Parrish v. Com.

• Decision Date: 21 August 2003
• Docket Number: No. 2001-SC-0192-MR.,2001-SC-0192-MR.
• Citation: 121 S.W.3d 198
• Parties: Melvin Lee PARRISH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

121 S.W.3d 198

Melvin Lee PARRISH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2001-SC-0192-MR.

Supreme Court of Kentucky.

August 21, 2003.

Order Denying Petition for Rehearing and Granting Modification December 18, 2003.

Daniel T. Goyette, Jefferson District Public Defender, J. David Niehaus, Deputy Appellate Defender, Louisville, Counsel for Appellant.

Albert B. Chandler III, Attorney General, N. Susan Roncarti, Assistant Attorney General, Louis F. Mathias, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

WINTERSHEIMER, Justice.

Parrish was found guilty by a jury of intentionally murdering his cousin, Rhonda Allen, and her ten-year-old son, LaShawn, on December 5, 1997. He was also found guilty of attempting to murder Rhonda's five-year-old son, Jonathan. These crimes were committed in the course of a robbery. He was sentenced to death for the murder of the child; life without parole for the murder of the female victim; 20 years enhanced to life for the attempted murder of the second child, and 20 years enhanced to 50 years for the robbery.

At trial, there was evidence introduced that Parrish and others had spent the daytime of the murders smoking crack cocaine. The evidence indicates that Parrish asked his cousin to return the money he had paid her earlier that day for crack cocaine. When she refused, he stabbed her multiple times and took the money. The stabbing occurred in the living room of her apartment and Parrish then went to a back bedroom where he assaulted the children. One child survived and was able to testify that Parrish had attacked him and his brother. In a taped statement made to police the morning after the murders, Parrish admitted stabbing Rhonda "I asked her twice (to borrow back the money) and she said no and I guess I killed her." However, he denied doing any harm to the children. The prosecution introduced evidence at trial from a jailhouse informant who testified that while he was incarcerated with Parrish, the accused told him that he had committed the acts and intended to avoid conviction by faking insanity.

Upon conviction, Parrish filed this appeal. He raises twelve issues, each of which we have carefully reviewed for any error consistent with KRS 532.075(2).

I. Valid Indictment

Parrish argues that the trial judge erred by conducting a trial and imposing sentences upon him on the counts of the indictment for which he was not charged. Specifically, he contends that there is no endorsement of the clerk showing that the indictment was returned in open court. Further, that the statement on the indictment, "True Bills Counts 1-5", makes it unclear whether the grand jury indicted him on counts one through five or one and five. He raises this issue pursuant to RCr 8.18. We find this argument to be without merit.

No motion was made before trial alleging any defects in the indictment. Now, on appeal, Parrish solicits this Court for a partial waiver of RCr 8.18 which requires raising defects in the indictment before trial. He has waived any defects in the indictment by failing to bring them to the attention of the trial judge. It should be remembered that at arraignment, Parrish waived a reading of the indictment and entered a plea of not guilty.

It has long been held by this Court that an indictment is sufficient if it informs the accused of the specific offense which is charged and does not mislead the accused. Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977). In Thomas v. Commonwealth, Ky., 931 S.W.2d 446 (1996), it was observed that it is unnecessary pursuant to RCr 6.10 to restate all the technical requisites of the crime of which a defendant is accused, if the language of the indictment, coupled with the applicable statute, unmistakably accomplishes this end result. Here, the indictment is sufficient on its face. It informs Parrish that he is charged with murder in violation of KRS 507.020 (two counts); criminal attempt to commit murder in violation of KRS 506.010 and KRS 507.020; first-degree robbery, KRS 515.020, and as a first-degree persistent felony offender, KRS 532.080. The indictment sets out the charges in narrative form and is signed at the end by the foreperson of the grand jury. There can be no doubt as to what charges the grand jury returned. Cf. United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). There was no error.

II. Religious Beliefs of Jurors

Parrish asserts that the trial judge committed error by inquiring into the religious beliefs of prospective jurors during individual voir dire. We disagree.

It was not error to ask prospective jurors if they held any moral, religious, spiritual or personal beliefs that would interfere with their service as jurors on this death penalty case. No juror was questioned as to what, if any, religious denomination they were affiliated with. They were only asked if they had a religious or spiritual affiliation and what that organization's position was and whether they agreed with it. The questions were general in nature and had been tendered by defense counsel. There was no objection by Parrish. Decisions made during voir dire are generally regarded as trial strategy. Hodge v. Commonwealth, Ky., 17 S.W.3d 824 (2000).

The use of these general questions did not infringe on or permit the improper use of peremptory strikes. There is no connection to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The selection process was proper and consistent with RCr 9.36. There was no violation of any provision of either the federal or state constitutions.

III. Pregnancy of Female Victim

Parrish contends that the trial judge erred by admitting the statement of the medical examiner that the female victim had an intrauterine pregnancy which was discovered during the autopsy. There was no cross-examination on the subject and it was not mentioned to the jury again during the trial or sentencing procedure.

Parrish cites no case law to support his argument and we find this matter to be highly speculative. There was no violation of the Kentucky Rules of Evidence. The trial judge did not abuse in any way her discretion in permitting the medical examiner to simply state, as part of his autopsy findings, that the female victim was pregnant. See Commonwealth v. English, Ky., 993 S.W.2d 941 (1999).

Evidence about whom and what the victim was prior to death is properly admissible. See Templeman v. Commonwealth, Ky., 785 S.W.2d 259 (1990); Campbell v. Commonwealth, Ky., 788 S.W.2d 260 (1990); McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984). The pregnancy of the female victim was not sensational or shocking or likely to induce any undue sympathy. The probative value of the evidence was not substantially outweighed by the danger of undue prejudice. See KRE 403. Parrish was not denied a fair trial or due process of law under either the federal or state constitutions.

IV. Corroborating Witness

Parrish claims that the trial judge erred by allowing a corroborating witness, a jailhouse informant, to testify at trial because his testimony was inherently suspect and its reliability should have been the subject of a cautionary admonition. Young v. Commonwealth, Ky., 50 S.W.3d 148 (2001) considered a similar question and held that the credibility of witnesses and the weight to be given sworn testimony are matters for the jury to decide. Here, the jury decided and accepted the evidence. Parrish cross-examined the witness. There was no error.

V. EED Instruction

Parrish argues that the trial judge erred by refusing to instruct on extreme emotional disturbance with respect to the child murder victim. He claims that there was sufficient evidence to justify an instruction on this theory. Defense counsel tendered instructions at trial on homicide that included the mitigating circumstance of extreme emotional disturbance as to both murder victims.

Even if there had been a triggering event as required for an EED instruction as to the female victim, that event was interrupted and there would have been no triggering event as to the child victim. Consequently, the trial judge was correct in not instructing the jury as to the existence of an EED factor as to the child victim. The jury did not find the existence of EED as it relates to the adult victim and if EED did not exist to mitigate the murder of the female victim, then no EED would exist to mitigate the murder of the child.

The evidence indicates that Parrish asked the female victim twice if he could borrow $500 and she refused. He then went into the kitchen to get a knife and stabbed her while she sat on the couch in the living room. He admitted that he did not stop stabbing her even when she told him he could have the money. Parrish told police that there had never been an argument about it. He also admitted that the children knew him.

Parrish told the police that he did not remember stabbing the children but he told the jailhouse informant that he did stab them, stating that he stabbed one of the boys once and then decided to keep on stabbing him. The children were in a bedroom and their mother was dying on the living room floor.

Extreme emotional disturbance is defined as follows:

Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.

McClellan v. Commonwealth, Ky., 715 S.W.2d 464 at 468-469 (1986).

Defense counsel...