Miracle v. Commonwealth

OPINION OF THE COURT

Appellant, Charles Douglas Miracle, has been convicted of murdering a Lexington, Kentucky, cab driver, John Willard. Willard was shot to death and robbed on the night of March 1, 1981. His body was found the next morning beside a road in Johnson County.

The case was tried under KRS 507.020 as a capital offense. The defense did not deny that appellant killed Willard, but maintained that he had emotional problems which impaired his mental status, reducing the level of the offense. The jury was instructed on murder during the commission of robbery in the first-degree as an aggravating circumstance. The jury was also instructed on first-degree manslaughter and second-degree manslaughter as lesser-included offenses. Appellant was found guilty of the principal charge and the jury recommended a life sentence, which the court later imposed.

Miracle appeals as a matter of right, claiming a number of errors. We have decided that this case must be reversed because many of the jurors who were on the panel from which the jury was selected were present on a previous occasion when the appellant entered a guilty plea, later withdrawn, and a number of these jurors actually served on the jury that tried him.

The sequence of events before the trial is as follows: On June 8, 1981, appellant entered a plea of guilty to capital murder, unconditionally, with no offer from the Commonwealth to recommend a sentence less than death, nor suggestion from the *721court that such would occur. On July 6, 1981, appellant moved to withdraw this first plea of guilty. On August 4, 1981, six days before the trial, against the advice of counsel and in the presence of many of the panel who later tried him, appellant again went through the entire guilty plea procedure, including all the incriminating admissions attendant to it. On August 10, 1981, appellant once again withdrew his guilty plea and proceeded to trial. The jury was selected. The prosecutor called to the court’s attention that appellant had entered a guilty plea in the presence of this jury panel and the court stated: “I know, but I’m not going to disqualify the panel.”

The Commonwealth argues that any error in seating these jurors was waived by failure to make individual challenges for cause. The court’s remarks at the outset of voir dire were sufficient to indicate how it would rule on this matter.

The most recent Kentucky case on the subject, Tipton v. Commonwealth, Ky., 640 S.W.2d 818 (1982), reversed a conviction because the prosecutor repeatedly elicited testimony regarding a plea of guilty of a co-in-dictee in a robbery case. In Tipton we stated:

“... As this court made clear in Parido v. Commonwealth, Ky., 547 S.W.2d 125 (1977), quoting Martin v. Commonwealth, Ky., 477 S.W.2d 506 (1972), ‘It has long been the rule in this Commonwealth that it is improper to show that a co-indictee has already been convicted under the indictment.’ To make such a reference and to blatantly use the conviction as substantive evidence of guilt of the indictee now on trial is improper.... ”

The Commonwealth does not dispute the general principle that it is error to bring to the jury’s attention that a defendant’s guilty plea was previously entered and withdrawn. Oliver v. United States, 202 F.2d 521 (6th Cir.1953); Pharr v. United States, 48 F.2d 767 (6th Cir.1931). But the Commonwealth contends that it was harmless error in this case because the appellant did not contest the killing. This begs the point. The point was whether the killing that took place should be punished as capital murder or as some lesser degree of homicide.

The fact was that many of these jurors knew that appellant had pleaded guilty to murder as charged. Some had heard the accused admit to the additional information spread upon the record at the time such a guilty plea is taken — information that dispelled any doubt about the mental status of the accused. This goes far beyond merely hearing comment on the withdrawn plea, which this court has already ruled improper.

In this case, even if we were to assume that reversible error had not already been committed by the manner and extent to which the jury was made aware of the withdrawn plea, the prosecutor’s closing argument removed all doubt. The prosecutor exceeded the bounds of propriety when he expounded on the guilty plea in closing argument. The judge ruled at the outset of the case that the accused’s guilty plea should not be considered as evidence, or given any weight against him, and admonished the jurors accordingly during voir dire. He questioned the jurors as to whether they could disregard having heard it. But in closing argument, the prosecutor made sure that the jurors would remember the guilty plea and consider it against the accused, in these words:

“He entered a plea; we voir dired on that as to whether you had heard it; I think some of you did. He changed that plea. Even as late as last Friday he changed that plea. Then Monday morning we go into trial, this trial, and we talk about on voir dire the difference between the penalty phase and the guilty phase if the evidence is there. So I’m kind of starting to wonder in my mind is Doug Miracle so unstable or is Doug Miracle kind of maybe like crazy like a fox?”

Defense objected and was overruled. This was reversible error.

We will not discuss the other claims of error, which we do not consider substantial enough to warrant reversal.

*722The judgment of the Johnson Circuit Court is reversed and the case remanded to the circuit court for a new trial.

STEPHENS, C.J., and AKER, GANT, LEIBSON and STEPHENSON, JJ., concur. LEIBSON, J., files a separate concurring opinion. WINTERSHEIMER, J., dissents and files a dissenting opinion.