         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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ACTION.
                                              AS M()f)IFIED: 1W('1.W 3EP 1, 2009
                                               R11,'NI)ERED : N()VF',MBER 25, 2009
                                                           N          _P    X    'D

                     uyrrmr 6T
                            V-1                of
                                2007--SC .1)00350-MR


   DEREK RENE EDMONDS



                ON APPEAL FROM JEFFERSON CIRCUIT COURT
  V.          HONORABLE JUDITH M('1_)()NALIJ-BURKMAN,,JCJI)(-F,
                NOS . 04-CR-001 179-001 AND 04. -Cl~-0024, 45-001


  COMMONWEALTH OF KENTUCKY                                             APPELLEE


  AND    _                      2007-SC-000359-MR


 TYREESE HALL                                                         APPELLANT



               ON APPEAL FROM JEFFERSON CIRCUIT COURT
 V.          HONORABLE JUDITH MCDONALD-BURKMAN,JUDGE
               NOS . 04-CR-001179-002 AND 04-CR-002445-003




 COMMONWEALTH OF KENTUCKY                                             APPELLEE


                   MEMORANDUM OPINION OF THE COURT

               AFFIRMING IN PART AND REVERSING IN PART

                               I. INTRODUCTION

       At a jury trial, Appellants Derek Rene Edmonds and Tyreese Hall were

convicted of murder, first-degree sodomy, and first-degree robbery . Upon

review of the record and Appellants' arguments, we affirm their convictions .
 However, with respect to Appellant. Derek Edmonds, we reverse and remand for

 the limited purpose of entry of an amended judgment on his sodomy

 conviction.

                                 II. BACKGROUND

        Early in the morning of April 6, 2004, Clifton Agnew, a homeless man

 sleeping outside near the Salvation Array in Louisville, Kentucky, was beaten,

 hit with a crock pot, stabbed in the leg, and robbed . While unconscious, he

 was sodomized with a bottle and two sticks, which were shoved up his rectum,

 into his abdomen, and through his organs. A police officer saw someone flee

 the scene, but was unable to catch the suspect. Two police officers then

 discovered the victim bleeding from his head and rectum. He was barely alive,

 and EMS took him to the hospital, where he remained unresponsive and in a

coma until his death. i

       A twenty-seven-inch stick and a smaller fifteen-inch stick were recovered

from the alley where the attack occurred ; both sticks were covered in the

victim's blood . A broken beer bottle with blood around the neck and a knife

were also found, and police recovered a crock pot, which was dented, broken,

and bloody.

      Both Appellants were arrested that day. Hall had a swollen hand and

blood spatters on his pants . Edmonds had blood-soaked pants and boots .




i After a few weeks, the victim was moved to a nursing home, but he never awakened
from his coma.
 DNA from the blood on both Appellants' clothing matched the DNA profile of

 the victim.

       Hall gave a statement to police that day, claiming to have hit the victim

 on the leg with the crock pot and admitting t o punching him and stabbing him

 in the leg with a knife . This statement was recorded and later played at trial .

       At another time, Hall signed a statement confessing that he alone robbed

 and sodomized the victim, stating that Edmonds had only kicked the victim

 and then run away. He later testified that Edmonds pressured him to take the

blame, which is why his original written statement only implicated himself.

       Hall later gave a second statement to a detective over the phone wherein

he implicated Edmonds' brother Dewayne in the violence . (He testified at trial

that he did this only to get back at Edmonds, who he believed had gotten him

arrested, and that the brother had not attacked the victim .) While on the

phone, he also admitted to throwing the crock .pot, hitting the victim's head,

and claimed that Edmonds had sodomized the victim with a glass bottle. This

statement was also recorded and played at trial.

      Hall also testified at the trial, providing details of the attack. He claimed

that Edmonds had been discussing robbing someone that day. Hall, Edmonds,

and Edmonds' brother were walking down an alley on the day of the crime

when a homeless man awoke and rose up. Hall testified that the man was

reaching for something, so he attacked, punching the man in the face and

knocking him down. He claimed he kicked the man and then picked up a
 crock pot and threw it down on the victim's leg so hard that the crock pot

 broke. Edmonds' brother picked up the victim's wallet, threw it. down, and

 then left the alley. Edmonds then started punching and kicking the victim.

 Hall testified that he walked away and came back several times, eventually

 asking Edmonds to stop . At that point, the victim was unconscious. Hall

claimed he then saw Edmonds . drag the unconscious victim through the gate in

a fence, beat him some more, and that he heard Edmonds say, "I'm going to do

him like they did our people back in the day," which Hall claimed referred "to

racial stuff. "2 He testified that Edmonds then repeatedly sodomized the victim

with a stick for about two minutes.

       Edmonds denied having anything to do with harming Clifton Agnew

when interrogated by police. He did not testify at trial, but did present multiple

witnesses in his defense . Mark Murray and James Ford testified they heard

Hall admit committing the crimes, specifically to robbing Agnew, sodomizing

him with a bottle and stick, and hitting him with the crock pot. Another

witness, Jeffrey Bryant, who had shared a holding cell with Hall, testified that

all Hall claimed that Edmonds had done was come to Hall's rescue after the

victim grabbed Hall, kicking the victim several times to get him off Hall. Yet

another holding-cellmate testified that Hall had impliedly admitted to

sodomizing the victim with a stick and hitting him in the head with the crock

pot.



2 Both Appellants are African-Americans, and the victim was Caucasian.
          At trial, the victim's doctor and the medical examiner testified about his

    injuries. Dr. Bill Smock treated the victim in the emergency room, and he

    testified that the victim was bleeding from several sites on his head, had two

    stab wounds in his leg, and had "very significant infra-abdominal injuries" and

    a large amount of blood coming from his rectum. He testified, "Some object

    had been inserted forcefully into the rectum and beyond that into the

    abdominal cavity and beyond that up into the left lung area." He said that an

    object had been inserted into the victim's rectum at least twice . He used a

    chart to describe the injuries and he demonstrated with a prosecutor how long

the stick was in comparison to a person's back. He identified eight

photographs of the victim taken at the hospital the day he was admitted

showing injuries to his face, eyes, ear, and anus .

          Dr. Amy Burrows-Beckham performed the victim's autopsy. She testified

that the cause of death was "the head injury he sustained when he was

assaulted," with a contributing factor of loss of blood due to the extensive

injuries to his abdomen and chest.

         Appellants were convicted after a jury trial. Edmonds was sentenced to

life without the benefit of parole or probation on the murder, life without parole

on the sodomy, 3 and twenty years on the robbery. Hall was sentenced to life

without the benefit of parole or probation for twenty-five years on the murder,

twenty-five years on the sodomy, and twenty years on the robbery. Their

appeals to this Court, therefore, are a matter of right. Ky. Const. § 110(2)(b) .

3   The sentence for sodomy was an error and is addressed below.
                                 III. ANALYSIS

       The Appellants were tried together and took their appeals together .

Because several issues are common to both their cases, their appeals are

addressed in a single opinion. Individual issues are addressed separately .

A.     Issues Raised by Both Appellants

       1.    Humanizing/Victim Impact Evidence During Guilt Phase

      Appellants claim they were prejudiced by the testimony of Kaye Thomas,

who visited a comatose Clifton Agnew in the hospital after hearing about his

case on the news, and eventually became his legal guardian . Before trial, the

prosecutors indicated they were going to call Thomas as their traditional

"humanizing" witness as allowed under McQueen v. Commonwealth , 669

S.W .2d 519 (Ky. 1984) . Appellants made written pretrial motions in limine to

exclude Thomas's testimony, arguing it would be mostly irrelevant and highly

prejudicial, and any probative value would be substantially outweighed by the

prejudicial effect . See KRE 403. Appellants' motions in limine were denied .

      Before Thomas was called by the Commonwealth at trial, Appellants

renewed their objections to the entirety of her testimony, and specifically

objected to any testimony about Thomas's "card campaign," an e-mail

campaign asking everyone who received it to send a card to the victim's

hospital room and to forward the e-mail to their friends. Defense counsel

conceded that traditional humanizing testimony would be permissible. The

Commonwealth agreed that the cards and letters Thomas solicited on the
 victim's behalf should not. be admitted into evidence, bt_at argued Thomas

 should be able to testify about them.

       The court ruled that the fact that Thomas read letters to the victim would

 be allowed, but that she would not be permitted to testify that this case

 garnered national attention or that people from around the nation sent letters

 to the victim. Specifically, the court said, "her testifying that this was national,

 and that everybody in the nation sent letters, that is where I'm gonna have to

 stop you ." The Commonwealth then asked for the court to give it- "a couple

 seconds just to tell [Thomas] where your cutoff is."

       The defense further objected to any discussion of the quantity of the

cards the victim received . The court concluded Thomas could testify about her

observations of the victim's injuries and pain and suffering as a lay person

could, and that she could testify about what she did with him, but she could

not testify about what others did for him, including her card campaign and the

number of cards the victim received.

      Thomas began by describing how she came to hear about the attack on

Clifton Agnew on the news, and how she decided to visit him in the hospital.

She described the fact that his organs were still swollen outside of his body,

and covered with clear surgical plastic.

      The Commonwealth asked Thomas, "After you got back from the hospital

that [first] day, what did you do?" She testified that she went home and e-

mailed her friends, telling them of the "horrific thing" she had just seen, and
 that the victim was a vegetable. tier e-mail requested her friends to send the

victim a card for two reasons : First, "as an act of protest against the violence

that had been done to him," and second, "as an act of kindness to show a man

that probably had not had a lot of kindness in his life ."

       The Commonwealth then asked Thomas whether any of her friends who

received her e-mail sent cards, and she responded that all twenty of them did.

She continued by testifying that the following day he was sent seventy-five

cards, and then 120, and so on. She testified that on one day, the victim

received 666 cards, so she bought an extra card because she "thought he'd

already met the devil once and he didn't need to meet him again." She then

described how her initial e-mail was forwarded from her friends to their friends

until the victim had received thousands of cards from all over the world, which

she said she read to hire one at a time.

      While holding his hand, she "read to him these wonderful, magical cards

that were all filled with love and compassion and hope and inspiration to

someone who probably hadn't gotten a lot of cards in his life." She thought

that as she read those cards to him, somehow there would be a connection

between the sender of the letter and the victim, and that "somehow

miraculously there would be some hope and maybe he would get better ."

      Directly contrary to the court's restriction on Thomas's testimony, the

Commonwealth specifically asked, "How many cards did Clifton get after you

sent out that first e-mail," and Thomas responded that he eventually received
 6,286 cards. She described how the University of Louisville baseball team sent

 him a baseball, and how RCA Records, the Secretary of State of New Jersey,

and a Native American tribe all sent him cards . She said that she found out

that Agnew liked Elvis, and played Elvis music for him .

        The Commonwealth then moved on and asked Thomas to describe the

physical condition of the victim during the fifty-six days he was in a coma

before dying. She replied that "there was never any reaction" from the victim,

and also described his partial paralysis. She then testified that she became

Agnew's legal guardian after he had been in a coma for over a month, and he

was moved to a nursing home that volunteered to house him even though he

was indigent. She found out where the victim was born, and located his ex-

wife. Thomas described how Agnew had lost a tremendous amount of weight

"because he had lost three-quarters of his stomach," and was on a feeding

tube.

        Thomas then specifically discussed the day the victim died in the nursing

home, a day which she at first felt may have had "hope." She talked about how

"for the very first time his eyes were opened, and they were opened just like my

eyes are open right now." During all of her visits to see the victim, his eyes had

always been brown when she peeled his eyelids open, but "on this day his eyes

were sky blue" and she thought this was a good sign. She said she "really had

hope that day," but nevertheless Agnew passed away that evening. Thomas

testified for approximately eighteen minutes, and cried softly several times .
       The Appellants made no objections during Thomas's heartfelt, testimony.

After she testified on direct examination, defense counsel moved for a mistrial.

The court declined to make a "finding that the Commonwealth elicited the

numbers and the extent" of the card campaign, and denied the motion for a

mistrial, finding that because the physical condition and injuries of the victim

were not in dispute, there was no prejudice from this testimony.

      The Commonwealth argues that Thomas's testimony was appropriate as

"humanizing" evidence, and to provide information about the victim's condition

from the time he was attacked until the day he died . McQueen v.

Commonwealth permits the prosecution to provide a humanizing witness, in

order to show that the "victim was a living person, more than just a nameless

void left somewhere on the face of the community" and more than just "a

statistic." 669 S .W.2d at 523. See also Ernst v. Commonwealth, 160 S .W.3d

744, 763 (Ky. 2005) (quoting Sussell v. Commonwealth, 882 S.W .2d 111, 113

(Ky. 1994)) ("[A] certain amount of background evidence regarding the victim is

relevant to understanding the nature of the crime.") . This testimony has

generally included basic background information about the victim. See , ej~. ,

Hilbert v. Commonwealth, 162 S.W.3d 921, 926 (Ky. 2005) (mothers of victims

briefly described dates of birth, number and sex of siblings, and the fact that

one victim had a nine-year-old son); Hodge v. Commonwealth, 17 S.W.3d 824,

847 (Ky. 2000) (victims' sons testified that victims were elderly and infirm, that

they worked hard to accumulate what was stolen, and that they attended
 church on the day they were killed) ; Tanlnic v. Commonwealth, 973 S . W.2d 13,

 35 (Ky. 1998) (mothers of victims introduced life photos of sons) .

       While humanizing evidence generally comes from family members, there

 is no rule limiting it to family members, nor should there be . Such a rule

would limit humanizing evidence to those with families . This Court recognizes

that, for victims with no family or friends, humanizing evidence may need to be

presented differently. The fact that. Mr. Agnew had no family does not make

him any less entitled to evidence that. he was more than just. a statistic.

       However, much of Thomas's testimony was evidence of the effect of the

crime on others, and not mere victim background evidence. Such testimony

exceeds the scope of what is allowed during the guilt phase:

      [While the Commonwealth is entitled to show the jury that the
      victim was not a mere statistic, buts a living person . . . we have
      expressed disapproval of the introduction of victim impact evidence
      during the guilt phase of a trial . . . . The reason, of course, is that.
      such evidence is generally intended to arouse sympathy for the
      I -~illies of the victims, which, cilthol ..i``ii relevant t% file issue of'
      penalty, is largely irrelevant to the issue of guilt or innocence. We
      reiterate that this type of evidence should be reserved for t:he
      penalty phase of the trial.

Bennett v. Commonwealth, 978 S.W.2d 322, 325-26 (Ky. 1998) (citations

omitted).

      Much of Thomas's testimony was not about the victim, but was instead

about her reaction and the community's response to his plight, i.e. more akin

to victim impact testimony. It is error to introduce victim impact evidence

during the guilt phase of a criminal trial. See Ernst, 160 S.W.3d at 763 . The
 portions of Thomas's testimony dial exceeded permissible litirminizirig evidence

were error.

      The question then becomes whether this error was harmless . RCr 9.24 .

A non-constitutional evidentiary error must, have a substantial influence on the

jury's verdict to require reversal. Winstead v. Commonwealth, 283 S.W.3d 678,

688-89 (Ky. 2009) (citing Kotteakos v. United States, 328 U .S. 750 (1946)) .

      Under the circumstances of this case, Thomas's testimony was harmless

error. There is overwhelming evidence of the Appellants' guilt, including blood

on the Appellants' clothing, DNA evidence linking the blood to Clifton Agnew,

Hall's confession, and Hall's testimony at trial implicating both himself and

Edmonds .

      With regard to Thomas's testimony about Agnew's injuries, far more

graphic evidence of these injuries was introduced through medical testimony

and photographs shown to the jury. Upon consideration of the whole case, the

improper victim impact-type testimony did not have a substantial influence on

the jury's verdict. Those portions of Thomas's testimony that were error were

therefore harmless error.

      2.      Hearsay Testimony and Photo Array Identification

      Larry Milligan was an eyewitness to the attack who did not testify at trial.

He was homeless and it was believed he had left the state. On the morning of

the attack, however, he gave a taped statement to Detective Jeff Wheeler and

he identified Hall from a photo array. He then disappeared and was never
    found. Because he failed to identify Edmonds, Edmonds sought to have tile

    statements introduced as exculpatory evidence while Hall sought to keep the

    inculpatory hearsay identification out. The trial court granted Hall's written

    pretrial motion in limine to exclude any evidence about Milligan's statements

    because it was hearsay and violated his right to confront and cross-examine

    witnesses against him.

          However, over Hall's objection, the trial court allowed Milligan to be

    discussed first in Dewayne Edmonds' opening statement ., 4 saying that he saw

    two black men and identified Hall from a photo . Over Hall's renewed objection,

    the trial court later allowed Detective Gary Williamson and Detective Wheeler to

    repeat Milligan's hearsay statements about the men he saw in the alley,

    including Milligan's identification of Hall, and it allowed Detective Wheeler to

    say Milligan picked Hall out of a photo array (although the trial court did keep

 the actual array out) . Additionally, Williamson testified as to double hearsay

when he said he was told by other officers that Milligan was an eyewitness who

had seen two men in the alley and that he had picked Hall out of a photo array.
                       testified
He also stated that he           to the gland jury about what Milligan had said.

An objection to the last comment on the grounds of hearsay was sustained by

the trial court. At the close of the trial, Milligan had not been called to testify

and Hall moved for a mistrial, which was denied .



4Dewayne Edmonds, the brother of Appellant Derek Edmonds, was a third co-
defendant at this trial who pled guilty to second-degree robbery as the trial was
ongoing, and thus he is not a party to this appeal.


                                           13
       The Commonwealth concedes theses st_atemelits were hearsay. However,

 because Hall had confessed in multiple statements that he was present at. the

 crime, though claiming varying degrees of involvement, there is no reasonable

basis to believe that the statements 'had a substantial effect on the verdict

 against Hall, since they did little more than place him at the scene . The

statements were actually favorable to Edmonds, who had wanted them

admitted. Though error, it was harmless .

       3.    Limitations on Individual Voir Dire

      Appellants allege error in the trial court's limitation of the individual voir

dire required in death penalty cases. Specifically, Appellants claim the trial

judge abused her discretion by limiting their voir dire questioning of each

prospective juror to two minutes each for the Commonwealth and the three

defendants (before Dewayne Edmonds was dismissed), by limiting questions

about possible mitigation evidence, and by limiting leading questions, thus

denying their rights to a fair trial under the Sixth and Fourteenth Amendments

to the United States Constitution . Contrary to Appellants' claims, however, the

trial court properly exercised its discretion in conducting individual voir dire.

      First, the voir dire questioning of the first juror took over twenty minutes.

The trial court realized there were over one hundred prospective jurors

remaining, and thus limited each party's questioning to two minutes . The

jurors had already been shown a six-minute video presentation explaining the

guilt and penalty phases of the trial, the penalty ranges for each defendant,
                                                             the
 and aggravating and mitigating factors . Additionally,            trial court. began

individual voir dire by asking each prospective juror whether he or she had

seen any media coverage or formed an opinion about the case . The judge then

referenced a chart showing the range of possible penalties and asked each               '' -

juror whether he or she could consider the full range of penalties if selected to

serve and deliberate in the penalty phase, including the twenty-year minimum

penalty and the maximum penalty of death. The Appellants also had each

juror's response to the death penalty qualification questionnaire . Therefore,

before Appellants even began their questioning, the primary issues for

individual voir dire had already been addressed and the Appellants already had

a response by each juror to key issues . Given the multitude of information the

Appellants already had for each juror, the trial court's two-minute limitation

was permissible. "The mere fact that more detailed questioning might have

somehow helped the accused in exercising peremptory challenges does not

suffice to show abuse of the discretion in conducting the examination ."

Wbodall v . Commonwealth, 63 S .W.3d 104, 116 (Ky . 2001) .

       Appellants do not cite a case in which a two-minute limit in individual

voir dire was error. The authority from other jurisdictions cited in Appellants'

reply briefs is readily distinguishable . Several of those cases involved excessive

limits on overall voir dire, 5 where no such limit existed in this case, or




5 See State v. Strange, 619 So.2d 817 (La. CLApp. 1993) (error to limit overall voir dire
to ten minutes) ; McCarter v. State , 837 S.W.2d 117 (Tex. Crim. App. 1992) (error to
limit overall voir dire to 30 minutes) .


                                           15
 limitations that were not even enforced ." The other cases involve limits on

 individual voir dire .? 'Those cases, however, involved much more stringent

 limits than here. Ultimately, the voir dire of each juror here, which, counting

 the video and questioning, was at. least 14 minutes per juror, was far greater

 than that found wanting in other jurisdictions . Additionally, Appellants' cited

authority is not binding in Kentucky, and this Court concludes that the two-

minute-per-defendant limit in individual voir dire was not an abuse of

discretion under the facts of this case.

       Second, the trial judge only permitted a generalized inquiry into

mitigation. Under Woodall, however, this was also a permissible exercise of the

trial court's discretion . In that case, "[Appellant] Woodall sought to question

the jury about. specific mitigating circumstances rather than a generalized

inquiry as allowed by the trial judge ." Woodall, 63 S.W .3d at 116. This Court,

held that because "[t]he judge permitted Woodall to question jurors extensively

regarding mitigating circumstances so long as the questions were general and

did not inquire into specific mitigation," the trial court in that case did not

abuse its discretion . Id . In this case, after the Commonwealth objected to

defense counsel's attempt to ask questions about specific mitigating


6 See People v. Odle , 754 P.2d 184 (Cal. 1988) . Sine the limit in that case was not
enforced, it is unclear why Appellants even cite it .
7 See Clemments v. State, 940 S.W.2d 207 (Tex. Ct.App . 1996) (one-hour overall limit
on voir dire was unreasonable where 30 minutes was used to question entire panel,
leaving approximately 30 seconds per juror to individually question 60 venire
members) ; O'Hara v. State , 642 So.2d 592 (Fla. Dist. Ct.App. 1994) (abuse of
discretion to limit voir dire of 24 jurors to 40 minutes) ; State v. Williams, 860 P.2d
860, 863 (Or. Ct. App. 1993) (error to limit voir dire of 25 jurors to 40 minutes, about
96 seconds per panel member) .


                                           16
circumstances, the judge gave counsel a mitigation definition that they could

tell the jurors, and she reminded counsel that. her video presentation had

explained to the jurors what mitigation evidence was. As in Woodall, because

Appellants were allowed to ask about mitigation generally, "lilt was not. an

abuse of discretion by the trial judge to restrict the voir dire . . . concerning

specific mitigation evidence which [they] planned to present." Id . Not only did

the judge not abuse her discretion, but what the Appellants' counsel asked to

do has been held to be impermissible : "[A]sking potential jurors how they

would weigh specific mitigating circumstances would ignore well-settled

precedent that it is impermissible to ask voir dire questions designed to commit

jurors to certain theories ." Sherroan v. Commonwealth, 142 S.W.3d 7, 14 (Ky.

2004) .

      Finally, the trial court restricted Appellants' leading questions. Defense

counsel, however, was attempting to use hypothetical scenarios to pin down

jurors on a specific penalty phase decision, without referencing any specific

evidence . This sort of questioning violates the proscription against. questions

designed to commit jurors to certain theories, as noted in Sherroan . Moreover,

this Court has recognized :

      "It is well (sic) to remember that the lay persons on the panel may
      never have been subjected to the type of leading questions and
      cross-examination tactics that frequently are employed .
      Prospective jurors represent a cross section of the community, and
      their education and experience vary widely . Also, unlike witnesses,
      prospective jurors have had no briefing by lawyers prior to taking
      the stand . . . . ..
    Penman v. Commonwealth, 194 S.W.3d 237, 251 (Ky. 2006) (qt.iofhig Patton v.

 Yount, 467 U.S. 1025, 1039 (1984)) . Due to defense counsels' attempts to have

jurors commit to specific penalties when given hypothetical scenarios, "[t]he

    trial court correctly limited defense counsel's questioning when it became clear

 that jurors found the inquiry confusing." Furnish v. Commonwealth, 95

 S.W.3d 34, 44 (Ky. 2002) .

          Therefore, the individual voir dire in this case fits within the well-

 established rule that "[tihe trial judge has broad discretion in the area of

 questioning on voir dire." Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky.

    1985) .

          4.    For-Cause Challenges to Jurors

          Appellants claim the trial court erred in denying several for-cause

challenges to jurors and in improperly striking some jurors for cause .        "The

Appellants exhausted their peremptory challenges and thus this issue is

preserved . See Shane v. Commonwealth, 243 S.W.3d 336, 340-41 (Ky. 2007)

(" `When a defendant does exhaust all of his peremptory challenges, he has

been denied the full use of his peremptory challenges by having been required

to use peremptory challenges on jurors who should have been excused for

cause.' " (quoting Thomas v. Commonwealth, 864 S.W.2d 252, 259 (Ky. 1993))).

          This Court reviews a trial court's determination regarding the exclusion

of a juror for cause for an abuse of discretion . Fugett v. Commonwealth, 250

8Several jurors' responses have been attacked on multiple grounds, requiring more
than one for-cause analysis for each, thus these responses are discussed more than
once below.
 S .W.3d 604, 613 (Ky . 2008) . "[']he decision to exclude a juror for cause is

based on the totality of the circumstances, not in response to any one

question." Id. "The test for determining whether a juror should be stricken for

cause is `whether, after having heard all of the evidence, the prospective juror

can conform his views to the requirements of the law and render a fair and

impartial verdict.'" Thompson v. Commonwealth, 147 S.W. 3d 22, 51 (Ky .

2004) (quoting Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994)) ; see

also RCr 9 .36(1) .

        Juror 160394 said that on the morning of her voir dire she had seen part

of a television report about the case, but that she had not formed any firm

opinions on the case, though she noted during her lengthy individual voir dire

(lasting over twenty minutes)9 that her initial opinion was that the Appellants

were probably guilty . When she said, "If the police found enough evidence to

bring them to trial then I would assume that it would be likely" that they are

guilty, she was essentially describing what amounted to a layperson's (largely

correct) understanding of probable cause to bring charges . Moreover, she

repeatedly asserted that she could put any previous opinions aside and would

have to first consider the evidence before making a final decision, and she

responded that she could consider the entire range of penalties .

        " `[I]n order to merit disqualification of a juror, the media reports must

engender a predisposition or bias that cannot be put aside, requiring the juror


9 The length ofJuror 160394's individual voir dire prompted the trial judge to impose
the two-minute limitation .
 to decide a case one way or the other . . . . The Coristifution does not require

 ignorant or uninformed jurors ; it requires impartial jurors.'" Furnish, 95

 S.W.3d at 45 (quoting McQueen v. Scrod, 99 F.3d 1302, 1319-20 (6th Cir.

 1997)). The trial court did not abuse its discretion when it found Juror 160394

 was able to set aside any impression she may have had from the news report.

       Jurors 155059, 152182, 155132, 146941, 153474, 156261, 148992,

 150450, 161976, and 162784, in response to hypothetical scenarios posited by

 the defense, responded that they could not consider lesser penalties such as

twenty years under the specific scenarios . The trial judge, however, did not

strike these jurors because she found that from the totality of their answers

they could in fact consider the full range of penalties . "The trial judge properly

may choose to believe those statements that were the most fully articulated or

that appeared to have been least influenced by leading." Mabe , 884 S .W.2d at

671 . Disqualification of these jurors was not warranted .

      Jurors 146941 and 161305 both said they could consider the full range

of penalties, even though they said they were more likely to impose a harsher

punishment . "[Elxcusal for cause is not required merely because the juror

favors severe penalties, so long as he or she will consider the full range of

penalties." Id. at 119. Disqualification of these jurors was not warranted .

      During the voir dire of Jurors 153641, 145910, 146941, 149216, and

163414, the defense attempted to ask questions regarding specific types of

mitigation . Again, "asking potential jurors how they would weigh specific
mitigating circumstances would ignore well-settled precedent, that it is

impermissible to ask voir dire questions designed to commit jurors to certain

theories ." Sherroan, 142 S-W.3d at 13-14 . Disqualification was not warranted.
   ,. .   Juror 149359 had previously worked in the United States Attorney's",

Office, was married to a. Louisville Metro Police Department officer, and she

currently worked for a law firm. "[Tjhe party alleging bias bears the burden of

proving that bias and the resulting prejudice." Cook v. Commonwealth, 129

S.W.3d 351, 357 (Ky. 2004) . Once this is shown, "(t)he court rmust weigh the

probability of bias or prejudice based on the entirety of the juror's responses

and demeanor." Shane, 243 S.W.3d at 338. This juror's previous employment,

her husband's employment, and her current employment, standing alone, are

connections too tenuous to constitute the "close relationship" required to

presume bias or prejudice. Montgomery v. Commonwealth, 819 S.W.2d 713

(Ky. 1991) ; but see Marsch v. Commonwealth, 743 S.W. 2d 830, 833 (Ky. 1987)

(close relationship existed where two potential jurors were married to victim's

second and third cousins, visited funeral home to express condolences to

victim's family, and one juror had known victim since he was a . teenager and

worked with him in church) . Because the close relationship was not

established, Juror 149359 could be qualified, and disqualification was not

warranted .

          Jurors 161911 and 151644 said they could not impose the death

penalty. As a result, the judge struck them, which Appellants claim was
improper . However, "[dleath qualification ofjurors is not unconstitutional ."

Caudill v. Commonwealth, 120 S .W.3d 635, 678 (Ky. 2003) . "These jurors were

properly disqualified .

B.     Issues Raised Solely by Derek Edmonds

       1.     Comparison to Jesus in Guilt Phase Closing Argument and
              Examples of Worse Cases in Penalty Phase Closing Argument

       Edmonds claims it was error for the trial court to sustain objections to

his attempts to compare himself to Jesus being put to deatti on the cross and

to "worse" cases like Jack the Ripper, Jeffrey Dahmer, and John Wayne Gacy .

       As to the comparison to Jesus, Edmonds claims his First Amendment

right to free exercise of religion was violated . Yet, given the direction his

attorney was headed, and the fact that this was a closing arguriicnt rather than

a church service, it is clear that he did not wish to engage in any sort of

religious worship or ceremony, and thus this was clearly not an issue of the

free exercise of religion .

       Generally, "(iit is unquestionably the rule in Kentucky that counsel has

wide latitude in making opening or closing statements ." Brewer v.

Commonwealth , 206 S.W.3d 343, 350 (Ky. 2006) . However, trial courts retain

the sound discretion to limit closing arguments when necessary. While it may

not have been necessary to restrict Edmonds' counsel as to these topics, there

is also little conceivable benefit to Edmonds from such comparisons. Certainly,

it is not likely that their omissions had a substantial effect on the verdict. If
 error, it was harmless.

        2.     Full Access to Hall's Psychiatric Condition

        Edmonds claims that he was improperly denied full access to Hall's

 psychiatric records and an independent psychiatric examination, and that he

 therefore could not adequately impeach Hall with his own psychiatric history.

 Even though many of Hall's psychiatric records were contained in juvenile

 records that the trial court ruled were discoverable by the co-defendants,

 Edmonds objects that lie was not permitted to delve even further into Hall's

psychiatric history. However, after a review of Hall's records that Edmonds did

have, this Court finds it would have been unnecessary to compel the disclosure

of additional records.

       Kentucky follows the majority rule that "a criminal defendant, upon a

preliminary showing that the records likely contain exculpatory evidence, is

entitled to some form of pretrial discovery of a prosecution witness's mental

health treatment records that would otherwise be subject to an `absolute'

privilege ." Co mmonwealth v. Barroso, 122 S.W.3d 554, 561 (Ky. 2003) .

       If the psychotherapy records of a crucial prosecution witness
       contain evidence probative of the witness's ability to recall,
       comprehend, and accurately relate the subject matter of the
       testimony, the defendant's right to compulsory process must
       prevail over the witness's psychotherapist-patient privilege . Upon
       a preliminary showing . . . the witness's psychotherapy records are
       subject to production for an in camera inspection to determine
       whether the records contain exculpatory evidence, including
       evidence relevant to the witness's credibility.

Id. at 563 .
       In Barroso , however, this Court was cognizant. that a "more restrictive

test is required to preclude `fishing expedition[s] to see what may turn up.'"

(quoting Bowman Dairy Co. v. United States , 341 U .S . 214, 221 (1951)) .

Therefore, an " in camera review of a witness's psychotherapy records is

authorized only upon receipt of evidence sufficient to establish a reasonable

belief that the records contain exculpatory evidence ." Id . at 564. After

examining Hall's juvenile records in camera-which contained some of his

psychiatric records that were five to ten years old-the trial judge found that. an

in camera review of the rest of his records was not warranted. The judge

specifically found that the information in Hall's juvenile file from years before

the current case was not sufficient evidence under Barroso to establish the

required reasonable belief that the records contain exculpatory evidence .

      A person's credibility is not in question merely because he or she is
      receiving treatment for a mental health problem. To subject every
      witness in a criminal prosecution to an in camera review of their
      psyciiotii%rapis is records vvould be the invasion of privacy which
      the psychotherapist-privilege is intended to prevent.

Id. at 563 (quotation marks and citations omitted) . Under these

circumstances, the trial judge did not abuse her discretion .

      As to Edmonds' request for an independent psychiatric examination of

Hall pursuant to CR 35.01-made applicable to criminal proceedings by RCr

13 .04, St. Clair, 140 S.W.3d at 542-"good cause" must be shown to warrant

such an examination. For the same reasons that the trial judge did not find

the required reasonable belief that Hall's psychiatric records contained
 exculpatory evidence, the trial judge did not . abuse her discretion by declining

 to order an independent. psychiatric examination .

       3.     Competency to Stand Trial and Serious Mental Retardation

       Edmonds also claims that he should have been found incompetent to

 stand trial and found to be mentally retarded so as to exclude the possibility of

 the death penalty. Before the trial in this case, the trial court conducted a

 competency hearing. Dr. Peter Schilling testified for the defense and Dr.

 Steven Simon testified after conducting a competency evaluation at the

 Kentucky Correctional Psychiatric Center ("KCPC") at the court's request.

       Dr. Schilling conceded that Edmonds recorded a full-scale I .Q. score of

71 on the test he administered, and that he had previously scored 71 and 73.

He also conceded that Edmonds achieved scores indicative of malingering.

       Dr. Simon testified that Edmonds scored 66 on the test administered at

KCPC but that he once again achieved scores indicative of malingering.

       "RCr 8 .06 and KRS 504.100 set out the legal duty to order a competency

hearing once reasonable grounds are presented which call competency into

question." Alley v. Commonwealth , 160 S.W.3d 736, 739 (Ky. 2005) . The trial

judge did this. At this hearing, however, "[t]he burden is on the defense to

prove a defendant incompetent by a preponderance of the evidence ." Id. "In

Kentucky, the standard of competency is whether the defendant has a

substantial capacity to comprehend the nature and consequences of the

proceedings against him and to participate rationally in his defense." Id. ; see
 also KRS 504 .060. The trial judge noted this standard in reaching her

 decision.

       "The mere fact that the trial judge accepted the testimony of one of the

 doctors as more credible than-the other, has been found to be permissible and

 allows the judge to make a finding regarding competency ." Alley, 160 S .W.3d

at 739 . The situation here is on point with Alley, where

      the trial judge had the authority to accept the medical evidence
      that he believed was most credible and convincing . He made
      extensive findings of fact with regard to the evidence and
      determined that. Alley had failed to provide sufficient evidence to
      demonstrate that he was incompetent: to stand trial in light of the
      evidence to the contrary. Our review of the record indicates that
      the decision of the trial judge was supported by substantial
      evidence and was not clearly erroneous.

Id . Here, the trial judge weighed the two evaluations acid found that Edmonds

had been malingering . She did not abuse her discretion by finding him

competent to stand trial at that time .

      Additivliaiiy, EdliVlld~ argues he should hwr- been found mentally

retarded and thus been exempt from the death penalty under Atkins v.

Vir mia, 536 U.S. 304 (2002), and KRS 532 .140. Because Edmonds did not

receive the death penalty, this issue is moot.

      4.     Improper Sentence for First-Degree Sodomy

      The trial court's Judgment of Conviction and Sentence lists Edmonds'

sentence for first-degree sodomy as life without benefit of parole. The jury,

however, recommended a sentence of life, which is also reflected in the
 Judgment on Jury Trial entered just after the trial but before final sentencing .

 The Judgment of Conviction and Sentence gives Edmonds an impermissible

 sentence for first-degree sodomy . In this case, the sodomy was a Class A

--felony, KRS 510 .070, the penalty range for which is 20 to 50 years' or life

 imprisonment, KRS 532 .060(2) . This issue was not, raised by Appellant, but

 has been revealed in review of the record . To the extent that the final

 Judgment reflects an impermissible sentence, it must be reversed and

 remanded to the trial court, for entry of an amended judgment reflecting the life

 sentence fixed by the jury and contained in the trial judgment .

C.     Issues Raised Solely by Tyreese Hall

       1.    Initial Confession and Failure to Readvise of Miranda Rights

       Hall claims his two statements to police confessing to the attack should

have been suppressed . Hall gave his first statement to police on April 6, 2004,

the day of the attack, after he signed a waiver of his Miranda rights. On April

16, 2004, he was arraigned and appointed counsel, who then, as he describes

in his brief, "asserted" his Miranda rights

      Three and one-half months later, Hall initiated telephone contact with

the police and gave a second statement . Detective Wflliamson told Hall, "When

I originally brought you in, I advised you of your rights. Do you remember

that?" Hall said, "Yes ." Detective Williamson then said, "So you're waiving

those rights and the right to an attorney, and you've been arraigned on this

assault charge, right." Hall again answered, "Yes."
         However, the trial court entered an order finding that Hall was "a

 seriously mentally retarded defendant as defined by KRS 543 .130 and . . .

 meets the criteria for a retarded person tinder Atkins v. Virginia," and that he,

 was excluded from the death penalty.

       As for his first statement to police, Hall argues that under the totality of

 the circumstances approach, his serious mental retardation rendered his initial

 confession involuntary and it should have been suppressed . "The Due Process

 Clause of the Fourteenth Amendment prohibits the admission of involuntary

 confessions : `[if the defendant's] will has been overborne and his capacity for

 self-determination critically impaired, the use of [the] confession offends due

process.' " Bate _ y Commonwealth, 1. 94 S.W. 3d 296, 300 (Ky. 2006) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)) (alterations in

original) . "The voluntariness of a confession is assessed based on the totality of

the circumstances surrounding the making of the confession ." Mills v.

Commonwealth , 996 S .W.2d 473, 481 (Ky. 1999).

       The Commonwealth bears the burden of establishing voluntariness by a

preponderance of the evidence . Bailey, 194 S.W .3d at 300. Voluntariness first

turns on the presence or absence of coercion by police . See id. (" `[C]oercive

police activity is a necessary predicate to the finding that a confession is not

"voluntary" within the meaning of the Due Process Clause of the Fourteenth

Amendment.'") (quoting Colorado v. Connellv, 479 U.S. 157, 167 (1986)) . But

the " `ultimate test' of the voluntariness of a confession" is whether " `the
 confession [is] the product. of an essentially free and unconstrained choice by

 its maker[ .Y" Bailey, 194 S.W.3d at 300 (quoting Schneckloth, 412 U .S. at

 225) .

          In undertaking the voluntariness assessment, " `both the characteristics

 of the accused and the details of the interrogation are considered.' " Bailey,

 194 S.W.3d at 300 (quoting Schneckloth, 41 2 U .S . at 226) .

          When examining the characteristics of the accused, reviewing
          courts consider such factors as age, education, intelligence, and
          linguistic ability. . . . Factors relevant to a characterization of the
          interrogation include the length of the detention, the lack of any
          advice to the accused concerning his constitutional rights, the
          repeated or prolonged nature of the questioning, and the use of
          overtly coercive techniques such as the deprivation of food or sleep,
          or the use of humiliating tactics.

Bailey, 194 S.W.3d at 300-301 (citation omitted).

          Finally, "[t]his Court has succinctly summarized the relevant inquiry to

determine voluntariness as follows: `(1) whether the police activity was
110jeltivel<J% coerci'v'e"; (2) wjletlher
                                          the coercion overbore the will of the

defendant; and (3) whether the defendant showed that the coercive police

activity was the "crucial motivating factor" behind the defendants' confession .'"

Id. at 301 (quoting Henson v. Commonwealth, 20 S .W.3d 466, 469 (Ky. 1999)) .

          Hall's interrogation with police began less than an hour after he was

arrested, and it lasted just over an hour. Hall was also read his Miranda rights

and signed a waiver form. He almost immediately confessed. He was not

deprived of food, sleep, or medical attention . While he was found to be
 mentally retarded, his recorded IQ scores were higher than those of the

 defendant in Bailey . Hall also reads at a second-grade level, attended special

 education (lasses into the eleventh grade, and had prior contact with law

 enforcement . He was found to be competent t.o stand trial.

       "Appellant's mental retardation is a factor to consider in assessing the

 voluntariness of a confession, but `the mere existence of a mental condition, by

 itself and apart from its relation to police coercion, does not make a statement

 constitutionally involuntary.'" Ropers v . Commonwealth, 86 S .W.3d 29, 37

 (Ky. 2002) (quoting Lewis v. Commonwealth, 42 S .W.3d 605, 612 (Ky. 2001)) .

Early in Hall's interrogation, Detective Williamson asked him, "[D]o you feel

deep down in your soul that there's something you need to talk to me about?"

Hall told him that he did not know how it all happened, and he then admitted

he swung and hit the victim and that was why his hand was swollen . This was

the initial confession, and as the interrogation went on, the record

demonstrates that the detective did in fact take special care not to be overly

solicitous of further incriminating statements . While the detective did go on to

tell Hall, I know already," presumably a ruse to convince Hall that he already

knew all the details of the crime, Hall had already confessed to many of those

details . "Mhe `employment of a rose, or "strategic deception," does not render

a confession involuntary so long as the ploy does not rise to the level of

compulsion or coercion .'" Eq&rs, 86 S .W.3d at 37 (quoting Springer v.

Commonwealth, 998 S.W.2d 439, 447 (Q. 1999)) . For the most part, the
 detective proceeded by pulling Hall along and asking him to just go one step

 further and to tell him some more.

       Under "the totality of the circumstances surrounding the making of the

 confession," Mills, - 996,, S .W.2d at 481, including Hall's mental retardation, this

 Court finds there was nothing "inherently or objectively coercive about the

 interrogation in this case," Bg ers, 86 S .W.3d at. 37, and that his initial

 statement was made voluntarily. Therefore, the trial court. properly denied

Hall's motion to suppress this statement .

       Hall also argues the second statement he gave to Detective Williamson

should have been excluded . Hall initiated telephone contact with Detective
                      Hall
Williamson, who asked      if he remembered his rights from the first

interrogation three and one-half months before, and specifically his right to

counsel, and whether he was again waiving them. Hall said he was .

       The Supreme Court "has never indicated that the `rigidity' of Miranda

extends to the precise formulation of the warnings given a criminal defendant

. . . Quite the contrary, Miranda itself indicated that no talismanic incantation

was required to satisfy its strictures ." California v. Prysock, 453 U.S. 355, 359

(1981) . "Reviewing courts therefore need not examine Miranda warnings as if

construing a will or defining the terms of an easement . The inquiry is simply

whether the warnings reasonably `conve[y] to [a suspect] his rights as required

by Miranda.' " Duckworth Y Eagan, 492 U.S. 195, 203 (1989) (quoting

Plysock, 453 U.S. at 361) (alterations in original). Detective Williamson's
 asking Hall if he remembered his rights from when t.liey were read to him

 before, specifically his right to counsel, and whether he was again waiving

 them, did not render his statement involuntary under Miranda. Even though

 the second statement was three and one-half months after his initial

 interrogation and reading of his Miranda rights, under the circumstances-

given that Hall initiated contact with the detective and told him he remembered

his rights, specifically his right to counsel, and that he was once again waiving

his rights-the trial court properly denied Hall's motion to suppress this

statement as well.

        2.    Admission of Gruesome Photos of Victim's Injuries

        Hall claims the eight photos of the victim identified by Dr. Bill Smock,

emergency room physician at the University of Louisville, should have been

excluded. He also claims it was error to allow Dr. Smock to use a chart to

describe the victim's injuries and for him to demonstrate with one of the

prosecutors the length of the stick used in the sodomy in relation to a person's

back.

        The photos at issue and the exhibition by the doctor were admissible .

" `The rule prohibiting the exhibition of inflammatory evidence to a jury does

not preclude the revelation of the true facts surrounding the commission of a

crime when these facts are relevant and necessary.'" Adkins v.

Commonwealth , 96 S.W.3d 779, 794 (Ky. 2003) (quoting Salisbury v.

Commonwealth , 417 S.W.2d 244, 246 (Ky. 1967)) . "The general rule is that a
 photograph, otherwise admissible, does not become inadmissible simply

 because it is gruesome and the crime is heinous." Funk v. Commonwealth,

 842 S.W.2d 476, 479 (Ky. 1992) . "Were the rule otherwise, the state would be

 precluded from proving the commission of a crime that is by nature heinous

 and repulsive." Adkins, 96 S.W.3d at 794 (quoting Salisbury, 417 S.W.2d at.

246) . Even though the defense did not contest that the victim suffered terrible

injuries, "the prosecution is permitted to prove its case by competent evidence

of its own choosing, and the defendant may not stipulate away the parts of the

case that he does not want. the jury to see ." Barnett v. Commonwealth, 979

S .W.2d 98, 103 (Ky. 1998) . The number of photos was not excessive, they were

not unduly redundant, and admission of these photos and the exhibition by

the doctor were not error.

        3.    Joint Trial and Penalty Phase

        Hall claims he should have received a separate trial without a death-

qualified jury, since the trial judge ruled he was ineligible for the death penalty

due to his serious mental retardation . However, "[i)n a joint trial for capital

murder where the death penalty is sought against one defendant, but not the

other, the impaneling of a death-qualified jury does not deprive the defendant

of the right to   a trial by a fair and impartial jury selected from a fair cross-
section of the community." Buchanan v. Commonwealth, 691 S.W. 2d 210, 211

(Ky. 1985) . In Buchanan, this Court rejected the specific argument raised by

Hall:
          [The] contention that death qualification excludes a cognizable
          group from the jury panel so as to make it, unrepresentative of a
          fair cross-section of the community is also unconvincing . Persons
          who are unalterably opposed to capital punishment do not
          constitute a cognizable group for the purpose of the fair cross-
          section requirement . Such persons have diverse attitudes which
          defy classifications and have not-been singled out by the public for
          special treatment, . They do not meet the criteria for making a
          cognizable class . . . . It was not reversible error to death-qualify
          the jury.

Id. at 212 .

          More generally, "[t]he trial judge has broad discretion in determining

whether to grant separate trials and his/her decision in that regard will not be

overturned absent a showing of prejudice to the defendant and a clear abuse of

discretion by the judge ." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky .

1999) . Given the clear state of the law on joint. trials in death penalty cases,

the trial judge did not, abuse her discretion by declining to order separate trials .

         Additionally, Hall argues that the trial court: should have ordered
..separate
   ,-.,. .-,r~ ~~ penalt,J/
                        ,,- . . ,~.,i.,
                                phases  ~. .,~, because evidence ,-.a£,~',~ainsl
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Commonwealth sought the death penalty, would have prejudiced Hall. In

making this claim he relies on Foster v. Commonwealth, 827 S.W.2d 670 (Ky.

1991), where this Court held that the mitigation evidence as to Foster's co-

defendant, Powell, was so prejudicial to Foster as to require reversal of her

sentence . Specifically, Powell claimed "duress and domination" by Foster and

introduced evidence that Foster threatened her and that Foster had said that

she had to kill one of the victims because Powell was a "weak bitch"                                                d "not
 capable of finishing the work." Id. at. 681 . Additionally, Powell and Foster had

 a long-term lesbian relationship, and Powell testified that she had been beaten

by Foster and that Foster had perpetrated other acts of violence against

members of her own family. Id. Powell also introduced expert testimony that.

her relationship with Foster had "similar characteristics" to "battered spouse

syndrome" because she had "learned helplessness" toward Foster . Id . at 683 .

       In this case, however, Edmonds' four mitigation witnesses did not even

mention Hall. Edmonds did not testify in the penalty phase, and he offered no

evidence of prior misconduct by Hall . A separate penalty phase for Hall was

not required, and the trial judge did not abuse her discretion.

      4.       Jury Instructions

               a.   Extreme Emotional Disturbance

      Hall claims that he was entitled to an instruction on extreme emotional

disturbance ("EED") as another route to the lesser-included offense of first-

degree manslaughter . The evidence simply did not support an EED

instruction.

      Extreme emotional disturbance is a temporary state of mind so
      enraged, inflamed, or disturbed as to overcome one's judgment,
      and to cause one to act uncontrollably from the impelling force of
      the extreme emotional disturbance rather than from evil or
      malicious purposes . It is not a mental disease in itself, and an
      enraged, inflamed, or disturbed emotional state does not constitute
      an extreme emotional disturbance unless there is a reasonable
      explanation or excuse therefore, the reasonableness of which is to
      be determined from the viewpoint of a person in the defendant's
      situation under circumstances as defendant believed them to be.
 McClellan v. Commonwealth, 715 S. W.2d 464, 468-69 (Ky. 1986) .

       Hall testified he was startled when the victim in this case rose up in a

dark alley. He did not testify that he was so enraged, inflamed, or disturbed as

to be uncontrollable, and being merely startled was not a reasonable

explanation or excuse for killing the victim in this case . No other evidence

showed such a response in him. Therefore, the trial court did not err in failing

to give an instruction on EED.

            b.     Second-Degree Manslaughter

      Hall also claims that he was entitled to a jury instruction on second-

degree manslaughter. At trial, Hall tendered a proposed instruction on second-

degree manslaughter, based in part on the proposed murder instruction which

allowed a finding of guilty on either intentional or wanton murder. The trial

judge denied the motion, finding no reasonable basis for the instruction

because she believed the evidence showed at least a clear intent to injure, and

thus the only possible lesser-included offense was first-degree manslaughter.

      The Penal Code commentary illustrates the difference between wanton

murder and second-degree manslaughter :

     The two offenses described by these provisions, [wanton] murder
     by KRS 507.020(1)(b) and manslaughter in the second degree by
     KRS 507.040, have three elements in common: the conduct in
     question must have involved a substantial and unjustifiable risk of
     death to human life; the defendant, in causing the death in
     question, must have consciously disregarded that risk, and his
     disregard must have constituted "a gross deviation from the
     standard of conduct that a reasonable person would [have
     observed] in the situation ." Taken together, these three elements
     constitute the culpable mental state defined in KRS 501 .020 as
          "wantonness," and without more, will suffice for a conviction ofd
          manslaughter in the second degree . If accompanied by a fourth
          element, i.e., "circumstances manifesting extreme indifference to
          human life," they are sufficient for a conviction of [wanton] murder .

KRS 507.020 cmt. 1

          "An instruction on a lesser-included offense is required only if,

considering the totality of the evidence, the jury could have a reasonable doubt

as to the defendant's guilt of the greater offense, and yet believe beyond a

reasonable doubt. that. he is guilty of the lesser offense." Baker v.

Commonwealth , 130 S .W.3d 90, 94 (Ky. 2003) (citing Clifford v.

Commonwealth , 7 S.W.3d 371, 377-78 (Ky. 1999) ; Bills v. Commonwealth , 851

S.W.2d 466 (Ky. 1993)) .

         In most cases involving wanton killings, the evidence is such that. a jury

could reasonably find wantonness with or without extreme indifference, and a.

wanton murder instruction should be accompanied by an second-degree
      1 . . .-tL.f-.... inst.il.lctior
manslaug-lll.G1         ' -.-. .~~ : .~ . "Jcc,
                                          C
                                                c. Grc' . , Parker   tr
                                                                      y.   %   V"III                   ~/~
                                                                                       "LjLyyV(Al%_11, u   1
                                                                                                         -ri   C
                                                                                                               S.      qrl
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(Ky. 2007) (defendant opened fire into a car) ; Ward v. Commonwealth, 695

S .W.2d 404 (Ky. 1985) (testimony in murder trial that the plan was only to

shoot out victim's tires, and defendant shouted that the gun got away from


to A defendant is guilty of wanton murder when, "under circumstances manifesting
extreme indifference to human life, he wantonly engages in conduct which creates a
grave risk of death to another person and thereby causes the death of another
person ." KRS 507
               .
               .020(1)(b)
A person acts wantonly "when he is aware of and consciously disregards a substantial
and unjustifiable risk that the result will occur or that the circumstance exists . The
risk must be of such nature and degree that disregard thereof constitutes a gross
deviation from the standard of conduct that a reasonable person would observe in the
situation." KRS 501 .020(3) .


                                                         37
 him) . However, this case presents the rare situation where the attack was so

 incredibly brutal that, if the jury believes the facts presented, the act must be

 either intentional, or wanton with extreme indifference to human life (i.e.

 aggravated wantonness, supporting a wanton murder conviction) .

       Based on Hall's own testimony, Hall was present for the entirety of the

 attack, beginning with the kicking and hitting of the victim with a crock pot,

 and continuing through sodomizing hire with a 27-inch stick that extended

into his lungs . Hall either impaled Clifton Agnew with a stick and bottle, or

watched as Edmonds did. At the very least, Hall stood idly by while an

unconscious man was beaten further and brutally sodomized. As a principal

and/or complicitor, Hall is responsible for the ultimate act, and the attack

must be judged as a whole. Under these circumstances, there was no error in

refusing to instruct the jury on second-degree manslaughter . See Cecil v.

Commonwealth , 888 S.W.2d 669, 674 (Ky. 1994) (no error in instructing on

wanton murder but not second-degree manslaughter when defendant shot

victim at point blank range, even though defendant claimed the gun "went off') ;

Crane, 833 S.W.2d at 817-18 (no error in instructing on wanton murder but

not second-degree manslaughter when defendant shot store clerk at close

range, even though defendant claimed he shot "straight up in the air") .

            c.     Complicity

      Hall argues that the trial court gave an erroneous complicity instruction.

KRS 502 .020 creates two types of complicity : complicity to the act under
 subsection (1), and complicity to the result under subsection (2) :

       When causing a particular result is an element of an offense, a
       person who acts with the kind of culpability with respect to the
       result that is sufficient for the commission of the offense is guilty
       of that offense when he :

       (a) Solicits or engages in a conspiracy with another person to
       engage in the conduct causing such result; or

       (b) Aids, counsels, or attempts to aid another person in planning,
       or engaging in the conduct causing such result; or

       (c) Having a legal duty to prevent the conduct causing the result,
       fails to make a proper effort to do so .

KRS 502.020(2) (emphasis added) .

      The Definitions section of Hall's jury instructions defined each type of

complicity separately. Hall argues that the "Complicity as to a Criminal Result"

definition should have included the mental state of "intentional." This Court

held in Harper v. Commonwealth that "subsection (2) complicity liability is not

limited to non-intentional mental states." 43 S.W .3d 261, 267 (Ky. 2001) .

Therefore, an intentional mental state could have been included as a possible

mental state for conviction of subsection (2) complicity, but it was not

necessary, because Hall was also charged with wanton murder.

            d.     First-Degree Sodomy

      Hall claims the jury was improperly instructed that it could convict Hall

of sodomy only if it believed that he, acting alone or in complicity, engaged in

deviate sexual intercourse with the victim in this case. Hall bases his

argument on the definition of deviate sexual intercourse provided in the
 instructions, which was consistent with the definition provided in KRS

 510 .010(1) : " `Deviate sexual intercourse' means any act of sexual gratification

 involving the sex organs of one person and the mouth or anus of another; or

 penetration of the anus of one person by a foreign object: manipulated by

 another person ." hall asserts that there was no act of sexual gratification, and

he contends that. "act of sexual gratification" modifies both parts of this

definition. However, it is clear from the plain language of the statute that

contrary to Hall's assertion, the two phrases are separated by the word

and that the second phrase, "penetration of the anus of one person by a foreign

object manipulated by another person," need not, be done for sexual

gratification. The instruction was proper.

             e.    Penalty Phase Instructions

      Hall's final claims are that his verdict form directed a verdict of life

without the benefit of probation or parole for twenty-five years, and that the

aggravating circumstances instruction was improper.

      In support of his first claim, Hall points to Verdict Form Nos . 1 through

3, which arguably imply that if the jury found Hall guilty of an aggravator, then

they could only fix his punishment at life without the benefit of probation or

parole for twenty-five years. However, Hall conveniently failed to cite

Instruction No . 6, which specifically says "You do not have to sentence the

Defendant, TYREESE HALL, to a term of imprisonment for life without benefit

of probation or parole until he has served a minimum of 25 years of his
 sentence even if you find the aggravating circumstances stated in these

 Instructions were proven beyond a reasonable doubt." (Emphasis added) . After

 a review of the instructions contained in the record, Hall's attempt to mislead

 the Court fails. This argument is without merit .

       However, the judge also gave the following instruction during the penalty

 phase :

       In fixing a sentence for the Defendant, "fYREESE HALL, for the
       offenses of the Murder, Robbery in the First Degree, and Sodomy
       in the First Degree of Clifton Agnew, you shall consider the
       following aggravating circumstances which you may believe from
       the evidence beyond a reasonable doubt to be true . . . .

Such an instruction improperly includes Robbery in the First Degree and

Sodomy in the First Degree as offenses for which aggravating circumstances

instructions may be found, thus Appellants argue that the jury might enhance

the punishment for the robbery and sodomy, as well as the murder, under the

aggravating circumstances in death penalty cases statute, KRS 532 .025(2)(x) .

       As to whether this taints Hall's sentences for robbery and first-degree

sodomy, the Court concludes that any error was harmless . Though those

offenses were improperly included under the general aggravator instruction,

the specific penalty instructions and verdict forms for those crimes include no

room for the use of aggravating factors, listing instead only the statutory

penalty ranges (10 to 20 years for the robbery, 20 to 50 years or life for the

first-degree sodomy) . Aggravating factors only go to whether the death penalty,

life without benefit of probation or parole, or life without benefit of probation or
 parole for 25 years are options, and the instrt-ictions informed the jury tli<tt

 those sentences need not be imposed even if an aggravating circumstance was

 found .

                                  IV. CONCLUSION ,

       The judgment of the Jefferson Circuit Court is hereby affirmed. However,

with respect to Appellant Derek Edmonds, we reverse and remand for the

limited purpose of entry of an amended judgment on his sodomy conviction

stating that he received a sentence of life, and not . a sentence of life. without.

parole .

       All sitting. Abramson, Cunningham, Schroder, Scott, and Veneers, JJ .,

concur . Noble, J ., dissents by separate opinion, in which Minton, CA ., joins.

       NOBLE, J., DISSENTING: I respectfully dissent as to the majority

holdings that the erroneous admission of Kay Thomas's testimony was

harmless error and that the appellants were not entitled to an instruction on

second-degree manslaughter as a lesser-included offense.

               I. Kay Thomas's Testimony and Harmless Error

      The majority agrees that much of Thomas's testimony was improper and

exceeded the scope of allowable humanizing evidence. This means it was

victim impact testimony which could not properly be given in the

Commonwealth's case in chief, if at all, because Thomas did not qualify to give

such testimony as she was not among the statutorily eligible witnesses for

victim impact testimony. Additionally, the record indicates that much of her
 testimony was given even though the trial court. had expressly ruled that she

 could not testify on those issues. Yet the majority concludes that. this

 erroneous testimony-which included describing an international card

 campaign expressing outrage over the crime ; saying that the victim had "met

 the devil" at the hands of the appellants ; graphically describing his injuries and

how she sat and held his hand ; describing conversations with the victim's ex-

wife; and saying that his brown eyes turned blue on the day he died, among

other non-substantive comments-was harmless because the evidence ot'guilt,

was otherwise overwhelming, meaning that the erroneous testimony had no

influence on the verdict. I cannot join this conclusion .

       Over the years, we have struggled with how to apply the harmless error

rule, RCr 9.24, to non-constitutional errors.l l At times, we have employed a

guilt-based test that focuses on whether the result would have been different

absent the error, usually by looking at whether the evidence other than that

erroneously admitted was overwhelming (and in some outliers, merely

"sufficient" for a guilty verdict) . See, e.a., Brewer v. Commonwealth, 206

S.W.3d 313, 324-25 (Ky. 2006) ; Taylor v. Commonwealth , 175 S.W.3d 68, 72

(Ky. 2005); Abernathy v. Commonwealth , 439 S.W.2d 949, 952 (Ky. 1969) . In

other cases, we have looked at whether the error had any effect on, or

11The standard for constitutional errors has been set by the United States Supreme
 Court. See Chapman v. California , 386 U.S. 18 (1967). Because such errors are
 always serious business, the bar for such errors to be found harmless is set rather
 high, "requiring the beneficiary of a constitutional error to prove beyond a reasonable
 doubt that the error complained of did not contribute to the verdict obtained." Id. at
 23-24. The "beneficiary" in criminal cases will almost inevitably be the
 Commonwealth . The error here, however, does not have a constitutional dimension,
 as it is an evidentiary error.


                                          43
contributed to, the verdict returned by the jury. See Morgan v.

Commonwealth , 189 S .W.3d 99, 108 n.27 (Ky. 2006) ; Jarvis v. Commonwealth,

960 S .W.2d 466, 471 (Ky . 1998) .

       In recent years, the debate, at least as to the larger issue of "different

result" versus "effect on the verdict," appears to have been settled, with the

effect-on-the-verdict test being the correct standard. See Harp v.

Commonwealth , 266 S .W.3d 8 13, 818 (Ky. 2008), Monroe v. Commonwealth ,

244 S.W.3d 69, 78 (Ky. 2008) ; Emerson v. Commonwealth, 230 S.W.3d 563,

570 (Ky. 2007) ; Vau hn v. Commonwealth, 230 S.W.3d 559, 561 (Ky. 2007) .

The weight of critical opinion supports this shift. See, e.g. , Harry T. Edwards,

To Err is Human, But Not Always Harmless : When Should Legal Error Be

Tolerated? , 70 N.Y. U. L. Rev. 1 167 (1995) (arguing in favor of an effect-on-the

verdict test) ; Roger J . Traynor, The Riddle of Harmless Error (1970) (same) .

      Deciding on "effect on the verdict" over "different result" alone does not

answer all questions related to the harmless error doctrine, however. For

example, how much effect must the error have had on the verdict before the

error is sufficiently prejudicial to require reversal? Is any effect enough or

must there be a substantial effect? These are difficult questions to which we

have unfortunately provided inconsistent answers. Though the general focus

on effects on the verdict has been steady in our recent decisions, the exact

formulations of the standard to be applied have differed, sometimes

substantially. See Harp, 266 S.W.3d at 818 (explaining the test as simply
whether an error affected the verdict.) ; Monroe, 244 S. W.3d at 78 (describing

the test as whether an error had a "reasonable probability" affecting the

verdict) ; Emerson, 230 S.W.3d at 570 (applying a test of whether there was a

"reasonable possibility, that [the error] affected the verdict") ; Vau -hn, 230

S.W.3d at 561 (employing a test of whether the error "possibl[y] . . . had an

effect on the verdict"). Though these "tests" arguably differ little, and despite a

proper core concern for the impact of an error on a jury's verdict, they are

inconsistent.

       Rather than continuing to muddle through the muck and trying to invent

the wheel anew, our most recent cases have sought guidance from the federal

courts . Specifically ; we have adopted the harmless-error standard announced

in Kotteakos v. United States, 328 U.S. 750 (1946) . See Crossland v.

Commonwealth , 291 S.W.3d 223, 233 (Ky. 2009) (applying Kotteakos as the

harmless error standard for non-constitutional errors) ; Winstead v.

Commonwealth , 283 S.W.3d 678, 689 (Ky. 2009) ("The Kotteakos standard is

the appropriate standard for non-constitutional errors.") . The standard

articulated by the United States Supreme Court in that case requires that a

non-constitutional error have a substantial effect on the verdict before reversal

is merited:

      If, when all is said and done, the conviction is sure that the error
      did not influence the jury, or had but very slight effect, the verdict
      and the judgment should stand . . . . But if one cannot say, with
      fair assurance, after pondering all that happened without stripping
      the erroneous action from the whole, that the judgment was not
      substantially swayed by the error, it is impossible to conclude that
         substantial rights were not aff(,(-.I(--(I- `Ilic i               ot be increlv
         whether there was etjough. to sul?j)ort tl'w__tLesult_, apart from the.
         phase      yQd by the error . _IL_ i s nat 1-1             11 ct li e r t 1.ip e, rrol-
         itself had substantial influence . 11'so, or it` ow'. is left ill grave
         doubt, the conviction cannot. stand .

 Id. at 764-65 (1946) (emphasis added) . Restated                  if)   sim' .P'l(,st- terms, a v 60H_

  constitutional evidentiary error must fmvc 11,'Id           'I   SUbstai-itial effect, on the

  verdict actually returned by the jury or the _J udgmcn t entered by the court. i n

  order to require reversal .

        Though we have finally, adopted what . I consider to he the proper

 standard for evaluating harmless error, we still have not engaged in a

 thoughtful discussion of why it is the correct standard in a published decision, .

 having instead simply declared it to be the appropriate standard, despite the

 fact that it represents a clear departure from some of our earlier precedent.

 And even as the articulation of the rule has changed, we have failed even to

 admit in a published decision that the rule has changed or that the various

standards we have articulated are different. Yet, that this new standard is

different and how it is different are important going forward, as the harmless

error standard goes to the heart of what. we do when we review a criminal jury

trial. Because the standard is different, it means that the results in some

cases will be different, meaning that we cannot simply plug the correct

standard into- an opinion -without demonstrating how it applies-or doesnt-

which is what the majority has failed to do here. The inescapable conclusion is

that the standard and the policy behind it matter. We must still think long and
 hard on the issue of harmless error so that we can properly apply the new

 standard .

       Ultimately, I think that the majority is wrong in its harmless error

determination in this case . Why this is the case, however, requires

a candid discussion about harmless error that acknowledges it is a difficult

and subtle proposition, and not just a rule to preserve convictions for heinous

crimes in the face of error. In explaining why I disagree with the majority's

application, I hope to focus on what must: be considered .

       To begin with, I agree with our decisions designating Kotteakos as the

appropriate standard for non-constitutional errors. Such errors are likely to be

less serious than constitutional errors, and by their very nature, they rarely

touch on those fundamental concerns and guarantees that lie at the heart of

the criminal justice system and are more likely to be merely technical or

relatively minor. This distinction between the various types of errors is

anticipated by the harmless error rule itself, which focuses on "substantial

justice" and "the substantial rights of the parties." RCr 9 .24 . Kotteakos , by

offering a lesser standard than that required for constitutional errors, also

recognizes the distinction .

      My foremost concern is that the majority, in focusing on whether the

properly admitted evidence in this case was overwhelming, has effectively

applied the old different-result approach to harmless error rather than the

effect-on-the-verdict approach under Kotteakos.
       The different-result approach required that an appellate court. look at all

the evidence, minus that which was improperly admitted, and determine

whether a jury would have returned a guilty verdict. This is different from a

situation where an appellate court looks at sufficiency of the evidence and

must determine whether the evidence is such that. a reasonable jury could

return a guilty verdict. This latter analysis is a way of looking at what the jury

in the case actually did and evaluating whether it was reasonable. The former

requires postulating a new, entirely hypothetical verdict, one that was not

returned by the jury that actually heard the case, since that jury heard the

improper evidence . Looking at the evidence and deciding a different result

would not have occurred is tantamount to directing a verdict for the

Commonwealth after the fact. Thus, the policy underlying the different-result

approach is a dangerous one that threatens to undermine our rules concerning

who gets to find the facts in a case .

      Beyond the policy concerns, however, are substantial constitutional

concerns about the different-result approach . "Here, special concern exists

that judicial toleration of harmless error is not a. license for judicial invasion of

the issue-resolving province constitutionally reserved for the jury." Henry P.

Monaghan, Harmless Error and the Valid Rule Requirement, 1989 Sup . Ct.

Rev. 196, 200 (1989) . The postulation of a non-existent jury verdict absent the

error lies at the heart of the different-result test. As the United States Supreme

Court has stated, such an approach runs afoul of the Sixth Amendment's jury
trial guarantee:

         Consistent with the jury-trial guarantee, . . .the reviewing court [is]
         to consider . . . not. what effect the . . . error might generally be
         expected to have upon a reasonable jury, but rather what effect it.
         had upon the guilty verdict in the case at hand . Harmless-error
         review looks, we have said, to the basis on which the jury actually
         rested its verdict. The inquiry, in other words, is not whether, in a
         trial that occurred without the error, a guilty verdict would surely
         have been rendered, but whether the guilty verdict actually
         rendered in this trial was surely unattributable to the error. That
         must be so, because to hypothesize a guilty verdict that was never
         in fact rendered-no matter how inescapable the findings to
         support: that verdict might. be-would violate the jury-trial
         guarantee.
                . . . The Sixth Amendment requires more than appellate
         speculation about a hypothetical jury's action, or else directed
         verdicts for the State would be sustainable on appeal . . . .

Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993) (emphasis added, quotation

marks and citations omitted) .

         Any approach to harmless error that focuses on whether the result, would

have been different, including whether the other evidence in the case was

ovenwdlelnling, is suspect for these reasons.
     -
          _   _               r   ~. ~_ _ _ _     r
                                                  11L
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                                                                                                     114 1,.




substantial, even overwhelming, evidence of guilt in a case, and yet a piece of

improper evidence could also have been admitted that substantially influenced

the jury. This is, in fact, what I think happened in this case. Instead of looking

at whether the other evidence was overwhelming, we should instead focus on

what effect the erroneous testimony had on jury's verdict in this case.

Otherwise, we return to the old standard, albeit under a different name.

      Having said my piece about the harmless error standard, the remaining
 task is to apply it to the facts of this case. When the effect-on-the-verdict, test

 is applied to this case, I conclude that the introduction of Kaye Thomas's

testimony could not be harmless .

       Most of Ms. Thomas's testimony was not about the victim's life, but. was

instead about her and the community's reaction to his attack. While Thomas's

testimony was no doubt heartfelt and motivated by a desire to do good, it was

particularly prejudicial to the appellants. Thomas was emotional on the stand,

breaking into tears at one point. She was condemnatory of the appellants,

testifying that she started her card campaign to "protest against the violence

that had been done" to the victim and stated that he had "met the devil."

Ultimately, Thomas served as a proxy for the entire community to express

outrage against the appellants . I can only conclude that such testimony, as

emotional and echoing with community anger as it was, had a substant=ial

effect on the guilty verdict in this case .

       Moreover, we have consistently disapproved of "evidence which serves

little or no legitimate evidentiary purpose other than to engender sympathy for

the victim ." Coulthard v. Commonwealth, 230 S.W.3d 572, 578 (Ky. 2007) ; Ice

v. Commonwealth , 667 S.W .2d 671, 676 (Ky. 1984) ("Evidence to engender

sympathy for the victim . . .violate[s] the rule excluding evidence where its

probative value is slight and far outweighed by its inflammatory nature.") . As

the majority notes, Thomas's testimony was not the sort of humanizing

evidence allowed by Kentucky law; instead, it was "akin to victim impact
 testimony." "[T]he introduction of victim impact. evidence during the guilt.

phase is reversible error." Ernst, 160 S.W.3d at 763 (emphasis added) ; see also

Sanborn v. Commonwealth, 754 S.W.2d 534, 542 (Ky. 1988), overruled on

other grounds by Hudson     V.   Commonwealth, 202 S .W.3d 17 (Ky. 2006) ("[I]t is

improper for the jury to base its decision on guilt or innocence, or on the

appropriate punishment, on who is the victim.").

       I have no doubt that the crime in this case is among the most heinous

and barbaric ever committed. I have no doubt that Ms. Thomas is a loving,

humanitarian person, who acted only with best of intentions and an innocent

heart in testifying on behalf of the victim . But I also have no doubt that her

inflammatory testimony was improper under the law of this Commonwealth

and that it laid an inexorable taint on the jury's verdict.

                 II. Second-Degree Manslaughter Instruction

      The majority concludes that the appellants were not entitled to an

instruction on second-degree manslaughter as a lesser-included offense of

murder. I cannot join this conclusion either.

      In reaching this conclusion, the majority reviews the evidence and finds

that in this case the attack was so brutal that a jury could return a guilty

verdict only under the theory that the act was intentional or wanton with

extreme indifference to human life (i.e., aggravated wantonness) . In essence,

the majority finds that the evidence was such that it could never support a

finding of mere wantonness . The problem with this finding is that it is not one
that can be made by a judge, or a collection of ji-idges; it involves a pure

question of fact that is reserved for the trier of fact, in this case, the jury.

       As noted in the commentary to the Penal Code, there is only one

difference between wanton murder and second-degree manslaughtm7-the lack

of circumstances manifesting extreme indifference to human life. KRS 507.020

cmt. In essence, the basic wanton homicide is second-degree manslaughter ; if

a defendant acts wantonly but with the added element of circumstances

manifesting extreme indifference to human life, then the crime is the higher

offense of wanton murder . As Justice Cooper and Mr. Cetr-ulo have

characterized it, "Wanton Murder is nothing more than Second-Degree

Manslaughter with the increased culpability of `circumstances manifesting

extreme indifference to human life"' I William S. Cooper & Donald P. Cetrulo,

Kentucky Instructions to Juries, Criminal § 3 .23 (5th ed . 2007) (June 2008

supp.) .

       That this is a subtle distinction is important when it comes to instructing

juries because it demonstrates the necessity of giving an instruction on both

offenses. As the commentary to KRS 507 .040 notes, whether wantonness is

aggravated cannot be answered as a matter of law and must instead be left to

the trier of fact. It is interesting that in reaching its decision, the majority

cites the commentary to KRS 507.020, but fails to address the commentary to

KRS 507.040, which plainly undercuts its decision.

      This Court has repeatedly followed the commentary to KRS 507.040 to
hold, "`Whether wantonness is so extreme that, it demonstrates [st_ich]

indifference is not a question that . . . can be further clarified; it must. be left

directly to the trier of the facts. If wantonness exists but is not so extreme, the

homicide is manslaughter ."' Nichols v. -Commonwealth , 657 S.W .2d 932,

935 (Ky. 1983) (quoting KRS 507.040 cmt.) (original brackets omitted,

emphasis added) ; see also Walden v. Commonwealth, 805 S.W.2d 102, 105 (Ky.

1991) ("Whether the evidence proved wanton murder or second-degree

manslaughter was a question of fact . . . whether wantonness is so extreme

that it demonstrates such indifference to human life as to qualify as the

culpable equivalent of intentional murder `is not a question that, in our view,

can be further clarified; it must [be] left directly to the trier of the facts."') .

      This Court has repeatedly reversed convictions for a failure to instruct on

second-degree manslaughter when the evidence would support a mental state

of wantonness, because the fine distinction between wanton murder and

second-degree manslaughter is for the jury to make . See Parker v.

Commonwealth , 241 S.W.3d 805, 811 (Ky. 2007) ("Having found that both

states of mind were supported in the evidence, the trial court usurped the role

of the jury in determining that the evidence did not support a manslaughter

second degree instruction. . . . [The jury was] not given the opportunity to

consider a lesser state of wanton culpability. It is possible the jury would have

found wanton murder anyway ; however, it is also possible for a finding of lesser

wanton behavior, even though unlikely. The point is that this was a question
for the jury, not. the trial court."); Ro ers v. Commonwealth, 86 S .W.3 d 29,

45 (Ky. 2002) ; Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985) ; cf.

Commonwealth v. Wolford, 4 S:W.3d 534 (Ky. 1999) (finding it was proper to

instruct on second-degree manslaughter) ; Hudson v. Commonwealth, 979

S.W .2d 106, 110 (Ky. 1998) ("Once the facts of a killing are established,

whether the act itself is murder depends upon the mind of the killer . The state

of that mind at the time of the killing is almost never clear, not even to the

defendant himself.") .

      In fact, Justice Cooper and Mr. Cetrulo have gone so far as to say,

      In some instances, the `whole law' principle requires an instruction
      on a lesser included offense simply because the provable elements
      of the primary and lesser included offenses are the same. Thus,
      second-degree manslaughter is automatically a lesser included
      offense of wanton murder, the only distinction between the two
      being that in the latter offense, the degree of wantonness is more
      severe.

Cooper and Cetrulo, supra, § 1 .05[B] (emphasis added) ; see id. § 3.20 ("in any

instance in which Wanton Murder is instructed upon, it is probably necessary

to include instructions on the lesser offense of Second Degree Manslaughter") .

      Instead of relying on this voluminous case law and commentary on the

statutes, the majority has based its decision on two older cases, Crane v.

Commonwealth , 833 S.W.2d 813 (Ky. 1992), and Cecil v. Commonwealth , 888

S .W.2d 668 (Ky. 1994). In both cases, the Court held that the evidence did not

support the giving of an instruction on second-degree manslaughter despite the

trial court's having instructed on wanton murder. Crane went so far as to say
                                            had
that extreme indifference t.0 hUnlan life         been shown "as armatter ref law."

833 S.W.2d at 817.

       Crane and Cecil are problematic for a number of reasons, however.

First, they come dangerously close to declaring a directed verdict against the

defendant on the element of "circumstances manifesting extreme indifference to

human life." Second, they require the court to evaluate and choose between

conflicting evidence, a function reserved for the jury. In fact, Professors

Lawson and Fortune have criticized Crane's holding that aggravated

wantonness was shown "as a matter of law" for exactly this reason, stating that

"[i]n so ruling, the Court seemed to judge the defendant's testimony unworthy

of belief, a function normally left to the jury." Robert G . Lawson and William H.

Fortune, Kentucky Criminal L        § 8-4(b), at 347 (1998) . Third, they ignore the

precedent that "no matter how preposterous, any [instruction] which is

supported by the evidence must be submitted to the jury. `It is the privilege of

the jury to believe the unbelievable if the jury so wishes ."' TIaylor v.

Commonwealth, 995 S.W.2d 355, 361 (Ky. 1999) (quoting Mishler v .

Commonwealth, 556 S.W.2d 676, 680 (Ky . 1977)) . Professors Lawson and

Fortune further criticize Crane (and implicitly Cecil along these lines by noting,

"the Court may have departed from this sound position when it declared as a

matter of law that the defendant manifested extreme indifference to the value of

human life ." Lawson & Fortune, supra, § 8-4(b), at 347 n .163 .

      Crane and Cecil only make sense if, under the evidence in those cases, a
 conviction for manslaughter would riot- have beeii valid had the requested

 instruction been given . Yet, such a result is unimaginable, as any reasonable

 court would uphold such a verdict, deferring to the jury's weighing of the

evidence. Clearly, then, Crane and Cecil are outliers and depart, both from

reason and logic and from the majority of this Court's jurisprudence

concerning lesser-included offenses, specifically second-degree manslaughter

as a lesser-included offense of wanton murder . In fact, it appears to me that

Crane and Cecil have been implicitly overruled already, since this Court has

more recently decided Parker v. Commonwealth, which stated that whether a

crime was wanton murder or second-degree manslaughter "was a question for

the jury, not the trial court." 241 S.W.3d. at 811

      By his own admission, Hall physically attacked the victim in this case,

but the extent of his involvement and state of mind are disputable given the

evidence. Multiple versions of his story were presented through his various

statements and the testimony of several witnesses, ranging from that he simply

punched the victim and threw the Crock Pot on his leg to that he struck the

victim in the head with the Crock Pot (possibly the fatal blow) and that he,

rather than Edmonds, sodomized the victim with sticks . The blood spatters on

his pants, compared to the blood-soaked clothing of Edmonds, also raise

questions as to the degree of his participation.

      Regardless of the level of his participation, most important is the fact

that Hall's state of mind is not obvious from the nature of the attack. "The
state of that. inind at. the lime of the killing is alniost, never clear, not even to

the defendant himself." Hudson, 979 &VW.2d at, 110 . It is possible that. Hall

simply undertook a vicious attack with a wanton state of mind, meaning he

was aware of and consciously disregarded a substantial and unjustifiable risk

of death and that the risk was of such nature and degree that disregarding it

constituted a gross deviation from the reasonable standard of conduct. The

additional element of extreme indifference to the value of human life, while

certainly plausible, was not proven as a matter of law.

      Rather than being conclusive proof of his state of mind, the conflicting

testimony simply raised a host of questions : Did he intend to kill Clifton
                                  him
Agnew? Did he intend to cause           serious physical injury? Or, did he act
                                                                           and
without any specific intent as to death or injury and instead was aware of

consciously disregarding a substantial and unjustifiable risk that death would

occur? If the latter is true, did Hall act under circumstances manifesting

extreme indifference to human life? The evidence could be construed to reflect

all of these circumstances, especially since, as noted above, the distinction

between the aggravated wantonness required to reach murder and the "mere"

wantonness required for second-degree manslaughter is such a fine one that it

inevitably must be left up to the jury. Regardless of how unlikely a finding on

the lesser crime is, an instruction on second-degree manslaughter should have

been given as to Hall. Parker, 241 S.W.3d at 811 ("When the evidence is

subject to different interpretations by the jury, even though the trial court
                                        Could find the requisite state of mind for
might believe it unlikely that the jury

a lesser included offense, it is nonetheless required to instruct on the lesser-

included offense if such an interpretation is possible .") .

          The jury instructions regarding Hall were sufficiently flawed by their

failure to instruct on second-degree manslaughter so as to require reversal of

his murder conviction, as such an error cannot be harmless . Commonwealth

v. Swift, 237 S.W.3d 193, 196 (Ky. 2007) ("Furthermore, the trial court's failure

to give a necessary lesser included offense instruction cannot be deemed a

harmless error.") ; see also Cooper and Cetrulo, supra, § 1 .05[B] ("Cases holding

that if the defendant was convicted of the primary offense, a failure to instruct,

on a lesser included offense, or giving an erroneous instruction thereon, was

harmless error probably have no present validity ." (footnotes omitted)) .

          Whether Edmunds' conviction should be reversed is a more difficult

question because he did not raise the failure to instruct the jury on second-

degree manslaughter in his appeal, though he did join in Hall's request for the

instruction at trial. I would address his claim of error under the palpable error

rule, RCr 10.26, which focuses on manifest injustice . "To discover manifest

injustice, a reviewing court must plumb the depths of the proceeding . . . to

determine whether the defect in the proceeding was shocking or

jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.

2006) .

      Failure to give an instruction on a lesser-included offense is not always
 palpable error, see Clifford v . Comnlonwcaltlr , 7 S.W.3d 371, 376 (Ky. 1999)

 ("[W]e are unaware of any authority holding it. to be palpable error to fail to

 instruct on a lesser included offense of that charged in the indictment."), but in

 "plumb[ing] the depths" of this proceeding, I think that the Martin standard

has been met in this case. As with Hall, if there were an error in the

instructions, then Edmonds was denied a possible defense to the charge of

murder. Clearly, then, given the result as to Hall, and assuming for now

entitlement to the instruction, had Edmonds' attorney raised the issue on

appeal, reversal would be required. This is not a case where we are left to flail

about simply to frame an issue, much less to discover the relevant case law:

the issue in question has been fully explored and argued, albeit by Hall's

counsel and the Commonwealth . It makes little sense not to address the issue

and would be fundamentally unfair to grant relief to Hall but not Edmonds

simply because his counsel raised different: issues.

       The question then is whether Edmonds was entitled to the instruction .

Ultimately, the question as it relates to Edmonds goes solely to whether the

evidence could support a finding that he acted with mere wantonness. Based

on the evidence presented at trial, Edmonds' level of participation was either

minimal (based on evidence of only slight involvement) or total (Hall claimed he

was the principal attacker). Like with Hall, if the jury believed his account that

he was only slightly involved, it easily could have found he acted wantonly but

without extreme indifference to the value of human life. Thus, just as with
Hall, Edmunds was entitled to a second-degree manslaughter instruction .

                                III. Conclusion

      Consequently, I must dissent from the majority opinion as it applies the

harmless error standard, and from what I believe is clear error in failing to

properly instruct the jury.

      Minton, CA, joins this dissenting opinion .
COUNSEL FOR APPELLANT, DEREK RENE EDMONDS :


Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601


COUNSEL FOR APPELLANT, TYREESE HALL:

Kathleen Kallaher Schmidt
Appeals Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601-1109


COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

Samuel J. Floyd, Jr.
Assistant Attorney General
Of_fire of _Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
                    6*ixyrrzrc-r C~Ourf of )firufurhv
                                  2007--SC 000350 M R

   DEREK RENE EDMONDS                                                   APPELLANT


                    ON APPEAL FROM JEFFERSON (CRCUIT C()URT
    V.            HONORABLE JUDITI--I MCI)()NAI.I)-13UI~KMAN, .JUDG E
                    NOS . 04-CR-001 179-001 AND 04 -CR-0024 4 5 -001


   COMMONWEALTH OF KENTUCKY                                              APPELLEE


   AND                           2007-SC-000359-MR


  TYREESE HALL                                                          APPELLANT


                    ON APPEAL FROM JEFFERSON CIRCUIT COURT
  V.              HONORABLE JUDITH MCDONALD-BURKMAN, .JUDGE
                    NOS . 04-CR-001 179-002 AND 04-CR-002445-003


  COMMONWEALTH OF KENTUCKY                                              APPELLEE

                                       ORDER

         On the Court's own motion, the Memorandum Opinion of the Court

rendered November 25, 2009 in the above styled case shall be modified by the

substitution of new pages 1 and 46 of the opinion as attached hereto . Said

modification does not affect the holding, and is made only to reflect

modification on page 46, line 13, by changing the word `appropriates' to

`appropriate .'

         Entered: December 1, 2009 .
