COMMONWEALTH OF KENTUCKY
SIMPSON CIRCUIT COURT
INDICTMENT NO. 03-CR-00082

COMMONWEALTH OF KENTUCKY	PLAINTIFF

VS.            MOTION FOR AN ORDER DIRECTING THE COMMONWEALTH
ATTORNEY TO DECLARE WHETHER HE INTENDS TO SEEK TO
JOIN MR. MCPEAK’S CASE WITH OTHER PROSECUTIONS
FOR PURPOSES OF TRIAL  

RICHARD ADAM MCPEAK   	DEFENDANT

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	Comes the defendant, Richard Adam McPeak, by and through counsel and moves this Court, pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments, United States Constitution; Sections 1, 2, 3, 7, 11, 14, 17, and 26, Kentucky Constitution; and his right to a full and fair hearing under both state and federal law, to issue an Order requiring the Commonwealth Attorney to declare whether he will seek joinder of this case with other prosecutions for purposes of trial.  In support of this motion, the defendant asserts as follows:
	1.	According to discovery provided by the Commonwealth, on September 20, 2002, Frank Harwood filed with the Kentucky State Police (KSP) a missing person report regarding Jesse Frank George based on his assertion that he heard rumors that Jesse George had been killed.  Initial investigation indicated that George was last seen in Simpson County in May 2002.  Several witnesses informed the KSP that John Walterman had bragged about killing George and punching him with brass knuckles.  Other witnesses implicated a number of individuals – including Richard Adam McPeak – in the alleged killing1 which was purported to have occurred following an argument while Mr. George and several others were engaged in cooking methamphetamine.
	2.	As a result of KSP Detective Michael Yates’ August 7, 2003 presentation to
the Simpson County Grand Jury, indictments for complicity to murder Jesse Frank George were issued for John Jack Walterman and Rickie Allen McPeak and indictments for murder were issued for Isaiah Snodgrass, Jr., and Richard Adam McPeak.  Indictments were also issued on related charges for Robert Cropper and Kelly Roberson.  Although Richard Adam McPeak is the sole defendant charged in this indictment, pretrial hearings and status conferences have been scheduled jointly with Isaiah Snodgrass, Jr., Rickie Allen McPeak, and their counsel.  The Commonwealth is seeking to impose the death penalty upon Mr. McPeak but not upon any other defendant charged in related indictments.  
	3.	The Commonwealth Attorney has at this time provided no indication of
whether the Commonwealth intends to try Mr. McPeak under this indictment individually or whether the Commonwealth will move the Court to join this case with related indictments for purposes of trial.  The Kentucky Rules of Criminal Procedure, RCr 9.12, permits joinder of related offenses under some circumstances.  Joinder is not permitted where either the defendant or the Commonwealth would be prejudiced.  RCr 9.16.
	4.	A joint trial of these charges would be a very different, more complicated
endeavor than a trial of Mr. McPeak alone upon this indictment beginning with jury selection.  If the Commonwealth continues to pursue a death sentence for Richard Adam McPeak at trial, the jury selection procedures will be conducted pursuant to RCr 9.38 and the jury will be “death qualified” – meaning that any jurors with moral or religious beliefs rendering them unable to return a death sentence will be removed from the jury pool.2  If the Commonwealth seeks joinder of this case with other defendants and the Court permits it, the jury selection process will involve attorneys for this defendant engaging in extensive voir dire regarding jurors’ views of capital punishment which would be irrelevant to the other defendants.  Further, a joint trial would implicate the number of peremptory challenges available to Mr. McPeak and would require him to “share” peremptory challenges whereas a sole defendant has the autonomy to utilize these challenges as he chooses.  See RCr 9.40.   
	5.	A joint trial of these charges with other defendants would also pose very
different evidentiary issues at the trial of guilt or innocence.  In addition to restrictions upon admissibility of non-testifying co-defendants imposed by Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court recently ruled that testimonial hearsay not subject to cross-examination is presumptively inadmissible under the Sixth Amendment.  See Crawford v. Washington, 124 S.Ct. 1354 (2004).  One of the Court’s primary concerns in stating the purpose and necessity for this rule, is the disregard which state courts, including the Kentucky Supreme Court, have shown in failing to exclude evidence which violates the Sixth Amendment, including evidence of statements made by a non-testifying co-defendant.  See Crawford v. Washington, 124 S.Ct. at 1371:
“The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Despite the plurality’s speculation in Lilly, 527 U.S., at 137, that it was “highly unlikely” that accomplice confessions implicating the accused could survive Roberts, courts continue routinely to admit them.”  See [a list of cases, including Taylor v. Commonwealth, 63 S. W. 3d 151, 166—168 (Ky. 2001)] 

Thus the unfortunate and presumptively unconstitutional tendency in Kentucky to permit introduction of non-testifying accomplice statements was specifically condemned by the U.S. Supreme Court.3   Depending upon how the Commonwealth intends to proceed in this case, the rule of Crawford v. Washington and the intersection of competing Sixth Amendment and Fifth Amendment rights of various individuals currently under indictment could be significant factors in determining the admissibility of testimonial evidence.       
	6.	A joint trial would additionally involve a potential joint sentencing trial
wherein Mr. McPeak could potentially face a capital sentencing procedure combined with a truth-in-sentencing procedure involving co-defendants.  Such a proceeding would deviate from the normal trifurcated procedure in capital sentencing wherein the capital penalty hearing is conducted prior to the truth-in-sentencing hearing.  See Francis v. Commonwealth, Ky., 752 S.W.2d 309, 310 (1988).  
	7.	Undersigned defense counsel need adequate notice of the conditions under
which Mr. McPeak will be tried in order to prepare pretrial and trial defenses.  Since a joint trial of these charges would involve significantly different circumstances than a trial on this indictment alone, counsel require sufficient notice of the Commonwealth’s intentions in order to formulate a competent defense strategy.  See, e.g., National Legal Aid and Defender Association Performance Guidelines for Criminal Defense Representation, Guideline 5.1, The Decision to File Pretrial Motions (1994).  Among the issues which counsel should consider in assessing which pretrial motions to file is “the propriety and prejudice of any joinder of charges or defendants in the charging document.”  Guideline 5.1(b)(5). 
	8.	Since the Commonwealth is seeking the execution of Mr. McPeak, the
conditions of his trial must further be assessed in order to determine whether the procedures employed create an unnecessary risk of factual error in the decision to inflict death as punishment.  See Lankford v. Idaho, 111 S.Ct. 1723 (1991), Ford v. Wainwright, 477 U.S. 399 (1986), Beck v. Alabama, 447 U.S. 625 (1980), Gardner v. Florida, 430 U.S. 349 (1977).    
	Wherefore, for the reasons stated above, the defendant respectfully moves for the Court to issue an Order requiring the Commonwealth Attorney to declare whether he will seek joinder of this case with other prosecutions for purposes of trial.
						
Respectfully submitted,
					
______________________________ 
JAMES C. GIBSON, JR.
ASSISTANT PUBLIC ADVOCATE
P.O. BOX 6570
SHEPHERDSVILLE, KY 40165
502-543-3451  (voice); 502-543-1962  (fax)

						____________________________________
						KELLY A. GLEASON
						ATTORNEY AT LAW
						2214 CLAYPOOL-ALVATON ROAD
						BOWLING GREEN, KY 42103 
	
						COUNSEL FOR DEFENDANT

NOTICE

		Notice is hereby given that the foregoing motion was filed with the Clerk of the Simpson Circuit Court, Franklin, Kentucky  on the 16th day of June 2004, to be heard in open court on July 9, 2004 at 1:30 p.m. or as soon thereafter as counsel may be heard. 

CERTIFICATE OF SERVICE

This is to certify that copies of this motion were mailed this 16th day of June 2004 to the offices of the following:

Honorable William R. Harris                                        Honorable Clint G. Willis
Simpson Circuit Court Judge                                       Commonwealth's Attorney
Courthouse, 201 Main Street                                       107 Robey Street, Suite 1
P.O. Box 262                                                               P.O. Box 472                                 Franklin, KY 42135                                                       Franklin, KY 42135  

Honorable Vincent P. Yustas                                       Honorable Phillip R. Grogan       
114 Lakeshore Parkway                                         P.O. Box 20068                           Brandenburg, KY 40108                                               Bowling Green, KY 42102

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