Brown v. Commonwealth

983 S.W.2d 513, 1999 Ky. LEXIS 5, 1999 WL 39048
CourtKentucky Supreme Court
DecidedJanuary 21, 1999
DocketNo. 96-SC-1137-MR
StatusPublished
Cited by20 cases

This text of 983 S.W.2d 513 (Brown v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Commonwealth, 983 S.W.2d 513, 1999 Ky. LEXIS 5, 1999 WL 39048 (Ky. 1999).

Opinions

GRANT M. HELMAN, Special Justice.

On December 16, 1996, following an eight day jury trial in the Jefferson Circuit Court, Nathaniel Brown, Jr. (“Appellant” herein) was convicted of committing the intentional murder of his former wife, Cynthia Brown and of the attempted murder of Ms. Brown’s fiancee, Greg Barker. The Appellant received concurrent sentences for said convictions of thirty and ten years respectively. After unsuccessfully moving the trial court for a new trial, the Appellant instituted this appeal.

The Appellant’s convictions stem from an incident occurring at his home on August 23, 1995. It is undisputed that Cynthia Brown and Greg Barker, along with the two children of the Appellant’s and Ms. Brown’s former marriage, went to the Appellant’s home on the evening of August 23. The purported reason for the visit was to retrieve some of the eldest child’s personal effects prior to her enrollment at college. Ms. Brown and Mr. Barker remained in Ms. Brown’s automobile while the children went inside Appellant’s home. While Ms. Brown and Mr. Barker were in the automobile, Appellant’s current wife arrived on the scene, in her car. At the time she arrived, Appellant had not yet approached Ms. Brown’s vehicle. What transpired from that point is disputed.

The Appellant contends that his current wife called him to Ms. Brown’s automobile to meet Mr. Barker. When he arrived, he leaned into the car from the driver’s side window, ostensibly to introduce himself to Greg Barker. At that point he noticed a brochure from an out of state college and asked what it was. Appellant contends he then saw that both Ms. Brown and Mr. Barker were armed with handguns. The Appellant testified that in the ensuing struggle for Ms. Brown’s gun she was struck by two shots, and that Greg Barker then used her as a human shield as he and the Appellant exchanged gunfire. The Appellant, with the gun he purportedly took from Ms. Brown, then circled the ear to the passenger side and fired a shot at Greg from the passenger window. Appellant then retreated into his home. He reemerged and claims Greg Barker then threatened to kill him. Appellant then pursued Greg Barker down the street, firing more shots. Mr. Barker ultimately escaped after the Appellant’s gun misfired and he surrendered it to a friend. The Appellant asserted a self-defense theory at trial.

The Commonwealth asserted at trial that the Appellant intentionally murdered Ms. Brown to prevent her from testifying at his then upcoming trial for flagrant non-support. In challenging the Appellant’s self-defense theory the Commonwealth contended that neither Ms. Brown nor Mr. Barker had any firearms in their possession when they arrived at the Appellant’s home on August 23. As to this second contention, the credibility and veracity of the Commonwealth’s witness, Greg Barker, Ms. Brown’s fiancee, was of tantamount importance. The Appellant contends that the trial court committed substantial and prejudicial error when it allowed Mr. Barker to testify from the stand while holding his personal Bible.

In support of its theory that the Appellant murdered Ms. Brown to prevent her from testifying against him at his upcoming trial for flagrant non-support, the Commonwealth provided great detail of the facts and circumstances of the Appellant’s indictment for said crime. This included testimony from a Jeffer[515]*515son Circuit Court deputy clerk, as well as the testimony of an Assistant Commonwealth’s Attorney. The Appellant contends that the trial court improperly admitted evidence of Appellant’s indictment for flagrant non-support and evidence supporting that indictment committing substantial and prejudicial error.

ANALYSIS

The Appellant contends there were several errors at the trial of this matter by the Jefferson Circuit Court. This Court will address two of the issues raised by Appellant herein: 1) Appellant’s claim that he suffered prejudice.constituting reversible error when Greg Barker was permitted to testify while holding his own Bible; and 2) Appellant’s claim that he suffered prejudice constituting reversible error when the Commonwealth introduced evidence of Appellant’s indictment for flagrant non-support, as well as evidence supporting that indictment. Both of these issues were properly preserved for appeal by defense counsel's objections to same.

I. Greg Barker’s testimony while holding his own Bible.

At the tidal of this matter, the Appellant testified that when he leaned into Ms. Brown’s automobile he saw two guns, one in Ms. Brown’s lap and one in Mr. Barker’s right hand. The Commonwealth contended neither Ms. Brown nor Mr. Barker had any firearms in the car. The Commonwealth called Mr. Barker as witness at trial and Mr. Barker testified that neither he nor Ms. Brown were armed on August 23, 1995. Clearly the testimony of the Appellant and Mr. Barker are diametrically opposed. The jury could believe only one of the witnesses with regard to whether there were firearms present in Ms. Brown’s automobile on August 23, 1995. The viability of the Appellant’s defense of self-protection had the potential to be determined based on which witness the jury believed with regard to testimony regarding firearms or lack thereof in Ms. Brown’s car prior to the Appellant’s arrival.

Over defense counsel objections, Mr. Barker was permitted by the trial court to testify while holding a Bible. KRE 404(a), Character evidence generally, dictates: “(e)vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity thereon on a particular occasion except: (3) ... [ejvidence of the character of witnesses, as provided in KRE 607, KRE 608 and KRE 609.” KRE 608, Evidence of Character dictates that “[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation ...” KRE 608 does not, however, indicate when such character evidence is admissible, nor does it indicate whether a witness’ credibility must first be attacked prior to admitting character evidence. In Pickard Chrysler, Inc. v. Sizemore, Ky.App., 918 S.W.2d 736, 740 (1995), the Court held that “it continues to be the law that evidence of good character cannot be introduced until after the witness’ character has been attacked.” In Sizemore, the trial court disallowed evidence of the good reputation of pne of Pickard Chrysler, Inc.’s, witnesses, reasoning that “Pickard could not bolster its witness’ credibility with evidence of that witness’ good reputation unless the other side first introduced evidence that is bad.” Id.

Similarly, in Ratliff v. Line, Ky., 451 S.W.2d 391 (1970), Plaintiff was permitted to call several witnesses at trial who testified about his church work, and work with church brotherhood and youth groups over the objections of defendant’s counsel. Plaintiffs counsel claimed at trial that the evidence was admissible because it sustained Plaintiffs credibility ...” Ratliff at 393, emphasis in original. The Ratliff Court held that the admission of such evidence was clearly erroneous and carried such a probability of prejudice as to require reversal of the judgment.

Indeed, the circumstances of the instant case are somewhat different than Ratliff, supra, however, the effect of Mr.

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Bluebook (online)
983 S.W.2d 513, 1999 Ky. LEXIS 5, 1999 WL 39048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-commonwealth-ky-1999.