Appendix — Moore v. Kentucky

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JEFFERSON Crrcuit Court

CriminaL BrancH

First Division

No. 143639

ComMMONWEALTH oF Kentucky, Plaintiff

Vv.

Wriuiam Banton Moore, Defendant

Opinion of Court on Motion for a New Trial

Defendant’s motion for a new trial alleges 28 grounds

chy the verdict of the jury finding him guilty of voluntary

nanslaughter in the killing of his wife and fixing his

wnishment at confinement of 21 years in the penitentiary

hould be set aside. Many of the grounds are duplicitous.

\fter hearing oral arguments by counsel for defendant

nd the Commonwealth and after reading the numerous

uthorities submitted, the court considers only two of the

8 grounds sufficiently meritorious to require extended

omment.

Defendant insists there was insufficient evidence sub-

nitted to prove the corpus delicti and therefore he was en-

itled to a directed verdict of acquital. In support of this

ontention he cites Hollin, et al v. Commonwealth, (Ky.)

07 S.W. (2d) 910; Ratliff v. Commonwealth, (Ky.) 406

.W.(2d) 728; Witt, et al v. Commonwealth, 305 Ky. 31,

02 S.W.(2d) 612; Hendrickson v. Commonwealth, (Ky.)

35 S.W.(2d) 981; Alexander v. Commonwealth (Ky.) 277

.W.(2d) 17 and several other cases of like import.

In Hendrickson and Alexander there was a total lack

f evidence to prove a crime had been committed. Hollin

nd Ratliff the only evidence connecting defendants with

he killings was that defendants were with the victims

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some hours prior to the finding of their bodies. Such eases

are plainly distinguishable on their face from the case at

bar.

In Witt et al v. Commonwealth, supra, all concerned were

involved in a drinking bout. The question was whether the

deceased died as a result of blows inflicted im a fight or

from other causes. The opinion of the court states a doctor

testified :

‘‘There was no break in the skin, no blood issuing from

any of the wounds, and there was no other marks indi-

eating violence on the body. The doctor stated that it

was possible for death to have been caused by blows

producing the wounds he described. There was evi-

dence that the deceased was afflicted with a heart

ailment, and the doctor stated that death could have

been produced by over-indulgence in alcohol; he testi-

fied that he could not determine which, if cither, of the

probabilities caused the death.”’

The opinion further stated:

‘““There was no evidence of a fracture, and the

testimony of the embalmer indicates that there was no

rupture or leakage in the vascular system when the

body was embalmed. No post mortem operation was

performed, and the only doctor to testify frankly

stated that he did not know the cause of death, as he

could not determine from his findings whether death

was caused by over-indulgence in alcohol and its effect

upon a weakened heart or by a blow to the head and its

possible effect upon the deceased.”’

The Court held medical testimony is not always neces-

sary to prove cause of death, but it may be shown by cir-

cumstantial evidence and concluded:

‘None of the blows to Portman’s face was delivered

with sufficient force to break the skin; the tear to the

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eye was a mere surface wound; it did not penetrate

the brain; and there was no evidence of a fracture or

internal hemorrhage .... By clear and cogent evidence

we do not mean that the evidence must be without con-

tradiction, or such as to command belief; but it must

present more than a mere possibility of the existence

of the fact or the happening of the act which the jury ts

called on to determine. Fractures of the skull often

produce death, and such is common knowledge; but

mere superficial bruises . . . . seldom, if ever, produce

death and this also is common knowledge.”

In Commonwealth v. Sullivan, 285 Ky. 477, 148 S.W.(2d)

349, the left side of the victim’s skull was crushed and bone

of the skull was pressing on his brain as a result of being

struck by defendant with a rock. A doctor testified he was

unable to say what caused the death of the victim. The

Court affirmed a verdict of guilt saying:

“Without any medical testimony, the evidence was

sufficient to take the case to the jury on the issue as

to whether or not his death was caused by the wounds

inflicted by appellee . . .. There are many cases where

the facts proved are such that any laymen of average

intelligence would know from his own knowledge and

experience that the injuries were the cause of death

_...A mere possibility that death resulted from some

cause other than the act of accused will not overcome

facts proved leaving no rational grounds for doubt

citing cases).””

One of the foremost authorities on criminal law is Pro-

fessor Rollin M. Perkins. In his recent text book, Perkins

on Criminal Law, p. 106, he states “‘the corpus delicti of

murder is homicide.’’? Long ago Wigmore reached the same

conclusion. Wigmore on Evidence, Vol. 7, Sec. 2073. Rober-

son’s New Kentucky Criminal Law & Procedure is in ac-

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cord, Secs. 282 and 423. All case law, Kentucky and foreign,

is that the corpus delicti consists of two elements; the

existence of a certain act or result forming the basis of

the criminal charge, and existence of criminal agency as

having caused it. Kentucky cases are collected in 10A

Kentucky Digest, Homicide, Key #228.

If, therefore, the evidence taken as a whole in the case at

bar leaves no reasonable doubt that a homicide was com.

mitted, the corpus delicti was proven. In other words, if

there was sufficient evidence to submit the case to the jury

the corpus delicti rule is met. That there was sufficient evi-

dence is beyond doubt. Two medical experts for the Com-

monwealth stated that the criminal agency was blows to

the head of the deceased. Two medical experts for the de-

fense stated otherwise but admitting the possibility of the

criminal agency. Regardless of the testimony of the medi-

cal experts, the jury was amply justified from the photo-

graphs and all other evidence introduced, including the

testimony of defendant, in concluding beyond any reason-

able doubt that the criminal agency was blows to the head

of the deceased. While defendant denied killing his wife,

he repeatedly admitted to investigating officers that if she

was killed he did it. The Court is convinced all elements of

the crime of homicide were proven and therefore there is no

merit in the contention that the corpus delicti was not

proven by the Commonwealth.

Defendant vigorously claims the court erred in admitting

numerous color photographs in evidence, several of which

were enlarged. The contention is that they were gruesome

and prejudiced the jury against defendant. Numerous

cases are cited holding that gruesome photographs serving

no useful purpose are inadmissible in evidence. The Court

has no quarrel and agrees with that established rule, but it

is wholly inapplicable and does not govern the case at bar.

Color photographs are admissible under the same circum-

stances as black and white photographs. 22 C.J.S. See. 852

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(1), p. 360; 48 Journal of Criminal Law, ete. 321; Annota-

tion, 50 AL.R.(2) 1102; People v. Stoudt, (Ill.) 232 N.E.(2)

g00 (1968). In People v. Brawley (Cal.) 461 P.(2) 361

(1969), a murder case with a sentence of death, the court

said: “‘The color photographs were used by the autopsy

surgeon to point out to the jury the numerous lacerations

on the body. In addition to illustrating and clarifying the

autopsy surgeon’s testimony, the pictures constitute cir-

cumstantial evidence of malice (citing cases).’’

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Enlarged photographs are admissible and proper.

Puckett v. Commonwealth, (Ky.) 255 S.W. 125; U.S. v.

Nolan, 316 Fed.(2) 588; U.S. v. Parhms, 424 Fed.(2) 152,

| cert. denied.

In the opening statement by counsel for defendant the

jury was told that the victim met her death by reason of a

fall or falls in the bathroom of their home. The defense was

that the victim died as a result of an accidential fall or

repeated falls due to her consumption of alcohol beverages.

To refute the contention that the victim’s death was acci-

dential and to show it was brought about by a criminal

agency, the photographs were clearly admissible regard-

less of their gruesomeness. All the cases and text authori-

ties so hold.

In Jaggers v. Commonwealth, 439 S.W.(2d) 580 (1969)

the contention was that the photographs were extremely

gory, showing blood and gore everywhere. In affirming a

death verdict for murder the court said:

‘As noted in Salisbury v. Commonwealth, 417 S.W.

(2d) 244, the rule prohibiting inflamatory evidence does

not preclude the disclosure of the basic facts surround-

ing the commission of a crime when these facts are

relevant to the issues on trial. Clearly, the Common-

wealth was on its proof to demonstrate that the dece-

dent had been beaten to death by the defendant. The

evidence complained of tended to prove that charge.”’

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In Salisbury v. Commonwealth, 417 S.W.(2d) 244, a mur.

der charge and a death sentence, as to the gruesome photo.

graphs introduced, the court said:

‘“‘The photographs were competent, as a part of the

res gestae. The rule prohibiting the exhibition of jp.

flammatory evidence to a jury does not preclude the

revelation of the true facts surrounding the commis.

sion of a crime when these facts are relevant and

necessary. When the rule otherwise, the state would be

precluded from proving the commission of a crime

that is by nature heinous and replusive. If evidence js

otherwise competent, the fact that it is heinous or re.

plusive will not make it incompetent. Where the photo-

graphs revealed nothing more than the scene of the

crime and the persons of the victims, they were not

incompetent, Smith v. Commonwealth, Ky. 402 S.W.

(2d) 686, Howard v. Commonwealth, Ky., 395 S.W.

(2d) 355.

In Hollin, et al v. Commonwealth, 307 S.W.(2d) 910, the

same defense as in the case at bar was interposed. In hold-

ing the photographs admissible the Court said:

acu the Court correctly ruled that the photographs

of Humfleet’s body were admissible. We reach this

conclusion because the photographs tend to show that

Humfleet’s death was not accidential, but that his

death was due to a malicious and heinous attack upon

his person.”’

Other cases holding gruesome photographs admissible

when necessary to prove a homicide are: Johnson v. Com-

monwealth, 445 S.W.(2d) 704; Napier v. Commonwealth,

426 S.W.(2d) 121, an able opinion by Judge Palmore ; Smith

v. Commonwealth, 402 S.W.(2d) 686.

In State v. Johnson, (N.M.), 263 Pae.(2d) 282, photo-

graphs ‘‘exposing fractures of the skull and certain fleshy

parts of the head and shoulders of the deceased’’ similar to

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the photographs in the case at bar, were admitted in evi-

dence. Text authorities are in accord with the Kentucky

eases. Wigmore on Evidence, Vol. 4, See. 1157; 23 C.J.S.,

Criminal Law, See. 852(1). The cases are collected in an

annotation, 73 A.L.R.(2) 768. In view of the above authori-

ties the contention that the photographs were inadmissible

lacks merit.

Ground +8 says error was committed in admitting into

evidence various items of property removed by the police-

detectives from the bathroom of the home of defendant and

the victim when they were called to the scene of the homi-

cide. No question of search is presented. There was no

search at the time as none was necessary. Evidence of a

crime was seized. The police-detectives would have been

derelict if they had not done so. It is settled that no arrest

or warrant is necessary prior to taking possession of evi-

dence found at the scene of a crime. Johnson v. Common-

wealth (Ky.) 443 S.W.(2d) 20; Irvin v. Commonwealth,

(Ky.) 446 S.W.(2d) 570.

Ground #12 apparently attempts to say that the court

excluded jurors in violation of Witherspoon v. Illinois, 391

US. 510, 88 S.Ct. 1770, even though the defendant on trial

was not found guilty of wilful murder. Be that as it may,

the court strictly complied with the rule announced in

Witherspoon as the transcript of the voir dire examination

clearly shows.

Several grounds complain, in general terms, of the in-

structions given by the court and of the refusal of the court

to give tendered instructions. The court instructed on mur-

der, manslaughter and two degrees of involuntary man-

slaughter. A specific instruction on accidental death was

refused. This was proper. The last of the many cases so

holding is Dolan v. Commonwealth, decided June 4, 1971 by

the Court of Appeals.

Ground #23 complains of error in permitting the jury to

view the scene of the crime after all evidence was com-

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pleted. The jury made the request to view the scene, \

complete answer to this contention is that counsel for de-

fendant and the Commonwealth expressly agreed and cop.

sented that the jury go to the scene. The record so reflects,

Further the governing statute, KRS 29.66, was strictly

complied with. The court accompanied the jury, as re.

quired, and made certain jurors asked no questions or dis-

cussed the case at the scene. In addition, this contention js

squarely laid to rest by Barnett v. Commonwealth, (Ky.)

403 S.W.(2d) 40.

Ground #24 contends the court erred in permitting the

jury to deliberate from 1:30 p.m., Friday, June 11, to

approximately 5:30 a.m., Saturday, June 12, without sleep.

For reasons hereinafter stated this contention borders on

the frivolous.

No contention is made or could be made as to a ‘‘ Allen

charge’’ as the court at no time or in any manner com-

municated with the jury exeept at their written request.

Arguments of counsel were completed shortly after noon on

Friday, June 11. The jury went to lunch and returned at

1:30 p.m. Some five hours later the jury delivered to the

court a written request, filed in the reeord, to be taken to

dinner. They returned from dinner approximately an hour

later and resumed their deliberations. Later the jury re-

quested and received coffee. The court informed the jury in

open court to advise the court, after returning to the jury

room, if they desired to continue their deliberations or if

they desired to retire for the night. The jury immediately

notified the court in writing, filed in the reeord, that they

wished to continue their deliberations. They did so until

approximately 5:00 a.m. when the jury notified the court

in writing, filed in the record, their desire to retire for the

night to a hotel. They informed the court they would re-

turn at 2:00 p.m. on Saturday, some eight hours later, to

continue their deliberations. The jury returned at 2:00 p.m.

on Saturday and three to four hours later reached a verdict.

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Thus, every shot was called by the jury without an iota

of interference or suggestion from the court. In the matter

of length of deliberation, of meals and sleep, the jury con-

trols the court, not the court the jury. Tarrence v. Com-

monwealth, (Ky.) 265 S.W.(2d) 40. This ground is wholly

without merit.

Ground #22, containing numerous sub-grounds, alleges

the prosecutor made inflamatory remarks to the jury in his

closing argument. Among other things, it is said he testi-

fed to the reputation of the two medical experts for the

Commonwealth; that it was prejudicial for him to infer

that the medieal experts for the defense were attempting to

pull the wool over the eyes of a dumb Kentucky jury; that

he deduced unjustified inferences from the evidence, ete.

The prosecutor in his summation strongly urged the jury

to inflict capital punishment for the offense of wilful mur-

der, The jury was not persuaded or influenced by the argu-

ment, as it found defendant guilty of voluntary man-

slaughter, indicating the prosecutor’s argument was any-

thing but inflamatory. It is true the prosecutor’s language

would perhaps be out of place at a chureh meeting, but it

was appropriate in urging maximum punishment for the

offense of wilful murder under the evidence before the jury.

In Lewis v. Commonwealth, 307 Ky. 733, 212 S.W.(2d)

969, the court said:

“In the case of Housman v. Commonwealth, 128 Ky.

818, 110 S.W. 236, 239, the rights and limitations im-

posed upon prosecuting counsel in his argument to the

jury are thus defined: ‘Much latitude is of necessity

allowed an attorney in the presentation of his case; the

only limitations being sueh as require him to confine

himself to the facts introduced in evidence, and the fair

and reasonable deductions and conclusions to be drawn

therefrom, and the application of the law, as given by

the court, to the facts proven. Controlled, regulated,

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and bounded alone by these limitations an advocate

may, with perfect propriety, appeal to the jury with

all the power, force, and persuasiveness which his

learning, skill, and experience enable him to command,

and of this character ‘of argument the accused may

not complain, even though he feels that his conviction

may be traceable more directly to the argument of

counsel than to the facts proven.’ That definition has

never, so far as we have been able to ascertain, been

eriticized or in any manner limited by any opinion of

this court since that date. On the contrary it has been

followed in numerous cases.”’

The court did not allow either counsel to testify in their

summations. Arguments, characterizations and inferences

reasonably based on the evidence is perfectly proper argu.

ment. //all v. Commonwealth, 242 Ky. 717, 47 S.W.(2d)

538. Such does not constitute testifying.

The argument by the prosecutor to the effect that medi-

eal experts for the Commonwealth inspired confidence and

reflected on the witness stand honesty, truthfulness and

sincerity, was proper argument. Parson v. Commonwealth,

(Ky.) 112 S.W. 617. So also was the argument to the effect

that the medical experts for the defense were attempting to

pull the wool over the eyes of a Kentucky jury. In McGee

v. Commonwealth, (Ky.) 395 S.W.(2d) 378, the prosecutor

said: ‘*They come in here with a cock and bull story that

it was an accident and expect the jury to let him off.’’ The

Court held such was proper argument. A statement by the

prosecutor that defendant ‘‘fixed up his defense’’ was held

proper argument in Phillips v. Commonwealth, 227 Ky. 212,

12 S.W.(2d) 305. ‘‘Beeause you are country people, he

thinks he can ram such as that down your throat’’ was

held improper in Thompkins v. Commonwealth, (Ky.) 90

S.W. 221. And the prosecutor had the right to ‘‘comment

on the interest (also their bias) of the witnesses for the

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efense as affecting their eredibility.’’ Jump v. Common-

ealth, (Ky.) 444 S.W.(2d) 723. The contention the pro-

eeutor erred when he asked the jury, in effect, what they

ere going to tell the good people of the community is with-

ut merit. Stanfill v. Commonwealth, 209 Ky. 10, 272 8.W.

: McGee v. Commonwealth, (Ky.) 395 S.W.(2d) 378; John-

on v. Commonwealth, (Ky.) 302 S.W.(2d) 585.

All statements of the prosecutor were arguments,

haracterizations of inferences fairly based on the evidence

efore the jury. None, in the opinion of the court, were

rroneous much less prejudical. The court finds Ground

+22 without merit.

The several other grounds advanced for a new trial have

Il been considered and found lacking in substantial merit.

The defendant charged with wilful murder, was con-

jeted of voluntary manslaughter. The evidence amply sus-

ains the verdict of the jury. He was represented by able

ounsel and the court, as was its duty, gave defendant the

nefit of every doubt. He had a fair trial, free of error-

rejudicial or otherwise. The motion for a new trial is

lenied.

This opinion is ordered filed and made part of the ree-

rd,

S. Rusu Nicnoison

Judge

July 18, 1971

Mr. Frank Haddad, Jr., Attorney

for Defendant.

Mr. Carl C. Ousley, Jr., Attorney

for the Commonwealth.

ee eee ns : —

Rendered: November 17, 1979

COURT OF APPEALS OF KENTUCKY

Wituram Banton Moore, Appellant

v.

AppEAL From JEFFERSON Circuit Court

Hon. S. Rusu Nicnouson, JupGE

CoMMONWEALTH OF Kentucky, Appellee

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; Opinion of the Court by Justice Osborne

AFFIRMING

Appellant was convicted of voluntary manslaughter and

sentenced to 21 years’ imprisonment for the slaying of his

} wife, Louisa Moore. The facts of the case are as follows:

i Appellant, an architect, resided with his wife and two

; children at 3 Woodhill Road in Prospect, Kentueky. On

December 4, 1970, Louisa had been visiting in New York

City. Sometime in the late afternoon or early evening

she flew home from New York and disembarked at Stan-

diford Field. Appellant met her there. They went to a

| restaurant in Louisville where they had dinner, accom-

panied by two or three drinks.'| After dinner they went

to their home. According to appellant they arrived there

between eight and nine o’clock. They went straight up-

stairs to their bedroom where Mrs. Moore turned on the

television and they talked for a short period of time. Mrs.

Moore mentioned that she wanted a divoree. According

to appellant’s testimony he advised her it was impossible,

that they had too many responsibilities. He further testi-

fied that at this point he felt the conversation might be-

come argumentative so he suggested that he go sleep in

another room and left. He testified that he went down-

Rake Pee Es gre.

' Appellant testified his wife had been drinking when she arrived.

REN St 54 EP cL ea ats

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stairs and turned on a television there, sat down and

watched it for a minute or two until there was an inter-

mission, went outside and picked up the suiteases and

brought them to the bedroom; that it was probably around

ten o’clock when he took the suitcases upstairs, and that

he did not see his wife when he entered the bedroom. He

assumed she was in the bathroom.

Following this he went back downstairs to the den where

he read the newspapers and watched television until about

midnight. When he went back to the bedroom, his wife

was not there. The suiteases were unopened. He then

looked into the bathroom and found her lying on the

floor. He testified that she was lying pretty much on her

back with her face turned slightly away from the door. He

felt for her pulse, then took a hand mirror from a vanity

table to see if she was breathing. No moisture was formed

on the mirror, whereupon he proceeded to give her artificial

respiration. Following this he attempted mouth-to-mouth

resuscitation, After he determined that he could not revive

her he called Dr. Burford Davis. Dr. Davis arrived shortly

thereafter and advised him that she was dead. Upon receiv-

ing this information he called the police, Appellant testified

that he was not sure whether he called the police or Dr,

Davis made the call. Upon their arrival, appellant advised

the police that no other person could have entered the

house and if his wife were killed, he would have to be the

one who did it, but that in his opinion she died as the result

of a fall in the bathroom.

The Commonwealth introduced into evidence testimony

of police officers who arrived upon the scene along with

personnel from the coroner's office describing the condition

in the bathroom at the time they arrived. Photographs of

the interior of the bathroom were introduced into evidence,

The deceased was shown on the floor of the bathroom in

a virtual sea of blood. Blood, hair and tissue were scat-

tered over the entire interior surface of the bathroom on

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the floor, walls and ceiling. The entire scalp on the back

half of the deceased’s head was torn loose and hanging

open and her skull was fractured. In addition, she had

small bruises and abrasions on her arms, shoulders and

on her neck.

Dr. Lawrence H. Boram, a resident pathologist at Louis.

ville General Hospital, performed the autopsy on the body,

The substance of his testimony is that in his opinion the

deceased died as the result of multiple blows by some

relatively blunt object, and that the wounds found on her

body could not have been caused by a fall.

Dr. Allen Lansing also testified that in his opinion the

injury was caused by multiple blows to the head by a very

hard object and that the injury could not have resulted

from a fall. The appellant offered evidence by expert

pathologists that contradicted the testimony of Dr. Boram

and Dr. Lansing.

Appellant first contends that there was insufficient evi-

dence of corpus delecti to submit the case to the jury. We

disagree. The testimony of Dr. Lansing and Boram

coupled with the photographs in the case, in our opinion,

were sufficient beyond any doubt to convince the unbiased

observer that the deceased met her death as the result

of violence from some other source than a fall. Since ap-

pellant admitted that no person other than himself could

have inflicted the injuries, we believe this was sufficient to

establish corpus delicti.

Appellant’s second contention is that the trial court

committed prejudicial error in allowing the colored photo-

graphs and blood-stained clothing to be introduced into

evidence. We have examined the evidence carefully and

believe they were properly admitted. We stated in Salis-

bury v. Commonwealth, Ky., 417 S.W. 2d 244 (1967), that

where the facts revealed by photographic evidence are com-

petent and necessary, the evidence cannot be excluded

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ecause it is heinous or repulsive. We there pointed out

hat were the rule otherwise, the state might be precluded

rom proving the commission of a crime that by its nature

‘as heinous or repulsive. We believe the photographs in

his instance were without question the best evidence of

he scene of the interior of the bathroom where the body

‘as found and that it was most relevant to prove the con-

itions surrounding the body at the scene. As stated in

‘apier v. Commonwealth, Ky., 426 S.W. 2d 121 (1968), the

me has come when it should be presumed that a person

apable of serving as a juror in a murder case can, with-

ut losing his head, bear the sight of photographs showing

he body of the decedent in the condition in which it is

ound. Objection is made by appellant in this case that

nlarged photographs of the interior of the bathroom were

shibited to the jury. While it is true that a view of these

hotographs has some effect to shock, it is nevertheless true

hat they did serve to give the jury better perspective and

nderstanding of the scene in the bathroom as it existed.

Ve believe their evidentiary value in this respect exceeded

ny tendency they might have had to in any way inflame

he passions of the jury. We believe the photographs were

ll competent.

Appellant next contends that the trial court committed

rejudicial error when it instructed the jury on voluntary

nd involuntary manslaughter. As to this contention we

‘ill first point out that there could be no prejudicial effect

rom the instruction on involuntary manslaughter as appel-

unt was not found guilty under this instruction. While

here is doubt that appellant’s objection in his motion and

rounds for a new trial is sufficiently specifie to properly

aise the question of whether or not the instruction on vol-

ntary manslaughter should have been given, we will,

evertheless, pass upon this point as we are of the opinion

he instruction was not prejudicial. The fact that the

arties had been drinking and had been discussing the

ossibilities of a divorce coupled with the physical sur-

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roundings existing at the time the body was found, and

the markings upon the body, in our opinion are sufficient

to warrant the jury in believing that the homicide was ae.

complished as the result of heat of passion. Therefore, the

instruction on voluntary manslaughter was justified by the

evidence. We think the case falls within the rule that if

a reasonable inference can be drawn from the evidence that

the defendant in a homicide case is guilty of a lesser crime

than murder then proper instructions should be given on

such lesser crime. Pennington v. Commonwealth, Ky., 344

S.W. 2d 407 (1961); Harris v. Commonwealth, Ky., 389

S.W. 2d 907 (1965).

Appellant’s next contention is that the court erred in

permitting the Commonwealth to introduce Dr. Lawrence

Boram as a rebuttal witness. We have examined the

record and find that no proper objection was made to the

admission of his testimony.

It is finally contended by the appellant that the trial

court erred in not sustaining his motion to suppress evi-

dence obtained from the home by reason of a defective

search warrant and in permitting inflammatory arguments

by the Commonwealth’s Attorney at the close of the case.

We find no merit in either of these contentions. It is our

opinion the search warrant was valid and the closing argu-

ments by the Commonwealth were within the bounds previ-

ously permitted by this court.

The judgment is affirmed.

All concur.

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Petition FOR REHEARING OverruLED—F eb. 16, 1975

Mandate

THE COMMONWEALTH OF KENTUCKY,

THE COURT OF APPEALS

Fall Term—November 17, 1972

Witu1am Banton Moore

vs:

(oMMONWEALTH OF KENTUCKY

Appeal from a judgment of the

Criminal Branch—Ist Division

Jefferson Cireuit Court

CR-143639

The Court being sufficiently advised, it seems there is no

error in the judgment herein.

It is therefore considered that said judgment be affirmed ;

which is ordered to be certified to said court.

It is further considered that the appellee recover of the

appellant its cost herein expended.

A ecopy—Attest :

Frances Jones MILus

Frances Jones Mills, C.C.A.

Issued Friday, February 16, 1975

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Excerpts from Transcript of Proceedings

[606] By tHe Court: You may proceed, Mr. Ousley,

CLosinc ArnGuMENT BY Mr. Ovstey: May it please the

Court, Mr. Haddad and Gentlemen of the Jury, before

I briefly comment on the evidence that has been presented

to you in this case, I want to say this, please: you have

a right to request that all testimony or any part of the

testimony of any witness from that witness stand be reread

to you. I say that because undoubtedly [607] in my sum-

mation there will be questions raised as to what some

witness said, so you have a right now, and exercise that

right if you deem it necessary to call for the entire or any

part of the testimony of any witness who took that witness

stand.

Before I briefly outline the evidence we have presented

the only answer at this particular time do I want to make

to the argument that you have just heard, and that’s in

regard to fingerprints. I want to point out the obvious,

heads do not make fingerprints nor do throats retain im-

pressions of fingers.

Now briefly, very briefly, here is what the Common-

wealth of Kentucky has proven to you in this ease. Fora

number of years, fifteen years to be exact, there were

arguments about a divoree and two days before she re-

turned from New York in a telephone conversation the

victim Mrs. Moore said to the Defendant ‘‘T have decided

on a divoree’’. And whenever she talked about divorce,

quote ‘‘This always made me made’’, the end of the

quotes.

So, on Friday, December the 4th he meets the plane at

Standiford Field. They had dinner. They had three drinks,

according to him, and before we go one point further on

the question of drinking, of being drunk, I ought to stop

right now and remind you what [608] the sworn testimony

showed. He says she was not drunk. Her blood was

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analyzed by a cnemist of the Kentucky State Police Crime

Laboratory which showed a reading of .09, and under the

law of Kentucky it takes a reading of one ten(sic) before

you can’t drive a car, so legally she was not drunk, and

one of the jurors asked ‘‘Did she have any more to drink

when she got home?’’ and he said ‘‘No’’. So let’s get that

straight right now, she was not drunk, and let me point

this out to you, and may God be kind to her, when the

daughter gets on the stand and tells you how drunk her

mother has gotten for the past 15 years, that’s why it’s

an accident she says. She said, and I do not in any way

criticize her for this, she did not go into or look into that

bathroom, she did not look at the pictures, but she says

that because mother was drunk in the past she was drunk

that night and it was an accident. I say, may God be kind

to her, and for some reason she throws in that mother

attempted to cut her wrist ten years ago. You will prob-

ably evaluate that testimony, I’m sure.

So, he meets the plane. They get home at 9:00 o'clock.

Again talk about divorce. The police eall was logged, get

this please, the call to the police, a corpse, was logged at

12:30 A.M. It was made [609] by Dr. Davis, which means

of course that Dr. Davis got there some little time before

the calling of the police at 12:30, perhaps 10 or 15 minutes,

And he pronounced her dead. You will remember that he

told you that her skin was cool which meant in his medical

opinion that she had been dead from one to one and a

half hours in that bathroom. ‘‘In my medical opinion,”’

says the good doctor, ‘‘from the coolness of the skin, she

had been dead from an hour to an hour and a half’’. Re-

member the call to the police at 12:30. Dr. Davis got there

I assume some 10 or 15 minutes prior to his saying

“There’s nothing I can do. It’s not a doctor’s case. Call

the police’. The police arrived some 12 minutes later.

You heard the testimony of Officer Taylor, of Detective

Davis, Deputy Coroner Anderson and Lieutenant Cook.

They all told you what they saw there in the bathroom

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and what they found. Numerous colored photographs that

we have introduced here into evidence were immediately

made before anything was touched or anything was dis.

turbed in that bathroom. We’ll go over them. They’re

all here. The officers told you of blood all over the place

including the ceiling, the four walls, the ceiling. They

told you of hair and flesh scattered about that bathroom,

and I’ll get to it, you won’t have to rely on what the officers

[610] told you. They told you of the flesh wounds on the

throat, and I’ll show that to you or you’ve seen it by

photograph. They told you of the wadded towels and the

wadded rugs, of her shoes, her shoes, with blood on the

inside and outside, of the girdle and so forth. They told

you of the wounds and bruises on her entire body, and get

this, we’ll get to it, everything, everything those police,

those good officers told you is verified by uncontradicted

photographs, unmistakable photographs for you to look

at as you have and will again with your own eyes. We'll

get to the photographs.

Dr. Lawrence Boram performed the autopsy for the

State, worked over the body for however long the autopsy

lasted, and he said, quote ‘‘The deceased received more

than one blow to the head,’’ end of quote. That, quote

‘‘Half of the scalp was torn from the skull bone, and in

my opinion the described trauma was not caused by the

victim falling,’’ end of the quote. He described to you,

and everything | am telling you, again is verified by un-

mistakable pictures before you. He described the recent

bruises, the recent abrasions on the right arm, they’re

in the picture, on the left arm, on the picture, on the neck,

over the temple, the shoulder area and her back. And the

only thing not shown or possibly not shown by the photo-

graphs are the [611] ones on the back that he described

to you. Dr. Allen Lansing who you can look at and say

there’s a man sincere, doesn’t stretch his testimony, he’s

the Chief of Cardiovascular Surgery at the University

of Louisville Medical School—he examined the pictures

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some, not 2 days or 2 hours previous to taking the stand,

but as he told you, some 4 to 6 weeks previous.

Mr. Happap: If Your Honor please, I want to object

to that. The statement wasn’t that he studied them for

that long but that he had them for that long.

By tHE Court: The jury can recall the testimony.

Mr. Ovstey: Dr. Lansing told you that the head injury

was caused by multiple blows, b-l-o-w-s, to the head by

something quote ‘‘extremely hard and firm and blunt’’,

the end of the quotes. And Dr. Lansing said, quote ‘‘I

think the injuries described were too extensive to suggest

a single blow or a fall’’. A single blow with an object

would not separate this large an area, this large an area

I repeat, of the sealp. Dr. Boram and Dr. Lansing both

said repeated force was used to cause the fracture of the

skull and the wounds about the body. They were not caused

by falls says those two uncompensated doctors, and I'll

get to that. Dr. Boram, under adroit cross examination,

[612] said, and of course it’s true, there is a possibility

that such a fracture could be caused by a fall. Why cer-

tainly a possibility, a possibility under proper conditions,

such a fall from the Inter-Southern Building from the 10th

floor, that could cause it, that’s a possibility.

Mr. Happap: I object to his misquoting the evidence,

Your Honor.

By tHe Court: There is nothing in evidence pertaining

to that. I don’t recall anything about the Inter-Southern

Building or any other building.

Mr. Ouvstey: And at this point, Gentlemen, may I apolo-

gize if I seem to get too excited. It is only because of my

sincere belief, my unquestioned belief based solely on the

evidence that you’ve heard that this is a willful murder

case.

At this point let’s compare the medical opinions of

Dr. Boram and Dr. Lansing with that of the paid opinions

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of Dr. Helpern, the New York doctor, and Dr. Wecht, the

Pittsburgh doctor. We’ll muddy the water with a dumb

Kentucky jury. We’ll come in with a smart lawyer from

New York—

Mr. Happap: I object, if Your Honor please, to Mr,

Ousley inferring in any wise that anyone [613] thinks

this jury is a dumb Kentucky jury. I resent that remark

and I ask your Honor to admonish the jury.

By tHE Court: You may proceed, Mr. Ousley. This js

argument.

Mr. Ovstey: Thank you, Your Honor. We'll pull the

wool over the eyes of the jury down there in the hills of

Kentucky. Unable to get a doctor here, the brother of the

Defendant on trial, a New York lawyer who sits within

the sound of my voice, got Dr. Helpern.

Mr. Happap: We object to that, if Your Honor please.

That is not true and there is no evidence to that effect.

By tHe Court: The jury will reeall the evidence about

the relationship between the doctor and the brother. They

can call for it to be re-read. You may proceed.

Mr. Ovstey: So they come up with Dr. Helpern a New

York doctor, who all of his life has worked for the city of

New York, and Dr. Helpern told you that he saw some of

these pictures ten days before he testified here the other

day and he saw five, get this, he saw five of the pictures in

His Honor’s Chambers, five of them, oh, some two or three

minutes before he marched [614] out here to the witness

stand. He did not see, he did not attempt to get the facts

from Dr. Boram who performed the autopsy, the patholo-

gist. No, I won’t talk to him. He did not see fit to talk to

Dr. Lansing of the University of Louisville Medical School.

So he comes, flown in, from New York, and I say to you

Gentlemen, with all sincerity he affronts your intelligence

and mine in what he said to you. With the pictures before

you showing worse than a slaughter house killing, he tells

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vou she died from a fall. Is it any wonder that I say ** Well,

we'll fool the boys who sit in judgment in Kentucky’’. With

those pictures before you, he would say to you ‘‘That’s a

fall’. So, the doctor, the compensated doctor comes from

New York, and he did under cross examination admit re-

luctantly, quote ‘‘It could have been caused by a criminal

ageney’’, the end of quotes. That’s not all. Get this, and I

say to Your Honor, I wonder what’s going on in this court-

room today or during this trial, get this, Dr. Helpern told

vou that he saw these pictures for the first time some ten

days ago prior to the date that he took the stand, and on

April the 26th, five or six weeks ago the fraternity, the

pathologists fraternity invited the doctor, and Dr. Boram

invited him, to come to their fraternity meeting and talk to

them and he came and [615] attended the meeting at the

General Hospital. Dr. Boram was there with these very

photographs six weeks ago, the photographs which he told

you from the stand showed a fall, when six weeks ago from

the same photographs projected on a screen, blown up, be-

fore his employment in this case, before the dough showed,

he said it was a death by violence. So I repeat, what’s going

on in this courtroom? The Pittsburgh employed doctor that,

aceording to the defense, everyone recognizes as great as

an expert in the field—everyone but the Commonwealth of

Kentucky, I'll tell you that, if everyone does. So, he’s flown

in from Pittsburgh by a commercial jet, flown out of here

by a chartered plane, the political, elected coroner now, of

Allegheny County, Pennsylvania, who got the pictures on

June the Sth at 2:00 P.M., one day before he took that

stand, who praised Dr. Helpern to the high heavens, this

compensated doctor who said he was getting $250 plus his

traveling expenses, chartered planes and what not, came in

here and said to you there was one major fall and additional

falls, additional falls he would have you believe, additional

falls after apparently a major fall, and the additional fall

was in the exact spot, he would have you believe, of the

major falls. And when I asked the good doctor ‘‘Are you

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telling this jury that her body bounced around [616] like a

rubber ball or a yo-yo?”’ he bristled up and said ‘‘T don’t

think those are very nice words,’’ and I don’t either but

there’s no answer to it. In my opinion, he insults your in.

telligence and my intelligence by making such a statement,

Finally again, like his cohort Helpern, he said that the

injuries could be caused by a blow but, in his opinion, that

was unlikely. Now, that is the testimony of the paid, com.

pensated doctors they go all over the country to get, as

compared with testimony of the uncompensated doctors of

the State of Kentucky. You will, [’m sure, properly evalu.

ate that testimony.

You heard the defendant on trial on the stand. He told

you, you saw it, you saw his demeanor. You know on some

of these things the best polygraph, the best lie detector in

the world is watching a man on the witness stand. You

watched him. You saw his demeanor. You heard his answers

to the questions. He told you that with his wife dying or

dead in the bathroom, he took his shoes off to go out to

the phone, I suppose. In any event, he said he took his

shoes off so as not to get blood on the carpet, with his wife

in the bathroom, and after he used the phone or whatever

he did, he comes back in and steps into his shoes. I think

some juror asked him about that and I think his reply was

‘*Well, I’m a meticulous person,’’ or some such reply. [617]

He told you how he wiped blood from his hands on the tie,

as I understand it, before he called Dr. Davis. He told you

that Lieutenant Cook and Detective Davis told him they

didn’t think that he did it, which was, of course, denied by

them, in fact Detective Davis told him just the opposite, that

he did do it. He told you how the Commonwealth had been

so unfair to him in hiding evidence on him, when he and his

counsel since the start of this ease have had a right to and

did procure every item of evidence that we have introduced,

examined every item of evidence, every picture introduced,

weeks and weeks and weeks ago.

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Mr. Happap: That’s untrue, Your Honor, and it’s not in

evidence in this case, and I object to it.

By tHe Court: It’s not in evidence, Mr. Ousley. It’s an

argumental question and it’s not in evidence.

Mr. Oustey: May I proceed? (continuing) He was asked

“Why didn’t you ery for help?’’ as any normal—or any

person under the cireumstances would do, and his reply

was ‘‘I take care of myself’’. He told you about going

back upstairs close to midnight, and ‘‘That’s when I saw

her’’. And he told you, quote ‘‘I think I was taken back’’,

and after collecting his thoughts, he [618] said, ‘‘I am sure

I was’’. He was careful to tell you all of the things that he

claimed he attempted to do, the mouth-to-mouth resuscita-

tion, the normal resuscitation, the use of a mirror, He tells

you all these things and yet I remind you that when Dr.

Davis came over and the police called at 12:30, Dr. Davis

got there before that, he tells you about all of these

things yet Dr. Davis says her skin was cold and she had

been dead from an hour to an hour and a half.

Now let’s get to the evidence that don’t make mistakes.

These photographs and all the others, these photographs

cannot be influenced by game or by money or by position in

life or any other motive or thing cannot change or influ-

ence a photograph. That sometimes happens with other

ivpes of testimony.

Mr. Happap: I object to that, if Your Honor please.

By tue Covrt: It’s argumental. You may proceed.

Mr. Oustey: Photographs do not slant what they reveal.

They can’t. Photographs can’t banter with the truth.

Photographs don’t lie, and here they are. I told you in the

Opening Statement that we would produce the murder

weapon. There’s one of them (indicating Exhibit No. 20

the stool). There’s one of them, [619] and you’ll take this

to your jury room. And here is the other (indicating bath-

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tub in photograph). Here’s the one. He grabs her head.

There's the marks on her throat. And bangs it and bangs it,

and here it is with hair marks and flesh and everything else,

There it is! Speeial Agent Robert Beams of the Federal

Bureau of Investigation told you of finding Type O blood,

her type on everything. Here it all is, everything in that

bathroom. There it is, all before you. Of finding blood in

her shoes, and get this please, outside and inside her shoes,

Type O blood. He told you of tissue on his tie, on her dress,

tissue from her fingernail scrapings. He told you of blood

on the washed suit and other items in the basement. Special

Agent Myron T. Seholberg of the Federal Bureau of Inves.

tigation told you of finding hair on her dress, finding hair

on the stool, hair that had been foreibly removed, and able

Mr. Haddad said ** Well, she could have combed her hair”,

You don’t comb your hair with this (Mr. Ousley throwing

Exhibit No. 20 the stool) or with a bathtub.

By tue Court: Mr. Ousley, refrain from throwing things

in this courtroom from this point on.

Mr. Ovsuery: Exeuse me, Your Honor, exeuse me.

By tne Court: All right, vou will [620] refrain from it.

Mr. Ovustey: Yes, sir. You don’t comb your hair witha

stool or a bathtub. The detectives told you how they found

hair here and they found hair on the other murder weapon.

You heard it all. On the vanity. You heard it all. It's all

before you, not only by witnesses but conclusively by photo-

graphs. The evidence, Gentlemen, that we have brought you

in these last three days can leave no doubt, much less a rea-

sonable doubt. There ean be no doubt in God's world about

this man’s guilt, and T'll get to that. And they parade up

and down this aisle ten or fifteen character witnesses, Let

me tell you, T don’t blame the defense for doing that, but

I remind you that Mr. Booth that killed President Lincoln

could have marehed character witness after character wit-

ness to the witness stand. So you will properly evaluate,

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I am sure, the character witnesses, club members and

friends. I say to you, based upon the evidence that has

been presented to you, I hope with all the sincerity that I

possess, there could be no doubt in God’s world as to this

man's guilt. These pictures speak far more eloquently

than Ican. They attest his guilt beyond any shadow of a

doubt much less a reasonable doubt. I am not concerned

about the question of guilt. 1 am concerned about the |621]

question of punishment. The Court, in its Instructions 2, 3

and 4, which I do not agree with but which are binding on

me as they are binding on you, has told you that if you

believe in certain things the evidenee—they're in the In-

structions and you'll have no problem understanding them

—that if you believe certain things, you, in your discretion

ean fix punishment from jail time up to 21 years in the peni-

tentiary. I do not possibly see how you could believe those

things that would authorize such punishment or would

justify such punishment, but that, of course, is for you to

determine, not me, in your good judgment. You were told

in the Opening Statement—I knew the facts of this ease, of

course, and I haven’t slept I'll tell you in the last week, and

I prayed to my God that I would have persuasive power

to see that a jury did justice in this ease, justice that |

know should be done, and I'm speaking to you now from

what has been presented from the witness stand, of course,

but I did pray to my God, and T haven't slept from the fear

that I might overlook something that would prevent justice

from being done. I told you in the Opening that from the

facts it was the unpleasant duty of the Prosecution to

insist on the maximum sentence provided by law. We have

proven the facts justifying the maximum sentence. Justice,

Gentlemen, does not [622] permit punishment to be im-

posed on the basis of community or social prominence. That

won't do. I remind you, please, Mrs. Moore was 44 years

of age, in the prime of life. She was deliberately and

cruelly, oh so eruelly killed. I’ve never seen anything like

it in the some 25 years I’ve been prosecuting these cases.

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Judge, she did not have twelve good citizens of this com.

munity to pass judgment on her. She had no able lawyer

to defend her. No able judge to see that her every right was

protected before she was so brutally killed. That man was

her jury. He was her judge. He was her executioner, |

ask vou, please, in the name of justice, in the name of

everything that is fair and right, in the name of God, do

your duty in this case, and may God be with you in your

deliberaiions. I thank you.