Gerry E. Lawson v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: November 1, 2018
• Docket: 2017-SC-0621
• Status: Unpublished

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: NOVEMBER 1, 2018 NOT TO BE PUBLISHED

2017-SC-000621-MR

GERRY E. LAWSON APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE DARRYL S. LAVERY, JUDGE NO. 13-CR-001816

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

In the early morning hours of March 3, 2013, Appellant, Gerry E.

Lawson, killed Vernice Aniton at her home through beating and strangulation.

Afterward, he left the scene, filled up several cans with gasoline at a nearby

filling station, returned to Aniton’s home, and set it ablaze with her body

inside. The conflagration spread to a nearby rooming house. During the

incident, Lawson sustained substantial burns. He fled but was later

apprehended in Dallas, Texas. Lawson had burn marks on his right arm.

During the investigation of Aniton’s residence, an arson dog alerted

agents to the presence of hydrocarbons. Kentucky State Police lab analyses

showed the presence of gasoline in nine samples taken from her residence, including around the bed frame upon which her charred remains were

discovered. Arson investigators discovered several toilet paper rolls stuck

beneath Aniton’s remains—presumably to serve as kindling—and identified a

strong gasoline smell near her body. Arson Investigator Hillary Washington

concluded the fire had multiple points of origin throughout Aniton’s residence

and had been intentionally fueled with an accelerant.

On July 2, 2013, a Jefferson County Grand Jury indicted Lawson on one

count each of murder, second-degree arson, third-degree arson, first-degree

wanton endangerment, tampering with physical evidence, abuse of a corpse,

and second-degree cruelty to animals.

On June 20, 2017, the trial began. Medical Examiner Dr. Donna Stewart

testified that, because there was no soot found in Aniton’s trachea and the

levels of carbon monoxide in her blood were low, she believed the victim died

before the fire was set. Additionally, Aniton’s remains displayed signs of

beating and strangulation.

A Jefferson County jury convicted Lawson of murder, second-degree

arson, third-degree arson, first-degree wanton endangerment, and tampering

with physical evidence. Based upon the jury’s recommendation, the trial court

sentenced him to 70 years’ imprisonment. Lawson now appeals his judgment

and sentence as a matter of right pursuant to Section 110(2) (b) of the Kentucky

Constitution.

2 Analysis

Expert Testimony

For his first argument, Lawson claims the trial court abused its

discretion in allowing a certified forensic nurse practitioner to testify that burns

she observed on Lawson could have been caused by heat. “[W]e review a trial

court’s evidentiaiy rulings for an abuse of discretion.” Meece v.

Commonwealth, 348 S.W.3d 627, 645-46 (Ky. 2011) (citing Penman v.

Commonwealth, 194 S.W.3d 237, 245 (Ky. 2006)). “A trial court's decision

regarding the admissibility of evidence is reviewed for an abuse of discretion.”

7?oss v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015). Abuse of discretion

occurred if “the trial judge’s decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999).

After Lawson was transported from Texas to Kentucky, Sally Sturgeon,

an advanced registered nurse practitioner and board-certified forensic nurse

examiner, documented and photographed Lawson’s injuries. Specifically, her

examination report noted injuries “consistent with partial thickness to full

thickness burns” on Lawson’s right forearm, as well as the right side of his face

and neck. Her report did not mention whether fire or heat could have caused

the burns. However, she recorded that Lawson told her the cause of the two

burns: the one on the right side of his face and neck was caused by “some

chemicals [he] was working with a few months ago,” and the burn on his arm

was caused when he was grabbed by “a demon.”

3 At trial, defense counsel objected under Kentucky Rule of Criminal

Procedure (RCr) 7.24(l)(c) when the Commonwealth asked Sturgeon about the

types of phenomena that can cause full thickness burns. Her report did not

state that the burns were caused by fire, heat, chemicals, or another method.

The trial court overruled the objection, stating that the witness could be cross-

examined about the cause of the burns. Sturgeon went on to describe thermal

burns, which are caused by heat or flames. On cross-examination, she agreed

with defense counsel that electricity, chemicals, radiation, and other means

can also cause burns. Notably, she never testified about her belief as to what

caused Lawson’s burns.

Under RCr 7.24(l)(c) provides that:

[U]pon written request by the defense, the attorney for the Commonwealth shall furnish to the defendant a written summary of any expert testimony that the Commonwealth intends to introduce at trial. This summary must identify the witness and describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.

Defense counsel argues that because the written summary of Sturgeon’s expert

testimony did not describe her opinion about the cause of Lawson’s burns, but

merely that Lawson had injuries “consistent with . . . burns,” Lawson’s

Fourteenth Amendment right to a fair trial was violated when Sturgeon testified

that heat or flames could cause burns.

Her trial testimony, which was consistent with her report, concerned,

inter alia, that she observed a wound on the “forearm and elbow of Mr.

Lawson’s right arm . . . consistent with a burn.” Also, she observed a wound

4 “along the right side of Mr. Lawson’s face and neck ... an area of

hyperpigmentation which is . . . consistent with a bum.”

Clearly, Sturgeon’s statements derived from her specialized training as a

nurse practitioner and licensed forensic examiner. The testimony primarily

concerned her notes, which were taken upon physical examination of Lawson’s

wounds. The witness merely testified as to her medical observations and the

general methods by which burns can be caused.

Based upon the written summary of Sturgeon’s evaluation, which was

provided to defense counsel, Lawson had notice that Sturgeon was going to

testify regarding her forensic examination of his burn-consistent injuries. Her

notes clearly state that, in her opinion, she believed Lawson’s injuries were

“consistent with . . . bums.” Sturgeon’s qualifications entitled her to testify

regarding the types of phenomena that can cause flesh to burn. Expert

testimony involves “scientific, technical, or other specialized knowledge [that]

will assist the trier of fact to understand the evidence or to determine a fact in

issue . . . .” Kentucky Rule of Evidence (KRE) 702.

The trial court determined that Sturgeon’s statement about the potential

causes of burns was layperson testimony. Although the statement that heat or

flames can cause burns, among other methods, is arguably common knowledge

layperson testimony, her status as a medical professional gave weight to her

statements as being derived from “scientific, technical, or other specialized

knowledge.” While we find that the trial court was mistaken in referring to

Sturgeon’s testimony as layperson testimony, we find the trial court’s error in

5 labeling the evidence was harmless. In conformity with RCr 7.24(l)(c), Lawson

had notice of the expert’s intent to testify about her medical examination of

him. Thus, there was no abuse of discretion.

Hearsay Challenges

For his second argument, Lawson claims the trial court abused its

discretion when it declined to admit two statements allegedly made by

Jermaine Simmons. Lawson proffered a defense that Simmons was the actual

perpetrator of Aniton’s murder. In order to build this defense, counsel

attempted to enter two statements allegedly made by Simmons. The trial court

held that both of those statements were inadmissible hearsay.

One statement Simmons allegedly made was to Lawson. On direct

examination, defense counsel asked Lawson, “what did [Simmons] say to you?”

The Commonwealth objected on hearsay grounds. When arguing for admission

of Lawson’s response, defense counsel stated at bench conference: “What

Gerry’s going to testify to is that Jermaine told him that he was going over to

Vernice’s house to collect money from her. It’s not for hearsay, it’s for the

effect on the listener.”

The second statement Simmons allegedly made was to Victor Spalding,

who owed Simmons drug money. Defense counsel asked Spalding, concerning

his “on credit” purchase of cocaine from Simmons, “Did you ever have any . . .

discussions with Jermaine about what would happen if you didn’t pay him

back?” Again, the Commonwealth objected on hearsay grounds. When

6 arguing for admission of Spalding’s response, defense counsel stated at bench

conference:

Rather than make an avowal, in the statement that he made, he said that if he didn’t pay, Jermaine threatened his life. And I think the threat to his life from Jermaine ... is relevant.... He called the police to tell them that and [Detective] Wilder told him afterwards, “don’t worry about it.” So, I think that it was his motive for calling the police that day as much as anything, that he’d been threatened by Jermaine, and I think that might add to its relevance.

Evidentiary rulings are reviewed for an abuse of discretion. Meece, 348

S.W.3d at 645-46. Hearsay is defined as an out-of-court statement “offered in

evidence to prove the truth of the matter asserted.” KRE 801(c).

Lawson cites Daugherty v. Commonwealth, 467 S.W.3d 222 (Ky. 2015),

for the notion that Simmons’ statements were “verbal acts” and therefore not

hearsay. In Daugherty, this Court recognized that “a command, like a threat or

a question, is a verbal act,” and therefore not hearsay. Id. at 229. This Court

elaborated:

Hearsay does not mean any or all out-of-court statements; rather, hearsay means only “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” KRE 801(c). And a statement consisting of a command to another person is not offered for the truth of the matter asserted ....

Id.

Here, we do not find any admissible verbal acts. First, Simmons’ alleged

statement to Lawson was not a threat, and it was not introduced just to show

the statement was made. Its relevant purpose would be to show that Simmons

did, in fact, follow up on his statement by going to Vernice’s house. That fact

7 would place Simmons at the crime scene and give him a motive for killing the

victim. Therefore, by offering Simmons’ out-of-court statement for the truth of

the matter asserted, it fits the very definition of hearsay. Furthermore, it does

not satisfy any hearsay exceptions.

Next, Simmons’ statement to Spalding was a threat against Spalding’s

life, not the victim. It is irrelevant. The defense was positing that Simmons

threatened to kill those who did not pay him. However, a threat made by a

third party against a third party not even involved in the alleged murder is not

relevant. “[A] threat to kill or injure someone which is specifically directed at

some individual other than the deceased is inadmissible, as it shows only a

special malice resulting from a transaction with which the deceased had no

connection.” Jones v. Commonwealth, 560 S.W.2d 810, 812 (Ky. 1977).

Whether Simmons’ alleged threat to Spalding was a “verbal act” is immaterial

because that evidence is entirely irrelevant to the case at bar.

Therefore, the trial court did not abuse its discretion by sustaining the

Commonwealth’s objection to the aforementioned statements.

Party Admission

For his third argument, Lawson alleges that the trial court committed

reversible error when it allowed the Commonwealth to play part of a police

interview recording in open court, wherein Lawson stated he once had a

disagreement with the victim.

Notably, the recording was already admitted into evidence. Lawson’s

recorded statement was an admission under KRE 801 A(b)( 1), wherein Lawson

8 admitted to having a disagreement with Aniton prior to her death. This

evidence is relevant, not unduly prejudicial, and admissible as a party

admission. Further, “[t]he recording was admitted into evidence as an exhibit

. . . [and] exhibits that are testimonial in nature, such as video of a witness's

testimony, must be reviewed in open court.” Commonwealth v. Wright, 467

S.W.3d 238, 243 (Ky. 2015) (emphasis added). Thus, the trial court did not err

in permitting the Commonwealth to play the interview recording for the jury.

Statement to Jury Concerning Sentencing

Lastly, Lawson claims the trial court erred when it answered a jury

question regarding parole eligibility during the sentencing phase. Following

Lawson’s conviction, but during the jury’s sentencing phase deliberations, the

jury sent out a written question. The trial court read aloud to counsel the

question posed to it by the jury: “if we fix charges consecutively, is he still

eligible for parole, and then they have an example, 50 murder, 20 arson?”

During the sentencing phase, a probation and parole officer had provided

testimony to the jury regarding parole eligibility but did not specify whether

Lawson would be parole eligible if his sentences ran consecutively. Over

defense counsel’s objection, the trial court answered in the affirmative.

Defense counsel argues that Lawson is entitled to a new sentencing phase,

alleging that the trial court’s “yes” answer to the jury’s sentencing question was

new, improperly-introduced evidence that violated Lawson’s due process rights

under the Fourteenth Amendment to the United States Constitution.

9 Although the Commonwealth argues, and the trial court apparently

believed, this was purely a question of law which the trial judge was able to

answer, we must disagree. Information about parole eligibility typically comes

into the penalty phase through the testimony of a probation and parole

witness, as it did here. Even though this testimony includes some information

that is purely legal (e.g., this is a violent crime and therefore a defendant must

serve 85% of the sentence before being eligible for parole), it is nonetheless

relevant sentencing information that is offered as evidence. The judge has no

role in providing information on parole eligibility. By doing so here, the judge

introduced new information or evidence to the jury after it had retired to

deliberate. See RCr 9.74 (“No information requested by the jury or any juror

after the jury has retired for deliberation shall be given except in open court in

the presence of the defendant (unless the defendant is being tried in absentia)

and the entire jury, and in the presence of or after reasonable notice to counsel

for the parties.”). After the jury retired to deliberate, the judge could not

provide any additional information except through RCr 9.74, if appropriate, or

by agreement of counsel that the question could be answered, thereby waiving

any objection. The judge erred in answering this question, but we do not find

that the accurate answer denied Lawson’s due process rights or otherwise

affected his substantial rights. It was harmless error. RCr 9.24. We caution

our trial judges that juries frequently ask questions during deliberations and

generally those inquiries ask for information that the judge cannot

10 provide. Trial judges should proceed with caution because an answer will often

not be harmless.

Conclusion

For the foregoing reasons, we hereby affirm the judgment of the Jefferson

Circuit Court.

All sitting. Minton, C.J.; Hughes, Keller, VanMeter, and Venters, JJ.,

concur. Cunningham, J., concurs in result only by separate opinion, which

Wright, J., joins.

CUNNINGHAM, J., CONCURRING IN RESULT: I concur in result.

RCr 9. 74 states: “No information requested by the jury or any juror after

the juiy has retired for deliberation shall be given except in open court in the

presence of the defendant. . . and the entire jury, and in the presence of or

after reasonable notice to counsel for the parties.” Here, during the sentencing

stage, the jury sent out the written question, but did not return to the court

room. Therefore, the trial court failed to comply with RCr 9.74. And the

defense counsel objected to an answer being given.

So, I agree there was error.

However, I depart from the majority in its holding that it would have been

error regardless, since the answer was one of evidence and not law. I disagree.

It was actually a mixture of fact and law. Sure enough, that information is

usually introduced through a witness, such as a probation officer. However, it

is a matter of law that consecutive sentences do not disqualify a defendant

from being eligible for parole.

11 Also, this court has held that a judge may answer a question from the

jury during deliberations on sentencing that relates to facts and a point of law.

Stokes v. Commonwealth, 275 S.W.3d 185 (Ky. 2008). That case dealt with a

sodomy upon a child. A prior conviction for a sexual offense was introduced at

the sentencing stage. After deliberating for only a short time the jury sent out

the question, “We want to know if the prev. conv. was on a child?” Id. at 190.

Over objection of the defendant, the trial judge informed the jury that the

victim of the previous conviction was under 14 years of age. We held that

“such proof can be given” by the trial court, “providing the qualifiers are met.”

Id. at 192. These “qualifiers” are the parameters set down by RCr 9.74. While

it is not entirely clear if those conditions were met in Stokes, we have to

assume they were in light of the ruling.

Therefore, had RCr 9.74 been strictly complied with in this case, there

would have been no error, harmless or otherwise.

Therefore, I must respectfully concur in result only.

12 COUNSEL FOR APPELLANT:

Joshua Michael Reho Daniel T. Goyette Louisville Metro Public Defender of Counsel

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

James Coleman Shackelford Assistant Attorney General