White v. Com., No. 2004-SC-000082-MR.
| Decision Date | 06 January 2006 |
| Docket Number | No. 2004-SC-000082-MR. |
| Citation | 178 S.W.3d 470 |
| Parties | Kenneth WHITE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Randall L. Wheeler, Assistant Public Advocate, Frankfort, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, Michael Harned, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, James Havey, Criminal Appellate Division, Office of Attorney General, Frankfort, Counsel for Appellee.
Appellant, Kenneth White, was found guilty of Complicity to Murder Sam Catron, the Pulaski County Sheriff. He raises five claims of error: (1) that the prosecutor was allowed to introduce significant evidence of other crimes in violation of KRE 404(b); (2) that the aggravating circumstance—that Sheriff Catron was a sheriff involved in the performance of his duties—was not supported by the evidence and should not have been submitted to the jury; (3) that the prosecutor failed to give adequate notice of the evidence of aggravating circumstances to be offered as required by KRS 532.025(1)(a); (4) that the trial court improperly refused his motion for a continuance; and (5) that the trial court improperly refused to give the jury an instruction on facilitation of murder, a lesser-included offense of the complicity charge. Finding no merit to these claims, we affirm Appellant's conviction.
On April 13, 2002, a volunteer fire department in Pulaski County held a fish fry for the various candidates vying for public office in the upcoming local election. Sheriff Catron, an incumbent running for re-election, attended the fish fry. Various other candidates, including Sheriff Catron's political opponent and former deputy, Jeff Morris, were also present.
Sometime after 7:00 p.m., Sheriff Catron left the fish fry to put two cakes he had purchased in his police cruiser, which was parked in the lot outside. As he unlocked his car, Sheriff Catron was shot in the head by a sniper located about 75 yards away. He fell to the ground and died at the scene a few minutes later.
David Brian Hoff, who was in the parking lot at the time of the shooting, heard the shot and saw Sheriff Catron fall to the ground. Almost immediately thereafter, he heard a motorcycle start some distance away. Turning toward the sound, he saw a man in camouflage clothing with a rifle slung over his shoulder riding away on a motorcycle at high speed. Hoff got in his truck and pursued the rider in his truck. A few minutes later, Hoff caught up to the rider, who had wrecked his motorcycle and was attempting to get back on. Hoff hit the motorcycle with his truck, knocking the rider off and sending the rifle flying. Hoff then got out of his truck and approached the rider while brandishing a tire tool. The rider, Danny Shelley, took of his helmet as Hoff approached. Hoff told bystanders to call the police because Shelley had just killed Sheriff Catron, to which Shelley responded, "I did." A sheriff's deputy arrived a short time later and took Shelley into custody.
Kentucky State Police Detective Glenn Todd Dalton interviewed Appellant and Jeff Morris later that evening. They were considered "of interest" to the police because both men were friends of Shelley, the motorcycle Shelley had been riding was registered to Morris, and the last number dialed on Shelley's cell phone belonged to Appellant. In addition to the facts tying the men to Shelley, Morris was Sheriff Catron's political opponent and Appellant was Morris's campaign manager. During the interview, Appellant denied any involvement in the shooting, though he did admit that he had been with Morris and Shelley earlier that day working on the campaign. He indicated that he had heard Shelley talk about killing the sheriff and that Morris had been present when the statements were made. When asked his whereabouts that evening, he claimed that he had been shopping with his wife when the shooting occurred. After interviewing Morris and Appellant, Detective Dalton formally charged Shelley with Sheriff Catron's murder and questioned him about the crime. Shelley quickly admitted to shooting the sheriff and implicated Morris. As the interview progressed, Shelley also revealed that Appellant had been involved in the murder plot.
The next day, police searched Appellant's house. Morris was present when they arrived. During the search, Appellant surrendered a micro-cassette on which he had recorded some of his phone conversations the previous evening. After the search, police drove Appellant to the Commonwealth's Attorney's office for a second interview. During the interview, he offered to gather evidence against Morris, but the police declined.1 As the police drove him home, Appellant told the officers that he had heard Shelley say the only way to beat Sheriff Catron in the election was "to blow his head off" and that Shelley had bragged about his marksmanship.
The next day, Morris and Appellant were arrested. Shelley, Morris, and Appellant were all subsequently indicted for the murder, and the prosecutor gave each man notice that he intended to seek the death penalty. Morris and Shelley entered plea bargains wherein they accepted sentences of life without the possibility of parole for 25 years in exchange for testifying against Appellant.
At trial, Shelley testified extensively about his relationship with both Morris and Appellant. He stated that he had met Appellant several years before, and they had been involved in the drug trade together. He testified that Appellant had financed Morris's campaign for sheriff, and that the three of them had spoken several times about killing Sheriff Catron. He also claimed that several days before the fish fry, Morris and Appellant told him that Sheriff Catron intended to arrest, and possibly kill, the three of them before the election. He also testified that he was afraid of Appellant because he had bragged about killing people, always carried a gun, had once pointed his gun at someone's face during a business deal in Shelley's presence, and had warned Shelley never to cross him or he would hurt Shelley's family.
Morris also testified about his relationship with Appellant. He had previously been employed as a sheriff's deputy but had resigned because of a dispute with the sheriff over vacation time and allegations that he had stolen a wallet from evidence. A few months after his resignation, he decided to run against Sheriff Catron. Morris claimed that Appellant had approached him in the fall of 2001 and offered to help finance his campaign. He also testified that Appellant originally claimed to want to help because Morris had helped save his brother's life. Appellant eventually spent between $25,000 and $30,000 on the campaign (compared to approximately $5000 of Morris's own money). During their relationship, Morris learned that Appellant was heavily involved in the drug trade. Morris claimed that when he attempted to back out of the campaign financing arrangement, Appellant threatened him and his family, claiming he had already committed two murders in another county.
Both Shelley and Morris testified that Appellant participated extensively in planning and preparing the sheriff's murder. According to both men, Morris and Appellant purchased the bullets for Shelley's rifle and Appellant was present when they had purchased a battery for the getaway motorcycle. They claimed that Appellant suggested both the place from where Shelley was to shoot as well as the escape route he should take afterward. Shelley further testified that he called Appellant while waiting to shoot the sheriff, and Appellant told him, The men also testified that Appellant held a grudge against the sheriff over a raid of Appellant's house and the confiscation of a four-wheeler. Speaking of the incident, Appellant had said, "He'll pay for that." Both Morris and Shelley ultimately admitted they had pled guilty to avoid the death penalty.
The prosecutor also presented extensive testimony from other witnesses that Appellant was involved in the drug trade.
Appellant testified in his own defense, essentially disclaiming any involvement in the killing. He repeated his earlier claim that Shelley had stated he wanted to kill Sheriff Catron. He also testified that he had heard Morris say he was going to kill the sheriff because of a possible indictment and arrest for the theft Morris was alleged to have committed when he was employed as a sheriff's deputy.
The jury found Appellant guilty of Complicity to Murder. During the penalty phase of the trial, the jury found an aggravating circumstance, namely that the murder was an intentional act and that Sheriff Catron had been "a local public official or sheriff engaged at the time of the act in the lawful performance of his duties." Appellant was then sentenced to life without the possibility of parole. He appeals his conviction to this Court as a matter of right. Ky. Const. § 110(2)(b).
A. KRE 404(b) Evidence
Appellant's first claim is that the trial court erred in allowing the introduction of evidence of Appellant's drug dealing activities in violation of KRE 404(b). A major portion of the prosecutor's evidence—including the testimony of at least nine of the twenty-two prosecution witnesses—depicted Appellant as a drug dealer. The prosecutor argued at trial, and the Commonwealth argues now, that this evidence showed Appellant's motive for participating in the murder conspiracy, thus it was admissible under KRE 404(b).
Professor Lawson has noted that the "motive" exception to KRE 404(b) should be used only in limited situations:
If protection against propensity evidence is to be meaningful, courts must limit the use of the "motive" exception to situations where motive is pertinent to the issues of ...
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