Young v. Commonwealth

WINTERSHEIMER, Justice,

concurring in part and dissenting in part.

I fully concur with the majority opinion in affirming the convictions of Thomas and Morbley. However, I must respectfully dissent from that part of the opinion which reverses the conviction as to Young because I believe the instruction as to aggravating circumstance was correct.

Although the learned majority opinion presents a plausible argument for reversal, it is not convincing. Skinner v. Commonwealth, Ky., 864 S.W.2d 290 (1993), a burglary case, notes that an accomplice may be liable for a confederate’s aggravated offense. Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977), a robbery case, also supports the proposition that an accomplice may be liable for the aggravated offense of a confederate, although having no knowledge of the aggravating circumstance. See also Commonwealth v. Yeager, Ky., 599 S.W.2d 458 (1980), which, involves an accomplice to a robbery.

Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), a case involving a felony murder death penalty for persons who did not kill or intend to kill victims but who had a major personal involvement in the events so as - to show a reckless indifference to human life was not held to violate the Eighth Amendment. The case involved the sons of an escaped *173prisoner who had been convicted of murdering a prison guard.

Perhaps it is necessary for the legislature to include an aggravating circumstance in KRS 532.025(2) applicable to one who hired, procured or directed another to commit murder.