Perdue v. Com.

• Citation: 916 S.W.2d 148
• Decision Date: 21 September 1995
• Docket Number: No. 92-SC-734-MR,92-SC-734-MR
• Parties: Tommie PERDUE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 148

916 S.W.2d 148

Tommie PERDUE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 92-SC-734-MR.

Supreme Court of Kentucky.

Sept. 21, 1995.

As Corrected on Denial of Rehearing and Petition for

Modification March 21, 1996.

Donna L. Boyce, Julie Namkin, Assistant Public Advocates, Department of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Attorney General, Ian G. Sonego, Paul D. Gilbert, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.

LAMBERT, Justice.

This appeal is from the final judgment of the Russell Circuit Court adjudging appellant guilty of the crime of complicity to arson for which he was sentenced to life imprisonment and guilty of the crime of complicity to commit murder for which he was sentenced to death. A highly unusual aspect of this case is that appellant was neither an immediate actor in the victim's death nor was he even present at the scene of the victim's murder. Appellant's murder conviction and death sentence are premised on his having brokered, or arranged for the victim's murder in exchange for money.

On or about July 22, 1988, Herbert Cannon died in an automobile fire in Russell County, Kentucky, near the entrance of Lake Cumberland State Park. Destruction of the automobile was nearly complete as was the destruction of the victim's remains. In life, Herbert Cannon was a man of normal height and weight, but his remains measured just 41 inches and weighed 35 pounds. To cause the extraordinary destruction of the motor vehicle and the victim's remains, evidence was presented that the fire produced heat of 1800--1900? F and from this and other evidence, there was no doubt that accelerants were used. The evidence also indicated that Cannon was awake during the fire.

For about two years after the murder, the police were without substantial leads as to the perpetrators of the crime. However, in August of 1990, the Kentucky State Police were contacted by Cynthia Moore, a woman who had formerly lived with one Frank Eldred, and she possessed information about the death of Herbert Cannon which had not been publicly disclosed. Moore identified appellant as one of the participants in the murder and she agreed to wear a tape-recording device and attempt to obtain taped information and/or admissions from appellant. Thereafter, Sue Melton, one who appears to have been the primary instigator of Cannon's murder, was indicted. Based on Melton's statements, together with the Moore tape-recording of appellant, as well as statements Moore had obtained from Frank Eldred, some of which were made in the presence of appellant, the police pieced together what happened in the criminal episode. In substance, it appears that Sue Melton, a woman who had been married to the victim, Herbert Cannon, and who had remained the beneficiary of a $50,000 policy of insurance on his life, sought to have Cannon murdered so that she could collect the life insurance death proceeds. Sue indicated to her friend, Arlene Ploetner, that she wanted to "get somebody to teach Herbie a lesson," and being a dutiful friend, Ploetner contacted appellant about arranging for the murder. There was evidence that Ploetner placed a telephone call to appellant from Sue Melton's home and that the long-distance call was reflected on Melton's bill. Thereafter, appellant arranged for Frank Eldred to murder the victim and an agreement was reached as to the amount Melton would pay appellant and Eldred for the murder.

To accomplish the murder, Sue Melton manipulated the victim into the company of Frank Eldred and Arlene Ploetner and it was they who drugged the victim and burned his car with him inside. Prior to appellant's trial, Sue Melton entered into a plea agreement for the offenses of conspiracy to commit first degree assault and conspiracy to commit kidnapping. Upon her guilty plea and for her co-operation, she was sentenced to a total of twenty years. Melton testified for the Commonwealth at appellant's trial. Frank Eldred was tried after Sue Melton's guilty plea but prior to the trial of appellant. Eldred was convicted and sentenced to life imprisonment for first degree arson and to life without possibility of parole for twenty-five years for murder. Ploetner received two five-year sentences for conviction of facilitation to murder and arson.

Prior to our review of the issues raised by appellant, we must comment upon Where the death penalty has been imposed, we nonetheless review allegations of these quasi errors. Assuming that 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; and (2) if there is no reasonable explanation, 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.

                the standard of review we will apply to unpreserved claims of error.   This is necessary because a great many of the issues appellant has raised are wholly or substantially unpreserved.   Appellant and the Commonwealth agree that in death penalty cases a different standard of review is applied and this is in accordance with KRS 532.075(2) and our decision in Ice v. Commonwealth, Ky., 667 S.W.2d 671, cert. denied, 469 U.S. 860, 105 S.Ct. 192, 83 L.Ed.2d 125 (1984).   In almost every death penalty case, ingenious appellate counsel forces us to confront claims of error which are unpreserved by proper objection.   The prevailing rule for dealing with such circumstances is succinctly stated in Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), cert. denied, 502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991) as follows
                

Id. at 668 (citations omitted).

By virtue of the foregoing, we are required to make a three-pronged inquiry. First is whether an error was committed. Next is whether there was a reasonable justification for the failure to object, including trial tactic; and finally, even without a reasonable explanation, whether the error was so prejudicial that without it the defendant might not have been found guilty or the death penalty might not have been imposed.

Appellant begins his brief with a twenty-five page argument alleging prosecutorial misconduct at both the guilt and penalty phases of his trial. Contained in this argument are seventeen specific contentions containing numerous additional claims of error, beginning with the first utterances of the Commonwealth's Attorney and continuing until his last breath at closing argument in the penalty phase of the trial.

It is profoundly troublesome to discover an almost complete absence of objection by defense counsel to many of the alleged errors. In those instances where the defense was able to muster an objection, it was almost always sustained, and an admonition often followed. Nevertheless, we have identified our standard of review of unpreserved claims of error, and will apply that standard to the allegations of prosecutorial misconduct. ¹ We will now begin our discussion of the specific claims of error.

I. GUILT PHASE

During the guilt phase of the trial, the Commonwealth undertook to elicit information concerning the drug distributions of appellant, including alleged outstanding debts for marijuana delivery. Such testimony was made relevant and admissible as appellant had contended that incriminating portions of the taped conversation between himself and Cynthia Moore concerned marijuana sales, and not the death of Herbert Cannon. As such, the inquiries by the Commonwealth were not error as they related to appellant's defense.

Appellant also contends that statements concerning witnesses' fear of appellant were prejudicial error. At trial, Sue Melton testified that appellant threatened to harm her daughter unless she paid him the money owed for his involvement in the murder. Cynthia Moore testified that she feared appellant and voluntarily stayed in jail for her own protection. No objection was made to this testimony, nor were there any references to it made during argument. In fact The next claim of error arises from the Commonwealth's alleged misstatement of evidence during guilt phase closing argument. In the taped conversation between appellant and Cynthia Moore, several times appellant refers to the murder of Herbert Cannon and says "it got done." Only once is his personal involvement expressly acknowledged as "we got it done." During closing argument, however, the prosecution made several references to the tape and misquoted appellant as stating "I got it done." Appellant did not say "I got it done" anywhere in the taped conversation. However, the jury could have reviewed the tape recording and accompanying transcript during its deliberations. While we disapprove of the prosecutor's misstatement of the evidence, the error was harmless. RCr 9.24.

                appellant attacked the testimony on cross-examination.   As such, we do not consider this to be palpable error, in violation of any reasonable trial strategy.   In the context of the case against appellant, these minor references were truly harmless.  Sanders v. Commonwealth, Ky., 801 S.W.2d 665, 668 (1990)
                

Appellant claims other error as to the closing argument at the guilt phase of his trial. At one point, the prosecutor stated that Sue Melton stepped forward and pled guilty, but the appellant "has come down here, and he wants a trial, which he is entitled to. He didn't plead guilty. He pled not guilty." While such a statement strains the boundaries of propriety by its implication, it cannot be considered error as it is a valid statement of the facts surrounding appellant's trial. Moreover, the comment was in rebuttal to appellant's attack on...