Bowling v. Com.

• Decision Date: 30 September 1993
• Docket Number: Nos. 91-SC-45-M,91-SC-75-MR,s. 91-SC-45-M
• Citation: 873 S.W.2d 175
• Parties: Thomas Clyde BOWLING, Jr., Appellant/Cross-Appellee, v. COMMONWEALTH of Kentucky, Appellee/Cross-Appellant.
• Court: United States State Supreme Court — District of Kentucky

Page 175

873 S.W.2d 175

Thomas Clyde BOWLING, Jr., Appellant/Cross-Appellee, v. COMMONWEALTH of Kentucky, Appellee/Cross-Appellant.

Nos. 91-SC-45-MR, 91-SC-75-MR.

Supreme Court of Kentucky.

Sept. 30, 1993.

As Modified on Denial of Rehearing March 24, 1994.

Barbara M. Holthaus, Timothy T. Riddell, Asst. Public Advocates, Dept. of Public Advocate, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Kent T. Young, Laura Early, Asst. Attys. Gen., Joseph T. Bouvier, Sp. Asst. Atty. Gen., Brent Caldwell, Deputy Atty. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

Bowling was convicted of the intentional murders of Eddie and Tina Earley. He was also found guilty of fourth-degree assault for the injury done to the toe of the Early's 2-year-old son. He was sentenced to death for the murders and to twelve months in jail for the assault.

Sometime around 7 a.m. on April 9, 1990, while the victims sat in their automobile in a parking lot outside a Lexington dry cleaning establishment, Bowling shot and killed the two adults and wounded the child. Witnesses testified that they observed Bowling's actions after the shots were fired. The victims' auto was stopped in the parking lot and the right front of Bowling's auto crashed into the driver's side of the Earleys' vehicle. A witness testified that he saw Bowling fire into the automobile, return to his own auto and then go back and check the victims before returning to his own automobile and fleeing the scene.

Bowling's counsel states that the overriding question is why did Bowling react in such a violent way. Evidence presented in his defense indicates that his wife had left him, that he had been unable to gain employment and that he had exhibited overt signs of suicide prior to the shooting. In this appeal, he raises twenty-two issues. We have carefully reviewed all the legal issues presented by Bowling. Allegations of error which we consider to be without merit will not be addressed in this Opinion.

I

The method by which Bowling's jury was chosen complied with Kentucky law and due process. He received a fundamentally fair trial by a jury whose members were qualified to consider the case on the basis of the evidence presented to them. Cf. Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990). Bowling argues on appeal that the manner by which his jury was chosen did not comply with Kentucky law or due process. The jury that sentenced Bowling to death was fair and impartial.

The trial judge granted 18 peremptory jury challenges to the defense prior to the beginning of voir dire. Pursuant to the ratio set out in RCr 9.40, the trial judge then granted the prosecution twelve peremptory challenges. The court planned to have two alternates on the jury thus it was necessary to qualify a total of 44 potential jurors through the individual voir dire process. Toward the end of the second day of voir dire, the trial judge decided to add four jurors to the panel, even though the court was required to have only 44 potential jurors. The trial judge stated that the additional four individuals were to be used as "protection against unforeseen things and revised opinions." Bowling did not object to the additional jurors originally. It was not until the end of the following day that the defense made objection when Bowling requested that the trial court review its decision not to strike two previously qualified potential jurors for cause. At the beginning of the following day, the trial judge agreed to strike one of those jurors for cause leaving a potential pool of 47 others. Originally, 90 potential jurors qualified and 48 had been randomly selected from that number.

Bowling claims that the decision to eliminate three qualified potential jurors, two of whom did not favor the death penalty, failed to comply with the law regarding jury selection. We disagree. There was no substantial or prejudicial deviation from the principle of random selection in the procedures taken by the trial court. It was not reversible error for the trial judge, in an abundance of caution, to qualify an additional four jurors. All members of the potential jury pool were randomly selected. There was no reversible error.

Bowling was not denied his constitutional right to an impartial jury because the trial judge refused to strike for cause certain jurors who were allegedly biased. A trial court has discretion when deciding whether to excuse a juror for cause. Peters v. Commonwealth, Ky., 505 S.W.2d 764 (1974). After careful review of the record and considering the totality of the circumstances, this Court cannot find an abuse of discretion in the trial court's decision to allow these potential jurors to serve. During voir dire, each was able to express an attitude that they were able to consider the full range of penalties from the minimum to the maximum. The fact that some potential jurors expressed a tendency toward the most severe penalty when presented with specific situations does not automatically preclude their service. There was no abuse of discretion or reversible error in the decision by the trial judge to accept Juror No. 650 who indicated that he could consider the entire range of penalties. It is not that a juror favors the use of the death penalty or disfavors it that will disqualify one as a juror. Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988). The determination was not clearly erroneous or an abuse of discretion. Simmons v. Commonwealth, Ky., 746 S.W.2d 393 (1988).

Bowling was not denied a fair and impartial jury. The trial court provided Bowling more than twice the number of peremptory challenges which are normally granted. RCr 9.40. The claim that the trial judge's refusal to excuse jurors for cause unfairly exhausted his peremptory challenges is without foundation.

II

Bowling argues that prosecutorial misconduct during the guilt and penalty phases of this trial, deprived him of a fair and impartial trial. He claims numerous examples of alleged prosecutorial misconduct such as statements leading the jury to conclude that it would be the legislature and not they who imposed the death penalty; comments regarding parole; and "Golden Rule" violations. Bowling relies on Clark v. Commonwealth, Ky., 833 S.W.2d 793 (1992). We find no merit in his claims. Unlike the Clark situation, here the complained of remarks were made during the penalty phase and not the guilt phase of trial. The comments were far more limited than the comments made in the Clark case.

The closing arguments of the prosecutor during both phases of the trial did not deprive Bowling of a fair and impartial trial. During closing arguments of the guilt phase, the prosecution was discussing potential motive. It was stated, "We can't tell you what it is because only the man who pulled the trigger knows." Bowling claims this was a Fifth Amendment violation and interprets it as a comment on his refusal to testify. There was no direct reference to Bowling. Given the totality of the prosecution's closing argument, this statement, if indeed it was improper, was merely an inadvertent reference. It was not manifestly intended to reflect on the accused's silence or of such a character that the jury would naturally and necessarily take it as such. Byrd v. Commonwealth, Ky., 825 S.W.2d 272 (1992).

During the penalty phase, the prosecution repeatedly reminded the jury that it was they who had the ultimate responsibility for imposing a sentence. The responsibility of the jury for imposing the death penalty was not improperly minimized.

III

Bowling contends that he was denied a fair trial and rational sentencing by the introduction of evidence which elicited sympathy for the victims during the guilt phase of the trial. The prosecutor is given wide latitude in closing argument. Williams v. Commonwealth, Ky., 644 S.W.2d 335 (1982). A prosecutor's statements must be viewed in the context of the entire trial. Cf. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). When several members of the victims' family exhibited emotional outbursts, the trial court took proper steps to limit these distractions. The record is void of examples where the impact upon the family of the victims created undue prejudice.

IV

The defendant had no significant prior criminal history. Bowling claims the improper and incessant denigration of his mitigating evidence by the prosecutor deprived him of a reliable constitutionally obtained sentence. The prosecutor made only one objection during the closing argument of defense counsel. The prosecutor did nothing more than object and did not detail in front of the jury the basis for the objection. The trial judge overruled the objection. This objection certainly did not denigrate the specific mitigating circumstances presented by the defense. The prosecution's closing arguments presented its side of the argument to the jury. The conclusions drawn were supported by the evidence. We find no error in a prosecutor presenting an analysis of the facts which tend to show guilt. The jury remained free to determine on its own if that analysis met the burden of proof required for conviction.

V

Bowling contends that the prosecution used conjecture and surmise to attribute the worst possible motives and inferences without any evidentiary basis in order to obtain a conviction. Therefore the conviction and the sentencing were based only on prosecutorial misconduct.

There is no error because the closing arguments by the prosecution were based on the evidence and the reasonable inferences from the evidence. Cf. Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990). They were within the reasonable latitude permitted during closing argument. Cf. Lynem v. Commonwealth, Ky., 565 S.W.2d 141 (1978). Bowling had the right to present a defense and request appropriate instructions. The trial judge was duty bound to instruct the jury regarding any relevant defense. Without facts which would tend to support a claimed...