744 S.W.2d 407 (Ky. 1987), 84-SC-272, Slaughter v. Commonwealth

Docket Nº84-SC-272-MR.
Citation744 S.W.2d 407
Opinion JudgeSTEPHENS, Chief Justice.
Party NameJames Earl SLAUGHTER a/k/a James Earl Slawter, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
AttorneyJoAnne M. Yanish, Rodney McDaniel, Asst. Public Advocates, Frankfort, for appellant. David L. Armstrong, Atty. Gen., Frankfort, Mary-James Young, Virgil W. Webb, III, Asst. Attys. Gen., Frankfort, for appellee.
Judge PanelGANT, STEPHENSON and WINTERSHEIMER, JJ., concur. LEIBSON, Justice, dissenting. VANCE, Justice, dissenting.
Case DateNovember 05, 1987
CourtSupreme Court of Kentucky

Page 407

744 S.W.2d 407 (Ky. 1987)

James Earl SLAUGHTER a/k/a James Earl Slawter, Appellant,

v.

COMMONWEALTH of Kentucky, Appellee.

No. 84-SC-272-MR.

Supreme Court of Kentucky

November 5, 1987

Rehearing Denied March 3, 1988.

Page 408

[Copyrighted Material Omitted]

Page 409

JoAnne M. Yanish, Rodney McDaniel, Asst. Public Advocates, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., Frankfort, Mary-James Young, Virgil W. Webb, III, Asst. Attys. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

James Earl Slaughter was convicted in the Jefferson Circuit Court of first-degree robbery and murder. He received a sentence of 20 years for robbery and was sentenced to death for the murder. This matter of right appeal results. We affirm.

The charges underlying the convictions arose from the death of a store owner, Esther H. Stewart, in Jefferson County on January 28, 1983. Following an investigation, Slaughter was arrested on the day after the crime. He voluntarily gave a statement to the police in which he claimed to have been acting as a "lookout" when another man, known only to appellant as "Red," killed Stewart. Slaughter, who is black, told police that he had picked up a white, male hitchhicker ("Red") and agreed to help him rob a local store.

In preparation for the robbery, the two men supposedly exchanged clothes and shoes. Slaughter stated he loaned his gun to "Red" because the small knife "Red" carried was inadequate. According to his statement, Slaughter waited outside the store. He heard a scream, "Red" ran out of the store and the two men ran from the scene. After re-exchanging clothes, appellant drove "Red" to a local arcade and never saw him again.

The police investigators at the scene discovered a single, undischarged bullet on the floor near the victim. This bullet was later matched with the appellant's gun. The cash register was opened with difficulty, and the victim's wallet was sticking out of her purse. Police detectives questioned the owner and patrons of the arcade but were unable to locate or identify the man called "Red."

Trial began on October 24, 1983. Commonwealth witnesses testified to seeing a man run from the store. This man was identified alternatively as a white man, a black man, or by his clothes, a blue jacket and blue pants. Slaughter's housemates testified that on the night of the robbery, he was wearing a blue jacket and pants. His clothes were discovered the next morning and were stained with blood. Slaughter had left the apartment carrying his gun. A butcher knife, not used in preparing the evening meal, was found in the dish rack in the morning.

At least three witnesses heard and repeated Slaughter's admission to his involvement in the crime. Their version was that Slaughter related that his intention was to rob the store. When he asked the woman for money she screamed. He hit her with his gun and then stabbed her to stop the screaming.

The doctor who performed the autopsy stated the victim's death was due to a stab wound. Other injuries included multiple stab wounds and a blow to the head.

The jury found Slaughter guilty of murder and robbery during the guilt phase of the trial. During the penalty phase the jury recommended death due to the aggravating circumstance of the murder having been committed during the course of a robbery.

The facts will be discussed in more detail as specific issues are reviewed. Appellant raised 29 issues on appeal. Although we have carefully considered all of them, only certain ones will be discussed in this opinion. All others are without merit.

With respect to the guilt phase of the trial, we will consider the following contentions of appellant: (1) whether there was sufficient independent corroborative evidence (other than evidence of appellant's confessions) presented to sustain the conviction of robbery; (2) whether the trial judge committed reversible error in failing to excuse for cause a prospective juror who may have doubted her own partiality; (3) whether the closing argument of the prosecutor constituted reversible error; and (4) whether the trial court erred in failing to instruct the

Page 410

jury on wanton murder and second degree manslaughter.

With respect to the sentencing phase of the trial, we will consider four issues: (1) whether reversible error was committed by the trial court's permitting a juror to question the appellant; (2) whether the trial court erred in failing to make a finding whether the evidence was sufficient to foreclose all doubt of guilt; (3) whether certain conduct of the prosecutor was of such a nature as to deprive appellant of a fair trial; and (4) whether appellant's sentence of death is disproportionate to other recent Kentucky death penalty cases.

WAS THERE SUFFICIENT CORROBORATIVE EVIDENCE, OTHER THAN THEEVIDENCE OF APPELLANT'S CONFESSIONS, TO SUSTAINTHE CONVICTION OF ROBBERY?

The basis of this argument is RCr 9.60, which is as follows:

"Corroboration of confession.--A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that such offense was committed."

The corroborative evidence required addresses itself as to whether the crime charged was committed and not as to whether the particular defendant committed it. Taylor v. Commonwealth, Ky., 461 S.W.2d 920 (1970), cert. denied, Brown v. Kentucky, 404 U.S. 837, 92 S.Ct. 126, 30 L.Ed.2d 70 (1971); Wilson v. Commonwealth, Ky., 476 S.W.2d 622 (1971). Such proof, very simply, must be independent of any out-of-court confession, and must show that the charged crime was, in fact, committed. Once such evidence is present, guilt of the defendant may be proven by the evidence of the confession(s). Dolan v. Commonwealth, Ky., 468 S.W.2d 277 (1971). The rule, in its effect, requires that the corpus delecti of the crime be proven by independent, corroborative evidence.

Thus, we examine the record to see if there is, in fact, evidence other than the out-of-court admissions of appellant that first-degree robbery was actually committed. This question (and its answer) takes on special significance in that the commission of the murder during the course of the robbery was the only aggravating circumstance that would have justified the imposition of the death penalty. KRS 532.025(2)(a)2. If there was no compliance with the mandate of RCr 9.60, the death sentence, in this case, would have to be reversed.

Specifically, therefore, we determine if the independent evidence in the record shows that the statutory elements of robbery in the first degree are present. That crime is defined in KRS 515.020:

"(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:

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

"(b) Is armed with a deadly weapon; or

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

The two basic elements necessary to prove this crime are the intent to commit a theft and either the causing of a physical injury, the presence of a deadly weapon or the threat of use of a dangerous instrument. It is crystal clear, and is not contested by appellant, that the owner and operator of the store was killed by various blows and by multiple stab wounds. The medical examiner's testimony, plus others', prove that element of the crime.

Appellant concentrates his argument on the purported lack of evidence to sustain the other element of the crime, viz, whether there was independent evidence to show an intent to commit a theft. We believe that there is an abundance of evidence to show that James Earl Slaughter had the requisite intent to commit theft. A witness testified that Slaughter had been in the store several days before the crime and was loitering and acting suspiciously. He was, in effect, "casing" the store. It was

Page 411

also shown that the cash register in the store was open, slightly, when an investigating officer entered the store and took a photograph of it. Also, it was testified to that the same cash register was broken. The clear implication is that the cash register was attempted to be opened by the killer, and in so doing, it was broken. A drawer, under the cabinet on which the cash register was located was wide open when the police came into the store. It is reasonable to assume that the killer was rummaging about near the cash register, looking for money.

Also, the decedent's purse was empty of money when police found it behind the drawer underneath the cabinet holding the cash register. The purse, moreover, was open, and the wallet inside the purse was partially out of the purse. This is further indication that the killer was searching for money.

The killer of Mrs. Stewart was in the store, armed with a gun and a knife. The purpose of such presence was clearly to rob her. His previous scouting of the store, the attempt to open the cash register, the opening of the drawer, and the opening of the purse clearly are evidence of such nature as to show a clear intent to commit a theft. A jury would be totally justified in so believing. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). In Bailey v. Commonwealth, Ky., 502 S.W.2d 48 (1974), we held that the fact that the victim had a wallet on his person during the day he was shot, and that it was missing when his body was discovered, was sufficient independent evidence to corroborate a confession of armed assault with intent to rob. The evidence present here is stronger than that present in Bailey, and we find that RCr 9.60 was complied with.

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230 practice notes
  • Wooden v. Commonwealth, 070215 KYCA, 2013-CA-001272-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • July 2, 2015
    ...and may comment as to the falsity of the defense position.'" Stopher, 57 S.W.3d at 805–06 (quoting Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987)). The Commonwealth's closing statements were not improper under Hannah and Stopher. The Commonwealth's discussion of evidence dur......
  • Nami Resources Company, LLC v. Asher Land & Mineral, Ltd., 081415 KYCA, 2012-CA-000762-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • August 14, 2015
    ...and wide latitude is allowed in both." Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003) (citing Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987)). However, closing arguments calculated to arouse the passions and prejudices of the jury are not looked favorably upon in Kentuck......
  • Pauly v. Chang, 121115 KYCA, 2014-CA-000404-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • December 11, 2015
    ...and wide latitude is allowed in both." Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003) (citing Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987)). However, closing arguments calculated to arouse the passions and prejudices of the jury are not looked favorably upon in Kentuck......
  • 862 S.W.2d 856 (Ky. 1993), 92-SC-308, Alexander v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • May 27, 1993
    ..."must focus on the overall fairness of the trial, and not the culpability of the prosecutor." Slaughter v. Commonwealth, Ky., 744 S.W.2d 407, 411, 412 (1987). Alleged errors are not to be considered in a vacuum. We must consider the Commonwealth's conduct in context and in light o......
  • Request a trial to view additional results
226 cases
  • Wooden v. Commonwealth, 070215 KYCA, 2013-CA-001272-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • July 2, 2015
    ...and may comment as to the falsity of the defense position.'" Stopher, 57 S.W.3d at 805–06 (quoting Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987)). The Commonwealth's closing statements were not improper under Hannah and Stopher. The Commonwealth's discussion of evidence dur......
  • Nami Resources Company, LLC v. Asher Land & Mineral, Ltd., 081415 KYCA, 2012-CA-000762-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • August 14, 2015
    ...and wide latitude is allowed in both." Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003) (citing Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987)). However, closing arguments calculated to arouse the passions and prejudices of the jury are not looked favorably upon in Kentuck......
  • Pauly v. Chang, 121115 KYCA, 2014-CA-000404-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • December 11, 2015
    ...and wide latitude is allowed in both." Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003) (citing Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987)). However, closing arguments calculated to arouse the passions and prejudices of the jury are not looked favorably upon in Kentuck......
  • 862 S.W.2d 856 (Ky. 1993), 92-SC-308, Alexander v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • May 27, 1993
    ..."must focus on the overall fairness of the trial, and not the culpability of the prosecutor." Slaughter v. Commonwealth, Ky., 744 S.W.2d 407, 411, 412 (1987). Alleged errors are not to be considered in a vacuum. We must consider the Commonwealth's conduct in context and in light o......
  • Request a trial to view additional results
3 books & journal articles
  • The proportionality review of capital cases by state high courts after Gregg: only "the appearance of justice."
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 Nbr. 1, September 1996
    • September 22, 1996
    ...death sentences which were upheld after proportionality review and no cases which were reversed. See, e.g., Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987) (conducting proportionality review and concluding that the sentence of death was neither excessive not disproportionate). But see ......
  • Rethinking the timing of capital clemency.
    • United States
    • Michigan Law Review Vol. 113 Nbr. 1, October - October 2014
    • October 1, 2014
    ...(Jan. 20, 2001, 4:25 PM), http://www.washingtonpost.com/wp-srv/aponline/20010120/aponline/62547_000.htm. (306.) See Chandler v. United States, 512 U.S. 1227 (1994). (307.) Bill Rankin 8; Rhonda Cook, Execution Set in U.S. Drug Case; But Witness Says He Lied to Convict Alabama Man, ATLANTA J.-CONS......
  • Look who's talking now: juror questions to witnesses.
    • United States
    • Defense Counsel Journal Vol. 74 Nbr. 2, April 2007
    • April 1, 2007
    ...Tire & Rubber Company, 754 F.2d 512 (4th Cir. 1985). (31) Carter v. State, 234 N.Ed.2d 650 (Ind. 1968); Slaughter v. Commonwealth 744 S.W.2d 407 (Ky. 1987); For a current list of the status of the issue in each of the states, see Am. Judicature Soc'y, Jurisdiction-by-Jurisdiction Rules ......