IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 24, 2020 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0637-MR
JOSHUA TATE DAVENPORT APPELLANT
ON APPEAL FROM LAUREL CIRCUIT COURT V. HONORABLE GREGORY ALLEN LAY, JUDGE NO. 18-CR-00121
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Laurel County jury convicted Appellant, Joshua Tate Davenport, of the
murder of his wife, Stephanie Davenport, and tampering with physical
evidence. The jury recommended sentences of thirty-five years for murder and
five years for tampering with physical evidence, to be served consecutively. In
accordance with the jury’s recommendation, Appellant was sentenced to forty
years’ imprisonment and now appeals to this Court as a matter of right. Ky.
Const. §110(2)(b).
On appeal, Appellant claims the trial court erred by: (1) admitting a lab
report, testimony by a lab technician, and certain portions of a recorded police
interview; (2) failing to admit two photographs of Stephanie Davenport; and (3)
failing to grant a mistrial.
For the following reasons, we affirm.
1 I. BACKGROUND
Stephanie and Appellant married in September 2017 and lived in Corbin
in a home owned by Appellant’s parents. From December 17, 2017, until
March 1, 2018, Appellant was incarcerated for drug crimes. Six days after
Appellant’s release, Stephanie sent a message to her boss, telling him she
would not be at work, as Appellant had bruised her face. A few hours after
that message, Stephanie was shot twice at close range. One of the bullets
entered the back of her head on the right side and exited the front of her head
on the left. The other entered her left abdomen, went through her heart and
diaphragm, and exited the left side of her back. Either gunshot would have
caused Stephanie’s death.
Appellant claimed he found Stephanie after hearing four gunshots and
walking outside to determine where they had come from. Appellant then asked
his mother if Stephanie had shot herself and asked her to call 911. Police
found Stephanie facedown with a .38 caliber revolver partially underneath her
body. Later, a neighbor also reported hearing four gunshots—a number which
corresponded with the four spent shell casings found in the cylinder of the
revolver.
Police were skeptical of Appellant’s claims that Stephanie had died by
suicide since she had two gunshot wounds. Police also questioned Appellant’s
story due to the presence of footprints on the right hip of Stephanie’s pants.
Appellant and Appellant’s brother and son all told police that the day
before Stephanie died, she was found kneeling in the backyard holding the
2 revolver in her hand. In his brief, Appellant refers to this incident as an
apparent “suicide rehearsal.” He also claims Stephanie had tried to overdose
on pills. According to Appellant, Stephanie asked him for the revolver on the
morning of her death, but he had hidden it from her. The authorities were not
notified of any of these events.
In the hours following Stephanie’s death, police conducted three
interviews with Appellant. During these interviews, officers suspected
Appellant was under the influence of drugs, as he was sweating profusely,
picked at his hands often, and seemed both agitated and unfocused. Appellant
submitted to a urine and blood test, which eventually revealed both
methamphetamine and amphetamine in his system. Within a few hours, police
charged Appellant in connection with Stephanie’s death. On May 3, 2018,
Appellant was indicted for murder and tampering with physical evidence.
Lab analysis and findings were critical for the Commonwealth in proving
Appellant killed Stephanie. Chief among the critical lab results were gunshot
residue tests, which determined that lifts taken from Appellant’s hands were
consistent with gunshot residue. Furthermore, lab testing revealed
presumptive blood stains on Appellant’s pants, shoes, and jacket. Lab tests
taken during Stephanie’s autopsy showed traces of methamphetamine in her
urine, but her blood tests showed no evidence of any drugs. Stephanie’s blood
tests were in contradiction of Appellant’s claim that she had attempted to
overdose on pills the night before her death.
3 Appellant’s blood sample was examined by lab examiner Jason Berry and
revealed the presence of methamphetamine and amphetamine. He was unable
to opine if Appellant was actually under the influence of methamphetamine
either at the time of the crime or when the sample was taken; however, Deputy
Medical Examiner Dr. Darius Arabadjief testified the presence of drugs in the
blood normally indicates that a person is under the influence of those drugs.
Berry’s report analyzing Appellant’s blood was completed in May 2018.
However, the prosecutor did not receive the lab results until August 30, 2019—
the Friday before Labor Day weekend and four days before trial was scheduled
to begin; the results were turned over to defense counsel that same day.
Appellant filed a motion in limine to exclude the lab report, testimony of lab
analyst Berry, and statements Appellant made to police concerning the last
time he used methamphetamine. Among his main arguments to the trial
court, Appellant asserted a lack of pretrial notice and that the evidence violated
KRE 404(b)(1) as prior bad acts.
The trial court found the evidence fell within KRE 404(b)(1), and that
Appellant was therefore entitled to KRE 404(c) notice. After finding the
Commonwealth had provided timely notice, the trial court considered
Appellant’s argument as to relevancy and withheld final ruling until the parties
developed the evidence during trial. After two detectives and the deputy
medical examiner testified, the trial court allowed the admission of the
evidence.
4 During trial, Appellant sought to introduce two photographs of Stephanie
holding a handgun, which the Commonwealth agreed was the same gun
involved in her death. The Commonwealth objected to the introduction of the
two pictures, arguing they lacked relevance. The trial court sustained the
Commonwealth’s objection and excluded the photographs.
When the jury retired to deliberate after closing arguments, Stephanie’s
autopsy report was left on the podium, so the jury did not have it during
deliberations. Appellant moved for a mistrial on these grounds, but the trial
court overruled his motion. In ruling on the mistrial motion, the trial court
noted that witnesses had testified to the pertinent parts of the report and the
jury could have examined the report if it had asked to do so; therefore, the trial
court found there was no manifest injustice requiring a mistrial.
The jury found Appellant guilty of Stephanie’s murder and of tampering
with physical evidence. The judge sentenced Appellant to forty years’
imprisonment in accordance with the jury’s recommendation. Appellant now
appeals to this Court.
II. ANALYSIS
A. Lab report, Lab Analyst Berry’s testimony, and forty-one seconds of recorded police interview
Appellant asserts the trial court erred in admitting a lab report by state
crime lab analyst Jason Berry, Berry’s testimony about his findings contained
in that report, and forty-one seconds of Appellant’s recorded interview with
police (in which an officer asked him about the last time he used drugs).
Appellant alleges four separate grounds relating to this evidence. Specifically, 5 he claims the trial court erred by: 1) finding the pretrial notice of the report and
testimony of Berry was timely, 2) the manner in which it applied KRE 404(b)(1)
to the evidence, 3) finding the evidence was relevant and admissible, and 4)
determining the probative value of the evidence outweighed its prejudicial
effect.
“Rulings upon admissibility of evidence are within the discretion of the
trial judge; such rulings should not be reversed on appeal in the absence of a
clear abuse of discretion.” Simpson v. Commonwealth, 889 S.W.2d 781, 783
(Ky. 1994). “The test for abuse of discretion is whether 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).
Prior to trial, Appellant filed a motion in limine and specifically sought to
exclude evidence of his “drug content of blood (provided to undersigned counsel
on Friday, August 30, 2019, at approximately 3:00 p.m.) and a portion of
Defendant’s second interview (16:42-17:23).” Appellant claimed the
Commonwealth’s pretrial KRE 404(c) notice of intent to introduce 404(b)
evidence was unreasonable. Appellant also argued in the alternative that if the
trial court determined the evidence was not 404(b) evidence or that notice was
proper, then the evidence was irrelevant, and its prejudicial effect outweighed
its probative value.
In conducting its 404(b) analysis, the trial court first determined the
evidence of methamphetamine in Appellant’s blood was evidence of a prior
crime which required the Commonwealth give Appellant notice of its intention
6 to offer it in evidence. Then, relying on Dant v. Commonwealth, 258 S.W.3d 12,
21 (Ky. 2008), the trial court found the Commonwealth gave sufficient notice
when it filed notice and provided the lab report to defense counsel four days
before trial. The trial court withheld its final ruling concerning the admission
of the lab report and testimony about drugs in Appellant’s system until further
evidence was developed at trial. The trial court indicated that if the testimony
reflected on Appellant’s state of mind, it was relevant as to his ability to recall
facts and the reliability of those facts Appellant related to the detectives during
the interviews.
Appellant was interviewed three times by police within hours after the
shooting. One of the officers conducting the interviews was Laurel County
Sheriff’s Office Detective Sergeant Chris Edwards. Edwards’s law enforcement
background included over thirteen years with the Drug Enforcement
Administration task force. Through that work, Edwards developed
considerable experience and familiarity with persons under the influence of
drugs. In laying a foundation for admission of the statements concerning
Appellant’s methamphetamine use, the Commonwealth asked Edwards to
describe his observations of Appellant during the interviews. Edwards
described that Appellant was sweating profusely, visibly agitated, repeatedly
picking at his hands, and that Appellant’s attention drifted in and out of focus.
When the Commonwealth asked Edwards what he deduced from Appellant’s
actions, Edwards replied it was his opinion that Appellant was under the
influence of drugs while giving his statements.
7 After hearing the testimony of Edwards, Bryan Lawson (another Laurel
County Sheriff’s Office detective who sat in on the interviews), and the Deputy
Medical Examiner, Dr. Darius Arabadjief, the trial court ruled the lab report,
Berry’s testimony regarding the report, and the forty-one seconds of Appellant’s
interview in question were admissible. Dr. Arabadjief had testified about the
difference between drugs found in urine samples and drugs found in blood
samples. According to Dr. Arabadjief, the presence of drugs in the blood meant
drug use currently affected the person, while presence in the urine meant past
usage with no current effect.
Dr. Arabadjief opined Stephanie was not under the influence of
methamphetamine when she died because the meth was only in her urine.
Appellant had methamphetamine in his blood. Applying that explanation to
the lab report showing methamphetamine and amphetamines in Appellant’s
blood, the trial court ruled the items of evidence in question were relevant and
admissible.
While we will address each of Appellant’s arguments individually below,
we pause first to note that each of these alleged errors would be subject to
harmless error analysis. Even if we were to hold the trial court erred, any such
error would be harmless. “One of the foremost tests in determining whether an
error is prejudicial is consideration of whether upon the whole case there is a
substantial possibility that the result would have been any different.” Stiles v.
Commonwealth, 570 S.W.2d 645, 647 (Ky. App. 1978) (internal citations
omitted).
8 The overwhelming amount of other evidence in this case—including lab
results suggesting the presence of gunshot residue on Appellant’s hands,
stains which were presumptive for blood on Appellant’s clothing, the visible
foot print on Stephanie’s pants, the fact that Stephanie sustained two
independently fatal gunshot wounds (one in back of her head on the right side
and one which entered her abdomen on the left side and went through her
heart), the deputy medical examiner’s conclusion that Stephanie’s wounds
were not consistent with wounds of a person who shot herself twice, the
absence of drugs in Stephanie’s system that would have indicated an effort to
overdose the previous night (as claimed by Appellant), and the myriad of other
evidence contradicting Appellant’s version of events— far outweighed any effect
the trial court’s evidentiary rulings had on the outcome of Appellant’s trial.
We conclude there is no substantial possibility the result would have
been different in this case even if we were to assume the trial court erred. As
noted, however, we will address each of Appellant’s arguments in turn.
1. Timeliness
Appellant first claims the Commonwealth’s notice, provided on the Friday
before a holiday weekend with the trial set to begin on Tuesday, was untimely.
Relying on Dant, 258 S.W.3d 12, the trial court found the notice was sufficient.
After review, we agree with the trial court’s determination and hold Dant was
applicable and determinative.
The factual circumstances in Dant are remarkably similar to those in this
case. In Dant, notice was provided by “the Commonwealth on the Friday before
9 a holiday weekend, with the trial beginning on Tuesday.” Id. at 21. We
reiterated “‘[t]he intent of KRE 404(c) is to provide the accused with an
opportunity to challenge the admissibility of this evidence through a motion in
limine and to deal with the reliability and prejudice problems at trial.’” Id. at
21-22 (quoting Bowling v. Commonwealth, 942 S.W.2d 293, 300 (Ky. 1997)
(quoting Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.25 (3rd
ed. 1993)).
Here, Appellant’s counsel was able to file a motion in limine challenging
the evidence. In response to that motion, the trial court conducted a hearing
and determined the evidence fell within KRE 404(b) and required prior notice.
The trial court then found the prior notice provided was sufficient but withheld
final ruling on admissibility until after hearing other contextual evidence. We
stated in Dant, “[s]ince Dant was given actual notice of the Commonwealth’s
intent to introduce KRE 404(b) evidence in time to adequately challenge its
admissibility, we conclude that he did not suffer any prejudice and the trial
court did not err in finding that the notice requirement of KRE 404(c) was
satisfied.” Id. at 22. The same is true herein.
As such, we agree with the trial court’s determination that the
Commonwealth provided timely notice to Appellant.
2. KRE 404(b)
Appellant next claims the trial court erred when it allowed the
Commonwealth to admit the lab report, Berry’s testimony, and forty-one
seconds of recorded interview into evidence pursuant to KRE 404(b). From the
10 outset, we acknowledge that Appellant indicates in a footnote of his brief that
counsel could not hear what determination the trial court made with respect to
the 404(b)(1) analysis. Counsel asserts “[t]he audio was not clear or loud
enough.”
After review, we agree it is a bit difficult to hear, but we disagree with
counsel’s assertion the trial court failed to make a finding. The trial court
expressly disagreed with the Commonwealth and found the evidence to fall
within 404(b) as it was evidence of other crimes, wrongs, or acts. The court
went on to note the available exceptions for the evidence to come in, and then
moved to analyze notice and relevance.
Although the audio record is not as clear as it could have been about
what actual findings the trial court made, what is clear is that the trial court
found the evidence was within 404(b), but was not being offered to prove
Appellant had acted in conformity with previously displayed bad character.
Further, the trial court’s later discernable actions and language clearly indicate
the trial court felt the evidence went to Appellant’s state of mind at the time of
his statements to officers.
The Commonwealth argues the record supports its claim that the
evidence went to intent or motive as confirmed by the prosecution’s closing
argument, which argued Appellant’s state of mind was influenced by
methamphetamine and was the reason for his claiming Stephanie’s death was
a suicide.
11 We hold the record of the trial court’s actions, although not memorialized
by an entirely clear audio recording, made clear the 404(b) issue was resolved.
It can be inferred that by moving onto the issue of relevancy, the trial court had
concluded the issue was about Appellant’s mental state—his intent. In a
slightly different context, we said: “[w]e also do not require trial courts to make
detailed written findings to support the many evidentiary rulings they must
make in the course of a trial.” Cox v. Commonwealth, 553 S.W.3d 808, 816
(Ky. 2018). In this circumstance, with a jury waiting and a multi-day trial set
to begin, the trial court sufficiently ruled and moved on to an issue that
required further testimony to resolve. Neither the Commonwealth nor
Appellant objected to or sought clarification of the trial court’s determination
concerning KRE 404(b), and we find no error in the trial court’s conclusion or
actions.
3. Relevance
Appellant next claims neither lab analyst Jason Berry’s testimony and
report nor a forty-one second clip of Appellant’s police interview were relevant.
Appellant alternatively argued to the trial court that if the evidence was
admissible despite his KRE 404(b) objection, then it should not be deemed
relevant. The crux of Appellant’s claim focuses on that portion of Berry’s
testimony in which Berry stated he was unable to determine from his lab
analysis exactly when Appellant was acting under the influence of the drugs
and when Appellant last ingested methamphetamine.
12 If the only evidence the Commonwealth offered was the report and
Berry’s testimony, it may be more difficult for us to determine that it was
relevant. However, Berry’s lab analysis, report, and testimony must be viewed
in the context of the other evidence. “To show that evidence is relevant, only a
slight increase in probability must be shown.” Blair v. Commonwealth, 144
S.W.3d 801, 808 (Ky. 2004).
Within hours of Stephanie’s death, Appellant was interviewed at the
Laurel County Sheriff’s Department by Detectives Sergeant Edwards and Bryan
Lawson and a blood sample was taken. When asked about a time frame for
methamphetamine to remain in Appellant’s blood, Berry responded
methamphetamine had a half-life in the blood stream of somewhere between 5
and 30 hours, a range that could include both the time Stephanie was shot
and the police interviews.
As noted above, Edwards testified about his observations of Appellant
during the interviews. The recordings also reveal Appellant’s lack of focus,
which resulted in Edwards whistling and slapping the desk to bring Appellant’s
attention back to the interviews. Edwards did not testify definitively that
Appellant was intoxicated—just that he thought Appellant was under the
influence due to his actions.
Lab analyst Berry’s inability to state the level of influence the drugs had
on Appellant, including whether he was intoxicated at the time of Stephanie’s
death or the interviews, does not make the evidence irrelevant. The trial court
relied on Burton v. Commonwealth, 300 S.W.3d 126 (Ky. 2009), in finding that
13 evidence of drugs in Appellant’s system was relevant to a determination of his
mental state at the time he gave interviews with police.
Additionally, where a significant question for the jury is whether a person
died by suicide or homicide, what the Appellant had to say close to the event
and his state of mind when he said it were important for the jury’s
consideration. Appellant’s version of events did not line up with the other
evidence gathered in the investigation. Evidence that Appellant was under the
influence of methamphetamine could explain—at least in part—the
inconsistences found in Appellant’s version of the events.
As Appellant points out, when Berry was asked about possible effects, he
could not say if Appellant was intoxicated or when he last consumed drugs.
Berry testified those types of conclusions depended on information he did not
have—including how much of the drug was taken, the drug’s potency, and how
fast Appellant metabolized the drugs in his system. The questions posed to
Berry exceeded what this type of lab testing can reveal.
The answers sought by Appellant’s questions were better addressed to
the other witnesses who testified, such as Edwards, who described Appellant’s
condition and unusual behaviors during the interviews and then concluded he
was under the influence of drugs. Dr. Arabadjief also spoke to this evidence,
clarifying that drugs found in the blood indicate a current impact on a person.
As to the specific question of when Appellant last used drugs, that question
was best answered by Appellant in his recorded interview.
14 Merely because the questions posed to Berry were best answered by
other witnesses or other evidence does not render the lab report and Berry’s
testimony irrelevant. When viewed in conjunction with other evidence, as the
trial court did, this evidence offered more than the slight probability required
for a relevancy determination. As such, the trial court correctly determined the
lab report, Berry’s testimony, and the forty-one seconds of questioning in the
recorded interview were relevant.
4. Probative value and prejudicial effect
Appellant finally asserts that the probative value of the lab report, Berry’s
testimony, and the forty-one seconds of questioning by police about the last
time he used drugs was exceeded by its undue prejudice. Appellant proclaims
that once the jury found out he had methamphetamine in his system, the
verdict was a foregone conclusion because the use of drugs carries a stigma
that labelled him a “Meth Head.” Further, Appellant claims that since the
evidence failed to show he was impaired at the time of the occurrence, it merely
served to create an inference he was more likely to commit a murder and
therefore painted him in a bad light.
First, we note “[i]t is within the sound discretion of the trial judge to
determine whether the probative value of evidence is outweighed by its possible
prejudicial effect and to admit or exclude it accordingly.” Rake v.
Commonwealth, 450 S.W.2d 527, 528 (Ky. 1970). Furthermore, “[a] ruling
based on a proper balancing of prejudice against probative value will not be
15 disturbed unless it is determined that a trial court has abused its discretion.”
Bell v. Commonwealth, 875 S.W.2d 882, 890 (Ky. 1994).
“This deference to the trial court’s discretion arises from our recognition
that the trial court has a ‘superior view’ of the evidence and is better situated to
assess its nuances.” Jackson v. Commonwealth, 481 S.W.3d 794, 797 (Ky.
2016) (quoting Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)). As such,
“[t]he test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 945.
Here, the trial court relied on Burton, 300 S.W.3d at 133. Appellant had
been indicted for murder and at the point the evidence was offered, it remained
to be determined if the trial court would find the evidence supported jury
instructions containing wanton, intentional, or reckless mental states. “One
way to prove wantonness is to show that the defendant in a vehicle-homicide
[,or injury,] case was driving while intoxicated.” Id. As wantonness was an
issue relating to what mental state would potentially be included in the court’s
jury instructions, assuming a directed verdict was not granted, evidence
concerning Appellant’s mental state was relevant. The trial court did not act
unreasonably or arbitrarily in finding the evidence in question was relevant.
Since we already held the trial court correctly found the evidence was
relevant, the question becomes was that relevance overcome by undue
prejudice. Our analysis begins with a recognition that all evidence offered by
16 the Commonwealth against a defendant carries with it some degree of
prejudice, so our focus is on whether the prejudice was “undue.”
In evaluating what is “undue” prejudice we recently quoted Robert G.
Lawson, The Kentucky Evidence Law Handbook, § 2.10[4][b] (4th ed. 2003)
(internal citations omitted):
What is contemplated as “unfairly” or “unduly” prejudicial is evidence that is harmful beyond its natural probative force: “Evidence is unfairly prejudicial only if . . . it ‘appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish,’ or otherwise ‘may cause a jury to base its decision on something other than the established propositions in the case.’” McLemore v. Commonwealth, 590 S.W.3d 229, 234 (Ky. 2019).
Does the word “methamphetamine” provoke the “instinct to punish” just
by its mention? Sadly, methamphetamine and the consequences of its use are
not unfamiliar to Kentucky citizens. However, the use and consequences of
other illegal drugs such as fentanyl, heroin, and cocaine are likewise not
unfamiliar to potential Kentucky jurors. Unfortunately, drugs such as these
are often evidence in criminal cases and cannot be routinely excluded in cases
simply because jurors may be aware of them.
Rather than excluding evidence of high profile drugs because of their
notoriety to jurors, we recognize that those jurors who have strong feelings and
life or family experiences involving drugs like methamphetamine may not be
suitable to sit as a juror on a given case. It would be rare indeed to find a
family that has not been touched by the drug epidemic in Kentucky.
Appellant’s argument assumes that evidence of his drug use would predispose
the jury to convict. However, the opposite could also hold true: the juror’s
17 experiences trying to help family or friends may engender sympathy for
someone in the clutches of drugs. Experience gained over time has made clear
that voir dire is the best method to identify those potential biases and deal with
issues.
Peremptory and for-cause strikes are available to assist counsel if juror
bias would affect a given juror’s ability to fairly sit on a case. A good example
of this application can be found in Appellant’s voir dire on another sensitive
topic in this case. In response to counsel’s questions about suicide, several
jurors asked to approach the bench and were questioned individually. After
questioning, three jurors were excused for cause based on their answers to
questions on this topic. However, in contrast, no questions about
methamphetamine and possible juror life experiences surrounding that drug
were asked.
Further, if the entire panel had been too affected by a specific drug’s
abuse in a community, such as Appellant claims is the issue with
methamphetamine, and an unbiased jury cannot be found, our rules provide
the trial court with options to obtain more jurors or to move the case to a
different locale for trial. Here, the record reveals no requests for more jurors or
for a change of venue in this case.
Although the trial court reserved ruling on the admissibility of the
methamphetamine evidence until it heard witness testimony, the jury’s
reaction to methamphetamine could have been broached during voir dire.
Counsel could reasonably anticipate the jury was going to hear testimony
18 about methamphetamine found in Stephanie’s urine because of the deputy
medical examiner’s autopsy report. Counsel for either side, or both sides,
would undoubtedly ask about that finding. Methamphetamine was a fact in
the case regardless of the trial court’s ultimate finding concerning the motion
in limine.
If the trial court excluded the evidence objected to in the motion in
limine, then Appellant would not have been harmed by asking about
methamphetamine, because it also applied to Stephanie. However, if the trial
court allowed the evidence, juror bias could have been exposed by appropriate
questioning. Dealing with the issue of potential juror prejudice during voir dire
is a better way to handle difficult issues rather than imposing a blanket rule
excluding relevant, albeit potentially emotionally charged, evidence.
After review of the record, we conclude the trial court did not abuse its
discretion in admitting the evidence of the lab report, lab analyst Berry’s
testimony, and the forty-one seconds of recorded interview. The prejudicial
effect of the evidence was not so undue as to outweigh its probative value.
B. Photographs of Stephanie
Appellant next argues the trial court erred in denying admission of two
sexually suggestive “boudoir photographs” of Stephanie. The two photographs
display Stephanie in a revealing, black, lowcut top, wearing heavy makeup, and
holding a revolver (which all parties agree is the same gun used in Stephanie’s
death).
19 The Commonwealth objected to the photographs based on relevancy and
noted there had been no testimony about when the pictures were taken.
Appellant argued the “very dark and disturbing” photos would help lead the
jury to conclude Stephanie died by suicide.
In his brief, Appellant’s counsel clearly mischaracterizes the photographs
to this Court. Counsel claims they show Stephanie “with a handgun held in
her right hand up to her head and pointed at the same position as the entry
wound discovered by law enforcement officers on her body.” That assertion is
glaringly inaccurate. Counsel even concedes his blatant mischaracterization in
his reply brief, but claims it was his “understanding and good faith belief at the
time.” Nonetheless, counsel maintains his argument that the trial court
abused its discretion in denying admission of the photographs.
Initially, the trial court found it was not unusual for people to have
pictures taken with their guns and noted the suggestive nature of the
photographs were not indicative of suicide. The trial court then sustained the
Commonwealth’s objection at that time but left the door open for Appellant to
renew his request for admission if other evidence came to light. The trial court
found the prejudicial effect of the photographs greatly outweighed their
probative value, and the pictures could potentially confuse the issues and
mislead the jury.
A defendant has a right to present a defense, which includes
photographs; however, that right is not without limits nor outside the Rules of
20 Evidence. In a prior case where we sustained the trial court’s exclusion of both
gruesome and family photographs offered by the defense, we said:
Appellant asserts that the evidence was admissible because it was probative of his mental state at the time of the crimes. No doubt, Appellant has a constitutional right to a fair opportunity to present a defense. Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Beaty v. Commonwealth, Ky., 125 S.W.3d 196, 206-07 (2003). The exclusion of evidence violates that constitutional right when it “significantly undermine[s] fundamental elements of the defendant's defense.” United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 1267-68, 140 L.Ed.2d 413 (1998).
Hughes v. Commonwealth, No. 2002-SC-1081-MR, 2004 WL 2624053, at *17-
18 (Ky. Nov. 18, 2004).
The trial court’s exclusion of the two photographs did not undermine
fundamental elements of Appellant’s defense. We conclude, as the trial court
did, that the photographs did not contribute anything to answering the
question of whether Stephanie died by suicide. Other evidence admitted in this
case, including a letter written by Stephanie, went directly to the question of
whether she took her own life.
Appellate review of evidentiary rulings on admission of evidence, such as
excluding the photographs in this case, is conducted under an abuse of
discretion standard, and “[t]he test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” English, 993 S.W.2d at 945.
Here, the trial court found the photographs lacked relevancy. KRE 401
defines relevant evidence as “having any tendency to make the existence of any
21 fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Appellant argues the
issue to be determined was whether Stephanie’s death was suicide or homicide,
and that the jury could look at the photographs and conclude Stephanie died
by suicide. However, Appellant offers no further support for that contention
once he admitted the pictures do not, in fact, show Stephanie pointing the gun
at her head.
Appellant’s mere description of the photographs as “very dark and
disturbing” is insufficient absent additional information or testimony to
connect it to the question of Stephanie’s claimed suicide. The trial court left
open the door for additional evidence, but none was presented; therefore, the
trial court did not abuse its discretion in determining the photographs were not
relevant at the time they were offered.
In the photographs, there is no connection to the backyard where
Stephanie died, and there was no indication that Stephanie’s death occurred
during some type of fantasy enactment or roleplay. Photos of Stephanie in a
suggestive and revealing outfit do not shed light on her death, while wearing a
t-shirt and jeans. Finally, the photos are not dated, so the possibility exists
they were taken before she met and married Appellant, which was only six
months prior to her death. Last, proximity of the photographs to Stephanie’s
death, or any suicidal behavior, was never established.
The trial court further found the photographs had potential to mislead
the jury and confuse the issues. In comparison, we point to Stephanie’s letter
22 to Appellant describing her struggle with depression. The letter was admitted
and clearly relevant to helping the jury answer the question of whether
Stephanie’s death was homicide or suicide. Any probative value of the two
photographs was greatly exceeded by their prejudicial effect.
The trial court did not abuse its discretion in disallowing Appellant to
admit these photographs into evidence.
C. Denial of Mistrial Motion
Last, Appellant asserts the trial court erred in failing to grant a mistrial
when it was discovered that Stephanie’s autopsy report had been left in the
courtroom and not included with the other trial exhibits provided to the jury
during deliberations. The autopsy report included deputy medical examiner
Dr. Arabadjief’s cause and manner of death findings, a wound location drawing
he prepared as part of the autopsy, and Stephanie’s toxicology lab results.
Following guilt/innocence deliberations, the autopsy report was found on a
podium in the courtroom and Appellant moved for a mistrial.
After considering Appellant’s motion and the Commonwealth’s response,
the trial court noted the jury had heard all pertinent information contained in
the report and had not asked to see the report during deliberations. Finding
no manifest necessity had occurred, the trial court overruled the motion.
Appellate review of a trial court’s decision concerning a mistrial is
generally one of deference.
It is well established that the decision to grant a mistrial is within the trial court’s discretion, and such a ruling will not be disturbed absent a showing of an abuse of that discretion. Moreover, a
23 mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a manifest necessity for such an action. The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.
Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (internal quotations
and citations omitted) (emphasis added).
“[A] finding of manifest necessity is a matter left to the sound discretion
of the trial court.” Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000).
Further, “[a]lthough a trial court is vested with discretion in granting a mistrial,
the power to grant a mistrial ought to be used sparingly and only with the
utmost caution, under urgent circumstances, and for very plain and obvious
causes.” Id. at 685.
Appellant claims jury deliberations were impeded when the autopsy
report did not accompany the jury. According to Appellant, the jury not having
the report meant Stephanie’s lab report showing methamphetamine in her
urine was not available for the jury’s review, and, therefore, the jury was less
likely to infer that the location of a bruise on Stephanie’s face was possibly
caused by falling after she was shot instead of from Appellant assaulting her.
Appellant asserts a real and tangible prejudice resulting in a manifest necessity
for a mistrial occurred, and there was no other remedy for the report being left
on the podium during deliberations.
A review of Dr. Arabadjief’s testimony supports the trial court’s
determination that the pertinent evidence contained in the report had been
presented at trial. Addressing Appellant’s specific concerns, the record reveals 24 Dr. Arabadjief testified about the methamphetamine in Stephanie’s urine and
opined she was not under the influence at the time of her death, but she had
used meth at some point. During cross examination, Appellant elicited from
Dr. Arabadjief that the bruise on Stephanie’s forehead was consistent with a
forward-facing fall from a standing position. In closing argument, Appellant
reminded the jury about the methamphetamine present in Stephanie’s urine
and about the fall being a possible source for the facial bruise.
The Commonwealth asserts any error concerning the report remaining in
the courtroom was harmless. Defining harmless error, RCr 9.24, reads in
pertinent part:
no error or defect . . . in anything done or omitted by the court or by any of the parties, is ground for . . . disturbing a judgment . . . unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties. In this case, the two grounds raised by Appellant were subjects of
Dr. Arabadjef’s testimony before the jury; and as the trial court noted, the
jury did not ask to see the report while deliberating. We conclude that any
error in leaving the report on the podium during deliberations was
harmless.
Furthermore, there is not a plain and obvious cause for a mistrial, and
as such, any error resulting from leaving the autopsy report in the courtroom
did not create a manifest necessity for a mistrial. We hold the trial court did
not abuse its discretion when denying Appellant’s motion for a mistrial.
25 III. CONCLUSION
For the foregoing reasons, we affirm Appellant’s convictions and
corresponding sentences.
All sitting. All concur.
COUNSEL FOR APPELLANT:
John A. Combs Combs Law, PLLC
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky
Perry Thomas Ryan Assistant Attorney General