Halvorsen v. Com., s. 84-SC-39-M
| Decision Date | 18 December 1986 |
| Docket Number | 84-SC-61-MR,Nos. 84-SC-39-M,s. 84-SC-39-M |
| Citation | 730 S.W.2d 921 |
| Parties | Leif HALVORSEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Mitchell L. WILLOUGHBY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Donna Boyce, Kathleen Kallaher, Asst. Public Advocates, Frankfort, for appellant Halvorsen.
Larry H. Marshall, Edward C. Monahan, Asst. Public Advocates, Frankfort, for appellant Willoughby.
David L. Armstrong, Atty. Gen., David A. Smith, Rickie L. Pearson, Asst. Attys. Gen., Frankfort, for appellee.
Mitchell L. Willoughby and Leif Halvorsen were convicted of three counts of murder. They were sentenced to death on each of two counts and life imprisonment on the third count. Halvorsen was additionally convicted of carrying a concealed deadly weapon for which he was sentenced to twelve months' imprisonment and fined $500. We affirm.
The bodies of Joe Norman and Joey Durrum were found on the side of the Brooklyn Bridge on the Jessamine-Mercer County line. The body of Jacqueline Greene was found in the Kentucky River below the bridge. Each of the victims had been shot to death. David Warner, who lived on the Jessamine County side of the Brooklyn Bridge, became suspicious when he noticed a light blue Ford van and a dark pickup truck lurking at various points around the bridge. At one point, the pickup truck parked on the bridge, a person got out of the passenger side, and Warner heard a big splash. Forty-five minutes later, Warner heard a noise that sounded like a car hitting a guardrail or a sign. He looked out to see the blue van and the pickup truck speeding off across the bridge toward Lexington. Warner called the police.
When the police arrived, they found two of the victims on the side of the bridge, each bound with a blue-and-yellow rope that was attached to a heavy rock. The third victim was found in the river below the bridge, wrapped in a sheet that was also bound with a blue-and-yellow rope and attached to a heavy rock. A traffic sign near the bridge had been knocked over by a vehicle. It had paint smears on it and broken glass lying at its base.
Officer William Foekele testified that around 1:30 p.m., on January 13, he was on Loudon Avenue in Lexington, looking for a car involved in another investigation, when he noticed a blue Ford van stopped at 215 Loudon Avenue. He wrote down the van's license number. On the following day, police learned that two of the victims had lived in the house at 215 Loudon Avenue. A truck belonging to the third victim was found parked at the house. When police entered, they found blood at various places in the house.
Upon learning that a blue Ford van was seen in the area where the bodies were discovered, Officer Foekele suspected that it was the same vehicle which he had seen near the house at 215 Loudon the day before. A registration check revealed that the van was registered to Halvorsen. Foekele then went to Halvorsen's home but saw no vehicles in the driveway. A neighbor indicated that two men and a woman had just left in a blue pickup truck and would probably return shortly. Police staked out all routes to the house, located and cornered the truck, and demanded that its occupants exit. The driver, Mitchell, jumped out immediately. Halvorsen, after hesitating, slid out of the passenger side. The officers found a .38-caliber revolver where he had been sitting. As the officers approached the truck, the woman, Susan Hutchens, threw her hands up and said, "The gun's in my purse." A 9-millimeter pistol was found sticking out of her purse.
A ballistics expert positively identified several of the projectiles recovered from the victims' bodies as having come from the revolver and semi-automatic pistol found in the truck. Two 9-millimeter shell casings were additionally recovered at 215 Loudon. Fingerprints from both Willoughby and Hutchens were found on the 9-millimeter pistol. Hutchens' fingerprints were found on the refrigerator at 215 Loudon as well.
Also recovered from 215 Loudon, by the police, was a plastic blue-and-yellow rope identical to that found tied around the victims' bodies. Paint samples taken from Halvorsen's van matched the paint smears found on the highway sign near the bridge. A comparison between pieces of glass taken from a broken headlight on Halvorsen's van and pieces of broken headlight recovered from the base of the highway sign proved them to have come from the same headlight. Lastly, blood samples from Halvorsen's van were positively identified as having come from one of the victims.
At trial, Hutchens testified that in December 1982, she and Willoughby moved into the house at 215 Loudon, and Willoughby was employed by the victim, Joe Norman, to help him remodel the house. Willoughby and Hutchens moved out a month later when Norman refused to pay Willoughby for the work he had done.
Hutchens testified that on January 13 Willoughby and Halvorsen asked her to buy ammunition for their pistols. Later that day, she decided to go visit the victim, Jacqueline Greene, who lived at 215 Loudon with Joe Norman. When she arrived, Willoughby, Halvorsen, and Norman were standing in the driveway talking. Hutchens went into the house where Greene introduced her to the victim, Joey Durrum. Willoughby, Halvorsen, and Norman then came inside when "all of a sudden" the shooting began.
Hutchens put her hands over her face, covering her eyes. She heard numerous shots. When the shooting was over, she opened her eyes to see Willoughby and Halvorsen each wielding a pistol. Norman and Durrum had fallen to the floor. Hutchens then saw Willoughby shoot Greene twice more, since she was still alive. Willoughby and Halvorsen then screamed at Hutchens to begin picking up the shell casings while they dragged the bodies of the victims through the hallway to the back door where they were placed in the van. Later, Halvorsen left in the van, and Willoughby left in the truck to get rid of the bodies.
Willoughby testified at trial in his own behalf that on January 13 he and Halvorsen went to 215 Loudon to smoke marijuana with Joe Norman. He and Norman began arguing about a cold check that Norman had given to him, when Norman poked him in the chest and threatened him with a bayonet. Willoughby then reached for his gun and began shooting. He remembered shooting Norman two or three times but did not remember shooting the other victims.
In his statements, Willoughby took all of the blame for the shootings. Halvorsen did not testify during the guilt phase. The jury found both Willoughby and Halvorsen guilty of the three murder charges, and Halvorsen guilty of carrying a concealed weapon. The penalty phase then proceeded, after which the jury returned verdicts sentencing Halvorsen and Willoughby to life imprisonment for the murder of Norman and to death for the murders of Greene and Durrum.
Some of the asserted errors are claimed by both Willoughby and Halvorsen. Each has some individual assertions of error.
Halvorsen asserts that the prosecutor, in the voir dire, emphasized that the jurors' verdict was merely a recommendation. Willoughby couched his assertion of error on the point that the prosecutor emphasized that the jury's verdict is only a recommendation, all of this to many of the jurors and specifically to eight of the jurors chosen to try the case. The first difficulty with this proposition is that our review of the voir dire does not reveal a single instance of the prosecutor's stating only recommend or merely a recommendation. Further, this is not argued by either of the appellants. The claimed error is put in terms of counting the times recommend was used during an extensive voir dire. We do not find it useful to engage in a game of counting.
The test is whether the prosecutor so minimizes the role of the jury in imposing the death sentence as to lessen the feeling of responsibility on the part of the jury in reaching such a verdict.
All of the jurors were asked: "Have you ever expressed a feeling that you could not ever give the death penalty?" and "Do you have any religious or moral or conscientious scruples against the imposition of the death penalty?"
As to the eight jurors, the following portrays a portion of the voir dire:
Ann Gish was asked:
Q. Okay. At this point, do you feel that if given an instruction by the Court you would be able to consider the death penalty as a possible alternative as a sentence?
A. I could consider it, yes.
On cross-examination, Ms. Gish was asked:
Q. You are telling the Court that you could give the death penalty?
A. I think so.
Nell Ferrell was asked on direct examination:
Q. ... you recommend the sentence to a judge if you determine whatever the sentence is, okay you make that recommendation; do you feel that you could consider the death penalty as an option ...?
A. Yes.
Mack Hurt was asked:
Q. Do you feel that you could consider giving the death penalty if you're selected as a juror?
A. I believe I could.
Mable Smith was asked:
Q. Could you impose the death penalty, consider imposing it or recommending it as a penalty if the facts justify it?
A. If the facts justify it--yes.
Louise Maxey was asked:
Q. If you are a juror in a case, in this case, and you believe from the evidence that the defendants are guilty ... and you feel that the murder is such that would justify a death penalty under the kinds of cases that you believe, okay? Could you recommend that yourself?
A. I think I could in that case, yes, sir.
Shirley Munro was asked:
Q. ... Judge Angelucci submits instructions to you which has the law in it and says the penalty is twenty years to life imprisonment or the death penalty, could you consider giving the death penalty depending on what the fact situations were?
A. Yes.
Margaret Barton was asked:
Q. Could you consider recommending the death penalty in this case if the facts warrant it?
A. If the facts...
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