*1 Wayne DAVIS, Appellant, Gary OF KENTUCKY
COMMONWEALTH
Appellee.
No. 2002-SC-1092-MR. Kentucky.
Supreme Court of
Aug. Rehearing
As Modified Denial 18, 2004.
Nov. *5 Jeziorski, Anthen Murphy, John
Marc S. Harbison, Louisville, Counsel for & Stites Appellant. General, Stumbo, Attorney D.
Gregory Mathias, Jr., of the Attor- Louis F. Office General, General, Attorney Assistant ney Division, Frankfort, Appellate Criminal Appellee. Counsel of the Justice Opinion Court COOPER. Edwin Cox shot killed
James was p.m. 6:30 on November approximately of his standing in front resi- while Thomas Road Jefferson dence on Grove Immediately prior Kentucky. County, murder, talking was brothér Cox During that telephone. cellular on his conversation, Cox told his brother that a driveway parked grass it on the vehicle was driving slowly up and down his front of the separating fence the Rice and street, and that he going to see what properties. Cox Rice lying noticed Cox the driver wanted.1 Cox then terminated grass front propped of the truck up telephone Shortly thereafter, call. on his elbow with his hanging head down. Cox was found dead with gunshot seven person The exited the truck and shot Cox head, back, wounds to the and buttocks. head, in the him causing to fall completely murder, At the time of his Levy, Christina ground. The shooter next shot Cox ex-wife of Appellant, Gary Davis, Wayne in the buttocks. Rice heard a total of four residing with Cox. inwas North shots, to five saw the truck up back toward Carolina when the murder occurred. body, and then heard the truck’s tail- gate
A drop. Jefferson jury Circuit Court Because he later subse- observed the quently body lying convicted position a different murdering than Cox, 507.020, KRS tampering window, and of when he had seen it from Rice physical evidence, 524.100, by KRS at- surmised that the shooter had unsuccess- tempting dispose body. fully Cox’s attempted to load body into the trial court sentenced Appellant to concur- pickup truck. Rice could not determine prison rent fifty terms of years for murder with certainty the race gender or of the years and five for tampering physical shooter, color, make, or the or model of evidence. appeals He to this Court truck, as a except that the truck was dark right, § matter of Ky. 110(2)(b), Const. in color. *6 contending that the trial by: court erred police suspected The Appellant of Cox’s (1) admitting prejudicial irrelevant and murder because of relationship Cox’s testimony relationship about his with his Levy, Appellant who had divorced seven (2) ex-wife; admitting testimony about an months police before the murder. The unidentified in bullet found a vehicle leased Appellant interviewed regard- three times him murder; (3) to at the time of the ing relationship his and his ac- admitting unreliable scientific evidence day tivities on the of the murder. Appel- (4) track; about a tire admitting evidence testify However, lant did not at trial. for which a proper chain custody was officers who had him interviewed recount- (5) established; not denying Appellant’s alibi, ed his and one of the statements that motion for a mistrial after the son of a audiotaped had been played for the
juror was during murdered the course of jury. In his police, statements to Appel- (6) trial; refusing to direct a ver- lant described his activities on November dict of acquittal. Finding no reversible 13,1998, as follows: error, we affirm.
n n n n n n Sometime between p.m., 5:00 and 6:00 Rice, Robert he took his neighbor, nearby Cox’s next-door vehicle to a Michel partially Tires purchase witnessed the murder. store to He heard new tires. Be- a loud noise and went to a cause window to see the tire store to keep needed his car what happened. had person overnight, He saw a thin he rented a dark blue extended- entering pickup truck in driveway. Cox’s pickup cab truck from Enterprise Renb-A- person backed the truck out of the Appellant Car. planned claimed that he to trial, Appellant argued 1. At present this evidence it under impression excep- sense presented by 803(1). Cox's brother should have hearsay been tion to the Appel- rule. KRE hearsay. excluded as The trial court pursue admitted lant appeal. does not the issue on im- that he took Appellant, travel with to testified use the truck for weekend card, intending Enterprise Appellant’s at about 6:00 credit print friends. He left get exercise to p.m., Appellant’s returned home some fee charge rental gym at the 6:30 gear, day. and arrived between company Appel- the next card credit p.m. gym approxi- 7:00 He left the at however, morn- lant, Hall the next called mately remembering p.m. Upon 8:00 that he had decided him ing and informed birthday that week- party his sister’s day, Appellant Later that cash. pay end, plans, he decided to cancel his travel fee Enterprise, paid the rental went to Enter- and returned the rental truck cash, transaction void- and had the credit he returning again, home prise. After Enterprise Appellant returned ed. place employment, Caesar’s drove his attempted “re- later and few weeks Indiana, from casino where worked he memory regarding the fol- Hall’s fresh” p.m. approximately a.m. 8:45 until 5:00 (1) re- matters: that he had first lowing morning. next Jeep a black Cherokee automobile quested (2) truck;2 that he want- of a had instead from and Mi- Enterprise Documentation (3) beginning; pay cash from the ed to Tires rented Appellant chel indicated parked company van at that he had (not p.m. p.m.), the truck at 4:23 6:00 agen- from the rental lot across the street Ap.m. Tires took his car to Michel at 5:00 it; sign a for-sale cy placed employee former Michel Tires testified rental truck on that he returned the tire- routinely that the tire store finished in- gym. Appellant from minutes, way home jobs changing forty-five in about extremely impor- Hall that it was formed proba- and that the work order indicated a him to what he had Further, tant for remember p.m. time of 6:00 finishing ble couldn’t Enterprise just Enter- been told “for reasons he employee testified that Hall leaving, gave prise normally get closed for at 7:00 into.” Before business at casino. p.m. Appellant coupons and that returned the truck for use Caesar’s some left, immediately after approximately p.m., p.m. 7:15 not 8:00 Almost *7 Enterprise at to Appellant Enterprise records showed that officers arrived police had driven rental truck total of 34 Appellant’s the Hall about rental question miles. Commonwealth’s detectives who transaction. the Appellant
drove route that described (from police Enterprise apart- to to his CRIMES, I. OTHER WRONGS ment, to then Enter- gym, back to OR ACTS. total at 11.9 prise), measured the distance A. Motion in limine. miles; however, when with combined murder additional 22 miles to and from the theory The Commonwealth’s scene, the 33.9 hypothetical route totaled killing Cox motive for Appellant’s miles. Levy jeal- and with Christina obsession relationship with her. ousy of Cox’s sexual on The Commonwealth also cast doubt prior determine to trial wheth- In order to focusing Appellant’s claimed innocence theory by prove it could this evidence in the and weeks er days on his behavior conduct, Hall, specific instances of Common- following murder. Allen Cox’s KRE pursuant to the truck served “Notice Enterprise employee who rented wealth ex-wife, noted, suspicion Levy, not arouse infra, Appellant’s vehicle so it would 2. As It Jeep owned a Cherokee. could be inferred at it was seen the victim’s residence. if Appellant to wanted rent an identical 404(c)” of its intent to introduce door. In the Fall of the defendant of Appellant’s evidence life-long almost ob- to apologized Levy Ms. for his bizarre Levy jealousy Levy’s session stating just behavior that he wanted to men, relationships with and a other motion Levy. be Ms. for an in limine ruling that such evidence Spring Levy In the Ms. Appellant
was admissible. Because claims friendship. resumed defendant their the admission of this evidence was However, the defendant remained ro- error and the Commonwealth claims that mantically Levy. interested Ms. He preserve did not the issue for speak boy- her not to her asked about review, appellate repeat we verbatim the friend, hand, attempted to hold her recited in the Commonwealth’s clearly and took other actions which pretrial notice and motion. Levy demonstrated to Ms. that the de- Levy Ms. and the defendant met in was still roman- fendant interested grade. they the 6th Although did not occasion, relationship. tic On one well, know each other the defendant ad- Levy study. defendant called Ms. mitted to Levy years Ms. later that he Levy Ms. told the defendant that she home, used follow her unbeknownst guests. following At had 6:00 a.m. the her, in grade. Levy the 6th Ms. and the morning, defendant knocked her began during dating defendant Ms. looking acting agi- door disheveled and Levy’s sophomore year University at the laughed He disgustingly tated. [sic] Kentucky. relationship After their he saw Af- Levy’s boyfriend. when Ms. sexual, became the defendant became terwards, the defendant refused to very possessive In Levy. of Ms. speak Levy. to Ms. wrote defendant Spring of Levy Ms. ended the Levy a condemning Ms. letter. Ms. relationship with the He defendant. be- Levy and the defendant ties after broke gan begged to shake cry. He her to incident. this stay with him. He he would do said Levy Ms. married her first husband anything Shortly remain with her. January In the defendant afterward, the defendant searched Levy’s Ms. ask for parents contacted during Derby crowd Festival find phone Levy her number. Ms. called proceeded Ms. father. He to tell they began again. dating defendant Levy that unfit Mr. he was an father thereafter, Shortly Ms. invited the example Levy. a bad for Ms. defendant her home while her hus- *8 1986, In the Summer of defendant the out of town. They band was resumed waiting park- for in the began Levy Ms. Afterwards, physical relationship. their ing apartment complex during lot of her Levy began Ms. and the defendant see- night. all hours of the would blow He other ing regularly. each yell Levy horn or at his Ms. when he 1992, early Levy In Ms. moved to
saw her. He would ask her to talk with Lexington and the defendant followed. just him or in listen to a sit his car and occasion, They dating exclusively. were On Octo- song with him. On one Ms. 24, 1992, Levy Levy ber Ms. told the defen- and a friend the defendant told was for a they meeting were dant she her father having girls out. The night Instead, birthday dinner. out up defendant showed at the bar. After she went Levy’s of Ms. called the with her husband. When the one friends defendant stalker, defendant a left a that she was with her hus- the defendant discovered personal Levy’s band, of Levy’s box items at Ms. he threw Ms. husband’s him. Levy stay begged de- Ms. all the house. He clothes over was characterized relationship Their had of picture Levy that Ms. stroyed arguments. frequent and violent more Levy apologized husband. Ms. her broke hit walls and The defendant often the defendant took her dinner. Fi- during fights. their items household 1993, January having Levy In Ms. was working at Gobels. nally, Levy quit Ms. The at her home with her boss. dinner wondering upset, defendant was The He into her home. defendant stormed manage the they without how would the his and on grabbed some of clothes making. money Levy Ms. was re- way derogatory out several made in- Levy In of Ms. December Levy Levy’s boss. Ms. marks Ms. a di- the she wanted formed defendant the defendant outside. Once followed cried They defendant vorce. outside, put his hand defendant The change her her mind. begged Levy’s Ms. throat and slammed around to reth- Levy Ms. defendant convinced against defendant her a wall. The During this conversa- ink her decision. an hour later. apologize called to or so tion, The paged Levy. the victim Ms. began Spring Levy In the Ms. page and became defendant saw working with at his busi- the defendant paged very Later the upset. defendant became relationship ness. Their their Levy; signifying numbers Ms. due strained to financial difficulties Ms. wedding plus ’666’. When date of Ms. the defendant’s overall treatment the de- Levy went she discovered home Nonetheless, Levy. Ms. Levy agreed ring had his wedding fendant left marry During defendant 1994. mantel, all of pictures turned over frame, began time this defendant fireplace. a fire them left reading Ms. mail. opening Levy defendant knew Ms. honeymoon early On their terrified fire. upset Ms. defendant became so event, Levy stayed Ms. Despite this Levy for that he smoking slammed looking while with the defendant table, on a red on Ms. spilling fist wine relationship. The way to terminate the Levy’s white dress. Levy Ms. defendant continued tell Levy April began In Ms. danc- not want to five without would ing topless get back Gobels [a bar] money to break Levy her. Ms. needed at the for the felt he way defendant she began away from the defendant. She treating Ms. Levy her. lied working for escort service October an him that telling defendant she was work- December, In the defendant dis- ing as a waitress. The defendant items, credit card clothes and discovered working covered she was at Gobels. Levy that Ms. was work- slips indicating Obviously, relationship even became The defendant ing for escort service. speak- began more strained. Ms. Ms. extremely upset. He woke became *9 separation. ing of a shaking He Levy up at a.m. was 3:00 1995, Levy In met the summer of Ms. at yelling her. He threw boxes at victim, Cox, was James while she He her. He threatened kill her. dancing Levy developed Ms. He destroy Gobels. her. stated he would friendship the victim. At the his into doors body crashed the closet time, relationship tearing the de- them down. He smeared blood same her apart- as he They separated was on the front door left fendant shattered. conduct, while, an As the defendant cried and ment. a result this for but Emergency Protection Order was apartment [sic] entered her per- without her 9, issued on December protect 1996 to mission. Levy
Ms. from the defendant. occasion, On one the defendant went Despite Levy’s to Ms. Emergency mother. He began Protection Order, the defendant conversation began calling saying that Ms. she had Levy begging poor been a hang up example her not to Levy. on Ms. The him. He beg would her not conversation ended with to leave the defendant him. He on referred to the victim his knees begging as “Jim her to him help Ox” stating that “he was restore the relationship the lowest form with Ms. Levy. humanity.” The defendant continual- Levy Ms. began spending also time ly called the victim names and stated clients, with one of her escort Lee Otto. Levy that Ms. only was there because of Mr. Otto would messages leave on her the victim’s money. Levy Ms. employed answering machine telling her how won- a divorce attorney. derful she was and how much she was loved. The
In defendant knew February 1997, the code to the defendant Levy’s access Ms. Cox, messages. He Joy began called the wife of the victim. asking her who Lee Ms. was because he Cox told the defendant listening answering to her victim machine mes- Levy and Ms. having were sages. The defendant affair. confronted Ms. The defendant went to the vic- Levy and apartment Mr. Otto at an tim’s home. He watched the victim and complex. The defendant Levy yelling Ms. started through the window. As the that Mr. Otto was victim with another man’s Levy bed, and Ms. going were wife. The defendant called the defendant Mr. Otto a began banging on the “disgusting, dirty old man.” The door and defen- screaming for Ms. Levy to dant also derogatory come out shouted because he remarks wanted to talk with about the victim who was not present. her. The yelled, defendant “how can you be with this old fat man. I know In Levy October of Ms. moved you don’t love him. You said we would in with the victim. The defendant came marriage work our you’re always but their home and left Ms. cats in ,” with this fat Levy Ms. called the garage. the victim’s He did this unan- f— police. The victim chased the defendant nounced and without knowledge off of his property with a butcher knife. Levy Ms. April or the victim. In police When the they arrived asked Ms. Levy the divorce between Ms. and the Levy speak with the defendant. The defendant became final. just said, defendant “you cried and said The defendant admitted much of the
you would you work on us and haven’t.” plus aforementioned much more began defendant entering Ms. taped statement police on November Levy’s apartment lighting candles to 1998. The defendant admitted that scare her. The defendant also went caught Levy driving Ms. the victim’s through her drawers often leaving them they Mercedes while were married. He open. In the summer of Levy Ms. acknowledged that Levy he knew Ms. came home to find the defendant in her spending night at the victim’s apartment. Levy Ms. given had not home on several occasions in key. defendant a Ms. became ex- time frame. The defendant further ad- *10 tremely upset. The defendant admitted mitted that he Levy’s confronted Ms. that this was not the first time he had regarding Levy’s mother Ms. activities Haverty’s stat- contacted Furniture relationship. defendant dant and their The ing he Lee Otto in order find that when he discovered Ms. that was stated Levy working for an escort service to which the furniture was out the address angry. He acknowl- very he became The defen- going was be delivered. boxes, edged punched that he threw Crossing con- dant went Mallard yelled stated, at her. The defendant door and Levy. He Otto and Ms. front Mr. Joy that he contacted Davis, further admitted “Hello, I am hus- Gary I’m Levy’s relationship regarding Cox Ms. s- you the woman have been band of told him with victim. He she stated if also asked Mr. ing.” The defendant Levy Ms. were hav- that the victim and stating that Ms. Otto knew the victim ing learning affair. this infor- After years. him for two Levy had been with mation, acknowledged the defendant suggest- he admitted that The defendant home and that he went to victim’s together get the victim ed Mr. Otto and out the home several hours. cased to swap stories. Levy go Ms. started to to bed When spoke he defendant stated that The victim, with the the defendant admitted Levy to six weeks after with Ms. four dispute that he went to the door and a August, their became final divorce between himself the victim. ensued and acknowledged that he He re- further stated that on The defendant to the victim as liar and cheat. ferred several occasions afterwards he went to compulsive He victim a described the as Glenmary. house in victim’s new Levy to Ms. that she liar. He stated frequently stated that he The defendant with could not be love the victim would, times, by park drove at him his only that for mon- she Further, car and watch house. ey. defendant admitted that he looked two-page response filed Levy’s Ms. at through documentation limine, asserting that his con- motion her home. He discovered she at Levy and the victim the frontation a new Jeep owned Cherokee approximately sixteen victim’s residence $30,000 she had a in her boat name. murder too remote months before the The defendant even used Ms. Otherwise, he did time to be relevant. investigate financial account numbers to any proposed not fact specific address her financial situation. He admitted only proven by but be that he was aware Ms. had argued: $40,000 checking in her deposited ac- objects to Defendant the Common- money
count and that this had come retry wealth’s motion which seeks to from Mr. Otto. his civil portions salacious di- rehash acknowledged The defendant also Levy, proceeding with Christina vorce Levy’s relationship he learned Ms. paramour. The Common- victim’s acknowledged with Mr. Otto. He that he ... in time go wealth also seeks back discovered the connection between Ms. grade early as the defendant’s sixth Levy and Mr. because he would Otto signifi- are regarding perceives what it periodically Levy’s messages check Ms. relation- cant events in the defendant’s using the access re- code which Levy. This case ship with Christina togeth- from they membered when lived charged focus on the issue of the should er. The defendant that one of stated evidence to messages Mr. murder the admissible from Otto concerned prov- than an effort Haverty’s. prove from The defen- that rather furniture *11 ing “This Is Your course, Life.” Defendant’s infra, missible. Of as explained supposed “possessiveness,” “surveil- some facts set forth in the Common- lance,” and of confrontation his former wealth’s motion were admissible and oth- wife, Christina and victim do ers Appellant inadmissible. not did move up not add to or equal murder or a the trial court to amend the to rule order permissible/admissible motive for mur- any on specific proffered by facts the Com- ... der. monwealth. court, Even if deemed “relevant” this B. Trial. the Court should exclude Common- trial, Levy At testified for more than proffered wealth’s regarding examination, two hours direct repeating defendant, the marital history of the un- facts chronologi- same and the same case, der facts of this because its cal order as described in the Common- probative substantially value is out- motion. wealth’s She also to ad- testified weighed by danger preju- undue of facts, ditional some of which were both .... dice prejudicial, irrelevant and e.g., she ... simply The Commonwealth should pregnant during became her premarital permitted be interject not such “char- affair Appellant with and terminated the acter” evidence into trial of this ac- pregnancy by Appellant’s sug- abortion at tion to impermissibly prejudice the jury gestion, harassing that she hang- received and buttress its against case the defen- calls, up telephone insinuating Appel- dant. caller, lant and that she found Approximately Appellant one week after flowers her locked automobile she response, his filed the trial court entered a Appellant believed had placed Ap- there. three-page opinion addressing the three- pellant objected periodically leading test part set forth in Bell Common- questions, improper opinion testimony, wealth, Ky., (1994), 875 S.W.2d 889-91 etc., relevancy any partic- not to the but (1) (2) viz: Is the evidence relevant? Does history pertaining ular fact his probative it have proba- value? Is its Levy. substantially tive value outweighed by its More than hour into testimo- prejudicial effect? Noting that the evi- ny shortly finished and after she had de- “provides dence beyond information ‘char- the incident that scribing during occurred acter’ evidence” that it to prove tended their honeymoon Appel- March 1995 when identity, motive Appellant’s animosity lant slammed his against hand table Cox, toward the court all found that three dress, red causing spill wine to on her requirements set forth in Bell were met. approached defense counsel the bench The order recites that “the Common- following made the statement:
wealth’s Motion to Introduce Evidence of History Defendant’s Past previously, pursuant with Christina The court to motion added.) Levy is (Emphasis GRANTED.” hearing, Commonwealth is Thus, neither nor the court permitting testimony, this character undertook an analysis relevancy of the which would otherwise admissi- not be each individual proffered ble, fact objection. Com- our over want the We Instead, Appellant monwealth’s motion. to reflect that continu- record we have a objected general ing objection nature the evi- testimony this dence, ie., past history Levy, it before properly is character and not court the trial deemed it relevant and ad- the court.
721 (1991)(emphasis § Trial 402 or, a in the Am. Jur.2d also moved for mistrial 75 Counsel added). Larocque, v. 268 See also State alternative, limit- jury given the a be (“[A] (1997) 352, 806, 808 Ga. 489 S.E.2d ing admonition. The trial court overruled continuing a objection single constitutes objection for a the and denied the motion re specifically objection only when counsel a agreed give mistrial. trial court to continuing objection and the trial a quests of limiting admonition at the conclusion ob grants continuing a specifically court Levy’s testimony grant not coun- but did own or the trial court on its jection, when “continuing a apparent request sel’s for clearly designates objection as initiative objection” Levy’s to the remainder of testi- v. Hinds Cater continuing.”); Yankunos objections made mony. No further were 187, 520, Co., 521 Pa.Super. 196 A. 130 ing respect relevancy Appel- with the of to (1938) (“It object duty of counsel to is past history Levy. lant’s as it testimony of is to the introduction testimony, At the conclusion of offered, clearly it from the record unless jury the trial court as admonished partic made to rulings that the as appears follows: applicable to all questions ular shall be jury, of the at this I want Members time subject mat asked on the same questions admonition, you give following called.”). to Thus, all witnesses ter to testimony Levy may that the Ms. be continuing objections appropriate are considered, all, if at infer only possi- to a of error is the witness when claim identity Gary motive intent or e.g., ble or incompetent testify anything, to to is individual 322, Davis who killed James N.E. Rogers, v. Ill. 180 People 348 (marital testimony may Cox. The not be consid- 856, privilege); 857 any for purpose. ered other of the same declar- out-of-court statements rule, Sanchez hearsay e.g., ant violate the substantially This admonition resembled (8th States, 260, 293 F.2d 264-65 v. United orally requested the one by defense coun Cir.1961) (defendant, clearly ex who objection sel. There no to the word objecting all con pressed that he was to ing of the admonition. v. United States Cf. agent and government versations between (4th 120, 429 Graydon, F.2d 123-24 Cir. hearsay grounds, informant on was not 1970) (no reversible error where defendant required repeat objection each state object charge wording failed of Allen ment); evi or that same irrelevant jury). repeated by is when dence inadmissible C. Preservation error. witnesses, e.g., different Chatt v. Common wealth, 954 Ky. 103 S.W.2d “continuing Defense counsel’s ob (1937) (evidence threatened that defendant jection” preserve did not error re However, generally in it is third-party). spect any particular to the admission of objection continuing appropriate grant fact to which testified at trial. multiple offers of pertaining to issues request of a or on its own party At generally, under KRE which initiative, may grant court individually pursuant must be balanced continuing objection line ques- to a Mangiameli, KRE 403. United States Cir.1982) (“con but, (10th by pur- an opposing party, tions 668 F.2d poses or on wheth bearing of review the trial court a decision upon siderations continuing objection is effec- admit or exclude evidence under appeal, er to only questions sufficiently complex that dearly tive as to within are [those rules] ordinarily the trial scope. neither counsel nor its court rely should on a [continuing] objec case, murder defendant made motion *13 tion”). in limine to prohibit the introduction of “ ‘concerning evidence the events sur- Here, the trial court did not rounding the of charge first-degree rob- grant defense a continuing objec counsel bery and kidnapping against Pedro McKee and, obviously, tion each fact to which ” in Fayette Circuit Court.’ Id. at 183. Levy testified weigh would differently un trial, The motion was overruled. At der KRE e.g., testimony with objection McKee testified only without not respect threats, to Appellant’s prior vio participated he and had in Tucker victim, animosity lence and toward the previous robbery kidnapping, but also Cox, opposed as Appellant’s to evidence of that Tucker had to kill the wanted victim prior Levy, threats and violence towards witness, of those crimes to eliminate the Generally, herself. evidence of prior but that McKee had dissuaded him. We threats animosity of the defendant held that the fact was not latter within the against the victim is admissible as evidence scope of the motion limine. motive, of identity, intent e.g., or Goodman An objection prior made to trial will not Commonwealth, v. Ky., 285 S.W.2d appellate be treated court as rais- (1955), 149 whereas prior evidence of ing any question for review which is not against threats or violence an unrelated within strictly scope objection of the third-party generally regarded is as inad made, as both to the objected matter evidence, e.g., missible character Fugate v. to grounds objec- and as to Commonwealth, Ky. 202 260 S.W. tion. It appear question must that the (1924). Thus, continuing objection a to fairly brought attention Levy’s testimony, all of part of which was claiming trial court.... may One error clearly part admissible of which was rely not ruling on a broad and thereafter inadmissible, probably would not preserve object fail to specifically to the matter any error respect to the inadmissible complained of. parts. Otherwise, party a preserve could added). Id. at (emphasis by error simply making a continuing objec Usually, a motion in limine re tion to all by evidence offered the adverse quests an ruling specific advance on a evi- party pointing without out to the trial fact, dentiary theory not the case court which facts should be excluded and requiring proof multiple by facts. Where why. party specifies what evidence should be The issue now becomes any whether suppressed why, question has been errors occurring during Levy’s testimony “fairly brought the attention to of the trial preserved were because the trial court’s court” and the trial court’s ruling pre ruling on the Commonwealth’s motion in appeal. serves In the issue for that sce 103(d) provides: limine. KRE nario, opponent of the evidence need A motion limine resolved order of object not when the same evidence of is preserve record is sufficient error for However, fered at princi trial.3 the same appellate review. broad, ple not apply generic objec does naturally The Commonwealth relies tions. it example, For is unclear from the on Tucker Ky., opinion 916 Tucker that the motion in limine (1996). Tucker, In S.W.2d 181 another related to the defendant’s stated intent to 103(d) It ruling should be noted that KRE does not but the court authorizes to "defer a require pretrial the trial court to make a decision until the is offered at trial.” testimony. We note ble inadmissible so to leave no witnesses kill victim as 404(b) is not limit- at the that KRE prior only case or it related outset in the whether are criminal or unlaw- prior facts of the of- acts that to a claim that the ed other prove ful, any acts insufficiently applies similar offered fense were but oper- action con- charged offense establish modus in order to show character Lawson, committed the showing andi that he Robert G. formity therewith. Handbook, Billings charged offense. See v. Common- Kentucky Evidence Law *14 (1992). wealth, (4th 890, Ky., 2.25[2], 843 S.W.2d 893 LexisNexis § at 125 ed. 2003). in Appellant This is like Tucker that case presentation any objected to the of evi- 404(b) in KRE proscription supporting dence the Commonwealth’s proba apply evidence that is does not to theory any the case specifying of without proving a purpose a other than tive for why particular fact should other reason in order show action person’s character to suppressed. the trial court over- be After See, Billings conformity e.g., in therewith. objection to ruled his broad the Common- Commonwealth, v. 843 893. S.W.2d object theory, required to
wealth’s
he was
404(b)(1)
some of those
KRS
enumerates
at trial
those
inadmissi-
facts
deemed
motive,
including
oppor
“other purposes,”
for
to the
explain
ble
other reasons
intent,
tunity,
plan, knowl
preparation,
court,
requested,
if
his
grounds
identity,
or
edge,
or absence of mistake
103(a)(1). Nevertheless,
KRE
that belief.
However,
purposes
“the listed
accident.
have
Appellant may
because
been misled
rather
than
are illustrative
exhaustive.”
unambiguous language
of KRE
See,
2.25[5],
Lawson, supra,
e.g.,
§
at 151.
103(d),
possible
avoid a
claim of
Commonwealth, Ky.,
v.
96
Adkins
S.W.3d
ineffective assistance of counsel on this
(2003) (evidence
779,
police
lying
of
793
issue,
11.42,
RCr
will address its mer-
we
of
officer
to show consciousness
admitted
its.
Commonwealth, Ky.,
guilt); Bray v.
68
D. Admissibility.
(2002)
375,
(flight
country
384
from
S.W.3d
Appellant
contends that
tes
guilt);
of
used to show consciousness
timony regarding
longstanding
their
rela
Commonwealth, Ky.,
Springer v.
998
404(b)’s
tionship
proscrip
violated KRE
(1999) (evidence
439,
of
450
defen
S.W.2d
crimes,
against
tion
use of other
in
willingness
participate
other
dant’s
character,
wrongs,
to prove
or acts
some
used
three-person sex acts
to rebut defen
times
in
“propensity,”
referred
as
order
forced
dant’s claim that homicide victim
conformity
action in
therewith.4
show
acts). Thus,
her
in such
we
participate
object
Appellant
specifically
Since
did not
apply
test
forth
Bell
three-part
set
relevancy
any
“past
of
histo
Commonwealth,
ad
supra,
v.
to determine
trial,
ry” testimony at
but
on
relied
the missibility:
overruling
previous
trial court’s
order
his
(1) Relevancy.
objection
motion,
to the in limine
we need
any
Levy’s testimony
Appellant’s
Evidence of
extreme
not consider
Levy
jealousy
any
with
was not recited
that motion. Neverthe
obsession
less,
hybrid
Levy
other man
had
that evidence was
of admissi-
with whom
social
Appellant
relationship
Habit evi-
does not assert that the evidence
with another man.
evidence,
question
prohibited
is
permitted Kentucky.
habit
is not
Burchett
dence
i.e.,
always
jealousy
Commonwealth,
(2003).
that he
reacted with
Ky.,
724
or relationship Levy’s relationships Cox, sexual fell within the “oth Otto purpose” exception er it because tended merely and even more so to her dining to prove a motive for to Mil her first and her employer, husband Ranstrom, People Cox. v. 304 Ill. See negatively Appellant’s reflected charac- 664, 638, App.3d 237 Ill.Dec. 710 N.E.2d However, ter. the evidence illustrated his (“We (1999) 61, 69 conclude that the at animosity any toward man whom he sus- tack on difficult to [the victim] would be pected receiving Levy’s affection or at- explain introducing without a substantial tention. v. 275 Cf. Huff concerning amount of the evidence defen (1938) (evi- Ky. S.W.2d dant’s behavior [the obsessive toward de upon dence accused became incensed Nance, ex-girlfriend].”); fendant’s State having property attached and his 148 N.J. 689 A.2d garnished wages and said he would (“although was not [defendant’s ex-wife] *15 anyone kill who to attach undertook his homicide, the victim of the defendant’s property prove admissible to motive to Mil jealousy her can a prop toward establish victim who caused attachment to issue explain er why motive to defendant acted against property). accused’s Conduct way against [victim], who he did had a jealousy-driven demonstrating Appellant’s [her]”). good relationship In Price animosity especially toward Cox was rele- Commonwealth, v. Ky., 31 885 S.W.3d in vant since Cox was the victim this case. (2000), recognized validity we of third- See, e.g., Ky., Todd v. 716 party in obsession evidence a different (evidence 242, 249 of ac- S.W.2d theory context. in The Commonwealth’s on alleged prior cused’s assaults victim sexually Price was that defendant was “ ” prove feeling’ admissible to ‘state stepdaughter obsessed with his whom he thereby between the two and establish mo- raped, had and that he murdered wife tive). because his contin she was obstacle to in determining A factor to consider relationship ued with his stepdaughter. to prove whether evidence is admissible upheld We the trial court’s refusal to sev depends on the issue of motive whether er charge rape the murder from the Lawson, is in dispute. motive actual su- charge, rape would evidence 2.25[3][b], Here, § at pra, 127. the de- have been admissible in the murder trial complete Although fense was denial. prove Appellant’s motive of sexual ob jury infer of obsession could a level session. Id. at jealousy Levy from respect Appel- behavior, Appellant’s Evidence statements, own that lev- audiotaped lant’s which dated back to the sixth con- grade, magnitude el nowhere near the illus- through college, during tinued first by Levy’s testimony. trated marriage, failure of and even after the Appellant’s marriage Levy, illus- own (2) Probativeness. magnitude obsession.
trated the of his Bell test aspect This of the relates Ranstrom, 638, N.E.2d at 237 Ill.Dec. 710 evidence that to whether there is sufficient 69 that tri- (refuting argument defendant’s crime, actually or act” wrong, the “other al court should have limited obsession). Bell, 890; at occurred. Law 875 S.W.2d presented regarding.his Levy son, 2.25[3][c], § supra, at 130. The issue testified at that she known had never (“conditional 104(b) or is resolved under KRE dating any heard of even relevance”) doubt, by the evidence if admitting woman than herself. No evi- other reasonably jury conclude that Appellant’s dence of violent could reactions
725 reject ar Appellant’s also act that the We occurred and defendant Levy Hud described was the actor. Id. at 131. See also the events gument 689, States, 485 dleston v. United U.S. to be relevant. too remote time were 1496, 1501, 771 108 99 L.Ed.2d testimony S.Ct. used about The Commonwealth (1988); Commonwealth, Ky., 952 Parker relationship with Appellant’s longstanding (1997). Appellant’s 214 claim S.W.2d that his obsession with Levy to establish prove insufficient to the evidence was Generally, him to kill Cox. her motivated cats person placed that he was the who is a factor deter temporal remoteness garage Cox’s fails. testified mining admissibility grounds but is not Appellant had been cats awarded the exclusion; heavily more remoteness bears Further, their settlement. Cox’s divorce weight admissibility. English, than on aunt, Shirley inci Carroll verified that this 944; Lloyd, State v. 354 993 S.W.2d dent occurred. (2001) (“re N.C. S.E.2d
(S) significant is Prejudice. moteness in time less when is ... prior conduct used show Although proba relevant and omitted). ”) (internal quote motive ... tive, if evidence can still be excluded inquiry gov This is fact-intensive not probative substantially its value is out bright-line erned strict standard. weighed by prejudicial its effect. KRE *16 (2003) (“But § 416 Am.Jur.2d Evidence respect 403. A trial court’s decision with the regarding there is no absolute rale balancing to the KRE 403 test reviewed is that acts separate time can the extraneous of v. abuse discretion. Johnson Com offense; rather, charged the from monwealth, Ky., 430, 105 438 S.W.3d applies a standard court reasonableness (2003); Ky., v. English, Commonwealth the facts and and examines circumstances 941, (1999). 993 945 no S.W.2d We discern case.”). Robey See v. of each also Com above, abuse of discretion here. As noted monwealth, 616, Ky., 943 618 S.W.2d Levy’s testimony to was crucial the Com Lawson, 2.25[3][b], (1997); § at supra, proved case monwealth’s because it that Appellant’s obsession with 129-30. As Appellant had a to kill Law motive Cox. many years, Levy spanned the Common (need son, 2.25[5], § supra, at 146 for evi temporal was to introduce wealth entitled dence proving greatest motive is and rele ly magnitude remote show the evidence vance is clearest of when defense is denial any dispel of his obsession notion act); v. criminal Williams Common cf. suddenly might that it Fleenor v. subside. wealth, (1991) 511, Ky., 810 513 S.W.2d 1, Commonwealth, 526, Ky. 255 75 S.W.2d (Commonwealth’s need for evidence rele (evidence (1934) 2 of conduct defendant’s vant decision to admit defen whether years to murder was not too shots). prior two mug dant’s the ad Additionally, evidence that remote time “there was by given monition trial in this judge feelings bad had existed between the [de substantially mitigated prejudicial case date”). that See victim] fendant and since Lawson, supra, effect of evidence. Commonwealth, Ky., Lear 884 (“[T]he also v. 2.25[3][d], § at ‘prejudice’ (1994) (“The 657, S.W.2d 660 remoteness component balancing of the formula can be admonitions.”). uncharged of a in time acts is concern Young affected See carefully Commonwealth, weighed part as a which must be Ky., 25 73 S.W.3d (2000) (admonitions Those of a court’s decision. concerns substantially reduce are, however, tempered prejudicial impact un- when acts of evidence of acts). clearly charged question so show such well-de- 726 pattern conduct.”);
fined already continuous of admitted objection). been without Dickerson, States v. 248 F.3d only incident, United honeymoon That leaves (11th Cir.2001) governing ie., 1046 (“principles an that on occasion more than three ... other crimes evidence are the same years murder, prior and a half whether the conduct or after occurs before angrily reacted de- his wife’s (internal charged” quotes offense omit- a cigarette. sire to smoke We review the ted)). of admission that evidence for harmless error, 9.24, easily RCr conclude Also, portions Levy’s testi of that the exclusion would evidence alone mony, even if inappropriate, were harm changed not have the outcome of case. Specifically, Appellant less. asserts that Commonwealth, Abernathy v. Ky., 439 (1) evidence of his upon violent outburst (1969), S.W.2d other overruled on discovering that Levy prostitute, was grounds by Ky., Blake v. prompted Levy which to obtain EPO (1983). S.W.2d him, against the incident on their honeymoon when he his hand slammed Appellant also contends a table because Levy wanted smoke a Levy evidence that feared him cigarette, spilling glass of wine on him her friends referred to as “the stalk dress, only to prove relevant However, er” irrelevant. prejudicial character for his violence. The stalking Appellant’s Levy was relevant effect evidence that a husband reacted her, prove his obsession with tend thus violently upon learning his wife was a ing Appel kill prove motive to Cox. practicing prostitute is doubtful best. statement, lant also admitted his own Nevertheless, Appellant’s own admission admissibility of which he does chal not reaction of that and that obtained an *17 lenge, “played he by that Columbo”5 moni against audiotaped EPO him in his state Levy’s toring activities. He no raised police, ment to the which he does not objection hearsay to “the evi stalker” challenge appeal, Levy’s rendered tes dence. was evidence of fear Levy’s Nor timony and, respect cumulative prejudicial. logically It followed from her thus, Allgeier harmless. See v. Common about reac testimony Appellant’s violent wealth, (1996) 745, Ky., 915 747 S.W.2d relationships tions to her with other men (harmless testimony error occurred where Appellant and that would follow her objected which essentially defendant permission. enter her home without objection duplicated offered without Commonwealth, Ky., v. 12 Fields S.W.3d witness); by another v. Chumbler Com (2000). 275, 284 monwealth, 488, Ky., 905 S.W.2d 494 (evidence (1995) jail was in Finally, Appellant argues accused that the harmless because same evidence was elic erroneously Levy’s court admitted testimo- from objec ny ited another operandi. witness without as evidence of modus How- tion); Commonwealth, Ky., ever, Lair v. 330 a review of the court’s in limine (1960) (evidence 938, S.W.2d 940 that ac jury order and admonition to the reveals had than cused committed more one of that the did not admit testi- court mony fense harmless because evidence that he evidence of operandi, as modus argument. had committed other similar offenses had mooting this 5. Columbo was the title in a character televi- chives/etv/C/htmlC/columbo/columbo.htm 6, during (last 2004). show about a aired sion detective that visited-April http://www.museum.tv/ar- the 1970's.
727 time, by place, crime II. OF linked the IDENTIFICATION Commonwealth, v. REAL EVIDENCE. circumstance. Cook (1966). proof 53 “The Ky., 401 S.W.2d McClain, Enterprise em- Kenneth connection; need not show the positively day testified that on the after the ployee, the proof rendering there must be but murder, that Appel- he cleaned the truck from its probable or inference reasonable so, and, doing lant had rented while found other cir- place nearness in time and or telling After bay. the wash a bullet Commonwealth, v. Barth cumstances.” bullet, employee the he dis- another about (quoting 402 Ky., 80 S.W.3d the carded it. He did not know caliber Ky. Higgins it was larger but testified that the bullet (1911)). 1135, 1138 See also 134 S.W. by to him displayed than the 9-mm bullet (evidence 901(a) (Cox must “sufficient KRE be shot prosecutor at trial. of a link support finding” between bullets, larger caliber which are with .38 case). bullets). demonstrative evidence Relying on the than 9-mm Com- bullet, inability produce monwealth’s to the crime The bullet was linked testimony asserts that McClain’s Appellant it McClain found while by time because have been because the should excluded day the mur cleaning truck the after insufficiently linked to the bullet was also linked der. bullet disagree. crime. We A inference place. crime reasonable produce The failure to the bul testimony Appellant’s from the brother let, alone, standing is not fatal perpetrator Rice was that the Robert State, testimony. McClain’s Evans v. inside the shots Cox from fired some of (Ind.1994) (jailer’s N.E.2d testi truck, truck of the making part powder mony bag found of white linked Finally, crime bullet was scene. residue defendant’s admissible pocket identify by circumstance. To to the crime though bag even State lost failed shooter, the Common powder; bag to test the absence affect lack of presented wealth weight admissibility). rather than A ed handling guns. The victim familiarity in can testify witness to what was observed In times. to sev was shot seven addition *18 identify if unable to each positively even casings, rounds empty en shell five live Thus, testimony of it. aspect McClain’s A ex the scene. firearms were found at larger found a than a that he bullet 9-mm explained person that if a unfamiliar pert cleaning Ap bullet while the vehicle that shooting guns an automatic were previous evening had rented the pellant racking know weapon, might not he the charges admissible if relevant to in weapon expel live rounds the would against Appellant. in cartridges. “Racking” of spent stead gun’s the slide backwards. pulling volves Relevant is evidence that evidence According expert, certain non-auto “any tendency to make the existence has rack guns operator the require matic consequence the any fact is of in order to reload gun the between shots action more ... or determination the casing. expel spent the the chamber and than it would be without the probable less However, is unnec racking between shots KRE evidence.” 401. As McClain’s testi thus, instead essary guns; demonstrative, real, with automatic or mony concerns evi casing, racking expels spent absent), expelling (though it is relevant if the dence police officer testi identified, a live round. Another can Law properly be Appellant 11.00[2][e], 842-43, e., he asked what son, § fied that when supra, i. about guns, Appellant knew replied that he unpreserved issue is only and renewable little, very knew and then made a racking palpable error. RCr 10.26. We have gesture. expert The firearms theorized previously held that the failure to conduct that Cox’s expelled murderer six live a Daubert review does not pal- amount to (one rounds between each of the seven error, pable Tharp v. Ky., shots). scene, Five were found at the (2000), 40 S.W.3d and we decline one could draw a reasonable inference that to “speculate on the outcome of an unre- the sixth was the bullet found in the En- quested Daubert ....” hearing Id. terprise bay. wash IV. CHAIN OF CUSTODY. conclusive,
While these links are not
Appellant next
claims
the trial court
rules of evidence do
require
not
them to
erroneously
Barth,
admitted into evidence pieces
be.
729 (1996). Also, juror’s in a identifiable, cases where even properly the trial court readily the victim See, or relative has been own friend e.g., them into id. admitted evidence. crime, judge a the need not strike of victim (piece of concrete used to assault juror for cause. Woodall v. Common- v. impervious change); United States (no (2001) wealth, 104, (7th Cir.1988) 118 Ky., 63 S.W.3d L’Allier, 234, F.2d 242 838 juror sister for cause whose (sweatshirts need strike properly despite admitted Commonwealth, v. Butts raped); had been custody). break in chain of (1997)(no 943, need Ky., 953 945 S.W.2d OF SON. MURDER JUROR’S Y. raped juror for who had been strike cause expressed ability impartial). to be but trial, During the course of the the Here, even prejudice potential jurors son of one of the was shot killed attenuated, jurors as the did more other cemetery. The court a trial excused matters juror’s It not even know son. However, juror as an alternate. another juror’s of son little that the death juror the shooting of and informed learned trial; in situations during occurred even jurors Appellant about it. moved for other jurors ex- improperly where have been a alternatively requested mistrial and trial, coverage during a posed media the judge individually question juror each moving mistrial unwarranted unless the is as to whether the incident would affect his prejudice. party demonstrates actual impartiality. judge or her The denied Byrd Ky., v. S.W.2d mistrial, questioned for a motion but (standard publici- 274-75 where jurors requested, asking, as generally ty inherently prejudicial is not or unusual- juror tragedy yester has “One suffered extensive), ly grounds overruled on other day. anything Is there about this occur Commonwealth, Ky., by v. Shadowen rence, any regarding or discussion this (2002). Appel- 897-98 Since S.W.3d occurrence, your ability would affect prejudice, lant prove failed to actual All impartially sit this case?” of motion for properly trial court denied his jurors responded they adju could still mistrial. impartially. Appellant dicate the case now argues juror’s that since both and the Cox SUFFICIENCY OF VI. by gunshot, judge son died the trial should THE EVIDENCE. jurors granted have mistrial because the Arguing that the Common might potentially as a Appellant scape use solely him against wealth’s case consisted goat obtaining or as a revenge means evidence, con of circumstantial juror’s for the death of their fellow son. denying tends that the trial court erred
A only mistrial is warranted acquit a directed his motion for verdict extraordinary circumstances. Maxie However, tal. circumstantial evidence Commonwealth, Ky., 82 S.W.3d 863 may long for a so form the basis conviction (2002). remaining ju Because all of the is convince a evidence sufficient to capable that they rors stated were of de guilt. v. Com jury reasonable Bussell ciding impartially despite the case the monwealth, Ky., 882 S.W.2d juror’s son, (1994). tragic death another case was suf this properly trial court its discretion testimony exercised purpose. Levy’s ficient for that *20 in Appellant’s motive, for a denying Appellant’s jealous motion mistri ob established impact her, al. exposure consequent “It is the informa and ani session over Cox, person boy tion is determina her upon mosity has which who was toward Rice, tive, exposure only eyewitness, not the itself.” Gould v. friend. While Co., by Ky., positively identify 739 could not the shooter Charlton 929 S.W.2d gender, race or he testified that the shoot rental fee removed from his credit card pickup er drove a dark Appellant, murder, truck. account. Weeks after the on the himself, conceded posses day police that he was in same were scheduled to sion of a speak person rented dark blue with the pickup truck who had him rented truck, when Appellant Cox was murdered. again The truck’s returned to the agency odometer showed Appellant person asked had driv “remem- miles, him, en 34 ber” a key and that the few details for distance from then re- person warded that agency residence, coupons rental with free Appellant’s use Caesar’s A gym, scene, jury casino. reasonable murder then back to could interpret this agency the rental evidence as was 33.9 A indicative miles. tire of a expert guilt. consciousness testified that the rental truck’s tires were consistent with the tracks left at the Accordingly, Appellant’s convictions of crime scene. An employee of the rental murder and tampering physical evi- agency found a in bay bullet the wash dence and the imposed sentences therefor cleaning while day truck on the after are AFFIRMED. the murder. While strongly LAMBERT, C.J.; GRAVES,
contests this credibility, witness’s it is the JOHNSTONE, WINTERSHEIMER, prerogative jury of the to judge credibility. JJ., concur. Benham, Commonwealth v. Ky., 816 (1991). 186, 187 S.W.2d KELLER, J., part concurs in in part by dissents separate opinion, with The bullet found in the bay wash STUMBO, J., joining that opinion. accounts for the live round of ammunition missing from the crime scene. Additional KELLER, Opinion by Justice ly, Appellant’s admitted unfamiliarity with concurring dissenting part. firearms and racking gesture he made I believe that under the clear and unam- when asked knowledge about his guns is 103(d), i.e., biguous language of KRE “[a] consistent with the Commonwealth’s theo motion in limine resolved of rec- order ry that the shooter unnecessarily racked ord preserve ap- is sufficient to error for gun shots, between explaining the five review,” pellate occurring during errors live rounds found at the scene and the Levy’s testimony preserved by were sixth round found in the bay. wash This trial court’s order overruling Appellant’s theory’s dependence on whether the shoot objections to the Commonwealth’s motion er used an automatic weapon and the limine, and, therefore, extent that inability Commonwealth’s to locate the Tucker v. Commonwealth1 holds other- weapon irrelevant; are on a motion for a wise, it Accordingly, should be overruled. verdict, directed the trial court must draw 1(C) (Preservation I dissent as to Part all fair and reasonable inferences in favor error) otherwise, of the majority opinion; I of the Commonwealth. Id. concur.
Appellant’s attempts to conceal evidence STUMBO, J., joins opinion, this also create an inference of guilt. See concurring part dissenting part. Smith v. Ky., 712 S.W.2d (destruction of evidence guilt). indicative of morning after the
murder, he returned to the rental agency pay cash for the rental and had the (1996). Ky., 916 S.W.2d