Thurman v. Com.

• Citation: 975 S.W.2d 888
• Decision Date: 21 May 1998
• Docket Number: 95-SC-1045-TG,Nos. 94-SC-496-M,s. 94-SC-496-M
• Parties: Carlos Lee THURMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Carlos THURMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 888

975 S.W.2d 888

Carlos Lee THURMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Carlos THURMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 94-SC-496-MR, 95-SC-1045-TG.

Supreme Court of Kentucky.

May 21, 1998.

Rehearing Denied Oct. 15, 1998.

Melissa Hall, Assistant Public Advocate, Frankfort, John Palombi, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Morris Burton, Commonwealth Attorney, Dina Abby Jones, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

COOPER, Justice.

Appellant, Demond Bush and Sean Hunter were jointly indicted by a Franklin County grand jury for the murder, kidnapping and robbery of Peggy King. In a separate trial, Bush was convicted of second-degree manslaughter, first-degree robbery, and kidnapping, and was sentenced to fifty years in prison. Hunter pled guilty to second-degree manslaughter and was sentenced to ten years. Following a trial by jury in the Franklin Circuit Court, Appellant was convicted of felony theft by unlawful taking, first-degree unlawful imprisonment, and murder. He was sentenced to serve 109 years in the custody of the Department of Corrections. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

On February 13, 1992, Robert Harlow, an employee of the street department of the City of Frankfort discovered the victim's body near a culvert off Glenns Creek Road. A subsequent autopsy revealed three blunt-force injuries to the head and a .22 caliber bullet in the neck. Because large portions of the neck and facial area had been mutilated by rodent activity, the pathologist was unable to find an entrance wound. However, from the location of the bullet and her knowledge that rodents attack open wounds, she concluded that the bullet entered the right side of the neck below the mandible, struck and fractured the C-2 vertebra, and tore the spinal cord. The bullet wound was determined to have been the cause of death.

Peggy King was a widow who lived alone and was employed as a librarian by the Legislative Research Commission (L.R.C.). She had developed a close friendship with William Wiley, a co-worker at L.R.C., his wife, Sally Wiley, and with the parents of Katherine Stosberg. Mr. and Mrs. Stosberg had divorced and moved away from Kentucky, but their teenage daughter, Katherine, remained in Frankfort and maintained close contact with King. In late 1991, Katherine Stosberg was attempting to break off a romantic relationship with Appellant. In January 1992, she enrolled at Eastern Kentucky University in Richmond, but stayed only two weeks, because Appellant was spending too much time at her dormitory. She then moved in with her aunt in Lexington, but Appellant continuously telephoned her aunt's house, left notes in her aunt's mailbox, and loitered near her aunt's residence. Because of these problems, Peggy King agreed to let Stosberg move into her Frankfort residence. Stosberg moved into King's home on January 26, 1992. However, she spent that same night with Appellant at his sister's residence in Prince Hall Village apartment complex in Frankfort. During that evening, Appellant displayed to Stosberg a dark, medium-sized revolver. When Stosberg returned to King's home on January 27, she told King she needed to leave Frankfort to get away from Appellant. She made arrangements to visit a friend, Wendy Reich, in Huntington, West Virginia.

On January 28, King put Stosberg on a bus to Huntington. Stosberg had told Appellant she was going to visit Reich and would return on February 4. When she arrived in Huntington, she discovered that Reich was homeless. Both Reich and Stosberg moved into an apartment with another acquaintance of Reich. At that point, neither King nor Appellant would have known how to contact Stosberg, although both Stosberg and Reich notified their mothers where they could be reached. On February 2, 1992, Stosberg called Appellant and informed him that she did not intend to return to Frankfort. She refused to divulge her address.

On February 4, 1992, Peggy King and the Wileys attended a meeting of their country music dance club. King was the treasurer of the club and carried the money in a cigar box which she kept in a black satchel. After the club meeting, King and Sally Wiley had a lengthy conversation regarding their concerns about Katherine Stosberg. King then departed with the expressed intention to return to her home for the evening.

When King did not show up for work on February 5, 1992, William Wiley went to her home to investigate. The house was locked, but he was able to obtain a key. Upon entering, he discovered that all of the lights were on, including the front porch light. King's bed had not been slept in and there were two bowls on the kitchen table, each with a smooth, brownish residue in the bottom. Later, a partially full carton of yogurt was found in the freezer. King's blue 1986 Toyota Tercel automobile was missing. Wiley notified King's son, who lived in Lexington, of these facts, but no other action was taken that day.

On February 6, 1992, a missing person report was filed with the Frankfort Police Department and Sally Wiley accompanied Detective Russell Givens to King's home. Mrs. Wiley also noticed the two bowls on the kitchen table. King's dancing shoes and the black satchel containing the cigar box were found on the stairs. A white sweater, which King had worn on the night of February 4, was found folded in a drawer.

On February 10, 1992, King's Toyota Tercel was found parked on East Third Street in Frankfort. Examination of the interior revealed blood stains on the driver's side seat, the running board, and the left side of the console. Some hair fibers were also removed from the vehicle. The blood stains subsequently were determined to be of King's blood type. Forensic examination of one of the hair fragments revealed it to be a "Negro head hair" similar in color and microscopic characteristics to that of one of Appellant's co-defendants, Demond Bush.

As noted supra, King's body was found on February 13, 1992. Between 11:00 and 12:00 p.m. on the night of February 6-7, 1992, and again between 12:00 midnight and 1:00 a.m. on the night of February 12-13, 1992, the maintenance manager at Prince Hall Village saw Appellant and Demond Bush emerge from the woods behind the apartment complex, climb over a six foot high chain link fence separating the woods from the complex, and proceed toward the apartments. The maintenance manager described the area from which Appellant and Bush emerged as heavily wooded and not used for pedestrian traffic. On February 20, 1992, a tree trimmer found Peggy King's purse in this same wooded area.

In addition to the preceding testimony and that to be discussed infra with respect to Appellants claims of reversible error, Essie Hunter, sister of co-defendant Sean Hunter, testified that Appellant told her sometime prior to the discovery of King's body that on the night of February 4, he had asked his brother to give him a ride to King's home; that he and King had talked and each had eaten a bowl of ice cream; that Appellant then asked King if he could use her phone to call for a ride home, and that King had offered to give him a ride; and that when they left King's home, Appellant told her to drive him to Glenns Creek Road. Hunter claimed Appellant did not tell her what happened after that. There was evidence that another witness saw Appellant and Demond Bush driving King's blue Toyota Tercel in south Frankfort after February 4, 1992. Another witness testified that she overheard an argument between Appellant and Michelle Tracy in which Appellant stated, "You will do what I tell you to do or I'll do to you what I did to Peggy, but they'll never find you." Another witness testified that he was present during a conversation between Appellant and Demond Bush in which Bush jokingly referred to going fishing for the gun, but it would never be found; and that Appellant boasted that there was a bullet hole in the head near the back of the neck "that they didn't find."

Yet another witness testified that Appellant told him that Bush killed King with a .22 caliber pistol which Appellant had obtained from his great-uncle in Richmond. Finally, another witness testified that he was present during a conversation between Appellant and Bush in which Appellant stated that he had "capped" (shot) King. In a February 20, 1992 interview with Detective Jack Hazelwood, Appellant stated that Demond Bush had hidden Peggy King's purse in the woods behind Prince Hall Village. The purse was found there later that same day. In an April 3, 1992 interview with Hazelwood, Appellant stated that Demond Bush had told him that he (Bush) went to King's house on the night she was killed and ate a bowl of ice cream. However, in the same conversation, Appellant admitted that Bush did not know King. He also stated that he had read in the newspaper that the killer went to the victim's home, although that information had never been reported in the press.

I. HEARSAY

Loretta Smith was called as a witness by the Commonwealth. She testified that Appellant came to her apartment in Prince Hall Village at approximately 10:30 p.m. on February 4, 1992 and that he stayed there for one to two hours, during which time he watched television and played cards with Loretta's sister, Christie Smith. She testified that Appellant had a black backpack, which he left at her house, but denied seeing a gun or that Appellant asked her if he could leave the gun with her. When Appellant left the apartment, he told Smith that he needed a place to spend the night and asked Smith's boyfriend, Isaac Johnson, to accompany him to Monika Clay's apartment.

Smith denied giving Appellant any clothes to wear that night. She further denied telling anybody else that Appellant had a gun, that his...