Opposition Brief — Stanford v. Kentucky

BEST AVAILABLE COPY

QUESTIONS PRESENTED POR REVIEW

I.

SHOULD THE COURT GRANT CERTIORARI TO

CONSIDER AN ALLEGED ERROR OF STATE LAW.?

11.

DO THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS

FORBID JOINDER OF DEFENDANTS FOR TRIAL WHERE

ONE IS ELIGIBLE FOR CAPITAL PUNISHMENT BUT THE

OTHER IS NOT?

DID THE OPINION BELOW COMPLY WITH THIS COURT'S

DECISION IN LOCKETT V. OHIO?

Iv.

WERE THE JURY INSTRUCTIONS IN THIS CASE

CONSTITUTIONALLY INSUFFICIENT? ASSUMING THE

ee ee

TO THE AL PROCEEDINGS,

WOULD SUCH AN INSTRUCTION BE REQUIRED WHERE

THERE IS NO “PROPER REQUEST” FOR SUCH

INSTRUCTIONS.

v.

WAS THE PETITIONER ENTITLED TO, AS A MATTER OF

CONSTITUTIONAL LAW, SENTENCING OPTION

INSTRUCTIONS OTHER THAN THE ONES WHICH WERE

GIVEN AT TRIAL?

vi

DID THE STATE TRIAL COURT ERR IN FINDING THAT

CERTAIN INCRIMINATING EVIDENCE HAD NOT BEEN

DERIVED FROM AN INADMISSIBLE CONFESSION?

vil.

WAS PETITIONER'S RIGHT OF CONFRONTATION VIOLATED

BY THE ADMISSION OF A CONFESSION BY HIS

CO-DEFENDANT WHO DID NOT TESTIFY?

vI11.

DOES THE EIGHTH AMENDMENT EXEMPT JUVENILES FROM

CAPITAL PUNISHMENT ON THE BASIS OF AGE ALONE?

° TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW... cee cece eee neeenrere

TABLE OF CONTENTS....s-seeercrrererererereerrereres®

TABLE OF Uros.

OPINION UELWoW ...[.

Jun soic rio.

CONSTITUTIONAL PROVISIONS INVOLVED. .cceceeereeeerere

COUNTERSTATEMENT OF THE casꝶ ......

REASONS FOR DENYING CERTIORARI ..-+seeereeerrrcrrrere

CONCLUSION... --seeeeee PPV TTT TT LL as

PROOF Of Griese... „ „„ „ „4 4„%4%%%%%% %% % % %%% „

ii.

37

38

TABLE OF AUTHORITIES

eee 0 0 % % %% %%% % „% %%% %%% %% %%% %%% %% „%%% 32, 33 „ 7 44 6% %%% „ „ „ „ „„ „„„%„„„ „„ „„ 6 „ „ „%%% %% %%% % %¼Tũ %% „„ 19. 20

D e e . .

. 2*5*7 • 33555446 z, ,¶ů / Nen — 9

ct. 759792446 „66660 3. M. . % ½/ff ? Nen. nent

780 or 11 C 18, 19, 22 45729 155877765

We eeeeeeeereeereeeeeeeeeeereree 19 “ “ 1918)

7 87 J 18785 y..

„ „ „% %%% %%% „„ „„ „„„%„%%„„ „ „ „ „ „ „„ „„ „ „ 13, 14 448 7 K 1 )

GB ste hi Hiern SPR aA oo

. „ 19 „ % %% % % % % „ „ „%„%„%„%„%%„„ „ „ „ „ „ „ „ „ „ 31, 32 8 * „ 7 „ % „ — Oe eee eee eee eee „ 11. 3), 32, 33, 34

„„ 6 % „„ „„ „„ „5676 29, 30 . « BB Bee n 27

w ’ le v, Florida,

. 3 ——ſ.ů—ͥ— 5 „ 5 | * 1113 8 1

8 id ir

Oe 2) „ „„ „ „„ 13 : „ ii 14

0 . (S.D. Miss. 1966/5 17 0 „Ie 17

Eos Fre 239 Teh Nr State, 24) Ge. 477,

cir. 1977/6 7 wie eee eee eee

l r. mann

* * „% % %% % % % ¶ ↄ % K —KHRο . 7 * „ r eee eee eee eee ee eee eee 2 34

0 ’ 8. K. 2d 666 61960))) 17 112 Nee eee eee eee eee eee eee eee 2?

72777 — Thompyon Or lghome No. 86-6169, Cert. granted

cir. 1982) „ „ „ „ „ „ „ „4 „ „ % „ „ „ “ere 24 — — * A Rptr. airs (February 23, 1987) eas 1

SHEE e. 0

„ * 6 0% %% % %%% % %%% %%% „%%% %„„%„%„„%„ „ „ „ „ 6 67 29

oOe 6 0 % % % % %%% % % %%% %% %%% %%% %%% „ „„ 36 „ „ern 14

Woe Te sce. 1621 01967 %/ꝙ 7 ee 14. — 0

lini, 435

“Tibet ae kt .

„ . 4 „„ „ „ „ „ „46 „ % „% % „% % „ „ „ „ „67 19 : OB eer Lt Pew lieveeeeeee 9 0 „„ „„ „ „ 0 „ „ „ „6 „„ „ 6 6 „6 „„ %% „„ 4

* v. Oh Fr a ets ty.

* . 978).. „ „„ „% „% » „ „ „ %% ͤ % ͤ — 9 16, 17 sors. „ 0 we) seeee 5046006660 0066 8 0 *

*

—— „ „„ „„ „„

Kentucty Rules of Crimine! Procedure

Ce 6.18

eee ** *

‚— [IPWd—ꝓ ũ ee eee *

——ꝓ RRE * eee * *

—RP— * Oe ee eee eee

E9ꝶ2³½2 eee eee eee „ „„ „„

„5 520ũ2dw „%%% „„ „„ „„ „„ „„ „ eee

29

15

18. 19, 22

29,

90. 87-5765

October Term, 1987

KEVIN u. STANFORD PETITIONER

versus ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF KENTUCKY

COMMONWEALTH OF FPENTUCKY RESPONDENT

RESPONDENT'S BRIEF IN OPPOSITION TO

OPINION BELOW

Respondent accepts Petitioner's citation te the opinion

be low.

JURISDICTION

Respondent accepts Petitioner's statement of juris-

diciton. 8

The constitutional provisions involved in this case are

reproduced in the appendix to the petition.

COUNTERSTATEMENT OF THE CASE

The victim in this case, twenty-year-old derbe! Poore,

was an employee of the Cheker gas station on Cane Run Road in

Louisville, Rentucky (TE 399, 942, $47). She and her perents

were acquainted with Petitioner, having conversed with him on

eeveral occasions (TE 519). Petitioner lived in the apartment

complex adjoining the Cheker station (Te 407-408, 475).

Troy Johnson was a mutual friend of both Petitioner and

his co-defendant, David Buchanan (TE 1029, 1047). On January 7,

1981 Buchanan approached Johnson with a plan to rob the Cheker

station (TE 1029-1030). Johnson provided Buchanan with a handgun

(TE 1031).

Buchanan telephoned Petitioner in regard to the plan (TE

1032-1033). The three met at Petitioner's apartment, then

proceeded to the Cheker station where Johnson remained inside the

car (TE 1032-1034). As Petitioner was leaving the car to go

inside the Cneker station, he expressed concern to Buchanan and

Johnson that the victim might recognize him by his clothing (I4.).

During the next gorty-five minutes, Barbel Poore was

robbed, raped, orally sodomized, and anally sodomized (TE

364-365, 372, 398, 405, 485-486, 946, 1034-1035, 1044, 1053).

Once during this ordeal, Buchanan returned to the car with a

two-gallon can of gasoline and told Johnson to continue waiting

(14.). ‘The sexual atteck took place on the restroom floor of the

gas station (TE 485). Petitioner initially raped the victim in a

standing position while she held onto the sink, after which he

and Buchanan took turns raping and sodomizing her on the floor

12.

Eventually, Buchanan returned to Johnson's car 4 second

time and instructed him to follow Petitioner, who was Griving the

victim in a car belonging to her mother (TE 1035-1037). After

both cars arrived at a secluded area on Shanks Lane in

Louisville, Buchanan got out and walked over to the victim's car

where Petitioner was standing (1¢.).

eBe

— — —

Petitioner allowed the victim to smoke a cigarette

before killing her execution-style (TE 486). Petitioner leaned

inside the victim's cet and shot her in the face from point-blank

range (TE 364, 366-367, 1037). After this shot was fired,

Johnson exited his car, poured the stolen gasoline into his tank,

started it, and began backing up (TE 1037-1038). Petitioner then

fired a second shot into the back of the victim's heed, causing

her death (TE 364, 366-368, 372, 486, 1037-1038).

Two passersby observed Petitioner and Buchanan walking

from the victim's car back to the getaway car (TE 954-955,

985-987). Though able to describe their general appearance,

Amona Dorsey could not identify Petitioner or Buchanan (TE

986-987). Kerise Ison, a passenger in Dorsey's car, heard the

gunshots and became suspicious when one of the defendants put his

head down (TE 954-955). Ison noticed that the one who put his

head down was “tagging behind” the other and that he put

something inside his coat pocket (TE 957, 963).

The victim's corpse was left kneeling in the back seat

of her mother’s car, naked from the waist down and with her

buttocks elevated (TE 401). A “large volume of semen” was on the

left sleeve, front and back hem of her outer jacket, on her inner

jacket, on her sweater, on her panties, and on the back seat of

her mother's car where her head lay. (TE 401, 792-793, 796-798,

800, 805-806). Among the foreign pubic hairs on the victim's

buttocks was one similar in microscopic characteristics to those

belonging to Petitioner (TE 578, 585, 602, 604, 645, 792,

794-795, 807, B11). Injuries to the victim's anus included a

ef-o

contusion “with radiating abrasions over the anal mucosa over the

entire circumferential surface," inside of which were “large

quantities of identifiable spermatoza.” (TE 363-365).

Buchanan got into the front seat of Johnson's two-door

car before Petitioner got into the back seat (TE 1040). As they

were driving away from the murder scene, Petitioner smiled and

asked Johnson whether he “wanted to do anything else.” (TE

1041). When Johnson responded negatively, Petitioner tossed the

murder weapon into the front seat (Id.). Johnson dropped him off

at the intersection of Shanks Lane and Cane Run Road, across the

street from the Cheker station (I4.).

Later that night, a neighbor named Alexis Sloan saw

Petitioner carry two large boxes of cigarettes away from the

Cheker station (TE 1003, 1006-1007). Sloan agreed to “hold” them

for Petitioner (TE 1008). On the following day, Sloan and one

Owen Smyzer put the cigarettes into plastic garbage bags and

roamed about the neighborhood selling them (TE 1011-1012).

Afterwards, Petitioner told Sloan that the cigarettes were from

the Cheker station and that he had “made a play” for them (TE

1013-1014, 1022-1023).

While awaiting trial for capital murder, Petitioner

sneaked up behind a security guard, put the end of a pe nei

against his ear and said, “Click, click, click, just iike the

girl, I'm going to blow your mother. . . brains out.” (TE

1062-1063).

On another occasion, a different corrections officer

heard Petitioner bragging to seven other juvenile inmates about

what he had done to Barbe] Poore (TE 1076-1078). Petitioner

boasted to the corrections officer about his having sodomized and

raped the victim (TE 1080). He explained the execution of the

victim as follows:

1 had te shoot her, the bitch lived next

door to me and she would recognize me. * * *

I guess we could have tied her up or

something or beat the... out of her and

told her, if she tell, we would kill her.

(TE 1082).

At that moment during his conversation with the corrections

officer, Petitioner “began laughing.” (14.).

Petitioner was convicted of capital murder, first degree

sodomy, first degree robbery, and receiving stolen property. (TR

61-CR-1218, 18-21, 28-31). He was sentenced to death and 45 years

in prison (TE 1542; TR 82-CR-0406, 314). His jointly-tried

co-defendant, David Buchanan, was convicted of murder, first

degree sodomy, first degree robbery, and first degree rape.

Exempted from capital punishment because he was not the

*triggerman", Buchanan was sentenced to life and 60 years in

prison. Buchanan v Commonwealth, Ky., 691 8.1. 2d 210 (1985),

affirmed, Buchanan v. Kentucky, s 107 S.Ct. 2906 (1987).

ARGUMENT .

1.

THE COURT SHOULD NOT GRANT CERTIORARI TO

A

On the first morning of trial, Stanford filed a document

entitled "Voir bite“, which contained 23 questions dealing with

the veniremen's exposure to pre-trial publicity and their

understanding of reasonable doubt (R 201-203, 82-cR-0406).

Stanford also filed a document entitled "Defendant's Proposed

Voir Dire Questions Concerning Capital Punishment”, which

ote

included 2° questions. That list included questions concerning

the defendant's right not to testify, their ability to consider

the death penalty, their ability to consider a penalty less than

death, and other miscellaneous matters.

During their discussion that morning, the trial judge

informed counsel that he would question the veniremen

individually concerning their ability to consider the death

penalty and their ability to serve for 2 weeks (TR 38-39). While

discussing which questions would be asked during individual voir

dire, Stanford's counsel noted, "We have tendered proposed

questions to the capital phase which I take it are overruled?”

(TR 39). The judge responded, “Yeah.” (TR 39). Counsel then

requested the judge to address pre-trial publicity in the

individual examinations and the judge agreed to do so. (TR

39-40). Counsel did not indicate other areas he felt should be

adédressed during individual voir dire. The judge then indicated

that, after individual voir dire was completed, counsel would be

permitted to address other matters during several examinations of

the panel (TR 40-42). Although Stanford alleged on appeal that

the judge's ruling unconst itutionally restricted his voir dire

examination, the only issue raised by the exchange described

above was whether the trial judge erred by failing to include

these questions in the individual voir dire examination.

Allocation of the voir dire questioning is purely @ question of

state law.

Kentucky Rule of Criminal Procedure (RCr) 9.38 provides:

The court may permit the attorney for the

Commonwealth and the defendant or his

attorney to conduct the examination of

prospective jurors or may itself conduct the

examination. In the latter event the court

shall permit the attorney for the

Commonwealth and the defendant or his

attorney to supplement the examination by

such further eres | „ it Seems proper.

The court itself submit o the

prospective jurors sich #ddicional questions

submitted by the pat *s as t deems proper.

The Kentucky Supreme Court has noted that the separate exami-

aation of jurors or prospective jurors is a matter of

procedural policy. Ferguson v. Commonweaith, Ky., 512 8. 5. 28

501 (1974). Purthermore, that court has consistently held that

the manner of conducting voir dire is left to the trial judge

and his actions vill not be disturbed unless he abuses his

discretion in the manner in which the examination was

conducted. Wilson v. Commonwealth, Ky., 601 S.W.2¢ 280 (1980)

and Terjuson, supra. Most importantly, that rule includes the

trial court's decision to require counsel to voir dire jurors

collectively, rather than individually. Woodford v.

Commonwealth, Ry., 276 8. v. 26 526 (1964). Judge Leibson simply

limited the number of questiéns he would address during

individual voir dire, allowing counsel to conduct further

inquiry during collective voir dire. The judge did not abuse

his @iscretion by declining to conduct 211 of the voir dire on

an individual basis. If there was any abuse involved, it was

simply a violation of Kentucky's Procedural Rule. Because no

federal question is involved, the writ should be denied. See

Pulley v. Harris, 465 U.S. 37, 41 (1984); Palmer v. Ohio, 248

U.S. 32 (1918).

fentucky recognizes that, on appeal and in his

petition, Stanford has attempted to extrapolate the judge's

perfunctory "Yeah" into a blanket restriction on Stanford's

7

ability to ask any of the tendered questions, particularly

those questions intended to *life-quality” the jury. However,

this claim is refuted by the facts of the case. Stanford

clearly states, “Defense counsel tendered a list of questions

concerning capital punishment and pretrial publicity which he

wanted the court to ask". (Petition at 10). Therefore, his

position must be that the trial judge's decision not to ask

those questions individually must have led trial counsel to

believe that counsel was barred from asking any of the

questions on the 2 lists. In fact, Stanford argues counsel

chose not to ask any of the “life- qualifying” questions based

upon that belief, coupled with counsel's fear of a contempt

sanction if he dared to determine the scope of the judge's

ruling. The Court should immediately note counsel's lack of

temerity on this point by his immediate request that the trial

judge modify his ruling so that pre-trial publicity would be

included in individual voir dire (TR 39). This request clearly

shows that counsel understood the judge's ruling to be exactly

What it was - an allocation of topics between individual 208

collective voir dire. Stanford's argument is further

undermined by the fact that the trial judge indicated that

counsel would explore other topics, including reasonable doubt,

during collective voir dire. Stanford's counsel did, in fact,

ad@ress reasonable doubt during general voir dire (TR 303).

Finally, counsel] addressed Stanford's right not to testify - 4

topic included in his proposed capital voir dire list - during

general voir dire ‘TR 303). These actions plainly refute

Stanford's claim that counsel believes that the trial judge

imposed a blanket restriction on counsel from asking his

proposed questions. Counsel simply failed to ask.

If the Court should conclude that a federal question

was implicated, Kentucky would argue that this failure to ask

amounted to an independent and adequate state ground for the

Kentucky Supreme Court's decision. Although Kentucky conceded

and the court recognized that a capital defendant has e right

te life-qualify the jury under the principles of Wainwright v.

Witt, 469 U.S. 412 (1985), the Kentucky Supreme Court denied

relief because there was no ruling on the merits of counsel's

ability to employ this procedure. Stanford v. Commonwealth,

Ky., 734 8. u. 2 781, 7866 (1987). Based upon that resolution,

Kentucky would argue that the decision to deny relief rests

squarely upon a finding of procedural default .2/ This is

especially so where the Kentucky Supreme Court recognizes that

a federal constitutional right exists, but denies relief

because counsel failed to obtain a ruling.2/ Although the

opinion does not contain a plain statement that this ruling is

based upon Kentucky law, the decision does clearly and

expressly indicate that it is based on bona fide separate,

adequate and independent state grounds. Michigan v. Long, 465

U.S. 1032, 1041 (1985). The writ should not issue.

/. Kentucky specifically argued that the claim should be

ismissed due to the procedural default, citing White v.

Commonwealth, Ky., 611 8.26 529 (1980).

2/. Contrary to Stanford's assertion, Kentucky has seen several

capital proceedings where defense counsel has employed the “trial

strategy” of building reversible error into the record. Although

there is @ question about the ethical propriety of such @

strategy, the practice is a reality in this state. See: $:3-"

Arguments IV ané v. Counsel's action would satisfy * ucky

Supreme Court's ruling that it would not disregard a claim of

error for lack of objection unless it is apparent that the

failure to object was a deliberate trial tactic.

11.

THE CONSTITUTION DOES NOT REQUIRE SEVERANCE

OF DEFENDANTS FOR TRIAL SIMPLY BECAUSE ONE

FACES A DIFFERENT POSSIBLE PUNISHMENT THAN

THE OTHER

Petitioner argues that he was entitled to 4 separate

trial by reason of co-defendant Buchanan's ineligibility for the

death penalty. Disclaiming there is any benefit to be derived

from a joint trial, Petitioner contends that the Const itution

forbids joinder of defendants for trial unless all face the

identical possible punishment. According to Petitioner, it is

fundamentally unfair for the sentencer to learn that the

government considers one participant in a crime more culpable

than the other.

Kentucky responds that the virtues of a joint trial are

many. The disadvantages, if any, are few. Beyond the obvious

economical considerations is the fact that a joint trial affords

the fact-finder a greater perspective on the whole case. It

enables the sentencer to more accurately assess relative

culpability of all the participants in a crime, or series of

crimes as in the present case. A joint trial also ensures

against inconsistent results by allowing the same sertencet to

determine the appropriate punishment for all those who took part

in the crime. In a joint trial the sentencer need not speculate

as to the possible punishment a co-defendant might receive in a

separate proceeding. In addition, it avoids the fortuitous

result of one defendant gaining a tactical advantage over the

other by being the last to be tried. This further minimizes

delay in the punishment of crimes, all of which promotes

reliabilty in the judicial process.

-16-

Twice last term, the Court spoke at some length on the

significant benefits a joint trial generally confers upon all

concerned. In Richardson v. Marsh, v. s. 107 S.Ct. 1702

(1987) the Court said:

Joint trials play a vital role in the criminal

justice system, accounting for almost one

third of federal criminal trials in the past

five years. Memorandum from David L. Cook,

Administrative Office of the United States

Courts, to Supreme Court Library (Feb. 20,

1987). Many joint trials -- for example,

those involving large conspiracies to import

and distribute illegal drugs -- involve a

dozen or more codefendants. * * * It would

impair both the efficiency and the fairness of

the criminal justice system to require... .

that prosecutors bring separate proceedings,

presenting the same evidence again and again,

requiring victims and witnesses to repeat the

inconvenience (and sometimes trauma) of

testifying, and randomly favoring the last

tried defendants who have the advantage of

knowing the prosecution's case beforehand.

Joint trials generally serve the interests of

justice by avoiding inconsistent verdicts and

enabling more accurate assessment of relative

culpability --

° ven

apar rom se tactical cons ations,

joint trials generally serve the interests of

justice by avoiding the scandal and inequity

of inconsistent verdicts. I. at 1708

(emphasis added).

In Buchanan v. Kentucky, U. 8s. „ 107 s. ct. 2906

(1987) the Court observed that:

-ll-

As demonstrated by the statutory provision

— 2 1 jolndet of offenses and

defendant „„ « the Commonwealth has

determined that it has an interest in

providing prosecutors with the authority to

proceed in a joint trial when the conduct of

more than one criminal defendant arises out

of the same events. Underlying the

Commonwealth's interest in a joint trial is

a related interest in promoting the

reliability and consistency of its judicial

process, nt n

noncapita

7 n join

trials, ury o ns a more complete

view of all the facts underlying the charges

than would be possible in separate trials.

From such a perspective, it may be able to

arrive more reliably at its conclusions

regarding the guilt or innocence of a

particular defendant and to assign fairly

the respective responsibilities of each

defendant in the sentencing. See ABA

Standards for Criminal Justice 13-2:2 (24

ed. 1980). This jury perspective is

particularly significant where, as here, all

the crimes charged against the joined

defendants arise out of one chain of events,

where there is a single victim, and where,

in fact, the defendants are indicted on

several of the same counts. Id. at 2915

(emphasis added).

The Commonwealth's interest in a joint trial

is also bound up with a concern that it not

be required to undergo the burden of

presenting the same evidence to different

juries where, as here, two defendants, only

one of whom is eligible for a death

sentence, are charged with crimes arising

out of the same events. Id. at 2915.

See RCr 9.12, permitting joinder of defendants for trial,

and RCr 6.18, permitting consolidation of offenses for trial.

Owing to this preference for joint trials, @ criminal

defendant is not entitled to severance unless he makes & positive

showing prior to trial that joinder would be unduly prejudicial

to him. RCr 9.16; Commonwealth v. Rogers, Ky., 698 S.W.2¢ 639

(1985). The trial fudge has considerable discretion in ruling

upon such @ motion. Wilson v. Commonwealth, Ky., 695 8. . 2 854,

956 (1985).

In this case, co-defendant Buchanan faced the same

possible punishment as Petitioner unt 1 shortly before trial. (TR

@1-CR-1218. 18-21, 28-31). Prior to trial, however, Buchanan

sought:

. « « Giemissal of the capitel portion of

the indictment against him on the basis that

Stanford had been the triggerman, that

(Buchanan) hed no intent to kill Poore, ané

that, therefore under „ “58

U.S. 782, 102 S.Ct. 55 1 775

(1982), [B8uchanan) could not be sentenced to

The foregoing underscared language refutes Petitioner's

contention that the triel judge snvaded the province of the jury

in assessing relative culpability. The trial judge die not make

any factual or legal determination that one defendant was more

blameworthy than the other. The prosecutor conceded Buchanan's

point, effectively withdrawing his request for the death penalty

against that particular defendant. The triel judge could not

very well require the prosecutor to oppose the motion and seek

Buchanan's death. Neither was the trial judge required to grant

Petitioner @ separate trial on this basis alone.

-13-

Setitioner’s complaint in this case boils down to an

unfounded contention that Buchanan might have been the triggerman

after all. There was no such evidence, however.

Petitioner failed to positively show, before trial, that

joinder would be unfairly prejudicial to him. Commonwealth v.

Rogers, supra; Wilson v. Commonwealth, Supra. Buchanan's

involvement in the killing of Barbel Poore was impressive. He

had planned the robbery; he enlisted the assistance of Petitoner

and Troy Johnson; he timed the robbery so that the victim would

be closing up the gas station and therefore alone; he not only

procured the murder weapon, but insisted that ammunition be

supplied for the gun; he directed Johnson to follow Petitioner

from the gas station to the murder scene; he stood next to

Petitioner when the gunshots were fired; he had the same motive

as Petitioner for permanently silencing the victim. Buchanan v.

Commonwealth, dy. . 691 S.W.2¢ 210, 211-212 (1985). The

significance and extent of Buchanan's participation in the murder

might have been lost on the jury in his absence from Petitioner's

trial. Petitioner could only have benefitted by being tried

together with Buchanan. Severance of defendants for trial was

not constitutionally required. See Shaffer v. United States, 362

U.S. 811 (1960), where it was observed that even a improper

joinder of defendants for trial is not a constitutional violation

in and of itself. See also United States v. Lane, __0.S.__»

106 S.Ct. 725, 730, „. 8 (1966), to the same effect.

The petition for writ of certiorari should be denied

eccordingly.

111.

THE KENTUCKY SUPREME COURT'S DECISION IN

THIS CASE IS CONSISTENT WITH

. ALTERNATIVELY, ANY

TION THEREOF WAS HARMLESS BEYOND A

REASONABLE DOUBT.

During the penalty phase of the trial, Stanford called

Robert Jones to testify. (TR 1483). The Commonwealth objected

to this testimony as irrelevant because it was too narrowly

focused upon Mr. Jones’ experience as a former death row inmate.

Defense counsel argued that Jones should be allowed to give his

philosophical opinion of whether the death penalty should be

rendered, with his knowledge of Stanford (TR 1485). The trial

court tentatively sustained the objection, subject to change

after hearing Jones’ testimony on avowal. (TR 1486-1487). See

RCr (Ky. Rule of Crim. Proc.) 9.52.

During this avowal testimony, Mr. Jones noted that he

had been associated with four programs which dealt with

juveniles. (TR 1488). Mr. Jones was also vice-chairman of the

Kentucky Coalition Against the Death Penalty. (TR 1488-1489).

From his testimony, it was apparent that his primary function was

to gather information concerning the death penalty and to travel

around the country speaking out against the death penalty. (TR

1489-1490, 1492-1493, 1496). In fect, it was apparent that Mr.

Jones’ almost exclusive reason for testifying was to once again

vocalize his opposition to the death penalty in general, relating

this to his personal experience and phi losophy end to the

phisosophies of other speakers, specifically the widow of Dr.

Martin Luther Fing. (TR 1490, 1492-1497). Mr. Jones testified

-15-

on avowal that he had become acquainted witn Stanford while Jones

was a youth counsellor at the children's center. During 1978 and

19794 (rR 1490-1491), Jones 10 speak to Stanford on at least

one occasion during the week prior to trial, at the request of

Stanford's attorney, (TR 1491).° The only testimony by Jones

that even remotely related to Stanford was that, in Jones’

opinion, incarceration in an adult institution would be more

appropriate because such an institution would provide control and

rehabilitation programs. (TR 1491-1492, 1494). At the

conclusion of Jones’ avowal testimony, the trial court ruled that

Jones was not qualified to give his opinion concerning Stanford's

chances for rehabilitation and that his testimony was merely

cumulative, at best. (TR 1498-1500).

17 Tt Te significant that Jones 41% not provide any details

concerning his relationship with Stanford during this period--the

number of times they had talked, the average length of these

conversations, or the nature of the conversations. (TR

1490-1491). Sased upon his limited testimony, the court could

have reasonable concluded that Jones simply knew Stanford to the

extent that they would spead as they passed.

3% The fact that Jones’ personal knowledge concerning Stanford

was 311 but non-existent was evidenced by Jones’ comment,

© 008° that Kevin hed a drug problem.” (TR 1493),

emphasis „ As the proponent of this testimony, Stanford had

the burden of showing that Jones had sufficient knowledge to

provide relevant testimony about Stanford's character or prior

record. Kentucky submits that Stanford did not meet that burden.

6/ Im reality, this testimony eie not actually relate to

Stanford's character or prior record. As with his other

testimony, Jones was simply voicing his preference for

imprisonment over the death penalty, in general.

*

Certiorari is not necessary to eve lop the law in this

area. The Court clearly defined the parameters for admissibility

of such testimony in Lockett v. Ohio, 438 U.S. 586 (1978)

(plurality opinion), by holding that the sentencer, in all but

the rarest kind of capital case, be allowed to consider as a

mitigating factor any aspect of a defendant's character or record

and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death. However, the

Court specifically noted that nothing in the opinion limited the

traditional authority of a court to exclude, as irrelevant,

evidence not bearing on the defendant's character, prior record,

or the circumstances of the offense. Lockett, 438 U.S. at 604,

n.12. Jones’ testimony was properly excluded because it 910 not

have any bearing on those three factors. Similar testimony was

also excluded by the Georgia Supreme Court in Franklin v. State,

245 Ga. 141, 263 S.£.24 666, 672-673 (1980). Cf. Evans v.

Thigpen, 631 r. Supp. 274 (S.D. Miss. 1966), affirmed, Evans v.

Thigpen, 809 F.24 239 (Sth Cir. 1987), cert. den., 107 S.Ct. 3278

(1987). The decision of the Kentucky Supreme Court was

consistent with Lockett.

Even if the Court should find a technical violation of

Lockett, Kentucky would submit that such error was harmless

because Jones’ testimony was simply cumulative.’ As noted

earlier, Jones’ testimony purportedly related to Stanford was

97 The Court has Tested that « violation of

subject to harmless error analysis. te , 451

9.8. „ 107 s. ct. 1821, 18624, (1 7

Carolina, 476 U.S. „ 106 S.Ct. 1669,

of Po

specifically that an adult penal institution would be the more

appropriate remedy for him because such an institution provides

control and rehabilitative programs. This information had

already been presented to the jury through earlier witnesses.

Stephen Smith testified about the rehabilitative programs

available at edult penal institutions. (TR 1379-1381). Dana

Mattison, James Berry, Linda Luking, and Lioyd Davis testified

that Stanford needed some form of control in his environment.

(TR 1411-1412, 1439-1443). Pinally, Mr. Davis testified that

Stanford could be rehabilitated in the penal system. (TR 1466

Any error was harmless. The writ should be denied.

Iv.

ASSUMING THE HOLDING OF ee NSP OF

SHOULD BE EXTENDED TO TH

CAPITAL PROCEEDINGS, WOULD SUCH AN

INSTRUCTION WOULD NOT BE REQUIRED WHERE

THERE IS NO “PROPER REQEUST” FOR SUCH

INSTRUCTIONS.

Stanford urges the Court to extend the holding of

Carter v. Kentucky, 450 U.S. 288 (1981) to the penalty phase of

capital trial proceedings. While agreeing that the Court has

not addtessed this question, Kentucky would submit that this

case does not provide the Court with a proper vehicle to

resolve the issue.

In Carter, the Court held that the Fifth Amendment

requires that a criminal trial judge must give a

„no- dvetse- inf etence“ jury instruction, upon proper request ,

during the guilt phase of a criminal proceeding. Carter, 450

U.S. at 300, 305. (emphasis added). Kentucky incorporated

this holding into its Rule of Criminal Procedure 9.54(3).

-18-

However, the Kentucky Supreme Court has consistent ly noted that

the Carter holding only required such an instruction upon

proper request. James v. Commonwealth, Ky., 679 8. ½. 2d 238,

239 (1984), Ice v. Commonwealth, Ky., 667 8. 2 671, 677

(1984), and Commonwealth v. MeIntosh, Ky., 646 8. w. 2 43, 44

(1983). Therefore, before deciding whether to extend Carter to

the penalty phase of capital proceedings in a general

proposition, the Kentucky Supreme Court was first required to

determine whether Carter was triggered, in this proceeding, by

a proper request.

At the time of this trial, Kentucky Rule of Criminal

Procedure (RCr) 9.54(2) provided:

rey LL *

4 n

7

‘by an offer instruction or

on, or unless he makes his objection

the jury,

Although the Rule provides a defendant three different formats

for making a request, the Rule clearly requires that the

particular objection must be fairly and adequately presented to

the trial judge for the request to be proper. The Kentucky

Supreme Court recognized this to be true in Long Vv.

Commonwealth, 559 S.W.2d 382 (Ky. 1977). In Long, that court

imposed a rule of strict compliance with the bet 9.54(2)

-19-

requirement that a defendant must fairly and adequately present

his position to the trial court. Although Long had tendered an

instruction, the Kentucky Supreme Court found that he had not

made a proper request for a different instruction because the

tendered instruction was not in proper format and Long did not

orally advise the trial court of his specific objection to the

instruction given. That court was required to reach the same

conclusion on the facts of this case.

During the guilt phase of the trial, the judge noted,

"We need a Fifth Amendment instruction.” (TR 1186). Stanford's

counsel indicated that he had submitted a version he considered

to be a little more detailed (TR 1186-1187). Because counsel

had tendered his proposed instructions to th. court reporter,

he provided the judge with a copy of his proposed version of

this instruction (TR 1187). Finding the Commonwealth's

proposed instruction sufficient, the judge overruled Stanford's

proposed instruction (TR 1187). As Instruction Number 12, the

judge instructed the jury that they shall not draw any

inference of guilt from Stanford's election not to testify and

shall not allow it to prejudice him in any way (TR 1257).

Kentucky believes that it is important to note that, during the

discussions concerning instructions for the guilt phase,

Stanford's attorney stated, As usual, we are submitting

separate reasonable doubt, burden of proof, presumption of

innocence and indictment instructions in our packet." (TR

1187-1188).

-20-

During their discussion concerning instructions during

the penalty phase, Stanford did net specifically request that a

"no adverse inference” instruction be given (TR 1361-1366).

Instead, counsel merely voiced a general objection to the

instructions and noted that he had provided the court with a

copy of his tendered instructions (TR 1365). Contrary to his

stated practice, counsel did not tender a separate "no adverse

inference” instruction. Instead, he had language to that

effect in two other instructions.

On lines 34 and 35 of his 44-line tendered

instructions, entitled "Instruction at Beginning of Hearing",

was the sentence, "The defendant is not required to testify and

cannot hold it against him if he chooses not to testify." From

the record, it appears that counsel agreed to the judge's

decision to use the Commonwealth's version of his instructions

(TR 1361). In any event, counsel did not bring this language

to the judge's attention (TR 1361). The last two sentences of

Stanford's tendered "reasonable doubt” instructions provided,

"you are further instructed that Kevin Stanford is not required

to testify in the penalty phase hearing. His election not to

testify cannot be construed as having any weight against him,

nor shall you consider that fact against him." Stanford did

not object to the instruction given regarding reasonable doubt

nor did he bring the above language to the court's attention.

(TR 1361-1366, 1507-1506).

Sie

Stanford did not follow his stated practice of

submitting a separate instruction regarding "no adverse

inference” and compounded the problem by hiding such language

in other instructions. Absent an objection which would have

called this language to the judge's attention, Stanford did not

"fairly and adequately” present his position to the trial

court. Therefore, there was no “proper request" for Carter

purposes. Assuming arguendo that Carter should be extended to

the penalty phase of capital proceedings, this litigant is not

entitled to relief. The writ should not issue.

Vv.

, .

THE JURY INSTRUCTIONS GIVEN ON SENTENCING OPTIONS WERE

SUFFICIENT, AND STANFORD WAS NEITHER PROCEDURALLY NOR

SUBSTANTIVELY ENTITLED TO ANY OTHER SUCH INSTRUCTIONS.

At the outset, Kentucky would note that it urged the

Kentucky Supreme court to summarily reject Stanford's argument

that the capital sentencing instructions were constitutionally

defective, based upon Stanford's procedural default. Under RCr

9.54(2), Stanford was required to fairly and adequately present

his argument to the trial judge's attention. (CF. Argument IV).

Stanford did not submit a separate instruction that would have

advised the jury that a finding that an aggravating circumstance

existed did not require them to vote for the death penalty.

Instead, on lines 19-22 of its 44 line tendered instruction,

entitled "Instruction At Beginning of Hearing,” Stanford inserted

the following sentences:

A finding that the aggravating factors do

exist does not mean that you must give the

death penalty to Kevin N. Stanford. The

question of whether Kevin N. Stanford is put

to death is left to your discretion.

-22-

From an examination of the record, Kentucky believes that counsel

agreed with the judge's decision to use the prosecutor's version

of this instruction. (TR 1361). In any event, Stanford did not

object, with supporting grounds, to the instruction that was

given. (TE 1361). Stanford also relied, on appeal, on his

tendered “Reasonable Doubt" instruction which contained the

sentence, Even if you believe the aggravating circumstances

exist beyond a reasonable doubt you are not bound to return a

finding of death.” Again, Stanford did not object to the

instructions that were given regarding reasonable doubt, or bring

the above language to the court's attention. (TR 1361-1366).

Even if Stanford had properly preserved this claim of

error, he was not entitled to relief. The cases cited by

Stanford simply require that the instructions clearly inform the

jury that they could impose a sentence of imprisonme:c despite

the existence of an aggravating circumstance. As the Georgia

Supreme Court held in the seminal decision of Spivey v. State,

241 Ga. 477, 246 8. F. 2d 2868, 291-292 (1978):

[I]n considering the adequacy of a jury

charge on the sentencing phase of the trial,

the ultimate test is whether a reasonable

juror, considering the charge as a whole,

would know that he should consider all the

facts and circumstances of the case as

presented during both phases of the trial

(which necessarily include any mitigating

and aggravating facts) and that, even though

he might find one or more of the statutory

aggravating circumstances to exist, would

know that he might recommend life

imprisonment. This test is substantive

rather than formalistic and conforms with

the mandate of the Supreme Court of the

United States that "a single instruction to

the jury may not be judged in artificial

isolation, but must be viewed in the context

of the overall charge." [citations omitted).

-23-

Accord Goodwin v. Balkom, 684 F.2d 794 (llth Cir. “

1982). The instructions in this case complied with the

requirement of Spivey and the other cases.

Instruction Number 3 provided:

". « «+ you cannot recommend that he be

sentenced to death unless you are satisfied

from the evidence beyond a reasonable doubt

that at least one of the statements listed

as (a) and (b) in Instruction Number 1

(aggravating circumstances) is true in its

entirety. . . . You are further instructed

that a sentence of life or term of twenty

(20) years imprisonment or more can be

returned even if you believe the number of

aggravating circumstances are weaker than

the number of mitigating circumstances, or

even if you believe that no mitigating

circumstances exist.” (TR 1507).

Instruction No. 4 provided:

(a) If you have a reasonable doubt as to the

truth or existence of any one of the

‘aggravating circumstances’ listed in

Instruction Number 1, you shall not made any

finding with respect to it.

(b) If upon the whole case you have a

reasonable doubt whether the defendant

should be sentenced to death, you shall

recommend a sentence of imprisonment

instead. (TR 1507-1508).

As the Court can see, the jury was first informed that

they could not impose the death penalty unless they found the

existence of an aggravating circumstance beyond a reasonable

doubt. The jury was then informed that they could impose a

sentence of imprisonment even if they believed there were less

mitigating than aggravating circumstances or even if they found

that no mitigating circumstances existed. Finally, they were

instructed that if they had a reasonable doubt, on the whole

-24-

case, that the death penalty was appropriate, they shall

recommend a sentence of imprisonment instead. These instructions

clearly informed the jury that they could impose a sentence of

imprisonment despite the existence of an aggravating circumstance.

Stanford has failed to show a conflict between the

decision of the Kentucky Supreme Court and decisions of other

jurisdictions. Certiorari should be denied accordingly.

VI.

PETITIONER'S POST-ARREST CONFESSION WAS NOT

OBTAINED IN VIOLATION OF HIS PRIVILEGE

AGAINST SELF-INCRIMINATION OR RIGHT TO

COUNSEL. NEITHER DID IT YIELD PHYSICAL

EVIDENCE SUBJECT TO THE EXCLUSIONARY RULE.

After securing the crime scenes, pc ‘ce canvassed the

apartment complex adjoining the Cheker gas sation. (SH I 12).

There, Audrey Jackson and other tenants provided information

suggesting that Petitioner had participated in the crimes. (SH I

16; III 312-313; Iv 473-474).

Police picked up Petiti6ner and, with his mother's prior

consent, took him to headquarters Where he denied any

participation in the crimes. (SH I 14-15, 91-99). Petitioner

eventually requested counsel, at which time the questioning

promptly ceased and a public defender was contacted on his

behalf. (SH I 15-18, 1000-103). Petitioner and his public

det endet left the police station without any charges being

brought (Id).

Very shortly thereafter, when the information provided

by Audrey Jackson and the other apartment complex tenants was

corroborated by Owen Smyzer and Alexis Sloan, police arrested

=

Petitioner for Receiving Stolen Property. (SH I 83-85) Smyzer

and Sloan gave statements against their own penal interest by

admitting to police that they had assisted Petitioner in

disposing of the cigarettes stolen from the Cheker gas station.

(SH I 21-25). It had been reported by informants other than the

apartment complex tenants that Smyzer and Sloan rode around town

selling cartons of cigarettes out of piastic garbage bags. (SH I

21-25; III 307-308).

Sloan told police that he had seen David Buchanan in the

company of another black male at 7:00 on the night in question.

(SH III 321, 329). At that time they were sitting inside a green

car on the apartment complex parking lot next to the Cheker gas

station. (d.) At 10:45 that night, Sloan saw Petitioner carry

away two large boxes of cigarettes for which he had “just made a

play", i.e., he had stolen them. (SH III 322, 338; IV 475). At

Petitioner's request, Sloan took some of the cigarettes and then

he divided them with Smyzer. (SH II 223). On the following day,

Petitioner told Sloan that the cigarettes were from the Cheker

gas station “where the lady was killed." (SH III 323). In his

tape recorded statement, Sloan told the police:

I asked him, you know, where they come from,

he said his buddy and him had took this girl

over to Shanks Lane, they had shot her in

the head. He said he didn't have nothing to

do with the shooting....(SH III 346).

This corroborated Smyzer's statement to the same effect,

all of which gave the police probable cause to arrest

Petitioner. (SH I 21-25, 83-85; II 225-226). By that time, of

course, the police already knew from their investigation of the

26

crime scenes that: (i) the victim had been executed on Shanks

Lane, (ii) with a gunshot to the head, (iii) in connection with

the theft of approximately 300 cartons of cigarettes from the

Cheker gas station. Thus the informants’ tips were sufficiently

detailed, and corroborated by independent investigation, to give

the police probable cause to arrest Petitioner. Under Kentucky

law,

Probable cause exists when the facts and

circumstances within the arresting officers’

knowledge or of which they have reasonable

trustworthy information are sufficient in

themselves to warrant a man of reasonable

caution to believe that an offense has been

committed or is being committed. h a

Commonwealth, Ky., 475 8. . 2 469,

See also Sampson v. Commonwealth, Ky., 609 S.W.24 355, 358

(1980): "The prior knowledge required by an officer [to arrest)

is not such as guarantees a conviction...." Petitioner's

parenthetical objection to probable cause (see footnote 21, page

24 of the petition) is without legal or factual basis.

The thrust of Petitioner's argument is that his

post-arrest confession was obtained in violation of the privilege

against self-incrimination and the right to counsel. Petitioner

contends that despite the suppression of his confession from

evidence, both such constitutional protections were violated

because it yielded information used by the police to obtain other

incriminating proof. Petitioner claims that all "fruits" of this

"poisonous tree"--virtually every item of evidence obtained after

his confession was given--likewise should have been suppressed.

As the Court will see, however, the suppression of Petitioner's

-27-

confession was not constitutionally required. Moreover, the

police obtained additional incriminating evidence in spite of

Petitioner's misleading confession, not because of it.

Upon taking Petitioner into custody, the arresting

officer immediately reminded him of his rights--as had heen done

earlier when he was questioned without arrest--but further

advised that no questions would be asked at such time. (SH I 76;

II 232). Enroute to police headquarters, however, Petitioner

initiated a conversation in which it was volunteered that he had

been acquainted with the murder victim. (SH I 77-78). At this

time the only charge for which Petitioner had been arrested was

Receiving Stolen Property, i.e., the stolen cigarettes. (SH I

75, 83-84).

When he arrived at the police station, Petitioner signed

a written waiver of his rights. (SH II 231-232). Although

Petitioner's mother had previously consented to his being picked

up for questioning, in light of his written waiver of rights the

police failed to notify defense counsel of Petitioner's

post-arrest decision to confess. (SH I 85; II 268-270). In his

ensuing confession, Petitioner gave the police a false lead by

naming Calvin Buchanan as a participant in the crimes instead of

David Buchanan. (SH II 233). Petitioner's confession also

implicated a participant named "Troy", but he gave no last name

or any other means of identifying this accomplice in the crimes.

(SH I 44).

Because the police had failed to double-check with

Petitioner's mother before obtaining the confession, the

-28-

prosecutor would later concede inadmissibilitv of it on «rare ta

grounds? but he argued that no constitutional violation

occurred. (TR I 113-114). The trial judge suppressed the

confession on both statutory and constitutional grounds,

however. (TR I 114-115). Citing Edwards v. Arizona, 451 U.S.

477 (1981), the trial judge considered it improper for police to

have initisteld]!“ @ post-arrest interrogation since Petitioner

had requested and received counsel on the earlier occasion when

his non-custodial questioning took place. (-.

As it did at trial (TR I 113-114) and on direct appeal

to the state supreme court (Appellee Brief, page 58), Kentucky

submits that Petitioner's suppressed confession was not obtained

in violation of his constitutional rights. Following

Petitioner's trial, the Edwards decision on which Judge Leibson

relied was clarified in Wyrick v. Fields, 459 0.S. 42 (1982) and

Oregon v. Bradshaw, 462 U.S. 1039 (1983), both of which apply to

this case by virtue of the new retroactivity rule announced in

Griffith v. Kentucky. 8. 107 s. Ct. 708 (1987).

In Wyrick and Bradshaw it was held that a criminal defendant who

initiates a conversation with police thereby invites

interrogation which may lead to a constitutionally admissible

confession, despite his prior assertion of the right to counsel.

57 Petitioner was seventeen years old at the time. When a

juvenile is taken into custody on a criminal charge, state law

requires parental notification. Ky. Rev. Stat. 208.110; Davidson

vy. Commonwealth, Ky. App., 613 8. . 24 431 (1981). Petitioner's

mother was notified prior to his pre-arrest questioning of

January 13, 1981, and in fact consented to it, but such notice

was not renewed when the police arrested him several hours later

that same day, after he and defense counsel had left headquarters

together.

-29-

E.g., "Well, what is going to happen to me now?" 462 U.S. at

1045; the victim from whom the cigarettes were stolen had been a

"sweet lady". (SH I 77-78). As for the voluntariness of his

ensuing confession, it is fair to say that under the

circumstances, Petitioner's will to remain silent most certainly

was not undermined by repeated rounds of questioning. Michigan

v. Mosley, 423 U.S. 96 (1975). The two interrogations were hours

apt, separated by a spontaneous admission that Petitioner knew

about the victim, and the confession was given only after

learning that the police had gathered a strong case against him.

Petitioner's right to remain silent was scrupulously

honored and his confession followed an oral warning as well as a

written waiver of rights. In short, the trial judge erred by

ruling that the Constitution required suppression of Petitioner's

confession. ®

Not only was there no "poisonous tree", there were no

"fruits" derived therefrom either. Police solved the case in

spite of the misleading information Petitioner gave them, not

because of it. United States v. Ceccolini, 435 U.S. 268 (1978).

It was Calvin Buchanan who led police to co-defendant David

Buchanan and tricked him into incriminating himeelf during a tape

37 Consistent with the concession it made at trial, however,

Kentucky continues to agree that the confession was inadmissible

on state law grounds since Petitioner's mother was not notified

of his arrest. Davidson v. Commonwealth, supra. But while Ky.

Rev. Stat. 208.110 re admissibility o etitioner's

confession, it does not require suppression of any "fruits"

derived therefrom. The statute is merely a procedural rule which

does not confer any new rights upon a juvenile arrestee.

Instead, it only requires parental notification that the juvenile

has been taken into custody.

-30-

recorded telephone conversation. (SH III 380-381). It was David

Buchanan who implicated Troy Johnson, supplying a last name for

this co-defendant which Petitioner did not. (SH I 36-38, 65).

Petitioner's mother, with the advice of his defense lawyer,

consented to the seizure of the gas station keys from her

apartment. (SH III 366-372). The only fruit borne of

Petitioner's suppressed confession had been a false lead

implicating Calvin Buchanan, who did not participate in any of

the crimes. (SH II 231-233; TR I 115-116). It neither solved

the case nor contributed to probable cause against Petitioner.

In view of all the foregoing, the petition for writ of

certiorari should be denied.

N VII.

THE INTRODUCTION OF A “SANITIZED" CONFESSION

BY A NON-TESTIFYING CO-DEFENDANT DID NOT

DENY PETITIONER HIS RIGHT TO CONFRONTATION.

In Cruz ». New York, U.S. , 107 S. ct. 1714

— —— — — — —

(1987) the Court held that the Confrontation Clause bars

admission of a non-testifying co-defendant's confession if it

facially incriminates the defendant, even though the jury is

admonished not to condsider such evidence against him.

Decided on the same day as Cruz, the opinion in

Richardson v. Marsh, 9... 107 S.Ct. 1702 (1987) held

that the Confrontation Clause is not violated by the introduction

of a non-testifying co-defiendant's confession if it fails to

facially incriminate the defendant, where the jury is instructed

to disregard such evidence accordingly in determining his guilt

or innocence.

ele

What distinguishes these two cases is that in Cruz, the

co-defendant's confession directly implicated the defendant,

whereas in Richardson it did not. Consequently, only in

Richardson was it realistic to assume that the jury could

genuinely adhere to the admonition limiting the effect of the

co-defendant's confession?

"There is an important distinction between this case and

Bruton??

„ which causes it to fall outside the narrow exception

we have created. In Bruton, the codefendant's confession

"expressly implicat[ed)" the defendant as his accomplice.

(citations omitted). Thus, at the time that confession was

introduced there was not the slightest doubt that it would prove

"powerfully incriminating.” (citations omitted).~ By contrast,

in this case the confession was not incriminating on its face,

and became so only when linked with evidence introduced later at

trial....Where the necessity of such linkage is involved, it is a

less valid generalization that the jury will not likely obey the

instruction to disregard the evidence. Specific testimony that

"the defendant helped me commit the crime” is more vivid than

inferential incrimination, and hence more difficult to thrust out

of mind. Moreover, with regard to such an explicit statement the

only issue is, plain and simply, whether the jury can possibly be

expected to forget it in assessing the defendant's guilt; whereas

with regard to inferential incrimination the judge's instruction

may well be successful in dissuading the jury from entering onto

the path of inference in the first place, so that there is no

incrimination to forget. In short, while it may not always be

107 Bruton », United States, 391 U.S. 123 (1968).

e32-

simple for the members of a jury to obey the instruction that

they disregard an incriminating inference, there does not exist

the overwhelming probability cf their inability to do so that is

the toundation of Bruton's exception to the general rule. 107

S.Ct. at 1707-1708,

In the present case, co-defendant Buchanan's confession

was “sanitized” so as to remove all references to Petitioner by

name. As presented to the jury, Buchanan's confession referred

to the existence of an accomplice only as the “other person” or

the “other subject.” (TE IV 482-486). Therefore the confession

of this non-testifying co-defendant, while it alluded to the

existence of an accomplice, did not directly or facially

implicate Petitioner as a participant in the crimes.

Neither did Buchanan's confession, when linked“ with

the other evidence at trial, necessarily incriminate Petitioner

by inference. The jurors were well aware that Troy Johnson also

participated in this crime spree. Although Johnson testified at

the joint trial of Petitioner and Buchanan that he (Johnson) had

merely supplied the murder weapon, procured ammunition for it and

had driven the getaway car, the jury could have concluded that

the “other person“ referred to in Buchanan's edited confession

was not Petitioner but Johnson instead, For that matter, the

jury could have believed that the “other person” was Buchanan's

uncle Calvin. As noted on page 4 of the petition, witnesses

Amona Dorsey and Kerise Ison initially identified Buchanan's

uncle Calvin from a line-up as one of the killers, without

positively identifying Petitioner. Uncle Calvin, in fact, was

-33-

arrested and charged with the murder until he tricked David

Buchanan into admitting his own guilt. See Stanford v.

Commonwealth, Ky., 734 S.W.2d 781 (1987) at 783. Indeed, at

trial a policeman testified that "Calvin Buchanan had been

implicated by [Petitioner] as being the person who had

participated...." (TE IV 523), emphasis added. In short,

Buchanan's edited confession implicated only himself and an

unnamed accomplice who could have been any one of at least three

different people even when considered together with “linkage”

evidence. Thus, Petitioner was not even indirectl, incriminated

by Buchanan's confession, 11

Petitioner complains to this Court that no limiting

admonition was given to the jury, but he fails to explain why it

was not done, The reason was that his trial lawyer did not want

an instruction limiting the effect of Buchanan's confession.

Satisfied that Petitioner would not be referred to by name in

Buchanan's confession, defense counsel acknowledged on the record

that a limiting instruction could backfire, i.e., actually focus

attention on Petitioner. (TE IV 482). After expressing his

dissatisfaction with the trial judge's idea of admonishing the

II/ Footnote 5 of the majority opinion in Richardson v. Marsh,

supra, has not escaped Kentucky's attention: “We express no

Opinion on the admissibility of a confession in which the

defendant's name has been replaced with a symbol or neutral

pronoun.” 107 S.Ct. at 1709. Since the “other person“ referred

to in Buchanan's edited confession could have implicated his

uncle Calvin, or Troy Johnson, who admitted at least some

participation in the crimes, the confession under consideration

here might as well have not even alluded to the existence of any

accomplice as far as Petitioner is concerned. Consequently,

Kentucky believes that Richardson u,. Marsh controls this

situation.

-34-

jury, defense counsel failed to pursue the matter further.

(Id.) Although he never specifically asked that the trial judge

refrain from giving the admonition, defense counsel made it clear

that he thought such a charge would backfire and, accordingly,

failed to ask that it be given. While the Kentucky Supreme Court

generally considers unpreserved allegations of errors in capital

cases, it has departed from this policy where an omission or

non-ruling appears to have been contrived by defense counsel as a

matter of trial strategy. See, e.g., Ice v. Commonwealth, Ky.,

667 S.W.2d 671, 674 (1984). The absence of a limiting

instruction in this case obviously resulted from defense

counsel's trial strategy. He indicated a belief, on the record,

that such a charge would be futile or focus attention on

Petitioner. If a criminal defendant can knowingly waive other

benefits and considerations--see B nan _v. Kentucky, Supra, at

2921 (Marshall, J., dissenting) concerning "residual doubt"--he

surely can do so with respect to a limiting admonition.

Kentucky alternatively argues, as it did before the

state supreme court, that any conceivable error in this matter

would have been harmless beyond a reasonable doubt considering

the spectacular evidence of Petitioner's guilt. In addition to

the eyewitness account of participant Troy Johnson (TE VII

}037-1038, 1044) are Petitioner's fingerprints found inside the

car where Barbel Poore was executed (TE V 708, 718-719; VII 917),

-35-

Petitioner's pubic hairs found on the victim's corpse and

us

clothing (TE VI 804-808), and the gas station keys found on top ——

WHEREFORE, the petition for writ of certi

of Petitioner's dresser (TE IV 473-475). ‘ N „„

be denied.

Beyond the foregoing are Petitioner's own admissions of

Respectfully submitted

guilt. He told Alexis Sloan that he had “made a play” for | “ sites :

DAVID L. ARMSTRONG

(stole) the boxes of cigarettes from the Cheker gas station. (TE ATTORNEY GENERAL

VII 1002-1003). Petitioner told corrections employee Richard ,

C. LLOYD VEST II

Reetzke that he would blow his “mother...brains out” as he had ASSISTANT ATTORNEY GENERAL

done just like the girl.” (TE VIII 1063). Petitioner bragged Qua 0

to other inmates about the crimes he had committed egainst Barbell y

*DAVID A.

Poore, then laughed when he resumed such boasting to corrections ASSISTANT ATTORNEY GENERAL

CAPITOL BUILDING

employee Michael Nally. (TE VIII 1076-1078, 1080, 1082). Thus, FRANKFORT, KENTUCKY 40601-3494

any possible error would have been harmless. Harrington v. COUNSEL FOR RESPONDENT

*Counsel of Record

California, 395 U.S. 250 (1969); Schneble v. Florida, 405 U.S.

427 (1972).

Accordingly, the petition for writ of certiorari should

be denied.

VIII.

THE EIGHTH AMENDMENT DOES NOT LIMIT CRIMINAL

PUNISHMENT ON THE BASIS OF AGE ALONE.

On November 9, 1987 the Court heard oral argument of

this identical issue in Thompson v. Oklahoma, No. 86-6169,

cert. granted . s. „ 40 Cr.L.Rptr. 4175 (February 23,

1987). There, Kentucky filed an amici curiae brief on behalf

of Oklahoma and 18 other States. For the sake of brevity,

Kentucky hereby incorporates those 20 pages of argument rather

than repeat them in this brief. Copies of Kentucky's amici

curiae brief in Thompson have been served upon counsel for

Petitioner in this case.

o37-

36

PROOF OF SERVICE

I hereby certify that three (3) copies hereof have been

mailed, postage prepaid, to the Honorable Frank u. Heft, Jr., Chief

Appellate Defender of the Jefferson District Public Defender, and the

Honorable Daniel T. Goyette, Jefferson District Public Defender, both

at 200 Civic Plaza, 719 West Jefferson Street, in Louisville, Kentucky

40202, on this the 2 day of January, 1988.

-38-