RENDERED: AUGUST 24, 2017
TO BE PUBLISHED

Supreme Tnurt of ‘Benfuckg

2014-SC-OOO7QS-MR
LARRY LAMONT WHITE ' ‘ | APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE JAMES M. SHAKE, JUDGE
NO. 07-CR-OO423O

COMMONWEALT_H OF KENTUCKY -- ` l APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

AFFIRMING

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

Arrnstrong 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, Mmsuoné’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.
Ll\/lPD officers were lable to obtain Appellant’s DNA from a cigar he discarded
during a traffic stop. Appellant’s DNA profile matched the DNA profile found in
Arrrlstrong’S planties.

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.rAppellant 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 § 1 10(_2)(b]
of the Kentucky Constitution and Kentucky RevisedStatute (“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.
commonwealrh,.455 s.w.ad 869, 880 (Ky. 2015) (citing Meece`v.

Commonwealth, 348 S.W.Sd 627, 645 (Ky. 2011)]. For the sake of brevity, we

2

_ 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 stande 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.Zd 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
badl 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 t_o
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.

 

1 On March 12, 1985, Appellant was sentenced to death for the murders of
Miles and Sweeney. The Court overturned his convictions and death sentences in
White v. Commonwealth, 725 S.W.2d 597, 598 [Ky. 1987) due to the Commonwealth’s
use of Appellant’s illegally obtained confessions Upon remand, Appellant pled guilty
to the two murders and was sentenced to twenty-eight years’ imprisonment

3

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
n 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 annonng’s murderer.
Extensivc 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
l 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.Sd 90, 95 (Ky. 2007). Thusly,
reversal is unwarranted absent a finding that the trial court’s decision “was
arbitrary, unreasona'ble, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d_94l, 945 (Ky. 19_99).

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.”

4 -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.
cbnunon.u,»e¢;¢_lz:hg 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

5

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. Corrtrnr'mwealthg 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 casey 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

6

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 St. Clair was charged. The Court held that the
facts were sufficient to pass muster under the modus operandi exception since
in both kidnappings he used the same gun and pair of handcuffs in order to
steal a similar type of truck. Id. at 887.

Whatl we garner from -our case law is that a perpetrator’s modus operandi
can be established by any number of similarities between the previous criminal
acts and the crimes charged, e.g., the type of victims, proximity of the time and
location of the crimes, the weapon or ammunition used, the method employed
to effectuate the crime, etc. However, we must analyze similarities with
caution, as the likeness of the crimes may merely constitute a common
characteristic or element of the offense. The Court made this clarification in
Clark v. Commonwealth wherein we underscored that “the fundamental
principle that conduct that serves to satisfy the statutory elements of an
offense will not suffice to meet the modus operandi exception.” 223 S.W.3d at

98. For that reason, “it is not the commonality of the crimes but the

l 7

commonality of the facts constituting the crimes that demonstrates a modus
operandi.” Dickerson, 174 S.W.3d at 469.

With these cases in mind, we begin with the factual commonalities of the
Miles and Sweeney murders with that of Armstrong’s. The most noticeable
similarity is that all three victims were African-American women in their early
twenties, ranging from twenty-one years to twenty-three years old. Another
substantial likeness concerns the date and location of all three murders
Appellant murdered Sweeney and Miles within approximately four weeks of
murdering Armstrong. The Sweeney and Miles murders also occurred within
blocks from Appellant’s residence and the location of where Armstrong’s body
was `found. We also place considerable weight on the resemblances between -
the'victims’ manners of death. For example, the mode of execution which'Miles
and Sweeney both suffered was similar to Armstrong’s fatal wounds.
Specifically, all three victims were shot in the head in the area behind the left
ear. Also, and of high importance, the bullets used to kill all three victims were
.38 caliber bullets. Moreover, all.three victims'were each discovered in various
stages of undress-,. which suggested they were victims of a sexual assault. The
three victims’ vaginal areas were likewise all exposed upon the discovery of

their bodies.

` 'l‘urning to the factual differences of the crimes, Miles was killed inside
her apartment, while Armstrong and Sweeney were killed outside. In addition,
Appellant maintained different levels of association with the three victims.

Appellant claims to have known Miles for a few months prior to her death, .

8

while both Sweeney and Armstrong appear to have been new acquaintances
The crimes also occurred at different times of the day. Armstrong was
murdered in mid to late morning, while Mile's and Sweeney were killed at night.
Another difference is that the gun that killed Armstrong was not used to kill
_Miles or Sweeney, even though it was the same caliber weapon. Moreover,
unlike the other two victims, Armstrong was shot twice, as the first shot did
not cause immediate death. Appellant also points out that there was no
forensic evidence that appellant had sexual contact With either Miles or
Sweeney, nor was he convicted of sexually assaulting either victim. _We should
note that Sweeney’s body was too badly decomposed for a rape kit to be
performed l

Less persuasive differences are also present, Appellant emphasizes that
the victims were discovered in different states of undress Armstrong was fully
dressed with her underwear pulled down around her legs, while Sweeney was `-
found without pants,' also with her underwear pulled down around her legs.
Miles,- however, was discovered completely nude. The Court is hesitant to place -
great weight on the differences in the victims’ states of undress because it
likely demonstrates convenience or opportuneness rather than a planned
action. 8ee Anastasi, 754 S.W.2d at 862 (allowing modus operandi evidence of
prior acts of sexual abuse where all victims, exceptione, were clothed only in
underwear).

While the above-mentioned differences are inversely proportional to the

degree of similarity needed to meet the modus operandi threshold, our

9

jurisprudence does not require that the circumstances be indistinguishable.
See, e.g., Dickerson, 174 S.W.3d at 469 (quoting Rean'ck v. Commoarnuecrltho 858
S.W.2d 185, 187 (Ky. 1993] (“[I]t is not required that the facts be identical in all
respects . . .”). Nonetheless, this Court is faced with an arduous question: at
what point do the dissimilarities become sufficient enough to render the crimes
unalike? _4 n

We find the case of Newcomb v. Commonwealth 410 S.W.3d 53 (Ky.
2013) most instructive In that case, Newcomb raped two women within a, ten-
day Span. Id. at 70. Newcomb raped the first woman, a coworker, in her car ~
after she offered to drive him home. Id. 'The_ second woman was raped in her
horne after Newcomb unexpectedly stopped by to visit. Id. at 7`1. Newcomb
was tried for both crimes together. Id. at 72. This Court upheld the joinder of
both offenses, stating that-evidence of either rape would be admissible in both
trials if severed. Id. The Court explained that both rapes were similar enough
to establish Newcomb’s modus operandi. Id. at 74.\ The similarities relied

n upon included the victims’ ages and race, in addition to the temporal

proximities of the crimes Id. The nature of force used was also similar in both
rapes, as Appellant’s attacks began with forcible kissing followed by a
statement like,'“You know you like me,” or, “You know you want me.” Id. at 75.

Similar to the case before us, there were numerous differences in the two
rapes For example, the locations of the`crime`s were not consistent Newcomb
raped one victim in a car after asking for a ride home, while he raped the other

victim inside her horne when visiting. Id. at 7'6. The levels of

10

acquaintanceships were also different Newcomb knew one victim from work
and had previously shared a kiss with her, while he had only minimal
interaction with the other victim. Id. In addiupn, and again similar to the ease
before us, the crimes were not identically followed through. Newcomb held one
victim by the hair, but used minimal force with the other victim .' Id. ,' see also
English, 993 S.W.2d at 942 (En'glish utilized the covering of a blanket to hide
the commission of sexual acts with some of his victims, but not with others). 1
lt is apparent to this Court that the similarities that satisfied the modus
operandi threshold in Newcomb are no .more significant, nor are the differences
any less substantial, than those of the facts presently before us Newcomb
illustrates that despite factual differences the crimes"similarities, even if
minimal, maybe distinctive enough to evidence the perpetrator’s identity. We
believe those distinguishing similarities exist in the case before us. Indeed,
Appellant engaged in a pattern of attacking African-American women in their
early twenties within a close proximity during early June through early July of
1983. The most persuasive facts being that these three women were of the
samel age, raee, and suffered a gunshot wound from a .`38 caliber bullet to the
mid-back, left side of the head while their vaginas were uncovered from the
removal of clothing. In our view, the commonality of the facts between the
. Miles and Sweeney murders and the Armstrong murder presents a substantial
degree of similarity. Therefore, we find that the trial court did not abuse its
discretion in finding that the crimes’ similarities were sufficient enough to

‘ demonstrate Appellant’s identity through his modus operandi.

11

Having determined that the Miles and Sweeney murders qualified as
modus operandi evidence, we must still ensure that such evidence was more
probative than prejudicial KRE 403; Lanham v. Commonwealth, 171 S.W.3d
14,- 31 (Ky. 2005). The trial court ruled that although the evidence was
“extremely prejudicial,” the prejudice was outweighed by its high probative
-worth. We agree. d

7 In conducting a KRE 403 balancing test with respect ton modus operandi
evidence, “a variety of matters must be considered, including the strength of
the evidence as to the commission of the other crime, the similarities between
the crimes, the interval of time that has elapsed between the crimes, the need
for the evidence, the efficacy of alternative proof, and the degree to which the v
evidence probably will rouse the jury to overmastering hostility.” Newcomb,.410
S.W.3d at 77 (quoting McCormick on Evidence, Ch. 17 § 190).

Accordingly, we begin our analysis by acknowledging that the strength of
the Commonwealth’s modus operandi evidence is unquestionably strong. The
following observation is of great importance to this Court. Unlike other cases in
which we have found the existence of modus operandi, the comparative
offenses in the case before us were not merely alleged, rather Appellant pled
guilty to murdering both Miles and Sweeney. See Newcomb, 410 S.W.3d at 70-
72 (Newcomb was indicted for the rapes, but_had not yet been convicted);
English, 993 S.W.2d at 942-43 (other prior acts of sexual abuse were only

alleged by the witnesses)_. In addition, and as we have already discussed, the

12

similarities of the murders are substantial The close proximity in time and
location between each murder further heightens the evidence’s probativeness

In regards to the need-for evidence and the efficacy of alternative proof,
we find these considerations also weigh in favor of admission. The
Commonwealth’s only method of proving Appellant’s identity as the perpetrator `
was through the use of DNA evidence. While the DNA evidence certainly proved
that Appellant had ejaculated on Armstrong, he argued that he had consensual
sex with her perhaps days before her death, Since Appellant provided the jury
with a plausible explanation for the presence of his semen, evidence of his
modus operandi was highly probative in proving his identity See Bowling, 942
S.W.2d at 301 (evidence of other crimes passed KRE 403 balancing test
' wherein the evidence rebutted a claimed defense and identification of the
defendant as the assailant was at issue).

In concluding our analysis on this issue, we acknowledge that Appellant
undoubtedly suffered prejudice from the introduction of his two prior murder
convictions However, we believe the trial court actively managed the jury’s
understanding of _the evidence so as to prevent them from developing
“overmastering hostility.” In an effort to dissuade prejudice, the trial court
admonished the jury about the proper use of the `404(b) evidence after the
parties’ opening statements See Johnson v. Commonwealth 105 S.W.3d 430,
441 (Ky. '2003) (juries are presumed to follow admonitions). The trial court
explicitly explained to the jury that the evidence was only to be considered as

evidence of modus operandi and identity, Furthermore, the trial court

13

instructed the jury that the Commonwealth still had to prove each element of _,
the crimes charged beyond a reasonable doubt and that Appellant’s prior
murder convictions could not be used to establish action in conformity
therewi-th. The trial court provided the jury with a similar instruction just prior
to the guilt-phase deliberations In light of the trial court’s actions, in
conjunction with the high probative worth of the evidence,_ we find that the trial
court did not abuse its discretion in allowing evidence of 'Appellant’s prior
murder convictions

Jury Instructions

Appellant’s next assignment of error is that the trial court’s failure to
define the terms “modus operandi” and “identity- evidence” violated his due
process rights Appellant concedes that_this issue is unpreserved.

Appellant contends that “modus operandi” and “identity evidence” are
both terms that a juror is unlikely to understand Consequently, it cannot be
assumed that the jury followed the trial court’s admonitions to only consider-
the prior murder convictions for the purposes of demonstrating Appellant’s
identity through his modus operandi. l l

In Lawson v.-Commonwealth, 218 S.W.2d 41, 42 -(Ky. 1949)_, our
predecessor Court stated that trial courts must “instruct on the whole law of
the case and to include,,when necessary or proper, definitions of technical '
terms used.” In support of his argument, Appellant cites Wright r).
Commonwealth 391 S.W.3d 743 (Ky. 2013), wherein this Court found that then

trial court’s failure to define “unmarried couple” within its instructions

14

constituted error, Id. at 748. However, Wright, a domestic violence case, is
distinguishable from the case before us In Wn'ght, the statutory definition of
“un`married couple” is distinctive from what an average juror would understand
as a couple who is unmarried. See KRS 403.720 (an ~“unmarried couple” n
constitutes two individuals who have a child together and either live together or
previously lived together). That is not the case here. We can find no evidence
that the two terms go beyond the average juror’s understanding See
Caretenders, Inc. z). Commonwealth, 821 S.W.2d 83, 87 (Ky.` 1991) (“knowingly”
and “willfully” are not technical terms requiring instructions). F`urtherrnore, to
the extent that these terms needed clarification, we believe they were
sufficiently “fleshed out” during closing arguments Lumpkins ex rel. Lumpkins
v. City of Louisville, 157 S.W.3d 601 , 605 (Ky. _2005) (“The Kentucky practice of
‘bare bones’ instructions 1 . . permits the instructions to be ‘fleshed out’ in
closing argument.”). n

DNA Suppression

Appellant next urges the Court to find reversible error in the trial court’s
refusal to suppress his DNA sample, which he claims was improperly obtained
during an illegal traffic stop. ln February of 2006, LMPD Sergeant Aaron
Crowell was tasked with covertly obtaining Appellant’s DNA. Aecordingly,
Sergeant Crowell and Detective Hibbs began surveilling Appellant’s residence.
While watching Appellant’s residence, the two'officers observed Appellant enter
a vehicle as a passenger The vehicle subsequently left the residence at an

unlawful high rate of speed. The officers then stopped the vehicle due to the .

15

speeding violation. During the stop, Sergeant Crowell removed Appellant from
the vehicle and performed a pat down to check for weaponry Appellant placed
' his lit cigar onto the back of the vehicle. After checking the subjects’ driver’s
licenses and running warrant checks, officers permitted the driver and
Appellant to leave. No citation was issued As the vehicle left the scene,
Appellant’s cigar fell to the ground and was collected
Appellant filed a motion to suppress DNA evidence recovered from the
cigar based on the illegality of the traffic stop, The trial court denied
Appellant’s motion following evidentiary hearings
In reviewing a trial court’s denial of a motion to suppress we ensure that
the trial court’s factual findings are not clearly erroneous, after which we
conduct de novo review of the trial court’s applicability of the law to the facts
Adcock v. Commonwealth 967 S.W.2d 6, 8 (Ky. 1998) (citing Omelas v. United
srares, 517 U.s. 690, 697 (1996)). Appellant does nat allege that any factual
findings are unsupported As a result, we turn to the trial court’s application
of the law to the facts
The trial court relied entirely on Lloyd v. Commonwealth, 324 S.W.3d 384
(Ky. 2010) in ruling that the traffic stop was lawful. We can find no error in the
_ trial court’s reasoning In Lloyd, this Court explained that an officer may
conduct a traffic-stop as long as he or she has probable cause to believe a
traffic violation has occurred, regardless of the officer’s subjective motivation.
Id. at 392 (citing Wilson, v. Commonwealth 37 S.W.3d 745 (Ky. 2001)). The

Commonwealth provided sufficient proof that Sergeant Crowell and Detective

16

Hibbs observed the vehicle speeding Thusly, it is immaterial that Sergeant
1 'Crowell desired to obtain Appellant’s DNA since adequate probable cause
existed._

On appeal, Appellant takes his argument further and suggests that his
removal from the car and subsequent pat down was unlawful The trial court
did not address these arguments Nevertheless, we can quickly dispose of
Appellant’s contentions Pursuant to Owens v. Commonwealth, 291 S.W.3d
704 (Ky. 2009) an “officer has the authority to order a-l passenger to exit a
vehicle pending completion of a minor trach stop.” Id. at 708 (citing Maryland
v. Wilson, 519 U.S. 408_, 414-15_(1997)). li`urt_herrnore, Sergeant Crowell was
permitted to conduct a pat down of .Appellant. -As his suppression hearing
_ testimony illustrated Sergeant Crowell maintained a reasonable and n
articulable suspicion that Appellant was armed and dangerous See Terjry v.
Ohio, 392 U..S 1, 27 (1968). Specifically, Sergeant Crowell testified that he was
not only aware of Appellant’s proclivity to carry'a weapon, but that he
previously arrested Appellant for unlawful possession of a handgun. See also
Adkins v. Commonwealth 96_S.W.3d 779, 787-(Ky. 2003) (“When an officer
believes that he is confronting a murder suspect, he has presumptive reason to
believe that he is dealing with an armed and dangerous person.”). We have
. seen no evidence that Sergeant Crowell’s quick pat down of Appellant exceeded
the scope of Terry, nor has Appellant demonstrated that the traffic stop was

prolonged to effectuate the pat down.

17_

Recusal

Appellant urges the Court .to find error in__dudge James Shake’s refusal to
disqualify himself as the presiding trial judge. Appellant claims that Judge
Shake, during his tenure as an Assistant Jefferson County Public` Defender,
represented him in four felony cases in 1981. Appellant only provides the
Court with information‘concerning onel of the four cases, criminal case 81-'CR-
669. In that case, which proceeded to a jury trial,. Appellant was charged with
sodomy and rape. The Court’s records indicate that Appellant was`acquitted
on the sodomy cha-rge, but found guilty'of the lesser charge of sexual abuse.

On July 18, 2014, five days into the jury trial, Appellant moved Jud'ge
Shake to recuse himself based on his past representation of Appellant.
Appellant argued that prejudice would result if Judge- Shake continued
presiding over the trial “due to the uncertainty surrounding his knowledge of
the [prior"] case and / or relevant information obtained during his previous
representation of [Appellant].”-

Judge Shake conducted a hearing on the motion shortly thereafter. On
` July 21, 2014, Judge- Shake denied Appellant’s motion on the grounds of
timeliness Judge Shake, citing Alred v. Commonwealth, Judl'cial Conduct
Commission, 395 S.W.3d 417, 443 (Ky. 2012), stated that it is incumbent upon
which the party moving for recusal-to do so “irnmediately after discovering the
facts upon the disqualification rests . . . .” Judge Shake made clear that on a 7

number of occasions throughout the proceedings he had informed the parties

18

of his prior representation of Appellant. Accordingly, Appellant should have
filed his recusal motion long before the trial began. ~

rn Bussell v. commanwaalth, ssa s.w.2d 111 (Ky. 1994), this court was
faced with similar-circumstances as that of the case before us. In Bussell, also
a death penalty lcase, the defendant filed a recusal motion based on the trial
judge’s representation of him on murder charges some seventeen years prior.
Id. at 1 12. In affirming the trial court’s actions, this Court reiterated that
7 Bussell knew or should have known about the prior representation. Id. at 1 13.
Bussell’s failure to timely assert the issue waived his claim for recusal. Id.

_~ Appellant was made aware of Judge Shake’sprior representation prior to
trial. While we cannot pinpoint the exact date such information was made
known, we do know that Judge Shake had presided over the case for over six
years a_s of the time of trial. During this time, Appellant should have been
made aware of the prior representation, either through his own recollection or
through Judge Shake’s acknowledgments Consequently, we deem Appellant’s
claim for recusal waived due to the untimeliness of his motion.

l Notwithstanding Appellant’s waiver, we must still address whether Judge
Shake was mandated by statute to disqualify himself See Al_red, 395 S.W.3d at
443 (citing Johnson l). Commonwealth, 231 S.W.3d 800, 809 (Ky. App. 2007)).
There are three separate statutory grounds for recusal which Appellant
advances KRS 26A.015 requires, in pertinent part, that Judge Shake recuse
himself if he has (l) “pe`rsonal knowledge of disputed evidentiary facts

concerning the proceeding”; (2) “served as a lawyer or rendered a legal opinion

19

in the matter in controversy”; or (3) “has knowledge of any other circumstances
in which his impartiality might reasonably be questioned .”
This Court does not believe any grounds for mandatory recusal existed.
In regards to the first basis for disqualification, we disagree with Appellant’s
argument that his 1981 conviction had some type of evidentiary value to the
existence of his modus operandi. Not only Was his 1981 conviction not
introduced during the guilt phase, but Appellant fails to explain how Judge-
Shake’s purported knowledge of that case renders the murders of Sweeney and
Miles| more similar to the murder of Armstrong. In regards to the second
statutory ground for recusal, we find Appellant’s argument unpersuasive While
it is true that Judge Shake previously served as Appellant’s attorney, he did so
in an unrelated case over thirty-three years prior. That particular conviction
plainly does not constitute the same “matter in controversy.” See Bussell, 882
S.W.2d at 112. Lastly, we find difficulty in reasonably questioning Judge
Shake’s impartiality Judge Shake was candid about his recollections and
explained that he had no memory of Appellant’s cases or having any
conversations concerning those cases. We Will_not assume bias based solely on
the fact that Judge Shake represented Appellant more than thirty-three years
prior to his trial. Id. (holding that judge’s prior representation of defendant in a
murder case did not render him biased). For these reasons, we find no error in
Judge Shake’s refusal to disqualify himself from presiding over Appellant’s

trial.

20

chain of maston

Appellant also requests that we grant him a new trial on the grounds
that the trial court improperly admitted unreliable evidence, The evidence
Appellant complains of is Armstrong’ s rape kit, underwear cuttings, and his
cigar and buccal swab. Appellant contends that the Commonwealth failed to `
provide a sufficient foundation for the aforementioned articles due to` numerous
breaks in the respective items’ chains of custody. `

The admission of physical evidence requires “a finding that the matter in
question is what its proponent claims.i’ KRE 901(a). Said differently, a proper
foundation demonstrates that the proffered evidence is the same evidence
initially recovered and has not been materially changed. See Beason v.
Commonwealth, 548 S.W.2d 835, 837 (Ky. 1977). In regards to fungible
evidence, such as DNA, the item’s chain of custody provides the necessary
foundation for admission. See Thomas v. Commonwealth 153 S.W.3d 772, 779
`(Ky. 2804). However, the Court has repeatedly approached admission of such
evidence in a liberal fashion, concluding that an unbroken chain of custody is
not needed. E. g , Thomas, 153 S .W. 3d at 781. As such, breaks' in the chain of
custody go to the weight of the evidence rather than its admissibility
McKi'nney v. Commonwealth 60 S.W.3d 499, 511 (Ky. 2001).

In reviewing the trial court’s ruling, we look for an abuse of discretion.
Th_omas,-lSS S.W.3d at 781 (citing United States v. Jackson, 649 F.2`d 967, 973
(3d Cir. 1981). Our focus is on Whether a foundation was sufficiently laid so

that there is a reasonable probability that the proffered evidence Was not

21

altered in any material respect. Id. In making this determination, we look to
“the circumstances surrounding the preservation of the evidence and the
likelihood of tampering by intermeddlers.” Thomas, 153 S.W.3d 782 (citing
Peiioiiand v. commonwealth 463 -s.w.2_d 130, 133 (1.971)).
_ Cutti_n_g§_from Armstrong§ Panties
Appellant focuses the majority of his argument on the DNA retrieved

from the cuttings of Armstrong’s panties. Confusion abounds due to several
cuttings being taken at two different times and the Commonwealth’s inability
to specify which path a particular cutting took.r To simplify our analysis, we
can place the cuttings into two groups originating from LMPD Detective
Charles Griffin’s collection of the panties from Armstrong’s autopsy on June 4,
1983. Nine days later, he delivered the panties to a Kentucky State Police»
(“KSP”) laboratory analyst Morris Dur_bin, who took cuttings from the areas
testing positive for- seminal fluids. This is the first group of cuttings. The

` cuttings were then stored in a KSP freezer lwhere they remained until July of
2006. At that _time;- some of the cuttings were sent to a different KSP lab. The
laboratory technician personally returned the cuttings to LMPD on April 2_5,
2007, after which they `Were stored in the LMPD property room. A sufficient
chain of custody is patently clear for this first group of cuttings.

The second group of_ cuttings occurredlin.2004, when LMPD Was

investigating another suspect in Armstronng `murder. _At that time, the
remnants of the intact panties were transported to the KSP laboratory. This is

where the second group of cuttings occurred. These cuttings _Were returned to

22

J'

LMPD and stored in the property room that same year. The chain of custody
for the second group of cuttings has one missing link. After Durbin made the
initial selection of cuttings in 1983, there is no direct testimony demonstrating
how the remnants of the intact panties made it back to the LMPD property
room before being stored until 2004. Nevertheless, discovery indicates that the
KSP lab released the panties to LMPD Officer “J. Trusty” on August 10, 1983,
the same day’they Were returned to the LMPD property room. This minimal
gap in the chain of custody for the second group of parity cuttings does not
render it unreliable_. See Thomas, 153 S.W.3d at 782. (“All possibility of
tampering does not have to be negated. lt is sufficient . . . that the actions
taken to preserve the integrity of the evidence are reasonable under the
circumstances .”).

Since there is only one of two paths the panty cuttings could have taken,
and both paths demonstrated intact chains of custody, we believe the `
Commonwealth provided a sufficient foundation demonstrating the reliability of
the DNA evidence It is inconsequential for the purposes of admission which
path a particular cutting took. Regar.dless of whether a.particular sample was
part of the 1983 or 2004 cuttings, there is little doubt that the “proffered
evidence was the same evidence actually involved in the event in question and
that it tomaitt[od] materially unchaogod.” ;rhomos, s.w.3t1 at 779, Thusiy, the
Commonwealth adequately authenticated`the evidence. The fact that the
Commonwealth was unable to differentiate whether the,cuttings were from the

first or second batch of cuttings goes to the weight of the evidence

23

' Rape Kit

Dr. McCloud collected Armstrong’s rape kit, after which it was
transferred to Detective Griffin during her autopsy. lt is unclear if it.was
Detective Griffin or another officer who placed the kit in the LMPD property `
room. Nine days later, Detective Griffin transported the kit to a KSP
laboratory. The Commonwealth could not pinpoint who transported the kit
back to the LMPD property room where it remained until June of 2004. At that
time, the kit was once again transported to the KSP laboratory by an evidence
technician where it exchanged hands with several identified analysts and
technicians and returned to the LMF;D property room. A similar exchange took
place in 2007 , where the kit was transported to a KSP laboratory by an
identified evidence technician and was later returned to the LMPD property
room. There was no testimony regarding who handled the kit, if anyone, while
at the KSP laboratory.. l

Although there are several breaks in the rape kit’s custodial chain, we do
not believe these disruptions render the evidence unreliable The deficiencies
in custody are apparently due to careless record keeping in the form of failure
to specify who transported the item, rather than actions that would have
altered or possibly contaminated the contents of the rape kit. In_ Rdbovsky v.
_Commonwealth, 973 S.W.2d 6, 8 (Ky. 1998),_ the Court stated that “it is
unnecessary to establish a perfect chain of custody or to eliminate all
possibility of tampering or misidentification, so long as there is persuasive

evidence that ‘the reasonable probability is that the evidence has not been

24

altered in any material respect.”’ (quoting United States v. Cardenas, 864 F.2d
1528, 1532 (10th Cir. 1989)). As such, the trial court did not err in admitting _
the evidence, as there was minimal chance that the contents of the rape kit
were altered. Once again, we underscore that breaks in the chain of custody
go to the weight of the evidence, rather than its admissibility; McKinney, 60
S.W.3d at 511.

Appellant also claims that evidence of the rape kit’s chain of custody was
insufficient due to Detective Griffin and Dr. McCloud, who were both deceased
` et the time of triei, being unabie to teetify.' vet, we tied that Metiioei Exeminer
Dr. Tracey Corey’s and LMPD Detective Joel Maupin’s testimonies adequately
perfected the missing links in the evidence’s chain of custody, Dr. Corey
testified that Dr. McCloud collected the rape kit during -Armstrong’s autopsy,
Dr. Corey was not present during the autopsy, but confirmed.the collection
based on the autopsy report. See Ki'rlc v. Commo'nwealth, 6 S.W.3d 823, 828
(Ky. 1999) (coroner’s testimony elicited from the autopsy report authored by
deceased pathologist was authenticated and admissible). Likewise, Detective
Maupin testified that he witnessed Detective Griffin order the rape kit and take
custody of the collected kit during the autopsy. Detective Maupin was also
able to identify the rape kit as the one collected by virtue of Detective Griff`m’s
signature and date on the rape kit packaging Thusly, we find no error,

Buccal 'Swab and Cigar

As mentioned, Appellant also submits that the Commonwealth failed to

establish the chain of custody for his cigar butt and buccal swab. We will not

25

plunge into a lengthy discussion concerning the custodial history of these
_items. Instead, we can surmise-thatAppellant’s most persuasive argument is
predicated on unidentified individuals who accepted and released the evidence
from the LMPD property room. As our analysis has already stated, minor
custodial breaches do not automatically render the evidence unreliable See _
Thomas, 153 S.W.3d at 781. Despite the negligible gaps in custody, the
Commonwealth reasonably demonstrated the identity and the integrity of the
buccal swab and cigar. Therefore, the trial court did-not abuse its discretion
by admitting them into evidence
.Prosecutorc'_al Misconduct
Appellant alleges numerous instances of prosecutorial misconduct '
during both the guilt and penalty phase closing arguments In considering
Appellant’s claims of prosecutorial misconduct, We will only reverse if the c
misconduct is “So serious as to render the entire trial fundamentally unfair.”
Stopher v. Commonwealth, 57 S.W.3d 787', 805 (2001). We must emphasize
that the trial court was required to"give the Commonwealth wide latitude
during its closing arguments Bowling v. Cornniortwe¢:ili.‘hg 873 S.W.2d 175, 178 l
(Ky. 1993). ln addition, the Commonwealth was entitled to draw reasonable
inferences from the'"evidence and explain why those inferences support a
finding of guilt commonwealth e. Mitehell, 165 s.w.sd 129, 131-32 (Ky.

2005y

26

Guilt Phase

The first instance of misconduct Appellant complains of occurred when
the Commonwealth stated the following during closing arguments: “Let’s cut to
the chase You had to hear a day’s worth of evidence to know what everybody
already knew. lt was Larry White’s DNA on Ms..Armstrong’s vagina, her anus,
her_ panties and the back of her pants.” Appellant immediately objected,
claiming that the Commonwealth was mischaracterizing the evidence The trial
court overruled Appellant’s objection, stating that the jury can reconcile the y
statements with the evidence presented 1

Appellant is correct that his DNA was not specifically found on
Armstrong’s vagina, anus, or pants. While semen Was found in those areas,
analysts were.unable to obtain a DNA profile Nevertheless, Appellant’s DNA
matched the DNA profile found on Armstrong’s panties with certainty-one in
160 trillion people From this evidence, the Commonwealth was entitled to
draw reasonable inferences and explain why those inferences support a finding
of guilt. Mi'tchell, 165 S.W.3d at 131-32. Since evidence indicated that
Appellant had sexual intercourse with Armstrong prior to her death, in addition
to'his DNA being found in her panties, the Commonwealth was permitted to
make the reasonable inference that such DNA was present in the semen found `
on Armstrong’s vagina, anus, and pants. See Tamme v. Comriionw¢-:'ccli‘h7 973
S.W.2d 1_3, 39 (Ky. 1998) (“The [prosecutor’s] alleged misstatements are more

accurately characterized as interpretations of the evidence.”).

27

Appellant’s second allegation of prosecutorial misconduct occurred when
the Commonwealth commented on Roger Ellington’s testimony. Appellant
believes the Commonwealth’s statements had the effect of offering the prestige
‘ . of the Commonwealth Attorney’s Office to support the witness’ credibility.
Appellant’s brief provides a lengthy quote from the Commonwealth which it
argues amounted to improper bolstering. After reviewing the Commonwealth’s
closing argument, we find no need to provide the quote, as there is no merit in
`Appellant’s contention. The Commonwealth merely summarized Mr.
Ellington’s testimony in a way that was persuasive to their position. Compare
Armstrong v. Commonwealth 517 S.W.2d 233, 236 (Ky. 1974) (improper
bolstering occurred when the prosecutor informed the jury that he had known
and worked with the witness before and the Witness was honest and
conscientious).

Appellant’s third claim of misconduct-also concerns Mr. Ellington’s
testimony. Mr. Ellington is the father of one of Armstrong’s children. The
defense advanced a theory that Mr. Ellington was Armstrong’s killer. In
' response, th_e Commonwealth provided the jury with the following closing
argument statements: “_[Ellington], being accused, having a Fifth Amendment
right to remain silent, [] came and sat right here [Ellington] chose to testify. He
took an oath from the judge and he answered the questions. Are those the
actions of a killer?” Appellant argues that this statement amounted to an

improper comment on Appellant’s failure to testify. We disagree

28

ln'Ragland v. Conirrtonwe.>alth7 191 S.W.3d-569, 589 (Ky. 2006), the Court
explained that “a defendants constitutional privilege against compulsory self-
incrimination [is violated] only when it was manifesz intended to be, or was of
such character that the jury would necessarily take it to be, a comment upon
the defendants failure to testify.” When placed in the context of the defense’s
theories, we believe the Commonwealth was appropriately responding to
Appellant’s allegation that Ellington was Armstrong’s killer. Such a Comment
does not constitute a comment on Appellant’s failure to testify. See Bowling,
873 S.W.2d at 178 (finding that prosecutor’s closing argument statement that
“We can't tell you what it is because only the man who pulled the trigger
knows” did not amount to a comment on defendant’s refusal toltestify). As we`
have explained, “[n]ot every comment that refers or alludes to a non-testifying
defendant is an impermissible comment on his failure to testify . . . .” Ragland,
191 S.W.3d at 589 (quoting Ex parte Loggins, 771 So.2d 1093, 1101 (Ala.
2000)). A

- Appellant also alleges that the Commonwealth improperly shifted the

burden of proof when it reminded the jury that Appellant failed to provide proof
that he and Armstrong had a relationship prior to her murder. This Court has
long held that a prosecutor “may comment on evidence, and may comment as
to the falsity of _a defense position.” Slaup'hter v. Commonwealth, 744 S.W.2d --
vi 407, 412 (Ky. 1987). The complained of statement was clearly made to
challenge the defense’s theory that Appellant’s DNA was present in Armstrong’s

underwear because the two had consensual sex preceding her death. The

29

Commonwealth’s remarks that there was no evidence that such an encounter
' took place was well within the bounds of closing arguments We find no error.
Sentencing Phase

Appellant urges the Court to find that the Commonwealth committed
flagrant prosecutorial misconduct when it stated that Appellant’s murders of
Armstrong, Miles, and Sweeney amounted to “genocide.”

The _Commonwealth concedes that the prosecutor’s use of_ the term
“genocide” was improper. We agree and condemn the Commonwealth’s use of
such unnecessary and disparaging comments However, this Court does not
believe the remark was severe enough to render the trial fundamentally unfair.
While the Commonwealth’s remark was-obviously deliberate and undoubtedly
produced some prejudice, the remark was isolated, being.used only once
during the closing argument See Mayo v. Commonwealth 322 S.W.3d 41, 57
(2010). 'Moreover, the evidence against Appellant, as discussed supra, was
relatively strong. When viewed in the context of the entire trial, the
Commonwealth’s brief and minor remark did not undermine the essential
fairness of Appellant’s trial. See Murphy v. Commonwealth, 509 S.W.3d 34, 53-
54 (Ky. 2017) (prosecutor’s reference to defendant as a “monster" did not
constitute reversible error); Dean v. Commonwealth 844 S.W.2d_417, 421 (Ky.
1992) (Cornmonwealth calling the defendants “crazed animals” did not require
reversal).-

Next Appellant argues that the Commonwealth improperly urged the jury

to sentence him to death for his prior murders of Miles and Sweeney. We find

30

no need to relay the complained of statements Instead, we resolve Appellant’s
contentions _by finding that the Commonwealth properly commented on the
proof presented to the jury, including the fact that he had murdered two other
women. We do not believe the Commonwealth’s references to the Miles and
Sweeney murders exceeded the bounds of permissible closing statements

Appellant’s final claim of prosecutorial misconduct concerns the
Commonwealth’s statement to the jury that they “never heard one word or
witnessed,one action of any remorse from the defendant.”

Again, this.comment was made during the sentencing stage This 0
argument, while unacceptable during the guilt stage, is germane to sentencing
The .United States Supreme Court weighed in lon this issue when reviewing this
courts deeleton. Wm'te o. Woedoll, 134 s.ct. 1697, 1704 (2014). The nations
highest court ruled that the trial court was not required to give an instruction
of no inference of guilt by the defendant’s refusal to testify during the penalty
stage The Supreme Court agreed with the trial court’s conclusion that “no
case law [] precludes the jury from considering the defendants lack of
expression of remorse . . . in sentencing.” See also Hunt v. Commonwealth 304
S.W.3d 15, 37 (Ky. 2009) (prosecutor’s statement “[h]as anybody seen any
remorse from this defendant during the trial?” did not constitute an
impermissible comment on defendant’s _Fifth Arriendment rights). There was no

error here

31

Victim Impact Evidence

Appellant next contends that he was denied a fair trial due to the
elicitation of what he believes was victim impact evidence during the guilt
phase of trial. This argument is unpreserved and without merit. During
redirect examination of one_of Armstrong’s children, the Commonwealth
inquired into the status of Armstrong’s other children. The witness merely said
that one of his siblings was killed and the other had committed suicide The
witness did not expound on their deaths, nor did he State that their deaths
were attributable to their mother’s murder. We find no error.
Directed' Verdict

Appellant argues that the trial court erred in failing to grant him a
directed verdict of acquittal on the rape and murder charges We have
sufficiently outlined the sufficiency of the evidence in this opinion already to
refute this claim. We will not protract this opinion by unnecessarily repeating
it here When viewing the evidence in its ,entirety, it was not clearly '
unreasonable for a jury to find Appellant guilty of the crimes charged.
Statutory Aggravator. n n

-‘ Appellant next urges the Court to vacate his sentence of death on the

grounds that the jury failed to find a statutory aggravator. In order to impose
the death sentence upon a defendant, a jury must find, beyond a reasonable
doubt, the existence of at least one of the statutory aggravators_ as listed in KRS
532.025(2)(a). ln the case before us, the jury was instructed on the following

aggravating circumstance:

32

In fixing a sentence for the defendant, Larry Lamont White, for the
offense of the murder of Pamela Armstrong you shall consider the
following aggravating circumstance which you may believe from the
evidence beyond a reasonable doubt to be true: (1) The defendant
committed the offense of murder while the defendant was engaged

in the commission of rape in the first degree
Appellant takes issue with the jury’s response to this question. The jury’s
verdict form read as follows: “We the jury, find beyond a reasonable doubt that
the following aggravating circumstances exists in the case as to the murder of
Pamela Armstrong.” Underneath-this aggravator, the jury foreman wrote the
word “Rape.” Appellant claims-that the jury’s finding of “rape” does not
constitute a finding that the Appellant’s murder of Armstrong was committed .
while he was engaged in the commission of first-degree rape.

Appellant’s argument has merit to the extent that the jury’s one word
answer of “rape” does not specify whether the jury believed Appellant
committed first-degree rape during the commission of Armstrong’s murder.
Yet, we may assume that the jury made the proper finding of the statutory
aggravator based on the jury’s likely interpretation and understanding of the
verdict forms and instructions See Wilsori v. Commonwealth 836 S.W.2d 872,
892 (Ky. 1992), overruled on other grounds by St Clair, 10 S.W.3d .482. Indeed,
our analysis centers on “what a ‘reasonable juror’ would understand the charge
to meeh.” Id. et 892 (citing notices e. Frenklt'n, 471 U.s. 307 (1935)). Beeed
on the instructions and verdict form, the jury was given the option of finding
only one aggravator-murder accompanied by first-degree rape, and was

instructed that it could not impose a death sentence unless the aggravating

circumstance was found. These instructions are clear. In the Commonwealth,
33

we assume that juries follow instructions Johnson v. Commonwealth 105
S.W.3d 430, 436 (Ky. 2003). Accordingly, since the jury wrote the word “rape”
on the verdict form which found the existence of the aggravator, in conjunction
with the jury’s subsequent imposition of death, we find no error.
Invalid Indictment '

Appellant contends that his conviction and sentence is void as a matter
. of law because the trial court lacked jurisdiction. Appellant’s claim relies
entirely on the fact his indictment was not Signed by a circuit court judge or
circuit court clerk. RCr 6.06 requires only that indictments be signed by the
Grand Jury foreperson and the Commonwealth’s attorney. Appellant fails to
direct the Court to any statutory or precedential authority indicating that the
lack of a circuit court judge or clerk’s signatures renders the indictment
invalid. See Smith v. Commonwealth 288 S.W. 1059 (Ky. 1926) (holding that
an indictment was valid despite the absence of the clerk's signature).
F`urthermore, RCr 6.06 prohibits any challenge to the indictment on signatory .
" grounds “made after a plea to the merits has been filed or entered.” Appellant
pled “not guilty” to the crimes charged in January 2008, but did not.challenge
the indictment until July of 2014. For these reasons Appellant’s argument is
not only waived, but lacks merit. \
Jury Inquiry

Appellant maintains that-the trial court violated his constitutional rights
by failing to conduct an adequate inquiry regarding whether any jurors viewed

an inflammatory news article The article at issue was released at the

34

beginning of the trial and labeled Appellant as a “serial killer” who raped and
murdered two other women. Appellant moved for a mistrial, arguing that the
jury had likely been exposed to the news article In response, the trial court
informed the jurors that a news article was released concerning the case and
then asked the jurors if they had followed his previous admonition “not to read
anything or watch anything, [or] research anything.” The jurors indicated that
they had followed the trial court’s admonition. Appellant made nd further
objections about the matter and did not ask for additional admonitions We
believe this unpreserved alleged error is without merit. See Tarnme, 973 S.W.2d "
at 26 (“[h]aving properly admonished the jury not to read any newspaper
articles about the trial, the trial judge was not required to inquire of them
whether they had violated his admonition.?’).
Voir Dire Limitation

Appellant submits to the Court that his trial was fundamentally unfair
due to the trial court’s limitation of juror inquiries during jury selection. More
specifically, Appellant sought to question the individual jurors about their n
capacities to consider Appellant’s prior convictions for the limited purpose of
identity and modus operandi. The trial court narrowed the potential
questioning concerning the KRE 404(b) evidence to the commonly utilized
inquiries regarding whether the jurors could follow the law and instructions

Trial courts are granted broad discretion and wide latitude in their
control of the voir dire examination. Rogers v. Commonwealthg 315 lS.W.3d

303, 306 (Ky. 2010). Our review of the trial court’s limitations is whether _

35

denial of a particular question implicates fundamental fairness. Lawson v.
Cornmonwe.al.'thor 53 S.W.3d 534, 540 (Ky. 2001). In Ward v. Commonwealth
695 S.W.2d 404 (Ky. 1985), defense counsel attempted to inquire whether
potential jurors, when assessing a witness’ credibility, could consider the fact
that the witness made a deal with the Commonwealth in exchange for his
testimony. Id. Th_el Court upheld the trial court’s limitations on such inquiries
because such questions were “to have jurors indicate in advance or commit _ :
themselves to certain ideas and`views upon final submission of the case . . . .”
Id. at 407 ; see Woodall v. Commonwealth, 63 S.W.3d 104 (Ky. 2001) (affirming
the trial court’s limitation of defense counsel’s questions concerning whether
the jurors could consider a low I.Q. score as mitigating evidence). In light of
Ward, we do not believe the trial court exceeded its broad discretion.
Appellant’s questioning would have likely exposed juror views concerning his
past murders and possibly committed the jurors to those assessments As
mentioned, less harmful questioning was utilized and allowed Appellant to
ascertain whether the jurors could follow the trial court’s instruction tol
consider the evidence for the correct purposes. l
Venirepersons Struck For Cause

Appellant next claims that the trial court abused its discretion in striking
Juror 1159266 and Juror 1_159422 for cause on the grounds that they could
not give due consideration to the potential sentence of death, This Court abides
by the principles set forth in Uttecht v. Brown, 551 U.S. l, 9 (2007), which held

that “a juror who is substantially impaired in his or her ability to impose the

36

death penalty under the state-law framework can be excused for cause, but if nn
the juror is not substantially impaired, removal for cause is impermissible.” ln-
Brown v. Commonwealth 313 S.W. 3d 577, 599 (Ky. 2010), this Court
discussed the great difficulty in determining whether a potential juror’s
reservations aboutthe death penalty would “prevent or substantially impair the
performance of [their] duties as . . . juror[s] in accordance with [their]
instructions and [their] oath.” (quoting Wainwright vi Witt, 469 U.S. 412, 424
(1985.)). For this reason, we grant the trial court’s wide-ranging discretion, as
“this distinction will-often be anything but clear and will hinge to a large extent 7
on the trial court'S estimate of the potential juror's demeanor.” Brown, 313
S.W.3d at 599.

With regards to Juror l 159266, voir dire questioning revealed his
opposition to the death penalty. Unfortunately for the trial court, his
opposition Was anything but consistent. When initially asked if he could
consider the. death penalty, Juror 1159266 responded in the negative The
potential juror subsequently explained that he did not believe in the death
penalty, going so `far as to say, “I just don’t think that being put to death is the
proper punishment ever.” When Appellant began asking the potential juror
questions, he seemed to let up on his previously stated convictions and
expressed that he could consider all available penalties. However, further
questioning by the_Commonwealth once again uncovered his bias against the

death penalty and that it was never the proper punishment

37

Juror 1159422 also expressed contempt for the death penalty, When
asked if she could consider the entire range of penalties, the potential juror-
stated, “I’d prefer not_to. . . [and] l wouldn’t want to[,] several of them maybe,
but not the death penalty.” Juror 1 159422 went on to explain that she was
capable of considering.“anything,” but clarified that the death penalty is not
something she wanted to entertain. She also explained that she was Catholic
and didn’t “particularly like the death penalty.” Appellant provided-the
potential juror with similar questioning regarding her ability to consider_the
death penalty as a possible sentence. She replied as follows: “I wouldn’t want
to, no. I wouldn’t want to, but could I? l guess anybody can do anything.”

When faced with conflicting,and somewhat unclear answers, such as
those provided_by Juror 1159266 and 'Juror 1 159422, we must look to the
jurors’ responses as a whole and ask if a reasonable person would conclude
that the juror was substantially impaired in the ability to consider the death
penalty, Brown, 313 S.W.3d at 601. In' light of both jurors’ unequivocal
objections to the death penalty, in addition to their uncertainty and hesitation
in imposing a sentence of death,'. we cannot conclude that the trial court
abused its discretion. See id._ (upholding trial court’s for-cause strike of juror,
who said “I don't know” virtually every time he was asked if he could impose
the death penalty). l
Jury Sequester

Appellant complains that he was "denied a fair trial due to the trial court’s

failure to sequester the jury on the weekend between the guilt and sentencing

38

phases. We find no error. RCr 9.66 states that “[w]hether the jurors in any
case shall be sequestered shall be within the discretion of the court.”
Accordingly, in St. Clair v_. Commonwealth7 140 S.W.3d 510, 558 (Ky. 2004),
this Court made clear that it is not an abuse of discretion to refuse “to
sequester a jury between the guilt and sentencing phases of a bifurcated trial .
. . .” (citing nelson v. comnonweazrh; 836 s.W.2d s72, sss (Ky. `1992),-
overturned in part by St. Clair v. Roark, 10 S.W.3d 482 (Ky. 1999)).
Mitigating Evidence

Appellant contends that the trial committed error when it denied him the
opportunity to inform the jury that he had previously pled guilty to murdering
Sweeney and Miles.~ However, a careful review of the record fails to
demonstrate such a ruling. Moreover, we have been unable to locate
Appellant’s specific request for relief or request that the trial court make a
ruling on the matter. See, e.g., Brown’v. Commonwealth 890 S.W.2d 286, 290
(Ky. 1994). l
Missing .Evidence Instruction

The next issue for our review concerns the trial court’s denial of
Appellant’s request for a missing evidence instruction. The evidence at issue is
a printout of food stamp recipients and a bus schedule'. The bus schedule Was
found under Armstrong’s body and collected by law enforcement At the time
of trial, the bus schedule was not introduced into evidence and was never
located. In regards to the food stamp printout, Armstrong was stated to have

left her apartment to obtain food stamps on the morning of her murder, but the

39

food stamps were missing on her person when her body was discovered. In an
attempt to confirm her whereabouts that morning, LMPD Detective Les Wilson
testified that he obtained a printout from the food stamp office showing
Armstrong as a recipient After Detective Wilson’s testimony, the parties
realized the printout was missing. Both parties stipulated this fact and the
trial court advised the jury that the food stamp printout was not within the
case iile. Appellant requested an instruction on the missing evidence. The trial
court denied the request-on the grounds that Appellant failed to demonstrate
that the evidence was intentionally destroyed by law enforcement

A missing evidence instruction is required only when a “Due Process
violation [is] attributable to the loss or destruction of exculpatory evidence . . .
.” Estep v. Commonwealth 64 S.W.3d 805, 810 (Ky. 2002). In order for
Appellant to be entitled to a missing evidence instruction, he must establish
that (1) the failure to preserve the missing evidence was intentional and (2) it
was apparent to law enforcement that the evidence was potentially exculpatory
in nature. Id. Appellant has failed to demonstrate either bad faith on the part
of law enforcement or that the missing evidence would have had the potential
to exonerate him as the assailant See Roark v. Commonwealth 90 S.W.3d 24 ‘
(Ky. 2002) (missing composite sketch of perpetrator and lineup photographs
did not require missing evidence instruction because bad faith was not shown
and the evidence was not exculpatory). Thusly, the trial court properly denied

Appellant’s request for a missing evidence instruction.

40

Alternative Perpetrator Evidence j

Appellant also complains that the trial court erred in failing to permit the
introduction of evidence that Michael Board, the father of one of Armstrong’s
children, was her actual killer. More specifically, Appellant sought to question
a testifying detective regarding a warrant taken out by Board against
Armstrong five years prior to her death._ After the Commonwealth objected, the
trial court prohibited the questioning on the grounds that Board being the
alternative perpetrator was unsupported and speculative Appellant preserved
the detective’s testimony by avowal.

When evaluating alternative perpetrator evidence, the KRE 403 balancing
test is the true threshold for admission, as such evidence is almost always
relevant. Gray v. Commonwealth 480 S;W.'Sd 253, 268 (Ky. 2016) (“The
proponent of the theory must establish_something more than simple relevance
or the threat of confusion or deception can indeed substantially Outweigh the
evidentiary value of the theory.”). Probative worth is diminished if the
“proffered evidence [presents] speculative, farfetched theories that may
potentially confuse the issues or mislead the jury.” Id.

The only proffered evidence indicating that Board was the alternative
perpetrator was the back and forth warrants between the parties during what `
was obviously a tumultuous relationship. However, the most recent warrant as
of the time of Armstrong’s death originated five years prior. Taking into »
account the five-year time lapse, we do not believe the evidence established

that Board had a motive to murder Armstrong. Too much time had simply

41

gone by for the warrant to have any true probative worth. The proffered
evidence also failed to demonstrate that Board had the opportunity to commit,
l or that he was in any way linked to, Armstrong’s murder. See'Beaty v. 1
Commonwealth 125 S.W.3d-196 (Ky. 2003). Appellant’s theory was weak and
presented itself as speculative and farfetched. Consequently, we do not believe
the trial court’s ruling lwas an abuse of its discretion, nor did it prevent
Appellant from presenting a full defense.
ramey Phase inhibit

Appellant next requests a new sentencing trial based.on an unadmitted l
exhibit being placed with_ the jury during deliberations The Commonwealth
utilized an enlarged chart illustrating Appellant’s criminal history during the
sentencing phase of trial. Appellant did not object to the introduction of his
l criminal history via the testimony of the Commonwealth’s witness, nor the use
of the chart. The record reflects that the Commonwealth failed to request for
the chart to be admitted into evidence, Yet, the jury was allowed to view the
chart during its deliberation in violation of liCr 9.72. Nonetheless, the error
was harmless as Appellant’s criminal history, specifically the most prejudicial
convictions_his previous murder co'nvictions_had already been disclosed to
the jury on several occasions.
Intellectual Disability

Appellant urges the Court ton reverse his death sentence on the grounds
that the trial court refused to hold a hearing to explore the existence of an

intellectual disability. Once the jury returned a verdict of guilt, Appellant

42

motioned the trial court to remove the death penalty as a possible sentence
based on Appellant’s low IQ score and the case Hall v. Flon'da, 134 S.Ct. 1986
(2014). The trial court denied Appellant’s motion, and declined his request for
a hearing on the matter. l

The Eighth and Fourteenth Amendments to the United States
Constitution prohibit the execution of persons with intellectual disability.
Atkins v. Virginia, __536 U.S. 304, 321 (2002). The Commonwealth recognizes
this rule of law in KIiS 532.140, which forbids the imposition of death upon an
“offender with a serious intellectual disability.” In order for a defendant to l
meet Kentucky’s statutory definition of “serious intellectual disability,” and
thus evade the death penalty, he or she must meet the following criteria l
pursuant to KRS 532.135: (1) the defendant’s intellectual functioning must be
“signifrcant[ly] subaverage”-defined by statute las having an intelligence
quotient of 70 or less; and (2) the defendant must demonstrate substantial
deficits in adaptive behavior, which manifested during the developmental
period.

Procedurally, trial courts require a showing of an IQ value of 70 or below
before conducting a hearing regarding the second criteria of diminished
adaptive behavior. Moreover, pursuant to Hall, 134 S.Ct. 1986, trial courts
must also adjust an individual’s score to account for the standard error of
measurement See also Whr'te v. Commonwealth, 500 S.W.3d 208, 214 (Ky.
2016) (pursuant to Hall, trial courts in Kentucky must consider an IQ test's

margin of error when considering the necessity of additional evidence of

43

intellectual disability). As stated in Hall, the standard error of measurement is
plus or minus 5 points. Id. at 1999. v

Appellant submitted to the trial.court his 1971 IQ test score of 76." After
_ applying the standard error of measurement Appellant’s IQ score has a range
of 71 to 81. Such‘a score is above the statutory cutoff of 70,_ thereby failing to
meet the “significant subaverage” requirement Thusly, further investigation
into his adaptive behavior was unnecessary Nonetheless, Appellant submits
that_Hall'forbids states from denying further exploration of intellectual
disability simply based on an IQ score above 70. However, this Court can find
no such prohibition. The holding of Hall renders a strict 70-point cutoff as l
unconstitutional if the standard error of measurement is not taken into
account Id. at 2000. ln other words, Hall stands for the proposition that prior
to the application of the plus or minus 5-point standard error of measurement
-“an individual with an IQ test score 'between 70 and 75 or lower’ may show
intellectual disability by presenting additional evidence regarding difficulties in
adaptive functioning.” Id. (quoting Atkr'ns v. Virginia, 536 U.3; 304, 309, n. 5,
(2002)). That is not the case before us, as Appellant’s IQ, even after
subtracting the 5-point standard error of measurement is higher than the 70-
point minimum threshold.

We also reject Appellant’s request that we apply the “.Flynn Effect” to his
IQ score. The Flynn Effect is a term used to describe the hypothesis that “as
time passes and IQ test norms grow older, the mean lQ score tested by the

same norm will increase by approximately three points per decade.” Bowling v.

_44

Commonwealth, 163'S.W.3d 361, 374 (Ky. 2005) (citing Jame's R. Flynn,
Massive IQ Gains in 14 Natr'ons;' What IQ Tests Really Measure, 101 Psych. Bull.
171-91 ( 1987 No. 2)). Therefore, as applied, Appellant’s 1971 IQ score of 76',
would actually be 59 by today’s standards-71 minus 12 points for the Flynn
Effect and 5 points for the standard error of measurement-well below the 70-
point threshold. Appellant, however, fails to cite any precedential or statutory
authority indicating that trial courts must take into account the Flynn Effect.
Indeed, KRS 532.140 is unambiguous and makes no allowance for the Flynn
Effect, nor is such an~adjustrnent mandated by this Court or the U.S. Supreme .
Court. See Bowling§ 163 S.W.3d at 375-76. Furthermore, even if the Court
was obliged to ignore the confines of KRS 532.135 and place less weight on
Appellant’s IQ score, there is ample evidence of Appellant’s mental acumen.

F_or example, Appellant often advocated for himself through numerous pro se
motions. One such motion was written so persuasively that defense counsel
specifically asked the trial court to rule on its merits. `Consequently, we find no
error in the trial court’s denial of Appellant’s motion for an evidentiary hearing
or exclusion of the death penalty.

Competency Hearing -

Appellant also requests that the Court find reversible error in the trial
court’s failure to conduct a competency hearing Pursuant to defense counsel's
motion, the trial court ordered Appellant to undergo a competency evaluation
However, at the scheduled May 10, 2010 competency hearing, the trial court

discovered that the Kentucky Correctional Psychiatric Center (“KCPC”) was

45

unable _to perform an evaluation of Appellant due to his refusal to cooperate

At the scheduled hearing, Appellant informed the trial court that he had
several complaints regarding his counsel. As it relates to the issue before us,
Appellant explained to the trial court that he was competent and did not want
to go to KCPC for an evaluation.' Appellant further urged the Court to consider
his 1984 evaluation which declared him competent Several days later, the trial
court ordered Appellant’s counsel be removed due to irreconcilable differences
The issue of competency was not brought up again until Appellant’s motion ._for
a new trial in September of 2014, which was subsequently denied.

Competency hearings are implicated on statutory and constitutional
grounds, both having separate standards governing those rights Per KRS
504.100[1-) a trial court must order a competency examination upon
“reasonable grounds to believe the defendant is incompetent to stand trial.”
Subsection (3) of the statute then states that “[a]fter the filing of a report (or
reports), the court shall hold a hearing to determine whether or not the
defendant is competent to stand trial.” Thusly, the state statutory right to a
competency hearing only arises after report of a competency examination is
filed.

The due process constitutional right to a competency evaluation attaches
when there is substantial evidence that a defendant is incompetent Id. When
reviewing a trial court’s failure to conduct a competency hearing we ask
“[w]hether a reasonable judge, situated as was the trial Court judge whose

failure to conduct an evidentiary hearing is being reviewed, should have

46

experienced doubt with respect to competency to stand trial.” Padgett v.
asmmonma-ilr:hJ 312 s.w.sd 336`,345-46(1<3¢.2010) (quoting rhompson v.
Commonwealth 56 S.W.3d 406, 408 (Ky. 2001)). It is within the trial court’s

l sound discretion to determine whether “reasonable grounds” exist to question
competency Woolfolk v. Commonwealth 339 S.W.3d 411, 423 (Ky. 201 1).

With respect to Appellant’s statutory right to a competency hearing, we
believe that issue has been waived. See Padgett, 312 S.W.3d at 344 (defendant
waived hearing after stating that competency was not an issue). Appellant
pleaded with~the trial court not to question his competency and his new
counsel failed to pursue the matter further.

Upon review of Appellant’s constitutional right to a competency hearing,
we cannot say that there were reasonable grounds to suspect incompetency.FAs
already stated, Appellant assisted in his defense, often advocating on his own
behalf through numerous pro se filings Appellant was steadfast in the defense
he wished to present even notifying the court of his dissatisfaction with his
defense team. Moreover, Appellant was able to comport himself well in the
courtroom, conveyed his thoughts without difficulty, and demonstrated a
thorough understanding of the charges he faced. In fact, the only indication
that Appellant was not competent to stand trial was defense counsel’s
movement for a competency evaluation. As this Court has previously stated,
“defense counsel's statements alone could not have been substantial evidence.”
Padgett, 312 S.W.3d at 349. For these reasons, we do not believe a reasonable

judge would have expressed doubt about Appellant's competency to stand trial.

-47

Death P_enalty
For_his final claims of error, Appellant asserts numerous arguments
concerning the constitutionality of.Kentucky’s death penalty statutory scheme
and the trial court’s imposition of death. Appellant’s arguments have already
been settled by this Court. See_Bleece, 348 S.W.3d 627 (Kentucky’s death
penalty is constitutional]; 'St'Clair, 451 S.W.3d at 655 (proportionality review
was sufficient failure to define reasonable doubt does not violate due process
rights, jury does not need to be instructed that it may choose a non-death
sentence even upon a_finding of aggravating circumstance, and no error in trial
judge’s report erroneously stating that a “passion and prejudice”'instruction
was provided to the jury]; Dunlap v. Commonwealth, 435 S.W.3d 537 (Ky. 2013)
(Kentucky’s death penalty scheme is not discriminatory, prosecutorial
discretion does not render death penalty inherently arbitrary, and jury was not
required to be informed of means of execution or parole eligibility); Mills v.
Commonwealth, 996 S.W.2d 473, 492 (Ky. 1999), overruled on other grounds by
Padgett, 3 12 S.W.3d 336 (holding that there “is no requirement that a jury be
instructed that their findings on mitigation need not be unanimous”).
Moreover, Appellant’s contention that our death penalty statute violates

the Sixth Amendment pursuant to Hurst v. Flon`da,\ 136 S.Ct. 616 (2016) is
. unpersuasive In Hurst, the U.S. Supreme Courtfound` Florida's capital
sentencing scheme unconstitutional because the jury only issued a Sentencing

_recommendation, after which the judge made the ultimate factual findings

48

needed for the imposition of death. Id. at 622-24. However, under the
Commonwealth’s statutory scheme, the trial court does not usurp the jury’s
role in finding the'existence of statutory aggravators needed for the imposition
of the death penalty.
Conclusion
For the aforementioned reasons we'affirm the Jefferson Circuit Court’s
judgment and sentence of death,

All sitting. All concur.

COUNSEL FOR APPELLANT:

Susan Jackson Balliet-
Assistant Public Advocate'

Erin Hoffman Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:

Andy lBeshe'ar
Attorney General of Kentucky

Jeffrey Allan Cross
Assistant Attorney General

Emily Lucas
Assistant Attorney General

49

