Furnish v. Com.

Decision Date21 November 2002
Docket NumberNo. 1999-SC-0676-MR.,1999-SC-0676-MR.
Citation95 S.W.3d 34
PartiesFred FURNISH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtSupreme Court of Kentucky
Opinion of the Court by Justice GRAVES.

Appellant, Fred Furnish, was convicted in the Kenton Circuit Court of murder and was sentenced to death. In addition, Appellant received enhanced sentences of thirty years for first-degree burglary, life imprisonment for first-degree robbery, ten years for theft by unlawful taking over $300, and ten years for obtaining money by fraud, by virtue of his being found to be a first-degree persistent felony offender. He appeals to this Court as a matter of right.

On the afternoon of Thursday June 25, 1998, 66-year-old Jean Williamson was discovered dead in her home. Williamson's body was found in a kneeling position, leaning over the bathtub, in the master bathroom. Williamson was fully clothed and blood was found in the master bedroom, indicating that her body had been moved into the bathroom after death. An autopsy revealed the cause of death to be strangulation, and a washcloth is believed to have been the murder weapon. A search of the crime scene revealed no forced entry and no identifiable fingerprints. Williamson's bedroom, as well as the bedroom of her daughter, Gail, were ransacked and jewelry and credit cards were stolen. On August 14, 1998, Appellant was indicted in the Kenton Circuit Court for murder, first-degree robbery, burglary, receiving goods and services by fraud, theft by unlawful taking, and for being a first-degree persistent felony offender.

At trial, defense counsel conceded that Appellant was a "thief and a burglar," and that he had been in the Williamson residence on the day of the murder, but denied that Appellant murdered Williamson. It was the defense theory that Appellant and another person had intended to burglarize the Williamson residence but that this other "mystery person" is the one who murdered Williamson.

The Commonwealth introduced evidence that Appellant, who was employed by Kiwi Carpet Cleaners, had been in the Williamson residence on May 19th, approximately one month before the murder. In fact, the indictment for theft by unlawful taking over $300 related to jewelry that Appellant stole from the Williamson residence while he was there cleaning the carpets on May 19th. In addition, on the day of the murder, several neighbors observed a man, later identified as Appellant, walking near the Williamson residence. Police recovered Williamson's jewelry from numerous acquaintances of Appellant. Further, video surveillance tapes from several area banks depicted Appellant using Williamson's ATM card to obtain cash in the hours following her death.

On appeal, Appellant raises numerous allegations of error, many of which are unpreserved. For convenience, we have categorized these issues into five sections. To the extent that any error is unpreserved, it has been reviewed in accordance with the standard set forth in Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1989), overruled, in part, St. Clair v. Roark, Ky., 10 S.W.3d 482 (1999), i.e., whether there was a reasonable justification or explanation for defense counsel's failure to object, and whether the totality of the circumstances is persuasive either that the defendant would not have been found guilty of a capital offense or that he would not have received the death sentence but for the unpreserved error. See also Tamme v. Commonwealth, Ky., 973 S.W.2d 13 (1998), cert. denied, 525 U.S. 1153, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999).

After reviewing the record and hearing oral argument, we affirm Appellant's convictions. However, because Appellant was erroneously denied an instruction on life without the benefit of probation or parole, we remand this matter to the Kenton Circuit Court for a new penalty phase in accordance with this opinion. As such, we need not address those issues pertaining to the penalty phase which are not likely to reoccur on remand.

I. PRETRIAL ISSUES
1. Indictment

Appellant argues that the grand jury indictment was defective because it failed to state the culpable mens rea for the charges of murder, receiving goods and services by fraud, and theft by unlawful taking over 8300. We have repeatedly held that an indictment is sufficient if it fairly informs the defendant of the nature of the crime with which he is charged. Stephenson v. Commonwealth, Ky., 982 S.W.2d 200 (1998); Thomas v. Commonwealth, Ky., 931 S.W.2d 446 (1996); Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977). At his arraignment, Appellant stated that he understood the charges contained in the indictment. At no point did Appellant allege that notice was insufficient. Reversal is not warranted on this issue.

Appellant also contends that because the Grand Jury failed to include aggravating circumstances in the murder indictment the prosecution was precluded from seeking the death penalty. We disagree. The indictment, which was returned on August 14, 1998, clearly charged Appellant with "Murder, a capital offense, when he caused the death of Jean Williamson, by strangling her to death, in violation of KRS 507.020 .... " Moreover, on the same date that the indictment was returned, the Commonwealth filed a formal "Notice of Aggravating Circumstances," which stated that the case would be prosecuted as a capital case based on the aggravating circumstances of the murder being committed while Appellant was engaged in the commission of first-degree robbery and first-degree burglary. At no time prior to this appeal did defense counsel complain of insufficient notice and Appellant may not claim such at this time.

2. Denial of Continuance

Appellant argues that he was prejudiced by the trial court's refusal to grant a 35-day continuance. Appellant alleges that the trial court was more concerned with judicial economy and Appellant's trial interfering with other matters on the docket than with ensuring that Appellant received "meaningful access to justice." Appellant contends that this denial of a continuance violated his right to both federal and state due process standards by failing to provide him with the opportunity for complete evaluation, preparation, and presentation of a defense. Hunter v. Commonwealth, Ky., 869 S.W.2d 719, 722-24 (1994); see also Ake v. Oklahoma, 470 U .S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The trial court's extensive order demonstrates that this issue lacks merit.

Appellant was indicted on August 24, 1998, and the trial court initially scheduled a trial date of January 26, 1999. In December, defense counsel moved to continue the trial until June 1999, to allow more time for preparation. Following a hearing, the trial court granted a continuance until April 13, 1999. Throughout numerous pretrial hearings, counsel was reminded that the April trial date was "firm."

On March 31, 1999, a hearing was held concerning the Commonwealth's intent to introduce KRE 404(b) evidence. At the close of the hearing, the Court afforded the parties an opportunity to file supplemental authority prior to 2:00 p.m. on April 1st. This extension of time was a result of defense counsel's assertion that certain materials needed to be presented ex parte to avoid revealing confidential defense matters to the Commonwealth. The record indicates that after defense counsel failed to file any additional materials, counsel's office was called and the trial court was informed that the defense had decided not to file any supplemental pleadings.

However, on April 5th, the defense filed a "Supplemental Affidavit in Support of Motion to Continue." The affidavit did not relate to any confidential matters as previously represented by defense counsel, but rather reasserted counsel's "bald assertions" that the defense had been too busy to prepare for trial and needed additional time.

On April 7, 1999, the trial court entered an 18-page order detailing the procedural history of the case and extensively addressing the continuance issue. The Court noted that although 35 days was, facially, a minimal extension, it believed defense counsel was aware that the request was not realistic, in that on the day counsel sought to have the trial begin, eight other jury matters were scheduled, most of which involved representation by defense counsel's own office; that the courthouse was scheduled to move in June; that another death penalty case scheduled for September 1999 would likely delay the trial in this case until late Fall 1999 or Winter 2000; and that, in fact, if Appellant's trial was scheduled during the same quarterly jury panel as the other death penalty case, defense counsel would object if one panel was utilized for two death penalty proceedings. Thus, the trial court ruled the inconvenience to the litigants, witnesses, counsel and the court was significant.

Furthermore, the trial court acknowledged that although there had only been one prior continuance, a ten-month period to prepare a death penalty case was sufficient and additional continuances should not have been necessary. The trial court opined that perhaps the public defender's office was not engaging in an efficient use of time.

The trial court further stated that the record was devoid of any evidence indicating the delay was caused by Appellant himself and noted that Appellant was represented by three competent attorneys. Consequently, the trial court concluded that defense counsel's request for additional time to...

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