Carlos Ordway v.Commonwealth,
2010-SC-000783(Death Penalty)
To be
Published.
Opinion
by Justice Venters, all Concur.
While
riding in a moving car, Ordway shot and killed the driver and the backseat
passenger and claimed he did so in self-defense. He was convicted of two counts of murder and
sentenced to death.
On
direct appeal, the Supreme Court considers all issues regardless of
preservation when a death sentence is imposed without the palpable error
limitations of RCr 10.26.
Reversal was warranted because a
detective testified about how he thinks persons who legitimately act in
self-defense typically behave; e.g., they put their weapon down, call the
police and wait for police to arrive, and that they cooperate fully with
police. The detective thereafter
testified that Ordway did not act like those who had lawfully protected
themselves but acted like those who fabricate a self-defense claim. This was error because it was inadmissible
opinion testimony regarding how an innocent person would act and permitted the
detective to authoritatively suggest how an innocent person would act and that
Ordway did not act as an innocent person would.
Error also occurred when the
detective told the jury that after Ordway was arrested, he went to interview
him at the jail and Ordway said “I’ve got fuckin’ nothing for you.” Supreme Court found the statement was made
prior to Miranda warnings being given and thus there was no assurance,
via Miranda, that the statement would not be used against him. However, Supreme Court found the statement
was irrelevant under KRE 402 and even if relevant should have been excluded
under KRE 403 due to the risk of undue prejudice, confusion of the issues, and
misleading the jury.
It was also error for the trial
court to rule that Ordway could not repeat what his alleged attackers said to
him just prior to Ordway shooting them.
Ordway testified that prior to the shooting, one attacker put a gun to
his head and said “Give it up, you know what time it is, or you’re going to
die.” Trial court ruled this statement
was inadmissible and precluded him for repeating any other statements made by
attackers. Supreme Court reiterated,
"In self-defense cases, fear by the defendant of the victim is an element
of the defense and can be proved by evidence of violent acts of the victim,
threats by the victim, and even hearsay statements about such threats, provided
that the defendant knew of such acts, threats, or statements at the time of the
encounter." Accordingly, this
statement was admissible. Supreme Court
also found that other threatening statements not on the record should be
considered in light of this on retrial.
Failure to remove a prospective
juror was also error. A juror must be
able to conform his or her views to the law and render a fair and impartial
verdict. One potential juror was the
sister of the Victim’s Advocate working with the Commonwealth’s Attorney and
the family members of the victims in this very case. This close association compels that the juror
should have been stricken for cause.
Supreme Court emphasized that a trial court should err on the side of
caution by striking any doubtful juror.
Limiting
examination of a Caucasian prospective juror about her opinion as to whether a
disproportionate number of African-Americans were subject to incarceration was
also error because the inquiry might have disclosed a disqualifying bias.
Error
also occurred when the prosecutor said to prospective jurors that they would be
required “to make a determination of whether or not the aggravating
circumstances in this case… outweighed any mitigating circumstances before you
fix[] the penalty”; and “in order to ultimately consider the maximum penalties,
you would have to find that the evidence of the aggravating circumstances
outweighed the [mitigating circumstances].”
This was error because there is no formula for weighing aggravating and
mitigating circumstances in sentencing decisions. The statute only states that the fact finder
“shall consider… any mitigating circumstances or aggravating
circumstances…”
Error
also occurred when the prosecutor asked a rebuttal witness to characterize
Ordway’s testimony regarding how long he knew the victims as “not true,” and
“not correct.” Rebuttal can be served
without paraphrasing the prior testimony and calling upon the rebuttal witness
to give his opinion as to the veracity of the testimony.
Error
also occurred when the prosecutor made an impermissible “send a message to the
community” argument during closing statements when he stated as follows:
If
you don't find him guilty beyond a reasonable doubt then he walks right out the
door . . . How many times have we
watched or read the bad news on television or in the paper and shook our heads
and thought what are they gonna do? They've got to do something. Well in this
case, the "they" is you, the jury, and I always feel compelled to
tell jurors this: don't ever let anyone put any of you on a guilt trip about
your service as a juror in this sort of a case. You see it's not your fault
you're here. It's his fault you're here. You're not doing one thing to this
defendant. This defendant has done it to himself; he's got to be responsible
for his behavior in this community.
This
argument impermissibly urged the jury to consider public opinion, and it
correspondingly applied pressure on the jury to satisfy the community
expectation.
Error
also occurred in the sentencing phase when the Commonwealth exceeded the scope
of KRS 532.055 by reciting portions of the underlying indictments corresponding
to prior convictions; reciting hearsay from police citations, criminal
complaints, and other reports and told the jury more than the elements of the
offenses. Supreme Court pointed out yet
again that evidence of prior convictions is limited to conveying to the jury
the elements of the crimes previously committed.
Contributed by Erin Yang
