Gavow v. Com.

• Decision Date: 26 October 2000
• Docket Number: No. 1998-SC-0377-MR.,No. 1998-SC-0441-MR.,1998-SC-0377-MR.,1998-SC-0441-MR.
• Citation: Gavow v. Com., 34 S.W.3d 63 (Ky. 2000)
• Parties: Cheryl Lynn GABOW, Appellant, v. COMMONWEALTH of Kentucky, Appellee. James Cecil, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

34 S.W.3d 63

Cheryl Lynn GABOW, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

James Cecil, Appellant, v.Commonwealth of Kentucky, Appellee.

No. 1998-SC-0377-MR.

No. 1998-SC-0441-MR.

Supreme Court of Kentucky.

October 26, 2000.

As Amended November 8, 2000.

Rehearing Denied January 25, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard Hoffman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for AppellantCheryl Lynn Gabow(1998-SC-0377-MR).

A.B. Chandler, Ill, Attorney General, Elizabeth A. Heilman, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel. for Appellee Commonwealth of Kentucky(1998-SC-0377-MR).

Lawrence F. Smith, Smith Law Office, Radcliff, Counsel for AppellantJames Cecil(1998-SC-0441-MR).

A.B. Chandler, III, Attorney General, Ian G. Sonego, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for

AppelleeCommonwealth of Kentucky(1998-SC-0441-MR).

COOPER, Justice.

Cheryl Gabow and her domestic companion, David Brangers, hired James Cecil and Samuel McMillen to kill Gabow's husband, Frederick Gabow.On February 17, 1995, McMillen shot and killed Frederick Gabow at Mr. Gabow's residence in Radcliff, Kentucky.McMillen, Cecil, Brangers and Cheryl Gabow all confessed to their respective involvements in the killing and all were indicted for murder.Prior to trial, Brangers was allowed to plead guilty to criminal facilitation of murder and to accept a sentence of five years in prison in exchange for his testimony against the others.The charge against McMillen was severed when a question arose as to his mental competency to stand trial.James Cecil and Cheryl Gabow were then tried jointly and both were convicted of murder and sentenced to life in prison without benefit of probation or parole for twenty-five years.They appeal to this Court as a matter of right.Ky. Const. § 110(2)(b).

I.FACTS.

David Brangers was the only participant in the conspiracy who testified at trial.According to Brangers, Cheryl and Frederick Gabow were in the process of a divorce; and Cheryl believed that if her husband died before the divorce became final on February 20, 1995, she could collect the proceeds of his $200,000.00 National Guard life insurance policy.Cheryl Gabow agreed to pay Cecil and McMillen $10,000.00 of the life insurance proceeds to kill Frederick Gabow.On the night of February 17, 1995, local police officers came to the Brangers/Gabow residence and advised that Frederick Gabow had been shot and was at the hospital.On February 18th, Cecil and McMillen came to the Brangers/Gabow residence and described how McMillen had shot Frederick Gabow through a window of his residence, then entered the residence and shot him again.According to Brangers, Cheryl was upset that her husband was still alive (he died the next day), because "he was not supposed to suffer."

In her confession, Cheryl Gabow admitted hiring Cecil and McMillen to kill her husband so that she could collect the life insurance proceeds.However, she also claimed that several days before the murder, she advised both Cecil and McMillen that she"didn't want it to happen, that she didn't want them to do anything," and that she did not see Cecil again until the day after the murder.Later in her confession, she claimed to have had a subsequent conversation only with Cecil, in which she repeated her renunciation and in which Cecil also renounced any further interest in the plot.Cecil's confession does not mention a renunciation either by himself or by Cheryl Gabow.His version of this; conversation was that he told Cheryl that McMillen had gotten drunk and disappeared with the gun; that Cheryl told him that "it needed to be done" before Monday because she was going to sign the divorce papers on Monday or Tuesday; and that he(Cecil) promised her it would be done before Monday.Brangers claimed to have been present during this conversation.He testified that upon being advised that McMillen was drunk and had disappeared with the gun, Cheryl remarked that things were getting "sticky" and "maybe we should back off," whereupon Cecil responded that the job would be done even if he(Cecil) had to stab Mr. Gabow to death with a knife.

In their confessions, Cecil and McMillen admitted that they agreed to kill Frederick Gabow in exchange for payment of $10,000.00; that Cecil obtained the murder weapon from a friend of his brother; and that Cecil drove McMillen from Elizabethtown to the victim's residence in Radcliff where McMillen shot and killed Gabow.At trial, the Commonwealth relied primarily on the testimony of Brangers and the redacted confessions of McMillen, Cecil and Cheryl Gabow.¹McMillen's confession was redacted to delete any reference to either Cecil or Gabow; Cecil's confession was redacted to delete any reference to Gabow; and Gabow's confession was redacted to delete any reference to Cecil.Thus, the confessions of both Cecil and Gabow were redacted to delete any reference to the conversation in which Gabow claimed to have renounced her role in the conspiracy.

The defense of voluntary and complete renunciation is defined in KRS 502.040(2):

A person is not guilty under KRS 502.010 or 502.020 for an offense committed by another person when:

. . .

(2) Prior to the commission of the offense, he manifests a voluntary and complete renunciation, as defined in KRS 506.060, of his criminal purposes and:

(a) Deprives his prior effort of its effectiveness in such commission; or

(b) Gives timely warning to the proper law enforcement authorities or otherwise makes proper effort to prevent commission of the offense.(Emphasis added.)

At the conclusion of the Commonwealth's case-in-chief, Gabow announced her intention to introduce her own unredacted videotaped confession, including the portion pertaining to her claimed renunciation.²Since Gabow's unredacted confession inculpated Cecil, the trial judge bifurcated the remainder of the trial per Kinser v. Commonwealth, Ky., 741 S.W.2d 648(1987) so that Cecil's case could be tried to a conclusion before the introduction of Gabow's defense.Cecil was convicted and his trial proceeded to the penalty phase, during which he was permitted to introduce his own unredacted videotaped confession,³ presumably in support of his claim of the accomplice mitigating factor.KRS 532.025(2)(h)5.At the conclusion of the penalty phase of Cecil's trial, the guilt phase of Gabow's trial was resumed and her case was tried to a conclusion.Gabow did not testify in her own behalf, but introduced her unredacted videotaped confession in support of her defense of renunciation.

II.CECIL'S APPEAL.

Cecil asserts six errors on appeal: (A) denial of his right to a speedy trial; (B) failure to sever his trial from that of Gabow; (C) admission at trial of the confessions of McMillen and Gabow; (D) failure to instruct on criminal facilitation of murder as a lesser included offense; (E) separation of jurors and ex parte communication between the judge and jurors during jury deliberations; and (F) ineffective assistance of counsel.This last claim was not presented to the trial judge for consideration, thus is not ripe for consideration on appeal.Humphrey v. Commonwealth, Ky., 962 S.W.2d 870, 872(1998).

A.Speedy trial.

Cecil was arrested on February 28, 1995 and indicted on April 26, 1995.His trial did not begin until February 23, 1998.During the interim, Cecil's counsel filed two motions for a speedy trial, first on August 6, 1996 and again on March 31, 1997.On May 12, 1997, Cecil filed a pro se statutory speedy trial demand under KRS 500.110.⁴Meanwhile, McMillen, who was a juvenile when the murder was committed, had filed a petition for a writ of prohibition in the Court of Appeals⁵ challenging the constitutionality of KRS 635.020(4), the statute under which he was transferred from juvenile court to circuit court to stand trial as an adult.When that petition was denied, McMillen exercised his right under Section 115 of our Constitution to appeal that denial to this Court.⁶A stay of proceedings was entered on October 24, 1995 and remained in effect until April 24, 1997.⁷On May 21, 1997, the trial court entered an order scheduling the trial for October 27, 1997.On October 8, 1997, McMillen filed a motion for a continuance primarily on grounds that his expert witness was unavailable for the October 27, 1997 trial date.On October 17, 1997, McMillen filed a motion for a psychiatric examination to determine his mental competency to stand trial; and on October 20, 1997, McMillen filed an additional motion to discover the personnel records of those officers of the Radcliff Police Department who had participated in investigating the murder and obtaining the defendants' confessions.During the last two weeks before trial, all four defendants filed motions for severance and motions to exclude the death penalty as a potential punishment.On the morning of trial, an order was entered continuing the trial date generally.The record does not reflect the reason for the continuance or that any of the defendants objected to the continuance.The trial was subsequently rescheduled for February 23, 1998.

Cecil's statutory speedy trial claim under KRS 500.110 is easily discarded.That statute applies only when a defendant is incarcerated for one offense and a detainer has been lodged against him to answer for another offense.Cf.Huddleston Jennings, Ky.App., 723 S.W.2d 381, 383(1986).It does not apply where, as here, a defendant is seeking a speedy trial of an offense for which he is being held in pre-trial incarceration.Under that circumstance, a speedy trial demand is treated as an assertion of the right to a speedy trial guaranteed by the Sixth Amendment of the United States ConstitutionandSection 11 of the Constitution of Kentucky.

Four factors are...