Salinas v. Com.

• Decision Date: 13 June 2002
• Docket Number: No. 2000-SC-0126-MR.,2000-SC-0126-MR.
• Citation: 84 S.W.3d 913
• Parties: Ruben Rios SALINAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

84 S.W.3d 913

Ruben Rios SALINAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2000-SC-0126-MR.

Supreme Court of Kentucky.

June 13, 2002.

Rehearing Denied October 17, 2002.

Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.

A.B. Chandler, III, Attorney General, Frankfort, KY, Ian G. Sonego, William L. Daniel, II, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

COOPER, Justice.

Appellant Ruben Rios Salinas was convicted by a Fayette Circuit Court jury of murdering Aubrey L. ("Al") Nuckolls, for which he was sentenced to life in prison, and for kidnapping Nuckolls, for which he was sentenced to life in prison without benefit of probation or parole. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). We reverse and remand for a new trial because of (1) the improper introduction of hearsay evidence and (2) an improper instruction on the aggravating circumstance necessary for imposition of capital punishment.

At about 3:00 p.m. on Thursday, September 10, 1998, Nuckolls told his wife, Gayle, that he was going to a pharmacy to refill his prescription medication. He drove away in his red 1988 Pontiac automobile and did not return. The next morning, Gayle Nuckolls found a note inside the front storm door of her home stating that her husband was "fine" and directing her to dial his pager number. She did so, and, when the call was returned, an unknown voice advised her that her husband had been in a "drug deal gone wrong," that he was in serious trouble, and that she needed to get a lot of money together in order to save him. Mrs. Nuckolls advised the caller to "throw him off a cliff" and reported her husband's disappearance and the telephone call to the police. Mrs. Nuckolls explained that her unusual response to the caller was because her husband had previously been engaged in narcotics trafficking but had assured her that he was no longer involved in criminal activities. In fact, at the time of his disappearance, Nuckolls was under investigation for possible narcotics trafficking, gun smuggling, and counterfeiting. After his disappearance, police investigators found $10,000.00 worth of marijuana in a rental storage facility controlled by Nuckolls and his wife.

Nuckolls's girlfriend, Nancy Burd, testified that Nuckolls called her home "800" number on September 10, 1998, to tell her that he was taking a trip to Ohio. At about 5:00 a.m. on Friday, September 11, 1998, Burd received a telephone call from an unknown person advising her that Nuckolls had been in a "drug deal gone bad," that he was in danger, and that she needed to send him $20,000.00. Burd assumed the caller was talking about money for a bail bond. Three hours later, she received another telephone call from the same unknown person asking if she intended to "help AL" She responded, "No, I am going to work," which she did. Early Sunday morning, September 13, 1998, Burd received another telephone call from the same unknown person advising her that Nuckolls had been kidnapped and was being held for $20,000.00 ransom.

On September 13, 1998, Appellant telephoned Anne Gautier, an "acquaintance," and asked her if he could park an automobile on the rural Jessamine County property where Gautier resided with her husband, Guy Gautier, and their two children. Gautier agreed, and Appellant brought a vehicle to her property later that day. The vehicle was later identified as the red 1988 Pontiac belonging to Al Nuckolls.

On Monday, September 14, 1998, Gayle Nuckolls received a letter, postmarked September 11, 1998, threatening not only her husband, but also herself and her father, if she did not respond positively to the previous demand for money. She gave the letter to the police. Approximately one month later, Al Nuckolls's dead body was found in the trunk of the red 1988 Pontiac still parked on the Gautier property. His legs and arms were bound together with baling wire, and his body was wrapped in cardboard and tarpaulin and covered with lime. He had been shot twice, once in the back of the head and once in the right temple.

Appellant, a person of Mexican heritage, testified that he was engaged in the business of importing merchandise from Mexico to Lexington, Kentucky, for resale. His family lived in Texas, and, when in Lexington, he lived in a house that he shared with Chris Kaluski. Appellant admitted that he was acquainted with Nuckolls and that the two had often discussed possible business transactions but had actually participated in only one small, joint transaction. Appellant testified that, on September 10, 1998, Nuckolls came to his residence demanding money. Appellant admitted killing Nuckolls but claimed he did so in self-defense. He also admitted that he, with the assistance of Kaluski's employee, Gary Wade, loaded Nuckolls's body into the trunk of the Pontiac, and that he then drove the vehicle to the Gautier property and parked it. Finally, he admitted that he placed the note in the front door of the Nuckolls residence, wrote the threatening letter received by Gayle Nuckolls on September 14, 1998, and made the telephone calls described by Gayle Nuckolls and Nancy Burd. He claimed the kidnap/ransom story was a hoax designed to steer suspicion away from himself.

After his arrest, Appellant wrote a letter to Anne Gautier advising her that the police were in possession of a "flow chart" identifying both her and her husband as members of the "Bluegrass Conspiracy" organization headed by Al Nuckolls. The letter also indicated that the Gautiers were acquainted with Chris Kaluski and suggested that "[y]ou will probably feel like taking a long vacation, depending on the calendar." Appellant wrote another letter to Kaluski informing him that the Gautiers were on the "Bluegrass Conspiracy" flow chart and that "Gary needs to go away about a month before and stay away."

I. SUFFICIENCY OF THE INDICTMENT.

Appellant asserts that the indictment was insufficient to establish subject matter jurisdiction because the charges did not describe every element of each offense, i.e., whether the murder was committed intentionally or wantonly and whether the kidnapping was committed for ransom or reward, as opposed to another of the four purposes enumerated in KRS 509.040(1). As pointed out in Thomas v. Commonwealth, Ky., 931 S.W.2d 446, 448-50 (1996), an indictment is not insufficient because of its failure to detail the formerly "essential" factual elements of the offense so long as it informs the accused of the specific offense with which he is charged and does not mislead him. Count One charged Appellant with murder, capital offense, for killing Aubrey Nuckolls in violation of KRS 507.020; Count Two charged him with kidnapping, capital offense, for kidnapping Aubrey Nuckolls in violation of KRS 509.040. Per Thomas, supra, that was sufficient to inform Appellant of the specific offenses with which he was charged. See also Harris v. Commonwealth, Ky., 793 S.W.2d 802, 804 (1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991).

II. DEATH-QUALIFICATION OF THE JURY.

Appellant asserts that (1) he was not eligible for the death penalty because there was no aggravating circumstance, KRS 532.025(3); (2) imposition of the death penalty for kidnapping violates the Eighth Amendment proscription against cruel and unusual punishment; and (3) he was prejudiced by the death-qualification of the jurors in his case because death-qualified jurors are more prone to convict. None of these objections were raised at trial; thus, none are preserved for appellate review. Nevertheless, we have held that the murder of the kidnapping victim is an aggravating circumstance authorizing imposition of the death penalty for the offense of kidnapping. St. Clair v. Roark, Ky., 10 S.W.3d 482, 486-87 (1999); Harris v. Commonwealth, supra at 805. Contrary to Appellant's assertion, the United States Supreme Court has not held otherwise. His reliance on Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) and Eberheart v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977) (memorandum opinion), is misplaced. In neither of those cases was the victim of the rape or kidnapping also murdered. And it is now well established that death-qualification of prospective jurors does not violate a defendant's constitutional right to a fair and impartial jury. Buchanan v. Kentucky, 483 U.S. 402, 414-15, 107 S.Ct. 2906, 2913-14, 97 L.Ed.2d 336 (1987); Lockhart v. McCree, 476 U.S. 162, 177, 106 S.Ct. 1758, 1767, 90 L.Ed.2d 137 (1986). That is especially true where, as here, Appellant's offenses qualified him for the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

III. ADMONITION UPON SEPARATION.

RCr 9.70 provides:

The jurors, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, nor form, nor express any opinion thereon, until the cause be finally submitted to them. This admonition must be given or referred to by the court at each adjournment.

Appellant complains that, on several occasions during voir dire, the trial court either failed to admonish the jury as required by RCr 9.70 or gave an incomplete admonition. Again, defense counsel did not object to any of these perceived failures; thus, the issue is not preserved for appellate review. Spencer v. Commonwealth, Ky., 467 S.W.2d 128, 130-131 (1971). Furthermore, Appellant does not identify any instance where any member of the jury conducted him/herself contrary to the mandate of the...