Thomas v. Com.

Decision Date27 May 1993
Docket NumberNo. 88-SC-375-MR,88-SC-375-MR
Citation864 S.W.2d 252
PartiesAlfred Grayson THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Larry H. Marshall, Julie Namkin, Asst. Public Advocates, Department of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., Elizabeth A. Myerscough, Dina Abby Jones, Asst. Attys. Gen., Frankfort, for appellee.

LEIBSON, Justice.

On March 1, 1987, Grace Back, a 75-year old widow living alone on Sugar Branch in Redfox, Knott County, Kentucky, was slashed to death. Her mutilated body was found lying in the road 150 yards from her house. Her house had been burglarized and burned.

The appellant, Alfred Grayson Thomas, and William David Morton, who was sixteen at the time, were separately charged with her murder, and with first-degree arson and first-degree burglary. Shortly before the trial the confederate, Morton, pled guilty to murder. He then testified as the Commonwealth's key witness at Thomas' trial in exchange for the Commonwealth's recommendation of a 30-year sentence in his case. Thomas was found guilty of wanton murder and first-degree burglary; not guilty of arson. He was sentenced to death for wanton murder and to 18 years' imprisonment for the underlying felony of first-degree burglary.

Morton provided the gruesome details of the slaying. In his pretrial statement he blamed Thomas, not only as the instigator of these crimes, but also as the sole person wielding the knife against the victim. At trial he persisted in his claim that Thomas was the principal malefactor, but he now acknowledged participating in slashing Mrs. Back. Nevertheless, Morton testified it was Thomas who stated that "we gotta kill her," who first caught up to the fleeing Mrs. Back, and who first slit her throat. Finally, Morton testified that Thomas "just went crazy on her, just cutting her and carving on her." Thomas did not testify at trial, but, based on his pretrial statements, the defense theory throughout the trial was Thomas, who had claimed he was too drunk to know what happened, was too intoxicated to have a specific intent to burglarize or to be the ringleader in this criminal episode.

The appeal includes 34 separate assignments of error, as follows:

1) Unduly restricting Witness Morton's cross-examination.

2) Failure to identify Morton's two juvenile adjudications for burglary at the penalty phase.

3) Failure to provide, prior to trial, details of the Commonwealth's deal with Morton.

4) Morton's testimony on cross-examination that he would "take a polygraph" on his trial testimony.

5) The trial court's instructions and the prosecutor's argument suggested to the jurors that their verdict was only a recommendation, and there was an automatic appeal.

6) Morton's testimony was in part the tainted fruit of a violation of the marital communication privilege.

7) Testimony from another witness, Ronnie Thomas, constituted both marital communication and hearsay violations.

8) Failure to provide funds for an independent psychiatrist.

9) Denial of a psychiatric examination for Morton.

10) Accomplice testimony was not corroborated.

11) Insufficient evidence to support a verdict of wanton "felony" murder.

12) A wanton murder instruction predicated on the theory appellant assisted another was improper since the indictment charged Thomas with committing the crime alone.

13) Failure to instruct on the defense of intoxication.

14) Failure to instruct on second-degree manslaughter.

15) Failure to instruct on criminal trespass.

16) Use of inflammatory photographs.

17) Evidence used to elicit sympathy for the victim.

18) Prosecutorial misconduct on closing argument at both the guilt and penalty phases.

19-23) Failure to strike disqualified jurors for cause.

24) Failure to grant a change of venue.

25-28) Errors in penalty phase instructions.

29) Improper cross-examination of Thomas' pastor at the penalty phase.

30) The penalty phase verdict form was improper because it required imposing the death penalty if the jury found an aggravating circumstance.

31) KRS 532.025(2)(b) is an unconstitutional infringement on judicial power because it specifies that the jury shall be instructed after arguments of counsel at the penalty phase of a death penalty case.

32) The death sentence in this case is unconstitutionally disproportional.

33) Young adults and women were unconstitutionally unrepresented in the jury pool.

34) The effect of cumulative errors deprived the appellant of his constitutional right to a fair trial.

The Majority of this Court has concluded that error has occurred with reference to two issues so substantial and prejudicial that the verdict and judgment must be set aside and the case reversed and remanded for a new trial. These issues are: (1) issues 19-23 with references to jury selection, and (2) issue 5 with reference to the verdict being only a recommendation. With regard to the remaining assignments of error, the Majority has concluded that some are unpreserved and the rest involved no error, or at worst, harmless error. Since we deem it necessary to reverse this case for errors occurring during jury selection and use of the term "recommend," which will be discussed in detail in this Opinion, it is unnecessary to address the arguments being rejected, as we would do if we intended to affirm the judgment.


ISSUE 19: Jurors who stated or implied they would favor automatic imposition of the death penalty upon a finding of guilt.

There were three jurors challenged on this ground: Madison Martin, Marvis Short, and Walter Davidson.

Two of them, Madison Martin and Marvis Short, initially responded in a manner suggesting they were firmly committed to the death penalty upon conviction, but upon further questioning the prosecutor elicited from them responses that suggested they could consider all sentencing options. Furthermore, they were not challenged for cause.

However, the bias demonstrated by the answers of the third juror, Walter Davidson, was strong and unequivocal:

"DEFENSE COUNSEL: I believe you indicated that you had an opinion as to what the appropriate penalty would be if he's found guilty. Was I right in that?

DAVIDSON: Yes, I do.

DEFENSE COUNSEL: What is that opinion?


DEFENSE COUNSEL: Would you be able to consider any other penalty or would death be the penalty that you would feel at this point that you would probably vote for, if you were to find him guilty?

DAVIDSON: I definitely would vote for it.

DEFENSE COUNSEL: You would definitely vote for death?


DEFENSE COUNSEL: Your Honor, I would challenge this juror."

The prosecutor attempted a rehabilitation of this juror by eliciting a positive response to further questions whether Davidson could decide a "proper penalty based on evidence that you heard in the penalty phase."

This juror had indicated a bias so strong that the prosecutor's questions did not serve to remove the disqualification. As stated in Montgomery v. Commonwealth, Ky., 819 S.W.2d 713, 718 (1991), further questions do "not provide a device to 'rehabilitate' a juror who should be considered disqualified by his personal knowledge or his past experience, or his attitude as expressed on voir dire."

Davidson was struck by peremptory challenge, no doubt one exercised by the defense rather than the prosecutor, although this is implicit rather than explicit because the strike sheets have not been preserved.

Madison Martin and Marvis Short were not struck, no doubt because the defense had run out of peremptory challenges and their somewhat equivocal answers made leaving these undesirables on the jury less onerous than others, like Walter Davidson, against whom peremptories were used.

ISSUE 20: Jurors whose answers, or at least some answers, implied they could not consider mitigating evidence, or at least certain types of mitigating evidence: Madison Martin (supra), James Bolan, Anna Caudill, and Eddie Jacobs.

None of these jurors were challenged for cause, and none expressed an unequivocal opinion so strong that the trial court's failure to excuse them, sua sponte, should be viewed as reversible error. However, their answers were such that common sense suggests the defense would have found it desirable to strike them for cause if peremptory challenges had not been exhausted.

ISSUE 21: Jurors who had formed an opinion of guilt based on pretrial publicity.

1) Gilbert Hall admitted having read in the newspaper "the story that was told by Mr. Morton ... to the police after he was arrested." He then was asked:

DEFENSE COUNSEL: ... Do you think that would affect you and maybe make you more likely to believe him [Morton] if he gets on the stand and tells it again?

HALL: Well, yes.

The court then elicited responses to rehabilitate this expression of bias, but failure to sustain the challenge for cause falls far short of the standards we set for guaranteeing a neutral jury in Montgomery v. Commonwealth, supra. Gilbert Hall was struck by peremptory challenge, no doubt because the defense concluded pretrial publicity had prejudiced his opinion.

2) McCray Amburgey:

DEFENSE COUNSEL: What have you heard about the case the best you recall?

AMBURGEY: I just heard that he killed the woman and cut her up and set the house afire I guess.

DEFENSE COUNSEL: Did that cause you to have an opinion as to whether he's more likely to have done it or not?

AMBURGEY: Well, I don't know.

DEFENSE COUNSEL: Would you be able at this time to honestly presume him to be innocent at this point?

AMBURGEY: No. Not at this point, no.

DEFENSE COUNSEL: You understand that under the law right now he's presumed to be innocent?

AMBURGEY: Yeah, I understand that.

DEFENSE COUNSEL: Because of what you've heard, if I'm getting this right, you don't think that you could presume him to be innocent at this point?

AMBURGEY: No, not right now. Not...

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