Thompson v. Com., 87-SC-239-MR

• Decision Date: 30 September 1993
• Docket Number: No. 87-SC-239-MR,87-SC-239-MR
• Parties: William Eugene THOMPSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 871

862 S.W.2d 871

William Eugene THOMPSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 87-SC-239-MR.

Supreme Court of Kentucky.

Sept. 30, 1993.

As Amended Oct. 1, 1993.

Oleh R. Tustaniwsky, Donna L. Boyce, Dept. of Public Advocacy, Frankfort, for appellant.

Chris Gorman, Atty. Gen., David A. Sexton, Carol C. Ullerich, Asst. Attys. Gen., Frankfort, for appellee.

OPINION OF THE COURT

This is a direct appeal from the judgment of the Lyon Circuit Court which sentenced the appellant, William Eugene Thompson, to death following a conviction of murder. He also received consecutive terms of twenty years for first degree robbery and ten years for first degree escape.

FACTS

Appellant had been convicted of murder, in 1974, in Pike County and was serving time therefor. Prior to the incident which led to the indictment, conviction and this appeal, appellant had been transferred from the Kentucky State Reformatory to the Western Kentucky Farm Center in Lyon County. He had been assigned to daily duties at the dairy, and had been working there about five weeks before the homicide. His supervisor, who later became his victim, was Fred Cash.

On the morning of the crime, May 9, 1986, appellant was picked up to go to work by Cash between 4:00 and 4:30 a.m. The evidence shows that, although it was a warm day, appellant wore street clothes under his normal prison work garb, and he wore brown suede shoes rather than regulation work boots. He concealed a razor in his pocket and procured both an extra jacket and eye glasses, which he did not need. After arriving at the farm, Cash directed appellant to help him start a tractor by pulling it with the prison van. When appellant had difficulty with hooking the chain to the van, Cash took the chain away and hooked it to the van himself. He told appellant that it should not be that difficult to hook the chain to the van.

Appellant took the statement as criticism. His eyes welled up with tears. He immediately picked up a hammer and struck Cash in the head, as Cash was kneeling. Appellant admitted to striking Cash one time, but a pathologist testified that Cash suffered Appellant expressed his desire to plead guilty, and wanted to accept the death penalty. No formal guilty plea was entered, however, and over a month before the trial, appellant began to cooperate with his counsel. Although he did not testify at the guilt phase of his trial, he did testify at the penalty phase. With the exception of the multiple blows, appellant admitted virtually all of the other events leading up to and including the murder. At closing argument, appellant's counsel admitted to the jury that appellant killed Cash, rifled his corpse for valuables and escaped custody in the farm vehicle. Other facts will be addressed as is appropriate to the appellant's arguments discussed herein.

                twelve hammer blows, all to the head.   Appellant then pulled Cash's body into a stall in a nearby barn, where he further bludgeoned Cash.   Appellant then searched the body and removed Cash's keys, wallet and knife.   He then took the dairy van and drove to Princeton, where, in a gas station, he shaved his mustache and goatee and changed his hairstyle.   Appellant had previously divested himself of his prison clothes.   He bought a bus ticket to Indianapolis, Indiana.   When the bus stopped at Madisonville, an interim stop, appellant was arrested
                

Although appellant raises thirty-six alleged errors in his brief, we will discuss only six of those issues. We have carefully considered all issues raised, and find the other thirty have no merit.

CONTENTIONS

The arguments we have chosen to discuss are: (1) Was it error for the trial court to deny appellant's motion for a change of venue; (2) Was it error for the trial court to restrict voir dire examination; (3) Was it error for the trial court to fail to excuse, for cause, certain members of the jury panel; (4) Was it error for the trial court to refuse to instruct the jury on theft and second degree escape; (5) Was it error for the trial court to refuse to give a definition of extreme emotional disturbance; and (6) Was it error for the trial court to admit, as an aggravating circumstance, evidence of appellant's murder conviction which was in the process of being appealed.

I. WAS IT ERROR FOR THE TRIAL COURT TO DENY A CHANGE OF VENUE?

The trial of this case had been set for several months to begin on October 8, 1986. On October 6, 1986, two days before the trial, appellant filed a verified "Petition for Change of Venue." KRS 452.210. Filed with the petition and requisite affidavits was an extensive array of newspaper articles, transcripts of local radio broadcasts concerning this case and a copy of a letter to the editor in a local paper, signed by 150 local residents, which referred to the Pike County conviction.

On October 7, 1986, one day before the trial, appellant filed the results of a sampling type public opinion poll of jury eligible citizens of Lyon County. Basically, it showed that a high percentage of Lyon County citizens knew about the case (94%), thought that appellant was guilty (44%), and preferred the death penalty for appellant (52%). The Commonwealth, caught short because of the very late notice, filed four citizen affidavits which, in effect, opined that appellant could receive a fair trial in Lyon County.

A hearing before the trial judge was held on October 8, 1986. The issue of the lack of reasonable notice of the filing of the petition was raised at the hearing, by the prosecution. The trial court denied the petition for the sole reason that reasonable notice of the motion was not given, as is required by KRS 452.220(2). The trial court did not reach the merits of the petition. Interestingly enough, in subsequently denying appellant's motion for a new trial, the judge stated that "one of the few motions filed by the defendant in this case that may have had merit was a motion for change of venue." (Emphasis added.)

A majority of this Court believes the narrow ruling of the trial judge was correct. Although KRS 452.220(2) does not define "reasonable," we have said, in Shelton v. Commonwealth, 280 Ky. 733, 134 S.W.2d 653 (1939) that it was not error to deny a motion for a change of venue filed on the day of the trial. See also Russell v. Commonwealth, Ky., 405 S.W.2d 683 (1966). The majority of this Court feels that the delay in filing the motion was due solely to appellant's own actions, and following Miller v. Watts, Ky., 436 S.W.2d 515, 518 (1969) that "unwarranted delay in making the motion amounts to a waiver of the right to seek a change of venue." The majority believes that appellant was aware of the pre-trial publicity, the feelings of the community about the case, and that such a delay constituted a waiver of the right to file a petition two days before the trial.

Moreover, it is a fundamental proposition of law that this Court will not overrule the decision of a trial judge in these matters unless it is shown that the trial court abused its discretion. Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985). Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988). Under the facts of this case, no such abuse of discretion has been shown, and therefore, on this point the judgment is affirmed.

II. WAS THE TRIAL COURT IN ERROR IN RESTRICTING INDIVIDUAL VOIR DIRE?

In the case of Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988), which arose from the same circuit court as the case sub judice, this Court described the issue of the right of counsel to conduct individual voir dire examination. We said:

We do not hold that counsel for appellant had any absolute right to question prospective jurors ... because the extent of direct questioning by counsel during voir dire is a matter within the discretion of the trial court. Grooms at 134.

In relation to the questioning of jurors, in the presence of other jurors, as to what a prospective juror has heard about the case, we have said that such questioning "poses the danger of bringing that information to the ears of the other prospective jurors. The better procedure is to question jurors separately and out of the presence of each other on such matters." Id. (Emphasis added.) In other words, the ultimate question of whether individual voir dire is to be conducted is within the discretion of the trial court. However, in this case, where the prior knowledge of the case is the subject matter, the "better practice" is for the line of questioning to be conducted outside of the presence of other jurors (whether conducted by the court or by counsel). Grooms was decided following the trial of this case.

The first twenty-five venirepersons were questioned as a group, and then by individual counsel. It is a fair statement that most of the individual voir dire inquiries covered capital punishment and pre-trial publicity. The trial court--in advance--precluded counsel from asking what kind of evidence or crimes would justify a death penalty, as well as, under what circumstances a sentence less than death would be appropriate.

Following the exhaustion of the first panel, the trial court, apparently impatient at appellant's counsel's questioning on the two restricted issues, ruled that the next fifteen venirepersons could not be individually examined about pretrial publicity on the death penalty. The trial judge, himself, questioned that venire about the issues. The court explained that this change of procedure was "out of convenience to the jurors" and because he believed counsel were asking inappropriate questions.

While we have some questions about the reason given by the trial court for changing horses in the middle of the stream, it is clear that the court adequately questioned the second venire about pre-trial publicity and about their view on the death penalty. That fact, coupled with our familiar rule that the conduct of individual voir dire is within the sound discretion of the trial court,...