Murder conviction affirmed despite trial court's refusal to instruct upon wanton murder and second degree manslaughter because defendant's defense that another person committed the murder presented no evidence justifying an instruction which required a wanton mental state
How later courts described this case
- Murder conviction affirmed despite trial court's refusal to instruct upon wanton murder and second degree manslaughter because defendant's defense that another person committed the murder presented no evidence justifying an instruction which required a wanton mental state
- holding that both parties have great leeway in making closing arguments
- “The required analysis . . . must focus on the overall fairness of the trial, and not the culpability of the prosecutor.”
- approving criticism of defense counsel for presenting a “great octopus” defense and pulling .a “scam,” and questioning counsel’s intelligence
Written by the judges who cited it.
The opinion
LEIBSON, Justice,
dissenting.
Respectfully, I dissent.
I am concerned whether we have properly discharged our responsibility to perform an independent proportionality review as mandated by KRS 532.075, Review of death sentence by Supreme Court. It is our responsibility to decide “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” KRS 532.075(2)(c).
This proportionality review was statutorily mandated to comply with Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) and Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). Under more recent United States Supreme Court authority, Pulley v. Harris, 465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984), perhaps it is no longer a Federal constitutional requirement in every case, but nevertheless it remains a statutory obligation in every case.
I have reviewed the fact situation in all of the death penalty cases listed in the Majority Opinion. There is no case similar to this one where the death penalty was affirmed.
Here there is no evidence of premeditation. On the contrary the evidence proves that the appellant was attempting to rob a neighborhood store, and killed in reaction to the victim’s panic and scream, whereupon he aborted the robbery attempt and ran out of the store. As stated in the Majority Opinion:
“... Slaughter related that his intention was to rob the store. When he asked the woman for money she screamed. He hit her with his gun and then stabbed her to stop the screaming.”
The appellant was born February 3, 1963 and just turned 20 years of age when the offense occurred on January 28,1983. The trial judge’s report states the following mitigating circumstances were in evidence:
“No significant criminal history; youth of defendant; no history (of) conviction (of) violent offenses; did not flee; can be treated and rehabilitated; low intelligence; difficult childhood.”
I am persuaded by the difference in this killing and Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987). Stanford robbed, raped, sodomized and murdered Baerbel Poore, the clerk at a Checker gas station in Jefferson County. The critical difference was that Stanford knew the victim before the robbery and obviously intended to leave no witness. After committing robbery and sex offenses upon her, he forced the victim to drive with him some distance to a deserted area, kneel in the backseat, smoke a last cigarette, and he then killed her with a bullet through the *417 head, execution style. His past history showed that he had attempted a similar type of killing a short time before. If there is such a thing as two classes of murder that deserved different punishments, and the law as presently written presupposes that there is, then the line should be drawn somewhere between Stanford’s case and Slaughter’s case.
The structure mandated by the United States Supreme Court for deciding whether the death penalty violates Eighth Amendment protection against cruel and unusual punishments is twofold: (1) to determine whether the murderer is in the death eligible class and (2) then to decide if the murderer is death qualified by the circumstances unique to his case. By Kentucky statute those persons who murder in the course of a robbery are in the death eligible class. But the circumstances unique to this case do not justify the further decision that Slaughter’s killing deserves the death penalty; at least not if we are trying to stop imposing the death penalty in an arbitrary manner.
Many death penalty cases have been reduced to life imprisonment on independent proportionality review by state Supreme Courts in Florida, Georgia and Texas, but none by ours. This is a case where independent review by our Court justifies a similar conclusion.