*1 (1) probability therefore, regard, sonable the acts were and I would reverse (2) by committed person, Appeals Appellee’s same Court of and affirm and/or were accompanied the acts the same conviction. rea.” English,
mens Commonwealth v. 941, (Ky.1999). SCOTT, WINTERSHEIMER, JJ., 993 S.W.2d The and “strikingly similar” does not requirement join this dissent. the facts in all
necessitate to be identical Commonwealth, respects. Dickerson v. 451, (Ky.2005). case, prior bad acts was of did, fact, fered that the crimes (the delicti) corpus occur demonstrat ing operandi. a modus id. at 468-69. See of fact There numerous similarities Sr., Appellant, R. Dennis GREENE
surrounding charged of sexu- instances v. prior al abuse and S.B.’s bad acts testimo- ny. All three of the victims were females Kentucky, COMMONWEALTH of age under of consent. All the acts Appellee. during “outing”
were committed an No. 2004-SC-000046-MR. sort, sleep some while the victims went to Appellee with next to them. night lying Kentucky. Supreme Court of to Appellee S.B. was related 18, May 2006. not, J.R. where and H.S. were all three victims were close to and were in Appellee Rehearing Aug. Denied 2006. vulnerability position of trust and to him. surrounding allegations facts
The differ, majority also abuse and as the notes, attorneys will on each side invari- and
ably produce lists of similarities dis- prior similarities between the acts and bad However, is the trial present facts. weigh court’s function to and evaluate ruling, facts making these when its ruling this Court should not disturb such absent abuse of discretion. Matthews (Ky. 2005). In weighing the similarities abuse, between the instances of
differences court the trial did not abuse its discretion Dickerson, admitting the evidence. Cf. (Evidence at 468 act of supra, prior of a sodomy was inadmissible victim where any constituting
“did facts offenses,” not even tes- the sexual and did occurred). The tify where the acts in this trial court is entitled to deference *3 Office, Frank- Attorney General’s
peals, fort, Appellee. Justice SCOTT.
Opinion the Court
I. Introduction was tried and Appellant Dennis Greene County Jury by a Kenton convicted wife, the murder of his 2003 for November life He was sentenced Tara Greene. *4 to this court as appeals and now prison 110(2)(b), § Ky. Const. right, matter (1) error, asserting viz: six claims was insufficient to he evidence was acting an extreme emotional under (2) (EED); court al- the trial disturbance by KRS 421.350 not covered lowed minor outside the courtroom via to (3) television; the trial court circuit closed into the minor’s inquire failed to whether personal ob- product was the adults; servation, coaching than rather (4) gruesome the trial court admitted (5) the trial photographs; scene crime “hip hop” portions of a court admitted rapping about depicting video defendant after the of- his wife’s with friends death (6) fense; court admitted the trial testimony about unduly prejudicial defen- past dant’s affair. herein, out we affirm
For reasons set trial judgment of the court.
Background II. Factual established
Medical “her throat from by cutting killed his wife ear, deeply scraped that it to so ear death, day of he left spine.” On the her he early go leaving, home. Before work to friend, “I’m to do it. I’m going told Arnold, Ad- Timothy G. Assistant Public kill her.” going vocate, Advocacy, Public Department of Frankfort, Appellant. home, ar- they began to Upon arriving him argument she told Stumbo, Attorney During gue. D. General
Gregory Jr., four different had been unfaithful with Floyd, J. Assistant she Kentucky, Samuel General, Criminal Attorney Ap- men. Office dinner, son, C.G.,
After she and their al disturbance at the time of his wife’s went to his bedroom watch death. TV. While
there, Appellant contends he heard
son
In
regard
we noted in
Holland
yelp
pain. Appellant went to the bed- Commonwealth, 114
room to check on
Tara
C.G.
then left the
Messer,
(Ky.2003)(quoting Coffey v.
bedroom and
went to
kitchen.
(Ky.1997)),
evi-
“once
produced
dence
to prove
the existence
Appellant claims
then
C.G.
showed him
EED,
‘its absence
be[came]
element
a red mark on
his shoulder.
lit
” Moreover,
of the offense.’
KRS 500.070
marijuana
cigarette and went
to the
establishes that
the Commonwealth has
kitchen to confront Tara. She took the
the burden
proving every
element of the
cigarette,
it,
grabbed
he
and it fell down
beyond
Here,
case
a reasonable doubt.
her shirt.
Appellant.
She
hit
then
He
the essential elements are set out in KRS
grabbed her and
her in a
put
chokehold.
(murder)
(man-
507.020
and KRS 507.030
in,
C.G. then
walked
was sent back to
slaughter).
his room. Appellant then reached behind
him,
regard
how EED
fits into this
grabbed
turkey knife,
and “cut her
*5
statutory pattern,
prior
our
decisions have
throat.”
established that
He
dropped
then
her to the floor and
person
A
is
of
guilty murder
KRS
under
covered her with
changed
a blanket. He
507.020(l)(a)
if
intentionally
he/she
pants
shoes,
his
jacket
put a
on over
another,
causes the death of
“except
bloody shirt,
his
and took C.G. to his moth-
in any prosecution
person
shall
be
not
er’s house.
left
Chicago,
He then
for
guilty under this subsection if he acted
where he claims
to kill
planned
he
himself.
under the influence of extreme emotion-
During
trip,
calls,
made
he
several
al
disturbance
which there
awas
most to his
Chicago,
friends in
but several
excuse,
reasonable
or
explanation
lover,
were made to a
Amy
former
Baum-
of
reasonableness
which is to be deter-
gardener,
joined him
who
in Chicago.
viewpoint
mined from
of a
person
Upon
arrival,
her
Appellant was making a
situation under
cir-
defendant’s
friends,
of rap videotapes
series
with his
cumstances
the defendant
as
believed
of
several which
on
thoughts
reflected
them to
person
guilty
be.” A
is
man-
and actions related to Tara’s death.
slaughter in
degree
the first
under KRS
body
by
Tara’s
police
was found
507.030(l)(b)
who
intentionally
he/she
quickly
suspected Appellant.
They
causes the
cir-
death
another “under
learned
atwas
a friend’s house
cumstances which do not
mur-
constitute
8th,
Chicago.
May
On
the building Ap-
der because
acts under
he
the influence
pellant was in
disturbance,
was surrounded. He was
of extreme
de-
emotional
(l)(a)
by
later talked out
the Chicago Police.
fined
of KRS
subsection
507.020.”
Commonwealth,
Fields v.
44 S.W.3d
III. ANAYLSIS
(Ky.2001) (quoting
356-57
McClellan v.
A. EXTREME EMOTIONAL
Commonwealth,
(Ky.
DISTRESS Thus, act, acts, argues first that the evidence or same series of was insufficient Appellant may be murder or in the manslaughter acting was not under an extreme degree emotion- first on depending finding
81
distress is matter
Admittedly, there have been some
treme emotional
EED.
They
a matter of the
prior
con
....
inconsistencies
our
decisions
evidence
each homicide.”
is
circumstances of
cerning
party
properly
which
encum
However,
of proof.
bered with
burden
not
“An instruction on murder need
opinions
categorized
our more recent
require
to find
the defendant
it,
EED, more
properly,
or
the absence
under
of ex
acting
the influence
offense,
as an element of the substantive
disturbance unless there
treme emotional
than as a
Holland v.
rather
defense. See
suggest
in the
something
is
Commonwealth,
(Ky.2003);
792
114 S.W.3d
was, thereby affording
for a
he
room
Commonwealth,
Stopher v.
wealth, 800, 801-02 2003, May 4, noon of he found C.G. was denied, cert. 414 U.S. 94 S.Ct. supervision, outside without adult (1973). L.Ed.2d 479 was in playing dumpster C.G. and that Here, was years C.G. seven old drinking. his wife had been He stated witnessed, and had at partially, least his son, his wife later their struck and struggle just prior mother’s with his father got that he and his wife into a physical to her death. C.G. stated that on the in began altercation the kitchen when she night Appellant grand took him to his smoking marijuana cigarette. his He told mother’s, parents his had been in the liv got the officers that he then his in a wife ing room and kitchen while he his was head lock or a chokehold and that he kitchen, room In watching television. choked her for three two to minutes. At “my C.G. said he daddy pushing my saw kitchen, point one C.G. came into the mom against counter my daddy and Appellant told him to back to his go room choking my mommy.” He he stated that finally and said Appellant just he saw his dad both using hands to choke his him, “snapped,” got reached behind a knife mother, this, and after he seeing went drawer, “poked” out and his wife to his room. He stated that mother his then dropped the neck.2 He stated he her fell He did backwards. not remember floor blanket put over her watching evening TV with his mother that shoes, body, changed pants and put his home, Appellant while he de jacket bloody over his shirt and took C.G. nied that his mother had hit him. He said to his mother’s in Cincinnati. home From playing that he was when dumpster Chicago, calling there he drove to several home, his got dad and his dad made him along way. friends go inside. brief, friends, Kirst, As noted One of his Matthew testi- fied that called him it is clear that C.[G]. did not witness the afternoon, expressing work that his frus- crime, and his did not refute saying, trations with Tara and in regards any significant aspect [Appellant’s] wife, “I’m going to his do it.” The police. two statements The Common- Appellant called Kirst later that night back proved wealth did not ever cite to a fact him “I it. and told did It’s over.” argu- C.[G.’s] alone in its *9 addition, ment, “rap depict the they. Appellant nor effect videos” only could The Chicago killing, that in excluding testimony rapping after the with C.[G.’s] friends, have making had on the Commonwealth’s case such as: statements ear, 2. It cut it being deeply should be medical evi- "from ear so that remembered.the dence scraped spine.” established Tara died from her throat the (cid:127) does mad, admissible tograph I had to is otherwise “B-made me and inadmissible simply because My her is Dennis not become take life. name the crime is heinous.” got ing gruesome and I ain’t no wife.” Greene is f— therefore, is question, The threshold (cid:127) I givin’ “I be it to her gonna knew was admissible photographs the were whether I got ... when home...” place. in the first (cid:127) “I cut her motherf —in’ neck with sword...” “all rel KRE 402 establishes essence, the concedes KRE 401 is admissible.” evant evidence redundant, basically C.G.’s was states: other than as to whether or not his mother means evidence “Relevant evidence” him, in hit when he and his mother were any tendency to make the exis- having together watching his room TV. Given of any consequence of fact that is tence tes- discrepancy one minor between C.G.’s determination more of the action to the timony and hard to Appellant’s, the it is it would probable or less than probable any envision C.G.’s was evidence. be without the way “critical” case. Commonwealth’s other Quite plainly, the Commonwealth’s are relevant evidence photographs The Appellant’s evidence of mental state they of the prove the existence because overwhelmingly supportive actions were injuries. physical victim’s Because ultimately jury relevant, verdict returned they are admis- photographs are in this case. they properly unless excluded sible KRE 403 states: another rule evidence.
Thus, when evaluated within the context evidence, remaining the error relevant, may be ex- allowing testify C.G. outside probative cluded its value is substan- courtroom harmless. was by the of unfair tially outweighed danger issues, or confusion of the prejudice,
C. MINOR’S COMPETENCY misleading jury, byor considerations TO TESTIFY time, or need- delay, of undue waste Having already testi- determined C.G’s presentation less of cumulative evidence. error, harmless, mony any was albeit issue becomes whether question The then and, competency to moot as to his is relevant, be although should photographs, thus, will not be addressed. effect prejudicial because their excluded substantially probative val- outweighs their D. INTRODUCTION OF showing extent Photographs ue. PHOTOGRAPHS are, very by their injuries victim’s Appellant next the trial charges nature, prejudicial, photographs by allowing erred court introduction value clearly significant to the numerous on matters not dis photographs cul- determining of Appellant’s the extent puted at trial. The Commonwealth en he characterization was pability. His nearly evi photographs tered into her” in the neck. “poked dence, most which were taken at the ef- grue argues that the cumulative many crime scene and of which were inflamma- general photographs the ad were so regarding some. The rule fect unduly prejudiced. Ap- tory es that he missibility photographs, of crime scene v. United relies on Old pellant Brown v. tablished Chief 644, States, pho- “that a 519 U.S. S.Ct. *10 (1997) L.Ed.2d 574 tressing and Norris v. the Com- the Common- monwealth, witnesses, 89 S.W.3d for including wealth’s other medical probative the proposition that the value witnesses. be evidence should not viewed in the ab- photographs Even the were inflamma stract, given be rather a “discounted tory, automatically that does not mean value,” probative meaning depreciated the they were inadmissible. Adkins v.
value of the taken in light evidence of Commonwealth, 794 (Ky. “other available alternatives to prove the 2003), “[tjhe we rule prohibiting held the fact in Chief, issue.” See Old 519 U.S. at inflammatory exhibition of evidence to a 183, 191, 117 644. Appellant S.Ct. also jury not the preclude does revelation of Commonwealth, cites Poe v. 301 S.W.2d surrounding the true facts the commission (Ky.1957) proposition that of a crime facts when these are relevant gruesome photo- [t]he introduction necessary.” probative Because the graphs, bloody clothing, and the is like value of not photographs substantial inevitably accompanied by almost ly effect, outweighed by prejudicial their jurors risk of inflaming minds of the discretion, we find no abuse of and the prejudice to the of the accused. Where photographs properly were admitted. necessary contested relevant fact, probative usually their value is held E. RAP VIDEO to outweigh any possible prejudicial ef- Next, appellant argues that the trial they fect have. But might where the 404(B) court by violated KRE 403 and sought proved by facts possi- to be video admitting portions depicting Ap- of a bly prejudicial evidence are admitted pellant talking rapping or with his friends defense, it is difficult to understand video, after he killed In this his wife. shot (other probative what value than as cu- murder, days after the can be evidence) mulative such might boasting seen in a of his crime seven min- have.... saying ute montage, things video such as: Id. at 902-03. (cid:127) mad, “B- and I made me had to however, Appellant argues incorrectly, My take name her life. is Dennis that underlying because the facts were ing Greene and I ain’t no got wife.” f— uncontested, essentially the photographs (cid:127) givin’ “I I be gonna knew was to her provided help jury any no to the con- got ... when I home...” tested, in the relevant fact case. More (cid:127) “I cut her neck with motherf —in’ pointedly, he that the argues photographs sword...” serve purpose jury no but to inflame the (cid:127) “I’m cell starin’ at sittin’ four against Appellant. walls ...” fails, however, Appellant’s argument be- “[tjhis showing cause court knows of no rule or contends principle requires jury of law KRE Common- this video violated 403 and 404(b) Attorney try prior, wealth’s un- stipu- case because “evidence charged just Payne lation.” bad acts is admissible Moreover, (Ky.1981). party because a such evidence asserts significant purposes of the ... photographs probative support val- tends to one they helpful ue have been Commonwealth v. [listed rule].”' Maddox, 718, 722 reaching (Ky.1997). its determination on defense, Appellant’s traditionally EED We have held that evidence well as but- *11 crime, of- previous not a regarding on this designed aspersions to primarily cast (b) Appel- fense, light on not the video sheds of the defendant should the character illuminating his v. EED defense Billings be admitted. Common- lant’s killing, and wealth, (Ky.1992), shortly we the state after mental (c) conduct premeditation that “evidence criminal video establishes held being For the than that tried is admissible words. Appellant’s other motive in own reasons, trial only probative independent if issue affirm the foregoing we predisposition, or criminal video mon- rap character of the court’s admission if on that issue only probative its value tage. re- the unfair with
outweighs prejudice AFFAIR OF A F. PAST EVIDENCE in Bell spect to character.” We also held 882, 889 trial Appellant argues Lastly, 404(B) by holding KRE court violated wife’s asser- testified about his rule is a well-known fundamental “[i]t unfaithful, been then trial tion that she had that a on that evidence defendant evidence of never could introduce committed other offenses is Commonwealth had Baumgar- Amy affair Appellant’s past unless it certain with admissible comes within mind, Appellant in the exceptions, ruling which are well-defined With this dener. jury. itself.”3 Jones v. the affair to the rule Commonwealth himself disclosed 666], (Ky. Ky. [303 KRE the outset We note 1947). reason, must For trial courts 404(b)(1) this evi- application has no to cautiously, eye the rule with an apply intro- proscribes That Rule dence. eliminating which is towards evidence tending prove to duction of evidence only proof of an accused’s relevant to character “in order particular trait type to propensity commit a certain conformity therewith.” action show crime. not tend immorality Evidence predisposition prove propensity to or rap
Appellant contends that
Thus, the evidence
to commit homicide.
simply
intro
video is
character evidence
rule of
general
be tested
must
prove
disposition.”
to
duced
“criminal
i.e.,
“any
it has
ten-
relevancy,
whether
Billings,
Appellant,
We farther note that GRAVES, J., opinion, joining with that evidence, being item of but a single [a]n concurring opinion. link in proof, the chain of need not Concurring Opinion Justice conclusively proposition for which it JOHNSTONE. is offered. It need even make that proposition appear probable more than agree I the trial court enough not.... It is if the item could permitting erred in via C.G. to reasonably slightly show that a fact is television, circuit I separately closed write probable appear more than it would disagree because I with the harmless error without that evidence. Even after the analysis by majority. undertaken probative spent, force of the evidence is determining the error is harm- proposition it which is offered less, majority remaining examines the improbable. can quite still seem Appellant’s guilt, noting evidence of testimony “basically C.G.’s redundant” Turner v. largely physical and corroborated Lawson, (Ky.l996)(quoting Robert G. Appellant’s evidence and own admissions. Kentucky The Law Evidence Handbook ed.1993) implies This conclusion the error is 2.06, (3d § Cleary, at 53 jury harmless because the would have (3d McCormick Evidence 542-543 ed.1984)). Appellant guilty found even without C.G.’s testimony. analysis Such an would be rel- Accordingly, we find that evidence evant had the trial error concerned the Appellant’s past of the affair with Ms. scope testimony. admission or of C.G.’s Baumgardener is admissible because the case, However, lay in this the trial error EED speaks affair to his claim of as relat testify via closed circuit allowing C.G. to impact ed to the emotional of his wife’s Thus, television than on the stand. rather disclosures about her affairs. pertinent inquiry is not whether the Moreover, the affair is ascribed addition- jury Appellant guilty found relevancy al because called Ms. murder absent C.G.’s due to the Baumgardener night Rather, several times the of weight remaining evidence. murder, to Chicago and she went possibility it is whether a substantial exists very A day Appellant. next to see reason- that the outcome would have been differ- juror able could find that evidence of the had court. open ent C.G. testified in affair made the existence of EED less rejected claim that Appellant’s The probable than it without the would be evi- of an he killed his wife while the midst Thus, context, dence. we cannot find Though extreme emotional disturbance. of discretion. abuse majority characterizes redundant, testimony was actual- C.G.’s stated,
For we affirm. the reasons ly quite crucial to the Commonwealth’s case, argument. as conceded at oral C.G. LAMBERT, C.J., ROACH, J., claim,that directly Appellant’s contradicted concur. EED Tara hit he was sent into an when COOPER, J., child, that his mother only. concurs result as C.G. testified further evening. hit him that C.G. never findings that autopsy
corroborated hands, choked also Tara had been with two Be- Appellant’s statements. contrary guilty ultimately found cause *13 murder, it is fair to that the assume version partially accepted at least C.G.’s Appellant’s. my opinion, In events over that the possibility there is no substantial ac- been inclined to jury would have less testimony had he testified cept C.G.’s fact, In dic- court. common sense open very young tates that the tragically victimized child will be even face-to- persuasive more when delivered short, if the jury face. believed C.G.’s after testimo- viewing version of events television, pos- I ny on find no substantial rejected sibility that would have given exact same witness stand.
GRAVES, J., joins concurring opinion. RAINEY, Appellant,
William
Kentucky,
COMMONWEALTH
Appellee.
No. 2005-SC-000185-DG.
Kentucky.
Supreme Court of
May 18, 2006.
24, 2006.
Rehearing
Aug.
Denied
comment to Section
notes
this
he
Commonwealth,
light most favorable to the
pre-
inclusion is controlled
the evidence
burden,
jury ques
it
then
meets
is
a
Id.
sented.
tion.
Commonwealth,
v.
Spears
In
152,
essentially
EED is
a
explained
we
that “[al
though
prove
con
restructuring
Commonwealth must
ev
of
old common law
ery
beyond
passion,”
of murder
a
cept
element
reason
“heat
the evidence
doubt,
able
to
EED is different. There
the Commonwealth need
needed
affirmatively disprove EED unless the ev must be
that the defendant suf
evidence
overwhelming
EED
it
“a
of mind so en
temporary
idence of
is so
fered
state
inflamed,
on the
or disturbed as to over
acquittal
charge
raged,
necessitates
added).
judgment, and to cause one to
(Emphasis
murder.”
Stated
come one’s
only
uncontrollably
impelling
simply, the Commonwealth
act
from [an]
more
is
EED
disturbance
required
affirmatively disprove
to
force of the extreme emotional
pur
or malicious
enough
presented
when
is
rather
than
evil
there
Commonwealth, 715
v.
poses.”
the fact finder
the defendant would
McClellan
464,
(Ky.1986). “[T]he
468-69
otherwise be entitled
a directed verdict S.W.2d
explosion of
triggers
which
vio
acquittal
presence
because
event
part
in
of the criminal defendant
aptly
EED. As was
stated Wellman
lence
696,
It
Commonwealth,
is
(Ky.
uninterrupted.
must be sudden and
Thus,
1985),
illness....
it
ex not a mental disease or
presence or absence of
“[t]he
wholly
is
insufficient for the
accused defen-
of murder. Under the evidence
dant to claim the defense of extreme emo- presented, it
clearly
not unreasonable
tional
gradual
disturbance based on a
vic-
jury
for the
to do so.
environment,
timization from his or her
Thus, hopefully these questions will now
unless the
proof
additional
of a triggering
(1)
summary,
be laid to rest.
if EED is
event
sufficiently
shown.” Foster v.
evidence,
made
issue
an instruc-
Commonwealth,
670,
(Ky.
tion including it as an element of the crime
1991) (citations omitted). And the “ex-
(2)
given;
should be
in the same instance
treme emotional disturbance
...
[must
(being
statutory
case),
element
excuse,
explanation
a] reasonable
or
crime,
then becomes an element of the
the reasonableness of which is to be deter-
proof
the burden of
lies with the Common-
mined
viewpoint
from the
person
of a
(3)
wealth;
the courts will then test
the defendant’s situation under the circum-
sufficiency
proof,
properly
if
pre-
stances as the defendant believed them to
trial,
sented
preserved,
both at
upon a
Spears,
be.”