Stanford v. Com.

• Decision Date: 30 April 1987
• Citation: 734 S.W.2d 781
• Parties: Kevin N. STANFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 781

734 S.W.2d 781

Kevin N. STANFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

April 30, 1987.

As Modified on Denial of Rehearing Sept. 3, 1987.

Frank W. Heft, Jr., Chief Appellate Defender, Louisville, Daniel T. Goyette, Jefferson Dist., Public Defender, for appellant.

David L. Armstrong, Atty. Gen., David A. Smith, C. Lloyd Vest II, Asst. Attys. Gen., Frankfort, for appellee.

OPINION OF THE COURT

Kevin Stanford appeals from his sentence of death imposed by the Jefferson Circuit Court following a jury trial in which he was found guilty of murder, first-degree sodomy, first-degree robbery, and receiving stolen property over $100. The appellant, a 17-year-old juvenile at the time of his criminal deeds, raises numerous issues in his appeal: some are preserved, others are not. As this Court announced in Ice v. Commonwealth, Ky., 667 S.W.2d 671, 674 (1984), all prejudicial errors "must be considered, whether or not an objection was made in the trial court." Therefore, this opinion will concern itself only with the merits of the appellant's arguments and will not disregard a claim of error for lack of objection unless it is apparent that the failure to object was a deliberate trial tactic.

On the evening of January 7, 1981, Baerbel Poore was repeatedly raped and sodomized during and after the commission of a robbery at the Checker gasoline station on Cane Run Road in southwestern Jefferson County where she was employed as an attendant. The proceeds of the robbery consisted of approximately 300 cartons of cigarettes, two gallons of fuel and a small amount of cash. Following the robbery Ms. Poore was taken from the station and driven a short distance to an isolated area where she was shot twice, once in the face and once, fatally, in the head.

Based upon information obtained from a juvenile reported to be selling cigarettes and from rumors at the apartment complex near the scene of the crime where appellant resided, the police arrested Stanford on January 13, 1981. Stanford gave the police a statement, subsequently suppressed, which implicated Calvin Buchanan as the major wrongdoer in the commission of these crimes. Calvin, having no desire to return to prison from where he had recently been paroled, denied any participation in the crimes and allowed the police to tape record a conversation with his nephew, David Buchanan. During that conversation, David exonerated Calvin while admitting his involvement and that of the appellant in the crimes. David Buchanan was arrested on January 16, 1981. Following his arrest he gave the police a statement in which he confessed to rape, sodomy and robbery, and implicated Stanford as the triggerman and perpetrator of the crimes. He also implicated a third juvenile, Troy Johnson, who supplied and drove the getaway vehicle and who obtained the gun used by Stanford in the murder.

In October, 1981, following a waiver hearing, the Jefferson District Court found it was in the "interest of the community and in the interest of the child that Kevin be transferred to Circuit Court and tried under the ordinary laws governing crime."

Motions for separate trials were denied and the two were tried in August, 1982. The Commonwealth originally sought the death penalty against both defendants, but prior to trial it did not object to Buchanan's motion to exclude the application of the death penalty as to him. Buchanan received a life sentence and his conviction was upheld in his appeal to this Court. ¹ Other facts will be recited as necessary for an understanding of the issues raised in this appeal.

Stanford has raised several issues in regard to the jury selection process. The procedure the trial court used was the optional method of interviewing prospective jurors individually in chambers concerning the two threshold issues of pretrial publicity and ability to consider the death penalty. The court ruled it would ask only one question concerning the death penalty issue and would not allow rehabilitation by counsel of those jurors who expressed an inability to impose the death penalty. The defendants' attorneys submitted a list of nearly 30 questions which the court declined to ask. Instead, each potential juror was asked the following question by the court: "Do you have any personal conviction against imposing the death penalty, such that you could not consider it under the circumstances in this or in any other case and regardless of what the evidence might be"?

The appellant alleges that the emphasized words violated the rule articulated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), that prospective jurors not be asked "in advance of trial whether he would in fact vote for the extreme penalty in the case before him...." Id., 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21. In Ice, supra, p. 676, this court likewise held it to be error to question a juror whether he would consider imposing the death penalty in the "particular case before him."

We find no error in the form of the death-qualifying question posed to the jurors as the judge plainly asked each juror about his or her convictions "in this or in any other case," thus encompassing all such situations and not just the case to be tried. Further, the record shows that the judge was careful to explain to the veniremen that he was specifically not asking how they would decide the case at hand. While the death-qualifying question offered by the defendants, (number 24 in the list of 29) ² may have been better phrased, there was nothing improper or prejudicial about the question asked by the trial court.

Stanford further complains he was denied his constitutional right to a fair trial on the basis that the jury was not selected from a representative cross section of the community. This argument is based on the following three factors: (1) that the court commenced jury selection on the last day of service for those serving in the jury pool, thereby, arguably, creating a jury of volunteers ³; (2) that on the second day of jury selection the court's procedure of interviewing prospective jurors from the pool in alphabetical order resulted in adding only those people to the pool whose last names began with the letters A-H; and (3) that the jury was death-qualified.

We find this argument to be totally without merit. There is no indication that the statute regarding jury selection, KRS 29A.060, was other than strictly complied with. That several were excused for medical, employment or other hardship reasons was a matter within the discretion of the trial court. The court, however, did not excuse all those who expressed a desire to be excused. Those interviewed were not able to "opt in or out at will," a practice denounced in United States v. Kennedy, 548 F.2d 608, 612 (5th Cir.1977), but had to demonstrate that prolonged service would create undue problems. The procedure utilized by the trial court in the Kennedy case was that of securing jurors from lists of those whose term of duty had already expired. The Commonwealth has referred us to United States v. Anderson, 509 F.2d 312 (D.C.Cir.1974), the facts of which more closely correspond to those in the instant case, which holds as follows:

In separating those who could from those who could not afford to expand their service, the judge did not exclude anyone or any cognizable group. The sole criterion he employed was ability to serve longer; the panel from which the jury was drawn was distinguished only by that quality. We think a trial judge's discretion in jury selection is broad enough to encompass consideration of adverse consequences which might be suffered by jurors suddenly called to a duty prolonged materially beyond their original expectations. Id. p. 322.

The second prong of this argument is truly spurious. The appellant cannot seriously contend that the trial court violated his right to a jury comprised of a fair cross section of the community by interviewing veniremen on the second day in alphabetical order. He has not identified any "distinctive" characteristic possessed by those whose surnames begin with the letters I-Z. See Ford v. Com., Ky., 665 S.W.2d 304, 308 (1983), citing Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Moreover, had the appellant proven or articulated such characteristics, there was no error as more than half of the jurors who actually heard the case had surnames beginning with these letters. It is thus evident that the group was not excluded from the jury. Finally, as pointed out in Pope v. United States, 372 F.2d 710, 725 (8th Cir.1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), "[t]he point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn...." Thus, the court's use of a facially neutral procedure in questioning a panel of potential jurors does no harm to a defendant's due process rights.

Concerning the exclusion of those opposed to the imposition of the death penalty, such argument was rejected by this Court in Buchanan's appeal. (See footnote 1.) Further, the case of Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985) (en banc) relied upon by Stanford, was overruled by the Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), which held as follows:

"Witherspoon--excludables," or for that matter any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair cross-section requirement.... It is for this reason that we conclude that "Witherspoon--excludables" do not constitute a "distinctive group" for cross-section purposes, and hold that "death qualification" does not violate the fair cross-section requirement."

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