Released for Publication January 8, 2015.
[Copyrighted Material Omitted]
ON APPEAL FROM CUMBERLAND CIRCUIT COURT. HONORABLE DAVID L. WILLIAMS, JUDGE. NO. 09-CR-00001.
FOR APPELLANT: V. Gene Lewter, Department of Public Advocacy.
FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Jeffrey Allan Cross, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office.
Appellant, Carl Spears, appeals from a judgment of the Cumberland Circuit Court convicting him of two counts of murder and sentencing him to life in prison without the possibility of parole.
As grounds for relief Appellant argues (1) that the trial court erred by denying his, motion for a mistrial after a state police detective testified that he was unable to interview Appellant because he had asked for an attorney; (2) that the trial court erred by refusing to allow Appellant's forensic expert witness to sit with defense counsel during the testimony of the Commonwealth's expert witnesses; (3) that the trial court erred by refusing to instruct the jury on first-degree manslaughter based upon extreme emotional disturbance; and (4) that Appellant is entitled to a new penalty phase trial because the penalty phase proceedings failed to comply with the capital sentencing protocols as provided for in KRS 532.025(3).
For the reasons stated below, we affirm the judgment of the Cumberland Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kenny Spears (Kenny and Timmy Medlin were stabbed to death in an altercation at Kenny's residence. Appellant admits that he was present when the stabbing occurred, but he claims that Kenny and Medlin inflicted the fatal wounds upon each other. All three men were intoxicated at the time. Appellant claims that when Kenny and Medlin began fighting each other with knives, he tried to separate them to break up the fight. As a result of that effort, Appellant sustained a number of minor injuries. He also claims that he tried CPR on the two victims in an effort to save their lives.
Appellant left the scene of the killings and went to the home of a friend to whom he reported that " something bad has happened." His friend refused to let him in to call the police, so Appellant went to another friend's home, from which a 911-call was made. Appellant told the 911-dispatcher that he had witnessed two people being killed, that he wanted to talk to the sheriff, admitted to being there at the time of the stabbings but denied that he had committed the killings; he also indicated in that call that it was possible that he
would not talk to the police until he had spoken with an attorney.
Appellant was then indicted and charged with two counts of murder. While in jail awaiting trial, Appellant associated with another inmate named Tony Spears (Tony). At trial, Tony testified that he had a disagreement with Appellant and Appellant said to him, " I've done killed one Spears. Don't make me kill you too." Tony also testified that Appellant said he had watched Kenny and Medlin die and that he described their deaths in gruesome detail. The Commonwealth presented forensic evidence linking Appellant to the stabbings, including testimony that Appellant's blood was on the murder weapons, mingled with the blood of the respective victims.
At the conclusion of the evidence the jury found Appellant guilty of both killings and recommended a sentence of life without parole for both murders. The trial court entered a final judgment consistent with the jury's verdict and sentencing recommendation. This appeal followed.
II. TESTIMONY THAT APPELLANT HAD INVOKED HIS RIGHT TO COUNSEL WAS IMPROPER BUT HARMLESS
Appellant contends that the trial court erred by denying his motion for a mistrial after Detective Michael Dubree twice testified that Appellant " had asked for a lawyer." Appellant argues on appeal that Dubree's testimony was inadmissible based upon our cases holding that testimony directing the jury's attention to the fact that a criminal defendant had invoked his right to silence or his right to counsel is unfairly prejudicial. Appellant argues on appeal, as he did in the trial court, that Dubree's testimony warranted a mistrial because it was inaccurate -- Appellant had not asked ...