juror who stated his belief that one who admitted killing was guilty of murder rehabilitated himself by his subsequent statement that he would excuse the killing if he believed the defendant acted in self-defense
How later courts described this case
- juror who stated his belief that one who admitted killing was guilty of murder rehabilitated himself by his subsequent statement that he would excuse the killing if he believed the defendant acted in self-defense
- juror can rehabilitate himself by clarifying his views
Written by the judges who cited it.
The opinion
HUDDLESTON, Judge,
concurring in part and dissenting in part.
I dissent from that portion of the Court’s opinion which rejects Williams’ argument that the trial court erred by refusing to consider the alternative sentencing provisions of KRS 500.095(1). That statute, enacted in 1990, provides that:
In every case in which a person pleads guilty to or is convicted of a crime punishable by imprisonment, the judge shall consider whether the person should be sentenced to a term of community service as an alternative to the prison term. The term of community service shall not be shorter than the length of the prison term nor longer than twice the length of the prison term. Failure to complete the prescribed term of community service shall be deemed a probation violation and shall subject the defendant to serve the prison service originally fixed by the court or jury. (Emphasis supplied.)
At the 1990 session of the general assembly, KRS 533.010 was amended and reenacted. It now provides that
(1) Any person who has been convicted of a crime and who has not been sentenced to death may be sentenced to probation, probation with an alternative sentencing plan, or conditional discharge as provided in this chapter.
(2) Before imposition of a sentence of imprisonment, the court shall consider the possibility of probation, probation with an alternative sentencing plan, or conditional discharge. After due consideration of the nature and circumstances of the crime and the history, character, and condition of the defendant, probation, probation with an alternative sentencing plan, or conditional discharge should be granted unless the court is of the opinion that imprisonment is necessary for protection of the public because:
(a) There is substantial risk that during a period of probation, probation with an alternative sentencing plan, or conditional discharge the defendant will commit another crime; or
(b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.
(3) When the court deems it in the best interest of the defendant and the public, the court may order the person to work at community service related projects under the terms and conditions specified in KRS 533.070. Work at community service related projects shall be considered as a form of conditional discharge. (Emphasis supplied.)
The trial court’s refusal to consider probation was based on the prohibitive language contained in KRS 533.060(1):
When a person has been convicted of an offense or has entered a plea of guilty *947 to an offense classified as a Class A, B, or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, such person shall not be eligible for probation, shock probation or conditional discharge.
The statutes clearly contain conflicting language. Where a conflict exists, the latter statute controls. Brown v. Hoblitzell, Ky., 307 S.W.2d 739 (1956). The Legislature, in enacting KRS 500.095(1) and in reenacting KRS 533.010 in 1990, is presumed to have been aware of KRS 533.-060(1), which has been in effect since 1976, and which was amended as recently as 1986. Id.
As used in KRS 500.095(1) and KRS 533.-010(2), the word “shall” is mandatory. KRS 446.010(29). And as used in KRS 533.010(1), the phrase “any person” means everyone (except, according to the statute, those sentenced to death). The trial court was thus obliged, when sentencing Williams to consider the possibility of probation, probation with an alternative sentencing plan, or conditional discharge, despite the language of the earlier statute, KRS 533.060(1), prohibiting such consideration.
I would set aside the sentencing in this case and remand this case to Fayette Circuit Court with directions to consider the sentencing alternative set forth in KRS 533.010 and KRS 500.095(1).