Scot E. GAITHER, Appellant v. COMMONWEALTH of Kentucky, Appellee
2015-SC-000609-MR
Supreme Court of Kentucky.
JUNE 15, 2017
521 S.W.3d 199
OPINION OF THE COURT BY JUSTICE VENTERS
COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Matthew Robert Krygiel, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE VENTERS
In 2004, Appellant Scot E. Gaither was convicted and sentenced in the Daviess Circuit Court for the 2001 kidnapping of James Parson1 and for the associated crimes of first degree manslaughter, tampering with physical evidence, and theft by unlawful taking (property less than $300.00). Those convictions were affirmed by this Court in Gaither v. Commonwealth, 2004-SC-0474-MR, 2006 WL 436071 (Ky. Feb. 23, 2006).
Later, upon Appellant‘s motion for post-conviction relief pursuant to
Appellant argues that the retrial of the kidnapping penalty phase was fatally flawed because the trial court 1) allowed the admission of irrelevant, cumulative and unduly prejudicial evidence; 2) permitted the introduction of improper victim impact testimony; 3) improperly limited his admission of mitigation evidence; and 4) permitted the Commonwealth to display evidence from the guilt-phase trial during closing argument without prior notice to Appellant. For the reasons stated below, we affirm the judgment.
Pursuant to our statutory scheme for bifurcated criminal trials and jury sentencing, the guilt phase and punishment phase of a trial are ordinarily heard by the same jury. Occasionally that protocol becomes a practical impossibility, when for example, as in cases like this one, flaws in the original trial compel a re-trial only of the penalty phase. In Boone v. Commonwealth, 821 S.W.2d 813, 814-15 (Ky. 1992), we outlined a practical course for trial courts to follow in such circumstances, including the preparation of a carefully-drafted stipulation of the relevant facts to be read to the jury.3
Although the manner of presenting the essential information remains subject to the trial court‘s discretion, the parties and the trial court in the case now before us followed Boone‘s suggestion to present a stipulated summary of the guilt-phase evidence to the penalty-phase jury. A portion of the stipulated summary pertaining to the issue under review reads as follows:
The Daviess County Coroner took charge of the body and with police assistance the body was packaged and removed from the bottom of the ditch. The body was transported to the Kentucky Medical Examiner‘s Office and examined by Dr. Amy Burrows. Dr. Burrows testified that her examination of Mr. Parson‘s body revealed there were two bullets inside the body but she was unable to identify where the bullets entered the body due to the body being so badly decomposed. She did testify that there were two large defects in the skin from the right side of the chest over to the left side of the chest and in the left side of the lower back, which were most likely the entrance wounds.
Because of the condition of the body, the body and adjacent materials, mud and grass, from around the body were submitted to Dr. Amy Burrows, a medical examiner, along with the body. She testified as a witness for the Commonwealth that her examination did not find any evidence of restraints on the body, such as rope or duct tape. An examination of the materials led to the recovery of a spent 9 mm shell casing.
Over Appellant‘s objection, the trial court permitted the Commonwealth to go outside the agreed-upon summary and introduce recorded portions of Dr. Burrows’ actual guilt-phase testimony. That testimony included a gruesome macabre description of the decomposition of Parson‘s body. Specifically, the jury heard that Parson‘s head had fallen off his torso and was carried to the autopsy lab in a baby-sized body bag; that Parson‘s left arm had detached from his body; that decomposition rendered his face unrecognizable; that maggots and insects infested the body; and that large portions of the skin were removed by animal and insect activity.
Citing
We review a trial court‘s decision as to the relevance of evidence for abuse of discretion. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). Whether relevant evidence should be excluded as unduly prejudicial or needlessly cumulative is also a matter we leave to the trial court‘s sound discretion. Webb v. Commonwealth, 387 S.W.3d 319, 325-26 (Ky. 2012). A trial court abuses its discretion when it decides an issue arbitrarily, unreasonably, unfairly, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The trial court reasoned that Dr. Burrows’ vivid description of Parson‘s decaying body was relevant because it helped the jury understand the kidnapping in context—that it was not simply a kidnapping, but a kidnapping in which the victim was not released alive. The Commonwealth argues that the details assisted the jury by providing “background information on the crime;” in “assessing Gaither‘s [claim of self-defense];” and in “assessing the aggravating and mitigating circumstances” leading to an appropriate sentence.
We are unable to see how the ghastly details about the victim‘s remains shed any light on the sentencing issue beyond what was otherwise provided by the stipulated statement of evidence. The fact of Parson‘s death was not disputed. Parson‘s disappearance, together with the blood found in and about Parson‘s van, and a bullet hole, a bullet, and a shell casing found in the van, all of which were noted in the stipulated summary, established the proximate time of the kidnapping and of Parson‘s death. The gruesome details of the body‘s decomposition two months later did not augment the jury‘s appreciation of the gravity of the crime. Nevertheless, despite the irrelevance of the evidence and its cumulative nature, we fail to discern any substantial prejudicial effect upon Appellant‘s sentence. A non-constitutional evidentiary error is deemed harmless “if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009). We are confident that the grim details provided by Burrows’ trial testimony did not sway the verdict.
II. THE VICTIM IMPACT TESTIMONY
Appellant asserts that he suffered manifest injustice because the trial court erroneously allowed victim impact testimony beyond the scope allowed by
Under
The Commonwealth presented victim impact testimony through Parson‘s daughter, Leigh Ann Duke. Duke testified, not only about the impact of Parson‘s death upon her, but also how his death impacted Parson‘s widow, his son, and his grandchildren. Citing Terry v. Commonwealth, 153 S.W.3d 794 (Ky. 2005), Appellant asserts that Duke‘s testimony exceeded what was allowed by
Terry, decided under the pre-2008 version of
In 2008, presumably in response to Terry, the legislature removed the single victim limitation of
The pre-2008 version construed by Terry was in effect at the time of the crime in 2001 and at the time of the first trial in 2004, but the amended version was in effect when the kidnapping penalty phase was retried. Oddly, neither party argues the retroactive application of the revised versions of
The applicable version of the statutes regarding the scope of victim impact evidence is determined by our construction of the ex post facto clauses of the state and federal constitutions6 and
An ex post facto law is any law which criminalizes an act that was innocent when done, aggravates or increases the punishment for a Crime as compared to the punishment when the crime was committed, or alters the rules of evidence to require less or different proof in order to convict than what was necessary when the crime was committed.”
Under
Rodgers v. Commonwealth, 285 S.W.3d 740, 751 (Ky. 2009) (citations and internal quotation marks omitted).
The 2008 amendments to the victim impact statutes did not change or re-define any out-of-court rights, obligations or duties for which Appellant was being prosecuted; they changed no legal standard pertaining to his crimes or his punishment.
We are satisfied that the trial court correctly admitted Duke‘s victim impact testimony under the post-2008 version of the victim impact statutes. Moreover, for unpreserved trial error to be regarded on appeal as “palpable” and thus subject to corrective relief under
B. The improper testimony was not palpable error.
Duke‘s victim impact testimony also included statements that her mother, Parson‘s widow, never felt safe after his kidnapping and death because she heard about “people being in jail and hiring somebody to come....” She complained that “[Appellant] keeps putting us through this, over and over again. It just seems like something is always coming up, some parole or something always coming up and he sits over there smug, with that little smug look on his face.”
Appellant cites St. Clair v. Commonwealth, 451 S.W.3d 597 (Ky. 2014), as support for his argument that Duke improperly assailed his character. St. Clair notes that “the purpose of [the victim impact statement] is to give the jury an understanding of the impact of the crime being tried, not the defendant‘s bad character or overall negative effect on society,” when confronted with the issue of victim impact
Appellant did not contemporaneously object to Duke‘s testimony. Instead, hours later, after Duke had testified, he belatedly requested an admonition to the jury. We regard the matter as inadequately preserved and subject to review only for palpable error. “[T]he general rule is that an objection is not timely unless it is made ‘as soon as the basis for objection becomes apparent.‘” Winstead, 283 S.W.3d at 688 (quoting Lawson, The Kentucky Evidence Law Handbook (Fourth Edition), p. 36 (2003)). Duke‘s expression of her family‘s fears and anguish over the crimes was proper victim impact testimony, but her complaints about the protracted litigation and her frustration that Appellant would be “coming up” for parole on the manslaughter conviction are not proper factors for the jury to consider in assessing Appellant‘s punishment for kidnapping. That testimony was clearly erroneous, but it was not adequately preserved for appellate review.
Upon consideration of the testimony in context with the other penalty phase evidence, we are satisfied that it was not so unduly prejudicial as to render the proceeding fundamentally unfair. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). The error that occurred was not palpable.
III. THE TRIAL COURT DID NOT IMPROPERLY LIMIT APPELLANT‘S PRESENTATION OF MITIGATION EVIDENCE.
Glenn Amerson is a pastor who became acquainted with Appellant in prison following the first trial. Amerson testified for Appellant in mitigation of punishment, explaining how he took Appellant‘s mother to the prison to visit Appellant. As Amerson testified about Appellant‘s kind interaction with his elderly mother, the Commonwealth asked to approach the bench. The Commonwealth complained that Amerson‘s testimony was more appropriately heard at final sentencing before the judge rather than as mitigation evidence in the penalty phase. Appellant‘s counsel stated she was “wrapping up” but argued that case law suggests there is no limit to mitigation evidence regarding leniency and character. After further discussion and verification that Appellant‘s counsel was concluding her examination of Amerson, the trial court simply instructed her to move on. Counsel for Appellant asked Amerson one more question before finishing. Appellant asserts on appeal that the trial court abused its discretion by limiting appropriate mitigation evidence.
During the bench conference that followed, Appellant‘s counsel argued that Amerson‘s observation of Appellant‘s interaction with his mother and his personal knowledge of Appellant was evidence of Appellant‘s current character. Amerson‘s testimony prior to the bench conference
IV. THE TRIAL COURT DID NOT ERR BY PERMITTING THE COMMONWEALTH TO USE GUILT-PHASE PHYSICAL EVIDENCE DURING ITS CLOSING ARGUMENT.
During the closing arguments of the penalty-phase retrial, and over Appellant‘s objection, the trial court permitted the Commonwealth to show the jury certain items of evidence that had been introduced as exhibits in the guilt phase of the first trial: specifically, Parson‘s dentures and car keys, which had been found on Appellant when he was arrested. The discovery of both items was noted in the stipulated summary of guilt-phase evidence.
Appellant contends that it was fundamentally unfair for the Commonwealth to display these items to the jury without giving Appellant‘s counsel advance notice, thus leaving Appellant no reasonable opportunity to respond to the demonstration. Appellant asserts that the physical evidence focused the jury‘s attention on the manslaughter and tampering convictions, rather than the kidnapping for which he was to be sentenced.
Generally, any evidence introduced at trial may be the subject of fair comment during closing argument. Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). “Once introduced, however, such evidence may be the subject of fair comment during closing argument.” Hodge v. Commonwealth, 17 S.W.3d 824, 853 (Ky. 2000). We do not require advance notice of what items of physical evidence will be exhibited during closing arguments. This principle does not change for a retrial of the penalty phase.
Subject to the discretion of the trial court, an item mentioned but not formally introduced during the trial may be displayed to the jury during closing arguments. Edwards v. Whitley City Sales, 246 S.W.2d 1018, 1020 (Ky. 1952) (No error occurred when “counsel exhibited to the jury a booklet about which he had previously interrogated the appellant but which had not been officially introduced in evidence.“) We see no error in the Commonwealth‘s penalty-phase use of the items, and no abuse of discretion in the trial court‘s ruling in the matter.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Daviess Circuit Court sentencing Appellant to life imprisonment for the kidnapping of James Parson.
All sitting. All concur.
Randal‘s joyful text message to his new roommate, Scott: “Hey Scott and Bella, I‘m sorry for being overzealous, I‘m not used to having someone be this kind to me,” is irrelevant. Finally, Randal‘s text message to his daughter, stating: “Talked to [Appellant], said I could take the couch and love seat and air conditioner. Oh yeah, for $150,” is irrelevant.
Despite the irrelevance of these statements, their prejudicial effect was virtually nil. Appellant did not deny shooting Randal; his claim was that he did so under the stress of an extreme emotional disturbance. “A non-constitutional evidentiary error may be deemed harmless ... if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009). Randal‘s frustration at the residence he shared with Appellant and his joy in finding a new place could have had no prejudicial, impact on the jury‘s decision.
III. CONCLUSION
For the foregoing reasons, the judgment of the Campbell Circuit Court is affirmed.
All sitting. Minton, C.J.; Cunningham, Hughes, Keller, Venters, and Wright, JJ., concur. VanMeter, J., concurs in result only.