Jacobs v. Kentucky, 2001 Ky. LEXIS 187 (10/25/2001) Kentucky's capital sentencing scheme doesn't include kidnapping as an aggravating categeory to make a murder death eligible.

At Jacobs's first trial, the only aggravating circumstance alleged by the Commonwealth, submitted in the trial court's instructions, and found by the jury was that "at the time he killed Judy Ann Howard, the defendant, Clawvern Jacobs, was engaging in the commission of rape in the first degree." n35 Upon remand, the Commonwealth gave notice that it would allege another aggravating circumstance - that Jacobs murdered Howard during the commission of a kidnapping. 

After the jury's guilt/innocence phase verdict which found Jacobs guilty not of attempted first degree rape, but the lesser-included offense of first degree sexual abuse, the trial court's capital sentencing phase instructions allowed the jury to consider only one possible aggravating circumstance in determining the appropriate penalty for Jacobs's murder conviction: 

INSTRUCTION NO. 3 

AGGRAVATING CIRCUMSTANCES
In fixing a sentence for the defendant  [*40]  for the offense of Murder, you shall consider the following aggravating circumstances which you may find from the evidence beyond a reasonable doubt to be true: 

The defendant murdered Judy Ann Howard and that at the time Clawvern Jacobs murdered Judy Ann Howard he was engaged in the commission of kidnapping.

On its verdict form, the jury indicated that it found the aggravating circumstance beyond a reasonable doubt and copied verbatim the language of Instruction No. 3. Because we find that the General Assembly has not established kidnapping as an aggravating circumstance to the crime of murder, we reverse Jacobs's sentence of death and remand the matter to the trial court for sentencing on non-capital murder. 

In Gregg v. Georgia n36 the United States Supreme Court examined legislative amendments to Georgia's death penalty statutes four years after it had declared Georgia's death penalty procedures unconstitutional in Furman v. Georgia. n37 The Gregg court determined that the new death penalty procedures passed constitutional muster and emphasized that the statutes "channel" a jury's discretion to impose the death penalty by requiring it to find a statutory aggravating  [*41]  factor:

The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. n38

Kentucky's statutory death penalty sentencing procedures likewise control jury discretion by requiring juries to identify authorized aggravating circumstances before returning a sentence of death:

The jury, if its verdict be a recommendation of death, or imprisonment for life without benefit of probation or parole, or imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases, the judge shall make such designation. In all cases unless at least one (1) of the statutory aggravating circumstances enumerated in subsection (2) of this section is so found, the death penalty, or imprisonment for life without possibility of probation or parole, or the sentence to imprisonment for life without benefit of probation or parole until the defendant  [*43]  has served a minimum of twenty-five (25) years of his sentence, shall not be imposed. n39

The list of eight aggravating circumstances contained at KRS 532.025(2)(a) does not include the aggravating circumstance found in this case. The Commonwealth cites this Court's opinion in Harris v. Commonwealth n40 in support of its contention that the trial court's death penalty instructions were proper. In Harris, we held that juries must find beyond a reasonable doubt an aggravating circumstance "authorized by law" before imposing the death penalty, but that juries need not necessarily find one of the aggravating circumstances enumerated in KRS 532.025(2)(a). n41 The Harris Court identified a circumstance within the kidnapping statute itself which aggravates the crime of capital kidnapping and affirmed Harris's sentence of life without possibility of parole for twenty-five (25) years for capital kidnapping:

Here, the "aggravating  [*44]  circumstance otherwise authorized by law" is provided by the penalty section of the kidnapping statute, KRS 509.040(2), which makes kidnapping a capital offense when the victim is not released alive.

Although observers have levied some criticism at the reasoning behind the Harris holding, n42 we need not address the viability of the Harris holding in this case because Harris holds only that a defendant is death-eligible for the offense of capital kidnapping if he or she also murdered the kidnapping victim. n43 The case now before us involves a sentence of death not for a kidnapping conviction, but for a murder conviction - Jacobs was convicted of kidnapping, but received a sentence of life imprisonment. And Harris simply does not hold that a defendant convicted of murder is death-eligible if he or she also kidnapped the murder victim. No such aggravating circumstance is "authorized  [*45]  by law" for the crime of murder, and any attempt to engineer one from the Harris holding would require more legal gymnastics than the Constitution's demand for determinacy in death penalty cases could withstand. 

Kentucky statutory designation of kidnapping as a capital offense is a minority position found in only a handful of other jurisdictions," n44 and the General Assembly's failure to address the intersection between Kentucky's two capital crimes in KRS 532.025 likely stems from its attempt to define aggravating circumstances applicable to both capital crimes. The Model Penal Code's draft provisions for aggravating circumstances in capital cases contemplate a statutory scheme which authorizes capital punishment only in murder cases, n45 and designate as an aggravating circumstance the fact that the murder was committed while the defendant was in the course of a number of violent felony offenses, including kidnapping. n46 Of the jurisdictions which authorize imposition of the death penalty for the crime of murder, most have specific statutory aggravating circumstances for murders committed in connection with a kidnapping crime. n47 KRS 532.025 contains an aggravating circumstance for capital crimes committed in the course of certain designated felonies, n48 but that circumstance does not address the possibility of concurrent capital  [*47]  crimes. 

The Kentucky legislature has simply not identified "while in the course of a kidnapping" as an aggravating circumstance which authorizes capital punishment for a murder conviction. This Court has no business saying otherwise. As we recently stated in Young v. Commonwealth, n49 "the death penalty cannot be imposed simply because we or the jury believe the actions or motives of a particular defendant are deserving of capital punishment. That is the kind of discretionary, ad hoc application of the death penalty specifically condemned in Furman." n50