October 13 1999.
Appeal from the Circuit Court of Laurel County, Lewis B. Hopper, J.
Appellant moves this Court to appoint a special justice to hear the direct appeal of his conviction and death sentences in this case. Although Kentucky Utils. Co. v. South East Coal Co., Ky 836 S.W.2d 407 (1992) upheld the constitutionality of the policy and procedure which authorized the Chief Justice to appoint a special justice to serve on the Court when one justice is disqualified from participation in the consideration of a case, that opinion does not hold that the Constitution of Kentucky, or any statute or administrative regulation, requires that such policy be continued. This Court as presently comprised has previously and unanimously determined that such policy should be discontinued. Therefore, the policy set forth in the Appendix to the opinion in Kentucky Utils. Co. v. South East Coal Co., supra, has been rescinded. Accordingly, Appellant's motion that this Court appoint a special justice to serve on this case is DENIED.
Appellant moves in the alternative that a reversal be required in this or any capital case in which the votes of the justices sitting on the case are 3-3. This motion is also DENIED. KRS 21A.060 SCR 1.020.