Cosby v. Com.

• Court: Supreme Court of Kentucky
• Writing for the Court: STEPHENS; WINTERSHEIMER; VANCE, J., dissents by separate opinion, in which GANT; VANCE; GANT
• Citation: Cosby v. Com., 776 S.W.2d 367 (Ky. 1989)
• Decision Date: 08 June 1989
• Docket Number: 86-SC-385-MR,Nos. 86-SC-378-M,s. 86-SC-378-M
• Parties: Teddy Lee COSBY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Christopher Charles WALLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 367

776 S.W.2d 367

Teddy Lee COSBY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Christopher Charles WALLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 86-SC-378-MR, 86-SC-385-MR.

Supreme Court of Kentucky.

June 8, 1989.

As Modified on Denial of Rehearing Sept. 28, 1989.

J. David Niehaus, Deputy Appellate Defender, Jefferson Dist. Public Defender, Louisville, for appellant, Cosby.

Larry H. Marshall, Rodney McDaniel, Asst. Public Advocates, Frankfort, for appellant, Walls.

Frederic J. Cowan, Atty. Gen., David Smith, Carol C. Ullerich, Asst.Attys.Gen., Frankfort, for appellee.

OPINION OF THE COURT

Cosby and Walls were indicted and tried together on charges of robbery, kidnapping and murder. Each was found guilty by jury verdict on all charges, and, pursuant to the jury's recommendation regarding punishment, each was sentenced to twenty years imprisonment for Robbery I, the death sentence for Murder, and a second death sentence for Kidnapping. They have appealed separately as a matter of right to our Court alleging numerous errors relating both to the guilt phase and to the sentencing process. Because some of the numerous claims of error are congruent or reciprocal, we decide both cases in a single opinion as a matter of judicial economy.

On the night of November 25, 1984, Kevin Miller, Assistant Manager at the Applegate's Landing Restaurant in Louisville, Ky., was robbed shortly after the restaurant was closed, and then abducted and murdered. Two days later Walls, who was being questioned about the robbery and Miller's disappearance, directed police to the place where the body was found, a pond at Fisherman's Park, about seven or eight miles from Applegate's Landing Restaurant, and then made a statement.

The victim had six stab wounds in the back and chest, and his throat had been slashed. His fingertip had a fresh cut covered by a Band-Aid, and there was a hemorrhage beneath the scalp from a blow behind the right ear. A boning knife, identified as the murder weapon, was found stuck in the mud nearby.

The Restaurant's safe had been emptied, and cash register tapes had been removed from a desk inside the office. The victim's car was still parked outside. Blood found on the safe and on the desk matched the victim's blood type and was consistent with the victim's freshly cut finger. There was also type "B" blood found on a bank deposit bag, which is consistent with Cosby's blood type.

Walls gave the police a taped statement confessing to many of the details concerning the planning and execution of the robbery, kidnapping and murder as carried out by him and Cosby. In his statement Walls claimed that as the time approached to kill the victim he changed his mind and Cosby alone stabbed and slashed the victim to death. Walls then helped Cosby throw the body into the pond.

There are thirty different claims of error asserted in the Brief filed on behalf of Walls, and thirty-five claims of error asserted on behalf of Cosby. In Walls' case only four of the alleged errors were preserved by contemporaneous objection as required by RCr 9.22, and as required for instructions by RCr 9.54(2). See also RCr 10.12. Likewise, in Cosby's Brief the claims of error are largely unpreserved, particularly so with reference to the problems as to Cosby generated by a joint trial and so-called "Bruton" issues. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Commonwealth urges this Court to reconsider the position stated in Ice v. Commonwealth, Ky., 667 S.W.2d 671, 674 (1984), holding "that in a death penalty case every prejudicial error must be considered, whether or not an objection was made in the trial court." See also Stanford v. Commonwealth, Ky., 734 S.W.2d 781, 783 (1987), to the same effect. This position is generated by KRS 532.075, the statute specifying the duties of our Court in reviewing death penalty cases, which states in pertinent part that "[t]he Supreme Court shall consider ... any errors enumerated by way of appeal." The Commonwealth argues that such consideration should be limited to deciding whether the issue was preserved by contemporaneous objection, and, if not, review should go no further. We do not agree, nor do we believe that this statute oversteps the line between judicial and legislative power. It is a function of the General Assembly to say when and if the death penalty shall be imposed, and this includes the right to prescribe the special type of review of punishment and errors enumerated by way of appeal prescribed in KRS 532.075, limited only by the Kentucky Constitution, the United States Constitution, and the decisions of the United States Supreme Court.

The idea of imposing a higher standard of review in cases where the death penalty has been imposed did not originate with our Court, nor indeed with our Kentucky General Assembly. Its genesis is the opinions of the United States Supreme Court which has stated in many cases that "death is a different kind of punishment from any other" invalidating procedural rules that tend to "diminish the reliability of the sentencing determination," and "of the guilt determination" as well. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392, 403 (1980). Because of the "qualitative difference" from a crime punished by a term of years, "there is a corresponding difference in the need for reliability...." Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Our statute and our standard of review are but a codification of the United States Supreme Court mandate.

However, there appears to be some need for clarification. Contrary to the Commonwealth's suggestion, we have never suggested that the rules of preservation do not apply "at all" in capital cases. Nor do we interpret KRS 532.075(2) as requiring "total abandonment of the rules of preservation." On the contrary, Ice specifies only that "prejudicial error" must be reviewed regardless of contemporaneous objection, and we hasten to reaffirm that this means errors where there is no reasonable justification or explanation for defense counsel's failure to object, tactical or otherwise, and the totality of circumstances persuades this Court that the defendant may not have been found guilty of a capital offense or the death penalty may not have been imposed but for the unpreserved error.

Unfortunately, there is one such error in these proceedings. The strongest evidence against Cosby was inextricably bound up in the statement by his codefendant, Walls, so much so that deleting or redacting Cosby's name when the Walls' statement was read to the jury could not possibly have cured the prejudicial effect of this statement against Cosby. We are compelled to conclude that Cosby was so badly prejudiced by the failure to provide separate trials that his convictions must be reversed. In the peculiar circumstances of this case the jury could not individualize Cosby in his relation to the mass of evidence represented by Walls' statement. Ultimately, when this statement was being used in closing argument to imply Cosby was the killer, the court admonished the jury that Walls' statement was not evidence against Cosby, but this was as likely to compound the error as to cure it.

The Commonwealth's Brief conceded that the case against Cosby, while enough to submit to a jury, was "not overwhelming." It consisted of circumstantial evidence that he, like Walls, was an employee of Applegate's Landing Restaurant and in rather desperate financial circumstances. Cosby admitted that he was with Walls on the night in question. He had driven to Walls' apartment about nine that evening, and left with him, returning sometime around 11:30 p.m. He was seen by an eyewitness in Applegate's parking lot sitting in Walls' car shortly before closing time. The drop of type "B" blood on the money bag, matching Cosby's blood type was further evidence against him. Perhaps most critically, after he returned with Walls to Walls' apartment, he was seen by Walls' wife removing a small box from the back of Walls' car, appearing to be dividing up something, and then putting the box with the remainder in it in his car before leaving.

The victim's girlfriend testified that Walls (the man Cosby was with) gained entry into the Restaurant on the pretext of needing to get "some papers out of my locker" just as the Restaurant was closing, at 11:00 p.m. This evidence, taken together with physical evidence establishing the robbery, the abduction and the murder, would have been sufficient to support Cosby's conviction in a separate trial where Walls' statement would not be part of the evidence. While circumstantial and not overwhelming, the individualized evidence against Cosby is ample to meet the test of proof sufficient to induce conviction of guilt beyond a reasonable doubt of all the elements of the crimes charged. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The fundamental premise in Bruton v. United States, supra, is that the confession of a codefendant when utilized as evidence in a joint trial is prejudicial hearsay as to the nonconfessing defendant to the extent that it incriminates him, and cannot be used unless the name of the nonconfessing defendant can be so redacted or deleted that its use is harmless beyond a reasonable doubt. Otherwise, it violates the accused's fundamental right, guaranteed by the Sixth Amendment, to be confronted by the witnesses against him. We are cognizant, indeed appreciative, of the recent United States Supreme Court decision in Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176, 187 (1987), extolling the value of joint trials to enhance "both the efficiency and the fairness of the criminal justice system." This was a case where one defendant, but not both, made incriminatory statements which, when properly...