667 S.W.2d 671 (Ky. 1984), Ice v. Commonwealth

Citation667 S.W.2d 671
Party NameTodd ICE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Case DateFebruary 16, 1984
CourtSupreme Court of Kentucky

Page 671

667 S.W.2d 671 (Ky. 1984)

Todd ICE, Appellant,

v.

COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky

February 16, 1984

Rehearing Denied May 10, 1984.

Page 672

Jack E. Farley, Public Advocate, M. Gail Robinson, Asst. Public Advocate, Kevin Michael McNally, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., Joseph R. Johnson, K. Gail Leeco, Asst. Attys. Gen., Frankfort, for appellee.

Lee W. Rowland, Mark Skillern, Lexington, for amicus curiae, Central Kentucky Civil Liberties Union.

OPINION OF THE COURT

On December 5, 1978, in a rural section of Powell County, a little girl named Donna Knox, age 7, was the victim of a particularly vicious and gruesome murder. Todd Ice, age 15, is charged as her murderer. The evidence portrays him as Jekyll and Hyde, an exemplary student and a fiendish killer.

Donna lived with her mother and father in a trailer. Todd Ice and his family were their nearest neighbors. The two families lived on opposite sides of a service road leading off of Ky. 15 at a point about six miles from Stanton and fifteen miles from

Page 673

Campton. They had been neighbors for six years.

The Ice boy had been suspected and accused by the Knox family of pilfering from their trailer. The Commonwealth claims that this tragedy was motivated by Ice's desire for revenge against the child's father for his accusations.

The principal evidence convicting Ice was the testimony of the child's mother, Sheila Knox. Mrs. Knox testified that she returned home with her daughter to find that her house had been broken into. As she tried to get herself and the child out of the house, she was accosted by Ice wielding a hunting knife, slashed across the back, and then forced into the bedroom where she was tied up and beaten by him. There was other testimony showing that her throat was cut, but she became unconscious before this occurred, so she could not identify the person who did it.

After Sheila Knox was unconscious, the child was murdered with a knife in the bedroom. The knife used to cut Sheila Knox's throat and to stab and slash the child was a different knife or knives than the hunting knife originally used to slash Sheila Knox.

Although Sheila Knox identified Ice as the only person she saw in the trailer at the time, the defense claimed that another neighbor boy, Norvin Mayberry, had gone to the trailer with Ice and was responsible for slashing Sheila Knox's throat after she became unconscious and for murdering the child.

The evidence for the defense was that shortly after the occurrence, while a patient at Northern Kentucky Treatment Center, Department for Human Resources, for evaluation of mental condition and drug abuse, Norvin Mayberry confessed to the crime repeatedly and in some detail over a period of nine or ten months. Mayberry later recanted and denied any participation.

The second aspect to the defense was to claim, in the alternative, that if Ice was guilty of the crime that he should be found not guilty by reason of insanity. This defense was based on the testimony of several psychologists and a psychiatrist to the effect that Ice was suffering from serious mental illness at the time. The psychiatrist testified he believed Ice experienced a psychotic break and disassociative reaction at the time of the crime. The psychiatric experts all agreed that Ice does not remember what happened because he could not tolerate knowing that he was involved in a crime of this nature, that he hallucinated an alibi for the time involved, and that he did not know the difference between right and wrong and could not control his behavior at that time.

After the defense's opening statement pointing the finger of guilt at Norvin Mayberry, the Commonwealth demanded and received over the objection of the defense the right to conduct polygraph tests on both Mayberry and his mother, the sole purpose of which was to prove that the Mayberrys, who would be witnesses, were telling the truth when they denied Mayberry had any participation in this crime. The polygraph examiner performed the tests while the trial was in progress and testified in chambers that in his opinion the test results showed Mayberry and his mother were telling the truth in disclaiming his involvement.

When Mayberry testified, he denied any involvement in the murder. Further he testified about drinking bouts with Ice using whiskey Ice had stolen from the Knox trailer, and threats Ice supposedly made against the decedent's father for having caught him and threatened him on one occasion. He was a key witness.

Mayberry also testified about having been suspended from school the day before the occurrence, having been home with his mother at the time of the occurrence, and having confessed to the doctors at Northern Kentucky Treatment Center "to get them crazy doctors off my back." He was also permitted to testify over objection that he and his mother took lie detector tests and passed them, and later his mother testified to the same effect.

Page 674

The polygraphist confirmed that his test results showed that Mayberry and his mother were telling the truth. He was cross-examined about failure to use "control questions" in testing, about the fact that courts generally do not admit polygraph test results, and about how the taking of drugs could affect the results of a polygraph test.

The jury deliberated thirty minutes and found Todd Ice guilty of murder.

The court then proceeded with the second stage of the trial, jury consideration of the death penalty under KRS 532.025. At the outset the prosecutor stated that the jury would simply make a recommendation as to the death penalty and the burden would rest upon the judge to make the final determination: "It will be his decision." The Commonwealth then introduced proof that a burglary had occurred. The defense offered testimony of mitigating circumstances related to Ice's youth, church activities, 4-H club activities and awards, good school record and intellectual ability in spite of his emotional instability and mental illness, and pointed to the fact that he had never been in trouble before, much less charged with violation of the law.

After little over an hour of deliberation, the jury brought in the death sentence.

Before considering specific allegations of error, there are several general propositions which must be discussed. 1

First, RCr 9.22 requires that, as a general rule, the defendant must object to the action of the trial court in order to preserve a claim of error. Appellant cites us to cases standing for the proposition that in a case where the death penalty has been imposed by the trial court an exception exists to this contemporaneous objection rule. 2 These cases hold that in a death penalty case every prejudicial error must be considered, whether or not an objection was made in the trial court. As stated in Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2d 948 (1944), at p. 374, 182 S.W.2d 948: "(W)here the defendant's life is at stake, technical rules of procedure must give way to the more lofty aim that justice may be done." KRS 532.075, the statute regarding review of sentence by the Supreme Court in death penalty cases, adopts and incorporates these decisions in subsection 2, where it states: "The Supreme Court shall consider ... any errors enumerated by way of appeal." In these circumstances, the question of whether objection was made at the trial level is only significant where it may reasonably be inferred that appellant intentionally failed to object for reasons of trial tactics.

Next, a significant portion of the appellant's brief is devoted to procedures and considerations mandated for the Supreme Court under KRS 532.075 when reviewing whether the death penalty is appropriate to the case. For instance, an elaborate procedure is established for accumulating records of other felony offenses where the death penalty was considered and reviewing such records to determine whether the sentence under consideration is disproportionate by comparison. These statutory mandates are designated for cases where the death penalty is affirmed, not for cases reversed for further proceedings on other grounds. Because this case must be reversed for reasons which will be discussed, there is no need for this court to make an independent review of whether the death penalty would be appropriate. The question is moot at this time and any consideration of it has become theoretical.

  1. POLYGRAPH EVIDENCE

    As previously noted, after the defense made an opening statement outlining

    Page 675

    Norvin Mayberry's confessions of guilt and as the trial progressed, the Commonwealth was permitted by the court to conduct a polygraph examination of both Mayberry and his mother to corroborate his subsequent denial of any involvement. It is difficult to understand an error of this magnitude.

    This court has held repeatedly and consistently that it does not yet consider such evidence scientific or reliable. 3 We have not only excluded the evidence of polygraph examiners, but excluded mention of the taking of a polygraph, the purpose of which is to bolster the claim of credibility or lack of credibility of a particular witness or defendant. Perry v. Commonwealth, Ky., 652 S.W.2d 655 (1983).

    Recently this court contrasted the reliability of new blood tests with the unreliability of the polygraph, "the results of which depend heavily on the skill of the operator, and in which factors other than truthfulness are known to affect the result. Brown v. Commonwealth, Ky., 639 S.W.2d 758 (1982).

    Appellant has cited us to numerous articles and recent decisions from sister states discussing the continued view that polygraph tests are unreliable.

    "The estimated range...

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147 practice notes
  • 728 P.2d 273 (Ariz. 1986), CV 86 0128, McElhanon v. Hing
    • United States
    • Arizona Supreme Court of Arizona
    • November 3, 1986
    ...456, 652 P.2d at 529; see also Simmons v. Southern Pacific Transp. Co., 62 Cal.App.3d 341, 133 Cal.Rptr. 42 (1976); Ice v. Commonwealth, 667 S.W.2d 671 (Ky.1984) (judge allowed numerous acts of prosecutorial misconduct, including permitting the state to call a minister to testify in rebutta......
  • 744 S.W.2d 407 (Ky. 1987), 84-SC-272, Slaughter v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • November 5, 1987
    ...the jury that it could consider the appellant's youth as a mitigating circumstance. KRS 532.025(2)(b)8; Ice v. Commonwealth, Ky., 667 S.W.2d 671, 680 (1984). In his closing argument, the prosecutor attempted to persuade the jury to reject appellant's youth as being in mitigation. He said: &......
  • 694 S.W.2d 672 (Ky. 1985), 82-SC-917, Skaggs v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • May 23, 1985
    ...when, because of additional comments, a message is conveyed that the juror's decision is not the final one. Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984). Here the jury was told its verdict was a recommendation but that information was never accompanied by any inference that its responsib......
  • 864 S.W.2d 252 (Ky. 1993), 88-SC-375, Thomas v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • May 27, 1993
    ...n. 15, 106 S.Ct. 2464, 2473, n. 15, 91 L.Ed.2d 144 (1986). Our Court had already reached a similar result in Ice v. Commonwealth, Ky., 667 S.W.2d 671, 676 (1984), stating it is improper in a death penalty case by instructions or comment to convey "the message that the jurors' awesome r......
  • Request a trial to view additional results
146 cases
  • 728 P.2d 273 (Ariz. 1986), CV 86 0128, McElhanon v. Hing
    • United States
    • Arizona Supreme Court of Arizona
    • November 3, 1986
    ...456, 652 P.2d at 529; see also Simmons v. Southern Pacific Transp. Co., 62 Cal.App.3d 341, 133 Cal.Rptr. 42 (1976); Ice v. Commonwealth, 667 S.W.2d 671 (Ky.1984) (judge allowed numerous acts of prosecutorial misconduct, including permitting the state to call a minister to testify in rebutta......
  • 744 S.W.2d 407 (Ky. 1987), 84-SC-272, Slaughter v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • November 5, 1987
    ...the jury that it could consider the appellant's youth as a mitigating circumstance. KRS 532.025(2)(b)8; Ice v. Commonwealth, Ky., 667 S.W.2d 671, 680 (1984). In his closing argument, the prosecutor attempted to persuade the jury to reject appellant's youth as being in mitigation. He said: &......
  • 694 S.W.2d 672 (Ky. 1985), 82-SC-917, Skaggs v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • May 23, 1985
    ...when, because of additional comments, a message is conveyed that the juror's decision is not the final one. Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984). Here the jury was told its verdict was a recommendation but that information was never accompanied by any inference that its responsib......
  • 864 S.W.2d 252 (Ky. 1993), 88-SC-375, Thomas v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • May 27, 1993
    ...n. 15, 106 S.Ct. 2464, 2473, n. 15, 91 L.Ed.2d 144 (1986). Our Court had already reached a similar result in Ice v. Commonwealth, Ky., 667 S.W.2d 671, 676 (1984), stating it is improper in a death penalty case by instructions or comment to convey "the message that the jurors' awesome r......
  • Request a trial to view additional results
1 books & journal articles
  • A healer or an executioner? The proper role of a psychiatrist in a criminal justice system.
    • United States
    • Journal of Law and Health Vol. 17 Nbr. 2, June 2002
    • June 22, 2002
    ...1109 (1997). (83) E.g., State v. Evans, 523 A.2d 1306 (Conn. 1987); Montano v. State, 468 N.E.2d 1042 (Ind. 1984); Ice v. Commonwealth, 667 S.W.2d 671 (Ky. 1984); Commonwealth v. Tyson, 402 A.2d 995 (Pa. 1979). (84) See supra, note 82 and accompanying text. (85) Jurors tend to view conflict......