RUSSELL WINSTEAD V. COMMONWEALTH OF KENTUCKY
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CORRECTED : DECEMBER 17, 2010
MODIFIED : DECEMBER 1.6, 2010
RENDERED : APRIL 22, 2010
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2007-SC-000829-MR
RUSSELL WINSTEAD
APPELLANT
ON APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES CLAUD BRANTLEY, JUDGE
NO . 03-CR-00253
V
COMMONWEALTH OF KENTUCKY
AND
2008-SC-000446-TG
RUSSELL WINSTEAD
V
APPELLEE
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-001106-MR
HOPKINS CIRCUIT COURT NO . 03-CR-00253
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
VACATING AND REMANDING
I. INTRODUCTION .
Russell Winstead appeals as a matter of right' from a circuit court
judgment following a jury trial in which he was convicted of murder and
Ky. Const. § 110(2)(b) .
robbery .2 The judgment sentenced Winstead for the murder to life
imprisonment without parole for twenty-five years (LWOP/ 25) and for the
robbery to twenty years' imprisonment. The trial court ordered the sentences
to run consecutively . Following the denial of his post-trial motion for a new
trial, Winstead filed in the Court of Appeals a separate appeal; and we granted
transfer of that appeal to this Court.3 This opinion addresses both appeals.
Winstead's appeal seeks reversal of the judgment by raising several
challenging issues relating to the trial of his case. Upon review of the full
record, we conclude that Winstead received a fundamentally fair trial, so we
affirm both of his convictions and the sentences imposed. But we must vacate
the judgment on our own motion because the trial court erred by ordering
Winstead's sentences to run consecutively rather than concurrently .4
Accordingly, we remand the case to the trial court with directions to resentence
Winstead and enter a new judgment in accordance with this opinion .
II. FACTUAL AND PROCEDURAL HISTORY.
On the night Ann Branson was stabbed to death, a witness reported
seeing her nephew, Russell Winstead, at or near Branson's driveway . No
eyewitnesses to the murder ever came forward. No scientific evidence was ever
produced linking Winstead to the crime. But Winstead was the immediate
3
4
2007-SC-000829-MR.
2008-SC-000446-TG
See, e.g., Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 1993) ("no sentence
can be ordered to run consecutively with such a life sentence in any case, capital
or non-capital.") .
object of suspicion because he was known to have recently borrowed
substantial sums of money from Branson to cover his gambling debts . 5
As the investigation progressed, two developments sharpened the focus
on Winstead . First, police found hidden under Winstead's mattress at home a
knife consistent with that used to stab Branson. Second, Winstead's wife
contacted police and changed her initial statement to them concerning a
critical piece of the investigation : the time Winstead arrived home on the night
of Branson's murder .
Winstead was charged with murdering Branson and with robbing her of
a check he had allegedly written to her. He then fled to Costa Rica but was
eventually extradited to the United States . The charges proceeded to a jury
trial resulting in his convictions and sentences.
III . ANALYSIS .
Winstead urges us to reverse the judgment because he alleges that the
trial court erred by :
" permitting his ex-wife to, testify against him in violation of the spousal
privilege contained in Kentucky Rules of Evidence (KRE) 504;
" sentencing him to LWOP/ 25 in violation of the terms of his extradition
from Costa Rica;
" failing to grant a directed verdict of acquittal;
5
Winstead alleges that police failed adequately to investigate others who might have
had reason and opportunity to kill Branson, including Branson's handyman and a
problem tenant in one of the properties owned by Branson. Apparently, police
identified no one else as a suspect.
* permitting the Commonwealth to use other inmates to elicit potentially
incriminating statements against him;
* allowing argument by the prosecutor in closing that contained several
instances of egregious misconduct ; and
denying his motion for a mistrial necessitated by jurors' use of cell
phones during deliberations.
A. Winstead's Convictions are Valid .
1 . Any Error in Applying Marital Communications
Privilege was Harmless .
Winstead contends the trial court erred by permitting his ex-wife, Terri
Rainwater, to testify in contravention of the spousal privilege set forth in
KRE 504 . We conclude that any error was harmless .
Rainwater was Winstead's wife at the time of the murder, but the two
had separated and divorced by the time of trial. Police initially interviewed
Rainwater when investigating the murder, and she reported that Winstead had
returned home at approximately 7 :30 the night of the murder. Later on, she
contacted the police through counsel and told police that she had not been
truthful in her initial interview with them. In a second interview, Rainwater
told police that Winstead had not arrived home until about 9 :05 on the night of
the murder . She later explained in her trial testimony that she had made the
initial, false statement because her husband told her to do so.
The 7 :30 to 9 p .m . time difference was critical information because
Branson was last seen leaving a church service at about 7 p .m. Her
housekeeper reported receiving a call from her about 9 p.m. The medical
examiner determined that Branson had probably died sometime that evening
after returning from the church servicee6
Winstead filed a motion in limine seeking to bar Rainwater at trial from
testifying at all about events occurring during their marriage and seeking to
exclude confidential statements made by him to Rainwater during their
marriage . And this motion sought to exclude in particular the communications
between Winstead and Rainwater concerning what she should tell police about
his whereabouts the night of the murder. But the trial court ruled that
communications between spouses about establishing an alibi were not
privileged because an alibi, by its very nature, was intended for disclosure .
Winstead contends that the trial court erred in this ruling because "[t]he
confidential communication between the husband and spouse was not just the
alleged alibi but the request that it be communicated as an alibi" and "there
can be no doubt that [Winstead] would not have intended for her to
communicate this request to a third party."
6
Branson, apparently, usually ate her supper after returning from Sunday night
church services . Based on the contents of her stomach, the medical examiner
believed she had died within a few hours after eating. Although the medical
examiner could not definitively establish a time of death without a witness to the
death, the medical examiner believed Branson had died sometime during the
evening following the church service rather than the next day, when Branson's
body was found . Branson's fiancé had called police after he was unable to reach
her by telephone during the night after the church service, and she did not answer
her door the following morning.
Rainwater testified at trial over Winstead's objection. She told the jury
that Winstead arrived home about 9 :05 on the night of the murder . She also
testified that a few days after the murder, Winstead told her that because of his
gambling problems, she should tell police he arrived home at 7:30 the night of
the murder . Rainwater further testified that Winstead told her that on the
evening of the murder he had been in a church parking lot having a discussion
with a friend, Rick Blanchard .
Rainwater testified that no one else was present when Winstead asked
her to tell police he arrived home at the earlier time. She also testified that
Winstead told her that he had had a discussion with his father and that he and
his father had decided what to do before Winstead told her to say he arrived
home at the earlier time . She further testified that Winstead later told his
friend Blanchard to borrow a drill "to support the story ." The Commonwealth
points out that Blanchard testified to borrowing a drill from Winstead the night
of the murder .
KRE 504 contains two separate evidentiary privileges . The first,
contained in section (a), is the testimonial privilege "by which a spouse may
refuse to testify, or may prevent the other spouse from testifying against him or
her, as to events occurring after the date of their marriage . . . ."7 Since
Rainwater was no longer Winstead's wife at the time of trial, the testimonial
privilege of KRE 504(a) was inapplicable ; and the trial court did not err in
allowing Rainwater to testify against Winstead about events occurring during
Thurman v. Commonwealth, 975 S.W.2d 888, 896 (Ky. 1998), construing KRE 504 .
their marriage .8 Although in a published case we did not explicitly hold - but
strongly hinted - that the spousal testimony privilege survives only as long as
the marriage, 9 we have explicitly held in an unpublished case that the spousal
testimony privilege does not extend to a former spouse. io We now, again,
definitively hold that the spousal testimony privilege ends when the marriage is
dissolved.
But the lingering question is whether the challenged portion of
Rainwater's testimony was a confidential communication that should have
been barred under the marital communication privilege- of KRE 504(b) . That
marital communications privilege (as to confidential communications made
during the marriage) survives divorce ." Winstead contends that the trial court
erroneously failed to exclude his communication to Rainwater that because of
his gambling problem, it would be better to tell police that he arrived home at
7:30 p.m . the night of the murder.
s
Contrary to Winstead's assertions, only "confidential communications" and not
"events" were held to remain privileged following a divorce in Wadlington v. Sextet
Mining Co., 878 S.W.2d 814, 816 (Ky.App. 1994) (stating that under former
KRS 421 .210 (statutory predecessor to KRE 504) : "The privilege as to `confidential
communications' is restricted to communications made during the existence of the
marriage relation . It does not extend to communications between persons prior to
marriage or after divorce . However, it does survive divorce as to those confidential
communications made while the couple was married.") .
9
Gonzalez de Alba v. Commonwealth, 202 S .W.3d 592, 596 n .2 (Ky. 2006) (declining
to reach issue of whether spousal testimony privilege survived initiation of divorce
proceedings because it was not raised by parties, but noting that some authority
suggested that spousal privileges should not apply following separation or divorce .) .
io Brown v. Commonwealth, 2008 WL 1850618 at * 1 (Ky. April 24, 2008) ("The plain
language of the rule [KRE 504(a)] provides that the privilege can only be invoked by
a spouse, which neither Appellant nor [ex-wife] was at that time . Consequently,
there was no spousal privilege to bar calling her as a witness .") .
Wadlington, 878 S .W. 2d at 816 .
The Commonwealth responds that because Rainwater testified to
Winstead's telling her that he discussed this concocted alibi with others, his
communications with her were meant for disclosure, rendering the privilege
nonexistent or waived . The Commonwealth further argues that even if the trial
court did err in failing to exclude as privileged the challenged alibi request, the
error was harmless because the jury would nevertheless have heard Rainwater
recant her original time estimate in favor of the later time . 12
Winstead also contends that Rainwater should not have been allowed to
testify about the time he actually did arrive home the night of the murder
because her observation of his arrival time would itself be considered a
confidential communication under the broad definition of communication used
in cases like Slaven v. Commonwealth. 13
.
KRE 504(b) states, "[a]n individual has a privilege to refuse to testify and
to prevent another from testifying to any confidential communication made by
the individual to his or her spouse during their marriage. ." Under KRE 504(b),
a communication is considered confidential when "it is made privately by an
12
13
The Commonwealth argues :
If one were to strip the "request" testimony from the trial, the result
would have been exactly the same since the jury would have heard
that T. Rainwater recanted her original tale to police as well as her
testimony concerning the actual events of that night. Taking away
the "request" testimony, the only things missing from the evidence
would be why she recanted and what caused her to lie in the first
place . Although these points were significant, their absence from the
trial would not have changed anything. The comprehensive picture of
guilt painted by the Commonwealth ensured the absence of one or
two points would not affect the ultimate outcome .
962 S.W.2d 845 (Ky. 1998) .
individual to his or her spouse and is not intended for disclosure to any other
person."
In Slaven, we quoted with approval a case from 1890 for the conclusion
that the term communication is so broad that it may not be
confined to a mere statement by the husband to the wife or vice
versa; but should be .construed to embrace all knowledge upon the
part of the one or the other obtained by reason of the marriage
relation, and which, but for the confidence growing out of it, would
not have been known to the party. 14
As the Commonwealth notes, the broad definition of communication in
Slaven seems to be contrary to the principle that spousal privileges are to be
narrowly construed . 15 And the Commonwealth adds that the expansive
definition of communication leads to potentially absurd results, such as
deeming one spouse's surreptitious observations of the other spouse a
communication . Finally, Professor Robert Lawson notes in his evidence
treatise that other courts take a much narrower view of what is properly
deemed a communication. 16
The question of whether we should limit what may properly be deemed a
communication under KRE 504 is interesting and potentially important. Here,
however, the only type of alleged non-verbal communication at issue is
Rainwater's observation of the time that Winstead arrived home. We note that
Winstead does not allege that others would not have been able to observe the
time he arrived home; for instance, Rainwater's children, who were also home
14
Id. at 851, quoting Commonwealth v. Sapp, 90 Ky. 580, 14 S.W. 834, 835 (1890) .
1s
Gonzalez de Alba, 202 S .W.3d at 596 .
16
ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 5 .10[4], p . 369
(4th ed. 2003) . .
at the time, any persons walking or driving by their home at the time, or any
neighbors within sight of his home could have also observed what time
Winstead arrived home. Because the time of Winstead's arrival at home could
have also been observed by others outside the marriage, we cannot say that
Rainwater's observation of her husband's arrival time was a confidential
communication between the two spouses even if it might be construed as a
communication under the broad definition used in our precedent. 17
So, because the only challenged non-verbal communication in this case
was not confidential, we need not revisit in this case whether our broad
definition of communication in this context needs to be narrowed . Rather, we
need only determine whether a request to one's spouse to communicate an
alibi to police is privileged. This appears to be a matter of first impression in
Kentucky .
Other courts and commentators have split over this issue . For example,
in a decision relied upon by the Commonwealth, the Supreme Court of
Arkansas has ruled that the spousal privilege is inapplicable when one spouse
asks another to communicate a false alibi to the authorities because the
requesting spouse expects the other spouse to communicate the fabrication to
the authorities . The Arkansas court reasons that the communication between
17
See Slaven, 962 S.W.2d at 851 (broadly defining a confidential communication as
encompassing "all knowledge upon the part of the one or the other obtained by
reason of the marriage relation, and which, but for the confidence growing out of it,
would not have been known to the party.") . See also White v. Commonwealth,
132 S .W.3d 877, 882 (Ky.App. 2003) (wife's observation that husband was driving
vehicle not privileged confidential communication as members of public could have
observed husband driving on public roads) .
spouses is not privileged here because the requestor intended the alibi to be
disclosed to a third party. 1s.
On the other hand, this approach is criticized by the esteemed FEDERAL
PRACTICE AND PROCEDURE
treatise, which opines that "[w]hen a husband tells his
wife to give the police a false alibi, what he intends to be conveyed to the police
is the false story, not his direction to his wife to tell that story ." 19 In other
words, when onespouse asks the other spouse to give specific false
information to the authorities, the requesting spouse expects the other only to
give the requested false information to authorities, not to disclose the request to
give that false information . 20 This conclusion is logical, and we believe this
approach is more consistent with the plain language of KRE 504 .
is Ridling v. State, 203 S .W.3d 63, 76 (Ark. 2005) ("Statements made by one spouse to
the other that are for the purpose of establishing an alibi are intended for
publication to investigators and are not confidential . A spouse's direction to
another spouse to communicate a fabricated story to the police is intended for
disclosure to a third-party and, hence, is not a privileged communication .")
(citation omitted) . Accord Overstreet v. State, 783 N .E.2d 1140, 1156 (Ind .Ct.App.
2003) .
19
25 CHARLES ALAN WRIGHT 8, KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND
PROCEDURE § 5577 (2009) . Interestingly, the commentators opine that asking a
spouse to communicate a false alibi would fall within the fraud or crime exception
to the spousal privileges . See id. at n .142 . In this case, however, since Rainwater
was not charged in connection with the murder or robbery, and the trial court was
not asked to make a finding regarding her possible involvement, the crime-related
exceptions of KRE 504(c)(1) would not apply . See KRE 504(c)(1) ("There is no
privilege under this rule : In any criminal proceeding in which the court determines
that the spouses conspired or acted jointly in the commission of the crime
charged") .
20
See also People v. Fisher, 476 N .W.2d 762, 764 (Mich.App . 1991) ("An element of
confidentiality is implicit in a request to tell a lie .") But see People v. Fisher,
503 N.W .2d 50, 56-57 (Mich . 1993) (reversing Michigan Court of Appeals' judgment
reported at 476 N.W.2d 762 as the Michigan Supreme Court concluded that the
trial court properly` allowed evidence of spouse's statement in pre-sentence report
because Michigan marital communications privilege only forbade spouse from
directly testifying as to confidential communications and did not preclude
Despite our disapproval of the act of requesting one's spouse to give false
information to police, we nonetheless must follow the plain language of
KRE 504(b) to prohibit admission
of
such requests where such a request is
communicated privately to the spouse and the request itself is not intended for
disclosure to others.21 But the privilege is inapplicable if the evidence shows
that the request to convey a false alibi was not made privately between the
spouses -- at least one other person was present when the request was
made - or if the evidence shows that the requesting spouse intended to
disclose to others the particular request that spouse made to the other.
In the case at hand, Winstead's request was made privately to Rainwater
because no one else was present to witness this communication made by
Winstead to Rainwater. Whether Winstead's request that Rainwater give
certain false information to police was intended for disclosure to others is a
more difficult question to answer. The parties have cited nothing in the record
to suggest that anyone else directly testified to Winstead's having told them
that he requested his wife to give the specified, and apparently false,
information to police . But Rainwater testified that Winstead told her that he
had had a discussion with his father and that he and his father had made a
decision about what to do before directing her to tell police 'he got home at the
earlier time of 7 :30 p.m. Although this testimony from Rainwater implies that
21
admission of report containing spouse's statement concerning defendant's request
to spouse to lie .) .
KRE 504(b) clearly states that confidential communications between spouses made
during the marriage are privileged from disclosure and further states that "[a]
communication is confidential if it is made privately by an individual to his or her
spouse and is not intended for disclosure to any other person."
Winstead and his father may have discussed what Rainwater and others
should tell police about Winstead's whereabouts the night of the murder, this
testimony does not specifically show that Winstead had disclosed or intended
to disclose his specific request to Rainwater to others or that he had told or
intended to disclose this information to others .
Although a private communication from one spouse to another
requesting, that false alibi information be given to police would be privileged
under KRE 504(b) so long as the request itself was not intended for disclosure
to others, any error by the trial court in admitting Rainwater's testimony of the
request here was harmless . 22 We agree with the Commonwealth that even if
Winstead's request to Rainwater had been excluded, the jury would still
presumably have been presented with evidence that Rainwater first told police
that Winstead arrived home at 7:30 the night of the murder but later recanted
that statement, labeling it as untruthful. She changed her story to be that
Winstead did not actually arrive home until about 9 :05 p.m. Although the jury
would not have heard direct testimony on the reason for her initial false
information to police if the request and related communications solely between
the spouses were excluded, the jury might still have inferred that Rainwater
22
Kentucky Rules of Criminal Procedure (RCr) 9 .24 . Also, although we disagree with
the trial court's reasoning that an alibi request cannot be a confidential
communication, there is at least some evidence here suggesting that the request
itself was also intended for disclosure to others, given Rainwater's testimony of
Winstead stating he had discussions with his father (apparently about an alibi)
before he made an alibi request to her; and we note our authority to affirm on other
grounds . See Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky. 2009) ("an
appellate court may affirm a lower court's decision on other grounds as long as the
lower court reached the correct result.") .
had been asked to lie or may have simply found her statements or testimony as
to his arrival home to lack reliability.
Rainwater's testimony that Winstead told Blanchard to borrow a drill to
"support the story" was properly admitted because this alleged communication
to Blanchard in Rainwater's presence was clearly not privileged under KRE 504
because it was not a communication to a spouse and was not made privately .
Despite the circumstantial nature of the evidence against Winstead and
the highly probative value of the evidence of Winstead's whereabouts during
the evening of the murder, given other evidence of guilt, the circumstances of
his flight to Costa Rica, and his apparent motive for killing Branson, we can
say with "fair. assurance" that "the judgment was not substantially swayed by
the error"; and, thus, the error was harmless . 23
2 . Admission of Jailhouse Informant Testimony
Not Palpable Error.
Winstead contends that his Sixth Amendment rights were violated by the
Commonwealth's presentation of the testimony of jailhouse informants Fred
Roulette and Daniel Morseman, whom he alleges the Commonwealth used to
gather incriminating evidence against him. He concedes that this alleged error
is unpreserved, but he contends that it amounts to palpable error under
RCr 10.26.24 We disagree that this is a palpable error.
23
24
Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009), citing Kotteakos v.
United States, 328 U.S . 750 (1946). ("A non-constitutional evidentiary error may
be deemed harmless, the United States Supreme Court has explained, if the
reviewing court can say with fair assurance that the judgment was not
substantially swayed by the error.") . We note that the Winstead case reported at
283 S.W.3d 678 involved a different defendant with the surname of Winstead.
RCr 10 .26 provides:
As Winstead points out, we recently acknowledged United States
Supreme Court authority providing that the government's use of a jailhouse
informant deliberately to elicit incriminating statements from the accused
following invocation of the right to counsel violates the Sixth Amendment .25
Three things must be shown to demonstrate this violation : "(1) the right to
counsel has attached, (2) the informant was acting as a government agent, and
(3) the informant deliberately elicited incriminating statements ." 26 As for the
deliberate eliciting of incriminating statements prong, we also stated that: "a
defendant must show that police and the informant performed some action
beyond merely listening that was designed deliberately to elicit incriminating
remarks."27
Roulette testified that Winstead pressed him to write letters to the
Commonwealth confessing to Branson's murder. And it appeared that the
conditions of Roulette's incarceration improved after he informed the
Commonwealth of Winstead's promptings . But Winstead does not directly
allege that the information was deliberately elicited using government action. 28
25
A palpable error which affects the substantial rights of a party may be considered
by the court on motion for a new trial or by an appellate court on appeal, even
though insufficiently raised or preserved for review, and appropriate relief may be
granted upon a determination that manifest injustice has resulted from the error.
McBeath v. Commonwealth, 244 S .W .3d 22, 30-31 (Ky. 2007), citing, e.g., United
States v. Henry, 447 U.S . 264 (1980) ; Kuhlmann v. Wilson, 477 U.S . 436 (1986) .
26
27
28
McBeath, 244 S .W.3d at 31, citing Moore v. United States, 178 F.3d 994, 999
(8th Cir. 1994) .
McBeath, 244 S.W.3d at 31, citing Kuhlmann, 477 U.S . at 459.
Compare McBeath, 244 S.W.3d at 31-32 (finding that incriminating information
was deliberately elicited as jailhouse informant working with detectives asked
defendant questions likely to elicit incriminating responses and used interrogation
techniques to prompt confession through emotional manipulation) .
Rather, according to Winstead, Roulette came forward to tell the
Commonwealth of Winstead's efforts to have him (Roulette) confess before he
was offered any sort of promises by the Commonwealth. And although an
agent for the Commonwealth purportedly asked Roulette to send a letter to
Winstead asking for assurances, Roulette's letter did not actually prompt a
reply from Winstead . ~ Rather, Winstead approached another inmate,
Morseman, to send a reply to Roulette on Winstead's behalf. And Winstead
does not allege that Morseman's action in sending a reply letter was prompted
by any promises by the Commonwealth . The facts, as argued by Winstead,
belie his argument that the Commonwealth's agents procured incriminating
statements :
Fred Roulette approached Elaine Yaeger, a correctional officer at
the Hopkins County Detention Center, advising her that he had
sent letters confessing to the murder of Ann Branson. At that
point Officer Yaeger advised him to help the Commonwealth and
he would have a "win-win situation ." Ms. Yaeger certainly implied
that by helping the Commonwealth, Mr. Roulette would receive
more favorable treatment. Ultimately, Mr. Roulette was transferred
to the Christian County Jail where he was allowed smoking
privileges ; allowed to marry his girlfriend; and was allowed the
privilege of retaining his own money rather than placing same in a
jail supervised account . Furthermore, Mr. Roulette was spared a
potential death penalty on the charge of murder which was
pending against him receiving, instead, a sentence of life without
parole for a period of 25 years.
At the request of Officer Ben Wolcott, Mr . Roulette
cooperated with the Commonwealth and forwarded a letter to
[Winstead] specifically requesting that [Winstead] reply to him to
confirm that he was not forgotten. No reply was received directly
from [] Winstead . However, Daniel Morseman, another inmate
awaiting trial on an unrelated charge of murder, testified that []
Winstead asked him to send a letter to Roulette confirming that
Roulette had not been forgotten by his friends . This evidence was
directly obtained by the Commonwealth through the use of two
informers. As a result the jury heard evidence which would allow
them to conclude the communication from Morseman was, in fact,
from [Winstead], confirming that he would not forget his friend,
Roulette .
Applying the McBeath requirements to the facts of this case, the trial court did
not engage in palpable error in allowing the unobjected-to presentation of this
testimony . The first requirement, that the right to counsel has attached,
appears to be satisfied since Winstead had been indicted long before these
jailhouse communications occurred .
Nonetheless, even assuming for the sake of argument that the second
requirement is fulfilled by Roulette and Morseman acting as government agents
because they eventually perhaps received more favorable treatment for their
testimony and other cooperation with the government, the third requirement of
deliberately eliciting incriminating information was not clearly established.
Other than Roulette's letter to Winstead at an officer's direction asking for
assurances that Roulette was not forgotten, there is no evidence that Roulette
or Morseman ever questioned Winstead in any manner or used other
techniques deliberately to elicit incriminating information.
Any error in the admission of this testimony was not palpable . The most
incriminating statement attributed to Winstead - his asking Roulette to
confess - was not as a result of questioning by Roulette but, apparently, was
initiated by Winstead . Such actions as Roulette writing Winstead a letter
asking for assurances that Roulette was not forgotten might amount to actions
designed to elicit incriminating evidence while acting as a government agent,
but the response Roulette received was a letter by Morseman - not Winstead .
And the letter itself was innocuous because it did not directly contain a
confession . The letter only obliquely stated that Roulette was not forgotten by
his friends or that he had friends who would be true to their word.
As we recognized in McBeath, a defendant must show that police and
their informant did more than merely listen but, instead, took some action
deliberately designed to elicit incriminating remarks. There is no evidence that
the most damaging incriminating remarks by Winstead - asking Roulette to
confess -- was in response
to
any action by Roulette or law enforcement
authorities ; rather, it appears that Winstead himself set that ball in motion.
Although other remarks by Winstead might have been elicited from j ailhouse
informants acting as government agents - such as the cryptic letter sent by
Morseman in response to Roulette's letter asking for assurance - these
remarks had little incriminating value by themselves. These remarks had no
substantial effect on the trial and did not result in manifest injustice. So, to
the extent that the trial court erred in permitting the unobjected-to
introduction of this testimony, the error was not palpable and is not cause for
reversal of Winstead's convictions.
3 . Trial Court Properly Denied Directed Verdict Motion.
Winstead contends he was entitled to a directed verdict on the murder
and robbery charges . We disagree . Even ignoring any evidence that he asked
his wife to lie about his whereabouts on the night of the murder or that he
bribed another inmate to take responsibility for the crimes, the evidence was
sufficient to withstand a directed verdict motion .
The familiar standard for ruling on a motion for directed verdict is as
follows :
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth . If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given . For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony.
On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable for a jury
to find guilt, only then the defendant is entitled to a directed
verdict of acquittal.29
The case against Winstead was entirely circumstantial. But even
"circumstantial evidence may form the basis for a conviction so long as the
evidence is sufficient to convince a reasonable jury of guilt." 30
The evidence showed that:
a)
Winstead owed a substantial debt to Branson;
b)
a witness31 identified Winstead as the person she saw in or near
Branson's driveway the night Branson was murdered . ;
29
30
31
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) .
Davis v. Commonwealth, 147 S.W.3d 709, 729 (Ky. 2004) .
Winstead argues that the witness's identification is suspect for several reasons,
including that: her initial description of the person she saw did not match his
physical characteristics, her description changed over time, and there was evidence
that she had a reputation for untruthfulness. Nonetheless, the jury alone has the
power to determine her credibility and the weight to be given to her testimony; and
there were no signs of forced entry into Branson's home, and
Branson was struck in the back of her head, arguably suggesting
that she was familiar with her killer;
d)
the police discovered a knife consistent with that used to kill
Branson hidden under Winstead's mattress;
e)
Winstead suspiciously tried to retrieve that knife after being
ordered to leave the marital home ;
Winstead attempted to borrow money to put into Branson's bank
account near the time . of her death;
g)
Branson's notation of the $12,000 check from Winstead near the
time of her death and Branson's mention of that check to her
friend;
h)
the fact that one particular check from Winstead's checking
account near the time of Branson's death has never been
accounted for;32 and
Winstead's flight to Costa Rica. 33
her testimony placing Winstead at or near the scene on the night of the murder is
some evidence of guilt.
We also note that another witness testified to seeing a white pickup truck in
Branson's driveway the night of the murder. Although that witness was not able to
identify the vehicle with specificity nor identify anyone in the vehicle, her testimony
about seeing a white truck in the driveway added to the evidence of Winstead's
guilt because Winstead was known to drive a white truck .
As Winstead argues, . no $12,000 check written by Winstead to Branson was ever
found. But Branson's record that such a check had been written and her reference
to the check to a friend, as well as a check from Winstead's joint account never
being accounted for, could give rise to a reasonable inference that Winstead had
written such a check to Branson and stolen it.
See, e.g., Hord v. Commonwealth, 227 Ky. 439, 13 S.W.2d 244, 246 (1928) ("flight
is always some evidence of a sense of guilt .") ; Bray v. Commonwealth, 177 S .W.3d
Based on these facts, a reasonable juror could have permissibly inferred
that Winstead wrote a check to Branson, killed Branson, and stole the check.
So, drawing all reasonable inferences in favor of the Commonwealth, Winstead
was not entitled to a directed verdict on either the murder or the robbery
charge.
4 . No Prosecutorial Misconduct Meriting New Trial.
Winstead alleges that the prosecutor made improper statements in
closing argument that necessitate reversal . We disagree .
Winstead identifies four instances during the prosecutor's closing
argument in which the prosecutor allegedly misstated the evidence. In each of
these instances, Winstead objected; and the trial court admonished the jury.
In the first instance of alleged prosecutorial misconduct, the prosecutor
misquoted the testimony of a microbiologist at the Kentucky State Police Lab as
stating that hair follicles recovered from the crime scene did not have roots. In
fact, the microbiologist actually stated that his report did not indicate whether
these hair follicles had roots or not. The hair follicles were determined not to
be those of Branson or Winstead, and they were not submitted for DNA
analysis. The trial court admonished the jury that despite the
Commonwealth's quoting the microbiologist as saying the hair did not have
roots, the microbiologist actually stated that his report did not say whether the
741, 748 (Ky. 2005) ("Appellant correctly argues that evidence of flight, standing
alone, does not prove guilt beyond a reasonable doubt. However, Appellant was
not convicted on the basis of flight alone; as stated above, substantial other
circumstantial evidence tied Appellant to the murders, e.g., motive, opportunity,
and his prior threats to kill Audrey. Moreover, evidence of flight has long been
considered evidence of a- consciousness of guilt.") (citations omitted) .
hair had roots or not. The trial court further stated that the jury could reach
its own conclusion regarding why the hair had not been submitted for DNA
analysis but reiterated that there was no testimony that there were no roots
attached to the hair.
In the second instance of alleged prosecutorial misconduct, the
prosecutor argued that Winstead had given Branson a check for which
Winstead had insufficient funds to cover and that Winstead came to her house
to retrieve the check from Branson because he could have faced felony charges
for issuing a cold check. Upon Winstead's objection, the trial court
admonished the jury that there was no evidence of a felony because there was
no evidence that the alleged act of writing a cold check was a felony or that any
prosecution would follow for this act.
In the third instance of alleged prosecutorial misconduct, Winstead
complains that the prosecutor misstated the medical examiner's testimony as
indicating that a knife found under Winstead's mattress was "the one knife
that fits into the wound" when, in fact, the medical examiner merely stated the
knife was consistent with the wounds but did not say it "fit the wounds" or that
it was definitely the knife used on the victim.
From our review of the videotape of the trial, it appears that the
statement about the knife fitting the wounds occurred while the prosecutor was
trying to emphasize the significance of the medical examiner's statement that
the knife was consistent with the wounds . Reminding the jury of evidence that
Winstead had gotten a relative to go to his former marital home weeks after the
murder to retrieve a particular knife from his collection of knives, the
prosecutor asked the jury to consider "[w]hat are the chances that he would
send someone in the middle of the night to get the one knife that fits into the
wound?" The prosecutor further stated that the medical examiner did not put
the knife into the wounds ; but "she said when you measure the diameters, it
would produce that type of wound ." Winstead then lodged an objection, stating
the medical examiner had only said the knife could have possibly been the
murder weapon . The prosecutor then stated again the knife was "consistent
with the wounds" ; and the trial judge, without explicitly ruling on the objection,
stated: "that is correct, it was not the one." The prosecutor clarified that he
did not say the knife found under the mattress was the weapon used on the
victim but that the knife was consistent with the wound; and "it would produce
those types of wounds, size, dimension, weight and that's the one he had
hidden and the one he had to recover because he knew it would be found."
The fourth instance of alleged prosecutorial misconduct in misstating
evidence involved the prosecutor misquoting Winstead's former Costa Rican
girlfriend as stating that Winstead told her "if you think I could kill my aunt,
don't you think I could kill you too." Winstead argues that she actually
testified to his saying "if I killed my aunt, why haven't I killed you?" According
to Winstead, the misstatement was material because the change in language
made it more of a threat. Upon Winstead's objection, the trial court
admonished the jury about what the witness had actually said . In doing so,
the trial court first noted what . the prosecutor had quoted the girlfriend as
saying before telling the jury what she had actually said.
We do not condone misstatements of the evidence, whether made
intentionally or carelessly; but the misstatements here were not so egregious or
prejudicial as to require reversal especially in light of the trial court's
admonitions correcting such misstatements for the jury.3 4 As the
Commonwealth argues, Winstead "got what he wanted and is not entitled to
any additional relief' for the misstatements .
In addition to the four misstatements of evidence, Winstead alleges that
the prosecutor engaged in further misconduct by concluding his closing
argument with his personal opinion that Winstead "did it." But, from our
review of the trial videotape, it appears more accurate to say that the
prosecutor was arguing that the jury should find that "he did it" instead of
offering the prosecutor's personal opinion that "he did it." The prosecutor
concluded his closing argument by pointing out various items of circumstantial
evidence of guilt and analogizing the jury's task to a game of "liar's poker" and
34
See Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001) ("it has long been the
law in Kentucky that an admonition to the jury to disregard an improper argument
cures the error unless it appears the argument was so prejudicial, under the
circumstances of the case, that an admonition could not cure it.") ; Combs v.
Commonwealth, 198 S.W.3d 574, 581 (Ky. 2006) ("A jury is presumed to follow an
admonition to disregard evidence; thus, the admonition cures any error.") . See
also Rankin v. Commonwealth, 265 S.W.3d 227, 235-36 (Ky.App . 2007) (holding
that although trial court should have given requested admonition correcting
prosecutor's misstatement of evidence in closing argument, no reversible error
occurred in light of trial court requiring Commonwealth to "restate the facts
without repeating the misrepresentation" and the conclusion of the Court of
Appeals that "the Commonwealth's misrepresentation was not of such character
and magnitude that Rankin was denied a fair and impartial trial.") .
directing the jury to ``put the chips in and say, I call . You don't have the hand .
He did it."
Although trial counsel must base their arguments to the jury upon the
evidence presented and not upon counsel's personal opinion of the defendant's
guilt, given the wide latitude afforded to prosecutors in making closing
arguments and the overall fairness of the trial, these statements did not result
in reversible error. 3 5
In sum, we discern no reason to reverse based upon the alleged
instances of prosecutorial misconduct.
5. Cell Phone Use__by Jurors Did Not Merit Mistrial .
Winstead contends that the trial court erred in denying his motion for a
mistrial and his request to examine jurors individually after
a court security
officer informed the trial court that some jurors had been observed using their
cell phones during penalty phase deliberations. Upon the trial court's
questioning of the jury as a group, the foreperson acknowledged that some
individual jurors had used cell phones during deliberations . Also, some
individual jurors admitted to the trial court that they had used cell phones
during both the guilt phase deliberations and during the penalty phase
deliberations . The jurors all stated that their,cell phone calls involved personal
matters, such as checking to make sure children arrived home safely and
checking in with work. The jurors who admitted to making calls all
35
Maxie v. Commonwealth, 82 S.W.3d 860, 866, (Ky. 2002) ("When prosecutorial
misconduct is claimed, the relevant inquiry on appeal should always center around
the overall fairness of the trial, not the culpability of the prosecutor . . . .
Additionally, prosecutors are allowed wide latitude during closing arguments and
may comment upon the evidence presented.") .
represented that none of these calls concerned the case they were trying. We
also note that although the trial court admitted to having failed to admonish
jurors against using their cell phones in deliberations, the trial court had
appropriately admonished the jurors not to discuss the case with others who
were not jurors .
Winstead contends that the trial court should have declared a mistrial
because of the jurors' unmonitored cell phone conversations during
deliberations . In support, he cites a decades-old case that required reversal or
mistrial where there existed an opportunity for outside influence upon jurors even without, actual proof of improper influence - in connection with one
juror's unmonitored telephone call made during deliberation .36
We agree with Winstead's argument that the jurors' use of cell phones
could easily result in opportunities for improper outside influence. On a
broader scope, jurors' access to any electronic communication device or media
at anytime during their jury service provides an opportunity for improper
outside influence on jury decisions. For that reason, the wary trial judge must
clearly admonish jurors at the commencement of trial and at other times when
the jurors separate during the trial to avoid using their computers, laptops, cell
phones, and'other electronic communication devices to communicate with
anyone or perform any research on any matter connected with the trial of the
36
Hamilton v. Commonwealth, 285 S.W.2d 156, 157 (Ky . 1955) (reversing conviction
because four jurors were left unguarded for a fifteen-minute period during which
one juror made a phone call without a guard present to monitor the content of the
phone conversation because "we have held that prejudicial error has been
committed where there has been sufficient opportunity afforded for the exercise of
improper influence on one or more jurors.") .
case. And when the jury retires to consider its verdict, the trial judge must
direct a court official to collect and store all cell phones or other electronic
communication devices until deliberations are complete. . During deliberations,
the court may release the cell phones or other electronic communication
devices to allow appropriate communications by jurors (such as arranging for
transportation, childcare, etc .) and may require such communication to be
monitored by court officials .37
In the case at hand, we find the trial court's handling of the matter
appropriate under our more recent precedents dealing with juror misconduct in
general in which we have acknowledged the discretion afforded to trial courts
in dealing with such matters. 38 To the extent that our precedent dealing with
phone calls made by unmonitored jurors, such as Hamilton, is inconsistent
with the more flexible approach we have developed in recent years for dealing
with juror misconduct, such precedent is hereby overruled. Instead, we now
37
We note that Winstead does not assert that he requested such preventative
measures .
38
See, e.g., Major v. Commonwealth, 177 S.W.3d 700, 711 (Ky. 2006) (refusing to
reverse because of juror improperly asking court security personnel question where
no prejudice was shown since "not every incident ofjuror misconduct requires a
new trial . The test is whether the misconduct has prejudiced the Defendant to the
extent that he has not received a fair trial ."); Gould v. Charlton Co., Inc.,
929 S .W.2d 734, 739-40 (Ky. 1996) (recognizing flexible standard where trial judge
has discretion to deal with juror misconduct in case where alleged judicial
misconduct involved one juror giving extrajudicial information to other juror and in
which trial court excused juror giving information due to having formed opinion
but retained juror who had received extrajudicial information but who had not
formed opinion) ; Johnson v. Commonwealth, 12 S.W.3d 258, 266 (Ky. 2000)
(although juror asking and court security officer answering question as to whether
separate sentencing phase would be required if guilt found was improper under
rules, reversal was not required in light of lack of showing of prejudice as "[l]ong
ago, we joined the trend away from a strict or technical application of the rules
forbidding conversations with or among jurors .") .
hold that such phone calls made by unmonitored jurors do not automatically
entitle the defendant to a mistrial or other particular relief; but, rather, we
recognize the trial court's discretion to determine, under the particular facts
and circumstances of the case .(including the nature of the misconduct and
whether any prejudice from the misconduct is shown), whether a mistrial or
other relief is warranted . Here, we find the trial court did not abuse its
discretion in denying the motion for a mistrial because there was no clear
showing of manifest necessity for mistrial in light of the lack of proof that the
case was discussed and the trial court's prior admonitions . 39 So we find no
reason to disturb Winstead's convictions or sentences based on the jurors' cell
phone usage under the facts of this case.
B.
Sentencing Issues - Affirming Sentences for Murder
and Robbery but Vacating Judgment and Remanding
to Trial Court for New Judgment Running Sentences
Concurrently Rather than Consecutively.
1 . LWOP / 25 not Prohibited_ bv Extradition Conditions .
Winstead argues that the trial court erred in denying his motion for a
new trial because he could not be subject to any type of life sentence under the
terms of the agreement reached by the United States and Costa Rica
concerning his extradition from Costa Rica. We disagree because we construe
the agreement to allow for a life sentence with a possibility of parole, so the
39
See Shemwell v. Commonwealth, . 294 S .W.3d 430, 437 (Ky. 2009) ("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 discretion . A mistrial is an extreme
remedy and should be resorted to only when there appears in the record a manifest
necessity for such an action or an urgent or real necessity .") (citations and internal
quotation marks omitted) .
trial court did not abuse its discretion40 in denying his motion for a new trial
on this ground.
Winstead submitted a memorandum to the trial court in support of his
motion for a new trial, arguing, among other issues, that the LWOP/ 25
sentence that he received violated the terms of his extradition . Attached to his
memorandum was a copy of a diplomatic note, Note 185, conveying the United
States government's response to Costa Rican requests for assurances regarding
sentencing limitations .41 He also submitted an alternate translation of Costa
Rican court documents concerning his extradition, claiming that an earlier
translation provided to the trial court was inaccurate and erroneously showed
that Costa Rica had only sought an assurance that a life without parole
sentence would not be imposed. Although the trial court conducted a thorough
inquiry into the differences between and accuracy of the two translations, we
need not pass judgment on its resolution of this translation controversy
because the bilateral agreement between the two nations controls - not the
unilateral requests, understanding, or communications of Costa Rica .
40
41
A trial court's denial of a motion for a new trial is reviewed under an abuse of
discretion standard. Brown v. Commonwealth, 174 S.W.3d 421, 428 (Ky. 2005).
Winstead also submitted to the trial court Diplomatic Note 96, in which the United
States requested his extradition from Costa Rica, and Diplomatic Note 149, in
which the United States assured Costa Rica that the Commonwealth of Kentucky
would not seek the death penalty in response to Costa Rica's request for an
assurance under Article 5 of the U.S.-Costa Rica Extradition Treaty. Article 5 of
the treaty, which was provided to the trial court, states:
When the offense for which extradition is requested is
punishable by death under, the laws of the Requesting State and the
laws of the Requested State do not permit such.punishment for that
offense, extradition may be refused, unless, before extradition is
granted, the Requesting State furnishes such assurances as the
Requested State considers sufficient, that the death penalty shall not
be imposed, or if imposed, shall not be executed.
International extraditions are governed by any applicable treaties
between the two nations. In this case, the Extradition Treaty between the
United States and Costa Rica controls, along with any conditions that the two
nations have agreed to in negotiations about any individual fugitive .42
Typically, the United States and the other nation will engage in a formal
diplomatic conversation conducted through written documents known as
Diplomatic Notes to negotiate the terms of an individual extradition . This is
done through requests for assurances and responses to these requests :
when a foreign nation seeks to impose a limitation on a sentence
as a condition of granting the extradition of a defendant to the
United States, it formally requests assurances from the United
States by way of diplomatic note. The DOJ [Department of
Justice], in consultation with the State Department, determines
whether the United States can and should provide the requested
assurances, and relays the official position by diplomatic note . The
foreign nation then considers the response of the United States in
deciding whether to extradite the defendant. 43
In Winstead's case, extradition negotiations are memorialized in
Note 185, which the United States Government sent to the Costa Rican
government . Note 185 opens by acknowledging Costa Rica's requests for
assurances, stating that "[t]he Embassy takes note that, as a condition for the
extradition of Mr. Winstead, the Costa Rican authorities have requested
42
43
See generally 31A AMJUR2D EXTRADITION § 12 (2010) (generally discussing
international extradition and noting that "[t]he surrender of fugitives from justice
by one independent nation to another on request is based on international comity
or on the provisions of an existing treaty between the two nations" and that "[t]he
extradition of individuals occurs subject to any limitation that either country
imposes.") . As explained more fully in our textual discussion, we construe "any
limitation that either country imposes" as any assurance actually procured from
the other nation before extradition is granted. A mere request for an assurance
that the other nation does not agree to furnish before extradition is granted would
not be a limitation imposed on the extradition of the individual .
United States v. Cuevas, 496 F.3d 256, 264 (2d Cir. 2007) .
assurances that. Mr. Winstead will not be subjected to the death penalty, life
imprisonment, or cruel or degrading treatment ." Note 185 then contains the
United States' response to Costa Rica's requests for assurances. After assuring
Costa Rica that Winstead would not be subjected to the death penalty,
Note 185 provides that "the Government of the United States informs the
Government of Costa Rica that if Mr. Winstead is extradited to the United
States . . . [he] will not receive a sentence that requires him to spend his
natural life in prison as a punishment for committing the offenses charged ."
Apparently, Note 185 was the final communication between the two
nations before Costa Rica extradited Winstead . And the parties have not cited
any evidence of record of further negotiations . So we appropriately treat
Note 185 as the last word memorializing the sentence-limitation terms of the
extradition agreement between the United States and Costa Rica regarding
Winstead . 44 The governing U .S .-Costa Rica Extradition Treaty does not
explicitly establish any limitations on life sentences .
44
We note that in its order denying a new trial, the trial court stated that before and
during trial, "[t]he only document provided to the Court regarding extradition was
written in Spanish." The trial court had had the document translated before trial
for the purpose of resolving bond (not necessarily sentencing) issues and noted
that the initial translation indicated that a "life without parole" or "jailed without
parole" sentence was prohibited. Although we are unsure exactly what document
the trial court is referring to, the document was apparently not Note 185 because
the only copy of Note 185 appearing in the record was written in English. The trial
court also notes in its order denying a new trial that it was provided with additional
documents concerning the extradition after trial and also had these other
documents translated . Apparently, the documents that the trial court had
translated were transcripts of proceedings or decrees from Costa Rican courts
concerning Winstead's extradition. Despite the controversy in the trial court over
the proper translation of these Costa Rican court documents, we need not resolve
such translation issues because these documents are not dispositive of the agreedupon limitations on sentencing Winstead. Note 185 sets forth in English what the
United States agreed to do to secure Winstead's extradition ; Costa Rica accepted
Over Winstead's objection, the trial court permitted the jury to
recommend a sentence of LWOP/ 25 . The jury recommended LWOP/ 25, and
the trial court sentenced Winstead in accordance with that recommendation .
Winstead argues that the plain language of Note 185 prohibits life
imprisonment as a possible punishment. This extradition-related issue
appears to be a matter of first impression in Kentucky .
Under the principle of specialty, the individual who has been extradited
may raise any objections the surrendering country would have been able to
raise .45 Since interpreting an extradition agreement is a matter of law, our
review is de novo .46
Winstead contends that the trial court violated the terms of his
extradition when it instructed the jury that LWOP/ 25 was a sentencing option
and when it sentenced him to LWOP/ 25 . He argues that any type of life
sentence in this case was impermissible because of Costa Rica's apparent
requests for assurances that he would not be subject to life imprisonment and
of communications made to him by Costa Rican judicial officials during
extradition proceedings, which allegedly indicated that he would not be subject
to any type of life sentence in the United States . However, neither such
requests for assurances nor, such communications by Costa Rican officials, by
45
46
the terms set forth in Note 185 because it did not demand additional assurances
before extraditing Winstead; thus, we simply construe Note 185 (and not
documents from the Costa Rican courts) to determine applicable sentencing
limitations for this case .
United States v. Cuevas, 847 F.2d 1417, 1426 n . 23 (9th Cir. 1988) ; United
States v. Baez, 349 F.2d 90, 92 (2d Cir. 2003) .
Baez, 349 F. 3d at 92.
themselves, precludes a sentence of life imprisonment unless the United States
agreed to that sentencing limitation .47
Essentially, even though Note 185 ostensibly reflects a request by Costa
Rica that no life sentence be imposed, the United States does not simply parrot
the exact requested assurance . Presumably, if it saw fit, the United States
government could have followed the language of the noted request for
assurance and assured Costa Rica that Winstead would not be "subject to life
imprisonment" similarly to the response it gave to the request for assurance
that the death penalty would not be imposed. Instead, the United States
government responded to Costa Rica's purported request for assurance of no
life imprisonment48 with an alternative assurance that Winstead would not
receive a sentence that requires him to spend . his natural life in prison . The
Costa Rican government, if it was not satisfied with the assurance given by the
United States, could have stated through diplomatic channels that it required
an assurance that life imprisonment or any type of life sentence would not be
47
48
See Cuevas, 496 F .3d at 263 (finding no enforceable sentencing limitation where
not required by treaty or agreement between two nations negotiating extradition:
"The Dominican Republic's unilateral belief that Cuevas would be covered by Law
No. 489 [limiting sentence for crime under law of Dominican Republic] is
insufficient to bind the United States .") . Accord U. S. v. Banks, 464 F . 3d 184, 19192 (2d Cir. 2006) .
From our review of the record, it appears that Costa Rica's request for assurance
was written in Spanish; and its request for assurance that Winstead not be subject
to "cadena perpetua" or "condena perpetua" did not literally translate to a request
for assurance that he not receive a life sentence or life imprisonment. However, in
Note 185, which was written in English, the United States government noted that
Costa Rica had requested an assurance that Winstead not be subject to life
imprisonment .
imposed to extradite Winstead . Instead, Costa Rica released him, thus,
implicitly accepting the terms offered by the United States.49
In determining the type of sentence that may properly be imposed under
the extradition agreement as memorialized by Note 185, we look not to Costa
Rica's requests for assurances but to what the United States actually agreed to
in negotiating Winstead's extradition. Instead of determining whether the
LWOP/ 25 instruction and sentence complied with Costa Rica's request for an
assurance that life imprisonment would not be imposed, we must construe
whether the LWOP/25 sentencing option was permitted under the actual
assurance given - that a sentence that required Winstead to spend his natural
life in prison would not be imposed .
The Commonwealth contends that the fact that Winstead will be eligible
for parole in 25 years satisfies Note 185 because the possibility of parole means
that Winstead will not necessarily be required to spend his natural life in
prison since he will become eligible for parole under KRS 532.030 after
25 years . But Winstead counters by asserting that parole is a mere possibility,
49
See Rodriguez Benitez v. Garcia, 495 F.3d 640, 644 (9th Cir. 2007) (stating that
although "[a]greed-upon sentencing limitations should be enforced[,]" no relief
would be afforded for sentence imposed beyond desired sentencing limitation
expressed in Venezuelan documents because United States never gave assurance
that such limitation would be followed before fugitive was extradited, explaining
that "Venezuela could have refused extradition of Benitez until the United States
agreed to the sentencing limitation. Instead, Venezuela relinquished custody.") .
See also Cuevas, 496 F.3d at 264 (refusing to impose sentencing limitation not
required under governing treaty and not agreed to by United States in extradition
negotiations : "In this case, the Dominican Republic did not request or secure any
assurances regarding the limitation of Cuevas's sentence before surrendering him
to the United States . Because the United States never agreed that Cuevas's
extradition would be subject to Law No . 489 [limiting sentence for crime to
30 years under the law of the Dominican Republic], the District Court was under
no obligation to limit Cuevas's sentence to 30 years .") .
not a right, and that he will be required to spend his natural life in prison if he
does not receive parole .
Although the assurance is not necessarily ambiguous on its face, the
parties' arguments reveal a latent ambiguity concerning whether the assurance
would be satisfied by any type of life sentence offering the possibility of parole .
We believe the ambiguity is properly resolved in favor of allowing the LWOP/ 25
sentencing option because evidence of record supports the Commonwealth's
interpretation of Note 185 - the document that sets forth the agreed-upon
terms of Winstead's extradition . 50
In resolving the ambiguity about the meaning of the assurance that
Winstead would not receive "a sentence which requires him to spend his
natural life in prison[,]" we look to the Declaration of Mary D . Rodriguez .51 This
Declaration was provided to the trial court during post-trial proceedings on
Winstead's motion for a new trial when the trial court contacted the Office of
International Affairs at the United States Department of Justice, requesting a
50
The trial court, apparently considered unilateral communications by Costa Rican
authorities (such as requests for assurances and statements made in Costa Rican
judicial proceedings) as controlling, rather than focusing on the actual agreement
between the two countries (which is memorialized in Note 185) . Naturally,
although our reasoning differs from the trial court's, we nonetheless retain
authority to affirm its judgment on different grounds . Emberton, 299 S .W.3d at
576 .
51
Winstead was not provided a copy of this declaration before the trial court entered
its order denying his motion for a new trial, so he was not able to cross-examine
Rodriguez.' Although better practice would. certainly have been for the trial court to
have permitted Winstead the opportunity to cross-examine Rodriguez, we find any
error under the unique facts of this case to be harmless beyond a reasonable
doubt . See generally Chapman v. California, 386 U.S . 18 (1967) . We also note that
Rodriguez's declaration ends with her affirmation, "I declare under penalty of
perjury that the foregoing is true and correct," and her signature, along with the
date .
translation of "the disputed document" (a Costa Rican court document), which
was not available . Although the trial court obtained the Declaration in an
effort to resolve the controversy over translating Spanish-written Costa Rican
documents, which are not controlling, the Declaration also provides insight
into the meaning of the controlling agreement between the two countries as
memorialized in Note 185.
Specifically, Rodriguez, who is apparently an experienced United States
Justice Department official assigned to facilitating extradition proceedings with
Costa Rica and other Latin American nations, 52 interpreted Note 185 to allow
for any type of life sentence offering a possibility of parole:
Based upon my review of the file in this case and my experience
with requests for assurances from countries in Latin America, the
assurance that the United States gave to the Government of Costa
Rica regarding life sentence assurances, i.e., that Winstead would
not receive a sentence that required him to spend his natural life
in prison, precludes Winstead from receiving a sentence of life in
52
Rodriguez described her current position and experience in her Declaration :
I am. now, and have been since November 2006, an Associate Director
in charge of the Mexico and Central America Team of the Office of
International Affairs of the Criminal Division of the United States
Department of Justice in Washington, D .C. In this capacity, I
supervise all matters relating to extradition to and from Costa Rica .
From June 2002 to November 2004, I also served as the Associate
Director of the Latin America Team at the Office of International
Affairs, an antecessor to the present Mexico and Central American
Team, which also included South America. Prior to that, beginning in
July 2000, I was a trial attorney in the Office of International Affairs
assigned to extradition and mutual legal assistance matters involving
Costa Rica and other Latin American countries . I am familiar with the
extradition procedures with Costa Rica . In total, I have approximately
six years' experience in handling extradition requests made by the
United States to Costa Rica and in applying the U.S.-Costa Rica
Extradition Treaty, signed at San Jose, December 4, 1982 (hereafter,
Treaty), which governs the extradition relations of the United States
with Costa Rica . I make the following statements based upon my
personal knowledge, information made available to me in the
performance of my official duties, and my review of the file in this case .
prison without the possibility of parole . As long as the possibility
exists that Winstead could apply for and receive parole at some
future time then the life sentence assurance given to Costa Rica is
satisfied.
Before arriving at this conclusion, Rodriguez noted that Costa Rica had
accepted the United States' assurances and extradited Winstead in
February 2006 and, also, detailed the history of negotiations between the two
countries, including the United States' extradition request and Costa Rica's
requests for assurances . We note that although Costa Rica's requests for
assurances and other unilateral communications are not controlling, Rodriguez
found that even these requests for assurances would not preclude a life
sentence so long as the possibility for parole existed:
the Criminal Court of the First Judicial Circuit of San Jose, Costa
Rica, requested further assurances from the United States that,
upon conviction, Winstead would not be subjected to the death
penalty, life imprisonment, or cruel or degrading treatment. With
regard to life imprisonment, Costa Rica's communication to the
United States used the Spanish language term "cadena perpetua"
the literal English translation of the term is "perpetual chain ."
Based on my experience with other countries in Latin America
. where requests for assurances that life imprisonment will not be
imposed are sought from the United States, I have come to
understand that "cadena perpetua" refers to a penalty where the
defendant remains incarcerated "in perpetuity" and has no
possibility of release. It is akin to life imprisonment without the
possibility of parole in the United States. In my experience with
other countries in . the region, an assurance that a defendant may
be sentenced to a term of life imprisonment but has the possibility
of being considered eligible for parole at some point during the
service of his sentence, has satisfied the country's request that a
sentence of "cadena perpetua" not be imposed .53
53
Winstead had submitted a translator's affidavit that statements in Costa Rican
court proceedings that Winstead would not be subject to the Spanish-language
term "condena perpetua" made no reference to parole, in contravention of another
translation that essentially translated "condena perpetua" as life without parole.
(Both translators essentially literally translated this term in the same manner as a
perpetual or everlasting condemnation but differed as to whether it connoted life
Rodriguez also stated that based on her review of Winstead's file, attorneys for
the Justice Department had been in close communication with attorneys for
the Commonwealth of Kentucky and were satisfied that the Commonwealth of
Kentucky would be able to comply with the assurances requested by Costa
Rica.
In addition to the support provided for the Commonwealth's
interpretation in Rodriguez's Declaration, the trial court also articulated a
plain-meaning approach to defining "life imprisonment" when resolving the .
translation controversy that we regard as apropos in interpreting the
connotations of the assurance given that Winstead would not receive a
sentence which required him to spend his natural life in prison :
The plain meaning of the word "life" in the context of sentencing
one to a term of imprisonment would be from sentencing until
death. . . . The term "life" in this context should not be defined by
the parameters of sentencing statutes, but should be afforded its
plain meaning. That is, the plain meaning of "life" is life, and the
extra words "without parole" are surplus verbiage.
without parole) . But the record does not show whether either translator of Costa
Rican court documents had special knowledge of the Costa Rican justice system,
such as whether parole was something offered or contemplated in that jurisdiction
(and to our knowledge, no evidence was presented on the availability of parole in
the Costa Rican justice system) . Although neither "cadena perpetua" (which
literally translates to perpetual or everlasting chain) nor "condena perpetua" (which
literally translates to perpetual or everlasting sentence or condemnation) may
literally make any reference to parole, Rodriguez apparently had some experience
with and knowledge of the Costa Rican justice system, so her practical
interpretation of the phrase used in Costa Rican requests for assurances is
persuasive to us. As the trial court observed, neither "cadena perpetua" nor
"condena perpetua" literally refers to life either. But, in any case, neither of these
Spanish phrases used in Costa Rican requests for assurances or court documents
controls ; rather, the assurance given by the United States controls: the assurance
that Winstead would not receive a sentence that would require him to spend his
natural life in prison .
As the trial court orally explained
in a hearing, we cannot presume
that the
Costa Rican government would be aware of Kentucky's statutory sentencing
scheme ; and the fact that under our statutes, a life sentence other than
perhaps a sentence of life without parole does not necessarily mean that one
will literally remain in prison until death .54 Apparently, the -Costa Rican
government was satisfied with an assurance that Winstead would have some
hope of eventually being released and did not demand a further assurance that
Winstead would not receive a life sentence of any kind . So the trial court did
not err in instructing the jury on the LWOP/ 25 sentencing option55 and in
denying Winstead's motion for a new trial.
54
55
We recognize that even a prisoner sentenced to life without parole in this
Commonwealth theoretically has some hope of release because of the governor's
powers to pardon and to commute sentences. Ky. Const. § 77. Because the
parties have not argued whether this possibility of pardon or commutation would
satisfy the assurance given, we do not reach that question .
Winstead timely objected to the trial court's instructing the jury on the LWOP/25
sentencing option on the basis that it violated the terms of his extradition . We
have recently stated in an unpublished case that "alleged errors regarding jury
instructions are questions of law and must be examined using a de novo standard
of review." Skaggs v. Commonwealth, No . 2007-SC-000007-MR, 2009 WL 1830807
at *4 (Ky . June 25, 2009), citing Hamilton v. CSX Transportation, Inc., 208 S.W.3d
272, 275 (Ky.App . 2006) . But see Ratliff v. Commonwealth, 194 S.W.3d 258, 274
(Ky. 2006) ("We review a trial court's rulings regarding instructions for an abuse of
discretion.") . Nonetheless, whether employing the de novo or abuse of discretion
standard of review, we find no error in the trial court instructing the jury on the
LWOP/ 25 sentencing option because the plain language of Note 185 allows the
LWOP/ 25 sentencing option because it provides for the possibility of parole after
25 years and, thus, does not require that Winstead spend the rest of his natural
life in prison .
At the time of the hearing on jury instructions, the trial court indicated that it did
not actually have a copy of Note 185; but based on the documents before it (the
extradition treaty and a written translation of an audiotaped Costa Rican court
hearing concerning Winstead's extradition), which stated that Winstead would not
receive a sentence of life without parole, it found that the LWOP/ 25 sentencing
option was permissible . Evidence challenging the accuracy of the translation of the
Costa Rican court hearing on Winstead's extradition was not presented until after
the trial.
2 . Twenty-Year Sentence Must Run Concurrently with LWOP/ 25.
Although we otherwise affirm Winstead's sentence, we must vacate the
judgment because it provides that the twenty years' imprisonment sentence for
robbery run consecutively with the LWOP/ 25 sentence for murder.56 We
remand the case to the trial court for resentencing that runs the term of years
concurrent with LWOP/ 25 and entry of a new judgment reflecting this
sentence .
IV. REHEARING
In the original version of this opinion, rendered April 22, 2010, this
Court, sua sponte, noted that Judge James C . Brantley, the Hopkins Circuit
judge who presided over Winstead's trial, conducted the trial in Muhlenberg
County before a Muhlenberg County jury. This was done apparently without
having the case formally transferred to Muhlenberg Circuit Court. Nor did he
have himself designated as a special judge by the Chief Justice or chief regional
judge. In a petition for rehearing, Winstead argued that Judge Brantley lacked
territorial jurisdiction to preside over the case and, as a result, the judgment
was void . The parties were ordered to prepare supplemental briefs concerning
the issue of territorial jurisdiction and the ongoing application of Wolfenbarger
v. Commonwealth, 936 S .W.2d 770 (Ky.App. 1996) .
In Wolfenbarger, the Court of Appeals considered a similar factual
situation. Wolfenbarger committed crimes in Boone- County and was
56
See, e.g., Simpson v. Commonwealth, No. 2007-SC-000253-MR, 2009 WL 1830803
at *9 (Ky. June 25, 2009) ("Pursuant to KRS 532 .110(1)(c), a sentence for a term of
years cannot run consecutive to a life sentence . Accordingly, we sua sponte vacate
the sentence, and remand to the trial court for resentencing to order that the fiveyear sentence be run concurrent with the life sentence .") (citations omitted) .
eventually brought to trial in Boone Circuit Court. On the day of trial,
however, he was a patient in a Kenton County hospital. With the consent of
Wolfenbarger, the Boone Circuit judge conducted the trial on the hospital
premises before a Boone Circuit jury. However, the Boone Circuit judge did not
properly move the venue of the trial, nor was he sworn in as a special judge in
Kenton County.
In considering the validity of the judgment, the Court of Appeals noted
that the "physical location of Wolfenbarger's trial does not directly involve
either subject matter jurisdiction or venue." Id. at 773. Rather, the Court of
Appeals focused its holding on the concept of territorial jurisdiction -- that is,
the geographical limitations on a court's authority. Characterizing territorial
jurisdiction as "akin to subject matter jurisdiction," the Court of Appeals
concluded that the trial court lacked authority to conduct the trial in Kenton
County because the Boone Circuit judge was never sworn as a special judge.
The reasoning in Wolfenbarger is flawed . While acknowledging that the
Kentucky Constitution creates one Court of Justice for the entire state, the
panel nonetheless adhered to pre-Judicial Amendment cases
to
conclude that
the judgment was void. Indeed, prior to passage of the Judicial Amendment in
1975, a court's jurisdiction was limited by the geographic boundaries of the
district . "The court of the justice of the peace for a magistral district could no
more be lawfully held without the territorial limits of such district, than the
county, or quarterly, or circuit courts, for one county could be lawfully held in
another county." Wolfenbarger, 936 S.W.2d at 774 (quoting Wheeler v.
Schulman, 165 Ky. 185, 176 S .W . 1017, 1019 (1915)) . Judges lacked any
jurisdiction or authority to conduct proceedings outside of the geographic
bounds of the district, and any resulting judgment or order was void ab initio.
As other states have done, Kentucky removed this territorial limitation
through creation of a unified court system. Ky. Const. § 109 . See also Wayne
R. Lafave, Jerold H . Israel 8s Nancy J . King, 4 Grim. Proc. § 16.1 (a) (3d ed.
2009) . The Judicial Amendment is clear that there is one circuit court for the
entire state, and all of its judges are members of the same court with equal
power to act throughout the Commonwealth. See Baze v. Commonwealth, 276
S .W.3d 761, 767 (Ky. 2008) . This Court has explained:
[Nothing in the Judicial Amendment] implies that any judge's
powers and authority are limited to the district in which he or she
is elected. . . . [There is] an expectation that district and circuit
judges will usually and regularly serve within the respective
districts or circuits where they are elected, but they are still
members of the same court and have equal capacity to act
throughout the Commonwealth, subject to the administrative
authority of the respective chiefjudges and the Chief Justice and
subject to the rule--making power of the Supreme Court .
Richmond v. Commonwealth, 637 S .W.2d 642, 646 (Ky. 1982) .
Thus, since passage of the Judicial Amendment, territorial jurisdiction
no longer confines a judge's authority to his or her home district or circuit.
Procedural requisites and venue provisions restrict a circuit judge's ability to
act outside of the home circuit. However, these limitations do not undermine
the judge's basic authority to adjudicate matters that fall within the subject
matter jurisdiction of the Circuit Court. See Baze, 276 S .W.3d at 767 ("[O]ur
statutes and this Court's rules place geographical boundaries on a court's
power to hear a case .") . Wolfenbarger is erroneous in this regard and, to the
extent that it holds otherwise, is hereby overruled .
Nevertheless, an error occurred in this case when Judge Brantley was
not sworn as a special judge in Muhlenberg County. SCR 1 .040(1) provides
that "[n]o judge shall conduct any judicial proceeding, other than the issuance
of warrants, outside his own circuit or district unless designated by the Chief
Justice or by the Chief Judge of an administrative region." In asserting a
violation of this rule, Winstead is essentially challenging Judge Brantley's
qualifications or capacity to act.
However, Winstead has raised this argument for the first time in a
petition for rehearing. As early as 1860, Kentucky courts recognized that
challenges to the qualifications of a judge must be timely made, or they are
deemed waived. Vandever v. Vandever, 60 Ky. 137 (1860) . In 1899,
Kentucky's highest court held:
It is true that the record fails to show that the special judge was
selected according to statutory provisions . . . but it is sufficient
answer to say that there appears to have been no objection by any
of the parties in the lower court to trial by the special judge .
Appellants participated in the trial of the action, filing many
pleadings and introducing much proof, and this court will not now
for the first time entertain the objection as to the authority of the
special judge to render judgment .
Salyer v. Napier, 21 Ky. L.Rptr. 172, 51 S.W. 10, 11 (1899) . See also
Kentucky Utilities Co. v. South East Coal Co., 836 S.W .2d 407, 409 (Ky.
1992) (challenge to the appointment of a Special Justice, made for the
first time in a petition for rehearing, was rejected, with this Court noting
that "a party must timely object or be deemed to have any waived any
such objection .") ; Jacobs v. Commonwealth, 947 S .W.2d 416, 418 (Ky .
App . 1997) (collecting Kentucky authority supporting rule that "objection
to one acting as special judge cannot be made for the first time on
appeal") . Cf. Helton v. Commonwealth, 256 S .W.2d 14 (Ky. 1953)
(conviction reversed where defendant's seasonable objections to the
authority of the special judge were improperly overruled) .
Winstead moved the trial court to change the venue of his trial and that
motion was properly granted. He raises no other challenge to Judge Brantley's
qualifications to preside over the trial in Muhlenberg County, other than this
administrative defect, and Winstead has shown absolutely no prejudice
stemming from Judge Brantley's presiding over this trial in Muhlenberg
County. Neither do we find any. At no time did Winstead bring the defect in
appointment to Judge Brantley's attention, nor did he raise the issue on direct
appeal. We have no hesitation in concluding that Winstead has waived any
objection to Judge Brantley's authority to preside over his trial.
V. CONCLUSION .
This Court affirms both convictions and the sentences imposed for each,
but we must vacate the judgment because the sentences cannot legally run
consecutively. Accordingly, we remand this case to the trial court with
directions to resentence Winstead to concurrent sentences and enter a new
judgment consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Marc A. Wells
Wells 8v Wetzel
209 West Main Street
P . O . Box 644
Princeton, Kentucky 42445
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Jeffrey Allan Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
David G . Massamore
Office of the Commonwealth's Attorney
Fourth Judicial Circuit
52 East Broadway
Madisonville, Kentucky 42431
,$uyr.rmr (~vurf of ~6ufurhV
2007-SC-000829-MR
RUSSELL WINSTEAD
V
APPELLANT
ON APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES CLAUD BRANTLEY, JUDGE
NO . 03-CR-00253
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
2008-SC-000446-TG
RUSSELL WINSTEAD
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-001106-MR
HOPKINS CIRCUIT COURT NO. 03-CR-00253
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
On the Court's own motion, the Memorandum Opinion of the Court,
rendered April 22, 2010 and modified on December 16, 2010, is corrected by
substituting page 1 of the opinion as attached hereto . Said correction does not
affect the holding, but designates the opinion to be published .
ENTERED : December 17, 2010 .
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