Driver v. Commonwealth
2012 Ky. LEXIS 22
| Ky. | 2012Background
- Driver assaulted Vera in January 2007 after she admitted an affair; Vera recanted at trial, prompting use of prior-acts evidence against Vera and Melinda; court admitted Vera's prior-acts evidence under KRE 404(b) but excluded Melinda's prior acts for being too remote; Vera recanted belt usage, affecting jury’s view of guilt; trial court denied EED instruction; jury convicted Driver of first-degree assault; on appeal, Court of Appeals upheld most evidentiary rulings but found Melinda evidence error and EED instruction issue not reached on retrial; Kentucky Supreme Court reversed and remanded for retrial with guidance on admissibility and instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior bad acts under KRE 404(b) | Driver argues 404(b) evidence against Vera and Melinda was improper | Commonwealth argues evidence showed absence of accident and probative of intent | Vera evidence admissible; Melinda evidence error to admit |
| Extreme Emotional Disturbance instruction | Driver entitled to EED instruction due to triggering event related to affair | No triggering event proven; no EED instruction warranted | EED instruction not warranted on record; may be instructed on retrial if evidence changes |
| Prosecutorial misconduct in closing | Prosecutor improperly framed 404(b) evidence as intent and invoked victims' children | Closing comments were within wide latitude to argue evidence and inferences | Comment about helping the children improper; 404(b) reference to intent limited; retrial guidance provided |
Key Cases Cited
- Barnes v. Commonwealth, 794 S.W.2d 165 (Ky. 1990) (remoteness limits admissibility of prior acts)
- Moseley v. Commonwealth, 960 S.W.2d 460 (Ky. 1997) (prior abuse evidence admissible to negate accident/mistake)
- Sherroan v. Commonwealth, 142 S.W.3d 7 (Ky. 2004) (threats against the victim probative of intent/motive)
- Greene v. Commonwealth, 197 S.W.3d 76 (Ky. 2006) (EED elements and triggering event standard clarified)
- Payne v. Commonwealth, 623 S.W.2d 867 (Ky. 1981) (prosecutorial closing remarks restrictions)