Soto v. Commonwealth

139 S.W.3d 827, 2004 Ky. LEXIS 93, 2004 WL 867447

• Court: Kentucky Supreme Court
• Decided: April 22, 2004
• Docket: 2000-SC-0828-MR
• Status: Published

Opinions

COOPER, Justice.

Appellant, Miguel Soto, was convicted by an Oldham Circuit Court jury of the murders of his former mother- and father-in law, Edna and Armott Porter, the attempted murder of his ex-wife, Armotta Porter, the first-degree wanton endangerment of his three-year-old daughter, Brianna, the first-degree burglary of the Porter residence, and tampering with physical evidence. He was sentenced to death for each murder conviction, to twenty years imprisonment each for his convictions of attempted murder and first-degree burglary, and to five years imprisonment each for his convictions of wanton endangerment and tampering with physical evidence. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b); KRS 532.075(1). For the reasons explained herein, we affirm.

Appellant married Armotta Porter in August 1995. They separated two months later. Armotta and her fifteen-year-old son from a previous marriage then moved into the Crestwood, Kentucky, residence of her parents, Armott and Edna Porter. According to Armotta, Appellant “stalked” her during the months following their separation. Armotta was pregnant with Appellant’s child when they separated. That child, their daughter Brianna, was born in May 1996. Appellant and Armotta were divorced one month later.

Appellant came to the Porter home in July 1996 asking to see Armotta. At Ar-motta’s request, her father advised Appellant that she did not wish to see him and ordered him to leave. In August 1996, the Porter residence was burglarized. The perpetrator left a coat at the scene that the Porters believed belonged to Appellant. Mr. Porter filed a criminal complaint in the Oldham District Court charging Appellant with burglary in the second degree, a Class C Felony. KRS 511.030(2). On October 17, 1996, the day of the preliminary hearing, the Oldham District Court dismissed the charge 'without prejudice conditioned upon Appellant having no further contact with the complaining witness (Mr. Porter), reenlisting in the military service within sixty days, and remaining away from Oldham County, Kentucky. Appellant reenlisted in the United States Army and lived in California until he was reassigned to Ft. Knox, Kentucky, in April 1999. The Porters had no contact with him after October 17, 1996, until June 29, 1999.

On June 26, 1999, Monica Nahand, with whom Appellant had been living for approximately one month, ordered him to move out of her residence. Before leaving, Appellant gave away or otherwise discarded all of his personal belongings except for the contents of a black duffel bag, explaining that he did not need his belongings “where he was going.” Three days later, on June 29, 1999, Appellant, armed with a .38 caliber revolver and a .45 caliber automatic pistol, parked his automobile at the Crestwood Army Recruiting Station and walked three miles to the Porter residence. When he arrived at approximately 5:30 p.m., Mrs. Porter was inside the house and Mr. Porter was outside working in the garden. Appellant concealed himself in a shed where Mr. Porter stored his garden tools. When Mr. Porter entered the shed, Appellant killed him by shooting him once in the chest and once in the back with the .38 revolver. Leaving Mr. Porter’s corpse in the shed and placing a board against the shed’s door, Appellant entered the residence and killed Mrs. Porter, also shooting her once in the chest and once in the back with the .38 revolver. He wrapped her corpse in a comforter and placed it at the foot of her bed, then waited for Armotta.

Armotta arrived at the residence with Brianna¹ shortly before 6:00 p.m. and parked her automobile in the attached garage. When she entered the kitchen, she was immediately confronted by Appellant who placed the .45 automatic pistol to her head and told her that he had killed her parents and intended to kill her. Armotta persuaded Appellant not to kill her in the presence of their daughter but to take her someplace away from the residence in her automobile. Once inside the garage, Ar-motta attempted to escape by running back into the house. As she opened the door to the kitchen, Appellant shot her in the back with the .45 automatic. The bullet entered Armotta’s lower back, pierced her kidney and colon, and exited through her lower abdomen. Still, she managed to close and lock the door, shielding Brianna with her body. Appellant fired two additional rounds through the door, one of which struck Armotta’s left knee. Armot-ta managed to dial 911 for emergency assistance.

At approximately 6:30 p.m., Appellant appeared at the residence of Mitch Nobles, a retired police detective who lived near the Porter residence and who had attended Appellant and Armotta’s wedding. Appellant ultimately confessed to shooting all three victims. Although the police never located the .45 automatic, they found the .38 revolver under a stack of folded clothes on a clothes dryer inside the Porter residence. A ballistics test matched the .38 revolver with the bullet fragments removed from the bodies of Mr. and Mrs. Porter. The serial number on the .38 revolver matched that of a weapon that a former employer had issued to Appellant, which Appellant had not returned.

I. INDICTMENT.

Appellant asserts that the indictment charging him with two counts of capital murder was defective because it did not recite the statutory aggravating circumstances upon which the Commonwealth relied to authorize capital punishment. He interprets three recent decisions of the United States Supreme Court, i.e., Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), as requiring that an indictment charging a defendant with a capital offense must recite the aggravating circumstances authorizing capital punishment.

Jones, supra, held that the Sixth Amendment requires that facts triggering the provisions of the federal car-jacking statute, 18 U.S.C. § 2119, that authorize higher penalties if the offense resulted in serious bodily injury or death, must be charged in the indictment. Id. at 251-52, 119 S.Ct. at 1228. The Court concluded that those provisions were not mere sentencing factors but were elements of the offense. Id.; compare KRS 509.040(2) (offense of kidnapping enhanced from Class B felony to Class A felony if victim suffered serious physical injury, and to capital offense if victim died during or as a result of the kidnapping).

In Apprendi, supra, the defendant was convicted of a second-degree firearm offense that was enhanced pursuant to an independent “hate crime” statute that authorized imposition of an enhanced sentence if the trial judge found by a preponderance of the evidence that the crime was motivated by racial bias. Finding that the “preponderance of the evidence” standard violated the Fourteenth Amendment, Id. at 497, 120 S.Ct. at 2366-67, the Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,120 S.Ct. at 2362-63. However, Apprendi did not address the failure of the indictment to charge a violation of the hate crime statute. Id. at 477 n. 3, 120 S.Ct. at 2356 n. 3 (“Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment .... We thus do not address the indictment question separately today.”).

Ring, supra, held that an Arizona statute permitting a trial judge sitting without a jury to determine the presence or absence of statutory aggravating factors necessary to impose the death penalty, violated the Sixth Amendment right to trial by jury. Id. at 609, 122 S.Ct. at 2443 (overruling Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)). “Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Id. at 589, 122 S.Ct. at 2432. Ring also did not address the constitutionality of the indictment. Id. at 597 n. 4, 122 S.Ct. at 2437 n. 4 (“Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him .... Ring does not contend that his indictment was constitutionally defective.”)

Apprendi and Ring focused on a defendant’s procedural due process rights. Appellant, however, interprets Ring as holding that aggravating circumstances are, substantively, elements of the offense, not factors relevant only to sentencing. He cites Jones, supra, for the proposition that such elements must be recited in the indictment. Under federal law, an indictment must set forth all of the elements of the offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). Factors relevant only to sentencing, however, are not elements of the offense. Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 1223, 140 L.Ed.2d 350 (1998). Regardless, we are not bound by federal law on this issue because, as noted in Appren-di, supra, the Fourteenth Amendment has never been construed to incorporate against the states “the Fifth Amendment right to ‘presentment or indictment by a Grand Jury.’ ” Id. at 477 n. 3, 120 S.Ct. at 2355 n. 3 (citation omitted). Thus, while Appellant’s interpretation of Jones, Ap-prendi, and Ring may be an accurate prediction of the future course of federal law, we decline to adopt that interpretation and, instead, apply existing Kentucky law to his issue.²

Criminal Rule (RCr) 6.10(2) provides that an indictment is sufficient if it contains “a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged.” Further, RCr 6.10(1) requires only that the indictment provide sufficient information to give the defendant notice of the charge(s). Caudill v. Commonwealth, Ky., 120 S.W.3d 635, 650 (2003); Thomas v. Commonwealth, Ky., 931 S.W.2d 446, 449 (1996). Count I of the indictment charged that:

On or about June 29, 1999, in Oldham County, Kentucky, the above-named defendant, MIGUEL SOTO, committed the offense of Murder when he entered the home of Armott and Edna Porter, without permission, while armed with a deadly weapon and while engaged in the commission of Burglary in the first degree, with the intent to cause the death of another he caused the death of Ar-mott Porter by shooting him with a firearm, all in violation of KRS 507.020 and 532 .025, contrary to other laws, statutes and regulations as made and provided in such cases and against the peace and dignity of the Commonwealth of Kentucky.

Count II of the indictment charged Appellant with Mrs. Porter’s murder using essentially the same language. The caption of the indictment stated that Appellant was charged with two counts of “Murder, Capital Offense,” and cited the applicable statutory provisions, ie., KRS 507.020 (murder) and KRS 532.025(2)(a) (aggravating circumstances). Thus, the indictment gave Appellant notice that he was charged with two counts of murder and that the Commonwealth would prove aggravating circumstances authorizing the death penalty-

KRS 532.025(l)(a) provides that the Commonwealth may introduce at a capital sentencing hearing “only such evidence in aggravation as the state has made known to the defendant prior to his trial.” This notice requirement is satisfied by timely filing a formal notice of intent to seek the death penalty and the aggravating circumstances upon which the Commonwealth intends to rely. Furnish v. Commonwealth, Ky., 95 S.W.3d 34, 41 (2002); Commonwealth v. Maride, Ky., 15 S.W.3d 376, 379 (2000); cf. Smith v. Commonwealth, Ky., 845 S.W.2d 534, 536-538 (1993) (defendant did not receive adequate notice of Commonwealth’s intent to seek death penalty when prosecutor filed formal notice only six days before trial).

On August 23, 1999, thirty-eight days after the indictment was rendered and almost ten months prior to trial, the Commonwealth filed a formal notice of its intent to seek the death penalty, listing the aggravating circumstances described in KRS 632.026(2)(a)(2), (6), and (8). The notice was both adequate and timely.

II. SPEEDY TRIAL.

Appellant’s trial began on June 20, 2000, slightly less than one year after his arrest. He asserts that this delay violated his constitutional right to a speedy trial. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court identified four factors to be considered when determining whether a defendant’s right to a speedy trial has been violated, viz: (1) length of delay; (2) reason for delay; (3) actual assertion of the right; and (4) resulting prejudice. Id. at 530, 92 S.Ct. at 2192. A finding with respect to any one factor is not necessary or determinative of a speedy trial violation; instead, “they are related factors and must be considered together with such other circumstances as may be relevant.” Id. at 533, 92 S.Ct. at 2193.

An analysis of the last three Barker factors is triggered only upon a determination that the length of delay was “presumptively prejudicial.” Id. at 530, 92 S.Ct. at 2192; Cain v. Smith, 686 F.2d 374, 381 (6th Cir.1982). There is no fixed time period from which to gauge the existence of presumptive prejudice. Instead, “the length of the delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case .... [T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, supra, at 530-31, 92 S.Ct. at 2192.

The delay of less than one year between Appellant’s arrest and his trial is, at best, on the borderline of being presumptively prejudicial. State v. Myers, 97 Ohio St.3d 335, 780 N.E.2d 186, 204 (2002) (delay of less than one and one half years between defendant’s indictment and trial was “barely sufficient” to be “presumptively prejudicial”); Herring v. State, 691 So.2d 948, 955 (Miss.1997) (delay of eight months or longer is presumptively prejudicial) (citations omitted); 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 18.2(b) (2d ed. Supp.2004) (“Though there are some cases which do not fit this mold, it may generally be said that any delay of eight months or longer is ‘presumptively prejudicial.” ’ (Quotation omitted.)). But see State v. Coffin, 128 N.M. 192, 991 P.2d 477, 501 (1999) (given complexity of capital murder case, fifteen-month delay might not be presumptively prejudicial). Nevertheless, application of the remaining Barker factors reveals that no constitutional violation occurred in this case.

The reasons for delay in this case were not egregious. Appellant verbally demanded a speedy trial at a pretrial hearing held on August 4, 1999. The trial judge advised Appellant that his demand should be submitted in writing and would be considered at that time. During a pretrial hearing held on October 7, 1999, the Commonwealth informed the trial court that its discovery was only “eighty percent” complete, explaining that the delay in discovery was the result of newly discovered evidence and the fact that the police still had not located the .45 caliber handgun used to shoot Armotta. On November 18, 1999, Appellant, by counsel, requested a June 2000 trial date. Accordingly, the trial court scheduled the trial for June 13, 2000. On March 2, 2000, Appellant sent the trial judge a three-page letter demanding a speedy trial and specifically requesting an April 2000 trial date. At a pretrial conference on March 16, 2000, the trial court denied Appellant’s request for an April date, finding that the complex nature of the case justified the delay and that Appellant would not be significantly prejudiced by an additional delay of two months. The Commonwealth noted that discovery still had not been completed, citing delays in obtaining forensic evidence. Finally, at a hearing on April 20, 2000, the trial court rescheduled the start of Appellant’s trial from June 13 to June 20, 2000, so that he could attend professional education seminars provided in conjunction with the annual meeting of the Kentucky Bar Association.

Thus, the trial court gave Appellant the June 2000 trial date that he initially requested. There is no indication that the delays in completing discovery were “deliberate attempts] to delay the trial in order to hamper the defense.” Barker, supra, at 531, 92 S.Ct. at 2192; see also State v. Myers, supra, at 205 (delay in forensic testing not weighed against prosecution where delay did not appear to be result of bad faith). Nor is Appellant entitled to a dismissal because the trial judge delayed the trial one additional week in order to complete his continuing judicial education requirements. The reasons for the delay in this case do not weigh against the Commonwealth.

The trial court treated Appellant’s letter of March 2, 2000, as a formal demand for a speedy trial. Thus, the third Barker factor weighs slightly in Appellant’s favor even though the demand was not made until more than seven months after his arrest and less than four months before the scheduled trial date.

While the mere fact of incarceration is prejudicial, Barker, supra, at 532-33, 92 S.Ct. at 2193; Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 23 (1998), Appellant does not claim that the delay impaired his ability to offer evidence he desired to present or otherwise prejudiced his defense. We conclude that Appellant’s constitutional right to a speedy trial was not violated.

III. SELF-INCRIMINATION.

Appellant filed a motion to suppress various incriminating statements he made both before and after his arrest, claiming the statements were involuntary due to his intoxication and police coercion and thus obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the pretrial suppression hearing, the Commonwealth presented the testimony of four witnesses: (1) Mitch Nobles, the retired Louisville Police Department detective at whose residence Appellant appeared shortly after the commission of the offenses; (2) Gary Nobles, Mitch’s brother, who was present at Mitch’s residence when Appellant appeared; (3) Oldham County Sheriffs Detective Mark Hoskins, the arresting officer; and (4) Oldham County Sheriffs Deputy Scott Veech, who was present when three of the four self-incriminating statements were made.

Mitch and Gary Nobles testified that they were standing on the deck behind Mitch’s residence when Appellant suddenly appeared from around the corner of the house, shirtless, wet, covered in dirt and soot, and with several visible lacerations on his body. Appellant stated that he “wanted to turn himself in” because the “cops are looking for me.” After contacting local authorities to advise of Appellant’s presence on his property, Mitch asked Appellant what had happened. Appellant replied, “I f-ked up my life. It’s been screwed up for the last four years.” He then described how he had left his automobile at the Crestwood recruiting station and walked to the Porter residence. No Miranda warnings were given prior to these statements. However, Appellant was not in custody, and neither of the Nobleses was then a law enforcement officer. “Miranda, itself, was concerned only with custodial interrogation, which means questioning initiated by law enforcement officers after a person has been taken into custody.” Adkins v. Commonwealth, Ky., 96 S.W.3d 779, 791 (2003) (quotations omitted); see also Fields v. Commonwealth, Ky., 12 S.W.3d 275, 283-84 (2000) (Miranda not applicable where incriminating statement was in response to questioning by hospital employee who was not a state actor).

Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.

Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986). Both of the Nobles brothers further testified that they observed no outward indication that Appellant was intoxicated when he made these statements.

Shortly thereafter, Hoskins arrived at the Nobles residence. He testified that he arrested and handcuffed Appellant and advised him of his Miranda rights, and that Appellant responded that he understood his rights. Hoskins also testified that Appellant gave no indication of being intoxicated at the time of his arrest. Hoskins transported Appellant to the Porter residence. Mitch Nobles followed in his own vehicle. Other officers already present at the crime scene were searching for both Mr. Porter and the weapon or weapons used to shoot Edna and Armotta Porter. Because of his prior acquaintance with Appellant, Mitch Nobles volunteered to question him as to the location of Mr. Porter and the missing weapon(s).³ Nobles questioned Appellant in the back seat of Hos-kins’s police cruiser while Veech listened through a partially opened window. Appellant told Nobles that Mr. Porter was “in the shed.” This information was relayed to other officers who, indeed, found Mr. Porter’s corpse in the shed. Appellant also advised Nobles that he had “buried the gun in a creek.” Both Mitch Nobles and Veech testified that Appellant did not slur his speech and did not smell of alcohol while being questioned inside the police cruiser.

Hoskins, Veech, and Mitch Nobles transported Appellant to a substation of the Oldham County Police Department for the purpose of obtaining a recorded statement. Upon entering the air-conditioned budding, Appellant, still wet and shirtless, complained of being cold and was given a smock to wear. Veech twice re-apprised Appellant of his Miranda rights and Appellant signed a written waiver-of-rights form. During the course of the approximately twenty-five-minute interrogation, Appellant admitted killing Mr. and Mrs. Porter, shooting Armotta, burglarizing the Porter residence, and concealing the .45 caliber handgun in a creek. Nobles and Veech testified that Appellant exhibited no signs of intoxication during the interrogation, and although he was restrained by handcuffs and a waist chain, did not complain of discomfort and did not invoke either his right to silence or his right to counsel.

Following the interrogation, Hoskins and Veech transported Appellant to a local hospital for blood and urine tests. Appellant’s urine tested positive for the presence of POP, cocaine, and amphetamines. His blood tested positive for diphenhydramine (antihistamines) at levels that a toxicologist later testified were “above therapeutic.”⁴ While at the hospital, Appellant volunteered to the officers that “everything you need to know is on the dryer.” The .38 revolver, as well as .38 caliber and .45 caliber ammunition were found folded into some clothing lying on top of a clothes dryer inside the Porter residence.

After hearing this testimony and listening to Appellant’s audiotaped confession, the trial court found that Appellant had been properly advised of and had voluntarily waived his Miranda rights, and that the statements he made at the Nobles residence, the Porter residence, the police substation, and the hospital were voluntary. Appellant claims the trial court’s findings were clearly erroneous because (1) Hoskins failed to adequately advise him of his Miranda rights; (2) he invoked his right to remain silent during the audio-taped interrogation; and (3) his statements were rendered involuntary by his intoxication and police coercion. We disagree.

A. Miranda warnings.

Appellant did not claim either in his suppression motion or during the suppression hearing that he was improperly advised of his Miranda rights. Thus, the trial court did not make a specific finding of fact with respect to this issue. Nevertheless, it is easily resolved on the record.

In quickly reciting the Miranda rights from memory during the suppression hearing, Hoskins failed to include a criminal defendant’s right to appointed counsel. There was no allegation that Hoskins failed to advise Appellant of that right at the time of his arrest on June 29, 1999. Of course, the issue is not whether Hoskins correctly recited the Miranda rights at the suppression hearing but whether he correctly advised Appellant of his rights at the time of the arrest. Even after hearing Hoskins’s misstatement, the trial court found that he did advise Appellant of his Miranda rights at the time of his arrest, and that finding was supported by substantial evidence, i e., Hoskins’s testimony that he did so. RCr 9.78. '

B. Invocation of silence.

Appellant claims that Mitch Nobles and Veech violated his Fifth Amendment right against self-incrimination when they continued to interrogate him at the police substation after he invoked his right to silence. Although not raised at the suppression hearing, this issue is also easily resolved on the record. During the course of the interrogation, Nobles asked Appellant whether he said anything to Armotta when he first confronted her inside the Porter residence. Appellant’s response was: “I trust myself not to say anything.” After reviewing the recorded confession, which included this statement, the trial court found that Appellant had not invoked his right to remain silent. On review of the audiotape we conclude that this finding was not clearly erroneous. Appellant continued to answer questions after the statement was made without expressing any desire to discontinue the interrogation.

Once an accused in custody unequivocally invokes the right to remain silent, interrogation must ordinarily cease. Miranda, supra, at 473-74, 86 S.Ct. at 1627-28; Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir.1989); Anderson v. Smith, 751 F.2d 96, 101-02 (2d Cir.1984). However, the statement in question was not unequivocal and, given the context, i.e., response to inquiry as to what he said to Armotta, not what he did to Armotta, it cannot even be fairly characterized as an equivocal or ambiguous invocation of the right to remain silent. Springer v. Commonwealth, Ky., 998 S.W.2d 439, 445 (1999); see also Bradley v. Meachum, 918 F.2d 338, 342 (2d Cir.1990) (accused’s statement that he was not going to say whether he was involved in crime followed by immediate denial of involvement not invocation of right to silence).

Finally, Appellant had already confessed to the offenses of which he was ultimately convicted before the statement was made and did not provide any significant information thereafter, thus rendering any possible error harmless beyond a reasonable doubt.

C. Voluntariness.

The ultimate test of voluntariness lies in an examination of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973); Mills v. Commonwealth, Ky., 996 S.W.2d 473, 481 (1999). Under this rubric, a confession is voluntary unless, under the totality of the circumstances, a defendant’s “will has been overborne and his capacity for self-determination critically impaired.” Schneckloth, supra, at 225, 93 S.Ct. at 2047. This requires an examination of both the “characteristics of the accused and the details of the interrogation.” Id. at 226, 93 S.Ct. at 2047.

Appellant presented no evidence during the suppression hearing that Mitch Nobles, Hoskins, or Veech used any coercive measures or promises of leniency in order to obtain his confession. In fact, the officers responded to Appellant’s only complaint of discomfort by providing him with a smock. Thus, we summarily reject Appellant’s claim of police coercion.

Nor was there any evidence of intoxication except for Appellant’s positive blood and urine tests. Even if there had been other evidence, merely showing that a defendant was intoxicated when a statement was made does not render the statement involuntary. Britt v. Commonwealth, Ky., 512 S.W.2d 496, 501 (1974). The “basic question” when reviewing the voluntariness of a confession obtained from an intoxicated defendant “is whether the confessor was in sufficient possession of his faculties to give a reliable statement.” Id. at 500. Here, Appellant exhibited no outward signs of intoxication at the time he made the challenged statements. While he frequently attempted to change subjects during the interrogation, he gave accurate and detailed information concerning the type of vehicle he drove that evening, where he had parked it, the location of Mr. Porter’s body, and the manner in which he had committed the offenses. Although Appellant vomited several times after his arrest, Veech testified that Appellant explained that he often vomited when he was very nervous. Thus, despite the presence of drugs in his body, Appellant’s actions before and after his arrest did not rise to the level of “mania” required in Britt, supra, to render his statements involuntary. Id. at 499. See also Halvorsen v. Commonwealth, Ky., 730 S.W.2d 921, 927 (1986) (fact that defendant was under the influence of alcohol and marijuana at the time he gave his confession to police insufficient to render confession involuntary).

IV. JURY SELECTION.

A. Failure to excuse jurors for cause.

Appellant asserts that the trial judge erred by failing to excuse eight jurors for cause. However, Appellant did not even request that four of the eight, Jurors 20, 81, 113, and 200A, be excused. We review unpreserved allegations of error in death penalty cases under the standard established in Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), overruled on other grounds by St. Clair v. Roark, Ky., 10 S.W.3d 482, 487 (1999), and Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), viz:

(1) whether there was a reasonable justification or explanation for defense counsel’s failure to object, e.g., whether the failure might have been a legitimate trial tactic, and (2) if there is no reasonable explanation, whether the unpre-served error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed.

Sanders, supra, at 668. “Counsel’s decisions during voir dire are generally considered to be matters of trial strategy.” Hodge v. Commonwealth, Ky., 17 S.W.3d 824, 837 (2000) (citations omitted). None of these four jurors had formed an opinion as to Appellant’s guilt or innocence and all stated that they could consider the full range of penalties and mitigating circumstances. We find no error in the trial judge’s failure to sua sponte excuse these jurors for cause.

Appellant’s motions to excuse Jurors 42, 54, 70, and 143, for cause were overruled. A determination whether to excuse a juror for cause lies within the sound discretion of the trial court and is reviewed only for a clear abuse of discretion. Foley v. Commonwealth, Ky., 953 S.W.2d 924, 931 (1997). We are also mindful that:

Voir dire examination occurs when a prospective juror quite properly has lit-tie or no information about the facts of the ease and only the most vague idea as to the applicable law .... many citizens are astounded to learn that being under the influence of drugs or alcohol may be considered by them as factors mitigating the punishment which should be imposed. Predictably, when asked whether they believe being under the influence should mitigate punishment, the answer is often in the negative.

Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671 (1994). Applying these principles, we conclude that the trial court did not abuse its discretion in overruling Appellant’s motions to excuse Jurors 42, 54, 70, and 143, for cause.

Juror was the director of a domestic violence center. However, she was an administrator, not a psychologist. She stated that she was detached from the emotional aspects of assisting victims of domestic violence and that her position would not affect her ability to be fair and impartial in this case. Compare Alexander v. Commonwealth, Ky., 862 S.W.2d 856, 862-64 (1993) (abuse of discretion to refuse to excuse for cause juror who was an investigative social worker with Child Protection Services and who stated that her employment would affect her ability to be fair and impartial in case involving child sexual abuse), overruled on other grounds by Stringer v. Commonwealth, Ky., 956 S.W.2d 883, 891 (1997).

Juror 42 also favored the death penalty for aggravated murder because she believed that the biblical philosophy of an “eye for an eye” was the original basis for our legal system. However, she also stated that she could consider the full range of penalties and some, but not all, of the statutory mitigating circumstances enumerated by defense counsel during voir dire. A trial court is not required to excuse a juror for cause merely because the juror favors severe penalties, so long as he or she can consider the full range of penalties. Hodge, supra, at 836-37; compare Thomas v. Commonwealth, Ky., 864 S.W.2d 252, 254-55 (1993) (abuse of discretion not to strike juror for cause who stated that he would “definitely” vote for the death penalty). Nor was the trial judge required to strike Juror 42 for cause because of her “eye for an eye” remark, Stopher v. Commonwealth, Ky., 57 S.W.3d 787, 796-97 (2001), especially in view of her assurance that she could impose a lesser sentence than death. Compare Thompson v. Commonwealth, Ky., 862 S.W.2d 871, 875-76 (1993) (abuse of discretion not to excuse for cause juror who repeatedly emphasized his strong belief in the death penalty and the “eye for an eye” philosophy), superseded on other grounds by RCr 9.38 as recognized by Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 159 (1995).

Juror 70 also favored the death penalty for a conviction of aggravated murder but stated that he could consider the full range of penalties and mitigating circumstances. Hodge, supra, at 836-37.

Juror 5U knew several officers of the Oldham County Sheriffs Department who had attended his daughter’s wedding. Both his daughter and his son-in-law were police officers and his son-in-law had previously worked with the Oldham County Commonwealth’s Attorney’s office on a capital case. In addition, Juror 54 was the manager of a local Kroger grocery store (at the time of her death, Mrs. Porter was a cashier at a different Kroger store) and his wife worked at a local hospital where Armotta was also employed (though he did not know whether they were acquainted). Juror 54 had not had any contact with any Oldham County sheriffs deputies for four years and stated that he did not know the victims or any of the facts of the case.

Juror 54’s acquaintance with members of the Oldham County Sheriffs Department does not approach the kind of “close relationship” giving rise to implied bias under Ward v. Commonwealth, Ky., 695 S.W.2d 404, 407 (1985). See Dillard v. Commonwealth, Ky., 995 S.W.2d 366, 369 (1999) (no implied bias attributed to juror who knew some police officers who testified at trial); Sanders, supra, at 670 (fact that juror was a police officer in county of trial and knew several testifying officers did not establish bias). Nor did the facts that Juror 54 and Mrs. Porter were both employees of Kroger or that Juror 54’s wife worked at the same hospital as Ar-motta establish implied bias. Dillard, supra, at 369 (no implied bias where juror worked as a fireman at same station at which victim served as captain); Copley v. Commonwealth, Ky., 854 S.W.2d 748, 750 (1993) (no implied bias where several jurors were employed at same factory as victim and his girlfriend); Sanders, supra, at 669 (no implied bias even though juror worked with victim’s spouse).

Juror US stated that he might give “slightly” more weight to the testimony of a police officer than to that of a layperson. He otherwise stated that he could render a fair and impartial decision considering all of the facts of the case, including the entire range of penalties and mitigating circumstances. “It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause.” Pennington v. Commonwealth, Ky., 316 S.W.2d 221, 224 (1958) (citation omitted). Juror 143’s responses did not establish implied bias against Appellant. See Sholler v. Commonwealth, Ky., 969 S.W.2d 706, 708-09 (1998) (no implied bias where juror was “very pro-law enforcement” and would give substantial credence to testimony of police officer but who did not indicate any bias against defendants). Appellant did not testify at trial and does not cite to any instance where a police officer’s trial testimony contradicted that of a lay witness. Thus, Appellant could not have been prejudiced by Juror 143’s statement that he would give more credibility to the testimony of a police officer than to that of a lay witness.

B. Excusal of juror for cause.

The trial court excused Juror 63 because his ability to impose the death penalty was substantially impaired. Juror 63 informed the Court that he would “have a problem with the death penalty,” that he felt it was “wrong,” that he had “personal convictions that weighed heavily against being able to consider it,” and “[m]y gut feeling tells me that I am not one of the people who could impose the death penalty.” Defense counsel attempted rehabilitation by asking Juror 63 whether he could consider the death penalty under any circumstances, to which the juror responded, “I guess I could consider it. However, you know, I really don’t think that I could ever cast my vote to impose that.” The trial court correctly concluded that Juror 63’s views on capital punishment “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quotation and citation omitted); Caudill, 120 S.W.3d at 654.

Y. RIGHT TO BE PRESENT.

RCr 8.28(1) provides:

The defendant shall be present at the arraignment, at every critical stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of the sentence. The defendant’s voluntary absence after the trial has been commenced in his or her presence shall not prevent proceeding with the trial up to and including the verdict....

A defendant’s presence, however, can be waived by counsel. Caudill, supra, at 651; see United States v. Riddle, 249 F.3d 529, 534 (6th Cir.2001) (defense counsel could waive defendant’s right under Fed.R.Crim.P. 43(a) to be present at voir dire). We have also held that a defendant waives the right to be present at an in-chambers hearing by failing to object to his exclusion. Watkins v. Commonwealth, Ky., 105 S.W.3d 449, 453 (2003). That holding applies as well with respect to in-chambers examinations of prospective jurors. Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 274 (1992), overruled on other grounds by Shadowen v. Commonwealth, Ky., 82 S.W.3d 896, 897 (2002). And while challenging jurors for cause is an essential component to the process of empaneling the jury, Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892) (“For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial where the indictment is for a felony, the trial commences at least from the time when the work of empaneling the jury begins.”); United States v. Miller, 463 F.2d 600, 603 (1st Cir.1972) (“The challenging of prospective jurors is an essential part of the trial_”) (Citations omitted.)), a defendant’s exclusion from the jury selection process is subject to harmless error analysis, Riddle, supra, at 535; United States v. Gibbs, 182 F.3d 408, 437 (6th Cir.1999), and will not warrant reversal absent a showing of prejudice. Sanders v. Commonwealth, Ky., 89 S.W.3d 380, 388-89 (2002).

A Pretrial conference.

Appellant was in attendance at a pretrial conference held on June 19, 2000, the day before jury selection began. After the trial court ruled on various matters, including Appellant’s motion to suppress evidence, Appellant was taken from the courtroom and returned to jail. Shortly thereafter, the trial judge sua sponte mentioned to those remaining in the courtroom, including members of the Commonwealth’s Attorney’s office, defense counsel, and several members of the sheriffs office, that a member of the jury panel was a contract attorney for the Department of Public Advocacy (Appellant’s trial counsel were also DPA attorneys). An unidentified person then mentioned that another juror was his sister. Without objection, the trial judge excused both of these prospective jurors for cause. Ward, supra, at 407 (bias implied when prospective juror has “a close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses”). Appellant claims the excusal of these two jurors in his absence violated his right to be present at a critical stage of the trial. However, these jurors were excused for situational bias. Appellant could not have provided any additional information regarding these jurors that would have affected the requirement that they be excused for cause. Since he could have contributed nothing by being present at this “hearing,” he suffered no prejudice because of his absence. Sanders, 89 S.W.3d at 389.

B. Hardship excusáis.

On the morning of June 20, 2000, prior to commencement of voir dire, the trial judge met with counsel for both sides in his chambers to discuss six members of the jury panel who had requested hardship excusáis on their juror qualification forms. Over a period of thirty minutes, the trial judge interviewed each of the six jurors with respect to their requests. He then excused five of the six jurors for hardship reasons. Appellant was not present during these interviews. However, hardship excusáis are within the discretion of the trial judge, Admin. Proc., Part II, § 12(1), and are not required to be decided in open court or in the presence of or in consultation "with any parties or their counsel. Caudill, supra, at 651-52. When a juror requests a hardship excusal on the day of trial, the request “shall be heard in a bench conference,” if the juror so desires or “at the discretion of the court.” Admin. Proc., Part II, § 9(1). A defendant has no constitutional right to participate in these proceedings or to be present when these decisions are made.

C. In-chambers voir dire.

On June 26, 2000, during the course of the general voir dire, three jurors indicated that they had prior knowledge of the case and defense counsel requested that they be further questioned in chambers so as not to “contaminate” the other jurors with their information. When the judge began arrangements for Appellant to be escorted into chambers, defense counsel advised, “Judge, I don’t think he [indicating Appellant] needs to be back there.” Thus, defense counsel expressly waived Appellant’s presence during the ensuing questioning of these jurors in chambers. Riddle, supra, at 535; Caudill, supra, at 651.

Shortly after the conclusion of this in-chambers hearing, the trial judge questioned another prospective juror in chambers while Appellant remained in the courtroom. This juror asserted that she had previously been the victim of a crime and indicated that her experience would affect her ability to be impartial in this case. Defense counsel’s motion to excuse her for cause was sustained. Technically, defense counsel did not repeat the previous waiver of Appellant’s presence at this in-chambers hearing. However, his absence was clearly harmless since the juror was adverse to Appellant’s cause and was excused on motion of defense counsel. No more could have been accomplished had Appellant been present. Riddle, supra, at 535; Gibbs, supra, at 437; Sanders, 89 S.W.3d at 388-89. Nor did Appellant’s absence from this hearing deny him due process of law. “So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that-extent only.” Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934) (emphasis added), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). See also See v. Commonwealth, Ky., 746 S.W.2d 401, 402-03 (1988) (exclusion of defendant from witness competency hearing did not violate rights under Kentucky Constitution). Because Appellant’s presence would have contributed nothing to the result, a fair and just hearing was not thwarted by his absence.

D. Extra-judicial communication with juror.

The jury was finally seated and sworn on Wednesday, June 28, 2000. The trial judge admonished the jurors in accordance with RCr 9.70 “not to permit anyone to speak to, or communicate with [you] on any subject connected with the trial, and that all attempts to do so should he immediately reported by [you] to the court.” (Emphasis added.) Court was then adjourned until Wednesday, July 5, 2000.

On the morning of July 5, 2000, Juror 182 reported to the trial judge that his brother-in-law had, over his protestations, discussed the case with him during a Fourth of July family gathering the previous day. The judge held an in-chambers hearing on this issue with the juror, the prosecutor, and defense counsel while Appellant remained in the courtroom. During the hearing, Juror 182 revealed that his brother-in-law owned a service station and mini-market in Louisville and that Appellant was employed there when the killings occurred (a fact previously unknown to Juror 182). Juror 182’s brother-in-law had also remarked that Appellant had “killed his in-laws” and may have been “under the influence of cocaine or something.” Juror 182 stated that this information would not affect his impartiality because, except for the employment situation, his brother-in-law did not tell him anything that he had not already read in the newspapers. After questioning Juror 182 and eliciting no additional information, defense counsel moved that he be excused as the alternate juror. The motion was denied.

Appellant does not assert that it was error to overrule the motion to excuse Juror 182 but only that he was entitled to be present at the hearing on the motion. However, Appellant did not object to his exclusion, Watkins, supra, at 453; Byrd, supra, at 274, and does not suggest how a fair and just hearing on this issue was thwarted by his absence. Snyder, supra, at 107-08, 54 S.Ct. at 333. There was substantial evidence at trial that Appellant “had killed his in-laws” and no evidence to the contrary. The evidence was also un-contradicted that Appellant’s urine tested positive for cocaine. Juror 182’s brother-in-law was not a trial witness and Appellant does not suggest what other information his former employer might have possessed and imparted to Juror 182 that would have prejudiced the juror against him. Defense counsel unsuccessfully attempted to have Juror 182 excused from the jury and Appellant does not suggest how his presence would have changed that outcome. Sanders, 89 S.W.3d at 388-89 (defendant’s right to due process not violated by exclusion from hearing regarding juror’s acquaintance with victim’s father because there was “nothing that [the defendant] could have done by being present”).

VI. RIGHT TO CONTROL DEFENSE.

Appellant asked the trial court to prohibit defense counsel from presenting any evidence of extreme emotional disturbance (EED) during the course of the trial. In response, defense counsel asked the trial judge to make a determination per Jacobs v. Commonwealth, Ky., 870 S.W.2d 412 (1994), whether Appellant was making a voluntary and intelligent waiver of his EED defense. During an ex parte hearing on the issue outside the presence of the prosecutor, Appellant articulated his position as follows:

Your honor, and if I’m wrong, please quote me that I am wrong. To me, it sounds like I’m taking a guilty plea to trial. I know it’s my right to present a defense of innocence, I believe, the Sixth Amendment. And ah, I talked to [defense counsel] about that continually. And I do understand the circumstances of the case before me, but that’s it.

Appellant’s trial attorneys objected, contending that the evidence warranted an EED defense and that presenting such a defense was in Appellant’s best interests, given the substantial evidence of his guilt. Defense counsel presented testimony from a clinical psychotherapist, David Kegel, who opined that Appellant was not psychotic but had certain “personality limitations” that prevented him from making wise choices. The trial judge granted Appellant’s motion, finding that he had “voluntarily and intelligently” exercised his right not to present an EED defense.

During voir dire, defense counsel did not mention EED as a defense but questioned jurors whether, if they convicted Appellant, they could consider EED as a mitigating circumstance in fixing a penalty. Appellant objected to any voir dire on EED as a mitigating circumstance claiming that such questioning impaired his defense of innocence even though it might be helpful to his sentence. Appellant then moved to either strike every juror who had been questioned about EED as a mitigating circumstance or to have the trial court instruct each juror that his attorney was not referring to him when asking such questions. The trial judge denied Appellant’s motion, explaining that he had authorized defense counsel to question jurors about their abilities to consider mitigating circumstances during the penalty phase of the trial.

At the conclusion of the guilt phase .evidence, Appellant requested against the advice of defense counsel that he be permitted to make his own closing argument. The trial court denied the request as untimely and because he feared Appellant, who did not testify during the trial, would attempt during closing argument to introduce unsworn testimony about matters not in evidence and not subject to cross-examination. Defense counsel presented the guilt phase closing argument. Finally, at the conclusion of the penalty phase evidence, the trial judge ruled that defense counsel could, in his penalty phase argument, attempt to persuade the jury to mitigate Appellant’s sentences because the crimes were committed while he was under the influence of EED.

A. EED as a defense.

Appellant claims that despite his waiver of the EED defense, the trial court erred by refusing defense counsel’s tendered guilt phase instructions that would have included the absence of EED as an element of the offense of murder and an instruction on manslaughter in the first degree as a lesser included offense. The trial court refused the tendered instructions because of Appellant’s prior waiver of the defense.

EED is a defense to the crime of murder. Coffey v. Messer, Ky., 945 S.W.2d 944, 945-46 (1997). The whole thrust of Appellant’s Jacobs argument was that he did not wish to assert EED as a defense because it would impair his defense of innocence — and the trial court found, per Jacobs, that Appellant’s decision was voluntarily and intelligently made. Thus, instructing the jury on the defense of EED would have violated Appellant’s right to control his defense. Furthermore, pursuant to Appellant’s waiver, no evidence had been introduced that would justify the tendered instructions, ¿a, no evidence of uninterrupted EED from a “triggering event” to the killings, Caudill, supra, at 667-68; Fields v. Commonwealth, Ky., 44 S.W.3d 355, 357-59 (2001); Springer v. Commonwealth, 998 S.W.2d at 452-53, and no evidence of a “reasonable explanation or excuse” for Appellant to become so enraged, inflamed, or disturbed as to cause him to kill the Porters. KRS 507.020(1); McClellan v. Commonwealth, Ky., 715 S.W.2d 464, 468-69 (1986). The trial court correctly refused to give the tendered instructions.

B. EED as a mitigating circumstance.

Encompassed within a defendant’s constitutional right to effective assistance of counsel is the right to waive such assistance and proceed pro se. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); Wake v. Barker, Ky., 514 S.W.2d 692, 697 (1974). The foundation of this entitlement is the right of the defendant to control his defense and be the “pilot of the ship.” Jacobs, supra, at 417-18; see also Faretta, supra, at 819-20, 95 S.Ct. at 2533 (“The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”).

In Jacobs, supra, we held that the trial court violated the defendant’s right to control his own defense by permitting defense counsel, over the defendant’s objection, to present an insanity defense. Id. at 417-18. “Neither counsel nor the court has the power to contravene a defendant’s voluntary and intelligent decision to forego an insanity defense.” Id. at 418. Appellant argues that he is entitled to a new trial because this same principle should have precluded defense counsel from inquiring of prospective jurors during voir dire as to whether they could consider EED as a mitigating circumstance and arguing EED as a mitigating circumstance during the penalty phase of his trial. We disagree.

The premise of Jacobs, supra, is that a defendant’s constitutional right to control his defense includes the right to waive the assertion of any defense inconsistent with his claim of innocence. Id. at 418. Jacobs did not address whether that holding extended to a waiver of mitigating evidence during the penalty phase of the trial. At that point, the issue of innocence has been resolved unfavorably to the defendant and the only remaining issue is the degree of punishment to be imposed. Appellant did not object to the instruction on EED as a mitigating circumstance but only to defense counsel’s assertion of it during closing argument — positions that were inherently inconsistent.

The United States Supreme Court has yet to address this particular issue; however, many jurisdictions have upheld a defendant’s right to voluntarily and intelligently waive the presentation of mitigating evidence. E.g., United States v. Davis, 285 F.3d 378, 381 (5th Cir.2002), cert. denied, 537 U.S. 1066, 123 S.Ct. 618, 154 L.Ed.2d 555 (2002); Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th Cir.1992); Silagy v. Peters, 905 F.2d 986, 1008 (7th Cir. 1990); Nelson v. State, 681 So.2d 252, 255 (Ala.Crim.App.1995); People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 715 (1989); Hamblen v. State, h2H So.2d 800, 804 (Fla.1988); State v. Dunster, 262 Neb. 329, 631 N.W.2d 879, 906 (2001); Colwell v. State, 112 Nev. 807, 919 P.2d 403, 406 (1996); State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231, 1236-37 (1999); State v. Arguelles, 63 P.3d 731, 753 (Utah 2003) (“[A] defendant’s Sixth Amendment right to represent himself and control the course of the proceedings carries with it the right to choose how much— if any — mitigating evidence is offered.”). The majority of these cases, however, were decided in the context of a convicted defendant’s claim that he or she was improperly permitted to waive the right to have the jury consider mitigating circumstances. Singleton, supra, at 1321-22 (defense counsel had no obligation to override defendant’s knowing and voluntary waiver of right to present mitigating evidence); Si-lagy, supra, at 1008 (not abuse of discretion to grant competent defendant’s mid-trial motion for self-representation when purpose of motion was to forego presentation of mitigating evidence and seek the death penalty); Bloom, supra, at 713 (same); Grim v. State, 841 So.2d 455, 461 (Fla.2003) (trial court not required to appoint special counsel for purposes of presenting mitigating evidence if defendant knowingly and voluntarily waived the presentation of such evidence); Dunster, supra, at 906 (same); Colwell, supra, at 406 (same); Ashworth, supra, at 1237 (“[Defendant] was competent to waive the presentation of mitigation and ... cannot now rescind that waiver and argue that he is entitled to a new penalty phase because he changed his mind.”); Wallace v. State, 893 P.2d 504, 511-12 (Okla.Crim.App.1995) (affirming where defendant openly sought death penalty and chose to present no mitigating evidence). The issue has also been addressed in the context of a claim that the attorney’s compliance with the defendant’s knowing and voluntary decision not to present mitigating evidence amounted to ineffective assistance of counsel. Zagorski v. State, 983 S.W.2d 654, 657-59 (Tenn.1998).

We find only one case holding that it was error for the trial court to permit the presentation of mitigating evidence over the defendant’s objection. In United States v. Davis, supra, the defendant advised the trial court prior to the penalty phase of his trial that he wished to proceed pro se and to present no mitigating evidence, stating that he would maintain his innocence. When the trial court declined to permit that strategy, the United States Court of Appeals for the Fifth Circuit issued a writ of mandamus recognizing the defendant’s right to self-representation during the penalty phase. When the trial court then appointed independent counsel to present mitigating evidence on the defendant’s behalf, the Court of Appeals issued a second writ prohibiting the appointment of counsel over the defendant’s objection, holding that such violated the defendant’s right to self-representation under Faretta. Id. at 381.

Davis, is distinguishable from the case sub judice in that Appellant never asserted his right to self-representation or expressed a desire to proceed pro se. The denial of a defendant’s right to self-representation is a “structural error” not subject to harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984) (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.”). However, the denial of the right to waive mitigating factors after a finding of guilt does not increase the likelihood of an “outcome unfavorable to the defendant” but rather increases the likelihood that a defendant will avoid the death penalty and receive a lesser sentence. Thus, such denial is not a “structural defect affecting the framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991); see also Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986) (“structural defects” are errors involving basic protections without which “a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ” (emphasis added)). Further, the right to waive mitigating circumstances during the penalty phase of a trial is inherently different from the right to waive a defense inconsistent with a claim of innocence during the guilt phase. Although Appellant claims a reputational interest in maintaining his innocence, he fails to show how his ultimate sentence was prejudiced by counsel’s argument urging the jury to impose a lesser penalty because of mitigating circumstances.

Nor was Appellant’s defense of innocence prejudiced by defense counsel’s inquiry during voir dire as to whether prospective jurors could consider EED as a mitigating circumstance. The inquiry occurred during the “death qualification” of the prospective jurors, an aspect of voir dire that necessarily required the jury to hypothetically assume guilt, and was included within defense counsel’s inquiry with respect to the attitudes of prospective jurors with respect to various mitigating circumstances. Defense counsel did not assert during voir dire that Appellant committed the offenses while acting under the influence of EED but only inquired whether the jurors could consider EED as a mitigating circumstance in the event of a finding of guilt.

C. Closing argument

Wake v. Barker, supra, holds that a defendant may “make a limited waiver of counsel, specifying the extent of services he desires.” Id. at 696. If the defendant makes such waiver knowingly and voluntarily, counsel’s duties are “confined to rendering the specified kind of services (within, of course, the normal scope of counsel services).” Id. However, a defendant who wishes to waive his constitutional right to counsel (or, as here, make a limited waiver) must do so in a timely manner so as not to cause a delay in the proceedings. Robards v. Rees, 789 F.2d 379, 383-84 (6th Cir.1986). See also Faretta, supra, at 835, 95 S.Ct. at 2541 (defendant “clearly and unequivocally” made his request to forego counsel weeks before trial); United States v. McKenna, 327 F.3d 830, 844 (9th Cir.2003) (“A demand for self-representation is timely if made before meaningful trial proceedings have begun .... [A] request is timely if made before the jury is selected or before the jury is empaneled .... ” (Quotation omitted.)); United States v. Young, 287 F.3d 1352, 1354-55 (11th Cir.2002) (defendant’s request to proceed pro se properly denied when request was made after jury selection). The trial court may, of course, grant an untimely request but that is a decision lying within its sound discretion. Robards, supra, at 384. Here, Appellant did not request to make his own closing argument until the conclusion of the guilt phase of the trial. He never specifically asserted his right to self-representation or to proceed pro se. He simply expressed a desire to make his own closing argument. Further, since Appellant had not testified during the trial, the trial judge was legitimately concerned that he might use his closing argument to present unsworn testimony. See Garrett v. Commonwealth, Ky., 48 S.W.3d 6, 16 (2001) (closing argument may not be used to “argue facts that are not in evidence or reasonably inferable from the evidence” (citations omitted)). The denial of Appellant’s belated request to make his own closing argument was not an abuse of discretion.

VII. EVIDENCE ISSUES.

A. Other crimes, wrongs, or acts. KRE J;.0Ji(b).

1. 1996 Burglary charge.

Appellant claims it was reversible error (1) to admit evidence of his 1996 burglary charge in violation of KRE 404(b); (2) to deny his motion to give a limiting admonition to the jury with respect to that evidence in violation of KRE 105; and (3) to admit the evidence despite the Commonwealth’s failure to give adequate notice of its intent to do so in violation of KRE 404(c).

The issue pertains to the criminal complaint charging Appellant with the August 1996 burglary of the Porter residence. As explained, supra, the Oldham District Court dismissed the charge without prejudice subject to certain conditions, including “no contact with the CW [complaining witness].” On August 23,-1999, the Commonwealth filed written notice of its intent to rely on the aggravating circumstance that Appellant “murdered the victims while there was in effect an order by the Oldham District Court designed to protect the victims from [Appellant].” KRS 532.025(2)(a)(8). Appellant subsequently filed a motion in limine that the trial court instruct the Commonwealth to admonish its witnesses not to refer to “inadmissible and unduly prejudicial matters,” including Appellant’s “prior convictions or charges or sentences.” After a pre-trial hearing, the trial court overruled the motion in part, permitting the Commonwealth to introduce evidence of the aforementioned court order and its conditions but prohibiting the Commonwealth from referring to the dismissed charge as either a burglary or a felony.

On three occasions during the trial, the Commonwealth introduced evidence relating to the district court order. First, Officer Ted Speigel of the Oldham County Police Department testified that Armotta told him when he arrived at the Porter residence that Appellant had shot her and that he had previously been arrested on other charges. Second, the Commonwealth introduced a certified copy of the 1996 district court order which was redacted to delete the nature of the charge and that it was a felony. Third, Armotta testified that her father had previously sworn out a criminal complaint against Appellant and that Appellant had agreed to certain conditions in exchange for the dismissal of the charges. Thus, there was no violation of the in limine order with respect to any of this evidence.

The evidence was probative of Appellant’s motive in murdering Mr. and Mrs. Porter and attempting to murder Ar-motta. Evidence of prior misconduct that shows a motive to commit the subsequent offense is admissible under KRE 404(b)(1). Brown v. Commonwealth, Ky., 983 S.W.2d 513, 516 (1999) (evidence of defendant’s prior indictment for flagrant nonsupport admissible as proof of motive to murder his wife); McCarthy v. Commonwealth, Ky., 867 S.W.2d 469, 470 (1993) (evidence that defendant was subject to emergency protective order issued at the behest of his estranged wife admissible “as evidence of motive or state of mind” of defendant charged with assaulting estranged wife and burglarizing her home), overruled on other grounds by Lawson v. Commonwealth, Ky., 53 S.W.3d 534, 544 (2001); Matthews v. Commonwealth, Ky., 709 S.W.2d 414, 418 (1985) (evidence that estranged wife sought and obtained warrant charging defendant with sexual abuse of step-daughter resulting in the issuance of “no-contact” order admissible to prove motive for subsequent murder of estranged wife).

The fact that the order was entered over two years prior to the charged offenses did not bar its admission. “Temporal remoteness generally is held to go to the weight of the evidence, but not to render it inadmissible per se.” Commonwealth v. English, Ky., 993 S.W.2d 941, 944 (1999) (citations omitted). Rather, temporal remoteness is but one factor to be weighed under KRE 403. Id. at 945. The KRE 403 analysis, of course, is committed to the sound discretion of the trial judge and is reviewed only for abuse of discretion. Id. Here, the probative value of the district court order as evidence of Appellant’s animus against the Porters was heightened by the fact that Appellant’s last contact with the Porters before June 29, 1999, was the day the “no contact” order was entered. Thus, this evidence was highly probative of Appellant’s motive and its admission was not an abuse of discretion.

After the trial court overruled his objection to Speigel’s testimony, Appellant asked for a limiting admonition. The request was denied without explanation. While this was error, KRE 105(a), it is subject to harmless error analysis. Epperson v. Commonwealth, Ky., 809 S.W.2d 835, 838 (1990). Considering the overwhelming evidence of Appellant’s guilt and the limited prejudicial effect of this evidence outside of its legitimate purpose to prove motive, the failure to give the limiting admonition was harmless beyond a reasonable doubt.

Appellant also asserts that the Commonwealth failed to provide him with written notice of its intent to introduce the evidence as required by KRE 403(c). However, there is no requirement that such notice be in writing. Tamme, 973 S.W.2d at 31-32. KRE 404(c) is satisfied if the accused is provided “with an opportunity to challenge the admissibility of this evidence through a motion in limine and to deal with reliability and prejudice problems at trial.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.25 (3rd ed.1993). Obviously, Appellant had actual notice since he filed a motion in limine to suppress the evidence. Tamme, supra, at 31-32.

2. Termination of Appellant’s employment and failure to return weapon.

Ed Davis, the manager of Diamond Detective Agency and Appellant’s former supervisor, testified that he hired Appellant to work as a security guard in April 1999 and provided him with a .38 caliber revolver, serial number 2D59496, which was later identified as the same weapon used to kill Mr. and Mrs. Porter. Davis further testified that he terminated Appellant’s employment and thereafter made repeated unsuccessful efforts to obtain the return of the revolver, including the sending of a certified letter to Appellant. Appellant claims that this was improper “character evidence” under KRE 404(b).

We note at the outset that this issue was specifically waived. Before the Commonwealth called Davis to testify, Appellant objected to any testimony from Davis regarding a subsequent civil suit and criminal charge that he filed against Appellant because of the failure to return the weapon. However, Appellant specifically stated that he did not object to Davis’s testimony regarding his failure to return the weapon after the termination of his employment. The prosecutor instructed Davis not to mention the civil suit and criminal charge, and Davis complied with that instruction.

Nevertheless, the fact that Appellant failed to return the .38 revolver upon the termination of his employment was relevant to identify the weapon as the one used to kill Mr. and Mrs. Porter and to link it to Appellant, thus identifying Appellant as the perpetrator of the murders. See Barth v. Commonwealth, Ky., 80 S.W.3d 390, 402-03 (2001) (evidence that defendant flourished weapon on another occasion before using it in assault and robbery admissible under KRE 404(b)(1) as probative of identity of the weapon and of defendant as perpetrator). Davis’s testimony with respect to his unsuccessful attempts to retrieve the weapon was relevant for the same purpose, ie., to show that the weapon was in Appellant’s, not Davis’s, possession at the time the crimes were committed. Evidence that Davis terminated Appellant’s employment was “inextricably intertwined” with the evidence of his unsuccessful attempts to obtain the return of the weapon. KRE 404(b)(2).

Nor was there a KRE 404(c) violation with respect to Davis’s testimony. Appellant made a preliminary objection resulting in the exclusion of certain aspects of Davis’s testimony, ie., that he had sued Appellant and brought criminal charges against him for failing to return the weapon, indicating prior actual knowledge of the substance of that testimony.

B. Hearsay.

1. Excited utterances.

Becky Gilbert, a 911 operator with Old-ham County Central Dispatch, testified that on June 29, 1999, she received a 911 call from an unidentified female who told her only that she had been shot in the back and knee by Miguel Soto and the address from which she was calling — the address of the Porter residence. Gilbert terminated the conversation and dispatched emergency vehicles to the Porter residence. She then obtained and dialed the Porter’s telephone number. The person who answered identified herself as Ar-motta Porter, and Gilbert recognized her voice as that of the same person who made the previous 911 call. A recording of both conversations was played at trial. Appellant first claims that both conversations were inadmissible hearsay. We conclude that the conversations were within the “excited utterance” exception to the hearsay rule. KRE 803(2).

An “excited utterance” is a statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. The eight “most significant” factors used to determine whether a statement is an excited utterance are:

(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.

Jarvis v. Commonwealth, Ky., 960 S.W.2d 466, 470 (1998) (citation omitted). These criteria serve only as a guideline for admissibility and are not a bright-line test. Id. The trial court did not err in finding that Armotta’s statements to Gilbert were excited utterances. Armotta called the 911 operator immediately after being shot, with little time for reflection or deliberation. The tone of her voice on the 911 recording indicates that she was distraught, in substantial pain, and extremely excited. She had little inducement to fabricate as she was seeking police protection from her attacker and medical attention for her wounds. Her identification of Appellant as her assailant was spontaneous and not in response to an inquiry. See Wells v. Commonwealth, Ky., 892 S.W.2d 299, 302 (1995) (statements made by stabbing victim to 911 operator and treating EMT made within minutes of stabbing properly admitted as excited utterances).

At approximately 6:30 p.m., Speigel arrived at the Porter residence in response to the 911 call. Speigel testified that he found Armotta standing in the doorway, bleeding from the abdomen, and holding her infant daughter. Armotta told him that her ex-husband had shot her while they were in the garage, that he had said he had killed her parents,⁵ and that she did not know where he was. These statements were admissible as excited utterances for the same reasons as the statements made during the 911 call. Robey v. Commonwealth, Ky., 943 S.W.2d 616, 618-19 (1997) (statements made by rape victim minutes after rape occurred admissible as excited utterances); Wells, supra, at 302; Dawson v. Commonwealth, Ky.App., 867 S.W.2d 493, 496 (1993) (assault victim’s statements to police officer who arrived five minutes after assault admissible as excited utterances); cf. Curtis v. Commonwealth, Ky., 474 S.W.2d 394, 396 (1971) (statements by victim to police officers who arrived at victim’s home approximately thirty minutes after shooting admissible as res gestae).

2. DD Form 21⅛.

Renae Harrison had been married to Appellant for four years during which both were active duty members of the United States Army. She identified Appellant’s signature on a document entitled “Certificate of Release or Discharge from Active Duty,” otherwise known as a DD (Department of Defense) Form 214, purportedly issued on November 15, 1994, to Appellant (identifying him by name, date of birth, July 5, 1971, and social security number, 553-13-2137) and listing various awards and certifications earned by him, including a “.45 cal. sharpshooter badge” (the same type of weapon used to shoot Armotta). Appellant first asserts that the information contained in the DD Form 214 was inadmissible hearsay. However, a DD Form 214 is an official record of a public agency, 10 U.S.C. § 1168; 32 C.F.R. § 45.1, thus, its contents were admissible under the public records exception to the hearsay rule. KRE 803(8).

3. Hearsay objections sustained.

Detective Randy Blanco was the chief investigator of the crime scene. When asked by the prosecutor to summarize the steps he took during his investigation, Bianco testified, inter alia, that Hoskins told him that Appellant was the person mentioned in the 911 call and that he had “turned himself in.” Bianco further testified that he contacted Speigel by cellular telephone and was advised that Armotta had told Speigel that Miguel Soto had shot her in the back from a distance of approximately four feet.

Appellant objected to this testimony as hearsay and the trial judge sustained the objection. Appellant did not request an admonition to the jury to disregard the evidence; thus, no error occurred. Tamme, supra, at 35; Hayes v. Commonwealth, Ky., 698 S.W.2d 827, 829 (1985) (“Merely voicing an objection, without a request for a mistrial or at least for an admonition, is not sufficient to establish error once the objection is sustained.”). Absent countervailing evidence, the failure to request a limiting admonition is regarded as a trial tactic, Sanders, 801 S.W.2d at 668, intended to avoid calling further attention to the improper evidence. See also Caudill, 120 S.W.3d at 658; Hall v. Commonwealth, Ky., 817 S.W.2d 228, 229 (1991), overruled on other grounds by Commonwealth v. Ramsey, Ky., 920 S.W.2d 526, 527 (1996).

A Harmless hearsay.

Roxanne Fisher, Armotta’s older sister and Mr. and Mrs. Porter’s eldest daughter, testified that she telephoned her parents at their home at approximately 5:10 p.m. on the evening of their murders and spoke to both of them over the course of approximately twenty minutes. She testified that her father told her that they had recently arrived home from the doctor’s office. We agree that the statement was hearsay, Slaven v. Commonwealth, Ky., 962 S.W.2d 845, 854 (1997), but conclude that it was harmless beyond a reasonable doubt. Appellant claims the jury could have inferred from this statement that Appellant arrived at the Porter property before Mr. and Mrs. Porter returned home and lay in wait for them like a stalking animal. If so, the inference was no more prejudicial than Appellant’s admission during his recorded confession that he, in fact, hid in the tool shed and killed Mr. Porter when he unsuspectingly entered it.

C. Authentication.

1. 911 call.

The recording of the 911 call from Armotta to Gilbert was properly authenticated. A party may authenticate a telephone conversation:

[B]y evidence that a call was made to the number assigned at the time by the telephone company to a particular place or business if: ’

A) In the case of a person, circumstances, including self-identification, show the person answering to be the one called;

KRE 901(b)(6)(A). Here, as in Crowe v. Commonwealth, Ky., 38 S.W.3d 379 (2001), the initial conversation was by way of an incoming call to a person who could not identify the caller by voice recognition. Crowe held that KRE 901(b)(6)(A) does not apply to incoming telephone calls and that mere self-identification by the caller is insufficient to identify the caller. Id. at 383. “Identification of a party to an incoming telephone call is authenticated if the recipient of the call recognizes the voice of the caller or is otherwise able to connect the voice with the caller.” Id. (emphasis added). However, when Gilbert made the return call to the telephone number listed for the address given to her by the initial caller and the same person answered and identified herself, such was sufficient to identify Armotta as both the initial caller and the recipient of the return call. See Osborne v. Commonwealth, Ky., 43 S.W.3d 234, 242 n. 3 (2001) (911 call from defendant’s mother properly authenticated where operator made return call to number provided by mother and same person answered).

2. DD Form 21k..

Appellant’s DD Form 214 was properly authenticated despite the fact that it was neither certified nor attested and was not introduced by the custodian of the record. As an official record, the DD Form 214 was self-authenticating under KRE 902(4), viz:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

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(4) Official records. An official record or an entry therein when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by an official having the legal custody of the record. ...

(Emphasis added.) The emphasized language means that a public record need not be further authenticated if the original document is introduced.⁶ Pa. State Police v. 139 Horseshoe Corp., 157 Pa.Cmwlth. 283, 629 A.2d 290, 294 (1993).

A DD Form 214 is issued directly to the discharged servicemember or “his next of kin or legal representative.” 10 U.S.C. § 1168. Harrison testified from her own personal experience as a discharged servicemember that the person to whom the DD Form 214 is issued is required to sign it upon receipt. The recipient may then record the document for safekeeping in the local county clerk’s office. KRS 422.090(1). While different procedures would be required to authenticate a copy of the document, see KRS 422.090(2); KRE 902(4), the only authentication required of the original is evidence sufficient to prove that it is, in fact, the original document. KRE 901(a). The document in question is obviously an original and not a copy. Its identification of Appellant by name, date of birth, and social security number, accompanied by Harrison’s identification of his signature on the document, sufficed to identify it as the original DD Form 214 issued to Appellant upon his discharge from the United States Army.

3. Dumpster documents.

Detective Larry Congelton of the Old-ham County Police Department testified that he searched a dumpster located in the parking lot of the Crestwood Recruiting Station where Appellant had parked his automobile on June 29, 1999, before proceeding on foot to the Porter residence. The search produced a number of documents that appeared to belong to Appellant, including various military records containing Appellant’s name and social security number, as well as two original documents purportedly prepared by Appellant, himself. These latter two documents were admitted into evidence over Appellant’s objection that they were not properly authenticated as having been authored by him.

The first document, typewritten except for a signature purporting to be that of Appellant and Appellant’s handwritten social security number, reads as follows:

I, Miguel Angel Soto, being of mind sound and body, hereby writes [sic] my last will and testimony. To my oldest daughter, Kristie Denae Soto, I leave all my personal belongings. For all three of my daughters, Kristie Denae Soto, Kaylynn Michelle Soto, and Brianna Nicole Porter, I leave any benefits acquired from the military.

/s/ Miguel Angel Soto

553132137

The second document, typewritten and unsigned, was partially redacted to delete a reference to a prior criminal offense for which Appellant was convicted in 1996 in Jeffersonville, Clark County, Indiana. The document begins as follows:

Hello everyone.

My name is Miguel Angel Soto, also known as Mickey to my friends or SO-TOPOP to all my internet friends. This letter is a final goodbye to all that believed in my dreams of getting back into the fives of my children.

The author then expresses frustration over not having custody of the children and blames unidentified ex-wives for that fact. The document continues:

I had a fist of all the people that I planned on destroying, but I knew that I would only be able to Take [sic] care of one person, so I drew a name out of the hat, you all know who won. The following names are the lucky non winners, I hope they five their fives better, knowing that they have a second chance:

The document then fists the “lucky non winners” as Renae Harrison, Richard Paul Harrison, and Linda Kay Harrison, Ar-mott Porter and Edna Porter, two members of the Clark County, Indiana, Sheriffs Department, and a former Clark County, Indiana, prosecutor. The document concludes:

I do love my daughters, Kristie, Kay-lynn and Brianna, but if I cannot be part of their fives, then I don’t want to be living on this planet. God knows what I’ve been through, so that is why I am not scared. Goodbye all and I will see you all in a better place.

Of course, conspicuously absent from the list of “lucky non winners” was the name of Armotta Porter, damning evidence of Appellant’s premeditated intent to kill her.

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” KRE 901(a). Appellant asserts that the provisions of KRE 901(b), titled “Illustrations,” required the Commonwealth to produce evidence that Appellant’s signature on the “last will” was genuine. He theorizes that KRE 901(b)(2), which allows a party to authenticate a document by non-expert opinion as to the genuineness of the handwriting, and KRE 901(b)(3), which allows authentication through “[cjomparison by the trier of fact or by expert witnesses with specimens which have been authenticated,” are the only methods by which these documents can be authenticated. He is mistaken.

While KRE 901(b)(2) and (3) indeed describe methods by which a document may be authenticated, those methods are not exclusive. “The specific illustrations [of KRE 901(b) ] are not to be viewed as all-inclusive.” Lawson, supra, at § 7.05. In the absence of direct evidence as to a writing’s authenticity, a document may be authenticated by a wide variety of means, including circumstantial evidence. See Fanelli v. Commonwealth, Ky., 418 S.W.2d 740, 744-45 (1967) (circumstantial evidence sufficient to authenticate checks allegedly signed by defendants, even absent testimony from handwriting experts or persons familiar with defendants’ signatures); Lawson, supra, at § 7.05 (“[T]here is no end to the ways in which the circumstances surrounding a writing might tend to show authenticity.”). In addition, distinctive characteristics of the writing, in conjunction with the circumstances, may assist in its authentication. KRE 901(b)(4) (“Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”); Lawson, supra, at § 7.05; see also United States v. Wilson, 532 F.2d 641, 644 (8th Cir.1976) (“Under [PRE 901(b)(4) ], the contents of a writing may be used to aid in determining the identity of the declarant.”).

Both documents were found at a location where Appellant was known to have been just prior to the murders and were found along with other military documents containing Appellant’s name, date of birth, and social security number. Both documents identified Appellant’s children by name. Both evidenced a belief in the writer’s pending demise, a fact corresponding to Appellant’s having discarded most of his personal effects because he would not need them “where he was going.” The “last will” contained Appellant’s purported signature and handwritten social security number, and made reference to his military service. The “final goodbye” described events that occurred in Appellant’s life, including his lack of visitation with his children and his 1996 conviction in Jeffer-sonville, Indiana. The “lucky non winner’s list” included persons connected to Appellant’s past, i.e., an ex-wife, former in-laws, arresting officers, and a former prosecutor. Specifically, it included the two persons Appellant was accused of murdering. This circumstantial evidence sufficed to identify Appellant as the author of both documents.

D. Rule of Completeness.

Monica Nahand testified that Appellant lived with her and her three children in Jeffersonville, Indiana, until she asked him to leave on June 26, 1999. During that period, Appellant told Nahand that he was writing a “story” that was handwritten on forty-three pages of a legal pad and asked if he could type it into her computer. She agreed, but Appellant did not finish the task. After Appellant moved out of her residence, Nahand found pages fourteen through forty-three of the handwritten “story” in her house. The first thirteen pages had been torn out of the legal pad. After the Porter murders, Nahand delivered the remainder of the legal pad to the police. She disclaimed any knowledge of the fate of the first thirteen pages.

At trial, Nahand identified Appellant’s handwriting on page forty-three, and that page was admitted as evidence of Appellant’s animus against Armotta. It described a scenario in which “Armotta had walked into her bedroom, grabbed the .357 magnum that her father had given her for protection and done [sic] something that she nearly forced Miguel to do 3 times. She placed the muzzle to her left temple, and pulled the trigger.” Appellant claims that the admission of page forty-three violated KRE 106, the so-called “rule of completeness,” because the first thirteen pages of his “story” were missing, thus depriving him of the opportunity to introduce the complete document.

KRE 106 provides that when a party introduces a portion of a writing or recorded statement, the adverse party may “require the introduction at that time of any other part ... which ought in fairness to be considered contemporaneously with it.” KRE 106 is a rule of admission, not exclusion. It allows a party to introduce the remainder of a statement offered by an adverse party for the purpose of putting the statement in its proper context and avoiding a misleading impression from an incomplete document. Lawson, supra, at § 1.20 (“The objective of [KRE 106], in other words, is to prevent a misleading impression as a result of an incomplete reproduction of a statement or document.”). It does not require the exclusion of a relevant portion of a document because other portions cannot be found. Furthermore, even if the entire document were available, KRE 106 would require the admission of only that portion which concerns the part introduced by the adverse party. Young v. Commonwealth, Ky., 50 S.W.3d 148, 169 (2001). See also United States v. Littwin, 338 F.2d 141, 146 (6th Cir.1964) (rule of completeness “is subject to the qualification that only the other parts of the document which are relevant and throw light upon the parts already admitted become competent upon its introduction. There is no rule that either the whole document, or no part of it, is competent.” (Citations omitted.)). The real issue is whether the excluded portion alters the portion already introduced. Young, supra, at 169; Commonwealth v. Collins, Ky., 933 S.W.2d 811, 814 (1996). Appellant (who authored the missing pages) does not suggest how the missing pages would have altered the portion that was introduced. Thus, there was no violation of KRE 106.

E. Relevancy.

1. Testimony ofRenae Harrison.

In addition to identifying Appellant’s signature on the DD Form 214, Harrison testified that she and Appellant had two daughters, Kristie, then age eight, and Kaylynn, then age six, whom Appellant had not seen since November 1995. Appellant challenges the relevancy of this evidence; however, proof that Appellant had two children named Kristie and Kay-lynn Soto and that he had not seen them since 1995 was relevant to the authentication of the “last will” and “final goodbye” documents, supra. Unlike Appellant, we are unable to conclude that the jury must have inferred some sinister connection from the fact that Appellant’s last visit with his older children coincided with his separation from Armotta.

2. Testimony of David Poussant.

In April 1999, three months before the murders, David Poussant was a military policeman stationed with Appellant at Fort Knox, Kentucky. He was acquainted with both Appellant and his ex-wife, Harrison. Poussant testified that Appellant told him that he loved his children and “would do anything to get them back,” and, on another occasion, to pray for him and not to be “surprised if you see me in the news sometime.” Appellant challenges Poussant’s testimony as irrelevant. However, the statements, when considered in conjunction with the previously admitted “story” and “list of lucky non winners,” were probative of the Commonwealth’s theory that Appellant intended to Mil Armotta in revenge for denying him visitation with Brianna.

S. Humanizing evidence.

Appellant recites numerous complaints regarding the claimed irrelevancy of evidence that “humanized” the victims and described the horrific nature of their injuries. “We have stated many times that evidence that a murder victim was not a mere statistic but an individual human being with a personality and activities does not unduly prejudice the defendant or inflame the jury.” Caudill, 120 S.W.3d at 662 (citations omitted); see also Adkins v. Commonwealth, Ky., 96 S.W.3d 779, 794 (2003); Stopher v. Commonwealth, Ky., 57 S.W.3d 787, 802-03 (2001); Love v. Commonwealth, Ky., 55 S.W.3d 816, 827 (2001); Hodge, 17 S.W.3d at 847; Bowling v. Commonwealth, Ky., 942 S.W.2d 293, 302-03 (1997). Further, testimony describing the nature of the wounds and the cause of death or injury is relevant to prove the corpus delicti. Caudill, supra, at 659. Armotta’s testimony regarding her life experiences, employment, and family leading up to the events of June 29,1999, was also relevant background evidence. The trial court did not abuse its discretion in admitting this evidence. KRE 403; English, 993 S.W.2d at 945 (citations omitted).

VIII. GUILT PHASE INSTRUCTIONS.

In addition to the failure to instruct on EED and manslaughter in the first degree, discussed in Part VI of this opinion, supra, Appellant asserts that the trial court erred in not instructing the jury on wanton murder as an alternative to intentional murder and on second-degree manslaughter and second-degree assault as lesser included offenses.

A. Wanton Murder.

A person commits wanton murder when “under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a, grave risk of death to another person and thereby causes the death of another person.” KRS 507.020(l)(b). An instruction on wanton murder has been held appropriate where there was evidence that the defendant fired a weapon at the victim but without an intent to kill. Carwile v. Commonwealth, Ky., 656 S.W.2d 722, 723-24 (1983). However, a theory unsupported by the evidence is not entitled to an instruction. Pilon v. Commonwealth, Ky., 544 S.W.2d 228, 231 (1976). There was no evidence that Appellant shot either Mr. or Mrs. Porter without an intent to kill. Both were shot twice at close range and Appellant did not claim in his confession that he did not intend to kill them.

B. Manslaughter in the second degree and assault in the second degree.

Appellant asserts that he was entitled to an instruction on manslaughter in the second degree as a lesser included offense of murder and on assault in the second degree as a lesser included offense of attempted murder because the jury could have believed that he was so intoxicated that he did not form the requisite intent to commit the charged offenses. Evidence of voluntary intoxication does not serve to acquit the defendant, but if it negates the element of intent, reduces the offense to one having a mens rea of wantonness. Caudill, supra, at 669; Slaven, 962 S.W.2d at 856-57. An instruction on voluntary intoxication is warranted only when there is “evidence not only that the defendant was drunk, but that [he] was so drunk that [he] did not know what [he] was doing.” Springer, 998 S.W.2d at 439 (emphasis added) (citations omitted).

Appellant presented no evidence to satisfy that requirement. He cites his confession, in which he often changed the subject and once stated that he “got drunk.” He also cites his urine test, which registered positive for POP, cocaine, and amphetamines, and his blood test, which registered positive for diphenhydramine, an antihistamine. However, there was a plethora of evidence establishing that Appellant gave no indication of being intoxicated and that he knew exactly what he was doing and no evidence to the contrary. He parked his car and walked three miles to the Porter residence. He hid in a tool shed to escape immediate detection. After shooting Mr. and Mrs. Porter, he concealed their bodies and the weapon used to kill them and lay in wait for Armotta. After shooting Armotta, he had the presence of mind to flee the scene and conceal the second weapon in a creek. He was able to find Mitch Nobles’s residence, a place he had not visited for almost three years. These are not the actions of a man so intoxicated that he did not know what he was doing. Compare Slaven, supra, at 856-57 (evidence that defendant consumed “substantial quantities” of alcohol, Xanax, and marijuana, in addition to testimony that defendant was “wild and mumbling” and “pretty doped up” prior to the murder warranted instruction on second-degree manslaughter).

IX. PENALTY PHASE ISSUES.

A. Aggravating circumstances.

1. “No contact” order.

Appellant asserts that his violation of the 1996 district court “no contact” order did not qualify as an aggravating circumstance under KRS 532.025(2)(a)(8).⁷ He argues that the order was no longer “in effect” at the time of the murders. He is mistaken.

KRS 532.025(2)(a)(8) is a recent addition to the statutory list of aggravating circumstances, 1998 Ky. Acts, ch. 606, § 72, and applies when:

The offender murdered the victim when an emergency protective order or a domestic violence order was in effect, or when any other order designed to protect the victim from the offender, such as an order issued as a condition of a bond, conditional release, probation, parole, or pretrial diversion, was in effect.

(Emphasis added.) This provision is not limited, as Appellant claims, to emergency protective orders and domestic violence orders. It is reasonable to assume that the “no contact” order in question was designed to protect Mr. Porter from retaliation by Appellant for causing him to be arrested for burglary. Thus, its violation fell within the parameters of KRS 532.025(2)(a)(8).

Appellant notes that a district court lacks the authority to make a final disposition of a felony charge. KRS 24A.110(l)(a); Commonwealth v. Stephenson, Ky., 82 S.W.3d 876, 887-88 (2002). However, the district court has concurrent jurisdiction with the circuit court to examine any felony charge and “to commit the defendant to jail or hold him to bail or other form of pretrial release.” KRS 24A.110(3). This concurrent jurisdiction, of course, expires upon the issuance of an indictment by a grand jury, Commonwealth v. Karnes, Ky., 657 S.W.2d 583, 583-84 (1983), a circumstance that did not occur in this case. Further, because the district court order dismissed Appellant’s charge “without prejudice,” it did not finally dispose of it. There is no statute of limitations for a felony offense, KRS 500.050(1), and the charge could be refiled at any time that Appellant violated the conditions of dismissal. Cf. Means v. Commonwealth, 256 Ky. 30, 75 S.W.2d 546, 549 (1934) (indictment dismissed on condition that defendant leave the state properly reinstated upon nonperformance of that condition).

Appellant cites KRS 533.020(4) for the proposition that a period of probation or conditional discharge of a misdemeanor expires after two years. Of course, (1) the charge was not a misdemeanor; and (2) it was neither probated nor conditionally discharged as Appellant was never convicted. We conclude that the “no contact” order had not expired and that the trial court correctly instructed the jury that a murder committed while violating that order was an aggravating circumstance authorizing capital punishment.

2. Burglary in the first degree.

Appellant asserts that the trial court improperly instructed the jury on the aggravating circumstance that he murdered Mr. Porter while engaged in the commission of burglary in the first degree. KRS 532.025(2)(a)(2). Appellant premises this argument on the fact that he killed Mr. Porter before entering the Porter residence, thus did not kill him while committing first-degree burglary.⁸ KRS 511.020(1) provides:

(1) A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:

(a) Is armed with explosives or a deadly weapon; or

(b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.

(Emphasis added.) KRS 511.010(1) defines a “building” as follows:

“Building,” in addition to its ordinary meaning, means any structure, vehicle, watercraft or aircraft;

(a) Where any person lives; or

(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation.

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(Emphasis added.) KRS 511.010(2) separately defines a “dwelling” as “a building which is usually occupied by a person lodging therein,” indicating that “building” encompasses a broader category of structures than “dwelling.” This conclusion is reinforced by the legislative history of KRS 511.020(1). As originally enacted, the statute provided that burglary in the first degree could be committed only by entering or remaining in a “dwelling” under the presently defined aggravating circumstances or at night. 1974 Ky. Acts, ch. 406, § 97. Entry into or remaining in a “building” under the presently defined aggravating circumstances constituted burglary in the second degree. 1974 Ky. Acts, ch. 406, § 98. The statute was amended in 1978 to provide that burglary in the first degree could be committed either by unlawfully entering or remaining in a “dwelling” with the intent to commit a crime therein, or by entering or remaining in a “building” under the presently defined aggravating circumstances. 1978 Ky. Acts, ch. 406, § 97. Finally, in 1980, unlawfully entering or remaining in a “dwelling” with the intent to commit a crime therein was redefined as burglary in the second degree, KRS 511.030(1), but entering or remaining in a “building” under the presently defined aggravating circumstances remained burglary in the first degree. 1980 Ky. Acts, ch. 376, §§ 2, 3.

Since burglary in the first degree does not require entering or remaining in a “dwelling,” e.g., the Porter residence, the inquiry becomes whether the tool shed in which Mr. Porter was murdered falls within the “ordinary meaning,” KRS 511.010(1), of a “building.” “[T]he first-degree burglary statute applies to every structure that meets the definition of a building as used in common parlance, without regard to whether it is inhabited or inhabitable.” Funk v. Commonwealth, Ky., 842 S.W.2d 476, 482-83 (1992) (abandoned, condemned, and uninhabited building is a “building” for purposes of KRS 511.020(1)). The dictionary definition (“ordinary meaning”) of “building” is:

[A] constructed edifice designed to stand more or less permanently, covering a space of land, usually covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals or other useful structure— distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.⁹

Webster’s Third New International Dictionary of the English Language Unabridged 292 (Merriam-Webster 1993) (emphasis added).

There was evidence that Appellant unlawfully entered the tool shed and that he remained therein with the intent to commit a crime when he formulated the intent to kill Mr. Porter; and that while in the building, he was armed with a deadly weapon and caused physical injury to a person not a participant in the crime. Thus, he killed Mr. Porter while engaged in the commission of burglary in the first degree—even though it was not the same burglary of which he was separately convicted.

Even if Appellant were correct with respect to either of these aggravating circumstances, the error would be harmless because the jury also found the aggravating circumstance of multiple intentional deaths, KRS 532.025(2)(a)(6), which was unquestionably applicable to the murders of both Mr. and Mrs. Porter. Barclay v. Florida, 463 U.S. 939, 956, 103 S.Ct. 3418, 3428, 77 L.Ed.2d 1134 (1983); Zant v. Stephens, 462 U.S. 862, 884-89, 103 S.Ct. 2733, 2747-49, 77 L.Ed.2d 235 (1983); Bevins v. Commonwealth, Ky., 712 S.W.2d 932, 935-36 (1986).

B. Other penalty phase instructions.

1. Mitigating circumstances—non-unanimity.

“There is no requirement that a capital penalty jury be instructed that its findings on mitigation need not be unanimous.” Caudill, supra, at 674-75; Mills, 996 S.W.2d at 492; Tamme, 973 S.W.2d at 37; Bowling v. Commonwealth, Ky., 873 S.W.2d 175, 180 (1993).

2. Non-statutory mitigating circumstances.

Appellant asserts that the trial court erred by refusing to instruct the jury specifically with respect to each non-statutory mitigating circumstance claimed by Appellant, such as his deprived family background and military service. However, in addition to instructing on the applicable statutory mitigating circumstance, the trial court instructed the jury that it could consider “[a]ny other circumstance or circumstances arising from the evidence which you, the jury, deem to have mitigating value.” Having so instructed the jury, the trial court was not required to give specific instructions regarding additional non-statutory mitigating circumstances claimed by Appellant. Haight v. Commonwealth, Ky., 938 S.W.2d 243, 248 (1996); Bowling, 873 S.W.2d at 180.

8. Aggravating circumstances — unanimous verdict.

Penalty phase instruction number 12 instructed the jury that:

You must reach a separate verdict on each count described in these instructions and a separate verdict on your recommendation as to whether the sentence should run concurrently or consecutively. Each verdict must be in writing, must be unanimous and must be signed by one of you as foreperson.

(Emphasis added.) Verdict forms 6C, 6D, and 6E, as well as verdict forms 7C, 7D, and 7E, were provided for use by the jury if it found beyond a reasonable doubt that any of the three enumerated aggravating circumstances existed. It was not necessary that each verdict form also instruct the jury that the verdict written on that form must be unanimous. Instruction number 12 informed the jury of that requirement.

Further, the fact that instruction number 12 required that each verdict be unanimous did not create “a substantial probability that reasonable jurors, upon receiving the judge’s instructions ... well may have thought that they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” Mills v. Maryland, 486 U.S. 367, 384, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988). An instruction “may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991) (quotations omitted). The unanimity instruction specifically referred to each verdict. It did not instruct the jury that its findings must be unanimous or that it must reach a verdict on mitigating circumstances. Compare Gall v. Parker, 281 F.3d 265, 325-26 (6th Cir.2000) (trial court’s instructions violated Mills, supra, by requiring jury’s “findings and verdict” to be unanimous and requiring jurors to select “yes” or “no” as to existence of select mitigating factors) (emphasis added), overruled on other grounds by Bowling v. Parker, 344 F.3d 487, 501 (6th Cir.2003), with Slaughter v. Parker, 187 F.Supp.2d 755, 814-15 (W.D.Ky.2001) (distinguishing Gall, supra, and upholding instructions identical to those given in this case).

4. Balancing of aggravating and mitigating circumstances.

“The trial judge is not required to instruct the jury that aggravating circumstances must outweigh mitigating circumstances.” Hodge, 17 S.W.3d at 854 (citations omitted); see also Stopher, 57 S.W.3d at 807; Ice v. Commonwealth, Ky., 667 S.W.2d 671, 678 (1984).

5. Concurrent/consecutive sentence recommendation.

Appellant claims instruction number 12 and verdict form 12A, instructing the jury to recommend whether Appellant should serve his sentences concurrently or consecutively, denigrated the jury’s responsibility in imposing the death penalty. Tamme v. Commonwealth, Ky., 759 S.W.2d 51, 53 (1988). However, the jury “fixed” Appellant’s sentences in their other verdicts. KRS 532.055(2) specifically requires that the jury only “recommend” whether the sentences it has fixed should run concurrently or consecutively. Of course, a death sentence cannot run concurrently or consecutively with another sentence; thus, the recommendation would only apply to the murder convictions if the jury returned a verdict of a term of years, a circumstance that did not occur here.

Although Foley v. Commonwealth, Ky., 942 S.W.2d 876 (1996), held that KRS 532.055(2) does not apply in capital cases, it did not hold, as Appellant asserts, that it is error for the trial court to give the instruction during the penalty phase of a capital trial. Foley only held that the trial court did not err in failing to give the instruction. Id. at 886. Here, the capital penalty phase was combined with the so-called “truth-in-sentencing” phase of the trial because Appellant was convicted not only of two capital offenses but also of two Class B felonies and two Class D felonies. In view of the sentences of death for the capital offenses, the trial court properly treated the consecutive sentence recommendation as applicable only to the sentences for the lesser offenses.

6. Capital punishment verdict forms.

Appellant argues that the trial court’s capital verdict forms improperly directed the jury to automatically impose an aggravated penalty upon the finding of an aggravating circumstance. We have considered and rejected this argument on numerous occasions and continue to adhere to our prior holdings. E.g., Caudill, supra, at 674-75; Hodge, supra, at 854; Foley, 942 S.W.2d at 888-89.

C. Cross-examination of Angel Soto.

Angel Soto, Appellant’s older brother, testified during the penalty phase that he and Appellant were both physically and psychologically abused by their foster parents and that, as a result, he (Angel) had difficulty controlling his own anger. The following colloquy occurred during cross-examination by the prosecutor:

Q. And despite the treatment and abuses that you have described earlier, I assume that you do not beat your wife, do you?

A. No sir.

Q. You do not beat your nine-year-old daughter?

A. No sir.

Q. And you have never murdered two people?

A. No sir.

Contrary to Appellant’s assertion, this line of questioning did not exceed the wide latitude afforded to parties on cross-examination. KRE 611(b); Bray v. Commonwealth, Ky., 68 S.W.3d 375, 384-85 (2002); Commonwealth v. Maddox, Ky., 955 S.W.2d 718, 721 (1997). The purpose of Angel’s testimony on direct examination was to imply that Appellant’s abusive family background caused him to shoot his ex-wife and murder his former in-laws. The Commonwealth was entitled to rebut this premise by showing that, despite sharing the same background, Angel had not been moved to commit similar crimes of violence. The trial court did not abuse its discretion in permitting this line of questioning. Bray, supra, at 384-85; Maddox, supra, at 721.

X. ALLEGED PROSECUTORIAL MISCONDUCT.

Appellant alleges several instances of “prosecutorial misconduct” during the Commonwealth’s guilt and penalty phase closing arguments. All of these allegations are meritless.

Any consideration on appeal of alleged prosecutorial misconduct must center on the overall fairness of the trial. In order to justify reversal, the misconduct of the prosecutor must be so serious as to render the entire trial fundamentally unfair.

Stopher, supra, at 805 (citations omitted).

During his guilt phase argument, the prosecutor characterized Appellant’s claim of voluntary intoxication due to the consumption of antihistamines as the “drowsy defense.” “A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position.” Slaughter v. Commonwealth, Ky., 744 S.W.2d 407, 412 (1987). The prosecutor’s comment was mild compared to other comments that we have declined to characterized as misconduct. E.g., Stopher, supra, at 806 (classification of defense theory as “stupid”); Luttrell v. Commonwealth, Ky., 952 S.W.2d 216, 218 (1997) (characterization of defense witnesses’ testimony as a “story”); Slaughter, supra, at 412 (criticism of defense counsel for presenting a “great octopus defense” and “pulling a scam”).

It was not improper for a prosecutor to comment on the thoroughness of the police investigation — especially where, as here, defense counsel accused the police of misconduct and characterized their investigation as “shoddy.” The prosecutor did not comment about evidence outside of the record when he stated that Appellant was “lucky” he was not charged with attempted murder of Brianna. The remark was made while discussing the strength of the evidence supporting the charge of wanton endangerment in the first degree, i.e., the firing of shots through the garage door knowing that Brianna was somewhere on the other side of the door:

In the certain knowledge that his little daughter, who he professed to love so much and wanted to see so badly, was right in the pathway, right in the line of fire. And when he fired through that door, for all he knew, she could have been laying on the floor, right behind the door in the path of that bullet— thank God she wasn’t. Wanton endangerment? He’s lucky it’s not attempted murder of his child.

The statement was not a comment on evidence outside the record but a comment on the weight of the evidence indicating Appellant’s guilt. Woodall v. Commonwealth, Ky., 63 S.W.3d 104, 125 (2001); Slaughter, supra, at 412.

The prosecutor’s comment during his penalty phase closing argument thanking the jury on behalf of the Commonwealth, the victims’ family, the police, and the community, for the time and effort spent in the performance of their duties as jurors was not misconduct. This type of comment, though gratuitous, hardly rises to the level of argument that “tends to cajole or to coerce a jury to reach a verdict which would meet with the public favor.” Jackson v. Commonwealth, 301 Ky. 562, 192 S.W.2d 480, 482 (1946) (citations omitted). “A prosecutor may call on the jury to do its duty.” Slaughter, supra, at 412 (citations omitted). Nor did the prosecutor’s reference to the jury’s “prayerful deliberations” improperly inject religion into the court proceedings. See Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 707 (1994) (no reversible error in Commonwealth’s frequent biblical references during closing argument), overruled on other grounds by Commonwealth v. Barroso, Ky., 122 S.W.3d 554, 563-64 (2003).

Nor did the following statement during the prosecutor’s penalty phase argument constitute misconduct:

It goes without further saying or imploring that the representatives of the Commonwealth believe that the law justifies, permits, and the evidence warrants imposition of the death penalty in this case and the imposition of maximum penalties on the remaining charges. It is a serious decision. It is one that you must take seriously.

Obviously, a prosecutor is permitted to argue during the penalty phase of a capital murder trial that the evidence warrants the imposition of the death penalty.

No prejudice resulted from the prosecutor’s statement that the 1996 “no contact” order resulted from a “confrontation” between Appellant and Mr. Porter. The trial judge had forbidden any mention of the truth, ie., the burglary charge. The jury had heard evidence that Appellant had “stalked” Armotta after she left him and that he was confronted by Mr. Porter when he came to the Porter residence wanting to see Armotta. Certainly, relating the “no contact” order to this confrontation was less prejudicial than leaving it to the jurors’ cumulative speculation as to why the order had been entered.

The prosecutor’s penalty phase argument that the jury had already found the aggravating circumstances of first-degree burglary and multiple intentional murders was a “fair comment on the jury’s guilt phase verdicts.” Caudill, supra, at 676. Indeed, the only undecided issue at that point was whether Appellant committed the murders while engaged in the commission of first-degree burglary. KRS 532.025(2)(a)(2). The Commonwealth and the defense, logically, had different views on that issue.

In his penalty phase argument, the prosecutor made the following statement with respect to the mitigating circumstance of EED:

That the offense was committed under extreme emotional disturbance. That’s a word we use that’s sometimes called “sudden impulse” or “heat of passion.” The crime was intentional, but there was some aggravating factor in the defendant’s mind.

Although “heat of passion” and “sudden impulse” are not found in the definition of EED as a defense, McClellan, 715 S.W.2d at 468-69, that definition does not apply when EED is used as a mitigating circumstance. Caudill, supra, at 673. There is no statutory definition of EED as a mitigating circumstance and we are unable to conclude that the prosecutor’s characterization of it as “heat of passion” or “sudden impulse” is so plainly erroneous as to constitute misconduct.

With respect to Appellant’s “youth” as a mitigating factor, the prosecutor commented as follows during his penalty phase argument:

The youth of the defendant at the time of the crime. That has to be a relative, subjective, decision. I submit to you that a man who has graduated from high school, gone to college, served in the military and attained the age of twenty-seven or twenty-eight years old, fathered three children, gone through two marriages, held a variety of jobs, should not be considered a child or treated as a child.

This statement was fair comment on Appellant’s claim that his “youth” was a mitigating circumstance. Tamme, 973 S.W.2d at 38; Bowling, 873 S.W.2d at 178-79.

Finally, we do not regard as misconduct the prosecutor’s characterization of the testimony of Appellant’s retained psychologist as “malarkey.” Stopher, supra, at 806; Slaughter, supra, at 412.

XL MISCELLANEOUS ISSUES.

A.Courtroom security.

Appellant claims that the security used at his trial was so excessive as to deprive him of the presumption of innocence. The security detail for Appellant’s trial consisted of three uniformed police officers and one plain-clothed officer. The uniformed officers were stationed at various areas inside the courtroom, including the exits, while the plain-clothed officer sat approximately five feet behind Appellant during the course of the trial. In Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the United States Supreme Court held that “reason, principle, and common human experience counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial.” Id. at 569, 106 S.Ct. at 1346 (quotation and citation omitted). Instead, the Court endorsed a case-by-case examination of such issues. Id. See also Hodge, supra, at 839 (“[W]e [do not] believe that the presence of armed policemen in the courtroom constitutes prejudice per se.”). The security measures implemented in the present case were far less pervasive than the measures upheld in Holbrook (twelve uniformed officers) and Hodge (two uniformed bailiffs, two uniformed state police officers stationed ten feet from the defendant, and several additional officers who were not in uniform). Appellant was not shackled or dressed in prison clothing during his trial. Considering the nature of the crimes with which Appellant was charged, we do not view the security provisions as excessive or as depriving Appellant of the presumption of innocence.

B. Constitutionality of death penalty.

“[Ajrguments that the death penalty is discriminatory and arbitrary, and that our statutory scheme does not provide constitutionally adequate guidance to capital sentencing juries, have been raised, considered and rejected by this Court on numerous occasions.” Id. at 854 (citations omitted). “Our views with respect to those arguments remain unchanged.” Id.

C. Trial judge’s role in sentencing.

Appellant cites a statement in Matthews v. Commonwealth, 709 S.W.2d 414, that “the statutory scheme not only permits, but anticipates, that the trial court will play a separate and different role in sentencing in capital cases after the jury’s verdict has been received,” id. at 423, and claims that the sentencing scheme is flawed because it does not articulate what that “separate and different” role might be. We addressed and rejected this same argument in Caudill, supra, noting that the quote from Matthews was out of context. Id. at 678-79.

D. Constitutionality of proportionality review.

As noted in Caudill, supra, at 678, there is no constitutional right to a proportionality review. Pulley v. Harris, 465 U.S. 37, 44, 104 S.Ct. 871, 876, 79 L.Ed.2d 29 (1984).

E. Cumulative error.

No cumulative error occurred that requires reversal in this case. Compare Funk, 842 S.W.2d at 483.

XII. PROPORTIONALITY REVIEW.

Pursuant to KRS 532.075(3) we have reviewed the record and determined that the sentences of death were not imposed under the influence of passion, prejudice, or any other arbitrary factor. There was ample evidence to support the jury’s findings regarding all three aggravating circumstances. We have also examined all death penalty cases since 1970, particularly those cases in which a defendant was convicted of multiple intentional murders committed during the course of a burglary and sentenced to death, viz: Hodge v. Commonwealth, Ky., 17 S.W.3d 824 (2000) (two murders, robbery, and burglary); Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997) (two murders, robberies, and burglaries); Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1985) (two murders and burglary); Skaggs v. Commonwealth, Ky., 694 S.W.2d 672 (1985) (two murders, robbery, and burglary); White v. Commonwealth, Ky., 671 S.W.2d 241 (1983) (three murders, robbery, and burglary). Comparing the facts of the present case with those of similar cases in which the death penalty was imposed, we conclude that the death sentence imposed in this case was neither excessive nor disproportionate.

Accordingly, the judgments of conviction and the sentences imposed by the Oldham Circuit Court are affirmed.

LAMBERT, C.J.; GRAVES, and JOHNSTONE, JJ., concur. WINTERSHEIMER, J., concurs in result only. STUMBO, J., concurs except as to Part VI. KELLER, J., dissents by separate opinion, with STUMBO, J., joining that dissenting opinion as to Part I only.

1 . She had left her son at a nearby baseball park.

2 . Several states share this view. See, e.g., Terrell v. State, 276 Ga. 34, 572 S.E.2d 595, 602 (2002) (Apprendi and Ring did not render unconstitutional Georgia procedure that provided notice of aggravating factors through other means, such as written notice); State v. Tisius, 92 S.W.3d 751, 766-67 (Mo.2002) (Apprendi did not require inclusion of aggravating circumstances in indictment because death was the maximum penalty for murder in Missouri); State v. Dellinger, 79 S.W.3d 458, 467 (Tenn.2002) ("The Apprendi holding applies only to sentencing procedures under which judges sentence the defendants.”) (citation omitted). See also United States v. Jackson, 327 F.3d 273, 284 (4th Cir.2003) (while Ring "requires that an aggravating factor necessary to imposition of the federal death pen-ally” under 18 U.S.C. § 3593, be alleged in the indictment, "[t]he Supreme Court did not, however, address the scope of the Fifth Amendment Indictment Clause in Ring because that case came from a State system and the Fifth Amendment Indictment Clause has not been incorporated against the States.”) (citation omitted).

3 . At this point, Nobles became a state actor, see Adkins, supra, at 791 (citing United States v. Garlock, 19 F.3d 441, 443 (8th Cir.1994)), but, of course, Appellant had already been given the Miranda warnings. Hughes v. Commonwealth, Ky., 87 S.W.3d 850, 853-54 (2002) (no requirement that suspect be read-vised of Miranda rights merely because of passage of time or change of questioner).

4 . There was trial testimony that diphenhydra-mine is a non-prescription drug commonly found in over-the-counter medications such as Benadryl and that it often causes drowsiness but is not intoxicating.

5 . Appellant’s admission to Armotta that he killed her parents was separately admissible under KRE 801 A(b)(l).

6 . Kentucky did not adopt Fed. R. Ev. (FRE) 902(4) which does not contain the “official publication” language, perhaps because it could be assumed that the Rule applied only to copies. In adopting the Kentucky Rules of Evidence, we instead retained the language of Ky. R. Civ. Proc. (CR) 44.01.

7 . This aggravating circumstance was applied only to the murder of Mr. Porter.

8 . Appellant does not challenge the propriety of the aggravating circumstance with respect to the murder of Mrs. Porter.

9 . Note that boats and trailers subject to occupancy would fall within the definition of a "building” in KRS 511.010(1).