RENDERED: AUGUST 24, 2017
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
Lamont White, appeals from a judgment of the Jefferson
Circuit Court sentencing him to death for the rape and murder
of Pamela 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.
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.
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
[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
Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky.
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. The Commonwealth suggested that the Miles
and Sweeney murders were similar enough to Armstrong's
murder to demonstrate that Appellant was her killer.
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.
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
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
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.
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).
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).
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
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 i steal a similar type of truck.
Id. at 887.
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.
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 v was found. We also
place considerable weight on the resemblances between the
victims' manners of death. For example, the mode of
execution which Miles and 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.
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.
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).
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) ("[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?
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.
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 ear 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).
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
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;
Lankam 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.
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 need 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 on Evidence, Ch. 17 § 190).
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.
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
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
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.
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
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, bumpkins ex rel. bumpkins 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
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 subjects' driver's
licenses and running warrant checks, officers permitted the
driver and Appellant to leave. No citation was issued. As the
vehicle left the scene, Appellant's cigar fell to the
ground and was collected.
filed a motion to suppress DNA evidence recovered from the
cigar based on the illegality of the traffic stop. The trial
court denied Appellant's motion following evidentiary
reviewing a trial court's denial of a motion to suppress,
we ensure that the trial court's factual findings are not
clearly erroneous, after which we conduct de novo review of
the trial court's applicability of the law to the facts.
Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998)
(citing Ornelas v. United States, 517 U.S. 690, 697
(1996)). Appellant does not allege that any factual findings
are unsupported. As a result,, we turn to the trial
court's application of the law to the facts.
trial court relied entirely on Lloyd v.
Commonwealth,324 S.W.3d 384 (Ky. 2010) in ruling that
the traffic stop was lawful. We can find no error in the
trial court's reasoning. In Lloyd, this Court
explained that an officer may conduct a traffic stop as long
as he or she has probable cause to believe a traffic
violation has occurred, regardless of the officer's
subjective motivation. Id. at 392 (citing Wilson
v. Commonwealth,37 S.W.3d 745 (Ky. 2001)). The
Commonwealth provided sufficient proof that Sergeant Crpwell
and Detective Hibbs ...