Gall v. Com., 78-CR-097

Citation607 S.W.2d 97
Decision Date02 September 1980
Docket NumberNo. 78-CR-097,78-CR-097
PartiesEugene William GALL, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court (Kentucky)
OPINION OF THE COURT

Eugene W. Gall, Jr., was convicted of murder and sentenced to death pursuant to the verdict of a jury under the two-stage trial procedure prescribed by KRS 532.025. In this appeal he advances many alleged errors and irregularities, contending that each and all of them require a reversal of the judgment. We shall limit our discussion to those we do not consider to be patently groundless.

FACTUAL BACKGROUND

At about 7:35 a. m. on April 5, 1978, Lisa Jansen, a 12-year-old schoolgirl, left her home in suburban Cincinnati, Ohio, for school. She was missed very shortly thereafter when she failed to arrive at the home of a friend she had planned to meet on the way and it was ascertained that she had not gone directly to school. At about 9:25 a. m. that morning Mrs. Connie Puckett, while driving her automobile along Kentucky Highway 16 from Verona, Kentucky, toward her home in Walton, Kentucky, noticed a red jacket lying on the side of the highway near the intersection of Stephenson-Mill Road. She stopped and retrieved it, thinking that probably it belonged to one of the students attending the elementary school at Verona. She was positive that the jacket had not been there when she passed the same place a few minutes earlier on her way to Verona. Upon resuming her trip homeward she observed an open schoolbook lying in the road, stopped and picked it up. It bore the name of Lisa Jansen, and when Mrs. Puckett arrived back in Walton she telephoned the school at Verona. The school principal advised her that no one by the name of Lisa Jansen was enrolled there, but later in the day he called back and told Mrs. Puckett that a television newscast had reported a Lisa Jansen as missing. Mrs. Puckett then reported her discovery of the jacket and schoolbook to the Cincinnati police.

The distance from Lisa's home in Ohio to the Kentucky state line at Cincinnati was 10.9 miles, and from the state line southward via Interstate 75 to the place near Stephenson-Mill Road where her body was found the next morning is 22.6 miles. Gall resided at Hillsboro, Ohio, about 45 miles the other side of the Jansen home.

At about 10:15 a. m. on April 5, 1978, a man later identified as the appellant, Gall, entered a small grocery store at the crossroads village of Gardnersville, 17 miles or so by public roads from the vicinity of Stephenson-Mill Road (which consists of a loop leading off and then back to Highway 16), and robbed the storekeeper and her customers at the point of a .357-gauge magnum stainless-steel revolver. The storekeeper, who was familiar with this type of weapon, observed from the exposed portions of the magazine that it was loaded with hollow-point cartridges. As soon as the robber left, she telephoned the local headquarters of the Kentucky State Police and reported the incident. Within a matter of minutes Gall was encountered by Detective Joe Whelan, who turned around and followed, and then by Trooper Gary Carey, who had alighted from his cruiser and was attempting to block the highway. As Carey signalled the driver to halt Gall shot him once, got out of the Ford and shot him again, and then sped onward with Whelan emptying his gun into the rear of the fleeing car. Almost immediately other police officers took up the chase, and Gall was finally brought to bay when he attempted to make a U-turn in the town of Dry Ridge and one of the troopers rammed his cruiser into the Ford. The .357 revolver was lying on the floor of the Ford. Also on the floorboard of the Ford automobile the officer found a Shortly following his arrest Gall, by reason of his police record, became a suspect in connection with the disappearance of Lisa Jansen. In 1970 he had been charged with several counts of rape and armed robbery in southern Ohio, had been found mentally incompetent to stand trial, and had spent some 19 months in a mental institution at Lima, Ohio, after which he entered a plea of guilty to those charges and spent five years in a state penitentiary at Lebanon, Ohio. He was 31 years of age at the time of Lisa Jansen's murder.

cigar box and $112.88, the money taken at the store in Gardnersville. Gall had the further sum of $42.84 on his person. Subsequent laboratory tests established that a bullet removed from Trooper Carey's person had been fired from the revolver found in Gall's automobile.

PRETRIAL PROCEEDINGS

Lisa's body was found early on the morning of April 6, 1978. Gall, already under arrest, was charged with her murder and was indicted for that offense by the Boone County grand jury on April 27, 1978. At his arraignment on the same day, and following a plea of not guilty, the trial court granted the Commonwealth's motion for permission to procure various physical samples from Gall's person, including hair, saliva, fingerprints and blood. Counsel for Gall objected only with respect to blood sample, stating that he had no objection as to the hair, saliva and fingerprints. Thus we consider only the matter of the blood sample.

The Commonwealth's motion for permission to obtain these samples was supported by affidavits of the prosecuting attorney and a detective of the Kentucky State Police.

A divided court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), held it permissible for a police officer acting with probable cause under exigent circumstances to have a blood sample taken by a physician from an arrested drunk-driving suspect. The 5th Amendment protection against self-incrimination was held inapplicable because the majority of the court did not consider a surrender of blood as having testimonial import. 384 U.S. at p. 765, 86 S.Ct. at p. 1832. The 4th and 14th Amendment protection against unreasonable search and seizure did apply, but was held not to have been violated. In the absence, however, of exigent circumstances justifying immediate action without a warrant, the court indicated that the same precautions would be required as in the instance of a search warrant. That is, the justification must be determined by an informed, detached and deliberate judicial act. 384 U.S. at p. 770, 86 S.Ct. at p. 1835.

In this instance the trial court had before it an indictment charging Gall with the murder of Lisa Jansen and affidavits by the Commonwealth's Attorney and a detective of the Kentucky State Police stating that the physical samples were needed "for purposes of completing their investigation into the rape and death of Lisa Jansen." It seems to us that the relevance and importance of such evidence in a case involving rape are self-evident. We therefore hold that the order granting permission to obtain it from Gall's person was reasonable and was a valid basis for the subsequent admission of testimony derived from its analysis. Cf. Thompkins v. State, Ind., 383 N.E.2d 347, 351 (1979).

Also on the day of the arraignment the trial court, by agreement of the parties, appointed Dr. Robert Noelker, a psychologist, to examine Gall for the purpose of determining (a) whether he was mentally competent to stand trial and (b) whether at the time of the offense he had the mental capacity to appreciate the criminality of his conduct and to conform his conduct to the law. Contemporaneously the Commonwealth secured the services of Dr. Lee Chutkow, a psychiatrist, for the purpose of determining his competence to stand trial. A hearing on the first of these questions was held on May 26, 1978, following which the court found Gall to be competent and set the case for trial on the merits.

On September 6, 1978, defense counsel moved for a change of venue on the ground that by reason of local publicity Gall could not be given a fair trial in Boone County or in any of the surrounding northern-Kentucky counties. We have examined the affidavits, counteraffidavits and exhibits (numerous newspaper articles) filed in connection with this motion and are of the opinion that the trial court did not abuse its discretion in declining a change of venue.

Gall cites several U. S. Supreme Court cases in which state court convictions were overturned because the "trial atmosphere . . . had been utterly corrupted by press coverage." Cf. Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), prejudice was presumed from the circumstances under which the trials were held. "In those cases the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings." Murphy, supra, at 421 U.S. 799, 95 S.Ct. 2035. Here, there was no repeatedly-televised confession of the accused as in Rideau, and no "circus atmosphere" or "courthouse given over to accommodate the public appetite for carnival" as in Estes or Sheppard. The juror-exposure to media accounts of Gall's prior convictions or of his being charged with the murder of Lisa Jansen do not support a presumption that he could not or did not have a fair trial in Boone County. Cf. Murphy, supra, at 421 U.S. 799, 95 S.Ct. at 2035; Spirko v. Commonwealth, Ky., 480 S.W.2d 169, 171 (1972).

The constitutional standard of fairness required that Gall have "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). In Irvin, which was the United States Supreme Court's...

To continue reading

Request your trial
142 cases
  • Com. v. Holcomb
    • United States
    • United States State Supreme Court of Pennsylvania
    • 4 octobre 1985
    ...used in certain other statutes held unconstitutionally vague. See Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976); Gall v. Commonwealth, 607 S.W.2d 97 (Ky.1980) ("substantial history of serious assaultive convictions"). This limitation relating to the qualitative connection between past......
  • Brown v. Com., No. 2006-SC-000654-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 17 juin 2010
    ...Cir.1996); Thompson v. Commonwealth, 147 S.W.3d 22, 55 (Ky.2004); Ice v. Commonwealth, 667 S.W.2d 671, 679 (Ky. 1984); Gall v. Commonwealth, 607 S.W.2d 97, 113 (Ky.1980). The U.S. Supreme Court has not specifically addressed what standard of persuasion is required by the Eighth Amendment in......
  • State v. Addison
    • United States
    • Supreme Court of New Hampshire
    • 6 octobre 2010
    ...v. State, 648 P.2d 1251, 1260 (Okla.Crim.App.1982), cert. denied, 459 U.S. 1155, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983) ; Gall v. Com., 607 S.W.2d 97, 113–14 (Ky.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 824 (1981), and overruled on other grounds by Payne v. Com., 623 S.W......
  • Tichnell v. State, 3
    • United States
    • Court of Appeals of Maryland
    • 1 septembre 1982
    ...... See Gall v. Com., 607 S.W.2d 97 (Ky.1980); King v. State, 421 So.2d 1009 (Miss.1982); State v. Copeland, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT