Appendix — Gall v. Kentucky
Supreme Court brief1981
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IN THE SUPREME COURT OF THE UNITED STATE
OCTOBER TERM, 1980
EUGENE WILLIAM GALL, JR. | PETITIONER __ °
Suprema Court, U.S.
FILED
JAN 12 188)
vs.
MICHAEL RODAX, JR, CLERK
COMMONWEALTH OF KENTUCKY RESPONDENT
ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF KENTUCKY
APPENDIX
ERWIN W. LEWIS
Assistant Public Advocate
Office for Public Advocacy
State Office Building Annex
Frankfort, Kentucky £0601
(502) 564-7341
EDWARD C. MONAHAN
Assistant Public Advocate
Office for Public Advocacy
State Office Building Annex
Frankfort, Kentucky 40601
(502) 564-7341
January jar 1981
APPENDIX
TABLE OF CONTENTS
PAGE
Supreme Court of Kentucky Opinion................. 1-34
Order denying Petition for Rehearing
Ce Hee OIy CAO oooh. 5 Sait tnd nad deeigge owes 35-41
Mandate of Kentucky Supreme Court................. 42
Corrected Page of Kentucky Supreme
Ee Ns bias hd UES wine kk ky pale ok eed oo mesos 43
Wane Dime OF Bawid Corres ois... xcs oc vccouvecseccdan 44-59
Memorandum of Assistant Attorney General.......... 60-65
Motion of Commonwealth's Attorney
Ce See MI ad lates. «nade ckbes oud beta 66-67
Affidavit of Kentucky State Trooper............... 68
Affidavit of Commonwealth's EROS iv 6c visa eecks 69
NE Oe NP i ibn bv nn Fas oe es Eke eh cee, 70-72
,
ie
Rendered: September 2, 1980 °
To be published
Supreme Court of Kentucky
79-SC-29-MR
EUGENE WILLIAM GALL, JR. APPELLANT
V. APPEAL FROM BOONE CIRCUIT COURT
HONORABLE SAMUEL NEACE, JUDGE
NO. 78-CR-097
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT
AFFIRMING
Eugene W. Gall, Jr., was convicted of murder and sentenced to death
pursuant to the verdict of a jury under the two-stage ‘rial procedure
prescribed by KRS 532.025.: In this appeal he advances many alleged errors
and irregularities, contending that each and allof them require a reversal
of the judgment. We shall limit our discussion to those we do not consider
to be patently groundless.
FACTUAL BACKGROUND
At about 7:35 a.m. on April 5, 1978, Lisa Jansen, a 12-year-old
schoolgirl, left her home in suburban Cincinnati, Ohio, for school. She
was missed very shortly thereafter when she failed to arrive at the home of
a friend she had planned to meet on the way and it was ascertained that she
had not gone directly to school. At about 9:25 a.m. that morning Mrs. Connie
Puckett, while driving her automobile along Kentucky Highway 16 from Verona,
Kentucky, toward her home in Walton, Kentucky, noticed a red jacket lying
on the side of the highway near the intersection of Stephenson-Mill Road.
She stopped and retrieved it, thinking that probably it belonged to one of
the students attending the elementary school at Verona. She was positive
that the jacket had not been there when she passed the same place a few
minutes earlier on her way to Verona. Upon resuming her trip homeward she
observed an open schoolbook lying in the road, stopped and picked it up. It
bore the name of Lisa Jansen, and when Mrs. Puckett arrived back in Walton
she telephoned the school at Verona. ‘he school principal advised her that
no one by the name of Lisa Jansen was enrolled there, but later in the day
he called back and told Mrs. Puckett that a television newscast had reported
a Lisa Jansen as missing. Mrs. Puckett then reported her discovery of the
jacket and schoolbook to the Cincinnati police.
The distance from Lisa's home in Ohio to the Kentucky state line at
Cincinnati was 10.9 miles, and from the state line southward via Interstate 75
to the place near Stephenson-Mill Road where her body was found the next
morning is 22.6 miles. Gall resided at Hillsboro, Ohio, about 45 miles the
other side of the Jansen home.
At about 10:15 a.m. on April 5, 1978, a man later identified as the
appellant, Gall, entered a small grocery store at the crossroads village of
Gardnersville, 17 miles or so by public roads from the vicinity of
Stephenson-Mill Road (which consists of a ivop leading off and then back to
Highway 16), and robbed the storekeeper and her customers at the point of a
.357-gauge magnum stainless-steel revolver. The storekeeper, who was
familiar with this type of weapon, observed from the exposed portions of
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the magazine that it was loaded with hol low-point cartridges. As soon as
the robber left, she telephoned the local headquarters of the Kentucky
State Police and reported the incident. Within a matter of minutes Gall
was encountered by Detective Joe Whelan, who turned around and followed,
and then by Trooper Gary Carey, who had alighted from his cruiser and was
attempting to block the highway. As Carey signalled the driver to halt
Gall shot him once, got out of the Ford and shot him again, and then sped
onward with Whelan emptying his gun into the rear of the fleeing car. Almost
immediately other police officers took up thechase, and Gall was finally
brought to bay when he attempted to make a U-turn in the town of Dry Ridge
and one of the troopers rammed his cruiser into the Ford. The .357 revolver
was lying on the floor of the Ford. Also on the floorboard of the Ford
automobile the officer found a cigar box and $112.88, the money taken at the
store in Gardnersville. Gall had the further sum of $42.84 on his person.
Subsequent laboratory tests established that a bullet removed from Trooper Carey's
person had been fired from the revolver found in Gall's automobile.
Shortly following his arrest Gall, by reason of his police record,
became a suspect in connection with the disappearance of Lisa Jansen. In
1970 he had been charged with several counts of rape and armed robbery in
southern Ohio, had been found mentally incompetent to stand trial, and had
spent some 19 months in a mental institution at Lima, Ohio, after which he
entered a plea of guilty to those charges and spent five years in a state
penitentiary at Lebanon, Ohio. He was 31 years of age at the time of Lisa
Jansen's murder.
PRETRIAL PROCEEDINGS
Lisa's body was found early on the morning of April 6, 1978. Gall,
already under arrest, was charged with her murder and was indicted for
that offense by the Boone County grand jury on April 27, 1978. At his
arraignment on the same day, and following a plea of not guilty, the trial
court granted the Commonwealth's motion for permission to procure various
physical samples from Gall's person, including hair, saliva, fingerprints
and blood. Counsel for Gall objected only with respect to blood sample,
stating that he had no objection as to the hatr, saliva and fingerprints.
Thus we consider only the matter of the blood sample.
The Commonwealth's motion for permission to obtain these samples was
supported by affidavits of the prosecuting attorney and a detective of the
Kentucky State Police.
A divided court in Schmerber v. California, 384 U.S. 757 (1966), held
it permissible for a volice officer acting with probable cause under exigent
circumstances to have a blood sample taken by a physician from an arrested
drunk-driving suspect. The 5th Amendment protection against self-incrimination
was held inapplicable because the majority of the court did not consider a
surrender of blood as having testimonial import. 384 U.S. at p. 765. The
4th and 14th Amendment protection against unreasonable search and seizure
did apply, but was held not to have been violated. In the absence, however,
of exigent circumstances justifying immediate action without a warrant, the ‘>
court indicated that the same precautions would be required as in the instance
of a search warrant. That is, the justification must be determined by an
informed, detached and deliberate judicial act. 384 U.S. at p. 770.
In this instance the trial court had before it an indictment charging
Gall with the murder of Lisa Jansen and affidavits by the Commonwealth's
Attorney and a detective of the Kentucky State Police stating that the
physical samples were needed "for purposes of completing their investigation
into the rape and death of Lisa Jansen." It seems to us that the relevance
and importance of such evidence in a case involving rape are self-evident.
We therefore hold that the order granting permission to obtain it from Gall's
person was reasonable and was a valid basis for the subsequent admission of
testimony derived from its analysis. Cf. Thompkins v. State, Ind., 383 N.E.2d
347, 351 (1979).
Also on the day of the arraignment the trial court, by agreement of
the parties, appointed Dr. Robert Noelker, a psychologist, to examine Gall
for the purpose of determining (a) whether he was mentally competent to stand
trial and (b) whether at the time of the offense he had the mental capacity
to appreciate the criminality of his conduct and to conform his conduct to
the law. Contemporaneously the Commonwealth secured the services of
Dr. Lee Chutkow, a psychiatrist, for the same purpose. A hearing on the
first of these questions was held on May 26, 1978, following which the court
found Gall to be competent and set the case for trial on the merits.
On September 6, 1978, defense counsel moved for a change of venue on
the ground that by reason of local publicity Gall could not be given a fair
trial in Boone County or in any of the surrounding northern-Kentucky counties.
We have examined the affidavits, counteraffidavits and exhibits (numerous
newspaper articles) filed in connection with this motion and are of the
opinion that the trial court did not abuse its discretion in declining a
change of venue.
afin
Gall cites several U. S. Supreme Court cases in which state court
convictions were overturned because the "trial atmosphere . . . had been
utterly corrupted by press coverage." Cf. Murphy v. Florida, 421] U.S. 794,
798 (1975). In Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas,
318 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966), prejudice
was presumed from the circumstances under which the trials were held. "In
those cases the influence of the news media, either in the community at large
or in the courtroom itself, pervaded the proceedings.” Murphy, supra, at
421 U.S. 799. Here, there was no repeatedly-televised confession of the
accused as in Rideau, and no "circus atmosphere" or “courthouse given over
to accommodate the public appetite for carnival" as in Estes or Sheppard.
The juror-exposure to media accounts of Gall's prior convictions or of his
being charged with the murder of Lisa Jansen do not support a presumption
that he could not or did not have a fair trial in Boone County. Cf. Murphy,
supra, at 421 U.S. 799; Spirko v. Commonwealth, Ky., 480 S.W.2d 169, 171
(1972).
The constitutional standard of fairness required that Gall have "a
panel of impartial, ‘indifferent’ jurors." Irvin v. Dowd, 366 U.S. 717,
722 (1961). In Irvin, which was the United States Supreme Court's first
reversal of a state conviction owing to prejudicial pretrial publicity,
eight of the 12 jurors eventually selected thought the defendant guilty when
examined during voir dire. By contrast, none of the 14 jurors chosen to
hear Gall's case thought he was guilty when preliminarily questioned. Gall
thus fails to show “the actual existence of such an opinion in the mind of
the juror as will raise the presumption of partiality." Cf. Irvin, supra,
366 U.S. at p. 723.
In support of his contention that by reason of the pretrial publicity
a pattern of deep and bitter prejudice against him prevailed throughout the
community in which he was tried and convicted, Gall asserts that out of 5]
veniremen examined 17 were excluded for expressing the opinion-that he was
guilty. | The point is not persuasive. In Murphy v. Florida, 421 U.S. 794
(1975), holding that the petitioner had not been deprived of due process,
the court commented as follows:.
"In the present case, by contrast, 20 of the 78
persons questioned were excused because they indicated
an opinion as to petitioner's guilt. [fn] This may
indeed be 20 more than would occur in the trial of a
totally obscure person, but it by no means suggests a
community with sentiment so poisoned against petitioner
as to impeach the indifference of juror¢ who displayed
no animus of their own." Murphy, supra, at 421 U.S. 803.
Finally, in terms of this particular proceeding, the very fact that
in a capital case the court was able to complete a 14-member jury (including
two alternates) from only 51 veniremen utterly refutes the existence of such
community prejudice as would prevent the selection of a proper jury.
At a pretrial hearing on September 13, 1978, shortly prior to the
date set for the trial (September 19), the court again heard Dr. Noelker,
who testified that there had been no change with regard to Gall's mental
capacity and that he was still competent to participate in the proceeding.
JURY SELECTION
The case was called for trial on September 19, 1978, beginning with
the voir dire of prospective jurors, which continued through September 26, 1978.
le or the sake of accuracy, it does not necessarily follow that these
veniremen, because they had preconceived opinions, were of the opinion that
Gall was guilty. Our court, incidentally, indicates that 52 veniremen were
called, but one was excused on hardship grounds without being further
questioned.
a
The selection of 14 jurors (including two who were ultimately withdrawn upon
final submission of the case to the jury) was completed after 51 veniremen
had been examined on voir dire. All but two of the 51 expressed some degree
of familiarity with the case. Seventeen had formed opinions with respect to
Gall's guilt or innocence and were excused for that reason. Two were excused
because they would be unable to render a verdict of capital punishment, and
one because he could not say whether he would or would not be able to impose
the death penalty. One who had been examined and one whose name had not been
reached for voir dire were excused because they had violated the court's
admonition not to discuss the case. Six were ‘pen on peremptory challenge
by the Commonwealth and ten by the defense.
RCr 9.40 gives the Commonwealth six and the defense nine peremptory
challenges in a felony case in which an alternate juror or jurors are impaneled.
In this instance the trial court allowed each side one more. The Commonwealth
used six of its seven strikes and the defense exercised its entire 10.
It would not be possible for a fair-minded person to read the record of
this voir dire without being impressed by the earnest effort of the trial judge
to accomplish the selection of an unbiased jury. It is, in our opinion, quite
beyond question that Gall did in fact have as impartial a jury as could have
been found anywhere. Nevertheless, we cannot overlook the possibility that a
technicel error was committed in the exclusion of the prospective juror Correll
for the reason that he could not say whether he would or would not be able to
consider a verdict recommending the death penalty. Cf. Witherspoon v. Illinois,
391 U.S. 510 (1968); Davis v. Georgia, 429 U.S. 122 (1976); Adams v. Texas,
U.S. (1980).
After a series of questions put to Mr. Correll by the prosecuting
attorney had failed to elicit a definite answer as to whether his conscience
would permit him to "consider the death penalty as is required by law,"
the trial court asked him, and he answered, as follows:
Q “Would your feelings absolutely preclude you from
imposing a sentence of death under any circumstances,
any circumstances that you could think of?"
A "I just don't know, sir, whether it would or would
not, really."
The depth of Mr. Correll's irresotution was emphasized by his reply
to a later question by defense counsel, as follows:
Q "Mr. Correll, the court, in essence, is asking you if
there is any case where you would consider imposing the
death penalty. For instance, if Hitler were on trial here
today for killing all the Jews, you could consider imposing
the death penalty in that case couldn't you?"
A | would be undecided, sir. At this point.”
It occurs to us that if a prospective juror will not say whether he
can or cannot consider without prejudice the options from which he must
choose in arriving at a verdict, he should be disqualified. The very least
assurance to which the public is entitled is that he will exercise an honest
discretion in resolving each issue submitted to him. Yet the effect of such
equivocation is that on this important issue the juror will not give an
assurance that he is able to exercise any discretion because he is not sure
that his mind is open at the beginning. Surely it is elementary that a juror
must be able to enter upon his duties with an open mind. It would seem
beyond cavil that any court in the country would dismiss a prospective juror
who could not say whether he would or would not be able to consider a verdict
resulting in a prison sentence. The reason is that such a juror could not
be an impartial juror, and it occurs to us that fundamental justice
guarantees to the public impartial jurors in capital cases as well as in
less serious proceedings.
In Adams, supra, a statute required prospective jurors in a capital
case to state under oath “that the mandatory penalty of death or imprisonment
for life will not affect his deliberations on any issue of fact." The trial
judge excused a number of prospective jurors who were unable or unwilling to
take the oath. Some were excused because they admitted they would be
"affected" by the possibility of the death penalty and others "because they
were unable positively to state whether or not their deliberations would in
any way be ‘affected.'" This was held to be a violation of Witherspoon.
Under the Texas statutes applicable in Adams the jury first determined
guilt or innocence and then, after a finding of guilt in a capital degree
and a further hearing on aggravating and mitigating circumstances, answered
three questions. If all three were answered in the affirmative, the trial
judge was required to impose a sentence of death, otherwise a sentence of
life imprisonment. Our statutes also provide for a bifurcated trial in which
the jury first determines guilt and, after a finding of guilt, hears evidence
bearing upon aggravating and mitigating factors. If it finds the existence
of one or more aggravating circumstances as specified in KRS 532.025(2)(a),
it is authorized to recommend the death penalty, but the trial court is not
bound to impose it.
The trial court cannot sentence a defendant to death unless the jury,
by a unanimous verdict, has found beyond a reasonable doubt the existence
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of one or more of the aggravating circumstances listed in KRS 532.025(2)(a).
KRS 532.035(3). There being no requirement that the trial judge abide by
the jury's recommendation, once the jury has found an aggravating circum-
stance the trial judge has the discretion either to sentence the defendant
to death, or to life imprisonment, or to a term of not less than 20 years in
prison. KRS 532.930, 532.035.
So it may be seen that the jury's function with regard to the ultimate
sentence is more limited here than it was under the Texas statute in Adams.
Nevertheless, its determination that an aggravating circumstance existed is
a sine qua non, and its recommendation of the death sentence, though not
binding on the trial judge, obviously carries great weight. Hence we do not
see any significant difference between our statutes and those of Texas insofar
as the applicability of Adams may be concerned. There is, however, a disposi-
tive distinction, we feel, between a prospective juror who admits he may be
affected by the death penalty, or does not know whether he would or would
not, and one who is unable to say even that he can consider that option.
It is our opinion, therefore, that Adams does not apply to this case, and
that Witherspoon does not require the acceptance of a juror who jis unable to
say that he can exercise an open-minded discretion with regard to the vital
issues he will be called upon to decide. Cf. State v. Ross, La., 343 So. 2d
722, 726-7 (1977).
It will be recalled that the Commonwealth left one of its
peremptory challenges unexercised. Surely, had the trial court denied its
motion to strike Correll for cause, it would have used that challenge. Under
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similar circumstances the Supreme Court of Georgia held possible Witherspoon
errors to have been harmless. Alderman v. State, Ga., 246 S.E. 2d 642 (1978).
See also State v. George, La., 346 So. 2d 694 (1977). We reach the same
conclusion in this case.
TRIAL PROCEEDING - GUILT PHASE
During the course of the voir dire Gall made it known to the trial
court that he wished to participate in the conduct of his defense, but without
giving up the assistance of his appointed counsel. The court acceded, and
Gall thereafter questioned various witnesses, ‘made motions, interjected
objections, and entered into discussions between court and counsel at the
bench. At the time Gall initiated this development Dr. Noelker, who evident-
ly maintained a fairly continuous observation of his conduct throughout the
course of the trial, advised the trial court that Gall was getting pretty
Close to being incompetent, in that his desire to act the part of an attorney
might very well be the result of underlying delusional patterns typical of
paranoia. He believed, however, that Gall had not yet reached the point of
incompetency to participate rationally in his defense, and there was no
further question on that issue until the second day of the trial, at which
time defense counsel moved for a continuance on the ground that Gall had
become incompetent to stand trial. Dr. Noelker, called in support, testified
in chambers that Gall had now transcended the bounds of reality, that although
he continued to be competent in all other respects, “in my opinion he has
disassociated himself from this trial and he is participating in it much more
as the attorney than the defendant."
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A major factor conducing to Dr. Noelker's conclusion in this respect
was that Gall did not have much faith in the defense of insanity, preferring
rather to cast his main defense along the lines of reasonable doubt .* He had
some theories, apparently, that to Dr. Noelker and his counsel were bizarre.
At this time both court and counsel interrogated Gall very closely in
chambers , and the court arranged to have him examined that evening by a
psychiatrist, Dr. Kenna‘h Lanter, following which Dr. Lanter appeared in
chambers and testified that in his opinion Gall was mentally competent to
participate in his defense and quite capable af making intelligent decisions
in so doing.® Being convinced, both on the basis of his own observation and
the opinion of Dr. Lanter, that Gall was not incompetent to participate in his
defense, the trial judge denied counsel's motion for a continuance.
Thus far we do not perceive any failure by the trial court to protect
the defendant from a possible inability, by reason of mental incompetence,
to stand trial. RCr 8.06 provides that if at any time in the course of
criminal proceedings there appear reasonable grounds to believe the defendant
is insane, “the proceedings shall be postponed and the issue of irsanity
determined as provided by law." In their brief on this appeal, counsel for
Gall contend that an incident which occurred during Gall's cross-examination
of Detective Charles Seay constituted reasonable grounds to believe that Gall
2 Gall's theory was that the defense of insanity assumes commission of the
criminal act, which he did not want to admit. He may not have been so dumb,
much less insane.
311 lustrating his aptitude in this respect, during this inquiry into his
competence Gall moved the court that he and the jurors be conducted to the
scene of the crime in order that he might become acquainted with it. The
motion was granted, thus enabling Gall to exploit his knowledge of details
he would have had no reason to know unless he had visited the scene.
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had indeed lost his senses and that the trial court of its own volition
should have stopped the trial and conducted another sanity hearing.
Seay was the police officer who found the little girl's body on
the morning of April 6, 1978. It so happened that he lived in the neighbor-
hood and was familiar witn the scene of the crime. When he testified, the
details of the Gardnersville episode and the recovery of Gall's .357-caliber
revolver had been described by other witnesses. It had also been revealed
by the prosecuting attorney in his opening statement to the jury that Lisa
Jansen had been shot twice, once through the head and once in the back, and
that expert examiners had determined from the steel jacket of the bullet
fired into her back that the shot had been fired from the weapon found in
the automobile Gall was driving at the time of his arrest. On cross-examination
Gall elicited from Officer Seay that he also carried a .357-caliber magnum
revolver which was capable of firing the same type of ammunition as had been
found in Gall's automobile. Then, Seay having also admitted that when he
discovered Lisa's body his suspicions had already centered on Gall, Gall ended
the cross-examination in this melodramatic fashion:
"Okay, now you have testified today that the difference
between a .38-caliber bullet and a .357 bullet, as far as
the .357 would be, would have more penetrating power.
Detective Seay, it took you ten minutes from 8:32 to 8:42 to
locate the body of Lisa Jansen down a deserted road, heavily
used by - as a lover's lane. I charge you with shooting
that second shot through Smith & Wesson Revolver .357 using
a .38-caliber bullet to put that second one in to use as
evidence. No further questions, Your Honor.”
Considering what the public has become accustomed to seeing on tele-
vision nowadays, we do not think this ploy by Gall, in an attempt to lay a
seed of doubt in the mind of some one or more of the jurors, was so out-
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landish* as to raise a question of his mental competence. Even if Gall's
attorneys had so moved, which they did not, this episode did not require
the trial court to conduct another hearing on the issue of his sanity.
We turn now to the remaining questions relating to the admissibility
of evidence, having previously disposed of the matter of the blood-sample.
Gall contends very strongly that the evidence of the Gardnersville
incident should not have been admitted because it involved another crime
and was not necessary in proving the rape and murder of Lisa Jansen. The
Commonwealth sought to uphold the admissibility of this evidence on the
ground that it supported an inference that Gal] needed money to fund an
escape. It is unnecessary to resort to such a chimerical theory. It is a
settled principle that competent, relevant testimony will not be excluded
on the mere ground that it reveals, to the defendant's obvious prejudice, an
unrelated crime or crimes. The subject was thoroughly discussed in Jones
v. Commonwealth, Ky., 554 S.W. 2d 363, 366-368 (1977), which is dispositive
of the issue in this case. The Gardnersville escapade provided several
important items of evidence connecting Gall with the Jansen murder. It put
him in the same neighborhood in the same morning. It turned up, in Gall's
possession, the murder weapon. The bullet removed from the wounded police
officer and the stee] jacket removed from Lisa's body were fired from the
same gun, which would have served to identify the man who shot Trooper Carey
as being also the murderer of Lisa even if the weapon itself had not been
4 It was not established until later in the trial, when the pathologist who
had autopsied the body testified, that the two gunshot wounds had been
inflicted “within essentially the same time frame." Neither, however, before
that time had there been any revelation that the shot in the back had been
the "second shot," as Gall so accurately identified it.
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recovered. Moreover, Gall's apparent sangfroid during the robbery was
relevant to the issue of possible emotional disturbance on his part. The
argument that this series of events should not have been admitted in
evidence is absurd. So is the point that its salient essentials were not
in “actual dispute." Whether Gall was the murderer certainly was in actual
dispute, and the Commonwealth was entitled to introduce whatever evidence
was available to sustain its burden of proving the identity of the guilty
party. There was no error in the admission of the entire Gardnersville
episode. i
The only other contentions worthy of mention with respect to the
propriety of evidence admitted by the trial court relate to photographs
and to the testimony of Joan Woods. Neither, in our opinion, raises a
serious question.
The objectionable photographs consisted of color slides introduced
in connection with the testimony of the clinical pathologist who had conduct-
ed the post-mortem examination of Lisa's body. We have examined them and do
not find them so gruesome or prejudicial as to outweigh their probative
value as a part of the doctor's description of what he had found. In recent
years this court has followed a rather liberal policy with respect to the
admissibility of photographs that are otherwise relevant. See Moore v.
Commonwealth, Ky., 489 S.W. 2d 516, 518 (1973); Napier v. Commonwealth, Ky.,
426 S.W. 2d 121 (1968); Salisbury v. Commonwealth, Ky., 417 S.W. 2d 244
(1967). It is no answer to say that defense counsel offered to stipulate
the essential facts proved by the pathologist and illustrated by the photo-
graphs, hence they were unnecessary. The Commonwealth has a right to prove
its case to the jury even when the defendant pleads guilty. The defendant
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is not entitled to erase the ugly parts of the picture and substitute words
in their place. If it were otherwise, by the simple stratagem of stipulating
that deceased person was a female Gall could have concealed from the jury's
knowledge the fact that the victim was a little girl. In order for a jury
to be able to size up a case fairly and wisely it must be allowed to gain a
reasonable perspective, and that can best be done by permitting it to see an
unadulterated picture. We are of the opinion that the photographs here in
question were admissible.
Joan Woods, age 12, was the friend who was waiting to go to school
with Lisa Jansen when Lisa disappeared, and was called as one of the first
witnesses establishing the the chronology of events. Apparently she was
emotionally upset and had been crying when she took the witness stand. Defense
counsel objected to her appearance as a witness on the ground that she was
simply being used to “upset the jury," and he offered to stipulate "that she
didn't see Lisa that morning." When she described her relationship to Lisa as
her "best friend" she began to cry again, whereupon the prosecuting attorney
held her hand in order to help restore her self-control. She was able to
complete her brief appearance as a witness without further incident.
We agree that Joan's testimony was not vital. It was relevant, because
it proved the time of Lisa's disappearance, but it was merely cumulative of
testimony already given by Lisa's mother. The prosecuting attorney might
better have chosen discretion above valor, but we do not view it as an abuse
of discretion on the part of the trial court to let the little girl testify.
Nor do we apprehend that the grown men and women who comprised the jury could
have been so light-headed as to be seriously affected in their ultimate delibe-
rations by this little vignette of girlish hysteria.
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Gel] makes several contentions with regard to the court's instructions
to the jury. First he says that the court should have given a peremptory
instruction of acquittal on the ground that as a matter of law the evidence
established his insanity at the time of the offense. What this argument
overlooks, however, is that there was substantial and competent expert testi-
mony to the contrary. Even if Dr. Noelker's testimony were accepted at face
value, he conceded that there were periods of remission in which Gall could
function in a legally sane manner. Gall himself did not take the stand, and
there was no eyewitness testimony showing the circumstances immediately
attending the rape and murder. On the particular issue of insanity Gall had
the burden of proof, and we certainly cannot hold that the controverted post-
factum opinions of his experts were so compelling that reasonable minds could
not fairly differ.
Gall presents two arguments on the subject of extreme emotional
disturbance. The first is that the Commonwealth did not produce any evidence
that he did not act under the influence of extreme emotional disturbance,
hence the evidence was not sufficient to support the trial court's instruction
on murder. The second is that the “extreme emotional disturbance" phase of
the murder instruction was fatally deficient in omitting the words, “the
reasonableness of which is to be determined from the standpoint of a person
in the defendant's situation under the circumstances as the defendant believed
them to be." Cf. KRS 507.020(1)(a).
Under the law of this state prior to adoption of the Kentucky Penal
Code, effective January 1, 1975, a homicide that would otherwise have con-
-18-
A-18
stituted wilful murder was classified as the lesser degree of voluntary
manslaughter if it occurred in a sudden affray or in sudden heat of passion
and upon such provocation "as would have naturally overcome and suspended
the self-control of a man of fair, ordinary and average disposition or will
power or cause such a one to act rashly or without due deliberation or
reflection." Tarrence v. Commonwealth, Ky., 265 S.W. 2d 40, 51 (1954).
Voluntary manslaughter has been replaced in the Penal Code by man-
slaughter in the first degree, which is defined in KRS 507.030. In lieu of
sudden affray or sudden heat of passion upon reasonable provocation, the
mitigating circumstance now reducing the crime from murder to manslaughter
is that the defendant "acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a person
in the defendant's situation under the circumstances as the defendant believed
them to be." KRS 507.030(1)(b).
According to the Commentary prepared by the drafter of this portion
of the Penal Code, "The most significant change brought about by subsection
(1)(b) is an abandonment of the common law requirement that the killing occur
in ‘sudden heat of passion' upon ‘adequate provocation.’ Adopted in its
place is the requirement that the homicide be committed ‘under the influence
of extreme emotional disturbance for which there was a reasonable explanation
or excuse. ' Under this standard, which was borrowed from the Model Penal
Code, mitigation is not restricted to circumstances which would constitute
provocation ‘in the ordinary meaning of the term, i.e., an injury, injustice
-19-
A-19
or affront perpetrated by the deceased upon the actor.' ... In other
words, it is possible for any event, or even words, to arouse extreme
mental or emotiona?. disturbance, as that phrase is used here." (Emphasis
added. )
"A second significant change . . . is the addition of a subjective
element to the test used for determining the mitigation issue. The test
set forth is an objective one: Is there a ‘reasonable explanation or excuse’
for the mental or emotional disturbance? But, in making that determination,
the triers of fact are required to place themselves in the actor's position
as he believed it to be at the time of his act. This is intended to replace
the common law requirement that the provocation must be of a nature calculated
to inflame the passions of the ordinary reasonable man." KRS 507.030,
Commentary (1974).
Although the substantive factors reducing murder to manslaughter
are thus made different by the new statute, the procedural aspects remain
unchanged. The Commonwealth still has the burden of proof, but in order to
justify an instruction on the lower degree there must be something in the
evidence sufficient to raise a reasonable doubt whether the defendant is
guilty of murder or manslaughter. "Evidence suggesting that a defendant
was guvlty of a lesser offense is, in fact and in principle, a defense against
the higher charge, though it is not a ‘defense’ within the technical meaning
of the Kentucky Penal Code, cf. KRS 500.070." Brown v. Commonwealth, Ky.,
555 S.W. 2d 252, 257 (1977).
An instruction on voluntary manslaughter is proper "only in those
-20-
A-20
instances where there is evidence that will support the giving of the
instruction." Elmore v. Commonwealth, Ky., 520 S.W. 2d 328, 331 (1975).
"We have adopted the rule that where the evidence is wholly circumstantial
and the facts lead inescapably to the conclusion that the crime, whoever
committed it, was murder, there being no evidence of a struggle or other
unusual circumstances from which the jury might infer a lesser degree of the
crime, the accused is not entitled either to a manslaughter or self-defense
instruction." Brown v. Commonwealth, Ky., 275 S.W. 2d 928, 933 (1955). That
was the law prior to the Penal Code, and it continues to be the law under
the Penal Code. An 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 a reasonable doubt in that respect. Cf. Brown
v. Commonwealth, Ky., 555 S.W. 2d 252, 257 (1977).
In this case there was no eyewitness evidence of the killing, and
the defendant himself did not testify. Assuming that he was the guilty party,
as the jury found him to be, there is not a shred of evidence to suggest that
he was acting under the influence of an emotional disturbance, or that there
were any circumstances existing at the time of the killing to provoke or
stimulate such a disturbance, except for the evidence that he suffered from
a mental illness from which the jury could have féund, but did not find, that
he was insane.’ The nature of that illness was chronic paranoid schizophrenia,
which was characterized not only as “an extreme emotional disturbance,” but
"the most severe personality disorder that we are able to diagnose."
-21-
There is much to be said for the proposition that an emotional
disturbance inhering in a mental illness is not the kind of an emotional
disturbance contemplated by the statute, in view of its historical develop-
ment and the expression in the Commentary to the effect that it may be
aroused by "any event, or even words," as quoted above. Assuming, however,
that a mental disorder, whether or not it amounts to legal insanity, may con-
stitute a reasonable "explanation or excuse" for extreme emotional disturbance,
it was incumbent upon the trial court to require the negating of that factor
in its instruction on murder, which was done. - That is not to say that once
the issue is raised (by evidence sufficient to ground a reasonable doubt)
the Commonwealth must meet it with countervailing evidence. Unless the
evidence raising the issue is of such probative force that otherwise the
defendant would be entitled to a directed verdict of acquittal, the prosecution
is not required to come forth with negating evidence in order to sustain its
burden of proof. Cf. Brown v. Commonwealth, Ky., 555 S.W. 2d 252, 257, fn. 6
(1977). Otherwise it would never be possible to convict a defendant of murder
if there were no eyewitnesses and if, for example, he testifies that he acted
in self-defense, or was intoxicated out of his mind, or was acting under the
influence of extreme emotional disturbance.”
While it is true that the “extreme emotional disturbance" phase of
the murder instruction did not include the additional statutory language,
“the reasonableness of which is to be determined from the standpoint of a
Son all of these issues, when raised by the evidence, the Commonwealth
has the burden of proof beyond a reasonable doubt.
=22-
person in the defendant's circumstances as the defendant believed them to
be," we are of the opinion that the omission was proper. Obviously that
particular language is appropriate only when there is evicence suggesting
that the emotional disturbance was precipitated by some event or circumstance
the defendant believed to exist. In this case there was no evidence to
suggest that the appellant's motivation involved any "belief" on his part
with regard to the circumstances that induced the alleged emotional disturb-
ance. Ratliff v. Commonwealth, Ky., 567 S.W. 2d 307 (1978), is factually
distinguishable in this particular respect.
Although the form of the instruction given by the trial court on
first-degree manslaughter (based on extreme emotional disturbance) does net
conform to this court's conception of proper instructions in that respect
(see, e.g., Palmore and Lawson, Kentucky Instructions to Juries, Sec. 2.01,
Instructions 2 and 5,and Sec. 2.02, Instructions 2 and 3), it was given
exactly as offered by defense counsel, and it did provide a vehicle by which
the jury could have found Gall guilty of a lesser offense than murder if it
had been so disposed. So, even though we are not entirely convinced that
Gall was entitled to any instruction whatever based on the mitigating theory
of emotional disturbance, we are of the opinion that under the circumstances
of the case there was no substantial error in the manner in which it was
submitted to the jury.
Instruction No. 3 presented the defense of insanity, and was in
correct form except for its use of the words, “by a preponderance of the
evidence" in lieu of "from the evidence." Again, this portion of the instruc-
tion was given exactly as requested by Gall. Now, as a result, we find his
«29
appellate counsel crying out that "preponderance of the evidence” should
have been defined. This court disapproves the use of that terminology.
"From the evidence" is sufficient in all civil cases, and with the
qualifying phrase “beyond a reasonable doubt" it is sufficient
in a criminal case. We would not for that reason, however, reverse this
judgment. There is no reason to suppose or suspect that the jurors were
ignorant bumpkins.
Instruction No. 4 paraphrased that portion of RCr 9.56 referring to
reasonable doubt as to degree, but did not specify which of the two offenses
6 No doubt any
covered by the preceding instructions was the higher degree.
juror with common sense would be able to figure that out for himself, but
here again we encounter a claim of prejudice that could easily have been avoid-
ed. A careful instruction on the matter of degree should clarify the relation-
ship between the murder and first-degree manslaughter instructions by stating
in substance that if the jury believes beyond a reasonable doubt that the
defendant would be guilty under the murder instruction except for its having
a reasonable doubt as to whether he was acting under the influence of extreme
emotional disturbance, it shall not find him guilty of murder, but shall find
him guilty of first-degree manslaughter. See e.g., Palmore and Lawson, Kentucky
Instructions to Juries, Sec. 2.01, Instruction 5,and Sec. 2.02, Instruction 3.
Though a better instruction on doubt as to degree could have been given,
instruction No. 4 did meet the requirements of RCr 9.56 in that particular
respect and was not prejudicially erroneous.
SNeither did the instruction offered by counsel for Gall.
-24-
Gall's appellate counsel complain also that the trial court did
not define the term "reasonable doubt" and did not instruct the jury in so
many words that the Commonwealth bore the burden of proof. There was no
error in either respect. The subject was discussed in. Whorton v. Common-
wealth, Ky., 570 S.W. 2d 627, 631-632 (1978), and there have been no
authoritative decisions since that time to suggest either that "reasonable
doubt" must be defined or that specific reference should be made to the
burden of proof.
Several points are made with regard to the alleged misconduct of the
prosecuting attorney. It is said, for example, that he invaded Gall's right
to a fair trial by belittling his defense of insanity and by misportraying
various items of evidence in his concluding remarks to the jury. To be
mercifully brief, we do not find in this record any conduct by the prosecuting
attorney that could be said to have been inconsistent with Gall's right to a
fair trial.
Another argument is that by informing the prospective jurors during voir
dire that the Commonwealth would not introduce any confession the prosecuting
attorney was in effect commenting wrongfully on Gall's silence. We do not
draw such an inference. There is nothing particularly wrong in advising
the jurors that the prosecution will rely on circumstantial evidence.
When he was arrested at the end of the Gardnersville incident Gall
made several statements with respect to the weapon he had in his possession,
the number of shots he had fired at Trooper Carey, and the reason he had
fired them. During direct examination of the officer to whom these statements
had been made the prosecuting attorney asked if he had tried to talk to Gall
~25-
at greater length "about other matters," to which the witness replied,
"Yes, but he wouldn't talk." "In other words, that is all he would say?”
"That is all he said." We do not construe this exchange as an attempt to
comment on Galls's silence, nor do we think that it was likely to draw the
jury's attention to Gall's silence.’
During voir dire one of the prospective jurors (a Mrs. Koenig,
upon whom the defense later exercised one of its peremptory challenges),
under interrogation by defense counsel, said that she could acquit Gall on
the ground of insanity "if he was taken care of ... if he were taken out
of society." Counsel thereupon attempted to inform Mrs. Koenig that in the
event of an acquittal on the basis of insanity certain civil commitment pro-
cedures are available, but upon objection by the prosecuting attorney the
court would not permit him to continue. No further effort was made during
the proceedings to enlighten the jury in this respect. Citing the fact that
this court has held it permissible for the prosecutor to point out in his
closing argument that in the event of an acquittal on grounds of insanity
there is no assurance that the defendant will not soon be at large again,
Jewell v. Commonwealth, Ky., 549 S.W. 2d 807, 812 (1977), but has held also
that the defendant is not entitled to an instruction advising the jury that
in the event of hs being found not guilty by reason of insanity he can be
committed, Edwards v. Commonwealth, Ky., 554 S.W. 2d 380, 383-384 (1977),
Gall argues that we have created a legal monstrosity which deprives the
Tit was later developed through the testimony of Dr. Noelker and the
psychiatrists that Gall claimed to have no recollection of being in
northern Kentucky on the morning in question.
-26-
defendant of due process. It should be undcvstood, however, that Edwards
does not prohibit defense counsel from reminding the jury that if the
defendant is acquitted on the grounds of insanity at the time of the
offense, and if he lapses into that condition again, there are legal means to
bring about his commitment, because that is the simple truth. But it cannot
be truthfully said that he will be committed, because if he is sane enough
to be participating in the trial there is very little likelihood of his
being validly found insane immediately thereafter. The most that defense
counsel can say, and we have never held that he cannot say it, is that if
after the defendant is acquitted there appear reasonable grounds to believe
he is insane and ought to be committed to an institution, he can be tried in
a civil commitment proceeding. We adhere, however, to the view that the
prospects of what may or can happen after the verdict do not belong in the
instructions given by the court to the jury. There is no sensible due process
question in this respect.
TRIAL PROCEEDINGS - PENALTY PHASE
In the second phase of the trial, after the jury had found Gall
guilty of murder, the Commonwealth introduced no further evidence except
for a synopsis of his previous felony convictions, which was admitted by
stipulation. The prosecuting attorney informed the jury in a brief opening
statement that the only statutory aggravating circumstance on which it would
~27J~
rely® was that the murder had been committed in the course of rape and
that the evidence in that respect had been sufficiently developed in the
guilt phase of the trial.
The defense introduced Gal!'s mother, father, and divorced wife,
all of whom testified in considerable detail about his personal history.
_ Dr. Noelker appeared again and testified that probably Gall could function
reasonably well in a structured prison environment. In addition, affidavits
of two other persons who had been subpoenaed but could not appear? were
read into evidence. One was that of a university professor in the field of
sociology and correctional psychology who hav specialized in criminology
and capital punishment. He said, in substance, citing text materials in
support, that capital punishment is not a deterrent to crime and that other
methods of dealing with convicted criminals have proved to be of greater
value to society. The other absent witness was a retired investigative news
Sone of the aggravating circumstances enumerated in KRS 532.035(2)(a) was
that “the offense of murder was committed by a person who has a substantial
history of serious assaultive criminal convictions." This was not submitted
to the jury, however, because the trial court was persuaded that it was
unconstitutionally vague, as the Georgia court had decided in Arnold v. State,
236 Ga. 534, 224 S.E.2d 386, 391-392 (1976). The stipulated synopsis of
prior felony convictions was relevant only because one of the mitigating
circumstances listed by KRS 532.025(2)(b) was, "The defendant has no signifi-
cant history of prior criminal activity." Only by proving the criminal history
of a defendant could the Commonwealth preclude defendant's reliance upon this
particular mitigating circumstance.
the third absent witness was an Ohio attorney who had represented Gall in
1970. Counsel did not offer in evidence the affidavit showing what his testi-
would have been. At the beginning of the sentencing phase of the trial
Gall moved for a continuance by reason of the absence of these witnesses, and
on this appeal he contends that the denial of a continuance was a prejudicial
error. We do not think so.
-28-
A-28
reporter and writer who had personally witnessed 22 executions by electro-
cutions between 1933 and 1957. His affidavit consisted of graphic descriptions
illustrating the gruesome nature of the process.
In its instructions the trial court confined the consideration of
aggravating circumstances to whether the murder was committed in the course
of rape, but allowed the jury to consider four specific mitigating circum-
stances for which there was some semblance of evidentiary basis and a fifth
or catch-all category “whether or not there are other mitigating circumstances
presented through the evidence, not listed above." The instructions made it
clear that the jury could not recommend the death penalty unless by unanimous
verdict it found beyond a reasonable doubt that the aggravating circumstance
existed, but that even in that event, and even though it might believe the
aggravating circumstance outweighed such mitigating circumstances it might find
to exist, it still did not have to recommend the death penalty.
The jury retired to deliberate at 4:47 p.m. At 5:05 p.m. it submitted
a question to the court on the subject of parole or pardon and was advised that
the court could not enlighten it beyond what was saneatenea in the written in-
structions. At 7:23 p.m. the jury returned a verdict finding that Gall had
committed the offense of murder while engaged in the commission of rape 10 and
that none of the mitigating circumstances set forth in the instructions existed,
and recommending the death penalty. Four days later the trial court entered
judgment accordingly, from which this appeal followed.
10 We construe the statutory language of KRS 532.025(2)(a) pertaining to rape
as meaning that the murder was committed incident to a rape, as distinguished
from its having been committed during the physical act of sexual intercourse.
<29-
yy? - Eel econ) “ett” Wom . Ja ‘ A-279 a. , a
Whereas the jury found no mitigating circumstances, Gall contends
that two such circumstances existed as a matter of law and that the jury
should have been so directed. These two circumstances, both statutory,
are (1) the offense was committed under extreme mental or emotional dis-
turbance even though not sufficiently so to constitute a defense, and (2)
at the time of the offense the defendant's mental capacity was impaired
by disease or defect even though not sufficiently to constitute a defense.
Again, as we have observed earlier in this opinion, there was a sharp con-
flict in the evidence as to whether Gall was tmsane at all, and there was
no evidence whatever to suggest extreme emotional disturbance unless he
was in fact insane. Whatever may be our personal viewpoints with regard
to his mental condition, we are not permitted to substitute them for what
the jury found under substantial conflicting evidence. If the jury was not
compelled, as the trier of facts, to find Gall insane, certainly it was not
compelled to find any emotional disturbance, nor can we say it was bound to
find a quasi or diminished degree of either.
It is further argued that in view of both the expert testimony and
Gall's history of mental illness,and with such other resources as may have
been available after the verdict, the trial court should have exercised its
discretion to inflict a lesser sentence than death. Though counsel alludes
to the analogy of Pontius Pilate, it must be remembered that Gall was not
tried by a rabble. We cannot say that the trial court abused its discretion
in this respect.
Perhaps the real problem lies in the very nature of the defense of
insanity. It may be too much to ask of any set of men or women to make a
dispassionate assessment of a criminal defendant's mental condition,
-30-
. ‘
2 wih b> . @at sz + os
especially in the setting of a revolting offense he has committed. Some
of our sister states have endeavored to meet the problem by authorizing a
verdict of "guilty but mentally i11" (short of legal “insanity") under
which the sentence is no. affected but the defendant while serving it may
be confined as l0..g as may be necessary in a mental institution. We
n Under the law as we
commend that approach to our own General Assembly.
now have it, however, it is the responsibility and province of the trial
jury to make a black-or-white determination of insanity, and it is the
prerogative of the legislative representative of the people to have it so.
Gall contends that for several different reasons our statutes
authorizing the death penalty are unconstitutional, under both the federal
and state constitutions. The existence of "capital" offenses is recognized
in the Sth Amendment of the United States Constitution and in Sec. 16 of
the Constitution of Kentucky. While there are a good many judicial
pragmatists in this country who evidently feel no compunction in amending
the federal constitution to suit their own notions of justice, we continue
to believe that such authority belongs only to the people. The fight over
capital punishment belongs in the political arena, where the will of the
public can best be ascertained and expressed. It should not be resolved by
judicial policy or by the exercise of raw judicial power. in our opinion it
is not a constitutional issue and we do not find it unconstitutional.
One last contention is that the trial court failed to comply with the
presentencing procedure required by KRS 532.050, an argument that is refuted
VW
Cf. Mich. Comp. Laws Ann., Sec. 768.36; Indiana Code 35-5-2, 6, eff.
9-1-80.
=3}~
pe Ox) Oe ;
on the face of the statute, which applies only to conviction for a felony
“other than a capital offense.”
REVIEW OF SENTENCE
KRS 532.075 requires this court to review any death sentence and to
consider the punishment as well as any errors raised on appeal. For its
- assistance in this regard KRS 532.075 (6) directs it to compile the re-
cords of "all felony offenses in which the death penalty was imposed after
January 1, 1970, or such earlier date as the court may deem appropriate."
The list of the cases considered pursuant to that directive is attached as
an appendix to this opinion. !2
The Public Advocate of the state, whose office represents Gall on this
appeal, has kept up an incessant drumbeat contending that he is constitutionally
entitled, incident to the appeal of each death sentence, to have access to
the materials compiled for this court pursuant to KRS 532.075 (6). We took
great pains to answer that contention in Ex parte Farley, Ky., 570 SW 2d 617
(1978). See also Ross v. State, Ga., 211 SE 2d 356, 359-360 (1974).
There have been no legal executions in Kentucky since 1962, and in
every instance in which a death penalty has come before this court since
January 1, 1970, either the conviction has been set aside on grounds of
error or the sentence has been reduced to life imprisonment because the
statute was found to be invalid, usually under Furman v. Georgia, 408 U.S.
238 (1972). Gall is the 17th person who has appealed a death sentence to
this court since the beginning of 1970. We have made a comparative study of
his sentence with reference to the other 16. Consideri ig both the nature of
Ve Among the many points raised in Gall's voluminous brief is the
suggestion that the statutory imposition of these procedures invades the
judicial rule-making power. It may be so, but as a matter of comity we have no
objection to complying with them.
-32-
the crime and the defendant, Gall's sentence is not excessive or disproportionate
to the penalty imposed in similar cases. The evidence supports the jury's find-
ing of an aggravating circumstance as defined by KRS 532.025 (2)(a) 2, and the
sentence does not appear to have been imposed under the influence of passion,
prejudice, or any other arbitrary factor.
The judgment is affirmed.
Palmore, C.J., and Aker, Clayton, Lukowsky, Stephenson and Sternberg, JJ.,
sitting. All concur. Stephens, J., having participated in the proceeding in
his capacity as Attorney-General, did not take part in the consideration or
disposition of the appeal. .
APPENDIX
Name of Case ' Date of offense
Scott v. Commonwealth, Ky., 495 SW 2d 800 (1973) 6-30-69
Leigh v. Commonwealth, Ky., 481 SW 2d 75 (1972) 10-25-69
Lenston and Scott v. Commonwealth, Ky., 497 SW 2d 561 (1973) 12-30-69
Call v. Commonwealth, Ky., 482 SW 2d 770 (1972) 32-70
Caldwell v. Commonwealth, Ky., 503 SW 2d 485(1972) 4-18-70
Tinsley and Tinsley v. Commonwealth, Ky., 495 SW 2d 776(1973) 5-2-70
Galbreath v. Commonwealth, Ky., 492 SW 2d 882 (1973) 5-8-71
Caine and McIntosh v. Commonwealth, Ky., 491 SW 2d 824(1973) 9-13-71
Hudson v. Commonwealth, Ky., 597 SW 2d 610(1980) 2-10-75
Meadows v. Commonwealth, Ky., 550 SW 2d 511(1977) 5-25-75
Self v. Commonwealth, Ky., 550 SW 2d 509 (1977) 7-30-75
Boyd v. Commonwealth, Ky., 550 SW 2d 507 (1980) 9-17-75
Smith v. Commonwealth, Ky., 599 SW 2d 900 (1980) 7-1-78
_ ™
~)
m7 yy YS a sphathee Cary yay Y
ATTORNEYS FOR APPELLANT:
Jack Emory Farley
Public Advocate
Commonwealth of Kentucky
State Office Building Annex
Frankfort, Kentucky 40601
Edward C. Monahan
Assistant Public Advocate
Erwin W. Lewis
Assistant Public Advocate
ATTORNEYS FOR APPELLEE:
Steven L. Beshear
Attorney General
Capitol Building
Frankfort, Kentucky 40601
James L. Dickinson
Assistant Attorney General
K. Gail Leeco
Assistant Attorney General
-34-
Supreme Court of Kentucky
79-SC-29-MR
EUGENE WILLIAM GALL, JR. APPELLANT
V. APPEAL FROM BOONE CIRCUIT COURT
HONORABLE SAMUEL NEACE, JUDGE
NO. 78-CR-097
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER DENYING PETITION FOR REHEARING
Appellant's petition for rehearing is denied. The opinion is
modified on its face.
All concur.
ENTERED October 14, 1980.
Chief Justice
In this instance the trial court had before it an indictment charging
Gall with the murder of Lisa Jansen anc affidavits by the Commonwealth's
Attorney and a detective of the Kentucky State Police stating that the physical
samples were needed "for purposes of completing their investigation into the
rape and death of Lisa Jansen." It seems to us that the relevance and im-
portance of such evidence in a case involving rape are self-evident. We there-
fore hold that the order granting permission to obtain it from Gall's person
was reasonable and was a valid basis for the subsequent admission of testimony
derived from its analysis. Cf. Thompkins v. State, Ind., 383 N.E. 2d 347, 351
(1979). :
Also on the day of the arraignment the trial court, by agreement of
the parties, appointed Dr. Robert Noelker, a psychologist, to examine Gall
for the purpose of determining (a) whether he was mentally competent to stand
trial and (b) whether at the time of the offense he had the mental capacity
to appreciate the criminality of his conduct and to conform his conduct to
the law. Contemporaneously the Commonweal th secured the services of Or. Lee
Chutkow, a psychiatrist, for the purpose of determining his competence to
stand trial. A hearing on the first of these questions was held on May 26,
1978, following which the court found Gall to be competent and set the case
for trial on the merits.
On September 6, 1978, defense counsel moved for a change of venue on
the ground that by reason of local publicity Gall could not be given a fair
trial in Boone County or in any of the surrounding northern-Kentucky counties.
We have examined the affidavits, counteraffidavits and exhibits (numerous
newspaper articles) filed in connection with this motion and are of the
opinion that the trial court did not abuse its discretion in declining a
change of venue.
In support of his contention that by reason of the pretrial publicity
a pattern of deep and bitter prejudice against him prevailed throughout the
community in which he was tried and convicted, Gall asserts that out of 51
veniremen examined 17 were excluded for expressing the opinion that he was
guilty." The point is not persuasive. In Murphy Vv. Florida, 421 U.S. 794
(1975), holding that the petitioner had not been deprived of due process,
the court commented as follows:
"In the present case, by contrast, 20 of the 78
persons questioned were excused because they indicated
an opinion as to petitioner's guilt. [fn] This may
indeed be 20 more than would occur in the trial of a
totally obscure person, but it by no means suggests a
community with sentiment so poisoned against petitioner
as to impeach the indifference of jurors who displayed
no animus of their own." Murphy, supra, at 421 U.S. 803.
Finally, in terms of this particular proceeding, the very fact that
in a capital case the court was able to complete a 14-member jury (including
two alternates) from only 51 veniremen utterly refutes the existence of such
community prejudice as would prevent the selection of a proper jury.
At a pretrial hearing on September 13, 1978, shortly prior to the
date set for the trial (September 19), the court again heard Or. Noelker,
who testified that there had been no change with regard to Gall's mental
capacity and that he was still competent to participate in the proceeding.
JURY SELECTION
The case was called for trial on September 19, 1978, beginning with
the voir dire of prospective jurors, which continued through September 26, 1978.
—
\For the sake of accuracy, it does not necessa’ ily follow that these
veniremen, because they had preconceived opinions, were of the opinion that
Gall was guilty. Our count, incidentally, indicates that 52 veniremen were
called, but one was excused on hardship grounds without being further
questioned.
resulting in a prison sentence. The reason is that such a juror could not.
be an impartial juror, and it seems to us that fundamental justice
guarantees to the public impartial jurors in capital cases as well as in
less serious proceedings.
In Adams, supra, a statute required prospective jurors in a capital
case to state under oath "that the mandatory penalty of death or imprisonment
for life will not affect his deliberations on any issue of fact." The trial
judge excused a number of prospective jurors who were unable or unwilling to
take the oath. Some were excused because they admitted they would be
"affected" by the possibility of the death penalty and others “because they
were unable positively to state whether or not their deliberations would in
any way be ‘affected.'" This was hel¢ to be a violation of Witherspoon.
Under the Texas statutes applicable in Adams the jury first determined
guilt or innocence and then, after a finding of guilt in a capital degree
and a further hearing on aggravating and mitigating circumstances, answered
three questions. If all three were answered in the affirmative, the trial
judge was required to impose a sentence of death, otherwise a sentence of
life imprisonment. Our statutes also provide for a bifurcated trial in which.
the jury first determines guilt and, after a finding of guilt, hears evidence
bearing upon aggravating and mitigating factors. If it finds the existence
of one or more aggravating circumstances as specified in KRS 532.025(2)(a),
it is authorized to recommend the death penalty, but the trial court is not
bound to impose it.
The trial court cannot sentence a defendant to death unless the jury,
by a unanimous verdict, has found beyond a reasonable doubt the existence
-10-
of one or more of the aggravating circumstances listed in KRS 532.025 (2)(a).
KRS 532.025 (3). There being no requirement that the trial judge abide by
the jury's recommendation, once the jury has found an aggravating circum-
stance the trial judge has the discretion either to sentence the defendant
to death, or to life imprisonment, or to a term of not less than 20 years in
prison. KRS 532.030, 532.035.
So it may be seen that the jury's function with regard to the ultimate
sentence is more limited here than it was under the Texas statute in Adams.
Nevertheless, its determination that an aggravating circumstance existed is
a sine qua non, and its recommendation of the death sentence, though not
binding on the trial judge, obviously carries great weight. With regard to
the applicability of Adams, vel non, there is a dispositive distinction, we
feel, between a prospective juror who admits he may be affected by the death
penalty, or does not know whether he would or would not, and one who is unable
to say even that he can consider that option. It is our opinion, therefore,
that Adams does not apply to this case, and that Witherspoon does not require
the acceptance of a juror who is unable to say that he can exercise an open-
minded discretion with regard to the vital issues he will be called upon to
decide. Cf. State v. Ross, La., 343 So. 2d 722, 726-7 (1977).
It will be recalled that the Commonwealth left one of its peremptory
challenges unexercised. Surely, had the trial court denied its motion to
strike Correll for cause, it would have used that challenge. Under
elle
is not entitled to erase the ugly parts of the picture and substitute words in
their place. In order for a jury to be able to size up a case fairly and wisely
it must be allowed to gain a reasonable perspective, and that can best be done
by permitting it to see an unadulterated picture. We are of the opinion that
the photographs here in question were admissible.
Joan Woods, age 12, was the friend who was waiting to go to school with
Lisa Jansen when Lisa disappeared, and was called as one of the first witnesses
establishing the chronology of events. Apparently she was emotionally upset
and had been crying when she took the witness stand. Defense counsel objected
to her appearance as a witness on the ground that she was simply being used to
“upset the jury,” and he offered to stipulate “that she didn't see Lisa that
morning." When she described her relationship to Lisa as her “best friend”
she began to cry again, whereupon the prosecuting attorney held her hand in
order to help restore her self-control. She was able to complete her brief
appearance as a witness without further incident.
We agree that Joan's testimony was not vital. It was relevant, because
it proved the time of Lisa's disappearance, but it was merely cumulative of
testimony already given by Lisa's mother. The prosecuting attorney might better
have chosen discretion above valor, but we do not view it as an abuse of dis-
cretion on the part of the trial court to let the little girl testify. Nor do
we apprehend that the grown men and women who comprised the jury could have been
so light-headed as to be seriously affected in their ultimate deliberations by
this little vignette of girlish hysteria.
Gall makes several contentions with regard to the court's instructions
to the jury. First he says that the court should have given a peremptory in-
struction of acquittal on the ground that as a matter of law the evidence
established his insanity at the time of the offense. On that particular issue,
however, Gall had the burden of proof, and we certainly cannot hold that the
post-factum opinions of his experts were so compelling that reasonable minds
-17-
could not fail to be convinced by them. Moreover, considering the nature of
chronic paranoid schizophrenia» the mental illness from which he was alleged
to be suffering, and the testimony to the effect that it not only was of long
standing but probably not curable, the observations made by Or. Chutkow on
the basis of his examination of Gall on April 30, 1978, cast considerable
doubt that he was afflicted with that disease on April 5, 1978. We recognize,
of course, that one may be “insane” and yet competent to stand trial, and that
the direct purpose of this examination was to determine his competence to
stand trial, but the fair import of Dr. Chutkow's testimony was that he found
no evidence of paranoid schizophrenia existing at that time. Even if Or-
Noelker's testimony were accepted at face value, he conceded that there were
periods of remission jin which Gall could function in 4 legally sane manner .
Gall himself did not take the stand, and there was no eyewitness testimony
showing the circumstances immediately attending the rape and murder.
Gall presents two arguments on the subject of extreme emotional
disturbance. The first is that tie Commonwealth did not produce any evidence
that he did not act under the influence of extreme emotional disturbance, hence
the evidence was not sufficient to support the trial court's instruction on
murder. The second is that the “extreme emotional disturbance” phase of the
murder instruction was fatally deficient in omitting the words, "the reasonable-
ness of which is to de determined from the standpoint of a person in the de-
fendant's situation under the circumstances as the defendant believed them to
be." Cf. KRS 507 .020 (1) (a)-
Under the law of this state prior to adoption of the Kentucky Penal
Code, effective January |> 1975, a homicide that would otherwise have con-
-18-
A-61
Supreme Court of Kentucky
MANDATE
EUGENE WILLIAM GALL, JR.
File No. 79-SC-29-MR Appeal From Boone
VS. Opinion Rendered September 2, 1980. Circuit Coun Action No. 78-CR-097
COMMONWEALTH OF KENTUCKY
The Court being sufficiently advised, it seems to
them there is no error in the judgment herein.
It is therefore considered that said judgment be
affirmed, and same shall be carried into execution as
provided by law on the fifth Friday following the date
of the issuance of this mandate, which is ordered to
be certified to the Superintendent (Warden) of the
Kentucky State Penitentiary at Eddyville, Kentucky.
October 14, 1980 Appellant's petition for rehearing is
denied. The opinion is modified on
its face.
A Copy - Attest: nf,
Issued ...... DeRAPae. .BA.. AGA. ...5...ccccceceass JOHN C. SCOTT, CLERK
Form SCC-9 BY
pee: MORE 2
ace Ss tS
quittal ,
ce (murder),
_ aS a matter of law tu an
on the higher char
Corrected Pace
GALL V. COMMONWEALTH Pe 4
There is much to be said for the proposition that an emotional
disturbance inhering in a mental illness is not the kind of an emotiona}
disturbance contemplated by the Statute, in view of its historical develon-
ment and the expression in the Commentary to the effect that it may be
aroused by “any event, or even words," as quoted above. Assuming, however,
that a mental disorder, whether or not it amounts to legal insanity, may con-
stitute a reasonable “explanation or excuse" for extreme emotional disiurbince,
it was incumbent upon the trial court to require the negating of that factur
in its instruction on murder, which was done. That is not to say that once
the issue is raised (by evidence sufficient to ground a reasonable doubt)
the Commonwealth must meet it with countervailing evidence. Unless the
evidence raising the issue is of such probative force that otherwise the
defendant would be entitled WAKA XAT HAS KUAXVS KALLE OTXSEAUEAALY, the proseeut ior
is not required to come forth with negating evidence in order to sustain its
burden of proof. Cf. Brown vy. Commonwealth, Ky., 555 S.W. 2d 252, 257, fn. 6
(1977). Otherwise it would never be possible to convict a defendant of murder
if there were no eyewitnesses and if, for example, he testifies that he actea
in self-defense, or was intoxicated ovt of his mind, or was acting under the
influence of extreme emotional disturbance. >
While it is true that the “extreme emotional disturbance” phase of
the murder instruction did not include the additional Statutory language,
"the reasonableness of which is to be determined from the standpoint of a
Son all of these issues, when raised by the evidence, the Commonwealth
has the burden of proof beyond 4 reasonable doubt.
-22-
JUDGE NEACE:
JUDGE NEACE:
JUDGE NEACE:
MR. CORRELL:
JUDGE NEACE:
MR. CORRELL:
JUDGE NEACE:
MR. CORRELL:
JUDGE NEACE:
MR. CORRELL:
JUDGE NEACE:
to examine?
MR. MATHIS:
Okay.
(Discussion at bench concluded)
Okay, Mr. Correll, Mr. Sheriff
(Mr. Correll enters courtroom)
Mr. Correll, we are making
a record of these proceedings,
for the record will you sczére
your name please?
David Correll.
Is that CORRELL?
Yes.
Your address?
105 South Girrard, Burlington.
And your age please sir.
Forty Five.
Thank you. Mr. Mathis care
Thank you, Your Honor.
VOIR DIRE OF DAVID CORRELL, Juror No. 25
BY MR. MATHIS:
- 961 -
A-44
Mr. Correll, my name is
Bill Mathis and I am the Commonwealth Attorney and as
Commonwealth Attorney it is my duty to prosecute this
case that is before us today. Seated on my right, by
way of introduction to you is my Assistant, Mr. Jay
Bamberger in the middle and on ny far right is Mr. Jim
Caldwell who is the Commonwealth Detective in this Distric
the other people seated behind me are members of our
staff.
Mr. Correll, we are here to talk to you
about your qualifications to sit as a juror on the cas:
of Commonwealth of Kentucky vs. Eugene Williams Gall. °-.
The Grand Jury of this County has charged that on April
5, 1978 Mr. Eugene Gall, the Defendant seated on the
right over there did intentionally murcer Lisa Jansen.
Let me first ask you sir, first let me
put you at ease a little bit, there are no wrong answers
to these questions. We are trying to get to know you
a little bit better. We are trying to see how you feel
about various aspects of the case. And, I will be
asking: you questions and then the defense side will be
asking you some questions. So just relax and feel at
ease, alright?
MR. CORRELL: Alright.
- 962 -
A-45
_—— © = ace. - eee
MR. MATHIS: First of all, Mr. Correll,
have you heard or read anything about this case?
MR. CORRELL: Yes, I have read s. nething.
MR. MATHIS: What did you read, maybe the
newspaper accounts?
MR. CORRELL: Yes I read an account in the
Boone County Recorder that was about three weeks ago.
MR. MATHIS: Now, Go you understand Mr.
Correll that as a juror it would be your function to
determine the evidence that you hear from the witness
chair? :
MR. CORRELL: ; Yes.
MR. MATHIS: would you sir, if you were
selected as a juror on this case, put asice whatever you
have heard and read and base your jucgment in this case
solely upon the evidence which you hear in this courtroom?
MR. CORRELL: I think so.
MR. MATHIS: In other words, you would
put aside what you have heard or read and start fresh
anc listen to the evidence?
MR. OORRELL: I think so.
MR. MATHIS: Now, Mr. Correll, this is
a murder case and without going into the law of Kentucky
to any great extent, let me just ask you some questions
- 963 -
A-46
regarding that and we will see how you feel about it.
First of all, do you understand that in Kentucky murder
is a capital offense, and by that I mean that it carries
with it the possibility of the death penalty. Do you
understand that?
MR. CORRELL: acon.
MR. MATHIS: In Kentucky also we have
what is called a two stage proceeding in a murder case.
The first stage is called the guilt phase. We will
assume now that you and the other jurors were selected
to try this case. In the first phase of this trial you
anc your fellow suseus would listen then to the evidence
concerning guilt or innocence and then you would be
instructed on what the law is by the Court and then
you would retire until you deliberate as to whether you
feel the Defendant is guilty of the charge which is
contained in the Indictment, do you understand that?
MR. CORRELL: . Yes.
MR. MATHIS: I assume from your earlier
questions that you could listen to the evidence and base
your judgment on what you hear in this courtroom?
MR. CORRELL: I think so.
MR. MATHIS: Now, should you end ycur
fellow jurors return a verdict of guilty as charged in
-. 964 -
A-47
—— es
the Indictment, there would then immediately be a second
phase of the proceedings and in that phase you would
hear some'more evidence regarding any aggravating or
mitigating circumstances that might have occurred which
might play upon you and your fellow jurors recommendation
to the Court on the verdict or penalty, do you understand?
MR. CORRELL: — Yes.
MR. MATHIS: Now, your options at that
seconde phase, assuming that you found the Defendant guiity
in the first phase, your options would be twenty years
or more in the penitentiary, life in the penitentiary or
death. Now, first of all, let me ask you, do you have
any personal, political, religious, moral or other:
feelings which would prevent you from recommending to
the Court the ceath penalty if you believe that the
Defendant was guilty and if you felt from the evidence
that it was warranted?
MR. CORRELL: ; Now religiously I might, yes.
THIS: Okay, what is your religion?
-ORRELL : Baptist, protestant.
MR. MATHIS: Well, let me ask you about
that. Do you feel that the imposition of the death
penalty is a fit and proper function of government?
MR. CORRELL: I am undecided, sir, really.
- 965.
A-48
a
MR. MATHIS: Do you have or are you in
agreement with she legislature that a law providing for
the imposition of the death penalty in certain cases
is necessary?
MR. CORRELi: I am not sure, sir.
MR. MATHIS: Do you believe that your
religious scrupples might prevent you from imposing
the death penalty in any case?
MR. CORRELL: I don't know.
MR. MATHIS: Now, Mr. Correll, everybody
is entitled to an opinion about these things and certainly
you are entitled to yours. What we want you to do is
to Search your soul and try to come to grips with this
very important question, do you understand?
MR. CORRELL: Yes. |
MR. MATHIS: Do you believe that regardless
of the case, no matter what the facts might be, that you
because of your religious beliefs would not consider the
death penalty as is required by law?
MP. CORRELL: I just don’t know, sir.
MR. MATHIS: Well can you maybe think
about it and give us some kind of an answer?
MR. CORRELL: Well I guess it is just
one of those things you would have to cross when you
4
- 966 -
AL49
got to it, I guess, I don't know.
MR. MATHIS: Well what we are trying
to decide, what we are trying to determine now, is how
you feel about it so we will kind of know a little bit
about what you might do in a given set of circumstances.
MR. CORRELL: I am, really I am
undecided on it.
MR. MATHIS: Well; let me ask you this,
are you open to the imposition of the death penalty,
should the facts warrant it?
MR. ‘CORRELL: Maybe, yes.
MR. MATHIS: Is your mind in any way
closed to the imposition of the death penalty?
MR. CORRELL: No, I would say it isn't
closed, but it - I am just undeciced.
MR. MATHIS: As you sit there, think
about a situtation perhaps where there was a terrorist
attack on women and children, would you feel like the
death penalty might be appropriate in that case?
MR. CORRELL: It is very possible, yes,
very possible.
MR. MATHIS: But you are just not sure?
MR. CORRELL: I am not sure, no.
MR. MATHIS: In other words, you are
- 957 -
A-50
MR. ZEVELY:
JUDGE NEACE:
MR. ZEVELY:
JUDGE iWEACE: -
| MR. ZEVELY:
JUDGE WEACE:
instructs you?
MR. CORRELL:
JUDGE WEACE:
MR. CORRELL:
JUDGE NEACE:
NR. CORRELL:
JUDGE NEACE:
MR. CORRELL:
ee eee
Tage lS eee Oe ees pee eee SSE SP Cad
not sure you could follow the law, if you were selected?
Judge, I object to that, I
don't think that is proper.
Follow the law?
No, I don't think -
I think it is very proper. I
would expect him to follow
the law.
Judge, I am saying that the
question that he asked is
not really housed in the lega!
term, the test for following
the law.
Alright, let me ask the juror,
Could you follow the law that the Court
Could I?
‘Yes sir, could you?.
Yes sir, I think so.
Will you?
Sir?
And will you?
I think so, yes.
- 968 -
A-51
P . “ ;
hs pa Be ines Suse iy 4 P Ae ka
?
JUDGE NEACE: Thank you.
MR. MATHIS: Mr. Correll, if the
instructions which the Court gave you included as three
options, twenty years or more in the penitentiary, life
in he penitentiary, or death, you had indicated some
religious feelings that might prohibit you from imposing
the death penalty, now, assuming those were the
instructions given to you, do you feel as you sit there
that you could follow that instruction and impose the
death penalty, could you do that?
MR. ZEVELY: Judge, that is not the legal
test. I object.
JUDGE NEACE: I am not sure I understood
the question. Let me see if
I can ask hin just a minute.
Mr. Correll, we realize and understand
that different people have different feelings and that
is everyone's right to express a different opinion to
somebody else. You have indicated that because of
religious feelings, I believe, you might have some
hesitancy about imposing a death penalty, is that correct?
MR. CORRELL: Yes sir, there is some
question in my mind, yes.
JUDGE NEACZ: TI understand, I am only
- 969 -
A-52
—_——_— ——— «+
of EA
Pu 2
Rota VRS
* tM ~
Cer yy
trying to fine out exactly how you do feel. Let me
put it in this question, if I can. Would your feelings
absolutely preclude you from imposing a sentence of
death under any circumstances, any circumstances that
you can think of?
MR. CORRELL: — I just don't know, sir,
whether it would or not, really.
MR. MATHIS: May we approach the bench?
JUDGE NEACE: Do you think you can resolve
that in your mind at this time? Can you think about
it for a few minutes?
MR. CORRELL: Okay.
(At this point, the following Motion was
heare in Chambers)
MR. MATHIS: Your Honor, we move to excluce
this Juror for cause because
he won't answer the questions
one way or another. He says
he is undecided whether he is
for it, against it, whatever,
and it is the Commonwealth's
contention that that doesn't
fall within the test,we just
- 970 -
got a juror that won't answer
the questions.
Judge, before you exclude hin
for cause, I would like to be
allowed to question hin.
I am going to ask him that
question again that [I asked
before. I think that is the
test.
May I question him before
you ask him the question?
Well, let me finish. You
know the Court likes to get
in on this a little bit too.
I have been here all along
Wilbur. Okay. I will let
you question hin. And I will
reserve ruling on the metion.
(Discussion in Chambers concluded)
Mr. Correll, as I think Mr.
' Mathis says, there aren't any wrong answers to these
—_
MR. ZEVELY:
JUDGE NEACE:
MR. ZEVELY:
JUDGE iZACE:
JUDGE NEACE:
~ Yee
= 971 -
questions. We would like to know your position. Have
you had time to think about the question the Court asked
you?
MR. CORRELL: . Well -
JUDGE NEACE: Let me repeat the question.
Would your feelings that you have expressed
absolutely preclude you from imposing a sentence of
death under any possible circumstances?
MR. CORRELL: I am still undecided Judge.
I' just don't know about it. I just don't know.
JUDGE NEACE: Okay, any further questions?
MR. MATHIS: | I pass for cause.
JUDGE NEACE: Well you have made your
Motion which the Court reserved
ruling on. Subject to your
Motion I assume?
MR. MATHIS: Well I was simply trying to
get it over there.
JUDGE NEACE: Alright, you pass to the
Defendant.
MR. MATHIS: Right.
JUDGE NEACE: Alright.
BY MR. ZEVELY: Mr. Correll, the Court, in
- 972 -
A-55
aS ESS Se
essence, is asking you if there is any case where you
could consider imposing the death penalty. For instance,
if Hitler were on trial here today for killing all the
Jews, you could consider imposing the death penalty in
that case couldn't you?
MR. CORRELL: I would be undecided, sir.
At this point.
MR. ZEVELY: Is it something - you say
it is religious, your objection?
MR. CORRELL: Well I jusc -
MR. ZEVELY: Mr. Correll, let me put it
this way, you haven't heard any of the evidence in
this case and I realize that maybe your opinion is
based upon your hesitancy to ask or to answer the
questions based upon the fact that perhaps you are
not sure that in the particular facts that a person is
guilty or not, is that what your hesitancy is?
MR. CORRELL: No sir, I don't think so.
It is that I,was always taught and raised not to take
a life and that sort of wears in the back of my mind.
MR. ZEVELY: We haven't said that you
couldnot. You said -
MR .CORRELL: I am undecided, I just don't
know whether I could or not.
MR. ZEVELY: Can you think of any fact
- 973 -
A-56
set up that would be so repugnant to you that you could
impose the death penalty, any situation, see if you can
think of one situation where you could.
MR. CORRELL: Well I can't really say
that I could and I can't say that I couldn't.
MR. ZEVELY: Could you give me an example
of one case where you could, no matter how bad the fact
i setup is. You make it up yourself.
MR. CORRELL: Well at this point right
now, I wouldn't any but there very possibly could be,
I am not saying that 7 wouldn't and I arm not saying
that I would.
MR. ZEVELY: So you are saying that there
| may very well possibly be a situation where you cculd,
is that right?
MR. CORRELL: Well I just don’t know.
MR. ZEVELY: Okay.
MR. CORRELL: I will put it this way, there
might be situations where I might feel like it.
MR. ZEVELY: Okay, in that situation, could
you do it?
MR. CORRELL: Well that I don't know.
MR. ZEVELY: Well you never know until you
are put to the test.
- 974 -
A-57
=e Ct
MR. CORRELL:
MR. ZEVELY:
That is right.
But the Court would like you
to answer the question either yes or no and be honest
about your answer.
MR. CORRELL: I can't really answer a
yes or no and be honest at this point right now.
JUDGE NEACE: Mr. Zevely, the Court wants
him to be honest and that is
all the Court expects.
MR. ZEVELY: I understand Judge.
JUDGE NEACE: If he can't answer the
question yes or no, then ne
can't answer it.
(Mr. Gall confers with Mr. Zevely and
Mr. Berger)
HR. GALE: Your Honor, can I get permissian
to ask this juror a question?
JUDGE WEACE Alright, will you check it out
with Mr. Zevely.
MR. GALL: I withdraw the Motion, Your
Honor.
JUDGE NEACE: Alright, anything further
| gentlemen?
- 975 -
A-58
\-
MR. ZEVELY:
MR. MATHIS:
JUDGE NEACE:
MR. CORRELL :
JUDGE NEACL:
MRS. BENSOW:
No.
I renew my Motion.
Sustained.
Mr. Correll, the Court will
excuse you for cause at this
time. Thank you very much
for being honest and candid
with us. You are still a
member of the jury panel of
course and we will undoubtedly
call you later in the tern.
I can't give you a date but
it will be probably perhaps
the first week in October
sometime, but we will contact
you and until that time you
are excused and thank you
very much.
Certainly.
Mrs. Benson, call one more
number, please.
Number Forty (40), Ralph
Sutter.
- 976 -
Cowmonweatrn or Kentucky
OFFICE oF THE ATTORNEY GENERAL
Stcvew L.Ocsmcan
Caritor Pun CING
Artecare Gewcoay
Feomes ar “7+
MEMORANDUM
TO: All Coamonwealth's Attorneys
FROM: James L. Dickinson .
Assistant Attorney General
DATE: October 17, 1980
For your information I am sending you a copy of the
Kentucky Supreme Court Opinion of Gall vy. Cormonwealth, in which
the Supreme Court for the first time since 1370 affimned the
imposition of a death penalty, Accompanying the Opinion is a
Summary in which I have outlined the more important porticns of
the Opinion.
Please note the Court's language pertaining to the
Witherspoon error. It is now a matter of Kentucky law that the
reserving of a peremptory challenge will render harmless any
Witherspoon error that may occur during the course of trial.
You should also read with care the language of the
Court pertaining to the necessity of instructions on extreme
emotional disturbance. In order to fully understand this case,
it will be necessary for you to review the summary presented in
Smith v. Comnonwealth, 599 $.W.2d 990.
If there are any questions or corzsents, Please do not
hesitate to contact me. My telephone number is 502-564-4040.
Attachments (2)
A-60
SUMMARY
OF
GALL _V. COMMONWEALTH
On September 2, 1980, the Supreme Court for the first
time since 1970 affirmed the imposition of a death penalty. In
this case the Boone Circuit Court sentenced Eugene Gall to die in
the electric chair for the rape and murder of Lisa Jensen, a twelve-
year-old girl. The Supreme Court's decision is a significant mile-
stone in criminal justice.
Although the Opinion of the Supreme Court is important
in that it affirmed the constitutionality of KRS 532.025, sce page
31, it is also significant for its treatment of several issues
that have caused a considerable amount of confusion for the
prosecutors. The purpose of this surtnary is to briefly outline
the Court's Opinion as it relates to (1) the jwry selection process,
(2) the type of murder instruction that is needed when the
defendant is relying on an insanity defense, and (3) the proper
procedure that should be employed at the penalty stage of the
trial. :
f
Jury Selection
The first major issue which confronted the Court was
whether a juror had been properly excluded under Witherspoon v.
1 te is strongly suggested that you review the summary that was
prepared by this office when Smith v. Commonwealth, 599 S.W.2d
900 (1980), was decided. Taken together, these two Opinions
represent a comprehensive review of those issues which are con-
monly raised on appeal. °
A-61
+ ri nant
Illinois, 391 U.S. 510 (1968). In this case the prospective juror
was unable to state whether he could consider the imposition of
the death penalty if Gall were found guilty of murder. In
essence the juror was undecided and would not, despite repeated
questioning by both the court and the attorneys, give a definite
answer ag to whether his conscience would allow him to consider
without prejudice the range of possible punishments. The juror
was finally excused for cause. On appeal, the appellant argued
that the re:roval for cause of this juror was error and that the
death penalty rust be reduced to a life sentence.
In resolving this issue, the Court, in effect, considered
three questions. They were: (1) Was it error to excuse a venire-
man because he was unable to Gecide whether he could consider the
death penalty? (2) Since the jury was merely recommending the
penalty and not imposing the punishinent, was the Witherspoon test
applicable? and (3) If there was error, was it rendered harmless |
by the fact that the Commonwealth had not utilized all of its
peremptory challenges? 3
In answering the first question, the Court said:
“It occurs to us that if a Prospective juror
will not say whether he can or cannot consider
without prejudice the options from which he must
choose in arriving at a verdict, he should be dis-
qualified. The very least assurance to which the
public is entitled is that he will exercise an
honest discretion in resolving each issue submitted
to him. Yet the effect of such equivocation is
that on this important issue the juror will not
a
A-62
= an assurance that he is able to exercise any
iscretion because he is not sure that his mind is
open at the beginning. Surely it is elementary that
a juror must be able to enter upon his duties with
an open mind. It would seem beyond cavil that any
court in the country would dismiss a prospective
juror who could not say whether he would or would
not be able to consider a verdict resulting in a
prison sentence. The reason is that such a juror
could not be an impartial juror, and it occurs tio
us that fundamental justice guarantees to the public
impartial jurors in capital cases as well as in less
serious procecdings." (Opinion, pp. 9-10.)
The Court then embarked upon a discussion of the recent
United States Supreme Court decision of Adams v. Texas, ea
aa (1980).2 The Kentucky Court ultimately concluded that the
Witherspoon standard was still applicable even though the jury
was only reconzacnding a punishment. The Court, however, as dicta
expressed the following thought as to the imposition of punish:zent
by the trial judge:
"The. trial court cannot sentence a defendant
to death unless the jury, by a unenirous verdict,
has found beyond a reasonable doubt the existence
of one or more of the a gravating circumstances
listed in KRS 532.025(2) Ca) . KRS 532.035(3).
There being no requirement that the trial judge abide
by the jury"s recommendation, once the jury has found
an apsravating circumstance the trial judge has the
discretion either to sentence the defendant to
Seath, or to life imprisonment, of toa cera of
not less than 20 years in prison.” Opinion, pp. 10-
Tl.” (Emphasis added.)
2 One of the questions considered by the Supreme Court was whether
under a bifurcated “bgp -nen the test set forth in Witherspoon
was applicable to the excusing of jurors.
A-63
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cattintie. Milptive ‘ ee i, ner th, ewe Mi AON itt he - ~~ oe le
Although it is not crystal clear, it would appear
that once the jury has found beyond a reasonable doubt an
aggravating circumstance, the trial judge is free to impose any
of the possible punishments, including death, despite the jury's
recommendations. Thus, as a matter of tactics, it is important
that the jury be instructed to first determine whether there
exists beyond a reasonable doubt an apgravating circumstance.
If the jury does make such determination, this finding should
be written down on the prescribed form before the jury procecds
to consider the punishment that should be imposed. This point
is important because if the jury imposes a sentence other than
Geath despite its written determination as to the existence of
en aggravating circumstance, the trial judge would have available
the option of imposing the death penalty in lieu of the jury's
recommendations. _
Recently in The Kentucky Prosecutor I pointed out that
the prosecutor should, if at all possible, reserve a peremptory
challenge. In its Opinion, the Supreme Court held: r
"It will be recalled that the Commonwea] th
left one of its peremptory challenges unexercised.
Surely, had the trial court denied its motion to
strike Correll for cause, it would have used that
challenge. Under similar circumstances the Supreme
Court of Georgia held possible Witherspoon errors
to have been harmless. Alderman v. State, Ga.,
246 S.E. 2d 642 (1978). See also State v. George,
La., 346 So. 2d 694 (1977). We reach the same
conclusion in this case." Opinion, pp. 11-12.
Thus it is now clear that the Court will find a Wither-
Spoon error to be harmless beyond a reasonable doubt if the prosecutor
‘
has not used all of his peremptory challenges.3
Insanity and Murder Instructions
At trial Eugene Gall maintained that he could not remember
the events that led to Lisa Jansen's death. There was a considerable
amount of psychological testimony that Gall was insane at the time
of the offense. The trial court offered a partial instruction on
the eJunent of “absence of extreme emotional disturbance” in that
it did not instruct the jury to consider the reasonableness of the
acts from the viewpoint of the actor under the circumstances as
he believed them to be. On appeal the appellant argued that the
omission of this language was fatal and that his paren apes should
be reversed.
Before proceeding to the Court's analysis of this issue,
it is important to note that Gall cannot be fully understood by
the prosecutor unless he is also fainiliar with Smith v. Cozmon-
wealth, 599 S.W.2d 900. For a considerable period of time the
Office for Public Advocacy has maintained on appeal that the
absence of extreme emotional disturbance was an element of murder
and that cue process required a murder instruction encompassing this
element regardless of the evidence. In Smith the Supreme Court
3 A more detailed treatment of tactics in jury selection was
presented in the July issue of The Kentucky Prosecutor.
A-65
eee ee Pte ae aw oe SS wil
BOONE CIRCUIT COURT
COMMONWEALTH OF KENTUCKY a PLAINTIFF
vs. MOTION
EUGENE WILLIAM GALL, JR. DEFENDANT
ze rkeneneerekeekeekeek Re
Comes the Commonwealth and moves the Court for an Order
allowing the Commonwealth to obtain the following samples from the
above-named defendant;
- Sufficient quantity of hair from various portions
of the defendant's head to enable the Commonwealth to do an analysis
of the defendant's hair characteristics;
2. Sufficient swabbings of the Ge. endant's saliva
to enable the Commonwealth to perform tests to determine the defendant's
saliva characteristics;
3. A full set of color, nude photographs of the
defendant; and samples of pubic hair;
4. A full case set of finger and hand prints; and
Ss. A sufficient quantity of the defendant's blood
sufficient to enable the Commonwealth to perform an analysis of the
defendant's blood characteristics.
a> > ry ee eee We oe, es lk, ee oe st 6 & oe edie eee, 4 4) o Seed, 6 eee a’ i ok i i afi te Ae 6. & a. ee
: ons ay Reine.
“
,
i fs ee x ra
jJdtss Meth
WILLIE MATHIS, JR.
COMMONWEALTH ATTORNEY
NOTICE
The above motion will be heard at the convenience of
the Court on the 27th day of April, 1978.
CERTIFICATE
I, Willie Mathis, Jr., certify that a copy of the
above motion was this ah? day of April, 1978, served upon the
defendant through his attorney, Hon. Wilbur Zevely, 226 Main Street,
Florence, Kentucky.
A-67
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V
YX
MABEL BENSON, Clerk
AFFIDAVIT °
eis ora BY pha
Comes Jerry Keith, Detective, Kentucky State Police,
after being duly cautioned, sworn and states:
1. That the Commonwealth needs samples of the defendant's
hair, saliva, photographs, finger and hand prints and blood for purposes
of completing their investigation into the alleged rape and death of
Lisa Jansen;
2. That the investigation and the ends of justice
cannot be served without the above-mentioned items because of the nature
of the alleged offenses of rape and murder;
3. That the purpose of obtaining these items is not
to harass or to intimidate the defendant;
Further Affiant saith naught.
JE ’ ective
Kentucky State Police
STATE OF KENTUCKY)
COUNTY OF BOONE
Subscribed and sworn to before me by Jerry Keith on
this 27 day of April, 1978.
My commission as a Notary Public expires on the £
day of Lorry , 31987
A-68 .
oe ro — —- ae —
AFFIDAVIT
BY >
Comes Willie Mathis, Jr., duly elected Commonwealth
Attorney for the 54th Judicial District, after being duly cautioned,
sworn and states;
1. That the Commonwealth needs samples of the
defendant's hair, saliva, photographs, finger and hand prints and _.
blood for purposes of completing their investigation into the alleged
rape ené death of Lisa Jansen;
2. That the investigation and the endd of justice
cannot be served without the above-mentioned items because of the
nature of the alleged offenses of rape and murder;
3. That the purpose of obtaining hese items is not
to harass or to intimidate the defendant;
Further Affiant saith naught.
STATE OF KENTUCKY)
COUNTY OF BOONE
Gubectibed ent sworn to before me by Willie Mathis, Jr.,
on this_?7 day of April, ‘1978.
My commission as a Notary Public expires on the >
day of FL ‘oc Fs oe 7 r.
: ‘ él
NOTARY PUBL
A-69
FORM W180 REPORTERS Papen &2MFC. CO 400-626-6313
—
. 2. eed — -
JUDGE NEACE: Alright.
_ What about the matter of bail, gentlemen?
MR. MATHIS: Your Honor, the Comnaonwealth
recommends that the Defendant be held without bail
pending trial.
JUDGE NEACE: Mr. Zevely?
MR. ZEVELY: Your Honor, I have nothing
Co say as with regards to bail since there are other
pending charges across this State and other States.
JUDGE NEACE: Alright, the Defendant be
detained in custody pending trial, no bail.
Anything further, gentlemen?
MR. MATHIS: Yes, Your Honor. The
Commonwealth has several Motions at this time and I
believe Mr. Zevely has been kind enough to waive notice
on these Mctions.
The first Motion, Your Honor, the
Commonwealth has several parts. The Commonwealth moves
for an Order allowing the Commonwealth to obtain the
following samples from Mr. Gall; sufficient quantity
of hair from various portions of his head to enable
the Commonwealth to do an analysis of the Defendant's
hair characteristics; sufficient swabbings of Defendant's
Saliva ‘Ro enable the Commonwealth to run tests to
— s
A-70
—
800 626-6315
FORM W100 REPORTERS PAPEH & MFG CO
determine the Defendant's saliva characteristics; 2
full set of color nude photograpns of the Defendant;
samples of pubic hair; and a full case set of finger
and hand prints; a sufficient quantity of Defendant's
blood to enable the Commonwealth to perform an analysis
of the Defencant's blood characteristics. And i have
attached to the Motion, Your Honor, citations of Gerr
vs. Commonwealth, 463 §.W. 24,109 and anothers case
the case of Newman vs. Stinson, 489 S.W.2d, 825. The
citation and also accompanying that Your Honer, is the
Afficavit of myself as Commonwealth Attorney and the
Affidavit of State Police Detective, Jerry eith.
JUDGE NEACE: Mr. Zevely.
MR. ZEVELY: Your Honor, we do waive
notice of the motion that Mr. Mathis has. te do not
believe that the Affidavits attached are sufficient
uncer the law to imse! the Commonwealth to some of
these samples ang for the record, we enter our
opposition to these Morions,
JUDGE WNEACE: In what manner co you say
the Affidavits are deficient?
Im. ZEVELY: As far as the saliva and
the hair is concerned, Judge, we have no objections to
that at all, or to the fingerprints. As fer as the
A-71
blood is concerned the Affidavits do not show a reason
why that they would like these samples. There is nothing
other than the fact that the reason is that they need
the samples to complete their investigation. yle_don't
believe that this is sufficient,
JUDGE NEACE: Does the Commonwealth have
any corment on that?
MR. MATEIS: Your Honor, as far as pre-trial
order is concerned the Comonwealrh believes that no
need be vy supels e fi i
for the record, It_is simply in the nature of physical
evidence, Your Honor.
JUDGE NEACE: Alright, I think the Motion
is well founced, it is sustained.
Anything further?
MR. MATHIS: Your Honor, the vrovisions
of KRS 532.059, this time for the record I woulc like
to notice and would like the record to note that I have
given Mr. Zevely a Notice that the Cormonwealth intends
to show an aggrevate¢d circumstance in the murder of
Lisa Jansen, to wit; rape in first degree by the
Defendant, Eugene Williams Gall upon the person of Lisa
Jansen.
MR. ZCEVELY: For the record, we acknowledge
A-72
BOONE CIRCUIT COURT
COMMONWEALTH OF KENTUCKY PLAINTIFF
vs. ORDER
EUGENE WILLIAM GALL, JR. DEFENDANT
oe. n.8 &.8 0 84.3 8. €
Upon motion of the Commonwealth having been brought
on for hearing before the Court this 27th day of April, 1978; the
Commonwealth having been represented through the Hon. Willie Mathis,
Jr., attorney, and the defendant having been present and represented
by the Hon. Wilbur Zevely, and the Court being otherwise sufficiently
advised,
Now, therefore, it is hereby considered ORDERED and
adjudged as follows: i
1. That the Commonwealth may obtain samples from
various portions of the head of the defendant, said samples to be
obtained in such a way as to provide the entire hair including the
folicle which is attached to and beneath the scalp;
2. That the Commonwealth may obtain swabs of saliva
from the mouth of the defendant; and pubic hair samples;
-
3. That the Commonwealth may obtain a complete set
of nude photographs of the defendant;
4. That the Commonwealth may obtain a full print
case set of prints from the hends and fingers of the defendant,
both left and right hands;
5. That the Commonwealth may obtain a sufficient
sample of the defendant's blood to enable it to make an analysis of
his blood type and groupings.
IT IS FURTHER ORDERED that the following conditions
are to be observed by the Commonwealth:
1. That the defendant's attorney may be present during
each of the proceedings ordered above if he desires to be present;
2. That the blood samples shall be obtained from
the defendant’ by a physician, a licensed registered or practical nurse,
or a duly qualified medical technologist;
3. That this Order is effective immediately and the
defendant shall present himself forthwith in compliance with the terms
of this Order.
Given under my hand this
CERIFICATE 27th day of April 1978
1, Model Benson, Cer’ of The Boone Circuit Pi a iy
Court, hereby certify thet | hav2 mailed a cozy of en Coe NS ge ae
the icraco'ng o-dzr and nctive to 2’! serties hereto PA rat ce ~
at the'e tact Aoown od lracezs or $2 their vocazel SAM NEACE, JUDGE
“e
“
of record this 5° _¢ay Hoi 19 BOONE CIRCUIT COURT
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BORE CiRCUIE CLERA
af A-74
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.