Moore v. Com.

• Decision Date: 17 November 1988
• Docket Number: 86-SC-662-TRG,Nos. 85-SC-101-M,s. 85-SC-101-M
• Citation: 771 S.W.2d 34
• Parties: Brian Keith MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. (Two Cases)
• Court: United States State Supreme Court — District of Kentucky

Page 34

771 S.W.2d 34

Brian Keith MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. (Two Cases)

Nos. 85-SC-101-MR, 86-SC-662-TRG.

Supreme Court of Kentucky.

Nov. 17, 1988.

Rehearing Denied June 29, 1989.

William M. Radigan, Walker, Radigan & Zeller, Louisville, J. Vincent Aprile II, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Cicely Jaracz Lambert, Valerie L. Salven, Asst. Atty. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

Brian Keith Moore appeals from a judgment convicting him of first-degree robbery, kidnapping and capital murder. He was sentenced to death for the murder and received two separate sentences of twenty years for the kidnapping and robbery offenses.

In March 1980, Moore was found guilty of the same offenses and sentenced to death but this Court reversed the conviction and remanded the case for a new trial. Moore v. Commonwealth, Ky., 634 S.W.2d 426 (1982). A second three-week trial was conducted in October 1984 with final judgment entered on October 29, 1984.

The victim was a 77-year-old man who operated an ice cream parlor in Louisville. It was his habit to visit an A & P grocery to obtain bananas. On Friday, August 10, 1979, at approximately 11:20 a.m. a witness at the A & P recognized the victim as a frequent customer who bought only bananas. Another witness was in her car in the A & P parking lot when she noticed a fairly neat young white man standing behind an open driver's door holding a gun on an elderly man seated on the passenger side. Circumstantial evidence indicates that Moore drove off in the victim's car approximately 9.5 miles to Jefferson Hill Road where he pushed the victim down an embankment, shot at him and missed, then shot him four times in the head at close range. An autopsy showed the victim died of a gunshot wound to the head with one bullet entering below the right eye, one inside the right ear, one behind the right ear and one on the top of the head. The top of the head wound was a contact wound. Bruises were also found on the victim's hand, forearm, face and ear.

The jury returned a verdict of guilty on murder, twenty years on kidnapping and twenty years on first-degree robbery. Following evidence presented at the penalty phase, the jury returned a death sentence based on a determination that the murder was committed during the commission of first-degree robbery.

Moore, through his counsel, raises twenty-six assignments of alleged error in this appeal. This opinion will focus on all of the issues addressed by Moore's counsel at oral argument plus others presented in the brief which, in the opinion of this Court, merit discussion. Allegations of errors which we consider to be patently without merit will not be addressed here. The principal issues involve the refusal by the trial court to instruct on the lesser offense of second-degree manslaughter due to the intoxication of the defendant; the overruling of a defense motion to impanel a new jury for the sentencing phase; the rulings of the trial judge on the scope of Moore's right to cross-examine certain prosecution witnesses; the refusal by the trial court to allow Moore to consult with his counsel during a lunch break in his direct testimony during the guilt phase and the sustaining of a challenge for cause by the prosecutor against two venirepersons. Finally Moore raises the question of cumulative error on appeal.

The trial judge did not commit reversible error in refusing to instruct the jury on second-degree manslaughter when he had given an intoxication instruction at the guilt phase of the trial. The instructions on intentional murder, robbery and kidnapping were based on the evidence presented at trial, and the trial judge properly denied an instruction on second-degree manslaughter. The evidence was not sufficient to support an instruction on intoxication, and the giving of such an instruction was more than what Moore was entitled.

There is no requirement that a lesser included offense be automatically added to the instructions whenever the jury is instructed on the defense of intoxication. Voluntary intoxication neither excuses the offense nor mitigates the punishment. Shannahan v. Commonwealth, 71 Ky. (8 Bush), 463 (1871). The circumstances of voluntary intoxication, standing alone, will never require a voluntary manslaughter instruction. Richards v. Commonwealth, Ky., 517 S.W.2d 237 (1975). Although Richards, supra, is a prepenal code case, it has been cited with approval in more recent cases, and we believe the reasoning is sound. We are not convinced that Meadows v. Commonwealth, Ky., 550 S.W.2d 511 (1977) is properly invoked by Moore in this case.

There was no evidence in this case which entitled Moore to an intoxication instruction. The mere fact that Moore was able to convince the judge to give an instruction that he was not entitled to does not justify a claim that a second-degree manslaughter instruction was required, even though such an instruction would have been required had there been evidence sufficient to justify the intoxication instruction.

Intoxication is a defense only if there is something in the evidence sufficient to support a doubt that the defendant knew what he was doing. Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977). Lack of sleep or fatigue is not a defense. It is just another factor for the jury to consider. The instructions which Moore received in regard to intoxication were more than enough.

The testimony of the three officers who heard Moore's confession established that he had been taking drugs and drinking the night before the murder. There was insufficient evidence to support a contention that Moore was intoxicated at the time of the offenses and that he did not know what he was doing. To the contrary, Moore gave a detailed account of the offenses. The testimony by witnesses who observed Moore after the time of the crimes was that he did not appear to be intoxicated.

The circumstances did not justify an additional instruction on a lesser included wanton offense. The crimes were committed near midday and showed intent and planning on the part of Moore. The offenses were clearly intentional. It is not proper to instruct the jury on a wanton offense when all the evidence indicates that it would be unreasonable for the jury to believe that the defendant's conduct was anything other than intentional. Hayes v. Commonwealth, Ky., 625 S.W.2d 583 (1982). The evidence indicates that the victim was shot four times in the head with the wound at the top of the head being a contact wound. Considering the number, location and lethal magnitude of the wounds it would have been unreasonable to instruct the jury on a wanton offense. Halvorsen v. Commonwealth, Ky., 730 S.W.2d 921 (1986).

There is no evidence which would have permitted the jury to determine that Moore was guilty of second-degree manslaughter rather than murder. The jury had a full opportunity to consider evidence with respect to intoxication or fatigue in both the guilt and penalty phases. The proof concerning these factors and the physical evidence did not justify permitting the jury to speculate on any offense for which wantonness was an element.

Moore was not entitled to a new jury for the sentencing phase of the trial. Much of the testimony about which Moore complains of as prejudicing the jury during the guilt phase of his trial came through his own defense witness during direct examination.

Moore argues that the trial judge committed reversible error by overruling the defense motion made prior to the commencement of the sentencing phase to have a new jury impaneled because the guilt phase jury had been exposed to information that would not be admissible at the sentencing phase, including that he had previously been convicted of this murder, sentenced to death and granted a new trial.

In response to a question from defense counsel during the guilt phase of the trial, a defense witness stated, "The reason I recall this here is because in the summer of '82 Brian Moore come [sic] off death row, I guess, in this case." No request for an admonition was made at this time. On cross-examination the defense witness made the following nonresponsive answer to the prosecutor's question. "An he made a statement that that's the reason he was over on death row, was because Kenny Blair--Kenneth Blair testified against him that he killed somebody." Again, no admonition was requested. At the conclusion of the cross-examination, the prosecutor suggested an admonition be given to the jury. Defense counsel declined the admonition on the basis it would draw attention to the statements.

These were unresponsive comments on Moore's conviction from the first trial made by a defense witness and were incidental to the main thrust of the witness's testimony. Moore did not request a curative admonition be given to the jury. The defense counsel argued against an admonition and the trial judge agreed that the best procedure was not to draw attention to the statements. The tactical procedure by defense counsel was not prejudicial to Moore's defense. The trial judge heard the comments and was in the best position to determine their prejudicial effect. These statements on the prior conviction did not rise to the degree of pervasiveness of the prejudicial statements made in United States v. Williams, 568 F.2d 464 (5th Cir.1978) or Arthur v. Bordenkircher, 715 F.2d 118 (4th Cir.1983). Williams, supra, dealt with the problem of jurors reading newspaper articles which indicated the defendant had been tried on the same charges and convicted but a new trial was ordered because of "erroneous testimony." In Arthur, supra, the defense counsel drafted the jury instruction which informed them that the defendant had already been convicted of the charges by a jury and that the present jury was to retry the defendant because of procedural error.

Moore also...