17
501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) .
942 S.W.2d 293 (Ky. 1997) .
18Gould v. Charlton Co., Inc. , 929 S .W.2d 734, 738 (Ky. 1996) .
10
this argument to be without merit. The incident had no possible
opportunity to inflame the jury, particularly in view of the widespread
use of e-mail .
In closing argument, the Commonwealth called Appellant "evil,"
an "animal" and a "wolf." We reiterate our previous condemnation of
such improper attacks . 19 There is no place in a courtroom for such
personal vilification of a defendant, no matter how vile the charges
against him. We strongly caution prosecutors throughout this
Commonwealth to refrain from such personal attacks against
defendants . However, we are not convinced that the improper
comments necessitate reversal given the strong evidence arrayed
against Appellant . Such comments did not render Appellant's entire
Finally, we disagree with Appellant's
trial fundamentally unfair .20
argument that the prosecutor improperly cajoled the jury with an
appeal to community responsibility . On the contrary, the prosecutor
merely stated the obviously correct fact that the jurors represented the
citizens of Kenton County.
VI. Restrictions on Time and Manner of Allocution
Appellant filed a pretrial motion requesting that Appellant be
allowed an allocution to the jury before it deliberated on his sentence .
The trial court granted this motion but Appellant further requested that
19 See Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988) ; King v.
Commonwealth , 253 Ky. 775, 70 S.W .2d 667 (1934) .
20Stopher v. Commonwealth, 57 S.W.3d 787 (Ky. 2001) .
he be permitted to make the allocution after the closing argument of the
prosecutor. He claimed that to do otherwise would not be effective and
would allow the prosecutor to conduct a de facto cross-examination . This
request was denied.
Appellant argues that Section 11 of the Kentucky Constitution
provides that in criminal prosecutions the accused has a right to be
heard by himself and counsel. This serves as the basis for the right to
hybrid counsel. 21 However, such language has never been held to create
a right of allocution in Kentucky .
The Oregon case cited by Appellant to buttress his argument, State
v . Ro ers22 does not provide legal support for the right of allocution as he
claims . While Rogers was factually similar to this case, the Oregon court
concluded that the trial judge had broad discretion to conduct the
proceedings and that nothing in the Oregon constitutional provision
overrode the authority of the trial judge to conduct the trial in an orderly
manner. The Oregon Supreme Court determined that the trial judge had
acted within his discretion and that there was no error. It should be
observed that the Oregon court first interpreted its constitution as
including a right to allocution in 1988 .
21
22
C.f. Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004) .
330 Or. 282, 4 P.3d 1261 (2000) .
12
This Court has indirectly considered the issue of allocution in
Quarels v. Commonwealth ,23 but did not identify any right to allocution
under the Kentucky Constitution. It has long been held that the trial
court has broad discretion in the conduct of the trial and that such
actions, unless clearly erroneous, will not be disturbed on appea1.24
Finally, the trial court did not err by requiring the allocution prior to the
closing argument of the Commonwealth and the comment on allocution
by the prosecutor was not improper . The timing of the allocution did not
violate KRS 532 .025(i)(~and did not allow a de facto examination of the
accused.
VTI . Photographs
Appellant claims that it was error for the trial court to allow the
Commonwealth to introduce photographs portraying uncontested facts
because they were repetitious, gruesome and inherently inflammatory .
The photographs were reviewed in pretrial hearings in great detail. The
trial court admitted some and excluded others, allowing those that were
grounded in the narrative statement read to the jury. The photographs
which were admitted in the guilt phase were not objectionable and all of
the photographs were explanatory of the narrative statement. There was
no violation of any of the requirements of Boone v. Commonwealth .25
23
142 S .W.3d 73 (Ky. 2004) .
24
See Veach v . Commonwealth, 572 S. W.2d 417 (Ky. 1978) .
25
821 S.W.2d 813 (Ky. 1992) .
13
The photographs allowed the jury to see an overview of the
criminal acts involved and were properly admitted . Simply because
relevant pictures are gruesome and the crime is heinous does not render
their admission faulty.26 The autopsy photographs were necessary to
show the injuries on the body of the victim, that she had struggled and
had been beaten by Appellant. The photographs demonstrated proof of
facts in issue .27 There was no abuse of discretion .
VIII. Aggravating Circumstances (Grand Jury)
Appellant contends that the aggravating circumstances were
required to have been contained in the indictment by the grand jury.
This argument was originally considered and rejected by this Court in
the first appeal . 28 There is no authority to support the claim that
aggravating circumstances must be described in the indictment.29
IX. Trial Court's Imposition of Sentence
Next, Appellant argues that the trial court believed that it was
compelled to accept the jury verdict and abdicated its responsibility to
review the jury's recommended sentence . We cannot agree. The trial
judge verbally made his anti-death penalty views clear. However,
See Clark v. Commonwealth, 833 S.W.2d 793 (Ky. 1991) .
27 Holland v. Commonwealth, 703 S.W.2d 876 (Ky. 1985).
2s Furnish v. Commonwealth, 95 S .W.3d 34 (Ky. 2002) .
29 See II& Wheeler v. Commonwealth, 121 S .W.3d 173 (Ky. 2003) . See
also Ernst v. Commonwealth, 160 S.W.3d 744 (Ky. 2005), (declining to adopt
the argument in Jones v. United States, 526 U.S. 227, 119 S . Ct. 1215, 143
26
L.Ed.2d 311 (1999)) .
14
acknowledging that death is permissible under Kentucky law, the trial
court did not deem the penalty inappropriate in view of the particular
facts of the case. Appellant also contends that there is no standard to
guide judges in regard to the imposition of the death penalty. This Court
has previously rejected this type of argument in Bowling v.
Commonwealth30 and in Foley v. Commonwealth . 31
Notwithstanding, Appellant claims that the trial court's report
demonstrates the lack of guidance . KRS 532 .075 provides that whenever
the death penalty is imposed, the trial court must prepare a report in the
form of a standard questionnaire prepared and supplied by the Supreme
Court. To support his claim, Appellant points to one of the aggravating
circumstances the court included in the report, maintaining that it was
not found by either jury. The record clearly refutes Appellant's
contention, as the jury designated three aggravating factors, including
the one Appellant complains was not found by either jury. Accordingly,
the report of the trial court was in compliance with KRS 532 .075 and
does not provide solace for Appellant. The contents of the report do not
support any allegation of error.
X. Penalty Phase Instructions
Appellant asserts that the instructions given by the trial court in
the penalty phase were inadequate and insufficient . Appellant then
30
31
942 S. W.2d 293 (Ky. 1997).
942 S .W .2d 876 (Ky. 1996) .
15
proceeds to present thirteen individual arguments to support his
contention . It would appear that all these issues are unpreserved . The
proposed instructions presented on appeal were not the instructions
given at trial. There is nothing to indicate these proposed instructions
were ever presented or tendered to the trial court . There is no part of the
record where these alleged instructions are discussed. An unpreserved
error cannot be reviewed when, as in this case, it is impossible to
ascertain from the record whether the error was harmless or prejudicial .
Prejudice will not be presumed from a silent record . 3 2
Appellant cites over thirteen individual challenges as to why the
jury instructions presented by the trial judge were insufficient and
denied him a fair and reasonable sentence . Appellant does not identify
where any of the instructions he now complains should have been given
were offered, nor does he identify where a motion or objection was made
prior to the trial court instructing the jury. It appears that counsel for
Appellant failed to object for reasons of trial strategy. It is not at all
convincing that Appellant would not have received the death sentence in
the absence of any of the unprreserved alleged erroneous instructions .33
XI. Reuse of Aggravators
Appellant contends that using the burglary and robbery
convictions as aggravating circumstances is double jeopardy and, thus,
32 Baze v. Commonwealth, 965 S.W.2d 817 (Ky. 1997) .
33
Cf. Furnish v. Commonwealth, 95 S.W .3d 34 (Ky. 2002) .
16
requires reversal. This issue is not preserved . However, this Court has
previously held that aggravating circumstances are not criminal offenses
subject to a double jeopardy analysis.34 It is not double jeopardy "to
impose a separate penalty for one offense while using the same offense
as an aggravating circumstance authorizing imposition of capital
punishment for another offense ." 35 There is no violation of Section 13 of
the Kentucky Constitution or the Fifth Amendment to the United States
Constitution .
X11. Constitutionality of Death Penalty
Appellant complains that the death penalty statute is
unconstitutional and sets out six individual arguments, none of which
are persuasive . His argument that Jacobs v. Commonwealth36 amends
KRS 532 .025 and allows all murders to be eligible for the death sentence
is meritless. In Jacobs, this Court recognized that the statute provides
for the use of nonstatutory aggravators . Moreover, Jacobs is not
applicable here because only statutory aggravators were used.
There is no support in this record for the allegation that the death
penalty is discriminatory or that it is arbitrarily applied. A question of
plea bargaining is a matter reserved to the sound discretion of the
prosecuting authority. 37 There was no abuse of discretion in this matter.
34
35
35
37
Furnish, 95 S.W.3d 34 ; Wheeler , 121 S.W.3d 173.
St. Clair v. Roark, 10 S .W.3d 482, 487 (Ky. 1999) .
870 S.W.2d 412 (Ky. 1994) .
Cf. Commonwealth v. Corey, 826 S.W.2d 319 (Ky. 1992) .
17
The prior decisions of this Court on these issues are rational and legally
sound .
XIII. Arbitrary and Disproportionate Sentence
Appellant claims that the death penalty statute is arbitrary and
disproportionate considering other similar cases. His contentions center
on the fact that he should receive the same sentence as he did in his
previous murder case which was life without parole for 25 years . This
contention was addressed hereinabove under "Estoppel ." Moreover, our
review of similar cases does not support the claim that Appellant's
sentence is excessive or disproportionate . 38
Appellant received a fundamentally fair trial . The jury considered
all the facts, as well as the full range of penalties and determined that
the circumstances of this murder would require a sentence of death. The
The death sentence was not excessive or disproportionate to the
penalty imposed in similar cases since 1970 considering both the crime and the
defendant . Similar cases have been previously recited by this Court in a
number of decisions. Simmons v. Commonwealth, 746 S.W.2d 393 (Ky. 1988)
provides a comprehensive list and that list is incorporated herein by reference
and our review in accordance with KRS 532.075(5) . In addition, we have also
considered the case of Moore v. Commonwealth, 771 S .W.2d 34 (Ky. 1988) ;
Sanders v. Commonwealth, 801 S. W.2d 665, 668 (Ky. 1990), cert. denied, 502
U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991) ; Taylor v. Commonwealth , 821
S.W .2d 72 (Ky. 1991) ; Epperson v. Commonwealth , 809 S.W.2d 835 (Ky. 1991) ;
Haight v . Williamson , 833 S .W.2d 821 (Ky. 1992) ; Wilson v. Commonwealth ,
836 S.W .2d 872 (Ky. 1992) ; Bowling v. Commonwealth , 873 S .W.2d 175 (Ky.
1993), cert. denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994);
38
Bussell v. Commonwealth, 882 S .W.2d 111 (Ky. 1994) ; Sanborn v.
Commonwealth, 892 S.W .2d 542 (Ky. 1995) and Perdue v. Commonwealth, 916
S .W.2d 148 (Ky. 1996). We have conducted an independent review of the
circumstances and conclude that they exceed any minimum justifying capital ,
punishment .
18
fact that he received life without parole for a similar crime, himself, does
not persuade us that he should never receive a greater penalty.39
XIV. Proportionality Review
Appellant believes that the method of proportionality review used
by this Court is inappropriate and constitutionally deficient. It has been
previously decided in every death penalty case, including reversals, that
the proportionality review now used by this Court does not violate state
or federal provisions.40 The arguments presented by Appellant have also
been rejected by the United States Supreme Court in Tuilaepa v.
California4 l and the Sixth Circuit in McQueen v. Scroggy. 42 Appellant
was not prejudiced by denial of access to KRS 532.075(6) data. Harper v.
Commonwealth 43 is still applicable and appropriate.
XV. Lethal Injection
Appellant states that lethal injection and electrocution are cruel
and unusual punishments and seeks a ruling that they violate the
Eighth Amendment of the Federal Constitution and Section 17 of the
Kentucky Constitution . This contention is somewhat premature because
KRS 431 .220(b) allows the accused to elect the method of execution until
See Perdue v. Commonwealth, 916 S .W.2d 148 (Ky. 1995). Cf.
Standefer v. United States, 447 U.S. 10, 100 S.Ct . 1999, 64 L .Ed.2d 689 (1980) .
40 See Foley , 942 S.W.2d 876.
41 512 U.S . 967, 114 S .Ct. 2630, 129 L.Ed.2d 750 (1994) .
42 99 F .3d 1302 (6th Cir. 1996), overruled on other grounds by In re
Abdur'Rahman , 392 F.3d 174 (6th Cir. 2004) .
43 694 S .W.2d 665 (Ky. 1985) .
39
19
twenty days prior to its imposition. If no election is made the method will
be lethal injection. Here, no such election has been made. At this time we
choose to follow our prior decisions regarding the constitutionality of
both methods of execution . 44 This Court has previously upheld the
constitutionality of electrocution as a means of imposing the death
sentence in numerous cases . As to lethal injection, the same conclusion
was announced in Wheeler v. Commonwealth . This argument is without
merit.
We have previously examined lethal injection as a method of
execution and held it did not violate the constitutional standards
prohibiting cruel and unusual punishment. We have no reason to depart
from the position set out in that case. The protocol for lethal injection
execution begins with a therapeutic dose of diazepam if it is requested .
Diazepam, commonly referred to as Valium, is an anti-anxiety agent used
primarily for the relief of anxiety and associated nervousness and
tension. Certified phlebotomists and emergency medical technicians are
allowed up to an hour to then insert the appropriate needles into the
arm, hand, leg or foot of the inmate .
Three grams of sodium thiopental, commonly referred to as
Sodium Pentothal, are then injected . This drug is a fast acting
Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky . 2003) (holding that
lethal injection is a permissible form of execution in Kentucky), McQueen v.
Parker , 950 S.W.2d 226 (Ky. 1997) (holding that electrocution has been upheld
as constitutional numerous times in Kentucky jurisprudence) .
44
20
barbiturate that renders the inmate unconscious. At this level of
ingestion the person is rendered unconscious for hours . The line is then
flushed with 25 milligrams of a saline solution to prevent adverse
interaction between the drugs .
Fifty milligrams of pancuronium bromide, commonly referred to as
Pavulon, follows. This drug causes paralysis . The purpose is to suspend
muscular movement and to stop respiration or breathing. The line is
again flushed with 25 milligrams of a saline solution to again prevent any
adverse interaction between the drugs.
Finally, 240 milligrams of potassium chloride is injected . This
chemical disrupts the electrical signals required for regular heart beat
and results in cardiac arrest. An electrocardiogram verifies the cessation
of heart activity . A doctor and a coroner then verify the cause of death .
The Eighth Amendment to the United States Constitution and
Section 17 of the Kentucky Constitution both forbid cruel and unusual
punishment . The use of three grams of sodium thiopental, commonly
referred to as Sodium Pentothal, renders the condemned unconscious.
The prohibition is against cruel punishment and does not require a
complete absence of pain .
XVI. Death Penalty Voir Dire
Appellant, in this unpreserved issue, argues that the process of
asking potential jurors their opinion of the death penalty has a
prejudicial effect on the jurors selected and that it was error for the trial
21
judge to excuse for cause, those who would not consider the death
penalty. Such arguments have been rejected by this Court in Hod,ge v.
Commonwealth45 and numero us other death penalty cases . 4 6
VVII. Cumulative Error
Appellant claims that cumulative error renders the convictions and
sentences here unreliable because they denied him a fundamentally fair
trial. We cannot agree. These arguments have been discussed in
numerous previous cases. Appellant received a fundamentally fair trial
and the absence of error in this case does not lend itself to an argument
for cumulative error relief. Each of the complaints offered by Appellant is
without merit and has been carefully reviewed . 47 Because there was no
individual error, there certainly can be no cumulative error. An
examination of the record here indicates there is no reason to change
that position. 48
Accordingly, the final judgment imposing the death penalty is
affirmed .
All sitting. Lambert, C .J., and Cunningham, Minton, Noble,
Schroder, and Scott, JJ ., concur.
17 S.W.3d 824 (Ky. 2000) .
46 Accord Lockhart v. McCree, 476 U .S. 162, 106 S. Ct. 1758, 90 L.Ed.2d
137(1986) .
47 See generally , Bowling, 942 S .W.2d 293 ; Perdue, 916 S.W.2d 148.
45
'+8
See Bowling , 942 S.W .2d 293 .
22
COUNSEL FOR APPELLANT:
Randall L. Wheeler
Karen Shuff Maurer
Assistant Public Advocates
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
Louis Franklin Mathias, Jr.
Michael A. Nickles, Jr.
Assistant Attorneys General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
ixprBme ~jaurf of irnfurhLl
2004-SC-000387-MR
FRED FURNISH
V.
APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
NO. 98-CR-00384
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
The Opinion of the Court by Chief Justice Lambert Rendered on
August 23, 2007 and Modified on November 26, 2008, is hereby
corrected on its face by substitution of the attached pages 1, 20, 21 and
22 in lieu of the original pages 1, 20, 21 and 22 of the opinion . The
purpose of this Order of Correction is to correct a typographical error and
does not affect the holding of the original Opinion of the Court.
ENTERED : December 15, 2008 .
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.