Public-domain · open source
OpenJurist

882 S.W.2d 111

Bussell v. Commonwealth

Kentucky Supreme Court

Decided May 25, 1994

Kentucky Supreme Court · decided 1994-05-25

Relies on Sanborn v. Commonwealth · Ice v. Commonwealth · Matthews v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1994-05-25

How this case has been cited

Cited by 48 later decisions — most recently December 2017 · most notably State v. Harrod (2001), Tamme v. Commonwealth (1998)

1 federal appellate · 47 state decisions

260199420002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

STEPHENS, Chief Justice,

¶1dissenting.

¶2Respectfully, I dissent.

¶3In Tamme v. Commonwealth, Ky., 759 S.W.2d 51 (1988), this Court announced a simple rule, unconditionally stated, that could not have been more unambiguous: “Further-move, we hold that in capital cases in which the trial commences after the effective date of the finality of this opinion, the word ‘recommend’ may not be used with reference to a jury’s sentencing responsibilities in voir dire, instructions or closing arguments.” Id. at 53. (Emphasis added). ' By its treatment of the Tammeviolation in this case as merely “technical,” the majority view obscures well-defined waters and encourages an impression that this Court does not mean what it says.

¶4In pre-Tamme cases,1 the one thing certain was that there was no certain line. Hence, the Tammemandate. The soundness of the Tammeprohibition lies in the total absence of any competing consideration that weighs in favor of use of the word, “recommend.” In fact the only possible value in using the word is to accomplish, in some measure, the forbidden effect. On the other side, the constitutional importance of foreclosing any possibility of diminution of a jury’s sense of sentencing responsibility in a capital case was carefully developed in Tammeand should be patently clear.

¶5Reversal of a death sentence based on this issue should not turn on whether the word “fix” outnumbers the word “recommend” in the jury instructions. Nor is this a matter of simple semantics. The majority contends that appellant was not prejudiced by the “two isolated instances” where the jury instructions told the jury that it would “recommend” a sentence for the defendant. Yet, there was the word “recommend,” in black and white, on instructions that were actually carried into the jury room to assist the jury in deliberation. Without special insight, I cannot comfortably claim that no one juror was not influenced by the idea that the jury was only “recommending” the defendant be put to death. That was the point of the rule in Tamme. I respectfully dissent in its demise.

¶6STUMBO, J., joins this dissenting opinion.

¶7. Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984); Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985); Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985); Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1986); Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988) and Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988).

*117STUMBO, Justice,

¶8dissenting.

¶9Respectfully, I must dissent. I concur fully in the dissent prepared by Chief Justice Stephens, but I also would hold that the prosecution was permitted to improperly introduce evidence for the sole purpose of eliciting sympathy for the victim, thereby denying the appellant a fair trial and objective sentencing. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988); Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984); and Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989).

¶10STEPHENS, C.J., joins in this dissent.

/882/sw2d/111 · .json · Public domain