Smith v. Com., 83-SC-799-MR

• Decision Date: 02 April 1987
• Docket Number: No. 83-SC-799-MR,83-SC-799-MR
• Citation: 734 S.W.2d 437
• Parties: David SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 437

734 S.W.2d 437

David SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 83-SC-799-MR

Supreme Court of Kentucky.

April 2, 1987.

As Corrected April 6, 1987.

Rehearing Denied Sept. 3, 1987.

Kevin Michael McNally, M. Gail Robinson, Asst. Public Advocates Department of Public Advocacy, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., Cicely Jaracz Lambert, Connie V. Malone, Asst. Attys. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

David Smith, a 32-year-old coalminer, was convicted of capital murder in the deaths of Becky Church, Amanda Church, Betty Maynard and Mary Thompson. Four death sentences were returned upon the jury verdicts.

This appeal is from a conviction on one count of intentional murder and three counts of transferred intentional murder pursuant to KRS 507.020(1)(a).

Smith argues that his punishment is the critical issue in this case. He presents forty-six allegations of error. The principal issues involve the composition of the grand and petit juries; the question of transferred intent in a multiple death situation; and the propriety of denial of funds for expert witnesses.

Smith grew despondent over news that his girlfriend was leaving him. Becky Church, the 17-year-old mother of the infant Amanda, had decided to stop living with Smith and to move to Ohio to live with her mother. After an 8-day separation, Becky returned with the intention of collecting her and Amanda's belongings from Smith's trailer. Their reunion was angry and unpleasant but relatively uneventful until approximately Midnight on September 4, 1980 when Smith arrived at the home of Becky's family. After a brief argument with Becky, Smith retrieved his 30/30 hunting rifle from the hedge where he had hidden it. Smith's first shot was in the air. His second bullet smashed through the door causing spraying fragments. His third shot passed through the front-door screen and struck Betty Maynard, Becky's half-sister, in the head. Smith then walked to the front door of the house. As he entered, Becky, along with Mary Thompson, Earl Thompson, Hie Maynard, and Maynard's two sons were in the bedroom. Earl attempted to close the bedroom door but Smith fired through it, fatally wounding Mary Thompson, Becky's mother. Becky said, "Oh Lord, what have I got you into Mom."

Smith then left the residence long enough for Becky to call for an ambulance and for that ambulance and another to arrive. While the ambulance attendants ministered to the two victims, Smith returned and appeared from the back of a second bedroom, shot Becky in the back and fired a final shot that struck her in the stomach when she turned. Amanda, the infant, who was in her mother's arms, was killed when the first bullet exited her mother's body.

Smith was taken to a state police cruiser where he stayed for approximately 2- 1/2 hours. Between 4:50 a.m. and 5:10 a.m., he gave a confession. At trial Smith presented witnesses who testified that he was a substance abuser, specifically alcohol, codeine librium and marijuana. He claimed the abuse began after hospitalization from a mining accident. Several witnesses who saw Smith prior to and after the shootings indicated that he appeared intoxicated as well as upset and crying. At the penalty phase of the trial, the prosecution relied on their guilt phase evidence. Smith offered sixteen witnesses in mitigation, including family and friends. The jury returned four guilty verdicts of intentional murder. At the conclusion of the penalty phase, the jury returned four death sentences based on the aggravating circumstance of multiple murders. This appeal followed.

The first seven arguments presented by Smith relate to the composition of both the grand jury and the petit jury as well as to the alleged underrepresentation of women and young adults in the jury pool and similar alleged underrepresentation in the selection of grand jury foreman and jury commissioners. His claim is that the jury pool from which the grand jurors were selected did not represent a fair cross-section of the community; that women and young people were underrepresented; that women and young people have been underrepresented as jury commissioners and grand jury foreman; that the jury pool from which petit jurors were selected underrepresented women and young people; and that neither the jury master list, nor the statute requiring the recording of juror excusals was properly maintained.

Smith's challenge of the composition of the grand jury due to an alleged underrepresentation of women and young people is nearly identical to the argument offered in Ford v. Commonwealth, Ky., 665 S.W.2d 304 (1984); cert. den. 469 U.S. 984, 105 S.Ct. 392, 83 L.Ed.2d 325. In Ford this Court reasoned that the grounds for challenging the composition of a jury pool from which a grand jury is selected is the equal protection clause of the Fourteenth Amendment to the United States Constitution and not the due-process requisites of the Fifth and Sixth Amendments, and that Ford, a black penitentiary inmate in his fifties, lacked standing to challenge the underrepresentation of women and young people. Ford held that in order to show that an equal protection violation had occurred in the context of the grand jury selection, the defendant must demonstrate that the procedure employed resulted in a substantial underrepresentation of his race or of an identifiable group to which he belongs. Ford, supra, at 306. This result is the product of the unequivocal holdings in the equal protection cases of Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) and Rose v. Mitchell, 443 U.S. 545, 565, 99 S.Ct. 2993, 3005, 61 L.Ed.2d 739 (1979).

Smith, a 32-year-old white male, lacks standing under the equal protection clause to challenge the grand jury pool on the grounds that young people and women were underrepresented. He contends that Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Hobby v. U.S., 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984) are inconsistent with Ford. We disagree.

The U.S. Supreme Court in Peters, supra, did not discuss standing in the context of equal protection. Hobby, supra, evaluated the challenge of a white male to the underrepresentation of blacks and women in the position of grand jury foreman as a due process challenge. The Supreme Court's discussion in Hobby reaffirms the requirement that a petitioner must be a member of the race or group allegedly underrepresented in order to sustain an equal protection challenge.

Smith's next challenge to the composition of the jury concerns an alleged underrepresentation of women and young people as grand jury foremen. His argument is grounded in the Fifth Amendment to the federal constitution and Section 11 of the Kentucky Constitution.

Hobby assumed that discrimination entered into the selection of grand jury foremen in order to decide whether such discrimination warranted reversal of a conviction and dismissal of the indictment. The U.S. Supreme Court held that even if discrimination occurred in the appointment of a federal grand jury foreman, no violation of due process occurred as grounds for the holding. The court reasoned that the duties of a federal grand jury foreman are largely clerical; that no individual can possibly represent all the qualities of human nature and the variations of human experience; and that the constitutional concern is the presence or absence of fundamental fairness.

RCr 5.04 provides that the members of the grand jury shall elect one of its members to be foreman. As further specified in RCr 5.04 and Administrative Procedure Sec. 27, the only duty of the foreman is to administer an oath to each witness. KRS 29A.250.

As in Hobby, the ministerial trappings of the post carry with them no special powers or duties that affect the rights of persons that the grand jury charges with a crime, beyond those possessed by every member of that body. There was no denial of due process.

Smith makes a similar argument that the jury commissioners in Pike County suffered an underrepresentation of women and young people and that the indictment should be quashed and Smith's conviction reversed. The argument has no merit and Smith cites no authority. See Ford.

Smith now turns his attention away from the jury commission, grand jury foreman and grand jury to the petit jury and once again he complains of the underrepresentation of women and young people. Ford held that it is in the selection of the petit jury panels that the due process provisions of the federal and state constitutions appear, and it is required that the petit jurors be drawn from a fair cross-section of the community. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The U.S. Supreme Court in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and this Court in Ford have held that in order to establish a prima facie violation of the fair cross-section requirement, the defendant must show 1) that the group alleged to be excluded is a distinctive group in the community; 2) that the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the numbers of other persons in the community; and 3) that the underrepresentation is due to the systematic exclusion of the group in the jury selection process.

Ford and McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984) considered in depth the claim that young adults comprise a cognizable and identifiable group. We held that they do not and followed the majority of federal and state authority in that respect. Therefore, in the case of young people, the underrepresentation complained of by Smith relates to a group not constitutionally cognizable with reference to jury pools.

Women do constitute a cognizable group at law, Ford and Duren, supra, and Smith contends that an underrepresentation of women in the selection...