Bussell v. Com.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtWINTERSHEIMER; STEPHENS, C.J., dissents by separate opinion in which STUMBO; STUMBO, J., dissents by separate opinion, in which STEPHENS; STEPHENS; STUMBO; STUMBO; STEPHENS
Citation882 S.W.2d 111
PartiesCharles Wayne BUSSELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date21 April 1994

Page 111

882 S.W.2d 111
Charles Wayne BUSSELL, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
April 21, 1994.
As Modified May 25, 1994.
Rehearing Denied Sept. 29, 1994.

Page 112

Donna L. Boyce, Oleh R. Tustaniwsky, Asst. Public Advocates, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Kent T. Young, Sharon Kay Hilborn, Asst. Attys. Gen., Crim. Appellate Div., Frankfort, for appellee.

WINTERSHEIMER, Justice.

Charles Wayne Bussell, a black man, appeals from a judgment based on a jury verdict which convicted him of the murder and robbery of an elderly white woman. An all-white jury fixed his sentence at death for the murder and twenty years in prison for the robbery.

The victim disappeared from her home on December 1, 1990. Her body was found at the county fairgrounds on February 23, 1991. She had been strangled. Following a four-day trial, the jury found that the murder was committed by Bussell while he was engaged in the commission of first-degree robbery. The penalty phase followed and on January 17, 1992, a sentencing hearing was held. The trial judge imposed a sentence of death on the murder conviction and twenty years on the robbery conviction to run concurrently.

On appeal, Bussell raises thirty-five allegations of error. We have carefully reviewed all the issues presented by Bussell and this Opinion will concentrate in detail on eight specific assignments of error. The remaining issues are so obviously without merit they will not be specifically addressed in this Opinion.

I Recusal

Bussell's motion to recuse the trial judge was untimely and denial did not amount to reversible error. The trial judge did not violate Bussell's rights to due process, a fair trial and reliable sentencing by refusing to recuse himself. This Court has carefully reviewed the video tape of all the proceedings and concludes that reversible error did not occur. Although the conduct of the trial judge was not a textbook example of judicial patience, we find no violation of the defendant's rights.

Bussell was indicted on April 11, 1991. The trial judge stated on the record that he had represented Bussell on a murder case seventeen years earlier in 1974. At the beginning of the hearing conducted on June 13, defense counsel stated that he and Bussell had discussed the question of recusal and they "didn't see any reason to do that ..." The trial judge indicated some willingness to recuse on June 13, if a motion was made at that time. Defense counsel said, "The defense does not wish to, your Honor." Bussell clearly waived any objection to the trial judge sitting on the case at that time. However, approximately five months later, a written motion to recuse was filed, six days before the trial was to begin. The judge overruled the motion.

Three grounds were stated in the motion to recuse. The first was that the judge had previously represented Bussell in a felony criminal matter in the U.S. District Court in 1974 for which Bussell was sentenced and sent to Federal prison. This allegation is factually incorrect. The trial judge explained on June 13, that his prior representation of Bussell was in state court on a murder charge which ultimately resulted in a dismissal rather than a conviction. The record indicates that after the trial of one of the codefendants in 1974, Bussell dismissed his first attorney who was the current trial judge, and hired different counsel. The motion presents nothing new that the trial judge would have learned through his representation of Bussell which would render the trial judge biased. Prior dismissal of a criminal charge against Bussell was not an element of this case, and the trial judge did not have to rule on any such question. Cf. Commonwealth v. Carter, Ky., 701 S.W.2d 409 (1985).

The second allegation in the recusal motion was that the trial judge had ruled on an ex parte motion for a search warrant. This claim is without merit. Recusal is appropriate only when the information is obtained from an extrajudicial source. Marlowe v. Commonwealth, Ky., 709 S.W.2d 424 (1986). The final allegation was that there was public disclosure of confidential information regarding Bussell's competency evaluation, including the fact that he refused to

Page 113

cooperate with the first psychologist who attempted to examine him. These claims were made on the basis of certain newspaper reports which reported the fact of Bussell's competency. It is obvious that the question of competency is public and would have become known as soon as the trial started. The newspaper reports do nothing more than report that Bussell was found competent to stand trial. The fact of trial competency is not confidential and can readily be ascertained from the public record in the case. Bussell was not prejudiced by any information released by the trial judge.

There was nothing new presented on November 6, 1991, which had not already come to the attention of or should have been known by Bussell or his counsel on June 13, 1991. A motion for recusal should be made immediately upon discovery of the facts upon which the disqualification rests. Bailey v. Bailey, Ky., 474 S.W.2d 389 (1972); Kohler v. Commonwealth, Ky., 492 S.W.2d 198 (1973). Otherwise, it will be waived. Here Bussell knew or should have known about the prior representation either from his own knowledge or the hearing of June 13. No motion was made at that time and counsel, with Bussell present, expressly declined to make such a motion. The defendant did not act expeditiously. The refusal of the trial judge to recuse himself from the impending trial did not constitute reversible error.

II Sympathy for Victim

Bussell argues that he was denied a fair trial because the prosecutor was permitted to present allegedly prejudicial inflammatory evidence from the victim's sister and son in order to elicit sympathy for the victim. The victim's sister testified that they had lived in Christian County for a long time because their father was a Methodist minister and the son identified a photograph of his mother wearing her sapphire ring which was taken during the robbery. He also told the jury about her philanthropic work. The prosecutor reminded the jury during the penalty phase closing argument that the victim had a sister and a son.

The testimony presented and the Commonwealth's Attorney's remark about the victim did not amount to reversible error. This Court has recognized that a certain amount of background evidence regarding the victim is relevant to understanding the nature of the crime. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988); See also McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984). This Court has previously held that it was not error in the guilt phase when the testimony of the wife merely called the attention of the jury to the fact that the victim was once a living person rather than a statistic. Templeman v. Commonwealth, Ky., 785 S.W.2d 259 (1990). This case is similar to Campbell v. Commonwealth, Ky., 788 S.W.2d 260 (1990), in that the prosecution did not dwell on the victim and did not unnecessarily incite the passion of the jury to the prejudice of the defendant.

A careful examination of the record indicates that there was no reversible error in view of the total picture given to the jury. The testimony merely reflects the facts relevant to the situation at hand. There was no undue prejudice to the accused.

III Penalty Phase Instructions

Bussell contends that the jury instructions during the penalty phase were inadequate, incomplete and denied him due process of law and reliable sentencing. Bussell claims that the jury should have been instructed that it can impose a life sentence, even if it found an aggravating factor beyond reasonable doubt. Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980), stated that the jury did not have to return a death sentence even though aggravating circumstances existed.

Here Instruction No. 4 clearly advises the jury that it could recommend a sentence of life. The verdict forms also so indicate. The penalty...

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102 practice notes
  • Easlick v. State, No. F 2003-70.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 3, 2004
    ...N.E.2d 669 (2002); Loyd v. State, 787 N.E.2d 953 (Ind.App. 2003); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); Bussell v. Com., 882 S.W.2d 111 (Ky.1994); Bryant v. State, 142 Md.App. 604, 791 A.2d 161 (2002); Com. v. Gendraw, 55 Mass.App. Ct. 677, 774 N.E.2d 167 (2002); People v. Har......
  • Caudill v. Commonwealth of Kentucky, 2000-SC-0296-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 12, 2003
    ...jury that it could impose a life sentence even if it found an aggravating factor beyond a reasonable doubt. Bussell v. Commonwealth, Ky., 882 S.W.2d 111, 113 (1994). Instruction No. 19, "Authorized Sentences," read together with the verdict forms and as further explained during cl......
  • Hodge v. Com., No. 1996-SC-1085-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 24, 2000
    ...Commonwealth, Ky., 938 S.W.2d 243 (1996), cert. denied, 522 U.S. 837, 118 S.Ct. 110, 139 L.Ed.2d 63 (1997); Bussell v. Commonwealth, Ky., 882 S.W.2d 111 (1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995). Here, the prosecutor carefully explained to the jury during ......
  • State v. Harris, A15-0711
    • United States
    • Supreme Court of Minnesota (US)
    • May 24, 2017
    ...State v. Radeke, 444 N.W.2d 476 (Iowa 1989).Kansas: State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982).Kentucky: Bussell v. Commonwealth, 882 S.W.2d 111 (Ky. 1994).Maine: State v. Anderson, 434 A.2d 6 (Me. 1981).Maryland: Beattie v. State, 216 Md.App. 667, 88 A.3d 906 (Md. Ct. Spec. App. 20......
  • Request a trial to view additional results
102 cases
  • Easlick v. State, No. F 2003-70.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 3, 2004
    ...N.E.2d 669 (2002); Loyd v. State, 787 N.E.2d 953 (Ind.App. 2003); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); Bussell v. Com., 882 S.W.2d 111 (Ky.1994); Bryant v. State, 142 Md.App. 604, 791 A.2d 161 (2002); Com. v. Gendraw, 55 Mass.App. Ct. 677, 774 N.E.2d 167 (2002); People v. Har......
  • Caudill v. Commonwealth of Kentucky, 2000-SC-0296-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 12, 2003
    ...jury that it could impose a life sentence even if it found an aggravating factor beyond a reasonable doubt. Bussell v. Commonwealth, Ky., 882 S.W.2d 111, 113 (1994). Instruction No. 19, "Authorized Sentences," read together with the verdict forms and as further explained during cl......
  • Hodge v. Com., No. 1996-SC-1085-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 24, 2000
    ...Commonwealth, Ky., 938 S.W.2d 243 (1996), cert. denied, 522 U.S. 837, 118 S.Ct. 110, 139 L.Ed.2d 63 (1997); Bussell v. Commonwealth, Ky., 882 S.W.2d 111 (1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995). Here, the prosecutor carefully explained to the jury during ......
  • State v. Harris, A15-0711
    • United States
    • Supreme Court of Minnesota (US)
    • May 24, 2017
    ...State v. Radeke, 444 N.W.2d 476 (Iowa 1989).Kansas: State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982).Kentucky: Bussell v. Commonwealth, 882 S.W.2d 111 (Ky. 1994).Maine: State v. Anderson, 434 A.2d 6 (Me. 1981).Maryland: Beattie v. State, 216 Md.App. 667, 88 A.3d 906 (Md. Ct. Spec. App. 20......
  • Request a trial to view additional results

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