Delvin Bullock v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: June 14, 2023
• Docket: 2022 SC 0014
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 15, 2023 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0014-MR

DELVIN BULLOCK APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE A. C. MCKAY CHAUVIN, JUDGE NO. 20-CR-000855

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Delvin Bullock was convicted by a jury of first-degree assault upon his

wife and, upon the jury’s recommendation, sentenced by the trial court to

twenty years in prison. Bullock now appeals his conviction as a matter of right

asserting the trial court abused its discretion by allowing testimony regarding

uncharged domestic abuse, erred in determining that the probative value of

photographs of his wife’s injuries was not outweighed by their prejudicial effect,

and these cumulative errors require reversal. Finding no error, we affirm his

conviction and sentence. I. FACTUAL AND PROCEDURAL HISTORY

Bullock and his wife married in May of 2019. His wife1 would testify that

during the marriage she was the target of frequent physical abuse inflicted by

Bullock and that they were both suffering the effects of addiction. There were

no police reports regarding domestic violence and Bullock’s wife never sought a

protective order testifying, “What’s the point of calling the cops?”

The parties were separated by March 21, 2020, when Bullock sent two

text messages to his wife which contained the following:

When my $ come. I’m leaving the city. I’ll take my chances elsewhere. I’m not gonna beat you’re a**, tho you got it coming. Had I caught you last night, nobody, not even God himself could’ve saved you. ....

I’m not going to put hands on you L[.] If I do, I’ll surley kill you. You deserve it. ....

B**** when you leave take everything with you, I’m not in the mood for you! You better sneak out cause if I catch yor smartass outside, I promise to make an example out of you! Talk crazy if you want to. After the shit you pulled last night, I f****** dare you. Just 1 little anything!!!!! Please call my bluff!!!!

Bullock’s wife testified that when she received these texts she was

actively trying to avoid him and was living with friends.

A Louisville Metro Police Department (LMPD) detective testified that

Bullock called the department twice on March 31, 2020, about his “missing”

wife and again called two more times early the next morning. Bullock called at

1 We do not provide her name because this case involves domestic violence.

2 least two more times on April 2, 2020, and filed a missing person report giving

multiple potential locations for his wife. The officer who took Bullock’s report

testified that Bullock did not seem worried about his wife but seemed to be

trying to get her or her drug dealer in legal trouble.

On April 3, 2020, Bullock’s wife texted Bullock to let him know that she

was fine and the two discussed meeting. The two met that evening in the

parking lot of the Louisville Urban League. Bullock was driving a white Lincoln

and the couple “drove around for a bit” in the Bullock’s car. Bullock was

drinking vodka in the car and an argument ensued. Bullock’s wife got out of

the vehicle back at the Urban League lot. Surveillance footage showed his wife

being hit by Bullock’s vehicle and being pulled under the vehicle as it drove off.

Bullock’s wife was found in the road approximately two blocks away and

taken by ambulance to University of Louisville Hospital. Bullock himself had

left the scene. When confronted with a photo of his wife being hit by a car that

appeared to be his, Bullock said that he didn’t remember hitting her, “but if

you tell me that that’s her blood under the car, then it looks like I hit her, I

don’t dispute that.”

Bullock was charged with attempted murder, assault in the first degree,

and failure to stop and render aid. The trial court ultimately granted Bullock’s

motion to dismiss the failure to stop and render aid charge at the close of the

Commonwealth’s case. The jury acquitted Bullock of attempted murder but

found him guilty of first-degree assault under Kentucky Revised Statutes (KRS)

508.010 for either intentionally or wantonly striking his wife and causing

3 serious physical injuries. The jury recommended the maximum sentence of

twenty years’ in prison which was imposed by the trial court.

II. ANALYSIS

Bullock argues improper evidence was admitted at trial. We review the

trial court’s evidentiary decisions under an abuse of discretion standard and

will only reverse the trial court if its decision was “arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.” Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999).

A. The Trial Court did not Abuse its Discretion When it Allowed Testimony Regarding Prior Uncharged Domestic Violence Incidents.

Prior to trial, the Commonwealth gave notice, pursuant to Kentucky Rule

of Evidence (KRE) 404(b), that it intended to introduce testimony of acts of

domestic violence that Bullock had allegedly committed against his wife.

Bullock’s counsel moved to exclude any reference to uncharged allegations of

domestic violence. The trial court denied the motion determining that “unfair

prejudice is . . . somewhat limited and would be even more so with an

appropriate admonition.” The trial court also noted “the fact that it’s not a

conviction is of no consequence, particularly in a domestic violence situation

because so many of those go unreported.”

During her trial testimony, Bullock’s wife stated that Bullock began

physically abusing her following their marriage and that he would choke her to

the point of her losing consciousness. During one such assault, she not only

lost consciousness but also lost control of her bladder and bowels. Once he hit

4 her in the face with a pint bottle causing her to bleed. She also stated that

“when you get two addicts together you know it’s never good.”

Bullock’s counsel was able to impeach his wife on cross examination

with the fact that her testimony was uncorroborated and there were no police

reports or court actions regarding abuse in the marriage. Counsel was also able

to focus on her own admitted addiction and drug usage.

The trial court gave a lengthy admonition to the jury regarding the

testimony.

Bullock argues that the trial court erred in allowing the admission of

prior alleged acts of domestic violence and this prejudiced him when his wife’s

testimony was used at trial to establish his poor character.

On appeal, a trial court’s ruling admitting other-act evidence is reviewed

for abuse of discretion. Conley v. Commonwealth, 599 S.W.3d 756, 772 (Ky.

2019) (citations omitted). When we conduct our own analysis, we must still be

mindful of, and give deference to, the discretion of the trial court in matters of

KRE 404(b) admissibility. Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky.

2007).

KRE 404(b), which concerns character evidence regarding “other crimes,

wrongs, or acts[,]” provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]

5 Notably, “the list provided in KRE 404(b)(1) is illustrative rather than

exhaustive.” Kelly v. Commonwealth, 655 S.W.3d 154, 165 (Ky. 2022). The

provisions of KRE 404(b) offer no easy formula for resolution of issues that are

inherently difficult and that require a very careful balancing of competing

interests. “In order to determine if other bad acts evidence is admissible, the

trial court should use a three-prong test: (1) Is the evidence relevant? (2) Does

it have probative value? (3) Is its probative value substantially outweighed by

its prejudicial effect?” Leach v. Commonwealth, 571 S.W.3d 550, 554 (Ky.

2019).

“[A]fter determining relevancy and probativeness, the trial court must

weigh the prejudicial nature of the ‘other bad acts’ evidence versus its

probative value. Only if the potential for undue prejudice substantially

outweighs the probative value of the evidence must it be excluded.” Id. “The

prejudice must go beyond that which is merely detrimental to a party’s case

and be of such character that it ‘produces an emotional response that inflames

the passions of the triers of fact or is used for an improper purpose.’” Kelly,

655 S.W.3d at 165 (quoting Robert G. Lawson, The Kentucky Evidence Law

Handbook, § 2.25[3][d], at 135 (4th ed. 2003)). Such evidence “is, of course,

prejudicial to [the defendant] as all evidence of culpability is in a criminal

proceeding” but is still properly admissible so long as it is not “unduly

prejudicial because it is not unnecessary or unreasonable.” Luna v.

Commonwealth, 460 S.W.3d 851, 873 (Ky. 2015).

6 In this case Bullock’s intent was the central, if not only, issue because

the Commonwealth was endeavoring to prove that he had either intentionally

or wantonly (“proof of motive” or “intent”) caused serious injury to, or

attempted to kill, his wife while Bullock wanted the jury to believe that his

wife’s injuries were the result of a mistake or accident (“absence of mistake or

accident”).

While Bullock’s prior assaults on his wife were not performed in the

same manner as the charged offense, the past assaults and charged crime were

still “similar acts” in the sense of being probative of (a) whether Bullock

intentionally caused serious physical harm to his wife; and (b) negating his

claim of an unintentional accident. When a defendant’s mental state is

disputed as it was here, prior bad act evidence is admissible to prove whether

the defendant had the needed mental state to commit the crime. Walker v.

Commonwealth, 52 S.W.3d 533, 536 (Ky. 2001). Therefore, any evidence which

could contribute to resolving the issue of Bullock’s motive, intent, or lack of

any accident or mistake, were both relevant and probative. Accordingly, our

discussion will focus on whether the evidence admitted was more prejudicial

than probative, and if so, whether its admission was harmless.

As a general rule, the erroneous admission of evidence in violation of state law is not a federal constitutional error. And, as the Supreme Court of the United States noted in United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983):

Since Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless,

7 including most constitutional violations . . . . The goal, as Chief Justice Traynor of the Supreme Court of California has noted, is “to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.”

Meece v. Commonwealth, 348 S.W.3d 627, 664 (Ky. 2011).

Criminal Rule 9.24 states that “no error in either the admission or the exclusion of evidence” will warrant reversal unless the “denial of such relief would be inconsistent with substantial justice.” The harmless error inquiry “is not simply ‘whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’” Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky.2009) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (alteration in original).

Elery v. Commonwealth, 368 S.W.3d 78, 85 (Ky. 2012) (footnote omitted).

Therefore, if we conclude that evidentiary errors occurred, reversal is not

warranted if they are harmless.

We do not believe that the prejudicial effect of Bullock’s history of

domestic violence towards his wife was outweighed by the probativeness of the

testimony. We have consistently held that evidence of similar acts perpetrated

against the same victim is “almost always admissible,” under KRE 404(b),

because it will almost always be significantly probative of a material issue aside

from the defendant's character. Driver v. Commonwealth, 361 S.W.3d 877, 884

(Ky. 2012) (quoting Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008)).

8 Prior threats and harm against the same victim show intent, motive and

absence of mistake. See, e.g., id. at 844-45.2

In this matter, the evidence of Bullock’s prior assaults on his wife was

similarly probative. The prejudice to him was significantly less than the

probative value especially when viewed in the context of the rest of the

testimony and evidence admitted. Thus, we find no error in the trial court’s

decision to admit the KRE 404(b) evidence in question and we cannot say that

the trial court abused its discretion in admitting it.

B. The Admission of Photographs of the Victim’s Injuries Was Not Error.

Bullock’s second argument for reversal is that the admission of certain

graphic photographs of the victim’s injuries were unnecessary, given the

abundance of oral testimony concerning the severity of her injuries, and were

highly prejudicial. For the proposition that because their probative value was

outweighed by the danger of undue prejudice, reversal is required, Bullock

relies on KRE 403 and Hall v. Commonwealth, 468 S.W.3d 814 (Ky. 2015).

During the trial, testimony was provided describing a large avulsion

(ripping of skin) injury to the victim’s left leg and left elbow, skin tears around

her body, a significant wound to her right knee, bruising on her face, rib

fractures, a fractured pelvis, a torn liver, injured kidney, a compound fracture

2 In Driver, the husband was charged with the attempted murder of his wife and we noted

that in a domestic circumstance that even prior threats against the victim are probative of the defendant’s motive and intent to commit the later crime. See also Davis v. Commonwealth, 147 S.W.3d 709, 722 (Ky. 2004) (former husband murdered his ex-wife’s new boyfriend); Richie v. Commonwealth, 242 S.W.2d 1000, 1004 (Ky. 1951) (wife’s murder of her husband).

9 of the femur, blood on her brain and “air escaping from her lungs.” Bullock

concedes that this testimony supported a finding of a “serious physical injury”

under the definition found in KRS 500.080(15) which, he argues, makes the

submission of graphic photographs of those injuries unnecessary and unduly

prejudicial.

The photographs at issue were taken by a Sexual Assault Nurse

Examiner while the victim was still hospitalized. When the Commonwealth

began to introduce some of those photographs during the nurse’s testimony,

Bullock’s counsel objected stating they were both “graphic” and “unnecessary.”

In response the Commonwealth states that it had selected only ten out of

the 100 available photos taken by the nurse and that for the victim’s groin area

injury it had chosen a photo with gauze obscuring the area making it less

graphic representation than others. The trial court stated that the photos were

“horrific, but the injuries are . . . so there’s no requirement for the

Commonwealth to dress these down,” adding further, “they basically describe

the injuries.” In conclusion the trial court determined “to the extent that these

will allow the witness to describe the depth and breadth of these injuries, I

think it’s appropriate. I don’t think it’s excessive.”

The ten injury photos showed various areas of the victim’s body and

displayed abrasions and avulsions, an extensive injury to victim’s upper left

thigh and buttocks (with gauze obstructing what would have showed exposed

muscle), and an external fixator on victim’s leg placed to stabilize victim’s

fractured femur.

10 We must first note that Bullock merely conceding that his wife suffered

serious injuries would not, as a general rule, allow him to exclude other

evidence of those injuries. We have consistently held that the Commonwealth

may “prove its case by competent evidence of its own choosing, and the

defendant may not stipulate away the parts of the case that he does not want

the jury to see.” Pollini v. Commonwealth, 172 S.W.3d 418, 424 (Ky. 2005).

However, the Commonwealth’s right to dictate the specific evidence it uses to

prove its case is not without limit.

The photographs in this case caused Bullock little if any undue

prejudice. The photos in question are in fact on the milder side of photographic

evidence presented in contemporary trials of violent assaults. The particular

photos chosen as exhibits by the Commonwealth showed little that would be

considered grotesque when compared to many, if not most, medical procedures

or crime scene photographs or videos. It is unlikely that the mere fact that they

showed partially unhealed wounds, especially after those wounds had been

cleaned and treated, would arouse improper passion in the jury. We conclude

that the photographs were probative yet minimally prejudicial, and we cannot

say that their potential for prejudice significantly outweighed their probative

value.

C. Cumulative Error is Not Sufficient to Merit This Court’s Reversal of The Trial Court’s Decision.

Finding no error or abuse of discretion in the trial court’s admission of

prior-acts testimony and photographs of the victim’s injuries, there can be no

consideration of effect of cumulative errors in Bullock’s trial.

11 III. CONCLUSION

For the reasons set forth above, Bullock’s conviction and the sentence

imposed by the Jefferson Circuit Court are affirmed in all respects.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Joshua M. Reho Louisville Metro Public Defender

COUNSEL FOR APPELLEE:

Daniel Cameron, Attorney General of Kentucky

Courtney E. Albini, Assistant Attorney General