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White v. Commonwealth

Supreme Court of Kentucky

August 24, 2017

LARRY LAMONT WHITE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE NO. 07-CR-004230

          COUNSEL FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Erin Hoffman Yang Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey Allan Cross Assistant Attorney General Emily Lucas Assistant Attorney General.

          OPINION

          CUNNINGHAM JUSTICE.

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

         Armstrong was murdered on June 4, 1983. Her body was discovered that same day in a public alley, with her pants and underwear pulled down around her legs and shirt pulled up to her bra line. She suffered from two gunshot wounds. One wound was observed on the left side of the back of her head, while the other wound was in virtually the same spot on the right side. The medical examiner was unable to determine which shot was fired first, but did opine that neither shot alone would have caused immediate death.

         Although Appellant was originally a suspect, Armstrong's murder remained unsolved for more than twenty years. Yet, in 2004, the Louisville Metro Police Department ("LMPD") Cold Case Unit reopened Armstrong's case. Through the use of DNA profiling, Detectives sought to eliminate suspects. LMPD officers were able to obtain Appellant's DNA from a cigar he discarded during a traffic stop. Appellant's DNA profile matched the DNA profile found in Armstrong's panties.

         On December 27, .2007, a Jefferson County Grand Jury returned an indictment charging Appellant with rape in the first degree and murder. During the trial, DNA, evidence and evidence of Appellant's other murder convictions were introduced to the jury. On July 28, 2014, Appellant was found guilty of both charges. Appellant refused to participate during the sentencing stage of his trial. The jury ultimately found the existence of aggravating circumstances and recommended a sentence of death for Armstrong's murder plus twenty years for her rape. The trial court sentenced Appellant in conformity with the jury's recommendation. Appellant now appeals his conviction and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution and Kentucky Revised Statute ("KRS") 532.075.

         On appeal, Appellant has raised thirty-three claims of error. In reviewing these claims, the Court is statutorily required to "consider the punishment as well as any errors enumerated by way of appeal." KRS 532.075(2). Moreover, since we are dealing with the imposition of death, this appeal is "subject to [a] more expansive and searching review than ordinary criminal cases." St. Clair v. Commonwealth, 455 S.W.3d 869, 880 (Ky. 2015) (citing Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky. 2011)). For the sake of brevity, we will approach all claims as properly preserved unless otherwise specified herein. To the extent claims were not preserved for our examination, we will utilize the following standard of review:

[W]e begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; [but] (2) if there is no. [such] reasonable explanation, [we then address] whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed.

Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990).

         KRE 404(b) Evidence

         Appellant's first and most compelling argument is that the trial court committed reversible error when it allowed the Commonwealth to admit other bad acts evidence of the Appellant as addressed by Kentucky Rules of Evidence ("KRE") 404(b). Prior to trial, the Commonwealth filed notice that it intended to introduce evidence of Appellant's two 1987 murder convictions. These convictions revealed that Appellant pled guilty to murdering Deborah Miles and Yolanda Sweeney.[1] The Commonwealth suggested that the Miles and Sweeney murders were similar enough to Armstrong's murder to demonstrate that Appellant was her killer.

         Miles was discovered dead in her bedroom a mere week after Armstrong's murder. She was naked and had been shot in the left, back side of the head. Appellant claimed that he had known Miles for several months and that she sold drugs on his behalf. Appellant also claimed the two had a sexual relationship. Appellant stated that he shot Miles while at her apartment . because she failed to repay him for drugs. Appellant claimed that he did not sexually assault her before or after her murder.

         In regards to Sweeney, she was found dead behind a backyard shed approximately four weeks after Armstrong's murder. Sweeney suffered from a fatal gunshot wound to the left side of the back of her head. Her pants were missing and her panties were pulled down around her legs. Appellant stated that he met Sweeney shortly before her death at a nightclub. She agreed to engage in sexual activity with him for $25.00. Appellant claims the two walked to a secluded outside area at which point Appellant provided Sweeney with the money. Appellant admitted to shooting Sweeney after she tried to run away with his money before conducting the agreed upon sexual acts.

         The Commonwealth argued that the facts of these two convictions were " similar enough to prove Appellant's identity as Armstrong's murderer. Extensive pleadings were filed from both parties and the trial court conducted several hearings on the matter. Ultimately, the trial court was persuaded by the Commonwealth's arguments and allowed the two prior convictions to be introduced to the jury for the purpose of establishing Appellant's identity through his modus operandi.

         Before evaluating the trial court's admission of Appellant's two murder convictions, we note that reversal is not required unless the trial court abused its discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). Thusly, reversal is unwarranted absent a finding that the trial court's decision "was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

         KRE 404(b) prohibits the introduction of "[e]vidence of other crimes, wrongs, or acts" used "to prove the character of a person in order to show action in conformity therewith." This evidentiary rule seeks to prevent the admission of evidence of a defendant's previous bad actions which "show a propensity or predisposition to again commit the same or a similar act." Southworth v. Commonwealth, 435 S.W.3d 32, 48 (Ky. 2014). However, such evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." KRE 404(b)(1). While "modus operandi" is not specifically mentioned within the list of exceptions, this Court has long held that evidence of prior bad acts which are extraordinarily similar to the crimes charged may be admitted to demonstrate a modus operandi for the purposes of proving, inter alia, identity. Billings v. Commonwealth, 843 S.W.2d 890, 893 (Ky. 1992).

         In order for the modus operandi exception to render prior bad acts admissible, "the facts surrounding the prior misconduct must be so strikingly similar to the charged offense as to create a reasonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea." English, 993 S.W.2d at 945. Therefore, we must compare the facts of Appellant's prior murders to the murder of Armstrong, keeping in mind that "clever attorneys on each side can invariably muster long lists of facts and inferences supporting both similarities and differences between the prior bad acts and the present allegations." Commonwealth v. Buford, 197 S.W.3d 66, 71 (Ky. 2006).

         Whether Appellant's prior murder convictions qualify for the modus operandi exception presents a challenging task for the Court, requiring "a searching analysis of the similarities and dissimilarities." Clark, 223 S.W.3d at 97. Our review is even more difficult considering that our jurisprudence on this issue has evolved mostly through the lens of sexual abuse cases. These cases hold that a specific act of sexual deviance may be unique enough to demonstrate that the assailant's crimes are "signature" in nature. See, e.g., Dickerson v. Commonwealth, 174 S.W.3d 451, 469 (Ky. 2005); English, 993 S.W.2d 941 (all victims were relatives of wife and molestation occurred in the same fashion); see also Anastasi v. Commonwealth, 754 S.W.2d 860 (Ky. 1988) (tickling and wrestling with young boys while dressed in only underwear).

         Outside the realm of sexual abuse, we have but few cases. In Bowling v. Commonwealth, 942 S.W.2d 293, 301 (Ky. 1997), a capital murder case, this Court allowed testimony from the survivor of a previously attempted robbery, wherein Bowling was identified as the assailant. The witness claimed that Bowling came into his service station, attempted to rob the store, and shot at him countless times. Id. at 301. The Court upheld the admission of that testimony because there was sufficient similarity between the crimes to demonstrate that Bowling's pattern of conduct was to rob gas stations attended by one worker in the early morning hours. Id.

         In St. Clair, 455 S.W.3d 869, also a death penalty case, this Court upheld the testimony of St. Clair's accomplice, during which he testified about the duo's prior kidnapping and robbery. Id. at 886. The accomplice testified that Appellant held the prior victim at gun point, handcuffed him, and stole his late model pick-up truck, taking the victim along for the ride. Id. These facts were similar to the crimes to which St. Clair was charged. The Court held that the facts were sufficient to pass muster under the modus operandi exception since in both kidnappings he used the same gun and pair of handcuffs in order to steal a similar type of truck. Id. at 887.

         What-we garner from our case law is that a perpetrator's modus operandi can be established by any number of similarities between the previous criminal acts and the crimes charged, e.g., the type of victims, proximity of the time and location of the crimes, the weapon or ammunition used, the method employed to effectuate the crime, etc. However, we must analyze similarities with caution, as the likeness of the crimes may merely constitute a common characteristic or element of the offense. The Court made this clarification in Clark v. Commonwealth, wherein we underscored that "the fundamental principle that conduct that serves to satisfy the statutory elements of an offense will not suffice to meet the modus operandi exception." 223 S.W.3d at 98. For that reason, "it is not the commonality of the crimes but the commonality of the facts constituting the crimes that demonstrates a modus operandi." Dickerson, 174 S.W.3d at 469.

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

         Turning to the factual differences of the crimes, Miles was killed inside her apartment, while Armstrong and Sweeney were killed outside. In addition, Appellant maintained different levels of association with the three victims. Appellant claims to have known Miles for a few months prior to her death,, while both Sweeney and Armstrong appear to have been new acquaintances. The crimes also occurred at different times of the day. Armstrong was murdered in mid to late morning, while Miles and Sweeney were killed at night. Another difference is that the gun that killed Armstrong was not used to kill Miles or Sweeney, even though it was the same caliber weapon. Moreover, unlike the other two victims, Armstrong was shot twice, as the first shot did not cause immediate death. Appellant also points out that there was no forensic evidence that Appellant had sexual contact with either Miles or Sweeney, nor was he convicted of sexually assaulting either victim. We should note that Sweeney's body was too badly decomposed for a rape kit to be performed.

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

         While the above-mentioned differences are inversely proportional to the degree of similarity needed to meet the modus operandi threshold, our jurisprudence does not require that the circumstances be indistinguishable. See, e.g., Dickerson, 174 S.W.3d at 469 (quoting Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993) f[I]t is not required that the facts be identical in all respects . . ."). Nonetheless, this Court is faced with an arduous question: at what point do the dissimilarities become sufficient enough to render the crimes unalike?

         We find the case of Newcomb v. Commonwealth, 410 S.W.3d 63 (Ky. 2013) most instructive. In that case, Newcomb raped two women within a. ten-day span. Id. at 70. Newcomb raped the first woman, a coworker, in her car after she offered to drive him home. Id. The second woman was raped in her home after Newcomb unexpectedly stopped by to visit. Id. at 71. Newcomb was tried for both crimes together. Id. at 72. This Court upheld the joinder of both offenses, stating that evidence of either rape would be admissible in both trials if severed. Id. The Court explained that both rapes were similar enough to establish Newcomb's modus operandi. Id. at 74.. The similarities relied upon included .the victims' ages and race, in addition to the temporal proximities of the crimes. Id. The nature of force used was also similar in both rapes, as Appellant's attacks began with forcible kissing followed by a statement like, "You know you like me, " or, "You know you want me." Id. at 75.

         Similar to the case before us, there were numerous differences in the two rapes. For example, the locations of the crimes were not consistent. Newcomb raped one victim in a car after asking for a ride home, while he raped the other victim inside her home when visiting. Id. at 76. The levels of acquaintanceships were also different. Newcomb knew one victim from work and had previously shared a kiss with her, while he had only minimal interaction with the other victim. Id. In addition, and again similar to the case before us, the crimes were not identically followed through. Newcomb held one victim by the hair, but used minimal force with the other victim. Id.; see also English 993 S.W.2d at 942 (English utilized the covering of a blanket to hide the commission of sexual acts with some of his victims, but not with others).

         It is apparent to this Court that the similarities that satisfied the modus operandi threshold in Newcomb are no more significant, nor are the differences any less substantial, than those of the facts presently before us. Newcomb illustrates that despite factual differences, the crimes' similarities, even if minimal, may be distinctive enough to evidence the perpetrator's identity. We believe those distinguishing similarities exist in the case before us. Indeed, Appellant engaged in a pattern of attacking African-American women in their early twenties within a close proximity during early June through early July of 1983. The most persuasive facts being that these three women were of the same age, race, and suffered a gunshot wound from a .38 caliber bullet to the mid-back, left side of the head while their vaginas were uncovered from the removal of clothing. In our view, the commonality of the facts between the Miles and Sweeney murders and the Armstrong murder presents a substantial degree of similarity. Therefore, we find that the trial court did not abuse its discretion in finding that the crimes' similarities were sufficient enough to demonstrate Appellant's identity through his modus operandi.

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

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

         Accordingly, we begin our analysis by acknowledging that the strength of the Commonwealth's modus operandi evidence is unquestionably strong. The following observation is of great importance to this Court. Unlike other cases in which we have found the existence of modus operandi, the comparative offenses in the case before us were not merely alleged, rather Appellant pled guilty to murdering both Miles and Sweeney. See Newcomb, 410 S.W.3d at 70-72 (Newcomb was indicted for the rapes, but had not yet been convicted); English, 993 S.W.2d at 942-43 (other prior acts of sexual abuse were only alleged by the witnesses). In addition, and as we have already discussed, the similarities of the murders are substantial. The close proximity in time and location between each murder further heightens the evidence's probativeness.

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

         In concluding our analysis on this issue, we acknowledge that Appellant undoubtedly suffered prejudice from the introduction of his two prior murder convictions. However, we believe the trial court actively managed the jury's understanding of the evidence so as to prevent them from developing "overmastering hostility." In an effort to dissuade prejudice, the trial court admonished the jury about the proper use of the 404(b) evidence after the parties' opening statements. See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (juries are presumed to follow admonitions). The trial court explicitly explained to the jury that the evidence was only to be considered as evidence of modus operandi and identity. Furthermore, the trial court instructed the jury that the Commonwealth still had to prove each element of the crimes charged beyond a reasonable doubt and that Appellant's prior murder convictions could not be used to establish action in conformity therewith. The trial court provided the jury with a similar instruction just prior to the guilt-phase deliberations. In light of the trial court's actions, in conjunction with the high probative worth of the evidence, we find that the trial court did not abuse its discretion in allowing evidence of Appellant's prior murder convictions.

         Jury Instructions

         Appellant's next assignment of error is that the trial court's failure to define the terms "modus operandi" and "identity evidence" violated his due process rights. Appellant concedes that this issue is unpreserved.

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

         In Lawson v. Commonwealth, 218 S.W.2d 41, 42 (Ky. 1949), our predecessor Court stated that trial courts must "instruct on the whole law of the case and to include, when necessary or proper, definitions of technical terms used." In support of his argument, Appellant cites Wright v. Commonwealth, 391 S.W.3d 743 (Ky. 2013), wherein this Court found that the trial court's failure to define "unmarried couple" within its instructions constituted error. Id. at 748. However, Wright, a domestic violence case, is distinguishable from the case before us. In Wright, the statutory definition of "unmarried couple" is distinctive from what an average juror would understand as a couple who is unmarried. See KRS 403.720 (an "unmarried couple" constitutes two individuals who have a child together and either live together or previously lived together). That is not the case here. We can find no evidence that the two terms go beyond the average juror's understanding. See Caretenders, Inc. v. Commonwealth, 821 S.W.2d 83, 87 (Ky. 1991) ("knowingly" and "willfully" are not technical terms requiring instructions). Furthermore, to the extent that these terms needed clarification, we believe they were sufficiently "fleshed out" during closing arguments. Lumpkins ex rel. Lumpkins v. City of Louisville, 157 S.W.3d 601, 605 (Ky. 2005) ("The Kentucky practice of 'bare bones' instructions . . . permits the instructions to be 'fleshed out' in closing argument.").

         DNA Suppression

         Appellant next urges the Court to find reversible error in the trial court's refusal to suppress his DNA sample, which he claims was improperly obtained during an illegal traffic stop. In February of 2006, LMPD Sergeant Aaron Crowell was tasked with covertly obtaining Appellant's DNA. Accordingly, Sergeant Crowell and Detective Hibbs began surveilling Appellant's residence. While watching Appellant's residence, the two officers observed Appellant enter a vehicle as a passenger. The vehicle subsequently left the residence at an unlawful high rate of speed. The officers then stopped the vehicle due to the speeding violation. During the stop, Sergeant Crowell removed Appellant from the vehicle and performed a pat down to check for weaponry. Appellant placed his lit cigar onto the back of the vehicle. After checking the ...


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