MIGUEL SOTO V COMMONWEALTH OF KENTUCKY
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RENDERED : APRIL 22, 2004
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2000-SC-0828-MR
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MIGUEL SOTO
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APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A . FRITZ, JUDGE
99-CR-41
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant, Miguel Soto, was convicted by an Oldham Circuit Court jury of the
murders of his former mother- and father-in law, Edna and Armott Porter, the attempted
murder of his ex-wife, Armotta Porter, the first-degree wanton endangerment of his
three-year-old daughter, Brianna, the first-degree burglary of the Porter residence, and
tampering with physical evidence . He was sentenced to death for each murder
conviction, to twenty years imprisonment each for his convictions of attempted murder
and first-degree burglary, and to five years imprisonment each for his convictions of
wanton endangerment and tampering with physical evidence . He appeals to this Court
as a matter of right. Ky. Const. § 110(2)(b) ; KRS 532.075(1). For the reasons
explained herein, we affirm .
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Appellant married Armotta Porter in August 1995 . They separated two months
later. Armotta and her fifteen-year-old son from a previous marriage then moved into
the Crestwood, Kentucky, residence of her parents, Armott and Edna Porter. According
to Armotta, Appellant "stalked" her during the months following their separation .
Armotta was pregnant with Appellant's child when they separated . That child, their
daughter Brianna, was born in May 1996 . Appellant and Armotta were divorced one
month later.
Appellant came to the Porter home in July 1996 asking to see Armotta. At
Armotta's request, her father advised Appellant that she did not wish to see him and
ordered him to leave . In August 1996, the Porter residence was burglarized . The
perpetrator left a coat at the scene that the Porters believed belonged to Appellant . Mr.
Porter filed a criminal complaint in the Oldham District Court charging Appellant with
burglary in the second degree, a Class C Felony. KRS 511 .030(2). On October 17,
1996, the day of the preliminary hearing, the Oldham District Court dismissed the
charge without prejudice conditioned upon Appellant having no further contact with the
complaining witness (Mr. Porter), reenlisting in the military service within sixty days, and
remaining away from Oldham County, Kentucky. Appellant reenlisted in the United
States Army and lived in California until he was reassigned to Ft. Knox, Kentucky, in
April 1999 . The Porters had no contact with him after October 17, 1996, until June 29,
1999.
On June 26, 1999, Monica Nahand, with whom Appellant had been living for
approximately one month, ordered him to move out of her residence . Before leaving,
Appellant gave away or otherwise discarded all of his personal belongings except for
the contents of a black duffel bag, explaining that he did not need his belongings
"where he was going ." Three days later, on June 29, 1999, Appellant, armed with a .38
caliber revolver and a .45 caliber automatic pistol, parked his automobile at the
Crestwood Army Recruiting Station and walked three miles to the Porter residence .
When he arrived at approximately 5:30 p.m., Mrs. Porter was inside the house and Mr.
Porter was outside working in the garden . Appellant concealed himself in a shed where
Mr. Porter stored his garden tools. When Mr. Porter entered the shed, Appellant killed
him by shooting him once in the chest and once in the back with the .38 revolver .
Leaving Mr. Porter's corpse in the shed and placing a board against the shed's door,
Appellant entered the residence and killed Mrs. Porter, also shooting her once in the
chest and once in the back with the .38 revolver. He wrapped her corpse in a comforter
and placed it at the foot of her bed, then waited for Armotta.
Armotta arrived at the residence with Brianna' shortly before 6:00 p.m . and
parked her automobile in the attached garage . When she entered the kitchen, she was
immediately confronted by Appellant who placed the .45 automatic pistol to her head
and told her that he had killed her parents and intended to kill her. Armotta persuaded
Appellant not to kill her in the presence of their daughter but to take her someplace
away from the residence in her automobile . Once inside the garage, Armotta attempted
to escape by running back into the house . As she opened the door to the kitchen,
Appellant shot her in the back with the .45 automatic . The bullet entered Armotta's
lower back, pierced her kidney and colon, and exited through her lower abdomen . Still,
she managed to close and lock the door, shielding Brianna with her body. Appellant
fired two additional rounds through the door, one of which struck Armotta's left knee .
Armotta managed to dial 911 for emergency assistance .
At approximately 6:30 p.m ., Appellant appeared at the residence of Mitch
Nobles, a retired police detective who lived near the Porter residence and who had
attended Appellant and Armotta's wedding . Appellant ultimately confessed to shooting
all three victims . Although the police never located the .45 automatic, they found the
.38 revolver under a stack of folded clothes on a clothes dryer inside the Porter
residence . A ballistics test matched the .38 revolver with the bullet fragments removed
from the bodies of Mr. and Mrs . Porter . The serial number on the .38 revolver matched
that of a weapon that a former employer had issued to Appellant, which Appellant had
not returned .
I . INDICTMENT.
Appellant asserts that the indictment charging him with two counts of capital
murder was defective because it did not recite the statutory aggravating circumstances
upon which the Commonwealth relied to authorize capital punishment . He interprets
three recent decisions of the United States Supreme Court, i .e . , Jones v. United States ,
526 U.S . 227, 119 S .Ct. 1215, 143 L .Ed .2d 311 (1999), Apprendi v. New Jersey, 530
U .S . 466, 120 S.Ct . 2348, 147 L .Ed .2d 435 (2000), and Ring v. Arizona , 536 U.S . 584,
122 S.Ct . 2428, 153 L.Ed.2d 556 (2002), as requiring that an indictment charging a
defendant with a capital offense must recite the aggravating circumstances authorizing
capital punishment .
Jones, supra , held that the Sixth Amendment requires that facts triggering the
provisions of the federal car-jacking statute, 18 U.S .C . § 2119, that authorize higher
penalties if the offense resulted in serious bodily injury or death, must be charged in the
She had left her son at a nearby baseball park.
indictment . Id. at 251-52, 119 S.Ct. at 1228. The Court concluded that those
provisions were not mere sentencing factors but were elements of the offense. Id . ;
compare KRS 509.040(2) (offense of kidnapping enhanced from Class B felony to
Class A felony if victim suffered serious physical injury, and to capital offense if victim
died during or as a result of the kidnapping) .
In Apprendi, supra, the defendant was convicted of a second-degree firearm
offense that was enhanced pursuant to an independent "hate crime" statute that
authorized imposition of an enhanced sentence if the trial judge found by a
preponderance of the evidence that the crime was motivated by racial bias . Finding
that the "preponderance of the evidence" standard violated the Fourteenth Amendment,
Id . at 497, 120 S.Ct. at 2366-67, the Court held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Id . at 490, 120 S.Ct. at 2362-63. However, Apprendi did not address the failure
of the indictment to charge a violation of the hate crime statute . Id . at 477 n.3, 120
S .Ct . at 2356 n .3 ("Apprendi has not here asserted a constitutional claim based on the
omission of any reference to sentence enhancement or racial bias in the indictment
. . . . We thus do not address the indictment question separately today.").
Ring , supra, held that an Arizona statute permitting a trial judge sitting without a
jury to determine the presence or absence of statutory aggravating factors necessary to
impose the death penalty, violated the Sixth Amendment right to trial by jury. Id . at 609,
122 S .Ct. at 2443 (overruling Walton v. Arizona , 497 U .S . 639, 110 S.Ct. 3047, 111
L.Ed .2d 511 (1990)). "Capital defendants, no less than non-capital defendants, we
conclude, are entitled to a jury determination of any fact on which the legislature
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conditions an increase in their maximum punishment ." Id . at 589, 122 S .Ct. at 2432.
Ring also did not address the constitutionality of the indictment. Id . at 597 n.4, 122
S.Ct. at 2437 n.4 ("Ring's claim is tightly delineated : He contends only that the Sixth
Amendment required jury findings on the aggravating circumstances asserted against
him . . . . Ring does not contend that his indictment was constitutionally defective .")
Apprendi and Ring focused on a defendant's procedural due process rights .
Appellant, however, interprets Ring as holding that aggravating circumstances are,
substantively, elements of the offense, not factors relevant only to sentencing . He cites
Jones , supra, for the proposition that such elements must be recited in the indictment .
Under federal law, an indictment must set forth all of the elements of the offense.
Hamlina v. United States, 418 U.S . 87,117, 94 S .Ct. 2887, 2907, 41 L .Ed .2d 590
(1974) . Factors relevant only to sentencing, however, are not elements of the offense .
Almendarez-Torres v. United States , 523 U .S. 224, 228, 118 S .Ct . 1219, 1223, 140
L .Ed .2d 350 (1998) . Regardless, we are not bound by federal law on this issue
because, as noted in Apprendi , supra , the Fourteenth Amendment has never been
construed to incorporate against the states "the Fifth Amendment right to 'presentment
or indictment by a Grand Jury."' Id . at 477 n .3, 120 S .Ct. at 2355 n .3 (citation omitted) .
Thus, while Appellant's interpretation of Jones, Apprendi , and Ring may be an accurate
prediction of the future course of federal law, we decline to adopt that interpretation
and, instead, apply existing Kentucky law to his issue.
2 Several states share this view . See, e.g. , Terrell v. State , 572 S . E.2d 595, 602 (Ga .
2002) ( Apprendi and Ring did not render unconstitutional Georgia procedure that
provided notice of aggravating factors through other means, such as written notice);
State v. Tisius , 92 S .W.3d 751, 766-67 (Mo. 2002) (Apprendi did not require inclusion
of aggravating circumstances in indictment because death was the maximum penalty
for murder in Missouri) ; State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002) ("The
Criminal Rule (RCr) 6 .10(2) provides that an indictment is sufficient if it contains
"a plain, concise and definite statement of the essential facts constituting the specific
offense with which the defendant is charged ." Further, RCr 6 .10(1) requires only that
the indictment provide sufficient information to give the defendant notice of the
charge(s) . Caudill v. Commonwealth , Ky., 120 S .W .3d 635, 650 (2003); Thomas v.
Commonwealth , Ky., 931 S .W.2d 446, 449 (1996) . Count I of the indictment charged
that:
On or about June 29, 1999, in Oldham County, Kentucky, the abovenamed defendant, MIGUEL SOTO, committed the offense of Murder
when he entered the home of Armott and Edna Porter, without
permission, while armed with a deadly weapon and while engaged in the
commission of Burglary in the first degree, with the intent to cause the
death of another he caused the death of Armott Porter by shooting him
with a firearm, all in violation of KRS 507.020 and 532.025, contrary to
other laws, statutes and regulations as made and provided in such cases
and against the peace and dignity of the Commonwealth of Kentucky.
Count II of the indictment charged Appellant with Mrs. Porter's murder using essentially
the same language. The caption of the indictment stated that Appellant was charged
with two counts of "Murder, Capital Offense," and cited the applicable statutory
provisions, i.e. , KRS 507 .020 (murder) and KRS 532 .025(2)(a) (aggravating
circumstances) . Thus, the indictment gave Appellant notice that he was charged with
two counts of murder and that the Commonwealth would prove aggravating
circumstances authorizing the death penalty.
Apprendi holding applies only to sentencing procedures under which judges sentence
the defendants .") (citation omitted) . See also United States v. Jackson , 327 F.3d 273,
284 (4th Cir. 2003) (while Ring "requires that an aggravating factor necessary to
imposition of the federal death penalty" under 18 U .S .C. § 3593, be alleged in the
indictment, "[t]he Supreme Court did not, however, address the scope of the Fifth
Amendment Indictment Clause in Rina because that case came from a State system
and the Fifth Amendment Indictment Clause has not been incorporated against the
States.") (citation omitted) .
KRS 532 .025(1)(x) provides that the Commonwealth may introduce at a capital
sentencing hearing "only such evidence in aggravation as the state has made known to
the defendant prior to his trial." This notice requirement is satisfied by timely filing a
formal notice of intent to seek the death penalty and the aggravating circumstances
upon which the Commonwealth intends to rely. Furnish v. Commonwealth , Ky., 95
S .W .3d 34, 41 (2002); Commonwealth v. Maricle, Ky., 15 S .W .3d 376, 379 (2000) ; cf.
Smith v. Commonwealth , Ky., 845 S.W .2d 534, 536-538 (1993) (defendant did not
receive adequate notice of Commonwealth's intent to seek death penalty when
prosecutor filed formal notice only six days before trial) .
On August 23, 1999, thirty-eight days after the indictment was rendered and
almost ten months prior to trial, the Commonwealth filed a formal notice of its intent to
seek the death penalty, listing the aggravating circumstances described in KRS
532 .025(2)(x)(2), (6), and (8) . The notice was both adequate and timely.
1111. SPEEDY TRIAL.
Appellant's trial began on June 20, 2000, slightly less than one year after his
arrest. He asserts that this delay violated his constitutional right to a speedy trial . In
Barker v. Wingo, 407 U .S . 514, 92 S .Ct. 2182, 33 L.Ed .2d 101 (1972), the United
States Supreme Court identified four factors to be considered when determining
whether a defendant's right to a speedy trial has been violated, viz: (1) length of delay;
(2) reason for delay; (3) actual assertion of the right; and (4) resulting prejudice . Id . at
530, 92 S .Ct. at 2192 . A finding with respect to any one factor is not necessary or
determinative of a speedy trial violation ; instead, "they are related factors and must be
considered together with such other circumstances as may be relevant ." Id . at 533, 92
S.Ct. at 2193.
An analysis of the last three Barker factors is triggered only upon a determination
that the length of delay was "presumptively prejudicial." Id . a t 530, 92 S.Ct. at 2192;
Cain v. Smith, 686 F.2d 374, 381 (6th Cir. 1982). There is no fixed time period from
which to gauge the existence of presumptive prejudice. Instead, "the length of the
delay that will provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case . . . . [T]he delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy charge." Barker,
supra , at 530-31, 92 S .Ct. at 2192 .
The delay of less than one year between Appellant's arrest and his trial is, at
best, on the borderline of being presumptively prejudicial . State v. Myers , 780 N .E.2d
186, 204 (Ohio 2002) (delay of less than one and one half years between defendant's
indictment and trial was "barely sufficient" to be "presumptively prejudicial") ; Herring v.
State, 691 So.2d 948, 955 (Miss. 1997) (delay of eight months or longer is
presumptively prejudicial) (citations omitted) ; 4 Wayne R. LaFave, Jerold H. Israel &
Nancy J . King, Criminal Procedure §18 .2(b) (2d ed. Supp. 2004) ("Though there are
some cases which do not fit this mold, it may generally be said that any delay of eight
months or longer is 'presumptively prejudicial ."' (Quotation omitted .)). But see State v.
Coffin, 991 P .2d 477, 501 (N .M . 1999) (given complexity of capital murder case, fifteenmonth delay might not be presumptively prejudicial) . Nevertheless, application of the
remaining Barker factors reveals that no constitutional violation occurred in this case .
The reasons for delay in this case were not egregious . Appellant verbally
demanded a speedy trial at a pretrial hearing held on August 4, 1999 . The trial judge
advised Appellant that his demand should be submitted in writing and would be
considered at that time . During a pretrial hearing held on October 7, 1999, the
Commonwealth informed the trial court that its discovery was only "eighty percent"
complete, explaining that the delay in discovery was the result of newly discovered
evidence and the fact that the police still had not located the .45 caliber handgun used
to shoot Armotta. On November 18, 1999, Appellant, by counsel, requested a June
2000 trial date . Accordingly, the trial court scheduled the trial for June 13, 2000. On
March 2, 2000, Appellant sent the trial judge a three-page letter demanding a speedy
trial and specifically requesting an April 2000 trial date . At a pretrial conference on
March 16, 2000, the trial court denied Appellant's request for an April date, finding that
the complex nature of the case justified the delay and that Appellant would not be
significantly prejudiced by an additional delay of two months . The Commonwealth
noted that discovery still had not been completed, citing delays in obtaining forensic
evidence. Finally, at a hearing on April 20, 2000, the trial court rescheduled the start of
Appellant's trial from June 13 to June 20, 2000, so that he could attend professional
education seminars provided in conjunction with the annual meeting of the Kentucky
Bar Association .
Thus, the trial court gave Appellant the June 2000 trial date that he initially
requested . There is no indication that the delays in completing discovery were
"deliberate attempt[s] to delay the trial in order to hamper the defense." Barker, supra ,
at 531, 92 S .Ct. at 2192 ; see also State v. Myers , supra , at 205 (delay in forensic
testing not weighed against prosecution where delay did not appear to be result of bad
faith) . Nor is Appellant entitled to a dismissal because the trial judge delayed the trial
one additional week in order to complete his continuing judicial education requirements .
The reasons for the delay in this case do not weigh against the Commonwealth .
The trial court treated Appellant's letter of March 2, 2000, as a formal demand for
a speedy trial. Thus, the third Barker factor weighs slightly in Appellant's favor even
though the demand was not made until more than seven months after his arrest and
less than four months before the scheduled trial date .
While the mere fact of incarceration is prejudicial, Barker, supra , at 532-33, 92
S .Ct. at 2193; Tamme v. Commonwealth , Ky., 973 S .W .2d 13, 23 (1998), Appellant
does not claim that the delay impaired his ability to offer evidence he desired to present
or otherwise prejudiced his defense. We conclude that Appellant's constitutional right
to a speedy trial was not violated .
1111. SELF-INCRIMINATION .
Appellant filed a motion to suppress various incriminating statements he made
both before and after his arrest, claiming the statements were involuntary due to his
intoxication and police coercion and thus obtained in violation of his rights under
Miranda v. Arizona , 384 U .S. 436, 86 S .Ct. 1602, 16 L.Ed .2d 694 (1966). At the pretrial
suppression hearing, the Commonwealth presented the testimony of four witnesses:
(1) Mitch Nobles, the retired Louisville Police Department detective at whose residence
Appellant appeared shortly after the commission of the offenses ; (2) Gary Nobles,
Mitch's brother, who was present at Mitch's residence when Appellant appeared; (3)
Oldham County Sheriffs Detective Mark Hoskins, the arresting officer; and (4) Oldham
County Sheriffs Deputy Scott Veech, who was present when three of the four selfincriminating statements were made .
Mitch and Gary Nobles testified that they were standing on the deck behind
Mitch's residence when Appellant suddenly appeared from around the corner of the
house, shirtless, wet, covered in dirt and soot, and with several visible lacerations on his
body. Appellant stated that he "wanted to turn himself in" because the "cops are
looking for me." After contacting local authorities to advise of Appellant's presence on
his property, Mitch asked Appellant what had happened. Appellant replied, "I f--ked up
my life. It's been screwed up for the last four years ." He then described how he had
left his automobile at the Crestwood recruiting station and walked to the Porter
residence . No Miranda warnings were given prior to these statements . However,
Appellant was not in custody, and neither of the Nobleses was then a law enforcement
officer . "Miranda , itself, was concerned only with custodial interrogation, which means
questioning initiated by law enforcement officers after a person has been taken into
custody ." Adkins v. Commonwealth , Ky., 96 S .W.3d 779, 791 (2003) (quotations
omitted) ; see also Fields v. Commonwealth , Ky., 12 S .W.3d 275, 283-84 (2000)
( Miranda not applicable where incriminating statement was in response to questioning
by hospital employee who was not a state actor).
Absent police conduct causally related to the confession, there is simply
no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.
Colorado v. Connelly, 479 U.S . 157, 164, 107 S .Ct. 515, 520, 93 L .Ed .2d 473 (1986) .
Both of the Nobles brothers further testified that they observed no outward indication
that Appellant was intoxicated when he made these statements .
Shortly thereafter, Hoskins arrived at the Nobles residence . He testified that he
arrested and handcuffed Appellant and advised him of his Miranda rights, and that
Appellant responded that he understood his rights . Hoskins also testified that Appellant
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gave no indication of being intoxicated at the time of his arrest. Hoskins transported
Appellant to the Porter residence . Mitch Nobles followed in his own vehicle. Other
officers already present at the crime scene were searching for both Mr. Porter and the
weapon or weapons used to shoot Edna and Armotta Porter. Because of his prior
acquaintance with Appellant, Mitch Nobles volunteered to question him as to the
location of Mr. Porter and the missing weapon(s) .3 Nobles questioned Appellant in the
back seat of Hoskins's police cruiser while Veech listened through a partially opened
window. Appellant told Nobles that Mr. Porter was "in the shed ." This information was
relayed to other officers who, indeed, found Mr. Porter's corpse in the shed . Appellant
also advised Nobles that he had "buried the gun in a creek ." Both Mitch Nobles and
Veech testified that Appellant did not slur his speech and did not smell of alcohol while
being questioned inside the police cruiser .
Hoskins, Veech, and Mitch Nobles transported Appellant to a substation of the
Oldham County Police Department for the purpose of obtaining a recorded statement.
Upon entering the air-conditioned building, Appellant, still wet and shirtless, complained
of being cold and was given a smock to wear. Veech twice re-apprised Appellant of his
Miranda rights and Appellant signed a written waiver-of-rights form . During the course
of the approximately twenty-five-minute interrogation, Appellant admitted killing Mr. and
Mrs . Porter, shooting Armotta, burglarizing the Porter residence, and concealing the .45
caliber handgun in a creek . Nobles and Veech testified that Appellant exhibited no
signs of intoxication during the interrogation, and although he was restrained by
3 At this point, Nobles became a state actor, see Adkins, supra, at 791 (citing United
States v. Garlock , 19 F.3d 441, 443 (8th Cir. 1994)), but, of course, Appellant had
already been given the Miranda warnings . Hughes v. Commonwealth , Ky., 87 S.W .3d
850, 853-54 (2002) (no requirement that suspect be readvised of Miranda rights merely
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handcuffs and a waist chain, did not complain of discomfort and did not invoke either
his right to silence or his right to counsel .
Following the interrogation, Hoskins and Veech transported Appellant to a local
hospital for blood and urine tests. Appellant's urine tested positive for the presence of
PCP, cocaine, and amphetamines . His blood tested positive for diphenhydramine
(antihistamines) at levels that a toxicologist later testified were "above therapeutic . "4
While at the hospital, Appellant volunteered to the officers that "everything you need to
know is on the dryer." The .38 revolver, as well as .38 caliber and .45 caliber
ammunition were found folded into some clothing lying on top of a clothes dryer inside
the Porter residence .
After hearing this testimony and listening to Appellant's audiotaped confession,
the trial court found that Appellant had been properly advised of and had voluntarily
waived his Miranda rights, and that the statements he made at the Nobles residence,
the Porter residence, the police substation, and the hospital were voluntary . Appellant
claims the trial court's findings were clearly erroneous because (1) Hoskins failed to
adequately advise him of his Miranda rights ; (2) he invoked his right to remain silent
during the audiotaped interrogation ; and (3) his statements were rendered involuntary
by his intoxication and police coercion . We disagree .
A. Miranda warnings.
Appellant did not claim either in his suppression motion or during the
suppression hearing that he was improperly advised of his Miranda rights . Thus, the
because of passage of time or change of questioner) .
4 There was trial testimony that diphenhydramine is a non-prescription drug commonly
found in over-the-counter medications such as Benadryl and that it often causes
drowsiness but is not intoxicating .
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trial court did not make a specific finding of fact with respect to this issue .
Nevertheless, it is easily resolved on the record .
In quickly reciting the Miranda rights from memory during the suppression
hearing, Hoskins failed to include a criminal defendant's right to appointed counsel .
There was no allegation that Hoskins failed to advise Appellant of that right at the time
of his arrest on June 29, 1999. Of course, the issue is not whether Hoskins correctly
recited the Miranda rights at the suppression hearing but whether he correctly advised
Appellant of his rights at the time of the arrest. Even after hearing Hoskins's
misstatement, the trial court found that he did advise Appellant of his Miranda rights at
the time of his arrest, and that finding was supported by substantial evidence, i .e.,
Hoskins's testimony that he did so. RCr 9.78.
B . Invocation of silence .
Appellant claims that Mitch Nobles and Veech violated his Fifth Amendment right
against self-incrimination when they continued to interrogate him at the police
substation after he invoked his right to silence . Although not raised at the suppression
hearing, this issue is also easily resolved on the record . During the course of the
interrogation, Nobles asked Appellant whether he said anything to Armotta when he first
confronted her inside the Porter residence . Appellant's response was: "I trust myself
not to say anything ." After reviewing the recorded confession, which included this
statement, the trial court found that Appellant had not invoked his right to remain silent.
On review of the audiotape we conclude that this finding was not clearly erroneous.
Appellant continued to answer questions after the statement was made without
expressing any desire to discontinue the interrogation .
Once an accused in custody unequivocally invokes the right to remain silent,
interrogation must ordinarily cease. Miranda , supra, at 473-74, 86 S .Ct. at 1627-28 ;
Campaneria v. Reid , 891 F.2d 1014, 1021 (2d Cir. 1989) ; Anderson v. Smith , 751 F .2d
96, 101-02 (2d Cir. 1984) . However, the statement in question was not unequivocal
and, given the context, i .e. , response to inquiry as to what he said to Armotta, not what
he did to Armotta, it cannot even be fairly characterized as an equivocal or ambiguous
invocation of the right to remain silent . Springer v. Commonwealth , Ky., 998 S.W .2d
439, 445 (1999); see also Bradley v. Meachum , 918 F.2d 338, 342 (2d Cir. 1990)
(accused's statement that he was not going to say whether he was involved in crime
followed by immediate denial of involvement not invocation of right to silence).
Finally, Appellant had already confessed to the offenses of which he was
ultimately convicted before the statement was made and did not provide any significant
information thereafter, thus rendering any possible error harmless beyond a reasonable
doubt.
C . Voluntariness .
The ultimate test of voluntariness lies in an examination of the totality of the
circumstances . Schneckloth v. Bustamonte , 412 U.S . 218, 225-26, 93 S .Ct. 2041,
2046, 36 L .Ed .2d 854 (1973); Mills v. Commonwealth , Ky., 996 S .W.2d 473, 481
(1999). Under this rubric, a confession is voluntary unless, under the totality of the
circumstances, a defendant's "will has been overborne and his capacity for selfdetermination critically impaired ." Schneckloth , supra, at 225, 93 S.Ct. at 2047. This
requires an examination of both the "characteristics of the accused and the details of
the interrogation ." Id. at 226, 93 S .Ct. at 2047 .
Appellant presented no evidence during the suppression hearing that Mitch
Nobles, Hoskins, or Veech used any coercive measures or promises of leniency in
order to obtain his confession . In fact, the officers responded to Appellant's only
complaint of discomfort by providing him with a smock . Thus, we summarily reject
Appellant's claim of police coercion .
Nor was there any evidence of intoxication except for Appellant's positive blood
and urine tests . Even if there had been other evidence, merely showing that a
defendant was intoxicated when a statement was made does not render the statement
involuntary . Britt v. Commonwealth , Ky., 512 S .W .2d 496, 501 (1974). The "basic
question" when reviewing the voluntariness of a confession obtained from an
intoxicated defendant "is whether the confessor was in sufficient possession of his
faculties to give a reliable statement." Id . at 500. Here, Appellant exhibited no outward
signs of intoxication at the time he made the challenged statements . While he
frequently attempted to change subjects during the interrogation, he gave accurate and
detailed information concerning the type of vehicle he drove that evening, where he had
parked it, the location of Mr. Porter's body, and the manner in which he had committed
the offenses . Although Appellant vomited several times after his arrest, Veech testified
that Appellant explained that he often vomited when he was very nervous . Thus,
despite the presence of drugs in his body, Appellant's actions before and after his
arrest did not rise to the level of "mania" required in Britt, supra , to render his
statements involuntary . Id . at 499 . See also Halvorsen v. Commonwealth , Ky., 730
S .W .2d 921, 927 (1986) (fact that defendant was under the influence of alcohol and
marijuana at the time he gave his confession to police insufficient to render confession
involuntary) .
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IV. JURY SELECTION .
A. Failure to excuse Lrors for cause.
Appellant asserts that the trial judge erred by failing to excuse eight jurors for cause.
However, Appellant did not even request that four of the eight, Jurors 20, 81, 113, and
200A, be excused . We review unpreserved allegations of error in death penalty cases
under the standard established in Cosby v. Commonwealth , Ky., 776 S .W.2d 367
(1989), overruled on other grounds by St. Clair v. Roark, Ky., 10 S.W.3d 482, 487
(1999), and Sanders v. Commonwealth , Ky., 801 S.W.2d 665 (1990), viz:
(1) whether there was a reasonable justification or explanation for defense
counsel's failure to object, e.g., whether the failure might have been a
legitimate trial tactic, and (2) if there is no reasonable explanation,
whether the unpreserved error was prejudicial, i .e ., whether the
circumstances in totality are persuasive that, minus the error, the
defendant may not have been found guilty of a capital crime, or the death
penalty may not have been imposed .
Sanders, supra , at 668. "Counsel's decisions during voir dire are generally considered
to be matters of trial strategy ." Hodge v. Commonwealth , Ky., 17 S .W.3d 824, 837
(2000) (citations omitted) . None of these four jurors had formed an opinion as to
Appellant's guilt or innocence and all stated that they could consider the full range of
penalties and mitigating circumstances . We find no error in the trial judge's failure to
sua sponte excuse these jurors for cause.
Appellant's motions to excuse Jurors 42, 54, 70, and 143, for cause were
overruled . A determination whether to excuse a juror for cause lies within the sound
discretion of the trial court and is reviewed only for a clear abuse of discretion . Foley v.
Commonwealth , Ky., 953 S .W.2d 924, 931 (1997) . We are also mindful that:
Voir dire examination occurs when a prospective juror quite properly has
little or no information about the facts of the case and only the most vague
idea as to the applicable law . . . . many citizens are astounded to learn
- 1 8-
that being under the influence of drugs or alcohol may be considered by
them as factors mitigating the punishment which should be imposed .
Predictably, when asked whether they believe being under the influence
should mitigate punishment, the answer is often in the negative .
Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671 (1994). Applying these principles,
we conclude that the trial court did not abuse its discretion in overruling Appellant's
motions to excuse Jurors 42, 54, 70, and 143, for cause .
Juror 42 was the director of a domestic violence center. However, she was an
administrator, not a psychologist. She stated that she was detached from the emotional
aspects of assisting victims of domestic violence and that her position would not affect
her ability to be fair and impartial in this case. Compare Alexander v. Commonwealth ,
Ky., 862 S.W .2d 856, 862-64 (1993) (abuse of discretion to refuse to excuse for cause
juror who was an investigative social worker with Child Protection Services and who
stated that her employment would affect her ability to be fair and impartial in case
involving child sexual abuse), overruled on other grounds by Stringer v.
Commonwealth , Ky., 956 S.W .2d 883, 891 (1997) .
Juror 42 also favored the death penalty for aggravated murder because she
believed that the biblical philosophy of an "eye for an eye" was the original basis for our
legal system . However, she also stated that she could consider the full range of
penalties and some, but not all, of the statutory mitigating circumstances enumerated
by defense counsel during voir dire. A trial court is not required to excuse a juror for
cause merely because the juror favors severe penalties, so long as he or she can
consider the full range of penalties. Hodge, supra , at 836-37 ; compare Thomas v.
Commonwealth , Ky., 864 S .W .2d 252, 254-55 (1993) (abuse of discretion not to strike
juror for cause who stated that he would "definitely" vote for the death penalty). Nor
- 1 9-
was the trial judge required to strike Juror 42 for cause because of her "eye for an eye"
remark, Stopher v. Commonwealth , Ky., 57 S .W .3d 787, 796-97 (2001), especially in
view of her assurance that she could impose a lesser sentence than death . Compare
Thompson v. Commonwealth , Ky., 862 S .W .2d 871, 875-76 (1993) (abuse of discretion
not to excuse for cause juror who repeatedly emphasized his strong belief in the death
penalty and the "eye for an eye" philosophy), superseded on other grounds by RCr 9.38
as recognized by Perdue v. Commonwealth , Ky., 916 S.W .2d 148,159 (1995).
Juror 70 also favored the death penalty for a conviction of aggravated murder but
stated that he could consider the full range of penalties and mitigating circumstances .
Hodge, supra, at 836-37 .
Juror 54 knew several officers of the Oldham County Sheriffs Department who
had attended his daughter's wedding . Both his daughter and his son-in-law were police
officers and his son-in-law had previously worked with the Oldham County
Commonwealth's Attorney's office on a capital case . In addition, Juror 54 was the
manager of a local Kroger grocery store (at the time of her death, Mrs . Porter was a
cashier at a different Kroger store) and his wife worked at a local hospital where
Armotta was also employed (though he did not know whether they were acquainted) .
Juror 54 had not had any contact with any Oldham County sheriffs deputies for four
years and stated that he did not know the victims or any of the facts of the case .
Juror 54's acquaintance with members of the Oldham County Sheriffs
Department does not approach the kind of "close relationship" giving rise to implied bias
under Ward v. Commonwealth , Ky., 695 S .W .2d 404, 407 (1985) . See Dillard v.
Commonwealth , Ky., 995 S .W.2d 366, 369 (1999) (no implied bias attributed to juror
who knew some police officers who testified at trial) ; Sanders , supra, at 670 (fact that
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juror was a police officer in county of trial and knew several testifying officers did not
establish bias). Nor did the facts that Juror 54 and Mrs . Porter were both employees of
Kroger or that Juror 54's wife worked at the same hospital as Armotta establish implied
bias . Dillard , supra , at 369 (no implied bias where juror worked as a fireman at same
station at which victim served as captain) ; Copley v. Commonwealth , Ky., 854 S .W.2d
748, 750 (1993) (no implied bias where several jurors were employed at same factory
as victim and his girlfriend) ; Sanders , supra , at 669 (no implied bias even though juror
worked with victim's spouse).
Juror 143 stated that he might give "slightly" more weight to the testimony of a
police officer than to that of a layperson . He otherwise stated that he could render a fair
and impartial decision considering all of the facts of the case, including the entire range
of penalties and mitigating circumstances. "It is the probability of bias or prejudice that
is determinative in ruling on a challenge for cause." Pennington v. Commonwealth , Ky.,
316 S.W .2d 221, 224 (1958) (citation omitted) . Juror 143's responses did not establish
implied bias against Appellant . See Sholler v. Commonwealth , Ky., 969 S .W .2d 706,
708-09 (1998) (no implied bias where juror was "very pro-law enforcement" and would
give substantial credence to testimony of police officer but who did not indicate any bias
against defendants) . Appellant did not testify at trial and does not cite to any instance
where a police officer's trial testimony contradicted that of a lay witness . Thus,
Appellant could not have been prejudiced by Juror 143's statement that he would give
more credibility to the testimony of a police officer than to that of a lay witness .
B . Excusal of furor for cause.
The trial court excused Juror 63 because his ability to impose the death penalty
was substantially impaired . Juror 63 informed the Court that he would "have a problem
-2 1-
with the death penalty," that he felt it was "wrong," that he had "personal convictions
that weighed heavily against being able to consider it," and "[m]y gut feeling tells me
that I am not one of the people who could impose the death penalty ." Defense counsel
attempted rehabilitation by asking Juror 63 whether he could consider the death penalty
under any circumstances, to which the juror responded, "I guess I could consider it.
However, you know, I really don't think that I could ever cast my vote to impose that."
The trial court correctly concluded that Juror 63's views on capital punishment "would
prevent or substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath ." Wainwright v. Witt, 469 U.S . 412, 424, 105 S .Ct.
844, 852, 83 L .Ed .2d 841 (1985) (quotation and citation omitted) ; Caudill , 120 S .W.3d
at 654.
V. RIGHT TO BE PRESENT .
RCr 8.28(1) provides :
The defendant shall be present at the arraignment, at every critical stage
of the trial including the empaneling of the jury and the return of the
verdict, and at the imposition of the sentence. The defendant's voluntary
absence after the trial has been commenced in his or her presence shall
not prevent proceeding with the trial up to and including the verdict. . . .
A defendant's presence, however, can be waived by counsel . Caudill , supra, at
651 ; see United States v. Riddle , 249 F.3d 529, 534 (6th Cir. 2001) (defense counsel
could waive defendant's right under Fed .R.Crim.P . 43(a) to be present at voir dire) . We
have also held that a defendant waives the right to be present at an in-chambers
hearing by failing to object to his exclusion . Watkins v. Commonwealth , Ky., 105
S .W .3d 449, 453 (2003) . That holding applies as well with respect to in-chambers
examinations of prospective jurors . Byrd v. Commonwealth , Ky., 825 S .W.2d 272, 274
-22-
(1992), overruled on other grounds by Shadowen v. Commonwealth , Ky., 82 S .W.3d
896, 897 (2002). And while challenging jurors for cause is an essential component to
the process of empanelling the jury, Lewis v. United States , 146 U .S . 370, 374, 13 S .Ct.
136, 137, 36 L .Ed . 1011 (1892) ("For every purpose, therefore, involved in the
requirement that the defendant shall be personally present at the trial where the
indictment is for a felony, the trial commences at least from the time when the work of
impaneling the jury begins."); United States v. Miller, 463 F .2d 600, 603 (1 st Cir. 1972)
("The challenging of prospective jurors is an essential part of the trial . . . .") (Citations
omitted .)), a defendant's exclusion from the jury selection process is subject to
harmless error analysis, Riddle , supra , at 535; United States v. Gibbs, 182 F .3d 408,
437 (6th Cir. 1999), and will not warrant reversal absent a showing of prejudice .
Sanders v. Commonwealth , Ky., 89 S .W.3d 380, 388-89 (2002).
A. Pretrial conference .
Appellant was in attendance at a pretrial conference held on June 19, 2000, the
day before jury selection began . After the trial court ruled on various matters, including
Appellant's motion to suppress evidence, Appellant was taken from the courtroom and
returned to jail . Shortly thereafter, the trial judge sua sponte mentioned to those
remaining in the courtroom, including members of the Commonwealth's Attorney's
office, defense counsel, and several members of the sheriffs office, that a member of
the jury panel was a contract attorney for the Department of Public Advocacy
(Appellant's trial counsel were also DPA attorneys) . An unidentified person then
mentioned that another juror was his sister . Without objection, the trial judge excused
both of these prospective jurors for cause. Ward , su ra, at 407 (bias implied when
prospective juror has "a close relationship, be it familial, financial or situational, with any
-23-
of the parties, counsel, victims or witnesses") . Appellant claims the excusal of these
two jurors in his absence violated his right to be present at a critical stage of the trial.
However, these jurors were excused for situational bias. Appellant could not have
provided any additional information regarding these jurors that would have affected the
requirement that they be excused for cause. Since he could have contributed nothing
by being present at this "hearing," he suffered no prejudice because of his absence.
Sanders , 89 S .W.3d at 389 .
B . Hardship excusals .
On the morning of June 20, 2000, prior to commencement of voir dire, the trial
judge met with counsel for both sides in his chambers to discuss six members of the
jury panel who had requested hardship excusals on their juror qualification forms. Over
a period of thirty minutes, the trial judge interviewed each of the six jurors with respect
to their requests . He then excused five of the six jurors for hardship reasons. Appellant
was not present during these interviews . However, hardship excusals are within the
discretion of the trial judge, Admin. Proc ., Part II, § 12(1), and are not required to be
decided in open court or in the presence of or in consultation with any parties or their
counsel . Caudill , supra , at 651-52 . When a juror requests a hardship excusal on the
day of trial, the request "shall be heard in a bench conference," if the juror so desires or
"at the discretion of the court ." Admin . Proc., Part II, § 9(1). A defendant has no
constitutional right to participate in these proceedings or to be present when these
decisions are made .
C. In-chambers voir dire.
On June 26, 2000, during the course of the general voir dire, three jurors
indicated that they had prior knowledge of the case and defense counsel requested that
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they be further questioned in chambers so as not to "contaminate" the other jurors with
their information . When the judge began arrangements for Appellant to be escorted
into chambers, defense counsel advised, "Judge, I don't think he [indicating Appellant]
needs to be back there ." Thus, defense counsel expressly waived Appellant's presence
during the ensuing questioning of these jurors in chambers . Riddle , supra, at 535;
Caudill , supra, at 651 .
Shortly after the conclusion of this in-chambers hearing, the trial judge
questioned another prospective juror in chambers while Appellant remained in the
courtroom. This juror asserted that she had previously been the victim of a crime and
indicated that her experience would affect her ability to be impartial in this case.
Defense counsel's motion to excuse her for cause was sustained . Technically, defense
counsel did not repeat the previous waiver of Appellant's presence at this in-chambers
hearing . However, his absence was clearly harmless since the juror was adverse to
Appellant's cause and was excused on motion of defense counsel . No more could
have been accomplished had Appellant been present . Riddle , supra , at 535 ; Gibbs ,
supra , at 437; Sanders , 89 S .W .3d at 388-89 . Nor did Appellant's absence from this
hearing deny him due process of law. "So far as the Fourteenth Amendment is
concerned, the presence of a defendant is a condition of due process to the extent that
a fair and just hearing would be thwarted by his absence, and to that extent only ."
Snyder v. Massachusetts , 291 U .S . 97, 107-08, 54 S .Ct. 330, 333, 78 L.Ed . 674 (1934)
(emphasis added), overruled on other grounds by Malloy v. Hogan , 378 U .S . 1, 84 S .Ct.
1489,12 L.Ed.2d 653 (1964) . See also See v. Commonwealth , Ky., 746 S.W.2d 401,
402-03 (1988) (exclusion of defendant from witness competency hearing did not violate
rights under Kentucky Constitution) . Because Appellant's presence would have
-2 5-
contributed nothing to the result, a fair and just hearing was not thwarted by his
absence.
D. Extra-judicial communication with iuror.
The jury was finally seated and sworn on Wednesday, June 28, 2000. The trial
judge admonished the jurors in accordance with RCr 9.70 "not to permit anyone to
speak to, or communicate with [you] on any subject connected with the trial, and that all
attempts to do so should be immediately reported by fyoul to the court." (Emphasis
added .) Court was then adjourned until Wednesday, July 5, 2000 .
On the morning of July 5, 2000, Juror 182 reported to the trial judge that his
brother-in-law had, over his protestations, discussed the case with him during a Fourth
of July family gathering the previous day. The judge held an in-chambers hearing on
this issue with the juror, the prosecutor, and defense counsel while Appellant remained
in the courtroom. During the hearing, Juror 182 revealed that his brother-in-law owned
a service station and mini-market in Louisville and that Appellant was employed there
when the killings occurred (a fact previously unknown to Juror 182) . Juror 182's
brother-in-law had also remarked that Appellant had "killed his in-laws" and may have
been "under the influence of cocaine or something." Juror 182 stated that this
information would not affect his impartiality because, except for the employment
situation, his brother-in-law did not tell him anything that he had not already read in the
newspapers . After questioning Juror 182 and eliciting no additional information,
defense counsel moved that he be excused as the alternate juror. The motion was
denied .
Appellant does not assert that it was error to overrule the motion to excuse Juror
182 but only that he was entitled to be present at the hearing on the motion . However,
-26-
Appellant did not object to his exclusion, Watkins, supra, at 453; Byrd , supra , at 274,
and does not suggest how a fair and just hearing on this issue was thwarted by his
absence . Snyder, supra, at 107-08, 54 S .Ct. at 333 . There was substantial evidence at
trial that Appellant "had killed his in-laws" and no evidence to the contrary . The
evidence was also uncontradicted that Appellant's urine tested positive for cocaine .
Juror 182's brother-in-law was not a trial witness and Appellant does not suggest what
other information his former employer might have possessed and imparted to Juror 182
that would have prejudiced the juror against him . Defense counsel unsuccessfully
attempted to have Juror 182 excused from the jury and Appellant does not suggest how
his presence would have changed that outcome. Sanders , 89 S.W.3d at 388-89
(defendant's right to due process not violated by exclusion from hearing regarding
juror's acquaintance with victim's father because there was "nothing that [the defendant]
could have done by being present").
VI. RIGHT TO CONTROL DEFENSE .
Appellant asked the trial court to prohibit defense counsel from presenting any
evidence of extreme emotional disturbance (EED) during the course of the trial . In
response, defense counsel asked the trial judge to make a determination per Jacobs v.
Commonwealth, Ky., 870 S .W .2d 412 (1994), whether Appellant was making a
voluntary and intelligent waiver of his EED defense. During an ex parte hearing on the
issue outside the presence of the prosecutor, Appellant articulated his position as
follows :
Your honor, and if I'm wrong, please quote me that I am wrong. To me, it
sounds like I'm taking a guilty plea to trial. I know it's my right to present a
defense of innocence, I believe, the Sixth Amendment . And ah, I talked to
-27-
[defense counsel] about that continually. And I do understand the
circumstances of the case before me, but that's it.
Appellant's trial attorneys objected, contending that the evidence warranted an EED
defense and that presenting such a defense was in Appellant's best interests, given the
substantial evidence of his guilt . Defense counsel presented testimony from a clinical
psychotherapist, David Kegel, who opined that Appellant was not psychotic but had
certain "personality limitations" that prevented him from making wise choices. The trial
judge granted Appellant's motion, finding that he had "voluntarily and intelligently"
exercised his right not to present an EED defense .
During voir dire, defense counsel did not mention EED as a defense but
questioned jurors whether, if they convicted Appellant, they could consider EED as a
mitigating circumstance in fixing a penalty. Appellant objected to any voir dire on EED
as a mitigating circumstance claiming that such questioning impaired his defense of
innocence even though it might be helpful to his sentence. Appellant then moved to
either strike every juror who had been questioned about EED as a mitigating
circumstance or to have the trial court instruct each juror that his attorney was not
referring to him when asking such questions. The trial judge denied Appellant's motion,
explaining that he had authorized defense counsel to question jurors about their
abilities to consider mitigating circumstances during the penalty phase of the trial.
At the conclusion of the guilt phase evidence, Appellant requested against the
advice of defense counsel that he be permitted to make his own closing argument . The
trial court denied the request as untimely and because he feared Appellant, who did not
testify during the trial, would attempt during closing argument to introduce unsworn
testimony about matters not in evidence and not subject to cross-examination . Defense
-28-
counsel presented the guilt phase closing argument. Finally, at the conclusion of the
penalty phase evidence, the trial judge ruled that defense counsel could, in his penalty
phase argument, attempt to persuade the jury to mitigate Appellant's sentences
because the crimes were committed while he was under the influence of EED .
A. EED as a defense.
Appellant claims that despite his waiver of the EED defense, the trial court erred
by refusing defense counsel's tendered guilt phase instructions that would have
included the absence of EED as an element of the offense of murder and an instruction
on manslaughter in the first degree as a lesser included offense . The trial court refused
the tendered instructions because of Appellant's prior waiver of the defense.
EED is a defense to the crime of murder. Coffey v. Messer, Ky., 945 S.W .2d
944, 945-46 (1997). The whole thrust of Appellant's Jacobs argument was that he did
not wish to assert EED as a defense because it would impair his defense of innocence
- and the trial court found, per Jacobs , that Appellant's decision was voluntarily and
intelligently made . Thus, instructing the jury on the defense of EED would have violated
Appellant's right to control his defense . Furthermore, pursuant to Appellant's waiver, no
evidence had been introduced that would justify the tendered instructions, i.e . , no
evidence of uninterrupted EED from a "triggering event" to the killings, Caudill, supra, at
667-68 ; Fields v. Commonwealth , Ky., 44 S .W .3d 355, 357-59 (2001); Springer v.
Commonwealth , 998 S .W.2d at 452-53, and no evidence of a "reasonable explanation
or excuse" for Appellant to become so enraged, inflamed, or disturbed as to cause him
to kill the Porters . KRS 507 .020(1) ; McClellan v. Commonwealth , Ky ., 715 S .W .2d 464,
468-69 (1986). The trial court correctly refused to give the tendered instructions .
B . EED as a mitigating circumstance.
Encompassed within a defendant's constitutional right to effective assistance of
counsel is the right to waive such assistance and proceed pro se. Faretta v. California ,
422 U .S. 806, 807, 95 S .Ct. 2525, 2527, 45 L.Ed .2d 562 (1975); Wake v. Barker, Ky.,
514 S.W.2d 692, 697 (1974) . The foundation of this entitlement is the right of the
defendant to control his defense and be the "pilot of the ship ." Jacobs, supra, at 41718 ; see also Faretta , supra , at 819-20, 95 S.Ct. at 2533 ("The right to defend is given
directly to the accused ; for it is he who suffers the consequences if the defense fails.").
In Jacobs , supra, we held that the trial court violated the defendant's right to
control his own defense by permitting defense counsel, over the defendant's objection,
to present an insanity defense. Id . at 417-18 . "Neither counsel nor the court has the
power to contravene a defendant's voluntary and intelligent decision to forego an
insanity defense." Id . at 418 . Appellant argues that he is entitled to a new trial because
this same principle should have precluded defense counsel from inquiring of
prospective jurors during voir dire as to whether they could consider EED as a
mitigating circumstance and arguing EED as a mitigating circumstance during the
penalty phase of his trial . We disagree .
The premise of Jacobs , supra, is that a defendant's constitutional right to control
his defense includes the right to waive the assertion of any defense inconsistent with
his claim of innocence. Id . at 418 . Jacobs did not address whether that holding
extended to a waiver of mitigating evidence during the penalty phase of the trial . At that
point, the issue of innocence has been resolved unfavorably to the defendant and the
only remaining issue is the degree of punishment to be imposed . Appellant did not
object to the instruction on EED as a mitigating circumstance but only to defense
-30-
counsel's assertion of it during closing argument - positions that were inherently
inconsistent .
The United States Supreme Court has yet to address this particular issue;
however, many jurisdictions have upheld a defendant's right to voluntarily and
intelligently waive the presentation of mitigating evidence . E. g ., United States v. Davis ,
285 F .3d 378, 381 (5th Cir. 2002), cert. denied, 537 U .S. 1066 (2002); Singleton v.
Lockhart , 962 F .2d 1315, 1322 (8th Cir. 1992); Silage v. Peters , 905 F .2d 986, 1008
(7th Cir. 1990) ; Nelson v. State, 681 So.2d 252, 255 (Ala . Crim. App . 1995) ; People v.
Bloom, 774 P.2d 698, 715 (Cal. 1989) ; Hamblen v. State , 527 So .2d 800, 804 (Fla .
1988); State v. Dunster , 631 N .W .2d 879, 906 (Neb. 2001); Colwell v. State, 919 P.2d
403, 406 (Nee. 1996) ; State v. Ashworth , 706 N.E.2d 1231, 1236-37 (Ohio 1999) ; State
v. Arquelles , 63 P.3d 731, 753 (Utah 2003) ("[A] defendant's Sixth Amendment right to
represent himself and control the course of the proceedings carries with it the right to
choose how much - if any - mitigating evidence is offered."). The majority of these
cases, however, were decided in the context of a convicted defendant's claim that he or
she was improperly permitted to waive the right to have the jury consider mitigating
circumstances . Singleton , supra , at 1321-22 (defense counsel had no obligation to
override defendant's knowing and voluntary waiver of right to present mitigating
evidence); Silagy , supra, at 1008 (not abuse of discretion to grant competent
defendant's mid-trial motion for self-representation when purpose of motion was to
forego presentation of mitigating evidence and seek the death penalty) ; Bloom , supra ,
at 713 (same) ; Grim v. State , 841 So.2d 455, 461 (Fla . 2003) (trial court not required to
appoint special counsel for purposes of presenting mitigating evidence if defendant
knowingly and voluntarily waived the presentation of such evidence) ; Dunster, supra , at
-3 1-
906 (same) ; Colwell , supra , at 406 (same); Ashworth , su ra, at 1237 ("[Defendant] was
competent to waive the presentation of mitigation and . . . cannot now rescind that
waiver and argue that he is entitled to a new penalty phase because he changed his
mind .") ; Wallace v. State , 893 P.2d 504, 511-12 (Okla . Crim . App. 1995) (affirming
where defendant openly sought death penalty and chose to present no mitigating
evidence) . The issue has also been addressed in the context of a claim that the
attorney's compliance with the defendant's knowing and voluntary decision not to
present mitigating evidence amounted to ineffective assistance of counsel . Zagorski v.
State , 983 S.W .2d 654, 657-59 (Tenn . 1998) .
We find only one case holding that it was error for the trial court to permit the
presentation of mitigating evidence over the defendant's objection . In United States v.
Davis, supra , the defendant advised the trial court prior to the penalty phase of his trial
that he wished to proceed pro se and to present no mitigating evidence, stating that he
would maintain his innocence. When the trial court declined to permit that strategy, the
United States Court of Appeals for the Fifth Circuit issued a writ of mandamus
recognizing the defendant's right to self-representation during the penalty phase . When
the trial court then appointed independent counsel to present mitigating evidence on the
defendant's behalf, the Court of Appeals issued a second writ prohibiting the
appointment of counsel over the defendant's objection, holding that such violated the
defendant's right to self-representation under Faretta . Id. at 381 .
Davis, is distinguishable from the case sub iudice in that Appellant never
asserted his right to self-representation or expressed a desire to proceed pro se. The
denial of a defendant's right to self-representation is a "structural error" not subject to
harmless error analysis . McKaskle v. Wiggins, 465 U .S . 168, 177 n.8, 104 S.Ct. 944,
-32-
950 n.8, 79 L .Ed .2d 122 (1984) ("Since the right of self-representation is a right that
when exercised usually increases the likelihood of a trial outcome unfavorable to the
defendant, its denial is not amenable to 'harmless error' analysis . The right is either
respected or denied ; its deprivation cannot be harmless."). However, the denial of the
right to waive mitigating factors after a finding of guilt does not increase the likelihood of
an "outcome unfavorable to the defendant" but rather increases the likelihood that a
defendant will avoid the death penalty and receive a lesser sentence. Thus, such
denial is not a "structural defect affecting the framework within which the trial proceeds ."
Arizona v. Fulminante , 499 U .S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302
(1991); see also Rose v. Clark , 478 U.S . 570, 577-78, 106 S.Ct. 3101, 3106, 92
L .Ed .2d 460 (1986) ("structural defects" are errors involving basic protections without
which "a criminal trial cannot reliably serve its function as a vehicle for determination of
quilt or innocence" (emphasis added)). Further, the right to waive mitigating
circumstances during the penalty phase of a trial is inherently different from the right to
waive a defense inconsistent with a claim of innocence during the guilt phase. Although
Appellant claims a reputational interest in maintaining his innocence, he fails to show
how his ultimate sentence was prejudiced by counsel's argument urging the jury to
impose a lesser penalty because of mitigating circumstances .
Nor was Appellant's defense of innocence prejudiced by defense counsel's
inquiry during voir dire as to whether prospective jurors could consider EED as a
mitigating circumstance. The inquiry occurred during the "death qualification" of the
prospective jurors, an aspect of voir dire that necessarily required the jury to
hypothetically assume guilt, and was included within defense counsel's inquiry with
respect to the attitudes of prospective jurors with respect to various mitigating
-33-
circumstances . Defense counsel did not assert during voir dire that Appellant
committed the offenses while acting under the influence of EED but only inquired
whether the jurors could consider EED as a mitigating circumstance in the event of a
finding of guilt.
C . Closing argument.
Wake v. Barker, supra, holds that a defendant may "make a limited waiver of
counsel, specifying the extent of services he desires ." Id. at 696 . If the defendant
makes such waiver knowingly and voluntarily, counsel's duties are "confined to
rendering the specified kind of services (within, of course, the normal scope of counsel
services) ." Id . However, a defendant who wishes to waive his constitutional right to
counsel (or, as here, make a limited waiver) must do so in a timely manner so as not to
cause a delay in the proceedings . Robards v. Rees, 789 F.2d 379, 383-84 (6th Cir.
1986) . See also Faretta, supra , at 835, 95 S .Ct. at 2541 (defendant "clearly and
unequivocally" made his request to forego counsel weeks before trial) ; United States v.
McKenna , 327 F .3d 830, 844 (9th Cir. 2003) ("A demand for self-representation is
timely if made before meaningful trial proceedings have begun . . . . [A] request is
timely if made before the jury is selected or before the jury is empaneled . . . ."
(Quotation omitted .)); United States v. Young , 287 F .3d 1352, 1354-55 (11th Cir. 2002)
(defendant's request to proceed pro se properly denied when request was made after
jury selection) . The trial court may, of course, grant an untimely request but that is a
decision lying within its sound discretion . Robards , supra , at 384. Here, Appellant did
not request to make his own closing argument until the conclusion of the guilt phase of
the trial. He never specifically asserted his right to self-representation or to proceed pro
se . He simply expressed a desire to make his own closing argument. Further, since
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Appellant had not testified during the trial, the trial judge was legitimately concerned
that he might use his closing argument to present unsworn testimony. See Garrett v.
Commonwealth , Ky., 48 S .W.3d 6, 16 (2001) (closing argument may not be used to
"argue facts that are not in evidence or reasonably inferable from the evidence"
(citations omitted)) . The denial of Appellant's belated request to make his own closing
argument was not an abuse of discretion.
VII. EVIDENCE ISSUES.
A . Other crimes, wro ngs , or acts. KRE 404fb1.
1 . 1996 Burglary charge .
Appellant claims it was reversible error (1) to admit evidence of his 1996 burglary
charge in violation of KRE 404(b); (2) to deny his motion to give a limiting admonition to
the jury with respect to that evidence in violation of KRE 105; and (3) to admit the
evidence despite the Commonwealth's failure to give adequate notice of its intent to do
so in violation of KRE 404(c).
The issue pertains to the criminal complaint charging Appellant with the August
1996 burglary of the Porter residence . As explained, supra, the Oldham District Court
dismissed the charge without prejudice subject to certain conditions, including "no
contact with the CW [complaining witness] ." On August 23, 1999, the Commonwealth
filed written notice of its intent to rely on the aggravating circumstance that Appellant
"murdered the victims while there was in effect an order by the Oldham District Court
designed to protect the victims from [Appellant] ." KRS 532.025(2)(x)(8) . Appellant
subsequently filed a motion in limine that the trial court instruct the Commonwealth to
admonish its witnesses not to refer to "inadmissible and unduly prejudicial matters,"
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including Appellant's "prior convictions or charges or sentences ." After a pre-trial
hearing, the trial court overruled the motion in part, permitting the Commonwealth to
introduce evidence of the aforementioned court order and its conditions but prohibiting
the Commonwealth from referring to the dismissed charge as either a burglary or a
felony .
On three occasions during the trial, the Commonwealth introduced evidence
relating to the district court order. First, Officer Ted Speigel of the Oldham County
Police Department testified that Armotta told him when he arrived at the Porter
residence that Appellant had shot her and that he had previously been arrested on
other charges. Second, the Commonwealth introduced a certified copy of the 1996
district court order which was redacted to delete the nature of the charge and that it was
a felony . Third, Armotta testified that her father had previously sworn out a criminal
complaint against Appellant and that Appellant had agreed to certain conditions in
exchange for the dismissal of the charges. Thus, there was no violation of the in limine
order with respect to any of this evidence .
The evidence was probative of Appellant's motive in murdering Mr. and Mrs.
Porter and attempting to murder Armotta . Evidence of prior misconduct that shows a
motive to commit the subsequent offense is admissible under KRE 404(b)(1) . Brown v.
Commonwealth, Ky., 983 S .W.2d 513, 516 (1999) (evidence of defendant's prior
indictment for flagrant nonsupport admissible as proof of motive to murder his wife) ;
McCarthy v. Commonwealth , Ky., 867 S .W .2d 469, 470 (1993) (evidence that
defendant was subject to emergency protective order issued at the behest of his
estranged wife admissible "as evidence of motive or state of mind" of defendant
charged with assaulting estranged wife and burglarizing her home), overruled on other
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grounds by Lawson v. Commonwealth , Ky., 53 S.W.3d 534, 544 (2001); Matthews v.
Commonwealth , Ky., 709 S .W.2d 414, 418 (1985) (evidence that estranged wife sought
and obtained warrant charging defendant with sexual abuse of step-daughter resulting
in the issuance of "no-contact" order admissible to prove motive for subsequent murder
of estranged wife).
The fact that the order was entered over two years prior to the charged offenses
did not bar its admission . "Temporal remoteness generally is held to go to the weight of
the evidence, but not to render it inadmissible per se." Commonwealth v. English , Ky.,
993 S .W .2d 941, 944 (1999) (citations omitted) . Rather, temporal remoteness is but
one factor to be weighed under KRE 403 . Id . at 945 . The KRE 403 analysis, of course,
is committed to the sound discretion of the trial judge and is reviewed only for abuse of
discretion . Id. Here, the probative value of the district court order as evidence of
Appellant's animus against the Porters was heightened by the fact that Appellant's last
contact with the Porters before June 29, 1999, was the day the "no contact" order was
entered . Thus, this evidence was highly probative of Appellant's motive and its
admission was not an abuse of discretion.
After the trial court overruled his objection to Speigel's testimony, Appellant
asked for a limiting admonition . The request was denied without explanation . While this
was error, KRE 105(a), it is subject to harmless error analysis . Epperson v.
Commonwealth , Ky., 809 S.W.2d 835, 838 (1990). Considering the overwhelming
evidence of Appellant's guilt and the limited prejudicial effect of this evidence outside of
its legitimate purpose to prove motive, the failure to give the limiting admonition was
harmless beyond a reasonable doubt.
Appellant also asserts that the Commonwealth failed to provide him with written
notice of its intent to introduce the evidence as required by KRE 403(c). However,
there is no requirement that such notice be in writing . Tamme , 973 S.W .2d at 31-32 .
KRE 404(c) is satisfied if the accused is provided "with an opportunity to challenge the
admissibility of this evidence through a motion in limine and to deal with reliability and
prejudice problems at trial ." Robert G . Lawson, The Kentucky Evidence Law Handbook
§ 2.25 (3rd ed . 1993) . Obviously, Appellant had actual notice since he filed a motion in
limine to suppress the evidence . Tamme , supra, at 31-32.
2 . Termination of Appellant's employment and failure to return weapon .
Ed Davis, the manager of Diamond Detective Agency and Appellant's former
supervisor, testified that he hired Appellant to work as a security guard in April 1999
and provided him with a .38 caliber revolver, serial number 2D59496, which was later
identified as the same weapon used to kill Mr. and Mrs. Porter . Davis further testified
that he terminated Appellant's employment and thereafter made repeated unsuccessful
efforts to obtain the return of the revolver, including the sending of a certified letter to
Appellant . Appellant claims that this was improper "character evidence" under KRE
404(b).
We note at the outset that this issue was specifically waived . Before the
Commonwealth called Davis to testify, Appellant objected to any testimony from Davis
regarding a subsequent civil suit and criminal charge that he filed against Appellant
because of the failure to return the weapon . However, Appellant specifically stated that
he did not object to Davis's testimony regarding his failure to return the weapon after
the termination of his employment . The prosecutor instructed Davis not to mention the
civil suit and criminal charge, and Davis complied with that instruction .
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Nevertheless, the fact that Appellant failed to return the .38 revolver upon the
termination of his employment was relevant to identify the weapon as the one used to
kill Mr. and Mrs . Porter and to link it to Appellant, thus identifying Appellant as the
perpetrator of the murders. See Barth v. Commonwealth , Ky., 80 S.W .3d 390, 402-03
(2001) (evidence that defendant flourished weapon on another occasion before using it
in assault and robbery admissible under KRE 404(b)(1) as probative of identity of the
weapon and of defendant as perpetrator). Davis's testimony with respect to his
unsuccessful attempts to retrieve the weapon was relevant for the same purpose, i .e . ,
to show that the weapon was in Appellant's, not Davis's, possession at the time the
crimes were committed . Evidence that Davis terminated Appellant's employment was
"inextricably intertwined" with the evidence of his unsuccessful attempts to obtain the
return of the weapon . KRE 404(b)(2) .
Nor was there a KRE 404(c) violation with respect to Davis's testimony .
Appellant made a preliminary objection resulting in the exclusion of certain aspects of
Davis's testimony, i .e . , that he had sued Appellant and brought criminal charges against
him for failing to return the weapon, indicating prior actual knowledge of the substance
of that testimony.
B . Hearsay .
1 . Excited utterances .
Becky Gilbert, a 911 operator with Oldham County Central Dispatch, testified
that on June 29, 1999, she received a 911 call from an unidentified female who told her
only that she had been shot in the back and knee by Miguel Soto and the address from
which she was calling - the address of the Porter residence . Gilbert terminated the
conversation and dispatched emergency vehicles to the Porter residence . She then
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obtained and dialed the Porter's telephone number. The person who answered
identified herself as Armotta Porter, and Gilbert recognized her voice as that of the
same person who made the previous 911 call . A recording of both conversations was
played at trial . Appellant first claims that both conversations were inadmissible
hearsay . We conclude that the conversations were within the "excited utterance"
exception to the hearsay rule . KRE 803(2).
An "excited utterance" is a statement "relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition ." Id . The eight "most significant" factors used to determine whether a
statement is an excited utterance are :
(i) lapse of time between the main act and the declaration, (ii) the
opportunity or likelihood of fabrication, (iii) the inducement to fabrication,
(iv) the actual excitement of the declarant, (v) the place of the declaration,
(vi) the presence there of visible results of the act or occurrence to which
the utterance relates, (vii) whether the utterance was made in response to
a question, and (viii) whether the declaration was against interest or selfserving .
Jarvis v. Commonwealth, Ky., 960 S.W.2d 466, 470 (1998) (citation omitted) . These
criteria serve only as a guideline for admissibility and are not a bright-line test. Id . The
trial court did not err in finding that Armotta's statements to Gilbert were excited
utterances . Armotta called the 911 operator immediately after being shot, with little
time for reflection or deliberation. The tone of her voice on the 911 recording indicates
that she was distraught, in substantial pain, and extremely excited. She had little
inducement to fabricate as she was seeking police protection from her attacker and
medical attention for her wounds . Her identification of Appellant as her assailant was
spontaneous and not in response to an inquiry . See Wells v. Commonwealth , Ky., 892
S.W .2d 299, 302 (1995) (statements made by stabbing victim to 911 operator and
treating EMT made within minutes of stabbing properly admitted as excited utterances) .
At approximately 6 :30 p .m ., Speigel arrived at the Porter residence in response
to the 911 call . Speigel testified that he found Armotta standing in the doorway,
bleeding from the abdomen, and holding her infant daughter. Armotta told him that her
ex-husband had shot her while they were in the garage, that he had said he had killed
her parents,' and that she did not know where he was. These statements were
admissible as excited utterances for the same reasons as the statements made during
the 911 call. Robey v. Commonwealth , Ky., 943 S.W.2d 616, 618-19 (1997)
(statements made by rape victim minutes after rape occurred admissible as excited
utterances) ; Wells , supra, at 302 ; Dawson v. Commonwealth , Ky. App ., 867 S.W .2d
493, 496 (1993) (assault victim's statements to police officer who arrived five minutes
after assault admissible as excited utterances) ; cf. Curtis v. Commonwealth , Ky., 474
S .W .2d 394, 396 (1971) (statements by victim to police officers who arrived at victim's
home approximately thirty minutes after shooting admissible as res gestae ) .
2. DD Form 214.
Renae Harrison had been married to Appellant for four years during which both
were active duty members of the United States Army. She identified Appellant's
signature on a document entitled "Certificate of Release or Discharge from Active
Duty," otherwise known as a DD (Department of Defense) Form 214, purportedly issued
on November 15, 1994, to Appellant (identifying him by name, date of birth, July 5,
1971, and social security number, 553-13-2137) and listing various awards and
5 Appellant's admission to Armotta that he killed her parents was separately admissible
under KRE 801 A(b)(1) .
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certifications earned by him, including a ".45 cal. sharpshooter badge" (the same type
of weapon used to shoot Armotta) . Appellant first asserts that the information
contained in the DD Form 214 was inadmissible hearsay. However, a DD Form 214 is
an official record of a public agency, 10 U .S.C . § 1168 ; 32 C.F .R . § 45 .1, thus, its
contents were admissible under the public records exception to the hearsay rule. KRE
803(8).
3. Hearsay obiections sustained .
Detective Randy Bianco was the chief investigator of the crime scene. When
asked by the prosecutor to summarize the steps he took during his investigation,
Bianco testified, inter alia, that Hoskins told him that Appellant was the person
mentioned in the 911 call and that he had "turned himself in." Bianco further testified
that he contacted Speigel by cellular telephone and was advised that Armotta had told
Speigel that Miguel Soto had shot her in the back from a distance of approximately four
feet.
Appellant objected to this testimony as hearsay and the trial judge sustained the
objection . Appellant did not request an admonition to the jury to disregard the
evidence; thus, no error occurred . Tamme, supra , at 35 ; Haves v. Commonwealth , Ky.,
698 S.W .2d 827, 829 (1985) ("Merely voicing an objection, without a request for a
mistrial or at least for an admonition, is not sufficient to establish error once the
objection is sustained .") . Absent countervailing evidence, the failure to request a
limiting admonition is regarded as a trial tactic, Sanders , 801 S.W.3d at 668, intended
to avoid calling further attention to the improper evidence . See also Caudill , 120
S.W.3d at 658; Hall v. Commonwealth , Ky., 817 S.W.2d 228, 229 (1991), overruled on
other -grounds by Commonwealth v. Ramsey, Ky., 920 S.W.2d 526, 527 (1996) .
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4. Harmless hearsay.
Roxanne Fisher, Armotta's older sister and Mr. and Mrs. Porter's eldest
daughter, testified that she telephoned her parents at their home at approximately 5 :10
p.m . on the evening of their murders and spoke to both of them over the course of
approximately twenty minutes. She testified that her father told her that they had
recently arrived home from the doctor's office . We agree that the statement was
hearsay, Slaven v. Commonwealth , Ky., 962 S .W .2d 845, 854 (1997), but conclude that
it was harmless beyond a reasonable doubt. Appellant claims the jury could have
inferred from this statement that Appellant arrived at the Porter property before Mr. and
Mrs. Porter returned home and lay in wait for them like a stalking animal. If so, the
inference was no more prejudicial than Appellant's admission during his recorded
confession that he, in fact, hid in the tool shed and killed Mr . Porter when he
unsuspectingly entered it.
C. Authentication .
1 . 911 call.
The recording of the 911 call from Armotta to Gilbert was properly authenticated .
A party may authenticate a telephone conversation :
[B]y evidence that a call was made to the number assigned at the time by
the telephone company to a particular place or business if:
A)
In the case of a person, circumstances, including self-identification,
show the person answering to be the one called ;
KRE 901(b)(6)(A) . Here, as in Crowe v. Commonwealth , Ky., 38 S .W .3d 379 (2001),
the initial conversation was by way of an incoming call to a person who could not
identify the caller by voice recognition. Crowe held that KRE 901(b)(6)(A) does not
apply to incoming telephone calls and that mere self-identification by the caller is
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insufficient to identify the caller. Id. at 383 . "Identification of a party to an incoming
telephone call is authenticated if the recipient of the call recognizes the voice of the
caller or is otherwise able to connect the voice with the caller ." Id . (emphasis added) .
However, when Gilbert made the return call to the telephone number listed for the
address given to her by the initial caller and the same person answered and identified
herself, such was sufficient to identify Armotta as both the initial caller and the recipient
of the return call . See Osborne v. Commonwealth , Ky., 43 S .W.3d 234, 242 n.3 (2001)
(911 call from defendant's mother properly authenticated where operator made return
call to number provided by mother and same person answered) .
2. DD Form 214.
Appellant's DD Form 214 was properly authenticated despite the fact that it was
neither certified nor attested and was not introduced by the custodian of the record . As
an official record, the DD Form 214 was self-authenticating under KRE 902(4), viz:
Extrinsic evidence of authenticity as a condition precedent to admissibility
is not required with respect to the following :
(4)
Official records . An official record or an entry therein when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by an official having the
legal custody of the record . . . .
(Emphasis added .) The emphasized language means that a public record need not be
further authenticated if the original document is introduced .' Pa. State Police v. 139
Horseshoe Corp . , 629 A.2d 290, 294 (Pa . Commw. Ct. 1993).
' Kentucky did not adopt Fed . R. Ev. (FRE) 902(4) which does not contain the "official
publication" language, perhaps because it could be assumed that the Rule applied only
to copies . In adopting the Kentucky Rules of Evidence, we instead retained the
language of Ky. R. Civ. Proc. (CR) 44.01 .
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A DD Form 214 is issued directly to the discharged servicemember or "his next
of kin or legal representative ." 10 U.S .C. § 1168 . Harrison testified from her own
personal experience as a discharged servicemember that the person to whom the DD
Form 214 is issued is required to sign it upon receipt. The recipient may then record
the document for safekeeping in the local county clerk's office . KRS 422 .090(1). While
different procedures would be required to authenticate a copy of the document, see
KRS 422 .090(2); KRE 902(4), the only authentication required of the original is
evidence sufficient to prove that it is, in fact, the original document. KRE 901(a). The
document in question is obviously an original and not a copy. Its identification of
Appellant by name, date of birth, and social security number, accompanied by
Harrison's identification of his signature on the document, sufficed to identify it as the
original DD Form 214 issued to Appellant upon his discharge from the United States
Army.
3 . Dumpster documents .
Detective Larry Congelton of the Oldham County Police Department testified that
he searched a dumpster located in the parking lot of the Crestwood Recruiting Station
where Appellant had parked his automobile on June 29, 1999, before proceeding on
foot to the Porter residence . The search produced a number of documents that
appeared to belong to Appellant, including various military records containing
Appellant's name and social security number, as well as two original documents
purportedly prepared by Appellant, himself . These latter two documents were admitted
into evidence over Appellant's objection that they were not properly authenticated as
having been authored by him.
The first document, typewritten except for a signature purporting to be that of
Appellant and Appellant's handwritten social security number, reads as follows :
I, Miguel Angel Soto, being of mind sound and body, hereby writes [sic]
my last will and testimony. To my oldest daughter, Kristie Denae Soto, I
leave all my personal belongings. For all three of my daughters, Kristie
Denae Soto, Kaylynn Michelle Soto, and Brianna Nicole Porter, I leave
any benefits acquired from the military.
/s/ Miguel Angel Soto
553132137
The second document, typewritten and unsigned, was partially redacted to
delete a reference to a prior criminal offense for which Appellant was convicted in 1996
in Jeffersonville, Clark County, Indiana . The document begins as follows :
Hello everyone .
My name is Miguel Angel Soto, also known as Mickey to my friends
or SOTOPOP to all my internet friends . This letter is a final goodbye to all
that believed in my dreams of getting back into the lives of my children .
The author then expresses frustration over not having custody of the children and
blames unidentified ex-wives for that fact. The document continues :
I had a list of all the people that I planned on destroying, but I knew
that I would only be able to Take [sic] care of one person, so I drew a
name out of the hat, you all know who won . The following names are the
lucky non winners, I hope they live their lives better, knowing that they
have a second chance:
The document then lists the "lucky non winners" as Renae Harrison, Richard Paul
Harrison, and Linda Kay Harrison, Armott Porter and Edna Porter, two members of the
Clark County, Indiana, Sheriffs Department, and a former Clark County, Indiana,
prosecutor. The document concludes:
I do love my daughters, Kristie, Kaylynn and Brianna, but if I cannot
be part of their lives, then I don't want to be living on this planet . God
knows what I've been through, so that is why I am not scared . Goodbye
all and I will see you all in a better place.
Of course, conspicuously absent from the list of "lucky non winners" was the name of
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Armotta Porter, damning evidence of Appellant's premeditated intent to kill her.
"The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims ." KRE 901(a). Appellant asserts that the
provisions of KRE 901(b), titled "Illustrations," required the Commonwealth to produce
evidence that Appellant's signature on the "last will" was genuine. He theorizes that
KRE 901(b)(2), which allows a party to authenticate a document by non-expert opinion
as to the genuineness of the handwriting, and KRE 901(b)(3), which allows
authentication through "[c]omparison by the trier of fact or by expert witnesses with
specimens which have been authenticated," are the only methods by which these
documents can be authenticated . He is mistaken .
While KRE 901(b)(2) and (3) indeed describe methods by which a document
may be authenticated, those methods are not exclusive . "The specific illustrations [of
KRE 901(b)] are not to be viewed as all-inclusive." Lawson, supra, at § 7.05. In the
absence of direct evidence as to a writing's authenticity, a document may be
authenticated by a wide variety of means, including circumstantial evidence . See
Fanelli v. Commonwealth , Ky., 418 S .W .2d 740, 744-45 (1967) (circumstantial evidence
sufficient to authenticate checks allegedly signed by defendants, even absent testimony
from handwriting experts or persons familiar with defendants' signatures) ; Lawson,
supra, at § 7 .05 ("[T]here is no end to the ways in which the circumstances surrounding
a writing might tend to show authenticity ."). In addition, distinctive characteristics of the
writing, in conjunction with the circumstances, may assist in its authentication . KRE
901(b)(4) ("Appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances") ; Lawson , supra, at § 7.05 ;
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see also United States v. Wilson, 532 F.2d 641, 644 (8th Cir. 1976) ("Under [FRE
901(b)(4)], the contents of a writing may be used to aid in determining the identity of the
declarant .").
Both documents were found at a location where Appellant was known to have
been just prior to the murders and were found along with other military documents
containing Appellant's name, date of birth, and social security number. Both
documents identified Appellant's children by name . Both evidenced a belief in the
writer's pending demise, a fact corresponding to Appellant's having discarded most of
his personal effects because he would not need them "where he was going ." The "last
will" contained Appellant's purported signature and handwritten social security number,
and made reference to his military service . The "final goodbye" described events that
occurred in Appellant's life, including his lack of visitation with his children and his 1996
conviction in Jeffersonville, Indiana . The "lucky non winner's list" included persons
connected to Appellant's past, i .e. , an ex-wife, former in-laws, arresting officers, and a
former prosecutor. Specifically, it included the two persons Appellant was accused of
murdering . This circumstantial evidence sufficed to identify Appellant as the author of
both documents .
D. Rule
of Completeness .
Monica Nahand testified that Appellant lived with her and her three children in
Jeffersonville, Indiana, until she asked him to leave on June 26, 1999. During that
period, Appellant told Nahand that he was writing a "story" that was handwritten on
forty-three pages of a legal pad and asked if he could type it into her computer. She
agreed, but Appellant did not finish the task. After Appellant moved out of her
residence, Nahand found pages fourteen through forty-three of the handwritten "story"
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in her house. The first thirteen pages had been torn out of the legal pad. After the
Porter murders, Nahand delivered the remainder of the legal pad to the police . She
disclaimed any knowledge of the fate of the first thirteen pages .
At trial, Nahand identified Appellant's handwriting on page forty-three, and that
page was admitted as evidence of Appellant's animus against Armotta. It described a
scenario in which "Armotta had walked into her bedroom, grabbed the .357 magnum
that her father had given her for protection and done [sic] something that she nearly
forced Miguel to do 3 times. She placed the muzzle to her left temple, and pulled the
trigger ." Appellant claims that the admission of page forty-three violated KRE 106, the
so-called "rule of completeness," because the first thirteen pages of his "story" were
missing, thus depriving him of the opportunity to introduce the complete document.
KRE 106 provides that when a party introduces a portion of a writing or recorded
statement, the adverse party may "require the introduction at that time of any other part
. . . which ought in fairness to be considered contemporaneously with it ." KRE 106 is a
rule of admission, not exclusion . It allows a party to introduce the remainder of a
statement offered by an adverse party for the purpose of putting the statement in its
proper context and avoiding a misleading impression from an incomplete document.
Lawson, supra, at § 1 .20 ("The objective of [KRE 106], in other words, is to prevent a
misleading impression as a result of an incomplete reproduction of a statement or
document ."). It does not require the exclusion of a relevant portion of a document
because other portions cannot be found . Furthermore, even if the entire document
were available, KRE 106 would require the admission of only that portion which
concerns the part introduced by the adverse party. Young v. Commonwealth , Ky., 50
S .W .3d 148, 169 (2001). See also United States v. Littwin , 338 F.2d 141, 146 (6th Cir.
-4 9-
1964) (rule of completeness "is subject to the qualification that only the other parts of
the document which are relevant and throw light upon the parts already admitted
become competent upon its introduction . There is no rule that either the whole
document, or no part of it, is competent ." (Citations omitted .)). The real issue is
whether the excluded portion alters the portion already introduced . Young, supra, at
169; Commonwealth v. Collins, Ky., 933 S.W.2d 811, 814 (1996). Appellant (who
authored the missing pages) does not suggest how the missing pages would have
altered the portion that was introduced . Thus, there was no violation of KRE 106 .
E . Relevancy .
1 . Testimony of Renae Harrison .
In addition to identifying Appellant's signature on the DD Form 214, Harrison
testified that she and Appellant had two daughters, Kristie, then age eight, and Kaylynn,
then age six, whom Appellant had not seen since November 1995. Appellant
challenges the relevancy of this evidence ; however, proof that Appellant had two
children named Kristie and Kaylynn Soto and that he had not seen them since 1995
was relevant to the authentication of the "last will" and "final goodbye" documents,
supra . Unlike Appellant, we are unable to conclude that the jury must have inferred
some sinister connection from the fact that Appellant's last visit with his older children
coincided with his separation from Armotta .
2 . Testimony of David Poussant.
In April 1999, three months before the murders, David Poussant was a military
policeman stationed with Appellant at Fort Knox, Kentucky. He was acquainted with
both Appellant and his ex-wife, Harrison . Poussant testified that Appellant told him that
he loved his children and "would do anything to get them back," and, on another
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occasion, to pray for him and not to be "surprised if you see me in the news sometime ."
Appellant challenges Poussant's testimony as irrelevant . However, the statements,
when considered in conjunction with the previously admitted "story" and "list of lucky
non winners," were probative of the Commonwealth's theory that Appellant intended to
kill Armotta in revenge for denying him visitation with Brianna .
3. Humanizing evid ence.
Appellant recites numerous complaints regarding the claimed irrelevancy of
evidence that "humanized" the victims and described the horrific nature of their injuries .
"We have stated many times that evidence that a murder victim was not a mere
statistic but an individual human being with a personality and activities does not unduly
prejudice the defendant or inflame the jury." Caudill , 120 S .W.3d at 662 (citations
omitted) ; see also Adkins v. Commonwealth , Ky., 96 S .W.3d 779, 794 (2003); Stopher
v. Commonwealth, Ky., 57 S .W.3d 787, 802-03 (2001) ; Love v. Commonwealth , Ky., 55
S .W .3d 816, 827 (2001) ; Hodge , 17 S .W .3d at 847; Bowling v. Commonwealth , Ky.,
942 S.W .2d 293, 302-03 (1997). Further, testimony describing the nature of the
wounds and the cause of death or injury is relevant to prove the corpus delicti. Caudill ,
supra, at 659. Armotta's testimony regarding her life experiences, employment, and
family leading up to the events of June 29, 1999, was also relevant background
evidence . The trial court did not abuse its discretion in admitting this evidence. KRE
403; English, 993 S .W.2d at 945 (citations omitted) .
VIII . GUILT PHASE INSTRUCTIONS.
In addition to the failure to instruct on EED and manslaughter in the first degree,
discussed in Part VI of this opinion, supra, Appellant asserts that the trial court erred in
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not instructing the jury on wanton murder as an alternative to intentional murder and on
second-degree manslaughter and second-degree assault as lesser included offenses .
A. Wanton Murder.
A person commits wanton murder when "under circumstances manifesting
extreme indifference to human life, he wantonly engages in conduct which creates a
grave risk of death to another person and thereby causes the death of another person ."
KRS 507.020(1)(b) . An instruction on wanton murder has been held appropriate where
there was evidence that the defendant fired a weapon at the victim but without an intent
to kill. Carwile v. Commonwealth , Ky., 656 S.W .2d 722, 723-24 (1983) . However, a
theory unsupported by the evidence is not entitled to an instruction . Pilon v.
Commonwealth, Ky., 544 S .W .2d 228, 2331 (1976). There was no evidence that
Appellant shot either Mr. or Mrs. Porter without an intent to kill. Both were shot twice at
close range and Appellant did not claim in his confession that he did not intend to kill
them .
B . Manslaughter in the second degree and assault in the second degree .
Appellant asserts that he was entitled to an instruction on manslaughter in the
second degree as a lesser included offense of murder and on assault in the second
degree as a lesser included offense of attempted murder because the jury could have
believed that he was so intoxicated that he did not form the requisite intent to commit
the charged offenses . Evidence of voluntary intoxication does not serve to acquit the
defendant, but if it negates the element of intent, reduces the offense to one having a
mens rea of wantonness . Caudill , supra , at 669 ; Slaven , 962 S.W .2d at 856-57 . An
instruction on voluntary intoxication is warranted only when there is "evidence not only
that the defendant was drunk, but that [he] was so drunk that jhel did not know what
[hel was doing ." S rin er, 998 S .W.2d at 439 (emphasis added) (citations omitted) .
Appellant presented no evidence to satisfy that requirement . He cites his
confession, in which he often changed the subject and once stated that he "got drunk."
He also cites his urine test, which registered positive for PCP, cocaine, and
amphetamines, and his blood test, which registered positive for diphenhydramine, an
antihistamine. However, there was a plethora of evidence establishing that Appellant
gave no indication of being intoxicated and that he knew exactly what he was doing and
no evidence to the contrary . He parked his car and walked three miles to the Porter
residence . He hid in a tool shed to escape immediate detection . After shooting Mr. and
Mrs. Porter, he concealed their bodies and the weapon used to kill them and lay in wait
for Armotta . After shooting Armotta, he had the presence of mind to flee the scene and
conceal the second weapon in a creek . He was able to find Mitch Nobles's residence, a
place he had not visited for almost three years . These are not the actions of a man so
intoxicated that he did not know what he was doing . Compare Slaven , supra , at 856-57
(evidence that defendant consumed "substantial quantities" of alcohol, Xanax, and
marijuana, in addition to testimony that defendant was "wild and mumbling" and "pretty
doped up" prior to the murder warranted instruction on second-degree manslaughter) .
IX. PENALTY PHASE ISSUES.
A. Aggravating circumstances .
1 . "No contact" order.
Appellant asserts that his violation of the 1996 district court "no contact" order
did not qualify as an aggravating circumstance under KRS 532 .025(2)(x)(8) .' He
argues that the order was no longer "in effect" at the time of the murders . He is
mistaken .
KRS 532 .025(2)(x)(8) is a recent addition to the statutory list of aggravating
circumstances, 1998 Ky. Acts, ch . 606, § 72, and applies when:
The offender murdered the victim when an emergency protective order or
a domestic violence order was in effect, or when any other order designed
to protect the victim from the offender , such as an order issued as a
condition of a bond, conditional release , probation, parole, or retrial
diversion , was in effect.
(Emphasis added .) This provision is not limited, as Appellant claims, to emergency
protective orders and domestic violence orders. It is reasonable to assume that the "no
contact" order in question was designed to protect Mr. Porter from retaliation by
Appellant for causing him to be arrested for burglary . Thus, its violation fell within the
parameters of KRS 532 .025(2)(x)(8) .
Appellant notes that a district court lacks the authority to make a final disposition
of a felony charge. KRS 24A.110(1)(a); Commonwealth v. Stephenson , Ky., 82 S .W.3d
876, 887-88 (2002). However, the district court has concurrent jurisdiction with the
circuit court to examine any felony charge and "to commit the defendant to jail or hold
him to bail or other form of pretrial release ." KRS 24A .110(3) . This concurrent
jurisdiction, of course, expires upon the issuance of an indictment by a grand jury,
Commonwealth v. Karnes , Ky., 657 S.W .2d 583, 583-84 (1983), a circumstance that
did not occur in this case . Further, because the district court order dismissed
Appellant's charge "without prejudice," it did not finally dispose of it. There is no statute
of limitations for a felony offense, KRS 500.050(1), and the charge could be refiled at
any time that Appellant violated the conditions of dismissal . Cf. Means v.
Commonwealth , 256 Ky. 30, 75 S .W .2d 546, 549 (1934) (indictment dismissed on
condition that defendant leave the state properly reinstated upon nonperformance of
that condition) .
Appellant cites KRS 533 .020(4) for the proposition that a period of probation or
conditional discharge of a misdemeanor expires after two years . Of course, (1) the
charge was not a misdemeanor; and (2) it was neither probated nor conditionally
discharged as Appellant was never convicted . We conclude that the "no contact" order
had not expired and that the trial court correctly instructed the jury that a murder
committed while violating that order was an aggravating circumstance authorizing
capital punishment .
2. Burglary in the first degree .
Appellant asserts that the trial court improperly instructed the jury on the
aggravating circumstance that he murdered Mr. Porter while engaged in the
commission of burglary in the first degree . KRS 532 .025(2)(a)(2) . Appellant premises
this argument on the fact that he killed Mr. Porter before entering the Porter residence,
thus did not kill him while committing first-degree burglary.' KRS 511 .020(1) provides :
This aggravating circumstance was applied only to the murder of Mr. Porter .
8 Appellant does not challenge the propriety of the aggravating circumstance with
respect to the murder of Mrs. Porter .
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(1)
A person is guilty of burglary in the first degree when, with the
intent to commit a crime, he knowingly enters or remains unlawfully
in a building , and when in effecting entry or while in the building or
in the immediate flight therefrom, he or another participant in the
crime :
(a)
Is armed with explosives or a deadly weapon ; or
(b)
Causes physical injury to any person who is not a participant
in the crime ; or
(c)
Uses or threatens the use of a dangerous instrument against
any person who is not a participant in the crime .
(Emphasis added .) KRS 511 .010(1) defines a "building" as follows :
"Building," in addition to its ordinary meaning, means any structure,
vehicle, watercraft or aircraft:
(a)
Where any person lives; or
(b)
Where people assemble for purposes of business,
government, education, religion, entertainment or public
transportation .
(Emphasis added .) KRS 511 .010(2) separately defines a "dwelling" as "a building
which is usually occupied by a person lodging therein," indicating that "building"
encompasses a broader category of structures than "dwelling ." This conclusion is
reinforced by the legislative history of KRS 511 .020(1). As originally enacted, the
statute provided that burglary in the first degree could be committed only by entering or
remaining in a "dwelling" under the presently defined aggravating circumstances or at
night . 1974 Ky. Acts, ch . 406, § 97 . Entry into or remaining in a "building" under the
presently defined aggravating circumstances constituted burglary in the second degree .
1974 Ky. Acts, ch . 406, § 98. The statute was amended in 1978 to provide that
burglary in the first degree could be committed either by unlawfully entering or
remaining in a "dwelling" with the intent to commit a crime therein, or by entering or
remaining in a "building" under the presently defined aggravating circumstances . 1978
Ky. Acts, ch . 406, § 97. Finally, in 1980, unlawfully entering or remaining in a "dwelling"
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with the intent to commit a crime therein was redefined as burglary in the second
degree, KRS 511 .030(1), but entering or remaining in a "building" under the presently
defined aggravating circumstances remained burglary in the first degree . 1980 Ky.
Acts, ch . 376, §§ 2, 3 .
Since burglary in the first degree does not require entering or remaining in a
"dwelling," e.g_, the Porter residence, the inquiry becomes whether the tool shed in
which Mr. Porter was murdered falls within the "ordinary meaning," KRS 511 .010(1), of
a "building." "[T]he first-degree burglary statute applies to every structure that meets
the definition of a building as used in common parlance, without regard to whether it is
inhabited or inhabitable ." Funk v. Commonwealth , Ky., 842 S .W .2d 476, 482-83 (1992)
(abandoned, condemned, and uninhabited building is a "building" for purposes of KRS
511 .020(1)) . The dictionary definition ("ordinary meaning") of "building" is:
[A] constructed edifice designed to stand more or less permanently,
covering a space of land, usually covered by a roof and more or less
completely enclosed by walls, and serving as a dwelling, storehouse ,
factory, shelter for animals or other useful structure - distinguished from
structures not designed for occupancy (as fences or monuments) and
from structures not intended for use in one place (as boats or trailers)
even though subject to occupancy . 9
Webster's Third New International Dictionary of the English Language Unabridged 292
(Merriam-Webster 1993) (emphasis added).
There was evidence that Appellant unlawfully entered the tool shed and that he
remained therein with the intent to commit a crime when he formulated the intent to kill
Mr. Porter ; and that while in the building, he was armed with a deadly weapon and
caused physical injury to a person not a participant in the crime . Thus, he killed Mr.
9 Note that boats and trailers subject to occupancy would fall within the definition of a
"building" in KRS 511 .010(1).
-5 7-
Porter while engaged in the commission of burglary in the first degree - even though it
was not the same burglary of which he was separately convicted .
Even if Appellant were correct with respect to either of these aggravating
circumstances, the error would be harmless because the jury also found the
aggravating circumstance of multiple intentional deaths, KRS 532 .025(2)(x)(6), which
was unquestionably applicable to the murders of both Mr. and Mrs . Porter. Barclay v.
Florida , 463 U .S. 939, 956, 103 S .Ct. 3418, 3428, 77 L.Ed .2d 1134 (1983); Zant v.
Stephens, 462 U .S. 862, 884-89, 103 S.Ct. 2733, 2747-49, 77 L .Ed .2d 235 (1983);
Bevins v. Commonwealth, Ky., 712 S.W.2d 932, 935-36 (1986).
B . Other penalty phase instructions .
1 . Mitigating circumstances -- non-unanimitx .
"There is no requirement that a capital penalty jury be instructed that its findings
on mitigation need not be unanimous ." Caudill, supra , at 674-75 ; Mills, 996 S.W.2d at
492 ; Tamme , 973 S.W .2d at 37 ; Bowling v. Commonwealth , Ky., 873 S .W .2d 17,180
(1993) .
2 . Non-statutory mitigating circumstances .
Appellant asserts that the trial court erred by refusing to instruct the jury
specifically with respect to each non-statutory mitigating circumstance claimed by
Appellant, such as his deprived family background and military service . However, in
addition to instructing on the applicable statutory mitigating circumstance, the trial court
instructed the jury that it could consider "[a]ny other circumstance or circumstances
arising from the evidence which you, the jury, deem to have mitigating value." Having
so instructed the jury, the trial court was not required to give specific instructions
regarding additional non-statutory mitigating circumstances claimed by Appellant .
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Haight v. Commonwealth , Ky., 938 S .W .2d 243, 248 (1996) ; Bowling, 873 S .W-2d at
180 .
3. Agqravafnq circumstances - unanimous verdict.
Penalty phase instruction number 12 instructed the jury that:
You must reach a separate verdict on each count described in these
instructions and a separate verdict on your recommendation as to whether
the sentence should run concurrently or consecutively . Each verdict must
be in writing, must be unanimous and must be signed by one of you as
foreperson .
(Emphasis added .) Verdict forms 6C, 6D, and 6E, as well as verdict forms 7C, 7D, and
7E, were provided for use by the jury if it found beyond a reasonable doubt that any of
the three enumerated aggravating circumstances existed . It was not necessary that
each verdict form also instruct the jury that the verdict written on that form must be
unanimous . Instruction number 12 informed the jury of that requirement .
Further, the fact that instruction number 12 required that each verdict be
unanimous did not create "a substantial probability that reasonable jurors, upon
receiving the judge's instructions . . . well may have thought that they were precluded
from considering any mitigating evidence unless all 12 jurors agreed on the existence of
a particular such circumstance." Mills v. Maryland , 486 U .S . 367, 384, 108 S .Ct. 1860,
1870, 100 L .Ed .2d 384 (1988). An instruction "may not be judged in artificial isolation,
but must be considered in the context of the instructions as a whole and the trial
record ." Estelle v. McGuire , 502 U.S . 62, 72, 112 S.Ct. 475, 482, 116 L.Ed .2d 385
(1991) (quotations omitted) . The unanimity instruction specifically referred to each
verdict. It did not instruct the jury that its findings must be unanimous or that it must
reach a verdict on mitigating circumstances . Compare Gall v. Parker, 231 F.3d 265,
325-26 (6th Cir. 2000) (trial court's instructions violated Mills , supra, by requiring jury's
-5 9-
"findings and verdict" to be unanimous and requiring jurors to select "yes" or "no" as to
existence of select mitigating factors) (emphasis added), overruled on other -grounds by
Bowling v. Parker, 344 F.3d 487, 501 (6th Cir. 2003), with Slaughter v. Parker, 187
F.Supp .2d 755, 814-15 (W .D . Ky. 2001) (distinguishing Gall , supra, and upholding
instructions identical to those given in this case).
4. Balancing of aggravating and mitigating circumstances .
"The trial judge is not required to instruct the jury that aggravating circumstances
must outweigh mitigating circumstances ." Hodge , 17 S .W.3d at 854 (citations omitted) ;
see also Stopher, 57 S .W .3d at 807 ; Ice v. Commonwealth , Ky., 667 S .W.2d 671, 678
(1984).
5 . Concurrent/consecutive sentence recommendation .
Appellant claims instruction number 12 and verdict form 12A, instructing the jury
to recommend whether Appellant should serve his sentences concurrently or
consecutively, denigrated the jury's responsibility in imposing the death penalty .
Tamme v. Commonwealth , Ky., 759 S.W.2d 51, 53 (1988). However, the jury "fixed"
Appellant's sentences in their other verdicts . KRS 532.055(2) specifically requires that
the jury only "recommend" whether the sentences it has fixed should run concurrently
or consecutively. Of course, a death sentence cannot run concurrently or consecutively
with another sentence; thus, the recommendation would only apply to the murder
convictions if the jury returned a verdict of a term of years, a circumstance that did not
occur here.
Although Foley v . Commonwealth , Ky., 942 S .W .2d 876 (1996), held that KRS
532 .055(2) does not apply in capital cases, it did not hold, as Appellant asserts, that it is
error for the trial court to give the instruction during the penalty phase of a capital trial .
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Foley only held that the trial court did not err in failing to give the instruction. Id . at 886.
Here, the capital penalty phase was combined with the so-called "truth-in-sentencing"
phase of the trial because Appellant was convicted not only of two capital offenses but
also of two Class B felonies and two Class D felonies . In view of the sentences of
death for the capital offenses, the trial court properly treated the consecutive sentence
recommendation as applicable only to the sentences for the lesser offenses .
6. Capital punishment verdict forms .
Appellant argues that the trial court's capital verdict forms improperly directed the
jury to automatically impose an aggravated penalty upon the finding of an aggravating
circumstance . We have considered and rejected this argument on numerous occasions
and continue to adhere to our prior holdings. E q_, Caudill, supra, at 674-75; Hodge ,
.
supra , at 854; Foley , 942 S .W .2d at 888-89 .
C. Cross-examination of Angel Soto.
Angel Soto, Appellant's older brother, testified during the penalty phase that he
and Appellant were both physically and psychologically abused by their foster parents
and that, as a result, he (Angel) had difficulty controlling his own anger. The following
colloquy occurred during cross-examination by the prosecutor :
Q.
And despite the treatment and abuses that you have described
earlier, I assume that you do not beat your wife, do you?
A.
No sir.
Q.
You do not beat your nine-year-old daughter?
A.
No sir.
Q.
And you have never murdered two people?
A.
No sir.
Contrary to Appellant's assertion, this line of questioning did not exceed the wide
latitude afforded to parties on cross-examination. KRE 611(b) ; Bray v. Commonwealth ,
Ky., 68 S .W.3d 375, 384-85 (2002); Commonwealth v. Maddox , Ky., 955 S .W.2d 718,
721 (1997). The purpose of Angel's testimony on direct examination was to imply that
Appellant's abusive family background caused him to shoot his ex-wife and murder his
former in-laws . The Commonwealth was entitled to rebut this premise by showing that,
despite sharing the same background, Angel had not been moved to commit similar
crimes of violence . The trial court did not abuse its discretion in permitting this line of
questioning . Bray, supra , at 384-85 ; Maddox , supra , at 721 .
X. ALLEGED PROSECUTORIAL MISCONDUCT.
Appellant alleges several instances of "prosecutorial misconduct" during the
Commonwealth's guilt and penalty phase closing arguments . All of these allegations
are meritless .
Any consideration on appeal of alleged prosecutorial misconduct must
center on the overall fairness of the trial . In order to justify reversal, the
misconduct of the prosecutor must be so serious as to render the entire
trial fundamentally unfair.
Stopher, supra , at 805 (citations omitted) .
During his guilt phase argument, the prosecutor characterized Appellant's claim
of voluntary intoxication due to the consumption of antihistamines as the "drowsy
defense." "A prosecutor may comment on tactics, may comment on evidence, and may
comment as to the falsity of a defense position ." Slaughter v. Commonwealth , Ky., 744
S .W.2d 407, 412 (1987) . The prosecutor's comment was mild compared to other
comments that we have declined to characterized as misconduct. E Stop her, supra ,
.,
.g
at 806 (classification of defense theory as "stupid") ; Luttrell v. Commonwealth , Ky., 952
-62-
S.W.2d 216, 218 (1997) (characterization of defense witnesses' testimony as a "story");
Slaughter, supra, at 412 (criticism of defense counsel for presenting a "great octopus
defense" and "pulling a scam") .
It was not improper for a prosecutor to comment on the thoroughness of the
police investigation - especially where, as here, defense counsel accused the police of
misconduct and characterized their investigation as "shoddy." The prosecutor did not
comment about evidence outside of the record when he stated that Appellant was
"lucky" he was not charged with attempted murder of Brianna . The remark was made
while discussing the strength of the evidence supporting the charge of wanton
endangerment in the first degree, i .e . , the firing of shots through the garage door
knowing that Brianna was somewhere on the other side of the door :
In the certain knowledge that his little daughter, who he professed to love
so much and wanted to see so badly, was right in the pathway, right in the
line of fire . And when he fired through that door, for all he knew, she
could have been laying on the floor, right behind the door in the path of
that bullet - thank God she wasn't. Wanton endangerment? He's lucky
it's not attempted murder of his child.
The statement was not a comment on evidence outside the record but a comment on
the weight of the evidence indicating Appellant's guilt. Woodall v. Commonwealth , Ky.,
63 S .W.3d 104, 125 (2001); Slaughter , supra , at 412 .
The prosecutor's comment during his penalty phase closing argument thanking
the jury on behalf of the Commonwealth, the victims' family, the police, and the
community, for the time and effort spent in the performance of their duties as jurors was
not misconduct. This type of comment, though gratuitous, hardly rises to the level of
argument that "tends to cajole or to coerce a jury to reach a verdict which would meet
with the public favor." Jackson v. Commonwealth , 301 Ky. 562, 192 S .W .2d 480, 482
-63-
(1946) (citations omitted) . "A prosecutor may call on the jury to do its duty ." Slaughter,
supra, at 412 (citations omitted) . Nor did the prosecutor's reference to the jury's
"prayerful deliberations" improperly inject religion into the court proceedings . See
Eldred v. Commonwealth , Ky., 906 S .W .2d 694, 707 (1994) (no reversible error in
Commonwealth's frequent biblical references during closing argument), overruled on
other grounds by Commonwealth v. Barroso , Ky., 122 S .W .3d 554, 563-64 (2003) .
Nor did the following statement during the prosecutor's penalty phase argument
constitute misconduct :
It goes without further saying or imploring that the representatives of the
Commonwealth believe that the law justifies, permits, and the evidence
warrants imposition of the death penalty in this case and the imposition of
maximum penalties on the remaining charges. It is a serious decision . It
is one that you must take seriously.
Obviously, a prosecutor is permitted to argue during the penalty phase of a capital
murder trial that the evidence warrants the imposition of the death penalty .
No prejudice resulted from the prosecutor's statement that the 1996 "no contact"
order resulted from a "confrontation" between Appellant and Mr. Porter . The trial judge
had forbidden any mention of the truth, i .e. , the burglary charge. The jury had heard
evidence that Appellant had "stalked" Armotta after she left him and that he was
confronted by Mr. Porter when he came to the Porter residence wanting to see Armotta.
Certainly, relating the "no contact" order to this confrontation was less prejudicial than
leaving it to the jurors' cumulative speculation as to why the order had been entered .
The prosecutor's penalty phase argument that the jury had already found the
aggravating circumstances of first-degree burglary and multiple intentional murders was
a "fair comment on the jury's guilt phase verdicts." Caudill , supra, at 676 . Indeed, the
only undecided issue at that point was whether Appellant committed the murders while
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engaged in the commission of first-degree burglary . KRS 532 .025(2)(x)(2) . The
Commonwealth and the defense, logically, had different views on that issue .
In his penalty phase argument, the prosecutor made the following statement with
respect to the mitigating circumstance of EED:
That the offense was committed under extreme emotional disturbance .
That's a word we use that's sometimes called "sudden impulse" or "heat
of passion ." The crime was intentional, but there was some aggravating
factor in the defendant's mind.
Although "heat of passion" and "sudden impulse" are not found in the definition of EED
as a defense, McClellan , 715 S .W .2d at 468-69, that definition does not apply when
EED is used as a mitigating circumstance. Caudill , supra, at 673. There is no statutory
definition of EED as a mitigating circumstance and we are unable to conclude that the
prosecutor's characterization of it as "heat of passion" or "sudden impulse" is so plainly
erroneous as to constitute misconduct.
With respect to Appellant's "youth" as a mitigating factor, the prosecutor
commented as follows during his penalty phase argument :
The youth of the defendant at the time of the crime . That has to be a
relative, subjective, decision . I submit to you that a man who has
graduated from high school, gone to college, served in the military and
attained the age of twenty-seven or twenty-eight years old, fathered three
children, gone through two marriages, held a variety of jobs, should not be
considered a child or treated as a child .
This statement was fair comment on Appellant's claim that his "youth" was a mitigating
circumstance . Tamme , 973 S .W .2d at 38; Bowling , 873 S.W .2d at 178-79 .
Finally, we do not regard as misconduct the prosecutor's characterization of the
testimony of Appellant's retained psychologist as "malarkey." Stopher , supra , at 806;
Slaughter , supra, at 412 .
XI . MISCELLANEOUS ISSUES.
A. Courtroom security .
Appellant claims that the security used at his trial was so excessive as to deprive
him of the presumption of innocence. The security detail for Appellant's trial consisted
of three uniformed police officers and one plain-clothed officer . The uniformed officers
were stationed at various areas inside the courtroom, including the exits, while the
plain-clothed officer sat approximately five feet behind Appellant during the course of
the trial . In Holbrook v. Flynn, 475 U .S. 560, 106 S.Ct. 1340, 89 L.Ed .2d 525 (1986),
the United States Supreme Court held that "reason, principle, and common human
experience counsel against a presumption that any use of identifiable security guards in
the courtroom is inherently prejudicial ." Id . at 569, 106 S .Ct. at 1346 (quotation and
citation omitted) . Instead, the Court endorsed a case-by-case examination of such
issues . Id . See also Hodge , supra , at 839 ("[W]e [do not] believe that the presence of
armed policemen in the courtroom constitutes prejudice per se."). The security
measures implemented in the present case were far less pervasive than the measures
upheld in Holbrook (twelve uniformed officers) and Hodge (two uniformed bailiffs, two
uniformed state police officers stationed ten feet from the defendant, and several
additional officers who were not in uniform) . Appellant was not shackled or dressed in
prison clothing during his trial. Considering the nature of the crimes with which
Appellant was charged, we do not view the security provisions as excessive or as
depriving Appellant of the presumption of innocence.
B. Constitutionality of death penalty .
"[A]rguments that the death penalty is discriminatory and arbitrary, and that our
statutory scheme does not provide constitutionally adequate guidance to capital
-66-
sentencing juries, have been raised, considered and rejected by this Court on
numerous occasions ." Id. at 854 (citations omitted) . "Our views with respect to those
arguments remain unchanged ." Id.
C. Trial ludge's role in sentencing.
Appellant cites a statement in Matthews v. Commonwealth , 709 S .W .2d 414,
that "the statutory scheme not only permits, but anticipates, that the trial court will play a
separate and different role in sentencing in capital cases after the jury's verdict has
been received," id . at 423, and claims that the sentencing scheme is flawed because it
does not articulate what that "separate and different" role might be. We addressed and
rejected this same argument in Caudill , supra , noting that the quote from Matthews was
out of context. Id. a t 678-79 .
D. Constitutionality of proportionality review.
As noted in Caudill , supra , at 678, there is no constitutional right to a
proportionality review. Pulley v. Harris, 465 U .S. 37, 44, 104 S .Ct. 871, 876, 79 L.Ed .2d
29 (1984).
E. Cumulative error.
No cumulative error occurred that requires reversal in this case . Compare Funk,
842 S.W .2d at 483 .
XII. PROPORTIONALITY REVIEW .
Pursuant to KRS 532 .075(3) we have reviewed the record and determined that
the sentences of death were not imposed under the influence of passion, prejudice, or
any other arbitrary factor . There was ample evidence to support the jury's findings
regarding all three aggravating circumstances . We have also examined all death
penalty cases since 1970, particularly those cases in which a defendant was convicted
-6 7-
of multiple intentional murders committed during the course of a burglary and
sentenced to death, viz: Hodge v. Commonwealth , Ky., 17 S .W.3d 824 (2000) (two
murders, robbery, and burglary); Bowling v. Commonwealth , Ky., 942 S .W .2d 293
(1997) (two murders, robberies, and burglaries) ; Matthews v. Commonwealth , Ky., 709
S .W.2d 414 (1985) (two murders and burglary); Skaggs v. Commonwealth , Ky., 694
S .W.2d 672 (1985) (two murders, robbery, and burglary); White v. Commonwealth , Ky.,
671 S.W .2d 241 (1983) (three murders, robbery, and burglary). Comparing the facts of
the present case with those of similar cases in which the death penalty was imposed,
we conclude that the death sentence imposed in this case was neither excessive nor
disproportionate .
Accordingly, the judgments of conviction and the sentences imposed by the
Oldham Circuit Court are affirmed .
Lambert, C.J . ; Graves, and Johnstone, JJ ., concur. Wintersheimer, J., concurs
in result only. Stumbo, J., concurs except as to Part VI . Keller, J ., dissents by separate
opinion, with Stumbo, J., joining that dissenting opinion as to Part I only.
COUNSEL FOR APPELLANT :
Randall L. Wheeler
Thomas M. Ransdell
Assistant Public Advocates
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Elizabeth A. Heilman
Brian T. Judy
Assistant Attorneys General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
Michael G . Wilson
527 Potter Stewart U .S . Courthouse
100 East Fifth Street
Cincinnati, OH 45202
RENDERED : APRIL 22, 2004
TO BE PUBLISHED
,SupretcQ Caurf of ~rufurkg
2000-SC-0828-MR
MIGUEL SOTO
V.
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A. FRITZ, JUDGE
99-CR-41
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent from the majority opinion and vote to reverse the Oldham
Circuit Court's judgment of conviction and to remand the case for a new trial.
My most
significant disagreement with the majority opinion concerns Part VI(C) (Right to Control
Defense - Closing argument) . While a majority of this Court rejects this allegation of
error in a single paragraph, I do not believe that Appellant's claim can be so easily
dismissed . In fact, my review of the record leads me to the conclusion that the trial
court committed structural error by denying Appellant his constitutional right to selfrepresentation, and this error mandates a new trial notwithstanding the strength of the
Commonwealth's case against Appellant .
Because I disagree with several other
aspects of the majority's analysis - specifically, Parts IV(A) (Jury Selection - Failure to
excuse jurors for cause), VI(B) (Right to Control Defense - EED as a mitigating
circumstance), VII(C)(2) (Evidence Issues - Authentication - DD Form 214), VII(B)
(Guilt Phase Instructions - Manslaughter in the second degree and assault in the
second degree), IX(B)(5) (Penalty Phase Issues - Other penalty phase instructions -
Concurrent/consecutive sentence recommendation), and X (Alleged Prosecutorial
Misconduct) - I also write separately to describe my views on those allegations of error.
1. DENIAL OF CONSTITUTIONAL RIGHT OF SELF-REPRESENTATION
In Faretta v. California ,' the United States Supreme Court held that the Sixth
Amendment to the United States Constitution 2 "does not provide merely that a defense
shall be made for the accused ; it grants to the accused personally the right to make his
defense .,,3 The Court thus explained that a state could not force a criminal defendant to
proceed to trial with counsel because "the right to self-representation - to make one's
own defense personally - is thus necessarily implied by the structure of the
4
Amendment."
A year earlier, in Wake v. Barker ,5 our predecessor Court had
addressed the same issue and, after analyzing the rights to counsel guaranteed by both
the United States and Kentucky Constitutions, 6 reached the same conclusion, i .e. , "an
accused who has made a valid waiver of counsel has a right, if his waiver so indicates,
to proceed to trial without counsel being in any way associated with him."' The Wake
' 422 U .S . 806, 95 S .Ct. 2525, 45 L .Ed .2d 562 (1975).
2 ,In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." U .S . CONST. amend . VI .
3 Faretta, 422 U.S . at 819, 95 S .Ct . at
, 45 L.Ed .2d at 572.
, 45 L.Ed .2d at 573 ("To thrust
4 _Id . See also _id, 422 U.S. at 820, 95 S .Ct. at
counsel upon the accused, against his considered wish, thus violates the logic of the
Amendment . In such a case, counsel is not an assistant, but a master; and the right to
make a defense is stripped of the personal character upon which the Amendment
insists.") .
5 Ky., 514 S .W .2d 692 (1974).
6 , In all criminal prosecutions the accused has the right to be heard by himself
and counsel . . . ." KY. CONST. § 11 .
Court, however, further held that the rights of self-representation guaranteed by the
federal and state constitutions permitted a criminal defendant to make a limited waiver
of his or her right to counsel and proceed to trial under a "hybrid" of appointed legal
counsel and self-representation :
[A]n accused may make a limited waiver of counsel,
specifying the extent of services he desires, and he then is
entitled to counsel whose duty will be confined to rendering
the specified kind of services (within, of course, the normal
scope of counsel services) . We think that this is embraced
within the right-to-counsel and equal-protection provisions of
the federal and state constitutions . If the accused desires to
have counsel available only for the purpose of consultation
during the trial, why should he not be entitled to that?
Recently, in Hill v. Commonwealth ,9 we observed that "a prototypical example of a
`structural error' [for which harmless error review is inappropriate] is the denial of the
right to proceed pro se[.]"'° In this case, Appellant unquestionably sought to make a
limited waiver of his right to counsel so that he could personally participate in trial
proceedings, and the trial court erroneously denied Appellant that right .
A review of the record in this case plainly reveals that - beginning at least with
Appellant's decision to reject the Commonwealth's plea offer of a sentence of life
imprisonment without possibility of probation or parole and continuing through strategy
decisions regarding the capital sentencing phase - Appellant and his appointed trial
Wake, 514 S .W.2d at 695 . See also Hill v . Commonwealth , Ky., 125 S .W.3d
221, 225 (2004) ("[A] defendant also has a state and federal constitutional right to
proceed without a lawyer." (emphasis in original)) .
8 _Id . at 696 (emphasis added) . But see McCaskle v. Wiggins , 495 U.S . 168, 104
S .Ct. 944, 79 L .Ed .2d 122 (1984) (stating that Faretta "does not require a trial judge to
permit `hybrid' representation") .
9 Ky., 125 S .W.2d 221 (2004).
10
Id . at 229.
counsel did not see eye-to-eye on many issues relating to the defense . In fact, on
multiple occasions, Appellant voiced to the trial court his desire to represent himself by
becoming "lead counsel" while his appointed attorneys would continue to represent him
both by being available for consultation as well as by performing portions of the trial
proceedings at his direction . Each time that Appellant articulated this request, the trial
court brushed it aside . The record as to each request illustrates that either the trial
court or Appellant's appointed counsel, or both, failed to comprehend the nature of
Appellant's current or past requests or the scope of Appellant's right to selfrepresentation, especially hybrid representation permitted under Wake, which was
never mentioned or addressed by either Appellant's trial counsel or by the trial court.
A few months before the trial, Appellant wrote a letter to the trial judge in which
he outlined his concern about his attorneys' agreement to a trial date that, in Appellant's
view, denied him his constitutional right to a speedy trial. At a hearing scheduled by the
trial court in response to Appellant's letter, the trial court felt it necessary to broach the
topic of whether Appellant wished to represent himself, and Appellant responded that
he wished to be named lead counsel . The trial court clearly did not contemplate the
possibility of a hybrid representation whereby Appellant would represent himself
alongside appointed counsel and thus never specifically addressed Appellant's request .
Instead, the trial court merely verified that Appellant wanted his appointed counsel to
continue to represent him and considered the issue closed :
Court :
Let me step to representation . Do you want to represent
yourself?
Soto:
At this time your honor?
Court :
At any time.
Soto:
I can't say that for any time . I can't look in the future and
see what happens.
Court :
Do you have problem with current representation by the
public defender?
Soto :
At this time, I believe me as lead counsel would rectify
any problems I might have in the future.
Court :
I have no idea what you're saying .
Soto :
I'm trying to get my discovery, your honor. I'm trying to
get my discovery less than two times a month, and with
John's caseload and Elizabeth's caseload I can't do that.
The only way to get my discovery, they won't allow me to
have it upstairs in my cell because they're afraid of people
possibly looking into it
Court :
You're going way beyond, I have no idea what you're
talking about . Myquestion to you is this. Do you want
John West and Liz Curtain to represent you or not?
Soto :
At this time, yes .
Court :
That's the second part of it. There are two attorneys on
this case . Mr. Soto here on the record today with those
comments you made, I specifically asked you do you
want John West to continue representing you and Liz
Curtain and you have told me, yes, that's okay?
Soto :
Yes.
Later, at trial, immediately after the Commonwealth's opening statement, the
parties met in chambers with the trial court and Appellant advised the court that he was
dissatisfied with the opening statement that his attorney intended to make and asked
the trial court to permit him to deliver his own opening statement . Again, Appellant's
trial counsel objected . The trial court concluded that Appellant had a right to deliver an
opening statement, but apparently did not equate permitting Appellant to deliver the
defense's opening statement with permitting him to act as co-counsel :
Court :
What's your request Mr. Soto?
Soto:
Your honor, simply what you just said, to opening my own
statement . I've listened to John's statement, I don't agree
with it as what he has in there. I worked on my own
statement, John refused to look at it, I think it will benefit
my case and my trial . My own statement.
Court :
Let me make a couple of rulings . First of all, in regard to
matters that are not in front of me. Case law indicates
that certain things are exclusively within control of trial
counsel . The public defender is lead counsel in this case.
They are not co-counsel . So as far as the how to conduct
cross-examination, what jurors to accept as tried, what
trial motions should be made and all other strategic and
tactical decisions are the exclusive province of the lawyer
after consultation with the client . So he has made the
request and at this point what response by defense
counsel is to whether or not he should be allowed to
participate to that extent . I have excluded some things
that I'm not going to get into later on concerning crossexamination . So I need to know as far as defense
counsel's statement progressing through this trial, can
you advise the Court as to your position as to the
defendant's desire to make an opening statement on his
own behalf?
Curtain :
Judge, I'll handle that one. I believe that under the law
and under the rules that unless he has been declared cocounsel, he does not have a right to make an opening
statement. Like directing cross-examination, all the other
strategic decisions that we make during the course of the
trial, what we present in opening is also can lead us to
what we do during cross-examination and everything else.
And in Faretta it's clear. If he wants to be declared cocounsel, which he has declined to do so, then as such he
has participated up to this point and time, presenting his
case as he sees it, but I don't believe that he has the right
to participate in doing the opening.
West:
Judge, just to clarify, I think there is a minor distinction
between co-counsel and Faretta counsel . My
understanding is if he is, if we are to be Faretta counsel,
then we are whisper or standby as opposed to actually
being co-counsel . Being co-counsel we would be
somewhat concerned about our liability in this action
since he is not trained . I don't know that we have an
objection to being Faretta counsel . We would object in a
sense that I don't think - if he's insistent on participating.
Comm :
Judge, l think we feel that there may be a distinction to be
made between opening statement and what Elizabeth
correctly described as intra-trial, not my word but hers, but
witness-to-witness, question-to-question, trial strategies .
Without waiving any future objection to this getting out of
hand in a sense where we have counsel examining a
witness and then the defendant examining a witness and
just glancing at the cases, it may be that offering his own
opening statement is a different animal than making
objections at trial and making tactical decisions as to what
questions are asked . But I think the long and the short of
it is without waiver of future objection the Commonwealth
does not take position either in support or in objection to
that request .
Court :
[D]ealing with the Faretta case, you cannot force a lawyer
upon an unwilling defendant because that's contrary to
his basic right to defend himself if he truly wants to . So
the Court recognized the importance of counsel at a fair
trial the defendant's right, to have counsel present is a
constitutional entitlement but the right to defend is
personal . The defendant and not his lawyer or the state
will bear the personal consequences of a conviction . It is
the defendant, therefore, who must be free personally to
decide whether in his particular case, counsel is to his
advantage . So, what I'm thinking at this particular point is
that a defendant can maintain his right to remain silent,
stand upon reasonable doubt, and say to the
Commonwealth "you're going to have to prove that I did
this beyond a reasonable doubt." That does not remove
his opportunity to make statements in opening to a jury.
Now, I need to ask just a couple of questions . Mr. Soto,
as far as the range of penalties, we have covered that .
All I want to know is you have heard the Commonwealth
cover the indictment and you understand the charges that
were brought? Can you kind of summarize them? How
many separate indictments are there?
Soto :
There are six .
Court :
There's six? And what are those?
Soto:
Two counts of murder . One count of attempted murder.
Burglary in the first degree . Wanton endangerment and
tampering with physical evidence . I'm not sure those two
are in order. I think they are same Class D Felonies .
Court :
And why has this jury been convened?
Soto:
Because I have been indicted by a grand jury.
Court :
And beyond that, you have entered a plea of what?
Soto:
Not guilty.
Court :
So this jury has to decide guilt or innocence in the case?
Soto :
Correct, your honor.
Court :
And what do you see as far as the role of John [West]
and Liz Curtain in this case?
Soto :
The role, I mean the conversations that we've had, the
lawyer/client privilege, I don't feel they're competent in
supporting my plans to go through this trial. They've told
me, I don't feel comfortable, I've listened to John's
opening statement, it's a good twenty seconds, it doesn't
cover what needs to be covered . I believe that needs to
be covered in opening statement .
Court :
When you say competent, you mean they're not in
agreement with your evaluation as to what needs to be
given to the jury. Not that they're competent as attorneys .
Soto:
When you say competent, qualified . I think John and Liz
are qualified as lawyers . At this point, I don't believe
they're qualified to defend me in this trial . At one point,
as you recall, I tried to go pro se, not pro se, but appoint
myself lead counsel which you denied. And that way I will
have John and Liz as stand by counsel . That was back
in, I believe November of 99. I mean this is just an
opening statement . I would like to run it by John but he
refuses . And right there shows me that I get no support
from him at all in this trial .
Court :
He has prepared an opening statement?
Soto:
He has.
Court :
And he's covered that opening statement with you?
Soto:
Yes, your honor.
Court :
And he's asked for your comments and you have given
them to him?
Soto :
He has not asked me for any comments on his opening
statement. He said just point blank, that's it, that's all he
could do .
Curtain :
Judge, I would just ask for a clarification . Does he or
does he not want to proceed as counsel in this case? I
mean, we can't keep running back here every five
minutes
Court :
I don't think the Court will alter its previous rulings . He will
not be lead counsel . You all are lead counsel and you
make all decisions relating to decisions as to what
witnesses to call, whether and how to conduct crossexamination, what iurors to accept or strike, what trial
motions should be made and all other strategic and
tactical decisions are the exclusive province of the laws
after consultation with the client . Now, the only thing I'm
into is on an opening statement, the right to defend . Let
me go just a little bit further, have you ever gone through
opening statements to a jury before?
Soto :
Not. . .
Curtain :
Judge, just a quick clarification, he was never overruled
as being his own counsel in this case . He did withdraw it
at that time.
Court :
I understand .
West:
Our position is, Judge, we do not want him to be cocounsel in this case. We would, if he is insistent, we
would be Faretta counsel . We don't think it's in his best
interest .
Court :
You're lead counsel. He has not requested to be cocounsel at this point. He's just saying, I want to make my
opening statement . That's all I have in front of me.
West:
Our position, Judge, is he would have to be co-counsel to
make the opening statement .
Court:
And this is where this Faretta and Treece v. State, 547
A.2d 1054 (Md. 1987)] case[s] carve out an exception in
regard to opening statements . As I understand it. Am I, I
guess I better read the case here .
Soto :
If I was to assert my constitutional right to go pro se and
keep my lawyers as stand by counsel, will that still work?
Court:
I don't have that motion in front of me and I'm not going to
participate in what ifs . All I'm trying to do is make a
determination as to whether or not you have a right over
objection of lead counsel to make an opening statement.
And there is case law that indicates that I'm obliged to
conduct an inquiry to make sure that you're aware and
have been fully informed of the alternatives available and
that you comprehend the consequences of any acts taken
by yourself in asserting this right to make the opening
statement. If you choose to waive those, then you are
entitled to do it. You have been previously found
competent by findings, I'm referring to information that
has been given to the Court on prior occasion and I think
it's important for me to refer to that . I'm also of the
opinion that he has a, I'm satisfied at this point that, let
me back up just a minute. John, I'm not going to make an
inquiry concerning discussion in regard to what
discussions took place, but I think I do have a right to
make an inquiry that these matters were covered . What
was said doesn't make any difference to me. But these
matters concerning the opening statement were covered
with you or covered with the defendant.
West:
He covered with me what his side was, I've got in my
possession documents indicating what his position is, he
had written those out for me . With the specific regards of
what is coming in an opening statement, I told him what I
did not want to bring in, l don't know and I haven't seen
his latest version but he probably worked on it over the
weekend, what he does want to bring in. I saw him
Saturday?, Sunday I saw him and today he's got this
opening statement. I have not seen the opening
statement as of today. He wanted to share it with me this
morning, I told him that at this point and time we are going
to move forward .
Court :
Court :
Now this Treece case, was a decision by counsel
overriding the statements of the defendant to exert or not
exert a defense. The State of Maryland was through their
Court of Appeals, reversed it and sent it back. They
indicated that the Court was obliged under those
circumstances because a plea of guilty did not deal with
trial strategy . That dealt with the defendant's right to
enter a plea . So any exertion in the defense . So they
sent it back and said no, you have to have this hearing,
have the hearing, and at that point if you find out that he's
competent and that he has the necessary threshold
requirements to tell his counsel what he wants in regard
to that plea, then he goes ahead and does it. So they
reversed the Court because they didn't allow it . The trial
court . So now I'm dealing with not an exertion of the
defense, but an opportunity to frame the defenses that
are available. Treece also says the defendant ordinarily
has the ultimate decision when the issue end involves a
choice that will inevitably have important personal
consequences for him or her and when the choice is one
a competent defendant is capable of making . With these
things being placed of record, I am going to sustain the
defendant's right to make an opening statements under
these circumstances . Number 1 is before we make the
opening statement, he must be given the opportunity to
explain this to counsel so that they're not surprised by
developments in the courtroom . The second thing is that
if the defendant does not cover items after his opening
statement defense counsel has the right to make an
additional summary . The third thing is that in regard to
security in the courtroom, the Court will adopt the
recommendations that the restriction of movements will
be at the podium or to the bench and that anything
outside of that would result in the Court adjourning briefly
and placing the defendant in a stationary position .
I think at this point, he has counsel present, he has
received advice from counsel, he can otherwise capably
go forward and if he chooses to reject that, then I think
any statements made by him can be used for
impeachment purposes or for any other reason
appropriate under the circumstances of the case at a later
stage in the proceeding . Now let me get down to this
closing argument, even before we get to it. Closing
argument is a little bit different than opening statement. I
am of the opinion that the calling of witnesses as I have
indicated, cross-examination of witnesses, trial motions
are the exclusive providence [sic] of counsel . Defense
counsel continue to be lead counsel but the Court's going
to sustain his right to make an opening statement. This
does not mean that he has the latitude to make closing
arguments because there we are dealing exclusively with
evidence and we're dealing more with trial strategy based
upon the presentation of proof. So I think, the other thing
is in an opening statement, no personal opinions and
objections will be taken up at the bench with appropriate
sheriff present.
West:
Our other position is we would object and we want to
make sure that it's on the record, with regard to the
previously stated objections, that we would object to
allowing him to make the opening statement and that if
the Court is going to allow him to make an opening
statement, we would ask to be counsel, not co-counsel,
but counsel under Faretta . We would object to being cocounsel in this case or allowing him to make the opening
statement as co-counsel . I don't -
Court :
I would aqree that he is not making the statement as cocounsel . He's making the statement as the defendant, in
the defendant's entitle ment to make the statement, the
only thing the Court can place of record at this point is
that it is the defendant's right to present defenses and
participate with counsel in the presentation of those
defenses and that's the only reason that I'm saying that
the defendant has the right to do it.
Curtain :
Judge, I think at this point and time you are absolutely
correct . There is no motion made by the defendant
before this Court to make him counsel of record and we'll
just leave it at that. We'll just note our objection for the
record .
Appellant later withdrew his request to deliver the opening statement after his trial
attorney allowed him to review the opening statement that the attorney had prepared
and Appellant verified that "it covers everything that I had written about ."
Subsequently, during the Commonwealth's case-in-chief, Appellant became
concerned that his attorneys were not asking cross-examination questions that he
considered important . Accordingly, in a hearing held in chambers, Appellant explicitly
asked to be made lead counsel for purposes of the remainder of the introduction of
evidence and closing argument. The trial court denied Appellant's request to question
witnesses personally, but implied, as it had during the prior discussion of Appellant's
right to give his own opening statement, that Appellant may be entitled to deliver the
closing argument for the defense :
Soto:
Your honor, there are some questions that need to be
asked to Ms . Porter and my attorney doesn't want to ask
those questions . The only thing I could do is assert
myself as counsel and my constitutional right to go pro se .
That way these questions are asked because I know, I
think we discussed it before, the only way this is going to
happen for me to ask questions is if I put in a motion for
arose.
Court :
There is no question you have the right to pose questions .
Questions would be posed for counsel. Participation by
the defendant is not unlimited . So you are saying you
want to represent yourself at this stage and ask questions
of this witness . That's what you're -asking?
Soto :
Yes, your honor. To have John West as stand-by
counsel .
Court :
And Mr. West?
West :
Judge, I'm not sure of the questions he is talking about.
He asked the questions that I was going to ask . I showed
him the questions that I was going to ask . Bill asked
some of the same questions already . Rather than being
repetitive, I took some of those questions out. I'm not
sure what additional questions there are that Mr. Soto
would care to ask.
Curtain :
You know Judge, in addition, this is a death penalty case .
I mean, we are three quarters of the way through the trial .
He doesn't have any expertise, nor does he have the
experience to become legal counsel in this case.
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Court :
I think that I kind of previously approached this . I think
the defendant can control those things for which touch
upon his constitutional entitlements, and in particular
anything that reflects upon a plea of guilty or the exertion
of a defense which means I may be guilty but under these
circumstances, he can control those things . In addition to
that, he has the constitutional entitlement always to be
present and in each and every critical stage of the
proceeding we've made sure that we've done that. So
now we've reached the stage where in previous pre-trials
the Court has ruled that the defendant is capable of
knowingly and voluntarily waiving the right to exert certain
defenses . I also indicated that in conformity with law as I
understood it, all other tactical and strategic decisions rest
with counsel of record . So I have two motions in front of
me arising out of that. Tactical and strategic has to do
with the calling of witnesses, questioning and crossexamination . So we are down to the stage at this point
where the defendant wants to fire his counsel, you don't
want to fire him, you lust want to say you want to become
counsel from this point forward . Is that correct?
Soto :
Yes sir.
Court :
So you want to be counsel of record also for closing
statements?
Soto :
Yes, your honor.
Court :
Hmmm . And I think there is sufficient evidence in the
record that I had previously indicated that defense
counsel continues as lead counsel. . . . You are going to
have to explain to me a little bit more Mr. Soto why half
way through a trial there is some compelling reason you
want to replace counsel of record .
Soto :
Your honor, this has been throughout the whole trial with
me and my counsel . About questions that were going to
be asked . And I told counsel, last time I told him was this
morning, that if he didn't ask the questions then I would
represent myself and he understood that, he said "go
ahead, do what you gotta do," and that's what I took from
there. I think these questions are vital to my defense to
witnesses that are hopefully are going to be subpoenaed
to testify tomorrow .
Curtain:
Judge, quite honestly [inaudible] gives him the absolute
right to represent himself in a case and the Court has
already had hearings as to whether or not he's capable of
intelligently and voluntarily making decisions in regards to
his defense and I'm not real sure that he understands
what he's getting into. But that's a decision for the Court
to make .
Court :
I think just the exertion "they didn't ask the questions that
I want to ask" probably is not sufficient. A couple of
reasons for that. Not every question can be asked of
every witness . Questioning has to be under the rules of
evidence, both as to admissibility, competency and
relevancy . First of all, it requires some training and
background and working knowledge in regard to the rules .
On restricted right to ask questions based upon other
than those procedures is improper . So I think that just the
exertion of saying "they didn't ask the questions I liked," is
not sufficient for me to have him step aside as counsel .
It's just insufficient . You do have the right to exert
yourself at certain stage of the proceedings and although
we are not at closing arguments I am probably
preliminarily of the opinion that your right of making the
closing statement is unique to give . Same as right to
make an opening statement. That's your constitutional
entitlement . You make the closing statement, I realize I
am kind of going in reverse order here, if you make the
closing statement, then the closing statement has to bear
upon the evidence and reasonable inferences arising
from the evidence, it's not a personal opportunity to
express opinions though. I think based upon the status of
the case probably the Court would say if you want to, if
you make the request to make the closing statement,
you're probably entitled to it. And after you make your
closing statements, John will have the opportunity to
make any additional closing statements to make sure that
the case is fully represented in front of the jury.
Court :
But at this point the Court is not inclined to believe that
just simply because you have a question you want to ask
of this witness that I am going to fire counsel and the
Court, I don't think it arises to the occasion . And quite
candidly I'm not sure that I have sufficient information in
front of me that you would conform your actions to the
requirements of the rules of practicing law. Even if you
-1 5-
are pro se you are still bound by the rules . Can the
Commonwealth advise me just the criteria, what does the
Court look like when I allow a defendant to start practicing
his case by himself?
Comm. :
Judge, I think two things . First, you run some risks that
he will as Elizabeth has alluded to very vividly and
discreetly make errors that will be dangerous for him . I
think there is a high likelihood in that situation that there
will be violations of the rules of evidence and the rules of
procedure and from my reading of cases which the Court
has [inaudible], there is no question in mind that not only
asking questions but the line of questioning and declining
to ask a question is a tactical decision that is absolutely
best left to experienced trial counsel .
Court :
I think what I will probably do at this point is I'll deny your
request to be counsel of record . However, I will allow you
the opportunity to ask additional questions through
counsel and those questions if they are not asked by
counsel can be sealed and made a part of the record for
further review . If counsel chooses not to ask the
question, there probably should be some brief statement
placed in the record that this is either cumulative or
whatever it is . But I think he is entitled to say I want this
question asked and I think it's going to have to be in some
type of forum that it can be preserved . How that would
be, written questions or part of the record, I don't know.
Court :
I think trial tactics including which witnesses to crossexamine and the cross-examining question is a strategy
to be exercised by counsel of record . It is not an
unrestricted constitutional right . The right to enter a plea
or not to enter a plea or exert a defense is exclusive to
the defendant. And I think probably his closing argument
probably comes close to that. At this point, what I'm
going to do is recess . I will allow you to talk with him .
Curtain :
I was talking about his right to be his own counsel . That
concerns me a little bit because there is the Wilson case
that appeared before the Kentucky Supreme Court and
dealt with an issue like this. They never actually had to
address that issue because he just only objected to who
his counsel was . He never actually asked to proceed pro
se . So I need to get a ruling from the Court . Does the
- 1 6-
Court consider he's overruling his motion to become his
own counsel?
Court :
I think that I stated as part of the video recorded
proceeding that I would deny the request to become pro
se counsel at this point and, not to fire counsel, but ask
you to step aside .
Finally, during an instruction conference held after all of the evidence had been
introduced, Appellant informed the trial court that he wanted to give the closing
argument for the defense, and his attorneys again objected . The trial court initially
ruled that it was inclined to permit Appellant to present the closing argument for the
defense, but later revisited the issue and denied Appellant's request . At that time, the
on-the-record discussion between defense counsel, Appellant, and the trial court once
again reveals that, of the parties present, Appellant appeared to have the most
accurate conception of the scope of his constitutional right to self-representation . In
fact, both the trial court and Appellant's trial counsel erroneously informed Appellant
that the hybrid representation arrangement he desired was impermissible :
Curtain :
The first thing I would like to point out to the Court is I
don't believe Mr. Soto is asking that we be relieved of
counsel . I think what he is asking this Court is "I want to
do the closing argument." And if that's the case, he is
attempting to practice law without a license and he can't
do that. So what he is attempting to do, and quite
honestly I am starting to feel like a yo-yo, you know, we
go up, we go down, we go up, we go down, on this issue.
And he has yet to approach this Court to ask us to be
relieved as his counsel . What he's asking this Court for is
an opportunity to practice law without a license and he is
not entitled to do that. You know, he doesn't get to have
his cake and eat it too in this situation . We are either his
attorneys and we represent him or we are not his
attorneys . But, we have, this is the third time we have
come before the Court on this issue and he has yet to
make a clear statement to this Court that he wants to
relieve us as counsel and he wants to proceed on his
own . And quite honestly, at this point and time, Judge,
we are at the end of the trial, we are getting ready to enter
- 1 7-
into, most likely, a very complicated area of mitigation
where if he has no counsel, he is going to be in some
serious trouble. But he doesn't get to pick and choose
areas where he goes, okay, I want to represent myself in
this area, but then, okay, when we are done with that, I
want my counsel to come back on . That's not fair to us,
and it's definitely not fair to him. These types of cases
are too complicated and there has been no formal motion
by this guy to ask us to be relieved as counsel . And I
would ask the Court based upon that that he not be
entitled to do a closing argument .
Court:
Mr. Soto, I have heard comments here but I don't know
what you want to do .
Soto :
Your honor, it is my understanding that, and I am not sure
if you told us or told me that before, but my understanding
was if I went pro se that I could have the option of
keeping counsel as standby. And that is what I am
referring to . Now, in this case, if I have to get rid of my
attorneys, my counsel, in order for me to do my closing
statement, no, I don't want to do that . I am not an idiot to
where I am going to do something like that. So, I want to
know what the ruling is going to be, what the law states .
Am I allowed to go pro se and allowed to keep my
counsel as sta ndby?
Curtain :
It's not standby, it's whisper counsel . We would sit
behind you_while you conduct the rest of this trial .
Soto:
It's my understanding, what I have read was standby
counsel was making me lead counsel and my attorneys
continued their job
.
Court:
Well, what do you want to do?
Soto :
What I want to do was give my closing statement. And
allow my attorneys to continue what they have been doing
for mitigation purposes, for the sentencing purposes, if
I'm convicted . To my understanding, the last thing we
have for the guilt and innocence is the closing statement.
Is that correct?
Court :
The sequence of closing arguments is first those to
defense and then to the Commonwealth at the guilt or
innocence stage . If you choose to make your closing
- 1 8-
statement I think under this one case that I have referred
to, the Robards [v. Rees, 789 F.2d 379 (6th Cir. 1986)]
case from the Sixth Circuit and also another case in
regard to self-representation, that there is no just allowing
a defendant to handle parts while having counsel handle
other parts . So I think in answer to the second part of
your question, can you proceed and yet still have
counsel? I think you can proceed and still have counsel
but you are the only one at that point who handles the
case. Now, probably I didn't make that clear during
earlier parts of the proceedings .
Soto:
No, your honor, but I do understand it now though .
In my view, the majority's attempts to rationalize the trial court's denial of
Appellant's right to self-representation simply do not hold water. First, the majority
labels Appellant's request to act as his own counsel untimely and, in doing so, attempts
to apply a convenient bright-line, procedural default rule gleaned from jurisdictions with
substantially different conceptions of the constitutional right of self-representation, i.e. ,
jurisdictions that, unlike Kentucky, do not generally authorize a partial waiver of
counsel . Of course, the majority's contention ignores Appellant's repeated requests to
be named lead counsel/co-counsel for purposes of trial, and, as I have observed above,
the first of Appellant's requests came months before the trial commenced . More
significantly, however, I would observe that the federal cases relied upon in the majority
opinion place emphasis upon the timing of a defendant's motion to proceed pro se
because of the nearly inherent necessity for a continuance of the proceedings to allow
for trial preparation when a criminal defendant wishes to discharge counsel completely
and represent himself on the eve of or in the midst of trial," which would, no doubt,
See Robards v. Rees , 789 F.2d 379, 384 (6th Cir. 1986) ("This Court also
concludes that Robards' request for self-representation, if honored, would have
impermissibly delayed the commencement of the trial . . . . Had the request been
granted, the trial judge would have been obliged to postpone the commencement of the
-1911
"frustrate the orderly procedures of a court in the administration of justice ." 12 It is
difficult, however, to apply that rule to the case before us - in which there is no claim
made, and certainly no evidence to suggest, that granting Appellant's request would
have caused any delay in the proceedings . Appellant's request and the hearing upon it
occurred during a conference regarding the jury instructions that was conducted after
the close of evidence and after the jury had been sent home for the day. The closing
arguments themselves were not scheduled until the next morning, and defense counsel
advised the trial court that, "[i]f this Court is inclined to allow him to do the closing
argument, I will work with him tonight" on it. I would further observe that the timing of
Appellant's earlier request to participate personally in the trial proceedings by delivering
the opening statement for the defense was apparently a non-factor to the trial court,
which granted Appellant's request although it was not made until after the opening
statement for the Commonwealth and the proceedings in connection with Appellant's
request resulted in delaying the proceedings for more than an hour between
statements .
The majority opinion's assertion that Appellant "never specifically asserted his
right to self-representation or to proceed pro se" 13 is flatly contradicted by the record,
which not only provides the context necessary to properly characterize Appellant's
request, but also demonstrates that Appellant expressly advised the trial court during
the colloquy concerning his desire to cross-examine witnesses that he "want[ed] to be
counsel of record also for closing statements ." Moreover, I am baffled by the majority
trial for an extended period of time in order to allow Robards a sufficient amount of time
to prepare his defense .") .
12
Id . a t 383.
13
Soto v. Commonwealth ,
S .W.3d
-20-
(2004) (Slip Op . at 35).
opinion's suggestion that Appellant's voicing of his desire to make his own closing
argument constituted something other than a request to represent himself at this stage
of the proceedings . At the very least, Appellant's statement was "an unequivocal
request to limit the role of counsel ,,,14 which required the trial court to determine whether
Appellant's waiver was voluntary and intelligent . Of course, if Appellant had asked the
trial court for permission to unclog the drains in the Oldham Circuit Courthouse, no one
could seriously dispute that Appellant was asking to act as a plumber. Given that
"[t]here can be no doubt that closing argument for the defense is a basic element of the
adversary fact-finding process in a criminal trial[,]" 15 Appellant's request to deliver the
closing argument for the defense, i.e. , a request to perform a task traditionally
performed by defense counsel, necessarily constituted a request to act as co-counsel .
In fact, the United States Supreme Court has recognized that "[a] defendant's right to
self-representation plainly encompasses certain specific rights to have his voice
heard . . . [including the right] to address the court and the jury at appropriate points in
the trial,
,16
and has stated that "[t]he[se] specific rights to make his voice heard . . .
form the core of a defendant's right of self-representation .""
Nor does the trial judge's speculation that Appellant "might use his closing
argument to present unsworn testimony, "18 create any justification for prior restraint that
would deny Appellant his right to self-representation . First, although the majority
14
Moore v. Commonwealth , Ky., 634 S.W .2d 426, 430 (1982).
15
Herring v. New York, 422 U .S . 853, 858, 95 S.Ct. 2550,
598 (1975).
16
McKaskle, 465 U .S . at 174, 104 S .Ct. at
17
Id ., 465 U .S. at 177, 104 S .Ct. at
18 Soto ,
S .W .3d at
, 79 L.Ed .2d at 131 .
, 79 L .Ed .2d at 132.
(Slip Op. at 35).
-21-
, 45 L.Ed .2d 593,
opinion describes the trial court's speculation as a legitimate concern, I would observe
that the record suggests otherwise . From all indications, Appellant committed these
horrible crimes. During the court proceedings, however, Appellant consistently
maintained proper decorum and, even when he vehemently disagreed with his
appointed counsel, demonstrated that he was capable of calmly and rationally relating
his concerns to the trial court . Further, Appellant himself informed the trial court "I know
what I'm not supposed to talk about anything other than evidence that came up in this
trial. So it's not like I'm trying to testify[ .]" In addition, both of Appellant's appointed
attorneys indicated that they would be willing to work with Appellant to "make sure no
objectionable matter comes into the closing argument ." In any event, however, I would
observe that, if an assertion that "the defendant is going to do something wrong" were a
basis for denying a defendant's right of self-representation, virtually no defendant would
ever be permitted to participate personally in his or her defense. Accordingly, the law
does not recognize the likelihood of a defendant's incompetent self-representation as a
basis for denying the right. 19 When delivering the closing argument, however, Appellant
would be held to the same standards as a licensed attorney, the Commonwealth would
have an opportunity to object to any improper argument or deviations from proper
19 See Faretta , 422 U .S . at 834, 95 S .Ct. at
, 45 L.Ed .2d at 581 ("It is
undeniable that in most criminal prosecutions defendants could better defend with
counsel's guidance than by their own unskilled efforts . . . . And, although he may
conduct his own defense ultimately to his own detriment, his choice must be honored
out of `that respect for the individual which is the lifeblood of the law."'); Crawford v.
Commonwealth, Ky., 824 S.W .2d 847, 849 (1992) ("A defendant has an absolute right
to waive counsel and to represent himself and no determination as to the effectiveness
of such representation need be made ."); Wake , 514 S .W .2d at 695 ("No one contends
that an accused must be capable of adequately representing himself in order to make a
valid waiver of counsel .").
-22-
procedure, and the trial court would have been able to rule upon any such objections
and grant any relief that it deemed appropriate .2°
In my view, the record in this case shows beyond any doubt that Appellant was
denied his constitutional right of self-representation . While it is true that a trial court has
no obligation to inform a criminal defendant of his right to self-representation sua
sponte, 21 in the case at bar, the trial court, which was from all indications unaware of
Wake v. Barker and the availability of hybrid representation, ignored some of
Appellant's requests to act as co-counsel and denied others after it mischaracterized
the scope of Appellant's right of self-representation on the record . In addition, although
"the public defenders' obligations to defend the indigent may properly be considered to
embrace the duty to furnish limited representation [,],,22 Appellant's appointed counsel
actively objected to any form of hybrid representation that would allow Appellant to act
as co-counsel . Although I recognize that a criminal defendant's direct participation in
court proceedings is a deviation from the norm that can be frustrating for appointed
defense counsel and can try the patience of a trial court, criminal defendants have a
constitutional right to such participation at their criminal trials. In this case, the end
result of the confusion regarding the scope of Appellant's self-representation rights and
the nature of his requests was that Appellant's request to act as co-counsel for
purposes of delivering the closing argument was improperly denied . This structural
error entitles Appellant to a new trial.
2°
See Faretta, 422 U .S . at 834 n .46, 95 S .Ct. at
n .46, 45 L .Ed .2d at 581
n.46 ("[T]he trial judge may terminate self-representation by a defendant who
deliberately engages in serious and obstructionist misconduct .").
21
Baker v. Commonwealth , Ky. App., 574 S .W .2d 325 (1978).
22
Wake, 514 S .W .2d at 696.
-23-
II. OTHER ISSUES
I disagree with the majority's Part IV(A) analysis because, in my view, the trial
court abused its discretion when it failed to excuse Juror 42 for cause. The United
States Constitution guarantees a capital defendant fair and impartial jurors who can
consider any relevant mitigation evidence ,23 and Juror 42 unequivocally stated that she
could not consider all of the KRS 532 .025 statutory mitigating circumstances that were
identified for her. As such, the trial court erred when it denied Appellant's motion to
strike Juror 42 for cause. For reasons that I have explained in depth on prior
occasions, however, I would not reverse Appellant's convictions on the basis of this
error alone because I believe that Appellant's removal of Juror 42 with a peremptory
challenge rendered the trial court's error harmless
24
As to Part VI(B), I disagree with the majority's apparent holding that defense
counsel may "veto" a defendant's decision not to introduce mitigating evidence during
the capital sentencing phase of a trial . Although the majority is correct in its observation
that Jacobs v. Commonwealth 25 "did not address whether [its] holding extended to a
23
Penry v. Lynaugh , 492 U .S . 302, 328, 109 S.Ct . 2934, 2951-52, 106 L .Ed .2d
256, 284 (1989) ("In order to ensure `reliability in the determination that death is the
appropriate punishment in a particular case,' the jury must be able to consider and give
effect to any mitigating evidence relevant to a defendant's background and character or
the circumstances of the crime ." (citations omitted)); Morgan v. Illinois , 504 U.S . 719,
739, 112 S .Ct. 2222, 2235, 119 L .Ed .2d 492, 509 (1992) ("Any juror to whom mitigating
factors are likewise irrelevant should be disqualified for cause, for that jury has formed
an opinion concerning the merits of the case without basis in the evidence developed at
trial .").
24
See Gamble v. Commonwealth , Ky., 68 S .W .3d 367, 374-75 (2002) (Keller, J .,
dissenting) ; Stopher v. Commonwealth , Ky., 57 S .W.3d 787, 813-18 (2001) (Keller, J.,
dissenting) .
25
Ky ., 870 S .W .2d 412 (1994).
-2 4-
waiver of mitigating evidence during the penalty phase of the trial,"26 this Court very
recently cited Jacobs for exactly that conclusion when we held that "the defendant is
`master of his own defense and pilot of the ship[,)' and thus may elect to ignore the
advice of his counsel and to waive the presentation of mitigating evidence . ,27
Accordingly, I agree with Appellant's claim that he was entitled to "call the shots" during
the capital sentencing phase of his trial . Appellant thus had the power to decide
whether his trial counsel made inquiries of jurors during voir dire regarding whether they
could consider EED as a mitigating circumstance and/or emphasized EED during
closing argument in the capital sentencing phase .
Because the Commonwealth introduced sufficient evidence to support a finding
that Commonwealth's Exhibit 104 was Appellant's certificate of release or discharge
from active duty in the U .S . military, i.e. a Defense Department (DD) Form 214, the
document was properly authenticated under KRE 901(a), which provides that "[t]he
requirement of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter in question is what
its proponent claims. ,28 Accordingly, I agree with the majority opinion's Part VII(C)(2)
conclusion that "Appellant's DD Form 214 was properly authenticated despite the fact
that it was neither certified nor attested and was not introduced by the custodian of the
record
.,,29
26
I disagree, however, with the majority's suggestion that the DD Form 214
Soto ,
S.W .3d at
(Slip Op . at 31) .
27 St. Clair v. Commonwealth ,
(citation omitted) .
28
KRE 901(a).
29
Soto ,
S .W.3d
S .W.3d at
(Slip Op. at 44).
-25-
(2004) (Slip Op. at 70)
"was self-authenticating under KRE 902(4). ,3° And, I would observe that the logical
path that the majority follows to this conclusion is an unnecessarily circuitous one, and
one that I predict this Court may trip upon in the future.
The majority first construes KRE 902(4)'s use of "an official publication" to mean
that the original (as distinguished from a copy) of any official record is selfauthenticating and then turns to KRE 901 (a) and determines that the evidence was
sufficient to prove that Commonwealth's Exhibit 104 was an original official record, i.e. ,
Appellant's original DD Form 214 . Of course, if the proof was sufficient to authenticate
the document under KRE 901(a), the "genuineness" of the exhibit had been
established, and there would be no need to evaluate whether the document might be
self-authenticating under KRE 902. More significantly, however I take issue with the
majority's interpretation of KRE 902(4)'s "an official publication" language, which was
imported to the Kentucky Rules of Evidence from RCr 9 .44 and CR 44.01 (provisions
that themselves were taken from Federal Rule of Civil Procedure (FRCP) 44(a)) . In my
view, this language is duplicative of KRE 902(5), which states that extrinsic evidence of
authenticity is not required with respect to "official publications ."31 And, an "official
publication" is "[a] document which purports to be printed by government authority, ,32
30
Id . at
(Slip Op . at 44).
31
See KRE 902(5) ("Official Publications . Books, pamphlets, or other
publications purporting to be issued by public authority .") .
7 KURT A. PHILLIPS, JR., KENTUCKY PRACTICE : RULES OF CIVIL PROCEDURE
ANNOTATED, Rule 44 .01, at 122 (5 t" ed. 1995) (emphasis added) . See also United
States v. Aluminum Co. of America, 1 F.R .D. 71, 75 (S .D.N .Y. 1939) ("[T]he authenticity
32
of an official document is sufficiently established when a copy of it is offered which
purports to have been printed by authority of the Government.").
-26-
etc .., "statutes, court reports, rules and regulations . ,33 In other words, the KRE utilize
"publication" in a manner consistent with its commonly-understood meaning, i.e. ,
"[g]enerally, the act of declaring or announcing to the public ."34 Because
Commonwealth's Exhibit 104 was not a published official record within the
contemplation of KRE 902(4) or (5), the document was not self-authenticating, and the
Commonwealth was required to introduce extrinsic evidence in order to authenticate it.
Because the Commonwealth introduced sufficient extrinsic evidence to do so,
however, Commonwealth's Exhibit 104 was properly admitted into evidence . The
testimony of Commonwealth's witness Renae Harrison, Appellant's ex-wife, supported
a finding that the document was, in fact, what it was entitled, i .e. , a "Certificate of
Release or Discharge from Active Duty" that identified Appellant by name, date of birth,
and social security number . 35 Harrison, who herself had been a member of the United
States Army during the time that she and Appellant were married to one another,
identified the form as a DD Form 214, explained that standard procedure provided for
servicepersons to receive such a form upon discharge, and, after testifying that military
procedure requires the person to whom such a form is issued to review and sign it upon
33
Commentary to KRE 902(5), Evidence Rules Study Commission, Final Draft
(November 1989) . See also United States v. Rainbow Family, 695 F.Supp. 314, 330
n.5 (E.D . Tex. 1988) (portions of United States Army Field Manual found to be self
authenticating under FRE 902(5)); California Ass'n of Bioanalysts v. Rank, 577 F.Supp.
1342, 1355 n .23 (C .D . Cal . 1983) (report of U .S . Department of Health and Human
Services, which bore official seal of that agency on its cover page, found to be selfauthenticating under FRE 902(5)) .
34
See
BLACK'S LAw DICTIONARY
1242 (7th ed . 1999) (emphasis added).
35
See KRE 901 (b) ("[T]he following are examples of authentication or
identification conforming with the requirements of this rule : (1) Testimony of witness
with knowledge . Testimony that a matter is what it is claimed to be .").
-27-
receipt, identified Appellant's signature on the form .36 In addition, I would observe that
Appellant's argument to the contrary is somewhat disingenuous given that, at an ex
parte hearing conducted on June 19, 2000 at which the trial court found that Appellant
could voluntarily and intelligently decide to forego the presentation of a theory of the
case that would have emphasized extreme emotional disturbance as a defense,
Appellant himself read a list of his military achievements and awards from a copy of a
document that he identified as a "release or discharge from active duty form ." Although
the document itself was not made a part of the record, Appellant's own description of it
as well as the fact that the awards and achievements that Appellant read from the
document are listed in the same sequential order in Commonwealth's Exhibit 104 is
persuasive evidence that Appellant was reading from a copy of his DD Form (likely
provided via discovery) and that Commonwealth's Exhibit 104 was, in fact, the original
of Appellant's DD Form 214 .
I agree with the majority opinion's Part VII(B) conclusion that the evidence was
insufficient to support a conclusion that Appellant was so intoxicated that he did not
know what he was doing when he committed these crimes. For the reasons that I have
outlined previously, 37 however, I cannot agree with the majority's broad declaration that
"[e]vidence of voluntary intoxication does not serve to acquit the defendant, but, if it
negates the element of intent, reduces the offense to one having a mens rea of
wantonness .,,38 In my view, an intentional crime does not "somehow sublimate[ ] into an
unintentional crime . . . when[ever] a defendant is too intoxicated to form the intent to
36
See KRE 901(b)(2) .
Fields v . Commonwealth , Ky., 12 S.W.3d 275, 286-293 (2000) (Keller, J .,
dissenting) .
37
38
Soto,
S .W .3d at
(Slip Op. at 53).
-28-
commit the intentional crime ."39 Instead, a lesser-included offense instruction for an
offense with a wanton mental state is required only when there is evidence from which
a jury could conclude that the defendant acted other than intentionally and that his
conduct "objectively and independently of intoxication ,4° created a risk contemplated by
the lesser-included offense. In any event, the voluntary intoxication analysis is
unnecessary to address Appellant's claim of entitlement to an instruction on SecondDegree Assault because that allegation of error can be dismissed simply by observing
that Second-Degree Assault is not a lesser-included offense of Attempted Murder . 41
In Part IX(B)(5), the majority opinion cites Foley v. Commonwealth42 for the
proposition that "KRS 532.055(2) does not apply in capital cases ."43 Foley , however,
predated a significant 1998 amendment to KRS 532 .055, which deleted a provision that
read : "This section shall not apply to sentencing hearings provided for in KRS 532 .025."
And, this Court recently held that, as a result of the amendment, KRS 532 .055 is
applicable to "all felony cases' 44 and that "KRS 532.055 now supplements KRS
,
532.055 in capital cases." 45 Accordingly, because KRS 532.055(2) provides that "[t]he
jury shall recommend whether the sentences shall be served concurrently or
39
Fields, 12 S.W .3d at 293 (Keller, J ., dissenting) .
40
Id . at 292.
41
See Holland v. Commonwealth , Ky., 114 S .W .3d 792, 802 n .6 (2003) .
42
Ky ., 942 S.W.2d 876 (1996).
43
Soto,
44
St. Clair,
45
Id. at
S .W .3d at
S .W .3d at
(Slip Op. at 61).
(Slip Op . at 73).
n .5 .
-29-
consecutively[,]" 46 the trial court's capital sentencing phase jury instructions properly
required the jury to make a concurrent/consecutive recommendation .
For the reasons that I articulated in my concurring opinion in Caudill v.
Commonwealth ,4' I disagree with the majority's suggestion in Part X that the McClellan
v . Commonwealth 48 definition of EED "does not apply when EED is used as a mitigating
circumstance .,,49 I agree, however, that the prosecutor's characterization of the EED
mitigating circumstance was not "so plainly erroneous as to constitute misconduct." 5o
Stumbo, J., joins this dissenting opinion as to Part I only.
46
47
Ky., 120 S .W.3d 635, 682 (2003) (Keller, J ., concurring) .
48
74).
KRS 532 .055(2) .
Ky., 715 S .W.2d 464 (1986) .
49 Soto,
5o
S.W .3d at
(Slip Op. at 65) (citing Caudill , 120 S.W.3d at 673-
Id .
-30-
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