WILLIAM ALEXANDER MAJOR V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
CORRECTED : MARCH 10, 2009
RENDERED : JANUARY 22, 2009
TO BE PUBLISHED
,*uyrnar AT.vurf of
x..,
2007-SC-000734-MR
.&bC& O. c,
WILLIAM ALEXANDER MAJOR
ON APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY FROHLICH, JUDGE
NO . 01-CR-00365
V
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINON OF THE COURT BY JUSTICE SCOTT
AFFIRMING
This is a matter of right appeal, Ky. Const. § 110(2)(b), following a
retrial before the Boone Circuit Court pursuant to our prior decision in
Major v. Commonwealth , 177 S.W.3d 700 (Ky. 2005) (hereafter referred
to as Major I) .
Facts
The facts on retrial, with some exceptions, were essentially the
same as in Major I . Appellant, William Major, and his wife, Marlene
Major, had two (2) children, a son, D.O ., and a daughter, L.B . By the fall
of 1980, however, their marriage was failing. On the night of October 11,
1980, Marlene disappeared.
On November 29, 1981, the skull of a white female was found on a
nearby farm belonging to the Waller family. Appellant worked there on
occasion. In 2001, DNA testing' confirmed the skull belonged to a
maternal relative of L.B .
According to information contained in Marlene's diary, she had
witnessed Appellant sexually molesting their son, D .O . On the day of her
disappearance, she told her sister she had "proof' against Appellant
hidden somewhere he would not find it, and if anything happened to her,
the information would go to the police . In the same conversation, she
told her sister about her unhappiness and that she was going to divorce
Appellant. She spoke one more time with her sister that night, and
seemed to be upset as a result of fighting that was occurring in her
home.
Glen St. Hillaire lived near Appellant and Marlene on their
property. He was friends with both and worked with Appellant in St.
Hillaire's garage . Apparently he and Marlene were also romantically
involved. In fact, Marlene had given St. Hillaire her diaries for
safekeeping after an argument with Appellant.
At times when they were estranged due to arguments, Appellant
would describe to others what he would do if Marlene ever left him. On
several occasions, he even told St . Hillaire he would shoot Marlene, cut
her head off and knock her teeth out, in order to make identification of
her body difficult. Similar threats to dismember her body were made by
Appellant in the presence of others .
' Testing bone material for DNA did not become common practice until
about 1996.
2
On the night of October 11, 1980, St. Hillaire became concerned
about Marlene. He saw Appellant near the Majors' trailer around 3 :00
a .m. and asked about Marlene and the kids . Appellant told him he did
not know where she was, but she had left with the children . However,
Appellant had taken the children over to a neighbor's house around
11 :00 p .m . and told them that Marlene had left him for St. Hillaire .
Over the next several days Appellant sold his holdings in Kentucky
in preparation for moving to Rhode Island . He gave his three (3) weapons
to his neighbor, Brice - a 9mm pistol, a shotgun and a .22 caliber rifle and also sold him his tractor. On Wednesday of that week, he notified
the Boone County Sheriff's office that Marlene was missing, claiming
they had an argument and she left him. Subsequently, St. Hillaire
notified the police of his concerns and ultimately they took possession of
Marlene's diaries and the weapons Appellant had given Brice.
Investigations in the general vicinity did not turn up her body.
Sometime later the detectives traveled to Rhode Island to speak
with Appellant's son (D .O .) concerning the allegations of sexual abuse
that occurred in Kentucky . Although they were unsuccessful in acquiring
any useful information at the time, Appellant beat D .O . when he found
out about the inquiries, accusing him of giving the police information.
However, after Appellant moved to Rhode Island with the children,
the sexual abuse of D.O . continued. Moreover, Appellant then began to
sexually abuse L.B . Ultimately, he was discovered, convicted and
incarcerated in Rhode Island for the sexual abuse of the children . He
3
remained incarcerated in Rhode Island for approximately ten (10) years,
until sometime in 1996.
Thereafter, he was transported back to Kentucky on a detainer
which had been issued against him for the prior sexual abuse of D .O .
when they lived in Kentucky . It was during this incarceration, in 1996,
on the detainer from Boone County, when he made a telephone call and
confession to his father, Mr . James Major.
Later, in early 2001, detectives became aware of this 1996 phone
conversation Appellant had with his father, wherein, he told Mr. Major
that he had killed Marlene. Thereafter, the detectives went to Mr. Major's
home in Nova Scotia in an attempt to set up another phone conversation
between Mr. Major and Appellant, hoping Appellant would acknowledge
the confession . Mr. Major was cooperative in this, even suggesting his
cover story would be that he only had a short time to live .
The call was made and it was taped by the detectives ; however,
Appellant's answers were evasive, such as, "Why do I get the feeling that
somebody is trying to set me up?" When asked if he could say what
happened, Appellant replied : "Even if I could, I probably wouldn't." When
Mr. Major told him his daughter just wanted to know what happened,
Appellant said to tell her to "ask Marlene's boyfriend in Indiana. . .I think
if they had a talk with him . . .they might be surprised." When Mr. Major
reminded Appellant "You told me you killed her." He replied: "At the time
I was in jail and I was pretty well upset." At the time of this later
conversation, Appellant was not under arrest, nor was he incarcerated .
4
Ultimately, around July of 2001, Appellant was charged and
extradited back to Kentucky . Once in custody, he immediately began to
ask questions about the investigation. He was advised of his Miranda
rights and responded that he understood them . He then made a series of
incriminating statements . Back in Kentucky, he met with Detective Jack
Banks, was re-Mirandized, and thereafter gave the officers his version of
the events that took place on the night of Marlene Major's death.
According to Appellant, they got into an argument in her Ford
Pinto when she pulled a gun on him . He took it away from her and she
began screaming ; then, according to Appellant, he "lost it" and fired the
gun until it was empty. After realizing he had killed her, he left her body
in the Pinto and took the children to spend the night at his neighbor's,
Trinnie Brice's, house . He then returned and took Marlene's Pinto to the
Waller Farm where he dumped her body into a sink hole, covered it with
dirt and a piece of rolled fencing, and then tossed the murder weapon
into a nearby pond . He even drew the police a map to aid in their search
for her remains. As to her Ford Pinto, he indicated he had pushed it into
the Ohio River near a ferry . Significantly, neither Marlene's body (other
than the skull), the Ford Pinto, nor the pistol were ever located or
recovered.
In Major I , this court reversed and remanded for a new trial
because of (1) the improper admission of evidence of uncharged crimes,
i .e., the later sexual abuse of L.B ., and (2) the admission into evidence of
firearms factually unconnected to the crime charged.
5
Upon retrial, a Boone County jury found Appellant guilty of one
count of murder and guilty of one count of tampering with physical
evidence and recommended life imprisonment for the murder and five
years for tampering with physical evidence . The jury recommended the
sentences to run consecutively. The trial court followed the
recommendation of the jury as to the recommended sentences, but failed
to designate how the sentences would run . Appellant now alleges error,
to wit: 1) the trial court improperly admitted weapon testimony, 2) the
wire tap was improper, 3) the trial court erred by denying his motion for
mistrial, 4) the trial court failed to inform Appellant he could "control" his
appointed co-counsel, and 5) he was improperly sentenced consecutively
for definite and indefinite terms.
For the following reasons, we affirm the judgment and sentence
entered by the trial court .
I. Introduction of Weapon Testimony
Appellant contends that the testimony concerning the weapons
was error. In Major I , we noted that:
[w]e have upheld the admission of weapons into evidence
based upon testimony that the weapon was the one used in
the commission of the offense, Beason v. Commonwealth,
548 S .W.2d 835 (Ky. 1977), or that it was of the same size
and shape as the weapon used in the commission of the
offense, Sweatt v. Commonwealth, 550 S .W.2d 520 (Ky.
1977) ; or that it was found at the scene of the offense and
was capable of inflicting the type of injury sustained by the
victim, Barth v. Commonwealth, 80 S.W .3d 390 (Ky. 2001) .
However, weapons, which have no relation to the crime, are
inadmissible . Gerlaugh v. Commonwealth , 156 S.W.3d 747
(Ky. 2005) .
177 S .W .3d 700, 710 -711 (Ky. 2005) . Thus, we held that it was error to
introduce the "weapons [into evidence] without [a] connection to the
crime." 177 S .W.3d at 711 .
Prior to retrial, Appellant filed a motion in limine to exclude all
testimony concerning the weapons Appellant possessed in 1980, i.e., the
weapons that Appellant possessed and subsequently transferred
following Marlene's disappearance. Appellant argued, inter alia, that this
Court's ruling on weapons in Major I was to be broadly construed and
should exclude all evidence of Major's weapons. In response, the
Commonwealth argued that the ruling in Major I was much narrower,
and covered only the introduction of the weapons themselves.
After discussion of the issue, the trial court prohibited introduction
of the weapons as exhibits, but allowed witness testimony concerning the
weapons. The trial court's ruling was based on Appellant's previously
introduced statement that he would shoot Marlene if she tried to leave
him, as well as expert testimony that the bullet wounds found on the
recovered skull were consistent with projectiles from Appellant's
weapons .
Subsequently, prosecution witness Glenn St . Hillaire testified that
Appellant carried a gun . The trial court originally sustained Appellant's
objection to this testimony, but later allowed it into evidence based upon
the Commonwealth's assurance that later testimony would show that the
gun was capable of producing the wounds present on the skull . The
testimony of St. Hillaire established that there were guns at the Majors'
7
home, which was the scene of the crime as Appellant agreed that he shot
his wife outside of their home and it was also the last place Marlene was
seen alive .
St. Hillaire testified that Appellant had a gun at Major's home
approximately one month prior to his wife's disappearance, and that,
while he was handling the gun, Appellant threatened that his wife "was
not going anywhere" . St. Hillaire also testified that once, when he and
Marlene were sitting together talking by the nearby railroad tracks, they
saw Major go in and out of St. Hillaire's camper with a gun in his hand .
Lastly, Appellant objected and moved for a mistrial after St. Hillaire
testified that he removed Appellant's .22 caliber gun from the Majors'
home after Marlene's disappearance.
The trial court overruled Appellant's motion for mistrial based
upon the Commonwealth's assertion that appropriate foundation
testimony would be presented . The trial court later clarified its ruling,
explaining that the ruling meant that the Commonwealth had to present
testimony that Appellant's .22 could have caused the injuries evident on
Marlene's skull, or had some other connection to the crime. The court
also stated that introduction of weapon testimony was not a law-of-thecase issue, but, instead, a relevancy issue, and that the guns were
relevant if they were of a type that could have caused the injuries to
Marlene's skull. Additionally, the trial court found that weapons
evidence is admissible so long as its probative value was not
substantially outweighed by the danger of undue prejudice and indicated
that its rulings would be made on a case-by-case basis.
Shortly after the trial court's ruling on weapons, Appellant again
sought to exclude weapon testimony prior to the testimony of
prosecution witness Trinnie Brice. The trial court again ruled that
weapon testimony was admissible if the Commonwealth established a
foundation that the guns were of a type capable of inflicting the injuries
to the victim .
Thereafter, Brice testified that as Appellant prepared to leave town
after Marlene's disappearance and after sending his children to Rhode
Island, Appellant gave or sold him several items, a tractor, three guns, a
CB radio, along with a box of "stuff' that Appellant asked Brice to store
in his closet for him. Brice turned the guns over to law enforcement.
David Spicer, a former acquaintance of Appellant, testified he
heard Appellant say he would shoot his wife, cut her up, and that no one
would ever find her. On cross-examination, Appellant asked Spicer if he
thought the statement was serious . Spicer replied that he did take the
matter seriously because Appellant "carried a gun on his hip."
Additionally, during cross-examination of the officers who
transported Appellant to Kentucky from Massachusetts, it was developed
that Appellant told the officers that he shot Marlene six times with a .38
caliber, and that he had been fond of telling people a false tale that he
was a sniper in Vietnam, and was a prisoner of war.
Leroy Williams also testified that Appellant bragged that he could
perform the "perfect murder ." According to Williams, Appellant said he
would shoot the victim, use the gun to knock out the teeth, cut off the
feet, remove the lower jaw, and then scatter the pieces throughout the
country so the victim could not be identified .
The Commonwealth also called Dr. Emily Craig. She described, in
substantial detail, how she was able to examine the recovered skull to
draw conclusions about the circumstances surrounding Marlene's death .
The skull revealed that someone had attempted to decapitate the body
with some type of tool, such as an ax or a large knife. Further, the
obvious hole in the top of the skull was an exit wound resulting from a
gunshot . These wounds occurred at or near the time of death, while the
bone was still alive and flexible . In all likelihood, the bullet wound
suggested that more than one shot was fired into the skull. Although it
was impossible to determine what caliber firearm caused the wound, Dr .
Craig testified that it could have been a 9 mm handgun, a .38 caliber
revolver, a 12-gauge shotgun, a .22 rifle, or some similar firearm. The
wound could not have resulted from another type of weapon, such as a
BB gun. Other marks on the bone indicated that someone had
attempted to remove the lower jaw with a tool.
In Major I, we held that the introduction of firearms owned by
Appellant in 1980 was error, since the testimony did not establish that
the weapons were in fact used in the murder of Marlene, were of the
same size or shape as the weapon used in the commission of the offense,
10
or were found at the scene and capable of inflicting the type of injury
sustained. 177 S .W.3d at 710-711 . Appellant now argues that this
language serves to exclude otherwise relevant, properly admitted
weapons testimony under the law-of-the-case doctrine . We disagree .
Although Appellant argues that Major I broadly controls all
testimony in which a firearm is mentioned, our holding in Major I was
actually much narrower . Maj or I solely dealt with the physical
introduction of weapons as items of evidence without adequate relevance
to the events to which they were to be connected, not testimony about
those weapons . This is clear given our citation of Beason, Sweatt , Barth,
and especially Gerlaugh . Major , 177 S .W.3d at 710-711 . Thus, because
of the limited scope of our ruling in Major I , the trial court correctly
recognized that the question concerning the testimony of weapons was
one of relevancy.
Given Appellant's threats, their temporal proximity to Marlene's
disappearance, the availability of weapons at the crime scene, and the
similarities between the threats and the actual condition of the recovered
skull, the weapons testimony was clearly relevant. Thus, the trial court
was correct in allowing the introduction of evidence concerning the
weapons in this instance because the evidence on retrial supplied a
sufficient nexus, or relevancy, to the means and manner of Marlene's
death . Therefore, we find no error in the introduction of weapon
testimony.
II. Taped Phone Conversation
11
Appellant argues that this Court, in Major I, and thus, the trial
court on retrial, erred by allowing introduction of a tape of Appellant's
father's phone conversation from his home in Nova Scotia, Canada with
Appellant at his home in Massachusetts, without Appellant's consent. In
Major I , this Court held that:
Since official proceedings had not been instituted against the
Appellant for the murder of Marlene at the time of the
taping, and he was not incarcerated, [the phone call] was not
in violation of the Appellant's Fifth or Sixth Amendment
rights. Moreover, even though the phone conversation took
place [between] James Major's residence in Nova Scotia [and]
the Appellant's residence, then in Massachusetts, the
activity was appropriate under Kentucky Criminal Law, KRS
526.010 ; thus not in violation of his Fourth Amendment
rights . The practice of recording conversations with the
consent of at least one party to the conversation has long
been recognized in Kentucky jurisprudence . Carrier v.
Commonwealth , 607 S .W.2d 115 (Ky . App . 1980) ; see also
Lopez v. U.S. , 373 U.S. 427, 83 S .Ct 1381, 10 L.Ed.2d 462
(1963)
177 S.W .3d at 710 . Our primary reasoning aside, we also noted, in
footnote two (2) therein, that "in Demoulas v. Demoulas Supermarkets,
Inc. , 432 Mass. 43,
732 N.E .2d 875 (2000),
a similar case involving a
phone call from Nova Scotia to Massachusetts was approved ." Major,
177 S .W.3d
at
710
n .2 .2
On retrial, Appellant offered evidence of Massachusetts law to
show this Court misapplied Demoulas, as well as additional authority
tending to establish the taped phone call would be inadmissible in
2 Demoulas , in fact, addressed the taping of face to face conversations of
a Massachusetts resident in New York and Nova Scotia, rather than a telephone
call.
12
Massachusetts under their two-party consent doctrine .3 He concedes in
his brief, however, that Nova Scotia, from whence the call was placed,
has a "one-party consent rule" like Kentucky . Appellant thus argues
that the Court's citation to Demoulas and its interpretation of
Massachusetts law undermines the reasoning of Major l, thus entitling
Appellant to relief. We disagree .
First, the law-of-the-case doctrine mandates the trial court apply
our holding. This is so because it is :
an iron rule, universally recognized, that an opinion or
decision of an appellate court in the same cause is the law of
the case for subsequent trial or appeal however erroneous
the opinion or decision may have been. The doctrine is
predicated upon the principle of finality .
Brooks v. Lexington-Fayette Urban County Housing Authority, 24 4
S.W.3d 747, 751 (Ky. 2008) (internal citation omitted) . "When an
appellate court decides a question concerning evidence . . . the question
of law settled by the opinion is final upon a retrial in which the evidence
is substantially the same and precludes the reconsideration of the
claimed error on a second appeal." Williamson v . Commonwealth, 767
3 See Commonwealth v. Jarabek, 424 N .E.2d 491 (Mass. 1981), but see,
Commonwealth v. Gonzalez, 688 N .E.2d 455, 456 (Mass. 1997) ; Commonwealth
v. L,ykus, 546 N .E.2d 159, 164, n.10 (Mass. 1989) ; and Commonwealth v.
Pimentel, 879 N.E .2d 1 38 (Table), 2008 WL 108762 (Mass . App . Ct. 2008) ("The
defendant's reliance on Commonwealth v. Jarabek, . . . is misplaced, as here,
unlike there, the focus and direction of the investigation was provided by a
Federal agency, and the information gathered was intended for use in a Federal
prosecution.") ; Commonwealth v. Terzian, 814 N .E.2d 370, 375 n.7 (Mass. App.
Ct. 2004) ("In Jarabek, while the wiretap evidence was suppressed, the live
testimony of the person wearing the wire concerning the conversations was
permitted.")
13
S .W.2d 323, 325 (Ky. 1989) . At retrial, the evidence was the same as
ruled on in Major 1 .
"A final decision of this Court, whether right or wrong, is the lawof-the-case and is conclusive of the questions therein resolved."
Williamson , 767 S.W .2d at 325. "It is binding upon the parties, the trial
court, and the Court of Appeals . It may not be reconsidered by
prosecuting an appeal from a judgment entered in conformity therewith ."
Id. Moreover, "[o]ne cannot accept the benefits of that portion of an
opinion which is favorable and later relitigate that portion which is not."
Id. at 326 . The appropriate remedy to correct any alleged error in an
opinion of this court is to move for rehearing, pointing out the movant's
arguments for consideration by the appellate court. Id . ; see also Buckley
v. Wilson 177 S .W.3d 778, 781 (Ky. 2005) . In Major I, we reached a final
determination regarding the admissibility of the same taped call, so the
trial court was precluded from "entertain [ing] objections or mak[ing]
modifications" to our decision. Williamson , 767 S.W .2d at 326. Thus,
the trial court did not err in admitting the tape of the phone call.
Moreover, in multi-state matters, Kentucky traditionally follows the
Restatement (Second) of Conflict of Laws (1988) . Cf. , State Farm Mutual
Auto . Ins . Co., v. Marley, 151 S .W .3d 33, 42 (Ky. 2004) . In this instance,
Restatement (Second) of Conflict of Laws, § 139(2) (1988) states:
Evidence that is privileged under the local law of the state
which has the most significant relationship with the
communication but which is not privileged under the local
law of the forum will be admitted unless there is some
special reason why the forum policy favoring admission
14
should not be given effect.
Thus, even were we to assume that Massachusetts had the most
significant relationship with the communication - which we do not there must be some special reason for Kentucky to forgo its
acknowledged policy favoring admission of taped phone conversation
with the consent of one party. Any other construction "would in effect
place the criminal jurisprudence of one sovereignty under the control of
another." United States v. Reid,
53 U .S . 361 (1851),
grounds by Rosen v. United States ,
overruled on other
245 U .S . 467 (1918) .
Under the facts at hand, we found -and find- no special reason to
exclude the tape . Moreover, our decision here, and in Major l, is in
accord with many other jurisdictions. E. . , People v. Thompson,
P.2d
608, 611 (Colo .
Ct.
App. 1 997)
950
("Although the communication
occurred in Oregon, it directly concerned a serious crime allegedly
committed by defendant in Colorado . The victim was a citizen of
Colorado.") ; State v. Lee, 640 A.2d
553, 562
(Conn.
1994)
("We decline to
apply the law of another jurisdiction merely because a portion of the
police investigation occurred there .") ; State v. Lipham , 910 A.2d 388, 390
(Me. 2006) ("At the request of police, Lipham's wife placed a secretly
recorded phone call to him in Alabama.") ; Larrison v. Larrison , 750 A.2d
895, 898
(Pa . Super. 2000) ("While this Commonwealth has an interest in
protecting its citizens from having telephone conversations recorded
without proper consent, we, as the courts of this Commonwealth, have
no power to control the activities that occur within a sister state .") ; Kos v .
15
State, 15 S .W.3d 633, 636 (Tex. App. 2000) ("Section 139(2) recognizes
the `strong policy' a forum state has in disclosing `all relevant facts that
are not privileged under its own local law.') ; State v. Mayes, 579 P.2d
999, 1005 (Wash . Ct. App . 1978) ("Defendant urges that we read the
statute literally and hold that Officer Christian's interception of Cindy
Dickerson's phone conversations was illegal even though the
interceptions took place in California, were principally to aid California
police, and were not used to further any criminal activity in the state of
Washington."); and State v. Townsend , 746 N .W .2d 493, 497 (Wisc . Ct.
App. 2008) ("we conclude that Wisconsin law shall be applied to evidence
gathered in a foreign state by a Wisconsin official charged with the duty
to gather evidence for use in a Wisconsin criminal prosecution.") .
Appellant, of course, implies that Massachusetts had the most
significant relationship to this transaction because Major was living in
Massachusetts. We strongly disagree .
At the time of Marlene's death, both she and Appellant were
Kentucky residents . According to Appellant, her death occurred in
Kentucky . Appellant transferred the alleged murder weapons in
Kentucky to another Kentucky resident. Marlene's skull was found in
Kentucky . D .O .'s sexual abuse, the beginning and continuation of which
was advanced as a possible motive for Marlene's murder, occurred in
Kentucky . The officers who participated in taping the phone
conversation, with Appellant's father's permission, were Kentucky law
enforcement officers, gathering information in a Kentucky investigation.
16
The taped or intercepted conversation, between the father in Nova Scotia,
Canada and the son, in Massachusetts, was intercepted with the father's
permission, in Nova Scotia, not in Massachusetts. As Appellant has
conceded, Nova Scotia, like Kentucky, allows taping with one-party
consent. See , R . v . Durate, 1 S .C .R. 30 (Can. 1990) . Thus, the only
contact Massachusetts had with the call was that Appellant's
conversation was transmitted from Massachusetts to Nova Scotia, where
it was taped by the officers, with Appellant's father's consent.
Moreover, as both this Court and the federal courts have
recognized, Kentucky courts generally apply Kentucky law whenever it is
justified. Breeding v . Massachusetts Indemnity and Life Insurance
Company, 633 S .W.2d 717, 719 (Ky. 1982) ("Justice, fairness and the
best practical result may best be achieved by giving controlling effect to
the law of the jurisdiction which, because of its relationship or contact
with the occurrence or the parties, has the greatest concern with the
specific issue raised in the litigation .") ; see also Johnson v. S .O .S .
Transport, Inc . , 926 F.2d 516, 519 n .6 (6th Cir. 1991) ("Kentucky's
conflict of law rules favor the application of its own law whenever it can
be justified .") (emphasis added) .
Thus, the application of Kentucky law was justified and the taped
phone conversation was properly admitted.
III. Motion for Mistrial
Appellant also argues the trial court erred in not granting his
motions for mistrial . We disagree .
17
During the testimony of Deputy Jay Wuchner, a retired Boone
County officer who participated in Major's first trial, he testified that he
first saw a referenced exhibit during "the first trial that took place three
(3) years ago." Appellant then moved for a mistrial, arguing that such
prejudice could not be cured by an admonition. The trial court overruled
the motion for a mistrial, but noted that it would admonish the jury. The
issue was then passed to the next morning as to avoid calling more
attention to the comment.
The next morning, Appellant again urged a mistrial based on the
cumulative nature of "what's come out," including Appellant's conviction
for child molestation in Rhode Island, alleged excessive gun evidence,
and Wuchner's mention of the prior trial. The trial court again denied
the motion. Appellant then requested the admonition . The parties then
submitted admonitions and the trial court combined the proposed
admonitions and read the agreed-upon version to the jury . The
admonition instructed the jury that there are many proceedings that lead
up to a trial, and thus, references to prior testimony are not part of the
evidence to be considered .
On review, we note "the decision to grant a mistrial is within the
sound discretion of the trial court, and such a ruling will not be
disturbed absent an abuse of that discretion ." Woodard v .
Commonwealth , 147 S .W.3d 63, 68 (Ky. 2004) ; see also Bowling_v.
Commonwealth , 873 S.W.2d 175 (Ky. 1994) . While we are mindful that
the trial court's discretion is not "unlimited," Sharp v. Commonwealth ,
18
849 S .W .2d 542, 547 (Ky. 1993), we have previously found that the trial
court, in its discretion, may choose to admonish the jury instead of
granting a mistrial; this is so because an admonition is presumed to cure
a defect in testimony. Alexander v. Commonwealth, 862 S .W.2d 856,
859 (Ky . 1993) (overruled on other grounds by Stringer v.
Commonwealth , 956 S .W.2d 883, 891 (Ky. 1997)) ; Johnson v.
Commonwealth , 105 S.W .3d 430, 441 (Ky. 2003) ; see also Price v.
Commonwealth , 59 S . W.3d 878, 881 (Ky. 2001) . This presumption is
only overcome 1) when an overwhelming probability exists that the jury
is incapable of following the admonition and a strong likelihood exists
that the impermissible evidence would be devastating to the defendant;
or 2) when the question was not premised on a factual basis and was
inflammatory or highly prejudicial . Alexander, 862 S .W.2d at 859 ;
Johnson v . Commonwealth, 105 S .W.3d 430, 441 (Ky. 2003) ; Derossett
v. Commonwealth, 867 S .W.2d 195, 198 (Ky. 1993) ; Bowler v.
Commonwealth , 558 S .W.2d 169, 171 (Ky. 1977) ; see also Greer v. Miller,
483 U.S. 756, 766, n . 8 (1987) .
Here, the trial court reviewed Wuchner's statement and correctly
found that the admonition would cure the defect. We further note that
the statement at issue here, referring only briefly to a previous trial, did
not indicate any favorable or unfavorable outcome, and thus did not
raise any of the concerns addressed in Alexander. Therefore, we find no
abuse of discretion .
IV. Role of Appointed Counsel
19
Appellant also asserts the trial court erred by failing to allow him
complete control of his defense and co-counsel .
Appellant initially complained about the services of his appointed
counsel in a letter to the trial court dated May 31, 2006, wherein he
informed the court that he had instructed one of his attorneys to
withdraw because he had tried to "deal with her" and had "no success."
He stated that his decision was based on a conversation with a
receptionist at the Department for Public Advocacy (hereinafter "DPA"),
during which he was told that his attorney was not available to speak
with him.
The trial court set a hearing for July 28, 2006, to address
Appellant's motions and letters. During that hearing, Appellant spoke to
the trial court at length about his abilities, his limitations, and his
problems with counsel. Appellant argued that his primary concern was
that he had a list of people that he needed to locate but that his
attorneys did not want to locate them;4 that he really wanted the trial
court to appoint a particular attorney, which DPA had previously
transferred to Kenton County; that he was mad that a receptionist had
been "rude" to him and therefore he now refused to call his attorney's
office. Appellant stated that he wanted an attorney who would raise the
points Appellant felt were important to his defense, and that he may or
may not want to be the ultimate decision maker. The trial court did not
'This complaint ignored the "near-impossibility" of locating numerous
alleged character witnesses twenty-seven (27) years after Marlene's
disappearance.
20
enter a finding but, instead, asked Appellant to share his feelings with
his counsel and to trust his attorneys because they were excellent
attorneys.
Later, the Commonwealth requested an evaluation by Kentucky
Correctional Psychiatric Center (hereinafter "KCPC") due to increasing
concerns about Appellant's competency. Appellant's co-counsel agreed
that a competency hearing was needed and stated that he had doubts
concerning Appellant's competency, including his competency to assist
counsel or to put on any defense pro se. Following an order requiring
Appellant to undergo a competency evaluation, the trial court set a
competency hearing for May 3, 2007 .
During the competency hearing, the KCPC psychiatrist, Dr.
Timothy Allen, reported that Appellant's ability to process and analyze
information was slow, but that he possessed average intellectual
functioning, with a 107 verbal IQ, 110 overall, and appeared to have a
good memory . Testimony also revealed that Appellant, as a result of a
stroke in 1995, was literally missing the center two-thirds (2/3) of the
right side of his brain. The .two-thirds of the right side of Appellant's
brain, which controls memory, emotion, speech, artistic expression, free
thinking, the rhythm and tone of speech, and, according to some
scientists, the ability to tell the truth, had seemingly died and had been
reabsorbed and replaced by fluid . The left side of Appellant's brain,
responsible for cognitive functions, problem solving, understanding, and
21
word recognition, was unharmed and capable of performing its assigned
tasks virtually unimpaired.
Further, the psychiatrist discounted Appellant's claimed inability
to recall events prior to the 1995 stroke, stating there was no evidence of
memory dysfunction for current events . Dr. Allen said Appellant knew
his own case in exhaustive detail, could describe specific statutes and
rules of law, knew what evidence should not be admitted, knew about
the jury process, and all functional aspects of his defense . He stated
Appellant had no difficulty staying on task, no problem being decisive,
and no problem focusing. He stated that Appellant, however, suffered
from cognitive dysfunction (NOS), and processes information more slowly
than an average person, but also stated that he was able to have a very
complex conversation with Appellant . Thereafter, the trial court found
Appellant competent to stand trial.
Given the information from KCPC, the trial court held a second
hearing on May 15, 2007, to address Appellant's complaints regarding
his attorneys. In its order, the trial court found Appellant was not
entitled to appointed counsel of his own selection, and that he had a long
history of complaining about his attorneys, both past and present.
Further, the trial court found the testimony of Dr. Allen of KCPC
confirmed what the trial court had already observed (and what Appellant
admitted), that Appellant had great difficulty processing information in
circumstances that required quick action. Given Appellant's limitations,
the trial court found that Appellant's competency to act as his own
22
representative at trial was limited. It also determined that Appellant
could conduct direct examinations because he could prepare his
questions ahead of time, but other trial functions required Appellant to
quickly analyze and respond to information, and Appellant lacked that
ability.
Appellant also argues that the trial court erred by not informing
him of the role he had a right to play in his defense, i .e ., lead counsel .
Appellant claims that by not specifically telling Appellant that he had a
right to set trial strategy, direct the investigation, and set the theory of
the defense, that he was deprived of his right to a fair trial . We disagree .
The United States Supreme Court has held that a criminal
defendant has a constitutionally protected right to present his own
defense in addition to a constitutionally protected right to be represented
by counsel. Faretta v. California, 422 U .S . 806, 833-34 (1975) . However,
axiomatically, by electing to exercise one's constitutional right to present
one's own defense, a defendant necessarily waives their constitutional
right to be represented by counsel. United States v. Mosley, 810 F.2d 93,
97 (6th Cir. 1987) (quoting United States v. Conder , 423 F.2d 904, 908
(6th
Cir. 1970)) ("The right to defend pro se and the right to counsel have
been aptly described as `two faces of the same coin,' in that waiver of one
right constitutes a correlative assertion of the other.")
Section 11 of the Kentucky Constitution also recognizes the ability
of a defendant to proceed without counsel . Ky. Const. § 11 ("In all
criminal prosecutions the accused has the right to be heard by himself
23
and counsel.") . Further, Section 11 serves as the basis of the right to
hybrid counsel, or the right to be heard "by himself and counsel ." See
Ky. Const. § 11 . Thus, in Kentucky, unlike in federal courts, "an
accused may make a limited waiver of counsel, specifying the extent of
services he desires, and he then is entitled to counsel whose duty will be
confined to rendering the specified kind of services (within, of course, the
normal scope of counsel services) ." Wake v. Barker, 514 S.W.2d 692,
696 (Ky. 1974) .
In Wake , we held that, upon an unequivocal request to appear pro
se or an unequivocal request to limit the role of appointed counsel, the
trial court must conduct a hearing to determine that any such waiver is
made knowingly and intelligently . 514 S .W.2d at 697. This comports
with the requirements and protections afforded in Faretta. However, the
protections of Faretta and Wake are only triggered if the requests are
unequivocal and timely made . See Soto v. Commonwealth , 139 S .W .3d
827, 857 (Ky. 2004) .
A waiver of counsel by a borderline-competent pro se defendant,
adds however, additional difficulties to an already complex clash of
fundamental constitutional rights, i.e ., the right to self-representation,
the right to be represented by counsel, and the right to a fair trial.
It is well-settled that a criminal defendant may not be tried
unless he is competent and he may not waive his right to
counsel or plead guilty unless he does so competently and
intelligently. In Dusky v. United States, 362 U .S . 402 (1960)
(per curiam ), we held that the standard for competence to
stand trial is whether the defendant has "sufficient present
ability to consult with his lawyer with a reasonable degree of
24
rational understanding" and has "a rational as well as
factual understanding of the proceedings against him ."
Godinez v. Moran , 509 U .S . 389, 396 (1993) (internal citation omitted) .
Upon a finding of competence to stand trial, a criminal defendant is
deemed to be competent enough to choose to waive any of his
constitutional rights . This is so because:
[a] defendant who stands trial is likely to be presented with
choices that entail relinquishment of the same rights that
are relinquished by a defendant who pleads guilty: He will
ordinarily have to decide whether to waive his "privilege
against compulsory self-incrimination," Boykin v . Alabama,
395 U .S . 238, 243 (1969), by taking the witness stand; if the
option is available, he may have to decide whether to waive
his "right to trial by jury," id.; and, in consultation with
counsel, he may have to decide whether to waive his "right to
confront [his] accusers," id . , by declining to cross-examine
witnesses for the prosecution . A defendant who pleads not
guilty, moreover, faces still other strategic choices: In
consultation with his attorney, he may be called upon to
decide, among other things, whether (and how) to put on a
defense and whether to raise one or more affirmative
defenses . In sum, all criminal defendants-not merely those
who plead guilty-may be required to make important
decisions once criminal proceedings have been initiated . And
while the decision to plead guilty is undeniably a profound
one, it is no more complicated than the sum total of
decisions that a defendant may be called upon to make
during the course of a trial . (The decision to plead guilty is
also made over a shorter period of time, without the
distraction and burden of a trial.) This being so, we can
conceive of no basis for demanding a higher level of
competence for those defendants who choose to plead guilty.
If the Dus standard is adequate for defendants who plead
not guilty, it is necessarily adequate for those who plead
guilty.
Id. at 398-399 (emphasis in original) . Thus, "since there is no reason to
believe that the decision to waive counsel requires an appreciably higher
level of mental functioning than the decision to waive other
25
constitutional rights," a Dusky finding of competence to stand trial
entails a finding of competence to exercise or waive any other
constitutional right . Id. at 399 .
Yet, when weighing competence against the right to counsel or selfrepresentation under the Godinez standard, "[w]e must keep in mind
that our inquiry is whether [the defendant] competently waived his right,
not whether he was competent to represent himself." Commonwealth v.
Berry, 184 S .W.3d 63, 68 (Ky. 2005) (internal citations omitted) ; see also
Chapman v. Commonwealth , 265 S .W.3d 156 (Ky. 2007) . Indiana v.
Edwards, --- U.S. ---, 128 S.Ct. 2379 (2008), recently decided, now
squarely addresses this interplay between competence and the right to
self-representation when a borderline competent defendant seeks to
defend himself at trial. 5
Like here, Edwards involved a borderline-competent defendant who
sought to assert his right of self-representation on retrial, yet the trial
court denied his request. The defendant then went to trial with the
assistance of his appointed counsel and was convicted. He appealed to
the Indiana Supreme Court, which found that Faretta and Godinez
required the state to allow Edwards to represent himself. The United
States Supreme Court then accepted certiorari .
The Court, in Edwards , defined the issue as a "a mental-illnessrelated limitation on the scope of the self-representation right." --- U.S. We note that Indiana v. Edwards was rendered after Appellant's trial and
retrial, and thus refer to it only as persuasive authority.
26
--, 128 S .Ct. at 2384 . The Court then distinguished Faretta, stating "it
does not answer the question before us both because it did not consider
the problem of mental competency (cf. 422 U .S ., at 835 (Faretta was
`literate, competent, and understanding')), and because Faretta itself and
later cases have made clear that the right of self-representation is not
absolute . Edwards, --- U.S . ---, 128 S .Ct. at 2384 .
Here, as in Edwards, the borderline competent defendant sought to
control his own trial proceedings raising additional considerations
beyond the scope of Godinez or Chapman. Moreover, "Godinez involved a
State that sought to permit a gray-area defendant to represent himself.
Godinez's constitutional holding is that a State may do so. But that
holding simply does not tell a State whether it may deny a gray-area
defendant the right to represent himself." Edwards , --- U.S . ---, 128
S .Ct. at 2385 (emphasis in original) .
To address the gray area, balancing competency with the right to
self representation, the Court in Edwards noted that the seminal mental
competency cases, Dusky and Drope v . Missouri, 420 U.S . 162 (1975),
focus directly upon the borderline defendant's "present ability to consult
with his lawyer," Dus
, 362 U.S. at 402, a "capacity . . . to consult with
counsel," and ability to "assist counsel in preparing his defense ." Drope ,
420 U.S . at 171 . ("It has long been accepted that a person whose mental
condition is such that he lacks the capacity to understand the nature
and object of the proceedings against him, to consult with counsel, and to
assist in preparing his defense may not be subjected to a trial" Id.
27
(emphasis added)) . Thus, Dusky and Drape assume representation by
counsel and emphasize its importance .
In addition, the foundational self-representation case, Faretta,
bases its analysis in part on pre-existing state law cases which are
consistent with, or adopt, a competency limitation on the right of selfrepresentation . See 422 U.S. at 813, and n. 9, (citing sixteen (16) statecourt decisions and two secondary sources) ; e.g., Cappetta v. State, 204
So.2d 913, 917-918 (Fla. App . 1967), rev'd on other grounds, 216 So .2d
749 (Fla. 1968) (assuring a "mentally competent" defendant the right "to
conduct his own defense" provided that "no unusual circumstances exist"
such as, e.g., "mental derangement" that "would . . . depriv[e]" the
defendant "of a fair trial if allowed to conduct his own defense," 204
So .2d, at 917-918) ; id., at 918 (noting that "whether unusual
circumstances are evident is a matter resting in the sound discretion
granted to the trial judge") ; Allen v . Commonwealth, 87 N .E.2d 192, 195
(Mass . 1949) (noting "the assignment of counsel" was "necessary" where
there was some "special circumstance" such as when the criminal
defendant was "mentally defective")
Drawing on such precedent, Edwards also notes that sometimes
"an individual may well be able to satisfy Dus
's mental competence
standard, for he will be able to work with counsel at trial, yet at the same
time he may be unable to carry out the basic tasks needed to present his
own defense without the help of counsel." Edwards , 128 S. Ct. at 2386 .
Therefore, allowing such a defendant to try his own case would not
28
"affirm the dignity" of a borderline competent defendant. McKaskle v .
Wig ins, 465 U .S . at 176-177 ("Dignity" and "autonomy" of individual
underlie self-representation right) .
Moreover, the "proceedings must not only be fair, they must
`appear fair to all who observe them.' Edwards, --- U.S. ---, 128 S. Ct. at
2386 (quoting Wheat v. United States, 486 U .S. 153, 160 (1988)) . While
application of Dus
's basic mental competence standard can help in
part to avoid an unfair result, given the different capacities needed to
proceed to trial without counsel, there is little reason to believe that
Dus
alone is sufficient . See Dean v. Commonwealth, 777 S.W.2d 900,
908 (Ky. 1989) (overruled on other grounds by Caudill v. Commonwealth,
120 S .W.3d 635 (Ky. 2003) ("Even if a defendant is found competent to
stand trial, he may not be capable of making an intelligent decision
about his defense.")
Thus, "the trial judge, particularly one such as the
trial judge in this case, who presided over . . . [Appellant's] competency
hearings and his two trials, will often prove best able to make more finetuned mental capacity decisions, tailored to the individualized
circumstances of a particular defendant." Id .
In conclusion, Edwards found that:
the Constitution permits judges to take realistic account of
the particular defendant's mental capacities by asking
whether a defendant who seeks to conduct his own defense
at trial is mentally competent to do so . That is to say, the
Constitution permits States to insist upon representation by
counsel for those competent enough to stand trial under
Dus but who still suffer from severe mental illness to the
point where they are not competent to conduct trial
proceedings by themselves .
29
--- U.S . ---, 128 S .Ct at 2387-2388 .
Edwards thus recognizes a trial judge's right to take a realistic
account of a particular defendant's mental capacities and to create an
individualized representation specifically tailored to a defendant's
abilities; a just mix designed to assure defendants, such as Appellant, a
fair trial .
In the case-at-bar, the trial court addressed the considerations
raised in Edwards .
h
Several hearings were held and Appellant was found
competent to stand trial with the assistance of counsel under the Dus
standard . As a result of his competence, Appellant was entitled to assert
his right to self-representation, thereby waiving his right to counsel, or,
in the alternative, to assert his right to hybrid counsel, dictating the
extent of counsel's involvement pursuant to Section 11 of the Kentucky
Constitution . After Appellant's assertion, 7 however, because of his
borderline competency, the trial court had the right to deny the
Appellant the right to proceed pro se and to structure the role and scope
6 The trial court held multiple hearings on the issue of Appellant's
competency and his interaction with his attorneys. Beginning May 31, 2006,
when Appellant informed the trial court that he instructed his attorney to
withdraw because he had tried to "deal with her" with "no success," and
continuing until the trial court's final ruling on Appellant's competency, on May
15, 2007, Appellant's competency and relationship with his attorneys were
repeatedly before the court.
'This assumes, without finding, that Appellant's request was
unequivocal. The record is far from clear on the subject. Appellant never
clearly requested self-representation . Appellant stated that he wanted an
attorney, but that he wanted an attorney who would follow his instructions .
Yet, Appellant also stated that he was unsure if he wanted to be the ultimate
decision-maker for his capital murder defense .
30
of hybrid counsel employed in this instance . This is consistent with our
previous pronouncements in Dean, 777 S .W.2d at 908, and Jacobs v.
Commonwealth , 870 S .W .2d 412, 418 (Ky. 1994) ("For, even if a
defendant is found competent to stand trial, he may not be capable of
making an intelligent decision about his defense .")
Moreover, in its May 17, 2007, order, the trial court properly
included (as it should in these instances) an extensive explanation of its
reasoning as to what sort of representation Appellant was capable of
and/or needed . Amongst its findings:
[Appellant] is not competent to completely participate in trial .
While [he] has the ability to research and write when under
no time constraints he does not have the ability to process
information quickly enough to participate meaningfully in a
Court of Law. To allow [Appellant] to try his own case would
in effect mean that he will not receive a fair trial.
[Therefore, Major] is specifically not competent to voir dire a
jury, to make opening or closing statements or crossexamine witnesses. He is competent to directly examine
witnesses provided he has prepared written questions to
read from. If a trial were conducted by written questions
[Appellant] could adequately perform. Unfortunately for
[Appellant], his disabilities will not allow him to competently
participate in the way our justice system has dictated that
trials are to be conducted. He is intelligent enough to make
a determination as to whether to take the stand as a witness
but it is the intention of the Court to conduct an in camera
hearing if [Appellant] chooses such a course of action to
assure Faretta safeguards are met.
Thus, in the present instance, there were compelling reasons
weighing against full dismissal of Appellant's counsel, namely to
safeguard against Appellant's demonstrated mental limitations . Thus,
Appellant was properly precluded from appearing pro se during those
31
phases of the trial as affected, but, nonetheless, was allowed to represent
himself in those phases of the trial not so precluded, a right he left
largely unexercised.
Therefore, considering the extensive efforts put forth by the trial
court to protect Appellant's rights to proceed pro se and by "hybrid cocounsel," as well as his right to a "fair trial," we find no abuse of
discretion in the trial court's actions in this regard and thus, no error.
V. Sentencing Issues
Finally, Appellant argues the trial court erred by sentencing him to
five (5) years for the charge of tampering with physical evidence to run
consecutively with his life sentence for murder . Appellant correctly cites
to KRS 532 .110 for the proposition that definite and indefinite terms
must run concurrently, and that all such sentences shall be satisfied by
the service of the indefinite term. Moreover, we have previously held that
no sentence can be ordered to run consecutively with a life sentence.
Mabe v. Commonwealth, 884 S .W.2d 668, 673 (Ky. 1994) .
Although the Judgment and Sentence in this case notes that the
jury recommended the sentences run consecutively, there is no order
designating that the sentences are to run consecutively. KRS 532 .110(2)
clearly states that sentences will run concurrently when an order does
not specify the manner in which sentences are to run .
Therefore, the sentences here are to run concurrently pursuant to
KRS 532 .110(2), not consecutively as asserted by Appellant. Thus, we
find no error.
32
Conclusion
For the forgoing reasons, the judgment and sentence herein is
affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Heather Michelle Fryman
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
,*uyrrmr (~vurf of RrufurhV
2007-SC-000734-MR
WILLIAM ALEXANDER MAJOR
V.
APPELLANT
ON APPEAL FROM BOONE COUNTY CIRCUIT COURT
HONORABLE ANTHONY FROHLICH, JUDGE
NO . 01-CR-00365
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
The Opinion of the Court by Justice Scott entered January 22,
2008, is hereby corrected on its face by substitution of the attached
pages 1 and 31 in lieu of the original pages 1 and 31 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 : March 10, 2009.
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.