Justin Denihan v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: February 23, 2022
• Docket: 2020 SC 0521
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 24, 2022 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2020-SC-0521-MR

JUSTIN DENIHAN APPELLANT

ON APPEAL FROM WARREN CIRCUIT COURT V. HONORABLE JOHN GRISE, JUDGE NO. 17-CR-01075

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Justin Denihan appeals as a matter of right1 from the Warren Circuit

Court judgment sentencing him to life imprisonment following his guilty plea to

murder, abuse of a corpse, and tampering with physical evidence. On appeal,

Denihan argues that the tote in which he stuffed the victim’s body was

improperly displayed to the jury during the sentencing phase of trial, in

violation of KRE2 403, and unduly swayed the jury to recommend the

maximum sentence on all charges. We affirm the trial court’s judgment.

1 Ky. Const. § 110(2)(b). 2 Kentucky Rules of Evidence. I. Facts and Procedural Background

The facts of this case are largely undisputed and not at issue on appeal.

Denihan has a history of substance abuse and often used drugs with the

victim, Kelly Hackett, a woman with whom he lived and had an ongoing sexual

relationship. The day before Denihan murdered her, he tried to kill himself.

Following his unsuccessful suicide, Denihan was at Hackett’s home watching a

movie with her; they started having sex, then he strangled her, cut into her

chest area with a knife to carve an “L” shape, bound her feet with an extension

cord, shoved her body inside a plastic storage tote and taped the lid shut with

duct tape. He left the tote in a room in Hackett’s home. Denihan claims he

does not remember the details of the entire encounter, since he was high on

drugs, but does not dispute that he killed Hackett and stored her body in the

tote.

Deputy Sam Scarborough who was dispatched to the scene found the

tote duct-taped shut and shoved under a desk. Inside, Hackett’s body laid on

her back, nude from the waist down, with her knees pushed up to her chest.

Her head was covered with a trash bag, her ankles bound with an extension

cord, and two knives were lying near her knees.

The forensic pathologist who performed Hackett’s autopsy, Dr. Donna

Stewart, testified that Hackett suffered multiple injuries secondary to an

assault including assault-like strangulation injuries and sharp-force injuries.

Dr. Stewart testified that Hackett could have died from strangulation or the

knife wound in her chest.

2 Denihan pled guilty to all charges, acknowledging during the sentencing

trial that he had no doubt in his mind that he killed Hackett and that he was

pleading guilty of his own volition. Ultimately, the jury recommended life

imprisonment for murder, 12 months’ imprisonment for abuse of a corpse, and

5 years’ imprisonment for tampering with physical evidence. The trial court

imposed the recommended sentence but ordered it to run concurrently for a

total life sentence. This appeal followed.

II. Standard of Review

This Court reviews evidentiary decisions of the trial court, such as

whether to admit or exclude evidence, for an abuse of discretion. Rucker v.

Commonwealth, 521 S.W.3d 562, 569 (Ky. 2017); Goodyear Tire & Rubber Co.

v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). An abuse of discretion occurs if

the trial court’s ruling was “arbitrary, unreasonable, unfair, or unsupported by

sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.

1999). However, unpreserved evidentiary challenges, such as here, are subject

to palpable error review under RCr3 10.26.

Under RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is palpable and if it affects the substantial rights of a party. Even then, relief is appropriate only upon a determination that manifest injustice resulted from the error. For an error to rise to the level of palpable, it must be easily perceptible, plain, obvious and readily noticeable.

Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotations

omitted).

3 Kentucky Rules of Criminal Procedure.

3 III. Analysis

Denihan argues that allowing the Commonwealth to visually present the

tote while cross-examining him violated KRE 403 and unduly prejudiced him.

Denihan never objected to the introduction of the tote into evidence. However,

prior to the defense’s presentation of its case, Denihan’s counsel requested that

the tote be moved out of the jury’s sight while she questioned defense

witnesses, claiming that the visibility of the tote was upsetting to Denihan and

his father. The Commonwealth did not object. The trial court indicated that it

would defer to the Commonwealth as to the placement of the tote during its

case-in-chief but that it could be moved, or even removed from the courtroom

entirely, when the defense presented its witnesses. Defense counsel stated

that removal of the tote from the courtroom was unnecessary; counsel simply

wanted to move it to where it would not be seen by the witnesses or jury. At no

point did defense counsel mention KRE 403 or raise any other rule of evidence.

During direct examination of Denihan, defense counsel mentioned the

tote and Denihan testified how seeing it upset him and made what he did to

Hackett seem so real. On cross-examination, the Commonwealth questioned

Denihan about the tote and its relation to the murder and brought it out into

view. The Commonwealth questioned Denihan about what he remembered,

specifically whether he recalled binding Hackett’s legs with an extension cord

“so she wouldn’t flop out of the tote.” Defense counsel objected, without

stating a basis. The trial court overruled the objection. Later, defense counsel

complained about the Commonwealth’s entire line of questioning surrounding

4 Denihan’s memory of the murder, insisting that Denihan had already answered

those questions. The trial court again overruled the objection. At no point

during the Commonwealth’s cross-examination of Denihan did defense counsel

object to the placement of the tote.

Denihan now argues that the Commonwealth presenting the tote while

cross-examining him violated KRE 403. But Kentucky law is clear that

objecting on one basis does not preserve every possible objection arising from

an item of evidence. See Fairrow v. Commonwealth, 175 S.W.3d 601, 607 (Ky.

2005) (“When a party states grounds for an objection at trial, that party cannot

assert a different basis for the objection on appeal[]” (citations omitted)). Since

Denihan did not raise a KRE 403 objection at any relevant point during trial, or

object to the admission of the tote into evidence, or its location during cross-

examination, his claim is unpreserved, and we will review it only for palpable

error.

All relevant evidence is admissible pursuant to KRE 402. Relevant

evidence is defined as “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” KRE 401.

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of undue prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” KRE 403. The prohibition on the

cumulative presentation of evidence is designed “to give courts needed

5 discretion to control tireless litigators and to conduct trials efficiently.” Ten

Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 715 (Ky. 2009) (quotations and

citation omitted). “The task of weighing the probative value and undue

prejudice of proffered evidence is inherently factual and, therefore, within the

discretion of the trial court.” Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky.

2015) (citation omitted).

Denihan asserts that the tote essentially functioned as Hackett’s coffin

and even if relevant, was gruesome, cumulative, and inflammatory evidence

that unduly prejudiced the jury. He points out that several photos introduced

into evidence at trial contained the tote, including pictures of the tote

unopened in Hackett’s home, opened with Hackett’s body visible, and with the

knives tucked in the tote next to her knees. A video of the crime scene was

also shown to the jury, which ended at the tote, showing Hackett’s body inside.

Denihan maintains that considering this evidence, and the testimony elicited

from the Commonwealth’s witnesses, the tote was not necessary for a full

understanding of the case.

Denihan further alleges that the tote was inflammatory, as its tangible

form allowed for immediate sensory observation in a way that a photo does not

and served no other purpose than to incite an emotional response from the

jury. He avers the harmful and prejudicial consequences of the tote

substantially outweighed the probative value; because no one disputed

Denihan’s guilt, and alternative evidence in the form of photos and video was

presented, the physical evidence of the tote in the courtroom was of low

6 probative value and high prejudice, causing the jury to recommend the

maximum sentence on all counts. See Hall v. Commonwealth, 468 S.W.3d 814,

824 (Ky. 2015) (stating that with “already overwhelming evidence tending to

prove a particular fact, any additional evidence introduced to prove the same

fact necessarily has lower probative worth, regardless of how much persuasive

force it might otherwise have by itself”).

In response, the Commonwealth argues that the tote was properly

admitted, as its probative value was high and any prejudice to Denihan slight.

Regardless, the Commonwealth asserts that the tote’s admission certainly did

not rise to the level of palpable error, as the tote aided the jury’s understanding

of the events surrounding Denihan’s charges and was akin to allowing the

introduction of, for example, a murder weapon. See Major v. Commonwealth,

177 S.W.3d 700, 714 (Ky. 2005) (Cooper, J., concurring in part and dissenting

in part) (opining that background evidence such as charts, photographs, views

of real estate, murder weapons, is universally offered and admitted as an aid to

understanding). Although the tote undoubtedly made an impact on both

Denihan and the jury, that does not render the tote inadmissible. See Webb v.

Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (prosecution “is permitted to

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

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

jury to see[]” (citations omitted)).

Moreover, the Commonwealth maintains that introducing the tote itself

was important to demonstrate how Denihan tampered with the physical

7 evidence in this case and abused Hackett’s corpse. See id. (evidence is

admissible when part of the res gestae of the crime). Further, “[n]ot all

evidence that is duplicative is therefore cumulative, and evidence should not be

excluded on this ground merely because it overlaps with other evidence.”

Daugherty v. Commonwealth, 467 S.W.3d 222, 235 (Ky. 2015) (citation

omitted). “And some repetition [of the evidence] is no doubt helpful for a jury.”

Id.

While the tote may have been prejudicial to Denihan, serving as visual

proof of his guilt, because this claim of error is unpreserved, the question

remains whether its introduction substantially affected Denihan’s rights and

resulted in manifest injustice so as to constitute palpable error. We conclude it

did not. Considering that Denihan pled guilty to all charges (and did not

dispute strangling Hackett, tying her up, stuffing her in the tote, and duct-

taping it shut), and the jury was presented with photographs and video

evidence of Hackett’s nude, mutilated body in the tote, we find that

introduction of the tote itself unlikely led the jury to recommend any harsher

sentence than it otherwise would have. Accordingly, no palpable error

resulted.

IV. Conclusion

For the foregoing reasons, we affirm the Warren Circuit Court’s judgment

sentencing Denihan to life in prison.

All sitting. All concur.

8 COUNSEL FOR APPELLANT:

Kayla Danielle Deatherage Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron Attorney General of Kentucky

Christopher Henry Assistant Attorney General