870 S.W.2d 412 (Ky. 1994), 89-SC-703, Jacobs v. Commonwealth

Docket Nº89-SC-703-MR.
Citation870 S.W.2d 412
Opinion JudgeREYNOLDS, Justice.
Party NameClawvern JACOBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
AttorneyDonna L. Boyce and Rebecca Ballard Diloreto, Asst. Public Advocates, Department of Public Advocacy, Frankfort, for appellant. Chris Gorman, Atty. Gen., Ian G. Sonego, and Kent Young, Asst. Attys. Gen., Crim. Appellate Div., Capital Litigation Branch, Frankfort, for appellee.
Judge PanelWINTERSHEIMER, Justice, dissenting.
Case DateJanuary 31, 1994
CourtSupreme Court of Kentucky

Page 412

870 S.W.2d 412 (Ky. 1994)

Clawvern JACOBS, Appellant,

v.

COMMONWEALTH of Kentucky, Appellee.

No. 89-SC-703-MR.

Supreme Court of Kentucky

January 31, 1994

Page 413

[Copyrighted Material Omitted]

Page 414

Donna L. Boyce and Rebecca Ballard Diloreto, Asst. Public Advocates, Department of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Ian G. Sonego, and Kent Young, Asst. Attys. Gen., Crim. Appellate Div., Capital Litigation Branch, Frankfort, for appellee.

REYNOLDS, Justice.

Clawvern Jacobs appeals from a judgment based on a jury verdict which convicted him of capital murder, kidnapping, and attempted first-degree rape. He was sentenced to death for capital murder, life imprisonment for the charge of kidnapping, and 20 years on the charge of attempted rape in the first degree.

The charges contained in the indictment were for the murder, kidnapping, and attempted rape of Judy Howard, a student at Alice Lloyd College. The prosecution presented evidence that the victim, while walking alone back to her dormitory at the college, was approached by Jacobs. She was held, led to appellant's truck and forced inside the vehicle. Campus Police and the Kentucky State Police were called and subsequently Troopers Catron and Woods located Jacobs, sitting in his truck, on Smith Branch Hollow Road about seven miles away from the site of the abduction. Jacobs related to the officers that three or four persons had driven out of the mountains in a pickup truck, confronted and "whipped" him and taken the girl away. Howard's nude body was found down an embankment 60 feet from appellant's truck. The cause of death was blunt force head injuries. Jacobs was arrested and placed in Trooper Woods' cruiser. A bottle of pills was taken from appellant and the contents, as analyzed, revealed that the various pills were antihistamines, Valium, ulcer medication and high blood pressure medication. Various personal items were found in the roadway around appellant's vehicle, including a girl's wrist chain, cigarette lighters, plastic combs and a hair brush. Additional items of evidence were collected from the cab of Jacobs' truck and included a pair of lady's blue jeans, a white blouse, a white bra, keys with identification of the name "Judy" thereon, and a tan jacket with an "Alice Lloyd College" identification tag of Judy Ann Howard in the right pocket.

Prior to the related occurrences, Jacobs went into the store of Claude Gibson to obtain gasoline and his parting comment was

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"let's go find us a woman" or "let's go get us a woman." Appellant drove away from the gas station toward the college which was one mile away.

Jacobs, through counsel, raises 42 assignments of alleged error in this appeal. We have reviewed all issues presented by Jacobs and this opinion will concentrate on the trial judge's refusal to grant a change of venue; appellant's right to present his defense on the merits, which was denied by counsel's presentation of an insanity defense over appellant's objections; and use of attempted rape as a nonstatutory aggravator. As retrial will occur, we will address a fundamental fairness issue and the use of the term "recommend" in addressing juries as to death sentence responsibilities. Allegations of error which we have considered to be without merit will not be herein addressed.

  1. VENUE

    From the totality of the record, the build up of prejudice commences to crystalize, then becomes clear and apparent. This murder was described by county officials as one of the most brutal in Knott County history. The initial and subsequent news reports described Jacobs' conviction of a similar slaying in 1974, and his release after such conviction when the earlier crime was overturned on appeal. Developments in this awaited trial permeated the media to such an extent that curbstone opinions, not only as to appellant's guilt, but even as to what punishment he should receive, were solicited and recorded. The force of adverse publicity gave impetus to the excitement and fostered prejudice among the people of the community. In fact, one of the public fund raising events to aid in Jacobs' prosecution raised $2,922.

    The petition for change of venue was overruled. The public opinion survey/poll which was filed with the record indicated that in 100 calls, 98 persons had read or heard about the crime. Eighty-nine thus polled were aware of appellant's name; 73 knew that he had been in prison previously, and 60 were aware of that charge. Ninety-three persons had heard both radio and television stories, some up to at least 100 such reports. Eighty-five considered Jacobs guilty, while 15 did not respond or stated they did not know. Sixty-five thought Jacobs would receive a fair trial in Knott County.

    It is readily acknowledged that wide discretion is, and usually should be, allotted to the trial court in determining a change of venue question. Hurley v. Commonwealth, Ky., 451 S.W.2d 838 (1970). However, the poll is reflective that there was substantial community feeling against the accused and should have militated that a change of venue be granted. The appellant renewed his motion during the course of voir dire as prospective jurors gave repeated voice to the community's sentiment that was widespread against him. The motions were summarily overruled. All potential jurors, save one, had knowledge of the case. Of the 153 or more jurors that were voir dired individually, 112 were excused because they had preconceived opinions about appellant's guilt, could not presume him innocent, or admitted to knowledge of his prior manslaughter conviction. Of 38 jurors who were accepted by the court, 19 had an initial opinion that Jacobs was guilty. Of those 19 jurors, four sat on the panel that decided the case.

    This appellant, as every defendant no matter how vicious the crime, must receive protections afforded by the Kentucky Constitution, the Kentucky statutes, and the United States Constitution, which interpret basic rights. The judiciary has no alternative but to protect such rights despite the nature of the crime or the influence of an outraged community. See concurring/dissenting opinions in Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 142 (1988).

    The bias of a community can make the change of venue constitutionally required. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). The pattern of deep and bitter prejudice shown to be present throughout the community was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box.

    The right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. Impartiality is not a technical conception. It is a

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    state of mind. For the ascertainment of a mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Herein the stockpiling of pretrial prejudice is apparent. The pattern of thought indicated by the news media is revealing.

    It is not requiring too much that the appellant be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which all...

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