Marlowe v. Com.

• Decision Date: 20 March 1986
• Docket Number: No. 82-SC-986-MR,82-SC-986-MR
• Citation: 709 S.W.2d 424
• Parties: Hugh MARLOWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 424

709 S.W.2d 424

Hugh MARLOWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 82-SC-986-MR

Supreme Court of Kentucky.

March 20, 1986.

Rehearing Denied June 12, 1986.

Jack Emory Farley, Public Advocate, M. Gail Robinson, Kevin M. McNally, Asst. Public Advocates, Frankfort, for Appellant.

David Armstrong, Atty. Gen., Penny R. Warren, Cicely D. Jaracz, Asst. Attys. Gen., Frankfort, Ron Johnson, Commonwealth Atty., Harlan, for Appellee.

STEPHENS, Chief Justice.

Appellant Hugh Marlowe appeals his conviction for murder and robbery and his subsequent sentence to death. We affirm the judgment of the Harlan Circuit Court.

Appellant was indicted on November 23, 1981 for murder and ten days later was indicted for first degree robbery. Both charges arose out of the same incident involving the death of seventy-eight year old Henry Hamlin. On the evening of his arrest appellant gave a statement to a police detective that he and George Owens had been present when a friend, Larry Wilkerson, killed and robbed the victim. He claimed that the victim had been shooting at two beer cans across some railroad tracks in a remote part of Harlan County when appellant, Owens, and Wilkerson came upon Hamlin. After firing three times at the cans, Hamlin gave Wilkerson permission to shoot the pistol. Appellant told the detective that instead of shooting the cans, Wilkerson shot Hamlin in the chest, beat his head with the gun and then robbed him. A few weeks later, appellant and his counsel requested a meeting with the same detective and the prosecutor. During this second meeting appellant exonerated the man whom he initially claimed had actually committed the murder.

At pre-trial hearing on March 26, 1982, appellant expressed his desire to enter a plea of guilty to the murder charge and a plea of not guilty to the robbery charge. Marlowe admitted shooting the victim but denied beating or robbing him. The prosecutor was not present at this hearing. Appellant's counsel stated that he understood that the Commonwealth Attorney would recommend a life sentence in return for Marlowe's guilty plea. After talking extensively with appellant about the circumstances surrounding the victim's death, the judge set the sentencing date for April 1, 1982. Four days after the hearing the prosecutor first learned of its occurrence and informed the court that he had not made a firm recommendation as to sentence and that he could not agree to a guilty plea only on the murder charge. The prosecutor's only recommendation would be the death penalty. Based on this turn of events, the court allowed appellant to withdraw his guilty plea and stated that appellant's statement could not be used against him at trial.

Trial began May 4, 1982 before the judge who had presided over all the pre-trial proceedings. Two of the Commonwealth's witnesses testified to seeing men on the railroad tracks at about 8:00 a.m. on November 13, 1981. Another witness who lived near the railroad tracks said that on the same morning she heard three shots in succession and then thirty to sixty seconds later she heard a fourth shot that "sounded real funny". The victim's wife then described her husband's habit of taking morning walks on the railroad tracks. She stated that her husband walked with a cane and wore glasses and an ear flap hat. She testified that he wore a wedding band, two Masonic rings, a gold watch and that he carried a cigarette case and a wallet with about $100.00 in it. Also, Mrs. Hamlin stated that her husband carried a .22 caliber Strouger Luger. Mrs. Hamlin testified that on the date of his death Hamlin left for his walk at about 9:15 a.m.

The deputy coroner read into the record the autopsy report which stated that the victim's death was due to "cranial trauma"--he had received seven head wounds inflicted by a blunt instrument. The report also stated that a gunshot wound to the chest was an "additional significant injury".

George Owens, who was charged with the same offenses as appellant, was then called to the witness stand by the Commonwealth. In the midst of swearing in the witness, the court told Owens that he could confer with his counsel before he was questioned by the Commonwealth. Counsel informed the court that he had already conferred with his client. The Commonwealth began its examination of the witness and in response to questions, Owens gave his name and age. At that point, Owen's counsel invoked the Fifth Amendment privilege against self-incrimination on behalf of his juvenile client. Owens was then excused.

Appellant's brother, James Marlowe, then testified that he saw appellant and George Owens digging potatoes at about 9 a.m. on November 13, 1981. That afternoon James saw Owens with two fifty dollar bills. Owens told James that he was in trouble and was going to Ohio and that appellant was going with him. Owens asked James to buy a car for the purpose of going to Ohio.

Tony Mallory, an inmate jailed with appellant and Owens, was the Commonwealth's final witness. Over defense objection Mallory was permitted to testify to a conversation he overheard in the jail between appellant and Owens on February 20, 1982. Appellant accused Owens of "turning state's evidence" on him. Owens denied "ratt[ing]" and appellant said if he did they would "both burn". Mallory stated that during the course of the conversation appellant admitted asking the victim for his gun and then shooting him. Appellant also stated to Mallory that he and Owens panicked and beat the victim with a club or baseball bat.

The jury found appellant guilty of murder and robbery during the guilt phase of the bifurcated proceedings. During the sentencing phase the jury recommended death because of the aggravating circumstance of the murder having been committed during the course of a robbery. Before sentencing, the court on its own motion ordered a psychological examination to determine appellant's personality type and potential for rehabilitation.

At the final sentencing on July 29, 1982, the trial judge read the psychologist's report, with both parties consent. Initially, neither the Commonwealth nor the defense wanted to question the psychologist, however, the Commonwealth decided to question the expert witness. The psychologist testified that the appellant denied committing the crime and showed no remorse. The prosecutor then asked whether the psychologist was aware that appellant had admitted shooting the victim. [The prosecutor was referring to appellant's admission in the withdrawn guilty plea.] The psychologist did not know of the admission. The court sentenced appellant to death after considering all the evidence, the presentence report, and the psychologist's report. The court also stated that it had considered that appellant had tricked the victim to obtain his pistol, then shot, beat, and robbed the victim.

The facts will be discussed in greater detail where specific issues are reviewed. Appellant raised thirty-seven (37) issues on appeal. Though we have carefully considered all of them, only certain issues will be discussed in this opinion. All others are meritless.

We will discuss the following issues from the guilt phase of the trial:

--Whether the trial judge erred in failing to recuse himself from the case because of the information he learned while presiding over the guilty plea which was subsequently withdrawn,

--Whether sufficient evidence to sustain a conviction of murder and first degree robbery was presented at trial,

--Whether appellant was denied his right to confrontation when a person charged with the same offense as appellant asserted his privilege against self-incrimination in front of the jury.

--Whether the death sentence was based on the necessary finding that appellant caused or intended to cause the death of the victim, and

--Whether the prosecutor's conduct during closing argument was improper or prejudicial.

The issues to be discussed from the sentencing phase of the trial are as follows:

--Whether the trial court erred in ordering a post-trial psychological examination of appellant,

--Whether the penalty phase jury instructions failed to inform the jury of life sentence options,

--Whether the prosecutor's conduct during the penalty phase and final sentencing deprived appellant of a fair trial,

--Whether appellant's sentence of death is disproportionate as compared with other recent cases.

WHETHER THE TRIAL JUDGE ERRED IN FAILING TO RECUSE HIMSELF BECAUSE OF INFORMATION HE LEARNED WHILE PRESIDING OVER THE SUBSEQUENTLY WITHDRAWN GUILTY PLEA.

Appellant first contends that the trial judge should have recused himself sua sponte because of information he learned from appellant during the aborted guilty plea hearing. In response to the judge's questions, appellant admitted that George Owens handed him the victim's gun and that he shot Hamlin. Appellant also stated that he did not know why he did it. Appellant alleges that the judge relied on this information when sentencing him to death.

KRS 26A.015(2)(a) and (e) mandate that a judge disqualify himself if he has "personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts..., or has expressed an opinion concerning the merits of the proceeding..." or has "knowledge of any other circumstances in which his impartiality might reasonably be questioned". This statute does not apply to the case at bar. If it did a judge would be required to recuse himself from subsequent proceedings whenever he presided over suppression hearings, guilty pleas, or trials. Here there is no evidence of actual bias or impartiality, only bare speculation.

We adopt the Ninth Circuit's view as expressed in United States v. Winston, 613 F.2d 221, 223 (1980):

"... [R]ecusal is appropriate only when the information is derived from an extra-judicial source. Knowledge obtained in the course of earlier participation in the same case does not require that a judge recuse...