IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 22, 2016 NOT TO BE PUBLISHED
,,Suprnitt Court of 4 ntfuritu 2015-SC-000451-MR
MATTHEW SMITH APPELLANT. A/K/A MADDIE SMITH
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE PATRICIA M. SUMME, JUDGE NO. 14-CR-00177
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Kenton County jury found Maddie Smith' guilty of one count of
murder. The jury recommended a total sentence of forty years' imprisonment.
The trial court accepted the jury's recommendation.
Smith now appeals as a matter of right, Kentucky Constitution §
110(2)(b), arguing that the trial court erred by: (1) admitting a drawing that
Smith "co-authored" and a suggestive photo of Smith; (2) limiting the testimony
of the defense's expert witness and character witnesses; (3) excluding
testimony of the victim's alleged prior acts of violence and sexual misconduct;
(4) admitting statements Smith made on the morning of the murder; and (5)
allowing the Commonwealth to improperly cross-examine Smith. For the
reasons set forth below, we affirm.
The Appellant, Matthew (Maddie) Smith, is a transgendered individual. Throughout our opinion, we use the feminine pronoun to identify her. I. BACKGROUND
It appears that the only witnesses to the events that occurred in the
hours immediately preceding Eric Schreiber's death were Smith and Eric
Schreiber (Schreiber). As such, we note that the background facts provided
only present Smith's rendition of what occurred on the morning of January 1,
2014.
On December 31, 2013, Smith attended a New Year's Eve party at David
and Debbie Long's house. In addition to many other guests, Schreiber, the
victim, attended the party. Smith knew Schreiber from a July 4th party earlier
that year. At that party, Schreiber made unwelcomed advances toward Smith,
which made her uncomfortable. In fact, between the two parties, Smith rarely
attended events at, the Longs' house for fear that Schreiber might be there.
However, intent on letting "bygones be bygones," Smith attended the New
Year's Eve party at the Longs'.
Throughout the night on December 31, Smith felt more comfortable
around Schreiber as he was "pleasant and respectful of her space." However,
after David Long went to bed at approximately 10:00 p.m., Smith noticed an
immediate change in Schreiber's demeanor. At the stroke of midnight,
Schreiber approached Smith, wanting a New Year's kiss. Smith declined, and
Schreiber became agitated.
Sometime after 5:30 a.m. on January 1, 2014, Schreiber's unwanted
advances became more overt. Smith was in the kitchen washing dishes when
she felt Schreiber approach her from behind, place both hands on her hips,
2 and press himself into her lower back. Smith pushed Schreiber away and
became very afraid. She grabbed a couple of knives from the counter and went
outside. Once outside, she realized that she had left her keys and cell phone
inside the house on the couch. Smith tried to reenter the house, but Schreiber
blocked her entrance and attempted to kiss her. According to Smith, she then
ran into the yard before tripping and falling, while Schreiber ran after her.
Schreiber grabbed Smith, pinned her down, and attempted to remove her
pants, at which point, she reached for the knives she had taken from the
kitchen and flailed against Schreiber.
Smith admitted to Schreiber's wife, Vanessa Schreiber, that she had
killed Schreiber. Vanessa called the police, who arrived around 7 a.m., and
found Smith inside the Longs' residence, washing blood from her hands and
arms. On the back lawn, the police found Schreiber's body, which contained
seventy-two stab wounds. Smith had no defensive wounds and admitted to
witnesses at the Longs' that she had stabbed Schreiber. We set forth
additional facts as necessary below.
II. ANALYSIS
A. While the trial court erred in admitting a drawing Smith "co-authored," the error was harmless. The trial court did not err in admitting a social media picture.
1. The drawing. We review a trial court's evidentiary rulings for abuse of discretion.
Penman v. Commonwealth, 194 S.W.3d 237, 245 (Ky. 2006). A judge abuses
her discretion when her decision is arbitrary, unreasonable, unfair, or
3 unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
Smith complains that the trial court erred in admitting two pieces of
evidence introduced by the Commonwealth. The first was a hand-drawn,
female stick-figure standing in front of a table and what may or may not be a
feather duster on top of the table. Alongside the stick-figure are three hand-
written sentences which read: "You better dust good for me or you'll get the
whip again!"; "Yes mistress, as you wish . . ."; and "bend over that table like a
good sissy!" Although Smith denied that she had drawn the picture and that
the handwriting was hers, she admitted to being a "co-author." Defense
counsel objected; the trial court overruled that objection.
Smith's defense turned on the fact that she was entitled to use deadly
force to prevent Schreiber from sexually assaulting her. See Kentucky Revised
Statute (KRS) 503.050. The Commonwealth contended during trial that
Smith's testimony justifying her use of deadly force was falsified. In support of
that contention, the Commonwealth offered the drawing, arguing Smith's
testimony that Schreiber "approached her from behind . . . placed his hands on
[her] hips and pressed himself into the low of [her] back," was based on and
mirrored the drawing and was therefore not credible. After considering the
parties' arguments, the trial court ultimately admitted the drawing into
evidence.
Evidence is relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
4 less probable." Kentucky Rule of Evidence (KRE) 401. "Evidence which is not
relevant is not admissible." KRE 402. Additionally, lallthough 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.
In this matter, the drawing is clearly not relevant. As Smith's counsel
argued to the trial court, the only similarity between Smith's testimony and the
drawing is that the drawing contains the words bend over and the jury could
infer that Smith, while washing dishes, was bent over. The drawing depicts no
knives, no stabbing actions, no men, no killings, no sexual assault, and no one
bent over. Thus, any comparison between Smith's testimony and the drawing
is non-existent, and neither the drawing nor its narrative had any tendency to
make Smith's self-defense claim more or less probable.
Although the drawing was not relevant and, thus, its admission
constituted error, the error was harmless. The duty of a reviewing court is to
consider the trial record as a whole and to ignore errors that are harmless.
Meece v. Commonwealth, 348 S.W.3d 627, 664 (Ky. 2011) (citing United States,
v. Hasting, 461 U.S. 499, 509 (1983)). "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." Kentucky Rule of Criminal
Procedure (RCr) 9.24. Our inquiry is not "whether there was enough [evidence]
to support the result, apart from the phase affected by the error. It is rather,
5 even so, whether the error itself had substantial influence. If so, or if one is left
in grave doubt, the conviction cannot stand." Winstead v. Commonwealth, 283 .
S.W.3d 678, 689 (Ky. 2009) (quoting Kotteakos v. United States, 328 U.S. 750,
765 (1946)).
As set forth in greater detail in Section E below, the totality of the
evidence was detrimental to Smith. Therefore, the trial court's admission of the
drawing, although in error, did not substantially influence Smith's conviction
and was harmless.
2. The social media photo.
Smith challenges the trial court's admission of a photo she had posted
on social media. The photo in question depicts Smith wearing what appears to
be a common, non-revealing top, with her arm around a man, while both smile
casually at the camera. Applying the relevancy analysis above, we discern no
error here.
At trial, Smith testified that she was not comfortable with her gender
transition and was hesitant to go certain places for fear of abuse. She argued
that, because of her discomfort, she was reasonably more prone to react
violently toward male encroachment of her personal space. The
Commonwealth offered the photo, in which Smith appeared to be comfortable
in the presence of a male, to discredit that testimony.
We first note that the evidence is relevant. The fact that Smith publicly
posted this photo of herself online contradicts her contention that due to her
discomfort with her transition, she was uncomfortable or fearful around men.
6 Thus, the evidence had some tendency to make her characterization of her
state of mind on the morning of the murder more or less probable. See KRE
401. We further note that the evidence was not more prejudicial than
probative. See KRE 403. The photo does not appear to be provocative, as
Smith argues. Rather, the photo presents precisely the contention for which
the Commonwealth offered it: Smith was comfortable with her transition and
with men in her personal space.
Smith cites to Chumbler v. Commonwealth, 905 S.W.2d 488 (Ky. 1995), to
support her argument that the photo's introduction was unduly prejudicial. In
Chumbler, the Commonwealth introduced evidence that two of the co-
defendants were in a homosexual relationship which, it argued, established a
motive for murder. However, the Commonwealth went beyond the co-
defendants' relationship by introducing evidence that one of the defendants:
engaged in homosexual relationships with young boys; allowed a man to have
sex with his wife so the man would also have sex with him; wore women's
underwear; and owned sex toys, photographs of which the Commonwealth
enlarged and showed to the jury.
This Court in Chumbler found that evidence of the relationship between
the co-defendants was connected to the crime charged but that evidence of the
co-defendants' relationships with third parties and evidence of their sexual
habits were unrelated to the crime charged and "had the effect of poisoning the
atmosphere of the trial . . . ." Chumbler, 905 S.W.2d at 493-94. In contrast,
the photograph here lacks any sexual undertones or unduly prejudicial ,
7 implications; thus, it did not have the effect of poisoning the atmosphere of the
trial. For the preceding reasons, we discern no error in the trial court's
admission of the photo Smith posted to social media.
B. The trial court did not err by limiting Dr. Noelker's testimony or by limiting Smith's "character" witnesses. 1. The limiting of Dr. Noelker's testimony.
Smith presented Dr. Noelker, who testified by avowal that he did not find
Smith to be particularly hypervigilant in the setting in which he examined her,
although, he did not "consider hypervigilance to be a relevant issue." The trial
court permitted Dr. Noelker to testify that he had diagnosed Smith with gender
dysphoria and that, at the time of Schreiber's death, Smith believed she was a
woman facing a man. However, given that he had not examined Smith for
hypervigilance, the trial court refused to permit Dr. Noelker to testify to
hypervigilance in transgendered individuals generally, or the effect that
hypervigilance may have had on Smith's state of mind at the time of
Schreiber's death.
Smith contends that the trial court erred by improperly limiting Dr.
Noelker's testimony. Specifically, Smith complains that the trial court applied
a "hyper-technical application" of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), by not allowing Dr. Noelker to testify about how
stigmatization, discrimination, and victimization could cause a person to
become hypervigilant.
We review a trial court's evidentiary rulings for abuse of discretion.
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). The
8 test for abuse of discretion is whether the trial court's decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles. Id. at 581. We
noted in Toyota Motor Corp. v. Gregory that trial courts have a considerable
breadth of discretion in performing their gate-keeping function under KRE 702
and that a reviewing court "must give great deference to the trial court's ruling
and reverse only in circumstances of clear abuse." 136 S.W.3d 35, 39 (Ky.
2004) (internal quotation omitted).
When faced with a proffer of expert scientific testimony, the trial judge
must determine, pursuant to KRE 702, "whether the expert is proposing to
testify to (1) scientific knowledgethat (2) will assist the trier of fact to
understand or determine a fact in issue." Daubert, 509 U.S. at 592. "This
condition goes primarily to relevance . . . . The consideration has been aptly
described . . . as one of 'fit'." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky.
2004) (citing Daubert, 509 U.S. at 591) (internal quotations omitted). Evidence
is relevant if it has "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. "Evidence which is not
relevant is not admissible." KRE 402.
From our review of the record, it is clear that Dr. Noelker's excluded
testimony was not relevant. Regardless of his opinion concerning
hypervigilance in transgendered individuals generally, Dr. Noelker did not
relate that opinion to Smith specifically. Thus, the testimony did not have any
tendency to make the existence of any fact that is of consequence to the
9 determination of Smith's state of mind on the night of Schreiber's death more
probable or less probable than it would be without the evidence. See id.
Because the testimony was not relevant, we need not determine if this portion
of Dr. Noelker's testimony was scientific knowledge that would have assisted
the trier of fact to understand or determine a fact in issue. See Daubert, 509
U.S. at 592. For the reasons preceding, we hold that the court did not abuse
its discretion in limiting the testimony of Smith's expert witness.
2. The limiting of Smith's character witnesses. Smith intended to call six "character" witnesses to testify to her
character for non-violence. Smith contends that the trial court erred by not
permitting her to fully examine each witness during the trial's guilt phase.
KRE 403 gives trial courts the discretion to limit the admission of relevant
evidence where the "probative value is substantially outweighed by" various
harmful effects, including "considerations of undue delay, or needless
presentation of cumulative evidence." KRE 403. Thus, we review a trial court's
decision regarding the examination of witnesses for an abuse of discretion.
Mullikan v. Commonwealth, 341 S.W.3d 99, 104 (Ky. 2011).
Defense counsel argued that its six witnesses would present a
"splattering of [Smith's] life" to show that she did not have a propensity for
violence. These witnesses, among others, included her mother, her sister, a
friend, and a local bartender. Although prompted by the court to do so, Smith
did not delineate what, if any, unique perspective each witness would provide.
The trial court instructed Smith to choose the most probative of her witnesses
10 rather than presenting all six. Ultimately, the court allowed three of Smith's
witness to testify: Smith's mother, sister, and a friend. We note that the three
witnesses Smith did present testified that Smith had a reputation for being a
peaceful and non-violent person.
In reaching its decision, the court found the Commonwealth's witnesses
had not testified to Smith's propensity for violence and, given that Smith could
not articulate an independent purpose for examining each witness,
examination of all six witnesses would needlessly expend the court's time. .
Thus, the court's decision to limit the number of character witnesses was
within the trial court's discretion under KRE 403, and was supported by sound
legal principles. See English, 993 S.W.2d at 945. Therefore, the court did not
abuse its discretion.
C. The trial court did not err in excluding the victim's prior alleged instances of violence and sexual misconduct.
Although her argument is somewhat confusing, it appears to us from
Smith's brief and our review of the record, that Smith complains that the trial
court refused to allow her to call two witnesses to testify to Schreiber's
propensity for violence and sexual misconduct.
Prior to trial, the Commonwealth filed a motion in limine to prevent
Smith from calling Katelyn Starks. Smith contended that Starks would testify
that Schreiber had groped her breast ten years before the murder, when she
was a teenager. Smith also filed a motion in limine, seeking the court's
11 permission to call Corina Wallace, Schreiber's step-daughter. Smith contended
Wallace would testify about Schreiber's abuse and violence toward her mother.
Both witnesses testified by avowal. Starks testified that she had initially
said Schreiber groped her breast; however, she later recanted and admitted
that he, in fact, had not. Wallace testified that she had never witnessed
Schreiber act violently toward her mother.
The trial court ruled that the two witnesses' testimony was inadmissible
because the evidence was not relevant. However, we need not address its
relevance because neither Starks' nor Wallace's testimony on avowal was
consistent with what Smith contended it would be. Starks testified that
Schreiber had not touched her - contradicting Smith's contention. Wallace
testified that Schreiber had never been violent toward her mother - also
contradicting Smith's contention. We fail to see how the trial court could have
erred by excluding evidence that did not exist as Smith characterized it.
D. The trial court's decision to admit statements Smith made about murdering Schreiber was not error.
Smith complains that two statements she made on the night of
Schreiber's murder should not have been admitted because they violated KRE
404(b). KRE 404(b) states that "Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show conformity
therewith." Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992).
However, 404(b) character evidence may be admissible "[i]f offered for some
other purpose, such as . . . intent . . . . KRE 404(b)(1).
12 David Long testified that, on the morning of January 1, 2014, Smith told
him that "[she] could get rid of [Schreiber] with like acetone." Vanessa
Schreiber testified that, shortly thereafter, Smith alluded to "doing something
to Eric and getting rid of him for good and [s]he knew how to do it by using
acetone." The Commonwealth offered these statements to negate Smith's self-
defense claim and to show that Schreiber's murder was intentional. We note
that, at trial, Smith denied making both statements.
Smith argues that, because her statements used the term "acetone" and
Schreiber was ultimately stabbed to death, her statements were irrelevant.
However, we agree with the Commonwealth that the most pertinent aspect of
these statements is not the use of the word "acetone," but use of the phrase
"get rid of," which showed Smith intended to kill Schreiber before she was
allegedly attacked by him. Therefore, Smith's statements, which the
Commonwealth offered to negate Smith's self-defense claim and to show her
intent to kill Schreiber, were admissible under KRE 404(b)(1). Furthermore, we
find that the statements had a tendency to make Smith's justification for killing
Schreiber more or less probable than it would have been without the
statements; therefore, the statements were relevant. See KRE 401.
Accordingly, we hold that the trial court did not err by admitting Smith's
statements.
E. The Commonwealth's statements on cross-examination, while improper, did not rise to palpable error.
During its cross-examination, the Commonwealth engaged in the
following exchange with Smith: 13 Commonwealth Attorney: So, you never said the statement, "I can get rid of him"?
Smith: No, I didn't.
Commonwealth Attorney: Ok. So this family [the Schreibers] that has accepted you, that has taken you in as one of their own, they're all lying?
Smith: That is correct.
Commonwealth Attorney: Ok. Not you, the one facing life in prison?
Smith: They're lying.
The Commonwealth concedes that these questions were improper. See Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997). However, it notes that
this issue was not preserved, which Smith concedes. Because the issue was
not preserved, we examine it to determine if the error was palpable. 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." Id. Even then,
relief is appropriate only "upon a determination that manifest injustice resulted
from the error." Id. "For an error to rise to the level of palpable, it must be
easily perceptible, plain, obvious and readily noticeable." Doneghy v.
Commonwealth, 410 S.W.3d 95, 106 (Ky. 2013) (internal citation omitted).
"When we engage in palpable error review, our focus is on what happened and
whether the defect is so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process." Baumia v. Commonwealth, 402
S.W.3d 530, 542 (Ky. 2013) (internal citation omitted).
14 Here, the jury was presented with a significant amount of evidence which
could lead it to a reasonable finding of guilt. The jury heard that: 1) Smith had
discussed killing Schreiber prior to his death; 2) Smith was extremely
uncomfortable around Schreiber; 3) Smith gathered kitchen knives after her
final dispute with Schreiber; 4) Schreiber died of seventy-two stab wounds to
his body; 5) the kitchen knives Smith took were found in the back yard next to
Schreiber's body; 6) the police arrived to find Smith washing blood from her
hands and arms; and 7) Smith admitted to multiple witnesses at the scene that
she stabbed Schreiber. Although the Commonwealth's statements to Smith
were improper, given the totality of the evidence against Smith, we discern no
substantial possibility that the result would have been any different had the
Commonwealth refrained from asking those questions. See RCr 10.26.
Therefore, although error, the Commonwealth's questioning of Smith was not
palpably so.
III. CONCLUSION
For the foregoing reasons, the judgment of the Kenton Circuit Court in
this matter is affirmed.
All sitting. All concur.
15 COUNSEL FOR APPELLANT:
Julia Karol Pearson Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Thomas Allen Van De Rostyne Assistant Attorney General