Garland v. Com., 1999-SC-0259-MR.

Decision Date23 October 2003
Docket NumberNo. 1999-SC-0259-MR.,1999-SC-0259-MR.
Citation127 S.W.3d 529
PartiesJohn Roscoe GARLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky
Opinion of the Court by Chief Justice LAMBERT.

Appellant, John Roscoe Garland, was convicted by a McCreary Circuit Court jury of three counts of murder and sentenced to death for each count. He appeals to this Court as a matter of right pursuant to Section 110(2)(b) of the Constitution of Kentucky.

On the night of Saturday, March 9, 1997, 26-year-old Jean Ferrier, 22-year-old Crystal Conaster, and 16-year-old April Sexton left McCreary County and went to a country music dance hall in Somerset as they did almost every Friday and Saturday night. Jean had been in a relationship with the then 54-year-old Appellant, and was currently dating Gary Roberts. Appellant's voice on an audiotape discovered after the murders stated his belief that Jean was pregnant, and that Roberts was the father. Appellant's son, Roscoe, testified at trial that about a month before the murders, his father had said he was going to kill Jean.

At the dance in Somerset that night, Jean, Crystal and April circled the parking lot because Jean was afraid Appellant would be there. While there, they met Chris Boswell, who danced with Crystal and rode home with the women after the dance. On the way home, the friends dropped off April at about 12:30 or 1:00 a.m., then drove to Gary Roberts' driveway and honked, then drove to Jean's trailer. On Sunday afternoon, the bodies of Jean, Crystal, and Chris were found in a bedroom of Jean's trailer. They had been shot to death. Jean had also been choked prior to her death.

Roscoe, the star witness against his father, testified that on the night of the murders, he and his father were going to the London Auto Auction. Due to a traffic jam, they changed plans and instead followed Jean's vehicle to her trailer. Appellant went inside, and Roscoe heard arguing. Roscoe went inside, where both Jean and his father and the interior of the dwelling appeared to be disheveled from a fight. Chris came out of the bedroom, and Appellant shot him. Appellant then shot Crystal, then shot Chris again, and then shot Crystal again. He then shot Jean.

Appellant instructed Roscoe to put the gun in a bag and hide it. The next day, Appellant told Roscoe to procure a similar gun, as everyone knew Appellant carried a gun. Appellant gave Roscoe's girlfriend money, with which she purchased another .357 magnum from Clayton Stephens.

Appellant denied committing the murders, and claimed that Roscoe was lying. He claimed that the murder weapon did not belong to him, but to Roscoe. Appellant informed officers that he had spent the fateful night with Roscoe, yet later maintained that he had gone to London to visit his ex-wife, Eula Isgrigg. Eula first's story was that she had not seen Appellant for some time before the murders, but that he had come to her home the Monday afterwards. Later, she changed her story and said that he had come to her home at about 2:00 a.m. Sunday morning. She claimed that she had first lied because she was scared.

More facts will be presented as needed to analyze Appellant's thirty-nine claims of error.

Appellant's first claim is that the trial court erred by failing to instruct the jury on the lesser-included offense of first-degree manslaughter. Defense counsel did not request this instruction, and thus the alleged error is not preserved for appellate review. In death penalty cases, however, there is an exception to the contemporaneous objection rule.1 The standard of review for an unpreserved error in such cases is as follows:

Assuming that the error ... occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed.2

We shall consider the claimed error as well as any other unpreserved errors according to the foregoing standard.

Appellant contends that he was entitled to a first-degree manslaughter instruction3 because the prosecution presented evidence of extreme emotional disturbance ("EED").4 A possible interpretation of the prosecution's evidence5 suggests that the end of the relationship with Jean could have triggered an emotional disturbance that continued uninterrupted until the murders.6 According to the evidence, Appellant had been upset since Jean terminated the relationship, started seeing Gary Roberts, and led Appellant to believe she was pregnant with Roberts' child. A month before the murders, Appellant told Roscoe he was going to kill Jean. A week before the murders, he fired shots in the direction of Jean's trailer. The afternoon prior to that fateful Saturday night, he fired shots into the ground near Jean's trailer. Appellant ultimately killed Jean and the other two victims later that night when a half-dressed Chris Boswell walked out of her trailer bedroom. This evidence, however, also suggests that Appellant's anger was sporadic after the break-up, erupting at times and receding at others, and thus not continuous as required for an EED instruction. Appellant might have argued that the sight of Chris Boswell exiting the bedroom of Jean's trailer was the triggering event, yet this arguments lack force because Chris was with Crystal, and Appellant's agitation started long before this event.

Appellant, however, might have had legitimate reasons for failing to present this EED theory and failing to request a supporting instruction. Appellant presented an alibi defense. His side of the story was that he did not commit the murders. He testified that he was not at Jean's trailer at the time of the killings, and that he had no motive for killing the victims. He claimed that it was his son, Roscoe, not he, who was lying. This testimony indicates that he was seeking complete exoneration. It would not have been unreasonable to pursue this "all or nothing" strategy rather than to permit a possible compromise verdict.7 With a steadfast denial of guilt, defense counsel could focus on the weaknesses in the prosecution's case, such as Roscoe's possibly self-serving testimony, and try to establish reasonable doubt sufficient for an outright acquittal. The pursuit of an EED theory would have tended to cast doubt on a claim of innocence. Thus, we cannot say that there was not trial strategy in defense counsel's failure to request the EED instruction, and reversal is not warranted.

Appellant's second claim is that the trial court improperly excused juror Stephanie Capps for cause. During voir dire, the juror initially stated that she didn't believe in the death penalty, and that she didn't think she could consider imposing the death penalty. The prosecutor asked her if this was based upon her "personal beliefs and convictions," and she replied affirmatively. Upon further questioning as to whether there might ever be facts "so horrible" as to make her "go against her normal feelings," she stated,

I don't know. I don't know—I think that them having to sit and suffer and live with what they done should be enough punishment for them.

The prosecutor continued this line of questioning, asking three more questions, two of which referred to "really horrible cases," until the juror conceded, "Yeah, I guess I could." The trial court excused her as unqualified.

Jurors may not be disqualified simply because they express some disagreement with the death penalty.8 Even a venire person who initially provides a disqualifying response should not be excused if further examination shows her to be qualified.9 An appellate court should apply an abuse of discretion standard in its review of a trial court's decision to excuse a juror for cause.10 In this case, the juror's initial opposition to the death penalty was reinforced throughout questioning. Although the juror eventually conceded, the trial court was in the best position to assess this not wholly unambivalent concession in light of the juror's demeanor and literal answers. Given Capps' continued opposition and ambivalence, the trial court did not abuse its discretion in dismissing her for cause.

Appellant's third claim of error, which is not preserved, is that the trial court erred by failing to include a life without parole ("LWOP") instruction in the penalty phase. The LWOP penalty was in effect at the time of trial but not at the time of the crimes.11 In Commonwealth v. Phon,12 this Court held that LWOP was a mitigating penalty and could therefore be applied retroactively to capital crimes pursuant to KRS 446.110 with the unqualified consent of the defendant.13 The defendant's consent serves as a waiver of any claim of an ex post facto violation. Garland points out that this case is distinguishable from Phon because he was never given the opportunity to consent to the inclusion of LWOP in the sentencing range. However, absent a defendant's express consent, the penalty is not authorized, and thus Appellant's claim must fail.14

Appellant's fourth claim, which is not preserved, is that the trial court violated RCr 9.74, which requires that any information given to the jury after it has retired for deliberation be in open court in the presence of the jury, the defendant, and counsel (or after reasonable notice to counsel and the...

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