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Full Opinion
Michael D. ST. CLAIR, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
*523 Donna L. Boyce, Appellate Branch Manager, Department of Public Advocacy, Julie Namkin, Assistant Public Advocate, Frankfort, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, David A. Smith, Tami Allen Stetler, Brian T. Judy, Assistant Attorneys General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
OPINION OF THE COURT
I. INTRODUCTION
A Bullitt Circuit Court jury found Appellant, Michael D. St. Clair, guilty of murdering Frances C. Brady. At the subsequent capital sentencing proceeding, the jury found the presence of an aggravating circumstance and fixed Appellant's punishment at death. The trial court entered judgment in accordance with the jury's verdict, and Appellant now brings this matter of right appeal, KY. CONST. § 110(2)(b); KRS 532.075(1), in which he asserts fifty-eight (58)[1] claims of error. After a review of the record, we affirm Appellant's Murder conviction, but reverse *524 his death sentence and remand the case for the trial court to conduct a new capital sentencing phase because the trial court's instructions erroneously failed to permit the jury to consider a sentence of life without possibility of probation or parole ("LWOP").
II. FACTUAL BACKGROUND
In September 1991, while he was awaiting final sentencing for two (2) Oklahoma state Murder convictions, Appellant escaped from a jail in Durant, Oklahoma, accompanied by another inmate, Dennis Gene Reese ("Reese"). The two men fled from the facility in a vehicle a pickup truck stolen from a jail employee and, when that truck soon ran out of gas, stole another pickup truck, a handgun, and some ammunition from the nearby home of Vernon Stephens ("Stephens") and fled Oklahoma for the suburbs of Dallas, Texas. Appellant's then-wife, Bylynn, met the men in Texas and brought them money, clothing, and other items. When Reese was subsequently arrested several months later in Las Vegas, Nevada, he confessed to his involvement in an ensuing crime spree.
According to Reese, after hiding out in Dallas for a few days, the men: (1) boarded a Greyhound bus bound for the Pacific Northwest but disembarked in Colorado, where Appellant kidnapped a man, Timothy Keeling ("Keeling"), and took his vehicle again, a pickup truck and Appellant and Reese began driving back towards Texas; (2) while driving through New Mexico, but approaching the Texas border, Appellant used the stolen handgun to execute Keeling in the desert; (3) the men then drove Keeling's pickup truck to New Orleans, Louisiana, for a brief time and then drove north though Arkansas and Tennessee before ending up in Hardin County, Kentucky, where Appellant kidnapped another man, Frances C. Brady ("Brady") and took his vehicle another pickup truck; (4) the men then set fire to Keeling's pickup truck in order to destroy any incriminating evidence and Appellant used his handgun to execute Brady in a secluded area of Bullitt County, Kentucky; (5) shortly thereafter, when Kentucky State Trooper Herbert Bennett ("Trooper Bennett") initiated a traffic stop of Brady's vehicle, which Appellant and Reese were then driving, Appellant fired shots from his handgun that struck Trooper Bennett's cruiser; and (6) during an ensuing flight initially in Brady's pickup and subsequently on foot Reese was able to split away from Appellant and had no further contact with him prior to his arrest.
In February 1992, a Bullitt County Grand Jury returned an indictment that charged that "[o]n or about the 6th day of October, 1991, in Bullitt County, Kentucky, [Reese and Appellant] did commit capital murder by shooting Frances C. Brady with a pistol." Subsequently, the Commonwealth filed a Notice of Intent to Seek Death Penalty as to Appellant in which it stated that "[p]ursuant to KRS 532.025, the Commonwealth will introduce evidence of aggravating circumstances sufficient to warrant imposition of the death penalty, specifically that the defendant has a prior record of conviction for capital offenses[.]" Reese entered into a plea agreement with the Commonwealth and agreed to testify against Appellant. Appellant pled not guilty and his case was tried before a jury in August and September 1998.
At trial, Appellant employed an alibi defense and contended that, although he had accompanied Reese to New Orleans for a few days after their initial flight to Dallas, the men had parted ways upon their return to Dallas, and soon thereafter he returned to Oklahoma where he hid out on the farm of a family friend until shortly before he was recaptured in December 1991. Appellant denied accompanying *525 Reese to Colorado or New Mexico and further denied that he had ever been in Kentucky. Accordingly, the primary issue for jury resolution at trial was whether Appellant or someone else specifically Reese and/or an unidentified accomplice had murdered Brady.
The Commonwealth's theory of the case was that Appellant himself shot and killed Brady. In addition to Reese's testimony, the Commonwealth proved its case through (1) Trooper Bennett's identification of Appellant as the man who had fired two shots in his direction on the night of the murder; (2) another man's identification of Appellant and Reese as being in possession of a vehicle similar to Brady's vehicle at a gas station/convenience store in the area; (3) testimony relating to telephone calls made to Appellant's friends and relatives back in Oklahoma from a payphone located at this same gas station/convenience store; (4) testimony identifying items found in Kentucky on the victim's person and in his pickup truck as similar to or the same items that Appellant's then-wife had given to Appellant and Reese when she met them in Texas; (5) a jailhouse informant, Scott Kincaid ("Kincaid"), who testified that Appellant had admitted his involvement in the crime; (6) ballistics evidence demonstrating that the same handgun could have fired the shots that killed both Keeling and Brady and damaged Trooper Bennett's cruiser and bullet composition evidence suggesting that bullets from the same box killed Keeling and Brady; and (7) testimony to the effect that Appellant's fingerprints were found both on items recovered from inside the Brady vehicle and on the outside door of the same vehicle.
At the conclusion of the culpability phase, the jury found Appellant guilty of Murder under the only Murder instruction given by the trial court:
INSTRUCTION NO.1 MURDER
You will find the defendant guilty of Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt that in this county on or about October 6, 1991, and before the finding of the Indictment herein, he, alone or in complicity with another, intentionally killed Frances C. Brady.[2]
The case then proceeded to a capital sentencing phase where the jury found the only aggravating circumstance identified in the trial court's instructions, i.e.,"the Defendant has a prior record of conviction for murder, a capital offense," and fixed Appellant's punishment at death. This appeal followed.
III. ANALYSIS
A. FAILURE TO INSTRUCT AS TO LWOP
Appellant was tried in August and September 1998 for conduct that he committed in October 1991. On July 15, 1998, new capital sentencing provisions of the 1998 General Assembly's omnibus crime legislation, HB 455, took effect, and a sentence of life without possibility of probation or parole ("LWOP") became a sentencing option in capital cases. KRS 446.110 provides: "If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced *526 after the new law takes effect." In a pretrial motion submitted by defense counsel, Appellant advised the trial court of the change in the law, stated that "[t]he accused hereby consents to application of the 1998 amendments to KRS 532.030," and moved the trial court to include LWOP as a sentencing option available to the jury if the trial proceeded to a capital sentencing phase. As was the case in Furnish v. Commonwealth, Ky., 95 S.W.3d 34, 50-51 (2002), cert. denied ___ U.S. ___, 124 S.Ct. 115, 157 L.Ed.2d 80 (2003), the trial court declined to instruct the jury regarding LWOP because it concluded that the previously available capital sentencing options were not "clearly mitigated" by the new penalties. A majority of this Court, however, subsequently reached the opposite conclusion when certifying the law in Commonwealth v. Phon, Ky., 17 S.W.3d 106, 108 (2000) ("[U]pon the unqualified consent of the defendant, a sentence of life without parole may be lawfully imposed for capital crimes committed before July 15, 1998.").
The Commonwealth now argues that although the trial court identified an erroneous basis for its ruling below, it correctly declined to instruct the jury on LWOP because the record does not contain evidence of Appellant's personal and unqualified consent to an LWOP instruction. In Furnish, this Court rejected the Commonwealth's identical argument, and we do so again today. In response to the Commonwealth's suggestion that KRS 446.110 permits trial courts to exercise discretion whether to instruct on LWOP in capital cases, we recognize that such an interpretation would permit inconsistency in capital sentencing procedures that is incompatible with due process. Accordingly, we hold that "Appellant's motion satisfied the `unqualified consent' requirement we established in Phon, and he was entitled to receive an instruction on life without parole." Furnish, 95 S.W.3d at 51. Compare Garland v. Commonwealth, Ky., 127 S.W.3d 529, 537-38 (2003) (where the defendant made no request for an LWOP instruction). We find no merit in the Commonwealth's contention in its brief that the instructional error in this case was harmless. Accordingly, we reverse Appellant's death sentence and remand this case to the trial court for a new capital sentencing phase.
Our reversal of Appellant's death sentence and remand for a new capital sentencing phase renders moot or partially moot several of Appellant's allegations of error. Accordingly, this opinion will not address Appellant's boiler-plate objections to the death penalty, i.e., # 53 ("Death Sentence Disproportionate to Co-Indictee's Sentence"), # 54 ("Kentucky's Disproportionality Review is Unconstitutional"), # 55 ("Residual Doubt Bars Death Sentence"), # 56 ("Constitutional Challenges to Death Penalty"), and # 58 ("No Access to Data"), which Appellant may assert upon remand and then pursue upon appeal if he again receives a death sentence. Nor will we address other allegations of error that we would characterize as unique to the capital sentencing phase at Appellant's previous trial, i.e., # 9 ("Immediate Sentencing of St. Clair"), # 10 ("Exclusion of Sentencing Hearing Avowals"), portions of # 27 ("Improper Penalty Phase Closing Argument"), # 32 ("Denial of Motion to Recuse"), # 49 ("Commonwealth Hugging Victim's Family After Guilty Verdict"), and # 52 ("Coerced Death Sentence"). We address each of Appellant's remaining allegations of error, but address the ones that relate exclusively to capital sentencing only to the extent that they may be relevant to proceedings upon remand. Although we will identify each argument by both subject matter and number, we have reorganized Appellant's claims according to the nature of the asserted error rather than its sequential place in Appellant's *527 brief, and we will address the allegations in our reorganized order.
B. PRETRIAL ISSUES
1. SPEEDY TRIAL (# 17)
Appellant was indicted in February 1992 and was extradited from Oklahoma to Kentucky to stand trial under this indictment in May 1995. Appellant's trial did not begin, however, until August 18, 1998. Appellant argues that the Commonwealth of Kentucky's delay in bringing him to trial violated both: (1) statutory provisions of the Interstate Agreement on Detainers ("I.A.D."), KRS 440.450, and (2) his federal and state constitutional rights to a speedy trial. Appellant thus argues that this Court should reverse his conviction and remand this case to the trial court with instructions to dismiss the indictment.
KRS 440.450(Art. IV(3)) provides:
In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. (Emphasis added).
Thus, "[i]f the prosecuting authority initiates proceedings, the prisoner must be tried within 120 days after his arrival in the jurisdiction seeking to try him[,]" Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 312 (1994), and if the time limitations are violated, "the trial court is compelled to dismiss the charges with prejudice." Id. at 313; Lovitt v. Commonwealth, Ky., 592 S.W.2d 133 (1979).
In this case, however, we agree with the Commonwealth that the I.A.D.'s 120-day clock provision was inapplicable to this indictment. Kentucky did not utilize the I.A.D. to obtain custody of Appellant. Instead, Kentucky obtained custody of Appellant by extraditing him pursuant to an executive agreement authorized by the Uniform Criminal Extradition Act ("U.C.E.A."). See KRS 440.200(1). Appellant correctly observes that the I.A.D.'s 120-day clock may govern even in cases where the receiving state ultimately obtains custody of the accused through means other than the I.A.D. because the United States Supreme Court has held that the I.A.D.'s time limit applies whenever a requesting state "initiates the disposition of charges underlying a detainer it has previously lodged against a state prisoner[,]" United States v. Mauro, 436 U.S. 340, 364, 98 S.Ct. 1834, 56 L.Ed.2d 329, 349 (1978). However, given that Appellant has not cited us to any evidence in the record to show that the Commonwealth of Kentucky ever filed a detainer[3] with Oklahoma authorities, we hold that the I.A.D.'s 120-day clock was inapplicable to this indictment.
The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]" Section Eleven of the Kentucky Constitution likewise provides that an accused "shall have a speedy public trial by an impartial jury of the vicinage." This Court analyzes allegations of speedy trial right violations under the four-factor test *528 outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which requires an examination of: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant caused by the delay. This Court has observed, however, that "[n]o single one of these factors is ultimately determinative by itself," Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 70 (2000), and "can be determined only on an ad hoc balancing basis[.]" Id. (quoting Barker v. Wingo, 407 U.S. at 514, 92 S.Ct. at 2184). We conclude that the delay in bringing Appellant to trial did not violate his rights to a speedy trial.
The first factor of the inquiry requires a showing of a presumptively prejudical delay, and we conclude that the approximately six and one-half (6 1/2) years between indictment and trial in this case is sufficient to trigger further inquiry. See Barker v. Wingo (holding that a five (5) year delay in a murder prosecution was presumptively prejudicial); Gabow (thirty-four (34) month delay in murder case). And, jumping ahead slightly to the third factor, it is clear that, after he was extradited to Kentucky but, significantly, not before Appellant affirmatively and repeatedly asserted his right to a speedy trial in the trial court. Although Appellant's assertions of his rights are "`entitled to strong evidentiary weight' in deciding whether the defendant's rights were violated," Dunaway v. Commonwealth, 60 S.W.3d at 571 (quoting Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117), we find no speedy trial violation under the facts presented because: (1) the majority of the delay occurred while Appellant was incarcerated in Oklahoma and prior to any assertion by Appellant of his right to a speedy trial; (2) the lion's share of the remaining delay was attributable to defense-requested continuances; and (3) Appellant's unwarranted assertions fail to demonstrate that he suffered prejudice as a result of this additional delay.
Just over seventy-eight (78) months passed between the time Appellant was indicted in February 1992 and the time his trial commenced in August 1998. Fully half of this time thirty-nine months (39) elapsed before Appellant was extradited from Oklahoma to Kentucky. During the remaining thirty-nine (39) months, five (5) trial dates were rescheduled four (4) at the request of the defense and one (1) at the request of the Commonwealth:
The originally scheduled trial date of August 14, 1995 was rescheduled for May 7, 1996 after Appellant's initial trial attorneys, Ray Clooney and Richard Receveur, filed a motion to withdraw as counsel of record less than a week prior to the scheduled trial date because of a Department of Public Advocacy Policy that prevented it from contracting with Clooney for his services because he had filed to run for public office and substitute counsel Ronald Riggs informed the trial court that he required "at least six months" to obtain mitigation evidence from Oklahoma.
The May 7, 1996 trial date was rescheduled for January 1, 1997 after Riggs filed a motion to withdraw (citing "a total, complete, and severe breakdown of communications between counsel and the Defendant") and substitute counsel, Catherine Rao-Kamenish and Mary Jo Wicker, advised the court that their schedules would not permit a death penalty trial until December or the following year.
The January 14, 1997 trial date was rescheduled for August 12, 1997, without objection from the defense, on the Commonwealth's motion to continue because the lead prosecuting attorney had recently left the Office of the Attorney *529 General to accept a position as an Assistant United States Attorney.
The August 12, 1997 trial date was rescheduled for April 21, 1998 without objection from the defense after Rao-Kamenish and Wicker moved to withdraw because Appellant had begun treating the attorney-client relationship as amorous, e.g., composing poems which professed his romantic intentions towards his counsel and sending them artwork that depicted naked women.
The April 21, 1998 trial date was rescheduled to August 18, 1998 at the defense's request to allow it to investigate an incriminating statement allegedly made by Appellant to Kincaid while Appellant was incarcerated in Oklahoma.
Appellant's trial ultimately began on August 18, 1998. Appellant argues that the Commonwealth bears the responsibility for the majority of the post-indictment delay, specifically: (1) the thirty-nine (39) months that Appellant remained incarcerated in Oklahoma before the Commonwealth obtained custody of him; (2) the postponement of the original trial date, which Appellant contends was unnecessary; (3) the postponement of the January 14, 1997 trial date at the request of the Commonwealth; and (4) the postponement of the April 21, 1998 trial date, which Appellant contends was made necessary by the Commonwealth's failure to provide timely discovery.
When a person under indictment is incarcerated in another jurisdiction, "[u]pon ... demand [the Commonwealth has] a constitutional duty to make a diligent, good-faith effort" to obtain custody of that person for purposes of trial. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579-80, 21 L.Ed.2d 607, 614 (1969) (emphasis added). See also Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). Appellant, however, not only failed to make such a demand upon the Kentucky authorities, but actively resisted extradition by filing a habeas corpus action. It is clear from the record in this case that Appellant raised no issue with respect to his speedy trial rights until after he was extradited to Kentucky. Additionally, the Commonwealth's capital sentencing phase evidence demonstrates that, before the extradition agreement was signed, the State of Oklahoma tried Appellant on two (2) outstanding murder charges in February 1994, which suggests that the delay in obtaining custody of Appellant may not have been solely attributable to a lack of effort on the part of the Commonwealth of Kentucky. Accordingly, Appellant's speedy trial claim hinges on the thirty-nine (39) months of delay that occurred after he was returned to Kentucky.
We observe that a substantial portion of those delays were at the request of or with the tacit consent of the defense. Even if we were to resolve every "whose responsibility?" dispute as to the post-extradition delays in Appellant's favor, however, it is clear that Appellant has failed to demonstrate prejudice from this post-extradition delay. And, if not incarcerated pending trial in Kentucky, Appellant would have been incarcerated in Oklahoma under his life sentences without possibility of parole, and we find no merit in Appellant's unsupported allegations that the conditions of his imprisonment in Kentucky demonstrate prejudice associated with the delay. We find equally unpersuasive Appellant's conclusory assertion that he suffered anxiety from the delay in a resolution of his case. See Preston v. Commonwealth, Ky.App., 898 S.W.2d 504, 507 (1995). Although Appellant argues that his ability to mount a defense was impaired by the delay, we have examined each of Appellant's specific complaints and have determined that they fail to demonstrate any identifiable prejudice from the additional delay that occurred after he was transported to *530 Kentucky. Accordingly, "[w]e conclude that the delay in bringing this case to trial does not justify `the unsatisfactory severe remedy of dismissal.'" Gabow, 34 S.W.3d at 70 (quoting Barker v. Wingo, 407 U.S. at 522, 92 S.Ct. at 2188).
2. CLIENT-COUNSEL ACCESS (# 37)
Appellant argues that his ability to communicate confidentially with his trial counsel on a regular basis was impeded by his pretrial incarceration in facilities first in the Jefferson County Jail and then the Kentucky State Penitentiary, where he was transferred "some time between October 17, 1997 and March 1998" apparently without a court order and, in fact, in contravention of the trial court's order directing that Appellant be transferred to the nearby Hardin County Detention Center as soon as space was available. Appellant's brief identifies no motion for relief with respect to this issue that was denied by the trial court. In fact, the record reflects that, three (3) weeks before trial, when Appellant's trial counsel moved the trial court to order Appellant's transfer to the Hardin County Detention Center, the trial court granted the motion with no objection from the Commonwealth, Accordingly, "[t]he trial judge responded in a reasonable fashion to defense requests," Epperson v. Commonwealth, Ky., 809 S.W.2d 835, 841 (1990), and "[t]here was no deficiency ... compromising the right of ... appellant to effective counsel." Id. We hold that the trial court properly addressed the concerns raised by Appellant, and we find no error.
3. DENIAL OF FUNDS FOR INDEPENDENT PSYCHIATRIST (# 40)
The trial court properly denied Appellant's request for funds to retain an independent psychiatrist because Appellant failed to demonstrate that such funds were reasonably necessary to the defense. Appellant's motion for funds contained only conclusory assertions that "[e]mployment of a forensic psychiatrist is an absolute necessity because this Defendant has already been convicted in the state of Oklahoma of four murders" and that "it would be ineffective assistance of counsel not to have this Defendant ... evaluated by a competent Forensic Psychiatrist in order to determine the mental health defenses, including mental illness and the IQ of the Defendant." When the motion came before the court for a hearing, Appellant's trial counsel stated that he had spoken with a psychologist "in Oklahoma that did the work-up on Mr. St. Clair," but counsel gave no indication of the substance of that conversation either at that time or subsequently. In denying the request for funds, the trial court observed that "you're telling me that you believe you need one but don't know why you need one" and indicated that "if you can convince me of a need ... I'll reconsider." The trial court's ruling was correct. "[O]ur review of a trial court's denial of funds pursuant to KRS 31.110 is limited to the reasons actually presented to the trial court." Dillingham v. Commonwealth, Ky., 995 S.W.2d 377, 381 (1999). Appellant had no "right to a psychiatric fishing expedition at public expense," Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384, 387 (1985). "There is no violation of due process in the refusal to provide for expert witnesses when the defendant offers little more than an undeveloped assertion that the requested assistance would be beneficial." Simmons v. Commonwealth, Ky., 746 S.W.2d 393, 395 (1988) (citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). See also McKinney v. Commonwealth, Ky., 60 S.W.3d 499, 505 (2001).
4. PROSECUTION BY ATTORNEY GENERAL'S OFFICE (# 41)
We find no merit in Appellant's unpreserved allegation that the Office of *531 the Attorney General improperly prosecuted his indictment. Section 93 of the Kentucky Constitution provides that the duties and responsibilities of Constitutional State Officers, including the Attorney General, "shall be prescribed by law." Accordingly, our statutes make the Attorney General "the chief law officer of the Commonwealth[.]" KRS 15.020. And, "[t]o encourage cooperation among law enforcement officers [,] ... to provide for the general supervision of criminal justice [,] ... and ... to maintain uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the Commonwealth," Commonwealth v. Wilson, Ky., 622 S.W.2d 912, 914 (1981), the General Assembly has enacted KRS 15.700, which establishes a unified integrated prosecutor system in Kentucky "with the Attorney General as chief prosecutor of the Commonwealth." Given that the Attorney General "may act as prosecutor ... when so directed by statute," Graham v. Mills, Ky., 694 S.W.2d 698, 701 (1985), the General Assembly has enacted a number of statutory provisions that authorize the Attorney General to prosecute criminal actions under certain circumstances. See, e.g. KRS 15.190 (when requested to do so in writing by a County or Commonwealth Attorney); KRS 15.200 (when requested to do so in writing by other identified officers); KRS 15.225 (prosecution of county financial administration); KRS 15.231 (theft of identity and trafficking in stolen identity cases); KRS 15.240 (violations by abortion facilities); KRS 15.242-15.243 (enforcement of election laws); KRS 15.715 (when authorized to do so by the Prosecutors' Advisory Council). By authorizing the Attorney general to direct the investigation and prosecution of criminal actions only in "given, limited situation[s]," Hancock v. Schroering, Ky., 481 S.W.2d 57, 61 (1972), "[t]he legislature has provided a check to prevent the Attorney General from usurping and pre-empting the office of Commonwealth's attorney[.]" Id.
Although Appellant is correct that the record in this case does not demonstrate the means by which the Attorney General assumed the prosecution of this indictment, the record is equally clear that neither Appellant nor any local prosecuting authority raised any objection to the Attorney General's role in this prosecution. Of course, the "issue" concerns the Attorney General's authority to prosecute this indictment would have been resolved conclusively in the trial court if Appellant had voiced any objection because the Attorney General's office could have identified its authority on the record (and, if prosecution was assumed pursuant to KRS 15.190 or KRS 15.200, included within the record the written request that they do so). Accordingly, while we observe that in future cases where the Attorney General assumes the role as lead prosecutor it would be a better practice for the Attorney General's office to make a record of its authority to prosecute an indictment, we hold that a presumption of regularity attaches in such cases particularly when no objection is raised and we are unwilling to assume wrongdoing from the silent record in this case. As such, we hold that the office of the Attorney General properly prosecuted this case against Appellant.
C. JURY SELECTION ISSUES
1. JURY QUESTIONNAIRE (# 44)
The trial court ruled consistently with this Court's prior precedent, Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 546 (1988) and was "well within the scope of his discretion to control the scope of voir dire examination," Jacobs v. Commonwealth, Ky., 58 S.W.3d 435, 444 (2001), when it denied Appellant's request that all prospective jurors be required to complete *532 a four (4) page, forty-one (41) question "Juror's Personal Data Questionnaire."
2. ADMONISHMENT AS TO PUBLICITY (# 11)/ALLEGED MEDIA INCIDENT (# 46)
Appellant argues that the trial court violated RCr 9.70 and committed reversible error at the beginning of individual voir dire when, before dividing the prospective jurors into groups scheduled to return on later days for individual voir dire, it failed to admonish them not to read about the case. According to Appellant, on the second day of individual voir dire, a local newspaper, The Pioneer News, ran an editorial regarding the trial that addressed the additional security precautions involved. The individual voir dire examination revealed that a number of the prospective jurors had either read the article or overheard others talking about it. Appellant raised no objection at the times he claims the admonition should have been given, but moved the trial court for a mistrial and asked it to strike the jury panel when prospective jurors revealed during individual voir dire that they were aware of the article.
RCr 9.70 provides:
The jurors, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, nor form, nor express any opinion thereon, until the cause be finally submitted to them. This admonition must be given or referred to by the court at each adjournment.
Although trial courts have the discretion to admonish prospective jurors on these subjects early in the voir dire process, and we believe it would be the better practice to do so, we agree with the Commonwealth that RCr 9.70 requires this admonition only after the jury has been selected and sworn to try the case. The term "jurors" as utilized in RCr 9.70 refers to the members of a selected and sworn jury. Compare RCr 9.36(2) (referring to "prospective jurors" in context of challenges for cause); RCr 9.38 (referring to "prospective jurors" in context of voir dire examination). In fact, the Administrative Procedures of the Court of Justice (Ad.Proc.) Part II, § 31 require this admonition "[i]f the jury is permitted to separate [.]" (emphasis added). To the extent that Schweinefuss v. Commonwealth, Ky., 395 S.W.2d 370, 375 (1965), suggests that an RCr 9.70 admonishment is required at this stage of the proceedings, it is hereby overruled. Accordingly, we hold that the trial court was not required to give the RCr 9.70 admonishment to the prospective jurors at the conclusion of the first day of voir dire or at any time before the jury was sworn and the trial court thus properly denied Appellant's motion for a mistrial and to strike the jury panel, which were premised on the trial court's failure to give the admonishment.
In any event, we agree with the Commonwealth that, under the facts of this case, Appellant has the burden to show actual jury prejudice, Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 274-75 (1992), and that Appellant has failed to demonstrate how he was prejudiced from either the trial court's failure to admonish the jury not to read about the case or the fact that certain jurors apparently were exposed to media coverage. The trial court, the prosecution, and defense counsel each conducted extensive individual voir dire in part to determine whether any *533 press accounts to which prospective jurors may have been exposed might influence their decisions in the case. In Part III(C)(4), infra, we address Appellant's arguments as to the jurors and prospective jurors whom Appellant asserts the trial court should have excused because of their exposure to pretrial publicity. With regard to Appellant's speculative allegation that "other prospective or actual jurors might have been exposed to the publicity but weren't discovered," we find no actual prejudice.
The trial court did not err when it denied Appellant's request to question an undefined number of deputy sheriffs under oath about an incident that involved a television news reporter who was speaking with a deputy sheriff in the presence of prospective jurors, which allegedly occurred during the first afternoon of individual voir dire. Appellant was allowed to voir dire each member of the jury as to whether they had read about the case in the newspaper, seen television news coverage about it, or overheard other people discussing it. We hold that this voir dire was a more-than-sufficient mechanism to ferret out prospective jurors whose impartiality may have been compromised by the publicity they encountered.
3. INDIVIDUAL VOIR DIRE (# 20 & 57)
Although Appellant raised no objection at the time of trial, he argues on appeal that the trial court violated his fundamental constitutional guarantees when it excused prospective jurors whose personal beliefs prevented them from imposing a sentence of death. This argument, which we see raised in virtually every capital case appealed to us, "has been consistently rejected" by the United States Supreme Court, Hodge v. Commonwealth, Ky., 17 S.W.3d 824, 838 (2000) (collecting cases), and by this Court, which has repeatedly and "consistently held [it] to be without merit." McKinney, 60 S.W.3d at 512. It is a fully adequate response to Appellant's argument to state simply that: "[d]eath qualification of jurors is not unconstitutional." Caudill v. Commonwealth, 120 S.W.3d 635, 678 (2003).
Appellant also argues that the trial court erroneously limited the scope of individual voir dire examination. We find the scope of voir dire in this case constitutionally adequate. "The trial judge has broad discretion in the area of questioning on voir dire[,]" Woodall v. Commonwealth, Ky., 63 S.W.3d 104, 116 (2001) (citing Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985)), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002), and, in particular, "[t]he extent of direct questioning by counsel during voir dire is a matter within the discretion of the trial court." Furnish, 95 S.W.3d at 44.
During individual voir dire, the trial court asked the following questions, with slight variations from time to time and "follow-up" questions as necessary, of each prospective juror:
If the Defendant is found guilty of Murder as charged and of certain aggravating circumstances the Commonwealth intends to seek the death penalty. However, there are a range of penalties the jury may consider. They include the death penalty, imprisonment for life without the benefit of parole for twenty-five years, imprisonment for life, and a term of imprisonment of not less than twenty years.
Would your personal beliefs prevent you from imposing any of those four punishments, if the court instructed you to consider then and if warranted by the evidence?
Would you automatically vote either for or against: Death? Life without the possibility of consideration of parole for at least 25 years? Life imprisonment? *534 A term of not less than 20 years in prison?
Mitigation is evidence about a person's character, background, or circumstances that may be considered as a reason for imposing a less severe punishment than otherwise would be imposed. A mitigating circumstance is the opposite of an aggravating circumstance, which may be a reason for imposing a more severe punishment than otherwise would be imposed.
Would you consider any evidence offered to you in mitigation of punishment, if instructed to do so by the court? Would you consider any evidence offered in aggravation of punishment, if instructed to do so by the court?
Have you read or heard anything about this case before today? Has anything you may have read or heard caused you to form an opinion concerning this case? Are you able and willing to disregard anything you may have read or heard, and decide this case solely on the evidence introduced during the trial?
Appellant submits a list of topics upon which he attempted to question prospective jurors but was prevented from doing so when the trial court sustained objections from the Commonwealth. We find that "the trial court properly curtailed questions that were not proper and only confused the panel." Furnish, 95 S.W.3d at 44. The trial court was well within its discretion to prohibit Appellant