Morris v. Commonwealth

WINTERSHEIMER, Justice,

dissenting.

I respectfully dissent. I do not believe the defendant has proved that the trial judge abused his discretion in determining that the evidence was insufficient to require individual voir dire examination of the jury. Although it may be true that this was not a model trial or a textbook example of how to examine prospective jurors, I do not believe there was any fundamentally unfair prejudice to the defendant. It is the purpose of this Court to review error and not to retry cases. The question we must consider is whether the allegations of error are reversible.

The prosecution did not improperly solicit sympathy for the victim or his family. The defendant complains that the murder victim was referred to as a hero and the prosecution described the victim as “a man who came downstairs to defend his family and do what any decent human being would do....” The victim’s mother and father were 95 and 102 years old respectively, and the mother was an invalid. Their home had been broken into by two armed burglars, and the murder victim came downstairs armed with a rifle and was killed in an exchange of gunfire. It is difficult to understand why the statements by the prosecutor in commenting on this evidence amounts to reversible error. The comments and conduct of any prosecutor must be viewed in the context of the total trial and what effect it has on the fairness of that trial. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Here the evidence of the defendant’s guilt was overwhelming. There was no prosecu-torial misconduct which required reversal.

Morris received a fundamentally fair trial. There is no perfect proceeding, but all that is required is fairness. Michigan v. Tucker 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).