Mabe v. Com.

Decision Date29 September 1994
Docket NumberNo. 92-SC-284-MR,92-SC-284-MR
PartiesChristopher Adam MABE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Oleh R. Tustaniwsky, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., David A. Sexton, Lana Grandon, Asst. Attys. Gen., Criminal Appellate Div., Frankfort, for appellee.

LAMBERT, Justice.

Appellant, Christopher Adam Mabe, was convicted in the Jefferson Circuit Court of Intentional Murder and Theft by Unlawful Taking over $100.00. He was sentenced respectively to life and five years imprisonment, and appeals as a matter of right.

Appellant has not questioned the sufficiency or validity of the evidence used to convict him of intentional murder and theft by unlawful taking. Instead, he assigns error with respect to the voir dire proceedings, jury instructions, and sentencing phase testimony. The essential facts follow.

Appellant had an extensive history of alcohol and drug abuse and was drinking and using drugs on the night of the crimes. Appellant was acquainted with the victim, Stephanie Phillips, the two had been on a date together on the night of her murder, and appellant and Phillips were last seen together at 2:15 a.m. on the morning of her death. At that time, appellant was seen driving Phillips' automobile, which he was subsequently accused of stealing. Later that same morning, appellant's mother, Judith Mabe, was awakened in her bedroom by the appellant. Ms. Mabe testified that she kept a .22 calibre rifle stored in her bedroom and that it was no longer there. Phillips' body was found at a local park with two .22 calibre bullet wounds to the head. Testimony was offered that appellant and Phillips had earlier discussed going to the park.

It was uncontested that appellant was drunk on the night in question and the following morning. Appellant told his friends that Phillips was at her home passed out drunk. Appellant and a friend left for Florida later on the morning of the crime. Evidence was presented that appellant, using another persons' identification, pawned a .22 calibre rifle in a Georgia pawn shop. Appellant's mother learned of Phillips' death and of the fact that appellant was in Florida. It was alleged that appellant admitted to his traveling companion that he had killed Phillips.

Appellant was arrested in Florida and admitted to police that he had shot a woman in Kentucky with a .22 calibre rifle. Appellant stated that he remembered pulling the trigger but did not remember why he had done so. He later testified at trial and again admitted killing Phillips but stated that he was too drunk at the time of the shooting to remember why he had taken such action. The jury rejected the defense of intoxication and found appellant guilty of intentionally murdering Phillips and of theft by the unlawful taking of Phillips' automobile.

Appellant's first contention is that he was denied his constitutional right to a fair and impartial jury by the trial court's failure to strike for cause three jurors. He alleges that the jurors in question were so biased in their inability to consider the minimum sentences for intentional murder or alcohol and drug use in mitigation of punishment that the trial court erred by not removing them for cause and as a result he was prejudiced by having to exercise peremptory challenges on three potential jurors. The Commonwealth argues that such a decision is broadly within the discretion of the trial court and that no abuse of discretion occurred here.

The law recognizes that the trial court is vested with broad discretion to determine whether a prospective juror should be excused for cause (See McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984), Pennington v. Commonwealth, Ky., 455 S.W.2d 530 (1970) and Tarrence v. Commonwealth, Ky., 265 S.W.2d 40 (1953)), but if it is later determined that a juror should have been excused and was not, such would be reversible error because the defendant had to use a peremptory challenge and was thereby deprived its use otherwise. See Thomas v. Commonwealth, Ky., 864 S.W.2d 252, 259 (1993).

Individual voir dire was conducted in an effort to insure that each prospective juror was able to consider the entire range of penalties applicable to the crimes charged. The three jurors in question were Michael McGuffin, Douglas Conway, and Frances Joyner, each of whom appellant sought to have stricken for cause, but who were later stricken peremptorily. For purposes of the following discussions as to the specific allegations of prejudice, it should be noted that during individual voir dire, the trial judge, in accordance with Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989), informed each prospective juror of the penalty range for all homicide crimes and inquired if they would automatically exclude any authorized penalty. A similar inquiry was made with respect to possible mitigation of punishment due to drug and alcohol use. Moreover, the trial court permitted counsel for the Commonwealth and the defendant to ask follow-up questions. When follow-up questioning revealed any inconsistencies or confusion, the trial court again asked if the prospective juror could apply the facts to the law as given by the court and fairly consider all of the evidence presented.

Appellant first argues that juror Michael McGuffin should have been stricken because he had stated that he did not believe he could seriously consider the minimum sentence of twenty years imprisonment for intentional murder. However, as noted by the Commonwealth and conceded by the appellant, McGuffin did state on follow-up that he could consider such a sentence if instructed to do so. Additionally, McGuffin indicated to the trial court that, depending upon the severity of the evidence, he could consider every possible sentence from the minimum to the maximum penalty allowed and that he could consider intoxication in mitigation of the offense.

Appellant next argues that juror Douglas Conway should have been stricken because he stated that he felt that if a person killed another, the life of the killer should also be taken and that he felt a twenty-year sentence for an intentional murder would be a lenient sentence. Again, as noted by the Commonwealth and conceded by the appellant, Conway revealed that he believed that he could as seriously consider a twenty-year sentence as well as a death sentence. The trial court noted in regard to Conway's answers to voir dire that he had stated clearly throughout the examination that he would follow the law as it was given to him by the trial court.

Appellant finally argues that juror Frances Joyner should have been stricken because of her strong beliefs concerning alcohol. She stated that she would have a hard time considering a lesser sentence for murder when alcohol was involved and that such feelings would impair her ability to follow jury instructions. When questioned by defense counsel, Joyner admitted to being confused about what effect intoxication might have in the sentencing phase and said that she did not understand the role of alcohol in mitigation of the sentence. However, in follow-up questioning, Joyner stated that she could consider alcohol in mitigation. The trial court specifically asked Joyner if she could follow an instruction as a juror that she "shall consider" alcohol intoxication in consideration of this case. Joyner explained that she could consider that factor if so instructed by the trial court and that she would consider everything she heard from the witness stand.

This Court's recent decision in Montgomery v. Commonwealth, Ky., 819 S.W.2d 713 (1992), provides the foundation for our analysis of the qualifications of these jurors and the correctness of the trial court's rulings. Montgomery directs attention to the totality of the evidence on voir dire with the comprehensive question being whether the juror has a mental attitude of "appropriate indifference." Montgomery rejects the idea that a magic question may be asked which can rehabilitate a juror whose answers to voir dire questions demonstrate a pervasive prejudice. On the other hand, Montgomery does not eliminate trial court discretion or absolve the trial court of its duty to evaluate the answers of prospective jurors in context and in light of the juror's knowledge of the facts and his understanding of the law. Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1991).

Voir dire examination occurs when a prospective juror quite properly has little or no information about the facts of the case and only the most vague idea as to the applicable law. At such a time a juror is often presented with the facts in their harshest light and asked if he could consider imposition of a minimum punishment. Many jurors find it difficult to conceive of minimum punishment when the facts as given suggest only the most severe punishment. Similarly, many citizens are astounded to learn that being under the influence...

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