Morris v. Com., 86-SC-84-MR
| Decision Date | 09 February 1989 |
| Docket Number | No. 86-SC-84-MR,86-SC-84-MR |
| Citation | 766 S.W.2d 58 |
| Parties | Joseph Edward MORRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Oleh Tustaniwsky, Linda K. West, Asst. Public Advocates, Frankfort, for appellant.
Frederic J. Cowan, Atty. Gen., Frankfort, David A. Sexton, Vickie L. Wise, Asst. Attys. Gen., for appellee.
On the evening of October 18, 1984, appellant Joseph Edward Morris, Tony Mallory and Jackie Gilbert formulated a plan to burglarize the home of Mr. and Mrs. George Pope in Harlan County, the Popes being 102 and 95 years of age. At the Pope home, on this occasion, in addition to the mother and father, were the three sons of the Popes--Howard Pope, who had gone upstairs to retire for the night; and John and George, Jr., who were in the living room watching television. Appellant Morris and Mallory were armed, and Gilbert carried with him a roll of duct tape to be utilized to bind the victims.
About 9:15 p.m., the two armed burglars broke into the house and robbed John and George of $345 in cash. Forcing the victims to the floor, they exacted the information from them that there was a safe in a storage room off the living room. Gilbert then entered the house, and he and appellant began to tie up the victims with the tape while Mallory went to the storage room.
Meanwhile, Howard Pope apparently heard the noise created downstairs by this scenario and armed himself with a .30-.30 rifle. He proceeded downstairs where he encountered Mallory and exchanged gunfire with him. Then Howard Pope stepped into the living room, where he was shot and killed by the appellant.
Appellant was tried for and convicted of intentional murder, and given the death penalty upon recommendation of the jury.
At the outset of this trial, appellant moved that the voir dire of the jury panel be conducted individually, inasmuch as the appellant was indicted for the capital offense of intentional murder. According to the motion, its purpose was to discover the effect, if any, of pre-trial publicity and the opinion of the separate jurors on the death penalty. No effort was made in this motion to exclude the public or press, merely the other members of the panel. This motion was denied.
We have previously held that "separate examination of jurors or prospective jurors in circumstances of potential prejudice is a matter of procedural policy and is not a requirement of due process." Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974). However, in that case, in Footnote 1, p. 503, the court went on to "suggest to the trial court that they give thought to the use of separate examination of jurors in appropriate circumstances." Effective January 1, 1989, RCr 9.38 has been changed to add the requirement that, when the Commonwealth seeks the death penalty, individual voir dire will be conducted to discover the effect of pre-trial publicity and the feeling of the jurors concerning the death penalty.
It is the opinion of the court that, in the instant case, the circumstances were such that the motion should have been granted. The failure to grant, considered with numerous other events which occurred during the course of this trial, resulted in prejudicial error to the appellant.
The reason for the change in the rule and the reason for this ruling are the same. When there has been extensive pre-trial publicity, great care must be exercised on voir dire examination to ascertain just what information a prospective juror has accumulated. In the absence of individual voir dire, a disqualifying item of knowledge or a rumor voiced by one panelist--even inadvertently--may well taint the entire panel. It is mandatory to permit voir dire questioning which will assure that a jury which is empaneled will base its verdict solely on the evidence in the case and the instructions of the court. See United States v. Dellinger, 472 F.2d 340 (7th Cir.1972); Silverthorne v. United States, 400 F.2d 627 (9th Cir.1968). In the instant case, the denial of the motion to separate made it impossible to ascertain what an individual juror had heard about the case.
Continuing with the voir dire, the appellant sought to determine whether each juror could consider the full range of penalties prescribed by statute relating to the offense of intentional murder, for which this appellant had been indicted. Four of the jurors, in response to questioning, indicated that, if the proof was that there was an "intentional" murder, they would consider only a death penalty. The fallacy of the failure to separate the jury appears again in this process. When counsel for the appellant questioned the first juror on his feeling about the penalty for intentional murder, the juror injected the phrase "cold-blooded." This phrase stayed in the voir dire and answers until the judge interceded after a protracted argument and denied the appellant the use of the word "intentional" in further voir dire. However, the court denied the motion to excuse these four jurors for cause, forcing the appellant to exhaust his peremptory strikes when there were other jurors he wished to strike. We do not consider the rehabilitative efforts of the Commonwealth sufficient, and feel that failure to strike these jurors for cause constituted reversible error. We note with interest that the court sustained motions of the Commonwealth to strike six jurors who answered that they could not give the death penalty under any circumstances, but would not strike these four who answered they could give nothing else.
The questioning during the voir dire was hardly a model for examination of prospective jurors. It was filled with hypotheticals propounded by both counsel for appellant and counsel for the Commonwealth, and some of the hypotheticals were just invented by the jurors.
There were bench conferences, objections to questions and constant bickering between the attorneys. It is the opinion of this court that the lower court should have informed the jury there are four penalties for the capital offense of intentional murder--viz., death, life without parole or probation for 25 years, life, or a term of not less than 20 years. KRS 532.030. The jury should be asked the simple question "If you determine under the instructions of the court beyond a reasonable doubt that the defendant is guilty of intentional murder, could you consider the entire range of penalties provided by statutes of this Commonwealth as outlined to you?" Both the Commonwealth and the defendant are entitled to a panel of jurors who will consider the entire range of punishment. Those who will not should be struck by the court for cause, whether on behalf of the Commonwealth or the defendant.
In the instant case, however, the court, instead of correcting the voir dire, merely forbad the use of the word "intentional" in questioning by appellant's counsel. This thwarted questioning relating to the sole crime with which he was charged, that of intentional murder.
There are other allegations of error which merit discussion. For example, appellant argues that the court should have directed a verdict of "not guilty" on the charge of intentional murder, contending there was overwhelming evidence of extreme emotional disturbance. The basis of this contention is his argument that he shot the victim who was armed for fear that he, himself, would be shot. Extreme emotional disturbance, if present, merely mitigates a charge of murder, but permits an instruction on voluntary manslaughter, and should be left to the jury.
Appellant complains about the introduction of 19 photographs of the deceased. Standing alone, this may or may not be reversible error. However, on retrial the court should utilize selected photographs which fairly present the evidence sought to be introduced and not overwhelm the jury with repetitive photographs.
Another alleged error is the conduct of the Commonwealth Attorney during his opening statement, his questioning of witnesses, his closing arguments, and the penalty phase of the trial. These allegations of error are well taken, as seldom have we seen such flagrant disregard for the rules of evidence. It began with the opening statement with such comments as "There is no greater sacrifice that a man can make than that of laying his life down for his brothers"; "The life of a hero, a man who will lay down his life and so the greatest thing that's possible for the members of his family, who gave the ultimate sacrifice ..."
The questioning of the family of the victim was another example of excess. Questions were asked continually and permitted over objections to establish the war record, wounds, community service, etc. of all the Pope family. For a typical example, the direct examination of John Pope, one of the robbery victims, included the following:
Q. In addition to that injury, were you also injured in Korea?
A. Yes, sir.
Q. And what type injury did you receive there?
A. Schrapnel, in the hip.
* * *
* * *
Q. Do you know what saved you?
A. Huh?
Q. What saved you?
A. It was a shooting.
Q. Who saved you?
A. My brother, Howard.
* * *
* * *
Q. Did you love your brother?
A. I sure do.
Q. I'm sorry. I spoke in the past tense. You still love your brother, don't you?
A. I sure do.
Q. Did you expect on the 18th of October that his life would be taken away from him?
A. No, sir.
Q. And the manner in which it was taken?
A. Had no idea in the world.
Q. Did you expect on October 18, 1984, for three (3) grown men, young men, strong men, to come in on you, fifty-three (53) years of age, your brother fifty-five (55), and your other brother, I think has testified fifty-six (56) or fifty-eight (58) years of age, your mother ninety-six (96) and your father a hundred and one (101) years of age, did you expect that, sir?
A. Had no idea in the world.
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Q. How did you feel after you got up and saw your brother and in a few more minutes when...
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