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