Montgomery v. Com.

• Decision Date: 24 October 1991
• Docket Number: 89-SC-315-MR and 89-SC-316-MR,Nos. 89-SC-286-M,s. 89-SC-286-M
• Citation: 819 S.W.2d 713
• Parties: Joseph MONTGOMERY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Robert George SHERMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Ronnie HUDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 713

819 S.W.2d 713

Joseph MONTGOMERY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Robert George SHERMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Ronnie HUDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 89-SC-286-MR, 89-SC-315-MR and 89-SC-316-MR.

Supreme Court of Kentucky.

Oct. 24, 1991.

Rehearing Denied Jan. 16, 1992.

Marie Allison, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellants.

Frederic J. Cowan, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

OPINION OF THE COURT

Appellants, Sherman, Hudson and Montgomery, were charged and convicted of second-degree escape and being first-degree persistent felony offenders. In all three cases the appellant received an enhanced sentence of 20 years imprisonment. They appeal as a matter of right alleging five errors. We reverse and remand on two of the five.

This case arises out of the circumstances surrounding a highly publicized escape by eight inmates from the Kentucky State Penitentiary ("KSP") on June 16, 1988. The three appellants were apprehended in Kentucky, and were tried together in Lyon Circuit Court where KSP is located. Two other escapees were apprehended and charged with murder in Tennessee; three others apprehended in Texas.

The grounds upon which they seek reversal of their convictions are as follows:

1) Abuse of discretion in denying a change of venue;

2) Abuse of discretion in denying challenges for cause against 16 jurors, five of whom actually sat in judgment in the case;

3) Refusing to instruct on "choice of evils" as an affirmative defense;

4) In proving the persistent felony offender charges incompetent evidence was permitted to establish the dates of commission of prior offenses;

5) The jury failed to fix sentences on the underlying charge, second-degree escape, before finding guilt and fixing an enhanced sentence as persistent felony offenders.

I. CHANGE OF VENUE

The news media coverage surrounding this highly publicized escape and the on-going steps for apprehension of the escapees in this small, rural county where the prison is a principal industry was massive and pervasive. The voir dire of the jury revealed that all of the jurors had been exposed to press coverage. All 29 potential jurors left in the jury pool from which the jury was selected acknowledged they were aware to some extent of news media reports about the case, some were aware of the murders in Tennessee by two of the appellants' confederates, and one juror was aware that there was a "shoot out" when some of the appellants were captured in Central Kentucky.

When the motion for change of venue was heard before the trial, the circuit judge We have long adhered to the view that we should respect the trial judge's discretion in deciding whether pretrial publicity requires a change of venue because he is present in the county and presumed to know the situation. Nickell v. Commonwealth, Ky., 371 S.W.2d 849 (1963). Brewster v. Commonwealth, Ky., 568 S.W.2d 232 (1978), a leading case on the subject, upholds the trial court's decision to deny a change of venue in circumstances similar to the present case, stating "the mere fact that jurors may have heard, talked, or read about a case" does not require a change of venue, "absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant.... Prejudice must be shown unless it may be clearly implied in a given case from the totality of the circumstances." Id. at 235. Brewster also states:

                decided to overrule the motion for change of venue as a preliminary matter, advising he was prepared to reconsider the motion after the matter had been further explored on voir dire.  The trial court stated he would "deny the motion with the understanding that [appellants] will be allowed broad discretion to question the jury about what they've read and haven't read."   The question here is whether the trial judge abused his discretion when the motion for change of venue was renewed and denied after voir dire had been conducted
                

"Of course, a showing of actual prejudice is unnecessary if the procedure involves such a probability that prejudice will result that it is deemed inherently lacking in due process. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965)."

Viewed from "the totality of the circumstances" (Brewster, supra ), and given our policy of deferring to the trial judge's discretion in such matters, the majority of this Court does not believe that the present case is one where prejudice is so pervasive it must be "clearly implied." Brewster, supra. Thus we hold the trial court did not err in refusing a change of venue.

II. CHALLENGES FOR CAUSE

One of the substantial considerations in affirming the trial court on the "change of venue" issue is the trial judge's decision to permit a broad voir dire of the jury to identify prospective jurors so affected by pretrial publicity that they should be excused for cause. The problem is that this approach carries with it a commitment to excuse such jurors when they have been so identified, and the record before us compels the conclusion the trial court failed in this commitment. Of the jurors who actually sat in the case, at least four, Kenneth Jones, Jerry Riley, James Suitor and William Rogers, answered questions acknowledging not only familiarity with the pretrial publicity surrounding the case, but also that they had formed opinions as to the appellants' guilt. In each instance they asserted they believed they could put aside their preconceived opinions and be impartial, but, perhaps individually, and certainly collectively, these answers fail to meet the standard for a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Section 11 of the Kentucky Constitution. Mere agreement to a leading question asking whether the jurors will be able to disregard what they have previously read or heard is not enough to discharge the court's obligation to provide a neutral jury:

"The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man.... No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father...." Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751, 759 (1961).

"... the test is 'whether the nature and strength of the opinion formed are such as in law necessarily ... raise the presumption of partiality. The question thus presented is one of mixed law and fact....' " Id., at 723, 81 S.Ct. at 1643, 6 L.Ed.2d at 756.

One of those jurors who stated he had formed an opinion which he could put aside, William Rogers, also stated that he felt fear and concern while the prisoners were out of prison and that such feelings might influence his ability to be fair and impartial.

Another juror who sat on appellants' case, Art Joyce, was a former police officer and a present deputy sheriff; and another, Bennie Pinnegar, was the manager of an ambulance service which had a contract with the Ambulance Board for which the prosecutor was the attorney. Juror Pinnegar had been asked, in his role as manager of the Ambulance Board, to participate in the search for these escapees, and had been through the experience of being held hostage in a previous escape.

The trial court refused to strike other jurors challenged for cause, who then were stricken instead by peremptory challenge, including: Thomas Spicer, a former employee of the prison; Ernest Jones, who acknowledged he would give more credibility to law enforcement officers' testimony than other persons, and that he would feel "bad" about acquitting the appellants if the proof was not sufficient to show guilt; Robert Harris, who was being represented by the prosecutor on a legal matter at the time of trial; George Richard, who was an outside patrolman and guard for KSP, and who acknowledged he had spoken with persons in the prison regarding the escape; Faye Pierce, who had two cousins employed at KSP and a close personal friend who was a correctional officer; and Adrian Owen, who acknowledged that the prosecutor was his "cousin's son-in-law."

Jurors Wayne Aldridge, Adrian Owen, Thomas Spicer and Ernest Jones, all acknowledged preconceived opinions regarding appellants' guilt, but they further believed they could be impartial. One of these, Wayne Aldridge, had a son who worked as a correctional officer at KSP, who had been involved in the search for the escapees, and whom he had heard talk about the matter.

In Marsch v. Commonwealth, Ky., 743 S.W.2d 830 (1988), we revisit the principle that cases should be reversed on appellate review where the trial court fails to sustain challenges for cause in circumstances in which, even though there is no admission of "actual" bias or prejudice, such may be "implied or reasonably inferred." Marsch reviews several different aspects of the problem which also exist here, including: (1) disclaimer of bias from those who have acknowledged they are aware of the pretrial publicity, but answer they can put aside their opinion and be fair, (2) jurors with a family or business relationship with a party, a victim or the prosecuting attorney where the relationship is not so close as to cause automatic disqualification but nevertheless transgresses the concept of a fair and impartial jury, and (4) other circumstances and relationships which create a reasonable inference of prejudice. In Marsch, we adopt the following quotation from a Pennsylvania case, Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4, 7 (1981):

"Irrespective of the answers given on voir dire, the court should presume the likelihood of...