Major v. Com., No. 2007-SC-000734-MR.

• Citation: 275 S.W.3d 706
• Decision Date: 22 January 2009
• Docket Number: No. 2007-SC-000734-MR.
• Parties: William Alexander MAJOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

275 S.W.3d 706

William Alexander MAJOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000734-MR.

Supreme Court of Kentucky.

January 22, 2009.

As Modified March 10, 2009.

Susan Jackson Balliet, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Heather Michelle Fryman, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

This is a matter of right appeal, Ky. Const. § 110(2)(b), following a retrial before the Boone Circuit Court pursuant to our prior decision in Major v. Commonwealth, 177 S.W.3d 700 (Ky.2005) (hereafter referred to as Major I).

Facts

The facts on retrial, with some exceptions, were essentially the same as in Major I. Appellant, William Major, and his wife, Marlene Major, had two (2) children, a son, D.O., and a daughter, L.B. By the fall of 1980, however, their marriage was failing. On the night of October 11, 1980, Marlene disappeared.

On November 29, 1981, the skull of a white female was found on a nearby farm belonging to the Waller family. Appellant worked there on occasion. In 2001, DNA testing¹ confirmed the skull belonged to a maternal relative of L.B.

According to information contained in Marlene's diary, she had witnessed Appellant sexually molesting their son, D.O. On the day of her disappearance, she told her sister she had "proof" against Appellant hidden somewhere he would not find it, and if anything happened to her, the information would go to the police. In the same conversation, she told her sister about her unhappiness and that she was going to divorce Appellant. She spoke one more time with her sister that night, and seemed to be upset as a result of fighting that was occurring in her home.

Glen St. Hillaire lived near Appellant and Marlene on their property. He was friends with both and worked with Appellant in St. Hillaire's garage. Apparently he and Marlene were also romantically involved. In fact, Marlene had given St. Hillaire her diaries for safekeeping after an argument with Appellant.

At times when they were estranged due to arguments, Appellant would describe to others what he would do if Marlene ever left him. On several occasions, he even told St. Hillaire he would shoot Marlene, cut her head off and knock her teeth out, in order to make identification of her body difficult. Similar threats to dismember her body were made by Appellant in the presence of others.

On the night of October 11, 1980, St. Hillaire became concerned about Marlene. He saw Appellant near the Majors' trailer around 3:00 a.m. and asked about Marlene and the kids. Appellant told him he did not know where she was, but she had left with the children. However, Appellant had taken the children over to a neighbor's house around 11:00 p.m. and told them that Marlene had left him for St. Hillaire.

Over the next several days Appellant sold his holdings in Kentucky in preparation for moving to Rhode Island. He gave his three (3) weapons to his neighbor, Brice — a 9mm pistol, a shotgun and a .22 caliber rifle — and also sold him his tractor. On Wednesday of that week, he notified the Boone County Sheriff's office that Marlene was missing, claiming they had an argument and she left him. Subsequently, St. Hillaire notified the police of his concerns and ultimately they took possession of Marlene's diaries and the weapons Appellant had given Brice. Investigations in the general vicinity did not turn up her body.

Sometime later the detectives traveled to Rhode Island to speak with Appellant's son (D.O.) concerning the allegations of sexual abuse that occurred in Kentucky. Although they were unsuccessful in acquiring any useful information at the time, Appellant beat D.O. when he found out about the inquiries, accusing him of giving the police information.

However, after Appellant moved to Rhode Island with the children, the sexual abuse of D.O. continued. Moreover, Appellant then began to sexually abuse L.B. Ultimately, he was discovered, convicted and incarcerated in Rhode Island for the sexual abuse of the children. He remained incarcerated in Rhode Island for approximately ten (10) years, until sometime in 1996.

Thereafter, he was transported back to Kentucky on a detainer which had been issued against him for the prior sexual abuse of D.O. when they lived in Kentucky. It was during this incarceration, in 1996, on the detainer from Boone County, when he made a telephone call and confession to his father, Mr. James Major.

Later, in early 2001, detectives became aware of this 1996 phone conversation Appellant had with his father, wherein, he told Mr. Major that he had killed Marlene. Thereafter, the detectives went to Mr. Major's home in Nova Scotia in an attempt to set up another phone conversation between Mr. Major and Appellant, hoping Appellant would acknowledge the confession. Mr. Major was cooperative in this, even suggesting his cover story would be that he only had a short time to live.

The call was made and it was taped by the detectives; however, Appellant's answers were evasive, such as, "Why do I get the feeling that somebody is trying to set me up?" When asked if he could say what happened, Appellant replied: "Even if I could, I probably wouldn't." When Mr. Major told him his daughter just wanted to know what happened, Appellant said to tell her to "ask Marlene's boyfriend in Indiana ... I think if they had a talk with him ... they might be surprised." When Mr. Major reminded Appellant "You told me you killed her." He replied: "At the time I was in jail and I was pretty well upset." At the time of this later conversation, Appellant was not under arrest, nor was he incarcerated.

Ultimately, around July of 2001, Appellant was charged and extradited back to Kentucky. Once in custody, he immediately began to ask questions about the investigation. He was advised of his Miranda rights and responded that he understood them. He then made a series of incriminating statements. Back in Kentucky, he met with Detective Jack Banks, was re-Mirandized, and thereafter gave the officers his version of the events that took place on the night of Marlene Major's death.

According to Appellant, they got into an argument in her Ford Pinto when she pulled a gun on him. He took it away from her and she began screaming; then, according to Appellant, he "lost it" and fired the gun until it was empty. After realizing he had killed her, he left her body in the Pinto and took the children to spend the night at his neighbor's, Trinnie Brice's, house. He then returned and took Marlene's Pinto to the Waller Farm where he dumped her body into a sink hole, covered it with dirt and a piece of rolled fencing, and then tossed the murder weapon into a nearby pond. He even drew the police a map to aid in their search for her remains. As to her Ford Pinto, he indicated he had pushed it into the Ohio River near a ferry. Significantly, neither Marlene's body (other than the skull), the Ford Pinto, nor the pistol were ever located or recovered.

In Major I, this court reversed and remanded for a new trial because of (1) the improper admission of evidence of uncharged crimes, i.e., the later sexual abuse of L.B., and (2) the admission into evidence of firearms factually unconnected to the crime charged.

Upon retrial, a Boone County jury found Appellant guilty of one count of murder and guilty of one count of tampering with physical evidence and recommended life imprisonment for the murder and five years for tampering with physical evidence. The jury recommended the sentences to run consecutively. The trial court followed the recommendation of the jury as to the recommended sentences, but failed to designate how the sentences would run. Appellant now alleges error, to wit: 1) the trial court improperly admitted weapon testimony, 2) the wire tap was improper, 3) the trial court erred by denying his motion for mistrial, 4) the trial court failed to inform Appellant he could "control" his appointed co-counsel, and 5) he was improperly sentenced consecutively for definite and indefinite terms.

For the following reasons, we affirm the judgment and sentence entered by the trial court.

I. Introduction of Weapon Testimony

Appellant contends that the testimony concerning the weapons was error. In Major I, we noted that:

[w]e have upheld the admission of weapons into evidence based upon testimony that the weapon was the one used in the commission of the offense, Beason v. Commonwealth, 548 S.W.2d 835 (Ky. 1977), or that it was of the same size and shape as the weapon used in the commission of the offense, Sweatt v. Commonwealth, 550 S.W.2d 520 (Ky.1977); or that it was found at the scene of the offense and was capable of inflicting the type of injury sustained by the victim, Barth v. Commonwealth, 80 S.W.3d 390 (Ky.2001). However, weapons, which have no relation to the crime, are inadmissible. Gerlaugh v. Commonwealth, 156 S.W.3d 747 (Ky.2005).

177 S.W.3d 700, 710-711 (Ky.2005). Thus, we held that it was error to introduce the "weapons [into evidence] without [a] connection to the crime." 177 S.W.3d at 711.

Prior to retrial, Appellant filed a motion in limine to exclude all testimony concerning the weapons Appellant possessed in 1980, i.e., the weapons that Appellant possessed and subsequently transferred following Marlene's disappearance. Appellant argued, inter alia, that this Court's ruling on weapons in Major I was to be broadly construed and should exclude all evidence of Major's weapons. In response, the Commonwealth argued that the ruling in Major I was much narrower, and covered only the introduction of the weapons themselves.

After discussion of the issue, the trial court prohibited introduction of the weapons as exhibits, but allowed witness testimony concerning the weapons. The trial court's ruling was based on Appellant's previously introduced...