Tamme v. Com.

• Citation: 973 S.W.2d 13
• Decision Date: 19 March 1998
• Docket Number: No. 94-SC-637-MR,94-SC-637-MR
• Parties: Eugene Frank TAMME, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 13

973 S.W.2d 13

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

No. 94-SC-637-MR.

Supreme Court of Kentucky.

March 19, 1998.

As Modified on Denial of Rehearing

Sept. 3, 1998.

Julie Namkin, Assistant Public Advocate, Rebecca Ballard Diloreto, Assistant Public Advocate, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Paul W. Richwalsky, Jr., Assistant Attorney General, Special Prosecutions Division, Ian G. Sonego, Criminal Appellate Division, Office of the Attorney General, Jeffrey Slayton Smith, Office of Attorney General, Frankfort, for Appellee.

COOPER, Justice.

Appellant was convicted in the Fayette Circuit Court of two counts of murder and was sentenced to death on each count. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b); KRS 532.075. He raises ninety-nine (99) issues on appeal. For convenience, we have organized these issues into twelve categories. Many of Appellant's claims of error are preserved, but most are not. To the extent that an issue is unpreserved, it has been reviewed in accordance with the standard enunciated in Cosby v. Commonwealth, Ky., 776 S.W.2d 367, 369 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1989), i.e., whether there was a reasonable justification or explanation for defense counsel's failure to object, and whether the totality of the circumstances Harold Southerland and Neal Maddox disappeared on August 11, 1983. On August 26, a part-time deputy sheriff discovered a strange car in the dump at Scott's Ridge and notified the police. Kentucky State Police Detective Don Knifley searched the vehicle and discovered check stubs and a telephone bill belonging to Harold Southerland. Because the telephone bill reflected numerous telephone calls between Southerland's residence and Appellant's residence and place of employment, Knifley interviewed Appellant on September 28, 1983. No arrest was made and further investigation revealed nothing of substance.

is persuasive either that the defendant would not have been found guilty of a capital offense or that death would not have been imposed but for the unpreserved error. The offenses were committed prior to the adoption of the Kentucky Rules of Evidence, but the trial was held thereafter. To the extent that the adoption of the Rules affected the admissibility of any evidence, the rule of admissibility more favorable to Appellant has been applied. KRE 107(b).

On September 24, 1984, William Buchanon, a business partner of Appellant, contacted the Kentucky State Police and told them that he had been present when Appellant murdered Southerland and Maddox and that he assisted Appellant in disposing of their bodies. Although both Buchanon and Appellant were indicted for the murders, their cases were severed for purposes of trial. Appellant went to trial in June 1985, and Buchanon was the chief witness against him. Appellant was convicted of both murders and sentenced to death. In August 1985, the Commonwealth recommended that Buchanon be allowed to plead guilty to criminal facilitation of murder with a five year sentence. The trial judge refused to accept this plea agreement and Buchanon subsequently entered an Alford plea, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one count of complicity to murder. He was sentenced to twenty years probated for five years and immediately released from custody. On appeal, Appellant's convictions were reversed for a new trial. Tamme v. Commonwealth, Ky., 759 S.W.2d 51 (1988). The second trial was held on June 13-23, 1994.

I. SPEEDY TRIAL

Appellant argues that his constitutional right to a speedy trial was violated by the more than five year delay between the reversal of his first conviction and his second trial. The right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Section 11 of the Constitution of Kentucky. Four factors are to be considered when determining whether this right has been violated: (1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Appellant did not file a motion for a speedy trial. Although he did file a pro se motion to dismiss for failure to provide a speedy trial, a motion to dismiss is not a formal demand for a speedy trial. McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979). After his first convictions were overturned, Appellant moved for bail pending retrial, which was denied. Appellant cites Cain v. Smith, 686 F.2d 374 (6th Cir.1982) for the proposition that a motion for release is "the functional equivalent of pressing his right to a speedy trial." In fact, the defendant in Cain forcefully asserted his speedy trial rights, but conceded that the strength of his speedy trial objection would be diminished if his bond were reduced. The Court of Appeals for the Sixth Circuit held that this concession did not constitute a waiver of his speedy trial objection. Id. at 384. The statement quoted by Appellant originated in United States v. Calloway, 505 F.2d 311, 316 (D.C.Cir.1974), in which the defendant made repeated and continued motions for release pending trial. We are unprepared to hold that an isolated motion for bail "unequivocally puts the trial court on notice that the defendant demands a speedy trial." McDonald v. Commonwealth, supra, at 137.

The reasons for the delay in this case were not nefarious in nature. The Commonwealth The Commonwealth was not responsible for the recusals, illness and death which befell four judges in this case. Nor is the Commonwealth responsible for the resignations of two teams of defense counsel. Any delay attributable to time consumed by the interlocutory appeal does not count toward Appellant's speedy trial claim. The appeal was neither tangential nor frivolous. The fact that the Commonwealth prevailed on the appeal is prima facie proof of the reasonableness of taking the appeal. United States v. Loud Hawk, 474 U.S. 302, 315-16, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986).

moved for a new trial date on February 24, 1989. On motion of Appellant, the original trial judge recused himself on April 17, 1989. The special judge appointed to replace him recused himself on August 28, 1989. The second special judge resigned from the case due to health problems on March 15, 1990. In response to a discovery motion by Appellant, the third special judge ordered the Commonwealth to furnish Appellant with Buchanon's present address. The Commonwealth successfully appealed from this order, but the appeal was not decided until October 22, 1992. On January 8, 1993, new defense counsel entered the case. Due to the intervening death of the third special judge, a fourth special judge was appointed on February 4, 1993. On Appellant's motion, venue was changed from Washington County to Fayette County. On August 25, 1993, Appellant's new counsel moved to withdraw, which motion was granted on October 4, 1993. New counsel entered their appearance for Appellant on November 23, 1993. The second trial finally began on June 13, 1994.

We agree that Appellant was prejudiced by the mere fact that he was incarcerated during the interim. Barker v. Wingo, supra, 407 U.S. at 532-33, 92 S.Ct. at 2192-93; Cain v. Smith, supra, at 384-85. However, he does not identify any prejudice relating to his ability to present evidence at his second trial. Weighing all of the four factors enumerated in Barker v. Wingo, supra, we conclude that in this case the delays do not justify "the unsatisfactorily severe remedy of dismissal." Id., 407 U.S. at 522, 92 S.Ct. at 2188.

II. JUDICIAL RECUSALS

Appellant argues that it was error for the first special judge to recuse himself and error for the fourth special judge, who ultimately tried the case, not to recuse himself. The first special judge recused himself because he did not feel he could impose the death penalty in a case in which an accomplice received a probated sentence. KRS 26A.015(2)(a) and (e), provide as follows:

(2) Any justice or judge of the Court of Justice ... shall disqualify himself in any proceeding:

(a) Where he has a personal bias or prejudice concerning a party, ... or has expressed an opinion concerning the merits of the proceeding;

...

(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.

The Commonwealth, as well as the defendant, is entitled to a judge who has not prejudged the case. When the first special judge advised that he could not impose the death penalty if recommended by the jury, he appropriately recused himself.

At a hearing on the motion of Appellant's second counsel to withdraw from the case, information was disclosed regarding "an exchange of money to be given to witnesses" by people "very close" to Appellant. Upon learning of this information, the fourth special judge wondered aloud if he was now "tainted." Appellant did not request a recusal, but now concludes after-the-fact that the trial judge was indeed "tainted" and should have recused himself. Recusal is required only when the judge receives information from an extrajudicial source. Bussell v. Commonwealth, Ky., 882 S.W.2d 111, 112-13 (1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1994); see also Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 1155, 127 L.Ed.2d 474 (1994). The distinction between the recusal of the first special judge and the nonrecusal of the fourth special judge is that the first special judge concluded that he was biased and the fourth special judge concluded that he was

not. We find neither conclusion to have been clearly erroneous.

III. DISCOVERY ISSUES

1. Buchanon's plea agreement.

The fact that Buchanon had received a reduced...