White v. Com. of Ky., 2014-SC-000725-MR

544 S.W.3d 125

Larry Lamont WHITE, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2014-SC-000725-MR

Supreme Court of Kentucky.

AUGUST 24, 2017

REHEARING GRANTED & OPINION MODIFIED: MARCH 22, 2018

COUNSEL FOR APPELLANT; Susan Jackson Balliet, Assistant Public Advocate, Erin Hoffman Yang, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Jeffrey Allan Cross, Assistant Attorney General, Emily Lucas, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

Larry Lamont White, appeals from a judgment of the Jefferson Circuit Court sentencing him to death for the rape and murder of Pamela Armstrong.

Armstrong was murdered on June 4, 1983. Her body was discovered that same day in a public alley, with her pants and underwear pulled down around her legs and shirt pulled up to her bra line. She suffered from two gunshot wounds. One wound was observed on the left side of the back of her head, while the other wound was in virtually the same spot on the right side. The medical examiner was unable to determine which shot was fired first, but did opine that neither shot alone would have caused immediate death.

Although Appellant was originally; a suspect, Armstrong’s murder remained unsolved for more than twenty years. Yet, in 2004, the Louisville Metro Police Department ("LMPD") Cold Case Unit reopened Armstrong’s case. Through the use of DNA profiling, Detectives sought to eliminate suspects. LMPD officers were able to obtain Appellant’s DNA from a cigar he discarded during a traffic stop. Appellant’s DNA profile matched the DNA profile found in Armstrong’s panties.

On December 27, 2007, a Jefferson County Grand Jury returned an indictment charging Appellant with rape in the first degree and murder. During the trial, DNA evidence and evidence of Appellant’s other murder convictions were introduced to the jury. On July 28, 2014, Appellant was found guilty of both charges. Appellant refused to participate during the sentencing stage of his trial. The jury ultimately found the existence of aggravating circumstances and recommended a sentence of death for Armstrong’s murder plus twenty years for her rape. The trial court sentenced Appellant in conformity with the jury’s recommendation. Appellant now appeals his conviction and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution and Kentucky Revised Statute ("KRS") 532.075.

On appeal, Appellant has raised thirty-three claims of error. In reviewing these claims, the Court is statutorily required to "consider the punishment as well as any errors enumerated by way of appeal." KRS 532.075(2). Moreover, since we are dealing with the imposition of death, this appeal is "subject to [a] more expansive and searching review than ordinary criminal cases." St. Clair v. Commonwealth , 455 S.W.3d 869, 880 (Ky. 2015) (citing Meece v. Commonwealth , 348 S.W.3d 627, 645 (Ky. 2011) ). For the sake of brevity, we will approach all claims as properly preserved unless otherwise specified herein. To the extent claims were not preserved for our examination, we will utilize the following standard of review:

[W]e begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g. , whether the failure might have been a legitimate trial tactic; [but] (2) if there is no [such] reasonable explanation, [we then address] whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed.

Sanders v. Commonwealth , 801 S.W.2d 665, 668 (Ky. 1990).

KRE 404(b) Evidence

Appellant’s first and most compelling argument is that the trial court committed reversible error when it allowed the Commonwealth to admit other bad acts evidence of the Appellant as addressed by Kentucky Rules of Evidence ("KRE") 404(b). Prior to trial, the Commonwealth filed notice that it intended to introduce evidence of Appellant’s two 1987 murder convictions. These convictions revealed that Appellant pled guilty to murdering Deborah Miles and Yolanda Sweeney.¹ The Commonwealth suggested that the Miles and Sweeney murders were similar enough to Armstrong’s murder to demonstrate that Appellant was her killer.

Miles was discovered dead in her bedroom a mere week after Armstrong’s murder. She was naked and had been shot in the left, back side of the head. Appellant claimed that he had known Miles for several months and that she sold drugs on his behalf. Appellant also claimed the two had a sexual relationship. Appellant stated that he shot Miles while at her apartment because she failed to repay him for drugs. Appellant claimed that he did not sexually assault her before or after her murder.

In regards to Sweeney, she was found dead behind a backyard shed approximately four weeks after Armstrong’s murder. Sweeney suffered from a fatal gunshot wound to the left side of the back of her head. Her pants were missing and her panties were pulled down around her legs. Appellant stated that he met Sweeney shortly before her death at a nightclub. She agreed to engage in sexual activity with him for $25.00. Appellant claims the two walked to a secluded outside area at which point Appellant provided Sweeney with the money. Appellant admitted to shooting Sweeney after she tried to run away with his money before conducting the agreed upon sexual acts.

The Commonwealth argued that the facts of these two convictions were similar enough to prove Appellant’s identity as Armstrong’s murderer. Extensive pleadings were filed from both parties and the trial court conducted several hearings on the matter. Ultimately, the trial court was persuaded by the Commonwealth’s arguments and allowed the two prior convictions to be introduced to the jury for the purpose of establishing Appellant’s identity through his modus operandi.

Before evaluating the trial court’s admission of Appellant’s two murder convictions, we note that reversal is not required unless the trial court abused its discretion. Clark v. Commonwealth , 223 S.W.3d 90, 95 (Ky. 2007). Thusly, reversal is unwarranted absent a finding that the trial court's decision "was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999).

KRE 404(b) prohibits the introduction of "[e]vidence of other crimes, wrongs, or acts" used "to prove the character of a person in order to show action in conformity therewith." This evidentiary rule seeks to prevent the admission of evidence of a defendant’s previous bad actions which "show a propensity or predisposition to again commit the same or a similar act." Southworth v. Commonwealth , 435 S.W.3d 32, 48 (Ky. 2014). However, such evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." KRE 404(b)(1). While "modus operandi" is not specifically mentioned within the list of exceptions, this Court has long held that evidence of prior bad acts which are extraordinarily similar to the crimes charged may be admitted to demonstrate a modus operandi for the purposes of proving, inter alia , identity. Billings v. Commonwealth , 843 S.W.2d 890, 893 (Ky. 1992).

In order for the modus operandi exception to render prior bad acts admissible, "the facts surrounding the prior misconduct must be so strikingly similar to the charged offense as to create a reasonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea. " English , 993 S.W.2d at 945. Therefore, we must compare the facts of Appellant’s prior murders to the murder of Armstrong, keeping in mind that "clever attorneys on each side can invariably muster long lists of facts and inferences supporting both similarities and differences between the prior bad acts and the present allegations." Commonwealth v. Buford , 197 S.W.3d 66, 71 (Ky. 2006).

Whether Appellant’s prior murder convictions qualify for the modus operandi exception presents a challenging task for the Court, requiring "a searching analysis of the similarities and dissimilarities." Clark , 223 S.W.3d at 97. Our review is even more difficult considering that our jurisprudence on this issue has evolved mostly through the lens of sexual abuse cases. These cases hold that a specific act of sexual deviance may be unique enough to demonstrate that the assailant’s crimes are "signature" in nature. See, e.g., Dickerson v. Commonwealth , 174 S.W.3d 451, 469 (Ky. 2005) ; English , 993 S.W.2d 941 (all victims were relatives of wife and molestation occurred in the same fashion); see also Anastasi v. Commonwealth , 754 S.W.2d 860 (Ky. 1988) (tickling and wrestling with young boys while dressed in only underwear).

Outside the realm of sexual abuse, we have but few cases. In Bowling v. Commonwealth , 942 S.W.2d 293, 301 (Ky. 1997), a capital murder case, this Court allowed testimony from the survivor of a previously attempted robbery, wherein Bowling was identified as the assailant. The witness claimed that Bowling came into his service station, attempted to rob the store, and shot at him countless times. Id. at 301. The Court upheld the admission of that testimony because there was sufficient similarity between the crimes to demonstrate that Bowling’s pattern of conduct was to rob gas stations attended by one worker in the early morning hours. Id.

In St. Clair , 455 S.W.3d 869, also a death penalty case, this Court upheld the testimony of St. Clair’s accomplice, during which he testified about the duo’s prior kidnapping and robbery. Id. at 886. The accomplice testified that Appellant held the prior victim at gun point, handcuffed him, and stole his late model pick-up truck, taking the victim along for the ride. Id. These facts were similar to the crimes to which...