Stopher v. Com.

Decision Date21 November 2001
Docket NumberNo. 1998-SC-0334-MR.,1998-SC-0334-MR.
Citation57 S.W.3d 787
PartiesVincent Christian STOPHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky





Donna L. Boyce, Randall L. Wheeler, Department of Public Advocacy, Frankfort, for appellant.

A.B. Chandler III, Attorney General, Susan Roncarti, Elizabeth A. Heilman, Assistant Attorney General, Criminal Appellate Division, Frankfort, for appellee.





GRAVES, Justice.

Appellant, Vincent Stopher, was convicted in the Jefferson Circuit Court for the murder of Jefferson County Deputy Sheriff Gregory Hans, and sentenced to death. Appellant was also convicted and sentenced to five years for one count of wanton endangerment, and two years each for four counts of third-degree assault on police officers. Appellant pled guilty to being a second-degree persistent felony offender.

On March 10, 1997, Deputy Hans responded to a call made to the Louisville Police Department concerning a disturbance at Appellant's home. When Deputy Hans arrived at the location, Appellant approached the police cruiser and began striking Hans. Deputy Hans attempted to defend himself but Appellant pinned him to the seat of the cruiser with the result that Deputy Hans' left hand and arm were trapped beneath his body. Appellant unholstered Deputy Hans' handgun, pressed the barrel of the gun into Hans' face, and pulled the trigger. Immediately thereafter, Appellant got out of the police cruiser and pointed the gun at a witness, Steve Porter. Porter, afraid he was about to be shot, dropped to his knees and raised his hands. Appellant pulled the trigger, however, the gun jammed and would not fire. At this time, other officers arrived on the scene and apprehended Appellant. Witnesses stated that Appellant was enraged and shouted that he hoped the officer had died. Four officers were required to wrestle Appellant to the ground and handcuff him. While the officers were struggling with Appellant, he grabbed another officer's weapon and attempted to fire it.

Following an extensive and highly publicized trial, Appellant was found guilty of intentional murder and was sentenced to death. On appeal, Appellant raises thirty-three allegations of error. For convenience, we have categorized these issues into eight sections. To the extent that any error is unpreserved, it has been reviewed in accordance with the standard set forth in Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1989), overruled, in part, St. Clair v. Roark, Ky., 10 S.W.3d 482 (1999), i.e., whether there was a reasonable justification or explanation for defense counsel's failure to object, and whether the totality of the circumstances is persuasive either that the defendant would not have been found guilty of a capital offense or that he would not have received the death sentence but for the unpreserved error. See also Tamme v. Commonwealth, Ky., 973 S.W.2d 13 (1998), cert. denied, 525 U.S. 1153, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999).

1. Indictment

Appellant's argument that the indictment failed to provide the requisite notice that he would be tried for a capital offense lacks merit. The indictment, which was returned on March 12, 1997, clearly charged Appellant with "Murder KRS 507.020 Capital Offense 20 years to life or death or life without parole for 25 years." Moreover, in July 1997, the Commonwealth filed a formal "Notice of Aggravating Circumstances," which stated that the case would be prosecuted as a capital case based on the aggravating fact that the "killing was intentional and the victim was a . . . deputy sheriff, engaged at the time of the act in the lawful performance of his duties." Appellant concedes that at no time prior to this appeal did counsel complain of insufficient notice.

2. Grand Jury Proceedings

Appellant takes issue with several aspects of the grand jury proceedings. We note at the outset that before a court will invade the province of the grand jury, "a defendant must demonstrate a flagrant abuse of the grand jury process that resulted in actual prejudice and deprived the grand jury of autonomous and unbiased judgment." Commonwealth v. Baker, Ky.App., 11 S.W.3d 585, 588 (2000).

First, Appellant urges this Court to declare unconstitutional that part of RCr 5.08 which provides: "If the defendant notifies the attorney for the Commonwealth in writing of his desire to present evidence before the grand jury, the attorney for the Commonwealth shall so inform the grand jury. The grand jurors may hear evidence for the defendant but are not required to do so." Appellant argues that requiring a defendant to go through the Commonwealth's attorney, the adversarial party, in order to present evidence to the grand jury is a constitutional violation. Appellant cites no authority for his position, and we are of the opinion that since the Commonwealth is charged with assisting the grand jury, it is, in fact, the appropriate party to inform the grand jury that a defendant wishes to present evidence. RCr 5.41. There is no constitutional right to appear before the grand jury; RCr 5.08 is an indulgence of this Court. We find no distinction for a capital case.

Next, Appellant argues that under RCr 5.02(c), and §§ 2 and 109 of the Kentucky Constitution, the trial court was required to instruct the grand jury on the entire law concerning homicide. Appellant theorizes that the grand jury was required to start with the most basic offense, reckless homicide, and consider whether the evidence supported a charge thereof. This argument is without merit and requires no further discussion.

Finally, Appellant contends that since this case generated extensive media coverage, there should have been a "cooling off" period before the grand jury convened. Actually, the immediacy of the deliberations and indictment may have prevented grand jurors from obtaining additional information about the murder. Had the deliberations been delayed, exposure to additional media coverage would have been certain. Appellant was not prejudiced by the grand jury proceedings, nor was the grand jury deprived of its unbiased judgment due to the immediacy of the proceedings. Baker, supra.

3. Judicial Recusal

Following the indictment, defense counsel filed a motion requesting appointment of a special judge from outside of Jefferson County. Appellant alleged that no Jefferson Circuit Judge could be fair and impartial because a close relationship existed between the Jefferson County Sheriff's Department and the judiciary. The trial court denied the motion and this Court subsequently ruled that there were insufficient grounds to appoint a special judge.

KRS 26A.015(2) requires recusal when a judge has "personal bias or prejudice concerning a party . . . ," or "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2)(a) and (e); see SCR 4.300, Canon 3C(1). The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts "of a character calculated seriously to impair the judge's impartiality and sway his judgment." Foster v. Commonwealth, Ky., 348 S.W.2d 759, 760 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962); see also Johnson v. Ducobu, Ky., 258 S.W.2d 509 (1953). The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal. Webb v. Commonwealth, Ky., 904 S.W.2d 226 (1995). Appellant, in this matter, has failed to meet the requisite burden.

Appellant cites to various instances, especially during motion hours, which he believes demonstrate the trial judge's prejudice against him. However, the record reveals that the trial court's exasperation at times was due to last minute filings of voluminous and often duplicative motions by the defense. In fact, the trial judge did comment at one point that Appellant was "killing trees" with the flurry of motions. Appellant also cites to rulings by the trial court on evidentiary issues in favor of the Commonwealth as proof of prejudice and bias. We disagree. "Although the trial judge was not a textbook example of judicial patience, we find no violation of Appellant's rights." Bussell v. Commonwealth, Ky., 882 S.W.2d 111 (1994). Appellant received a fair trial by a fair and impartial judge.

4. Change of Venue

On the day before the October 21, 1997, pretrial hearing, defense counsel filed a fifteen-page petition for a change of venue that included one hundred and sixteen pages of exhibits and affidavits. At the hearing, the Commonwealth objected on the grounds that it had not received the pleading until 5:00 p.m. on the day before the hearing and thus had not had time to review or respond to such. The trial court ruled that it would not consider the petition until such time as it could review the lengthy pleading and attachments. On October 23, 1997, the trial court denied the petition, stating that the issue could be reviewed, if necessary, following voir dire.

This Court has held that a petition for a change of venue filed two days prior to trial, where the defendant was well aware of the pretrial publicity, was insufficient notice. Thompson v. Commonwealth, Ky., 862 S.W.2d 871 (1993). Here, the trial court set the original November 4, 1997, trial date in April 1997. As Appellant has previously alleged that the extensive publicity tainted the grand jury proceedings, he certainly cannot deny that he was fully aware of that publicity long before the petition for a change of venue was filed. Moreover, it is unjustified to claim error in the trial court's refusal to consider the petition...

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