Ward v. Commonwealth

695 S.W.2d 404, 1985 Ky. LEXIS 307

• Court: Kentucky Supreme Court
• Decided: May 23, 1985
• Status: Published

Opinions

GANT, Justice.

Appellant herein was found guilty of one count of conspiracy to commit first degree robbery and two counts of first degree robbery; he was sentenced therefor to a total of 50 years imprisonment. Additionally, he was found guilty of capital murder in the death of Lucy Asher during a first degree robbery and received the death penalty. It is the murder conviction which is the principal point of concentration in appellant’s disputation before this court. The death of Mrs. Asher occurred during an ambush robbery when she was brutally slain by shots fired by appellant as she drove her truck down a road.

The first allegation of error we will review is the failure of the trial court to instruct on certain lesser included offenses to the offense of murder. The law in this Commonwealth is clearly set out in Kelly v. Commonwealth, Ky., 267 S.W.2d 536, 539 (1954):

In a criminal case it is the duty of the court to prepare and give instructions on the whole law and this rule requires instructions applicable to every state of case deducible or supported to any extent by the testimony.

In the current case, appellant moved the court to instruct on wanton murder, second degree manslaughter and reckless homicide, which motion was denied. Failure to instruct on wanton murder as defined in KRS 507.020(l)(b) could hardly be deemed error, as this offense still constitutes a capital offense, but it should have been included to contrast with the other offense, manslaughter in the second degree (KRS 507.040). Omission of the instruction on manslaughter in the second degree was reversible error. There was no theory of the case advanced to justify an instruction on reckless homicide, which involves failure to perceive of danger, as set out in KRS 501.020(4).

It is not argued that the evidence did not justify an intentional murder instruction, nor could it be. However, the evidence in this case was also that, although the robbery of Mrs. Asher was planned, there was no scheme to kill her. In fact, the evidence was that the plan called for shooting out the tires of her truck in which she was killed in order to stop the truck. Further, there was evidence from the fellow conspirators that the appellant, immediately after the shooting, shouted that the gun had gotten away from him. There was also testimony about the use by appellant of drugs and alcohol on the day of the incident. Under the conclusions which are “deducible” from the evidence or “supported” by the evidence, it was clearly erroneous to fail to include the requested instruction on second degree manslaughter. It is regrettable that the lower court denied the motion for such instruction or that the prosecution objected to it, as the probability of a different result is small. However, we are averse to categorizing such an error as harmless, especially in a case where the death penalty resulted.

While considering allegations of errors in the instructions, we note that appellant protests the omission of the “extreme emotional disturbance” qualification in the murder instruction given. His assigned basis for this protest is the evidence concerning the use of drugs and alcohol, but we are not aware of or cited to any case where this type of evidence, standing alone, would trigger such a qualifying instruction. The other assigned errors concerning the instructions are without merit.

Appellant asserts it was erroneous to exclude opinion testimony by an expert who was a psychiatrist/pharmacologist, and who would have testified concerning the effect of certain drugs taken alone or in combination with alcohol as this effect related to the question of intent to commit murder. It is apodictic that the admission of expert opinion testimony is conditioned upon laying a proper foundation by competent evidence. Herein, the appellant declined to testify, so there was no evidence from him concerning the type, amount, concentration or frequency of use of such drugs, or of their effect. The other participants in the robbery and murder testified in vague generalities on the subject, and their evidence on effect was of no import or assistance. In light of the deficiencies in proper foundation, the exclusion of the expert testimony was correct. Cf. Hodge v. Commonwealth, 289 Ky. 548, 159 S.W.2d 422 (1942).

Appellant contends it was reversible error for the trial judge to fail to comply with KRS 29A. 100, which mandates that the trial judge who excuses a juror from service “determine whether the prospective juror is disqualified for jury service” under the statutory grounds and “enter this determination ... on the jury determination form” provided by KRS 29A.070. It is undisputed that the trial judge had not complied with the statute prior to the motion to be furnished with the list and, despite repeated assurance of ex post facto compliance, no data was ever compiled or furnished to appellant’s attorney. Inasmuch as we are reversing on other grounds, we do not reach the significance of this error but direct that on retrial and in other cases this statute should be complied with.

The next assignment of error concerns the failure of the trial court to excuse, for cause, three jurors who were related to the Commonwealth’s Attorney in varying degrees. Two of these jurors were an ex-brother-in-law and a distant cousin. The other was described to us as “sort of an uncle” about whom the Commonwealth’s Attorney stated he had always been told the man was his uncle. We feel the law is well stated in Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4, 7 (1981):

[Irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses.

Once that close relationship is established, without regard to protestations of lack of bias, the court should sustain a challenge for cause and excuse the juror. We have no fault to find in regard to the ex-brother-in-law or even the distant cousin and we trust that, under this statement of principle, no uncles will survive the challenge for cause on retrial.

Appellant argues that it was reversible error to exclude or limit his questioning of the jury panel on voir dire. The circumstances of this particular allegation of error were that the Commonwealth Attorney informed the jury that one of the witnesses for the prosecution was a participant in the crimes with whom he had made a “deal” in exchange for his testimony. He then asked whether this fact would prevent any juror from giving to the Commonwealth a fair and impartial trial. No promise to not consider this “deal” was ever exacted from the panel. Thereafter, during his voir dire, counsel for appellant asked the jury if they could consider the “deal” in assessing the credibility of the witness and even went so far as to say to the jury, “You have a right as a jury, if you are selected as a juror, to hold those deals against the Commonwealth.” Objection to this question and statement was sustained, and the jury was admonished not to consider it.

The trial judge has broad discretion in the area of questioning on voir dire. Generally speaking, questions of jurors in criminal cases should be as varied and elaborated as the circumstances require, the purpose being to obtain a fair and impartial jury whose minds are free and clear from all interest, bias or prejudice which might prevent their finding a just and true verdict. Notwithstanding, questions are not competent when their evident purpose is to have jurors indicate in advance or commit themselves to certain ideas and views upon final submission of the case to them. See Annotations: 73 A.L.R.2d 1187; 99 A.L.R. 7. We find no abuse of discretion by the trial judge in this instance.

At the penalty phase of the trial, the Commonwealth committed a grievous error by repeatedly minimizing the responsibility of the jury in assessing the death penalty. We are totally aware that the statute relating to capital offenses — KRS 532.025(l)(b) — provides that the jury shall “recommend a sentence for the defendant.” However, the death penalty cannot be assessed by any judge unless recommended by the jury, so the responsibility of the jury in such cases remains undiminished.

In this light, let us examine the words of the prosecutor in his closing argument:

... it is only a recommendation. If you recommend it and if the court sees fit here to sentence the man to death and if after automatic review by the Supreme Court ...

If, after various other appeals and if after the Governor signs the death warrant ...

If you were to decide to recommend, and it is only, I want to point this out again to you, a recommendation ...

If we do [get the recommendation] it [the death penalty] may very well not [happen],

In short, the prosecutor clearly sought to divert from the minds of the jurors their true responsibility in this case by implying that the ultimate responsibility would fall to the trial judge, this court, other appellate courts, or to the Governor. This is clearly an error of reversible magnitude. It is the responsibility of each juror to decide whether the defendant will be executed, and they shall not be informed, either directly or by implication, that this responsibility can be passed along to someone else. The mere fact that the statute provides for jury recommendation cannot be utilized as a license to induce the jury to disregard its responsibility. Cf. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979); State v. Gilbert, 273 S.C. 690, 258 S.E.2d 890 (1979).

Also, should any inadvertent reference implying a dimunition of the jury’s duty in fixing a death penalty creep into any case, the trial judge should immediately inform the jury that their duty to fix the death penalty should be considered as if there were no possibility of review by any source.

It is our further opinion that, upon retrial, should conviction of capital murder result, the trial court at the sentencing phase should admit proffered evidence that appellant had never been convicted of a crime of violence. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

We have carefully examined all other assignments of error by appellant, and find no merit in them, nor do we find any assertion of error meritorious which would preclude retrial for capital murder.

We affirm the conviction of appellant for conspiracy to commit first degree robbery and for two counts of first degree robbery. We reverse the conviction for murder and remand this case for a new trial consistent with this opinion.

STEPHENS, C.J., and AKER, GANT, LEIBSON and VANCE, JJ., concur. LEIBSON, J., files a concurring opinion in which VANCE, J., joins. STEPHENSON and WINTERSHEIMER, JJ., dissent, with each filing separate dissenting opinions.