Commonwealth v. Morsch
| Docket Number | 2022-SC-0062-MR,2022-SC-0064-TG,2022-SC-0132-TG |
| Decision Date | 24 August 2023 |
| Parties | COMMONWEALTH OF KENTUCKY APPELLANT v. JOSHUA MORSCH APPELLEE AND COMMONWEALTH OF KENTUCKY APPELLANT v. KATHY STEWART APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
NOT TO BE PUBLISHED
COUNSEL FOR APPELLANT: Daniel J. Cameron, Matthew Franklin Kuhn Michael Robert Wajda Jeffrey Allan Cross, Harold Douglas Rader Assistant Commonwealth's Attorney
COUNSEL FOR APPELLEE, JOSHUA MORSCH: Kayla Danielle Deatherage, Shannon Renee Dupree, Bonnie Katherine Potter Kathleen Kallaher Schmidt, Department of Public Advocacy
COUNSEL FOR APPELLEE, KATHY STEWART: Kathleen Kallaher Schmidt Department of Public Advocacy
This case, on transfer from the Court of Appeals pursuant to CR[1] 74.02, presents a challenge to the Clay Circuit Court orders which removed the death penalty as a potential sentencing option for Appellees Joshua Morsch and Kathy Stewart. We find error in the trial court's pretrial ruling excluding the death penalty, and error in the trial court's actions while the Commonwealth's interlocutory appeal was pending. Accordingly, we vacate the trial court's orders excluding the death penalty in Appellees' cases and vacate the final judgment on Morsch's plea of guilty that was entered while the Commonwealth's interlocutory appeal was pending. On remand, these cases shall proceed to a jury trial with the death penalty as a possible sentencing option. Should either Appellee plead guilty on remand, sentencing by a jury is required if the Commonwealth requests it. Appellees' victims shall be given notice of any plea or sentencing proceeding, as required under Marsy's Law.
This case has lingered in Kentucky courts for more than a decade. In 2012, Morsch gave a recorded statement to law enforcement admitting that he had murdered Earl Woods during a planned robbery. Morsch stated that on the day in question, Woods had answered his door in a wheelchair; Morsch beat Woods in the head several times with a hammer before ransacking his house looking for items (prescription pills) to steal; and before leaving, Morsch slit Woods's throat and wrist, causing him to bleed out and die. A grand jury indicted Morsch for murder, first-degree robbery, theft by unlawful taking, and being a second-degree persistent felony offender ("PFO-2"). The Clay County Commonwealth's Attorney, under KRS[2] 532.025, filed a notice of intent to seek the death penalty as a possible sentence, identifying murder committed in the course of first-degree robbery as the statutory aggravator.
Stewart is alleged to have participated in the planning of the robbery and by distracting Woods's roommate during the commission of the offense, thereby preventing that person from observing or stopping the crime.[3] Following Morsch's confession, a grand jury indicted Stewart for complicity to murder, first-degree robbery, theft by unlawful taking, being a PFO-2, and a felon in possession of a firearm. The Clay County Commonwealth's Attorney also filed a notice of intent to seek the death penalty as a possible sentence for Stewart, identifying robbery in the first degree as the statutory aggravator. The trial court later severed Stewart's case from Morsch's, and the Commonwealth chose to try Morsch first.
Morsch's trial was delayed for over a decade, due to Morsch's numerous motions to continue and various scheduling conflicts. At no time did the Commonwealth present Morsch with a plea offer. Additionally, Morsch did not assert his right to a speedy trial until 2022. Morsch's counsel filed multiple pretrial motions to preclude the Commonwealth from seeking the death penalty as a possible punishment option or declare it unconstitutional. The trial court denied all motions until January 18, 2022, when it changed course and entered an order excluding the death penalty as a sentencing option finding it disproportionate to other death penalty cases from a pretrial review of the evidence.
The Commonwealth filed an interlocutory appeal from that order pursuant to RCr[4] 12.04 and KRS 22A.020(4), objecting to the trial court's removal of the death penalty as a possible sentence. Mere hours after the Commonwealth filed its interlocutory appeal, Morsch filed a motion for a speedy trial by jury and noticed the motion for the following morning. However, rather than arguing the speedy-trial motion at the hearing, Morsch instead moved to enter an open guilty plea to all counts. The Commonwealth objected, noting its pending interlocutory appeal, the resolution of which may result in the death penalty being a possible sentencing option in this case. In response, defense counsel argued that the interlocutory appeal did not divest the trial court of jurisdiction to continue with the proceedings. The trial court agreed to entertain Morsch's guilty plea, stating that if this Court renders an opinion reinstating the death penalty, it will "cross that bridge when it comes to it." Morsch's counsel made clear that his plea was predicated on the death penalty being excluded as a sentencing option.
During the plea colloquy, the issue of sentencing arose. The court stated that the jury would set the penalty, but Morsch's counsel asked that the court set Morsch's sentence that day. To allow for this expedited sentencing, Morsch's counsel proffered a prewritten motion to waive the customary presentence investigation. The court hesitated, stating it "did not anticipate that." The Commonwealth objected to sentencing Morsch that day, noting that Morsch's victims have a constitutional right to be notified of plea and sentencing proceedings. In response, defense counsel stated that this case predates Marsy's Law so those rights do not attach and further, that the Commonwealth had never invoked Marsy's Law before this point.
The trial court proceeded with sentencing, and allowed defense counsel to describe its unsworn theory of the evidence, and to argue for mitigation in sentencing. No witnesses were called. Defense counsel painted a picture of Morsch's troubled childhood, in which he allegedly suffered physical abuse, bouts of hunger and homelessness, and the loss of his sister. Turning to the crime at hand, defense counsel alleged that Woods was a drug dealer and that Morsch had been high on methamphetamine and driven to commit the crime by Stewart, who wanted Morsch to steal prescription pills for her.
The Commonwealth reiterated its objection, emphasizing that it had waited for years to ensure this case was heard by a jury with all sentencing options available. Nevertheless, the trial court sentenced Morsch to life without parole for 25 years for the murder conviction and to terms-of-years sentences for the remaining convictions and entered a final judgment accordingly. The entire hearing, from the contested open guilty plea to the pronouncement of sentence, took less than 30 minutes.
The Commonwealth appealed Morsch's final judgment and sentence, which as a matter of right[5] proceeded directly to this Court. This Court accepted transfer of Morsch's interlocutory appeal pursuant to CR 74.02, as the issue raised is of great and immediate public importance and arose in capital litigation, an area exclusively within the appellate jurisdiction of the Kentucky Supreme Court. Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky. 1990). The interlocutory appeal has been consolidated with Morsch's matter of right appeal.
On March 7, 2022, the trial court granted Stewart's request to exclude the death penalty and adopted and incorporated the Morsch order in full. Stewart's motion to exclude the death penalty was based on the trial court's exclusion of the death penalty for Morsch (the more culpable of the defendants) and her argument that death was prohibited under the holding of Enmund v. Florida, 458 U.S. 782 (1982) because her acts do not exhibit the requisite mens rea for death. The Commonwealth filed an interlocutory appeal from that order, which has likewise been transferred to this Court. On appeal, Stewart opposed joint briefing with Morsch, which we indulged, but after review of Appellees' individually-filed briefs, we elect to address their appeals in a single decision.
By excluding the death penalty in Appellees' cases and by entering final judgment in Morsch's case, the trial court appeared to make a conscious effort to bring resolution to these decade-old cases. However, despite its good intentions, the trial court committed numerous reversible errors. The first set of errors concerns the trial court's entry of pretrial orders removing the death penalty as a sentencing option. The second set of errors involves actions the trial court took in Morsch's case while divested of jurisdiction by the Commonwealth's interlocutory appeal. The third set of errors relates to the trial court's handling of Morsch's sentencing. Each will be addressed in turn.
Under Kentucky law, a person convicted of a capital offense may be sentenced to death pursuant to KRS 532.030. The Commonwealth's Attorney, by statute, has discretion to determine whether to seek the death penalty in all cases that statutorily qualify. For sentencing purposes, to be death-penalty eligible, a jury must find the evidence has proven the existence of at least one aggravating circumstance, as set forth in KRS 532.025(2). Aside from the death penalty, the sentencing options for an offender convicted of a capital offense are numerous: term of imprisonment for life without the benefit of probation or parole, a term of life imprisonment without the benefit of...
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