Soto v. Com., No. 2000-SC-0828-MR.

• Decision Date: 22 April 2004
• Docket Number: No. 2000-SC-0828-MR.
• Citation: 139 S.W.3d 827
• Parties: Miguel SOTO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

139 S.W.3d 827

Miguel SOTO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2000-SC-0828-MR.

Supreme Court of Kentucky.

April 22, 2004.

Rehearing Denied August 26, 2004.

Appeal from the Circuit Court, Oldham County, Dennis A. Fritz, J Randall L. Wheeler, Thomas M. Ransdell, Asst. Public Advocates, Frankfort, for Appellant.

Gregory D. Stumbo, Atty. Gen., Elizabeth A. Heilman, Brian T. Judy, Asst. Attys Gen., Frankfort, Michael G. Wilson, Cincinncti, OH, for Appellee.

COOPER, Justice.

Appellant, Miguel Soto, was convicted by an Oldham Circuit Court jury of the murders of his former mother- and father-in law, Edna and Armott Porter, the attempted murder of his ex-wife, Armotta Porter, the first-degree wanton endangerment of his three-year-old daughter, Brianna, the first-degree burglary of the Porter residence, and tampering with physical evidence. He was sentenced to death for each murder conviction, to twenty years imprisonment each for his convictions of attempted murder and first-degree burglary, and to five years imprisonment each for his convictions of wanton endangerment and tampering with physical evidence. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b); KRS 532.075(1). For the reasons explained herein, we affirm.

Appellant married Armotta Porter in August 1995. They separated two months later. Armotta and her fifteen-year-old son from a previous marriage then moved into the Crestwood, Kentucky, residence of her parents, Armott and Edna Porter. According to Armotta, Appellant "stalked" her during the months following their separation. Armotta was pregnant with Appellant's child when they separated. That child, their daughter Brianna, was born in May 1996. Appellant and Armotta were divorced one month later.

Appellant came to the Porter home in July 1996 asking to see Armotta. At Armotta's request, her father advised Appellant that she did not wish to see him and ordered him to leave. In August 1996, the Porter residence was burglarized. The perpetrator left a coat at the scene that the Porters believed belonged to Appellant. Mr. Porter filed a criminal complaint in the Oldham District Court charging Appellant with burglary in the second degree, a Class C Felony. KRS 511.030(2). On October 17, 1996, the day of the preliminary hearing, the Oldham District Court dismissed the charge without prejudice conditioned upon Appellant having no further contact with the complaining witness (Mr. Porter), reenlisting in the military service within sixty days, and remaining away from Oldham County, Kentucky. Appellant reenlisted in the United States Army and lived in California until he was reassigned to Ft. Knox, Kentucky, in April 1999. The Porters had no contact with him after October 17, 1996, until June 29, 1999.

On June 26, 1999, Monica Nahand, with whom Appellant had been living for approximately one month, ordered him to move out of her residence. Before leaving, Appellant gave away or otherwise discarded all of his personal belongings except for the contents of a black duffel bag, explaining that he did not need his belongings "where he was going." Three days later, on June 29, 1999, Appellant, armed with a .38 caliber revolver and a .45 caliber automatic pistol, parked his automobile at the Crestwood Army Recruiting Station and walked three miles to the Porter residence. When he arrived at approximately 5:30 p.m., Mrs. Porter was inside the house and Mr. Porter was outside working in the garden. Appellant concealed himself in a shed where Mr. Porter stored his garden tools. When Mr. Porter entered the shed, Appellant killed him by shooting him once in the chest and once in the back with the .38 revolver. Leaving Mr. Porter's corpse in the shed and placing a board against the shed's door, Appellant entered the residence and killed Mrs. Porter, also shooting her once in the chest and once in the back with the .38 revolver. He wrapped her corpse in a comforter and placed it at the foot of her bed, then waited for Armotta.

Armotta arrived at the residence with Brianna¹ shortly before 6:00 p.m. and parked her automobile in the attached garage. When she entered the kitchen, she was immediately confronted by Appellant who placed the .45 automatic pistol to her head and told her that he had killed her parents and intended to kill her. Armotta persuaded Appellant not to kill her in the presence of their daughter but to take her someplace away from the residence in her automobile. Once inside the garage, Armotta attempted to escape by running back into the house. As she opened the door to the kitchen, Appellant shot her in the back with the .45 automatic. The bullet entered Armotta's lower back, pierced her kidney and colon, and exited through her lower abdomen. Still, she managed to close and lock the door, shielding Brianna with her body. Appellant fired two additional rounds through the door, one of which struck Armotta's left knee. Armotta managed to dial 911 for emergency assistance.

At approximately 6:30 p.m., Appellant appeared at the residence of Mitch Nobles, a retired police detective who lived near the Porter residence and who had attended Appellant and Armotta's wedding. Appellant ultimately confessed to shooting all three victims. Although the police never located the .45 automatic, they found the .38 revolver under a stack of folded clothes on a clothes dryer inside the Porter residence. A ballistics test matched the .38 revolver with the bullet fragments removed from the bodies of Mr. and Mrs. Porter. The serial number on the .38 revolver matched that of a weapon that a former employer had issued to Appellant, which Appellant had not returned.

I. INDICTMENT.

Appellant asserts that the indictment charging him with two counts of capital murder was defective because it did not recite the statutory aggravating circumstances upon which the Commonwealth relied to authorize capital punishment. He interprets three recent decisions of the United States Supreme Court, i.e., Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), as requiring that an indictment charging a defendant with a capital offense must recite the aggravating circumstances authorizing capital punishment.

Jones, supra, held that the Sixth Amendment requires that facts triggering the provisions of the federal car-jacking statute, 18 U.S.C. § 2119, that authorize higher penalties if the offense resulted in serious bodily injury or death, must be charged in the indictment. Id. at 251-52, 119 S.Ct. at 1228. The Court concluded that those provisions were not mere sentencing factors but were elements of the offense. Id.; compare KRS 509.040(2) (offense of kidnapping enhanced from Class B felony to Class A felony if victim suffered serious physical injury, and to capital offense if victim died during or as a result of the kidnapping).

In Apprendi, supra, the defendant was convicted of a second-degree firearm offense that was enhanced pursuant to an independent "hate crime" statute that authorized imposition of an enhanced sentence if the trial judge found by a preponderance of the evidence that the crime was motivated by racial bias. Finding that the "preponderance of the evidence" standard violated the Fourteenth Amendment, Id. at 497, 120 S.Ct. at 2366-67, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. at 2362-63. However, Apprendi did not address the failure of the indictment to charge a violation of the hate crime statute. Id. at 477 n. 3, 120 S.Ct. at 2356 n. 3 ("Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question separately today.").

Ring, supra, held that an Arizona statute permitting a trial judge sitting without a jury to determine the presence or absence of statutory aggravating factors necessary to impose the death penalty, violated the Sixth Amendment right to trial by jury. Id. at 609, 122 S.Ct. at 2443 (overruling Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)). "Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Id. at 589, 122 S.Ct. at 2432. Ring also did not address the constitutionality of the indictment. Id. at 597 n. 4, 122 S.Ct. at 2437 n. 4 ("Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.... Ring does not contend that his indictment was constitutionally defective.")

Apprendi and Ring focused on a defendant's procedural due process rights. Appellant, however, interprets Ring as holding that aggravating circumstances are, substantively, elements of the offense, not factors relevant only to sentencing. He cites Jones, supra, for the proposition that such elements must be recited in the indictment. Under federal law, an indictment must set forth all of the elements of the offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). Factors relevant only to sentencing, however, are not elements of the offense. Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 1223, 140 L.Ed.2d 350 (1998). Regardless, we are not bound by federal law on this issue because, as noted in Apprendi, supra, the Fourteenth Amendment has never been construed to incorporate against the states "the Fifth Amendment right to `presentment or indictment by a Grand Jury.'" I...