ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN LYNN SCHULTZ, JUDGE NO. 09-CR-000199-002
COUNSEL FOR APPELLANT: Robert Chung-Hua Yang Assistant Public Advocate
COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan Darwin Morrow Assistant Attorney General
MINTON, CHIEF JUSTICE
A circuit court jury convicted Jeston Murray of two counts of complicity to commit murder, one count of first-degree robbery, one count of first-degree burglary, and two counts of tampering with physical evidence. The charges stemmed from two incidents occurring nearly nine days apart.
Murray now appeals the judgment of conviction and sentence as a matter of right,  arguing that the trial court erred by (1) allowing the Commonwealth to bolster the testimony of his alleged co-conspirator, Michael Knights; (2) failing to sever for separate trials the two counts of murder; (3) failing to dismiss the two counts of tampering with physical evidence because the tampering statute is unconstitutional; (4) depriving Murray of a fair trial by permitting testimony of alleged homosexual conduct between Murray and Michael Knights; and (5) failing to instruct the jury on criminal facilitation regarding the murder of Darrell Spencer and the associated robbery. We find no error in the trial court's rulings and affirm the judgment of conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Michael Knights and Jeston Murray, both of whom are deaf, met and became close while staying at the Salvation Army's homeless shelter.
A. Murder of Darrell Spencer.
Knights and Murray entered an army surplus store in which Darrell Spencer was the lone clerk on duty. Knights wanted to buy some clothes but had no money. Murray, who had some money, did not buy anything. The two left the store and walked the streets, discussing possibly robbing the store.
After much discussion, the two returned to the store. The account of events in the store, ultimately resulting in the death of Spencer, was disputed at trial. In Murray's police statement, played at trial, he said he remained in the front of the store as a lookout while Knights went to the back of the store. Knights, on the other hand, testified that Murray acted alone in killing Spencer.
Hours after Murray and Knights left the store, police performing a welfare check discovered Spencer's nearly lifeless body hidden under cardboard. Spencer suffered multiple blows to the back of the head delivered with the flat end of a small axe taken from store merchandise. He died shortly after arrival at the hospital.
When Murray and Knights left the store, each carried two bags stuffed with merchandise, including clothes, a purse, knives, and the axe. Murray estimated the total value of these items to be around $1, 000. They stored their plunder in a storage unit belonging to Murray, discarded the axe, and threw the clothes they were wearing at that time into the dumpster behind the Salvation Army homeless shelter.
B. Murder of Marcus Penney.
A little over a week after the murder of Spencer, Knights and Murray ventured to the apartment of Marcus Penney, a common acquaintance from the deaf community. Penney was also the father of three children with Brandi Esque, a woman with whom Knights had been romantically involved. Knights resented Penney's relationship with Brandi. And Murray knew that Knights was upset about something as they walked to Penney's apartment.
Both Murray and Knights were armed with knives that they had stolen from the army surplus store. When they arrived at Penney's apartment, Knights knocked and received no response. They tried opening the door, but it was dead-bolted. Becoming agitated, Knights broke through the door and met Penney. Murray stood at the threshold of the apartment and watched as Knights and Penney fought. Knights pulled out his knife and stabbed Penney. Leaving Penney for dead, Murray and Knights fled the apartment, disposing of their knives and clothing.
C. Murray Arrested and Convicted of Murders.
Within a short time, Murray and Knights's mutual friend, Shawna Grandall, went to the police offering to give a statement about the murders and Knights's involvement. According to Grandall, a few days before she came to the police, Knights had admitted to her that he committed two murders.
After Knights was arrested, Murray went to the police and gave a statement in which he acknowledged being present and involved in both murders. Murray fingered Knights as the perpetrator of both murders.
Murray and Knights were indicted by a grand jury for acting alone or in complicity to commit (1) two counts of murder, (2) one count of first-degree robbery, (3) one count of first-degree burglary, (4) and two counts of tampering with physical evidence. Knights pleaded guilty to the charges under an agreement for a total sentence of life in prison without parole for twenty-five years. Murray's case proceeded to trial.
Before trial, Murray moved for separate trials on the murder charges and for dismissal of the two counts of tampering with physical evidence. He argued that the murders were insufficiently related and that the tampering with physical evidence charges unconstitutionally impinged upon his Fifth Amendment right against self-incrimination. The trial court denied both motions.
The jury convicted Murray on all charges. Because the jury convicted Murray of the murder charges, the trial proceeded to the capital-sentencing phase in which the jury found an aggravating circumstance: Murray's acts were intentional and resulted in multiple deaths. The jury recommended concurrent life ...