Brown v. Com., No. 2006-SC-000654-MR.

• Citation: 313 S.W.3d 577
• Decision Date: 17 June 2010
• Docket Number: No. 2006-SC-000654-MR.
• Parties: Phillip L. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

313 S.W.3d 577

Phillip L. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000654-MR.

Supreme Court of Kentucky.

June 17, 2010.

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Emily Holt Rhorer, Samuel N. Potter, Donna Lynn Boyce, Appellate Branch Manager, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, William Robert Long, Jr., Assistant Attorney General, Criminal Appellate Division, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Phillip Brown appeals from an August 21, 2006 judgment of the Warren Circuit Court, convicting him of first-degree burglary, in violation of KRS 511.020; of first-degree robbery, in violation of KRS 515.020; and of murder, in violation of KRS 507.020. Brown was sentenced to consecutive twenty-year prison terms for both the burglary and the robbery, and he was sentenced to death for the murder. The Commonwealth alleged, and the jury found, that during the early morning hours of January 11, 2001, Brown forcibly entered the residence of Sherry Bland and that in the course of stealing her television set and possibly money or other items from her purse, he killed Bland, by stabbing her with a steak knife and beating her repeatedly with a tire iron. Brown challenges both his conviction and his sentence, alleging some twenty errors by the trial court and raising several additional arguments against the death penalty. We reject Brown's claims of error with respect to his conviction, but we agree with him that he was improperly subjected to the death penalty in his second trial. Accordingly, we affirm the trial court's judgment to the extent that it finds Brown guilty of the charged crimes and sentences him to consecutive twenty-year prison terms for robbery and burglary, but we reverse Brown's death sentence for murder and remand for resentencing with respect to that crime.

RELEVANT FACTS

Brown's 2006 Warren County trial was his second trial for the alleged offenses against Sherry Bland. Bland resided on Pine Tree Street in Columbia, in Adair County, and it was an Adair Grand Jury that indicted Brown on August 13, 2002. Brown was tried in that county and convicted of the same three offenses in September 2003. At that trial, the jury found two aggravating circumstances pursuant to KRS 532.025 but did not recommend the death penalty. Instead, the first jury recommended a sentence of life in prison without the possibility of parole for at least twenty-five (25) years. Brown appealed from the Adair Circuit Court Judgment, and in an unpublished opinion in August 2005, this Court reversed Brown's conviction because his Sixth Amendment right to cross-examine certain key prosecution witnesses had been improperly limited. On remand, the parties agreed to transfer venue to Warren County, and Brown was retried in the Warren Circuit Court in May 2006.

In addition to the horrific crime-scene evidence, which established beyond any doubt that Bland had been murdered, the Commonwealth's proof at trial fell roughly into three categories. There were witnesses—Jerry Kemp, Charlene Palmer, and Barbara Slater—who connected Brown to the stolen television set. Kemp, who had been a close friend of Brown, testified that at 3:00 or 4:00 one morning at about the time of the murder, Brown had come to his, Kemp's, apartment with a television set similar to the one stolen from Bland. Kemp testified that he kept the television for a few weeks until he heard on the news that a similar television had been taken from Bland's residence. Barbara Slater, Kemp's mother, testified that she too became concerned when she learned about the theft of Bland's television. She testified that she confronted Brown with her concerns and told him to remove the set from Kemp's apartment. Soon thereafter, according to Kemp, he and Brown hauled the television set to a spot outside of town on Lampton Lane where they dumped it on the side of the road. Palmer, Kemp's companion at the time, confirmed Kemp's testimony that Brown had brought the television to their apartment early one morning and that a few weeks later he and Kemp had hauled it away. She testified that before removing the set, Brown had wiped it with bleach and covered it with a baby blanket. Although the police did not discover a television at the place Kemp said he and Brown had left it, two residents of that area testified that in late March or early April of 2000 they found a television matching the description of Bland's set lying beside Lampton Lane and hauled it to the dump.

The Commonwealth's proof also included witnesses—Eddie Ingram, Archie Lane, and Stephanie McClain—who testified that Brown had confessed to the killing. Ingram, one of Brown's friends, testified that several months after the killing, Brown "just kind of said that he did it." Ingram and Lane, another friend, both testified that a third friend, Shane Hughes, had told them that Brown had confessed to him. Lane testified that according to Hughes, Brown had said, "If you don't believe I did it, go by and the back door will be open." This statement was particularly significant, because the person who discovered Bland's body had indeed found the back door open, but the police had never made that fact public. Lane also testified that when he asked Brown how his case was going, Brown said that he might be alright if everybody would quit talking. McClain testified that her boyfriend, another of Brown's friends, told her that Brown had confessed to the killing to him.

The Commonwealth's third line of proof included forensic witnesses whose analysis of one of the murder weapons, the tire iron, had isolated a mixed DNA sample to which Brown was a very likely contributor. The DNA analyst testified that one of the contributors to the mixture was a male, that both Bland and Brown were potential contributors, and that the odds that a person chosen at random from the United States' population would be a contributor were 1 in 40,000.

The Commonwealth also played for the jury a video recording of Brown's testimony during his Adair County trial. During that testimony Brown admitted that in November of 2000, he had falsely told an investigating detective that Jerry Kemp and his brother, Joseph Kemp, had told him, Brown, that they had stolen a television set from a woman and that in the course of the theft things "had gotten rough." Brown claimed to have fabricated the story in retaliation for the Kemps' allegations against him.

To counter this formidable evidence, Brown sought to show that the first group of witnesses were testifying falsely because they bore a grudge against his uncle; that the second group, all of whom had legal problems of their own, were testifying falsely in exchange for favors from the Commonwealth; and that the third group, the forensic witnesses, were not certain that his DNA was on the tire iron, and even if it was they could have placed it there themselves by mishandling the various exhibits given to them for analysis.

As noted, the jury was persuaded by the Commonwealth's proof and found Brown guilty of all three charges. Brown raises numerous errors on appeal. His first contention is that because he was sentenced to life imprisonment without the possibility of parole for twenty-five (25) years and not to death at his first trial, the Commonwealth was precluded from seeking the death penalty against him at retrial.

ANALYSIS

I. Brown's Aggravated Sentence of Life Without the Possibility of Parole for 25 Years at the First Trial Was a Finding That the Commonwealth Had Not Proved That Death Was the Appropriate Penalty and it Precluded the Death Penalty at Any Subsequent Trial for the Same Capital Offense.

Under Kentucky law, murder is a capital offense. KRS 507.020(2). This means that in prosecutions for murder the Commonwealth is authorized to seek the death penalty, and, if it does, a murder conviction calls into effect KRS 532.025. That statute lists various circumstances tending to aggravate or to mitigate the offense and provides that a defendant convicted of a capital crime may be sentenced to death if, but only if, at the conclusion of a presentence hearing, the finder of fact— the jury—finds the existence of at least one of the listed aggravating circumstances and determines, after considering all the evidence in aggravation and in mitigation, that death is the appropriate punishment. Viewing this process, and more particularly, the jury instructions employed in the sentencing process in this case, in light of controlling Double Jeopardy Clause precedent, we are convinced that after Brown's first trial concluded with a verdict fixing his punishment at the aggravated sentence of life without the possibility of parole for twenty-five (25) years, the Commonwealth was precluded from seeking the death penalty a second time. Because this conclusion departs from, indeed overrules, Commonwealth v. Eldred, 973 S.W.2d 43 (Ky.1998), and Salinas v. Payne, 169 S.W.3d 536 (Ky.2005), we must address in some detail the evolution of controlling United States Supreme Court precedent with regard to this issue.

In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the United States Supreme Court held that capital sentencing schemes that require the finder of fact to make specific findings, if death is to be imposed, in addition to those findings required for conviction of the underlying crime itself, implicate the Double Jeopardy Clause of the Fifth Amendment. That Clause commands that "no person shall ... be subject for the same offense to be twice put in jeopardy of...