Ordway v. Commonwealth

• Citation: 391 S.W.3d 762
• Decision Date: 21 February 2013
• Docket Number: No. 2010–SC–000783–MR.,2010–SC–000783–MR.
• Parties: Carlos Lamont ORDWAY, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

391 S.W.3d 762

Carlos Lamont ORDWAY, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000783–MR.

Supreme Court of Kentucky.

Feb. 21, 2013.

Kathleen Kallaher Schmidt, Appeals Branch Manager, Emily Holt Rhorer, Brandon Neil Jewell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

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

Opinion of the Court by Justice VENTERS.

Carlos Lamont Ordway appeals from a judgment of the Fayette Circuit Court convicting him of two counts of intentional murder and sentencing him to death under both verdicts based upon the aggravating factor of causing multiple deaths. KRS 532.025(2)(a)6.¹ The deaths occurred as a result of a shooting during which Appellant claims he was acting in self-defense. As further discussed below, Appellant raises multiple issues in support of reversal of his convictions and sentences. As explainedwithin our discussion, we determine that reversible error occurred in several instances, including: the admission of testimony from a police detective that Appellant's behavior after the shooting was inconsistent with someone who had actually acted in self-defense, thereby implying that from his experienced observations that Appellant had fabricated his self-defense claim; the admission of evidence of Appellant's post-arrest invocation of his right to remain silent; and the trial court's failure to strike for cause a potential juror who was the sibling of the victim's advocate directly connected to this case; and the exclusion of evidence of the victim's statement immediately before the shooting. We address these issues below, along with other matters that are likely to recur upon retrial.

I. FACTUAL AND PROCEDURAL BACKGROUND

On a summer night in Lexington at about 10:00 p.m., Appellant was riding in the front seat of a stolen car with two acquaintances. Rodriquez “Hot Rod” Turner was driving and Patrick “Lee Lee” Lewis was in the back seat directly behind Appellant. The following is Appellant's account of what happened.

Both Turner and Lewis were armed with guns, and they knew that Appellant had drugs in his possession. Appellant testified that Lewis put a gun to his head, and threatened, “give it up, you know what time it is, or you're going to die.” Turner then drew a gun and placed it on his lap, leading Appellant to believe the two. were working together to steal his drugs and kill him. Appellant gave them all of the drugs he had, but he feared that they were not satisfied. He testified that he was “scared to death.” He reacted by smacking the gun out of Lewis's hand and then grabbing the gun from Turner's lap. He then shot Lewis, whom he perceived as the more immediate threat because Lewis was within reach of the dropped gun. When Turner, who was still driving, reached to get his gun back from Appellant, Appellant shot him, too. The car then crashed and the gun fell out of Appellant's hand. Appellant testified that he got out of the vehicle and looked back to see Lewis trying to get out of the car with a gun in his hand. Perceiving that Lewis was a continuing threat, Appellant grabbed Lewis's gun and shot him with it. Because he believed that Turner was reaching for a gun, Appellant also shot him again.

Appellant therefore admits that he shot each of the victims multiple times, but claims that all of the shots were fired in self-defense. Other testimony established that Lewis was shot five times and Turner three times. The crash of the car caught the attention of several persons in the area. Witnesses were plentiful and their perceptions of the dramatic event varied.

One local resident who heard the crash saw Appellant standing beside the wrecked vehicle, lean into it and shoot, first the driver, and then the backseat passenger. Another witness on the scene saw a man (apparently Appellant) open the front door of the wrecked vehicle, shoot first the passenger in the backseat, then the driver. Yet another nearby resident testified that after he heard the crash, he saw someone walk toward the wrecked car, draw a gun, and shoot into the car two times from a distance of four or five feet.

A motorist stopped at the intersection where the crash occurred said she first saw Appellant crouched down on the curb. She testified that Appellant approached her vehicle, tugged at the passenger-side door handle, and said repeatedly that he had a gun. She promptly drove away and called 911. Another motorist at the intersection said a man stood beside her car, pointed a gun at her front-seat passenger, and told the passenger to get out of the car. That motorist also drove away and called 911. Appellant admitted that he approached both of those vehicles, but he claimed he was only seeking help, not a get-away vehicle. Emergency responders arrived at the scene and saw Appellant stumbling around in the middle of the road, talking to himself.

Both victims were found buckled into their seat belts. Lewis was pronounced dead at the scene, and Turner died shortly thereafter at the hospital. When a police officer arrived on the scene, bystanders pointed out Appellant and said “that's him.” Appellant's strange behavior continued as he was transported to the hospital, alternating between periods of screaming agitation and periods of non-responsiveness. At the hospital, Appellant's continued state of agitation caused him to be put in restraints.

Appellant was interviewed at the hospital by police detective Wilson for about ninety seconds. According to Wilson, Appellant said that Turner and Lewis had tried to kill him and that he shot them in self-defense; Appellant stated that the victims were his friends, but he also said, somewhat inconsistently, that he did not really know them. Appellant was arrested. While lodged in jail, but prior to the initiation of any custodial interrogation or Miranda procedures, he spontaneously said to Detective Wilson, “I got fuckin' nothing for you.” Based upon his interactions with Appellant and upon his other knowledge of the events, and over Appellant's objection, Wilson testified that Appellant's behavior in the aftermath of the shooting was not consistent with the behavior of the typical person who had acted in self-defense, thereby implying to the jury that it should reject his claim of self-defense.

During the autopsy, a substance found in Lewis's pocket was determined to be fake crack, commonly called “fleece”—a substance manufactured to look like rocks of actual crack cocaine. However, this evidence was later lost before Appellant had an opportunity to have it examined. Other evidence included a bag of ecstasy found in the driver's side door compartment, and bags of marijuana found in the back of the vehicle and in the center console.

Also found in the center console was an audio recorder. Prior to trial, Appellant's counsel was told that nothing was recorded on the device. In the midst of the trial, however, Appellant's counsel learned that the recorder had captured the voice of a man saying, at least according to Appellant's interpretation, “... going to the store to get ready in about ten minutes to practice okay, we gonna see if he's gonna cry, we gonna record it. Okay.” Appellant claimed this evidence was exculpatory and he moved for a mistrial because its late disclosure, midway through the trial, prevented him from taking full advantage of this exculpatory evidence. The trial court denied the motion.

During the penalty phase of the trial, the Commonwealth presented evidence concerning Appellant's prior convictions, including juvenile adjudications which had not been specifically provided to Appellant by the Commonwealth until after the conclusion of the guilt phase. Despite the mitigating evidence of Appellant's traumatic childhood, the jury found the aggravating factor of multiple intentional murders and recommended a sentence of death on both counts. The trial court entered final judgment in accordance with the jury's verdict and imposed the two sentences of death. Appellant brings this appeal as a matter of right. Ky. Const. § 110.

II. STANDARDS OF REVIEW IN DEATH PENALTY APPEALS

Appellant seeks review of thirty-one listed issues, some of which contain several sub-parts, including some that were not preserved for review by timely objection pursuant to RCr 9.22 or RCr 9.54. Because we treat unpreserved error differently in death penalty cases, we begin with a brief summary of our palpable error standards in these types of cases, and also set out in this section other relevant standards of review we employ in our examination of Appellant's claims.

Where the death penalty has been imposed, we nonetheless carefully review unpreserved errors without regard to the palpable error limitations of RCr 10.26, as stated in Sanders v. Commonwealth:

[If] the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; [but] (2) if there is no [such] reasonable explanation, [we then address] whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. All unpreserved issues are subject to this analysis.

801 S.W.2d 665, 668 (Ky.1990) (internal citations omitted); see also Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky.2003).

“The rationale for this rule is fairly straightforward. Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers.” Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky.1999). Thus, the invocation of the death penalty requires a more expansive standard of review...