Mark Tatum v. Commonwealth of Kentucky

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION .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THIS OPINiON IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.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: DECEMBER 14, 2017 . NOT TO BE PUBLISHED

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MARK TATUM APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE BARRY WILLETT, JUDGE NO. 12-CR-OO 1734

COMMONWEALTH OF KENTUCKY . APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, AND REVERSING IN PART

A jury found Mark Robert Tatum guilty of murder, wanton endangerment

in the first degree, and retaliating against a participant in the legal process.

Following the jury verdict, the court sentenced Tatum to a fotal of 35 years'

imprisonment. On appeal, Tatum argues t~at the trial court erred when it:

refused to instruct the jury on reckless homicide; admitted irrelevant and.

unduly prejudicial evidence; and prohibited mental health experts from

testifying about Tatum's mental condition at the time of the offense. Tatum

also asserts that he was entitled to a ~irected verdict of acquittal on first-degree

wanton endapgerrrient based on a separate incident and that the wanton

endangerment in the first degree jury instruction denied him a unanimous verdict. For the following reasons, we reverse the wanton endangerment

conviction BUT affirm the remaining convictions.

I. BACKGROUND.

· The majority of the facts are undisputed. Mark Robert Tatum and his

girlfriend, Linda Hemming, moved to 800 Gagel Avenue in June 2006. David

Allen and his wife, Sul, lived in the home next door. Tatum;who has a ·

hoarding disorder and falls on the au~sm spectrum, never spoke to the Allens.

In Mar.ch 2007, Mr. Allen began filing complaints with the department of

Inspection, Permits, and Licensing (IPL)2 regarding the condition and

maintenance of Tatum's house and property. Mr. Allen made multiple

complaints to IPL, and more than 200 pages detailing the .complaints were

introduced at trial.

When IPL received a con;iplaint, an inspector would investigate. If the

problem was minor,.a correction notice or "violation" was issued. If the

problem was serious or potentially dangerous, a citation was issued, carrying a

financial penalty, that if not paid, could lead to a lien being placed on the

property. Tatum received numerous citations and liens were placed on his

property.

1 Tatum's brief spells Mrs. Allen's name as "Sue", while the Commonwealth's brief spells Mrs. Allen's name as "Su". Mrs. Allen's full name is Su Cha Allen, so this Opinion refers to Mrs. Allen as "Su". 2 It appears that, when Mr. Allen filed his complaints, the agency was the Inspections, Permits and Licensing Department but is now known as the Louisville Department of Codes and Regulations. ·

2 In 2009, after repeated complaints by Mr. Allen, Tatum put up two flags

on the side of his shed facing the Allen property. The flags were pirate flags

with one reading "Dead men tell no tales." Mr. Allen again complained.

On April 16, 2012, someone shot a pellet into Mr. Allen's gutter and Mr.

Allen suspected Tatum. Mr. Allen called the police and an officer told him

nothing could be done 'J:?ecause there was no proof as to who shot the gutter.

Mr. Allen began watching Tatum with binoculars. At the end of April, Mr. Allen

said he saw Tatum shoot out an outside walkway light on the Allen house. On

May 6, 2012, Mr. Allen said he saw Tatum shoot his exhaust fan, causing a I

dent. Mr. Allen called the police and Tatum was arrested and charged with

first-degree ·wanton endangerment and criminal mischief.

A no-contact order was entered on May 9, 2012 which would have

prevented Tatum fro:i:n staying in his home. Tatum spent some time at his

cousin's house but, despite the no-contact order, Tatum returned to his house

on Gagel Avenue every day. On May 31, 2012, an IPL inspector again went to

Tatum's house, but did not speak to Tatum. When the inspector left, Tatum

. went·upstairs, grabbed a gun, shot the side of the ~llen home multiple times,

and then left to pick up his girlfriend from work. Su returned home from work

around 3:00 a.m. and discovered Mr. Allen's body inside the patio door. Tatum

was arrested and,.after a seven-day jury trial, was convicted of murder, wanton

endangerment, and retaliating against a participant in a legal proceeding.

Tatum received a sentence of 35 years' imprisonment, and he appeals as a

matter of right. We note that the wanton endangerment conviction was based

3 upon Tatum shooting Mr. Allen's exhaust fan on May 6, 2012, and not based

upon Tatum's fatal shooting of Mr. Allen on May 31, 2012. We address

additional facts as necessary below.

II. ANALYSIS.

A. Tatum was not entitled to have the court i~struct the jury on reckless. homicide.

The trial judge instructed the jury on murder, first-degree manslaughter,

and second-degree manslaughter. Tatum asserts error in the trial judge's

failure to further instruct the jury on reckless homicide as a lesser included

offense.

A culpable mental state is required for a criminal offense unless the

offense is a violation, misdemeanor, or one defined outside the Penal Code. See

Kentucky Revised Statute (KRS) 501.050. Murder and first-degree

manslaughter require a defendant to act intentionally, KRS 507 .020; KRS

507.030, while second degree manslaughter requires a defendant to act

wantonly. KRS 507.040. "A person is guilty of reckless homicide when, with

recklessness, he causes the death of another person." KRS 507.050.

Tatum argues he was entitled to a reckless homicide instruction because

the jury heard evidence of Tatum's hoarding disorder, and his experts. testified

extensively about the testing performed on Tatum and where he fit on the

Autism Spectrum. Tatum also presented testimony regarding how a person

with autism would react when faced with certain stimuli, such as the repeated

IPL complaints in this case. It was up to the jury to decide i~ Ta~m's mental

condition affected his mental state at the time of the shooting. 4 "An instructien on a lesser included offense· is appropriate if, and only if,

on the given evidence a reasonable juror could entertain a reasonable doubt of

the defendant's guilt on the greater charge, but believe beyond a reasonable

doubt that the defendant is guilty of the lesser offense." Osborne v.

Commonwealth, 43 S.W.3d 234, 244 (Ky. 2001) (citing Skinner .v.

Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993); Luttrell v. Commonwealth,

554 S.W.2d 75, 78 (Ky. 1977)). Further, "where the evidence does not

conclusively establish a defendant's state of mind at the time he killed the

victim, it is appropriate to instruct on all degrees of homicide." Commonwealth

v. Wolford, 4 S.W.3d 534, 539 (Ky. 1999) (emphasis added).·

The evidence in this case is very distinct from Wolford. In Wolford, none

of the defendants admitted to committing the murders, and even claimed alibi

defenses. Id. at 537. Because the evidence involved could allow multiple

inferences by the jury, the Court held that instruction on all lesser included

offenses was warranted. Id. at 539-40.3 Tatum, however, did not dispute the

fact that he fired multiple shots at Mr. Allen's home. In fact, Tatum's counsel

admitted that Tatum fired the shots; albeit under an alleged extreme emotional

disturbance. The evidence was not in dispute. Firing over 30 shots into your

· neighbor's home cannot be deemed reckless and it'would, thus, be

unreasonable for a juror to find that this conduct was anything other than

3 Justice Cooper noted in Wolford, "The convoluted and contradictory testimony presented in this case is the perfect example of why fact-finding in a criminal case is delegated to the jury.... leave it to the jury to sort out the facts and determine what inferences and conclusions to draw from the evidence." Wolford, 4 S.W.3d at 539-40. In the present case, the.evidence was uncontroverted that Tatum shot Mr. Allen. ·intentional or wanton. Tatum, therefore, was not entitled to an instruction on

reckless homicide.

B. Tatum was entitled to a directed verdict on f"J.rst-degree wanton endangerment.

We reiterate that Taturri was convicted of wanton endangerment for

shooting Mr. Allen's exhaust fan on May 6, 2012. Tatum argues that the trial

court erred in not granting him a directed verdict for the first-degree wanton

endangerment charge.

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 ~s 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.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). · '--

A person is guilty of wanton endangerment in the first degree when,

u~der circumstances manifesting extreme indifference to the value of human

life, he wantonly engaged in conduct which creates a substantial danger of .

death or serious physical injury to another person. KRS 508.060 .. "Firing a

weapon in the immediate vicinity of others is the prototype of first degree

wanton endangerment. This would include the firing of weapons into occupied

vehicles or buildings." Swan, 384 S.W.3d at 102.

6 The Commonwealth presented evidence that on April 16, 2012, Mr. Allen

suspected Tatum of.shooting a pellet into Mr. Allen's gutter. At the end of

·April, 2012, Mr. Allen saw Tatum shoot Mr. Allen's outside walkway light with

a BB gun. On May 6, 2012, Mr. Allen saw Tatum shoot a pellet at his exhaust

fan. Tatum was convicted· of wanton endangerment based on the May 6, 2012

incident.

Tatum's actions of firing a BB gun or pellet gun at the outside .of Mr.

Allen's house do not fall within the quintessential examples of wanton

endangerment. By way of example, ~e look to the Court's holdin~ in Swan v.

Commonwealth. In Swan, the defendants broke into a house and b_egan firing

their guns at victims in the living ro9m. See id. at 103. This Court held that

Mrs. L~mpkins, the alleged victim of wanton endangerment, who was hiding in

a back bedroom at the time of the gun shots, was not in the immediate vicinity

of the shots fired, and the defendants were entitled to a directed verdict for

wanton endangerment as related to Mrs. Lumpkins. Id. "Like th~ danger of

ricochets, it is also well-known that bullets can go through and endanger

people beyond the walls of a structure. So if Mrs. Lumpkins was subjected to

first-degree wanton endangerment, then were not the Officers, who were

present just outside when some of the shots were fired, also subjected to the

same crime? What about neighbors in nearby houses? Or those down the

street? We must draw the line somewhere." Id.

The facts in the present case are less severe than the facts in Swan.

Tatum fired a, BB gun or pellet gun at an exhaust fan outside Mr. Allen's house. Tatum was not using a high-powered weapon, nor was he firing into

the home. No shots were fired in Mr. Allen's immediate vicinity .. Although Mr.

Allen saw Tatum through his binoculars, there is no evidence Tatum saw Mr:

Allen or that Tatum was shooting at Mr. Allen. Therefore, even taking ,the

Commonwealth's evidence as true, Tatum's actions do not rise to the level of

culpability ~s contemplated by the wanton endangerment statute and Tatum

was entitled to a directed verdict on thi~ charge.

Tatum also argues that he was denied a unanimous verdict based on the

wanton endangerment jury instruction.. Because the Court believes Tatum was

entitled to a directed verdict on wanton endangerment we do not discuss the I

alleged problem of unanimity.

C. Irrelevant and Unduly Prejudicial Evidence.

"All relevant evidence is admissible except as otherwise provided," and

"evidence which is not relevant is not admissible." Kentucky Rule of Evidence

(KRE) 402. "Relevant evidence means 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. "The law of evidence tilts heavily toward admission over exclusion."

Tuttle v. Perry, 82 S.W.3d 920, 922 (Ky. 2002). "Relevant evidence includes not

only facts tending to prove an element of the offense, but also facts tending to

disprove a defense.. " Id. (citing Springer v. Commonwealth, 998 S.W.2d 439 (Ky.

1999)). "Relevant evidence· may be excluded if its probative value is

substantially outweighed by the danger of undue prejudice." KRE 403.

8 "A trial judge's decision with respect to relevancy of evidence under KRE

401 and 403 is reviewed under an abuse of discretion standard." Love v.

Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). The outcome of the balancing

test in KRE 403 is within the s9und discretion of the trial court "and that

decision will only be overturned if there has been an abuse of discretion, i.e., if

the trial judge's -ruling was arbitrary, unreasonable, unfair, or unsupported by

sot.J.nd legal principles." Cook v. Commonwealth, 129 S.W.3d 351, 361-62 (Ky.

2004).

Tatum asserts that the t:nal court erred in admittiJ:?.g irrelevant and

unduly prejudicial evidence. We will address each piece of evidence in turn

below.

1. Mug Shot.

Over Tatum's objection, the Commonwealth introduced a photo taken of

Tatum after his arrest. The photo depicted Tatum, from head to toe, in

handcuffs, and wearing a t-shirt with two assault rifles printed on it. The

photo was shown to the jurors for approximately four seconds during trial, and

it was admitted into evidence. The Commonwealth's justification for entering

the photo into evidence was the need to show Tatum was free of any defensive

wounds on his body. The Commonwealth also expressed the need to show

Tatum's demeanor after the arrest.

Mtig shots are generally not admissible at trial because of their apparent

implication that the defendant previously engaged in criminal conduct. See

Redd v. Commonwealth, 591 S.W.2d 704, 707-08 (Ky. App. 1979) (citing

·9 Roberts v. Commonwealth, 350 S.W.2d 626 (Ky. 1961)). A defendant's current

arrest photo, on the other hand, implies nothing about the defendant's criminal

history, therefore, the prior-bad-act concerns are not implicated .. Such photos

may be admitted, if: (1) the prosecution has a demonstrable need for the

evidence; (2) the photo, either as taken or as edited, does not imply that the

defendant had a criminal record; and (3) the photo is introduced in a manner

that does not draw attention to its source or implications. Redd, 591 S.W.2d at

708.

Here, Tatum's mug shot was from his current arrest f6r the murder of

Mr. Allen, thus, there was no implication that Tatum previously engaged in

criminal conduct. With that being said; the Commonwealth fails the Redd test.

The Commonwealth's proposed reasoning for the photo's introduction was the

need to show Tatum did not have any defensive wounds on his body. However,

Tatum did not claim self-defense. The presence or absence of defensive

wounds was irrelevant. The Commonwealth also sought introduction of the

photo to show Tatum's demeanor after the arrest. However, the

Commonwealth presented evidence from numerous witnesses regarding

Tatum's demeanor after the arrest. "When there is 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." Hall v.

Commonwealth, 468 S.W.3d 814, 824 (Ky. 2015).

10 To satisfy the Commonwealth's justifications, Tatum's counsel agreed to

introduction of the photo if it could be cropped to just show Tatum's face.

However, the trial judge admitted the photo without cropping out the

prejudicial t-shirt and handcuffs. Any probative value from introducing the

photo was minimal, at -best. Furthermore, the photo was highly prejudicial as

it showed Tatum, in handcuffs, and w~aring a t-shirt with two assault rifles.

Therefore, we find the court erred in permitting introduction of the photo .. We

. further find this error harmless, as will be discussed below.

2. Marksmanship Certificate.

Tatum's vehicle was searched after his arrest, and the police found a

website printout of an Advanced Military Rifle Marksmanship Course. The

document had been printed approximately nine months before Tatum shot and

killed Mr. Allen. The court admitted the document into evidence over Tatum's

objection.

Tatum argues that the printout ~as irrelevant, and even if relevant, was

unduly prejudicial. Tatum argues that there was no evidence he att~nded the

course or that he was even the one who printed the document. Tatum's

argument is further premised on the_ fact that he shot Mr. Allen's house using a

.22 caliber handgun ~d a .22 caliber rifle. The Advanced Military Rifle

Marksmanship Course would not allow participants to shoot a .22 caliber rifle

to gain certification. More powerful rifles were required; specifically, the class

required use of "MR, M16-A2/3 or A/4 and commercial equivalents." Although

11 not exactly clear, it appears that the Commonwealth sought to introduce this

evidence to show Tatum was a skilled marksman and a gun aficionado.

Tatum asserts that the Commonwealth's failure to provide evidence that

Tatum even printed the document or attended the course makes the certificate ·

·irrelevant and inadmissible. However, this.Court believes the Commonwealth's

failure is an issue of weight, not admissibility. Further, Tatum made no

objection to the evidence not being authenticated.

Nevertheless, the Court agrees with Tatum that the marksmanship . . certificate is irrelevant. The pivotal factor in the Court's decision is that

Tatum, through counsel, admitted that he shot Mr. Allen's house on May 31,

2012. The evidence is undisputed that Tatum sprayed Mr. Allen's house with

bullets. He did not fire individual shots indicative of skilled marksmanship,

and thus the marksmanship certificate should not have been admitted.

Although the evidence should not have been admitted, the error was harmless

as discussed below.

3. Black Silhouette Target.

Police also searched the room in Tatum's house from which I. he fired the

fatal shot, and found a black silhouette target. Tatum argues that this

. evidence was irrelevant and highly prejudicial, and should not have been

introduced.

The Commonwealth questioned Linda Hemming, Tatum's girlfriend,

about the target. Ms. Hemming testified that she and Tatum had gone to the

shooting range on occasion. However, the Commonwealth failed to lay a proper

12 foundation for entry of the target. Ms. Hemming's statements only show that

the couple occasionally visited the shooting range. ~er t~stimony does not

support the proposition that the target belonged to Tatum. Be'cause of Tatum's

hoarding disorder, he could have found the target in a dumpster and decided '

to bring it home. There was also no evidence that Tatum had shot at the paper

target, when the shots occurred, or what type of gun was used on the paper

targets.

· Similarly to our previous analysis relating to the marksmanship

certificate, the Court agrees with Tatum that the target should not have been

admitted. As stated above, Tatum did not fire precisely at Mr. Allen. Instead,

he fired multiple shots at the side of Mr. Allen's home. Marksmanship was not

at issue and it was undisputed that Tatum shot and killed Mr. Allen .. As such,

the target should not have been admitted into evidence.

Although the Court finds that the mug shot, marksmanship certificate,

and black silhouette target should not have been introduced into evidence, the

Court finds the errors harmless. "A non-constitutional evidentiary error may

. be deemed harmless, the United States Supreme Court has explained, if the

reviewing court can say.with fair assurance that the judgment was not.

substantially swayed by the error." Winstead v. Commonwealth, 283 S.W.3d

678, 688-89 (Ky. 2009) (citing Kotteakos v. United States, 328 U.S. 750 (1946)).

"The inquiry is not simply 'whether there was enough [evidence] to support the

result, apart from the phase affected by the error. It is rather, even so, whether

the error itself had substantial influence." Id. at 689. The evidence presented;

13 excluding the complained of items, overwhelmingly supports the jury's

conviction. In fact, T~tum never asserts that he did not fire the shots at Mr.

Allen's house, thus, the Court is not persuaded that the outcome would have

been different had the evidence been properly excluded.·

4. Bag with Gun Accessories .

.Police officers found a camouflage bag, containing gun sights and scopes,

in the room from which Tatum shot Mr. Allen. Tatum argues that the guns he

used were introduced as the proposed weapons for the shooting, thus, the '

other weapons Tatum owned were inadmissible. Tatum cites Major v.

Commonwealth for the proposition that "weapons, which have no relation to the

crime are inadmissible." 177 S.W.3d 700, 710 (Ky. 2005). However, he ignores

the d_iscussion in Major that precedes that quote. "We have upheld the

admission of weapons into evidence based upon testimony that the weapon

was the one used in the commission of the offense, or that it was of the same

size and shape as the weapon used in the commission of the offense, or that it

was found at the scene of the offense and was capable of inflicting the type of

injury sustained by the victim." Id. (internal citations omitted).

The bag of gun accessories was found at the scene of the offense.

Although this case deals with gun accessories and not "guns", as stated in

Major, the evidence is nonetheless relevant to show preparation for the crime.

Further, the Commonwealth presented evidence that the accessories were all

interchangeable with the sights and scopes on the guns Tatum actually used in

the crime. As stated above, the law tilts heavily toward admission over

14 exclusion. Tuttle, 82 S.W.3d at 922. Therefore, we find no error with the trial

court's admission of this evidence.

D. The trial court properly excluded iD,ental health testimony.

Tatum's defense was that he was suffering an extrerµe emotional

disturbance (EED) at the time of the shooting.

Extreme emotional disturbance is a tempbrary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to . act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional. state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which 1s to be.determined from the viewpoint of a person in the defendant's situation under circumstances as the defendant believed them to be.

McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986).

Tatum's last allegation of error is that the trial court denied him due

process of law when it prohibited mental health experts from testifying about

his mental condition at the time of the offense. There is no dispute regarding

Tatum's autism and hoarding disorder. Tatum presented testimony from Dr.

Allen and Dr. Miller who discussed Tatum's mental illness at length, however,

the trial judge prevented Tatum's doctors from testifying about his mental

condition at the time of the shooting.

In considering the Commonwealth's objection to this testimony, the trial

judge properly excused the jury and discussed this Court's applicable case law

with counsel. In sustaining the Commonwealth's objection, the trial judge read

Lasure v. Commonwealth, 390 S.W.3d 139 (Ky. 2013) for the proposition that

Tatum could not elicit any testimony from Drs. Allen or Miller regarding

15 Tatum's state of mind at the time of the shooting.4 We affirm the trial judge's

ruling but for different reasons. Lasure does not stand for a blanket

prohibition of this type of testimony; neverth~less, this type of expert testimony

is 'inadmissible in this case.

The evidence supporting extreme emotional disturbance must come from I some admissible source, arid "an extreme emotional disturbance instruction

must be supported by 'some definite, non-speculative evidence'." Padgett v. '\ .

Commonwealth, 312 S.W.3d 336, 341 (Ky. 2010) (citing Holland v.

Commonwealth, 114 S.W.3d 792, 807 (Ky. 2003)).

There was no evidence in the record of an extreme emotional disturbance

prior to Drs. Allen and Miller testjfying. Dr. Allen testified that Tatum did not

discuss the day of the shooting with him. While Tatum did discuss the day of

the shooting with Dr. Miller, any testimony propounded by Dr. Miller would

have been based on Tatum's out-of-court statements, which were inadmissible

hearsay, and which would not fall within a hearsay exception.

Although there are two possible exceptions under which this type of

hearsay evidence may be admitted, neither is applicable in this case. KRE

803(4) states: "Statements I!lade for purposes of medical treatment or ~

diagnosis and describing medical history, or past or present symptoms, pain,

4 Tatum's counsel's question to Dr. Allen was: "So putting all of this together, all you have learned about Mark, all you've learned and your willingness to change your diagnosis, is it your best considered medical opinion, that based on all of the IPL issues, and everything going on in Mark's life, that he snapped?" VR 5/ 16/ 16 10:33:49. During the judge's discussion outside of the presence of the jury, Tatum's counsel requested clarification of the parameters of Dr. Allen's testimony. At that time, the judge stated that counsel could not elicit any testimony from the doctors regarding Tatum's state of mind at the time of the shooting.

16 or sensations, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to treatment or diagnosis" are

admissible. Tatum was not seeking any kind of medical treatment from Dr.

·Miller. Dr. Miller was, in fact, Tatum's paid expert hired to testify in support of

an EED defense. KRE 803(4) does not apply.

KRE 703(b) permits evidence of the basis of an expert's opinion, even if

otherwise inadmissible as hearsay, so long as the evidence is deemed

"trustworthy, necessacy to illuminate testimony, and unprivileged." Tatum's

.statements to Or. Miller regarding the day of the shooting were not

trustworthy. There is no evidence that Tatum made any statements to Dr.

Miller other than self-serving statements to aid in his defense. Tatum did not

testify and was not subject to cross-examination based on the statements

allegedly made to Dr. Miller. "To permit this type of evidence allows a·

defendant to testify by proxy without being subjected to the crucible of cross-

examination." Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1988).

"Where the defendant does not testify and there is no other factual basis to

support a defense of extreme emotional disturbance, that defense cannot be

bootstrapped into the evidence by the expert opinion· premised primarily on

out-of-court information furnished by the defendant." Lasure, 390 S.W.3d at

142 (citing Talbott, 968 S.W.2.d, at 85).

This holdir:ig is consistent with Lasure. In Lasure, the trial court

prevented Lasure's expert from testifying regarding EED unless Lasure testified

because the expert's testimony would include inadmissible out of court

17 statements made by Lasure regarding the alleged EED.· Id. This Court

disagreed because, by the close of the Commonwealth's case-in-chief, there

was sufficient evidence of EED, specifically, Lasure's recorded interview with

detectives .... " Id at 143. In sharp contrast here, the only evidence of EED

was Tatum's inadmissible, self-serving hearsay statements to Dr. Miller. We

cannot say the trial judge's decision to exclude this testimony was in error.

III. CONCLUSION .

For the forego_ing reasons; the judgment of the Jefferson Circuit ·court is

reversed as to the wanton endangerment conviction and remanded for that

conviction to be vacated. The remaining convictions are affirmed.

Minton, C.J., Hughes, Keller, VanMeter, Venters and Wright, JJ., concur.

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

CUNNINGHAM, J., CONCURRING IN RESULT ONLY:

I concur in result because I do not believe that the admission of the gun

course certification and silhouette was error, harmless or otherwise. They are

as relevant .as the approved admission of the bag of gun accessories. All

·equally could be considered to show someone who might l:>e gun crazed and

-goes to state of mind.

18 COUNSEL FOR APPELLANT:

Shannon Renee Dupree Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Leilani K.M. Martin Assistant Attorney General