Pollini v. Com.

• Decision Date: 22 September 2005
• Docket Number: No. 2003-SC-0552-MR.,2003-SC-0552-MR.
• Citation: Pollini v. Com., 172 S.W.3d 418 (Ky. 2005)
• Parties: Jasper POLLINI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

172 S.W.3d 418

Jasper POLLINI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-SC-0552-MR.

Supreme Court of Kentucky.

September 22, 2005.

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Frank Wm. Heft, Jr., Louisville, KY, for Appellant.

Gregory D. Stumbo, Attorney General, Ian G. Sonego, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for Appellee.

Opinion of the Court by Justice GRAVES.

A jury of the Jefferson Circuit Court convicted Appellant, Jasper Pollini, for the crimes of murder (complicity), first degree burglary (complicity), second degree burglary (complicity), and receiving stolen property over $300 (complicity) in connection with an early morning burglary spree which culminated with the murder of Byron Pruitt. During the sentencing phase, the jury found as an aggravating circumstance that Appellant murdered Pruitt while he was engaged in the commission of a first degree burglary and fixed Appellant's sentence for the murder of Pruitt at life imprisonment without the benefit of parole for twenty-five (25) years. Appellant was also sentenced to fifteen (15) years, ten (10) years, and one (1) year, respectively, for the remaining crimes, with such sentences ordered to run concurrently with the sentence on the murder conviction. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm all of Appellant's convictions in this case, but vacate the sentence imposed on the murder conviction and remand for a new penalty phase trial on noncapital murder.

In the early morning hours of May 7, 2002, Appellant, who was seventeen years old at the time these crimes were committed, broke into Brian Murphy's garage and stole some tools and a generator. Apparently unable to transport the generator, Appellant returned to his nearby home and sought the assistance of Jason Edwards, the boyfriend of Appellant's sister, Crystal Plank. Edwards drove Appellant back to the area and the pair loaded the generator from Murphy's garage into the trunk of Edward's car. Appellant told Edwards to stay in the car and then proceeded to use a screwdriver to break into the nearby garage of Dan Ziegler.

Ziegler awoke shortly after 5:00 a.m. to the sound of his alarm system beeping. While investigating the source for the alarm, Ziegler went into his garage and saw Appellant. Ziegler testified that he perceived Appellant to have a weapon in his hand, but was not sure what it was. Ziegler told Appellant to stop what he was doing or he would "blow his head off." Appellant fled from the scene and was chased into some nearby woods by Ziegler. Ziegler testified that he soon heard a car drive away after losing sight of Appellant in the woods. After returning to his home, Ziegler called 911 and his neighbor, Byron Pruitt, to report the incident and to advise Pruitt to check his property. After talking with Ziegler, Pruitt armed himself with an automatic pistol and a flashlight and began investigating the area.

Meanwhile, Appellant and Edwards drove back to Appellant's house. Edwards removed the generator from his car, covered the car, and then went into the house. Shortly after retreating into the house, Appellant asked Edwards to take him back to Ziegler's residence to retrieve a toolbox he had left at the scene. When Edwards refused to return to Ziegler's residence, Appellant persuaded his sister, Crystal Plank, to drive him back to the scene to retrieve his toolbox.

Between sixteen and thirty minutes after first being confronted by Zeigler, Appellant and Plank returned to the scene of the burglaries. Appellant stated that he armed himself with a semi-automatic pistol immediately before his return to the scene of the crimes because he had been threatened by Ziegler. Upon their return to the scene, Appellant instructed Plank to turn off the lights on the car because he was about to get out to retrieve the toolbox. As Plank stopped the car, she observed a flashlight coming toward the car. Appellant hurriedly instructed Plank to back up; however, Plank had difficulty doing so due to poor visibility. Appellant then fired his gun out the window of Plank's vehicle and the bullet pierced Pruitt in the throat. Pruitt died shortly thereafter from his injury. Immediately after the shooting, Appellant and Plank fled the scene, but were apprehended, along with Edwards, later that day.

Appellant asserts nine assignments of error upon which he requests relief. We address each assignment of error in turn:

I. Voir Dire Questions

Appellant argues it was prejudicial error for the trial court to ask each prospective juror the following question, "If you are on the jury, do you have any moral or religious or conscientious objections that would prevent you from considering the death penalty as a punishment and imposing it if you believe it appropriate?" The extent and appropriateness of questioning during voir dire is a matter within the sound discretion of the trial court. See Woodall v. Commonwealth, 63 S.W.3d 104, 116-118 (Ky.2002); Tamme v. Commonwealth, 973 S.W.2d 13, 25 (Ky.1998); Grooms v. Commonwealth, 756 S.W.2d 131, 134 (Ky.1988).

Appellant first asserts error in the trial court's use of the word "impose" because such a word implies that the jurors must commit themselves to use of the death penalty later at trial. We disagree. The full context of the trial court's question reads, "any ... objections that would prevent you from considering the death penalty ... and imposing it if you believe it appropriate?" (Emphasis added). When considered in its proper context, we find that the trial court's question does not imply an improper premise nor is it likely to be misleading to a reasonable juror. See Wheeler v. Commonwealth, 121 S.W.3d 173, 179 (Ky.2003) (jurors who could not impose the death penalty were properly stricken for cause); Caudill v. Commonwealth, 120 S.W.3d 635, 654 (Ky.2003) (potential jurors may be excused for cause if the potential jurors are biased against imposition of the death penalty).

Appellant also asserts error with respect to the trial court's question regarding whether the jurors had any "moral or religious or conscientious objections that would prevent" consideration of the death penalty as a punishment. Appellant argues such an inquiry violates the jurors' rights to religious freedom under the Kentucky and United States Constitutions. This issue was not preserved and is raised by Appellant as palpable error under RCr 10.26. Appellant concedes that we addressed and rejected essentially the same argument in Parrish v. Commonwealth, 121 S.W.3d 198, 202 (Ky.2003) ("There was no violation of any provision of either the federal or state constitutions" when the trial court asked each prospective juror "if they held any moral, religious, spiritual or personal beliefs that would interfere with their service as jurors on this death penalty case."), but nonetheless urges reconsideration of the issue. After careful review, we find the totality of the circumstances in this case do not compel reconsideration of this issue and thus, we find no palpable error in the trial court's voir dire question as cited above.

II. 911 Tapes

Appellant next argues that a tape recording of 911 telephone calls made by Ziegler during the course of events in this case should have been excluded from evidence because they were merely cumulative and overly prejudicial to Appellant. "It is well settled that the admission of tape recordings at trial rests within the sound discretion of the trial court." Johnson v. Commonwealth, 90 S.W.3d 39, 45 (Ky.2002) (quoting United States v. Robinson, 707 F.2d 872, 876 (6th Cir.1983)); see also Cook v. Commonwealth, 129 S.W.3d 351, 361 (Ky.2004) ("The outcome of a KRE 403 balancing test is within the sound discretion of the trial judge, and that decision will only be overturned if there has been an abuse of discretion, i.e., if the trial judge's ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.").

The tape recording introduced at trial contained three telephone calls made to 911 by Ziegler on the morning of Pruitt's death. The recording reflects that at 5:47 a.m. Zeigler called 911 to report a break-in to his garage and that the suspect had subsequently fled from the scene. A second call made at 6:04 a.m. by Ziegler reported that he had heard a gunshot and someone yelling for him. The tape then reflects Ziegler observing Pruitt coming towards him, having been shot in the throat, and the 911 operator instructing Ziegler to hold a cloth to Pruitt's throat to stop the bleeding. During this call, Pruitt can be heard in the background emitting sounds as a result of his fatal injury. A third call was made by Ziegler after he had assisted Pruitt.

Rule 403 of the Kentucky Rules of Evidence states, in part, that relevant evidence may be excluded by the trial court if the "probative value [of the evidence] is substantially outweighed by the danger of undue prejudice." Alternatively, the trial court may exclude relevant evidence where the presentation of such evidence is merely cumulative and thus, unnecessary for a full understanding of the case. Appellant asserts that since Ziegler had already testified about the dramatic events which were partially captured within the calls he made to 911, the tape recording was merely cumulative and had little to no probative value. Appellant further asserts the tape recording was overly prejudicial because the tape recording impermissibly bolstered Ziegler's prior testimony and audibly portrayed suffering by Pruitt as he was dying. We disagree.

It is generally accepted that evidence depicting gruesome, heinous, or unsettling portrayals of the crime or of the victim, while prejudicial to the defendant, is not excludable from the consideration of the jury unless such evidence becomes overly prejudicial to the defendant because it is (1)...