Bowling v. Com.
| Decision Date | 24 April 1997 |
| Docket Number | No. 92-SC-1035-MR,92-SC-1035-MR |
| Citation | 942 S.W.2d 293 |
| Parties | Ronnie L. BOWLING, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Donna Boyce, Assistant Public Advocate, Department of Public Advocacy, Thomas M. Ransdell, Assistant Public Advocate, Kentucky Capital Litigation Resource Center, Frankfort, for appellant.
A.B. Chandler, III, Attorney General, Frankfort, David E. Spenard, Assistant Attorney General, Ian G. Sonego, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.
FACTS:
This is a direct appeal of a judgment of the Laurel Circuit Court which sentenced appellant, Ronnie Lee Bowling, to death on two counts of murder and to four twenty-year terms of imprisonment, to run consecutively for a total of eighty years, on two counts of first degree robbery and two counts of first degree burglary. On appeal, the appellant raises forty-four assignments of alleged error as well as twenty seven sub-issues, many of which were not preserved for review pursuant to RCr 9.22 or 9.54. We have carefully reviewed all issues both preserved and unpreserved and for the reasons set forth below, we affirm the judgment of conviction and the sentence imposed.
Early in the morning of January 20, 1989, and while he was working alone, Ronald L. Smith received six .38 caliber gunshot wounds--three to the back of his head, two to his mid-back near the spine, and one to the upper left side of his chest near the armpit. Early in the morning of February 22, 1989, and while he was working alone, Marvin Hensley received six .38 caliber gunshot wounds--three to the back of his head, one behind his right ear, one to the upper back of the neck, and one to his right hand. When questioned about the incidents, the appellant denied owning a handgun. However, his former wife, Ora Lee Issacs, testified that he had purchased the handgun, and she identified both the handgun and the holster seized from appellant's trailer as owned by the appellant. The police also found a box of .38 caliber shells when they searched the appellant's home.
On March 17, 1989, the Laurel County grand jury returned a six-count indictment against the appellant. He was charged with murder by shooting Ronald L. Smith with a pistol, first degree burglary by unlawfully entering the Jones Chevron Station and killing Ronald L. Smith, and first degree robbery by shooting and killing Ronald L. Smith in the course of committing a theft at the Jones Chevron Station, committed on or about January 20, 1989. Also, he was charged with murder by shooting Marvin Hensley with a pistol, first degree burglary by unlawfully entering the Hensley Spur Station building and killing Marvin Hensley, first degree robbery by shooting and killing Marvin Hensley with a pistol while in the course of committing a theft at the Hensley Spur Station, committed on or about February 22, 1989. The appellant was tried in September and October 1992 and sentenced in December 1992. Further facts will be discussed as necessary in the development of this opinion.
We first address the issues presented at oral argument and then proceed to other issues raised in the briefs. The issues argued orally were change of venue, challenges Since the death penalty has been imposed, we have reviewed all allegations of errors, both preserved and unpreserved, with a view of determining whether there was a reasonable justification or explanation for defense counsel's failure to object and whether any unpreserved error was prejudicial, i.e., whether the circumstances in totality are so persuasive that, minus the error, the appellant may have been found not guilty of a capital crime, or the death penalty may have not been imposed.
to jurors, evidence of other crimes, evidence of the victims' good character, irregularity in jury composition, informant's background, and the admission of so called "junk science." Also, in accordance with the law in death penalty cases, we will address the proportionality of the sentence
Appellant alleges he did not receive a fair trial because the trial court denied his request for a change of venue.
Prior to trial, the appellant filed a motion for a change of venue, which was legally insufficient because it was neither verified nor supported by affidavits. The Commonwealth provided twelve affidavits in support of the view that Laurel County could provide the appellant a fair trial. Further, the court conducted a hearing on the change of venue motion during which six witnesses testified that the appellant could receive a fair trial in Laurel County. Prior to trial, the court had found that publicity and other circumstances did not qualify for a change of venue. However, this matter was reserved for reconsideration during voir dire in the event that additional information developed that would warrant a change of venue.
Under either the due process clause or KRS 452.210, a change of venue should be granted if it appears that the defendant cannot have a fair trial in the county wherein the prosecution is pending. Brewster v. Commonwealth, Ky., 568 S.W.2d 232 (1978). The moving party must demonstrate that: 1) There has been prejudicial news coverage, 2) It occurred prior to trial, and 3) The effect of such news coverage is reasonably likely to prevent a fair trial. Brewster, supra, citing Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The mere fact that jurors may have heard, talked or read about a case is not sufficient to sustain a motion for change of venue, absent a showing that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant. Brewster p. 235. The trial court has discretion in this determination and such will not lightly be disturbed. Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985).
The voir dire record reflects the correctness of the trial court's decisions on change of venue. The appellant asserts that 84.6 percent of jurors examined during individual voir dire admitted exposure to publicity and some knowledge about the case. However, an examination of the record indicates that, although almost every potential juror had heard or read something about the initial disappearance of the victims or arrest of the defendant, most did not remember details and had not prejudged the case.
Appellant also cites Jacobs v. Commonwealth, Ky., 870 S.W.2d 412 (1994), in support of his argument for a change of venue. In Jacobs, eighty five percent of the individuals responding to a pretrial survey revealed that they considered the defendant guilty. Here, only eight of the seventy four prospective jurors indicated that they had formed an opinion concerning the appellant's guilt. All but four jurors presumed appellant innocent. The seated jury was fair and impartial. No unqualified juror participated in the decision of the case.
This Court held in Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988), that a change of venue is not required despite the fact that 98 percent of prospective jurors knew about the case. That prospective jurors merely have heard about the case is not sufficient to sustain a motion for a change of venue. Rather, the test is whether the jurors have heard something that causes a preconception concerning the defendant. Even though a juror may have heard about the case in the past, he is still qualified if the court is assured and satisfied that he will put aside that prior knowledge and decide the Change of venue is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981) cert. denied 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982), Grooms supra. The trial court's decision must be given great weight due to the fact that it was present in the county and aware of the environment. We find no abuse of discretion by the trial court's denial of the motion for a change of venue.
case in accordance with the testimony heard in the courtroom and on instructions given by the court.
Appellant claims he was denied a fair trial on the ground that eighteen jurors should have been excused for cause, because their knowledge of the case from newspaper, television, personal and radio accounts was such that bias should be implied as a matter of law. There are no statutes defining relationships to which the courts will imply bias a matter of law. RCr 9.36 provides that "when there is reasonable grounds to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, he shall be excused as not qualified." This rule invests discretion in the trial court to detect and determine partiality and bias from particular circumstances or relationships between the juror and the accused or the case.
Watson v. Commonwealth, Ky., 433 S.W.2d 884 (1968) held that whether bias should be implied because of an acquaintance or relationship is within the sound discretion of the trial court. Stone v. Commonwealth, Ky. 418 S.W.2d 646 (1967), cert. denied, 390 U.S. 1010, 88 S.Ct. 1259, 20 L.Ed.2d 161 (1968) held the trial court's resolution should not be disturbed absent a demonstrated abuse of that discretion.
There is no requirement that prospective jurors be completely ignorant of the facts. The real test is whether, after having heard all the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict. Mabe v. Commonwealth, Ky., 884 S.W.2d 668 (1994).
Being a law enforcement officer is insufficient to excuse for cause from jury service. Also, the mere fact that a person has been the victim of a similar crime is insufficient to mandate a prospective juror be excused for cause. Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990). Further, having some...
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... ... Reindl, Senators Change Minds on Death Penalty, The Day, May 12, 2011, available at http:// www. theday. com/ article/ 2011 0512/ NWS 12/ 305129297 (last visited April 20, 2012) (copy contained in the file of this case with the Supreme Court clerk's office); ... denied, 510 U.S. 893, 114 S.Ct. 255, 126 L.Ed.2d 208 (1993); State v. Scott, 286 Kan. 54, 109, 183 P.3d 801 (2008); Bowling v. Commonwealth, 942 S.W.2d 293, 308(Ky.), cert. denied, 522 U.S. 986, 118 S.Ct. 451, 139 L.Ed.2d 387 (1997), overruled on other grounds by McQueen ... ...
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