Opinion
No. 2004-SC-0387-MR.
September 21, 2006.
Appeal from Kenton Circuit Court, 1998-Cr-0384-Mr, Honorable Douglas M. Stephens, Judge.
Randall L. Wheeler, Assistant Public Advocate, Karen Maurer, Assistant Public Advocate, Dept. of Public Advocacy, Frankfort, Ky, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, Louis F. Mathias, Jr., Assistant Attorney General, Michael A. Nickles, Assistant Attorney General, Criminal Appellate Division, Frankfort, Ky, Counsel for Appellee.
This appeal is from a judgment based on a jury verdict in the penalty phase. In the original appeal, this Court affirmed the conviction for murder and other related crimes but found that the trial judge erred in denying Furnish the benefit of an amended statutory provision which authorizes a sentence of life without the benefit of probation or parole in capital murder cases. The case was remanded for a new penalty phase where Furnish would be eligible for an instruction on life without parole. Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2003).
At the retrial of the penalty phase, testimony was not received concerning evidence of guilt. Certified copies of the prior convictions were introduced. A different jury again recommended a death sentence and Furnish waived a presentence investigation report and requested to be sentenced immediately after the victim impact statements were presented. He was again sentenced to death.
The underlying facts in this case are that on June 25, 1998, a 66-year-old widow was found strangled to death in her Crestview Hills home. The residence had been ransacked, and jewelry and credit cards were stolen. During the guilt phase of the trial, the defense conceded that Furnish was "a thief and a burglar" and that he had been at the residence on the day of the murder, but denied the actual killing, claiming that another "mystery person" was the one who murdered the woman. After a 17-day trial, the jury found him guilty of murder and the other offenses noted above.
In this appeal, Furnish presents 18 assignments of alleged error in the penalty phase.
I. Aggravating Circumstance
Furnish argues that he was denied due process and a reliable sentence because of the failure of the jury to find any aggravating circumstance. This issue is unpreserved but cannot be waived. Furnish contends that to allow one jury to determine aggravation and a subsequent jury to determine penalty is not proper under Kentucky law, nor is it authorized by the Sixth Amendment. He claims the decision by the first jury was a nullity when a new penalty phase was ordered.
The trial judge did not err in determining that the aggravating circumstances had been found by the first jury and that Furnish stipulated the existence of the aggravating circumstances. An aggravating circumstance may be found in either the guilt or penalty phase. See Flamer v. Delaware, 68 F.3d 736 (3d Cir. 1995). Accord Tuillaepa v. California, 512 U.S. 967,114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). See also Ernest v. Commonwealth, 160 S.W.3d 744 (Ky. 2005).
Nothing in KRS 532.025 prevents a defendant from stipulating to the existence of aggravating circumstances nor is it inconsistent with the general rule that criminal defendants may knowingly and voluntarily waive statutory rights. Nothing in the statute requires a personal waiver or personal consent or stipulation regarding aggravating circumstances. There was no error.
II. Other Conviction
Furnish believes that the introduction of his murder conviction of another woman subsequent to the conviction in this case should be inadmissible at the retrial of the penalty phase. That victim had been strangled in her Kenton Hills home. In 2002, Furnish entered a guilty plea for the murder of that elderly woman. He was sentenced to life without parole for 25 years. Furnish contends that it would be unfair to allow the jury to consider this conviction and sentence because the events in that case took place long before the current trial.
KRS 532.055(2)(a) permits the Commonwealth during the penalty phase to introduce evidence relevant to sentencing including prior convictions of the defendant and the nature of such prior offenses. The truth in sentencing statute of Kentucky tends toward providing the jury with information relevant to arriving at an appropriate sentence for a particular offender. See Williams v. Commonwealth, 810 S.W.2d 511 (Ky. 1991). See also Robinson v. Commonwealth, 926 S.W.2d 853 (Ky. 1996), which indicates that all that is admissible as to the nature of the prior conviction is a general description of the crime. Here, Furnish received a fundamentally fair trial in this regard and there was no error.
The aggravating factors were found and then the conviction in the Kenton Hills case was introduced for the jury to consider in sentencing. This Court has allowed the introduction of subsequently obtained capital convictions while noting that alone would not make the defendant death eligible. See Haight v. Commonwealth, 938 S.W.2d 243 (Ky. 1996); Templeman v. Commonwealth, 785 S.W.2d 259 (Ky. 1990).
III. Estoppel Because of Punishment in a Prior Case
Furnish claims that the Commonwealth was estopped from seeking the imposition of the death penalty because the Commonwealth had offered and accepted a plea of guilty for life without parole for a similar conviction. That conviction involved the murder and burglary of a woman in 1997. He was given life without parole in 2002, approximately three years after this case.
The trial judge properly declined to conduct a proportionality review. See McClellan v. Commonwealth, 715 S.W.2d 464 (1986). In addition, the trial judge correctly found that the prosecution was not estopped from seeking the death penalty. Furnish has given no authority as to why the general rule found in Taylor v. City of LaGrange, 262 Ky. 383, 90 S.W.2d 357 (1936), which precludes estoppel against the Commonwealth should apply here. In addition, he makes no contention that he detrimentally relied on any representation from the prosecution when he entered his plea in the first case or otherwise changed his position in a manner that would justify any estoppel. Moreover, the sentence was not disproportionate in view of the crime committed.
Furnish has not shown that the elements necessary to establish estoppel were presented, even if such a doctrine could conceivably have been applied. There is no assertion that he detrimentally relied on any representation of the prosecution when he entered his plea in the Kenton Hills case or otherwise changed his position in a manner that would conceivably justify his estoppel. Revenue Cabinet. Commonwealth of Kentucky V. Samai, 757 S.W.2d 199 (Ky.App. 1988).
IV. Excusing of Jurors for Religious Beliefs
Furnish complains that the trial judge erred by excusing for cause, five jurors who stated that for religious reasons they could not impose the death penalty. This issue was decided inParrish v. Commonwealth, 121 S.W.3d 198 (Ky. 2003). This claim in effect is a request to reconsider the issue. The jurors here as those in Parrish. supra, could not consider the full range of penalties and therefore were properly excused. The argument is totally unconvincing.
V. Jurors who could not consider Mitigation/full range of Penalties
Furnish asserts that the trial judge erred by failing to excuse for cause those jurors who could not consider mitigation and those who could not consider the full range of penalties. InMabe v. Commonwealth, 884 S.W.2d 668 (Ky. 1994), this Court considered at great length the standards relative to the excusal of a juror for cause. It recognized that the trial judge has broad discretion to determine whether a prospective juror should be so excused. See also Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L. Ed.2d 847 (1984).
The trial judge also refused to strike prospective jurors for their alleged inability to consider mitigating circumstances. Both of the jurors indicated that they would be able to follow the instructions of the trial judge and put all the facts and circumstances together in deciding an appropriate punishment. Considering all the circumstances with due deference to the opportunity of the trial judge to observe the demeanor of the prospective jurors, the decision to deny the motion to strike was not an abuse of discretion. The trial judge correctly refused to strike prospective jurors for an alleged inability to consider mitigating circumstances. The trial judge also properly declined to strike prospective jurors for an alleged inability to consider the full range of penalties. There was no error.
VI. Cross-examination of Mitigation Witnesses
Furnish states that the cross-examination of his mitigation witnesses was improper and the comments of the prosecutor during closing argument denied Furnish due process and a reliable determination of his sentence.
A careful examination of the record does not support this argument. Furnish relies on Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed. 720 (1991). Here, the questioning and comments by the prosecutor did not extend that authorized byPayne. It did not exceed the prosecutor limits in regard to victim/impact evidence enunciated by this Court in Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997). The prosecutor did not exceed the limits provided by the case law. His conduct was not improper and did not make the jury more likely to impose a death sentence.
The cross-examination of a defense witness who indicated that Furnish had exercised his right to go to trial was not improper. Counsel for Furnish objected and the trial judge sustained the objection but denied the motion for a mistrial. Furnish had already been found guilty which the jury knew and the inquiry was not anything novel. There was no error.
Furnish argues that there was misconduct on the part of the prosecutor in cross-examining another defense witness when he asked her if she had e-mailed Furnish or had checked his web site. He contends this was improper comment on the amenities in prison. We find this argument to be without merit. The incident had no possible opportunity to inflame the jury, particularly in view of the widespread use of e-mail.
The closing argument used by the prosecutor was not improper although he used the terms "evil" and "animal" in regard to Furnish. The reference to evil and the phrase "a leopard cannot change its spots" were not inflammatory and improper. The defense had commented that Furnish was traveling the "road to redemption." The prosecutor did not appeal to community responsibility when he simply stated that the jury represented the citizens of Kenton County. There was no error.
Finally, the prosecutor conducted himself with due professional propriety. In order to justify reversal, the misconduct of the prosecutor must be so serious as to render the entire trial fundamentally unfair. Stopher v. Commonwealth, 57 S.W.3d 787 (Ky. 2001). Certainly, that was not the case in this situation. The questioning and comments by the prosecutor in this case did not exceed that authorized by Payne, supra, or Bowling, 942 S.W.2d at 293. It must be remembered that Furnish had already been tried and found guilty. This was something that the jury already knew. The trial judge found the objection by defense sustainable, but denied the request for mistrial. The complaints about e-mail and web site amenities are of no consequence. A prosecutor may draw all reasonable inferences from the evidence to support any explanation of the evidence that supports a finding of guilt. Tamme v. Commonwealth, 973 S.W.2d 13 (1998).
VII. Restrictions on Time and Manner of Allocution
Furnish states that under Section 11 of the Kentucky Constitution, counsel filed a pretrial motion requesting that Furnish be allowed an allocution to the jury before it deliberated the sentence. The trial judge granted this motion but Furnish asked that he make the allocution after the closing argument of the prosecutor. He claimed that to do otherwise would not be effective and would allow the prosecutor to conduct a de facto cross-examination. This request was denied. Allocution has been considered to be a plea for leniency designed to temper punishment with mercy and to assure that sentencing reflects individualized circumstances.
Furnish argues that Section 11 provides that in criminal prosecutions the accused has a right to be heard by himself and counsel. Such language has never been held to create a right of allocution in Kentucky although it is the basis for the right to hybrid counsel. C.F. Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004).
The Oregon case cited by Furnish to buttress his argument,State v. Rogers, 4 P.3d 1261 (Or. 2000), does not provide legal support for the right of allocution as he claims it in his case.Rogers, supra, was factually similar to this case. The Oregon court concluded that the trial judge had broad discretion to discern the proceedings and that nothing in the Oregon constitutional provision overrode the authority of the trial judge to conduct the trial in an orderly manner. The Oregon Supreme Court determined that the trial judge had acted within his discretion and that there was no error. It should be observed that the Oregon court first interpreted its constitution as including a right to allocution in 1988.
This Court has indirectly considered the issue of allocution inQuarrels v. Commonwealth, 142 S.W.3d 73 (Ky. 2004), but did not identify any right to allocution under the Kentucky constitution. Ultimately the Quarrels court determined that trial judge discretion may limit the testimony as to duration and content. It has long been held that the trial judge has broad discretion in the conduct of the trial and that such actions of the court, unless clearly erroneous. will not be disturbed on appeal. See Veach v. Commonwealth, 572 S.W.2d 417 (Ky. 1978). Similar recognition has been afforded by federal courts. See e.g. United States v. Li, 115 F.3d 125 (2d Cir. 1997). Finally, the trial judge did not err by requiring the allocution prior to the closing argument of the Commonwealth and the comment on allocution by the prosecutor was not improper. The timing of the allocution did not violate KRS 532.025(a) and did not allow a de facto examination of the accused.
VIII. Photographs
Furnish claims that it was error for the trial judge to allow the prosecutor to introduce photographs portraying uncontested facts because they were repetitious, gruesome and inherently inflammatory. The photographs were reviewed in pretrial hearings in great detail. The trial judge admitted some and excluded others with his finding being that those allowed were grounded in the narrative statements. The photographs which were admitted in the guilt phase were not objectionable. All of the photographs were explanatory of the narrative statement given to the jury. There was no violation of any of the requirements of Boone v. Commonwealth, 821 S.W.2d 813 (Ky. 1992). There was no abuse of discretion.
The photographs allowed the jury to see an overview of the criminal acts involved and were properly admitted. Simply because relevant pictures are gruesome and the crime is heinous does not render their admission faulty. See Clark v. Commonwealth, 833 S.W.2d 793 (Ky. 1991). The autopsy photographs were necessary to show the injuries on the body of the victim, that she had struggled and had been beaten by Furnish. The photographs demonstrated proof of facts in issue. Holland v. Commonwealth, 703 S.W.2d 876 (Ky. 1985). The photographs were properly admitted.
IX. Aggravating Circumstances (Grand Jury)
Furnish contends that the aggravating circumstances were required to have been contained in the indictment by the grand jury. This argument was originally considered and rejected by this Court in the first appeal. Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002). There is no authority to support the claim that aggravating circumstances must be described in the indictment. See Wheeler v. Commonwealth, 121 S.W.3d (Ky. 2003) and numerous other Kentucky decisions. See also Ernst v. Commonwealth, 160 S.W.3d 744 (Ky. 2005), which declined to adopt the argument in Jones v. United States, 526 U.S. 227,119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
X. Trial Judge Report
Furnish argues that the trial judge was not compelled to impose the recommended sentence of death because there is no articulated standard of review for judge sentencing. He contends that the trial judge believes he was compelled to impose the recommendation of the jury. The necessary elements of the report of the trial judge are found in Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987). KRS 532.075 provides that whenever the death penalty is imposed, the trial judge must prepare a report in the form of a standard questionnaire prepared and supplied by the Supreme Court. The trial judge did just that. A careful review of the report together with the record, indicates that the report was properly and sufficiently completed in compliance with the statute. The trial judge was aware of what the aggravating circumstances were, noted them in the report and stated that they had been found by a previous jury. Whether the trial judge wished to impose the death sentence or not is pure speculation. The trial judge verbally made his personal views clear, but he also stated he was not avoiding his responsibilities as a judge in his sentencing comments.
Furnish argues that the report supports his quest for resentencing. The report was sufficient and in compliance with the statute and provides no basis of relief for Furnish. The defendant waived the presentence investigation and made a definite decision to request immediate sentencing which was granted by the trial judge. Furnish knowingly waived any presentence report. The contents of the trial judge's report do not support any possible allegation of error.
Furnish also believes that there is no standard to guide judges in regard to the imposition of the death penalty. This Court has previously rejected this type of argument in Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997); Foley v. Commonwealth, 942 S.W.2d 876 (Ky. 1996); see also McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996). The report of the trial judge was in compliance with KRS 532.075, and does not provide solace for Furnish. He knowingly waived a presentence report, requested immediate sentencing and the contents of the report do not support any allegation of error. The trial judge fully understood his responsibilities and there was no error in regard to his report.
XI. Penalty Phase Instructions
Furnish asserts that the instructions given by the trial judge in the penalty phase were inadequate and insufficient. Furnish then proceeds to present thirteen individual arguments to support his contention. It would appear that all these issues are unpreserved. The proposed instructions presented on appeal were not the instructions given at trial. There is nothing to indicate these proposed instructions were ever presented or tendered to the trial judge. There is no part of the record where these alleged instructions are discussed. An unpreserved error cannot be reviewed when, as in this case, it is impossible to ascertain from the record whether the error was harmless or prejudicial. Prejudice will not be presumed from a silent record. Baze v. Commonwealth, 965 S.W.2d 817 (Ky. 1997). There was no error.
Furnish cites over thirteen individual challenges as to why the jury instructions presented by the trial judge were insufficient and denied him a fair and reasonable sentence. Furnish does not identify where any of the instructions he now complains should have been given were offered, nor does he identify where a motion or objection was made prior to the trial judge instructing the jury. It appears that counsel for Furnish failed to object for reasons of trial strategy. It is not at all convincing that Furnish would not have received the death sentence in the absence of any of the unpreserved alleged erroneous instructions. Cf. Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002).
XII. Reuse of Aggravators
Furnish contends that using the burglary and robbery convictions as aggravating circumstances is double jeopardy and, thus, requires reversal. This issue is not preserved and is not supported by citation. This Court has previously held that aggravating circumstances are not criminal offenses subject to a double jeopardy analysis. Furnish, supra; Wheeler, supra. There is no violation of Section 13 of the Kentucky constitution or the Fifth Amendment to the federal constitution.
XIII. Constitutionality of Death Penalty
Furnish complains that the death penalty statute is unconstitutional and sets out six individual arguments, none of which are persuasive. The class of persons eligible for the death penalty is sufficiently narrow. There is statutory guidance for the imposition of the penalty; it is not discriminatory; it is not arbitrarily applied; a claim of innocence is not proper and the decisions of this Court are legally and constitutionally sound.
The argument that Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky. 1994), amends KRS 532.025 and allows all murders to be eligible for the death sentence is meritless. In Jacobs, supra, this Court recognized that the statute provides for the use of nonstatutory aggravators. This case, as well as any logical inference therefrom, is factually distinguishable because here, only statutory aggravators were used.
The contention that there is no meaningful guidance on when to impose the death penalty is without reasonable support. This Court has previously rejected similar arguments in Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997); Foley v. Commonwealth, 942 S.W.2d 876 (Ky. 1996); and many other cases.Cf. United States v. Quinones, 313 F.3d 49 (2nd Cir. 2002). Here the aggravating factors are specific. There is no support in this record for the allegation that the death penalty is discriminatory or that it is arbitrarily applied. A question of plea bargaining is a matter reserved to the sound discretion of the prosecuting authority. Cf. Commonwealth v. Corey, 826 S.W.2d 319 (Ky. 1992). There was no abuse of discretion in this matter. The prior decisions of this Court on these issues are rational and legally sound.
XIV. Arbitrary and Disproportionate
Furnish claims that the death penalty statute is arbitrary and disproportionate considering other similar cases. His contentions center on the fact that he should receive the same sentence as he did in his previous murder case which was life without parole for 25 years. He seems to argue that because he got life without parole for 25 years in the first case, he should get the same in this case. Here, the jury considered the evidence and sentenced him in compliance with their understanding and determination of the facts. Any contention of this proportionality is unacceptable. The death sentence here is not disproportionate because the jury considered all the facts, as well as the full range of penalties and determined that the circumstances of this murder would require a sentence of death. Furnish received a fundamentally fair trial. The mere fact that he received life without parole for 25 years in an different case is not persuasive. See Perdue v. Commonwealth, 916 S.W.2d 148 (Ky. 1995). Cf. Stanefer v. United States, 447 U.S.10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). The complaints of Furnish are not persuasive.
XV. Proportionality Review
Furnish believes that the method of proportionality review used by this Court is inappropriate and constitutionally deficient. It has been previously decided in every death penalty case, including reversals, that the proportionality review now used by this Court does not violate state or federal provisions. See Foley, supra. The arguments presented by Furnish have also been rejected by the United States Supreme Court in Tuilaepa v. California, 512 U.S. 967,114 S.Ct. 2630, 129 L.Ed.2d 75 (1994) and the Sixth Circuit in McQueen v. Scrogg, 99 F.3d at 1302. Furnish was not prejudiced by denial of access to KRS 532.075 (6) data. Harper v. Commonwealth, 694 S.W.2d 665 (Ky. 1985), is still applicable and appropriate.
XVI. Lethal Injection
Furnish states that lethal injection and electrocution are cruel and unusual punishments and seeks a ruling that they violate the Eighth Amendment of the Federal Constitution and Section 17 of the Kentucky Constitution. This contention is somewhat premature because KRS 431.220(b) allows the accused to elect the method of execution until twenty days prior to its imposition. If no election is made the method will be lethal injection. Here, no such election has been made. This Court has previously upheld the constitutionality of electrocution as a means of imposing the death sentence in numerous cases. As to lethal injection, the same conclusion was announced in Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky. 2003). This argument is without merit.
We have previously examined lethal injection as a method of execution and held it did not violate the constitutional standards prohibiting cruel and unusual punishment. Id. We have no reason to depart from the position set out in that case. The protocol for lethal injection execution begins with the availability of a therapeutic dose of diazepam if it is requested. Diazepam, commonly referred to as Valium, is an anti-anxiety agent used primarily for the relief of anxiety and associated nervousness and tension. Certified phlebotomists and emergency medical technicians are allowed up to an hour to then insert the appropriate needles into the arm, hand, leg or foot of the inmate.
Three grams of sodium thiopental, commonly referred to as Sodium Pentathol, are then injected. This drug is a fast acting barbiturate that renders the inmate unconscious. At this level of ingestion the person is rendered unconscious for hours. The line is then flushed with 25 milligrams of a saline solution to prevent adverse interaction between the drugs.
Fifty milligrams of pancuronium bromide, commonly referred to as Pavulon, follows. This drug causes paralysis. The purpose is to suspend muscular movement and to stop respiration or breathing. The line is again flushed with 25 milligrams of a saline solution to again prevent any adverse interaction between the drugs.
Finally, 240 milligrams of potassium chloride is injected. This chemical disrupts the electrical signals required for regular heart beat and results in cardiac arrest. An electrocardiogram verifies the cessation of heart activity. A doctor and a coroner then verify the cause of death.
The Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution both forbid cruel and unusual punishment. The use of three grams of sodium thiopental, commonly referred to as Sodium Pentathol, renders the condemned unconscious. The prohibition is against cruel punishment and does not require a complete absence of pain. Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain but we are convinced that if any pain is present, it is minimal.
In addition, state and federal courts have regularly rejected arguments that lethal injection as a method of execution is cruel and unusual. See e.g. LaGrand v. Lewis, 883 F.Supp. 469 (D.Ariz. 1995), affirmed 133 F.3d 1253 (9th Cir. 1998); Sims v. State, 754 So.2d 657 (Fla. 2000); State v. Webb, 680 A.2d 147 (Ct. 1996); Moore v. State, 771 N.Ed.2d 46 (Ind. 2002);Spencer v. Commonwealth, 385 S.E.2d 850 (Va. 1989).
The lethal injection method used in Kentucky is not a violation of the Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution ban on cruel and unusual punishment.
XVII. Jury Death Qualification
Furnish, in this unpreserved issue argues that the process of asking potential jurors their opinion of the death penalty has a prejudicial effect on the jurors selected and that it was error for the trial judge to excuse for cause, those who would not consider the death penalty. Such arguments have been rejected by this Court in Hodge v. Commonwealth, 17 S.W.3d 824 (Ky. 2000), and numerous other death penalty cases. Accord Lockhart v. McCree, 476 U.S. 162 (1986).
XXIII. Cumulative Error
Furnish claims that cumulative error renders the convictions and sentences here to be unreliable because they denied him a fundamentally fair trial. We cannot agree. These arguments have been discussed in numerous previous cases. Furnish received a fundamentally fair trial and the absence of error in this case does not lend itself to any kind of argument for cumulative error. Each of the complaints offered by Furnish is without merit and has been carefully reviewed. See generally, Bowling,supra; Perdue, supra. Because there was no individual error, there certainly can be no cumulative error. An examination of the record here indicates there is no reason to change that position. See Bowling, supra.
The decision of the jury in regard to the penalty phase is affirmed.
All concur.