Petition for Writ of Certiorari — Fred Furnish, Petitioner v. Kentucky

Supreme Court briefMar 30, 2020

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Furnish v. Com., 95 S.W.3d 34 (2002)

Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler III, Attorney General, Louis F. Mathias,

Jr., Michael G. Wilson, Office of the Attorney General,

Assistant Attorney General, Frankfort, for Appellee.

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Distinguished by State v. Rogers, Neb., January 30, 2009

95 S.W.3d 34

Supreme Court of Kentucky.

Fred FURNISH, Appellant,

COMMONWEALTH of Kentucky, Appellee.

No. 1999–SC–0676–MR.

Nov. 21, 2002.

As Modified Dec. 10, 2002.

Rehearing Denied Feb. 20, 2003.

Synopsis

Defendant was convicted, after a jury trial in the Circuit

Court, Kenton County, Steven R. Jaeger, J., of murder,

first-degree burglary, first-degree robbery, theft by

unlawful taking over $300, obtaining money by fraud, and

being a first-degree persistent felony offender, and he was

sentenced to death. Defendant appealed. The Supreme

Court, Graves, J., held that: (1) defendant was not entitled

to 35-day pretrial continuance; (2) limits on voir dire were

proper; (3) excusal of prospective jurors for cause was not

warranted; (4) defendant’s cocaine use was admissible as

“other act” evidence; (5) unpreserved alleged errors did

not require reversal; (6) undisclosed evidence was not

exculpatory; (7) defendant unqualifiedly consented to

retroactive application of statute authorizing sentence of

life without benefit of probation or parole (LWOP); and

(8) trial court did not have duty to conduct sua sponte

inquiry regarding defendant’s consent to having counsel

admit defendant’s guilt as “thief and burglar.”

Affirmed in part, reversed and remanded in part.

Keller, J., filed an opinion concurring in part and

dissenting in part, in which Stumbo and Johnstone, JJ.,

joined as to limitations on voir dire examination.

Wintersheimer, J., filed an opinion concurring in part and

dissenting in part.

Attorneys and Law Firms

*39

Randall

Wheeler,

Thomas

Ransdell,

Opinion

*40 Opinion of the Court by Justice GRAVES.

Appellant, Fred Furnish, was convicted in the Kenton

Circuit Court of murder and was sentenced to death. In

addition, Appellant received enhanced sentences of thirty

years for first-degree burglary, life imprisonment for

first-degree robbery, ten years for theft by unlawful taking

over $300, and ten years for obtaining money by fraud, by

virtue of his being found to be a first-degree persistent

felony offender. He appeals to this Court as a matter of

right.

On the afternoon of Thursday June 25, 1998, 66–year–old

Jean Williamson was discovered dead in her home.

Williamson’s body was found in a kneeling position,

leaning over the bathtub, in the master bathroom.

Williamson was fully clothed and blood was found in the

master bedroom, indicating that her body had been moved

into the bathroom after death. An autopsy revealed the

cause of death to be strangulation, and a washcloth is

believed to have been the murder weapon. A search of the

crime scene revealed no forced entry and no identifiable

fingerprints. Williamson’s bedroom, as well as the

bedroom of her daughter, Gail, were ransacked and

jewelry and credit cards were stolen. On August 14, 1998,

Appellant was indicted in the Kenton Circuit Court for

murder, first-degree robbery, burglary, receiving goods

and services by fraud, theft by unlawful taking, and for

being a first-degree persistent felony offender.

At trial, defense counsel conceded that Appellant was a

“thief and a burglar,” and that he had been in the

Williamson residence on the day of the murder, but

denied that Appellant murdered Williamson. It was the

defense theory that Appellant and another person had

intended to burglarize the Williamson residence but that

this other “mystery person” is the one who murdered

Williamson.

The Commonwealth introduced evidence that Appellant,

who was employed by Kiwi Carpet Cleaners, had been in

the Williamson residence on May 19th, approximately

one month before the murder. In fact, the indictment for

theft by unlawful taking over $300 related to jewelry that

Furnish v. Com., 95 S.W.3d 34 (2002)

Appellant stole from the Williamson residence while he

was there cleaning the carpets on May 19th. In addition,

on the day of the murder, several neighbors observed a

man, later identified as Appellant, walking near the

Williamson residence. Police recovered Williamson’s

jewelry from numerous acquaintances of Appellant.

Further, video surveillance tapes from several area banks

depicted Appellant using Williamson’s ATM card to

obtain cash in the hours following her death.

On appeal, Appellant raises numerous allegations of

error, many of which are unpreserved. For convenience,

we have categorized these issues into five sections. To the

extent that any error is unpreserved, it has been reviewed

in accordance with the standard set forth in Cosby v.

Commonwealth, Ky., 776 S.W.2d 367 (1989), cert.

denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963

(1989), overruled, in part, St. Clair v. Roark, Ky., 10

S.W.3d 482 (1999), i.e., whether there was a reasonable

justification or explanation for defense counsel’s failure

to object, and whether the totality of the circumstances is

persuasive either that the defendant would not have been

found guilty of a capital offense or that he would not have

received the death sentence but for the unpreserved error.

See also Tamme v. Commonwealth, Ky., 973 S.W.2d 13

(1998), cert. denied, 525 U.S. 1153, 119 S.Ct. 1056, 143

L.Ed.2d 61 (1999).

*41 After reviewing the record and hearing oral

argument, we affirm Appellant’s convictions. However,

because Appellant was erroneously denied an instruction

on life without the benefit of probation or parole, we

remand this matter to the Kenton Circuit Court for a new

penalty phase in accordance with this opinion. As such,

we need not address those issues pertaining to the penalty

phase which are not likely to reoccur on remand.

I. PRETRIAL ISSUES

1. Indictment

Appellant argues that the grand jury indictment was

defective because it failed to state the culpable mens rea

for the charges of murder, receiving goods and services

by fraud, and theft by unlawful taking over $300. We

have repeatedly held that an indictment is sufficient if it

fairly informs the defendant of the nature of the crime

with which he is charged. Stephenson v. Commonwealth,

Ky., 982 S.W.2d 200 (1998); Thomas v. Commonwealth,

Ky., 931 S.W.2d 446 (1996); Wylie v. Commonwealth,

Ky., 556 S.W.2d 1 (1977). At his arraignment, Appellant

stated that he understood the charges contained in the

indictment. At no point did Appellant allege that notice

was insufficient. Reversal is not warranted on this issue.

Appellant also contends that because the Grand Jury

failed to include aggravating circumstances in the murder

indictment the prosecution was precluded from seeking

the death penalty. We disagree. The indictment, which

was returned on August 14, 1998, clearly charged

Appellant with “Murder, a capital offense, when he

caused the death of Jean Williamson, by strangling her to

death, in violation of KRS 507.020 ....” Moreover, on the

same date that the indictment was returned, the

Commonwealth filed a formal “Notice of Aggravating

Circumstances,” which stated that the case would be

prosecuted as a capital case based on the aggravating

circumstances of the murder being committed while

Appellant was engaged in the commission of first-degree

robbery and first-degree burglary. At no time prior to this

appeal did defense counsel complain of insufficient notice

and Appellant may not claim such at this time.

2. Denial of Continuance

Appellant argues that he was prejudiced by the trial

court’s refusal to grant a 35–day continuance. Appellant

alleges that the trial court was more concerned with

judicial economy and Appellant’s trial interfering with

other matters on the docket than with ensuring that

Appellant received “meaningful access to justice.”

Appellant contends that this denial of a continuance

violated his right to both federal and state due process

standards by failing to provide him with the opportunity

for complete evaluation, preparation, and presentation of

a defense. Hunter v. Commonwealth, Ky., 869 S.W.2d

719, 722–24 (1994); see also Ake v. Oklahoma, 470 U.S.

68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The trial

court’s extensive order demonstrates that this issue lacks

merit.

Appellant was indicted on August 24, 1998, and the trial

court initially scheduled a trial date of January 26, 1999.

In December, defense counsel moved to continue the trial

until June 1999, to allow more time for preparation.

Following a hearing, the trial court granted a continuance

until April 13, 1999. Throughout numerous pretrial

hearings, counsel was reminded that the April trial date

was “firm.”

Furnish v. Com., 95 S.W.3d 34 (2002)

On March 31, 1999, a hearing was held concerning the

Commonwealth’s intent to introduce KRE 404(b)

evidence. At the close of the hearing, the Court afforded

*42 the parties an opportunity to file supplemental

authority prior to 2:00 p.m. on April 1st. This extension of

time was a result of defense counsel’s assertion that

certain materials needed to be presented ex parte to avoid

revealing confidential defense matters to the

Commonwealth. The record indicates that after defense

counsel failed to file any additional materials, counsel’s

office was called and the trial court was informed that the

defense had decided not to file any supplemental

pleadings.

However, on April 5th, the defense filed a “Supplemental

Affidavit in Support of Motion to Continue.” The

affidavit did not relate to any confidential matters as

previously represented by defense counsel, but rather

reasserted counsel’s “bald assertions” that the defense had

been too busy to prepare for trial and needed additional

time.

On April 7, 1999, the trial court entered an 18–page order

detailing the procedural history of the case and

extensively addressing the continuance issue. The Court

noted that although 35 days was, facially, a minimal

extension, it believed defense counsel was aware that the

request was not realistic, in that on the day counsel sought

to have the trial begin, eight other jury matters were

scheduled, most of which involved representation by

defense counsel’s own office; that the courthouse was

scheduled to move in June; that another death penalty

case scheduled for September 1999 would likely delay the

trial in this case until late Fall 1999 or Winter 2000; and

that, in fact, if Appellant’s trial was scheduled during the

same quarterly jury panel as the other death penalty case,

defense counsel would object if one panel was utilized for

two death penalty proceedings. Thus, the trial court ruled

the inconvenience to the litigants, witnesses, counsel and

the court was significant.

Furthermore, the trial court acknowledged that although

there had only been one prior continuance, a ten-month

period to prepare a death penalty case was sufficient and

additional continuances should not have been necessary.

The trial court opined that perhaps the public defender’s

office was not engaging in an efficient use of time.

The trial court further stated that the record was devoid of

any evidence indicating the delay was caused by

Appellant himself and noted that Appellant was

represented by three competent attorneys. Consequently,

the trial court concluded that defense counsel’s request for

additional time to conduct independent testing of

fingerprint evidence and to retain additional expert

witnesses weighed in favor of granting a continuance to

avoid any prejudice to Appellant. Accordingly, the trial

court granted a 14–day continuance.

Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579

(1991), sets forth the seven factors to be considered by the

trial court in ruling upon a motion for continuance: (1)

length of delay sought; (2) previous continuances; (3)

inconvenience to litigants, witnesses, counsel, and the

court; (4) whether the delay is purposeful or is caused by

the accused; (5) availability of other competent counsel, if

at issue; (6) complexity of the case; and (7) whether

denying the continuance would lead to identifiable

prejudice. As noted above, the trial court considered each

factor.

The trial court’s order clearly reveals that it exhaustively

analyzed the circumstances presented and determined that

defense counsel’s request was “more for the appellate

record” and contained primarily bald assertions that

counsel needed more time. Even at this point in time, *43

Appellant is unable to set forth anything specific that

would have been done had he received the 35–day

continuance. See Foley v. Commonwealth, Ky., 953

S.W.2d 924, 937 (1997), cert. denied, 523 U.S. 1053, 118

S.Ct. 1375, 140 L.Ed.2d 522 (1998). The trial court has

broad discretion in granting or denying a motion for

continuance, and that discretion was not abused in this

case. RCr 9.04.

3. Conflict of Interest

In a related issue, Appellant alleges that the trial court’s

April 7th order denying his request for a 35–day

continuance created serious conflict of interest questions

between Appellant and defense counsel.

In a diatribe on Kentucky’s Code of Professional

Responsibility, Appellant claims that the trial court

implied defense counsel was not providing adequate

representation. After receiving the order, defense counsel

filed a motion to withdraw on the grounds that such was

mandated KRPC 1.16(a), since a conflict of interest

existed between counsel and Appellant. On appeal,

Appellant now opines that he was entitled to some form

of remedial relief. Essentially, Appellant argues that the

trial court should have recused itself from a hearing to

determine whether its order did, in fact, create a conflict

and, if so, what remedial action was required. We find

this argument to border on frivolous.

Furnish v. Com., 95 S.W.3d 34 (2002)

While the trial court, in its April 7th order, opined that

defense counsel was aware that a 35–day continuance was

unrealistic and was requested more for the benefit of the

appellate record, the trial court further stated, “Defendant

has three skilled, experienced and competent lawyers who

are vigorous in their representation of him.” At no time

did the trial court accuse defense counsel of “violations of

the ethical duties of representation” as is alleged in

Appellant’s brief. Furthermore, we are of the opinion that

although the trial court should have refrained from

expounding on its perceived deficiencies of the public

defender system, such comments certainly did not rise to

the level of creating a conflict of interest between defense

counsel and Appellant, nor did they warrant recusal.

4. Judicial Bias

Appellant argues that the trial judge should have recused

prior to the sentencing hearing because he had already

decided to sentence Appellant to death. Appellant’s

argument is based upon the following statement by the

court:

With the verdict, it’s my

understanding by statute or rule

with the—with the sentence that’s

been recommended by the jury, the

Court must do a written report to

the Supreme Court, in addition to

the formal sentencing document.

So, I need a PSI to complete that

report, because there’s a lot of

information that goes in there that’s

not been presented in this trial.

Appellant contends that the above language indicates that

the trial court did not consider any additional information

and merely “rubber stamped” the jury’s recommendation

of death. As this case is being remanded for a new penalty

phase, we need not address this issue other than to

conclude that we do not find any indication that the trial

court was biased against Appellant.

II. JUROR ISSUES

1. Limitations on Voir Dire

Appellant argues that he was denied the opportunity to

voir dire potential jurors on the full range of penalties.

Specifically, defense counsel sought to elicit *44 from

potential jurors whether they could impose a minimum

sentence of twenty years for murder. At a bench

conference, the trial court stated:

[Y]ou can identify clearly, ... the four possible range of

penalties, term of years imprisonment not less than 20,

term of life in prison, term of life in prison without

parole for at least 25 years, and death. Clearly can be

identified, “Can you consider the full range of

penalties?” As a follow-up question, as Mr. Spicer was

attempting to do yesterday, I will not allow, “Can you

consider 20 years?” I will allow, “Can you consider a

penalty of 20 years to the most severe penalty of

death?” Because that encompasses the full range of

penalties. Twenty years is not an option, by itself. That

option is ... not less than 20 years. Which means 20

years to life.

...

And I want to make it clear for the record, there is not

an option, as a fifth alternative, to pick 20 years. That

misleads the jury. There is an option to pick a term of

not less than 20 years, or 20 years to life.

Acknowledging that under the instructions of the court,

based upon the proof and the facts of this case, the jury

very well could retire to the jury room, and if they find

Mr. Furnish guilty, sentence him to 20 years. But that

will be a choice of 20 years to life, that will not be a

fifth option of 20 years only.

Counsel is entitled to question jurors on whether they

“could consider the entire range of penalties in the event a

guilty verdict was returned.” Anderson v. Commonwealth,

Ky., 864 S.W.2d 909, 911 (1993); see also Springer v.

Commonwealth, Ky., 998 S.W.2d 439 (1999). Contrary to

Appellant’s assertion, this case is not analogous to Fugate

v. Commonwealth, Ky., 993 S.W.2d 931, 938 (1999),

wherein the trial court “directed the defendant to mention

only the terms ‘minimum and maximum’ without

mentioning any specific number of years.” Here, defense

counsel was not impeded from inquiring whether

potential jurors could consider the full range of penalties,

including a term of not less than twenty years. No error

occurred.

Appellant also claims prejudicial error because he was

not permitted to question the panel on drug addiction as a

Furnish v. Com., 95 S.W.3d 34 (2002)

mitigating circumstance and the presumption of

innocence, as well as what he perceives as an incorrect

definition of “substantial.” Suffice it to say, we have

reviewed these claims and have determined that the trial

court properly curtailed questions that were not proper

and only confused the panel.

The remainder of Appellant’s complaints concern his

belief that the prosecutor was given a greater preference

and latitude during voir dire questioning. The record

refutes such a claim. The extent of direct questioning by

counsel during voir dire is a matter within the discretion

of the trial court. Grooms v. Commonwealth, Ky., 756

S.W.2d 131, 134 (1988). The trial court correctly limited

defense counsel’s questioning when it became clear that

jurors found the inquiry confusing. Both parties were able

to thoroughly voir dire the panel and the trial court stated

that it looked to the “totality of the answers” in ruling on

the challenges for cause.

2. Excusals for Cause

The decision whether to excuse a juror for cause is a

matter within the sound discretion of the trial court. If the

trial court abuses its discretion by improperly failing to

sustain a challenge for cause, it is reversible error because

the defendant had to use a peremptory challenge *45 and

was thereby deprived of its use otherwise. Thomas v.

Commonwealth, Ky., 864 S.W.2d 252, 259 (1993), cert.

denied, 510 U.S. 1177, 114 S.Ct. 1218, 127 L.Ed.2d 564

(1994). While it is unnecessary to discuss Appellant’s

arguments relating to those jurors he believes should have

been excused due to their inability to consider the full

range of penalties, he also alleges that several jurors

should have been excused due to their connection to the

charged crimes or exposure to publicity.

Juror Griffith was an employee of PNC Bank, although

at a different branch than the one where Appellant used

Williamson’s ATM card. Juror Griffith commented that

she was familiar with the type of video system used at

PNC banks and that she had on occasion been responsible

for changing the videotape at her branch. Griffith also

stated that she was acquainted with the Commonwealth’s

witness, Fred Mattress, a PNC Bank employee who

testified regarding the bank’s video camera system.

However, Griffith noted that she worked at a different

branch than Mattress and had not heard any details of the

case. Griffith stated that she could base her decision on

the evidence she heard in the courtroom.

Griffith, Appellant now argues that the trial court should

have sua sponte removed her for cause. We disagree. We

do not find Juror Griffith’s knowledge of the video

system particularly relevant since there was no issue

raised that the cameras that captured Appellant using

Williamson’s ATM card were malfunctioning or

somehow inaccurate. Further, neither Juror Griffith’s

acquaintance with Mattress nor her employment with

PNC warranted her excusal for cause. Compare Marsch v.

Commonwealth, Ky., 743 S.W.2d 830 (1987). Juror

Griffith clearly expressed that she would consider only

the law and facts of the case in making her decision.

Jurors Brosmore and Hofacre were likewise not required

to be excused for cause after stating they were aware of

publicity following the crimes. “The fact that a

prospective juror may have some knowledge of a case

does not establish objective bias.” Foley, supra, at 932. In

McQueen v. Scroggy, 99 F.3d 1302, 1319–20 (6th

Cir.1997), cert. denied sub nom, McQueen v. Parker, 520

U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997), the

Sixth Circuit Court of Appeals stated:

There is no per se rule that mere

exposure to media reports about a

case merits exclusion of a juror. To

the contrary, in order to merit

disqualification of a juror, the

media reports must engender a

predisposition or bias that cannot

be put aside, requiring the juror to

decide a case one way or the other

.... There is no constitutional

prohibition against jurors simply

knowing the parties involved or

having knowledge of the case. The

Constitution does not require

ignorant or uninformed jurors; it

requires impartial jurors. While it

may be sound trial strategy for an

attorney to exclude anyone with

knowledge of the facts or the

parties, such a result is not

mandated by the Constitution.

All of the challenged jurors in this case stated that they

could be impartial and base a decision on the facts and

evidence presented. Disqualification was not warranted.

Although defense counsel did not move to excuse Juror

Furnish v. Com., 95 S.W.3d 34 (2002)

3. Peremptory Challenges

Appellant’s argument that the trial court’s allocation of

peremptory strikes was erroneous is without merit. RCr

9.40(2) provides that if alternate jurors are to be seated,

the number of challenges for *46 “each side and each

defendant shall be increased by one.” Contrary to

Appellant’s interpretation, in a case where there is only

one defendant, such as is present here, the defense “side”

and the “defendant” are one and the same. Springer v.

Commonwealth, supra, at 444. The trial court properly

ruled that Appellant was entitled to one, not two,

additional peremptory strikes.

Nor are we persuaded by Appellant’s proposition that

defendants should be given additional peremptory strikes

to “offset the [prosecution’s] tremendous advantage of

knowing more about panel members and being an elected

official trying a case with jurors selected from the

registered voters list.” While certainly novel, this notion is

utterly without any basis in our case law or criminal rules

on the grounds asserted. The decision whether to grant

additional peremptories is within the discretion of the trial

court and will not be disturbed absent an abuse of that

discretion. Bowling v. Commonwealth, Ky., 942 S.W.2d

293, 308 (1997), cert. denied, 522 U.S. 986, 118 S.Ct.

451, 139 L.Ed.2d 387 (1997).

III. EVIDENTIARY ISSUES

1. Purchase and Use of Crack Cocaine

Prior to trial, the Commonwealth filed a notice pursuant

to KRE 404(c) of its intent to introduce evidence

pertaining to Appellant’s purchase and use of crack

cocaine during the evening of June 25, 1998, and the

morning of June 26, 1998. The Commonwealth stated that

evidence of Appellant’s purchase of drugs with money

obtained through the use of Williamson’s stolen ATM

card demonstrated motive and was “interwoven with

other evidence essential to the case in that the separation

of this evidence cannot be accomplished without serious

adverse effect to Plaintiff.” Over defense objection, the

trial court ultimately ruled that while evidence of

Appellant’s cocaine use prior to the offenses was not

admissible, evidence of Appellant’s actions “surrounding

his commission of the offense of receiving goods and

services obtained by fraud on June 25–26” was

intertwined with facts of the other crimes and that the

probative value outweighed any prejudicial effect. We

agree.

Appellant contends that the evidence of his crack cocaine

purchase and use was not relevant because defense

counsel admitted that Appellant had committed all of the

crimes except murder. Notwithstanding, the trial court

properly held that the evidence was inextricably

intertwined so as to be admissible under KRE 404(b).

Appellant is not entitled to stipulate away otherwise

competent evidence simply because he does not want the

jury to hear such. Barnett v. Commonwealth, Ky., 979

S.W.2d 98 (1998); Chumbler v. Commonwealth, Ky., 905

S.W.2d 488 (1995). The evidence of Appellant’s use of

crack cocaine showed that he used Williamson’s ATM

card to obtain money to purchase the drugs. Clearly, such

evidence is intertwined with the evidence pertaining to the

other charges in this case. Cf Funk v. Commonwealth,

Ky., 842 S.W.2d 476 (1992). No error occurred.

2. Prior theft

Pursuant to KRE 404(b), the Commonwealth introduced

the testimony of Betty Geiman, who testified that

Appellant had cleaned her carpets on April 17, 1998,

while he was employed with Kiwi Carpet Cleaning. On

June 12, 1998, Appellant returned to Geiman’s home on a

bicycle and requested to inspect her carpets. Geiman

testified that she was unaware Appellant was no longer

employed by Kiwi and allowed him to enter her home

when she noticed that his bike had a *47 flat tire. After

looking at the carpets, Geiman left Appellant alone in the

kitchen to make several phone calls to ostensibly get help

with his bicycle. At some point after Appellant left,

Geiman went to retrieve her purse from the kitchen and

realized that her

wallet

was missing. On

cross-examination, Geiman conceded that she did not

actually see Appellant take her wallet nor had she used

her wallet for two days prior to realizing it was missing.

Defense counsel did not object to Geiman’s testimony and

Appellant concedes that this issue is not preserved.

However, in cases in which the death penalty has been

imposed, a two part inquiry is made to determine whether

there is a reasonable justification or explanation for

counsel’s failure to object, and, if there is no reasonable

explanation, whether the unpreserved error was

prejudicial. Sanders v. Commonwealth, Ky., 801 S.W.2d

665, 668 (1990), cert. denied, 502 U.S. 831, 112 S.Ct.

107, 116 L.Ed.2d 76 (1991) (citing Cosby, supra ).

We are of the opinion that it was reasonable trial strategy

Furnish v. Com., 95 S.W.3d 34 (2002)

not to object to Geiman’s testimony because it supported

defense counsel’s opening proposition that while

Appellant was a thief, he was not a murderer. Geiman was

not injured in any manner nor was she physically

threatened by Appellant. The allegation was that he

simply stole he wallet. As such, we do not believe her

testimony was prejudicial to Appellant. Reversal is not

warranted.

identification purposes from the Hamilton County

Detention Center. Finally Detective Wallace testified that

during a search of Dawn Godsey’s home, where

Appellant was known to frequently stay, he discovered a

Halloween mask and a pistol in the refrigerator. Again,

Appellant concedes *48 that no objection was raised to

the testimony of the officers.

Appellant contends that the officers’ testimony was

violative of KRE 404 in that it served no other purpose

than to imply that he had a criminal history and to show

character in conformity therewith. We disagree.

3. Comment on pre-arrest silence

On June 28, 1998, a search warrant was obtained for the

residence of Dawn Godsey, Appellant’s cousin, where

Appellant had been staying. Appellant was present when

officers arrived and he was handcuffed for the protection

of the officers. Appellant was specifically told he was not

under arrest. Appellant was taken to a Kenton County

Police Department conference room pending execution of

the warrants. While there, he told various officers “I don’t

know what you’re talking about” and “I got nothing else

to say” when asked about Williamson’s murder.

At trial, Detective Denham repeated Appellant’s

statements, as did the prosecutor during closing

arguments. Appellant contends that as a result, he was

denied his constitutional right to remain silent and that his

statements were not admissible since he was not

Mirandized prior to making them. Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

We need not engage in a lengthy constitutional analysis of

whether Appellant was or was not in custody and whether

his Miranda rights were, in fact, violated. A review of

Appellant’s statements lead us to the inescapable

conclusion that he did not remain silent, but rather denied

any knowledge of the crimes. At no point did Appellant

state that he did not wish to talk to the officers or that he

desired questioning to cease until he could speak with an

attorney. Appellant quite simply denied his involvement.

As such, we fail to see how Appellant’s constitutional

rights were violated by Officer Denham’s testimony.

4. Criminal History

The Commonwealth introduced testimony of three police

officers concerning their previous interactions with

Appellant. Police Chief Fred Anderson testified about his

general familiarity with Appellant. Detective Embry

stated that he had obtained a photograph of Appellant for

Nothing in the officers’ testimony suggested that their

prior contacts with Appellant were criminal in nature.

Chief Anderson simply stated that he had known

Appellant from “probably in the early to mid 80’s” and

that he was “generally familiar with him.” Anderson’s

association with Appellant could have occurred in a

multitude of situations. Nor do we find Detective Embry’s

testimony about the photograph of Appellant reversible

error. At no point did Detective Embry inform the jury

that it was a mug shot or comment on Appellant’s charges

in Hamilton County. Finally, we fail to perceive the

prejudice of Wallace’s reference to the pistol and

Halloween mask. Possession of either, in and of itself, is

not a bad act or evidence of a crime. Furthermore, even

Detective Wallace stated that while finding the items in

the refrigerator was “out of the ordinary,” they “really

meant nothing to this case.”

We conclude that counsel made a strategic decision not to

object and possibly create the inference that Appellant

had a problematic history with police. Notwithstanding,

we find that Appellant was not prejudiced by the evidence

and the outcome of the trial would not have been different

in its absence.

5. Evidence Pertaining to Use of Gloves

The Commonwealth theorized that Appellant wore

surgical gloves during the commission of the crimes, thus

accounting for the lack of fingerprints in the Williamson

residence. In fact, police recovered a box of surgical

gloves from Dawn Godsey’s residence. The day before

trial, defense counsel learned that some types of surgical

gloves are lubricated with cornstarch and that the

Commonwealth had conducted testing on a box of gloves

similar to those found in Godsey’s residence. The

Commonwealth sought to introduce a photograph of the

gloves found in Godsey’s residence, a laboratory report

indicating that cornstarch was found in Williamson’s car

Furnish v. Com., 95 S.W.3d 34 (2002)

and on her wallet, and photographs of Williamson’s car

depicting the white smears. Thereafter, the defense moved

to exclude any evidence relating to cornstarch.

Due to the lateness of the Commonwealth’s tests, the trial

court ruled that the report was inadmissible, and that the

prosecution was prohibited from presenting expert

testimony concerning the use of cornstarch to lubricate

surgical gloves. However, the court ruled that the

photograph of the gloves and the photograph of

Williamson’s car depicting the white residue were

admissible. Appellant thereafter moved to exclude the

photographs on the grounds that no testing had been

conducted on the actual gloves found in Godsey’s

residence, and that no other evidence connected those

particular gloves to the crime scene. The motion was

denied. At trial, Detective Rolfson testified that he

processed the crime scene for fingerprints but found none

that were identifiable. He further informed the jury that he

found a “white substance” smeared on the console of

Williamson’s car and on her wallet.

Appellant argues that photographs were improperly

admitted because there was no evidence that he wore

gloves during the commission of the crimes and further,

there was no evidence that the gloves found in Godsey’s

residence had any connection to the crime scene. We find

no error.

*49 The prosecution’s theory was that the absence of any

identifiable fingerprints was reasonably attributed to the

use of gloves. Appellant had access to such gloves and, in

fact, residue found in Williamson’s car and on her wallet

was similar to that found on surgical gloves. Certainly,

the testimony of Detective Rolfson along with the fact

that Appellant had access to surgical gloves was relevant

circumstantial evidence. Although the Commonwealth

was properly precluded from making any reference to

cornstarch, the jury could still infer that the lack of

fingerprints and the presence of a white substance

smeared on areas at the crime scene indicated the use of

gloves during commission of the crimes.

Nor do we find the prosecutor’s reference to the gloves

during closing arguments erroneous. During closing

argument a prosecutor may draw reasonable inferences

and propound his explanation of the evidence and why it

supports a finding of guilt. Tamme, supra at 39.

6. Alleged Exculpatory Evidence

On May 11, 1999, two weeks into Appellant’s trial,

while defense counsel was reviewing notes that Detective

Rolfson had used during his testimony, counsel

discovered an e-mail that was first sent to police on July

5, 1998. The e-mail, sent by an individual named Art

McNeil, stated that McNeil had heard another person

“called Dewey” had provided Appellant transportation to

the Williamson’s house on June 25th and had possibly

participated in the crimes. Defense counsel immediately

moved for a continuance, as well as for exclusion of the

death penalty as a sanction for the nondisclosure by the

Commonwealth. The trial court granted the continuance

but denied the motion for sanctions.

Later the same day, a further hearing revealed that a

Dewey Jump had been previously interviewed by police

and had an alibi. In fact, Jump was the boyfriend of Dawn

Godsey. Godsey testified that she and Jump had gone to

Warsaw, Kentucky on Wednesday, June 24th, and had not

returned until 4:30–5:00 p.m. the following day, after the

crimes had been committed. The Commonwealth

defended that the McNeil e-mail was not exculpatory

evidence but merely rumor and speculation. The

Commonwealth noted that all statements from Jump and

Godsey had previously been provided to the defense.

There is some allegation that defense counsel was already

aware of the e-mail as well, however nothing in the record

supports such a conclusion.

The following day, defense counsel informed the trial

court that they had investigated the matter and that

additional time was unnecessary. The trial thereafter

continued.

We cannot agree with Appellant that the information

contained in the e-mail was exculpatory or that he was

prejudiced by the Commonwealth’s alleged failure to

disclose such. Godsey was a defense witness and defense

counsel had the opportunity to thoroughly question her

about Jump’s alibi. Furthermore, no steps were even taken

to discover who Art McNeil was, and whether his

information was credible. In the absence of any

supporting evidence, the e-mail was nothing more than

unsubstantiated rumor. The trial court granted Appellant’s

request for a continuance and we conclude that no further

relief was warranted.

7. Humanization of Victim

There was no error in permitting Ed Strohmeier, a close

friend of Williamson, to testify about their growing

relationship, Williamson’s love for her *50 children and

grandchildren, and about her hobbies and charity work.

Furnish v. Com., 95 S.W.3d 34 (2002)

A murder victim can be identified

as more than a naked statistic, and

statements identifying the victims

as individual human beings with

personalties and activities does not

unduly prejudice the defendant or

inflame the jury. Just as the jury

visually observed the appellant in

the courtroom, the jury may receive

an adequate word description of the

victim as long as the victim is not

glorified or enlarged.

Bowling, supra, at 302–303; see also Hodge v.

Commonwealth, Ky., 17 S.W.3d 824, 847 (2000), cert.

denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498

(2000). The evidence was not unduly prejudicial.

IV. INSTRUCTIONS

1. Life Without the Benefit of Probation or Parole

On August 14, 1998, Appellant was indicted for conduct

which occurred in May and June of 1998. In July 1998,

the provisions of HB 455 took effect, authorizing, in part,

a sentence of life without the benefit of probation or

parole (LWOP) in capital cases. Prior to trial, Appellant

moved the trial court to apply the provisions of HB 455.

The trial court ruled that the decision whether to apply the

new sentencing provisions contained in HB 455 was

controlled by KRS 446.110, which permits a newly

enacted penalty to be applied retroactively if it is

mitigating. However, in denying Appellant’s motion, the

trial court concluded that the old penalties, including a

sentence of death, were not “clearly mitigated” by the

new penalties.

This Court subsequently held to the contrary in

Commonwealth v. Phon, Ky., 17 S.W.3d 106 (2000),

wherein we specifically stated that life without parole

was, in fact, a lesser penalty than death and could be

lawfully imposed for a capital offense committed prior to

the effective date of the statute “upon the unqualified

consent of the defendant.” Id. at 108.

On appeal, the Commonwealth argues that although the

trial court’s rationale was erroneous, Appellant was not

entitled to receive the life without parole instruction

because he failed to provide the necessary unqualified

consent. It is the Commonwealth’s position that “[g]iven

the constitutional implications ... a request for the

application of HB 455, and specifically the LWOP

instruction, should be accompanied by a knowing,

intelligent, and voluntary waiver by Appellant.”

The language of KRS 446.110 provides, in part, “If any

penalty, forfeiture or punishment is mitigated by any

provision of the new law, such provision may, by the

consent of the party affected, be applied to any judgment

pronounced after the new law takes effect.” And as

previously stated, we held in Phon, supra, that KRS

446.110 authorizes retroactive application of life without

parole, with a defendant’s consent, since life without

parole mitigates the death penalty. Id. at 107.

Appellant’s motion requesting an instruction on life

without parole stated:

Obviously, the defendant could

assert his right to be free from ex

post facto application of an

arguably more punitive law. He

chooses to waive that right.

Ultimately, the new KRS 532.025

does not increase the potential

maximum punishment, for it is still

death. It merely adds another

alternative among the non-death

options presented to this jury.

In fact, defense counsel informed the trial court that

Appellant was “willing to make a knowing, intelligent

and voluntarily (sic) waiver of any right to attack this

statute as a violation of the ex post facto prohibition of the

U.S. and Kentucky Constitutions.” Yet, the

Commonwealth argues *51 that Appellant did not provide

sufficient consent.

We fail to discern what more Appellant could have done

to make his consent any more clear. The Commonwealth

alluded during oral argument that Appellant himself, not

trial counsel, had to express his unqualified consent. Such

is a ludicrous proposition. Without question, Appellant’s

motion satisfied the “unqualified consent” requirement we

established in Phon, supra, and he was entitled to receive

an instruction on life without parole. As such, this case

must be remanded for a new penalty phase.

Furnish v. Com., 95 S.W.3d 34 (2002)

2. Duplicitous aggravating circumstances

During the penalty phase, the trial court instructed the

jury on three aggravating circumstances:

(a) The offense of Murder was

committed while the Defendant

was engaged in the commission of

Robbery in the First Degree; OR

(b) The offense of Murder was

committed while the Defendant

was engaged in the commission of

Burglary in the First Degree; OR

committed for the purpose of

receiving money, or any other thing

of monetary value, or for other

profit.

Appellant objected to the third aggravating circumstance

on the basis that it was duplicative of the first two.

Appellant argues that the improper cumulation of

aggravating circumstances caused the jury to give undue

weight to the mere number of aggravators and constitutes

double jeopardy. We disagree.

Aggravating circumstances are not criminal offenses

subject to double jeopardy considerations. Furthermore,

the jury was only required to find that the murder was

committed under one aggravating circumstance. The first

two aggravators were clearly proper. Error, if any, in

instructing on the third was harmless and did not

prejudice Appellant. RCr 9.24.

3. Mitigating Circumstances

Appellant was not entitled to a complicity or accomplice

instruction as mitigation. KRS 532.025(2)(b)(5) provides,

“[t]he defendant was an accomplice in a capital offense

committed by another person and his participation in the

capital offense was relatively minor.” In denying

Appellant’s request for such mitigating instruction, the

trial court stated:

[F]or record purposes, there’s no

evidence at this time, and, in fact,

in the guilt or innocence phase

there was no instruction tendered

relating to the involvement of

another person, that would give rise

to the jury’s conclusion, in this

phase, there being no additional

proof, that there was someone else

involved in this matter.

While the “quantum of evidence necessary to sustain a

penalty phase instruction is clearly less” than the evidence

required for a guilt phase instruction on the circumstances

which underlie the mitigator, Hunter, supra, a trial court

is not required to give an instruction on a mitigating

circumstance unless it is supported by the evidence. Smith

v. Commonwealth, Ky., 845 S.W.2d 534 (1993). Other

than defense counsel’s comments during opening

statements, there was no evidence presented that could

lead a jury to believe another individual was involved in

the charged crimes. Notwithstanding, the instructions did

include the catchall provision which allowed the jury to

consider “any mitigating circumstances otherwise

authorized by law.” KRS 532.025(2).

V. MISCELLANEOUS ISSUES

1. Defense Counsel’s Admissions of Guilt

Appellant argues that the trial court erred by failing to

inquire whether *52 Appellant knowingly and voluntarily

consented to defense counsel’s admissions of guilt during

opening and closing arguments. Specifically, counsel told

the jury during opening statements that Appellant was a

“thief and burglar,” and that although he went to

Williamson’s residence on the day in question to steal

from her, Appellant was not the person who murdered

Williamson. Again, during closing arguments, defense

counsel stated that Appellant had committed the other

crimes, even the theft of Betty Geiman’s wallet, but he

was not a murderer. Appellant, relying on Wiley v.

Sowders, 647 F.2d 642 (6th Cir.1981), cert. denied, 454

U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630 (1981), now

argues that the trial court should have conducted a sua

sponte inquiry as to whether Appellant consented to such

a trial strategy.

Furnish v. Com., 95 S.W.3d 34 (2002)

In Wiley, the Sixth Circuit Court of Appeals granted a

petitioner’s request for a writ of habeas corpus on the

grounds that petitioner’s counsel had admitted petitioner’s

guilt as a trial tactic, but had not gained petitioner’s

knowing consent prior to the admission. The Court held:

[A]n attorney may not admit his

client’s guilt which is contrary to

his client’s earlier entered plea of

‘not guilty’ unless the defendant

unequivocally understands the

consequences of the admission.

Counsel may believe it tactically

wise to stipulate to a particular

element of a charge or to issues of

proof. However, an attorney may

not stipulate to facts which amount

to the ‘functional equivalent’ of a

guilty plea.

Id. at 649. (citations omitted). The Court concluded that

the client’s knowing consent to such trial strategy must

appear on the record, outside the presence of the jury, in a

manner consistent with Boykin v. Alabama, 395 U.S. 238,

89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

However, in a subsequent companion case, Wiley v.

Sowders, 669 F.2d 386, 389 (6th Cir.1982), the Court

clarified its prior holding, stating “an on-the-record

inquiry by the trial court to determine whether a criminal

defendant has consented to an admission of guilt during

closing arguments represents the preferred practice. But

we did not hold in Wiley, and do not now hold, that due

process requires such a practice.” Thus, contrary to

Appellant’s argument, the trial court did not err in failing

to conduct a sua sponte inquiry as to Appellant’s consent

to his counsel’s strategy.

More importantly, while Appellant couches this issue in

terms of the trial court’s duty, this is essentially an

ineffective assistance of counsel claim. This court has

held as a general rule that claims of ineffective assistance

are not properly raised on direct appeal, but rather must

proceed by way of a post-trial motion under RCr 11.42 to

allow the trial court the opportunity to review the issues.

Humphrey v. Commonwealth, Ky., 962 S.W.2d 870, 872

(1998). In fact, the Sixth Circuit recognized that both

Wiley cases presented ineffective assistance of counsel

claims. However, the Court determined that although the

claims had not been preserved in the trial court, they were

fairly presented to this Court, and as such, Petitioners had

exhausted their state remedies. Wiley, 669 F.2d at 388.

2. Severance of Theft Charge

The trial court did not err in refusing to sever the charge

of theft by unlawful taking over $300. In denying

Appellant’s motion, the trial court noted that “such

evidence tends to establish identity, motive, and part of a

plan for criminal action. The passage of time between the

offenses charged does not determine or compel severance.

The character *53 of the offenses of May 19 and June 25

are interwoven one with the other ....”

RCr 6.18 provides that two or more offenses may be

charged in the same indictment if they are of the same or

similar character, or are based on the same acts or

transactions connected together or constituting parts of a

common scheme or plan. The two incidents were

intertwined in that Appellant first became a suspect in the

June 25th crimes after Gail Williamson told police that

some jewelry had been stolen on May 19th when

Appellant was at the Williamson residence cleaning

carpets. Furthermore, evidence of the earlier theft showed

that Appellant did not randomly pick Williamson when he

committed the June 25th crimes, rather he had gained

knowledge about the Williamson residence and its

contents through his employment with Kiwi Carpet

Cleaning.

A trial court has broad discretion in determining whether

to grant a motion for severance and reversal is not

warranted absent an abuse of that discretion. Davis v.

Commonwealth Ky., 899 S.W.2d 487 (1995). Certainly,

the evidence of the May 19th theft was prejudicial to

Appellant. However, the evidence was also relevant,

probative and within the requirements of RCr 6.18. No

error occurred.

3. Cumulative Error

Appellant received a fundamentally fair trial and we find

that the isolated instances of harmless error are

insufficient to create a cumulative effect which would

warrant reversal of his convictions for a new trial.

Tamme, supra; compare Funk, supra.

For the foregoing reasons, Appellant’s convictions are

affirmed. This case is remanded to the Kenton Circuit

Furnish v. Com., 95 S.W.3d 34 (2002)

Court for a new penalty phase wherein Appellant will be

eligible for an instruction on life without parole.

Majority Opinion at 95 S.W.3d 34, 47 (2002).

All concur to affirm the convictions.

KELLER, J., concurs, in part, and dissents, in part, by

separate opinion in which STUMBO, J., joins and

JOHNSTONE, J., joins, in part as to Limitations on Voir

Dire Examination.

WINTERSHEIMER, J., concurs, in part, and dissents, in

part, by separate opinion.

KELLER, Justice, Concurring in Part and Dissenting in

Part.

Although I agree with the majority opinion’s conclusion

that the trial court’s failure to instruct the jury as to the

sentencing option of life imprisonment without the benefit

of probation or parole (LWOP) requires us to reverse

Appellant’s sentence of death and remand Appellant’s

Murder conviction to the trial court for a new capital

sentencing phase, I write separately because I disagree

with the majority’s resolution of certain other issues.

Specifically, I disagree with Part II(1) of the majority

opinion because I believe that the trial court’s limitations

on Appellant’s voir dire examination created a substantial

risk that Appellant’s death sentence may have been

reached by jurors who were unable to consider the full

range of penalties and/or unable to consider Appellant’s

alleged intoxication as a mitigating circumstance.

Accordingly, I do not believe that the trial court permitted

a constitutionally adequate voir dire examination. And, I

dissent from the majority opinion to the extent that, in

addition to the relief granted in the majority opinion, I

would direct the trial court upon remand to allow

Appellant to investigate prospective jurors’ abilities to

consider the full penalty range and the specific mitigating

circumstances that Appellant intends to present. In

addition, I disagree with the majority’s Part III(3) analysis

of the issues concerning *54 Appellant’s oral

statements—or lack thereof—to the investigating officers.

Rather than dismissing Appellant’s allegations of error

out-of-hand with the questionable conclusion that

Appellant’s allegation of error raises no cognizable

constitutional inquiry because “he did not remain silent,

but rather denied any knowledge of the crimes,”1 I would

hold that these unpreserved allegations of error are not

reviewable by this Court at this time because the record

suggests that Appellant’s failure to object to the

introduction of this evidence may have been trial strategy.

LIMITATIONS ON VOIR DIRE EXAMINATION

In Lockett v. Ohio,2 the United States Supreme Court

recognized that the death penalty is “qualitatively

different” from a sentence of imprisonment3 and held that

individualized consideration of the circumstances of a

capital crime and the character of the defendant who

committed that crime were critical to prevent its arbitrary

application.4 Although the Sixth Amendment to the

United States Constitution does not require that a jury

make the ultimate determination whether to impose the

death penalty,5 the United States Supreme Court has held

that, when juries are asked to deliberate capital

punishment, Fourteenth Amendment due process

protections require that those juries be comprised of fair

and impartial jurors.6 Two of the most important facets of

such impartiality are a knowing and informed ability to

consider the full range of punishments7 and the ability to

consider all relevant mitigation evidence.8

438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

Id. 438 U.S. at 604, 98 S.Ct. at 2964, 57 L.Ed.2d at

989.

Id. 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at

990.

See Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct.

2960, 2966, 49 L.Ed.2d 913, 923 (1976) (plurality

opinion) (“It has never [been] suggested that jury

sentencing is constitutionally required.”). But see Ring

v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d

556 (2002) (holding that Sixth Amendment requires

jury finding as to aggravating circumstance necessary

for imposition of the death penalty).

Morgan v. Illinois, 504 U.S. 719, 726–7, 112 S.Ct.

2222, 2228–2229, 119 L.Ed.2d 492, 501–2 (1992).

Furnish v. Com., 95 S.W.3d 34 (2002)

See Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88

S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776, 785 n. 21

(1968) (“The most that can be demanded of a

venire[person] in this regard is that he [or she] be

willing to consider all of the penalties provided by state

law [.]”); Grooms v. Commonwealth, Ky., 756 S.W.2d

131, 138 (1988) (“In a capital case ... it is especially

important that the jury not be comprised of people

unwilling to consider the entire range of punishment in

the event of a guilty verdict.”).

Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934,

2951–2, 106 L.Ed.2d 256, 284 (1989) (“In order to

ensure ‘reliability in the determination that death is the

appropriate punishment in a specific case,’ the jury

must be able to consider and give effect to any

mitigating evidence relevant to a defendant’s

background and character or the circumstances of the

crime.” (citations omitted)). See also Eddings v.

Oklahoma, 455 U.S. 104, 113–15, 102 S.Ct. 869,

876-77, 71 L.Ed.2d 1, 10–11 (1982):

Just as the State may not by statute preclude the

sentencer from considering any mitigating factor,

neither may the sentencer refuse to consider, as a

matter of law, any relevant mitigating evidence....

The sentencer ... may determine the weight to be

given relevant mitigating evidence. But they may not

give it no weight by excluding such evidence from

their consideration.

Id. 455 U.S. at 115 n. 10, 71 L.Ed.2nd at 11 n. 10

(“[T]he Oklahoma death penalty statute permits the

defendant to present evidence ‘as to any mitigating

circumstances.’ Lockett requires the sentencer to

listen.”); Morgan v. Illinois, supra note 6 at 504 U.S. at

739, 112 S.Ct. at 2235, 119 L.Ed.2d at 509 (“Any juror

to whom mitigating factors are likewise irrelevant

should be disqualified for cause, for that juror has

formed an opinion concerning the merits of the case

without basis in the evidence developed at trial.”);

Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct.

1669, 1671, 90 L.Ed.2d 1, 6 (1986) (“Equally clear is

the corollary rule that the sentencer may not refuse to

consider or be precluded from considering ‘any

relevant mitigating evidence.’ ”).

*55 In Rosales–Lopez v. United States,9 the United States

Supreme Court observed that a full and adequate voir dire

“plays a critical function in assuring the criminal

defendant that his ... right to an impartial jury will be

honored.”10 This Court has reached the same conclusion.11

However, “[d]espite its importance, the adequacy of voir

dire is not easily subject to appellate review.”12

Nonetheless, the United States Supreme Court has

conceptualized its review of voir dire adequacy as a

situational inquiry and has articulated a standard under

which appellate courts should evaluate an examination’s

sufficiency:

451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).

Id. 451 U.S. at 188, 101 S.Ct. at 1634, 68 L.Ed.2d at

28.

See Thomas v. Commonwealth, Ky., 864 S.W.2d 252,

259 (1993).

Rosales–Lopez v. United States, supra note 9 at 451

U.S. at 188, 101 S.Ct. at 1634, 68 L.Ed.2d at 28.

Questions ... might be helpful in ascertaining whether a

juror is impartial. To be constitutionally compelled,

however, it is not enough that such questions be

helpful. Rather the trial court’s failure to ask these

questions must render the defendant’s trial

fundamentally unfair.13

Mu’Min v. Virginia, 500 U.S. 415, 425–6, 111 S.Ct.

1899, 1905, 114 L.Ed.2d 493, 506 (1991). See also

Turner v. Murray, 476 U.S. 28, 33, 106 S.Ct. 1683,

1687, 90 L.Ed.2d 27, 34–5 (1986) (describing the

“broad inquiry” in an allegation of inadequate voir dire

as “whether under all of the circumstances presented

there was a constitutionally significant likelihood that,

absent [this] questioning ... the jurors would not be

indifferent.”).

The Supreme Court has applied this standard in a number

of cases in which trial courts limited the subject matter of

voir dire examination and, by way of example, has

concluded that voir dire regarding the subject of racial

prejudice is required in capital cases when requested by

the defense,14 but is required in non-capital cases only

when “racial issues were ‘inextricably bound up with the

conduct of the trial,’ ” ‘15 and that there is no

constitutional right to question prospective jurors

regarding their opinions about a defendant’s facial hair16

or to permit specific inquiry into the content of pretrial

publicity to which potential jurors were exposed.17

See Turner v. Murray, supra note 13.

Furnish v. Com., 95 S.W.3d 34 (2002)

Ham v. South Carolina, supra note 15.

Mu’Min v. Virginia, supra note 13.

The Supreme Court has also cautioned, however, that a

voir dire examination which addressed all relevant subject

matter might still fail to pass constitutional muster if the

trial court relies on vague, “can you follow the law?”

questions which leave jurors’ actual preconceptions

unprobed.18 The Court has emphasized that *56 some

degree of deference to trial courts is necessary because

“determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in the

matter of catechism.”19 At the same time, however, courts

must remain sensitive to the fact that dissonance can exist

between the questioner and prospective jurors because of

asymmetrical understandings of legal language and

concepts.20

Morgan v. Illinois, supra note 6 at 504 U.S. at 735–6,

112 S.Ct. at 2232–2233, 119 L.Ed.2d at 506–7 (“It may

be that a juror could, in good conscience, swear to

uphold the law and yet be unaware that maintaining

such dogmatic beliefs ... would prevent him or her from

doing so. A defendant on trial for his life must be

permitted on voir dire to ascertain whether his

prospective

jurors

function

under

such

misconception.”).

Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844,

852, 83 L.Ed.2d 841, 852 (1985). See also Morgan v.

Illinois, supra note 6 at 504 U.S. at 729, 112 S.Ct. at

2230, 119 L.Ed.2d at 503 (“The Constitution, after all,

does not dictate a catechism for voir dire .... ”).

at 424–5, 105 S.Ct. at 852, 83 L.Ed.2d at 852 (“[M]any

venire[persons] ... may not know how they will react

when faced with imposing the death sentence, or may

be unable to articulate ... their true feelings.”).

Rosales–Lopez v. United States, supra note 9. See also

Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47

L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S.

524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).

See Witherspoon v. Illinois, supra note 7 at 391 U.S. at

510 n. 9, 88 S.Ct. at 1773, 20 L.Ed.2d at 781 n. 9 (“The

critical question, of course, is not how the phrases

employed in this area have been construed by courts

and commentators. What matters is how they might be

understood—or

misunderstood—by

prospective

jurors.”); Wainwright v. Witt, supra note 19 at 469 U.S.

In the case at bar, Appellant wished to examine potential

jurors to see if they could consider the full range of

penalties—including the statutory minimum penalty of

twenty (20) years. The trial court, however, would not

allow Appellant to ask prospective jurors if they could

consider the minimum penalty and instead framed the

inquiry regarding the “low end” of the penalty range as

whether a jury could consider “a term of imprisonment of

not less than twenty years.” Of course, an affirmative

answer to this question only meant that the juror could

consider sentencing Appellant to imprisonment for some

term of years—perhaps fifty (50), or a hundred (100) or

even a thousand (1000) years—not that the juror could

consider the statutory minimum sentence. This Court has

consistently held that a defendant “is entitled to a jury that

can fairly consider the entire range of punishments for his

crimes.”21 And, in Grooms v. Commonwealth,22 we held

that “a juror should be excused for cause if he would be

unable in any case ... to consider the imposition of the

minimum penalty prescribed by law.”23 Recently, in

Lawson v. Commonwealth,24 we examined how voir dire

regarding the available penalty range should be conducted

in non-capital cases and concluded, based on our

estimation of the “significant opportunity costs [of]

overgeneralizing the inquiry”25 that, “the questioner

should define the penalty range in terms of the possible

minimum and maximum sentences [.]”26 I can envision no

*57 reason for a different rule regarding voir dire

examination as to the minimum penalty in capital cases

where the stakes are far greater. Because the voir dire

examination permitted in this case did not allow the trial

court or the parties to assess whether the jurors could

consider the statutory minimum punishment of twenty

(20) years, Appellant was “denied the right to meaningful

voir dire on the issue of punishment.”27

Woodall v. Commonwealth, Ky., 63 S.W.3d 104, 117

(2002) (emphasis added). See also Lawson v.

Commonwealth, Ky., 53 S.W.3d 534, 541 (2001) (“We

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[.]”

(emphasis added)); Shields v. Commonwealth, Ky., 812

S.W.2d 152, 153 (1991) (“In order to sit as a juror in a

criminal case, a member of the venire must be able to

consider any permissible punishment.” (emphasis

added)).

Furnish v. Com., 95 S.W.3d 34 (2002)

Supra note 7.

Id. at 137.

Supra note 21.

Id. at 543.

Id. at 544. See, e.g., Stopher v. Commonwealth, Ky., 57

S.W.3d 787, 808–812 (2001) (Keller, J., dissenting)

(quoting portions of individual voir dire in which trial

court allowed defense counsel to examine juror

regarding his ability to consider the minimum penalty).

While the basis for the holding in Woodall was that the

examination as to the specific mitigating circumstance

was designed “to oblige jurors to commit themselves by

either accepting a specific mitigator or rejecting it before

any evidence was heard,”33 here, Appellant’s proposed

question sought only to determine if prospective jurors

could consider intoxication as a mitigating circumstance.

As Appellant thus sought no more than the United States

Constitution guarantees him—fair and impartial jurors

who could consider his relevant mitigation evidence34—I

believe the trial court denied Appellant a constitutionally

adequate voir dire examination by prohibiting such

questioning.

See KRS 532.025(2)(b)(7).

Supra note 21.

Id. at 116.

Id. at 135 (Stumbo, J., dissenting).

Majority Opinion, supra at 44.

Woodall v. Commonwealth, supra note 21 at 116.

See supra note 8 and surrounding text.

Anderson v. Commonwealth, Ky., 864 S.W.2d 909, 911

(1993).

With respect to Appellant’s allegation that the trial court

unconstitutionally limited the scope of his voir dire

examination by prohibiting him from inquiring whether

prospective jurors could consider the fact that Appellant

was under the influence of drugs and alcohol as a

mitigating circumstance,28 I acknowledge that, in Woodall

v. Commonwealth,29 this Court held that “it was not an

abuse of discretion by the trial judge to restrict the voir

dire ... concerning specific mitigation evidence.”30

However, I did not agree with that holding then,31 and I do

not agree with the citation-free, conclusory declaration in

today’s majority opinion that “the trial court properly

curtailed questions that were not proper and only

confused the panel.”32 Although Appellant persuasively

argues that evidence of intoxication is a “double-edged

sword” that some jurors will interpret as heightening

rather than reducing a defendant’s culpability, the trial

court would not allow Appellant to seek out those jurors

with more specific questioning, and instead merely

allowed examination as to whether jurors could consider

undefined “mitigating circumstances.” As each juror’s

answer to this question would vary according to his or her

own conception of what possible “mitigating

circumstances” may exist, I have little confidence that this

question reached the heart of the relevant

inquiry—whether the jurors could consider a mitigating

circumstance specifically authorized by the General

Assembly and that Appellant presented in this case.

Although I believe the erroneous limitation of Appellant’s

voir dire would require reversal of Appellant’s death

sentence even if the trial court had not otherwise

committed reversible error during the capital sentencing

phase, the court’s failure to instruct the jury as to LWOP

renders the voir dire error largely moot. Upon remand,

however, I would direct the trial court not only to

properly instruct the jury *58 as to all available

sentencing options, but also to permit Appellant to

conduct a constitutionally adequate voir dire.

Furnish v. Com., 95 S.W.3d 34 (2002)

APPELLANT’S STATEMENTS AND SILENCE

In my opinion, the majority’s conclusion that it need not

“engage in a lengthy constitutional analysis of whether

Appellant was or was not in custody or whether his

Miranda rights were, in fact, violated [because] [a]t no

point did Appellant state that he did not wish to talk to the

officers or that he desired questioning to cease until he

could speak with an attorney”35 is inadequate to address

Appellant’s allegations of error concerning his

abbreviated statements to the investigating officers.

Although the majority opinion’s analysis implicitly

assumes that a clear and unequivocal invocation of the

right to remain silent is a necessary precondition to each

of Appellant’s distinct arguments for relief, this analysis

completely overlooks—or is at least unresponsive to: (1)

Appellant’s allegation that his admission to stealing

jewelry from the victim’s home on a prior occasion

occurred during a custodial interrogation in which he did

not receive Miranda warnings; and (2) a split of authority

that currently exists at the United States Circuit Court

level as to whether a state violates a defendant’s Fifth

Amendment

privilege

against

self-incrimination

when—as was the case here36—the state, at trial, utilizes a

defendant’s silence, including refusals to discuss a matter

prior to arrest, as substantive evidence of the defendant’s

guilt.37

Majority Opinion, supra at 47.

Specifically, the Commonwealth introduced evidence

that: (1) Appellant “made no comment whatsoever” at

the time he was handcuffed; (2) during both the second

and third times that Appellant was interviewed by

Detective Denham and Officer Embry, Appellant

denied any knowledge of the murder and stated that he

had “nothing else to say”; and (3) that, although the

investigating officers gave Appellant “the opportunity

to describe what happened,” Appellant never

acknowledged the fact that he had been at the victim’s

residence and never made mention of a second

individual (a defense initially employed by Appellant at

trial) during the interview. During its culpability phase

closing argument, the Commonwealth specifically

commented on Appellant’s tight lips in a manner that

affirmatively disparaged Appellant’s constitutional

right not to incriminate himself:

[Appellant] is attempting at every turn, by virtue of

how he acts, to minimize his risks. If you recall

during the course of the interview that he gave to the

police, his standard was “I don’t know what you’re

talking about” or “I ain’t got nothing to say.” In all

honesty, ladies and gentlemen, what he was saying

was this, “I’m not going to say anything that I killed

her because I’m going to make you prove it. I’m

going to make you go out and prove that I did it

because I, in light of the fact that I did the act of

killing, in order to reduce the risk of my high risk

crime of burglary and robbery, I’m not going to cop

out to it now.” And he, in essence, dared the police to

go out and prove him wrong.

See Combs v. Coyle, 205 F.3d 269, 282–283 (6th

Cir.2000) (collecting cases). The Sixth Circuit holds

that “the use of a defendant’s prearrest silence as

substantive evidence of guilt violates the Fifth

Amendment’s privilege against self-incrimination.” Id.

at 283.

I nonetheless concur in the majority’s conclusion that

Appellant’s allegations of error in this regard do not

justify our reversal of Appellant’s conviction. I note that,

in the trial court, Appellant objected to none of the

evidence that he now targets on appeal, and, because “it

may reasonably be inferred that appellant intentionally

failed to object for reasons of trial strategy,”38 these

unpreserved allegations *59 of “error” are, thus,

inappropriate subjects for our review on direct appeal.39

Fact patterns akin to the one presented here—where the

Commonwealth seeks to present statements obtained from

a defendant during what is arguably a custodial

interrogation, and there is an issue of whether the

defendant was informed of his Miranda rights prior to the

questioning—would usually alert a criminal defense

attorney that a suppression issue might exist. However,

based upon indications from the record in this

case—including: (1) Appellant’s defense counsel’s

opening statement, in which she emphasized that, despite

extensive questioning by professionals trained in

interrogation, Appellant did not confess to the murder; (2)

Appellant’s defense counsel’s cross-examination of

Detective Denham that resulted in the repetition of

Appellant’s brief protestations of his innocence; and (3)

defense’s closing argument that emphasized that

Appellant told the investigating officers “that he didn’t

kill her, Mrs. Williamson” and rationalized Appellant’s

failure to further confide in the officers as possibly the

result of Appellant’s distrust or Appellant’s belief that the

officers would not help him—I believe it is a

more-than-reasonable assumption that the failure to object

constituted reasonable trial strategy. After all, the small

amount of inculpatory information that Appellant gave

during the interviews was consistent with the overall

defense strategy of admitting to the property crime

offenses, but focusing the defense upon the relative dearth

of evidence as to the death eligible offense. By allowing

Furnish v. Com., 95 S.W.3d 34 (2002)

the Commonwealth to introduce evidence that Appellant

had denied any involvement in the murder, the defense

was able to “have its cake and eat it too” by enjoying the

benefit of a “no adverse inference” instruction while

simultaneously placing Appellant’s words before the jury

without subjecting Appellant to cross-examination and

impeachment with his prior felony convictions. I also

observe that pleadings associated with a motion in limine

filed by the Commonwealth that sought to prohibit the

defense from introducing evidence that Appellant told

family members and friends after he was arrested that he

had robbed, but not killed, the victim suggest that the

defense team had investigated other bases of making the

jury aware of Appellant’s out-of-court denials of his

involvement in the victim’s death, but concluded that the

hearsay rule stood in the way.

Ice v. Commonwealth, Ky., 667 S.W.2d 671, 674

(1984). See also Cosby v. Commonwealth, Ky., 776

S.W.2d 367, 369 (1989) (“Ice specifies only that

‘prejudicial error ’ must be reviewed regardless of

contemporaneous objection, and we hasten to reaffirm

that this means errors where there is no reasonable

justification or explanation for defense counsel’s failure

to object, tactical or otherwise ....”).

See Sanders v. Commonwealth, Ky., 801 S.W.2d 665,

668–9 n. 1 (1991) (“Generally, once a judgment has

become final, such issues constitute a collateral attack

on the judgment imposing sentence, and must be

presented to the trial court pursuant to RCr 11.42.”).

While it is possible that the failure to object was the result

of an oversight by counsel rather than trial strategy—and,

in fact, the ultimate resolution of that issue may require an

evidentiary hearing in a future proceeding—we need not

resolve that issue conclusively one way or another at this

stage. For the purposes of this Court’s review of

Appellant’s unpreserved allegation of error in a capital

case, the first “prong”40 of our inquiry is whether “there is

a reasonable justification or explanation for defense

counsel’s failure to object, e.g., whether the failure might

have been a legitimate trial tactic.”41 I believe from the

record in this case that Appellant’s *60 trial counsel may

very well have concluded that evidence of Appellant’s

terse declaration of his innocence would “do more good

than harm.” For that reason, I would not address the

merits of Appellant’s allegations of error concerning the

End of Document

interview statements.

See Perdue v. Commonwealth, Ky., 916 S.W.2d 148,

154 (1996).

Sanders v. Commonwealth, supra note 39 at 668

(emphasis added).

STUMBO, J., joins. JOHNSTONE, J., joins in part as to

Limitations on Voir Dire Examination.

WINTERSHEIMER, Justice, Concurring in Part and

Dissenting in Part.

I concur with so much of the opinion as affirms the

conviction. However, I must respectfully dissent from that

part of the opinion that remands this case to circuit court

for a new penalty phase. The circuit judge was correct in

denying the motion for an instruction on a sentence of life

without the benefit of probation or parole. The conclusion

by the trial judge that the old penalties, including a

sentence of death, were not clearly mitigated by the new

penalty provisions was proper. The directions of

Commonwealth v. Phon, Ky., 17 S.W.3d 106 (2000),

should not be applied automatically. The trial judge is the

key factor in the giving of jury instructions.

If any penalty, forfeiture or

punishment is mitigated by any

provision of the new law, such

provision may, by the consent of

the party affected, be applied to any

judgment pronounced after the new

law takes effect.

I would affirm the conviction and sentence in all respects.

All Citations

95 S.W.3d 34

Furnish v. Com., 95 S.W.3d 34 (2002)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.