Commonwealth of Kentucky, Transportation Cabinet, Department of Highways v. Crystal McFarland Caldwell as Administratrix of the Estate of Bertha Roseann Wilson

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
 AS M()f)IFIED: 1W('1.W 3EP 1, 2009
R11,'NI)ERED : N()VF',MBER 25, 2009
N _P X 'D

uyrrmr 6T
V-1 of
2007--SC .1)00350-MR

DEREK RENE EDMONDS

ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE JUDITH M('1_)()NALIJ-BURKMAN,,JCJI)(-F,
NOS . 04-CR-001 179-001 AND 04. -Cl~-0024, 45-001

COMMONWEALTH OF KENTUCKY APPELLEE

AND _ 2007-SC-000359-MR

TYREESE HALL APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE JUDITH MCDONALD-BURKMAN,JUDGE
NOS . 04-CR-001179-002 AND 04-CR-002445-003

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART AND REVERSING IN PART

I. INTRODUCTION

At a jury trial, Appellants Derek Rene Edmonds and Tyreese Hall were

convicted of murder, first-degree sodomy, and first-degree robbery . Upon

review of the record and Appellants' arguments, we affirm their convictions .
 However, with respect to Appellant. Derek Edmonds, we reverse and remand for

the limited purpose of entry of an amended judgment on his sodomy

conviction.

II. BACKGROUND

Early in the morning of April 6, 2004, Clifton Agnew, a homeless man

sleeping outside near the Salvation Array in Louisville, Kentucky, was beaten,

hit with a crock pot, stabbed in the leg, and robbed . While unconscious, he

was sodomized with a bottle and two sticks, which were shoved up his rectum,

into his abdomen, and through his organs. A police officer saw someone flee

the scene, but was unable to catch the suspect. Two police officers then

discovered the victim bleeding from his head and rectum. He was barely alive,

and EMS took him to the hospital, where he remained unresponsive and in a

coma until his death. i

A twenty-seven-inch stick and a smaller fifteen-inch stick were recovered

from the alley where the attack occurred ; both sticks were covered in the

victim's blood . A broken beer bottle with blood around the neck and a knife

were also found, and police recovered a crock pot, which was dented, broken,

and bloody.

Both Appellants were arrested that day. Hall had a swollen hand and

blood spatters on his pants . Edmonds had blood-soaked pants and boots .

i After a few weeks, the victim was moved to a nursing home, but he never awakened
from his coma.
 DNA from the blood on both Appellants' clothing matched the DNA profile of

the victim.

Hall gave a statement to police that day, claiming to have hit the victim

on the leg with the crock pot and admitting t o punching him and stabbing him

in the leg with a knife . This statement was recorded and later played at trial .

At another time, Hall signed a statement confessing that he alone robbed

and sodomized the victim, stating that Edmonds had only kicked the victim

and then run away. He later testified that Edmonds pressured him to take the

blame, which is why his original written statement only implicated himself.

Hall later gave a second statement to a detective over the phone wherein

he implicated Edmonds' brother Dewayne in the violence . (He testified at trial

that he did this only to get back at Edmonds, who he believed had gotten him

arrested, and that the brother had not attacked the victim .) While on the

phone, he also admitted to throwing the crock .pot, hitting the victim's head,

and claimed that Edmonds had sodomized the victim with a glass bottle. This

statement was also recorded and played at trial.

Hall also testified at the trial, providing details of the attack. He claimed

that Edmonds had been discussing robbing someone that day. Hall, Edmonds,

and Edmonds' brother were walking down an alley on the day of the crime

when a homeless man awoke and rose up. Hall testified that the man was

reaching for something, so he attacked, punching the man in the face and

knocking him down. He claimed he kicked the man and then picked up a
 crock pot and threw it down on the victim's leg so hard that the crock pot

broke. Edmonds' brother picked up the victim's wallet, threw it. down, and

then left the alley. Edmonds then started punching and kicking the victim.

Hall testified that he walked away and came back several times, eventually

asking Edmonds to stop . At that point, the victim was unconscious. Hall

claimed he then saw Edmonds . drag the unconscious victim through the gate in

a fence, beat him some more, and that he heard Edmonds say, "I'm going to do

him like they did our people back in the day," which Hall claimed referred "to

racial stuff. "2 He testified that Edmonds then repeatedly sodomized the victim

with a stick for about two minutes.

Edmonds denied having anything to do with harming Clifton Agnew

when interrogated by police. He did not testify at trial, but did present multiple

witnesses in his defense . Mark Murray and James Ford testified they heard

Hall admit committing the crimes, specifically to robbing Agnew, sodomizing

him with a bottle and stick, and hitting him with the crock pot. Another

witness, Jeffrey Bryant, who had shared a holding cell with Hall, testified that

all Hall claimed that Edmonds had done was come to Hall's rescue after the

victim grabbed Hall, kicking the victim several times to get him off Hall. Yet

another holding-cellmate testified that Hall had impliedly admitted to

sodomizing the victim with a stick and hitting him in the head with the crock

pot.

2 Both Appellants are African-Americans, and the victim was Caucasian.
 At trial, the victim's doctor and the medical examiner testified about his

injuries. Dr. Bill Smock treated the victim in the emergency room, and he

testified that the victim was bleeding from several sites on his head, had two

stab wounds in his leg, and had "very significant infra-abdominal injuries" and

a large amount of blood coming from his rectum. He testified, "Some object

had been inserted forcefully into the rectum and beyond that into the

abdominal cavity and beyond that up into the left lung area." He said that an

object had been inserted into the victim's rectum at least twice . He used a

chart to describe the injuries and he demonstrated with a prosecutor how long

the stick was in comparison to a person's back. He identified eight

photographs of the victim taken at the hospital the day he was admitted

showing injuries to his face, eyes, ear, and anus .

Dr. Amy Burrows-Beckham performed the victim's autopsy. She testified

that the cause of death was "the head injury he sustained when he was

assaulted," with a contributing factor of loss of blood due to the extensive

injuries to his abdomen and chest.

Appellants were convicted after a jury trial. Edmonds was sentenced to

life without the benefit of parole or probation on the murder, life without parole

on the sodomy, 3 and twenty years on the robbery. Hall was sentenced to life

without the benefit of parole or probation for twenty-five years on the murder,

twenty-five years on the sodomy, and twenty years on the robbery. Their

appeals to this Court, therefore, are a matter of right. Ky. Const. § 110(2)(b) .

3 The sentence for sodomy was an error and is addressed below.
 III. ANALYSIS

The Appellants were tried together and took their appeals together .

Because several issues are common to both their cases, their appeals are

addressed in a single opinion. Individual issues are addressed separately .

A. Issues Raised by Both Appellants

1. Humanizing/Victim Impact Evidence During Guilt Phase

Appellants claim they were prejudiced by the testimony of Kaye Thomas,

who visited a comatose Clifton Agnew in the hospital after hearing about his

case on the news, and eventually became his legal guardian . Before trial, the

prosecutors indicated they were going to call Thomas as their traditional

"humanizing" witness as allowed under McQueen v. Commonwealth , 669

S.W .2d 519 (Ky. 1984) . Appellants made written pretrial motions in limine to

exclude Thomas's testimony, arguing it would be mostly irrelevant and highly

prejudicial, and any probative value would be substantially outweighed by the

prejudicial effect . See KRE 403. Appellants' motions in limine were denied .

Before Thomas was called by the Commonwealth at trial, Appellants

renewed their objections to the entirety of her testimony, and specifically

objected to any testimony about Thomas's "card campaign," an e-mail

campaign asking everyone who received it to send a card to the victim's

hospital room and to forward the e-mail to their friends. Defense counsel

conceded that traditional humanizing testimony would be permissible. The

Commonwealth agreed that the cards and letters Thomas solicited on the
 victim's behalf should not. be admitted into evidence, bt_at argued Thomas

should be able to testify about them.

The court ruled that the fact that Thomas read letters to the victim would

be allowed, but that she would not be permitted to testify that this case

garnered national attention or that people from around the nation sent letters

to the victim. Specifically, the court said, "her testifying that this was national,

and that everybody in the nation sent letters, that is where I'm gonna have to

stop you ." The Commonwealth then asked for the court to give it- "a couple

seconds just to tell [Thomas] where your cutoff is."

The defense further objected to any discussion of the quantity of the

cards the victim received . The court concluded Thomas could testify about her

observations of the victim's injuries and pain and suffering as a lay person

could, and that she could testify about what she did with him, but she could

not testify about what others did for him, including her card campaign and the

number of cards the victim received.

Thomas began by describing how she came to hear about the attack on

Clifton Agnew on the news, and how she decided to visit him in the hospital.

She described the fact that his organs were still swollen outside of his body,

and covered with clear surgical plastic.

The Commonwealth asked Thomas, "After you got back from the hospital

that [first] day, what did you do?" She testified that she went home and e-

mailed her friends, telling them of the "horrific thing" she had just seen, and
 that the victim was a vegetable. tier e-mail requested her friends to send the

victim a card for two reasons : First, "as an act of protest against the violence

that had been done to him," and second, "as an act of kindness to show a man

that probably had not had a lot of kindness in his life ."

The Commonwealth then asked Thomas whether any of her friends who

received her e-mail sent cards, and she responded that all twenty of them did.

She continued by testifying that the following day he was sent seventy-five

cards, and then 120, and so on. She testified that on one day, the victim

received 666 cards, so she bought an extra card because she "thought he'd

already met the devil once and he didn't need to meet him again." She then

described how her initial e-mail was forwarded from her friends to their friends

until the victim had received thousands of cards from all over the world, which

she said she read to hire one at a time.

While holding his hand, she "read to him these wonderful, magical cards

that were all filled with love and compassion and hope and inspiration to

someone who probably hadn't gotten a lot of cards in his life." She thought

that as she read those cards to him, somehow there would be a connection

between the sender of the letter and the victim, and that "somehow

miraculously there would be some hope and maybe he would get better ."

Directly contrary to the court's restriction on Thomas's testimony, the

Commonwealth specifically asked, "How many cards did Clifton get after you

sent out that first e-mail," and Thomas responded that he eventually received
 6,286 cards. She described how the University of Louisville baseball team sent

him a baseball, and how RCA Records, the Secretary of State of New Jersey,

and a Native American tribe all sent him cards . She said that she found out

that Agnew liked Elvis, and played Elvis music for him .

The Commonwealth then moved on and asked Thomas to describe the

physical condition of the victim during the fifty-six days he was in a coma

before dying. She replied that "there was never any reaction" from the victim,

and also described his partial paralysis. She then testified that she became

Agnew's legal guardian after he had been in a coma for over a month, and he

was moved to a nursing home that volunteered to house him even though he

was indigent. She found out where the victim was born, and located his ex-

wife. Thomas described how Agnew had lost a tremendous amount of weight

"because he had lost three-quarters of his stomach," and was on a feeding

tube.

Thomas then specifically discussed the day the victim died in the nursing

home, a day which she at first felt may have had "hope." She talked about how

"for the very first time his eyes were opened, and they were opened just like my

eyes are open right now." During all of her visits to see the victim, his eyes had

always been brown when she peeled his eyelids open, but "on this day his eyes

were sky blue" and she thought this was a good sign. She said she "really had

hope that day," but nevertheless Agnew passed away that evening. Thomas

testified for approximately eighteen minutes, and cried softly several times .
 The Appellants made no objections during Thomas's heartfelt, testimony.

After she testified on direct examination, defense counsel moved for a mistrial.

The court declined to make a "finding that the Commonwealth elicited the

numbers and the extent" of the card campaign, and denied the motion for a

mistrial, finding that because the physical condition and injuries of the victim

were not in dispute, there was no prejudice from this testimony.

The Commonwealth argues that Thomas's testimony was appropriate as

"humanizing" evidence, and to provide information about the victim's condition

from the time he was attacked until the day he died . McQueen v.

Commonwealth permits the prosecution to provide a humanizing witness, in

order to show that the "victim was a living person, more than just a nameless

void left somewhere on the face of the community" and more than just "a

statistic." 669 S .W.2d at 523. See also Ernst v. Commonwealth, 160 S .W.3d

744, 763 (Ky. 2005) (quoting Sussell v. Commonwealth, 882 S.W .2d 111, 113

(Ky. 1994)) ("[A] certain amount of background evidence regarding the victim is

relevant to understanding the nature of the crime.") . This testimony has

generally included basic background information about the victim. See , ej~. ,

Hilbert v. Commonwealth, 162 S.W.3d 921, 926 (Ky. 2005) (mothers of victims

briefly described dates of birth, number and sex of siblings, and the fact that

one victim had a nine-year-old son); Hodge v. Commonwealth, 17 S.W.3d 824,

847 (Ky. 2000) (victims' sons testified that victims were elderly and infirm, that

they worked hard to accumulate what was stolen, and that they attended
 church on the day they were killed) ; Tanlnic v. Commonwealth, 973 S . W.2d 13,

35 (Ky. 1998) (mothers of victims introduced life photos of sons) .

While humanizing evidence generally comes from family members, there

is no rule limiting it to family members, nor should there be . Such a rule

would limit humanizing evidence to those with families . This Court recognizes

that, for victims with no family or friends, humanizing evidence may need to be

presented differently. The fact that. Mr. Agnew had no family does not make

him any less entitled to evidence that. he was more than just. a statistic.

However, much of Thomas's testimony was evidence of the effect of the

crime on others, and not mere victim background evidence. Such testimony

exceeds the scope of what is allowed during the guilt phase:

[While the Commonwealth is entitled to show the jury that the
victim was not a mere statistic, buts a living person . . . we have
expressed disapproval of the introduction of victim impact evidence
during the guilt phase of a trial . . . . The reason, of course, is that.
such evidence is generally intended to arouse sympathy for the
I -~illies of the victims, which, cilthol ..i``ii relevant t% file issue of'
penalty, is largely irrelevant to the issue of guilt or innocence. We
reiterate that this type of evidence should be reserved for t:he
penalty phase of the trial.

Bennett v. Commonwealth, 978 S.W.2d 322, 325-26 (Ky. 1998) (citations

omitted).

Much of Thomas's testimony was not about the victim, but was instead

about her reaction and the community's response to his plight, i.e. more akin

to victim impact testimony. It is error to introduce victim impact evidence

during the guilt phase of a criminal trial. See Ernst, 160 S.W.3d at 763 . The
 portions of Thomas's testimony dial exceeded permissible litirminizirig evidence

were error.

The question then becomes whether this error was harmless . RCr 9.24 .

A non-constitutional evidentiary error must, have a substantial influence on the

jury's verdict to require reversal. Winstead v. Commonwealth, 283 S.W.3d 678,

688-89 (Ky. 2009) (citing Kotteakos v. United States, 328 U .S. 750 (1946)) .

Under the circumstances of this case, Thomas's testimony was harmless

error. There is overwhelming evidence of the Appellants' guilt, including blood

on the Appellants' clothing, DNA evidence linking the blood to Clifton Agnew,

Hall's confession, and Hall's testimony at trial implicating both himself and

Edmonds .

With regard to Thomas's testimony about Agnew's injuries, far more

graphic evidence of these injuries was introduced through medical testimony

and photographs shown to the jury. Upon consideration of the whole case, the

improper victim impact-type testimony did not have a substantial influence on

the jury's verdict. Those portions of Thomas's testimony that were error were

therefore harmless error.

2. Hearsay Testimony and Photo Array Identification

Larry Milligan was an eyewitness to the attack who did not testify at trial.

He was homeless and it was believed he had left the state. On the morning of

the attack, however, he gave a taped statement to Detective Jeff Wheeler and

he identified Hall from a photo array. He then disappeared and was never
 found. Because he failed to identify Edmonds, Edmonds sought to have tile

statements introduced as exculpatory evidence while Hall sought to keep the

inculpatory hearsay identification out. The trial court granted Hall's written

pretrial motion in limine to exclude any evidence about Milligan's statements

because it was hearsay and violated his right to confront and cross-examine

witnesses against him.

However, over Hall's objection, the trial court allowed Milligan to be

discussed first in Dewayne Edmonds' opening statement ., 4 saying that he saw

two black men and identified Hall from a photo . Over Hall's renewed objection,

the trial court later allowed Detective Gary Williamson and Detective Wheeler to

repeat Milligan's hearsay statements about the men he saw in the alley,

including Milligan's identification of Hall, and it allowed Detective Wheeler to

say Milligan picked Hall out of a photo array (although the trial court did keep

the actual array out) . Additionally, Williamson testified as to double hearsay

when he said he was told by other officers that Milligan was an eyewitness who

had seen two men in the alley and that he had picked Hall out of a photo array.
testified
He also stated that he to the gland jury about what Milligan had said.

An objection to the last comment on the grounds of hearsay was sustained by

the trial court. At the close of the trial, Milligan had not been called to testify

and Hall moved for a mistrial, which was denied .

4Dewayne Edmonds, the brother of Appellant Derek Edmonds, was a third co-
defendant at this trial who pled guilty to second-degree robbery as the trial was
ongoing, and thus he is not a party to this appeal.

13
 The Commonwealth concedes theses st_atemelits were hearsay. However,

because Hall had confessed in multiple statements that he was present at. the

crime, though claiming varying degrees of involvement, there is no reasonable

basis to believe that the statements 'had a substantial effect on the verdict

against Hall, since they did little more than place him at the scene . The

statements were actually favorable to Edmonds, who had wanted them

admitted. Though error, it was harmless .

3. Limitations on Individual Voir Dire

Appellants allege error in the trial court's limitation of the individual voir

dire required in death penalty cases. Specifically, Appellants claim the trial

judge abused her discretion by limiting their voir dire questioning of each

prospective juror to two minutes each for the Commonwealth and the three

defendants (before Dewayne Edmonds was dismissed), by limiting questions

about possible mitigation evidence, and by limiting leading questions, thus

denying their rights to a fair trial under the Sixth and Fourteenth Amendments

to the United States Constitution . Contrary to Appellants' claims, however, the

trial court properly exercised its discretion in conducting individual voir dire.

First, the voir dire questioning of the first juror took over twenty minutes.

The trial court realized there were over one hundred prospective jurors

remaining, and thus limited each party's questioning to two minutes . The

jurors had already been shown a six-minute video presentation explaining the

guilt and penalty phases of the trial, the penalty ranges for each defendant,
 the
and aggravating and mitigating factors . Additionally, trial court. began

individual voir dire by asking each prospective juror whether he or she had

seen any media coverage or formed an opinion about the case . The judge then

referenced a chart showing the range of possible penalties and asked each '' -

juror whether he or she could consider the full range of penalties if selected to

serve and deliberate in the penalty phase, including the twenty-year minimum

penalty and the maximum penalty of death. The Appellants also had each

juror's response to the death penalty qualification questionnaire . Therefore,

before Appellants even began their questioning, the primary issues for

individual voir dire had already been addressed and the Appellants already had

a response by each juror to key issues . Given the multitude of information the

Appellants already had for each juror, the trial court's two-minute limitation

was permissible. "The mere fact that more detailed questioning might have

somehow helped the accused in exercising peremptory challenges does not

suffice to show abuse of the discretion in conducting the examination ."

Wbodall v . Commonwealth, 63 S .W.3d 104, 116 (Ky . 2001) .

Appellants do not cite a case in which a two-minute limit in individual

voir dire was error. The authority from other jurisdictions cited in Appellants'

reply briefs is readily distinguishable . Several of those cases involved excessive

limits on overall voir dire, 5 where no such limit existed in this case, or

5 See State v. Strange, 619 So.2d 817 (La. CLApp. 1993) (error to limit overall voir dire
to ten minutes) ; McCarter v. State , 837 S.W.2d 117 (Tex. Crim. App. 1992) (error to
limit overall voir dire to 30 minutes) .

15
 limitations that were not even enforced ." The other cases involve limits on

individual voir dire .? 'Those cases, however, involved much more stringent

limits than here. Ultimately, the voir dire of each juror here, which, counting

the video and questioning, was at. least 14 minutes per juror, was far greater

than that found wanting in other jurisdictions . Additionally, Appellants' cited

authority is not binding in Kentucky, and this Court concludes that the two-

minute-per-defendant limit in individual voir dire was not an abuse of

discretion under the facts of this case.

Second, the trial judge only permitted a generalized inquiry into

mitigation. Under Woodall, however, this was also a permissible exercise of the

trial court's discretion . In that case, "[Appellant] Woodall sought to question

the jury about. specific mitigating circumstances rather than a generalized

inquiry as allowed by the trial judge ." Woodall, 63 S.W .3d at 116. This Court,

held that because "[t]he judge permitted Woodall to question jurors extensively

regarding mitigating circumstances so long as the questions were general and

did not inquire into specific mitigation," the trial court in that case did not

abuse its discretion . Id . In this case, after the Commonwealth objected to

defense counsel's attempt to ask questions about specific mitigating

6 See People v. Odle , 754 P.2d 184 (Cal. 1988) . Sine the limit in that case was not
enforced, it is unclear why Appellants even cite it .
7 See Clemments v. State, 940 S.W.2d 207 (Tex. Ct.App . 1996) (one-hour overall limit
on voir dire was unreasonable where 30 minutes was used to question entire panel,
leaving approximately 30 seconds per juror to individually question 60 venire
members) ; O'Hara v. State , 642 So.2d 592 (Fla. Dist. Ct.App. 1994) (abuse of
discretion to limit voir dire of 24 jurors to 40 minutes) ; State v. Williams, 860 P.2d
860, 863 (Or. Ct. App. 1993) (error to limit voir dire of 25 jurors to 40 minutes, about
96 seconds per panel member) .

16
circumstances, the judge gave counsel a mitigation definition that they could

tell the jurors, and she reminded counsel that. her video presentation had

explained to the jurors what mitigation evidence was. As in Woodall, because

Appellants were allowed to ask about mitigation generally, "lilt was not. an

abuse of discretion by the trial judge to restrict the voir dire . . . concerning

specific mitigation evidence which [they] planned to present." Id . Not only did

the judge not abuse her discretion, but what the Appellants' counsel asked to

do has been held to be impermissible : "[A]sking potential jurors how they

would weigh specific mitigating circumstances would ignore well-settled

precedent that it is impermissible to ask voir dire questions designed to commit

jurors to certain theories ." Sherroan v. Commonwealth, 142 S.W.3d 7, 14 (Ky.

2004) .

Finally, the trial court restricted Appellants' leading questions. Defense

counsel, however, was attempting to use hypothetical scenarios to pin down

jurors on a specific penalty phase decision, without referencing any specific

evidence . This sort of questioning violates the proscription against. questions

designed to commit jurors to certain theories, as noted in Sherroan . Moreover,

this Court has recognized :

"It is well (sic) to remember that the lay persons on the panel may
never have been subjected to the type of leading questions and
cross-examination tactics that frequently are employed .
Prospective jurors represent a cross section of the community, and
their education and experience vary widely . Also, unlike witnesses,
prospective jurors have had no briefing by lawyers prior to taking
the stand . . . . ..
 Penman v. Commonwealth, 194 S.W.3d 237, 251 (Ky. 2006) (qt.iofhig Patton v.

Yount, 467 U.S. 1025, 1039 (1984)) . Due to defense counsels' attempts to have

jurors commit to specific penalties when given hypothetical scenarios, "[t]he

trial court correctly limited defense counsel's questioning when it became clear

that jurors found the inquiry confusing." Furnish v. Commonwealth, 95

S.W.3d 34, 44 (Ky. 2002) .

Therefore, the individual voir dire in this case fits within the well-

established rule that "[tihe trial judge has broad discretion in the area of

questioning on voir dire." Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky.

1985) .

4. For-Cause Challenges to Jurors

Appellants claim the trial court erred in denying several for-cause

challenges to jurors and in improperly striking some jurors for cause . "The

Appellants exhausted their peremptory challenges and thus this issue is

preserved . See Shane v. Commonwealth, 243 S.W.3d 336, 340-41 (Ky. 2007)

(" `When a defendant does exhaust all of his peremptory challenges, he has

been denied the full use of his peremptory challenges by having been required

to use peremptory challenges on jurors who should have been excused for

cause.' " (quoting Thomas v. Commonwealth, 864 S.W.2d 252, 259 (Ky. 1993))).

This Court reviews a trial court's determination regarding the exclusion

of a juror for cause for an abuse of discretion . Fugett v. Commonwealth, 250

8Several jurors' responses have been attacked on multiple grounds, requiring more
than one for-cause analysis for each, thus these responses are discussed more than
once below.
 S .W.3d 604, 613 (Ky . 2008) . "[']he decision to exclude a juror for cause is

based on the totality of the circumstances, not in response to any one

question." Id. "The test for determining whether a juror should be stricken for

cause is `whether, after having heard all of the evidence, the prospective juror

can conform his views to the requirements of the law and render a fair and

impartial verdict.'" Thompson v. Commonwealth, 147 S.W. 3d 22, 51 (Ky .

2004) (quoting Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994)) ; see

also RCr 9 .36(1) .

Juror 160394 said that on the morning of her voir dire she had seen part

of a television report about the case, but that she had not formed any firm

opinions on the case, though she noted during her lengthy individual voir dire

(lasting over twenty minutes)9 that her initial opinion was that the Appellants

were probably guilty . When she said, "If the police found enough evidence to

bring them to trial then I would assume that it would be likely" that they are

guilty, she was essentially describing what amounted to a layperson's (largely

correct) understanding of probable cause to bring charges . Moreover, she

repeatedly asserted that she could put any previous opinions aside and would

have to first consider the evidence before making a final decision, and she

responded that she could consider the entire range of penalties .

" `[I]n order to merit disqualification of a juror, the media reports must

engender a predisposition or bias that cannot be put aside, requiring the juror

9 The length ofJuror 160394's individual voir dire prompted the trial judge to impose
the two-minute limitation .
 to decide a case one way or the other . . . . The Coristifution does not require

ignorant or uninformed jurors ; it requires impartial jurors.'" Furnish, 95

S.W.3d at 45 (quoting McQueen v. Scrod, 99 F.3d 1302, 1319-20 (6th Cir.

1997)). The trial court did not abuse its discretion when it found Juror 160394

was able to set aside any impression she may have had from the news report.

Jurors 155059, 152182, 155132, 146941, 153474, 156261, 148992,

150450, 161976, and 162784, in response to hypothetical scenarios posited by

the defense, responded that they could not consider lesser penalties such as

twenty years under the specific scenarios . The trial judge, however, did not

strike these jurors because she found that from the totality of their answers

they could in fact consider the full range of penalties . "The trial judge properly

may choose to believe those statements that were the most fully articulated or

that appeared to have been least influenced by leading." Mabe , 884 S .W.2d at

671 . Disqualification of these jurors was not warranted .

Jurors 146941 and 161305 both said they could consider the full range

of penalties, even though they said they were more likely to impose a harsher

punishment . "[Elxcusal for cause is not required merely because the juror

favors severe penalties, so long as he or she will consider the full range of

penalties." Id. at 119. Disqualification of these jurors was not warranted .

During the voir dire of Jurors 153641, 145910, 146941, 149216, and

163414, the defense attempted to ask questions regarding specific types of

mitigation . Again, "asking potential jurors how they would weigh specific
mitigating circumstances would ignore well-settled precedent, that it is

impermissible to ask voir dire questions designed to commit jurors to certain

theories ." Sherroan, 142 S-W.3d at 13-14 . Disqualification was not warranted.
,. . Juror 149359 had previously worked in the United States Attorney's",

Office, was married to a. Louisville Metro Police Department officer, and she

currently worked for a law firm. "[Tjhe party alleging bias bears the burden of

proving that bias and the resulting prejudice." Cook v. Commonwealth, 129

S.W.3d 351, 357 (Ky. 2004) . Once this is shown, "(t)he court rmust weigh the

probability of bias or prejudice based on the entirety of the juror's responses

and demeanor." Shane, 243 S.W.3d at 338. This juror's previous employment,

her husband's employment, and her current employment, standing alone, are

connections too tenuous to constitute the "close relationship" required to

presume bias or prejudice. Montgomery v. Commonwealth, 819 S.W.2d 713

(Ky. 1991) ; but see Marsch v. Commonwealth, 743 S.W. 2d 830, 833 (Ky. 1987)

(close relationship existed where two potential jurors were married to victim's

second and third cousins, visited funeral home to express condolences to

victim's family, and one juror had known victim since he was a . teenager and

worked with him in church) . Because the close relationship was not

established, Juror 149359 could be qualified, and disqualification was not

warranted .

Jurors 161911 and 151644 said they could not impose the death

penalty. As a result, the judge struck them, which Appellants claim was
improper . However, "[dleath qualification ofjurors is not unconstitutional ."

Caudill v. Commonwealth, 120 S .W.3d 635, 678 (Ky. 2003) . "These jurors were

properly disqualified .

B. Issues Raised Solely by Derek Edmonds

1. Comparison to Jesus in Guilt Phase Closing Argument and
Examples of Worse Cases in Penalty Phase Closing Argument

Edmonds claims it was error for the trial court to sustain objections to

his attempts to compare himself to Jesus being put to deatti on the cross and

to "worse" cases like Jack the Ripper, Jeffrey Dahmer, and John Wayne Gacy .

As to the comparison to Jesus, Edmonds claims his First Amendment

right to free exercise of religion was violated . Yet, given the direction his

attorney was headed, and the fact that this was a closing arguriicnt rather than

a church service, it is clear that he did not wish to engage in any sort of

religious worship or ceremony, and thus this was clearly not an issue of the

free exercise of religion .

Generally, "(iit is unquestionably the rule in Kentucky that counsel has

wide latitude in making opening or closing statements ." Brewer v.

Commonwealth , 206 S.W.3d 343, 350 (Ky. 2006) . However, trial courts retain

the sound discretion to limit closing arguments when necessary. While it may

not have been necessary to restrict Edmonds' counsel as to these topics, there

is also little conceivable benefit to Edmonds from such comparisons. Certainly,

it is not likely that their omissions had a substantial effect on the verdict. If
 error, it was harmless.

2. Full Access to Hall's Psychiatric Condition

Edmonds claims that he was improperly denied full access to Hall's

psychiatric records and an independent psychiatric examination, and that he

therefore could not adequately impeach Hall with his own psychiatric history.

Even though many of Hall's psychiatric records were contained in juvenile

records that the trial court ruled were discoverable by the co-defendants,

Edmonds objects that lie was not permitted to delve even further into Hall's

psychiatric history. However, after a review of Hall's records that Edmonds did

have, this Court finds it would have been unnecessary to compel the disclosure

of additional records.

Kentucky follows the majority rule that "a criminal defendant, upon a

preliminary showing that the records likely contain exculpatory evidence, is

entitled to some form of pretrial discovery of a prosecution witness's mental

health treatment records that would otherwise be subject to an `absolute'

privilege ." Co mmonwealth v. Barroso, 122 S.W.3d 554, 561 (Ky. 2003) .

If the psychotherapy records of a crucial prosecution witness
contain evidence probative of the witness's ability to recall,
comprehend, and accurately relate the subject matter of the
testimony, the defendant's right to compulsory process must
prevail over the witness's psychotherapist-patient privilege . Upon
a preliminary showing . . . the witness's psychotherapy records are
subject to production for an in camera inspection to determine
whether the records contain exculpatory evidence, including
evidence relevant to the witness's credibility.

Id. at 563 .
 In Barroso , however, this Court was cognizant. that a "more restrictive

test is required to preclude `fishing expedition[s] to see what may turn up.'"

(quoting Bowman Dairy Co. v. United States , 341 U .S . 214, 221 (1951)) .

Therefore, an " in camera review of a witness's psychotherapy records is

authorized only upon receipt of evidence sufficient to establish a reasonable

belief that the records contain exculpatory evidence ." Id . at 564. After

examining Hall's juvenile records in camera-which contained some of his

psychiatric records that were five to ten years old-the trial judge found that. an

in camera review of the rest of his records was not warranted. The judge

specifically found that the information in Hall's juvenile file from years before

the current case was not sufficient evidence under Barroso to establish the

required reasonable belief that the records contain exculpatory evidence .

A person's credibility is not in question merely because he or she is
receiving treatment for a mental health problem. To subject every
witness in a criminal prosecution to an in camera review of their
psyciiotii%rapis is records vvould be the invasion of privacy which
the psychotherapist-privilege is intended to prevent.

Id. at 563 (quotation marks and citations omitted) . Under these

circumstances, the trial judge did not abuse her discretion .

As to Edmonds' request for an independent psychiatric examination of

Hall pursuant to CR 35.01-made applicable to criminal proceedings by RCr

13 .04, St. Clair, 140 S.W.3d at 542-"good cause" must be shown to warrant

such an examination. For the same reasons that the trial judge did not find

the required reasonable belief that Hall's psychiatric records contained
 exculpatory evidence, the trial judge did not . abuse her discretion by declining

to order an independent. psychiatric examination .

3. Competency to Stand Trial and Serious Mental Retardation

Edmonds also claims that he should have been found incompetent to

stand trial and found to be mentally retarded so as to exclude the possibility of

the death penalty. Before the trial in this case, the trial court conducted a

competency hearing. Dr. Peter Schilling testified for the defense and Dr.

Steven Simon testified after conducting a competency evaluation at the

Kentucky Correctional Psychiatric Center ("KCPC") at the court's request.

Dr. Schilling conceded that Edmonds recorded a full-scale I .Q. score of

71 on the test he administered, and that he had previously scored 71 and 73.

He also conceded that Edmonds achieved scores indicative of malingering.

Dr. Simon testified that Edmonds scored 66 on the test administered at

KCPC but that he once again achieved scores indicative of malingering.

"RCr 8 .06 and KRS 504.100 set out the legal duty to order a competency

hearing once reasonable grounds are presented which call competency into

question." Alley v. Commonwealth , 160 S.W.3d 736, 739 (Ky. 2005) . The trial

judge did this. At this hearing, however, "[t]he burden is on the defense to

prove a defendant incompetent by a preponderance of the evidence ." Id. "In

Kentucky, the standard of competency is whether the defendant has a

substantial capacity to comprehend the nature and consequences of the

proceedings against him and to participate rationally in his defense." Id. ; see
 also KRS 504 .060. The trial judge noted this standard in reaching her

decision.

"The mere fact that the trial judge accepted the testimony of one of the

doctors as more credible than-the other, has been found to be permissible and

allows the judge to make a finding regarding competency ." Alley, 160 S .W.3d

at 739 . The situation here is on point with Alley, where

the trial judge had the authority to accept the medical evidence
that he believed was most credible and convincing . He made
extensive findings of fact with regard to the evidence and
determined that. Alley had failed to provide sufficient evidence to
demonstrate that he was incompetent: to stand trial in light of the
evidence to the contrary. Our review of the record indicates that
the decision of the trial judge was supported by substantial
evidence and was not clearly erroneous.

Id . Here, the trial judge weighed the two evaluations acid found that Edmonds

had been malingering . She did not abuse her discretion by finding him

competent to stand trial at that time .

Additivliaiiy, EdliVlld~ argues he should hwr- been found mentally

retarded and thus been exempt from the death penalty under Atkins v.

Vir mia, 536 U.S. 304 (2002), and KRS 532 .140. Because Edmonds did not

receive the death penalty, this issue is moot.

4. Improper Sentence for First-Degree Sodomy

The trial court's Judgment of Conviction and Sentence lists Edmonds'

sentence for first-degree sodomy as life without benefit of parole. The jury,

however, recommended a sentence of life, which is also reflected in the
 Judgment on Jury Trial entered just after the trial but before final sentencing .

The Judgment of Conviction and Sentence gives Edmonds an impermissible

sentence for first-degree sodomy . In this case, the sodomy was a Class A

--felony, KRS 510 .070, the penalty range for which is 20 to 50 years' or life

imprisonment, KRS 532 .060(2) . This issue was not, raised by Appellant, but

has been revealed in review of the record . To the extent that the final

Judgment reflects an impermissible sentence, it must be reversed and

remanded to the trial court, for entry of an amended judgment reflecting the life

sentence fixed by the jury and contained in the trial judgment .

C. Issues Raised Solely by Tyreese Hall

1. Initial Confession and Failure to Readvise of Miranda Rights

Hall claims his two statements to police confessing to the attack should

have been suppressed . Hall gave his first statement to police on April 6, 2004,

the day of the attack, after he signed a waiver of his Miranda rights. On April

16, 2004, he was arraigned and appointed counsel, who then, as he describes

in his brief, "asserted" his Miranda rights

Three and one-half months later, Hall initiated telephone contact with

the police and gave a second statement . Detective Wflliamson told Hall, "When

I originally brought you in, I advised you of your rights. Do you remember

that?" Hall said, "Yes ." Detective Williamson then said, "So you're waiving

those rights and the right to an attorney, and you've been arraigned on this

assault charge, right." Hall again answered, "Yes."
 However, the trial court entered an order finding that Hall was "a

seriously mentally retarded defendant as defined by KRS 543 .130 and . . .

meets the criteria for a retarded person tinder Atkins v. Virginia," and that he,

was excluded from the death penalty.

As for his first statement to police, Hall argues that under the totality of

the circumstances approach, his serious mental retardation rendered his initial

confession involuntary and it should have been suppressed . "The Due Process

Clause of the Fourteenth Amendment prohibits the admission of involuntary

confessions : `[if the defendant's] will has been overborne and his capacity for

self-determination critically impaired, the use of [the] confession offends due

process.' " Bate _ y Commonwealth, 1. 94 S.W. 3d 296, 300 (Ky. 2006) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)) (alterations in

original) . "The voluntariness of a confession is assessed based on the totality of

the circumstances surrounding the making of the confession ." Mills v.

Commonwealth , 996 S .W.2d 473, 481 (Ky. 1999).

The Commonwealth bears the burden of establishing voluntariness by a

preponderance of the evidence . Bailey, 194 S.W .3d at 300. Voluntariness first

turns on the presence or absence of coercion by police . See id. (" `[C]oercive

police activity is a necessary predicate to the finding that a confession is not

"voluntary" within the meaning of the Due Process Clause of the Fourteenth

Amendment.'") (quoting Colorado v. Connellv, 479 U.S. 157, 167 (1986)) . But

the " `ultimate test' of the voluntariness of a confession" is whether " `the
 confession [is] the product. of an essentially free and unconstrained choice by

its maker[ .Y" Bailey, 194 S.W.3d at 300 (quoting Schneckloth, 412 U .S. at

225) .

In undertaking the voluntariness assessment, " `both the characteristics

of the accused and the details of the interrogation are considered.' " Bailey,

194 S.W.3d at 300 (quoting Schneckloth, 41 2 U .S . at 226) .

When examining the characteristics of the accused, reviewing
courts consider such factors as age, education, intelligence, and
linguistic ability. . . . Factors relevant to a characterization of the
interrogation include the length of the detention, the lack of any
advice to the accused concerning his constitutional rights, the
repeated or prolonged nature of the questioning, and the use of
overtly coercive techniques such as the deprivation of food or sleep,
or the use of humiliating tactics.

Bailey, 194 S.W.3d at 300-301 (citation omitted).

Finally, "[t]his Court has succinctly summarized the relevant inquiry to

determine voluntariness as follows: `(1) whether the police activity was
110jeltivel