RENDERED: DECEMBER 14, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0181-MR
ERIC BERRY APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE ANGELA MCCORMICK BISIG, JUDGE NO. 18-CR-000276
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
AFFIRMING
This case comes before the Court on appeal as a matter of right1 by Eric
Berry. Berry was convicted of first-degree burglary, first-degree sexual assault,
two counts of fourth-degree assault, first-degree fleeing or evading, and
resisting arrest. The jury then found Berry to be a first-degree persistent felony
offender. He was sentenced to twenty-five years in prison. Berry now argues
that his right to speedy trial was violated; the trial court abused its discretion
in not giving an intoxication defense instruction; the trial court erred in
disallowing Berry’s former testimony from a domestic violence hearing, despite
Berry asserting his Fifth Amendment right to not testify at his criminal trial;
the trial court erred in not severing the April and December counts for separate
1 Ky. Const. § 110(2)(b). trials; improper bolstering testimony; and cumulative error. After review, we
affirm the trial court.
I. Facts Berry and Kimberly Alford had been in a relationship from 2012-2016.
The relationship ended acrimoniously, and, upon its ending, Alford got a
protective order requiring Berry have no unlawful contact with her. Alford and
Berry continued to talk through text messages and emails. On April 6, 2017,
Alford pulled into her driveway and Berry quickly pulled in behind her, as if he
had been waiting for her to arrive. Alford testified to being intimidated by Berry
and attempted to avoid a confrontation by going into her house. Berry followed
behind her and entered the house though he was not invited in. Berry told
Alford he was in a “bad place,” and desired to stay the night at her house.
Alford agreed but told Berry he could not sleep with her in her bedroom. At
some point during the night, Berry went to use the restroom then entered
Alford’s bedroom. She was awakened by him entering the bed, lifting her shirt,
and kissing her back. Alford resisted these advances verbally, then physically.
After a struggle, Berry overpowered Alford, pulling down her pajamas, tearing
off her underwear, and penetrating her with his fingers. Berry eventually
stopped, threatened to kill Alford if he ever caught her with another man, and
left the room. The next day Alford filed a domestic violence complaint, sought
an amended protective order, and was examined by a Sexual Assault Nurse
Examiner (SANE nurse). Alford, however, declined to formally press charges.
2 By December 2017, Alford had been in a relationship with Jonathan
Bielefeld. On December 2, 2017, she, Bielefeld, and her daughter, K.K.,2 had
gone shopping for a Christmas tree. After setting up decorations that night,
they all went to bed. Around 3:00 AM on December 3, 2017, Alford was
awakened by loud booms caused by Berry banging and kicking on the
backdoor. He eventually broke in. Alford ran to her daughter’s room, telling her
to call the police because her initial emergency call had failed. Alford hid in her
daughter’s closet. Berry stormed through the house and made his way to
Alford’s bedroom where Bielefeld was. He attacked Bielefeld, and demanded
“where’s she at?” Bielefeld responded he did not know but that she was
“probably hiding from you.” Enraged, Berry proceeded to repeatedly strike
Bielefeld’s head.
Berry next went to K.K.’s room and again demanded to know where
Alford was. K.K. too responded she did not know. Berry searched various parts
of the room but failed to find Alford. He then went back to Alford’s room where
he found Bielefeld using a t-shirt to clean the blood from his face. Berry
snatched the shirt and used it to strangle Bielefeld to the point just short of
unconsciousness. Berry then ceased this second attack and searched
throughout the house for Alford. He eventually went back to Alford’s bedroom
and for the third time attacked Bielefeld. Bielefeld grabbed Berry so as to bring
him closer and restrict the movements of his arms. Berry bit Bielefeld’s ear.
2 We use initials to protect the identity of minor victims.
3 After this Berry returned to K.K.’s room, again yelling at her, “where’s
your mom?” He then ripped her closet door off its panel and found Alford. He
immediately began to repeatedly hit her in the face, and Alford testified to
believing she would be killed. Twelve-year old K.K., with no shortage of bravery,
intervened but to no avail. Berry struck her too, punching her in the face.
Berry renewed his attack on Alford, stripping off her pajamas and underwear.
At this moment, police finally arrived with an officer banging and yelling on the
front door loud enough to be heard in K.K.’s bedroom.
Berry ceased his attack and ran to the backdoor. Unbeknownst to him,
another officer had entered the house through the backdoor, gun drawn. When
this officer encountered Berry, he saw he was unarmed and began holstering
his weapon. Berry surged forth, struck him in the head, and fled out the
backdoor. Berry made for the front of the house when he encountered another
officer. Again, Berry surged forth, lowering his head, and headbutting the
officer. This officer managed to hold on to Berry, slowing him down, and
allowing more responding officers to finally subdue him outside the house.
Berry was arraigned on January 26, 2018. Prior to trial he sought to
sever the charges stemming from the April 2017 incident (sexual abuse and
violation of protective order) from the December incident. The trial court denied
that motion. While awaiting trial the Covid-19 pandemic occurred. After the
initial orders by the Governor and this Court in March and April 2020, Berry
orally moved for a speedy trial on April 30, 2020. He filed a written motion for
speedy trial on June 18, 2020. Berry was released on bond on May 14, 2021.
4 On November 30, 2021, he moved to dismiss for a speedy trial violation. The
trial court denied the motion finding Berry’s own actions—such as a motion
regarding evidence of mental defect and hiring private counsel—and the Covid-
19 pandemic were principally to blame for the delay of trial. Finally, on
February 8, 2022, the trial began.
We will discuss further facts below as they relate to the specific
arguments before the Court. We now proceed to the merits.
II. Analysis A. No Speedy Trial Violation We determine a violation of the right to speedy trial by looking to “(1) the
length of delay, (2) the reason for the delay, (3) the defendant's assertion of his
right, and (4) the prejudice to the defendant caused by the delay.” Dunaway v.
Commonwealth, 60 S.W.3d 563, 569 (Ky. 2001). None of these factors are “a
necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial. Rather, they are related factors and must be considered together
with such other circumstances as may be relevant.” Stacy v. Commonwealth,
396 S.W.3d 787, 795 (Ky. 2013) (quoting Barker v. Wingo, 407 U.S. 514, 533
(1972)).
As to length of delay, Berry’s time of arrest to time of trial was
approximately 50 months. “This Court has generally considered delays of over
one year to be presumptively prejudicial.” Goncalves v. Commonwealth, 404
S.W.3d 180, 199 (Ky. 2013). Presumptive prejudice is not a rule that holds a
sufficient length of delay is enough to conclude the constitutional right has
5 been violated—"it simply marks the point at which courts deem the delay
unreasonable enough to trigger the Barker enquiry.” Doggett v. United States,
505 U.S. 647, 652n.2 (1992). In other words, if a length of delay is not
presumptively prejudicial then courts need not inquire into the alleged violation
whatsoever; absent a presumptively prejudicial delay there is no speedy trial
violation. Goncalves, 404 S.W.3d at 199; Dunaway, 60 S.W.3d at 569.
The second factor looks to the reasons for the delay. There are three
categories of reasons: “(1) a ‘deliberate attempt to delay the trial in order to
hamper the defense’; (2) a ‘more neutral reason such as negligence or
overcrowded courts’; and (3) ‘a valid reason, such as a missing witness.’”
Dunaway, 60 S.W.3d at 570 (quoting Barker, 407 U.S. at 531). In blunt terms,
we ask “whether the government or the criminal defendant is more to blame for
that delay[.]” Doggett, 505 U.S. at 651.
This case raises an issue of first impression in Kentucky as to how the
Covid-19 pandemic should be categorized. The Commonwealth has pointed us
to two cases from the federal circuits addressing this issue: United States v.
Snyder, 71 F.4th 555 (7th Cir. 2023), and United States v. Keith, 61 F.4th 839
(10th Cir. 2023). The Tenth Circuit held the pandemic is “a truly neutral
justification—not favoring either side.” Keith, 61 F.4th at 853. The Seventh
Circuit followed Keith by holding the pandemic is a “justifiable” reason for delay
that “cannot fairly be attributed to the government.” Snyder, 71 F.4th at 578.
Considering this persuasive authority, we hold that generally the Covid-19
pandemic falls under the third Barker category of a “valid reason” for delay and
6 should not be weighed against the Commonwealth. We caution that this is not
an iron rule but rather presumptive. The pandemic is a not a get-out-of-the-
constitution-free card, as our decisions in Beshear v. Acree, 615 S.W.3d 780
(Ky. 2020), and Cameron v. Beshear, 628 S.W.3d 61 (Ky. 2021), make clear. It
is within the realm of possibility that a case may arise where a defendant can
demonstrate with evidence that the Commonwealth used the Covid-19
pandemic as a convenient excuse to not prosecute a case promptly even within
the strictures imposed by the pandemic and response thereto. The evidence
necessary to rebut the presumption of validity will necessarily be high and case
specific. The pandemic undoubtedly frustrated the ability of the
Commonwealth to investigate cases and prosecute them as promptly as they
might have been under normal circumstances. But the specific inquiry would
be whether the pandemic frustrated the ability of the Commonwealth to
investigate cases and prosecute them as promptly as they might have been
within the context of the pandemic. In other words: did the Commonwealth
forego taking reasonable actions to promptly prosecute the case that it could
have taken in spite of the pandemic but nonetheless claims the pandemic as a
reason for not taking those reasonable actions. If reasonable actions could
have been taken despite the pandemic, then obviously the pandemic cannot be
a reason to have not taken said actions; therefore, the pandemic would cease to
be a valid reason for delay.
In Berry’s case, the first cause of delay was his own notice to the trial
court that he had mental-health concerns in November 2018. Next, he filed a
7 motion of intent to introduce evidence of insanity, mental condition, or mental
defect in April 2019. This prompted the trial court to order an evaluation by the
Kentucky Correctional Psychiatric Center (KCPC). This evaluation would not be
concluded until October 2019. At the October 2019 pre-trial conference, Berry
stated he was not prepared for trial. At the next pre-trial conference in
December 2019, Berry again argued against setting a trial date, but the trial
court scheduled trial for June 2, 2020. By that time, the pandemic was in full
swing. Although this Court released several Administrative Orders in response
to the pandemic prior to the June 2, 2020 trial date, the first one to definitively
and temporally apply to Berry’s case was Administrative Order 2020-40;
wherein we ordered that “effective June 1, 2020,” “Jury trials shall be
postponed and rescheduled for no sooner than August 1, 2020 . . . .” Thus,
Berry’s first trial date was unequivocally cancelled and postponed by order of
this Court due to the pandemic.
On June 12, 2020, a pretrial conference was conducted telephonically.
The specific public defender representing Berry told the trial court he would be
leaving for a new job at the end of that month, and a new attorney had not yet
been appointed to take over the case. The Commonwealth represented that he
was unsure whether scheduling a new trial date at that point in time was
feasible because of the pandemic. Because a new attorney was coming into the
case, the trial court declined to schedule a new trial—an action we think
eminently reasonable. On August 27, 2020, another hearing was conducted,
8 and trial was scheduled for January 12, 2021. At a hearing on November 19,
2020, that trial date was affirmed.
On January 6, 2021, this Court entered Administrative Order 2021-02,
which postponed all jury trials until April 1, 2021. At the hearing on January
7, 2021, which had originally been intended as a final pretrial conference, a
new trial date had to be determined. Defense counsel informed the trial court
she would be on maternity leave for three months between April through the
first week of July. The new trial date was set for August 3, 2021.
On July 26, 2021, a final pretrial conference was conducted. The
Commonwealth represented it was ready for trial, but defense counsel made an
oral motion to continue the trial. As defense counsel at the hearing aptly
summarized, the trial dates up to that point had been postponed either
because Berry had to be evaluated by KCPC given his motion regarding
evidence of mental defect or condition; or due to the orders of this Court
regarding the pandemic. At the July 26 pretrial conference, defense counsel
stated that she and Berry were not prepared for trial because they had never
been able to sit down “face-to-face” and go over the evidence, due to pandemic
protocols and her maternity leave. Secondly, she stated that since Berry had
posted bond in May 2021, and found work, he now intended to hire private
counsel. She also represented that Berry had always desired private counsel
but due to being incarcerated could not financially afford it. The
Commonwealth objected to the continuance, but the trial court reluctantly
granted the motion after asking Berry directly if he sincerely intended to hire
9 private counsel. A new hearing date was set for August 30, 2021. The trial
court told Berry that a new, firm trial date would be set that day and he would
need to have his new counsel present. The next hearing was in fact conducted
on September 2, 2021, but trial was scheduled February 8, 2022.
After this thorough review of the chronology of events, we conclude the
delays for this trial were due to valid reasons. The first trial date was postponed
after Berry gave notice of his intent to introduce evidence of mental illness or
defect, and the Commonwealth was entitled to seek a psychiatric evaluation.
The next two postponements were due to the pandemic orders of this Court.
There has been no suggestion, much less proof, that the Commonwealth used
these orders as a guise to otherwise delay trial. In fact, the Commonwealth had
been prepared to go to trial since December of 2019. The fourth postponement
was due to Berry’s own motion so that he could retain private counsel.
As to the third factor, Berry first asserted his right to speedy trial on
April 30, 2020. “The defendant's assertion of his speedy trial right, then, is
entitled to strong evidentiary weight in determining whether the defendant is
being deprived of the right.” Barker, 407 U.S. at 531-32. But
how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. Id. at 531. An important aspect of the assertion of the right is to put the trial
court on notice so that it may “exercise a judicial discretion based on the
circumstances” of the case. Id. at 528-29. As discussed in the chronological
10 account, the circumstances of the delays did not allow for the trial court to
remedy what was irremediable. Berry did not assert his right until after the
pandemic had begun. By that time the trial court’s docket as to jury trials was
to a significant degree controlled by this Court’s administrative orders.
Additionally, the specific counsel Berry was assigned also had personal
issues—a new job for the first and maternity leave for the second—that
necessitated tolerating delay. Finally, the third delay after assertion of the right
was because of Berry’s own desire to hire private counsel. Given these
circumstances, we fail to see what more the trial court could have done to
effectuate a speedier trial.
Finally, there is the fourth factor of prejudice.
Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.
Id. at 532. Claims of oppressive incarceration require “proof of trauma.”
Goncalves, 404 S.W.3d at 202. Anxiety and concern require proof “beyond that
which accompanies an ordinary prosecution.” Henderson v. Commonwealth,
563 S.W.3d 651, 665 (Ky. 2018).
Berry has not shown any “proof of trauma” resulting from his
incarceration between December 2017 and May 2021, when he posted bond, or
demonstrated anxiety beyond that which is normal. Though his length of
incarceration is significant, we cannot share the Supreme Court’s former
understanding that time in jail is “simply dead time,” that offers “little or no 11 recreational or rehabilitative programs.” Barker, 407 U.S. at 532-33. The record
here demonstrates that Berry did use his time in jail productively and to his
betterment. He completed a substance abuse rehabilitation program called
Enough is Enough. Berry even became a “mentor” in the program to other
inmates after he had completed it, being described as the “leader in the group,”
who “went beyond his duties” in helping other inmates. He also completed a
Moral Reconation Program, which focuses on cognitive behavior and moral
reasoning. He completed Goodwill Industries of Kentucky’s Soft Skills Academy
and obtained a Ready to Work certificate thus, presumably, did do some work
for Goodwill. He also completed other rehabilitation programs under Living
Free of Kentucky such as the Life-plan of Recovery and Living Free Plan & Five
Components of Recovery. Finally, Berry has not shown how his defense was
impaired by the delay. He could have readily demonstrated this by pointing to
any evidence which may have been lost in the time between arrest and trial or
by cross-examining witnesses as to failures of memory. Nothing of the sort has
been cited to in the record.
We conclude that although a presumptively prejudicial delay occurred in
this case, no actual prejudice meriting reversal has been shown. The delays
here were a perfect storm of valid reasons; namely, Berry’s own motion practice
and trial strategy, a pandemic, and personal reasons of Berry’s first two
attorneys. There was no violation of the right to speedy trial.
B. Insufficient Evidence for Voluntary Intoxication Instruction
12 Berry sought and was denied a voluntary intoxication instruction. A trial
court’s refusal to give an instruction is reviewed for an abuse of discretion.
Brafman v. Commonwealth, 612 S.W.3d 850, 857 (Ky. 2020). Voluntary
intoxication is an affirmative defense. Luna v. Commonwealth, 460 S.W.3d 851,
882 (Ky. 2015). Therefore, Berry had the burden of proof to adduce “some
evidence justifying a reasonable inference of the existence of a defense[.]” Id.
(quoting Fredline v. Commonwealth, 241 S.W.3d 793, 798 (Ky. 2007)).
Voluntary intoxication is only a legitimate affirmative defense when it
“negatives the existence of an element of the offense,” KRS 501.080(1); namely,
intent. Counsel conceded at oral argument that voluntary intoxication is only a
defense to the first-degree burglary conviction in this case.
To merit an intoxication instruction, “[s]imple drunkenness is not
sufficient[.]” Luna, 460 S.W.3d at 882. The “evidence [must be] reasonably
sufficient to prove that the defendant was so drunk that he did not know what
he was doing.” Id. (quoting Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky.
2010)). At trial, all three victims testified that Berry was drunk, perhaps even
exceedingly drunk. Bielefeld testified he informed a nurse at the hospital the
night of the attack that he believed Berry was intoxicated. On cross-
examination, Alford testified she had never seen Berry in such a state, and this
was principally within the context of his drunkenness. But defense counsel
specifically asked, “What caused you to believe that he had an altered
mindset?” She responded, “The rage, the violence, the anger, the jealousy.”
When asked if she believed alcohol or substance abuse affected that, she
13 responded that she was not a doctor. At best, this specific testimony is
ambiguous as to whether Alford believed Berry was in such a state she had
never seen before specifically because of him being intoxicated or rather was a
confluence of intoxication and his own emotions toward Alford. K.K. also
testified that Berry did not appear to know what he was doing that night. Twice
she stated “no,” in response to this question. But immediately following that,
the Commonwealth asked,
Commonwealth: Who was he looking for that night?
K.K.: My mom.
CW: And he went through several rooms looking for her, right?
K.K.: Yes.
CW: Did it appear that that’s why he was at the house?
K.K: Yes.
CW: To look for your mother?
We believe the evidence was reasonably sufficient to justify an inference that
Berry was intoxicated. But whether his intoxication was so excessive that he
could not form the intent to commit a crime in the context of first-degree
burglary is the precise question before us.
First-degree burglary occurs
when, with the intent to commit a crime, he or she knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or she or another participant in the crime . . . Causes physical injury to any person who is not a participant in the crime[.]
14 KRS 511.020(1)(b). Circumstantial evidence can support a conviction. Pollini v.
Commonwealth, 172 S.W.3d 418, 432 (Ky. 2005) (applying rule to first-degree
burglary conviction). And a jury can infer intent from the conduct of the
defendant. Ratliff v. Commonwealth, 194 S.W.3d 258, 275 (Ky. 2006). Just as
all three victims testified to the intoxication of Berry, all three also testified to
Berry’s conduct that demonstrates he was acting with an intent to find Alford.
Bielefeld testified when Berry entered Alford’s bedroom he demanded to know
where she was. He specifically stated that Berry appeared to know what he was
doing, that being “looking for Kim.” K.K. testified when Berry entered her
bedroom he demanded to know where Alford was and searched her bedroom.
The testimony also demonstrated Berry searched throughout the house for
Alford, and once again returned to K.K.’s bedroom where he finally found Alford
in the closet. Immediately upon finding her, he assaulted her by striking her
repeatedly in the face. Add to this Alford’s testimony about the April incident
that Berry had threatened to kill her if he knew she was with another man. All
this supports the conclusion that Berry unlawfully entered Alford’s home with
the intent to assault her. The evidence also overwhelmingly demonstrates that
while he was unlawfully in Alford’s home looking for her, he caused physical
injury to Bielefeld and Alford. Thus, all elements for first-degree burglary are
satisfied.
The trial court, in its discretion, might have given a voluntary
intoxication instruction on this evidence. But our inquiry is whether the refusal
15 to give the instruction was an abuse of discretion. As just explained, Berry was
clearly searching for Alford and when he found her, he assaulted her. The jury
could reasonably infer that because he immediately assaulted Alford when he
found her, that was his intent all along. It is true that K.K. testified she did not
believe Berry knew what he was doing. But as our review of her testimony
confirms, she immediately qualified that statement by testifying Berry was
searching for her mother. The overall context of her testimony also establishes
that Berry was making a concerted effort to find Alford.
As the dissent correctly states, it is the duty of the trial court to examine
the sufficiency of the evidence when deciding whether to give a voluntary
intoxication instruction. Here, the trial court determined that the evidence was
insufficient; and, as discussed above and below, Berry clearly was aware of
what he was doing, and acted deliberately. It cannot be said that the trial
court’s decision was clearly erroneous, or arbitrary, unsound, and an abuse of
discretion.
This Court has always looked to the evidence at trial to determine
whether that evidence supported an inference that the defendant did not know
what he was doing as a result of intoxication; and numerous times we have
affirmed trial court’s refusing to give instructions where the evidence did not
support that inference. Fredeline v. Commonwealth, 241 S.W.3d 793, 797-98
(Ky. 2007); Harris v. Commonwealth, 313 S.W.3d 40, 50-51 (Ky. 2010); Luna,
460 S.W.3d at 882-83; Conyers v. Commonwealth, 530 S.W.3d 413, 431-33
(Ky. 2017).
16 Indeed, in Conyers, we held that where the evidence showed the
defendant could “drive, walk, and understand what was said to him[,]” as well
as appeared to be “aware of his actions” and “functioning normally,” then there
is insufficient evidence for voluntary intoxication. Conyers, 530 S.W.3d at 432.
Here, both Bielefeld and K.K. testified that Berry spoke to them and, though
obviously aggressive and violent, there was conversation going on. Both
testified that this conversation was regarding the whereabouts of Alford. Both
testified that he searched throughout the house looking for her. Alford testified
that after Berry had discovered and assaulted her, he ripped her pajama pants
and underwear off and was in the process of some kind of sexual assault, when
a police officer banged on the front door and announced his presence. Berry
immediately ceased his attack and ran to the back of the house. Evidently,
beyond dispute, Berry was aware that what he was doing was unlawful and he
would be arrested by the police and attempted to escape. He was well-enough
in control of his own actions that he could search throughout the house for
Alford and then navigate the home when attempting to flee.
With due respect to the dissent, the burden of proof for an affirmative
defense is, admittedly, “not a terribly high bar.” King v. Commonwealth, 513
S.W.3d 919, 924 (Ky. 2017). But if the evidence in this case—which amounts to
one snippet of out-of-context testimony—is enough, then there is in fact no bar
at all. Upon review, we cannot hold that one, out-of-context piece of testimony
satisfies Berry’s burden of proof to put forth evidence reasonably sufficient to
prove he did not know what he was doing as a result of intoxication to such a
17 degree that the failure to give an intoxication instruction was an abuse of
discretion. The trial court believed, and the evidence more than supports, that
Berry’s intent was never seriously doubted. The trial court is affirmed.
C. No Error in Disallowing Former Testimony Berry also sought to introduce testimony he had given at a previous
domestic violence hearing in rebuttal to testimony from Detective Livers
regarding the April incident. KRE 804(b)(1) allows “[t]estimony given as a
witness at another hearing of the same or a different proceeding . . . if the party
against whom the testimony is now offered . . . had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination.”
Berry was present at trial but had invoked his Fifth Amendment right to
remain silent. Thus, this case does present the question, yet unanswered in
Kentucky, whether a defendant seeking to introduce prior testimony of himself
under KRE 804(b)(1) is unavailable for purposes of the rule when he has
invoked his Fifth Amendment right. Typically, “the proposed witness'
unavailability is a threshold matter . . . .” Roark v. Commonwealth, 641 S.W.3d
94, 95 (Ky. 2021). But we “refrain from reaching constitutional issues when
other, non-constitutional grounds can be relied upon.” Baker v. Fletcher, 204
S.W.3d 589, 597–98 (Ky. 2006). This case also presents the question of the
Commonwealth’s lack of presence at the DVO hearing; therefore, a plain text
reading and application of KRE 804(b)(1) suffices for resolution without
reaching the implications of invoking the Fifth Amendment.
18 The trial court concluded the Commonwealth did not have a similar
motive and opportunity for cross-examination in a DVO hearing, as it would
have in a criminal trial. This ruling was correct under KRE 804(b)(1), as there
is no identity of parties between a DVO hearing and criminal trial. The
Commonwealth is not a party in the former hearing. As such, the
Commonwealth—the party against whom Berry proffered his DVO testimony—
did not have any opportunity to cross-examine him. Additionally, the standard
of proof in a DVO hearing is preponderance of the evidence that the
complainant more likely than not is a victim of domestic violence.
Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). Finally, Alford, in
the DVO hearing, cannot be considered a predecessor in interest since that
exception only applies “in a civil action or proceeding . . . .” KRE 804(b)(1). The
trial court is affirmed.
D. Joinder of April and December Incidents for Trial Not Prejudicial Berry sought to sever the April and December charges. The trial court
concluded the circumstances of the sexual abuse charge of April were similar
to the attempted sexual abuse charge of December and the evidence of the
April incident would be admissible under KRE 404(b) in a trial regarding the
December incident. The trial court did, however, grant the motion insofar as it
pertained to the charges for violating a protective order, finding it would be
overly prejudicial. Joinder of multiple offenses is appropriate “if the offenses are
of the same or similar character or are based on the same acts or transactions
19 connected together or constituting parts of a common scheme or plan.” RCr3
6.18. Joinder is reviewed for an abuse of discretion. Garrett v. Commonwealth,
534 S.W.3d 217, 223 (Ky. 2017). “[T]o be reversible, an erroneous joinder of
offenses must be accompanied by ‘a showing of prejudice’ to the defendant.
This showing of prejudice cannot be based on mere speculation, but must be
supported by the record.” Id. (quoting Hammond v. Commonwealth, 366 S.W.3d
425, 429 (Ky. 2012)). There is no need to review this issue in any greater depth.
The jury acquitted Berry on the December attempted sexual abuse charge.
Manifestly, the evidence of the April sexual abuse, which the jury did find him
guilty of, did not prejudice him in any discernable way. The failure to
demonstrate actual prejudice from the record is sufficient to conclude there is
no reversible error.
E. No Improper Bolstering This issue is unpreserved as conceded by Berry. An unpreserved error
will be reviewed for palpable error. RCr 10.26. A palpable error is one of
manifest injustice—it “is so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process.” Martin v. Commonwealth, 207
S.W.3d 1, 5 (Ky. 2006). The SANE Nurse Sheahan and Detective Livers are
alleged by Berry to have improperly bolstered the testimony of Alford.
Detective Livers investigated the April sexual abuse incident. The
Commonwealth asked her,
3 Kentucky Rules of Criminal Procedure.
20 and as far as your investigation goes, as far as credibility, I think we touched on this already, the statement that you got from Ms. Alford, and then reviewing the SANE exams, there was some corroboration there, right? Detective Livers responded, “Yes, correct.” Nurse Sheahan twice related
testimony regarding a “digital penetration sexual assault,” during the April
incident. The first time was simply to say that a digital penetration sexual
assault was reported by Alford and that was why she was examining her. The
second time was on re-direct in response to the Commonwealth’s question, to
wit: “And this sexual assault occurred, approximately, you documented 0400
hours the previous morning?” Nurse Sheahan responded, “Correct.” That
question was in the context of a colloquy regarding the lack of bleeding or other
visible injury to Alford’s vagina by the time the examination occurred, which
was an issue raised on cross-examination. Berry argues this testimony not only
improperly bolstered Alford’s testimony but invaded the province of the jury by
testifying to the ultimate issue.
The Commonwealth responds by citing Dickerson v. Commonwealth, 485
S.W.3d 310 (Ky. 2016). In that case, a wife testified about her husband’s
spousal abuse despite him not being charged with a crime regarding spousal
abuse, which he argued on appeal only served to improperly bolster her
testimony regarding the four counts of criminal abuse and one count of murder
against his children. Id. at 320-21. Dickerson’s defense was that his wife was
the guilty one and that her testimony was false. Id. at 321. Thus, we held that
contrary to his argument of improper bolstering, his wife’s “truthfulness was at
issue in this case from the very beginning[,]” and “was put in issue as early as 21 voir dire[.]” Id. We concluded therefore that the spousal abuse testimony was
“rehabilitative proof that tended to rebut the direct and implied charges of
fabrication leveled against Gladys from the outset as part of the defense's guilt-
shifting trial strategy.” Id.
In opening statements, defense counsel specifically attacked Alford’s
credibility by telling the jury,
You’re going to hear she has a long history of lying, dating back twenty years. Three times she’s been convicted of lying to police, lying to get government benefits, on and on . . . What I can tell you is that what happened allegedly in April of 2017 . . . isn’t true.
Review of defense counsel’s cross-examination of Alford confirms that Berry did
attack Alford’s credibility and truthfulness, and that this was the key to his
defense against the April incident: that she was simply lying about it.
The principal case Berry cites in support of his argument is Alford v.
Commonwealth, 338 S.W.3d 240 (Ky. 2011). Alford addressed a trial where the
police detective testified extensively to the “statements made by an alleged
victim of sexual abuse to a police detective.” Id. at 246. Berry does not cite to
any portion of the record where Detective Livers simply repeated or affirmed the
statements of Alford, as happened in Alford. Id. Also in Alford, the doctor’s
“testimony not only named Appellant as the perpetrator, but went on to
basically repeat the allegations to which S.A. had already testified, including
statements that had no relevance to medical diagnosis and treatment (identity
notwithstanding).” Id. at 248. Berry similarly fails to cite to the record where
this kind of testimony occurred with Nurse Sheahan.
22 We find Alford distinguishable because the erroneous hearsay testimony
of that case is simply not the kind that occurred here. We also agree with the
Commonwealth that the testimony of Nurse Sheahan and Detective Livers was
not to improperly bolster Alford’s testimony but was “rehabilitative proof” that,
at least as the April incident was concerned, Alford was a trustworthy
complainant—an issue Berry unequivocally put before the jury. There was no
error.
Finally, Berry’s claim for cumulative error fails since we have found no
error or abuse in the other arguments presented. “Where . . . none of the errors
individually raised any real question of prejudice, we have declined to hold that
the absence of prejudice plus the absence of prejudice somehow adds up to
prejudice.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).
III. Conclusion For the aforementioned reasons, we affirm the convictions of Berry. VanMeter, C.J.; Conley, Keller, Lambert, Nickell, and Thompson, JJ.,
sitting. VanMeter, C.J.; Conley, Keller, Lambert, and Thompson, JJ., concur.
Nickell, J., concurs in part and dissents in part by separate opinion. Bisig, J.,
not sitting.
NICKELL, J., CONCURRING IN PART, DISSENTING IN PART: I concur
with much of the majority’s well-reasoned opinion. However, because I believe
Berry was entitled to the requested instruction on voluntary intoxication, I
respectfully dissent in part as to the conviction for first-degree burglary.
“When there is proof to support a raised defense, it is the jury’s prerogative, not
23 the court’s or Commonwealth’s, to consider all of the evidence and decide
whether to accept or reject it.” King v. Commonwealth, 513 S.W.3d 919, 925
(Ky. 2017). Under this standard, the appropriate inquiry focuses not on the
weight and credibility of the evidence but, rather, on the existence of sufficient
evidence. The scope of the trial court’s gatekeeping role should not be allowed
to infringe upon the province of the jury as the sole finder of fact.
RCr 9.54(1) imposes a duty upon the trial court “to instruct the jury in
writing on the law of the case[.]” The law of the case encompasses both lesser-
included offenses and any available affirmative defenses. King, 513 S.W.3d at
923. Thus, “[t]he jury instructions must be complete and the defendant has a
right to have every issue of fact raised by the evidence and material to his
defense submitted to the jury on proper instructions.” Hayes v.
Commonwealth, 870 S.W.2d 786, 788 (Ky. 1993). This rule holds “true no
matter how preposterous the defendant’s evidence may be.” 1 Cooper &
Cetrulo, Kentucky Jury Instructions § 1.05[A] (2022). In other words, “it is the
privilege of the jury to believe the unbelievable if the jury so wishes.” Mishler v.
Commonwealth, 556 S.W.2d 676, 680 (Ky. 1977).
On appellate review from the denial of a requested instruction, we must
“[c]onstru[e] the evidence favorably to the proponent of the instruction. . . [and]
ask whether the evidence would permit a reasonable juror to make the finding
the instruction authorizes.” Allen v. Commonwealth, 338 S.W.3d 252, 255 n.1
(Ky. 2011); see also 23A C.J.S. Criminal Procedure and Rights of Accused §
1832 (2023) (“In considering whether to allow a jury instruction on an
24 affirmative defense, trial courts are responsible for acting as gatekeepers and
determining whether the evidence presented, considered in the light most
favorable to the defendant, could establish the affirmative defense.”). “The
sufficiency of the evidence to [support a requested instruction] is a question of
law for the courts to determine on a case-by-case basis.” Jewell v.
Commonwealth, 549 S.W.2d 807, 812 (Ky. 1977), overruled on other grounds by
Payne v. Commonwealth, 623 S.W.2d 867 (Ky. 1981).
“A voluntary intoxication instruction is justified only when there is
evidence that the defendant was so drunk that he did not know what he was
doing or when the intoxication negatives the existence of an element of the
offense.” Rogers v. Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002) (footnotes and
internal quotation marks omitted); KRS 501.080(1). “Mere drunkenness will
not raise the defense of intoxication.” Jewell, 549 S.W.2d at 812. Instead,
“[t]here must be something in the evidence reasonably sufficient to support a
doubt that the defendant knew what he was doing.” Id. This Court recently
clarified the necessary quantum of proof in a voluntary intoxication case and
stated, “[t]he requirement of introducing ‘some evidence justifying a reasonable
inference of the existence of a defense,’ . . . is not a terribly high bar.” King,
513 S.W.3d at 924 (internal citation omitted). Moreover, “it is unnecessary
that the evidence authorizing the instruction be affirmatively introduced by the
defendant[.]” Cooper & Cetrulo, at § 1.04[B].
In the present appeal, the majority candidly recognizes, “[t]he trial court,
in its discretion, might have given a voluntary intoxication instruction on this
25 evidence.” Ante, at 15. “At trial, all three victims testified that Berry was
drunk, perhaps even exceedingly drunk.” Ante, at 13. Additionally, “K.K.
testified she did not believe Berry knew what he was doing.” Ante, at 16. In
my view, if the evidence of voluntary intoxication was sufficient, then a trial
court is without discretion to refuse the requested instruction. Brown v.
Commonwealth, 575 S.W.2d 451, 452 (Ky. 1978) (holding defendant is entitled
to instruction upon production of sufficient evidence of voluntary intoxication).
It is not the prerogative of a court to contextualize the testimony of witnesses
because “the ‘reasonable juror’ is the operative standard, in the appellate court
as well as in the trial court.” Allen, 338 S.W.3d at 255 n.1. Similarly, “[i]t is
not for us to decide” ultimate issues of fact or otherwise resolve ambiguities in
the evidence. Mishler, 556 S.W.2d at 680. Viewing the evidence in the light
most favorable to Berry, the jury was free to believe K.K.’s statement that he
did not know what he was doing and disbelieve any qualifications or
contradictions. See Cross v. Clark, 308 Ky. 18, 23, 213 S.W.2d 443, 446
(1948) (“[The jury] may believe any of the witnesses in whole or in part, and
may accept the testimony of one set of witnesses to the exclusion of that of
another or the testimony of one witness as against the testimony of a number
of witnesses.”). Berry was thus entitled to the requested instruction on this
basis without regard to the countervailing evidence of his guilt.
When there is sufficient evidence to support the defense of intoxication, it
is reversible error for a trial court to refuse a requested instruction. Mishler,
556 S.W.2d at 659. Such a refusal is not subject to harmless error analysis
26 because a defendant is entitled by right to instructions on any lawful defense
supported by the evidence. Mondie v. Commonwealth, 158 S.W.3d 203, 209–
210 (Ky. 2005); Nichols v. Commonwealth, 142 S.W.3d 683, 690 (Ky. 2004). It
is not the role of a court to consider questions of weight or credibility once the
minimal threshold of sufficiency has been satisfied. Therefore, I respectfully
concur in part, dissent in part, and would reverse for a new trial on the charge
of first-degree burglary.
COUNSEL FOR APPELLANT:
Robert C. Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Joseph E. Beckett Elizabeth Hedges Assistant Attorneys General