Sentencing: EMERSON V. COM. (SC 8/23/2007)

OPINION OF COURT BY NOBLE (Scott, J., concurs with the majority’s analysis, except as to Part II (G), to which he dissents as he does not believe that the trial court abused its discretion in denying the extenuation instruction per KRS 532.025(2)(b)(4).
DATE RENDERED: 08/23/2007

SYNOPSIS: Defendant was entitled to introduce moral justification and extenuation mitigating evidence during sentencing hearing for murder conviction pursuant to KRS 532(2)(b)(4).

SC affirmed the Defendant’s conviction for murder in the Jefferson Circuit Court but vacated the sentence and remanded to conduct a new penalty phase allowing for consideration of extenuation in sentencing pursuant to KRS 532(2)(b)(4). A mitigation instruction was given in this case. However, the judge declined to specifically include the moral justification and extenuation mitigating factor as he was required to do under the statute. This was an abuse of his discretion and resulted in prejudice to Emerson. Although Defendant did not receive the death penalty, the jury still could have sentenced him to less, and he was entitled to have the jury consider the full penalty range with extenuation mitigation in mind.

This Court has previously stated that although parole eligibility information is fully admissible in a truth-in-sentencing hearing, it has no place in a death penalty hearing. Perdue v. Commonwealth, 916 S.W.2d 148, 164 (Ky. 1996). Here, the prosecutor’s comment regarding parole was improper. However, the error is harmless. The purpose of the rule regarding references to parole in sentencing where the death penalty may be given is to avoid a result where a jury gives the death penalty because they are concerned that the convicted person may be released on parole and be out on the street. In this instance, the comment has no reasonable possibility that it affected the verdict because Defendant was given a sentence allowing exactly what the prosecutor was arguing against, not the death penalty.

Other claims of error affirmed by SC: (1) rial court’s rulings on cause challenges; (2) that Jefferson County’s jury selection procedure is not compliant with administrative procedures; (3) that certain statements made by Defendant were improperly obtained by police and should have been suppressed by the trial court; (4) that the prosecution improperly bolstered testimony; (5) that parts of the testimony of witness were irrelevant.

Digested by Scott C. Byrd

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