Dean v. Com., s. 85-SC-1031-M

• Court: Supreme Court of Kentucky
• Writing for the Court: STEPHENS; LEIBSON; VANCE; WINTERSHEIMER, J., dissents in a separate dissenting opinion in which GANT; LEIBSON; WINTERSHEIMER; GANT
• Citation: Dean v. Com., 777 S.W.2d 900 (Ky. 1989)
• Decision Date: 28 September 1989
• Docket Number: 87-SC-566-TRG,Nos. 85-SC-1031-M,s. 85-SC-1031-M
• Parties: Roy Wayne DEAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 900

777 S.W.2d 900

Roy Wayne DEAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 85-SC-1031-MR, 87-SC-566-TRG.

Supreme Court of Kentucky.

Sept. 28, 1989.

Marie Allison, and Donna L. Boyce, Asst. Public Advocates, Dept. of Public Advocacy, Frankfort, for appellant.

Frederick J. Cowan, Atty. Gen., Rickie L. Pearson, and Michael L. Harned, Asst. Attys. Gen., Frankfort, for appellee.

OPINION OF THE COURT

Appellant Roy Wayne Dean was convicted in Todd Circuit Court of first degree burglary, first degree rape, and murder. He received two twenty year sentences on the rape and burglary charges and was sentenced to death for murder. He appeals his conviction as a matter of right.

The Todd County Grand Jury convened in October of 1984 to hear evidence and return indictments in the death of Brenda Church. Mrs. Church's mostly nude body was found lying on the couch in her home by her husband when he returned from work in the afternoon of September 27, 1984. The victim's hands were bound behind her back, and she had apparently been sexually assaulted. She was shot seven times in the head through a pillow found over her face, and once in the chest. Appellant was indicted in the burglary-rape-murder, as was one Jimmy Haley, who was never tried.

Dean was sent by court order to the Kentucky Correctional, Psychiatric and Psychological Center [hereinafter KCPC], where he was examined at length by Dr. Phillip Johnson. Despite deficits in a number of psychological and cognitive areas pertinent to his ability to stand trial, appellant was found competent. Dr. Johnson's testimony at the pre-trial competency hearing was given by videotaped deposition. This deposition was also offered and admitted at trial. Because several issues which will be discussed in this opinion concern the deposition, we elaborate on its contents here.

Dr. Johnson testified that the purpose of his evaluation was to provide needed medical treatment, to determine appellant's competency to stand trial, and to determine criminal responsibility at the time of the crime. Dr. Johnson administered routine psychological tests, and along with other KCPC staff, monitored appellant's behavior. On the basis of the tests, appellant's life history, 156 days of observation, and earlier psychological evaluations in which appellant was diagnosed as moderately mentally retarded, schizophrenic and in need of regular medication, Dr. Johnson concluded that appellant was moderately depressed, may have had a substance abuse problem, and had limited coping ability.

Testing indicated that appellant functioned at a mild level of mental retardation, scoring a full scale intelligence quotient of 59. However, the deponent suspected appellant may have deliberately produced scores on his intelligence test which reflected an intelligence level lower than his actual intelligence. Dr. Johnson learned that appellant had taken an earlier edition of the Wechsler Adult Intelligence Scale in 1981 and 1977 and on the basis of these tests was assigned intelligence quotients of 81 and 48-51, respectively. Because he believed the score of 81, placing appellant in the low normal range of intellectual functioning, was the most accurate score, he concluded Dean may have been malingering during the most recent evaluation, presumably to avoid criminal prosecution.

Dr. Johnson opined that appellant was competent to stand trial. Although appellant's understanding of courtroom procedure and appraisals of likely outcome of the case was limited, these deficits could be corrected by counsel and appellant could assist in his defense. The deponent also testified that "Mr. Dean was criminally responsible for any illegal activity that may have occurred with relation to the current charges."

Dr. Johnson stressed that his determination of competency was made at the time of the report, several months prior to the date of his deposition.

Defense counsel examined the deponent at length about various anti-depressant and anti-seizure medications prescribed for appellant during his stay at KCPC, which may have lowered the level of his pathology as measured by the tests. He also questioned Doctor Johnson about other aspects of his testimony, including appellant's possible malingering on intelligence test scores.

Discussion of the facts concerning Dean's trial on charges of burglary, rape and murder follows as necessary in treating appellant's arguments to reverse his convictions. Appellant raises thirty-four issues on his appeal as a matter of right, and he presents two additional issues in his appeal of the trial court's overruling his motion for new trial based on newly discovered evidence. We have reviewed all of appellant's assignments of error. Because we reverse appellant's conviction and remand his cause to the trial court for a new trial, we will not address in this opinion the merits of all alleged errors. We will discuss the following issues which necessitate reversal or which may recur in a second trial:

1) Whether appellant's right to confrontation and to be present at all stages of trial was violated,

2) Whether the prosecutor's comments denied appellant a fair trial,

3) Whether the use of the word "recommend" to describe the jury's sentencing function denied appellant due process of law,

4) Whether defense counsel denied appellant's right to a defense of innocence by presenting an insanity defense,

5) Whether the guilt-phase instructions denied appellant a fair trial, and

6) Whether the trial court should have granted a new trial because of newly discovered evidence.

I. WAS APPELLANT'S RIGHT TO CONFRONTATION AND TO BE PRESENT AT ALL STAGES OF TRIAL VIOLATED?

Appellant claims his right to be present at several pretrial and trial proceedings was denied in violation of the Sixth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution and Section Eleven of the Kentucky Constitution. While his claims regarding a hearing on the prosecutor's motion for appointment of co-counsel and a portion of voir dire are without merit, we find that appellant's absence during the depositions of two key witnesses violated the rights guaranteed under Section Eleven of the Kentucky Constitution, as well as Rule of Criminal Procedure 7.12 [hereinafter RCr] and RCr 8.28.

The Kentucky Constitution, Section Eleven provides:

"In all criminal prosecutions the accused has the right to be heard by himself and counsel; ... to meet the witnesses face to face" Ky. Const. Sec. 11.

The right to be present is specifically defined in RCr 8.28: "(1) The defendant shall be present at ... every critical stage of the trial" (emphasis added).

The right of confrontation and cross-examination in depositions is guaranteed to the defendant by RCr 7.12.

"(1) The order authorizing the taking of a deposition shall contain such specifications as will fully protect the rights of personal confrontation and cross-examination by the defendant." Id. (emphasis added).

In Noe v. Commonwealth, Ky., 396 S.W.2d 808 (1965), our predecessor Court explained:

"Authority for the Commonwealth to take a deposition is conditioned expressly on full protection of 'the rights of personal confrontation and cross-examination of the witness by defendant.' RCr 7.12(1)." Id. at 809 (emphasis added).

The defendant's right to be present to confront his accusers is also a personal right under the 6th and 14th Amendments to the United States Constitution.

"It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who must be 'confronted with the witnesses against him'.... The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." Faretta v. California, 422 U.S 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975).

While we do not make any findings regarding the violation of defendant's federal constitutional rights, we are persuaded by the logic and wisdom of those who by constitutional authority have commented upon them. In Noe v. Commonwealth, Kentucky's high court found compliance with RCr 7.12 because "the depositions were taken in the presence of appellant and his counsel with unrestricted opportunity of cross-examination." 396 S.W.2d at 809. (emphasis added).

We hold that because the right to be present and to confront is personal to the accused under Section 11 of the Kentucky Constitution, and more particularly under RCr 7.12, only the defendant can waive this right. The waiver must be sufficiently clear "as to indicate a conscious intent." Powell v. Commonwealth, Ky., 346 S.W.2d 731, 734 (1961). In the case at bar, appellant's counsel waived appellant's right to be present at the depositions of the two prosecution witnesses. There is no indication in the record that it was appellant's conscious intent to waive this right and his consequent right to cross-examination. Counsel's waiver being ineffective, there was no waiver. Thus, deposing these witnesses in appellant's absence violated Section 11 of the Kentucky Constitution, RCr 7.12(1) and by implication RCr 8.28(1). Appellant was not present; nor was he afforded the right to confront and cross-examine the witnesses called to testify against him.

The Commonwealth asserts that appellant failed to demonstrate any prejudice by his absence, thus rendering the error flowing from violations of the Kentucky Constitution and the Criminal Rules harmless. We do not agree.

The deposition of Ray Rigsby, appellant's father-in-law, was received into evidence during the Commonwealth's case-in-chief. While defense counsel conducted extensive cross-examination of Rigsby during the deposition, many areas of his testimony could have been best probed by appellant. Mr. Rigsby's testimony that appellant turned red and stomped the floor when asked if he, appellant, had heard about the victim's killing was alone very damaging.

More troubling is appellant's...