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AS MODIFIED : DECEMBER 18, 2003 RENDERED : AUGUST 21, 2003 TO BE PUBLISHED

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2001-SC-0192-MR MELVIN LEE PARRISH

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APPELLANT

V.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE LISABETH HUGHES ABRAMSON, JUDGE NO. 97-CR-3022 APPELLEE

COMMONWEALTH OF KENTUCKY

OPINION OF THE COURT BY JUSTICE WINTERSHEIMER AFFIRMING

Parrish was found guilty by a jury of intentionally murdering his cousin, Rhonda Allen, and her ten-year-old son, LaShawn, on December 5, 1997 . He was also found guilty of attempting to murder Rhonda's five-year-old son, Jonathan. These crimes were committed in the course of a robbery. He was sentenced to death for the murder of the child ; life without parole for the murder of the female victim ; 20 years enhanced to life for the attempted murder of the second child, and 20 years enhanced to 50 years for the robbery. At trial, there was evidence introduced that Parrish and others had spent the daytime of the murders smoking crack cocaine. The evidence indicates that Parrish asked his cousin to return the money he had paid her earlier that day for crack cocaine. When she refused, he stabbed her multiple times and took the money. The stabbing occurred in the living room of her apartment and Parrish then went to a back bedroom

where he assaulted the children . One child survived and was able to testify that Parrish had attacked him and his brother. In a taped statement made to police the morning after the murders, Parrish admitted stabbing Rhonda, "I asked her twice (to borrow back the money) and she said no and I guess I killed her." However, he denied doing any harm to the children . The prosecution introduced evidence at trial from a jailhouse informant who testified that while he was incarcerated with Parrish, the accused told him that he had committed the acts and intended to avoid conviction by faking insanity. Upon conviction, Parrish filed this appeal . He raises twelve issues, each of which we have carefully reviewed for any error consistent with KRS 532 .075(2). I. Valid Indictment Parrish argues that the trial judge erred by conducting a trial and imposing sentences upon him on the counts of the indictment for which he was not charged. Specifically, he contends that there is no endorsement of the clerk showing that the indictment was returned in open court. Further, that the statement on the indictment, "True Bills Counts 1-5", makes it unclear whether the grand jury indicted him on counts one through five or one and five. He raises this issue pursuant to RCr 8 .18 . We find this argument to be without merit . No motion was made before trial alleging any defects in the indictment. Now, on appeal, Parrish solicits this Court for a partial waiver of RCr 8.18 which requires raising defects in the indictment before trial . He has waived any defects in the indictment by failing to bring them to the attention of the trial judge . It should be remembered that at arraignment, Parrish waived a reading of the indictment and entered a plea of not guilty . It has long been held by this Court that an indictment is sufficient if it informs the accused of the specific offense which is charged and does not mislead the accused .

Wylie v. Commonwealth , Ky., 556 S.W .2d 1 (1977). In Thomas v. Commonwealth , Ky., 931 S.W.2d 446 (1996), it was observed that it is unnecessary pursuant to RCr 6.10 to restate all the technical requisites of the crime of which a defendant is accused, if the language of the indictment, coupled with the applicable statute, unmistakably accomplishes this end result. Here, the indictment is sufficient on its face . It informs Parrish that he is charged with murder in violation of KRS 507.020 (two counts) ; criminal attempt to commit murder in violation of KRS 506.010 and KRS 507.020 ; firstdegree robbery, KRS 515 .020, and as a first-degree persistent felony offender, KRS 532.080. The indictment sets out the charges in narrative form and is signed at the end by the foreperson of the grand jury. There can be no doubt as to what charges the grand jury returned . Cf. United States v. Cotton , 535 U .S. 625, 122 S .Ct. 1781, 152 L .Ed.2d 860 (2002) . There was no error. II . Religious Beliefs of Jurors Parrish asserts that the trial judge committed error by inquiring into the religious beliefs of prospective jurors during individual voir dire. We disagree . It was not error to ask prospective jurors if they held any moral, religious, spiritual or personal beliefs that would interfere with their service as jurors on this death penalty case . No juror was questioned as to what, if any, religious denomination they were affiliated with . They were only asked if they had a religious or spiritual affiliation and what that organization's position was and whether they agreed with it. The questions were general in nature and had been tendered by defense counsel . There was no objection by Parrish . Decisions made during voir dire are generally regarded as trial strategy . Hodge v. Commonwealth , Ky., 17 S.W.3d 824 (2000).

The use of these general questions did not infringe on or permit the improper use of peremptory strikes . There is no connection to Batson v. Kentucky , 476 U .S. 79, 106 S.Ct. 1712, 90 L .Ed.2d 69 (1986). The selection process was proper and consistent with RCr 9 .36 . There was no violation of any provision of either the federal or state constitutions . III . Pregnancy of Female Victim Parrish contends that the trial judge erred by admitting the statement of the medical examiner that the female victim had an intrauterine pregnancy which was discovered during the autopsy . There was no cross-examination on the subject and it was not mentioned to the jury again during the trial or sentencing procedure. Parrish cites no case law to support his argument and we find this matter to be highly speculative . There was no violation of the Kentucky Rules of Evidence. The trial judge did not abuse in any way her discretion in permitting the medical examiner to simply state, as part of his autopsy findings, that the female victim was pregnant . See English v. Commonwealth, Ky., 993 S .W .2d 941 (1999). Evidence about whom and what the victim was prior to death is properly admissible . See Templeman v. Commonwealth , Ky., 785 S .W .2d 259 (1990); Campbell v. Commonwealth , Ky., 788 S .W.2d 260 (1990) ; McQueen v. Commonwealth , Ky., 669 S.W.2d 519 (1984). The pregnancy of the female victim was not sensational or shocking or likely to induce any undue sympathy. The probative value of the evidence was not substantially outweighed by the danger of undue prejudice . See KRE 403 . Parrish was not denied a fair trial or due process of law under either the federal or state constitutions .

IV. Corroborating Witness Parrish claims that the trial judge erred by allowing a corroborating witness, a jailhouse informant, to testify at trial because his testimony was inherently suspect and its reliability should have been the subject of a cautionary admonition . Young v. Commonwealth , Ky., 50 S.W .3d 148 (2001) considered a similar question and held that the credibility of witnesses and the weight to be given sworn testimony are matters for the jury to decide . Here, the jury decided and accepted the evidence . Parrish crossexamined the witness . There was no error. V. EED Instruction Parrish argues that the trial judge erred by refusing to instruct on extreme emotional disturbance with respect to the child murder victim. He claims that there was sufficient evidence to justify an instruction on this theory . Defense counsel tendered instructions at trial on homicide that included the mitigating circumstance of extreme emotional disturbance as to both murder victims . Even if there had been a triggering event as required for an EED instruction as to the female victim, that event was interrupted and there would have been no triggering . event as to the child victim. Consequently, the trial judge was correct in not instructing the jury as to the existence of an EED factor as to the child victim . The jury did not find the existence of EED as it relates to the adult victim and if EED did not exist to mitigate the murder of the female victim, then no EED would exist to mitigate the murder of the child . The evidence indicates that Parrish asked the female victim twice if he could borrow $500 and she refused . He then went into the kitchen to get a knife and stabbed her while she sat on the couch in the living room . He admitted that he did not stop

stabbing her even when she told him he could have the money. Parrish told police that there had never been an argument about it. He also admitted that the children knew him. Parrish told the police that he did not remember stabbing the children but he told the jailhouse informant that he did stab them, stating that he stabbed one of the boys once and then decided to keep on stabbing him . The children were in a bedroom and their mother was dying on the living room floor. Extreme emotional disturbance is defined as follows: Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be . McClellan v. Commonwealth , Ky., 715 S .W .2d 464 at 468-469 (1986). Defense counsel argued that Parrish was mad at the adult victim to the point where he killed her and counsel claimed that was enough to establish EED. The trial judge was unconvinced. The trial judge properly stated that a defendant cannot create his own EED and that one does not get to EED because of a victim's reaction to a crime. Resistance by a victim to a robbery does not provide a reasonable explanation for an emotional state so enraged, inflamed or disturbed so as to cause a perpetrator to kill the victim . Hodge , supra. The trial judge correctly stated that not having rent money was not a reasonable excuse for killing and that there was no triggering event . Nevertheless, the trial judge correctly referred to Spears v . Commonwealth , Ky., 30 S.W.3d 152 (2001), as authority for allowing the jury to decide whether there was EED . The assault

on the two children in a separate room where they were watching television could not be related to a triggering EED event. The events here indicate that the adult victim told Parrish he could have the money and thus any possible triggering event was either interrupted or over. There was absolutely no reason to go into another room and stab two innocent minor children . It should be observed that Parrish did not kill the one-year-old child who was laying next to his mother on the couch. There was no federal or state constitutional violation and there was no error of any kind . VI . Penalty Phase Instructions/Judicial Admissions Parrish complains that the penalty phase instructions for the child murder victim were improper because the phrase "engaged in the commission of a robbery" was vague and in addition, the Commonwealth admitted in closing argument that the child was killed so he could not serve as a witness to identify Parrish . He asserts that the penalty phase instructions were flawed . Parrish maintains that the prosecution made a judicial admission in the guilt phase argument to the effect that Parrish murdered the child for the sole reason that he would not be able to identify him. He asserts that that was a judicial admission and it would be manifestly unfair to allow the prosecution to turn around and argue in the penalty phase that an aggravator was Parrish's commission of a robbery. Part of the objection by defense counsel at trial was on the grounds of vagueness . The trial judge overruled the defense motion because she did not find the language ambiguous and because Bowling v. Commonwealth , Ky., 942 S.W .2d 293 (1997), settled the question of sequence.

The evidence indicates that all the murdered victims were killed during the commission of a robbery. Here, there were two aggravating circumstances proven . All that is needed is one. Simmons v. Commonwealth , Ky., 746 S .W .2d 393 (1988). Thus, this argument is without merit. The complained of remark was only a small portion of the closing argument in which the prosecutor recited the proposition that in the course of robberies the victims are often murdered . This part of the argument is not uncontroverted evidence such that no other reasonable conclusion could be drawn therefrom . There was no judicial admission . A prosecutor may comment on tactics, evidence and the falsity of a defense proposition in closing argument. The focus of appellate review is on the overall fairness of the trial and not the culpability of the prosecutor. Slaughter v. Commonwealth , Ky., 744 S .W .2d 407 (1987). The alleged prosecutorial misconduct is not so serious as to render the trial fundamentally unfair. Reversal is not required . Partin v. Commonwealth , Ky., 918 S.W .2d 219 (1996). There was no error. VII . Language of Statute Not Vague As noted in the previous argument, Parrish continues to claim that the phrase "engaged in the commission of . . . robbery in the first degree" is unconstitutionally vague as applied in this case . Parrish resumes his argument that one of the two aggravating circumstances as to the adult and child victims was unconstitutionally vague and therefore void . The complained of language in KRS 532.025(2)(x)(2) states as follows : The offense of murder or kidnapping was committed while the offender was engaged in the commission of arson in the first degree, robbery in the first degree, burglary in the first degree, rape in the first degree, or sodomy in the first degree.

The aggravating circumstance is not vague and has been properly applied in this case. There have been a number of cases rendered considering this issue including Bowling , supra . Parrish claims that Bowling does not answer the question, arguing that in that case, the person murdered was also the person robbed . In Hodge, it was made clear that this aggravating circumstance applied to victims other than the person robbed . The statute in question provides the sentencing authority with a specific and detailed formula which is, simply stated, "engaged in the commission of a robbery in the first degree ." The United States Supreme Court has adopted a common sense rule to determine if aggravating circumstances are unconstitutionally vague. That court noted that as long as the aggravators provide common and understandable terms to the jury, they are not unconstitutionally vague . See Tuilaepa v. California, 512 U .S . 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Here, it is inconceivable that the jury, after hearing all the evidence, was misled in any way. Vlll . Multiple Murders Parrish argues that the findings of the jury that the double murders were intentional and resulted in multiple deaths are unreliable because the jury may have relied on the death of the unborn child in making these findings. It may be recalled that the medical examiner testified that during the autopsy on the adult female victim, he discovered that she was pregnant at the time of her murder. Parrish concedes that the subject was not mentioned again to the jury during the trial or the penalty phase . However, he now argues that there is a significant probability that the jury relied on this improper evidence in reaching its decision as to the sentence . The instruction he requested, that the jury could not consider any aggravating circumstance not listed, was not given. The trial judge did not agree that the pregnancy of the adult victim was an

aggravating factor and determined that the requested instruction would be misleading . We agree . The trial judge did not abuse her discretion, and her decision and ruling were not arbitrary, unreasonable, unfair or unsupported by sound legal principles . See English , supra . There is no evidence of any nature to indicate that the jury considered the fact that the adult victim was pregnant . The argument presented by Parrish is entirely speculative . Here, Parrish was found guilty by the jury of two counts of intentional murder and any conceivable error would be totally harmless . In any event, the jury may consider evidence about the victim and about the impact of the murder on the family of the victim, even if it is not listed as a statutory aggravating circumstance . Cf. Payne v. Tennessee , 501 U.S . 808, 111 S.Ct. 2597, 115 L . Ed .2d 720 (1991). There was no error. IX. Reasonable Doubt Instruction The penalty phase instructions did not coerce or mislead the jury into believing that it must impose the death penalty. Parrish contends that the trial judge erred by instructing the jury on reasonable doubt as to the propriety of death as a punishment . He claims that the combined effect of penalty phase instructions No. 6 and 7 improperly invaded the province of the jury and created a substantial probability that the jury believed it should impose the death penalty. We find this argument to be without merit . The abstract analysis urged by Parrish is logically flawed . The mechanics of the argument resemble a tautology in that it is composed of simpler statements in a fashion that makes it seem true whether the simpler statements are true or false .

The two instructions related to this issue are as follows : INSTRUCTION NO. 6 You do not have to sentence the Defendant, Melvin Parrish, to death even if you find that one or both of the aggravating circumstances stated in these Instructions were proven beyond a reasonable doubt. You do not have to sentence the Defendant, Melvin Parrish, to a term of imprisonment for life without benefit of probation or parole, or to a term of imprisonment for life without benefit of probation or parole until he has served a minimum of 25 years of his sentence even if you find one or both of the aggravating circumstances stated in these Instructions were proven beyond a reasonable doubt, INSTRUCTION NO. 7 If you have a reasonable doubt as to the truth or existence of an aggravating circumstances listed in Instruction Nos . 3 or 4, you shall not make any finding with respect to it. If upon the whole case you have a reasonable doubt whether the Defendant should be sentenced to death, you shall instead fix his punishment at a sentence of imprisonment . These instructions do not violate the statutory system, nor do they invade the province of the jury. Instruction No . 7 followed the one in 1 Cooper, Kentucky Instructions to Juries (Criminal)

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