Harry v. Commonwealth of Ky.

Decision Date27 October 2011
Docket NumberNo. 2006–SC–000881–MR.,2006–SC–000881–MR.
Citation348 S.W.3d 627
PartiesWilliam Harry, MEECE, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
CourtSupreme Court of Kentucky


Kathleen Kallaher Schmidt, Appeals Branch Manager, Donna Lynn Boyce, Appellate Branch Manager, Thomas More Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.Jack Conway, Attorney General of Kentucky, William Robert Long, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice SCOTT.

I. Introduction

William Harry Meece (Meece) appeals from the judgment of the Warren Circuit Court sentencing him to consecutive twenty-year terms of confinement (for a total of forty years) on two convictions of robbery and burglary, both of the first degree, and to death for each of three convictions for murder.

According to evidence introduced at trial, Meece shot and killed Joe Wellnitz, his wife, Beth, and their son Dennis in their home in Columbia, Adair County, Kentucky in the early morning hours of February 26, 1993, at the behest, and with the assistance of, their daughter, Meg Wellnitz Appleton (Wellnitz). The murders occurred during the commission of a robbery and burglary (both in the first degree) and were otherwise committed for profit.

In February 2003—ten years after the murders—an Adair County Grand Jury indicted Meece and Wellnitz by separate, consecutive indictments for the burglary, robbery, and murder of the Wellnitz family. Thereafter, the Commonwealth elected to try Meece first.

Meece's first trial began in November 2004, but ended with the tender of his guilty plea (following voir dire) upon the Commonwealth's recommendation of a sentence of life without parole for twenty-five years. This plea, however, was later set aside upon Meece's motion and new counsel were then appointed. Thereafter, the parties agreed to a transfer of venue to the Warren Circuit Court. Trial was rescheduled for August 21, 2006 and concluded with the sentencing verdict on September 18, 2006. He was convicted and sentenced as indicated.

II. Standard of Review of Unpreserved Issues in Death Penalty Appeals

Meece seeks review of forty-five listed issues, “some of which comprise numerous sub-issues, and many of which were not preserved for review pursuant to RCr 9.22 or 9.54.” Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky.1990). “Indeed, more than a few ... were not even raised below.” Id.

Thus, in other instances they would be treated as unpreserved. However, [w]here the death penalty has been imposed, we nonetheless review allegations of these quasi errors.”

[If] the so-called 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; [but] (2) if there is no [such] reasonable explanation, [we then address] 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. All unpreserved issues are subject to this analysis.

Id. (internal citations omitted); See also Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky.2003).

“The rationale for this rule is fairly straightforward. Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers.” Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky.1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice process. Id.; See also KRS 532.075(2) (“The Supreme Court shall consider ... any errors enumerated by way of appeal.”).

Preserved errors are reviewed under normal standards. As noted in Brown v. Commonwealth, “preserved evidentiary and other non-constitutional errors will be deemed harmless under RCr 9.24 and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), if we can say with fair assurance that the judgment was not substantially swayed by the error.” 313 S.W.3d 577, 595 (Ky.2010). “Our inquiry is not simply ‘whether there [is] enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’ Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky.2010) ( quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). “As to those preserved constitutional errors which are subject to harmless error review, they must be shown to be ‘harmless beyond a reasonable doubt’ in order to be deemed harmless.” Id.

Moreover, we review a trial court's evidentiary rulings for an abuse of discretion. Penman v. Commonwealth, 194 S.W.3d 237, 245 (Ky.2006). “The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

On appellate review of a trial court's denial of a motion to suppress, we apply the two-step process set out in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by Kentucky in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998). We review the trial court's findings of fact under the substantial evidence standard. Id. at 8. Under this standard, the trial court's findings of fact will be deemed conclusive if supported by substantial evidence. RCr 9.78. Finally, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).

III. Analysis
A. Evidentiary Issues—Evidence Admitted at Trial
1. Meece's Videotaped Statements of November 15 and December 15, 2004

a. KRE 410—the Statements

Meece first contends that the trial court should have suppressed his two videotaped statements made subsequent to his entering into and executing a plea agreement with the Commonwealth on November 15, 2004.1 Following an evidentiary hearing, the trial court overruled Meece's motion to prohibit the introduction of these statements. Pertinent facts follow.

On November 15, 2004, several days into jury selection during his first trial, Meece entered into, and executed, a plea agreement with the Commonwealth, under the terms of which the Commonwealth would recommend that Meece be sentenced to life without the possibility of probation or parole for twenty-five years (LWOP–25) and Meece agreed to give truthful statements regarding his involvement in the Wellnitz family murders and to testify against his co-defendant, Wellnitz.2 According to his testimony at trial, Meece entered into the plea bargain as a subterfuge to get a new trial and new attorneys.

Immediately following the execution of the plea agreement, Meece gave his first video statement detailing his involvement in the Wellnitz murders. This statement established that Meece entered the Wellnitz family home in the early morning hours of February 26, 1993, and shot and killed the Wellnitz family at the encouragement of, and with the assistance of, their daughter, Meg Wellnitz Appleton (Wellnitz).3 The statement also detailed the circumstances under which Wellnitz purchased a Browning Hi–Power 9mm pistol for him from Sports Unlimited in Lexington, Kentucky. Meece gave his second video statement on December 15, 2004, also detailing Wellnitz's involvement in the murders.4

Following execution of the plea agreement and following his statement of November 15, 2004, Meece entered a formal guilty plea in the trial court. At the time of the plea, the trial court informed Meece that “the agreement is conditioned upon you providing a truthful, recorded statement,” and on “cooperating fully with the Commonwealth in the prosecution of Wellnitz. Meece was also told that [i]f for any reason [you fail] to abide by the terms set forth, I have just read, said failure shall be grounds to set aside the Commonwealth's offer on a plea of guilty and this matter shall proceed to trial by jury.” Thereafter, the court proceeded with the plea colloquy and asked Meece if he was satisfied with the services of his attorney and Meece replied “I believe my complaints with my original representation, Ms. Niemi, are well recorded on the record.” 5

The court then asked Meece if he was pleading guilty due to threats, promises, or pressure from others, and Meece responded, “I believe the pressure should be obvious, but I am pleading guilty of my own free will.” Following the full colloquy, the court found Meece intelligently, knowingly, and voluntarily waived his rights, and that there was a factual basis for the plea of guilty. The court did not, however, formally accept the plea, but set final sentencing for February 22, 2005.

Several months later, Meece—asserting the visitation with his children had been delayed and terminated early—moved to withdraw his guilty plea.6 Thereafter, the judge ordered a competency evaluation and, after a hearing, ruled that he was competent to stand trial and allowed the withdrawal of the guilty plea.

Following the withdrawal, Meece filed a pro se motion to suppress the two video statements of November 15 and December 15, 2004. He was joined in this motion by his new counsel. The matter was heard by the court on July 31, 2006, after which the trial court ruled that the post-plea statements given by Meece on November 15 and December 15, 2004 were admissible. These statements were introduced by the Commonwealth against Meece at trial.7

Consistent with his arguments at trial, Meece contends that KRE 410, as interpreted by this court in Roberts v. Commonwealth, 896 S.W.2d 4 (Ky.1995), prohibited the admission of his ...

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