Johnson v. Com. Ky., No. 1997-SC-0842-MR.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtLambert
Citation103 S.W.3d 687
PartiesDonald Herb JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date20 February 2003
Docket NumberNo. 1997-SC-0842-MR.,No. 2001-SC-0803-MR.

Page 687

103 S.W.3d 687
Donald Herb JOHNSON, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 1997-SC-0842-MR.
No. 2001-SC-0803-MR.
Supreme Court of Kentucky.
February 20, 2003.
Rehearing Denied May 22, 2003.

Page 688

COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Julie Namkin, John Palombi, Assistant Public Advocates, Department of Public Advocacy, Frankfort, Counsel for Appellant.

A.B. Chandler III, Attorney General of Kentucky, David A. Smith, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Chief Justice LAMBERT.


On November 29, 1989, sixty-one year old Helen Madden was beaten, stabbed, mutilated, and tortured to death in the supply storage room of the Laundromat where she worked. Her body was so disfigured that a co-worker of thirteen years was unable to identify her. Appellant, Donald Herb Johnson, was subsequently arrested for the crimes. Pursuant to RCr 8.08, he entered unconditional guilty pleas in Floyd Circuit Court to murder, first degree robbery, first degree burglary, and two counts of first degree sexual abuse.

The prosecution moved for jury sentencing. Appellant opposed the motion, and the trial court ruled in his favor. The prosecution sought interlocutory relief from the trial court's order allowing Appellant to waive jury-recommended sentencing unilaterally. This Court ruled that a prosecutor can insist on jury-recommended sentencing over a defendant's objection.1 After prevailing in this Court, however, the prosecution consented to Appellant's request to be sentenced solely by the trial court without intervention of a jury. After hearing evidence on the issue of punishment, the trial court sentenced Appellant to death, twenty years, fifteen years, and five years for his crimes. Appellant now appeals as a matter of right from the final judgment.2

Appellant has presented twenty-six separate claims of error, but among them there is considerable overlap. Four separate claims are presented as to the alleged lack of a factual basis to support the guilty pleas even though Appellant's crimes all arose from a single set of operative facts. Various issues are raised with respect to the validity of Appellant's guilty pleas, and his waiver of jury sentencing is attacked repeatedly, despite the fact that he insisted he had a right to waive jury sentencing even before this Court. Finally, Appellant makes certain "boiler plate" arguments settled by this Court in prior decisions. In this opinion, therefore, we will fully address the significant issues presented and deal with the others in a more summary fashion.

Appellant first claims that the trial court erred by accepting his guilty pleas on all charges. In support of this claim, he contends that the guilty pleas were not entered knowingly, voluntarily, and intelligently

Page 691

because the trial court did not specifically inform him of certain matters, discussed in greater detail below. This claim of error was not preserved for appellate review yet will be addressed pursuant to KRS 532.075(2).3 The standard of review for unpreserved errors in a case in which the death penalty has been imposed is properly stated as follows:

Where the death penalty has been imposed, we nonetheless review allegations of these quasi errors. Assuming that 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; 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.4

There are four matters that Appellant alleges the trial court should have informed him of for the guilty pleas to be valid: first, that he had a right to be free from compulsory self-incrimination and that he would be waiving that right by pleading guilty:5 second, that he had a right to appeal and that he would be waiving that right by pleading guilty;6 third, that he had a right to a jury determination of both guilt and degree of punishment and that by pleading guilty he would be waiving this right; and fourth, that he had a right to the presumption of innocence and that he would be waiving that right by entering a guilty plea.

Appellant is correct in the identification of his rights, but in the instance of a guilty plea, Boykin v. Alabama7 does not require a separate enumeration of rights waived and separate waivers as to each.8 Rather, Boykin requires that the defendant have a "full understanding of what the plea connotes and its consequences."9 In this case, prior to accepting the guilty pleas, the trial court asked Appellant twenty questions pertaining to his understanding of his legal circumstances and consequences. These questions and Appellant's responses leave no doubt that he was aware of the rights he was waiving. Thus, there was no error.

Appellant next argues that the trial court's acceptance of the guilty pleas was in error because a written waiver of Appellant's right to a jury trial was not procured, as required by RCr 9.26. This claim of error is not preserved yet will be reviewed under the standard set forth hereinabove, supra, p. 691.

Several days before Appellant entered his guilty pleas, he filed a lengthy memorandum discussing the right to trial by jury on guilt and degree of punishment, and his desire to waive that right. Appellant

Page 692

vigorously continued to pursue sentencing by the trial court instead of a jury throughout appellate litigation, as evidenced by Commonwealth v. Johnson, discussed above. Thus, although there is no official written plea form signed by Appellant in the record, it is clear that his unswerving trial strategy involved adamant avoidance of a jury trial and a jury sentencing recommendation. Given the excessively gruesome nature of the murder, which entailed torture and mutilation of an elderly victim, this strategy was not unreasonable. The abhorrent details of this murder would not have invited sympathy from a jury. Thus Appellant's current claims of error with regard to the lack of a jury trial, after he assiduously evaded a jury trial, do not warrant reversal. Although there appears to be no reasonable explanation for defense counsel's failure to obtain a formal written waiver, this unpreserved error was not prejudicial.

Appellant's next significant claim is that the trial court erred by failing to hold a hearing to determine his competency to plead guilty. This claim of error is not preserved, yet will be reviewed under the standard set forth in Sanders.

The facts giving rise to this claim are as follows. In March 1991, defense neuropsychologist Dr. Engum performed a two day psychological and neuropsychological examination of Appellant. In October 1992, Dr. Deland of the Kentucky Correctional and Psychiatric Center ("KCPC") first concluded that Appellant was competent. On May 13, 1994, the trial court ordered that Appellant again be examined at KCPC. On June 10, 1994, the trial court ordered Appellant transported to KCPC for "medical treatment, including treatment for any mental conditions." On June 13, 1994, the prosecution filed a motion requesting that Appellant undergo a competency evaluation at KCPC pursuant to KRS 504.080 and KRS 504.100. As grounds for the evaluation, the prosecution referred to a psychological report, issued by DPA psychologist Dr. Robert Berland in early April 1994, that did not make a specific determination that Appellant was either competent or incompetent. Thereafter, Dr. Deland of KCPC examined Appellant and filed a report finding him competent on June 14, 1994.

Appellant pled guilty three days later, on June 17, 1994. At the hearing in which the trial court accepted Appellant's guilty plea, defense counsel conceded the issue of competency. In accepting the guilty plea, the trial court relied on defense counsel's stated belief that Appellant was competent as well as a review of the psychological reports indicating that Appellant was competent. However, despite this colloquy and review of information regarding Appellant's competency, it appears that no formal competency hearing was held.

The statutory requirements for competency determinations are governed by KRS 504.100. Specifically, KRS 504.100(1) requires a court to appoint a psychologist or psychiatrist "to examine, treat and report on the defendant's mental condition" whenever "the court has reasonable grounds to believe that the defendant is incompetent to stand trial." The trial court's actions observed the statutory mandate. KRS 504.100(3) states that after the report is filed, "the court shall hold a hearing to determine whether the defendant is competent to stand trial." The statutory language "shall hold" indicates that section 3 is mandatory and cannot be waived by the defendant.10 Thus, despite the trial court's consideration of Appellant's competency and defense counsel's concession thereof at the plea hearing, it

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was error to fail to hold a formal competency hearing as required by KRS 504.100(3). By Opinion and Order rendered June 14, 2001, we so held and remanded this cause to the trial court to determine 1) whether a retrospective competency hearing was permissible, and if so, 2) to conduct such a competency hearing.

On July 2, 2001, the trial court held a hearing to determine whether a retrospective competency hearing would be permissible and found that it would be possible to conduct a proper hearing. On August 29-30, 2001, the trial court conducted the hearing and concluded that Appellant had been competent to enter his guilty plea in June of 1994. Appellant now appeals from the trial court's...

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44 practice notes
  • State v. Connor, AC 34970
    • United States
    • Appellate Court of Connecticut
    • September 16, 2014
    ...Dugger, 838 F.2d 1530, 1544 (11th Cir.), cert. denied, 486 U.S. 1061, 108 S. Ct. 2832, 100 L. Ed. 2d 933 (1988); Johnson v. Commonwealth, 103 S.W.3d 687, 693 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379 (2003). For our purposes, the primary object of this inquiry is ......
  • Parson v. Com., No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 17, 2004
    ...Crawley v. Commonwealth, Ky., 107 S.W.3d 197, 203-04 (2003) (Keller, J., dissenting) (right to testify); Johnson v. Commonwealth, Ky., 103 S.W.3d 687, 700 n. 6 (2003) (Keller, J., dissenting) (right to trial by jury and right to protection from compelled self-incrimination); Fugate v. Commo......
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...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 ......
  • Hunt v. Com., No. 2006-SC-000634-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 18, 2010
    ...the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky.2003) (citing Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990)). 304 SW 3d 29 With items of physical evidence which are cl......
  • Request a trial to view additional results
44 cases
  • State v. Connor, AC 34970
    • United States
    • Appellate Court of Connecticut
    • September 16, 2014
    ...Dugger, 838 F.2d 1530, 1544 (11th Cir.), cert. denied, 486 U.S. 1061, 108 S. Ct. 2832, 100 L. Ed. 2d 933 (1988); Johnson v. Commonwealth, 103 S.W.3d 687, 693 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379 (2003). For our purposes, the primary object of this inquiry is ......
  • Parson v. Com., No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 17, 2004
    ...Crawley v. Commonwealth, Ky., 107 S.W.3d 197, 203-04 (2003) (Keller, J., dissenting) (right to testify); Johnson v. Commonwealth, Ky., 103 S.W.3d 687, 700 n. 6 (2003) (Keller, J., dissenting) (right to trial by jury and right to protection from compelled self-incrimination); Fugate v. Commo......
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...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 ......
  • Hunt v. Com., No. 2006-SC-000634-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 18, 2010
    ...the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky.2003) (citing Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990)). 304 SW 3d 29 With items of physical evidence which are cl......
  • Request a trial to view additional results

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