# Thompson v. Commonwealth

> Kentucky Supreme Court · October 1, 1993 · 862 S.W.2d 871

URL: https://www.frixlaw.com/law-library/cases/9669142

## Case

- **Full name:** William Eugene THOMPSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** October 1, 1993
- **Citations:** 862 S.W.2d 871; 1993 WL 383501
- **Precedential status:** Published
- **Opinion:** Dissent by Wintersheimer
- **Judges:** Combs, Lambert, Reynolds, Spain, Stephens, Issue, Wintersheimer, Leibson
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by St. Clair v. Commonwealth, 140 S.W.3d 510 (2004).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9669142

## Opinion text

WINTERSHEIMER, Justice,
dissenting.
I respectfully dissent from the majority opinion because I do not believe the trial judge abused his discretion in refusing to strike several jurors for cause, and there was a sufficient aggravating circumstance to permit the punishment given in this case.
The majority opinion states that five members of the original jury panel had strong preconceived notions about the guilt of the defendant and the severity of punishment to be administered and were therefore not fair and impartial jurors.
It should be recognized that Juror Peek was struck by the defense and did not serve, and Juror Parrish did not serve. Juror Holt did serve, as did Juror Guess and Juror Galusha. My review of the record indicates no dissatisfaction with the decision of the trial judge to allow Jurors Holt and Guess to serve. Juror Galusha was not challenged. I can find no abuse of discretion on the part of the trial judge in accepting the jury.
*879 None of the jurors were closely related to the corrections system as contemplated by Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985). None of the jurors could have been struck for cause pursuant to Marsch, supra, Grooms, swpra, Rigsby, supra, or Peters v. Commonwealth, Ky. 505 S.W.2d 764 (1974).
This case reveals a common theme in regard to the level of awareness of most jury panel members. Generally, as well as in this case, most of those called for jury duty who actually read or heard about the particular crime involved have a very marginal ability to remember the true facts or even newspaper accounts of any details. Here, many of the prospective jurors said they did know the prosecutor when actually they only recognized his name and his capacity as an elected public official. A review of the views of the jurors about capital punishment does not disclose anything that would prevent or substantially impair the performance of their duty as jurors in accordance with the instruction of the court and their oath as jurors. Cf. Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 88 L.Ed.2d 841 (1985). The answers given by the jurors in this case do not rise to the level that would require their being stricken as jurors, and consequently, there was no abuse of discretion by the trial judge in refusing to excuse them pursuant to the standards set out in Marsch.
As with many other aspects of the trial of any case, the decision as to whether a particular person should serve as a juror should primarily rest with the sound discretion of the trial judge.
Although there is a facial attractiveness to the argument that this first murder conviction which was still pending on appeal should not have been used in the sentencing phase, it is arguable as to prejudice under these circumstances. Cf. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969). K.R.S. 532.025(2)(a)(l) simply requires “a prior record of conviction.” If the legislature had intended to allow only the use of convictions which had been affirmed on direct appeal, it could have so stated. Other states have concluded that the pendency of appeal or post-conviction proceedings does not eliminate the possibility of the use of a prior conviction in a death penalty sentencing hearing. See Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520 (1983), cert. denied, 464 U.S. 865 , 104 S.Ct. 202 , 78 L.Ed.2d 176 ; State v. Jordan, 126 Ariz. 283 , 614 P.2d 825 , cert. denied, 449 U.S. 986 , 101 S.Ct. 408 , 66 L.Ed.2d 251 (1980); Spaziano v. State, Fla., 433 So.2d 508 (1983), affirmed, 468 U.S. 447 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984), and cf. State v. Pollard, Ky., 735 S.W.2d 345 (1987).
Here the 1974 willful murder conviction was used because it was “essential that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” California v. Ramos, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983).
I believe it is open to serious question whether in this case the use of the earlier conviction as an aggravating factor was at all prejudicial. Here the jury determined that Thompson had committed the murder during the commission of first-degree robbery and that he was a prisoner who murdered a prison employee.
I would affirm the conviction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9669142. Public record. Not legal advice.