Larry Herald v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: September 21, 2022
• Docket: 2021 SC 0256
• 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 22, 2022 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0256-MR

LARRY STEVENS HERALD II APPELLANT

ON APPEAL FROM BOONE CIRCUIT COURT V. HONORABLE JAMES R. SCHRAND, JUDGE NO. 19-CR-00645

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART AND REVERSING IN PART

Larry Stevens Herald II (Herald) was convicted of murder and sentenced

to life in prison. He now appeals as a matter of right.1 Herald raises three

issues on appeal. He argues that the trial court erred by failing to grant a

directed verdict. Herald also claims the trial court committed reversible error by

failing to grant a missing evidence instruction and abused its discretion when

it imposed court costs. We hereby affirm the conviction but reverse the

imposition of costs.

1 Ky. Const. § 110(2)(b). I. FACTS AND PROCEDURAL BACKGROUND

Herald and Jennifer Cummins (Cummins) lived together as a couple.

They hosted a party on June 29, 2019. Herald invited his friend Rodney

Holbrook who brought along his brother Michael Holbrook (Michael). Michael

made some lewd comments about Cummins and her adult daughter Brandi

Taylor. Herald grew increasingly angry about it. While the party was winding

down, everyone was congregating in the garage. Herald told Michael to leave

the party several times, but Michael did not. The last time Michael refused to

leave Herald went to retrieve a handgun from his closet, pulled the slide back

and chambered a round and said, “this f*****g guy’s gonna leave tonight.”

Michael was seated among other partygoers when Herald again entered the

garage. Herald fired a “warning” shot towards Michael and took a few more

steps towards him and struck him with the gun. The handgun discharged

when Herald struck Michael with the gun. The bullet entered Michael’s left

chin and exited his back. Had Michael lived, he would have been a

quadriplegic, but this injury proved fatal, when he eventually died twenty-five

days later.

When the Boone County Sheriff’s Department arrived and investigated

the shooting, Michael was still sitting in his chair bleeding heavily. The chairs

nearby were moved in the process of rendering first-aid. Michael was taken to

a hospital and the officers began processing the crime scene. Detective

Faulkner took photos of a chair and ottoman because they appeared to contain

2 bullet defects2 and he testified to such at the trial. However, he did not take

physical possession of them nor conduct any scientific testing to confirm his

beliefs. Thus, the chair and ottoman were unavailable for Herald’s defense

team to examine and confirm if the purported defects contained the presence of

lead.

Herald was indicted for murder and the case was tried in front of a jury.

He was found guilty of wanton murder and the jury recommended a sentence

of life imprisonment. The trial court accepted the recommendation and

sentenced Herald accordingly and imposed court costs. Herald filed this

appeal as a matter of right, we now address the merits of the appeal.

II. ANALYSIS

Herald claims the trial court erred by failing to grant his motion for a

directed verdict and for refusing to issue a missing evidence instruction.

Herald also contends that the trial court erred when it imposed court costs.

A. The trial court properly denied Herald’s motion for a directed verdict on the murder charge. At trial, Herald moved for a directed verdict on the charge of murder, and

thus properly preserved this issue for appeal. His motion was overruled by the

trial judge. He argued, then as now, there was insufficient evidence that he

acted under circumstances manifesting extreme indifference to human life.

This Court has previously stated that:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the

“Bullet defects” is the term crime scene investigators use for what are more 2

commonly known as “bullet holes.”

3 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 purpose 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.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The standard of

review for an appellate court on reviewing a lower court’s decision regarding a

directed verdict is, “if under the evidence as a whole, it would be clearly

unreasonable for a jury to find guilt, only then is a defendant entitled to a

directed verdict of acquittal.” Id.

Herald was convicted of wanton murder. KRS 507.020(1)(b) states as

follows:

A person is guilty of murder when . . . under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.

By Herald’s own admission, he struck Michael in the face with a loaded and

cocked firearm. Herald urges this Court to declare as a matter of law that

intentionally striking someone in the face with a loaded firearm which then

discharges and kills a person, is not wanton murder. We decline to do so. In

fact, this Court has upheld a conviction in a similar circumstance where a

firearm discharged in the course of a “pistol-whipping.” Gribbins v.

Commonwealth, 483 S.W.3d 370, 376-77 (Ky. 2016).

Herald grabbed a firearm, made sure it was loaded and ready to fire and

went to confront and evict an uninvited party guest. Herald discharged a

firearm in a garage filled with people and struck Michael in the face with the

4 same weapon he discharged just a few moments earlier. It is certainly

plausible that Herald did not intend the predictable result, but that is why he

was convicted of wanton murder, not intentional murder. It was not clearly

unreasonable for a jury to find that his actions wantonly created a grave risk of

death to Michael and that it was those actions that did cause Michael’s death.

The trial court did not abuse its discretion when it denied Herald’s motion.

B. The trial court properly denied a missing evidence instruction.

Herald is also seeking reversal of his conviction on the grounds the trial

court failed to grant a missing evidence instruction. He properly preserved this

issue for appeal by tendering instructions to this effect. Trial courts decide

what instructions are proper given the evidence in each case and are vested

with broad discretion. Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d 783, 790 (Ky.

2011). We review the lower court’s denial of a missing evidence instruction

under the abuse of discretion standard. Id.

Herald claims the police failure to preserve the chair with the bullet

defects amounted to the destruction of potentially exculpatory evidence.

Herald’s argument rests on the supposition that had a defense expert been

allowed to perform chemical tests on the purported bullet defects in the chair

and ottoman it would then prove that Detective Faulkner’s testimony was

incorrect. This would mean that the holes in the chair and ottoman were not

bullet defects and thus make Herald’s version of events, that his first shot was

fired into the grass, more plausible to a jury.

5 The intentional destruction of exculpatory evidence is a violation of the

due process rights of a defendant. Sanborn v. Commonwealth, 754 S.W.2d 534

(Ky. 1988). The granting of a missing evidence instruction is one of several

remedies available to a trial court when confronted with this due process

violation. Id. A missing evidence instruction allows a jury to make an inference

that if the evidence was not destroyed then it would have been favorable to the

defendant. Id. This Court has stated that:

In order for Appellant to be entitled to a missing evidence instruction, he must establish that (1) the failure to preserve the missing evidence was intentional and (2) it was apparent to law enforcement that the evidence was potentially exculpatory in nature.

White v. Commonwealth, 544 S.W.3d 125, 151 (Ky. 2017) (emphasis added).

This Court requires a showing of bad faith on the part of the Commonwealth.

Collins v. Commonwealth, 951 S.W.2d 569, 573 (Ky. 1997). Bad faith in this

case means the Commonwealth intentionally destroyed the chair even though

it knew it was potentially exculpatory.

The exculpatory nature of this potential evidence is of dubious value,

certainly in this Court’s perspective. It is therefore understandable why the

exculpatory value of these same tests would elude Detective Faulkner when he

conducted the investigation. Multiple eyewitness testified that Herald fired a

shot toward a group of people in the garage and narrowly missed them. Chad

Lynn testified his wife Mandy was sitting next to Michael when Herald fired the

first shot causing her to roll away from the gunfire. Mandy Lynn testified she

was seated next to Michael when Herald fired the shot in between them. Herald

6 himself admitted firing the weapon. And yet, which direction Herald fired a

handgun, and where the bullet ultimately landed, at a party in a garage filled

with people is less important than the fact that he did fire a handgun at a party

in a garage filled with people. Once Herald fired that first shot, he knew that he

held a loaded weapon readily capable of firing, and by his own admission

struck Michael with it. It was this conduct that was wanton and which

ultimately resulted in Michael’s death. The trial court did not abuse its

discretion when it denied the inclusion of a missing evidence instruction.

C. The trial court erred when it adjudged Herald to be a poor person under KRS 453.190(2) and yet imposed court costs.

The trial court imposed court costs in its final judgment entered on July

2, 2021. Trial courts are required under KRS 23A.205 to impose court costs on

a defendant upon conviction. The exception is as follows:

Unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future.

KRS 23A.205(2). Here, the trial court issued an order granting Herald’s motion

to proceed in forma pauperis on July 1, 2021. In this order the trial court found

Herald to be a “pauper within the meaning of KRS 453.190 and KRS

31.110(2)(b).” Courts look to the latter statute to determine whether someone is

“needy” and therefore qualified for the services of the Department of Public

Advocacy. KRS 453.190(b), however, defines “poor person:”

A "poor person" means a person who has an income at or below one hundred percent (100%) on the sliding scale of indigency established by the Supreme Court of Kentucky by rule or is unable to pay the costs and fees of the proceeding in which he is involved 7 without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing.

This Court has previously stated that a trial court’s imposition of court costs is

illegal if the trial court had previously adjudged the defendant to be “poor.”

Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014). The trial court found

Herald to be a “pauper within the meaning of KRS 453.190.” Though the trial

court appears to conflate “needy” and “poor” in its order granting Herald in

forma pauperis status, it is clear the trial court adjudged Herald to be “poor”

and thus, under Spicer, exempt from costs.

III. CONCLUSION

Based on the foregoing, the trial court did not err when it denied Herald’s

motion for a directed verdict and likewise did not abuse its discretion when it

refused to grant a missing evidence instruction. However, this Court does find

the trial court erred when it imposed costs upon Herald despite adjudging him

to be a poor person. Therefore, we hereby affirm the conviction and reverse the

trial courts imposition of costs.

All sitting. All concur.

8 COUNSEL FOR APPELLANT:

Robert C. Yang Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron Attorney General of Kentucky

Bryan Morrow Assistant Attorney General