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Supreme Court of Kentucky 2019-SC-0604-MR
HUMBERTO MESA-VASQUEZ A/K/A APPELLANT ALEJANDRO ARTURO VASQUEZ CABRERA
ON APPEAL FROM PULASKI CIRCUIT COURT V. HONORABLE DAVID A. TAPP, JUDGE NO. 18-CR-00235-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Pulaski Circuit Court jury convicted Humberto Mesa-Vasquez a.k.a.
Alejandro Arturo Vasquez Cabrera (“Mesa-Vasquez”) of murder,1 arson in the
second degree,2 tampering with physical evidence,3 and abuse of a corpse.4 He
was sentenced to life in prison. Mesa-Vasquez now appeals as a matter of right,
arguing multiple points of error. See KY. CONST. Section 110(2)(b). After careful
review of the record and arguments of the parties, we affirm the Pulaski Circuit
Court.
1 Kentucky Revised Statute (“KRS”) 507.020. 2 KRS 513.030. 3 KRS 524.100. 4 KRS 525.120. I. BACKGROUND
In the early morning hours of February 24, 2018, Jorge Martinez was
shot and killed in the living room of the upstairs apartment of 431 South Main
Street in Somerset, Kentucky. In the apartment at the time Martinez was killed
were Mesa-Vasquez, Heberto Romero Ordonez I (“Senior”), and Heberto Romero
Ordonez II (“Junior”). Mesa-Vasquez, Senior, and Junior all lived in the
apartment, and Martinez lived just a few houses away on the same street.
Martinez, Senior, and Junior also worked together in the roofing industry for
Desi Fuentes. Mesa-Vasquez and Junior are cousins.
Junior testified at trial5 that the evening before Martinez was killed, he,
Senior, and Martinez all went to Desi’s house to pick up their pay checks. They
then purchased beer at a gas station and went back to the apartment at 431
South Main Street. At the apartment, all four of the men were socializing and
drinking beer. At some point, Martinez and Senior went back out and
purchased more beer. Senior eventually fell asleep on a couch, and Mesa-
Vasquez went into his bedroom. Junior and Martinez were still in the living
room when Mesa-Vasquez exited his bedroom and shot Martinez. Mesa-
Vasquez shot three times, once into the floor, once into Martinez’s chest, and
once into Martinez’s head. Junior could not remember exactly what Mesa-
5 By the time Mesa-Vasquez’s case went to trial, Senior had been deported to Mexico. The only witnesses to any portion of the events in question who testified at trial were Junior and Gloria Ortega, Mesa-Vasquez’s ex-girlfriend. Both were also indicted as co-defendants and reached plea agreements with the Commonwealth.
2 Vasquez said before shooting Martinez but stated that the two were not arguing
before the shooting.
After shooting Martinez, Mesa-Vasquez called Gloria Ortega, his ex-
girlfriend, and told her to come to his apartment. Mesa-Vasquez instructed her
to back her Chevrolet Tahoe into the driveway in front of the apartment.
According to Junior, Mesa-Vasquez wrapped Martinez’s body in a sheet, and
when Ortega arrived, he and Mesa-Vasquez placed the body in the back of the
Tahoe. Mesa-Vasquez then got into Martinez’s car while Junior got into
Ortega’s car. Mesa-Vasquez led Ortega and Junior to Ortega’s house. Ortega
testified that when they arrived at her house, Mesa-Vasquez asked for two
bags, and both men walked around in her garage and her yard for a while as if
they were looking for something. She did not know what they were doing.
Eventually, both men got back into the car in which they drove to Ortega’s
house. Mesa-Vasquez led Ortega and Junior to a rural area of Somerset. They
stopped at an area on Rush Branch Road. According to Junior, Mesa-Vasquez
ordered him to place Martinez’s body in the driver’s seat of Martinez’s car.
Junior did so, and then Mesa-Vasquez poured gasoline on the body and the car
and lit them on fire. Ortega then brought both men back to the apartment they
shared, and she returned home.
Junior testified that Mesa-Vasquez then disposed of the chair in which
Martinez was shot. While Mesa-Vasquez was disposing of the chair, Senior and
Junior went to Desi Fuestes’s home and told Desi what had occurred. Desi’s
wife, Estelle Fuestes, then called 911 to report the murder. Junior explained
3 during his testimony that he went to Desi’s house to report the crime because
neither he nor his father spoke English to call 911 themselves.
At approximately 6:30 a.m., Mary Elizabeth Hamm was driving down
Rush Branch Road on her way to work when she saw a car on fire. She called
911, and multiple fire departments and the police department responded. After
the fire was put out, firefighters discovered Martinez’s body in the driver’s seat
of the car. According to lab testing, charred remnants of fabric taken from
Martinez’s body and the front seat of the vehicle tested positive for gasoline.
The medical examiner found a projectile lodged in Martinez’s skull and testified
that the rest of the body was too burnt for him to be able to tell if Martinez
suffered another through-and-through gunshot wound. The medical examiner
testified that the gunshot to the head caused Martinez’s death.
By approximately 9:30 a.m., Mesa-Vasquez, Junior, and Senior had
been taken into custody. Pursuant to a search warrant, police searched the
men’s apartment. Police noticed cleaning supplies at the top of the stairs near
the apartment and a gas can under the stairs. Inside of the apartment, police
recovered four empty shell casings, one in the bedroom Junior and Senior
shared and the rest in the living room. Police officers found a projectile lodged
in the floor of the living room. They also recovered a live .25 caliber round from
the closet in Mesa-Vasquez’s bedroom.
Police officers also went to Ortega’s home. There, they found a .25 caliber
handgun buried in two plastic bags in Ortega’s yard. They also viewed her
4 Tahoe and found that the back, cargo area appeared to have recently been
cleaned.
Lab testing revealed Martinez’s blood on Mesa-Vasquez’s shirt, pants,
and shoes. None of Junior’s or Senior’s clothes were sent for DNA testing to
determine whether they too had Martinez’s blood on them. Mesa-Vasquez’s,
Junior’s, and Senior’s hands all tested positive for gunshot residue.
After the case was presented to the grand jury, Junior and Ortega were
both indicted on the charges of complicity to arson in the second degree,
complicity to tampering with physical evidence, and complicity to abuse of a
corpse. Prior to Mesa-Vasquez’s trial, both Junior and Ortega reached plea
agreements with the Commonwealth to resolve their charges. Junior entered an
Alford6 plea to complicity to tampering with physical evidence. Ortega pled
guilty to complicity to tampering with physical evidence and received a three-
year sentence. Mesa-Vasquez was indicted on murder, arson in the second
degree, tampering with physical evidence, and abuse of a corpse. He proceeded
to a trial by jury where he was found guilty of all charges. He was then
sentenced to life in prison.
Mesa-Vasquez appeals his conviction to this Court, asserting four claims
of error. First, he argues that the Commonwealth improperly shifted the
burden to the defense. Second, he argues that the trial court erred when it
refused to instruct the jury on tampering with physical evidence as a lesser
offense of arson in the second degree. Third, he argues that the trial court
6 North Carolina v. Alford, 400 U.S. 25 (1970).
5 erred in admitting evidence that Ortega was scared of him. Finally, he argues
that the trial court erred in denying his motion for a directed verdict on the
charge of murder. After a careful review, we affirm the judgment of the Pulaski
Circuit Court.
II. ANALYSIS
A. The Commonwealth did not improperly shift the burden to the defense.
Mesa-Vasquez first argues that his right to due process and a fair trial
was violated when the Commonwealth asked two of its witnesses whether the
defense had requested that any additional items be tested at the Kentucky
State Police crime lab and whether the lab would test items upon defense
request. He argues that these questions shifted the burden of proof to the
defense.
Detective Larry Patterson was the lead detective in the case. He testified
that the Kentucky State Police lab only allows law enforcement to submit ten
items at a time for DNA testing. He stated that he chose the ten items he did
because he thought they were the best items to help corroborate the
statements he had received from witnesses. The Commonwealth asked
Detective Patterson whether he received any requests for additional testing,
which he answered in the negative. The Commonwealth then asked if he had
received requests for additional testing from either the Commonwealth or the
defense in other cases, and Detective Patterson answered in the affirmative. No
objection was made to this testimony, and Mesa-Vasquez asks that we review
6 this portion of his argument under our palpable error standard found in Rule
of Criminal Procedure (“RCr”) 10.26.7
Taylor Hare, a serologist at the Kentucky State Police crime lab, testified
that she tested fluids found on Mesa-Vasquez’s clothing and shoes to
determine if the fluid was likely human blood and therefore suitable for DNA
testing. The Commonwealth asked Hare if she ever received requests from the
Commonwealth or the defense to do additional testing. Defense counsel
objected and argued to the trial court that this question shifted the burden of
proof to the defense. Because of the contemporaneous objection, this portion of
Mesa-Vasquez’s argument is preserved. The trial court overruled the objection,
citing primarily to Ordway v. Commonwealth, 391 S.W.3d 762 (Ky. 2013).
We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. Little v. Commonwealth, 272 S.W.3d 180, 187 (Ky. 2008). A
trial court abuses its discretion only where its decision is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Kentucky Revised Statute (“KRS”) 500.070 states that “[t]he
Commonwealth has the burden of proving every element of the case beyond a
reasonable doubt.” Further, this Court has been clear that because “the
presumption of innocence mandates that the burden of proof and production
7 “A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” RCr 10.26.
7 fall on the prosecution, any burden-shifting to a defendant in a criminal trial
would be unjust.” Butcher v. Commonwealth, 96 S.W.3d 3, 10 (Ky. 2002).
In Ordway, cited by the trial court, the Commonwealth’s Attorney, in his
closing argument, stated, “You see the defense has just as much access to the
Kentucky State Police crime laboratory as the prosecution. They can ask
anything they want to be examined by the Kentucky State Police.” 391 S.W.3d
at 796. Ordway argued that this statement by the Commonwealth was
improper and shifted the burden of proof to the defense. We, however, held that
the argument was proper, stating,
The defense is, in fact, entitled to inspect and test evidence, either through its own experts or by request to the State Police Lab for assistance where applicable. McGregor v. Hines, 995 S.W.2d 384, 387 (Ky. 1999) (“a defendant's right to test possible exculpatory evidence is as fundamental to the assurance of due process as is his right to test inculpatory evidence, if not more so.”). Nor did these arguments impermissibly shift the burden of proof from the Commonwealth to the defendant.
Id.
Mesa-Vasquez attempts to distinguish Ordway from the case before us
on two primary bases. First, he points out that Ordway put forth a self-defense
defense during trial. Self-defense is an affirmative defense that places some
burden of proof on the defendant. See KRS 500.070(3) (“The defendant has the
burden of proving an element of a case only if the statute which contains that
element provides that the defendant may prove such element in exculpation of
his conduct.”). Mesa-Vasquez, on the other hand, asserted an actual
innocence defense, which places absolutely no burden on the defendant.
8 This Court has recently dealt with a similar issue in Mulazim v.
Commonwealth, 600 S.W.3d 183 (Ky. 2020). In Mulazim, the defendants were
charged with robbery and tampering with physical evidence and put forth an
actual innocence defense. Id. at 187. During its closing argument, the
Commonwealth commented on “the defense’s ability to investigate by
contacting the robbery victims.” Id. at 193. Defense counsel objected, arguing
that the Commonwealth’s statement shifted the burden of proof from the
Commonwealth to the defense. Id. at 193-94. The trial court overruled the
defense objection. Id. at 194. We found no error in the trial court’s ruling,
concluding that the Commonwealth’s comment did not burden-shift, but
“merely suggested, correctly, that the defense is permitted to seek information
from victims and witnesses.” Id. We went on to say,
Clearly, the prosecutor did not state that defense investigators have the burden (or obligation) to talk to the victims and failed to do so here. The comments focused on by Appellants merely touched briefly on the defense's own ability to investigate, an important point given the defense's criticism of both the police investigation and the witnesses’ allegedly changing memories regarding the robbers.
The same can be said in this case. The Commonwealth’s questions to
Detective Patterson and Hare did not act to shift the burden of proof to the
defense. They merely pointed out that the defense had the ability to ask that
additional testing be completed by the state crime lab and yet chose not to do
so. The fact that Mesa-Vasquez put forth an actual innocence defense, as
9 opposed to a self-defense defense, is not sufficiently distinguishable from
Ordway to justify departure from Ordway’s sound legal analysis.
Mesa-Vasquez also attempts to distinguish his case from Ordway
because in his case, the questions came during the Commonwealth’s case-in-
chief, as opposed to during the Commonwealth’s closing argument as in
Ordway. We find this distinction unpersuasive as well. The fact that the
questions were asked during the Commonwealth’s case-in-chief would likely be
less prejudicial to the defense, as it provides the defense with an opportunity to
respond to the questions that it would not have if the argument was merely
made in closing argument.
For these reasons, we remain steadfast to our holding in Ordway that
questions and argument about the defense’s ability to have items tested at the
Kentucky State Police crime lab are proper and do not impermissibly shift the
burden from the Commonwealth to the defense. Accordingly, the trial court did
not err in admitting this evidence.
B. The trial court did not err when it refused to instruct the jury on tampering with physical evidence as a lesser offense of arson in the second degree.
Mesa-Vasquez next argues that the trial court erred in refusing to
instruct the jury on tampering with physical evidence as a lesser offense of
arson in the second degree. This argument was preserved by defense counsel’s
tendering of the requested instruction to the trial court. See RCr 9.54; Elery v.
Commonwealth, 368 S.W.3d 78, 89 (Ky. 2012). We review the trial court’s
10 refusal to give a specific jury instruction for an abuse of discretion. Sargent v.
Schaffer, 467 S.W.3d 198, 204 (Ky. 2015).
We review a trial court’s decision not to give the jury an instruction on a
lesser offense under two principles:
(1) it is the duty of the trial judge to prepare and give instructions on the whole law of the case . . . [including] instructions applicable to every state of the case deducible or supported to any extent by the testimony; and (2) although a 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, the trial court should instruct as to lesser-included offenses only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.
Holland v. Commonwealth, 114 S.W.3d 792, 802 (Ky. 2003) (internal citations
and quotation marks omitted). KRS 505.020(2)(a) allows a defendant to be
“convicted of an offense that is included in any offense with which he is
formally charged. An offense is so included when: (a) It is established by proof
of the same or less than all the facts required to establish the commission of
the offense charged.” This Court, in Hall v. Commonwealth, rejected a strict
same-elements test for determining whether a defendant is entitled to a lesser
offense instruction and instead adopted a fact-based approach. 337 S.W.3d
595, 607-08 (Ky. 2011).
Mesa-Vasquez argues that he was entitled to an instruction on tampering
with physical evidence as a lesser offense of arson in the second degree. He
argues that the elements of tampering with physical evidence are less than all
the elements of arson in the second degree. To further support his argument,
11 he points to testimony from Ortega that she had previously told members of the
defense team that Junior lit the fire, that Mesa-Vasquez vomited as Junior lit
the fire, and that Junior threw something out of her car window on the drive
back to the apartment, which Mesa-Vasquez posits were the keys to Martinez’s
car. He argues that if the jury believed Ortega’s testimony over Junior’s
testimony, “the jury could not give effect to [this belief] absent the lesser-
included instruction.”
In this case, we need not get to the question of whether tampering with
physical evidence is a proper lesser offense of arson in the second degree
because, under the facts as presented at trial, no reasonable juror could have a
reasonable doubt as to Mesa-Vasquez’s guilt of arson in the second degree and
yet believe beyond a reasonable doubt that he is guilty of tampering with
physical evidence. Under KRS 513.030(1)(a), “[a] person is guilty of arson in the
second degree when he starts a fire or causes an explosion with intent to
destroy or damage a building…[o]f another.” The definition of a “building”
includes an “automobile.” KRS 513.010. Conversely,
[a] person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he: (a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding.
KRS 524.100(1)(a).
The jury had two versions of events it could believe. The first came from
Junior’s testimony. If the jury believed this version, it would believe that Mesa-
Vasquez poured gasoline on Martinez’s body and car and then set them on fire. 12 Under this version of events, no reasonable juror could find Mesa-Vasquez not
guilty of arson, and yet guilty beyond a reasonable doubt of tampering with
physical evidence. The alternative version of events came from Ortega’s
statements to the defense investigator. If the jury believed this version, it would
believe that Junior set the car and body on fire while Mesa-Vasquez vomited.
Under that version of events, Mesa-Vasquez would not be guilty of either arson
or tampering with physical evidence for the destruction of the car and body.
It is clear after reviewing the record, that under the two versions of
events presented to the jury, no reasonable juror could have a reasonable
doubt as to Mesa-Vasquez’s guilt of arson in the second degree and yet believe
beyond a reasonable doubt that he is guilty of tampering with physical
evidence. Accordingly, the trial court did not err in refusing to instruct the jury
on tampering with physical evidence as a lesser offense of arson in the second
degree.
C. No reversible error occurred in the admission of evidence that Gloria Ortega was scared of Mesa-Vasquez.
Mesa-Vasquez next argues that the trial court erred in admitting
evidence that Gloria Ortega was afraid of him. Specifically, Mesa-Vasquez
argues that the Commonwealth failed to give proper notice of this “other bad
act” evidence under Kentucky Rule of Evidence (“KRE”) 404(c) and that it was
inadmissible under KRE 404(b).
Approximately four months before trial, Mesa-Vasquez filed a peremptory
motion to exclude all KRE 404(b) evidence, as the Commonwealth had not yet
provided notice of its intent to introduce any evidence under the rule. The 13 Commonwealth’s Attorney assured both defense counsel and the trial court
that if he decided to introduce any evidence under the rule, he would provide
the appropriate notice. No notice was ever filed by the Commonwealth.
During trial, the Commonwealth elicited testimony from Ortega that she
was afraid of Mesa-Vasquez. Because the specific questions asked, Ortega’s
answers, the objections raised, and the arguments made are vital to
appropriately analyzing this issue, we will describe these things in detail.
During the Commonwealth’s direct examination of Ortega, the
Commonwealth’s Attorney asked Ortega why she was not honest with the
police at the beginning of the investigation. The exchange went as follows:
Commonwealth’s Attorney (“CW”): Why, when the police first came, why were you not honest at the beginning?
Ortega: Out of fear
CW: Fear of what?
Ortega: Fear. I mean, I don’t know how to explain it to you. Just fear. I have never had any problems. This is my first time being involved in anything like this.
CW: Are you afraid of Mr. Mesa-Vasquez?
At this point, defense counsel objected, but her objection was not
acknowledged by anyone in the courtroom, including the judge. We can only
assume the objection was not heard, at least not by the trial court. The
testimony went on as follows:
Ortega: Yes.
CW: Why are you afraid?
Ortega: Because he is aggressive. Violent. 14 CW: Have you ever previously had to move because of him?
At this point, defense counsel objected again. The trial court stopped the
testimony and asked counsel for both sides to approach the bench. A bench
conference ensued where the trial court asked the Commonwealth to explain
the relevance of its last question. The bench conference focused on whether
evidence that Ortega had, at one point, moved into a domestic violence shelter
as a result of Mesa-Vasquez’s actions was admissible. The final exchange
between the trial court and the Commonwealth’s Attorney went as follows:
Trial Court (“TC”): She has already testified that she was afraid. I don’t see why it is relevant where she went.
CW: I believe the testimony will also reveal that after he was arrested, she visited him. Out of fear she continued to keep up good relations for fear there would be reprisal.
TC: You can ask about that. But I agree with you [defense counsel] regarding the prejudicial effect versus what probative value it has. I think you [Commonwealth] have gotten most of it in already, so I think we can avoid a potential issue on appeal by stopping it at this point. But you can ask her generally about being afraid, but I don’t want to elicit that she went to [a domestic violence shelter] …. Ask your next question and we will see if that draws an objection.
At no point during this exchange did defense counsel object to the admission of
evidence that Ortega was afraid of Mesa-Vasquez. After the bench conference,
the Commonwealth’s first question to Ortega was, “Based on your past with
Mr. Mesa-Vasquez, did you have concerns about keeping up good relations,
keeping him from getting angry?” She answered in the affirmative, again with
no objection by defense. She then acknowledged visiting him at the jail after he
15 was arrested. She stated she did so out of “humaneness” and so that she would
have something to tell his family in Mexico.
This Court has long held that
the appellant has the duty to make timely objections and if he wants to preserve his issues for review by this court the objections must be specific enough to indicate to the trial court and this court what it is he is objecting to.… Also, if an objection is made, the party making the objection must insist that the trial court rule on the objection.
Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971) (internal citations
omitted). In this case, the only contemporaneous objection made to the
evidence that Ortega was afraid of Mesa-Vasquez was not ruled upon by the
court, nor did defense counsel insist upon a ruling. As such, Mesa-Vasquez’s
argument on this issue is unpreserved, and any error will only merit reversal of
his conviction if it rises to the level of palpable error. See RCr 10.26.
We review a trial court's decision to admit prior bad acts evidence for
an abuse of discretion. Commonwealth v. King, 950 S.W.2d 807, 809 (Ky. 1997).
A court abuses its discretion if its decision “was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Clark v. Commonwealth, 223 S.W.3d
90, 95 (Ky. 2007).
KRE 404(b) provides that 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 be admissible “[i]f offered for some other purpose,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” KRE 404(b)(1). It may also be
admissible if it is “so inextricably intertwined with other evidence essential to 16 the case that separation of the two (2) could not be accomplished without
serious adverse effect on the offering party.” KRE 404(b)(2). KRE 404(b) is
exclusionary in nature. Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky.
1994).
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 for a purpose
other than criminal disposition? (2) Is the evidence of the other bad act
sufficiently probative of its commission by the accused to warrant its
introduction into evidence? (3) Is its probative value substantially outweighed
by its prejudicial effect? Purcell v. Commonwealth, 149 S.W.3d 382, 399-400
(Ky. 2004); Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997).
In this case, the Commonwealth argues that evidence of Ortega’s fear of
Mesa-Vasquez is relevant to explain why she assisted him on the day of the
murder and why she lied to the police during their initial investigation. In
Commonwealth v. Wilson, we acknowledged that a “witness's fear may well
stem from the [defendant]'s prior bad acts, implicating KRE 404(b), but . . .
impeachment is a purpose other than propensity to engage in misconduct
which can render collateral ‘bad acts’ evidence relevant.” 438 S.W.3d 345, 349
(Ky. 2014) (citing Trover v. Estate of Burton, 423 S.W.3d 165 (Ky. 2014)). We
noted that
the determination of witness credibility is the jury's responsibility. To that end, KRE 104(e) permits a party “to introduce before the jury evidence relevant to weight or credibility, including evidence of bias, interest, or prejudice.” This Court has held that because witness credibility is “always at issue ... relevant evidence which
17 affects credibility should not be excluded.” And, of course, our rules expressly allow a party to impeach the credibility of that party's own witness.
Id. (internal citations omitted). Finally, we held that “[f]ear can affect a
witness's testimony and, thus, if a witness has reason to fear someone about
whom the witness is testifying, evidence of that fear is admissible for
impeachment purposes.” Id. (citations omitted).
In this case, the Commonwealth did not offer evidence of Ortega’s fear of
Mesa-Vasquez for impeachment purposes, but instead did so, in part, to
anticipatorily rehabilitate her, as her statements prior to trial were more
favorable to Mesa-Vasquez than was her trial testimony. A similar issue was
raised in McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky. 2013). In McDaniel,
a witness’s identification at trial of the defendant as the person who shot him
was significantly more certain than was his identification just a few days after
the shooting. Id. at 650. The Commonwealth “attempted to anticipatorily
rehabilitate [the witness]'s credibility by eliciting testimony from him that the
uncertainty expressed during [the pretrial identification procedure] was rooted
in a fear of retaliation.” Id. In analyzing the admissibility of this evidence, we
noted that in Parker v. Commonwealth, 291 S.W.3d 647, 658 (Ky. 2009), we
held that “[o]rdinarily, a witness's statement that he fears retaliation for
testifying is improper.” Id. at 650-51. We then explained our Parker holding
further:
As previously mentioned, in Parker, this Court held that threat evidence is improper when it invites the jury to render a verdict based on the vengeful nature of the defendant rather than
18 the established arguments and facts of the case. Parker, 291 S.W.3d at 658. Essentially, the rule of Parker is that evidence of threats is not admissible to prove a violent or vengeful propensity. Parker 's holding tracks KRE 404(b)'s prohibition against evidence of other crimes when offered to “prove the character of a person in order to show action in conformity therewith.”
Id. at 651. We acknowledged that we had previously not “specifically
considered whether threat evidence may be admissible if offered for a purpose
other than proving a vengeful propensity,” but that “other courts have found
that it is admissible if relevant to explain a witness's inconsistent statements.”
Id. (citing United States v. Thadsamany, 305 Fed.Appx. 942, 944 (4th Cir.
2009); United States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996); United States
v. Qamar, 671 F.2d 732, 734–36 (2d Cir. 1982); Brown v. United States, 952
A.2d 942, 947 (D.C. 2008); State v. Mayhorn, 720 N.W.2d 776, 783 (Minn.
2006)). We then specifically held that “threat evidence may be admitted if it
serves to aid the jury in resolving a witness credibility issue,” and noted in a
footnote that “[t]his ruling comports with KRE 404(b)(1), which allows evidence
of other crimes ‘if offered for some other purpose’ other than to prove
propensity.” Id. Consistent with our holding in McDaniel, the evidence that
Ortega was afraid of Mesa-Vasquez was relevant to a purpose other than to
prove Mesa-Vasquez’s criminal disposition.
We next must determine whether the evidence of the other bad act was
sufficiently probative of its commission by the accused to warrant its
introduction into evidence. Parker, 952 S.W.2d at 214. In this case, Ortega
testified that she was afraid of Mesa-Vasquez because he was violent and
19 aggressive. Only limited evidence was offered to counter this opinion evidence
of Ortega. As such, the evidence of Ortega’s fear of Mesa-Vasquez was
sufficiently probative to warrant its admission into evidence.
Finally, the “central issue … is the balance of probativeness and
prejudice.” Id. The potential prejudice from this type of evidence may be great.
Id. However, in this case, the potential prejudice is lessened by the other
testimony provided by Ortega. Specifically, Ortega testified that she was fearful
after the incident, at least in part, because she had never been involved in
anything like this before. Also, she testified that she visited Mesa-Vasquez at
jail after this arrest out of humaneness, as opposed to doing so out of fear of
him. Further, the probative value was high because it impacted Ortega’s
credibility. The evidence helped to explain why she helped Mesa-Vasquez on
the day of the murder and why she initially was not cooperative with the police.
Accordingly, there was no abuse of discretion in admission of the evidence
under the three-prong test.
However, the Commonwealth’s Attorney failed to provide notice of his
intent to introduce this evidence under KRE 404(c), even after assuring the
trial court and defense counsel at a pretrial hearing that he would provide the
required notice under the rule if he decided to introduce any KRE 404(b)
evidence. Although defense counsel acknowledged that discovery provided by
the Commonwealth included a statement by Ortega that she lived in a domestic
violence shelter for a period of time, it is unclear whether Ortega’s fear of Mesa-
Vasquez was also included in discovery. Because a contemporaneous objection
20 was not made to the admission of this evidence at trial, arguments about
notice were not made. Even if the appropriate notice was not given, any error
related to the admission of this evidence does not rise to the level of palpable
error.
To determine if an error is palpable, “an appellate court must consider
whether on the whole case there is a substantial possibility that the result
would have been any different.” Commonwealth v. McIntosh, 646 S.W.2d 43, 45
(Ky. 1983). To be palpable, an error must be “easily perceptible, plain, obvious
and readily noticeable.” Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (citing
Black's Law Dictionary (6th ed. 1995)). A palpable error must be so grave that,
if uncorrected, it would seriously affect the fairness of the proceedings. Ernst v.
Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005). “It should be so egregious
that it jumps off the page ... and cries out for relief.” Chavies v. Commonwealth,
374 S.W.3d 313, 323 (Ky. 2012) (quoting Alford v. Commonwealth, 338 S.W.3d
240, 251 (Ky. 2011) (Cunningham, J., concurring)). Any error in the admission
of the evidence that Ortega was afraid of Mesa-Vasquez does not rise to the
level of palpable error. Given the strength of the other evidence against Mesa-
Vasquez, there is no substantial possibility that the result of the trial would
have been any different if the evidence had been excluded.
21 D. The trial court did not err in denying Mesa-Vasquez’s motion for a directed verdict on the charge of murder.
Finally, Mesa-Vasquez argues that the trial court erred in denying his
motion for a directed verdict on the charge of murder. This argument is
preserved by his motion for a directed verdict at the close of the evidence.
Our directed verdict standard has been firmly established in
Commonwealth v. Benham:
On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purposes of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
816 S.W.2d 186, 187 (Ky. 1991). In assuming that the evidence for the
Commonwealth is true, the Court does so “regardless of whether the evidence,
usually testimony, has been attacked or impeached.” Southworth v.
Commonwealth, 435 S.W.3d 32, 42 (Ky. 2014).
Mesa-Vasquez argues that the Commonwealth’s case was built on an
impermissible stacking of inferences. “No doubt, unreasonable inferences are
barred by our law. Additionally, inferences cannot be drawn from other
inferences drawn ad infinitum.” Southworth v. Commonwealth, 435 S.W.3d 32,
45 (Ky. 2014) (citing Briner v. General Motors Corp., 461 S.W.2d 99, 102 (Ky.
1970)). However, in this case, assuming the evidence for the Commonwealth is
22 true regardless of whether the evidence was impeached, the jury was not
required to draw any inferences to find Mesa-Vasquez guilty of murder. Junior
provided direct, eye-witness testimony that Mesa-Vasquez fired three gunshots,
two of which hit Martinez, one of which, according to the medical examiner,
was the cause of death. This testimony alone was sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that Mesa-Vasquez was
guilty of murder. Accordingly, the trial court did not err in denying Mesa-
Vasquez’s motion for a directed verdict.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Pulaski Circuit
Court in this matter.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Julia Karol Pearson Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Robert Lee Baldridge Assistant Attorney General