Holland v. Com.

• Decision Date: 19 December 1985
• Citation: 703 S.W.2d 876
• Parties: Jack Joe HOLLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Larry JAMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 876

703 S.W.2d 876

Jack Joe HOLLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Larry JAMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Dec. 19, 1985.

Rehearing Denied Feb. 27, 1986.

Paul Isaacs, Public Advocate, Larry H. Marshall, Rodney McDaniel, Asst. Public Advocates, Frankfort, for Holland.

Paul Isaacs, Public Advocate, Donna Boyce Proctor, Asst. Public Advocate, Frankfort, for James.

Steven L. Beshear, Atty. Gen., David A. Smith, K. Gail Leeco, Asst. Attys. Gen., Frankfort, for appellee.

OPINION OF THE COURT.

The appellants, Jack Joe Holland and Larry James, were convicted of first-degree robbery and the murder of Barbara Helm. They were sentenced to death on the murder charge and to 20 years' imprisonment on the robbery charge. They appeal to this court as a matter of right. We reverse.

On January 20, 1980, Barbara Helm disappeared after punching out from work at the Blue Boar Cafeteria, Louisville, Kentucky. On January 21, the police picked up Appellant Jack Joe Holland, an employee of the Blue Boar for questioning and released him approximately five hours later. On January 24, 1980, Barbara Helm was found dead on a roadside embankment in Oldham County. Holland was questioned again on January 30. He denied any participation in the Blue Boar crimes and explained that he had been with Appellant Larry James at the Do Drop Inn Bar and later at Wendell's Tavern, both Louisville establishments, at the time that the crimes occurred. James was questioned on February 2, and he gave an alibi identical to Holland's.

On May 21, 1981, George Waldridge offered information and assistance in the Blue Boar investigation in exchange for leniency in regard to charges arising from an automobile accident he was involved in that night. Arrangements were made for Waldridge to contact Holland and discuss a fictitious robbery as a ruse for getting Holland to talk about the Blue Boar crimes while being monitored and tape recorded by police.

The first tape recorded contact was a telephone call by Waldridge to Holland on May 28, when Holland agreed to meet Waldridge later that day to talk about the fictitious robbery. This meeting was monitored through a surveillance device installed in Waldridge's vehicle. Police arrested Holland and James later that evening. When questioned by police on June 12, they repeated their alibi.

Holland did not testify at trial. He relied on his alibi and James' testimony and defense witnesses, (whose case was presented before Holland's), that he and James smoked marijuana all that night at the Do Drop Inn. The jury found Holland and James guilty of the robbery and murder of Barbara Helm. Judgment was entered against Holland and James, imposing 20 years' imprisonment for first-degree robbery and the death penalty was imposed for murder.

Holland and James allege numerous errors in their trial, some of which we have found to be meritorious.

Initially, Holland contends that the trial court erred in refusing to instruct the jury that his refusal to testify should not be considered in any way in arriving at a verdict. Shortly after trial the United States Supreme Court, in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241, (1981), held that the Fifth Amendment requires that upon request a criminal trial judge must give a "no adverse inference" instruction to the jury when a defendant exercises his Fifth and Fourteenth Amendment rights against compulsory self-incrimination. On remand from the Supreme Court, we reversed Carter's conviction and directed that he be given a new trial. Carter v. Kentucky, Ky., 620 S.W.2d 320 (1981).

The Commonwealth submits that since Carter was decided weeks after Holland was tried, it should not be given retrospective application where the former rule had a longstanding history of continuous judicial approval, citing United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374, (1975). We disagree. In Mack v. Oklahoma, 459 U.S. 900, 103 S.Ct. 201, 74 L.Ed.2d 161 (1982), the Supreme Court of the United States remanded a case similar to this one, in which the petitioner's direct appeal to the Oklahoma Court of Criminal Appeals was pending when the United States Supreme Court announced its decision in Carter. The Oklahoma Court of Criminal Appeals determined that Carter was not to be given retroactive effect. The Supreme Court vacated the judgment and remanded the case for further consideration in light of its decision in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In Johnson it was held that a decision of the Supreme Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered. The Supreme Court's remand of Mack to be reconsidered in light of Johnson makes it apparent that the Court intended Carter to be applied retroactively to a defendant whose appeal was pending at the time it was announced. Such is the case here. As Carter applied retroactively to the defendant in that case, so does it apply to Holland in this case.

Both Holland and James assign error to the trial court's admission into evidence, over their objection, surveillance tapes of conversations Holland had with Waldridge, since the tapes were irrelevant and inflammatory. We agree. The Commonwealth contends that the tapes reveal thirty-one direct references by Holland to his involvement in the Blue Boar crimes. We have listened to the tapes and have thoroughly examined the transcripts thereof and have concluded that they have little probative value, and served only to put before the jury evidence of other crimes for which Holland and James were not being tried and to portray their criminal propensity. It is the established rule of this Commonwealth that such evidence does not tend to establish the commission of the crime charged but tends instead to only arouse the passions of the jury, with the resulting prejudice often outweighing its probative value. O'Bryan v. Commonwealth, Ky., 634 S.W.2d 153, 156 (1982). Holland and James were entitled to be tried for the crimes charged in the indictment and no others. Pankey v. Commonwealth, Ky., 485 S.W.2d 513, 526 (1972). With proper editing, certain isolated references during the taped conversation, which may tend to show knowledge by Holland of certain unpublicized facts surrounding the crime, may be admissible.

Additionally, in certain portions of the tapes Holland stated that he passed and Larry James failed polygraph tests. This court has held polygraph evidence to be inadmissible because it is neither scientific nor reliable. Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984). Any reference to either Holland passing a polygraph test or James failing a test is therefore inadmissible. In conclusion, the entirety of the tapes is inadmissible except for the previously mentioned specific exceptions as they relate to Holland.

Holland and James' next principal contention of error is that the admission of color photographs of the deceased demonstrating that the body had been subjected to extensive animal mutilation by the time the photographs had been taken was inflammatory and without significant...