Tamme v. Com., s. 85-SC-829-M

• Citation: 759 S.W.2d 51
• Decision Date: 08 September 1988
• Docket Number: 86-SC-949-TRG,Nos. 85-SC-829-M,s. 85-SC-829-M
• Parties: Eugene Frank TAMME, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 51

759 S.W.2d 51

Eugene Frank TAMME, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 85-SC-829-MR, 86-SC-949-TRG.

Supreme Court of Kentucky.

Sept. 8, 1988.

As Corrected Sept. 8, 1988.

Rehearing Denied Nov. 17, 1988.

Marie Allison, R. Neal Walker, Asst. Public Advocate, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Paul W. Richwalsky, Jr., Elizabeth Myerscough, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

On June 14, 1985, appellant was convicted in Washington Circuit Court of two counts of capital murder. The trial court followed the recommendation of the jury and sentenced appellant to death.

The convictions stemmed from the murders of Neil Maddox and Harold Sutherland. They disappeared on August 11, 1983. Nothing was known about their fate until William Buchanon, a partner in the marijuana farming business with appellant, came forward and told the police that he had witnessed both the murders and the disposal of the bodies. He alleged that appellant knew the victims because he had frequently hired them to work on his farm, and had murdered them in the marijuana field. Buchanon and appellant were both indicted for the murders of Maddox and Sutherland, but were separated for trial on appellant's motion. Buchanon pled guilty to the lesser offense of complicity to commit murder, and his minimum sentence was probated by the court. Appellant did not plead guilty, but was tried and convicted with the help of Buchanon's damaging testimony. Appellant raises 29 points of error in his appeal as a matter of right. We need not consider the merits of all of them, because we reverse and remand the trial court for a new trial.

Appellant first alleges that he was denied reliable capital sentencing, because the prosecutor conducting the death-qualification portion of the voir dire repeatedly minimized the jury's responsibility for sentencing the defendant. At appellant's trial, the voir dire was separated into two parts--death penalty issues and issues pertaining to the particular trial. Of the 60 jurors questioned in the individual voir dire for Tamme's trial, 29 were death-qualified. It took two days to question the 60, as each was privately examined as to his or her preconceptions about the case. Of the 14 jurors finally empaneled for the case, half were told by the special prosecutor that they would not be signing the death warrant, or that the responsibility for carrying out the sentence would be handled on "down the line." The remaining seven were told that they would make a recommendation to the judge who would impose a sentence. Considering the extreme importance of a fair sentencing in a capital case, any actions by the Commonwealth which would tend to lessen in the minds of the jury their awesome responsibility should be given the highest scrutiny.

The following cases plot the development of this Court's position on the use of the word "recommend" in death penalty cases. In Ice v. Commonwealth, Ky., 667 S.W.2d 671, 676 (1984), we held that "emphasis on the jury's sentence as only a recommendation is improper." The United States Supreme Court addressed the larger issue of denigrating the jury's responsibility in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The Court held in that case that "It is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. 105 S.Ct. at 2639. Later that same year, the Kentucky Supreme Court decided Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985). In Ward, the Commonwealth repeatedly emphasized to the jury during the penalty phase of the trial that their recommendation to the court of a sentence was just that, a recommendation. The prosecutor repeatedly minimized the responsibility of the jurors in weighing the evidence and determining a penalty to be imposed.

This Court held that,

The prosecutor clearly sought to divert from the minds of the jurors their true responsibility in this case by implying that the ultimate responsibility would fall to the trial judge, this court, other appellate courts, or to the Governor. This is clearly an error of reversible magnitude. It is the responsibility of each juror to decide whether the defendant will be executed, and they shall not be informed either directly or by implication, that this responsibility can be passed along to someone else. The mere fact that the statute provides for jury recommendation cannot be utilized as a license to induce the jury to disregard its responsibility. (Emphasis added.)

Id. at 408.

The next case this Court decided was Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985). Upon examination of the record in Kordenbrock, however, the court came to the conclusion that, although the word "recommend" was used, it was "not to such an extent as to denigrate the responsibility of the jury in imposing a death penalty." Id. at 389. Most recently, we decided Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988), and Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988). In Sanborn, we noted that "use of the word 'recommend' is not per se reversible error." At 546 (citing Matthews v. Commonwealth, Ky., 709 S.W.2d 414, 421 (1986)). But in Grooms we held, "the instructions on the penalty phase should require the jury to fix the punishment." At 141 (emphasis added).

The facts of this case compel us to take the next step. Despite this Court's efforts to map out the territory of permissible use of the word "recommend," prosecutors continue to nudge at the boundary of abuse. In the case before us, there was clearly an attempt by the prosecution to place the jurors' minds at ease by emphasizing that the trial court may accept or reject the recommendation of the jury, thus transferring the responsibility of a man's life to another, and enabling the jury to "wash their hands" of the matter. For at least seven of the juror candidates, this attempt was manifest. Telling them that someone else would sign the death warrant on down the line obviated the burden rather effectively. The remaining jurors were told that they would recommend a sentence which the judge would then impose. The inference here, although a fairly accurate reproduction of the statute, is that the jury's recommendation holds little or no weight and may be rejected by the trial court.

The Commonwealth maintains there was no attempt to diminish in the eyes of the jury the awesome responsibility they should feel when determining whether someone should live or die. The Commonwealth claims the questions did no more than track the language of the death-penalty-sentencing statute, KRS 532.025. We disagree. Although the statute does indeed specify that the jury shall "recommend" a sentence to the trial court, the prosecutor did more than simply make the jury aware of this. Over half of the jury panel which actually sat on the case were reassured that they were merely one step in a long process, and there was no need for concern as they would not "sign the death warrant."

Therefore, since we held in Ward that the jury should not be informed, even by implication, that the responsibility could be passed on to someone else, all the death penalty voir dire is tainted, and we accordingly reverse the trial court on this issue. On retrial, the prosecutor should refer to the jury's function as "fixing" sentence. Furthermore, we hold that in capital cases in which trial commences after the effective date of the finality of this opinion, the word "recommend" may not be used with reference to a jury's sentencing responsibilities in voir dire, instructions or closing argument. Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 141 (1988).

Appellant also argues that the repeated references to other unconvicted bad acts violated his right to a fair trial. Appellant claims that the prosecutor erroneously dwelt upon his marijuana farming operation and the allegation that he was a heavy user and supplier of cocaine. The prosecutor also presented evidence of appellant's alleged insurance fraud to the jury. The Commonwealth maintains that such evidence is relevant and necessary to explain the motive and circumstances surrounding the murders. We disagree. Although appellant has a right only to a fair trial, not a perfect one, he is entitled to be tried for the crimes charged in the indictment and no others. Holland v. Commonwealth, Ky., 703 S.W.2d 876, 879 (1985). Evidence that appellant is a drug user and cultivator is highly prejudicial, and only marginally probative in determining who killed Maddox and Sutherland. The evidence of motive, what little there was, tended to prove some sort of jealous-lover scenario, not a drug deal gone sour. The farming of marijuana had virtually nothing to do with the crime other than to produce the scene. On retrial, the jury only needs to be told that the victims were occasional employees of appellant, shot in a field where they worked.

Appellant further contends that it was reversible error for the prosecution to have lost one of the bullets found at the scene. He argues that the loss is inexcusable and renders the fact-finding of the prosecution skewed and perverted. The Commonwealth argues there was no error. We agree. In order to establish a due process violation, the evidence must either be intentionally destroyed, or destroyed inadvertently outside normal practices. Furthermore, the lost evidence must "possess an exculpatory value that was apparent before it was destroyed." California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984). Appellant has failed to satisfy this test. He has not proved that the loss was anything but an unforeseen accident which occurred in the normal course of the police department's business, and there is no indication that the lost bullet...