Petition for Writ of Certiorari — Virginia S. Caudill, Petitioner v. Janet Conover, Warden

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Caudill v. Com.Ky.,2003.

Supreme Court of Kentucky.

Virginia Susan CAUDILL, Appellant,

COMMONWEALTH OF KENTUCKY, Appellee,

and

Johnathon Wayne Goforth, Appellant,

Commonwealth of Kentucky, Appellee.

Nos. 2000-SC-0296-MR, 2000-SC-0297-MR.

June 12, 2003.

Rehearing Denied Dec. 18, 2003.

As Modified Feb. 5, 2004.

Defendants were convicted in the Circuit Court,

Fayette County, John R. Adams, J., of murder, firstdegree robbery, first-degree burglary, second-degree

arson, and tampering with physical evidence, and

were each sentenced to death for murder and to maximum authorized penalties for remaining convictions.

Defendants appealed. The Supreme Court, Cooper, J.,

held that: (1) jury selection and death qualification

was proper in all respects; (2) defendants' statements

to police were properly redacted; (3) errors in admission of testimony were harmless; (4) evidence of extreme emotional disturbance (EED) was insufficient

to warrant guilt-phase jury instruction; (5) instructions on lesser-included offenses of murder were not

warranted; (6) definition of EED applicable to reduce

charge of murder to manslaughter did not apply to

EED as capital mitigating circumstance, overruling

Dean v. Commonwealth, 777 S.W.2d 900; and (7)

any prosecutorial error in penalty phase argument

was harmless.

Affirmed.

Keller, J., concurred in result with separate opinion in

which Stumbo, J., joined.

* The requested pages begin below *

*648Donna L. Boyce, Appellate Branch Manager,

Department of Public Advocacy, Randall L.

Wheeler, Assistant Public Advocate, Frankfort,

Counsel for Appellant Virginia Susan Caudill (2000-

SC-0296-MR).

Julie Namkin, Assistant Public Advocate, Shannon

Dupree, Assistant Public Advocate, Department of

Public Advocacy, Frankfort, Counsel for Appellant

Johnathon Wayne Goforth (2000-SC-0297-MR).

A.B. Chandler, III, Attorney General, Connie Vance

Malone, Michael G. Wilson, Brian T. Judy, Assistant

Attorneys General, Office of Attorney General,

Criminal Appellate Division, Frankfort, Counsel for

Appellee Commonwealth of Kentucky (2000-SC0296-MR and 2000-SC-0297-MR).

OPINION

COOPER, Justice.

AFFIRMING

Following a trial by jury in the Fayette Circuit Court,

Appellants Virginia Susan Caudill and Johnathon

Wayne Goforth were each convicted of murder, robbery in the first degree, burglary in the first degree,

arson in the second degree, and tampering with physical evidence. Each was sentenced to death for the

murder conviction and to the maximum authorized

penalties for the other four convictions. Both now

appeal to this Court as a matter of right, Ky. Const. §

110(2)(b), KRS 532.075(1), asserting seventy-four

claims of error. For the reasons explained herein, we

affirm.

Lonetta White, age 73, was bludgeoned to death in

her home in Lexington, Kentucky, during the early

morning hours of March 15, 1998. Her body was

found in the trunk of her burning automobile in a

field several miles away. Her home was ransacked

and numerous items of personal property, including

two guns, jewelry, and a mink coat were stolen. Appellants Caudill and Goforth admitted they were present at the commission of all of these crimes. Each,

however, accused the other of murdering and robbing

the victim and of setting fire to the automobile.

Caudill had been living with the victim's son, Steve

White, but had moved out of his house on either

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March 13 or 14 following an argument concerning

Caudill's drug use. Caudill went to a nearby “crack

house,” a residence where drug users gathered to buy,

sell, and ingest controlled substances, especially

crack cocaine. There she encountered Goforth, a casual acquaintance whom she had not seen for about

fifteen years. Caudill testified that, on the afternoon

of March 14, Goforth gave her a ride to Mrs. White's

residence *649 and that Caudill induced White to

give her twenty or thirty dollars on the pretext that

she needed the money to rent a room for the night.

Instead, she returned to the crack house and used the

money to purchase crack cocaine. At about 3:00 a.m.

on March 15, Caudill and Goforth returned to Mrs.

White's residence.

According to Caudill, she went to the door and told

Mrs. White that she needed more money for the room

rental. Goforth remained out of sight near the garage.

When Mrs. White turned away to retrieve the money,

Goforth burst through the door and attacked her

without warning. Caudill did not identify the weapon

used by Goforth but remembered that, during the

course of the attack, Mrs. White pleaded with her to

“please help me, Virginia.” Goforth then took Caudill

to a bedroom and bound her hands together. After

killing White, Goforth ransacked the residence, loaded the jewelry, guns, and mink coat into his pickup

truck, and wrapped the body in a carpet. He then prevailed upon Caudill to help him carry the body to the

garage and load it into the trunk of Mrs. White's automobile. The two then drove both vehicles to a vacant field where Goforth doused Mrs. White's vehicle

with gasoline and set it afire.

According to Goforth, Caudill induced Mrs. White to

admit them into her residence under the pretext that

they were having car trouble and needed to use

White's telephone. Once inside, Caudill demanded

that Mrs. White give her some money. When White

refused, Caudill unexpectedly produced a roofer's

hammer that she had surreptitiously removed from

Goforth's pickup truck and struck White in the back

of the head with full force. When Goforth asked

Caudill why she had struck Mrs. White, Caudill

struck her again. As Caudill continued to bludgeon

the victim with the hammer, Goforth went into the

living room, sat down on a sofa, and pondered what

he should do next. Caudill ransacked the victim's

residence and loaded the stolen property into Goforth's pickup truck. She wrapped Mrs. White's body

in the carpet. At Caudill's request, Goforth helped

carry the body to the garage and load it into the trunk

of White's automobile. They then drove both vehicles

to a vacant field where Caudill doused White's automobile with gasoline and set it afire.

Cynthia Ellis, a jailhouse informant, testified that

Caudill told her that she had gone to White's residence to obtain money to buy drugs. When White

refused her request for money, Caudill struck White

twice in the head with a clock that she pulled off the

wall. Julia Davis, another jailhouse informant, testified that Caudill told her that she broke into the victim's home intending to steal money to buy drugs, but

when the victim discovered her presence, she killed

her, stole her guns and jewelry, and set fire to her car.

Davis also testified that Caudill said White had

pleaded with her to “[h]elp me, why are you doing

this to me?”

Because of her known relationship with the victim's

son, Caudill was questioned by police about the murder on the evening of March 15, 1998. She denied

any involvement in the crimes and told the police that

she had been with Goforth when the crimes were

committed. The police unsuccessfully attempted to

contact Goforth at his residence and left a message

there for Goforth to contact them. Instead, Goforth

and Caudill fled Fayette County. They spent several

days at a cabin near Herrington Lake in Mercer

County, then moved to Ocala, Florida, then to Gulfport, Mississippi. Caudill left Goforth in Gulfport and

moved to New Orleans, Louisiana, where she was

subsequently arrested November 11, 1998. She gave

another statement at that time in which she admitted*650 her presence at the scene of the crimes but

named Goforth as the perpetrator. Goforth was arrested and questioned in Gulfport, Mississippi, on

December 8, 1998. He claimed Caudill killed Mrs.

White with the hammer and, further, that an unidentified African-American male had assisted Caudill in

the commission of the crimes (an assertion he admitted at trial was a fabrication). After her extradition to

Kentucky, Caudill gave a third statement to police on

December 9, 1998, which was substantially the same

as her second statement.

I. PRE-TRIAL ISSUES.

1. Indictment.

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Counts 1 and 4 of the joint indictment provide:

Count 1: On or about the 15th day of March, 1998, in

Fayette County, Kentucky, the above named Defendants committed the offense of Capital Murder

by causing the death of Lonetta White while in the

course of committing a First Degree Robbery and a

First Degree Burglary.

...

Count 4: On or about the 15th day of March, 1998, in

Fayette County, Kentucky, the above named Defendants committed the offense of Second Degree

Arson by setting fire to an automobile belonging to

Lonetta White.

[1] Both appellants assert that counts 1 and 4 of their

joint indictment charging them with murder and second-degree arson were invalid because they did not

recite a culpable mens rea; and, thus, the Fayette Circuit Court never acquired subject matter jurisdiction

over those charges. Neither appellant objected to

these alleged defects, RCr 8.18, or sought a bill of

particulars, RCr 6.22. Criminal Rule 6.10(2) provides

that an indictment is sufficient if it contains “a plain,

concise and definite statement of the essential facts

constituting the specific offense with which the defendant is charged.” Thomas v. Commonwealth, Ky.,

931 S.W.2d 446 (1996), holds that RCr 6.10(1) only

requires that the indictment provide information sufficient to give the defendant notice of the charge

against him/her and that an indictment is not invalid

merely because of factual incompleteness or lack of

specificity. Id. at 449.

In addition to describing the offense, the indictment

also identified the applicable sections of the penal

code, i.e.,KRS 507.020 and KRS 513.030. Although

arguably incomplete under RCr 6.10(2), counts 1 and

4 of the indictment provided sufficient information to

serve notice on appellants of the charges against

them. Thus, counts 1 and 4 were not invalid and sufficed to confer subject matter jurisdiction on the

Fayette Circuit Court with respect to the charged offenses. Thomas, at 449-50.

2. Arraignment.

[2][3] Both appellants assert that their arraignments

by closed circuit television violated RCr 8.02 (arraignment to be conducted in open court), RCr 8.28

(defendant shall be present at the arraignment), and

Rule 8 of the Fayette Circuit Court (arraignment to be

in open court), as well as their constitutional rights to

due process and equal protection. All of these arguments except the equal protection issue were addressed and rejected in Commonwealth v. Ingram,

Ky., 46 S.W.3d 569, 570-72 (2001). The equal protection issue is premised upon appellants' perceptions

that a non-indigent defendant could have obtained

some additional benefit from being in personal attendance in court at arraignment. However, a review

of the videotapes of the arraignments indicates that

each appellant had counsel physically present at the

jail, thus immediately available for consultation during the arraignment; *651 each appellant could see

the judge on the closed circuit monitor; and each appellant received a copy of the indictment, was advised of the charges against him/her, and entered a

plea of not guilty. In other words, the procedure was

exactly the same as any other routine arraignment

except that the judge and the defendant viewed each

other by closed circuit monitor instead of face-toface. We perceive no denial of equal protection in

that respect.

3. Joinder.

[4] Caudill asserts that the trial judge erroneously

denied her motion for a separate trial because she and

Goforth had antagonistic defenses and the Brutonrequired redaction of her pre-trial confessions to delete any reference to Goforth, see Bruton v. United

States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476

(1968), Richardson v. Marsh, 481 U.S. 200, 107

S.Ct. 1702, 95 L.Ed.2d 176 (1987), and Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d

294 (1998), forced her to give up her right to remain

silent and testify to Goforth's culpability in order to

shift the blame from herself.

Joinder is appropriate if the defendants “are alleged

to have participated in the same act or transaction or

in the same series of acts or transactions constituting

an offense or offenses.” RCr 6.20; Jackson v. Commonwealth, Ky., 670 S.W.2d 828, 834 (1984). “Even

if the defendants attempt to cast blame on each other,

severance is not required.” Gabow v. Commonwealth,

Ky., 34 S.W.3d 63, 71 (2000) (citing United States v.

Arthur, 949 F.2d 211, 217-18 (6th Cir.1991)).

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[N]either antagonistic defenses nor the fact that the

evidence for or against one defendant incriminates

the other amounts, by itself, to unfair prejudice....

That different defendants alleged to have been involved in the same transaction have conflicting

versions of what took place, or the extent to which

they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying it is

easier for the truth to be determined if all are required to be tried together.

Ware v. Commonwealth, Ky., 537 S.W.2d 174, 177

(1976). The trial judge did not abuse his discretion in

denying Caudill's motion for a separate trial.

4. Absence from pre-trial hearings.

Criminal Rule 8.28(1) provides:

The defendant shall be present at the arraignment, at

every critical stage of the trial including the empaneling of the jury and the return of the verdict,

and at the imposition of the sentence.

In addition to their claims that they were not “present” at their closed-circuit television arraignments,

an issue resolved by Commonwealth v. Ingram, supra, at 570-71, both appellants complain of their absence from a hearing held on January 27, 2000, eleven days before trial; and Caudill complains of her

absence from a hearing held on February 4, 2000,

three days before trial.

(a) January 27, 2000.

[5][6][7] The trial judge offered to have both appellants brought up from the jail to attend the January

27, 2000, hearing. However, the attorneys for both

appellants expressly waived their respective clients'

presence at that hearing. Fugate v. Commonwealth,

Ky., 62 S.W.3d 15, 18-19 (2001). Furthermore, nothing that occurred at that hearing could be characterized as a “critical stage of the trial.” Much of the

hearing was consumed by the trial judge's review of

juror requests for excusal or postponement of jury

service for health or hardship reasons. While we applaud the trial judge for allowing counsel to participate in this process, such excusals and postponements

are within the discretion of the trial judge, Admin.

*652 Proc., Part II, § 12(1), KRS 29A.100(1), who is

not required to make those decisions in open court or

in the presence of or consultation with any parties or

their counsel. The trial judge is only required to record the reasons for the excusals or postponements on

the juror qualification forms so they can be reviewed

for abuse of discretion. Admin. Proc., Part II, § 12(2);

KRS 29A.100(2); Sanborn v. Commonwealth, Ky.,

754 S.W.2d 534, 548-49 (1988). Nothing else was

discussed except scheduling problems related to

Caudill's last-minute notice (exactly twenty days before the trial date of February 7, 2000) of her intention to introduce evidence of mental illness, KRS

504.070(1), the Commonwealth's failure to complete

the Bruton-redaction of appellants' respective pretrial

statements, and the number of peremptory strikes to

be allotted to each side at trial.

Thus, the January 27, 2000, hearing was not a “critical stage of the trial” and appellants' presence at that

hearing had been validly waived by their respective

counsel.

(b) February 4, 2000.

[8] This hearing was held from 4:11 p.m. until 5:16

p.m. on the Friday before trial. Goforth was present.

However, Caudill was absent because she was undergoing a mental health examination by the prosecutor's

expert, Dr. Cooley. KRS 504.070(2). The matters

resolved at the hearing on February 4, 2000, were (1)

Caudill's motion in limine, filed on February 2, 2000,

five days before trial, to suppress eight items of evidence (the prosecutor conceded six of the issues and

the remaining two were resolved solely by legal argument); (2) Caudill's motion to suppress that portion

of her March 15, 1998, statement that was made after

she requested an attorney (the prosecutor conceded

the issue); (3) whether Goforth's statement should be

redacted to exclude his assertion that an unidentified

African-American male had assisted Caudill in the

commission of the crimes (the trial judge ruled, per

Bruton, supra, that the reference should be redacted

because it incriminated Caudill); (4) Goforth's motion

to preclude the Commonwealth from introducing a

videotape of Caudill's “walk-through” of the crime

scene with police detectives (the prosecutor agreed

not to introduce the videotape and whether Caudill

could introduce it, herself, was not addressed); (5)

Caudill's motion for a separate trial, which had been

filed on the morning of the hearing (the motion was

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overruled on the basis of RCr 6.20 and Ware v.

Commonwealth, supra ); and (6) whether, since the

offenses were committed prior to July 15, 1998, the

jury should be instructed on the penalty of life without parole in the event of a conviction of murder. See

Commonwealth v. Phon, Ky., 17 S.W.3d 106, 108

(2000). Resolution of that issue was postponed until

trial.

[9] Thus, no evidentiary hearing was held and all of

the issues addressed were resolved by legal argument. A defendant is not required to be present during the argument of legal issues between court and

counsel. Tamme v. Commonwealth, Ky., 973 S.W.2d

13, 38 (1998); Thomas v. Commonwealth, Ky., 437

S.W.2d 512, 515 (1968); Harris v. Commonwealth,

Ky., 285 S.W.2d 489, 491 (1955). “A defendant's

absence means little when, as in the present case, the

trial court's communication merely involves a question of law rather than fact. In such a case, a defendant's presence can be of no help to the defense.”

United States v. Dockter, 58 F.3d 1284, 1287 (8th

Cir.1995).

II. JURY SELECTION ISSUES.

1. Postponement of jury service.

During the January 27, 2000, hearing, the trial judge

informed the attorneys of his intent to postpone jury

service for *653 eight full-time students until the end

of the school year because he felt it would be “difficult,” i.e., a hardship, for such students to lose the

time and money they had invested in their education.

The trial judge then inquired, “Does anybody object

to that?” Counsel for both appellants responded,

“No.” The trial judge also postponed jury service for

a college professor who taught two class hours three

days per week. During the February 4, 2000, hearing,

the trial judge informed counsel that he had postponed jury service for another full-time student, and

during voir dire at trial, he postponed jury service for

three more full-time students.

[10][11][12] Counsel's decisions with respect to jury

selection are regarded as matters of trial strategy.

Hodge v. Commonwealth, Ky., 17 S.W.3d 824, 837

(2000). Thus, defense counsels' agreement to the

postponement of jury service for full-time students

was a matter of trial strategy. Further, as noted in Part

I, issue 4(a), supra, whether to postpone a prospec-

tive juror's service because of hardship is within the

sound discretion of the trial judge. We discern no

abuse of discretion in this regard.

[13][14][15][16] Nor did the trial judge's decision to

postpone jury service for students amount to a “systematic exclusion” in violation of the appellants' right

to a jury drawn from a “fair cross section of the

community.” Taylor v. Louisiana, 419 U.S. 522, 531,

95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). A necessary condition for “systematic exclusion” is that the

group allegedly excluded be a “distinctive group.”

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664,

668, 58 L.Ed.2d 579 (1979). A “distinctive group”

must comprise a substantial percentage of the county

population, and, absent a showing of numerosity and

lack of community needs, no profession or occupation is considered a distinctive group. Commonwealth

v. McFerron, Ky., 680 S.W.2d 924 (1984), overruling Colvin v. Commonwealth, Ky., 570 S.W.2d 281

(1978) (schoolteachers), and overruling by implication Reid v. Commonwealth, Ky.App., 659 S.W.2d

217 (1983) (doctors and lawyers). In fact, we explicitly held in Ford v. Commonwealth, Ky., 665 S.W.2d

304 (1983), that “college students ... are not distinctive ... as a class.” Id. at 308. Nor are “young adults”

a distinctive group whose underrepresentation would

deny a defendant the right to a “fair cross section.”

Smith v. Commonwealth, Ky., 734 S.W.2d 437, 442

(1987); McQueen v. Commonwealth, Ky., 669

S.W.2d 519, 521 (1984); Ford, supra, at 308.

2. Death qualification question.

During individual voir dire, the trial judge “death

qualified” the jury panel by making the following

inquiry of each prospective juror:

This is a capital murder case. If you find the defendant guilty of murder, there are five ranges of

penalty you'll be instructed to consider-not less

than twenty nor more than fifty years, life, life

without the possibility of parole for twenty-five

years, life without the possibility of parole, and

death. If you determine under the facts of this case,

and the instructions of the Court, beyond a reasonable doubt, that the defendant is guilty of murder,

can you consider the entire range of penalties provided by the statutes of the Commonwealth of

Kentucky as I have just outlined them to you?

[Emphasis added.]

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[17] Appellants assert that the emphasized language

should have been “guilty of aggravated murder,” not

“guilty of murder,” because death, life without parole, and life without parole for twenty-five years, are

available penalties only if the jury also finds beyond

a reasonable doubt the existence of an aggravating

circumstance. KRS 532.025(3). Appellants do *654

not assert that this fact caused some jurors to disclaim

an ability to consider death as a penalty for “mere”

murder and, thus, to be excused for cause as not

“death qualified.” Murder is a capital offense, KRS

507.020(2), and the range of penalties for a capital

offense are those recited in the trial judge's inquiry.

KRS 532.030(1). Rather, Appellants assert that jurors

who would state that they could consider the minimum penalty for a “mere murder” might not be able

to consider that penalty for an aggravated murder.

Either way, no error occurred.

The leading United States Supreme Court cases on

“death qualification,” i.e., Witherspoon v. Illinois,

391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968),

Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65

L.Ed.2d 581 (1980), Wainwright v. Witt, 469 U.S.

412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and

Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758,

90 L.Ed.2d 137 (1986), all address the circumstances

under which a potential juror may be excused for

cause because of the juror's bias against imposition of

the death penalty. Witherspoon held that strikes for

cause could not be employed to empanel a jury predisposed to return a verdict of death, 391 U.S. at 52123, 88 S.Ct. at 1776-77; and that, “[u]nless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment

no matter what the trial might reveal,” id. at 515 n. 9,

88 S.Ct. at 1773 n. 9, it cannot be assumed that such

is that person's position simply because the juror expressed reservations or scruples about the death penalty. Id. Although Witherspoon also states “[t]hat the

most that can be demanded of a venireman in this

regard is that he be willing to consider all of the penalties provided by state law,” id. at 522 n. 21, 88

S.Ct. at 1777 n. 21 (emphasis in original), Adams,

supra, explained that “ Witherspoon is not a ground

for challenging any prospective juror. It is rather a

limitation on the State's power to exclude.” 448 U.S.

at 47-48, 100 S.Ct. at 2528. “[T]he proper standard

for determining when a prospective juror may be

excluded for cause because of his or her views on

capital punishment ... is whether the juror's views

would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath.’ ” Witt, supra, at 424, 105

S.Ct. at 852,quoting Adams, supra, at 45, 100 S.Ct. at

2526. If so, the removal of so-called “ ‘ Witherspoonexcludables' serves the State's entirely proper interest

in obtaining a single jury that could impartially decide all the issues in [a death penalty] case.” McCree,

supra, at 180, 106 S.Ct. at 1768.

In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222,

119 L.Ed.2d 492 (1992), the Court expanded this

principle to require that a jury be “life qualified” by

excluding those jurors who would automatically impose death upon a finding of guilt.

A juror who will automatically vote for the death

penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating

circumstances as the instructions require him to do.

Indeed, because such a juror has already formed an

opinion on the merits, the presence or absence of

either aggravating or mitigating circumstances is

entirely irrelevant to such a juror.

Id. at 729, 112 S.Ct. at 2229.

[18] No jurisdiction other than Kentucky has ever

held that a juror is disqualified simply because he or

she cannot consider imposition of the minimum authorized sentence for conviction of an offense for

which death is an authorized penalty. That proposition first entered our jurisprudence via obiter dictum

in Grooms v. Commonwealth, Ky., 756 S.W.2d 131,

137 (1988). Grooms anticipated the holding in Morgan, supra, by holding that it was reversible error not

to *655 excuse for cause a juror who “favors the

death penalty to the exclusion of all other penalties as

punishment for intentional murder.” 756 S.W.2d at

137. However, Grooms went on to say that “a juror

should be excused for cause if he would be unable in

any case, no matter how extenuating the circumstances may be, to consider the imposition of the

minimum penalty prescribed by law.” Id.

Giving corporeality to the Grooms dictum, Morris v.

Commonwealth, Ky., 766 S.W.2d 58 (1989), held

that:

[T]he lower court should have informed the jury

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there are four penalties for the capital offense of intentional murder-viz, death, life without parole or

probation for 25 years, life, or a term of not less

than 20 years. KRS 532.030. The jury should be

asked the simple question “If you determine under

the instructions of the court beyond a reasonable

doubt that the defendant is guilty of intentional

murder, could you consider the entire range of penalties provided by statutes of this Commonwealth

as outlined to you?”

Id. at 60. Of course, that is almost verbatim the question asked by the trial judge in this case, except that

the range of penalties for a capital offense now includes life without parole. KRS 532.030(1).

Although Morris also held that “[b]oth the Commonwealth and the defendant are entitled to a panel

of jurors who will consider the entire range of punishment,” id. at 60,Davis v. Commonwealth, Ky., 795

S.W.2d 942 (1990), explained that while “[i]t would

be a better practice for a trial judge conducting death

penalty voir dire pursuant to RCr 9.38FN1 to inquire

about a juror's ability to consider the full range of

penalties in capital cases,” the requirement is satisfied if defense counsel is afforded the opportunity to

do so. Id. at 952. That is in accord with Witt, supra,

that “[a]s with any other trial situation where an adversary wishes to exclude a juror because of bias,

then, it is the adversary seeking exclusion who must

demonstrate, through questioning, that the potential

juror lacks impartiality.” 469 U.S. at 423, 105 S.Ct. at

852.

FN1. Actually, RCr 9.38 specifically does

not require the trial judge to ask any voir

dire questions during the empaneling of a jury in a capital case.

[19] Here, neither defense counsel was precluded

from questioning any potential juror with respect to

that juror's ability to consider imposition of the minimum penalty for “aggravated murder.” Indeed,

counsel asked the following question of several prospective jurors:

Assume in this case that we get to the sentencing

phase. That means that you've already found the

defendant guilty of murder and an aggravating circumstance, like a burglary or a robbery or a rape or

something like that. If that's the case, can you give

a serious and honest consideration to a minimum

sentence of twenty years?

(In fact, if a defendant is found guilty of murder and

burglary, robbery or rape, the minimum sentence

would be thirty years, not twenty years (twenty years

for murder, KRS 532.030(1), plus ten years for the

class B felony, KRS 532.060(2)(b)). Regardless, the

trial judge's death penalty inquiry did not misstate the

law or mislead the jury. Any perceived deficiency

was cured by permitting defense counsel to further

clarify the inquiry).

3. Refusal to excuse two jurors for cause.

Both appellants assert that the trial judge erred by

refusing to excuse Jurors 871 and 884 for cause.

[20]Juror 871 stated that he could consider the full

range of penalties. Appellants*656 complain that

when asked whether he could consider a “minimal

sentence” for an aggravated murder, he responded “I

can't tell you now, I would have to hear all the evidence,” and could not think of a specific case where

he could consider a “minimal sentence” for a conviction of murder accompanied by an aggravating circumstance. Of course, the appropriate inquiry under

Grooms and Morris is not whether a juror can consider “a minimal sentence,” but whether he can consider “the minimum sentence.” Juror 871 assured defense counsel that he could consider mitigating circumstances and that he would not sentence on the

basis of “an eye for an eye” but would need to hear

all the facts.

[21]Juror 884 stated that she was “for the death penalty,” but could consider the full range of penalties

and would not automatically impose or exclude any

penalty. Although she stated at one point that she

would not be able to consider the “lower range” for

convictions of both murder and robbery or burglary,

she also stated that she could consider it if, based on

all the facts, she thought it was an appropriate punishment. As stated supra, the minimum sentence for

conviction of both murder and robbery or burglary

would be thirty years, not twenty years. Further, in

Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671

(1994), we substantially diluted the strict excusal

requirement

articulated

Groomshttp://www.westlaw.com/Find/Defaul

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t.wl?rs=dfa1.0&vr=2.0&FindType=Y&Seria

lNum=1988076503and Morris:

Many jurors find it difficult to conceive of minimum

punishment when the facts as given suggest only

the most severe punishment.... A per se disqualification is not required merely because a juror does

not instantly embrace every legal concept presented during voir dire examination. The test is not

whether a juror agrees with the law when it is presented in the most extreme manner. The test is

whether, after having heard all of the evidence, the

prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict....

“... Jurors cannot be expected invariably to express

themselves carefully or even consistently. Every

trial judge understands this, and under our system it is that judge who is best suited to determine the competency to serve impartially. The

trial judge properly may choose to believe those

statements that were the most fully articulated or

that appeared to have been least influenced by

leading.”

884 S.W.2d at 671 (quoting Patton v. Yount, 467 U.S.

1025, 1038-39, 104 S.Ct. 2885, 2892-93, 81 L.Ed.2d

847 (1984)). See also Foley v. Commonwealth, Ky.,

942 S.W.2d 876, 882 n. 5 (1996). The trial judge did

not abuse his discretion in declining to excuse Jurors

871 and 884 for cause.

4. Excusal of two jurors for cause.

Both appellants assert that the trial judge erred in

excusing Jurors 872 and 939 for cause.

[22]Juror 872 initially responded “Yes” to the trial

judge's qualification question as to whether she could

consider the full range of penalties. Later, however,

she stated three times that she could not consider the

death penalty. Her final statement during attempted

rehabilitation by defense counsel was: “At this point,

I could not consider the death penalty. I could not do

that.”

[23] After a long hesitation, Juror 939 also initially

responded “Yes” to the trial judge's qualification

question. Later, however, she indicated that she had

not understood (“didn't get”) the fact that death was a

possible penalty and stated that even if the facts of

the case warranted it, she could not impose the death

penalty.

*657 The trial judge did not abuse his discretion in

excusing Jurors 872 and 939. Hodge, 17 S.W.3d at

838 (“This argument has been consistently rejected

by both the United States Supreme Court and by this

Court.”).

5. Extra peremptory strikes.

[24] Appellants do not claim that the trial judge did

not allot them the number of peremptory strikes required by RCr 9.40 but claim it was an abuse of discretion not to allot them extra strikes because this is a

death penalty case. “Whether to grant additional peremptories is within the discretion of the trial judge.”

Tamme, 973 S.W.2d at 26. We discern no abuse of

that discretion.

6. Batson challenge.

[25] The victim, Lonetta White, was an AfricanAmerican woman. Appellants are both Caucasians.

The Commonwealth exercised eight of its nine peremptory strikes against Caucasian men and Appellants responded with a Batson challenge, claiming

that the peremptories were both racially and gender

motivated. J.E.B. v. Alabama, 511 U.S. 127, 114

S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986).

To date, the United States Supreme Court has not

addressed whether Batson applies to race-based peremptory strikes against Caucasians. However, a

number of federal courts of appeals have decided that

it does. E.g., United States v. Allen-Brown, 243 F.3d

1293, 1298 (11th Cir.2001) (trial court properly required defendant to give race-neutral reasons for

striking Caucasian jurors); United States v. Parsee,

178 F.3d 374, 378 (5th Cir.1999) (upholding government's Batson challenge to four of the ten Caucasian jurors struck by the defendant); United States v.

Kelley, 140 F.3d 596, 606 (5th Cir.1998) (upholding

trial court's finding that defendant's peremptory

strikes of Caucasian jurors presented a prima facie

case of racial discrimination); Government of Virgin

Islands v. Forte, 865 F.2d 59, 64 (3d Cir.1989) (“

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120 S.W.3d 635

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Batson applies to both whites and blacks.”); Roman

v. Abrams, 822 F.2d 214, 227 (2d Cir.1987) (Caucasians are a cognizable group for Sixth Amendment

purposes and trial judge properly required raceneutral reasons for prosecution's exercise of peremptory challenges against Caucasian jurors in trial of

Caucasian defendant).

The prosecutor did not contest whether Batson applies to peremptory strikes of Caucasian jurors and

stated his reasons for the exercise of all nine of the

Commonwealth's peremptory strikes. Six peremptories were used to excuse potential jurors who had

expressed serious reservations about the death penalty. Another was used to excuse a potential juror who

had only an elementary school education and did not

seem fully cognizant of the nature of the proceedings.

Another was used to excuse a close personal friend of

one of Caudill's attorneys. The last was used to excuse a potential juror who expressed what the prosecutor perceived to be hostility toward the police and

the judicial system. The trial judge found all of these

reasons to be race-neutral and we are unable to conclude that his finding in that regard was clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369,

111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991);

Commonwealth v. Snodgrass, Ky., 831 S.W.2d 176,

179 (1992).

III. GUILT PHASE EVIDENCE.

1. Redacted statements.

[26] During the Commonwealth's case-in-chief, Detective Lyons read to the jury the Bruton-redacted

versions of Caudill's pre-trial statements made on

March 15, 1998, November 11, 1998, and December

9, 1998, and Goforth's pre-trial statement made on

December 8, 1998. Appellants do *658 not claim that

the statements were not sufficiently redacted in accordance with the requirements of Gray v. Maryland

and Richardson v. Marsh, supra. Instead, they claim

that the redactions (1) rendered the statements disjointed and (2) deleted appellants' respective defenses

(“I didn't do it; he/she did it.”), essentially forcing

them to forego their respective rights to remain silent

by testifying in their own defense.

[27][28] The argument ignores the Commonwealth's

right to present to the jury, whether at a separate or a

joint trial, the self-inculpatory portions of each de-

fendant's out-of-court statements so long as those

portions do not violate a codefendant's right of confrontation. The hearsay aspect of the statement is

satisfied by the exception for admissions, KRE

801A(b)(1). However, the rule only applies to admissions offered against the party that made the admission. Thus, even absent the Bruton issue, neither

KRE 801A(b)(1) nor the “rule of completeness,”

KRE 106, would have automatically authorized either

of these defendants to introduce his or her own outof-court statement(s) for the purpose of asserting a

defense without subjecting that defendant to crossexamination-even though the Commonwealth introduced those portions of the statements that were selfinculpatory. Gabow, 34 S.W.3d at 68 n. 2. Appellants

could have jointly stood on their redacted statements

in which each admitted only his/her presence at the

crime scenes and neither admitted committing the

crimes. The fact that both, instead, chose to testify

and affirmatively assert their respective defenses affords no basis for reversal.

[29] As the appellants complain, the redacted versions of the statements were necessarily disjointed.

For that reason, the trial judge told the jury prior to

the reading of Caudill's November 11, 1998, statement that “only portions of the statement will be read

to you.” We are unable to conclude that the jury must

have assumed from that admonition that the omitted

portions inculpated Goforth.

[30] Finally, appellants assert that the trial judge

erred by not admonishing the jury that each statement

could be considered only against the party who made

it. No admonition was requested, Hall v. Commonwealth, Ky., 817 S.W.2d 228, 229 (1991), overruled

on other grounds by Commonwealth v. Ramsey, Ky.,

920 S.W.2d 526 (1996), Matthews v. Commonwealth,

Ky., 709 S.W.2d 414, 418 (1985), and appellants are

mistaken in their belief that the Constitution requires

it. Prior to Bruton, it was held that the prejudicial

effect of an out-of-court statement by a non-testifying

codefendant that inculpated a defendant could be

cured by giving the jury a limiting admonition that it

should not consider the codefendant's statement in

determining the guilt of the defendant. Delli Paoli v.

United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d

278 (1957). Bruton held that this limiting admonition

was insufficient to cure the prejudice resulting from

the defendant's inability to cross-examine his/her

accuser.

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Despite the concededly clear instructions to the jury

to disregard Evans' inadmissible hearsay evidence

inculpating petitioner, in the context of a joint trial

we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right

of cross-examination. The effect is the same as if

there had been no instruction at all.

photographs are admissible if they have probative

value.” Tamme, at 36;Epperson v. Commonwealth,

Ky., 809 S.W.2d 835, 843 (1990). The number and

nature of the blows inflicted upon the victim were

relevant to prove the corpus delicti and to refute a

potential claim that the person who inflicted the

blows lacked the intent to kill the victim. KRS

507.030(1)(a).

391 U.S. at 137, 88 S.Ct. at 1628.

3. Character evidence.

By forbidding the use in a joint trial of a nontestifying codefendant's out-of-court statement that

inculpates a defendant, Bruton eliminated the need

for a limiting admonition. In Richardson, supra, the

United States Supreme Court authorized the admission of a codefendant's confession *659 that was redacted to omit all references to the defendant or to

the fact that anyone other than the codefendant/declarant had participated in the crime. 481 U.S.

at 211, 107 S.Ct. at 1709. In Richardson, a limiting

instruction had been given, id., so the Court was not

required to decide whether the absence of such an

instruction, even if not requested, mandated reversal.

We conclude now that it does not. If the nontestifying codefendant's out-of-court statement is so

redacted that it does not inculpate the defendant in

the commission of the crime, the limiting instruction

might well be viewed as calling the jury's attention to

the very fact that the redaction was intended to suppress, i.e., that the deleted portions of the codefendant's confession would have implicated the defendant

in the commission of the crime. As in Hall, supra, at

229, we view this as a matter of trial strategy and

decline to treat as automatic reversible error the failure to give an unrequested limiting admonition.

[33] The following colloquy occurred during the

prosecutor's direct examination of the victim's sister,

Alma Gross:

2. Photographs of reconstructed skull.

[31][32] The Commonwealth's forensic anthropologist partially reconstructed the victim's skull from

bones found on or inside her body to assist in estimating the number and nature of the blows inflicted

upon her. The Commonwealth did not introduce the

skull, itself, but only three photographs that were

used to explain the testimony of the witness. Even

bones and bone fragments from the victim's body are

admissible if relevant. Tamme, 973 S.W.2d at

36;Tackett v. Commonwealth, 245 Ky. 98, 53 S.W.2d

218 (1932); Robey v. Commonwealth, 243 Ky. 407,

48 S.W.2d 822 (1932). Likewise, “even gruesome

Q. Was [the victim] a careful person about who she

would let into her house?

A. Very cautious.

Q. Tell me about that.

A. Every time she would talk to me she would say,

“Be sure to lock your doors; don't open your door

after dark; don't let nobody in.” She was very cautious.

[34] Mrs. Gross explained later in her testimony that

her sister “didn't like the part of town that I lived in

and that was why she always stressed to me to be

cautious.” That explanation cured any possible error

with respect to Gross's response to the prosecutor's

second question because it clarified that the victim

was advising Gross to be cautious, not that the victim, herself, was a cautious person. However, it did

not cure the error with respect to the first question

which elicited that the victim was “very cautious”

about who she let into her house. KRE 404(a) provides:

Evidence of a person's character or a trait of character

is not admissible for the purpose of proving action

in conformity therewith on a particular occasion,

except [exceptions not applicable].

The evidence of the victim's character for being “very

cautious” about who she let into her house was admitted to prove action in conformity therewith, i.e.,

that she did not invite the appellants into her home on

the night she was killed, thus, they committed burgla-

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ry when they “unlawfully” entered her residence with

the intent to commit a crime. KRS 511.020(1);

*660Robey v. Commonwealth, Ky., 943 S.W.2d 616,

620 (1997). The admission of this evidence was erroneous.

[35] However, the erroneous admission of evidence

is subject to harmless error analysis even in a case

where the death penalty has been imposed. Satterwhite v. Texas, 486 U.S. 249, 257-58, 108 S.Ct. 1792,

1798, 100 L.Ed.2d 284 (1988); Stanford v. Commonwealth, Ky., 734 S.W.2d 781, 787 (1987). The inquiry is whether the “error was harmless beyond a

reasonable doubt,” Stanford at 787, or, said another

way, “whether the circumstances in totality are persuasive that, minus the error, the defendant may not

have been found guilty of a capital crime, or the

death penalty may not have been imposed.” Sanders

v. Commonwealth, Ky., 801 S.W.2d 665, 668 (1990).

[36] The erroneously admitted character evidence

amounted only to circumstantial evidence creating an

inference that appellants did not enter the victim's

home with her permission. Caudill admitted in her

testimony that she and Goforth did not have permission to enter the residence but that Goforth burst into

the residence and attacked the victim as she was

walking away from the door. Goforth testified that

Caudill obtained admission into the victim's home

under the pretext that they needed to use her telephone because of “car trouble.” Goforth admittedly

knew that there was no “car trouble” and that they

were at the victim's home for the purpose of acquiring the victim's money.

All of our burglary and trespass statutes, including

KRS 511.020, require as an element of the offense

that the defendant “knowingly enter[ed] or remain

[ed] unlawfully” in the victim's building. In that respect, our statute differs from Section 221.1 of the

Model Penal Code and, instead, corresponds with

Section 140.30 of the New York Penal Law. SeeKRS

511.020 (1974 commentary). New York courts have

consistently held that entry by deception, trickery, or

misrepresentation satisfies the “unlawful entry” element of the offense. E.g., People v. Mitchell, 254

A.D.2d 830, 679 N.Y.S.2d 761, 761-62

(N.Y.App.Div.1998); People v. Johnson, 190 A.D.2d

503, 593 N.Y.S.2d 35, 36 (N.Y.App.Div.1993); People v. Harrison, 151 A.D.2d 778, 543 N.Y.S.2d 108,

110 (N.Y.App.Div.1989). We find that reasoning to

be sound and are satisfied that no reasonable juror

would conclude that “entry by deception, trickery, or

misrepresentation” equates with “entry by invitation.” Since both appellants admitted at trial that they

“unlawfully entered” the victim's home, the erroneously admitted circumstantial evidence of their unlawful entry was harmless beyond a reasonable

doubt.

4. Other crimes, wrongs, or acts.

[37] a. Caudill asserts that evidence that she was interviewed in a New Orleans jail on November 11,

1998, violated KRE 404(b)'s proscription against

admission of evidence of other crimes to prove her

bad character. Since it was not shown that Caudill

was jailed on charges other than those related to these

offenses, any perceived error was harmless beyond a

reasonable doubt.

[38] b. Caudill also asserts that Jeanette Holden's

testimony that Caudill told her that she knew where

they could get $3,000.00 and asked whether Holden

was willing to hurt somebody violated KRE 404(b)'s

proscription against admission of evidence of other

wrongs or acts to prove action in conformity therewith. However, at a suppression hearing on the issue,

Holden testified that the incident occurred after Caudill's former boyfriend, Thomas Garrett, committed

suicide and while Caudill was looking for a place to

stay. Caudill testified that she learned of Garrett's

death on Thursday, March 12, 1998, and that she

moved out of Steve White's house on either Friday

night, March 13, 1998, or *661 Saturday afternoon,

March 14, 1998. Lonetta White was killed and

robbed at approximately 3:30 a.m. on March 15,

1998. Caudill's statement to Holden was sufficiently

proximate to the murder and robbery of White for the

jury to properly conclude that the statement manifested an “intent” and “plan” to harm and rob White and,

thus, was within the exceptions set forth in KRE

404(b)(1).

[39] c. Goforth asserts that KRE 404(b) was violated

by Veronica Jones's testimony that Goforth ingested

cocaine both orally and intravenously for up to thirty

days before the crimes, Caudill's testimony that he

ingested cocaine intravenously while at Lake Herrington after the crimes, and the testimony of Penny

Hunter, Goforth's domestic companion, that she had

to make the house payments because Goforth spent

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all of his money on crack cocaine. This evidence was

relevant to show motive. “Evidence of a drug habit,

along with evidence of insufficient funds to support

that habit, is relevant to show a motive to commit a

crime in order to gain money to buy drugs.” Adkins v.

Commonwealth, Ky., 96 S.W.3d 779, 793 (2003).

5. Impeachment of Jeanette Holden.

[40] Caudill complains that she was precluded from

impeaching the credibility of Jeanette Holden and

thereby prevented from exercising her constitutional

right of confrontation. U.S. Const. amend. VI; Ky.

Const. § 11. In fact, Caudill was permitted to elicit

from Holden the facts that Holden was a convicted

felon, that she was serving a ten-year sentence, and

that she would like for the parole board to know that

she had cooperated with the prosecution of this case.

When asked if she had helped Detective Lyons with

any other cases, Holden replied that she had not. Defense counsel then inquired whether Holden had

helped any police detective with any other case, specifically a case involving Christina Halvorsen. Upon

the prosecutor's objection, the trial judge questioned

defense counsel as to whether he had information that

Holden had received or been promised any benefit

for her cooperation in that case. When defense counsel replied that he did not, the objection was sustained. Thus, Holden did not answer the question and

what answer she might have made was not preserved

by an avowal. KRE 103(a)(2).

[41] Limitations on cross-examination, including

cross-examination to expose bias or prejudice, Parsley v. Commonwealth, Ky., 306 S.W.2d 284, 285

(1957), involve a fundamental constitutional right

and should be cautiously applied. Davis v. Alaska,

415 U.S. 308, 320, 94 S.Ct. 1105, 1112, 39 L.Ed.2d

347 (1974). Nevertheless, “[s]o long as a reasonably

complete picture of the witness' veracity, bias and

motivation is developed, the judge enjoys power and

discretion to set appropriate boundaries.” Commonwealth v. Maddox, Ky., 955 S.W.2d 718, 721 (1997)

(quoting United States v. Boylan, 898 F.2d 230, 254

(1st Cir.1990)).

[A] connection must be established between the

cross-examination proposed to be undertaken and

the facts in evidence. A defendant is not at liberty

to present unsupported theories in the guise of

cross-examination and invite the jury to speculate

as to some cause other than one supported by the

evidence.

Maddox, at 721.

[42] Caudill was able to show that Holden was a

convicted felon, was serving a prison term, and

hoped the parole board would give consideration to

her cooperation in this case. The trial judge did not

abuse his discretion in sustaining the prosecutor's

objection to defense counsel's attempted inquiry as to

whether Holden had cooperated with the police in

another case absent a good faith belief that she had

benefitted from that cooperation. The *662 mere fact

that a witness helped the police in an unrelated case

is not evidence of bias in this case and is not an adverse reflection on the witness's credibility in general.

Finally, absent an avowal, we have no way of knowing what Holden's response would have been or

whether it would have been beneficial to Caudill.

Commonwealth v. Ferrell, Ky., 17 S.W.3d 520, 525

(2000).

6. Evidence evoking sympathy for victim.

[43][44] Much of appellants' complaints relate to

claimed irrelevancy of evidence that “humanized” the

victim and described the horrific nature of her fatal

injuries. We have stated many times that evidence

that a murder victim was not a mere statistic but an

individual human being with a personality and activities does not unduly prejudice the defendant or inflame the jury. Stopher v. Commonwealth, Ky., 57

S.W.3d 787, 802-03 (2001); Hodge, 17 S.W.3d at

847;Bowling v. Commonwealth, Ky., 942 S.W.2d

293, 302-03 (1997); McQueen v. Commonwealth,

Ky., 669 S.W.2d 519, 523 (1984). Appellants cite no

authority for the proposition that the nature and extent of a murder victim's injuries is irrelevant and we

are aware of none.

7. Goforth's cross-examination of Caudill.

During cross-examination of Caudill by Goforth's

attorney, Caudill was asked (a) whether Edna Sharp

was mistaken when she testified that she knew Johnathon Goforth? (to which Caudill replied that Sharp

was mistaken); (b) whether Steve White was mistaken when he testified that Lonetta White wore a fur

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coat on the day she visited an attorney (whereas Caudill had said that Lonetta White was wearing a black

leather coat)? (to which Caudill replied that she did

not know if she or Steve White was mistaken); (c)

whether Penny Hunter was mistaken when she testified that she was with Goforth all day in Paris, Kentucky, on the Saturday before the crimes (whereas

Caudill had said that Goforth was at a crack house in

Lexington that day)? (to which Caudill replied that

one of them could be mistaken); (d) whether Cynthia

Ellis had lied when she testified that Caudill told her

that Caudill had hit Lonetta White with a clock? (to

which Caudill replied that Ellis had lied); (e) whether

Cynthia Ellis and Julia Davis had lied in their testimonies? (to which Caudill replied that some of the

things they said were not true).

[45] In Moss v. Commonwealth, Ky., 949 S.W.2d 579

(1997), we held that a witness should not be required

to characterize the testimony of another witness as a

lie. Id. at 583;see also Tamme, 973 S.W.2d at 28. As

in Moss and Tamme, Caudill did not object to any of

these questions. As in Moss and Tamme (a death penalty case), we conclude that the totality of the circumstances are persuasive that exclusion of the improper inquiries would not have resulted in different

verdicts in this case. Sanders, 801 S.W.2d at 668

(unpreserved error in death penalty case will not result in reversal unless the “circumstances in totality

are persuasive that, minus the error, the defendant

may not have been found guilty of a capital crime, or

the death penalty may not have been imposed.”);

Cosby v. Commonwealth, Ky., 776 S.W.2d 367, 369

(1989), overruled on other grounds by St. Clair v.

Roark, Ky., 10 S.W.3d 482, 487 (1999).

arose in Bray v. Commonwealth, Ky., 68 S.W.3d 375

(2002), except that the evidence there was much

more detailed than the isolated remark made here. Id.

at 383. As in Bray, we conclude that admission of

this evidence did not create a manifest necessity for a

mistrial.

9. Caudill's racial slur.

During her March 15, 1998, statement, Detective

Lyons told Caudill that he was only repeating what

other people had told him. Caudill then remarked:

You were talking to the junkies down the street, the

crackheads, who were telling you something you

wanted to hear, maybe for something that they had

done, laying it on me. I know who you talked to

out on the street. I know who you talked to. Jeanette and that other chick and and I know you talked

to that n [racial slur] up the street. They're all sagers [phonetic], I know that.

[47] Caudill asserts that the failure to delete the racial

slur from her statement was reversible error. We disagree. The word came from her own mouth. She is a

Caucasian accused of brutally murdering an AfricanAmerican. Although it is obvious from the context

that the slur did not refer to the victim, it is at least

somewhat probative of an animus against AfricanAmericans. The trial judge did not abuse his discretion in determining that its probative value was not

substantially outweighed by its prejudicial effect.

KRE 403; Commonwealth v. English, Ky., 993

S.W.2d 941, 945 (1999).

8. “America's Most Wanted.”

10. Caudill's demeanor.

[46] From March until November 1998, the police

were searching for Caudill and Goforth and arranged

to have the two and their crimes against Lonetta

White featured on the popular television series,

“America's Most Wanted.” The trial judge made a

pretrial ruling that this fact was irrelevant and should

not be made *663 known to the jury. Nevertheless,

when asked when he had last seen Caudill, Steve

White responded that he had last seen her on “America's Most Wanted.” The trial judge overruled Caudill's motion for a mistrial but offered to give the jury

a curative admonition to disregard the remark. Caudill declined the offered admonition. This same issue

[48][49] Caudill asserts it was error to permit Julia

Davis to testify that when Caudill told her that

Lonetta White had said, “Help me, why are you doing this to me?” Caudill was laughing and using a

mocking tone of voice. We disagree. A lay witness

may express an opinion as to another's demeanor.

KRE 701; McKinney v. Commonwealth, Ky., 60

S.W.3d 499, 503-04 (2001). The trial judge did not

abuse his discretion in determining that the probative

value of this evidence was not substantially outweighed by its prejudicial effect. KRE 403; English,

at 945.

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11. Cross-examination of Goforth.

[50] After Goforth testified that he fled Kentucky

because he did not have $5,000.00 to pay an attorney,

the prosecutor inquired about Goforth's knowledge of

the legal system, specifically whether he had taken a

paralegal course before these crimes were committed.

Goforth claims that this was prejudicial error because

he was in prison when he worked as a paralegal.

However, the Commonwealth only established when,

not where, the paralegal training occurred for the

purpose of establishing his legal knowledge at the

time he fled Kentucky.

[51] Goforth also complains that the prosecutor repeatedly pointed out that he had lied in the statement

he gave to the police in Gulfport, Mississippi.

“[W]hen [a defendant] assumes the role of a witness,

the rules that generally apply to other witnesses-rules

that serve the truth-seeking function of the trial-are

generally applicable to him as well.” Portuondo v.

Agard, 529 U.S. 61, 69, 120 S.Ct. 1119, 1125, 146

L.Ed.2d 47 (2000) (quoting Perry v. Leeke, 488 U.S.

272, 282, 109 S.Ct. 594, 600-01, 102 L.Ed.2d 624

(1989)). A defendant's “credibility may be impeached

and his testimony assailed like that of any other witness.” Id. (quoting *664Brown v. United States, 356

U.S. 148, 154, 78 S.Ct. 622, 626, 2 L.Ed.2d 589

(1958)). “It is essential ... to the proper functioning of

the adversary system that when a defendant takes the

stand, the government be permitted proper and effective cross-examination in an attempt to elicit the

truth.” United States v. Havens, 446 U.S. 620, 62627, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980).

12. Alleged violation of KRE 609.

[52] During the direct examinations of Steve White,

Edna Sharp, Cynthia Ellis, and Julia Davis, the prosecutor asked the witnesses whether they had been

convicted of felonies and, upon receiving affirmative

answers, the nature of the felonies committed which

were, respectively, DUI-fourth offense, trafficking in

cocaine, theft by deception of $300 or more, and forgery. Neither appellants nor any of the witnesses in

question objected to these inquiries. Goforth now

asserts that eliciting the nature of the convictions

amounted to improper impeachment in violation of

KRE 609(a) and that he was prejudiced thereby because the witnesses all inculpated Caudill, thus were

favorable to him.

In fact, the inquiries had the effect of casting the witnesses in a more favorable light. The only purpose

for inquiring whether a party's own witness has been

convicted of a felony is to defuse anticipated impeachment by the opposing party; and the obvious

purpose for inquiring as to the nature of each offense

was anticipatory rehabilitation, i.e., to show that the

witnesses had, at least, not been convicted of a crime

of violence. Furthermore, KRE 609(a) only provides

that “[t]he identity of the crime upon which the conviction was based may not be disclosed upon crossexamination ...” (emphasis added), and these disclosures were elicited upon direct examination.

13. Hearsay.

Goforth raises six hearsay issues with respect to the

testimonies of Caudill, Cynthia Ellis, and Julia Davis. Ellis and Davis were jailhouse informants who

testified as witnesses for the Commonwealth against

Caudill. Neither indicated any acquaintanceship with

Goforth. Both had been cautioned prior to trial and

pursuant to Gray v. Maryland and Richardson v.

Marsh, both supra, not to testify as to any statements

by Caudill indicating that anyone else was present

when the crimes were committed. For the most part,

both complied with this directive.

[53] a. Goforth's first claim relates to Ellis's testimony that Caudill told her “that she had gathered some

black, she did say black plastic bags, and that they

had, that she had wrapped the woman in this.” (Emphasis added.) In the first place, Ellis immediately

corrected herself by changing the identifying pronoun

from plural to singular. Secondly, Goforth admitted

he was present when the victim's body was wrapped

in a carpet and that he assisted in carrying it to the

garage and loading it into the trunk of the victim's

automobile. There was no objection to Ellis's slip and

the totality of the circumstances are persuasive that it

did not change the result in this case. Sanders, supra,

at 668;Cosby, supra, at 369.

[54] b. When the prosecutor asked Davis what Caudill had told her about what she had done, Davis replied: “I can't say the other person's name ....” Technically, this statement was not hearsay because it was

not offered to prove the truth of any relevant fact. At

worst, it was a Bruton violation and was rendered

harmless when (1) Caudill subsequently testified and

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subjected herself to cross-examination and (2) Goforth subsequently testified and admitted that he was

present when the crimes were committed.

[55] c. On cross-examination by Caudill's attorney,

Davis responded to an inquiry about her alleged inconsistent statements*665 to Detective Lyons by

saying, “[i]t was all in the process of them murdering

her, so, you know, it was as if she was being killed.”

(Emphasis added.) There was no objection to Davis's

slip and, because Caudill subsequently testified that

Goforth killed White and was subjected to extensive

cross-examination on the subject, we are unpersuaded

that, absent this isolated slip, the result would have

been different. Sanders;Cosby.

[56] d. Caudill admitted on cross-examination by the

prosecutor that the victim had pleaded with her to

“please help me.” The statement was not introduced

to prove the truth of the matter asserted, KRE 801(c),

but to prove that the victim was still alive when the

statement was made. Because it had a relevancy

without regard to the truth of the assertion, the statement was admissible. Osborne v. Commonwealth,

Ky., 43 S.W.3d 234, 242 (2001); Robert G. Lawson,

The Kentucky Evidence Law Handbook § 8.05, at

367-68 (3d ed. Michie 1993).

[57][58] e. Caudill testified that when she and Goforth returned to Lexington after burning Mrs.

White's automobile, they encountered Sonny Price

who asked Goforth, “Now where did you get, where

did all the blood come from?” To the extent that

Price's inquiry can be characterized as hearsay, it falls

within the exception for a present sense impression,

i.e., “a statement describing or explaining an event or

condition made while the declarant was perceiving

the event or condition, or immediately thereafter.”

KRE 803(1); Bray v. Commonwealth, 68 S.W.3d at

381. Regardless, Goforth admitted that he assisted in

carrying the victim's body to the garage and that the

victim's blood had spilled through the carpet during

that process, thus explaining the presence of the

blood.

however, that Caudill testified at trial that, after her

arrest, she “did a walk-through reenactment with the

detectives.” That testimony, of course, was not hearsay. Goforth then complains that Detective Lyons

testified that he “took Caudill out to the location on

Bryanwood Park” (Mrs. White's residence). That,

testimony, of course, also was not hearsay. Finally,

Goforth complains that Detective Lyons testified that

Caudill showed him “where Goforth's truck had been

parked in the shopping center parking lot” (supporting Caudill's version that she did not want White to

know she was with another person), whereas Goforth

subsequently testified that his truck was parked directly in front of White's residence (supporting Goforth's version that Caudill told White they were having car trouble). Although Caudill may or may not

have said to Lyons that “we parked the truck here so

that White would not know that another person was

with me,” Lyons's testimony was arguably hearsay by

implied assertion. See Lawson, supra, § 8.05 III(1), at

369. However, Goforth did not object to the testimony and we are unpersuaded that the result in this case

would have been different absent the admission of

the implied assertion. Sanders, supra, at 668;Cosby,

supra, at 369. That is especially true since Caudill

subsequently testified to the same fact under oath and

subject to cross-examination.

14. Effects of cocaine.

[60] Goforth complains of the fact that, during crossexamination of Steve White, Caudill's attorney elicited information that using cocaine caused White to

“become paranoid.” Presumably, Caudill was hoping*666 by the inquiry to establish an intoxication

defense. Goforth did not object to this testimony and

does not articulate any rational reason how this testimony prejudiced him. He only speculates that the

jury may have viewed this evidence as giving credence to Dr. Schilling's penalty phase testimony that

Caudill was a submissive person. Dr. Schilling did

not testify that Caudill was paranoid or that paranoia

is in any way related to submissiveness.

IV. GUILT PHASE INSTRUCTIONS.

[59] f. After her arrest, Caudill accompanied the police on a walk-through of the crime scene, explaining

how Goforth killed Mrs. White. As noted earlier in

Part I, issue 4(b), the videotape was not introduced.

KRE 801A(a)(2); Fields v. Commonwealth, Ky.,12

S.W.3d 275, 280-81 (2000). Goforth complains,

Appellants complain only of the guilt phase instructions on homicide. The jury was not instructed on any

lesser included homicide offenses.

1. Principal or Accomplice.

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The murder instructions permitted the jury to find

each appellant guilty of (1) murder under Instruction

No. 2, which fully set out the elements of that offense, including the element of intent, (2) complicity

to murder under Instruction No. 3, which fully set out

the elements of that offense, including that the accomplice intended that the victim would be killed, or,

(3) if the jury could not determine who was the principal and who was the accomplice, “murder-principal

or accomplice” under Instruction No. 4. The last instruction read as follows:

MURDER-PRINCIPAL OR ACCOMPLICE

If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either

murder under Instruction No. 2 or complicity to

murder under Instruction No. 3, but are unable to

determine from the evidence whether the defendant

committed this crime as principal under Instruction

No. 2 or accomplice under Instruction No. 3, then

you will find the defendant guilty of murder, principal or accomplice, under this Instruction and so

state in your verdict.

[61][62] Both appellants were convicted of “murderprincipal or accomplice,” under Instruction No. 4.

Both assert that their convictions are invalid because

(1) the instruction did not set out the elements of the

offenses of murder and complicity to murder; (2) the

instruction authorized a non-unanimous verdict; (3)

the instruction negated their right to an impartial jury;

and (4) the instruction denied them individualized

sentencing. We previously addressed and rejected the

first two contentions in Halvorsen v. Commonwealth,

Ky., 730 S.W.2d 921 (1986), and specifically approved an instruction identical to the one given in this

case. Id. at 925. As noted in Halvorsen, there was no

need to repeat the elements of murder and complicity

to murder because they were fully set forth in Instructions Nos. 2 and 3. Id. The “combination” instruction

specifically referred to those instructions and incorporated them by reference. Id. The unanimity requirement was not violated because both theories

were supported by the evidence. Id.; see Ice v. Commonwealth, Ky., 667 S.W.2d 671, 677 (1984); Wells

v. Commonwealth, Ky., 561 S.W.2d 85, 88 (1978).

[63] While we, of course, agree that the appellants

were entitled to a trial by an impartial jury, they do

not explain how the “combination” instruction denied

them that right. The cases they cite to support that

proposition, viz: Apodaca v. Oregon, 406 U.S. 404,

92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), Williams v.

Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446

(1970), and Duncan v. Louisiana, 391 U.S. 145, 88

S.Ct. 1444, 20 L.Ed.2d 491 (1968), are all inapposite.

In fact, Apodaca specifically holds that the Sixth

Amendment does not require a unanimous verdict in

a state criminal trial. 406 U.S. at 407, 92 S.Ct. at

1630.

*667[64][65] Nor did the finding of guilt under the

“combination” instruction deny either appellant the

right to individualized sentencing. An accomplice to

a murder committed by another in the course of the

commission of a violent felony can be sentenced to

death if the accomplice was a major participant in the

commission of the felony and possessed a mens rea

of at least reckless disregard for human life. Tison v.

Arizona, 481 U.S. 137, 157-58, 107 S.Ct. 1676, 1688,

95 L.Ed.2d 127 (1987). Here, the accomplice instruction (and, hence, also the “combination” instruction)

required the accomplice to actually intend that Mrs.

White be killed. Despite that, each set of penalty

phase instructions permitted the jury to consider as a

possible mitigating circumstance that “[t]he Defendant was an accomplice in an offense committed by

another person and [his][her] participation in the offense was relatively minor.” KRS 532.025(2)(b)(5).

Tison, supra, by necessity, also resolves adversely to

appellants their claims that they were not eligible for

the death penalty because the jury did not specifically

determine whether each was a principal or an accomplice in the commission of the offense.

2. Murder-absence of EED.

[66] Caudill asserts that, because KRS 507.020(1)(a)

contains the proviso that “a person shall not be guilty

under this subsection if he acted under the influence

of extreme emotional disturbance ..,” it was error not

to include the absence of extreme emotional disturbance (EED) as an element of the offense in the murder instruction. However, we have long held that

“[a]n instruction on murder need not require the jury

to find that the defendant was not acting under the

influence of extreme emotional disturbance unless

there is something in the evidence to suggest that he

was, thereby affording room for reasonable doubt in

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that respect.” Gall v. Commonwealth, Ky., 607

S.W.2d 97, 109 (1980), overruled on other grounds

by Payne v. Commonwealth, Ky., 623 S.W.2d 867,

870 (1981). As will be discussed more fully infra,

there was no evidence whatsoever that Caudill was

acting under extreme emotional disturbance at the

time Lonetta White was killed.

3. First-degree manslaughter-EED.

[67][68] Caudill asserts error in the trial judge's failure to instruct the jury on manslaughter in the first

degree under KRS 507.030(1)(b), i. e., intentional

homicide committed under the influence of EED, as a

lesser included offense. She points to three “triggering events” as evidence of EED: (1) she was informed of the recent suicide of a former boyfriend,

Thomas Garrett, on Thursday, March 12, 1998; (2)

she argued with her present boyfriend, Steve White,

about her resumption of drug use on either Friday,

March 13, or Saturday, March 14; and (3) Lonetta

White refused her demand for money immediately

before the murder. Caudill has placed the cart before

the horse. First, there must be evidence of the existence of an EED at the time the homicide was committed. It is only upon such proof that the requirement arises for proof that the EED was the result of

adequate provocation, i.e., a “triggering event,” and

that the EED remained uninterrupted from the provocation until the killing. Fields v. Commonwealth, Ky.,

44 S.W.3d 355, 359 (2001).

We start with the definition of “extreme emotional

disturbance,” formulated in McClellan v. Commonwealth, Ky., 715 S.W.2d 464 (1986):

Extreme emotional disturbance is a temporary state

of mind so enraged, inflamed, or disturbed as to

overcome one's judgment, and to cause one to act

uncontrollably from the impelling force of the extreme emotional disturbance *668rather than from

evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed or disturbed

emotional state does not constitute an extreme

emotional disturbance unless there is a reasonable

explanation or excuse therefor, the reasonableness

of which is to be determined from the viewpoint of

a person in the defendant's situation under circumstances as [the] defendant believed them to be.

Id. at 468-69 (emphasis added.)

[69] Caudill did not claim that she went to Mrs.

White's residence under the influence of EED. She

claimed she went there to induce White, under false

pretenses, to give her money with which to satisfy

her drug dependency. However, a drug dependency

or the effects of substance abuse, standing alone,

does not authorize instructions on EED and firstdegree manslaughter. Stopher, 57 S.W.3d at

803;Bowling v. Commonwealth, Ky., 873 S.W.2d

175, 179 (1993); Stanford, 793 S.W.2d at 115. Nor

does Caudill claim that she killed White because she

was emotionally disturbed about the death of her

former boyfriend, or even about her argument with

her then-present boyfriend, Mrs. White's son. A closer factual question is created by her claim that she

became extremely emotionally disturbed when White

refused her demand for money. However, even viewing the circumstances from Caudill's drug dependent

point of view, White's mere resistance to her demand

for money was not “a reasonable explanation or excuse” for Caudill to become so enraged, inflamed or

disturbed as to be entitled to the defense of EED.

Hodge, 17 S.W.3d at 850 (“Mere resistance by the

victim ... does not ... constitute a reasonable explanation or excuse for an emotional state so enraged, inflamed or disturbed as to cause the perpetrator to kill

the victim.”).

4. First-degree manslaughter-intent to injure.

[70][71] Both Caudill and Goforth claim they were

entitled to an instruction on manslaughter in the first

degree under KRS 507.030(1)(a), i.e., unintentional

homicide committed with the intent to cause serious

physical injury but not death. However, an instruction

on a lesser included offense is required only if, considering the totality of the evidence, the jury might

have a reasonable doubt as to the defendant's guilt of

the greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty of the lesser

offense. Parker v. Commonwealth, Ky., 952 S.W.2d

209, 211 (1997). The postmortem examination of

Mrs. White's body revealed that she suffered at least

fifteen blows to the head with a hammer-like object.

The blows ranged from those that caused lacerations

to those that fractured the skull causing fragments of

bone to be driven into the brain. This undisputed evidence precludes any reasonable doubt that whoever

attacked Mrs. White intended to kill, as opposed to

merely injure, her.

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5. Second-degree manslaughter-“felony murder.”

[72] Caudill asserts that she was entitled to an instruction on manslaughter in the second degree because the jury could have believed that her complicity in the plan to rob White amounted only to wantonness, i.e., awareness and conscious disregard of a

substantial risk that Goforth would kill White during

the course of the robbery. KRS 507.040(1); KRS

501.020(3).

[73][74] Formerly, an accomplice to a dangerous

felony could be convicted of an intentional murder

committed by another participant in the felony on the

theory that the intent to commit the dangerous felony

provided the element of intent necessary *669 to

convict of murder. This “felony murder” concept was

abandoned in Kentucky with the adoption of the penal code. However, participation in a dangerous felony, e.g., armed robbery, may supply the element of

aggravated wantonness, i.e., extreme indifference to

human life, necessary to convict of wanton murder.

KRS 507.020(1)(b). See Graves v. Commonwealth,

Ky., 17 S.W.3d 858, 862-63 (2000); Bennett v.

Commonwealth, Ky., 978 S.W.2d 322, 327 (1998);

Kruse v. Commonwealth, Ky., 704 S.W.2d 192, 19395 (1985). In that scenario, second-degree manslaughter becomes a lesser included offense of wanton murder if the jury could believe that the defendant's participation in the dangerous felony amounted

to wantonness but not extreme indifference to human

life. Kruse, at 194 (quoting the Commentary to KRS

507.020).

“Although a trial judge has a duty to prepare and give

instructions on the whole law of the case, including

any lesser included offenses which are supported by

the evidence, ... that duty does not require an instruction on a theory with no evidentiary foundation.”

Gabow, 34 S.W.3d at 72 (quoting Houston v. Commonwealth, Ky., 975 S.W.2d 925, 929 (1998)); see

also Thompkins v. Commonwealth, Ky., 54 S.W.3d

147, 151 (2001). Caudill's version of the events was

that she went to White's residence to ask for money

and that White was in the process of complying with

her request when Goforth unexpectedly attacked and

killed her. Goforth's version was that Caudill killed

White when White refused her request for money.

Julia Davis testified that Caudill told her that she

(Caudill) killed White. Cynthia Ellis testified that

Caudill told her that she was the first to attack White

by hitting her twice in the head with a clock. None of

these versions support a theory that Caudill intended

to rob White and that, during the course of the robbery, Goforth unexpectedly killed her. An inference

can be drawn from Jeanette Holden's testimony that

Caudill was looking for an accomplice who was willing to rob and “hurt” White. However, evidence that

Caudill expected White to be “hurt” during the robbery would have warranted, at best, an instruction on

aggravated wantonness, i.e., wanton murder, which

was not requested, not an instruction on mere wantonness, i.e., second-degree manslaughter.

6. Second-degree manslaughter-intoxication.

[75][76] Both appellants assert they were entitled to

an instruction on manslaughter in the second degree

because the jury could have believed that they were

so intoxicated that they could not form the requisite

intent necessary for a conviction of murder. The defense of voluntary intoxication does not warrant an

acquittal but reduces the offense from murder to second-degree manslaughter. Slaven v. Commonwealth,

Ky., 962 S.W.2d 845, 856-57 (1997). However, “[i]n

order to justify an instruction on [voluntary] intoxication, there must be evidence not only that the defendant was drunk, but that she was so drunk that she did

not know what she was doing.” Springer v. Commonwealth, Ky., 998 S.W.2d 439, 451 (1999); see

also Stanford, 793 S.W.2d at 117-18. No evidence

was introduced at trial to support a defense of intoxication. Goforth specifically testified that he was not

claiming that he was intoxicated by drugs or alcohol

and did not request an instruction on intoxication.

Caudill testified that she and Goforth parked Goforth's truck in a shopping center parking lot so that

White would not suspect there was another person

with her. Goforth testified that Caudill gained entry

into White's residence under the pretext that she

needed to use the telephone because they were having car trouble. These are not the actions of a person

who *670 was so intoxicated that she did not know

what she was doing.

7. Criminal facilitation.

[77] Both appellants assert they were entitled to an

instruction on criminal facilitation of murder. KRS

506.080 provides:

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A person is guilty of criminal facilitation when,

acting with knowledge that another person is committing or intends to commit a crime, he engages in

conduct which knowingly provides such person

with the means or opportunity for the commission

of the crime and which in fact aids such person to

commit the crime. [Emphasis added.]

Both appellants affirmatively asserted at trial that

they had no knowledge that the other intended to

murder Mrs. White. Without knowledge, there can be

no facilitation. However, as noted in Chumbler v.

Commonwealth, Ky., 905 S.W.2d 488 (1995), without knowledge there also could be no complicity. Id.

at 498-99. Nevertheless, “[f]acilitation reflects the

mental state of one who is ‘wholly indifferent’ to the

actual completion of the crime,” Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 160 (1995), as opposed

to one who intends that the crime be committed.

Young v. Commonwealth, Ky., 50 S.W.3d 148, 165

(2001).

Caudill does not articulate how she “facilitated” Goforth's murder of White. But if the basis for her claim

is that she induced White to unlock her door knowing

that Goforth intended to kill her, no reasonable jury

could believe she was “wholly indifferent” to the

actual completion of the murder. Goforth claims he

only “facilitated” Caudill's murder of White by furnishing Caudill with transportation to White's residence. Webb v. Commonwealth, Ky., 904 S.W.2d

226, 228-29 (1995). He would have a better argument

if he had left Caudill at White's residence and returned to the crack house without her, or, perhaps, if

he had waited in the pickup truck while Caudill entered the residence and committed the murder. However, no reasonable juror could believe that Goforth

was “wholly indifferent” to the completion of the

murder after he admitted that he accompanied Caudill to White's door, participated in the “car trouble”

ruse that induced White to permit Caudill to enter

her residence, and entered the residence with Caudill, all the while knowing that Caudill intended to

enter the residence for the purpose of killing White.

V. PENALTY PHASE ISSUES.

1. Severance.

[78] Goforth asserts that the trial judge should have,

sua sponte, severed his penalty phase from Caudill's

penalty phase because Caudill introduced evidence

in mitigation of capital punishment that she had a

submissive personality. The jury was ultimately instructed to consider on Caudill's behalf the statutory

mitigating circumstance, if believed to be true, that

she “acted under duress or under the domination of

another person even though the duress or domination

of another person [was] not sufficient to constitute a

defense to the crime.” KRS 532.025(2)(b)(6). Goforth relies on Foster v. Commonwealth, Ky., 827

S.W.2d 670 (1992), for the proposition that the evidence and instruction were prejudicial to him because

they portrayed him as the more culpable of the two.

Id. at 679-83.

In Foster, the codefendant Powell introduced in support of her mitigation claim of duress and domination

numerous witnesses who testified to specific acts of

prior misconduct by Foster, including Foster's threats

against Powell and her statements that she had to kill

one of the victims because Powell was a “weak

bitch” and “not capable of finishing the work.” Id. at

681. Powell and Foster had a long-term lesbian relationship and *671 Powell, herself, testified that she

had been beaten by Foster and that Foster had perpetrated other acts of violence against members of her

own family. Id. Powell also introduced expert testimony that she suffered from the equivalent of “battered spouse syndrome” because she had “learned

helplessness” toward Foster. Id. at 683. The upshot

was that the jury fixed Foster's penalty at death and

Powell's at life without parole for twenty-five years.

Id. at 672. On appeal, the cumulation of Powell's mitigation evidence was held to have been so prejudicial

to Foster as to require reversal of Foster's sentences

for a new sentencing hearing. Id. at 683.

Here, Caudill did not testify in the penalty phase and

offered no evidence of any prior misconduct by Goforth. When she testified in the guilt phase, Caudill

did not claim that she was dominated by Goforth (a

person she barely knew) or that Goforth induced her

by threats or otherwise to participate in the murder of

White. Remember, her version of the murder was that

Goforth acted unexpectedly and unilaterally and

bound her hands while he murdered White and ransacked her residence. In support of the duress and

domination mitigator, Caudill offered witnesses who

testified that she had been physically abused by her

father and several husbands and that her lifestyle included drug addiction and prostitution. She also of-

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fered the expert testimony of Dr. Peter Schilling, a

psychologist, that her history indicated possible brain

damage from a prior head injury, and that her history

and MMPI-2 test results reflected a submissive personality, “particularly with respect to men.” To rebut

Dr. Schilling's testimony, the Commonwealth presented the testimony of Dr. Andrew Cooley, a psychiatrist, who testified that he had examined and tested Caudill on the Friday and Saturday before trial and

found no evidence of either brain damage or a dependent personality disorder.

At a bench conference prior to Dr. Schilling's testimony, Goforth's attorney made a motion to prohibit

Schilling from testifying that Caudill was a person

who would be unable to act as a principal in the

commission of a murder, indicating that counsel was

aware of the nature of Dr. Schilling's expected testimony. The motion was granted. Goforth's attorney

did not request a severance of the penalty phase either before or after Dr. Schilling's testimony. He did

not cross-examine either Dr. Schilling or Dr. Cooley.

Nor did he request a recess in order to prepare a possible cross-examination. The enduring impression of

this entire issue is that Goforth's attorney did not believe Dr. Schilling's testimony was sufficiently prejudicial to his client to warrant a severance or even

cross-examination. We agree and hold that the trial

judge did not err in failing to grant an unrequested

severance. We also note in passing that, unlike the

codefendants in Foster, both Caudill and Goforth

received identical penalties for every offense.

2. Psychological/psychiatric reports.

[79] On June 4, 1999, a discovery order was entered

requiring the Commonwealth to furnish Goforth with

“all results or reports of mental and physical examinations ... including, but not limited to, ... any psychological/psychiatric tests of Johnathon Wayne Goforth or Virginia Caudill in the possession of the

Commonwealth.” Goforth's appellate counsel claims

that his trial counsel never received Dr. Schilling's

report and that the Commonwealth's failure to furnish

that report after receiving it from Caudill's attorney

impaired Goforth's trial counsel's right of crossexamination. This, however, is a claim Goforth's trial

counsel never made. During the lengthy discussion at

the pretrial hearing held on *672 January 27, 2000,

concerning time frames for obtaining mental health

examinations and furnishing reports of experts, Go-

forth's counsel indicated that he was not interested in

reports of mental health examinations of Caudill.

Nevertheless, his motion to limit Dr. Schilling's testimony indicates that he had advance notice of the

nature of Dr. Schilling's proposed testimony.

[80]KRS 504.070(1) requires a defendant to give the

prosecution twenty days notice of an intention to introduce mental health evidence at trial, and KRS

504.070(2) gives the prosecution the right to have the

defendant examined by an independent mental health

expert. However, KRS 504.070(4) requires the prosecution to file any “reports prepared by its witnesses”

ten days prior to trial. Dr. Schilling testified that he

examined and tested Caudill four times over the period November 4, 1999, through January 13, 2000. On

January 18, 2000, exactly twenty days before trial,

Caudill filed her notice of intent to introduce evidence of “mental illness, retardation or deficiency.”

The Commonwealth was unable to schedule Caudill's

examination by Dr. Cooley until February 4-5, 2000,

the Friday and Saturday before the trial began on

February 7, 2000. Both appellants complain that they

never received a final report of Dr. Cooley's examination. In fact, it appears that Dr. Cooley never prepared a final report. Caudill's counsel admitted receiving Dr. Cooley's “preliminary report” prior to Dr.

Cooley's testimony. Goforth's trial counsel did not

raise the issue at all, no doubt because Dr. Cooley's

testimony did not prejudice Goforth in any respect.

Finally, since neither doctor's report is in the record,

we are unable to determine whether either appellant

was prejudiced by the failure, if any, to timely receive it. Garrett v. Commonwealth, Ky., 48 S.W.3d

6, 15 (2001) (affirming where disputed document not

introduced by avowal); Commonwealth v. Ferrell,

Ky., 17 S.W.3d 520 (2000).

3. Exclusion of allegedly mitigating evidence.

[81][82][83] Appellants claim it was error for the

trial court to refuse their proffer, as mitigation evidence, of the fact that a defendant in another case

who had been convicted of multiple murders had

been sentenced by agreement to life without parole.

However, the requirement of individualized sentencing requires an assessment of the particular defendant's background and character and the nature of the

crime for which he or she has been convicted. Penry

v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947,

106 L.Ed.2d 256 (1989), abrogated on other grounds

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by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242,

153 L.Ed.2d 335 (2002). As a corollary to that rule,

evidence not bearing on the defendant's character,

background, or the circumstances of the offense for

which he/she has been convicted may be excluded.

Smith v. Commonwealth, Ky., 845 S.W.2d 534, 539

(1993) (quoting Lockett v. Ohio, 438 U.S. 586, 604 n.

12, 98 S.Ct. 2954, 2965 n. 12, 57 L.Ed.2d 973

(1978)). Specifically, evidence of a sentence imposed

upon someone else, whether pursuant to plea agreement or jury verdict, is not a factor to be considered

by the jury or the sentencing judge in determining the

appropriate penalty for this defendant. Commonwealth v. Bass, Ky., 777 S.W.2d 233, 234 (1989);

McClellan, 715 S.W.2d at 472.

4. Goforth's prior criminal convictions.

KRS 532.025(1)(a) provides, inter alia:

In such hearing, the judge shall hear additional evidence in extenuation, mitigation, and aggravation

of punishment, including the record of any prior

criminal convictions and pleas of guilty or *673

pleas of nolo contendere of the defendant, or the

absence of any prior conviction and pleas; provided, however, that only such evidence in aggravation as the state has made known to the defendant

prior to his trial shall be admissible.

KRS 532.025(1)(b), which provides for capital sentencing by a jury, incorporates this provision by reference.

[84] During the penalty phase of this trial, the prosecutor introduced evidence of two prior criminal convictions of Goforth: (1) a conviction of trafficking in

a controlled substance in the third degree, and (2) a

conviction of three counts of criminal facilitation of

robbery in the first degree. Goforth's appellate counsel asserts entitlement to a new penalty phase because

there is no proof in the record that the Commonwealth gave Goforth's trial counsel pretrial notice of

an intent to introduce these two prior convictions.

However, there is also no proof that the Commonwealth did not give such notice. In fact, prior to the

commencement of the penalty phase, Goforth's trial

counsel inquired as to the procedure the prosecutor

intended to use to introduce Goforth's prior convictions. After the prosecutor recited verbatim what he

intended to tell the jury, Goforth's counsel stated he

had no objection. At no time did he complain that he

had not been given pretrial notice of the Commonwealth's intent to introduce those convictions.

5. Instruction issues.

a. EED mitigator.

The trial judge instructed the jury with respect to

Caudill to consider, if believed to be true, the mitigating

circumstance

set

forth

KRS

532.025(2)(b)(2), viz: “The capital offense was

committed while the defendant was under the influence of extreme mental or emotional disturbance

even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime.” At trial, the prosecutor requested

that the instruction be accompanied by the definition

of EED set forth in McClellan, 715 S.W.2d at 46869, quoted verbatim in Part IV, issue 3, supra. Caudill's trial counsel did not join in that request, no

doubt because the McClellan definition serves to

narrow, not broaden, the scope of EED. Dean v.

Commonwealth, Ky., 777 S.W.2d 900, 910-11 (1989)

(Leibson, J., concurring); McClellan, supra, at 47374 (Leibson, J., dissenting). Caudill's appellate counsel, however, asserts that it was reversible error to

omit the McClellan definition from the penalty phase

instructions, relying on the plurality opinion in Dean,

supra, at 909.

[85][86][87] Upon further reflection, we conclude

that the McClellan definition of EED applies only to

EED as a defense under KRS 507.020(1)(a) and not

to EED as a mitigating circumstance under KRS

532.025(2)(b)(2). The language in the latter statute

differs somewhat from the former, primarily in that

the murder statute requires that there be a reasonable

explanation or excuse for the EED, whereas the mitigation statute does not contain that qualification. Yet,

the qualification is included in the McClellan definition. McClellan, supra, at 468-69. If the McClellan

definition applied to both statutes, evidence justifying

an instruction on EED as a mitigator would have to

be equally as strong as evidence justifying an instruction on EED as a defense. If so, the omission of the

McClellan definition from Caudill's penalty phase

instructions would be harmless beyond a reasonable

doubt, because, if the evidence was insufficient to

entitle Caudill to an EED guilt phase instruction, it

was equally insufficient to entitle her to an EED mit-

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igation instruction. However, the phrase, “even

though the influence of extreme mental or emotional

disturbance is not sufficient to *674 constitute a defense to the crime,” in KRS 532.025(2)(b)(2) clearly

anticipates that a broader form of emotional disturbance is available as mitigation of punishment than as

a defense to the crime. Thus, even though, as here,

the evidence is insufficient to warrant an instruction

on EED as a defense to the crime, it could still be

sufficient to warrant an instruction on EED as a mitigating circumstance.FN2 Therefore, the McClellan

definition does not apply to EED as a mitigating circumstance and the trial judge properly denied the

prosecutor's motion to include the definition in the

penalty phase instructions. To the extent that Dean

holds otherwise, it is overruled.FN3

FN2. The “even though” phrase in the statute pertains to the availability of the mitigator, i.e., the sufficiency of the evidence to

warrant an instruction, and should not be included in the jury instruction, itself.

FN3. In fact, since only a plurality of the

Court agreed with Dean 's holding on this

issue, it never acquired precedential status.

Fugate v. Commonwealth, Ky., 62 S.W.3d

15, 19 (2001). Furthermore, while a change

in judicial construction of a statute can implicate the Ex Post Facto Clause, U.S.

Const., art. I, § 10, Ky. Const. § 19(1),

Bouie v. City of Columbia, 378 U.S. 347,

354-55, 84 S.Ct. 1697, 1703, 12 L.Ed.2d

894 (1964), because the McClellan definition narrows the scope of EED, today's holding that the definition does not apply to EED

as a mitigator is an ameliorative, as opposed

to a more onerous, interpretation than in

Dean. Thus, our decision has no ex post facto ramifications. Dobbert v. Florida, 432

U.S. 282, 294, 97 S.Ct. 2290, 2299, 53

L.Ed.2d 344 (1977) (“It is axiomatic that for

a law to be ex post facto it must be more onerous than the prior law.”); Calder v. Bull, 3

U.S. (3 Dall.) 386, 391, 1 L.Ed. 648 (1798)

(No law “that mollifies the rigor of the criminal law” is within the meaning of the Ex

Post Facto Clause.); cf. Martin v. Commonwealth, Ky., 96 S.W.3d 38, 58-59 (2003)

(judicial interpretation that narrows the

scope of a criminal statute is ameliorative).

b. Accomplice mitigator.

[88] The trial judge instructed the jury with respect to

both appellants to consider, if believed to be true, the

mitigating circumstance described in KRS

532.025(2)(b)(5), viz: “The defendant was an accomplice in a capital offense committed by another person and [his][her] participation in the capital offense

was relatively minor.” Both appellants assert error in

the trial judge's refusal to delete the language, “and

[his][her] participation in the capital offense was relatively minor.” We disagree. To delete the language in

question would completely change the meaning and

intent of this statutory mitigating circumstance. Obviously, major participation by an accomplice in a

capital offense is not a mitigating circumstance. Tison v. Arizona, 481 U.S. at 157-58, 107 S.Ct. at 1688.

c. Other instruction issues.

[89][90][91] There is no requirement that a capital

penalty jury be instructed that its findings on mitigation need not be unanimous. Mills v. Commonwealth,

Ky., 996 S.W.2d 473, 492 (1999); Tamme, 973

S.W.2d at 37;Bowling, 873 S.W.2d at 180. There was

no need to instruct the jury that it could impose a life

sentence even if it found an aggravating factor beyond a reasonable doubt. Bussell v. Commonwealth,

Ky., 882 S.W.2d 111, 113 (1994). Instruction No. 19,

“Authorized Sentences,” read together with the verdict forms and as further explained during closing

arguments, adequately apprised the jury of the available range of penalties and the role of the aggravator

in the sentencing scheme. “An instruction may not be

judged in artificial isolation but must be considered

in the context of the instructions as a whole and the

trial record.” Estelle v. McGuire, 502 U.S. 62, 72,

112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991) (internal

quotations omitted). Finally, as we have stated many

times, while we prefer the specimen verdict forms at

1 Cooper,*675Kentucky Instructions to Juries (Criminal) § 12.10A (4th ed. Anderson 1999), over the

specimen forms at § 12.10 of that treatise, we do not

deem the use of the latter forms to be reversible error.

E.g., Hodge, 17 S.W.3d at 854. We note that when

the prosecutor suggested that the § 12.10A forms be

used, the attorneys representing Caudill and Goforth

advised they had no objection to the § 12.10 forms

prepared by the trial judge.

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VI. ALLEGED PROSECUTORIAL MISCONDUCT.

Appellants cite numerous instances of alleged prosecutorial misconduct to which no objection was made

at trial. All are without merit.

Any consideration on appeal of alleged prosecutorial

misconduct must center on the overall fairness of

the trial. In order to justify reversal, the misconduct

of the prosecutor must be so serious as to render

the entire trial fundamentally unfair.

Stopher, 57 S.W.3d at 805 (citations omitted).

[92][93][94] Informing prospective jurors during voir

dire that the court was looking for “neutral” jurors

equated to a desire for “impartial” jurors and did not

dilute the presumption of innocence or shift the burden of proof. The prosecutor did not excessively

“humanize” the victim or over-emphasize the brutality of the crime. Hodge, 17 S.W.3d at 852. Contrary to

appellants' assertion, the prosecutor did not tell the

jury during guilt phase closing argument that this was

the worst crime he had ever seen. He told them, “As

many times as I have stood here before jurors and in

murder cases and I don't have the words.” That

statement did not interject extrajudicial information

into the trial. In Tamme, supra, we held that the prosecutor's characterization of the case as the “worst

imaginable crime” was but a statement of opinion of

the prosecutor's view of the evidence. 973 S.W.2d at

39.

[95] The prosecutor's guilt phase argument did not

invoke the “golden rule.” The allegedly offensive

remarks were:

What must she have been thinking that night, this

seventy-three-year-old woman, by herself, basically afraid anyway? What panic she must have felt

confronted by this woman and this stranger at three

o'clock in the morning.

[96] A “golden rule” argument is one in which the

prosecutor asks the jurors to imagine themselves or

someone they care about in the position of the crime

victim. Black's Law Dictionary 700 (7th ed. West

1999). E.g., “Suppose you run a store and somebody

comes in on you and does that to you. What's it

worth?” Lycans v. Commonwealth, Ky., 562 S.W.2d

303, 305-06 (1978). See also Lucas v. State, 335

So.2d 566, 567 (Fla.Ct.App.1976) (“Think how you

ladies would feel if that happened to you.”).

[97][98] The prosecutor's statement that “just because

there is a question or some unanswered part of the

case, that there is automatically reasonable doubt”

did not impermissibly define “reasonable doubt.”

Commonwealth v. Callahan, Ky., 675 S.W.2d 391,

393 (1984). Callahan also contains the disclaimer

that “[w]e do not intend by this holding that counsel

cannot point out to the jury which evidence, or lack

thereof, creates reasonable doubt.” Id. at 393. In

Sanders v. Commonwealth, supra, we declined to

reverse where the prosecutor told the jury that “beyond a reasonable doubt” does not mean “beyond all

doubt or a shadow of a doubt.” 801 S.W.2d at 671.

As in Sanders, “we are wholly unconvinced, considering the circumstances, that absent this putative error the [appellants] may not have been found *676

guilty of a capital crime, or the death penalty may not

have been imposed.” Id.

[99] The prosecutor's guilt phase argument that neither defendant did, showed, or demonstrated anything

“that says they're not guilty of this offense” was fair

comment on the quality of the evidence for the defense. Tamme, 973 S.W.2d at 38;Bowling, 873

S.W.2d at 178;Haynes v. Commonwealth, Ky., 657

S.W.2d 948, 952-53 (1983).

[100] The prosecutor's penalty phase argument that

“you have already found the aggravating circumstances” was fair comment on the jury's guilt phase

verdicts. The two aggravating circumstances were

that the murder was committed during the course of a

robbery in the first degree and/or a burglary in the

first degree and the jury had, indeed, found appellants

guilty of those offenses. The factual issue remaining

with respect to the finding of an aggravating circumstance was whether the murder was committed while

appellants were engaged in the commission of either

of those offenses. KRS 532.025(2)(a). The prosecutor

argued that it was; defense counsel argued that it was

not.

[101][102][103] Caudill claims the prosecutor misstated the law with respect to the mitigating factor of

intoxication. Voluntary intoxication is a defense to a

criminal charge if it “[n]egatives the existence of an

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120 S.W.3d 635

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element of the offense.” KRS 501.080(1). Our cases

interpret that provision to mean that the defendant

must have been so intoxicated as not to know what he

or she was doing. See Part IV, issue 6, supra. However, voluntary intoxication is a mitigating circumstance with respect to capital punishment if it equates

with the same standard established for the defenses of

involuntary intoxication, mental illness or retardation,

and insanity, i.e., if it impairs the defendant's capacity

to appreciate the criminality of his/her conduct or to

conform his/her conduct to the requirements of law.

KRS 501.080(2); KRS 504.060(5); KRS 504.120(3);

KRS 532.025(2)(b)(7).FN4 In his argument, the prosecutor stated:

FN4. In fact, the applicable language in

KRS 532.025(2)(b)(7) is “the capacity of the

defendant to appreciate the criminality of his

conduct to the requirements of law was impaired.” This language makes no sense and

is an obvious typographical error that has

existed in this statute since its enactment.

1976 Ky. Acts (ex. sess.), ch. 15, § 2(7). The

trial judge's instructions conformed to the

obviously intended meaning of the statute.

That at the time of the offense the capacity of either

defendant to conform their [sic] conduct to the requirements of the law was impaired as a result of

intoxication. You listened to the evidence. They

knew exactly what they were doing when they

were there. Were they under the influence to the

extent that they didn't know what they were doing?

Thus, the prosecutor first stated the correct test, then

referred to an incorrect standard in a rhetorical question. The trial judge's instruction contained the correct test and there was no objection to the rhetorical

question. We are unpersuaded, considering the totality of the circumstances, that, absent this isolated reference, the death penalty may not have been imposed

upon either Caudill or Goforth. Sanders, supra, at

668;Cosby, supra, at 369.Compare Mattingly v.

Commonwealth, Ky.App., 878 S.W.2d 797, 800

(1993) (when the prosecutor twice misstated the test

for insanity, viz: “The test is can she discriminate

between right and wrong .... The question is whether

or not she had the ability to discern right from

wrong,” the error, properly preserved by contemporaneous objections, was not harmless).

*677[104] During his penalty phase argument, the

prosecutor attributed to the late Justice Potter Stewart

the remark that “if those who break the law do not

receive the punishment that the public believes they

deserve, therein are sown the seeds of anarchy.” Even

though Justice Stewart was misquoted, FN5 we perceive no fundamental unfairness from this particular

dramatic flourish. Nor did the remark diminish the

jury's sentencing responsibility or shift that responsibility from the jury to Justice Stewart (which seems

to be the gist of this aspect of the argument). Contrary to appellants' assertion, the reversal in Clark v.

Commonwealth, Ky., 833 S.W.2d 793 (1992), was

not due to the same prosecutor's identical remark. In

Clark, the prosecutor more seriously misquoted Justice Stewart as saying that “ ‘the seeds of anarchy’

are sown unless capital punishment is meted in deserving cases.” Id. at 795. Nevertheless, the primary

reason for reversal in Clark was that the prosecutor

diminished the jury's sentencing responsibility by

stating twenty-five times in his closing argument that

the jury's verdict would be only a “recommendation.”

Id. at 796.

FN5. What Justice Stewart, in fact, wrote

was: “When people begin to believe that organized society is unwilling or unable to

impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the

seeds of anarchy of self-help, vigilante justice, and lynch law.” Furman v. Georgia,

408 U.S. 238, 308, 92 S.Ct. 2726, 2761, 33

L.Ed.2d 346 (1972) (Stewart, J., concurring).

[105] Finally, we perceive no fundamental unfairness

in that portion of the prosecutor's penalty phase closing argument that evoked sympathy for the victim

and members of her family. Payne v. Tennessee, 501

U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d

720 (1991); Hodge, 17 S.W.3d at 852-53;Bowling,

942 S.W.2d at 303.

VII. MISCELLANEOUS ISSUES.

1. Sufficiency of the evidence.

[106][107] The evidence was sufficient to support

appellants' convictions of each offense. Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).

There was ample evidence that appellants unlawfully

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entered Mrs. White's residence, see Part III, issue 3,

supra, for the purpose of committing a crime, that

Mrs. White was murdered while appellants were in

the building, and that appellants were armed with

deadly weapons while in immediate flight therefrom.

KRS 511.020(1); Jackson v. Commonwealth, Ky.,

670 S.W.2d 828, 830 (1984) (one who steals a deadly

weapon during the course of a burglary is “armed”

within the meaning of the statute). It is immaterial to

the robbery convictions that the theft may have occurred after the murder so long as the theft and murder were part of the same criminal episode. Bowling,

942 S.W.2d at 307. The evidence afforded a reasonable inference that appellants went to Mrs. White's

residence for the purpose of committing robbery and

that the murder was committed in facilitation of the

robbery. Appellants admitted to tampering with physical evidence by attempting to destroy the victim's

body and each testified that the other committed both

the murder and arson.

naire. The only question that directly pertains to the

imposition of the death penalty is question 12 of section E which requests “general comments of the trial

judge concerning the appropriateness of the sentence

imposed in this case.” All of the other questions pertain to the facts of the case, the conduct of the trial,

and the background(s) of the defendant(s). These are

factors which a trial judge should consider before

passing final sentence and the process of preparing

the answers to those questions should assist a trial

judge in reaching the ultimate decision. We have reviewed the videotape of the sentencing hearing,

which consisted solely of legal arguments and pleas

for mercy by counsel and apologies and statements of

remorse by the appellants, and find no indication that

the trial judge had predetermined the sentence before

hearing these arguments, pleas, apologies, and statements of remorse.

2. Double jeopardy.

“[A]rguments that the death penalty is discriminatory

and arbitrary, and that our statutory scheme does not

provide constitutionally adequate guidance to capital

sentencing juries, have been raised, considered and

rejected by this Court on numerous occasions.”

Hodge, 17 S.W.3d at 854. “Our views with respect to

those arguments remain unchanged.” Id.

[108][109] Convictions of both robbery and burglary

do not violate the constitutional proscription against

double jeopardy since each offense requires proof of

an element that the other does not. Jordan v. Commonwealth, Ky., 703 S.W.2d 870, 873 (1985); see

Commonwealth v. Burge, Ky., 947 S.W.2d 805, 80911 (1997). Nor is it double jeopardy to convict a defendant of robbery or burglary and then use the *678

same offense as an aggravating circumstance authorizing capital punishment. Bowling, 942 S.W.2d at

308;Wilson v. Commonwealth, Ky., 836 S.W.2d 872,

891 (1992), overruled on other grounds by St. Clair

v. Roark, 10 S.W.3d at 487;Sanders, 801 S.W.2d at

682.

3. Trial judge's report.

[110] At the conclusion of the sentencing hearing, the

trial judge informed the attorneys that he had completed a preliminary draft of the report required by

KRS 532.075(1) and that he would complete it in

final form later that day and furnish copies to counsel

for appropriate objections. The report was filed in the

record later that same day. Appellants assert that because the report was at least partially prepared before

the sentences were imposed, the trial judge must have

prejudged the sentence. We disagree. As required by

the statute, the report is in the form of a question-

4. Constitutionality of death penalty.

5. Constitutionality of proportionality review.

[111] There is no constitutional right to a proportionality review. Pulley v. Harris, 465 U.S. 37, 44, 104

S.Ct. 871, 876, 79 L.Ed.2d 29 (1984). Our review is

governed solely by the provisions of KRS 532.075.

6. KRS 532.075(6) data.

[112] Failure to provide access to data compiled pursuant to KRS 532.075(6) does not implicate the Due

Process Clause. Mills, 996 S.W.2d at 495;Sanders,

801 S.W.2d at 683;Harper v. Commonwealth, Ky.,

694 S.W.2d 665, 671 (1985).

7. Constitutionality of death qualification of jurors.

[113] Death qualification of jurors is not unconstitutional. Hodge, 17 S.W.3d at 838.

8. Trial judge's role in sentencing.

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120 S.W.3d 635

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Appellants cite a statement in Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1985), that “the statutory scheme not only permits, but anticipates, that the

trial court will play a separate and different role in

sentencing in capital cases after the jury's verdict has

been received.” Id. at 423. From this statement they

conclude that our capital sentencing scheme is fatally

flawed because it does not articulate what that “separate and different” role might be. Of course, the quotation from Matthews is out of context. What we said

in Matthews was that a trial judge, in sentencing a

defendant convicted by a jury *679 that has also

fixed a sentence, is not limited, as was the jury, to

consideration of statutory aggravating and mitigating

circumstances when exercising his/her discretion as

to whether to accept the jury verdict or to impose a

lesser sentence. The information elicited in the trial

judge's report, KRS 532.075(1), can be a partial guide

to assist the trial judge in making that decision.

9. Residual doubt.

[114] Once again, we are cited to Lockhart v.

McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d

137 (1986), for the proposition that the death penalty

should be set aside because of the existence of a “residual doubt.” Lockhart does not so hold and we specifically addressed and rejected that argument in

Tamme, 973 S.W.2d at 40.

10. Video record.

“The Court's use of videotaped records pursuant to

CR 98 instead of stenographic transcripts did not

prejudice [the appellants'] right to appeal.” Hodge, 17

S.W.3d at 854-55 (citing Foster v. Kassulke, 898

F.2d 1144, 1147-48 (6th Cir.1990)).

ence of passion, prejudice, or any other arbitrary factor. There was ample evidence to support the jury's

finding of statutory aggravating circumstances. We

have also reviewed all cases decided since 1970 in

which the death penalty was imposed. We have particularly considered those cases in which the defendant was convicted of a single murder committed during the course of a burglary or robbery, or both, and

sentenced to death, viz: Mills v. Commonwealth, Ky.,

996 S.W.2d 473 (1999) (burglary and robbery);

Bowling v. Commonwealth, Ky., 942 S.W.2d 293

(1997) (burglary and robbery); Bussell v. Commonwealth, Ky., 882 S.W.2d 111 (1994) (robbery); Epperson v. Commonwealth, Ky., 809 S.W.2d 835

(1990) (burglary and robbery); Moore v. Commonwealth, Ky., 771 S.W.2d 34 (1988) (robbery);

Slaughter v. Commonwealth, Ky., 744 S.W.2d 407

(1987) (robbery); Marlowe v. Commonwealth, Ky.,

709 S.W.2d 424 (1986) (robbery); Kordenbrock v.

Commonwealth, Ky., 700 S.W.2d 384 (1985) (robbery); McQueen v. Commonwealth, Ky., 669 S.W.2d

519 (1984) (robbery); Self v. Commonwealth, Ky.,

550 S.W.2d 509 (1977) (robbery); Meadows v.

Commonwealth, Ky., 550 S.W.2d 511 (1977) (burglary); Caine v. Commonwealth, Ky., 491 S.W.2d

824 (1973) (robbery); Galbreath v. Commonwealth,

Ky., 492 S.W.2d 882 (1973) (robbery); Leigh v.

Commonwealth, Ky., 481 S.W.2d 75 (1972) (robbery). (The death sentences in Self, Meadows, Caine,

Galbreath, and Leigh were all vacated pursuant to

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Ed.2d 346 (1972).) Considering the facts of this

case and comparing them to similar cases in which

the death penalty was imposed, we conclude that the

sentences of death imposed in this case are neither

excessive nor disproportionate.

Accordingly, the judgments of conviction and sentences imposed by the Fayette Circuit Court are affirmed.

11. Cumulative error.

No cumulative error occurred that requires reversal of

this case. Compare Funk v. Commonwealth, Ky., 842

S.W.2d 476, 483 (1992).

VIII. PROPORTIONALITY REVIEW.

[115][116][117] Pursuant to KRS 532.075(3), we

have reviewed the record and determined that the

sentence of death was not imposed under the influ-

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, and WINTERSHEIMER, J.J., concur.

KELLER, J., concurs in the result by separate opinion, which STUMBO, J., joins.*680KELLER, Justice, concurring.

I concur in the result reached by the majority and I

would affirm the Fayette Circuit Court's judgments of

conviction and sentence in these cases. I write separately, however, because I disagree with certain aspects with the majority's analysis, specifically: (1)

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Part II(2) (“Death Qualification Question”), in which

the majority's dicta calls into question long-standing

Kentucky precedent holding that a fair and impartial

juror must be able to consider the full range of penalties provided for an offense; (2) Part II(6) ( “ Batson

challenge”), in which the majority mischaracterizes

Appellants' objection to the Commonwealth's exercise of peremptory challenges; (3) Part III(3) (“Character evidence”), in which today's majority becomes

the first Kentucky court to hold in a published opinion that a person “unlawfully enters” another's residence if he or she gains entry to the residence

through subterfuge; and (4) Part V(5)(a) (“EED mitigator”), in which the majority dismisses this Court's

previous, more-than-reasonable conclusion that

“[w]hether extreme emotional disturbance is used as

an element of the murder, manslaughter, or mitigating circumstance instructions, the jury should be instructed as to its definition.” FN1 Although I do not

intend to dwell upon any of these topics at great

length, I hope to clarify my views as to each of them.

and it is certainly not a valid reason to abandon longstanding policy. If today's majority opinion is an indication that the Court intends to retreat *681 from

precedent that supports the commonsense notion that

a fair and impartial juror must “be able to consider

any permissible punishment” FN6-including both the

maximum and the minimum sentences authorized by

law-the Court will do so over my dissent.FN7

FN2. I would observe, however, that the majority opinion erroneously suggests that the

minimum sentence for a defendant convicted of both Murder and First-Degree Robbery, First-Degree Burglary, or First-Degree

Rape is thirty (30) years. The majority's

arithmetic ignores not only the context of

counsel's question-i.e., what sentence the juror could consider for the Murder-but also

the fact that the trial court could order sentences to run concurrently. KRS 532.110(1).

FN3. Ky., 756 S.W.2d 131 (1988).

FN1.Dean v. Commonwealth, Ky., 777

S.W.2d 900, 909 (1989) (emphasis added).

As to Part II(2), I agree with the majority's conclusion that the trial court's “death penalty qualification”

question did not deprive Appellants of their right to a

meaningful voir dire examination because the trial

court permitted Appellants' trial counsel to question

jurors regarding their ability to consider the full range

of penalties.FN2 I take issue, however, with the “full

court press” that the majority employs upon Grooms

v. Commonwealth,FN3 wherein this Court stated that

“a juror should be excused for cause if he would be

unable in any case, no matter how extenuating the

circumstances may be, to consider the imposition of

the minimum penalty prescribed by law.” FN4 Today's

majority characterizes the Grooms court's conclusion

as anomalous and mere dictum. Less than two years

ago, however, this Court again stated “[w]e remain

convinced that, in all criminal cases, the right to a fair

and impartial jury requires the jury to possess the

ability to consider the full range of penalties [.]” FN5

Although the majority states, without citation of authority, that the Commonwealth of Kentucky stands

alone in requiring the disqualification of a juror who

cannot consider the minimum authorized sentence in

a capital case, this contention, if true, is not a valid

criticism of this Court's past attempts to ensure that

such cases are tried before fair and impartial jurors,

FN4.Id. at 137.

FN5.Lawson v. Commonwealth, Ky., 53

S.W.3d 534, 541 (2001) (emphasis added).

FN6.Shields v. Commonwealth, Ky., 812

S.W.2d 152, 153 (1991) (emphasis added),

overruled on other grounds by Lawson v.

Commonwealth, supra note 5.See also

Woodall v. Commonwealth, Ky., 63 S.W.3d

104, 119 (2002) ( “[A] juror is disqualified

if he or she cannot consider the minimum

penalty ....”), cert. denied,537 U.S. 835, 123

S.Ct. 145, 154 L.Ed.2d 54 (2002); Hodge v.

Commonwealth, Ky., 17 S.W.3d 824, 837

(1999), cert. denied531 U.S. 1018, 121 S.Ct.

581, 148 L.Ed.2d 498 (2000).

FN7.See Furnish v. Commonwealth, Ky., 95

S.W.3d 34, 54-57 (2003) (Keller, J., dissenting); Stopher v. Commonwealth, Ky., 57

S.W.3d 787, 808-812 (2001) (Keller, J., dissenting), cert. denied535 U.S. 1059, 122

S.Ct. 1921, 152 L.Ed.2d 829 (2002).

As to Part II(6), the majority misstates Appellants'

objection. Appellants questioned the Common-

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(Cite as: 120 S.W.3d 635)

wealth's use of eight of its nine peremptory challenges against male members of the jury panel-i.e., an

objection premised on only the jurors' gender, not

their race. Thus, regardless of the races of these eight

jurors removed from the jury panel, Appellants made

a prima facie case for discrimination on the basis of

gender.FN8 In any event, the trial court found that the

Commonwealth elected to challenge the jurors for

non-discriminatory reasons, and I agree with the majority that the trial court's finding in that regard is

supported by substantial evidence.

FN8.J.E.B. v. Alabama, 511 U.S. 127, 114

S.Ct. 1419, 128 L.Ed.2d 89 (1994) (holding

that peremptory challenges cannot be exercised on the basis of gender). Cf. Wiley v.

Commonwealth, Ky.App., 978 S.W.2d 333

(1998) (holding that the defendant could not

exercise his peremptory challenges on the

basis of gender).

In Part III(3), the majority concludes that the erroneous introduction of character evidence regarding the

victim's careful nature was harmless beyond a reasonable doubt because “both appellants admitted at

trial that they ‘unlawfully entered’ the victim's

home.” FN9 Because the evidence at trial largely compelled the conclusion that Appellants were guilty of

First-Degree Burglary under one or more theories, I

agree with the majority's ultimate conclusion that this

evidence did not prejudice Appellants. However, I

cannot agree with the majority's holding that Appellant Goforth's version of the events-in which he and

Appellant Caudill obtained admission into the victim's home by falsely representing to the victim that

they needed to use her telephone-constituted “unlawful entry” as defined in Chapter 511 of the Kentucky

Penal Code. KRS 511.090(1) provides that “[a] person ‘enters or remains unlawfully’ in or upon premises when he is not privileged or licensed to do so.”

FN10

And, the Commentary to KRS 511.020 explains

that Kentucky's burglary crimes' “knowingly enter or

remain unlawfully” requirement “is intended to ...

emphasize[ ] the unlawfulness of the intrusion....

Burglary is not committed by ... invited guests who

enter buildings under privilege even though they have

intention to commit a crime while there.” FN11 In fact,

in Tribbett v. Commonwealth,FN12 where the appellant

obtained entry into the victim's home ostensibly in

order to make use of the victim's firing range,FN13 but

actually to *682 rob and murder the victim, the Court

made no mention of today's majority opinion's “subterfuge” theory and, in fact, held that “Tribbett and

his two companions were invited by [the victim] into

his home. As such, they were mere licensees.”FN14

Today's majority opinion thus unnecessarily embraces a new theory of “unlawful entry” burglary that

appears inconsistent with both the commentary to

KRS 511.020 and our case law interpreting it.

FN9.Majority Opinion, 120 S.W.3d 635,

660 (2003).

FN10.KRS 511.090(1) (emphasis added).

FN11.KRS 511.090, Official Commentary

(Banks/Baldwin 1974).

FN12. Ky., 561 S.W.2d 662 (1978).

FN13.See Walker v. Commonwealth, Ky.,

561 S.W.2d 656, 657 (1978).

FN14.Tribbett v. Commonwealth, supra note

12 at 664 (emphasis added).

As to Part V(5)(a), I agree with the Dean plurality

that EED as a mitigating circumstance is conceptually the same as EED as a defense, and that the

McClellan v. CommonwealthFN15 definition applies in

either case. The “even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime” language in

KRS 532.025(2)(b)(2) advises the jurors that the existence of EED that: (1) lacks a reasonable explanation or excuse, or (2) is of lesser degree-i.e., one that

does not cause a temporary state of mind so enraged,

inflamed, or disturbed as to overcome one's judgment

and cause one to act uncontrollably-can nevertheless

be considered in mitigation of penalty. Accordingly, I

believe that, in cases where the evidence supports an

instruction on the KRS 532.025(2)(b)(2) mitigating

circumstance, the instructions should define EED so

that the jury can make a meaningful determination as

to whether that mitigating circumstance is present.

Here, however, I agree with the result reached by the

majority because there was no evidence to warrant a

finding of EED, as defined by McClellan, in either

phase of the trial. And, thus, the error was harmless

beyond a reasonable doubt because Caudill could not

have been prejudiced by the fact that the trial court's

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120 S.W.3d 635

(Cite as: 120 S.W.3d 635)

instructions omitted the McClellan definition.

FN15. Ky., 715 S.W.2d 464, 468-69 (1986),

cert. denied479 U.S. 1057, 107 S.Ct. 935, 93

L.Ed.2d 986 (1987).

STUMBO, J., joins this concurring opinion.

Ky.,2003.

Caudill v. Com.

120 S.W.3d 635

END OF DOCUMENT

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