Harris v. Com.

313 S.W.3d 40

Raymond HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2008-SC-000363-MR.

Supreme Court of Kentucky.

May 20, 2010.

COPYRIGHT MATERIAL OMITTED

Thomas More Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Bryan Darwin Morrow, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Raymond Harris appeals from a May 5, 2008 Judgment of the Bell Circuit Court convicting him in accord with the jury's verdict of Murder, in violation of KRS 507.020; of complicity to second-degree arson, in violation of KRS 513.030; and of two counts of complicity to tampering with physical evidence, in violation of KRS 524.100. The trial court sentenced Harris to life in prison without the possibility of parole for twenty-five years for the murder, and to concurrent prison terms of ten, five, and five years for the arson and tampering offenses respectively. The Commonwealth alleged that in March 2002, Dwayne Harris, Raymond Harris's nephew, hired Raymond to kill Paul Browning. The two Harrises, together with a third man, Johnny Epperson, were alleged to have taken Browning to a secluded area in Bell County, where Raymond Harris shot and killed him. The three conspirators then attempted to cover up the crime by placing Browning's body in Browning's pickup truck and setting the truck on fire and by throwing the murder weapon into the Cumberland River. Harris's principal claims on appeal concern jury selection, during which, Harris maintains, the trial court erred by refusing to dismiss several potential jurors allegedly biased in favor of the death penalty, by dismissing three potential jurors who stated that they could not impose that penalty, and by permitting a married couple to sit on the jury. He also maintains that he was entitled to a directed verdict and that the trial court erred by refusing to instruct the jury with respect to voluntary intoxication and second-degree manslaughter. Finding no error, we affirm.

RELEVANT FACTS

The Commonwealth's case rested principally on the testimonies of Dwayne Harris and Johnny Epperson. They presented a picture of drug dealing and police corruption in Harlan County. According to the two men, for some years prior to 2002 Dwayne Harris had sold large quantities of illegal drugs from a sports memorabilia store he and his wife operated in the Fairview section of Harlan. During that time, Epperson, a cocaine addict, performed odd jobs for Harris in exchange for cocaine. Harris was also assisted by Roger Hall, a deputy in the Harlan County Sheriff's office. In exchange for a share of Harris's drug proceeds, Hall supplied him with inside information about federal and state, as well as county, drug interdiction efforts and helped transport drugs into Harlan County.

In 2002, the security of Dwayne Harris and Hall's operation was threatened by the upcoming County Sheriff election. Paul Browning, who had served as Sheriff of Harlan County in the early 1980s, was again seeking election to that office. To protect their illegal trade in the event of Browning's election, Dwayne Harris and Hall set out to acquire "leverage," as they called it, over Browning. Dwayne Harris approached Browning and offered to help finance his campaign in exchange for Browning's cooperation, an offer Browning accepted. Lest he renege once in office, Dwayne Harris and Hall secretly video taped Browning making incriminating statements and accepting money from Harris, with the intent of using the tapes to blackmail Browning if need be.

At one of his meetings with Dwayne Harris, Browning stated that were he elected he intended to replace Hall with a deputy of his own choosing. At that point Dwayne Harris and Hall concluded that notwithstanding their "leverage" over him, Browning posed an unacceptable risk to their operation, and they decided to have him killed. Eventually they offered to pay Dwayne's uncle, Raymond Harris, $1,000.00 for the killing. Raymond Harris was unemployed at the time, his disability benefits had been cut off, and he had a drinking problem. He agreed to kill Browning.

Dwayne Harris convinced Browning to accompany him to Middlesboro on March 22, 2002, ostensibly for dinner and to discuss Browning's campaign. Epperson and Raymond Harris also made the trip. The four men left Harlan in the late afternoon, the two Harrises riding in Dwayne's pickup truck, and Epperson riding with Browning in Browning's truck. The plan, according to Dwayne Harris and Epperson, was to kill Browning outside of Middlesboro, to bury the body there, and to burn Browning's pickup truck at another location. Instead, as the men were riding through Bell County, Dwayne Harris pulled off Highway 119 onto a secluded stretch of Highway 987 in order to urinate. Browning pulled in behind, and Epperson joined Dwayne in front of Dwayne's truck where he too urinated. As they were so engaged, they heard a bang and in short order discovered that Raymond had shot and killed Browning.

Raymond and Epperson placed Browning's body back in his truck, and, with Epperson driving Browning's truck, the three men headed back toward Harlan. Before leaving Bell County, however, Dwayne again detoured from Highway 119 and led the way to a mining road off of Highway 2012. There, according to Epperson, Raymond threatened to shoot him if he did not douse Browning's truck and the body with gasoline and set them on fire, which he did. Before returning to Harlan, Dwayne drove to the Dayhoit bridge, from which Epperson threw the murder weapon into the river. Shortly after the men arrived back in Harlan, Dwayne gave Raymond the promised $1,000.00. It was not until 2004, when Dwayne and Epperson faced federal prosecution for drug trafficking, that they gave statements implicating Raymond in Browning's murder.

In addition to Dwayne Harris's and Epperson's testimony, the Commonwealth's proof included evidence showing that within a week of the murder Raymond moved from Harlan to Lexington, where he stayed for some months before returning to Harlan; the testimony of two witnesses, Edna Tackett and Richard Harris, who claimed that Raymond had admitted, indeed boasted of, the killing; and Tackett's further testimony that on the night of the killing, in its immediate aftermath, she had seen Raymond with a large amount of cash in his hand and with his skin blackened from smoke.

Raymond maintained and through cross-examination attempted to show that Dwayne and Epperson were not credible and were framing him for their own crimes. He also presented testimony to the effect that in March 2002 he was an active alcoholic and had drunk heavily on the day of Browning's murder.

As noted, the jury rejected Raymond's defense and found him guilty of murder and the other charged offenses. It also found as an aggravating circumstance that Raymond committed the murder for profit. KRS 532.025(2)(a)(4). It then recommended a sentence of life without the possibility of parole for the aggravated murder, and concurrent sentences of ten, five and five years, respectively, for the complicity to arson, and the two complicity to tampering with evidence offenses. The trial court ultimately sentenced Harris as noted above.

On appeal, Harris's¹ first, and main, contentions are that the trial court abused its discretion during jury selection (A) by refusing to strike six jurors who either could not consider the full range of authorized penalties or could not give the necessary consideration to mitigating circumstances; (B) by striking three jurors who expressed an inability to impose the death penalty; and (C) by permitting a married couple to serve on the jury. We are convinced that there was no abuse of discretion and that Harris's other alleged errors provide no grounds for reversal.

ANALYSIS

I. The Trial Court Did Not Abuse Its Discretion During Jury Selection.

A. The Trial Court Did Not Abuse Its Discretion By Refusing To Strike Certain Jurors Who Expressed Pro-Death-Penalty Attitudes.

Harris was charged with capital murder, and the Commonwealth sought the death penalty against him. Accordingly, the trial court, during individual voir dire, explained to each potential juror that if the jury found the defendant guilty of that crime it would be asked to decide upon one of the five authorized penalties, a range of penalties extending from a minimum of twenty years in prison all the way to death. The court then asked if the juror would be capable of considering that full range of punishments. When the court finished with its questioning, defense counsel was permitted to inquire more specifically into the potential juror's attitude toward the death penalty and was also permitted to ask each potential juror to consider a hypothetical murder, a sort of generic capital homicide: an intentional murder of a blameless victim, a murder unjustified in any way by fear or passion, and a murder committed in conjunction with some aggravating circumstance, such as a robbery or a rape. Counsel was permitted to ask each potential juror whether he or she could consider the full range of penalties for such a murder. Counsel was also permitted to ask the potential jurors whether they would take mitigating circumstances into consideration, and in particular whether they would regard certain factors, such as the defendant's age, lack of criminal history or domination by another person, as mitigating.

In light of their responses to these inquires, Harris moved to have struck for cause potential jurors 23, 26, 29, 31, 53, and 86. The trial court denied those motions, whereupon Harris used peremptory challenges against five of them and otherwise exhausted his peremptory challenges. Although none of the five peremptorily struck jurors at issue sat on Harris's jury, if any of them should have been struck for cause, Harris would be entitled...