RENDERED: DECEMBER 4, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-0797-MR
BILLY JOE HOUCHIN APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 18-CR-00026
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
JONES, JUDGE: Following a two-day jury trial in Grayson Circuit Court, the
Appellant, Billy Houchin, was found guilty of reckless homicide, a Class D
felony.1 On April 17, 2019, the trial court sentenced Houchin to serve five years
1 Kentucky Revised Statutes (“KRS”) 507.050. under the supervision of the Kentucky Department of Corrections. Houchin now
appeals to this Court as a matter of right.
On appeal, Houchin argues the trial court erred when it allowed the
Commonwealth to introduce twenty-three photographs taken during the victim’s
autopsy. Houchin also argues the trial court erred in allowing the Commonwealth
to try him in the first instance because he was entitled to immunity from criminal
prosecution pursuant to KRS 503.085. He asks us to reverse his conviction and
declare him immune from any further prosecution. Having reviewed the record
and being otherwise sufficiently advised, we affirm.
I. BACKGROUND
At the time of the events in question, the victim, Stephen Waninger
(“Waninger”), was in a romantic relationship with Katelyn (“Katie”) Houchin.
Katie and her two children from a previous relationship lived with her mother,
Lesle Houchin (“Lesle”), and her father, the Appellant, Billy Houchin
(“Houchin”). The Houchins were also allowing Waninger, who worked for
Houchin, to live in their home.
Sometime during the evening of December 28, 2017, the home’s six
residents retired for the evening. Katie and Waninger were sleeping together in
bed. During the early morning hours of December 29, 2017, while still asleep,
Katie took the sheets away from Waninger. Waninger awoke enraged and began
-2- kicking and pushing Katie. Katie’s cries for help awakened Houchin, who got out
of bed and went to help her. When Houchin got to the couple’s bedroom, he told
Waninger to leave. When Waninger refused, the two men got physical with one
another. At trial, Houchin testified that Waninger hit and choked him. The
subsequent investigation revealed contusions and abrasions on both men as well as
on Katie, leaving no doubt that a physical altercation had taken place in the home
that evening.
After breaking free from the altercation, Houchin left the room to call
911. At this point, Waninger decided he did want to leave after all; he asked Lesle
to drive him to Evansville, Indiana. Lesle, who had to go to work that day, refused
to do so. Waninger then called his mother to come get him. At some point
Waninger dropped the telephone and Katie picked it up, causing the dispute
between the two to break out again.
In the other room, Houchin was on the phone with the 911 operator.
For reasons that are not clear, Houchin’s call became disconnected. Back in the
bedroom, the tension between Waninger and Katie once again escalated to physical
violence. Hearing the two fighting, Houchin went back to the bedroom to help his
daughter. While Houchin was attempting to help Katie, the Grayson County 911
operator called Houchin back. Houchin answered the call and took his phone
outside so he could talk with the 911 operator.
-3- While Houchin was outside on the phone, the fight between Katie and
Waninger spilled out of the bedroom into the kitchen. Lesle yelled for Houchin to
come back inside to help Katie. Houchin handed the phone to Lesle and went to
help Katie. Houchin pulled Waninger off of Katie. Houchin testified that at this
point, he saw Waninger move toward three samurai swords that were laying on a
bar stool in the kitchen. Houchin testified that he believed Waninger intended to
use the swords to continue his attack on Houchin and his family. Believing he had
mere seconds to prevent further violence against himself and his family, Houchin
retrieved a firearm he kept on top of the kitchen cabinet and fired a shot directly at
Waninger. The bullet struck Waninger in the upper right chest area. Lesle and
Katie began performing CPR on Waninger at the direction of the 911 operator who
was still on the phone with Lesle. Houchin placed his gun on the dryer and walked
outside where police found him when they arrived a few minutes later. Waninger
was pronounced dead on the scene.
Houchin was indicted on one count of manslaughter in the second
degree, a Class C felony.2 Following completion of discovery, Houchin moved the
trial court to dismiss the charges against him on the basis that he was immune from
criminal prosecution pursuant to KRS 503.085. After examining the record, the
trial court denied Houchin’s motion.
2 KRS 507.040.
-4- Ultimately, the case proceeded to a two-day jury trial, beginning on
March 13, 2019. At trial, the Commonwealth presented testimony from eight
witnesses and entered eleven exhibits into evidence. Of particular relevance to this
appeal, the exhibits included twenty-three photographs of Waninger’s body during
his autopsy. Houchin’s counsel objected to introduction of all the photographs.
Without specifics, counsel argued that many of the photographs were largely
duplicative, and therefore cumulative. The Commonwealth responded that the
photographs were all different and were not overly gruesome as they did not depict
the body cavity or anything of that nature. The trial court overruled Houchin’s
objection. The photographs were introduced during Dr. Donna Stewart’s
testimony. During Dr. Stewart’s testimony, the Commonwealth published the
photographs to the jury through an overheard projection. Dr. Stewart answered
questions regarding what each photograph depicted in relation to the autopsy she
conducted.
Houchin called four witnesses and testified on his own behalf.
Following closing arguments, the case went to the jury. The jury was instructed on
manslaughter in the second degree as well as the lesser-included offense of
reckless homicide. After deliberating approximately four hours, the jury returned a
guilty verdict on the lesser-included count of reckless homicide. As part of the
sentencing phase, the jury recommended the maximum sentence of five years. On
-5- April 17, 2019, the trial court entered a judgment of guilty and sentenced Houchin
in accordance with the jury’s recommendation. This appeal followed.
II. ANALYSIS
A. Admission of Autopsy Photographs
In reviewing a trial court’s decision concerning admission of
evidence, we apply an abuse of discretion standard: “[t]he test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation omitted).
As noted earlier, over Houchin’s objection, the trial court allowed the
Commonwealth to introduce twenty-three photographs taken during Waninger’s
autopsy. The photographs were not introduced individually; rather, they were
introduced collectively as the Commonwealth’s Exhibit 11. Dr. Stewart
authenticated the photographs as true and accurate depictions of the autopsy.
Before answering questions about each individual photograph, Dr. Stewart
provided a brief summary of her autopsy findings. She testified that Waninger
died following a single gunshot wound to his chest. She explained that the shot
entered Waninger’s body at a height of approximately fifty-two inches above his
heels and exited his body at a height of approximately fifty-one and one-half
inches. The bullet traveled through the two shirts Waninger was wearing and
-6- entered Waninger’s body through his inner right chest. From there, the bullet
perforated the middle lobe of Waninger’s right lung and traveled on through his
heart. It continued on through the lower lobe of Waninger’s left lung and exited
his body through his left chest. Dr. Stewart believed the bullet grazed Waninger’s
left arm as it exited his body leaving a small abrasion. Dr. Stewart testified that
Waninger died of blood loss and malfunction of his heart due to the bullet severing
his heart’s conduction system. After summarizing her findings for the jury, the
Commonwealth asked Dr. Stewart to explain the significance of each photograph
for the jury. The photographs showed Waninger’s body immediately before and
during the autopsy as well as the articles of clothing he was wearing when shot.
Dr. Stewart showed the jury how the photographs corresponded to the findings in
her report.
Prior to Dr. Stewart’s testimony, Houchin’s counsel made a non-
specific objection to the cumulative admission of the photographs. Counsel argued
that many of the photographs were duplicative, and it was unnecessary for the
Commonwealth to introduce all of them. The trial court did not evaluate each
photograph individually. Rather, it flipped through the photographs, determined
that they were probative as a whole, and overruled Houchin’s objection.
On appeal, Houchin asserts that the trial court erred when it failed to
assess each photograph individually. He claims this error prejudiced him with
-7- respect to the introduction of four photographs, one depicting Waninger’s body on
top of the body bag before Dr. Stewart undressed and prepared the body for
autopsy and three photographs of Waninger’s bloody shirts.
“The general rule is that a photograph, otherwise admissible, does not
become inadmissible simply because it is gruesome and the crime is heinous.”
Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992) (citation omitted). In
making admissibility decisions regarding graphic videos or photos, the trial court
must undertake an analysis under KRE3 403. Hall v. Commonwealth, 468 S.W.3d
814, 823 (Ky. 2015). KRE 403 allows relevant evidence to be excluded “if its
probative value is substantially outweighed by the danger of undue prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” The Kentucky Supreme
Court has further explained, “[w]hen ruling on the admissibility of a gruesome
photograph, the trial court should consider whether evidentiary alternatives would
sufficiently prove the fact at issue without a comparable risk of prejudice.
However, the evidence must be highly inflammatory and prejudicial to compel a
party to employ evidentiary alternatives.” Ratliff v. Commonwealth, 194 S.W.3d
258, 271 (Ky. 2006) (citations omitted).
3 Kentucky Rules of Evidence.
-8- Houchin relies heavily on Hall, supra, to support his argument that
the trial court erred when it denied his motion to exclude some of the photographs
as duplicative. Hall shot his neighbors, Lisa and Allen Tacket, through an upstairs
window in his home after a dispute broke out about the Tackets’ dog coming onto
Hall’s porch. During Hall’s trial, the Commonwealth introduced a ten-minute
police video documenting the crime scene and a total of forty-three crime scene
and autopsy photographs, twenty-eight of which were admitted over objection.
Several of the photographs taken at the crime scene were extremely graphic. They
showed the victims laying where they died. Blood and soft tissue splatter was
evident in many of the photographs.
In analyzing whether the trial court erred, the Supreme Court first
recognized that even though graphic photographs are not per se inadmissible, they
are still subject to a KRE 403 balancing test. The Court held that
in cases like Hall’s, the trial judge cannot do a Rule 403 balancing for an individual photo in a vacuum. Instead, the judge must consider the photographs within the full evidentiary context of the case, giving due regard to other evidence admitted as well as evidentiary alternatives, so as to ascertain each item’s “marginal” or “incremental” probative worth for purposes of weighing that value against the risk of prejudice posed by the evidence.
Hall, 468 S.W.3d at 824 (citation omitted). “Once the trial court has assessed
probative value, it must then assess the undue prejudice that might flow from the
evidence if admitted.” Id. With respect to prejudice, the Court observed that “the
-9- probative worth of each additional gruesome photograph [becomes] incrementally
discounted as the facts to be proven become ever more certain, but admission of
additional photos will also correspondingly increase the danger of undue
prejudice.” Id. at 826.
The Hall Court was particularly troubled by the fact that the
photographs “were not addressed one by one or even in comparison to each other;
rather, their admissibility was determined all at once as a group, with no emphasis
on their relative or incremental probative value.” Id. at 827. To this end, the Court
held that
[i]n the absence of specific findings in the record explaining the trial court’s reasons for its decision, we cannot conclude that the admission of all 28 graphic crime scene and autopsy photos proffered by the Commonwealth was anything but “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” [Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).] The simple fact is that the probative value of admitting all 28 photographs was substantially outweighed by the undue prejudice created by the photographs. Moreover, the admission of all 28 photographs, many of which depicted the same scene or subject merely from different vantage points, was needlessly cumulative. This Court, therefore, concludes that this case presents the rare instance of an abuse of the trial court’s discretion under Rule 403 in admitting gruesome photographs.
Id.
-10- After holding that the trial court abused its discretion by admitting all
the photographs without a proper analysis of their evidentiary worth and
prejudicial potential, the Court examined the error to determine whether it merited
reversal of Hall’s conviction. Ultimately, the Court was left with “little doubt that
the horrific and inflammatory photographs improperly admitted in this case, and
repeatedly emphasized by the Commonwealth during trial, substantially influenced
the jury’s decision to reject the defendant’s affirmative defenses and, instead,
convict him of intentional murder.” Id. at 828. As such, it reversed Hall’s
conviction.
We agree with Houchin that the trial court did not deal with his
objection in accordance with the Supreme Court’s directives in Hall. The trial
court did not examine each photograph for its probative value or even attempt to
make any individualized assessment. This was error. However, we cannot agree
that admission of the four photographs Houchin complains about on appeal
warrants reversal.
The first photograph Houchin complains about shows Waninger’s
body as it was removed from the body bag in preparation for the autopsy.
Waninger is clothed. Some bloodstain is visible around the waistband of his pants.
While it is a photograph of a deceased victim, nothing else about the photograph is
-11- gruesome or graphic, certainly not to the extent that it would inflame and prejudice
the jury.
The next three photographs Houchin complains about show the shirts
Waninger was wearing when he was shot. Waninger’s outer shirt was black. A
small tear is visible in part of the shirt, which Dr. Stewart testified was where the
bullet perforated the cloth. Because the shirt is black, the blood stains are not
immediately appreciable. The photograph of Waninger’s white undershirt is a
different story. The shirt is so blood soaked that it appears almost to be a red shirt.
However, Waninger was not photographed in the shirt. The photograph at issue
simply shows the bullet hole in the shirt after it was removed from Waninger’s
body. On the whole, we do not believe this photograph was so prejudicial that it
would have swayed the jury’s verdict.
The photographs in this case were taken as part of an autopsy. There
is minimal blood and no soft tissue splatter. The gunshot that killed Waninger was
relatively clean. It did not leave his body disfigured or in a gruesome state. “The
autopsy photos show the gunshot wounds, lacking any disfigurement or gore.”
Easterling v. Commonwealth, 580 S.W.3d 496, 509 (Ky. 2019). “The photos are
not of the same ilk as the gruesome photos described in Hall, but rather crime
scene and autopsy photos similar to those routinely admitted into evidence. Even
-12- if some photos were cumulative evidence, admission of the photos was harmless.”
Id. (citations omitted).
B. Immunity From Prosecution Under KRS 503.085
In relevant part, KRS 503.085 provides:
(1) A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
Houchin claims that he is immune from criminal prosecution because
the force he used against Waninger is permitted under KRS 503.055(3), which
provides:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is
-13- necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.
Houchin filed a motion with the trial court seeking dismissal of the
indictment against him on the basis that he was immune from criminal prosecution.
After reviewing the evidence of record, the trial court denied Houchin’s motion in
a detailed nine-page order. After summarizing the evidence and laying out the
applicable law, the trial court concluded:
There is no evidence [Waninger] ever wielded the swords or stated that he was going to use them, only [Houchin’s] statement that the victim was going for the swords. The Court finds the location of the swords to be troubling. The evidence shows there were at least two young children in the residence. The location of [Waninger’s] body near an exit door of the residence could be found to show that [Waninger] was attempting to leave the residence. Also, [Waninger] asked both [Lesle] and his own mother to help him leave the residence. While the facts of this case do tend to show [Houchin] to be fearful for his safety and the safety of his daughter there are also facts in this case that would be best suited for a jury to decide. The mens rea of [Houchin] at the time of the incident is crucial to this case and a jury will be well equipped to determine this fact.
Record (R.) at 285-86.
“Where a claim of immunity is raised under the provisions of KRS
503.085, the prosecution may proceed only if the trial court believes that ‘there is
probable cause to conclude that the force was not legally justified’ under the
controlling provisions of KRS Chapter 503.” Taylor v. Commonwealth, 567
-14- S.W.3d 610, 612 (Ky. App. 2018) (quoting Rodgers v. Commonwealth, 285
S.W.3d 740, 754 (Ky. 2009)). The standard of review for such a determination of
immunity is whether a substantial basis supports the trial court’s findings of fact.
Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014). “The burden is on
the Commonwealth to establish probable cause and it may do so by directing the
court’s attention to the evidence of record including witness statements,
investigative letters prepared by law enforcement officers, photographs and other
documents of record.” Rodgers, 285 S.W.3d at 755. Conversely, there is no
corresponding right for the defendant to oppose the Commonwealth’s evidence of
probable cause with his own evidence of his justification. Id. When the
Commonwealth meets its burden of probable cause, prosecution must continue. Id.
at 754-55.
“Probable cause has . . . been defined as ‘reasonable grounds for
belief, supported by less than prima facie proof but more than mere suspicion.’”
Commonwealth v. Jones, 217 S.W.3d 190, 200 (Ky. 2006) (Scott, J., dissenting)
(quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). The
standard of probable cause is relatively low and is based on the “practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76
L.Ed.2d 527 (1983) (citation omitted). A defendant’s subjective belief in his
-15- “assertion of self-protection is not absolute.” Gribbins v. Commonwealth, 483
S.W.3d 370, 374 (Ky. 2016) (citation omitted). Rather, “[t]he court must consider
the totality of the circumstances to determine whether probable cause exists to
conclude that a defendant’s use of force was unlawful.” Taylor, 567 S.W.3d at
612.
In making a probable cause determination as to whether the force used
by Houchin was legally justified, the trial court examined the record. Specifically,
the trial court looked to the witness interviews conducted by Detective S.R. Sharp.
Detective Sharp interviewed Katie, Lesle, and Houchin. The statements obtained
by all three witnesses were largely consistent. Houchin shot and killed Waninger
after Waninger had gotten into several violent altercations with both Houchin and
Katie. R. at 196-202, 279-83. Houchin had visible injuries from the altercations as
did Waninger. Id.
However, Katie stated to Detective Sharp that Waninger had asked
Lesle to drive him back to Evansville, Indiana, before calling his mother to come
get him from the Houchin residence. Id. at 197, 279-80. Additionally, Lesle
confirmed to Detective Sharp that Waninger asked her to take him to Indiana and
showed her his bloodied nose; however, Lesle refused because it was late, and she
had work in the morning. Id. at 201, 281. Finally, while Waninger’s body was
found near the swords, it was also near the front door of the home. Id. at 216. It
-16- was undisputed that Waninger was shot by Houchin before he had time to wield
one of the swords. The only evidence that Waninger was attempting to get to the
swords was Houchin’s own statement that Waninger was going towards the
swords. Id. at 200, 282-83. Importantly, neither Lesle nor Katie indicated that
Waninger was moving towards the swords before Houchin shot him. In fact, the
witness interviews indicated that Lesle yelled at Houchin “don’t do it” when she
saw Houchin getting his gun.
KRS 503.085(1) provides that “[a] person who uses force as permitted
in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and
is immune from criminal prosecution and civil action[.]” The question before the
trial court was not whether there was probable cause to show that Houchin’s
defense of self-protection was reasonable but, rather, if there was probable cause to
believe Houchin acted unlawfully and was therefore not entitled to immunity. “It
is possible to establish probable cause of unlawfulness at the same time evidence
justifying self-defense exists.” Commonwealth v. Bennett, 553 S.W.3d 268, 273
(Ky. App. 2018). If probable cause is shown, it is an issue of fact to determine the
weight of the evidence and decide to what extent a justification may apply. Id.
On the balance, we must agree with the trial court. While there is no
doubt that the men were engaged in a physical altercation, questions remain
regarding whether Houchin reasonably believed deadly force was necessary.
-17- Based on the record, the Commonwealth had probable cause to prosecute. The
position of Waninger’s body as well as his statements to Lesle and his own mother
could show that he was attempting to retreat. Additionally, as noted, neither Lesle
nor Katie saw Waninger move toward the swords. If Waninger was attempting to
leave the residence and not moving toward the swords to use them as a weapon,
then deadly force would not have been necessary. In such a situation, the
reasonableness of using more force than necessary is an issue best left for the jury
to decide. Smith v. Commonwealth, 284 Ky. 80, 143 S.W.2d 859, 862-63 (1940).
“The Supreme Court of Kentucky has recognized ‘conflicting evidence as to
whether [the] use of deadly force was justified’ supports the preclusion of a pretrial
finding of immunity.” Bennett, 553 S.W.3d at 272 (quoting Rodgers, 285 S.W.3d
at 754). Because the reasonableness of Houchin’s use of deadly force was in
dispute, the trial court did not err. There was a substantial basis for the trial court
to find that there was probable cause to believe Houchin’s use of force was
unlawful under the circumstances.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the Grayson
Circuit Court.
ALL CONCUR.
-18- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Julia K. Pearson Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
-19-