Ernst v. Com., No. 2002-SC-1088-MR.
| Decision Date | 21 April 2005 |
| Docket Number | No. 2002-SC-1088-MR. |
| Citation | 160 S.W.3d 744 |
| Parties | Shawn William ERNST, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Donna L. Boyce, Appellate Branch Manager, Department of Public Advocacy, Julie Namkin, Assistant Public Advocate, Frankfort, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, George G. Seelig, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.
A Boone Circuit Court jury convicted Appellant, Shawn William Ernst, of kidnapping and murdering Sandra Kay Roberts. He was sentenced to life in prison for the murder and to life in prison without benefit of probation or parole for the kidnapping. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting eight claims of reversible error, viz: (1) insufficiency of the indictment for capital kidnapping; (2) admission of hearsay evidence; (3) admission of unduly prejudicial photographs and videotape of the victim's body; (4) admission of improper character evidence; (5) admission of victim impact evidence during the guilt phase of the trial; (6) improper cross-examination of Appellant by the prosecutor; (7) failure of the jury to find an essential element of capital kidnapping; and (8) imposition of capital punishment absent proof of a proper aggravating circumstance. Finding no reversible error, we affirm.
* * *
Roberts and her sister, Betty Davidson, resided together in a house in Florence, Kentucky, that they rented from Roberts's ex-husband. Neither was employed and both drew social security disability benefits. For additional income, they subleased a room in their home to Donald Durbin. On March 18, 2000, Roberts sub-leased another room to Appellant. At that time, Davidson was an inpatient at a rehabilitation clinic on the campus of the St. Elizabeth's Medical Center. Roberts visited Davidson at the clinic virtually every day and also talked to her on the telephone several times a day.
Appellant's fiancée, Denise Arrington, had moved to Texas and a dispute arose between Appellant and Roberts concerning a $145.00 long-distance telephone bill that Appellant incurred without Roberts's permission. The disagreement escalated, and by the weekend of April 1-2, 2000, Roberts decided to evict Appellant from her residence and confiscated his television and videocassette recorder (VCR) as collateral for the payment of the telephone bill. She began locking her purse and Davidson's purse in the trunk of her automobile. On the evening of April 2, 2000, while Appellant was engaged in another long-distance telephone conversation with Arrington, Roberts picked up an extension phone and berated Appellant about incurring long-distance telephone bills.
The following day, several members of Roberts's family attempted to contact her to no avail. They went to her residence where they noticed several things out of place, including that Roberts's dentures were still in a cup beside her bed even though her automobile was not in the garage. They also found Appellant's room completely empty of his belongings. They reported Roberts as a missing person to the Florence Police Department and identified Appellant as a possible suspect. In the early morning of April 4, 2000, police officers found Appellant's automobile parked behind his place of employment, the "Just For Fun" arcade in Dayton, Kentucky, and noted that it was filled with clothing and other personal belongings, including a television and a VCR. Unable to locate anyone inside the arcade, the officers impounded the vehicle. Police officers also found Roberts's vehicle in the parking garage of St. Elizabeth's Hospital, and a hospital employee found Roberts's and Davidson's purses in a trash receptacle inside the hospital.
Florence Police Department detectives interviewed Appellant later in the day on April 4, 2000. Appellant initially denied any involvement in Roberts's disappearance; but upon being advised (as a ruse) that a security camera at St. Elizabeth's had filmed him exiting Roberts's vehicle, Appellant responded, "I goofed," and told the detectives where they could find Roberts's body. He gave the detectives a statement in which he claimed that Roberts had collapsed on the floor of his bedroom during an argument over a telephone bill and that he had panicked and driven her body to property in Gallatin County owned by relatives of Mark Crossen, a co-worker of Appellant's, where he set it afire and attempted to conceal it under some debris.
The police found Roberts's dead and partially burned body at a salvage yard in Gallatin County. An autopsy revealed that she died as a result of asphyxia due to a compression injury to her neck. Because there was no soot in Roberts's lungs, the medical examiner concluded that she died before being set afire. The autopsy also revealed an elevated level of carbon monoxide in Roberts's blood, indicating she was exposed to carbon monoxide gas while still alive.
At trial, Appellant testified that Roberts came to his bedroom on the evening of April 2, 2000, yelling and swinging a vase at him. The argument became physical, and, according to Appellant, he accidentally choked Roberts while trying to push her away. Believing he had killed her and fearing that he would be arrested, Appellant loaded the body into the trunk of his car and drove it to Gallatin County where he set it afire. The Commonwealth presented evidence of prior statements by Appellant that conflicted with his trial testimony. Arrington testified that Appellant told her several different versions of how he killed Roberts. Richard Siegel, a jailhouse informant, testified that Appellant told him that he shook Roberts to death during an argument over a telephone bill. Samuel O'Koon, another jailhouse informant, testified that Appellant told him that he confronted Roberts after she interrupted his telephone conversation with Arrington, that he choked her, and that he believed she was dead because she urinated on the bed while he was choking her. Starrett Palmer, another cellmate, testified that he overheard the conversation between Appellant and O'Koon.
Appellant asserts that the indictment for capital kidnapping failed to specify that the victim was not released alive, thus depriving him of his rights to a proper grand jury indictment and to due process under the United States and Kentucky Constitutions. For the same reason, he asserts that the trial court did not acquire jurisdiction to try him for capital kidnapping. Appellant concedes that his trial counsel did not object to this alleged defect, RCr 8.18, but seeks review for palpable error, RCr 10.26, and points out that absence of jurisdiction can be raised at any time. Gaither v. Commonwealth, 963 S.W.2d 621, 622 (Ky.1997). The body of the indictment recited:
That on or about the 2nd or 3rd day of April, 2000, in this county and state, the above-named defendant committed the offense of Kidnapping in violation of K.R.S. 509.040 (UOR Code No. 10060), a Capital Offense punishable by imprisonment for not less than twenty (20) years in the penitentiary up to and including death, in that he unlawfully restrained Sandra Kay Roberts when his intent was to accomplish or to advance the commission of a felony offense or to inflict bodily injury or to terrorize the victim.
To charge and convict a defendant of capital kidnapping, the Commonwealth must prove, in addition to the elements required for Class B kidnapping, KRS 509.040(1), that the victim was not released alive or subsequently died as a result of the kidnapping. KRS 509.040(2). The victim's death is an essential element of capital kidnapping. See Soto v. Commonwealth, 139 S.W.3d 827, 841 (Ky.2004). As such, Appellant argues that it was palpable error for the trial court to try him for capital kidnapping based on an indictment that did not recite this element of the offense. We conclude that the indictment was sufficient in all respects.
Appellant argues that under the Fifth and Sixth Amendments to the United States Constitution, "any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311 (1999) (emphasis added). However, a defendant's substantive due process rights, under the Fourteenth Amendment, are satisfied when he is "informed of the acts alleged as criminal and the crime with which he is charged." Malone v. Commonwealth, 30 S.W.3d 180, 183 (Ky.2000). See also Wheeler v. Commonwealth, 121 S.W.3d 173, 185 (Ky.2003) (). Federal law, which was applied in Jones, requires an indictment to set forth all of the elements of an offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). As we recognized in Soto, however, "the Fourteenth Amendment has never been construed to incorporate against the states `the Fifth Amendment right to presentment or indictment by a Grand Jury.'" Soto, 139 S.W.3d at 842 (quoting Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 2355 n. 3, 147 L.Ed.2d 435 (2000)). Appellant's argument that the Equal Protection Clause of the Fourteenth Amendment requires Kentucky's grand jury right to be coextensive with the federal grand jury right is meritless. See Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 120, 28 L.Ed. 232 (1884) ().1
An indictment is sufficient under Kentucky law...
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