JONATHAN D. STARK V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : JANUARY 21, 2010
NOT TO BE PUBLISHED
~Uyrrmt (~Vurf
of 'Re", -'Pt
2008-SC-000660-MR
JONATHAN D . STARK
ON APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES CLAUD BRANTLEY, JUDGE
NO . 03-CR-00069
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In March 2005, Appellant, Jonathan D . Stark, was convicted in the
Hopkins Circuit Court of two counts of murder and sentenced to life
imprisonment . In an unpublished opinion by this Court, Appellant's
convictions were affirmed, but his sentence was reversed and the case
remanded for a new penalty phase trial and sentencing . ) A new penalty phase
was conducted in July 2008, and Appellant was again sentenced to life without
the possibility of parole or probation for each count of murder . Appellant now
appeals to this Court as a matter of right. Ky. Const. ยง 110(2) (b) .
The facts of the case, as stated by this Court in its previous opinion, are
as follows :
Stark v. Commonwealth, No. 2005-SC-000332-MR, 2007 WL 2404453 (Ky.
August 23, 2007) .
On June 30, 2002, the nude body of Norrell Major and
partially nude body of Tim Hibbs were discovered
inside of Major's trailer. Both men had been shot to
death . Approximately six months earlier, Major ended
a homosexual relationship with Appellant, who was
Major's employee . The relationship ended because
Major had -reportedly been cheating on Appellant . By
all accounts, Appellant did not react well to the end of
the relationship. Evidence presented at trial suggested
that Appellant was obsessed with Major. He continued
to initiate contact with Major and eventually, filed a
sexual harassment complaint against Major. However,
his complaint was found to be unsubstantiated and he
was removed from Major's department at work.
Sometime between February and June of 2002,
Appellant saw Major with Hibbs and became jealous.
He followed the men and became involved in a heated
argument with Major . Appellant admitted assaulting
Major at that time. Afterwards, Appellant called
Major's son to report that he still loved Major and was
sorry about the physical confrontation . Approximately
two or three weeks prior to the murders, Appellant
sent Major a card describing his feelings for him, but
Major once again rebuked Appellant's sentiments.
On the day prior to the murders, Appellant claimed
that he discovered some lawn furniture missing from
his front porch . He assumed the "thief' was Major .
That night Appellant went to a party, but then left
around midnight . One of Appellant's friends tried to
call him soon after he left the party since it was not
Appellant's habit to leave gatherings without saying
goodbye . Later that night, Appellant returned his
friend's call, reporting that he went to Major's trailer to
ask about the lawn furniture but found no one home .
He reported taking some lanterns in retaliation.
No signs of forced entry were found when Major and
Hibbs's bodies were discovered that morning. Major's
son reported that a key kept on the ledge above
Major's front door was missing. Appellant immediately
became a suspect and investigators went to his
residence in the early hours of July 1, 2002.
During their conversation with Appellant, the
investigators noted that Appellant spoke of Major in
the past tense even though he had only been told that
Major was in an accident.. Appellant denied having a
handgun, but upon a search of his residence, shells
for- two different pistols and a gun cleaning kit were
found . Appellant acknowledged that he had owned a
handgun, but sold it approximately three weeks prior
to the murder. He said he sold it to a man named
David Blades, but police were unable to locate him.
Clothes and shoes worn by Appellant on the night
Major and Hibbs were murdered were never located
despite a search of Appellant's possessions . Phone
records also showed a call from Appellant to Major at
1 :14 a.m . on the night of the murders . Eventually,
Appellant's DNA was linked to the scene of the crime
via a cigarette butt found inside Major's trailer .
Based on this evidence, Appellant was charged with
and convicted of the murders of Major and Hibbs.
Stark, 2007 WL 2404453, at *1-2 .
On appeal, Appellant raises multiple issues: (1) the trial court erred by
failing to find that double jeopardy barred a potential death sentence on retrial;
(2) the trial court abused its discretion in allowing Dr. LeVaughn's
demonstration of the positioning of Hibbs's body; (3) the trial court's failure to
strike a juror who could not consider a minimum sentence denied Appellant a
fair and impartial jury; (4) the trial court erred in refusing to allow defense
witnesses to testify as to "lingering doubt" of Appellant's guilt ; (5) the trial court
erred in allowing jurors to take cell phones into the deliberation room; and (6)
an improper comment by the prosecutor during closing argument denied
Appellant a fair trial.
Each shall be discussed in turn.
Double jeopardy
At the conclusion of the July 2005 trial, the jury found the aggravating
circumstance that Appellant had committed intentional ;-multiple murders.
Additionally, Appellant was sentenced to life without the possibility of parole or
probation for each count of murder . After this Court reversed and remanded
that sentence, but prior to the beginning of the second sentencing phase, the
Commonwealth gave notice of its intent to seek the death penalty, citing the
aggravator that Appellant had committed intentional and multiple murders.
Appellant's counsel objected, and in his brief to this Court, Appellant cites
Bullington v . Missouri, 451 U.S . 430 (1981), for the proposition that the 2005
sentence of life without parole constitutes an acquittal of the death penalty,
thereby precluding the Commonwealth from seeking it as a possible sentence
at retrial on double jeopardy grounds.
Because Appellant received a sentence less than death and was merely
subject to a death-qualified jury, we believe this issue is moot. We, therefore,
decline to address it in this opinion .
Dr. LeVaughn's testimony
During the 2005 trial, Dr . Mark LeVaughn gave a physical demonstration
of the approximate positioning of the body of Timothy Hibbs at the time he was
shot. Dr. LeVaughn based this demonstration upon his notes, photographs,
bullet paths, and the autopsy; however, no courtroom camera captured the
demonstration . At the 2008 retrial, the Commonwealth sought to have Dr .
LeVaughn recreate the demonstration alongside the videotape of his earlier
testimony.2 Appellant objected to the testimony, stating that Dr. LeVaughn
had, prior to testifying, discussed the trajectory of the bullets' nd the position
of Hibbs's body with the prosecutor and KSP Detective Walcott . This, and not
Dr. LeVaughn's own recollection, according to Appellant, provided the basis for
the physical demonstration because the doctor could not remember his
testimony. As such, Appellant maintains that the trial court erred and violated
his right to a fair trial and the right to effectively cross-examine the witnesses
against him. We disagree .
A brief hearing was conducted in the judge's chambers at Appellant's
request to determine the basis for Dr. LeVaughn's physical demonstration . Dr.
LeVaughn was placed under oath and, in response to repeated questioning by
the trial judge and Appellant's own counsel, stressed that the physical
demonstration would be based upon a review of the records and his own
personal recollection, and not from information supplied by either the
Commonwealth or the KSP Detective . Dr. LeVaughn stated that, although he
could not remember exactly what he had demonstrated in the 2005 trial, the
basis for his physical demonstration in the current trial stemmed from his
earlier review of the records, gunshot wounds, bullet paths, and the autopsy.
2 Dr . LeVaughn offered no new testimony in the 2008 trial. Instead, his videotaped
testimony from the 2005 trial was played for the jury after he recreated the
positioning of Hibbs's body.
This was the same information upon which Dr. LeVaughn relied when
testifying in the 2005 trial.
Based upon the foregoing, it is clear that Dr . LeVaughn's testimony was
not shaped in any part by his earlier discussions outside the court~oom. Dr.
LeVaughn reviewed his notes and records prior to testifying in order to refresh
his memory, and his demonstration was based upon that information and his
recollection of his earlier testimony from the 2005 trial . Accordingly, the trial
court did not abuse its discretion in allowing Dr. LeVaughn to demonstrate the
positioning of the body of Timothy Hibbs .
Failure to strike juror
C .M ., a prospective juror, was questioned during individual voir dire
about whether or not he would be able to consider the full range of penalties
for the offenses committed . In response to questioning by Appellant's counsel,
C .M. stated that he believed that a 20-year sentence for double murder was
"not near enough ." In light of this, Appellant sought to strike C .M . for cause,
which was ultimately denied by the trial court. Appellant now claims that the
trial court's failure to strike C . M. denied him his right to an impartial jury, as
protected by Section 11 of the Kentucky Constitution and the Sixth and
Fourteenth Amendments to the United States Constitution .
RCr 9 .36 requires a judge to excuse a juror if there is a reasonable basis
to believe the juror cannot be fair and impartial. The law recognizes that the
trial court is vested with broad discretion in determining whether a prospective
juror should be excused for cause . See McQueen v. Commonwealth , 669
S .W.2d 519 (Ky. 1984) ; Pennington v. Commonwealth , 455 S .W.2d 530 (Ky.
1970) ; Tarrence v. Commonwealth, 265 S .W.2d 40 (Ky. 1954) . If it is later
determined that a juror should have been excused and was not, such would be
reversible error because the defendant had to use a peremptory challenge and
was thereby deprived its use otherwise . Thomas v. Commonwealth , 864
S.W.2d 252, 259 (Ky. 1993) . A trial court's decision on whether to strike a
juror for cause must be reviewed for abuse of discretion . Shane v.
Commonwealth , 243 S.W.3d 336, 338 (Ky. 2007) .
Individual voir dire was conducted in an effort to ensure that each
prospective juror was able to consider the entire range of penalties applicable
to the crimes charged . The trial judge, in accordance with Morris v.
Commonwealth , 766 S.W.2d 58 (Ky. 1989), informed each prospective juror of
the penalty range for all homicide crimes and inquired if they would
automatically exclude any authorized penalty. After initially stating that he
thought 20 years was "not near enough," and that the person should receive
either the death penalty or life without parole, C .M . clarified his remarks . C .M .
stated that he would return a verdict based solely upon the evidence presented
and the jury instructions.
On multiple occasions, C.M. expressly indicated that he was willing and
able to consider the full range of authorized penalties, and that he did not
mean to imply that he would not consider a 20-year sentence under any set of
circumstances. To the contrary, C .M . clearly expressed reservations about
committing to a sentence based on a "hypothetical" without hearing any other
evidence . The trial court also expressed concerns about defense counsel's
-attempts to get C .M . to make a commitment - to a sentence without hearing the- a
evidence . As this Court has made clear, jurors are not required to "sentence in
a vacuum without any knowledge of . . . other matters that might be pertinent
to consider in the assessment of the appropriate penalty." Maxie v .
Commonwealth , 82 S .W.3d 860, 865-66 (Ky. 2002) (citin Commonwealth v.
Reneer, 734 S.W.2d 794, 797 (Ky. 1987)) . Furthermore, as Appellant used no
peremptory challenge on C .M ., his reliance on Shane is misplaced. ("[W]hen a
defendant is forced to use a peremptory strike on a juror who has not been
properly excused for cause, the court has actually taken away from the number
of peremptories given to the defendant by rule of this Court .") . Shane, 243
S .W.3d at 339 . Appellant's failure to use a peremptory strike on C .M .
undermines his claim that he was denied a fair trial.
"A trial court's decision whether a juror possessed `[a] mental attitude of
appropriate indifference' must be reviewed in the totality of the circumstances.
It is not limited to the juror's response to a `magic question."' Montgomery v.
Commonwealth , 819 S.W.2d 713, 718 (Ky. 1991) (quoting United States v.
Wood, 299 U .S . 123, 146 (1936)) . See also Morgan v . Commonwealth , 189
S .W.3d 99 (Ky . 2006) (overruled on other grounds b Shane v. Commonwealth ,
243 S .W.3d 336 Ky. 2007)) . As such, given C .M .'s repeated statements
indicating that he would be willing and able to consider the full range of
penalties after hearing all of the evidence, we cannot say that the trial court
abused its discretion in failing to strike this juror for cause .
Testimony concerning "lingering doubts"
. ;:,. .
_
Appellant next contends that the trial court erred when it did not allow
testimony from Vanessa Miller, Joan Rogers, and Melissa Reed concerning
"lingering doubts" as to Appellant's guilt. The Commonwealth objected, and
the trial court sustained that objection, stating that the issue of guilt would not
be retried . Appellant contends that the denial of this testimony was prejudicial
because it would make it impossible for the jury to consider lingering doubts of
guilt as a possible mitigating factor.
The U .S . Supreme Court and this Court have held that residual doubt is
not a mitigating circumstance for the death penalty. See Franklin v. Lynaugh,
487 U .S . 164 (1988) (accord Tamme v. Commonwealth , 973 S .W .2d 13 (Ky .
1998)) . Even though the penalty phase jury was composed of entirely different
jurors than the guilt phase jury, a lingering doubt over Appellant's guilt is still
not an aspect of his character, record, or a circumstance of the offense.
Franklin, 487 U.S . at 174 . A finding of guilt as to aggravating circumstances in
a death penalty case is considered under the reasonable doubt standard .
Epperson v. Commonwealth , 197 S .W.3d 46, 65 (Ky. 2006). Here, there was
sufficient evidence to establish guilt beyond a reasonable doubt so as to meet
the legal standards and constitutional requirements. Accordingly, to the extent
that Appellant argues that the testimony described above casts doubt on his
guilt, we conclude that it was both irrelevant in the penalty hearing and
inadmissible lay opinion evidence. KRE 701 . See also Nu egntv
.
Commonwealth , 639 S .W.2d 761, 764 (Ky ., 1982). ("The.,issue of guilt orinnocence is one for the jury to determine, and an opinion of a witness which
intrudes on this function is not admissible, even through a route which is, at
best, `back door' in nature.") .
Possession - of cell phones by the jurors in the deliberation room
Before the jurors retired to deliberate Appellant's sentence, the trial court
instructed them to "take out [their cell phone] and turn it off right now."
Appellant concedes that this admonition was given to the jury before every
break or recess in the trial. The trial court also told the jurors that they were
not "to speak to or communicate with" anyone outside of the jury . Despite
these admonitions, Appellant claims that the trial court committed error by
failing to require that the individual jurors leave their cell phones outside the
deliberation room. However, Appellant did not preserve this alleged error at
trial .
Absent extreme circumstances amounting to a substantial miscarriage of
justice, an appellate court will not engage in palpable error review pursuant to
RCr 10 .26, unless such a request is made and briefed by Appellant. See
Thomas v . Commonwealth , 153 S .W.3d 772, 782 (Ky. 2004) ; Bray v.
Commonwealth, 177 S .W.3d 741, 752 (Ky. 2005) . Appellant concedes that
there is nothing in the record to suggest any communication by a juror with a
cell phone. Since Appellant did not request palpable error review on appeal, we
decline to address it in this opinion.
Improper comment by -the prosecutor
.. ;., : .
Appellant argues that several statements made by the prosecutor
violated his right to a fair trial. However, these arguments are unpreserved,
and Appellant does not request palpable error review . Instead, Appellant asks
this Court to "exercise its supervisory function to address these instances of
prosecutorial improprieties ." Such a general request is not adequate to invoke
palpable error review under RCr 10.26 . Shepherd v . Commonwealth , 251
S .W .3d 309, 316 (Ky. 2008) .
The judgment of the Hopkins Circuit Court is hereby affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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.