892 S.W.2d 542 (Ky. 1994), 91-SC-501, Sanborn v. Commonwealth

Docket Nº:91-SC-501-MR.
Citation:892 S.W.2d 542
Opinion Judge:SPAIN, Justice.
Party Name:Parramore Lee SANBORN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Attorney:Barbara M. Holthaus, Rebecca Ballard DiLoreto, Asst. Public Advocates, Dept. of Public Advocacy, Frankfort, for appellant. Chris Gorman, Atty. Gen., Kent T. Young, Asst. Atty. Gen., Ian G. Sonego, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.
Judge Panel:STEPHENS, C.J., and LAMBERT, REYNOLDS and WINTERSHEIMER, JJ., concur. STUMBO, Justice, dissenting.
Case Date:October 27, 1994
Court:Supreme Court of Kentucky

Page 542

892 S.W.2d 542 (Ky. 1994)

Parramore Lee SANBORN, Appellant,


COMMONWEALTH of Kentucky, Appellee.

No. 91-SC-501-MR.

Supreme Court of Kentucky

October 27, 1994

As Modified on Denial of Rehearing March 23, 1995.

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Barbara M. Holthaus, Rebecca Ballard DiLoreto, Asst. Public Advocates, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Kent T. Young, Asst. Atty. Gen., Ian G. Sonego, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

SPAIN, Justice.

This is an automatic appeal of a death sentence imposed upon the appellant, Parramore Lee Sanborn, on May 14, 1991, by the Jefferson Circuit Court following his conviction by a jury on a retrial for the intentional murder of Mrs. Barbara Heilman. He was also found guilty of the first-degree kidnapping, first-degree rape, and first-degree sodomy of the victim for each of which his punishment was set at imprisonment for ninety-five years, all to run consecutively for a total of 285 years.

During the first trial, which was held in the Henry Circuit Court and extended from January to March of 1984, the appellant was convicted of the same crimes and was sentenced to death for the murder and to life imprisonment for each of the other three felonies. On appeal, this Court on June 9,

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1988, reversed the judgments and sentences for prosecutorial misconduct and for errors committed regarding the admissibility of evidence. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988).

In early 1989, the original trial judge recused himself and granted a change of venue. The case was moved to Jefferson County, was prosecuted by the Commonwealth's Attorney of that county, and was presided over by Special Judge William L. Shadoan of the First Judicial Circuit, Kentucky's westernmost circuit.

The crimes were committed on the night of October 12, 1983, or during the early morning hours of the following day. The victim, Mrs. Heilman, lived on a Henry County farm with her husband, her two daughters, and her eleven-year-old son. That evening, Mr. Heilman was in a Louisville hospital awaiting surgery, where their younger daughter was also a patient because of illness. Since the older daughter was also away at college, only Mrs. Heilman and her son were at home.

Sometime after the boy went to bed, thirty-eight-year-old Parramore Lee Sanborn, according to his own later incriminating statement, drove his car into the Heilman driveway. He had previously worked on the Heilman farm and had said several days earlier that he didn't like the Heilmans and "would get his revenge."

Mrs. Heilman answered Sanborn's knock at her door whereupon he told her his car wouldn't start and he needed a ride. He said they got in the car and drove down to the road at the end of the Heilman driveway. Her car was at that place the following morning when it was discovered by the Heilman boy, who had awakened and found his mother missing and called for help.

When police officers arrived, they found evidence of a vicious attack in and around the car in the driveway. A large pool of blood was found a few feet from the car and the victim's eyeglasses and hair curlers, still wrapped with her hair, were found scattered on the ground and driveway and inside her car. Pieces of bloody flesh were found in her car, which still had her keys in the ignition switch, and an umbrella was jammed inside the driver's door, preventing its being forced open.

The Sheriff and other police officers proceeded to canvass the neighborhood, including the house where the appellant rented a room. He was there and invited the officers in. They noted blood under his cuticles and smeared on his pants leg. His shoes were sitting near the door and were bloodstained. He had a fresh scratch on his face, and there was a large quantity of blood on the floor and passenger seat of his car as well as on the steering wheel.

Based on all this evidence, Sanborn was arrested and made various incriminating statements. He agreed to help the police find Mrs. Heilman's body, but a search party located it before his arrival with police at the scene. The body was located a few miles from the Heilman farm, was partially nude, and bore multiple stab wounds. Mrs. Heilman's hands contained numerous knife wounds such as would have been sustained if she were attempting to defend herself.

Much forensic evidence connected Sanborn to the crimes, such as the fact that Mrs. Heilman's blood matched that found on the steering wheel of Sanborn's car, and hairs matching Sanborn's were found on her body. Scrapings from Mrs. Heilman's fingernails matched carpet fibers from Sanborn's car. Her body bore physical evidence that she had been forced to perform oral sodomy, and expert testimony tied Sanborn to these acts.

Finally, at the second trial now under review, defense counsel in opening statement conceded that Sanborn had killed Barbara Heilman and performed sex acts upon her, although counsel contended that the appellant acted under an extreme emotional disturbance and that the sex acts occurred after Mrs. Heilman was dead.

Some thirty assignments of error were set out in the appellant's brief, of which eight to ten were emphasized at oral argument. Although we have considered each claim carefully, we found none to amount to prejudicial error so as to require reversal of the convictions or sentences. This opinion will address only those which presented relatively serious questions or caused real concern.

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The first error claimed to have prejudiced the appellant's right to a fair trial resulted from a bizarre occurrence, to wit: the misconduct of his assistant defense counsel in wrongfully taking from the Commonwealth's counsel table the notes of a prosecutor concerning the voir dire of the jury panel.

The prosecutor brought to the Court's attention the fact that his notes of the voir dire of the jury were missing from his counsel table on the afternoon of March 25, 1991. The Court asked all trial participants whether anyone knew what happened to the notes, and no one responded. On the following morning, as the prosecutors were preparing to view videotapes of the previous afternoon's courtroom activities, counsel approached the bench outside the presence of the jury panel and the defendant, at which time the assistant defense counsel admitted that she took the prosecutor's notes off the Commonwealth's counsel table the previous day. She admitted that she was just "being nosy" and characterized her conduct as "inexcusable." The trial judge agreed and asked whether the Commonwealth wished to make any motions regarding the matter. The Commonwealth's Attorney responded that he was in a "Catch 22" situation but didn't want to do anything to cause the case to be continued, so he would make no motions. The Court asked lead defense counsel if he had any recommendations, but he replied in the negative. The Court concluded by commenting that he would later see what he would do about the matter. The jury selection process continued.

Some nine or ten days later, after the prosecution had concluded its case in the guilt phase and during the defense's presentation, the same assistant defense counsel appeared before the bench outside the presence of the jury and complained about a news account of her having taken the prosecutor's notes. She expressed concern that the jury might have been contaminated and also claimed that this development had created a conflict of interest on the part of defense counsel. She moved for a mistrial, which was denied. The trial judge reminded counsel that the jurors had been admonished not to watch TV or read newspaper accounts of the trial. He offered to question the jurors as to whether they had done so. The Commonwealth's Attorney commented that he had not brought the incident to the attention of the news media and told his assistant not to do so.

Counsel for the defense then asked the trial judge to recuse himself, which he declined to do. She then moved that she and lead defense counsel be permitted to withdraw from the case, citing a "conflict of interest," and suggested that her attention had been distracted from the defense of her client because of the threat of further action being taken against her. The Court denied these motions and reiterated that he would delay any appropriate action until a later time. The offending assistant defense counsel moved to question the jurors as to their knowledge of the incident, and the Commonwealth and the court acceded to her request. The trial judge then questioned each of the fifteen jurors individually about any knowledge of a media report. Each responded that he or she had not seen or read any news accounts about the case.

The appellant insists that defense counsel's misconduct kept her from being an "aggressive" and "loyal" advocate because "... the specter of pending, unnamed sanctions loomed over the defense team." It is further stated that "[t]hose threats divided counsels' loyalties between their own interests and appellant's--creating an actual, unwaivable conflict that required their removal from the case."

The appellant's brief describes his counsel's situation as a "conflict per se" and opines that the responsibility of both defense counsel "to vigorously defend" him was chilled by the conflict. It is claimed that offending counsel was "forced" to choose between her interests and her client's, and that counsel had to avoid "antagonizing the court any further." We find the attitude reflected or implied in the choice of these words to be very disturbing. We do not...

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