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Supreme Court of Kentucky.
Gregory WILSON, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 88-SC-896-MR.
June 4, 1992.
Rehearing Denied Oct. 22, 1992.
Defendant was convicted in the Kenton Circuit
Court, Raymond E. Lape, Jr., J., of murder,
kidnapping, first-degree rape, first-degree robbery
and criminal conspiracy to commit robbery, and
sentenced to death. The Supreme Court,
Wintersheimer, J., held that: (1) defendant was not
denied effective assistance of counsel; (2) defendant
was not denied his right to public trial; (3) prosecutor
disclosed all relevant information; (4) trial judge was
not subject to disqualification; (5) trial court did not
abuse its discretion in denying defendant separate
trial; (6) defendant was not entitled to change of
venue; (7) defendant was not prejudiced by trial
court's failure to sequester jury prior to submission of
case for determination of guilt and between guilt and
sentencing stages; (8) defendant was not denied fair
trial or due process by admission of photographs; (9)
defendant had no basis on which to complain that no
independent experts testified in his behalf; (10) death
sentence for kidnapping was inappropriate; (11)
defendant could be found guilty of kidnapping, in
addition to robbery and rape; (12) rape and robbery
convictions at guilt phase could be used to prove
aggravating circumstances; (13) jury properly found
existence of two distinct aggravating factors; and (14)
death sentence was appropriate.
Affirmed and remanded.
Leibson, J., dissented in part and filed opinion in
which Combs, J., joined.
West Headnotes
[1] Criminal Law 110
1881
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)1 In General
110k1879 Standard of Effective
Assistance in General
110k1881
k. Deficient
Representation and Prejudice in General. Most Cited
Cases
(Formerly 110k641.13(1))
In order to prevail on claim of ineffective assistance
of counsel, defendant must show that counsel's
performance was deficient, in that counsel made
errors so serious that counsel was not functioning as
“counsel” guaranteed by Sixth Amendment, and that
deficient performance prejudiced defense, that is, that
errors were so serious as to deprive defendant of fair
trial. U.S.C.A. Const.Amend. 6.
[2] Criminal Law 110
1974
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1974 k. Indigent's or Incompetent's
Counsel and Public Defenders. Most Cited Cases
(Formerly 110k641.13(3))
Defendant in death penalty case was not denied
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effective assistance by appointed volunteer counsel;
counsel's efforts were severely hampered by
defendant's actions in rejecting advice and assistance
of counsel, in not allowing defense counsel to make
opening statement or closing argument during guilt
phase, and in not testifying or allowing counsel to
call any defense witnesses. U.S.C.A. Const.Amend.
6.
[3] Criminal Law 110
1830
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)9 Choice of Counsel
110k1824 Discharge by Accused
110k1830 k. Procedure. Most Cited
Cases
(Formerly 110k641.7(1))
Trial court was not required, on capital defendant's
pretrial motion, to conduct inquiry into volunteer
appointed counsel's background, qualifications,
fitness and alleged prior acts of misconduct. U.S.C.A.
Const.Amend. 6.
[4] Criminal Law 110
1830
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)9 Choice of Counsel
110k1824 Discharge by Accused
110k1830 k. Procedure. Most Cited
Cases
(Formerly 110k641.10(2))
In order to warrant substitution of counsel during
trial, defendant must show good cause, such as
conflict of interest, complete breakdown of
communication, or irreconcilable conflict which
leads to apparently unjust verdict, and demonstrate
prejudice by attorney's performance.
[5] Criminal Law 110
1770
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)5 Procedure and Affirmative
Duties by Court in Protection of Right to Counsel and
Right to Self-Representation
110k1770 k. In General. Most Cited
Cases
(Formerly 110k641.7(1))
When Department of Public Advocacy (DPA)
lawyers were too busy to take on defendant's case,
circuit judge could appoint volunteer pro bono
member of the bar to represent defendant in capital
case. KRS 31.010 et seq.; U.S.C.A. Const.Amend. 6.
[6] Criminal Law 110
1836
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)9 Choice of Counsel
110k1834 Appearing Both Pro Se and
by Counsel; Hybrid Representation
110k1836 k. Particular Cases. Most
Cited Cases
(Formerly 110k641.10(3))
Trial court did not deprive defendant of his right to
counsel by allowing defendant to proceed pro se with
standby counsel after defendant told trial court that
he was rejecting advice and assistance of counsel and
that he was proceeding pro se; trial court thoroughly
inquired into defendant's decision to proceed pro se,
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and defendant elected to proceed with his eyes wide
open. U.S.C.A. Const.Amend. 6.
[7] Criminal Law 110
635.9(2)
110 Criminal Law
110XX Trial
110XX(B) Course and Conduct of Trial in
General
110k635 Public Trial
110k635.9 Interests of Persons
Affecting Propriety of Closure
110k635.9(2) k. Spectators. Most
Cited Cases
(Formerly 110k635)
Trial court's rejection of spectator from courtroom for
failure to comport with court's guideline forbidding
gestures between spectators and any party did not
deny defendant his right to public trial.
[8] Criminal Law 110
665(4)
110 Criminal Law
110XX Trial
110XX(C) Reception of Evidence
110k665 Separation and Exclusion of
Witnesses
110k665(4) k. Enforcement of Rule.
Most Cited Cases
Exclusion from courtroom of defendant's friend, who
had been subpoenaed in anticipation of being called
as a witness, did not deny defendant his right to
public trial; court had invoked separation of
witnesses rule and therefore friend had been
legitimately excluded.
[9] Criminal Law 110
627.6(1)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident
to Trial
110k627.6 Information or Things,
Disclosure of
110k627.6(1) k. In General. Most
Cited Cases
Defendant's request for copies of all correctional
institution files of prosecution witness, any
organizations to which witness had ever belonged,
any information witness may have provided to any
governmental authority in any jurisdiction in any
case, any prior instances of witness ever lying or
exaggerating, any inmates Commonwealth may have
interviewed at trial to determine whether they spoke
with witness and every case in which Commonwealth
used informant exceeded any possible exculpatory
material or information properly attainable under
discovery rule. Rules Crim.Proc., Rule 7.24.
[10] Judges 227
49(1)
227 Judges
227IV Disqualification to Act
227k49 Bias and Prejudice
227k49(1) k. In General. Most Cited Cases
Defendant in capital case was not entitled to
disqualification of trial judge based on bias, prejudice
or appearance of partiality; trial court treated
defendant with respect and allowed him to assert
anything he desired into the record to insure fair trial.
KRS 26A.020(1).
[11] Criminal Law 110
1148
110 Criminal Law
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110XXIV Review
110XXIV(N) Discretion of Lower Court
110k1148 k. Preliminary Proceedings. Most
Cited Cases
Reviewing court will not reverse conviction for
failure to grant separate trials unless it is clearly
convinced that prejudice occurred and that likelihood
of prejudice was so clearly demonstrated to trial
judge as to make his failure to grant severance an
abuse of discretion. Rules Crim.Proc., Rule 9.16.
[12] Criminal Law 110
622.7(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k622 Joint or Separate Trials of
Codefendants
110k622.7 Grounds for Severance or
Joinder
110k622.7(6)
k. Antagonistic
Defenses; Hostility. Most Cited Cases
(Formerly 110k622.2(6))
Defendant challenging denial of severance must
show that antagonism prevented jury from being able
to separate and to treat distinctively evidence that is
relevant to each particular defendant at trial and that
antagonism between defendants will mislead or
confuse jury. Rules Crim.Proc., Rule 9.16.
[13] Criminal Law 110
622.7(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k622 Joint or Separate Trials of
Codefendants
110k622.7 Grounds for Severance or
Joinder
110k622.7(6)
k. Antagonistic
Defenses; Hostility. Most Cited Cases
(Formerly 110k622.2(6))
That defenses of jointly indicted persons may be
antagonistic is only a factor for trial court to consider
in determining whether defendant will be prejudiced
by joint trial. Rules Crim.Proc., Rule 9.16.
[14] Criminal Law 110
622.7(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k622 Joint or Separate Trials of
Codefendants
110k622.7 Grounds for Severance or
Joinder
110k622.7(6)
k. Antagonistic
Defenses; Hostility. Most Cited Cases
(Formerly 110k622.2(6))
Defendant was not entitled to separate trial from
codefendant based upon antagonistic defenses, absent
any showing of prejudice. Rules Crim.Proc., Rule
9.16.
[15] Criminal Law 110
126(2)
110 Criminal Law
110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(2) k. Particular Offenses.
Most Cited Cases
Defendant in capital case was not entitled to change
of venue, absent any indication that seated jury was
anything but fair and impartial; although almost
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every potential juror had heard or read something
about initial disappearance of victim or arrest of
defendants, most did not remember details and had
not prejudged the case.
[16] Criminal Law 110
126(1)
110 Criminal Law
110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(1) k. In General. Most
Cited Cases
Change of venue should be granted if it appears that
defendant cannot have fair trial in county wherein
prosecution is pending. KRS 452.210; U.S.C.A.
Const.Amend. 14.
[17] Criminal Law 110
126(1)
110 Criminal Law
110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(1) k. In General. Most
Cited Cases
In order for change of venue to be granted there must
be showing that: there has been prejudicial news
coverage; it occurred prior to trial; and effect of such
news coverage is reasonably likely to prevent fair
trial.
[18] Criminal Law 110
126(1)
110 Criminal Law
110IX Venue
110IX(B) Change of Venue
110k123 Grounds for Change
110k126 Local Prejudice
110k126(1) k. In General. Most
Cited Cases
Mere fact that jurors may have heard, talked or read
about case is not sufficient to sustain motion for
change of venue, absent showing that proceedings
had prejudiced defendant.
[19] Criminal Law 110
1174(4)
110 Criminal Law
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1174 Conduct and Deliberations of
Jury
110k1174(4) k. Separation of Jury.
Most Cited Cases
Defendant was not prejudiced by trial court's failure
to sequester jury prior to submission of case for
determination of guilt and between guilt and
sentencing stages of capital trial; court undertook
proper precautions to insure jury was isolated from
spectators, parties and press, and once selected, jury
was kept together as a group and properly
admonished.
[20] Jury 230
142
230 Jury
230V Competency of Jurors, Challenges, and
Objections
230k142 k. Objections and Exceptions. Most
Cited Cases
Capital defendant who decided not to participate in
voir dire process and prohibited standby counsel from
participating in individual voir dire until its second
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day would not be heard to complain that he did not
receive fair and impartial jury.
[21] Jury 230
33(1.15)
230 Jury
230II Right to Trial by Jury
230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(1.2)
Particular Groups,
Inclusion or Exclusion
230k33(1.15) k. Race. Most Cited
Cases
(Formerly 230k33(1.3))
Jury panel containing 4.76% blacks was within range
of the community, which was no more than 7%
blacks, and thus was sufficiently representative of
blacks.
[22] Criminal Law 110
438(4)
110 Criminal Law
110XVII Evidence
110XVII(P) Documentary Evidence
110k431 Private Writings and Publications
110k438 Photographs and Other
Pictures
110k438(4) k. Depiction of Places;
Scene of Crime. Most Cited Cases
Defendant was not denied fair trial or due process by
admission of photographs disclosing location and
condition of victim's body. U.S.C.A. Const.Amend.
14.
[23] Criminal Law 110
438(2)
110 Criminal Law
110XVII Evidence
110XVII(P) Documentary Evidence
110k431 Private Writings and Publications
110k438 Photographs and Other
Pictures
110k438(2)
k. Particular
Prosecutions. Most Cited Cases
Introduction of single photograph of victim taken
before death was permissible in capital murder trial.
[24] Criminal Law 110
476.6
110 Criminal Law
110XVII Evidence
110XVII(R) Opinion Evidence
110k468 Subjects of Expert Testimony
110k476.6 k. Miscellaneous Matters.
Most Cited Cases
Testimony of forensic entomologist concerning
blowfly life cycles was admissible in capital murder
trial; condition in which victim's corpse was found
was an important issue of fact, and testimony was
also relevant to issue of when victim died.
[25] Criminal Law 110
1137(2)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110XXIV(L)11 Parties Entitled to Allege
Error
110k1137 Estoppel
110k1137(2) k. Error Committed or
Invited by Party Complaining in General. Most Cited
Cases
Defendant had no basis on which to complain that no
independent experts testified in his behalf, where
defendant had refused to allow standby counsel to
call any witnesses either expert or lay and he did not
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indicate how use of his own experts might have
affected his own defense or ultimate outcome of the
case. Rules Crim.Proc., Rule 9.24.
[26] Criminal Law 110
475.2(3)
110 Criminal Law
110XVII Evidence
110XVII(R) Opinion Evidence
110k468 Subjects of Expert Testimony
110k475.2 Identity or Content of
Substances
110k475.2(3) k. Bodily Tissue or
Fluids. Most Cited Cases
Expert testimony that hairs found inside victim's car
were similar in microscopic comparison to head and
pubic hair samples taken from defendant was
admissible.
[27] Criminal Law 110
659
110 Criminal Law
110XX Trial
110XX(B) Course and Conduct of Trial in
General
110k659 k. Presence and Conduct of
Bystanders. Most Cited Cases
(Formerly 110k867)
Defendant was not entitled to mistrial in capital case
when mother of victim had allegedly emotional
outburst in courtroom.
[28] Jury 230
130
230 Jury
230V Competency of Jurors, Challenges, and
Objections
230k124 Challenges for Cause
230k130 k. Exception or Denial. Most
Cited Cases
Defendant was not deprived of fair trial when
potential juror who did not sit on jury considering the
case was not excused for cause.
[29] Jury 230
33(2.15)
230 Jury
230II Right to Trial by Jury
230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(2) Competence for Trial of
Cause
230k33(2.15) k. View of Capital
Punishment. Most Cited Cases
(Formerly 230k33(2.1))
It is proper to death qualify the jury in a capital case.
[30] Jury 230
33(5.15)
230 Jury
230II Right to Trial by Jury
230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(5) Challenges and Objections
230k33(5.15)
k. Peremptory
Challenges. Most Cited Cases
(Formerly 230k33(5.1))
Opposition to capital punishment does not put juror
in constitutionally recognizable group exempt from
peremptory challenge on that basis.
[31] Double Jeopardy 135H
151(4)
135H Double Jeopardy
135HV Offenses, Elements, and Issues
Foreclosed
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135HV(A) In General
135Hk139 Particular Offenses, Identity of
135Hk151 Conspiracy; Racketeering
135Hk151(3) Conspiracy and
Substantive or Predicate Offense
135Hk151(4) k. Particular Cases.
Most Cited Cases
Conviction for robbery and conspiracy to commit
robbery did not constitute double jeopardy; evidence
indicated plan or conspiracy to kidnap victim and to
rob her as well as to take any other illegal actions in
order to achieve successful completion of criminal
enterprise. KRS 506.110(2); U.S.C.A. Const.Amend.
5.
[32] Criminal Law 110
29(14)
110 Criminal Law
110I Nature and Elements of Crime
110k29 Different Offenses in Same
Transaction
110k29(5) Particular Offenses
110k29(14) k. Homicide. Most Cited
Cases
(Formerly 110k984(7))
Sentencing and Punishment 350H
531
350H Sentencing and Punishment
350HIII Sentence on Conviction of Different
Charges
350HIII(A) In General
350Hk515 Particular Offenses
350Hk531 k. Kidnapping and False
Imprisonment. Most Cited Cases
(Formerly 110k984(7))
Defendant can be convicted and punished for
kidnapping and murder, but cannot be sentenced to
death for kidnapping if he is also sentenced to death
for murder.
[33] Kidnapping 231E
22
231E Kidnapping
231Ek22 k. Other Crimes Distinguished. Most
Cited Cases
(Formerly 232k1)
Where restraint goes beyond that which occurs
immediately with and incidental to commission of
offense, such as rape or robbery, offender is guilty of
kidnapping. KRS 509.050.
[34] Criminal Law 110
29(13)
110 Criminal Law
110I Nature and Elements of Crime
110k29 Different Offenses in Same
Transaction
110k29(5) Particular Offenses
110k29(13) k. Kidnapping. Most Cited
Cases
Defendant could be found guilty of kidnapping, in
addition to robbery and rape, where restraint of
victim was not incidental to commission of robbery
or rape. KRS 509.050.
[35] Double Jeopardy 135H
30
135H Double Jeopardy
135HII Proceedings, Offenses, Punishments, and
Persons Involved or Affected
135Hk29
Sentencing Proceedings;
Cumulative Punishment
135Hk30 k. Enhanced Offense or
Punishment. Most Cited Cases
Rape and robbery convictions at guilt phase could be
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used to prove aggravating circumstances for murder
and kidnapping at penalty phase; underlying offenses
were only factors to be considered as to whether
punishment for murder should be death, and
defendant was not thereby subjected to double
jeopardy or multiple punishment for same offense.
KRS 532.025, 532.030(2); U.S.C.A. Const.Amend. 5.
[36] Sentencing and Punishment 350H
1673
350H Sentencing and Punishment
350HVIII The Death Penalty
350HVIII(D) Factors Related to Offense
350Hk1673 k. Personal or Pecuniary Gain.
Most Cited Cases
(Formerly 203k357(9))
Sentencing and Punishment 350H
1681
350H Sentencing and Punishment
350HVIII The Death Penalty
350HVIII(D) Factors Related to Offense
350Hk1681 k. Killing While Committing
Other Offense or in Course of Criminal Conduct.
Most Cited Cases
(Formerly 203k357(9), 203k357(7))
Jury properly found existence of two distinct
aggravating factors, murder committed during
commission of robbery and murder committed for
profit, based on robbery of victim and use of her
credit cards the day after her death. KRS 515.020(1).
[37] Sentencing and Punishment 350H
1681
350H Sentencing and Punishment
350HVIII The Death Penalty
350HVIII(D) Factors Related to Offense
350Hk1681 k. Killing While Committing
Other Offense or in Course of Criminal Conduct.
Most Cited Cases
(Formerly 203k357(7))
Aggravating circumstances of first-degree robbery
and first-degree rape were sufficient to sustain death
sentence for murder.
[38] Sentencing and Punishment 350H
1668
350H Sentencing and Punishment
350HVIII The Death Penalty
350HVIII(D) Factors Related to Offense
350Hk1666 Nature or Degree of Offense
350Hk1668 k. Murder. Most Cited
Cases
(Formerly 203k356)
Sentence of death for murder was not inappropriate,
arbitrary, and discriminatory, unusual or
disproportionate to penalty imposed in similar
sentences. KRS 532.075.
[39] Sentencing and Punishment 350H
1780(3)
350H Sentencing and Punishment
350HVIII The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)3 Hearing
350Hk1780 Conduct of Hearing
350Hk1780(3) k. Instructions. Most
Cited Cases
(Formerly 110k796)
Jury in capital case was properly instructed that
finding of aggravating circumstance did not require
imposition of death penalty.
*876 David Bruck, Chief Atty., South Carolina Office
of Appellate Defense, Columbia, S.C., Mario Gerald
Conte, Jr., San Diego, Cal., Robert W. Carran,
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Covington, for appellant.
Chris Gorman, Atty. Gen., David A. Smith, Asst.
Atty. Gen., Elizabeth A. Myerscough, Asst. Atty.
Gen., Crim. Appellate Div., Frankfort, for appellee.
Mary Broderick, Director, Defender Div., Nat. Legal
Aid & Defender Ass'n, Washington, D.C., Margery B.
Koosed, Professor of Law, University of Akron
School of Law, Akron, Ohio, Russell J. Baldani,
Baldani, Rowland & Richardson, Lexington, for
amicus curiae Nat. Legal Aid and Defender Ass'n.
WINTERSHEIMER, Justice.
Gregory Wilson appeals from a judgment based on a
jury verdict which convicted him of murder,
kidnapping, first-degree rape, first-degree robbery
and criminal conspiracy to commit robbery. He was
sentenced to death on the murder and kidnapping
convictions and to consecutive prison terms of 20, 20
and 10 years respectively for first-degree rape, first-
degree robbery and criminal conspiracy to commit
robbery.
The victim was a restaurant employee in Newport.
On Friday, May 29, 1987 at 11:45 p.m., she left her
best friend's house and said she was going straight
home. The prosecution presented evidence that she
had just parked her car outside of her apartment in
Covington when she was abducted by Wilson and co-
defendant Humphrey at knife point.
Testimony at trial from various sources, including
Humphrey, indicated that the victim was forced into
the back seat of her own car. Humphrey drove the car
to the flood wall in Covington. Wilson took the
victim out of the car and took her up on the flood
wall and made her lie down with her eyes closed
while Humphrey went to put gas in the car. After
Humphrey returned from the gas station, Wilson
again forced the victim into the back seat of the car.
Wilson made the victim unbutton her blouse. Wilson
finished undressing the victim and raped her. He then
tied her hands with a lamp cord, and the victim began
begging for her life. Wilson told her she would have
to die. Humphrey said, “You have seen us. You know
who we are, and you have to die.” The victim kept
begging, “Please don't kill me. I don't want to die.”
Wilson robbed her and strangled her to death before
they crossed the state line into Indiana.
Wilson and Humphrey disposed of the victim's naked
corpse in a wooded thicket in rural Hendrix County,
Indiana. Later that same morning, Saturday, May 30,
Wilson and Humphrey stopped at a Holiday Inn in
Crawfordsville, Indiana. According to a registration
card, Humphrey and a guest checked into the hotel at
4:19 a.m. Two of the maids there identified the pair
as Wilson and Humphrey.
Wilson and Humphrey proceeded to a Payless Shoe
Store in Danville, Illinois where the victim's credit
card was used to purchase two pairs of women's
shoes and some hosiery. Later that same day, May 30,
1987, Wilson and Humphrey went to a K-Mart in
Danville where the victim's credit card was used to
make purchases totalling $227.46. Included in these
purchases *877 were a man's Seiko watch and a
woman's Gruen watch for $68.00 each. Wilson and
Humphrey also paid cash for a number of cosmetic
items and some clothing. Later that day, the victim's
credit card was used to make a $24.50 purchase at an
Amoco gas station in Urbana-Champaign, Illinois.
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On Sunday, May 31, Wilson and Humphrey returned
to the home of Humphrey's best friend, Beverly
Finkenstead. Finkenstead testified that Humphrey
had a K-Mart bag with a blouse in it. They both had a
watch on and were each wearing a necklace. On
Sunday, June 7, Humphrey visited Finkenstead and
told her details of the crimes in which she and Wilson
had participated the previous weekend. Eight days
later, on June 15, Finkenstead reported to the police
what Humphrey had told her. Also on June 15, the
Hendrix County, Indiana Sheriff's Department was
summoned to a wooded thicket where a corpse had
been discovered.
Authorities were able to determine the identity of the
corpse only by comparing its remaining teeth with
the victim's dental X-rays. The cause of death could
not be determined due to the absence of internal
organs. A forensic entomologist testified that, based
on the extent of blowfly maggot development in and
on the corpse, the estimated time of death had
occurred 15 to 19 days prior to his June 16
examination of the corpse.
Wilson told cell mate Willis Maloney details of the
crimes including that the initial intent had been to
“snatch” the victim and rob her; that the victim was
still alive when her money was taken from her; that
the victim was killed before they crossed the state
line into Indiana; that the corpse would be so badly
decomposed that no sperm would show up; and that
they had used the victim's credit card to purchase,
among other things, a watch Wilson was wearing at
the time of his arrest which Humphrey later obtained
by signing it out from one of the jailers. Wilson also
told Maloney, “I bet they can't find what I used to
strangle her with.”
Maloney's and Humphrey's account of the rape was
corroborated by the presence of semen on the back
seat of the victim's car. Head hairs similar to those
belonging to Humphrey were found inside the
victim's car. Pubic and head hairs similar to those
belonging to Wilson were also found inside the
victim's car. A handwriting expert established that
Humphrey had authored the forged credit card
receipts. A search of the hotel room where Wilson
and Humphrey were arrested produced various items
of clothing, all bearing K-Mart price tags.
Humphrey was the only defense witness during the
guilt/innocence phase of the trial. Wilson gave his
own closing argument in which he told the jury he
was not guilty, he “never met nor knew the victim”
and that Humphrey told her sister that she killed the
victim. The jury returned guilty verdicts against both
defendants. After the penalty phase, Wilson was
sentenced to death for kidnapping and murder. He
was sentenced to consecutive prison terms of 20, 20
and 10 years respectively for first-degree rape, first-
degree robbery and criminal conspiracy to commit
robbery.
Wilson, through appellate counsel, raises twenty-four
assignments of alleged error in this appeal. We have
carefully reviewed all the issues presented by Wilson
and this opinion will concentrate on the question of
whether Wilson was denied his right to counsel or
effective assistance by the appointment of volunteer
counsel William Hagedorn and John Foote.
Allegations which we consider to be without merit
will not be addressed here.
I & II
Wilson argues that the trial court deprived him of his
right to counsel, effective assistance of counsel and
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equal protection by refusing to grant his pretrial
motion to discharge his appointed volunteer counsel
who he claims were not competent to represent a
capital defendant.
On July 1, 1987, Clyde Richardson and Steve
Megerle were appointed to represent Wilson. Trial
was set for October 27, 1987. Richardson filed an
affidavit concerning his poor health and sought a
continuance. At a subsequent hearing, Megerle
revealed *878 that he wanted to withdraw because of
a conflict since he had previously represented
witnesses for the Commonwealth.
On November 9, 1987, Megerle was permitted to
withdraw and Kevin McNally from the Department
of Public Advocacy was appointed and advised that
another local counsel would be appointed soon. At a
subsequent hearing, the trial judge set a September,
1988 trial date and indicated that he would help the
local public defender administrator, Robert Carran,
find local counsel. In the meantime, McNally filed a
motion to withdraw because he was resigning from
the DPA and had never planned to be lead counsel in
the case. The DPA declined to replace McNally.
Public Advocate Paul Isaacs testified that even
though DPA lawyers had handled all 34 of
Kentucky's other capital cases, they were too busy to
take on this one. On May 17, 1988, Judge Lape
posted at the Kenton County Courthouse a “Plea” for
counsel to represent Wilson.
On June 1, 1988, the trial court entered an order
permitting McNally to withdraw from representing
Wilson and ordered him to turn over Wilson's file to
William Hagedorn, who had responded to the Judge's
plea for counsel, with an offer to represent Wilson
pro bono as lead counsel. He also appointed John
Foote and Sharon Sullivan, ordered that Richardson
remain as co-counsel and ordered that Richardson,
Foote and Sullivan “shall be allowed the appropriate
fee for their services through the Northern Kentucky
Public Defender, Inc.” Sullivan, two weeks later,
asked the Court to reconsider the order appointing
her as counsel.
On July 6, 1988, the trial court permitted Richardson
and Sullivan to withdraw and directed Richardson to
turn Wilson's file over to Hagedorn. Wilson then filed
a pro se motion to disqualify Judge Lape and
objected to the order regarding turning over his files.
A hearing on Wilson's motion was conducted on
August 16, 1988. Wilson was represented at the
hearing by Mario Conte of the National Association
of Criminal Defense Lawyers. Wilson's apparent
purpose was to argue that Hagedorn and Foote were
not competent to represent him in a capital case.
When Conte attempted to bring forth evidence of
Hagedorn's alleged past unethical behavior, the trial
judge terminated the hearing.
At many points during the trial, Wilson repeated his
assertion that his court-appointed standby counsel
were, to use Wilson's words, “unprepared, ill-trained,
ill-equipped, and lacked the necessary competence
and experience” and objected to the proceeding based
on the Sixth, Eighth and Fourteenth Amendments.
Wilson made these assertions despite the fact that the
record indicated that Hagedorn had previously tried
fifteen murder cases.
[1] Under Strickland v. Washington,
466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to
prevail under an ineffective assistance of counsel
claim, a defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the
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defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial. Unless a defendant makes
both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064. A court deciding
an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time
of counsel's conduct. A convicted defendant making a
claim of ineffective assistance must identify the acts
or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment.
The court must then determine whether, in light of all
the circumstances, the identified acts or omissions
were outside the wide range of professionally
competent assistance. In making that determination,
the court should keep in mind that counsel's function,
as elaborated in prevailing professional norms, is to
make the adversarial testing process work in the *879
particular case. At the same time, the court should
recognize that counsel is strongly presumed to have
rendered adequate assistance and make all significant
decisions in the exercise of reasonable judgment. 466
U.S. at 690, 104 S.Ct. at 2066. Any deficiencies in
counsel's performance must be prejudicial to the
defense in order to constitute ineffective assistance
under the Constitution. 466 U.S. at 692, 104 S.Ct. at
2067.
This Court has applied the Strickland standard in the
death penalty cases of Gall v. Commonwealth,
Ky.,
702 S.W.2d 37 (1985), McQueen v. Commonwealth,
Ky., 721 S.W.2d 694 (1986) and Moore v.
Commonwealth,
Ky., 771 S.W.2d 34 (1988)
.
[2] Applying the Strickland standard to this case, we
cannot accept Wilson's contention that he was denied
effective assistance of counsel. A careful examination
of the record indicates that Wilson's own actions
severely hampered the efforts of counsel to assist
him. Prior to the start of voir dire, Wilson told the
trial court that he was rejecting the advice and
assistance of Hagedorn and Foote. However, Wilson's
brief fails to allege that even one juror was
improperly impaneled. Wilson did not allow defense
counsel to make an opening statement or closing
argument during the guilt phase of the trial. Wilson
did not testify or allow counsel to call any defense
witnesses. Wilson repeatedly told the court that
Hagedorn and Foote did not represent him but that he
could not represent himself.
Wilson did allow Hagedorn to cross-examine ten of
the prosecution witnesses. The record indicates that
to the extent that Hagedorn was permitted to
participate by Wilson, his performance was effective.
He elicited from the forensic pathologist that the
cause of death was unknown and that there was no
evidence of rape on the victim's corpse. He
effectively challenged the credibility of the
entomologist who had estimated the time of death.
He got the witness to admit that he had been told the
date of the victim's disappearance prior to his
examination of the corpse and resulting opinion.
Hagedorn made a detective concede that when he had
said no fingerprints were found on the victim's car, he
really meant that none of the defendants' fingerprints
were found because theirs were the only fingerprints
being considered. He brought out testimony that
Caucasian pubic hairs dissimilar to the victim's were
found inside the car; none of the fibers from Wilson's
clothes matched any fibers taken from the victim's
car; and that blood found inside the car could have
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been there for years because the age of blood cannot
be scientifically determined.
Wilson's brief is highly critical of what he terms
lengthy and bizarre remarks of Hagedorn prior to his
sentencing. However, we have read the remarks, and
considering the whole content, find them to be a
plausible and thought-provoking argument against
imposing the death penalty.
[3] Wilson in his reply brief contends that the
Strickland standard is not applicable and that the
issue is whether the trial court's refusal to grant his
pro se pretrial motion to discharge his appointed
counsel deprived him of his rights to counsel,
effective assistance of counsel and equal protection.
He contends that the bottom line is that he did not
and could not trust his appointed counsel and that the
trial court should have conducted an extensive
inquiry into his appointed counsel's background,
qualifications, fitness and alleged prior acts of
misconduct.
We rejected a similar contention in McQueen, supra,
wherein this Court unanimously stated:
There is no basis for McQueen's argument that
death penalty cases are so different as to represent
an entirely different area of expertise. Strickland,
supra, sets the standard for effectiveness of counsel
and it was a case involving the death penalty. 721
S.W.2d at 701.
Justice O'Connor correctly observed in Strickland:
The availability of intrusive post trial inquiry into
attorney performance or of detailed guidelines for
its evaluation would encourage the proliferation of
ineffectiveness*880 challenges. Criminal trials
resolved unfavorably to the defendant would
increasingly come to be followed by a second trial,
this one of counsel's unsuccessful defense.
Counsel's performance and even willingness to
serve could be adversely affected. Intensive
scrutiny of counsel and rigid requirements for
acceptable assistance could dampen the ardor and
impair the independence of defense counsel,
discourage the acceptance of assigned cases and
undermine the trust between attorney and client.
466 U.S. at 690, 104 S.Ct. at 2066.
The consequences of adopting the intensive pretrial
scrutiny of counsel such as advocated by Wilson
would have an even more devastating and adverse
effect. If such a standard were adopted, we shudder to
think of the impact it would have on the willingness
of attorneys to serve indigent defendants pro bono.
We are mindful of the authority cited by Wilson but
we fail to find in those cases any grant of authority
for a trial court to allow an indigent defendant to put
his appointed counsel on trial for alleged past
transgressions. Sawicki v. Johnson,
475 F.2d 183 (6th
Cir.1973), was decided pre- Strickland and involved a
situation where the defendant's appointed counsel
was dismissed by the trial court and the defendant
was forced to proceed without counsel. In Wilson v.
Mintzes,
733 F.2d 424 (6th Cir.1984)
, ineffective
assistance was found where defense counsel stated in
the presence of the jury that he refused to make any
further objections; that he refused to continue the
trial; and that he was no longer the defendant's
attorney. This case presents no such situation.
[4] In order to warrant a substitution of counsel
during trial, a defendant must show good cause, such
as a conflict of interest, a complete breakdown of
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communication, or an irreconcilable conflict which
leads to an apparently unjust verdict, and demonstrate
prejudice by the attorney's performance. Wilson,
supra,
733 F.2d at 427, 428.
Applying the standards
set by the Sixth Circuit, we find that Wilson was not
denied effective assistance in this instance. Wilson
has failed to demonstrate in any way that he was
prejudiced by Hagedorn's performance. Considering
all the evidence of guilt, we fail to see how the
verdict would have been any different had Wilson
been supplied with the best criminal defense attorney
in the nation.
III
[5] Wilson claims that the trial court violated
Kentucky Revised Statutes Chapter 31 and deprived
him of his rights to effective assistance of counsel
and equal protection by circumventing the public
defender system and appointing unqualified
volunteers rather than ordering the fiscal court to
provide adequate funds so that the public defender
administrator could assign competent, qualified
counsel to represent him.
We find no merit to this contention. Wilson concedes
in his reply brief that neither Chapter 31 of the
statutes, nor the United States or Kentucky
Constitutions, prohibit a circuit judge from
appointing a volunteer pro bono member of the bar to
represent a defendant in a capital case. For reasons
stated previously in arguments I and II, we reject
Wilson's contention that Hagedorn and Foote were
unqualified volunteers appointed to prevent the
public defender from assigning competent, qualified
counsel.
IV
[6] Wilson argues that the trial court deprived him of
his right to counsel by forcing him to proceed pro se
over his repeated objections and then isolated him
from any advice other than that of the appointed
counsel to whom he objected.
Wilson's counsel asserted during oral argument that
the trial court committed reversible error of a
constitutional dimension by failing to force him to
accept Hagedorn and Foote as his attorneys. Wilson's
counsel was questioned as to whether he could cite
any authority in support of his position. Counsel
responded by citing Marshall v. Dugger,
925 F.2d 374
(11th Cir.1991) and argued that the Sixth Amendment
right to counsel was more important and outweighed
a defendant's rights under *881 Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
In Marshall, supra, however, the trial judge only
inquired of the defendant whether he wanted to
represent himself. When the prosecutor requested that
the trial court explain to the defendant the drawbacks
and disadvantages of proceeding pro se, the trial
judge stated:
I believe that Mr. Marshall is aware of what it's
going to be like to represent himself. He is not
unfamiliar with the system, shall we say, and
obviously it's better to have an attorney than not
have an attorney. 925 F.2d at 376.
The prosecutor proceeded to warn the defendant of
some of the dangers of proceeding pro se. The trial
court made no other inquiry into the defendant's
awareness of proceeding pro se. The defendant's
discharged attorney left the courtroom and trial then
proceeded with the defendant representing himself
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alone. The Court went on to find that under the law of
the circuit, Marshall's actions were insufficient to
invoke the Sixth Amendment right of self-
representation. The trial court committed reversible
error in forcing Marshall to proceed without counsel.
We do not, however, find any language in Marshall
which suggests that the trial court should have forced
the defendant to have continued to accept the
representation of the assistant Public Defender.
In this case the trial judge repeatedly tried to warn
Wilson of the hazards he was facing. During jury
selection, before individual voir dire began, Wilson
told the trial court that he was rejecting the advice
and assistance of Hagedorn and Foote and that he
was proceeding pro se.
The trial court responded by twice asking Wilson
whether any other lawyers had agreed to defend him.
Wilson answered negatively both times. At that point
the trial court advised Wilson of his constitutional
right to proceed pro se with the assistance of standby
counsel appointed to represent him:
You do not have to accept Mr. Foote or Mr.
Hagedorn. You may go out there, sir, under Faretta
versus California and represent yourself. I am
appointing, and have appointed, and will appoint
Mr. Hagedorn and Mr. Foote to represent you. If
you do not wish them to represent you, they will be
out there to assist you if you wish. If you wish to
represent yourself, under the Constitutional
Amendments you have indicated to me, sir, you
certainly have that right, and I will certainly let you
do that.
Wilson responded, “I do.”
Moments later, Wilson said he did not “want to
proceed pro se” because “I don't know how to
proceed pro se.”
Judge Lape also explained to Wilson his option of
proceeding pro se with the benefit of standby
counsel. Judge Lape was also careful to explain at
some length the perils of proceeding pro se:
Now, Mr. Wilson, you had indicated in your motion
before that you were not going to permit Mr. Foote
and Mr. Hagedorn to represent you for the reasons
you have outlined in that, and I've advised you that
under Faretta v. California,
95 Supreme Court 225,
or 2525, that you're certainly entitled to represent
yourself. But it's also my obligation to tell you, sir,
after you have indicated to me that you're not
skilled, that a Defendant need not himself have the
skill and experience of a lawyer in order to
completely or competently and intelligently choose
self representation. You should be made aware of
the dangers and disadvantages of self
representation so that you know that what you're
doing you're doing with your eyes open. In other
words, sir, if you choose to represent yourself as
you indicated, this the capital offense case, you
choose to do that, you know the consequences, you
could certainly be sentenced to the electric chair
should the jury find you guilty and then
subsequently order that and if I agree. So knowing
that, you certainly have the right to represent
yourself, but I want you to understand that if you
do so, you do so at that risk.
Judge Lape then engaged in an on-the-record
colloquy with Wilson to make absolutely certain that
Wilson's decision to proceed*882 pro se was
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knowing, intelligent and voluntary:
MR. BURING: Judge, quite simply, in light of the
events of this morning with respect to Mr. Wilson,
Defendant Wilson in this action representing
himself, I wanted to call to the attention of the
Court a case by the name of United States v.
McDowell, It's a Sixth Circuit court case, 814 F.2d
245, decided in 1987, and I have a copy, I want to
have two copies, I have one for the Court. But what
I find most interesting with respect to this, it's a
similar issue, and what I would like to call to the
Court's attention and for the Court's review at this
time, that where an individual wants to represent
himself, there are apparently in the guidebook for
District Judges of the Federal District Court in a
book entitled Bench Book for United States
District Court Judges questions that the Sixth
Circuit, which obviously covers this jurisdiction
federally say ought to be asked and ought to have a
clear understanding. And before we start to proceed
again, I just wanted to tender this to the Court. If
the Court wanted to take a few moments to review
that and feel, so that it feels that it's comfortable-
JUDGE LAPE: Okay.
MR. BURING:-in its discussions with Mr. Wilson,
then we can proceed from there, but I thought we'd
take care of that at the present time rather than
wait.
JUDGE LAPE: Mr. Buring, I've reviewed that, and
I believe that many of the questions that would be
asked have been answered in the comments that
Mr. Wilson made to me in chambers before out of
the presence of the jury in the presence of his
appointed counsel and the counsel for Ms.
Humphrey, and Ms. Humphrey herself. However,
there was a couple of matters in here that I did not
address, so, therefore, I'm going to ask these
questions of Mr. Wilson. He can choose to answer
them. He doesn't have to answer them. Mr. Wilson,
have you ever studied law?
DEFENDANT WILSON: No, sir.
JUDGE LAPE: Have you ever represented yourself
in a criminal action?
DEFENDANT WILSON: No, sir.
JUDGE LAPE: You realize, do you not, sir that
you are charged with the crimes of kidnapping,
murder, robbery, rape, and conspiracy?
DEFENDANT WILSON: Yes, sir.
JUDGE LAPE: Do you realize that if you're found
guilty of the crimes, or any crime, that you could
be sentenced to the penitentiary for a term of years
and the ultimate could be that you could be
sentenced to the electric chair?
DEFENDANT WILSON: Yes, sir.
JUDGE LAPE: Do you realize that if you represent
yourself, I cannot tell you how to try the case, or
even advise you as to how to try the case, but I will
say this, that if there are any objectionable matters
brought up by the Commonwealth Attorney, I shall
so state that in the record.
DEFENDANT WILSON: Well, I'd like to assert
myself. I don't know how to defend myself.
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JUDGE LAPE: Okay. But I'm going to let you
make a statement after I ask you these questions.
DEFENDANT WILSON: All right.
JUDGE LAPE: All right, sir. Are you familiar with
the Kentucky Rules of Criminal Procedure and of
evidence?
DEFENDANT WILSON: No, sir.
JUDGE LAPE: All right. Do you realize that those
are the rules that provide how trials are conducted?
DEFENDANT WILSON: Yes, sir.
JUDGE LAPE: Do you realize that if you decide to
take the witness stand, you must present your
testimony by asking questions of yourself?
DEFENDANT WILSON: Yes, sir.
JUDGE LAPE: Okay. All right, sir. Then it is my
opinion that it would be far better for you to be
defended by a trained lawyer than by representing
yourself. I believe and think it is unwise of you to
try to represent yourself. You're not familiar with
the law, you're not familiar with the court
procedure, you're not familiar with the rules of
evidence, and at this time as I did earlier, I *883
strongly urge you not to try and represent yourself.
DEFENDANT WILSON: May I speak?
JUDGE LAPE: Is it your decision entirely? Is it
voluntary on your part, sir, to not have Mr.
Hagedorn and Mr. Foote whom I have assigned to
your case? Is it your desire to voluntarily represent
yourself?
DEFENDANT WILSON: I'm not voluntarily
representing myself. I don't know how to represent
myself. I can't represent myself. But I have a right
to competent counsel.
JUDGE LAPE: Well, we've gone over that, I'm
asking you, did you wish to represent yourself in
these proceedings. If you do, I want-Are you doing
this voluntarily, other than what you've said?
DEFENDANT WILSON: I don't know how to
defend myself.
JUDGE LAPE: All right. Very good, All right. I
still assign Mr. William Hagedorn and John Foote
as your counsel. If you wish to have them-
DEFENDANT WILSON: I object.
JUDGE LAPE: If you wish to have them assist
you, sir, you may certainly request them to do so. If
you choose not to, you voluntarily relinquish their
representation. And at this time, I find that the
Defendant has knowingly and voluntarily waived
his right to use counsel if he so chooses, and I will
permit him to represent himself, or to request of the
two assigned lawyers to him to help him if he so
chooses. Now, wait a minute, Mr. Wilson wanted to
make a statement, Mr. Hagedorn.
DEFENDANT WILSON: No. I've said what I've
had to say.
JUDGE LAPE: You finished? You have. All right,
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sir.
It is clear from a reading of the record that the trial
judge zealously made Wilson aware of the dangers of
the path that he had chosen.
In Wake v. Barker,
Ky., 514 S.W.2d 692 (1974)
, this
Court, citing Adams v. United States, ex rel. McCaun,
317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942),
stated:
The right to assistance of counsel and the
correlative right to dispense with a lawyer's help
are not legal formalisms. They rest on
considerations that go to the substance of an
accused's position before the law.... The
Constitution does not force a lawyer upon a
defendant. 514 S.W.2d at 695.
In United States v. McDowell,
814 F.2d 245 (6th
Cir.1987), the Federal trial judge's inquiry into the
defendant's decision to proceed pro se was much less
extensive than that by the trial judge in the present
case, but the Sixth Circuit found it to be sufficient.
The Court also rejected the defendant's argument that
the trial court was required to sua sponte declare a
mistrial on grounds that the defendant was not
receiving a fair trial. The Court found that the only
thing “unfair” about the trial was that the defendant
was not representing himself very well and that he
had refused to make use of the standby counsel
appointed by the court. 814 F.2d at 247-251.
In United States v. Kelm,
827 F.2d 1319 (9th
Cir.1987), the defendant was indicted on two counts
of willful failure to file federal income tax returns.
The trial was continued four times due to the
defendant's failure to retain counsel. Prior to trial, a
hearing was held for the purpose of determining the
status of Kelm's efforts to retain counsel. Kelm,
through standby counsel, informed the court that he
had been unable to obtain counsel, but that he did not
want to waive his right to representation. The Court
made a finding that the use by Kelm of a detailed
questionnaire to counsel and a requirement that
counsel be an experienced tax trial lawyer had
deterred and hindered counsel selection.
The case was eventually tried with Kelm conducting
his own defense, assisted by standby counsel. On the
second day of jury trial, Kelm informed the Court he
was unable to represent himself and asked that
counsel be appointed. The request was denied. After
he was found guilty on both counts, Kelm appealed
on the basis that he was denied effective
representation of counsel under the Sixth
Amendment.
*884 The Ninth Circuit rejected this argument and
found that:
In light of Kelm's persistent refusal to accept an
appointed attorney, to hire his own attorney, or to
expressly waive his right to an attorney, the district
court's decision not to grant further continuances
was “fair and reasonable.” Moreover, we think it is
a fair reading of the record as a whole that Kelm
understood the dangers and disadvantages of self-
representation. He knew he was entitled to counsel,
yet the record establishes that he elected to defend
himself with open eyes. (Citations omitted.) 827
F.2d at 1322.
Wilson's trial was delayed over a year due to
problems in procuring an attorney to represent him.
As in Kelm and McDowell, we believe that a fair
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reading of the record as a whole clearly indicates that
Wilson understood the dangers and disadvantages of
self-representation. He knew he was entitled to
counsel, yet the record clearly establishes that he
elected to proceed with his eyes wide open.
Wilson's course of conduct during the trial in his
persistent refusal to accept his appointed counsel, his
refusal to hire his own attorney or to expressly waive
his right to an attorney, and his insistence that the
court appoint him an attorney who met Wilson's
specifications as a death penalty expert clearly put
the trial judge between the proverbial rock and a hard
place. We believe that the trial court's decision to
allow Wilson to proceed with standby counsel was
under the circumstances fair and reasonable.
Wilson also complains that the trial court isolated
him from advice other than that of the appointed
counsel to whom he objected. We find no merit in
this contention. The trial court was only reinforcing
the rules established by the Kenton County Jail.
Contact visits with jail inmates are only permitted
with counsel of record, clergy and certain other
governmental officials such as social workers. Wilson
wanted attorneys Kevin McNally, Neil Walker and
Bob Carran to be allowed contact visits. None of
these individuals were counsel of record and
consequently they were prohibited by jail regulations
from contact visits. This Court rejected a similar
claim in the death penalty case of Moore v.
Commonwealth, supra. The trial court correctly
informed Wilson that any individual could visit him
during regular visiting hours.
V
Wilson claims he was denied his right to a public
trial. His complaint stems from the removal of then-
DPA lawyer Gail Robinson at the trial court's behest.
Wilson also offers a litany of incidents he alleges
were attempts by the trial judge to isolate him from
friends and supporters.
Near the outset of the trial, the trial court informed
the spectators of behavior deemed inappropriate in
the courtroom. The next day, the trial court again
reminded the spectators that gestures between
spectators and any party involved would not be
permitted and would result in the spectator's being
removed from the courtroom. Later, court personnel
informed the judge that a spectator was laughing and
making facial expressions while a juror was being
questioned. Once again, the court admonished the
audience concerning proper courtroom behavior.
[7] After lunch break on the last day of testimony
during the guilt phase, Attorney Foote notified the
court at the bench that he had observed a spectator
attempting to make contact with Wilson. Wilson
informed the court that the spectator was Gail
Robinson. The court had the bailiff tell Robinson to
leave. Instead of complying with the bailiff's request,
she asked to address the court. The judge refused the
request and asked her to leave. We cannot accept
Wilson's assertion that Robinson's removal denied
him his right to a public trial. She was ejected from
the courtroom for failure to comport with reasonable
guidelines established by the judge to maintain order
and decorum. The exclusion of one person from the
remainder of cross-examination of the last witness in
the guilt phase of a trial can hardly be characterized
as a denial of a public trial. There is no question
present invoking denial of a *885 public trial. We
believe that the trial judge was acting within his
authority to maintain control of the courtroom.
Preston v. Commonwealth,
Ky., 406 S.W.2d 398
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(1966).
[8] Wilson also complains that his friend, Eddie
Thompson, was excluded from the courtroom. We
find no merit in Wilson's complaint. Thompson was
subpoenaed by the Commonwealth in anticipation of
being called as a possible witness. Wilson had filed
affidavits which Thompson witnessed. If Wilson
testified, the Commonwealth anticipated that
introduction of the affidavits via Thompson might be
necessary for impeachment purposes. The trial court
had invoked the separation of witnesses rule and
therefore Thompson had been legitimately excluded
from the proceedings. In any event, Wilson stipulated
that he signed the affidavits. Consequently,
Thompson was allowed to rejoin the spectators,
having missed only a portion of the voir dire
proceedings.
VI
Wilson contends that his rights of confrontation and
due process were violated by the trial court's denial of
requests for relevant impeachment information
concerning prosecution witness Maloney.
[9] Wilson requested a very long list of information
to attack Maloney's credibility. Wilson claims such
information was exculpatory and was required to be
disclosed under Brady v. Maryland,
373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). Among some of
the items requested were copies of all correctional
institution files of the witness; any organizations to
which Maloney had ever belonged; any information
Maloney may have provided to any governmental
authority in any jurisdiction in any case; any prior
instances of Maloney ever lying or exaggerating; any
inmates the Commonwealth may have interviewed at
the jail to determine whether they spoke with Wilson;
and every case in which the Commonwealth used
informants. Clearly Wilson's request exceeded any
possible exculpatory material or information properly
attainable under RCr 7.24.
United States v. Agurs,
427 U.S. 97, 96 S.Ct. 2392,
49 L.Ed.2d 342 (1976), held that under the Brady
standard of disclosure, a prosecutor will not have
violated his or her constitutional duty of disclosure
unless his omission is of such a significance to result
in the denial of the defendant's right to a fair trial.
We have carefully examined the record in this case
and find that the prosecutor disclosed all the relevant
information he was required to disclose under RCr
7.24. Moreover, Wilson fails to show how any of the
requested information allegedly not disclosed could
have possibly affected the outcome.
Wilson has no complaint of denial of cross-
examination. He received the information to which
he was entitled. Even with this information, Wilson
chose not to cross-examine Maloney.
VII
[10] Wilson claims that the trial judge should have
been disqualified from the case because he had a
personal bias and hostility toward Wilson; that he had
prejudged the case and his presence gave the
appearance of partiality.
Wilson argues that the trial judge exhibited bias and
hostility toward him by allegedly calling him an
asshole; noting that apparently Wilson did not trust
any lawyer; expressing a belief that Wilson was
engaging in obstructionist tactics, and speaking to
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Wilson in an angry tone of voice before the jury.
Wilson filed a motion on July 29, 1988 to have the
trial judge recuse himself. The motion was forwarded
to the Chief Justice of the Kentucky Supreme Court
to be considered as a recusal affidavit pursuant to
K.R.S. 26A.020(1). The Chief Justice denied the
motion, finding it insufficient to indicate that a
special judge should be appointed. After a thorough
review of the record we find that Wilson's showing is
still insufficient.
Wilson fails to make any citation to the record where
the trial court stated he was engaged in obstructionist
tactics. As to *886 the alleged asshole comment and
the trial judge's tone of voice, this Court has taken
judicial notice of the toll a lengthy capital trial exacts
on a trial judge. Scruggs v. Commonwealth,
Ky., 566
S.W.2d 405 (1978). Even if the trial judge did make
an intemperate remark, whether Wilson's rights were
violated must be determined from the whole record.
Preston, supra.
An exhaustive reading of the entire record indicates
that the trial court treated Wilson with respect and
allowed Wilson to insert anything he desired into the
record to ensure Wilson received a fair trial. We have
documented earlier the trial court's efforts to advise
Wilson of the hazards of proceeding without counsel.
The trial court even informed Wilson that if the
Commonwealth brought up objectionable matters, the
court would so state in the record. The court allowed
Wilson to file, almost daily, the same motion for
fairness and justice. The judge even permitted Wilson
a recess immediately before his closing statement
because Wilson did not feel “too good right now.”
Considering all the circumstances of this case, we
believe that the trial court showed great patience and
excellent judicial temperament in the conduct of the
trial.
Wilson's charge that the trial judge had prejudged the
issues is not supported by the record. The trial court's
comment that Wilson doesn't trust attorneys is not
without foundation. As early as January 4, 1987,
Wilson was complaining about his attorneys' actions
on his behalf. However, viewed in the whole context,
the remark by the trial court appeared to indicate that
the court was concerned about providing Wilson with
counsel with whom he had some rapport.
We also reject Wilson's contention that the trial court
prejudged his case because it indicated Hagedorn and
Foote would be counsel for Wilson at the September
1, 1988 trial date. The context is important when
considering the judge's remarks. Hagedorn wanted to
know whether he was going to be responsible for
trying the case on September 1, 1988. The trial
court's need to ensure at that point continuity of
counsel cannot be deemed an expression of
prejudging the case.
We find no merit in Wilson's allegation that the trial
court had prejudged the case because he assumed
appointed counsel was competent and refused to
permit allegations of unethical conduct against
Hagedorn. We have rejected this argument
previously. A trial judge does not prejudge by making
a pretrial assumption that counsel is competent.
Counsel must be assumed competent until the
performance of counsel in a particular case before the
court demonstrates the contrary. Strickland v.
Washington, supra; United States v. Cronic,
466 U.S.
648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Wilson finally contends that even if the trial court
were not prejudiced, the appearance of partiality
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existed mandating reversal. K.R.S. 26A.020(1) is a
safeguard available to defendants for determination
before trial of the existence of alleged partiality by
the trial court. This procedure was available and used
by Wilson. No adequate showing of partiality was
demonstrated.
VIII
Wilson asserts that the failure to grant him a separate
trial from Humphrey denied him a fair trial and
reliable sentencing contrary to the Sixth, Eighth and
Fourteenth Amendments to the United States
Constitution and Sections 2, 11 and 17 of the
Kentucky Constitution.
It is clear that significant interests are served by
having a joint trial of the accused and the
codefendant before a single jury as to both the guilt
and penalty phases because much of the same
evidence would be presented at both phases of the
capital trial. It is appropriate not to burden the
prosecution or the defense with having to present the
evidence and testimony twice. Also underlying the
state's interest in a joint trial is a related interest in
promoting the reliability and consistency of the
judicial process, an interest that may benefit the
noncapital defendant as well, because the jury obtains
a more complete view of all the acts relating to the
charges than *887 would be possible in separate trials
and may be able to arrive more reliably at its
conclusion regarding the guilt or innocence of a
particular defendant and to assign fairly the
respective responsibilities of each defendant at
sentencing. The state's interest in a joint trial is also
connected to a concern that it not be required to
undergo the burden of presenting the same evidence
to different juries where two defendants, only one of
whom is eligible for a death sentence, are charged
with crimes arising out the same events. Buchanan v.
Kentucky,
483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d
336 (1987).
Due to this legitimate preference for joint trials, a
defendant is not entitled to severance unless he
makes a positive showing prior to trial that joinder
would be unduly prejudicial.
RCr 9.16;
Commonwealth v. Rogers,
Ky., 698 S.W.2d 839
(1985).
[11]
[12]
A reviewing court will not reverse a
conviction for failure to grant separate trials unless it
is clearly convinced that prejudice occurred and that
the likelihood of prejudice was so clearly
demonstrated to the trial judge as to make his failure
to grant severance an abuse of discretion. Epperson
and Hodge v. Commonwealth,
Ky., 809 S.W.2d 835
(1991); Wilson v. Commonwealth,
Ky., 695 S.W.2d
854 (1985); Rachel v. Commonwealth,
Ky., 523
S.W.2d 395 (1975). A defendant must show that
antagonism prevented a jury from being able to
separate and treat distinctively evidence that is
relevant to each particular defendant at trial and that
the antagonism between codefendants will mislead or
confuse the jury. Cf. United States v. Gallo,
763 F.2d
1504 (6th Cir.1985); United States v. Horton,
847
F.2d 313 (6th Cir.1988).
[13]
[14]
Wilson complains that Humphrey asserted a
coercion defense which was antagonistic with his
lack of a defense. That the defenses of jointly
indicted persons may be antagonistic is only a factor
for the trial court to consider in making his or her
determination as to whether a defendant will be
prejudiced by a joint trial. Rachel, supra; McQueen,
supra. Wilson has failed to point out any specific
reference in the record where he was unduly
prejudiced by this.
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Wilson also argues that evidence unrelated to him
was introduced during his trial but would have been
excluded had separate trials been granted. He
contends that this constitutes error under Cosby v.
Commonwealth,
Ky., 776 S.W.2d 367 (1989)
. We do
not agree. In Cosby, a codefendant's statement that
the other defendant alone stabbed the victim required
reversal for failure to provide separate trials even
though the court admonished the jury that the
statement was not evidence against the defendant.
However, the case against the defendant in Cosby
was not overwhelming and was based on
circumstantial evidence. The codefendant's statement
was the only evidence of defendant's use of a knife,
and the closing argument by codefendant's attorney
implied that the defendant was the “blank” referred to
in the statement. Cosby is not applicable to this case.
Both Wilson and Humphrey admitted the crimes to
other persons. The evidence presented during the
guilt phase against Wilson was largely the same
evidence against Humphrey. Moreover, Humphrey
testified during the case-in-chief and was subject to
cross-examination by Wilson.
We fail to find how the joinder unduly prejudiced
Wilson. Wilson was the one who actually raped and
killed the victim, so it was not unexpected for him to
receive greater punishment than Humphrey on those
charges. The same was true concerning the
kidnapping charge for it was Wilson more so than
Humphrey who actually prevented the victim from
being released alive. The jury found Wilson and
Humphrey equally guilty on the robbery charge.
The extent of Humphrey's participation in the crimes
was significant, but this distinction could have been
lost on the jury in her absence from Wilson's trial.
Humphrey's presence served as a reminder to the jury
that Wilson was not solely responsible for the crimes.
Under these circumstances, we find no abuse of
discretion by the trial court.
*888 IX
[15] Wilson alleges that the trial court denied him a
fair trial by denying his request for a change of venue
and refusing to sequester the jury during the trial.
Wilson did not file a motion for a change of venue
pursuant to K.R.S. 452.210 and consequently there
was no hearing by the trial court specifically on this
issue. However, after carefully reviewing the record
we find that there was no indication that the seated
jury was anything but fair and impartial.
[16]
[17]
[18]
Under either the due process clause or
K.R.S. 452.210, a change of venue should be granted
if it appears that the defendant cannot have a fair trial
in the county wherein the prosecution is pending.
Brewster v. Commonwealth,
Ky., 568 S.W.2d 232
(1978). In order for a change of venue to be granted
there must be a showing that: 1) There has been
prejudicial news coverage, 2) It occurred prior to
trial, and 3) The effect of such news coverage is
reasonably likely to prevent a fair trial. Brewster,
supra, citing Sheppard v. Maxwell,
384 U.S. 333, 86
S.Ct. 1507, 16 L.Ed.2d 600 (1966). The mere fact
that jurors may have heard, talked or read about a
case is not sufficient to sustain a motion for change of
venue, absent a showing that the accounts or
descriptions of the investigation and judicial
proceedings have prejudiced the defendant. Brewster.
The trial court has discretion in this determination
and will not lightly be disturbed. Kordenbrock v.
Commonwealth,
Ky., 700 S.W.2d 384 (1985)
.
An examination of the record indicates that, although
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almost every potential juror had heard or read
something about the initial disappearance of the
victim or arrest of the defendants, most did not
remember details and had not prejudged the case.
The trial court allowed the Commonwealth ten
peremptories and each defendant fourteen. A panel
from which to exercise peremptories was obtained
after individual voir dire examination of only 56
potential jurors. Of the 56, only four were excused
for cause. Only one juror of the four excused for
cause had to be excused because he had prejudged
the case. Of the remaining 52 jurors only three had
any knowledge of Wilson's problem vis-a-vis his
counsel. All three indicated they had no problem with
Wilson being involved in the defense of his case and
this fact would have no effect on their ability to sit as
a juror. Only one of these individuals served on the
jury. There was no showing that the media accounts
had pervaded the jurors and prevented Wilson from
having a fair trial.
[19] Wilson also contends he was denied a fair trial
because the trial court failed to sequester the jury
prior to the submission of the case for determination
of guilt and between the guilt and sentencing stages
of the trial. We do not agree. The decision to
sequester the jury resides within the discretion of the
trial court from the onset of the proceedings. The trial
court undertook proper precautions to insure the jury
was isolated from spectators, parties and the press.
Once selected, the jury was kept together as a group
and properly admonished. Prior to resumption of the
sentencing hearing, the trial court questioned the
jurors about any possible media exposure. No juror
responded affirmatively. Wilson has failed to
demonstrate how he suffered any prejudice by the
exercise of the trial court's discretion.
X
[20] There is no evidence in the record that Wilson
was tried by anything other than a fair and impartial
jury. His assertion that the jury selection process was
a “sham” is without merit. Wilson, on his own,
decided not to participate in the voir dire process and
did not seek to remove jurors for cause. The trial
judge carefully explained the procedure for
exercising peremptory challenges but Wilson refused
to exercise his challenges or allow his standby
counsel to assist him. Attorney Hagedorn had
prepared a general voir dire which would have taken
some time to complete. Hagedorn and attorney Foote
were also prepared to question prospective jurors
during the individual voir dire. On the first day of
individual voir dire, Wilson did *889 allow Foote to
question prospective jurors. It was not until the
second day of individual voir dire that Wilson
prohibited his standby counsel from participating in
further individual voir dire. He cannot be heard to
complain that he did not receive a fair and impartial
jury. Stanford v. Commonwealth,
Ky., 734 S.W.2d
781 (1987).
In addition, Wilson cannot effectively maintain that
he was prejudiced in any way because of a lack of
information in regard to the jury data
sheets/questionnaire.
[21] There is no indication that the jury panel was not
representative of blacks. Wilson's calculation of
blacks on the panel was 4.76%. This figure is within
the range of blacks in the community which is
indicated in the record to be no more than 7%. The
jury panel was selected at random by a computer
process operated by the Secretary of State. An
examination of the record indicates that there was no
violation of Batson v. Kentucky,
476 U.S. 79, 106
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S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecution
exercised one peremptory challenge against a black
person and a suitable neutral explanation was given
for the exclusion of this juror.
XI
[22]
[23]
[24]
Wilson's argument that he was deprived
of a fair trial and due process by the admission of
unnecessary and inflammatory photographs and
testimony is totally without merit. An examination of
the photographs in the record indicates that there are
no gruesome photographs of a corpse or anything
else that would serve to inflame or prejudice the jury.
The photos disclose a great deal of foliage in a rural
setting and the location and condition of the body. No
photograph reflects any inflammatory scene. The
introduction of a single photograph of the victim
taken before death was permissible. McQueen v.
Commonwealth,
Ky., 669 S.W.2d 519 (1984)
. Wilson
also objected to the testimony of the forensic
entomologist concerning blowfly life cycles. We find
no error in allowing the testimony. The condition in
which the victim's corpse was found was an
important issue of fact. The testimony was also
relevant to the issue of when the victim died.
XII
[25] Wilson was not denied equal protection of the
law or due process because no independent experts
testified in his behalf. Wilson contends that the
prosecution relied heavily on the expert testimony of
a pathologist, entomologist and serologist while he
was without expert assistance.
Wilson now claims that his counsel refused to obtain
the assistance of experts. On February 11, 1988, the
trial judge allocated $2,500 for the use of experts to
assist the defense and indicated that as the need arose
for more funds, if any, the necessity for such
expenditures would have to be approved by the court.
Wilson's attorney at that time, Kevin McNally, had
arranged for experts in hair analysis, serology and
family background. Funds were approved to pay the
three experts at that time. There is no indication in
the record that McNally ever used these experts once
the funds were made available. When attorney
McNally was released as counsel of record, he
declined to turn over defense files to Wilson's
appointed standby counsel without authorization
from Wilson, and Wilson refused to allow the new
counsel access to the files.
As we have previously noted, although Wilson
intermittently refused to accept the assistance of his
standby counsel, he did want attorney Hagedorn to
cross-examine the “scientific witnesses.” The record
indicates that Hagedorn effectively cross-examined
the pathologist, the entomologist and the serologist.
The expert testimony of the prosecution simply
tended to corroborate the testimony of other lay
witnesses. Wilson does not indicate exactly how the
use of his own experts might have affected his own
defense or the ultimate outcome of the case. He
refused to allow his standby counsel to call any
witnesses either expert or lay. Consequently, he has
no basis on which to now complain to this Court. Cf.
RCr 9.24.
*890 XIII
[26] Wilson argues that he was deprived of a fair trial
by the admission of evidence of hair “matching”
which was not sufficiently scientifically reliable. An
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expert witness testified that hairs found inside the car
of the victim were similar in microscopic comparison
to head and pubic hair samples taken from Wilson.
Wilson's argument goes to the weight of the evidence
rather than to its admissibility. The witness testified
that such comparisons are not conclusive but Wilson
could not be automatically ruled out. The expert
testimony concerning the hair comparisons was
properly introduced. Ford v. Commonwealth,
Ky.,
665 S.W.2d 304 (1983); Murphy v. Commonwealth,
Ky., 652 S.W.2d 69 (1983).
XIV
[27] Wilson claims that he was entitled to a mistrial
when the mother of the victim had an allegedly
emotional outburst in the courtroom. The incident
occurred in the morning before codefendant
Humphrey testified. Wilson did not advise the trial
judge until some time after the alleged occurrence.
The trial judge was skeptical of Wilson's labeling of
the incident as an “outburst.” The trial judge noted
that he saw the woman leave and that she made no
noise. There is no indication that the trial judge
abused his discretion and there was no showing of
any prejudice to Wilson. The record is silent as to
whether the jury was even present when the incident
took place. The trial judge was in the best position to
determine whether any remedial action was necessary
to preserve decorum and ensure a fair trial. Preston,
supra.
XV
[28] Wilson was not deprived of a fair trial when a
potential juror who did not sit on the jury considering
the case was not excused for cause. The right to a fair
and impartial jury is not infringed if an unqualified
juror does not participate in the decision of the case.
Sanders v. Commonwealth,
Ky., 801 S.W.2d 665
(1991).
XVI
[29]
[30]
Wilson contends that he was deprived of his
right to a fair jury by the death qualification of jurors
and the exclusion of death-scrupled jurors by the
prosecutor's exercise of peremptory challenges. We
do not agree. It is proper to death qualify the jury in a
capital case. There is no constitutional prohibition to
a prosecutor using peremptory challenges to remove
potential jurors. Opposition to capital punishment
does not put a person in a constitutionally
recognizable group exempt from peremptory
challenge on that basis. Lockhart v. McCree,
476 U.S.
162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).
XVII
Wilson argues that his constitutional guaranty against
double jeopardy as well as his right to be free from
multiple punishments was violated when he was
convicted of conspiracy to commit robbery and
robbery.
[31] The conviction for robbery and conspiracy to
commit robbery did not constitute double jeopardy
under Kentucky law or the Federal Constitution. The
evidence presented indicated a plan or conspiracy by
both defendants to kidnap the victim and to rob her as
well as to take any other illegal actions in order to
achieve the successful completion of their criminal
enterprise. It is clear that the codefendants intended
to kidnap the victim in order to commit the robbery
and subsequently the rape by Wilson and the killing
of the victim by Wilson occurred. Clearly there were
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multiple illegal actions in the kidnapping and robbery
and K.R.S. 506.110(2) applies.
XVIII
[32] The imposition of the death sentence for
kidnapping and a death sentence for murder was
improper pursuant to the existing law of Kentucky
enunciated in
Cosby, supra,
and
Taylor v.
Commonwealth,
Ky., 821 S.W.2d 72 (1991)
. Cosby
stated that murder and kidnapping merge at the
enhancement stage. A defendant can be convicted and
punished for both *891 offenses, but not sentenced to
death for kidnapping if he is also sentenced to death
for murder. This aspect of the case requires a remand
for resentencing on kidnapping as a Class A Felony.
XIX
[33]
[34]
Wilson maintains that robbery and rape were
not properly used to prove an element of kidnapping
or to establish aggravating circumstances for murder
and kidnapping. The basis for his argument is double
jeopardy. K.R.S. 509.050 recognizes that the felonies
used to support kidnapping may be punished as
separate crimes. Application of the kidnapping
exemption statute is on a case-by-case basis. Where
the restraint goes beyond that which occurs
immediately with and incidental to the commission of
an offense, such as rape or robbery, the offender is
guilty of kidnapping and the exemption statute does
not apply. Gilbert v. Commonwealth,
Ky., 637 S.W.2d
632 (1982). Here the restraint necessary to complete
the crimes of rape and robbery was not close in
distance and brief in time.
Timmons v.
Commonwealth,
Ky., 555 S.W.2d 234 (1977)
. The
victim was abducted and forced into her own car by
Wilson. She was then driven by Humphrey to an area
behind the flood wall where she was forced out of the
car while Humphrey went to fill the automobile with
gas. No rape or robbery had occurred at this time.
When Humphrey returned, the victim was again
forced into the car in the back seat with Wilson while
Humphrey drove along the Ohio River finally
crossing into Indiana near Hebron. During this drive,
the victim was robbed and raped as well as killed.
The restraint of the victim was not incidental to the
commission of robbery or rape.
[35] The second argument by Wilson is that the rape
and robbery convictions at the guilt phase cannot be
used to prove aggravating circumstances for murder
and kidnapping at the penalty phase. The rationale
used in Lowenfield v. Phelps,
484 U.S. 231, 108 S.Ct.
546, 98 L.Ed.2d 568 (1988) is applicable here. K.R.S.
532.025 does not require that the defendant be
punished for the same offense twice. The statute only
requires that the aggravating circumstances be used
only to determine whether the crime of murder
should receive the death penalty. If the aggravating
circumstance cannot be proved, then the penalty of
death cannot be imposed. K.R.S. 532.030(2).
Simply because the aggravating circumstance
duplicates one of the underlying offenses does not
mean that the defendant is being punished twice for
the same offense. The underlying offenses were only
factors to be considered as to whether the punishment
for murder should be death. Wilson was not subjected
to double jeopardy or multiple punishment for the
same offense.
XX
[36] Wilson argues that he was denied due process of
law because the prosecution used the same facts to
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prove two separate aggravating circumstances,
murder committed during the commission of a
robbery and murder committed for profit.
The aggravating circumstance of robbery relates to
the taking of the victim's property in the course of
committing theft. K.R.S. 515.020(1). The murder for
profit aggravating circumstance goes beyond the time
when her property was physically taken from her in
the course of committing a theft. The credit cards of
the victim were used the day after her death when
Wilson and Humphrey purchased a number of items
for themselves with the cards. Clearly, they obtained
something of monetary value which profited them.
Use of the credit cards is not the same act as the
robbery of the victim. The two aggravating
circumstances are not the same as to either time or
place. The jury properly found the existence of two
distinct aggravating factors.
[37] In any event, the aggravating circumstances of
first-degree robbery and first-degree rape are
sufficient to sustain the death sentence. Simmons v.
Commonwealth,
Ky., 746 S.W.2d 393 (1988)
; Zant v.
Stephens,
462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d
235 (1983).
*892 XXI
[38] The death sentence imposed on Wilson was not
inappropriate, arbitrary, discriminatory, unusual or
disproportionate. The sentence was not fixed because
he was black or because he chose to limit his standby
counsel's participation in his defense. The sentences
were imposed because he was found guilty as
charged.
Pursuant to K.R.S. 532.075, we have made a careful
review of the record and have determined that the
death sentence was not imposed under the influence
of passion, prejudice or any other arbitrary factor.
The death sentence was not excessive or
disproportionate to the penalty imposed in similar
sentences since 1970 considering both the crime and
the defendant. Those cases have been previously
recited by this Court most recently in Simmons v.
Commonwealth,
Ky., 746 S.W.2d 393 (1988)
and that
list is incorporated herein by reference, and our
review in this case is in accordance with K.R.S.
532.075(5). In addition, we have also considered the
case of Moore v. Commonwealth,
Ky., 771 S.W.2d 34
(1989); Epperson and Hodge v. Commonwealth,
Ky.,
809 S.W.2d 835 (1991), and
Taylor v.
Commonwealth,
Ky., 821 S.W.2d 72 (1991)
. We have
conducted an independent review of all the
circumstances and conclude that they exceed any
minimum threshold justifying capital punishment.
XXII
The capital penalty phase instructions properly
guided and channeled the jury's discretion.
XXIII
[39] Wilson's complaint about format of the capital
sentencing verdict forms is without merit. A review
of the verdict forms and the potential interpretation
the jurors gave them involves consideration of the
instructions they were given. The inquiry we make
involves what a “reasonable juror” would understand
the charge to mean. Frances v. Franklin,
471 U.S.
307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). The
specific instructions given to the jury regarding
aggravating circumstance were clear. The Wilson jury
was properly instructed that the finding of an
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836 S.W.2d 872
(Cite as: 836 S.W.2d 872)
aggravating circumstance did not require imposition
of the death penalty. Skaggs v. Commonwealth,
Ky.,
694 S.W.2d 672 (1985).
XXIV
Wilson's final argument about cumulative error is
misplaced. In view of the fact that we did not
determine any specific reversible error, we do not
find any cumulative error. Cf. McDonald v.
Commonwealth,
Ky., 554 S.W.2d 84 (1977)
and
Michigan v. Tucker,
417 U.S. 433 at 446, 94 S.Ct.
2357 at 2365, 41 L.Ed.2d 182 (1974). He received a
fair trial.
The judgment of conviction is affirmed. This matter
is remanded as to the imposition of sentence in regard
to the kidnapping charge.
STEPHENS, C.J., and LAMBERT, REYNOLDS,
SPAIN and WINTERSHEIMER, JJ., concur.
LEIBSON, J., files a separate opinion dissenting in
part, in which COMBS, J., joins.
LEIBSON, Justice, dissenting in part.
Respectfully, I dissent from so much of the holding as
affirms Wilson's conviction for conspiracy.
KRS 506.110 embodies the general rule that one
cannot be convicted of both a conspiracy to commit a
crime and the actual crime. The underlying theory of
this rule propounds that the conspiracy, being an act
of preparation, merges into the completed offense.
The lesser offense of conspiracy becomes a part of
the larger criminal act.
The statute bars double conviction in the situation
where all of the criminal objectives of the conspiracy
have been consummated and received convictions.
Thus, where a conspiratorial agreement contains
multiple criminal objectives, KRS 506.110(2) permits
a conviction for the substantive crime and for the
conspiracy if some of its objectives have not reached
a conviction *893 for a substantive crime. In this
situation the whole conspiratorial agreement has not
completely merged into convictions for the
substantive criminal acts. The conspiracy, comprised
of multiple objectives, remains separate and larger
than the one criminal conviction.
For instance, suppose Smith & Wesson conspire to
commit four robberies, but the police apprehend them
after the third robbery. The defendants can be
convicted of the three robberies and the conspiracy to
make four robberies. If we weren't allowed to convict
of the conspiracy in this situation, then the act of
agreeing to make a fourth robbery would go
unpunished. However, if Smith & Wesson had
successfully committed all four robberies before their
arrest, we could only legitimately convict them of the
four robberies and could not add on a conspiracy
conviction. The conspiracy has completely merged
into the commission of the four robberies. No act of
preparation remains unpunished. The general rule
that bars double conviction would apply in this
scenario.
In the present case, assuming arguendo that the
Commonwealth proved a conspiracy existed
containing as multiple objectives both kidnapping
and robbery, KRS 506.110(2) does not permit a
conviction of both kidnapping and robbery AND the
conspiracy to kidnap and rob. All of the criminal
objectives of the conspiracy have merged into the
convictions for the substantive crimes. The general
rule barring the double conviction should apply.
Every act of preparation has merged into the
commission of the crime and received a conviction.
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836 S.W.2d 872
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Nothing is left to punish.
All of this is explained in the Model Penal Code and
Commentaries, drafted by the American Law
Institute, which was the source of the Kentucky Penal
Code, KRS 506.110.
COMBS, J., joins this dissent.
Ky.,1992.
Wilson v. Com.
836 S.W.2d 872
END OF DOCUMENT
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
