Lead Opinion
Appellant, Chico Duwan Rucker, appeals as a matter of right from a judgment of the Fayette Circuit Court sentencing him to twenty years’ imprisonment for second-degree manslaughter, tampering with physical evidence, and fraudulent use of a credit card over $500. Rucker alleges the trial court erred in four ways: 1) by permitting the introduction of sexually explicit communications he made after the victim’s death; 2) by authorizing the admission of sexually explicit communications he made before the victim’s death; 3) by allowing the Commonwealth to introduce hearsay testimony; and 4) by permitting the Commonwealth to show photographs and a video recording depicting the victim’s body. Due to the improper admission of Rucker’s sexually explicit communications made after the victim’s death, we reverse his conviction and remand this case to the trial court for a new trial,
FACTUAL AND PROCEDURAL BACKGROUND
During the evening of June 28, 2013, Elma Farris discovered another woman’s phone number in Rucker’s cellular phone. Farris, who was in a romantic relationship with Rucker, became üpset and began to attack Rucker while he was asleep in bed. According to Rucker, he pushed Farris away from him, causing her to fall to the floor and hit her head. Afterwards, Rucker gathered some his belongings together and took a cab to- spend the evening at an inn.
The following day, Rucker returned to Farris’s apartment and discovered her body. Fearful of notifying the authorities, Rucker wrapped Farris’s body in a shower curtain and disposed of it by placing it in a nearby dumpster. Afterwards, Rucker intermittently occupied Farris’s apartment and used her debit card to make purchases and cash withdrawals.
A body was located a week later due to complaints of a foul odor. After Farris’s relatives notified the authorities that she had been missing for several days, the body was identified as that of Farris. At the same time, police learned that Rucker and Farris had been romantically involved and living together.
On the same day that, police discovered Farris’s body, Rucker was arrested on unrelated traffic warrants. When searched Rucker was found with, personal property belonging to Farris, including her cellular phone and debit card. Upon questioning by police, Rucker initially denied knowledge of Farris’s disappearance, but he ultimately informed the police about their struggle and his subsequent flight from the apartment. Rucker maintained that Farris’s death was an accident and that he was unaware of her death until his return to the apartment the next day.
Rucker was indicted by the Fayette County grand jury for second-degree manslaughter, tampering with physical evidence, and fraudulent use of a credit card under $500.
1. The Trial Court Abused Its Discretion by Permitting the Admission of Irrelevant and Unduly Prejudicial Prior-Bad-Acts Evidence.
Rucker argues that reversible error occurred when the trial court allowed the Commonwealth to introduce sexually explicit social media exchanges he had with other women after Farris’s death.
In Rucker’s opening statement, he explained the process through which he discovered Farris’s body. According to Ruck-er, when he arrived back at the apartment he discovered Farris’s body and believed her to be asleep, but quickly realized that she was stiff, had no pulse, and was cold. Consequently, Rucker was “scared to death,” and did not know what to do. When trial resumed the following morning, the Commonwealth sought to introduce in its case-in-chief sexually explicit communications involving Rucker. These sexually explicit images and conversations were exchanged through the use of Facebook—a social media platform. The conversations at issue covered a ten-day period beginning on June 28, 2013, the day of Farris’s death, and lasting until July 7, 2013. The Commonwealth’s theory of the case was that Rucker killed Farris on June 28 and that he returned to the apartment the following evening.
The Commonwealth argued that Rucker had opened the door to the admission of this evidence in his opening statement, and that it went to his state of mind. Rucker objected to the introduction of this evidence, claiming that the messages were irrelevant, unduly prejudicial, and improper character evidence under Kentucky Rule of Evidence (KRE) 404(b). The trial court permitted the introduction of this evidence, agreeing with the Commonwealth that the messages went to Rucker’s state of mind and that they were not covered by KRE 404(b).
Subsequently, during the Commonwealth’s case-in-chief, Detective Joe Sission, read portions of the Facebook messages sent by Rucker after Farris’s death to the jury. It took Detective Sission approximately nineteen minutes to read these exchanges. He also showed the jury two explicit photographs that Rucker sent with the messages.
Contrary to the trial court’s ruling, Rucker’s Facebook messages were prior-bad-acts evidence and therefore subject to analysis under KRE 404(b). The relevant portion of KRE 404(b) states as follows,
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;
While KRE 404(b)(1) offers some examples of other purposes, “it states the ‘other purpose’ provision in a way that leaves no doubt that the specifically listed purposes are illustrative rather than' exhaustive.” Tamme v. Commonwealth,
In the case at bar, the trial court concluded that Rucker’s Facebook messages did not fall under KRE 404(b), as this conduct was not a crime or a wrong. However, this evidence is covered by KRE 404(b) as Rucker’s conduct unquestionably constituted an “act.”
On appeal, the Commonwealth contends that 404(b) does not apply to the admission of Rucker’s communications as KRE 404(b) “proscribes the introduction of evidence tending to prove a particular character trait ‘in order to show action in conformity therewith.’ Evidence of immorality would not tend to prove a propensity or predisposition to commit homicide.” This interpretation of what constitutes KRE 404(b) evidence is too narrow and would permit the Commonwealth to obtain a conviction based on the low character of the defendant. See United States v. Dunn,
It is clear that the Commonwealth’s purpose in showing the jury these Facebook conversations, which included sexually explicit photos of Rucker, was simply to demonstrate that he is a contemptible person of low character. Further, by showing that Rucker engaged in explicit sexual conversations with multiple women, immediately after the death of his girlfriend, the Commonwealth preemptively sought to undermine any suggestion that Rucker genuinely cared about Farris. These “bad acts” were plainly subject to analysis under KRE 404(b).
The standard of review for a trial court’s evidentiary ruling is abuse of discretion. Meskimen v. Commonwealth,
In the case at bar, the Commonwealth argued that the messages and images Rucker sent after Farris’s death were appropriately admitted as they went to Rucker’s state of mind. This argument is meritless as Rucker’s sexually explicit communications to various women were not probative of his state of mind regarding crimes that had already been committed against his former girlfriend. Cf. Sherroan v. Commonwealth,
However,' even if we were to agree with the Commonwealth that this evidence went to Rucker’s state of mind, it should not have been admitted under KRE 403. The probative value of this evidence, was grossly outweighed by the prejudicial effect of the evidence, which painted Rucker in a bad light by establishing that he was a callous philanderer. Accordingly, the trial court abused its discretion in permitting the admission of this evidence.
Additionally, later in the.trial the Commonwealth was permitted to play two sexually graphic audio recordings involving
“A non-constitutional eviden-tiary error may be deemed harmless, the United States Supreme Court has explained, if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.” Winstead v. Commonwealth,
We are compelled to observe that this outcome is lamentable given the overall strength of. the evidence against Rucker. The admission of this post-death evidence was absolutely unnecessary to secure what should have been a relatively obvious conviction. However, the Commonwealth’s ov-erzealousness in pursuing the admission of this evidence, and the trial court’s error in admitting same, resulted in a fundamentally flawed proceeding, which necessitates reversal. Having reversed, we will examine Rucker’s additional claims of error that are likely to recur upon retrial. Major,
II. The Trial Court Did Not Abuse its Discretion in Admitting Sexually Explicit Exchanges Between Ruck-er and Other Women that Occurred Before Farris’s Death.
Rucker also contends that admission of Facebook messages hé wrote to
When a defendant elects to testify at trial, “he subjects himself to that character of examination that can be made of any other witness; and his inclination to tell the truth, or to swear falsely, may be shown by the commonwealth in the usual mode of impeaching the general character of a witness for truth and veracity.” Scott v. Commonwealth,
III. The Trial Court Did Not Abuse Its Discretion in Admitting Hearsay Testimony.
Rucker argues that the trial court erred by permitting the Commonwealth to introduce inadmissible hearsay testimony from Farris’s cousin, Shalia Ferguson. In response to the Commonwealth’s questioning regarding Farris’s relationship with Rucker, Ferguson responded, “She was getting tired of taking care of him ... she said that she gave him an ultimatum to leave. He was to either find a job by July 1st or leave.... She was giving him a month to find a job.” The trial court determined that Ferguson’s hearsay testimony was admissible pursuant to the state-of-mind exception found in KRE 803(3). We review the trial court’s admission of .this evidence under an abuse of discretion standard. Meskimen,
Whether an out-of-court statement qualifies as an exception to the bar against hearsay depends, on the circumstances of each case, and the trial court’s ruling will not be disturbed unless clearly erroneous. Noel v. Commonwealth,
The “crucial component of [KRE 803(3) ] [i]s contemporaneity of the declar-ant’s state of mind and the statement describing it,” and it “le[aves] no room for the use of a statement describing a state of mind that, existed at some earlier point in time.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.5[2][a] at 647-48 (5th ed. 2013). Accordingly, the statement cannot solely concern past information, but may instead “cast light upon [ ] future intentions....” Ernst v. Commonwealth,
While it is' true that Farris’s statement concerned a past conversation she I had with Rucker, it also demonstrated her then-present intentions concerning a future event—she would leave Rucker by
Even though Ferguson’s testimony falls within the scope of the state of mind hearsay exception, it must also have relevancy to be admissible. Blair v. Commonwealth,
IV. The Trial Court Did Not Abuse Its Discretion in Admitting Photographs and a Video Recording of Farris’s Body.
Rucker’s final argument is that the trial court erred in permitting the jury to view photographs and a video recording of Farris’s body.
In order to evaluate the admissibility of the photographs and video recording, the Court must determine if the probative value of the evidence was sub
In the case at bar, both the photographs and video recording had substantial probative value. In addition to depicting the location of the crime, and Rucker’s attempt to conceal Farris’s body, the evidence also assisted the jury in determining that Rucker caused injury to Farris that resulted in her death. This conclusion was particularly difficult for the jury to deduce based on Rucker’s denial of causing Farris a serious injury and the medical examiner’s inability to pinpoint a cause of death.
By the time that the police were able to recover Farris’s body, it had already become severely decomposed. The degree of decomposition was such that the medical examiner was unable to identify a time of death, the victim’s age, or race. While the medical examiner was not able to deflni-tively state a cause of death, she also was unable to identify a natural disease or disorder that would have caused Farris’s death. Based on her examination, the medical examiner opined that blunt force trauma was not the cause of Farris’s death. Additionally, the medical examiner was unable to say whether strangulation or suffocation was the cause of Farris’s death, again due to the level of decomposition. As such this photographic/video evidence had extensive probative value as it shed light on a material fact. The Commonwealth was entitled to provide the jury with evidence explaining the absence of a definitive cause of death for Farris. Also, there was no other evidentiary alternative to demonstrate the extent of the medical examiner’s difficulty.
The Court acknowledges that both the photographs and video recording likely perpetuated some prejudice. Farris’ body was bloated, discolored, and insects were present. However, we have explained that as a general rule “a photograph, otherwise admissible, does not become inadmissible simply because it is gruesome and the crime is heinous.” Funk v. Commonwealth,
Here, the photographs and video recording do not display a body that has “been materially altered by mutilation, autopsy, decomposition or other extraneous causes, not related to the commission of the
CONCLUSION
The judgment and sentence are hereby reversed, and the matter is remanded to the Fayette Circuit Court for a new trial.
Notes
. Later, the Commonwealth obtained a superseding' indictment charging Rucker with second-degree manslaughter, tampering with physical evidence, and fraudulent use of a credit card over $500,
. Rucker also contends that the admission of this evidence violated his rights under the Fourteenth Amendment to the United States Constitution and Sections Two and Eleven of the Kentucky Constitution.
. Buck's Law Dictionary (10th ed. 2014) contains multiple definitions for "act,” but the one most pertinent to this discussion is "[s]omething done or performed, esp. voluntarily; a deed.”
. The Commonwealth also argues that Rucker opened the door to this evidence by putting his mental state at issue during opening statement. "Generally stated, ‘opening the door' to otherwise inadmissible evidence is a form of waiver that happens when one party's use of inadmissible evidence justifies the opposing party’s rebuttal of that evidence with equally inadmissible proof.” Commonwealth v. Stone,
. Rucker contends that the admission of this evidence violated his rights under the Fourteenth Amendment to the United States Constitution and Sections One, Two, and Eleven of the Kentucky Constitution.
. In arguing that this evidence was improperly admitted Rucker relies on Hall v. Commonwealth,
Dissenting Opinion
DISSENTING:
I respectfully dissent from the Majority’s opinion due to its application of KRE 404(b) and its finding of reversible error.
The Majority’s opinion today demonstrates an incorrect and inconsistent use of the KRE 404(b) exclusion. The crux of any 404(b) analysis centers on the proffered evidence’s objective. See, e.g, Davis v. Commonwealth,
As the Majority has already detailed, KRE 404(b) prohibits the introduction of “[e]vidence of other crimes, wrongs, or acts” used “to prove the character of a person in order to show action in conformity therewith.” The Majority’s analysis fails to find the existence of the rule’s second requirement for exclusion—that Rucker’s Facebook messages were offered to show action in conformity therewith. Instead, the Majority merely concludes that the introduction of Rucker’s Facebook messages violated KRE 404(b) because it showed that “he is a contemptible person of low character.” For many reasons, this is not the standard by which we invoke the 404(b) exclusion. Indeed, if the Court excluded all prior bad acts simply because they revealed the defendant’s shameful character, we- would have no need for the evidentiary rule. Such an analysis is more appropriate for the inevitable KRE 403 balancing test.
For these reasons, the Court should utilize the correct analysis, which investigates whether the Commonwealth’s introduction of Rucker’s messages was an attempt to demonstrate that he. was any more or any less likely to kill Ms. Farris, In this regard, the Majority’s reasoning that Ruck-er’s appetite for sexual communications somehow demonstrates a criminal propen
Nevertheless, I do agree that it was error for the trial court to admit Rucker’s Facebook messages pursuant to KRE 401, 402, and 403. First, Rucker’s Facebook messages had little, if any, relevancy to the case at bar. Whether Rucker was scared upon discovering Ms. Farris’ body is not a fact of consequence to the determination of the crimes charged. KRE 401. Moreover, the need to refute such a claim proves doubtful, as the statement that Rucker was “scared to death” was brief and occurred during opening statements. In addition, the evidence certainly induced prejudice as it demonstrated that Rucker was more preoccupied with satisfying his sexual desires than mourning the loss of his girlfriend.
Despite the error, I disagree with the Majority that the admission of Rucker’s Facebook messages rises to the level of reversible error. As explained below, the jury was informed of Rucker’s relentless infidelity preceding Ms. Farris’ death, The jury was also properly presented with evidence that he used Ms. Farris’ debit card to purchase a phone sex service. The prejudice Rucker endured from the introduction of his Facebook messages was likely negligible considering the amount of other evidence demonstrating his preoccupation with sexual communications. In light of the overwhelming evidence of Rucker’s guilt, including his admission to injuring Ms. Farris, the erroneously admitted messages likely had no effect on the jury’s ultimate determination. See RCr 9.24.
I also differ with the Majority’s conclusion that Rucker’s recorded sexually explicit phone messages were both irrelevant and unduly prejudicial. Rucker testified that Ms. Farris had provided him with a copy of her debit card and stated that she allowed him to use it prior to her death. Rucker was essentially claiming that Ms. Farris had consented to his use of her debit card. During cross-examination, the Commonwealth questioned Rucker about a specific charge on Ms. Farris’ debit card which was incurred from the use of a 1-800 number. Rucker acted clueless, claiming that he used her debit card for “some things I paid off, certain fees to social sites, personal sites, adult sites. I was paying off the fees for some of those. I believe that is probably included in one of those.” In response, the Commonwealth introduced the recordings to show that the charges actually arose from a paid subscription to a service whereby Rucker sent and received sexual voice messages with other women.
This Court has explained that “[a] ‘fact that is of consequence to the determination of the action’ includes not only a fact tending to prove an element of the offense, but also a fact tending to disprove a defense.” Dunlap v. Commonwealth,
For the aforementioned reasons, I would affirm the Fayette Circuit’s judgment and sentence.
Keller and VanMeter, JJ., join.