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[11] |
On June 13, 1997, Osama Shalash was fatally shot in the Lexington Mall parking lot in front of Perkins' Restaurant in Lexington, Kentucky. Appellants Gerald Young, Erskin Thomas and Darrell Morbley were jointly indicted for his murder. At trial, the Commonwealth proved that Shalash and Young were cocaine traffickers and that Young regularly purchased large quantities of cocaine from Shalash for resale to lesser dealers. There was evidence that Young intended to purchase $SO,OOO.OO worth of cocaine from Shalash, but that Shalash only had $25000.00 worth of cocaine to sell. Young paid Shalash $25000.00 for the cocaine and entrusted the remaining $25,000.00 to the possession of one of Young's associates, Leslie Mulligan. There was evidence that Young had previously "shorted" Shalash on another drug transaction.
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[12] |
The Commonwealth's theory of the case was that Shalash robbed Mulligan of the $25,000.00 at gunpoint; and, in revenge, Young hired Thomas to kill Shalash. To that end, Young arranged a meeting with Shalash at the Lexington Mall parking lot. Morbley, another of Young's associates, drove Thomas to and from the Lexington Mall where Thomas shot and killed Shalash. Thomas was convicted of murder and sentenced to life in prison without benefit of probation or parole for twenty-five years. Young was convicted of complicity to murder and sentenced to death. Morbley was convicted of facilitation of murder and sentenced to five years in prison.
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[13] |
Young and Thomas appeal to this Court as a matter of right. Ky. Const. 5 110(2)(b); KRS 532.075(l). Morbley's appeal was transferred to this Court so that all three appeals could be considered together. CR 74.02(2). We reverse Young's sentence of death because there is no aggravating circumstance applicable to his participation in the murder of Shalash. KRS 532.025(2),(3). In all other respects, the convictions and sentences imposed upon Appellants are affirmed.
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[14] |
I. AGGRAVATING CIRCUMSTANCE. |
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[15] |
A sentence of death or of life without benefit of probation or parole for twenty-five years cannot be imposed unless the jury has found beyond a reasonable doubt and designated in writing that at least one of the statutory aggravating circumstances enumerated in KRS 532.025(2)(a), or another aggravating circumstance "otherwise authorized by law," *fn1 applies to the defendant. KRS 532.025(2),(3); see Smith v. Commonwealth, Ky., 599 S.W.2d 900, 912 (1980). The parties to this appeal agree that the only statutory aggravating circumstance applicable to the facts of this case is KRS 532.025(2)(a)4, viz:
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[16] |
The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value, or for other profit. |
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[17] |
Subsection (2)(a)4 contains the only aggravating circumstance enumerated in KRS 532.025(2) that is premised upon the defendant's motive. The others are premised upon the status of the defendant, the status of the victim, or the nature of the offense. The jury was instructed that it could impose capital punishment upon Thomas, the hired killer, only if it believed from the evidence beyond a reasonable doubt that:
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[18] |
The defendant committed the offense of Murder for himself or another, for the purpose of receiving money or any other thing of monetary value, or for other profit. |
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[19] |
Thus, the instruction parroted the language of KRS 532.025(2)(a)4, and Thomas does not assert on appeal that there was insufficient evidence to warrant application of the aggravating circumstance to him. The jury was instructed that it could impose capital punishment upon Young, who hired Thomas to kill Shalash, only if it believed from the evidence beyond a reasonable doubt that:
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[20] |
The defendant committed the offense of Complicity to Murder and the murder was committed by Erskin Thomas, for the purpose of receiving money or any other thing of monetary value, or for other profit. |
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[21] |
Of course, the jury had already found Young guilty of complicity to murder; and there was no evidence that Young's motive in hiring Thomas to kill Shalash was "for the purpose of [Young] receiving money or any other thing of monetary value, or for other profit." The instruction authorized the imposition of capital punishment upon Young if the jury believed that Thomas killed Shalash "for the purpose of phomas] receiving money or any other thing of monetary value, or for other profit." The issue here is whether an accomplice to murder, whose motive was revenge, can be sentenced to death because the killer's motive was monetary gain. *fn2 We have not previously been required to decide whether KRS 532.025(2)(a)4 authorizes imposition of the death penalty upon one who hires another to kill, but whose motive in doing so is unrelated to "receiving money or any other thing of monetary value, or for other profit." *fn3
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[22] |
Prior to the adoption of the penal code, Kentucky's murder statute provided simply: |
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[23] |
Any person who commits willful murder shall be punished by confinement in the penitentiary for life, or by death. KRS 435.010 (repealed 1974 Ky. Acts, ch. 406, 5 336, eff. January 1, 1975).
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[24] |
Under that statute, whether a convicted murderer would be sentenced to death or to life in prison was left to the unfettered discretion of the jury. By 1962, similar statutes existed in every jurisdiction in the United States that had not abolished the death penalty. Model Penal Code and Commentaries, Part II, § 210.6, Comment 4(c), at 131 (A.L.I. 1980) (hereinafter Commentaries). In 1959, the American Law Institute adopted a Model Penal Code provision that set forth aggravating and mitigating circumstances to guide judges and juries in determining whether capital punishment would be appropriate in a particular case. Id., Comment 1, at 110, Comment 6, at 136-42. The aggravating circumstance in the Model Penal Code that corresponds to KRS 532.025(2)(a)4 is found at Section 210.6(3)(g): "The murder was committed for pecuniary gain." As of 1972, no American jurisdiction had adopted Section 210.6 of the Model Penal Code. Commentaries, supra, Comment 13, at 167-68.
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[25] |
In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) it was argued on behalf of the condemned murderer that the absence of standards to guide a jury's discretion on the issue of capital punishment was unconstitutional as being "fundamentally lawless" and, thus, in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 196, 91 S.Ct. at 1461. Addressing this contention, Justice Harlan traced the history of the death penalty from Exodus 21:12-13 through the laws of England and the United States. Id. at 197-203, 91 S.Ct. at 1462-65; see also Commentaries, suora, Comment 4, at 121-32 and M. Coan, Symposium on the New Kentuckv Penal Code: Classification of Offenses and Disoosition of Offenders, 61 Ky. L.J. 734, 738-39 (1972-73).
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[26] |
To summarize, the common law rule mandated death for all convicted murderers. Subsequent legislative enactments distinguished between degrees of homicide, retaining the mandatory death sentence only for murder in the first degree. Juries, however, simply convicted of a lesser degree of homicide in those cases where they chose not to impose the death penalty, and legislatures accepted this "jury nullification" by amending their statutes to grant juries the discretion they were already exercising.
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[27] |
Guided by neither rule nor standard, "free to select or reject as it [sees] fit," a jury that must choose between life imprisonment and capital punishment can do little more -- and must do nothing less - than express the conscience of |
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