Sherroan v. Com.

Decision Date26 August 2004
Docket NumberNo. 2002-SC-0126-MR.,2002-SC-0126-MR.
Citation142 S.W.3d 7
PartiesRichard Adam SHERROAN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Appeal from the Circuit Court, Fayette County, Gary D. Payne, J Randall L. Wheeler, Assistant Public Advocate, Frankfort, Counsel for Appellant.

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

COOPER, Justice.

On April 20, 1999, Frank Reschke, stepfather of Appellant, Richard Adam Sherroan, and two of Appellant's acquaintances, Aaron Mills and Isaac Davis, were all fatally shot with the same .38 caliber revolver. Appellant was indicted for all three homicides. He claimed Mills and Davis killed Reschke and that he killed Mills and Davis in retaliation. His only defense was that he killed Mills and Davis while acting under the influence of extreme emotional disturbance ("EED").

A Fayette Circuit Court jury convicted Appellant of the intentional murders of Mills and Davis, KRS 507.020(1)(a), but acquitted him of the charge that he killed Reschke. He was sentenced to two concurrent terms of life in prison without the possibility of parole, KRS 532.030(1), and appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting that the trial court erred by: (1) prohibiting defense counsel from asking potential jurors during voir dire whether they could consider the full range of penalties for lesser-included offenses and whether they would consider a defendant's troubled background as a mitigating circumstance; (2) overruling his motion to strike two potential jurors for cause; (3) refusing to declare a mistrial when two witnesses testified that Appellant was on probation when the killings occurred; (4) admitting evidence that Appellant threatened to kill an unrelated third party; (5) excluding his mother's testimony regarding his pattern of behavior in reaction to the deaths of loved ones and acquaintances; (6) refusing to instruct the jury that EED is an element of the offense of manslaughter in the first degree; (7) refusing to instruct the jury that if it had a reasonable doubt as to whether Appellant was acting under EED, it should not find him guilty of manslaughter in the first degree; and (8) permitting the Commonwealth to submit more than one victim impact statement at the sentencing hearing in violation of KRS 421.500. Finding no error, we affirm.

* * *

On April 19, 1999, Marcil Doan-Chadwick, Appellant's former girlfriend and the mother of his two children, advised Appellant that someone had reported to the social services office that they were abusing and neglecting their children. A social worker was scheduled to visit Doan-Chadwick's apartment the following morning and Doan-Chadwick requested that Appellant come to the meeting. Later that day, Appellant proceeded to the Bellmeade Court residence of his mother and stepfather, Lisa and Frank Reschke, where he stored his belongings and occasionally stayed. That night, Lisa informed Appellant that she and Frank wanted him to move out of the residence. According to Lisa, Appellant did not seem upset at this request. He slept there that night and intended to move out the next day.

That same night, Aaron Mills hosted a party at his apartment on Redding Road. Isaac Davis and six other persons attended. Appellant was not present. Polaroid photographs taken at the party show the attendees using cocaine and consuming alcoholic beverages. Other photographs also show Mills and Davis, among others, posing while brandishing the .38 caliber revolver that later became the murder weapon. The party continued until approximately 5:00 a.m.

At about 8:30 a.m. on April 20th, Appellant went to Doan-Chadwick's apartment to meet with the social worker. After the meeting, Doan-Chadwick told Appellant that she planned to move with her boyfriend to another part of the state. Appellant became upset and begged her not to leave. He then proceeded to Bridgett Kincaid's apartment to pick up some clothes that she had washed for him. Kincaid was Aaron Mills's sister and babysat Appellant's children. She described Appellant as very upset and angry about the meeting with the social worker, and about the fact that her husband had borrowed a pair of Appellant's blue jeans. She testified that Appellant threatened to kill the social worker if she took his children from him.

The three homicides occurred approximately two hours later. In an audiotaped statement to the police, Appellant described his version of how the shootings transpired. At around noon, Appellant, with Davis and Mills, went to the Reschke residence to remove his belongings as planned. Frank Reschke became agitated because Davis and Mills had accompanied Appellant to his residence. While Appellant was downstairs gathering his belongings, Davis and Mills remained upstairs with Reschke. When Appellant came upstairs, Reschke told him to "hurry up and get out of here," then rose from his seat and started towards him. Davis and Mills immediately opened fire on Reschke, fatally shooting him several times while Appellant watched.1 Appellant, Davis, and Mills then proceeded to Mills's apartment. Upon their arrival, Davis went to sleep on the sofa, and Mills rested on his bed as if "[Reschke's murder] was no big ... deal." Appellant reloaded the gun and fatally shot Mills. He then roused Davis and fatally shot him as well. Appellant left the apartment, taking the murder weapon and a cardboard box containing drugs, drug paraphernalia, and a small amount of money. After returning to the Reschke residence and obtaining his stepfather's automobile, he proceeded to the home of Lester Baker, an acquaintance who had previously helped him with his substance abuse problems. Baker turned him away because he was carrying drugs. Appellant then traveled to Louisville where police apprehended him the following day. He told the police that he felt no remorse and that he was justified in killing Mills and Davis because they had killed Reschke.

A. Voir dire: Range of penalties.

The trial judge precluded Appellant from asking potential jurors whether they could consider imposing the minimum sentence for a lesser included offense of the murder charge. He asserts that (1) our opinion in Lawson v. Commonwealth, Ky., 53 S.W.3d 534 (2001), which limits penalty-range voir dire to indicted offenses, does not apply to capital cases, and (2) that a capital defendant has a constitutional right to a jury that could consider imposing the minimum sentence for a lesser included offense. He is mistaken in both respects.

In support of his claim that Lawson authorizes penalty-range voir dire with respect to lesser included offenses in a capital case, Appellant cites that opinion's repeated references to non-capital cases. See, e.g., id. at 544 ("that in all non-capital criminal cases where a party or the trial court wishes to voir dire the jury panel regarding its ability to consider the full range of penalties for each indicted offense, the questioner should define the penalty range in terms of possible minimum and maximum sentences for each class of offense.") (emphasis added); id. (setting forth "twenty (20) years to life imprisonment for a Class A felony or a capital offense for which the death penalty is not authorized," as the appropriate range of penalties for a Class A non-death penalty offense) (emphasis added). This reliance is misplaced. Lawson was not a capital case, and the quoted language does not hold that penalty-range voir dire is limited to indicted offenses only in non-capital cases. In Lawson, the Commonwealth unsuccessfully urged this Court to permit penalty-range voir dire only in capital cases, and to eliminate its use altogether in non-capital cases. Id. at 541. Of course, proper penalty-range voir dire for capital cases had already been established in Morris v. Commonwealth, Ky., 766 S.W.2d 58, 60 (1989), which did not authorize inquiry into the penalty ranges for possible lesser included offenses. Lawson merely extended this principle to non-capital cases where the scope of penalty-range voir dire had been previously unsettled. Lawson, at 544.

Appellant's argument that capital defendants are constitutionally guaranteed the right to voir dire the jury regarding lesser included offenses in death penalty cases is also meritless. He contends that because Due Process rights become more critical in a capital trial, Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (1977), and because the United States Constitution requires the sentencer to give full consideration to lesser included non-capital offenses, Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the availability of penalty-range voir dire on lesser included offenses is elevated to the status of a constitutional right.

No authority holds that the Constitution requires voir dire to include inquiry into penalty ranges for lesser included offenses. In fact, as noted in Caudill v. Commonwealth, Ky., 120 S.W.3d 635 (2003), no court except ours has ever held that a juror is disqualified simply because he or she cannot consider the minimum authorized sentence for the indicted offense. Id. at 654. In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Court held that a juror who would automatically vote for the death penalty was disqualified, id. at 729, 112 S.Ct. at 2229-30, but also noted that "[t]he Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury." Id. at 729, 112 S.Ct. at 2230. See generally Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (trial courts have broad discretion in conducting voir dire). Nor does Beck require that defendants be allowed to voir dire the jury on...

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