Turpin v. Commonwealth ( 1989 )

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Turpin of murder and sentenced her to life imprisonment without benefit of parole for 25 years.

The questions presented are whether a diary and a letter were properly admitted into evidence; whether it was reversible error to refuse a mistrial following the arrest of a juror between the guilt and penalty phases of the trial; whether separate trials should have been held; whether the procedure used in regard to peremptory challenges was error; whether there was error in refusing to excuse prospective jurors; whether there was error in permitting a witness to testify that he believed the defendant was involved in the murder; whether there was error in the prosecutor’s question about appellate process; whether the victim impact statements were improper; whether it was reversible error to lock the court room doors during trial and whether an instruction should have been given on hindering prosecution.

Turpin and her codefendant were charged with capital murder for the stabbing death of Turpin’s husband allegedly pursuant to an agreement between Turpin and codefendant Brown to have the actual killer murder the husband so that they might receive money from life insurance proceeds paid as a result of the death. The killer pled guilty and received a life sentence. He testified against Turpin and co-defendant Brown at their joint trial.

It was not an abuse of discretion for the trial judge to permit a diary entry and a letter written by Turpin to be admitted into evidence for the purpose of showing motive, intent and state of mind. Turpin argues that the diary entry and the letter were too remote and were irrelevant. The diary entry was written four months before she met her husband, and two years before he was murdered. The letter was written more than a year before the murder.

The diary entry related to Turpin’s interest in wealth, power and death. Turpin testified about the entry and its meaning as well as discussing other entries to support her testimony. The diary entry was written only four months before she met her husband. Evidence of the state of mind of the defendant and her relationship with her husband was admissible to show state of mind. The letter and the diary serve that purpose. It is not improper to show even the commission of other crimes by a defendant if such evidence is relative to the issue of motive, intent or state of mind. Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983) cert. den. 465 U.S. 1072, 104 S.Ct. 1427, 79 L.Ed.2d 751. In any event the alleged error was harmless and did not affect the substantial rights of the defendant. RCr 9.24. Considering the whole case there is no substantial possibility that the result would have been any different. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969).

The trial judge did not abuse his discretion in refusing to grant a mistrial following the arrest of a juror between the guilt and penalty phases of a trial. After the jury had entered its verdict with regard to guilt, and during a weekend recess, one of the jurors was arrested on a felony charge of conspiracy to promote gambling. The two alternate jurors had already been excused from service because the guilt phase had been completed. Brown had expressed concern because the juror would now have a reason to curry favor with the prosecution even though the Commonwealth indicated that it would be disqualified and a special prosecutor would be sought. Turpin now contends she was denied a trial by an impartial jury pursuant to the Sixth Amendment to the U.S. Constitution.

When questioned by the defense attorney for codefendant Brown as to whether the prosecution had done the juror a favor by postponing arraignment until the conclusion of the trial, the juror said “I don’t take it as a favor, I guess you could take it as a favor.” No bias in favor of the prosecution can be inferred from that statement. The juror informed his fellow jurors of his arrest and asked if their views toward him would be different in the case. The juror stated that each person on the jury replied that it would not affect them. The trial judge then questioned all the members of the jury individually. He concluded that the penalty phase of the trial could be decided by the same jury without prejudice to the defendant. In order to declare a mistrial, there must appear in the record “a manifest necessity for such action or an urgent and real necessity.” Skaggs v. Commonwealth, Ky., 694 S.W.2d 672, 678 (1985) cert. den. 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678.

It was not reversible error for the trial judge to deny separate trials to Turpin and her codefendant. Separate trials are required under RCr 9.16 only when it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of the offenses or defendants at trial. Severance is a matter of judicial discretion and the allegation that there are antagonistic defenses is only one of the factors for the trial judge to consider. McQueen v. Commonwealth, Ky., 721 S.W.2d 694, 699 (1987) cert. den. 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858. The decision of the trial judge in such a situation will not be reversed unless the reviewing court is clearly convinced that prejudice occurred and that the likelihood of prejudice was so clearly demonstrated that failure to grant severance was an abuse of discretion. Rachel v. Commonwealth, Ky., 523 S.W.2d 395 (1975).

The procedure followed by the trial judge in regard to peremptory challenges was permissible. The trial judge gave the defendants a total of 12 peremptory challenges between them. RCr 9.40 provides that if the offense charged is a felony, the prosecution is entitled to five peremptory challenges and the defendant or defendants jointly to eight peremptory challenges. If one or two additional jurors are called, the number of peremptory challenges allowed by each side shall be increased by one. If more than one defendant is being tried the court may at its discretion allow additional peremptory challenges to each defendant. Here, the Commonwealth received six peremptory challenges and the defendants jointly received twelve challenges. Roberts v. Taylor, Ky., 339 S.W.2d 653 (1960), which Turpin claims should have been used, is not applicable. The defendants have not been prejudiced in any way by the decision of the trial judge to give them twelve peremptory challenges. The United States Supreme Court has long recognized that peremptory challenges are not of constitutional dimension. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Turpin was not denied any state or federal constitutional right with regard to peremptory challenges.

The trial judge did not abuse his discretion in refusing to excuse three prospective jurors. Unless the action of the trial judge is clearly an abuse, it should not be reversed on appeal. Scruggs v. Commonwealth, Ky. 566 S.W.2d 405 (1978) cert. den. 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321. None of the individuals ultimately served on the jury.

Turpin can demonstrate no prejudice or constitutional violation because the jurors were removed by peremptory challenge by the defense. In Ross, supra, the U.S. Supreme Court found that even though a state court trial judge had acted erroneously in refusing to dismiss the prospective juror for cause, the error did not deprive the defendant of an impartial jury or any entitlement under state law because he used a peremptory challenge to remove the prospective juror. 487 U.S. 81 at 91, 108 S.Ct. 2273 at 2280, 101 L.Ed.2d 80 at 92.

Turpin waived any objection concerning the prosecution’s questioning of witness Elliott. She did not raise any timely objection to this line of questioning at trial. Immediately before the objected to question on redirect examination of Elliott, counsel for Turpin had allowed Elliott to testify without objection in response to questions from codefendant Brown that if he had heard the conversation about life insurance in the back seat he would have taken it as a joke. Turpin permitted such questioning to enter the record without objection on earlier occasions and in fact engaged in exactly the same sort of questioning when it seemed advantageous to her. Hamilton v. Commonwealth, Ky., 659 S.W.2d 201 (1983).

It was not reversible error to permit the prosecution to cross-examine Turpin concerning an interpretation of the diary entry. The reference to the appellate process was brief and not prejudicial. The jury’s sense of responsibility for the ultimate sentence was not diminished. Taken in context, the question posed by the prosecutor was essentially the same as if he had asked Turpin whether she were aware that the preparations for carrying out a sentence of death usually took seven years to complete.

Turpin was correctly sentenced pursuant to Kentucky law, and the question of victim-impact statements was not properly preserved for appellate review. It does not amount to palpable error or a manifest injustice pursuant to RCr 10.26. The jury which recommended the sentence Turpin ultimately received was not exposed to the victim impact statement of which she now complains. The crucial difference between Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and this case is that the jury in Booth considered the victim impact statement during the sentencing phase of that trial. Kentucky’s victim impact statement, K.R.S. 421.520(3) provides that the statement is presented to the judge and not to the sentencing jury.

Turpin’s complaint that after admission of the public the court room doors were locked while the trial was in progress was not properly preserved for appellate review. RCr 9.22. Even alleged constitutional questions may be waived if they are not presented to the trial judge. Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981) cert. den. 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167. The authorities cited by Turpin on this question involved situations where the defendants raised timely objections before the trial judge. In this case no timely objection was made. There is no basis for invoking any palpable error rule pursuant to RCr 10.26 because there was no manifest injustice.

Turpin was not entitled to an instruction on a subsequent offense as a lesser-included offense in the crime of homicide. The trial judge is required to give the whole law of the case in instructing the jury. Lesser included instructions are required only if they apply to the evidence of the case. Ragland v. Commonwealth, Ky., 421 S.W.2d 79 (1967); Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). The request by Turpin for an instruction on hindering prosecution pursuant to K.R.S. 520.120 was without merit. Hindering prosecution is not a lesser included offense of murder.

The judgment of the trial court is affirmed.

STEPHENS, C.J., and GANT and VANCE, JJ., concur. COMBS, J., concurs by separate opinion in which LAMBERT, J., joins. LEIBSON, J., dissents by separate opinion.