stating that the law-of-the- case doctrine “refers to a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation[]”
How later courts described this case
- stating that the law-of-the- case doctrine “refers to a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation[]”
- observing that “Brown does not contend that his second jury was informed of either his prior conviction or the reason for his retrial,” and “[a]bsent such an express invasion of the jury’s independence, the fact that the jury may have been aware that Brown was being retried no more infringed upon his right to be presumed innocent than does the jury’s awareness that the defendant was arrested, indicted, and put on trial.”
- holding that evidence of murder victim’s drug use was properly excluded where there was no evidence tending to show that murder was drug related
- holding that a jury’s knowledge that defendant was being retried but not that he had been found guilty, did not violate the defendant’s rights
Written by the judges who cited it.
The opinion
CUNNINGHAM, J.,
concurring in result only:
I write to emphasize that Kentucky law does not require the jury to find as a fact, beyond a reasonable doubt, that the death penalty is the appropriate penalty. How *632 ever, in this particular case, such an instruction was given. For that reason, I am constrained to concur in result only.
When a jury recommends the death penalty, KRS 532.025(3) requires only that the jury “designate in writing ... the aggravating circumstance or circumstances which it found beyond a reasonable doubt.” This Court has previously stated that “[tjhere is no requirement that the jury be instructed to find that death is the appropriate punishment beyond reasonable doubt.” Skaggs v. Commonwealth, 694 S.W.2d 672, 680 (Ky.1985) (vacated in part by Skaggs v. Parker, 235 F.3d 261 (6th Cir.2000)). Because Kentucky’s death penalty statute suitably narrows the class of defendants who are eligible for the death penalty, then guides and directs the jury’s sentencing discretion with clear and objective standards, it has repeatedly been held constitutional absent such a requirement. See Kordenbroek v. Scroggy, 680 F.Supp. 867, 898 (E.D.Ky.1988) (“[T]he Kentucky statute is not in violation of the Eighth and Fourteenth Amendments.”). See also McQueen v. Scroggy, 99 F.3d 1302, 1333 (6th Cir.1996); Thompson v. Commonwealth, 147 S.W.3d 22, 55 (Ky.2004); Ice v. Commonwealth, 667 S.W.2d 671, 679 (Ky.1984); Gall v. Commonwealth, 607 S.W.2d 97,113 (Ky.1980).
The U.S. Supreme Court has not specifically addressed what standard of persuasion is required by the Eighth Amendment in death penalty proceedings. Rather, its focus has remained on the overall statutory scheme and its ability to reduce capricious or arbitrary imposition of the death penalty. See Gregg v. Georgia, 428 U.S. 153, 188-95 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). As such, some states employ the reasonable doubt standard in determining the appropriateness of the death penalty. See, e.g., State v. Wood, 648 P.2d 71, 83 (Utah 1982). Others, however, have rejected the argument that the failure to require the jury to find that death is appropriate beyond a reasonable doubt renders a death penalty statute unconstitutional. See, e.g., People v. Benson, 52 Cal.3d 754 , 276 Cal.Rptr. 827 , 802 P.2d 330, 362 (1990) (again rejecting claim that U.S. Constitution requires instruction that jury must find death is appropriate beyond a reasonable doubt). See also State v. Jenkins, 15 Ohio St.3d 164 , 473 N.E.2d 264, 280 (1984) (jury need not be statutorily required to determine death penalty is appropriate where procedural safeguards ensure appropriateness).
I am persuaded that the use of the reasonable doubt standard in the penalty arena would serve little purpose. When the jury is directed to consider the aggravating and mitigating circumstances, and then to fix punishment, the jury is essentially determining what it believes to be the appropriate penalty. I reject the contention that a reasonable doubt instruction underscores, for the jury, the level of expected certainty in its decision. I trust a capital sentencing jury has little doubt as to the profound nature of its task. Rather, I agree with the California Supreme Court that the reasonable doubt standard is a “term[] associated with traditional fact-finding” and not suited to the “inherently moral and normative” sentencing function. People v. Rodriguez, 42 Cal.3d 730, 779 , 230 Cal.Rptr. 667 , 726 P.2d 113 (Cal.1986).
It is unknown to the writer how many people on death row today were sentenced without instructions requiring the jury to find death beyond a reasonable doubt. It is unknown how many pled guilty and were sentenced to death without the court finding that death was appropriate beyond a reasonable doubt. For that reason, I write to emphasize that no such instruction is either required or appropriate.
*633 Lastly, and on another issue, I agree that the introduction of the tattoo evidence in the guilt stage was error, although harmless. However, I believe that it is admissible for sentencing purposes. Tattoos, like bumper stickers, are manifestations of a person’s attitude toward the world around them. It is both relevant and probative as to sentencing.
MINTON, C.J., joins.