Rico L. Cavanaugh v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: December 14, 2022
• Docket: 2021 SC 0441
• Status: Unknown

Opinion

RENDERED: DECEMBER 15, 2022 TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0441-MR

RICO L. CAVANAUGH APPELLANT

ON APPEAL FROM TRIGG CIRCUIT COURT V. HONORABLE C.A. WOODALL III, JUDGE NO. 19-CR-00057

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CONLEY

AFFIRMING

A Trigg Circuit Court jury found Rico Cavanaugh guilty of first-degree

assault and being a persistent felony offender in the first degree. He was

sentenced to thirty-four years in prison. Cavanaugh appeals to this Court as a

matter of right.1 He claims the trial court erred first, in its application of

Marsy’s Law and second, when it refused to grant lesser-included instructions

to the charge of assault in the first-degree. Finding no error, we hereby affirm

the judgment of the trial court.

I. FACTS AND PROCEDURAL BACKGROUND

On June 8, 2019, Cavanaugh and his wife, Missy Cain, went to his

mother’s house and waited for her to return home. Upon her arrival they

1 Ky. Const. § 110(2)(b). planned to visit Cavanaugh’s cousin who had recently lost a son. Missy and

Cavanaugh waited for his mother in the back bedroom of his mother’s house

watching television, while Missy scrolled through Facebook on her cellphone.

Unexpectedly, Cavanaugh rolled on top of her and started choking her.

He released her and then got up and asked her if she wanted to go outside and

smoke. Missy followed him into the kitchen where he picked up a knife and

locked the door. He turned around and accused her of cheating on him.

Despite her fervent denials, Cavanaugh said “There is no other way, Missy. And

there’s no sense in screaming because can’t nobody hear you.”

Missy stood there in the kitchen while Cavanaugh stabbed her twenty-six

times. He pierced every major organ with the exception of her heart. After he

finished stabbing her, he repeatedly punched the left side of her body breaking

eight of her ribs. He told her to “Go over and lay in front of the washer and

dryer and bleed to death, bitch.” As she lay on the floor bleeding, she begged

him to call 911. Cavanaugh eventually relented and called.

When the police arrived, Cavanaugh admitted to stabbing Missy. The

police arrested him and charged him with assault in the first degree.

Cavanaugh was indicted for assault in the first degree and being a persistent

felony offender in the first degree. He was arraigned in Trigg Circuit Court on

September 12, 2019. At trial, the Commonwealth requested that Missy be

permitted to remain in the courtroom during the trial despite the invocation of

KRE2 615, the rule mandating the separation of witnesses. Cavanaugh

2 Kentucky Rules of Evidence. 2 objected but the trial court overruled him. The trial court allowed Missy to be

present during the trial, noting that Marsy’s Law allows a victim to be present

during the proceedings. At the close of evidence, Cavanaugh tendered

instructions for assault in the second-degree and assault under extreme

emotional disturbance, which the trial court rejected. There was a one-day trial

on August 9, 2021, and Cavanaugh was found guilty on both counts. The jury

recommended a sentence of thirty-four years, which the trial court then

imposed. We now address the merits of the appeal.

II. ANALYSIS

Cavanaugh argues the trial court erred when it allowed Missy to be

present during the trial and observe other witnesses’ testimony prior to her

testifying in this case. Cavanaugh also claims the trial court erred when it

referred to Missy as a “victim” in front of the jury. Additionally, he argues the

trial court should have instructed the jury on lesser-included offenses. Finally,

Cavanaugh urges this Court to reverse under the cumulative error doctrine.

A. The trial court did not err in its application of Marsy’s Law.

Marsy’s Law, as it is commonly known, is a constitutional amendment

that was ratified by the voters in the fall of 2020. It is codified as Section 26A

in Kentucky’s Constitution and entitled “Rights of victims of crimes.” At issue

in this case is the right of the victim to be “present at the trial and all other

proceedings, other than grand jury proceedings, on the same basis as the

accused.” Ky. Const. § 26A.

3 Cavanaugh argues that this constitutional provision runs afoul of KRE 615.

This rule is widely recognized as an important tool that undergirds the truth-

seeking process in the judicial system. The purpose of the rule is to ensure that

witnesses do not alter their testimony based on the testimony of other

witnesses. Hatfield v. Commonwealth, 250 S.W.3d 590, 594 (Ky. 2008). KRE

615 calls for the separation of witnesses and states:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:

(1) A party who is a natural person;

(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or

(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

While Cavanaugh is correct that KRE 615 and Section 26A of the Kentucky

Constitution conflict with each other he is wrong when he argues KRE 615

should take precedence over a provision of the Kentucky Constitution. Instead,

this Court has held that “constitutional rights prevail over conflicting statutes

and rules.” Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky.2003).

Normally this Court addresses constitutional rights in the context of

vindicating the rights of the accused. However, this principle remains the same

where, under Marsy’s Law, a victim has constitutional rights as well.

Importantly, however, in the event an application of Marsy’s Law should

violate a defendant’s federal constitutional rights, then this Court would be

compelled to remedy such a violation. U.S. Const. art. VI, cl. 2. Cavanaugh, 4 however, cannot point to any authority stating KRE 615 is constitutionally

required and is unable to point to any prejudice caused by the trial court

permitting Missy to remain in the courtroom. Missy was the only witness who

testified to the events leading up to the assault and the assault itself. We are at

a loss to understand how Missy’s testimony could have been influenced by the

testimony of the other witnesses because she was the only witness at trial who

was present when she was assaulted.3

Cavanaugh also contends that the trial court erred by calling Missy a

victim. He argues the trial court created an inference of guilt when it called

Missy a “victim.” At the beginning of the trial, when referring to Missy, the trial

court explained to the jury:

And the other exception is that the victim of a crime does have a right to be present under a relatively new statute and constitutional amendment, and so, she may come and go in the courtroom as she sees fit.

Cavanaugh objected to Missy’s presence in the courtroom. However, he did not

object when the trial court referred to her as a “victim.” Nor did Cavanaugh

request an admonition from the court instructing the jury not to make an

inference against Cavanaugh’s presumption of innocence.4 In fact, defense

counsel referred to Missy as a victim some thirty minutes later during his

questioning of a witness.

3While this case raises no issues of prejudice to Cavanaugh, there may arise concerns for due process relating to the testimony of victims in the future. The best course of action is for trial courts to have the victim testify first so that no question of improper influence on their testimony occurs. KRE 611. 4 The trial court instructed the jury to afford Cavanaugh the presumption of

innocence when deliberating on the guilt and persistent felony offender phase. 5 As such, this issue is unpreserved. Consequently, this Court will review

this issue using the palpable error standard under RCr5 10.26. Early v.

Commonwealth, 470 S.W.3d 729, 737 (Ky. 2015). For an error to be palpable it

must be “easily perceptible, plain, obvious and readily noticeable.” Brewer v.

Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). An unpreserved error may be

corrected on appeal if failure to do so would cause a manifest injustice.

Commonwealth v. Goss, 428 S.W.3d 619, 626-27 (Ky. 2014). This is an error

that if it remained uncorrected, there would be a likelihood of a different result,

or call into question the defendant’s right to due process. Id. at 627.

This Court has held that it does not unduly prejudice the defendant or

invade the province of the jury when a prosecutor calls an alleged victim a

“victim” in front of the jury and that it is no more prejudicial to the defendant

than the reading of the indictment. Whaley v. Commonwealth, 567 S.W.3d

576, 590 (Ky. 2019). And yet trial courts should refrain from referring to an

alleged victim as a “victim.” Trial courts must exercise great caution when

balancing the rights of an alleged victim under Marsy’s Law and the

fundamental rights of the accused.

Here there was no palpable error. Cavanaugh’s argument that the trial

court upended the presumption of innocence when it called Missy a victim

holds little water when Cavanaugh also referred to her as a “victim.” In fact,

counsel for Cavanaugh conceded during his opening statement that

Cavanaugh assaulted Missy. While counsel adopted that approach as a

5 Kentucky Rules of Criminal Procedure. 6 plausible trial strategy to argue for lesser-included offenses, it is a concession

that Missy was certainly a victim of some crime. The evidence was so

overwhelming for Cavanaugh’s guilt that there is no likelihood of a different

result, therefore the trial court did not commit palpable error which would

require reversal.

B. The trial court did not abuse its discretion when it declined to instruct the jury on lesser-included offenses.

Cavanaugh next argues that the trial court erred when it refused to

instruct the jury on assault under extreme emotional disturbance and assault

in the second-degree. We review the trial court’s decision declining to instruct

the jury on lesser-included offenses using the abuse of discretion standard.

Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010) (citing Crain v.

Commonwealth, 257 S.W.3d 924 (Ky. 2008)). A trial court abuses its discretion

when its decision is “arbitrary, unreasonable, unfair, or unsupported by sound

legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

The trial court’s duty is to instruct the jury on the whole law of the case

consistent with the evidence presented at trial. Taylor v. Commonwealth, 995

S.W.2d 355, 360 (Ky. 1999). Defendants are entitled to an instruction on any

defense that is supported by the evidence. Hayes v. Commonwealth, 870

S.W.2d 786 (Ky. 1993). This includes instructing on lesser-included

offenses. Swain v. Commonwealth, 887 S.W.2d 346, 348 (Ky. 1994). And

though “a lesser included offense is not a defense within the technical meaning

of those terms as used in the penal code, it is, in fact and principle, a defense

7 against the higher charge.” Slaven v. Commonwealth, 962 S.W.2d 845, 856 (Ky.

1997). And yet an instruction for a lesser-included offense is only required

if, “considering the totality of the evidence, the jury might have a reasonable

doubt as to the defendant's guilt of the greater offense, and yet believe beyond

a reasonable doubt that the defendant is guilty of the lesser offense.” Caudill v.

Commonwealth, 120 S.W.3d 635, 668 (Ky. 2003).

Cavanaugh first contends that the trial court erred by not instructing the

jury on assault under extreme emotional disturbance (EED). He argues the jury

could have reasonably concluded that Cavanaugh snapped because he thought

that Missy was potentially cheating on him. This Court has defined extreme

emotional disturbance as:

a temporary 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 is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.

McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986). An EED

defense is essentially the adoption by the legislature of the concept of a “crime

of passion.” Driver v. Commonwealth, 361 S.W.3d 877, 888 (Ky. 2012). A

necessary component to EED is adequate provocation, a concept often referred

to as a “triggering event.” Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky.

1991). The event that triggers the violence must be sudden and uninterrupted.

8 Id. And yet the triggering event must be based on some “definite, non-

speculative evidence.” Padgett v. Commonwealth, 312 S.W.3d 336, 341 (Ky.

2010).

Cavanaugh urges this Court to regard his statement accusing Missy of

conducting an affair as a sufficient triggering event to establish EED when he

assaulted his wife. And yet since Cavanaugh did not testify, the adequacy of

the evidence of this affair remains speculative at best. Nothing in the record

suggests there actually was an affair, how he learned of the affair, and how

long was he aware of Missy’s purported affair. Without a sufficient factual

basis, EED should not be used as a cudgel to defame the victim while

simultaneously hoping to diminish one’s culpability at trial. When it refused to

instruct the jury on assault under extreme emotional disturbance, the trial

court’s decision was well within its discretion.

Cavanaugh also claims the trial court should have instructed the jury on

assault in the second degree. Cavanaugh is not disputing that Missy sustained

a serious physical injury. Instead, he contends that the jury, if so instructed,

could have reasonably believed that Cavanaugh acted wantonly, rather than

intentionally. Under KRS 508.020(1)(c) a person is guilty of assault in the

second degree when:

He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

The Kentucky General Assembly defines “wanton” as:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and 9 unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.

KRS 501.020(3). It is difficult for this Court to square Cavanaugh’s contention

that he acted wantonly when the uncontroverted evidence presented at trial

shows that he strangled his wife in the back bedroom of his mother’s house.

After he abruptly stopped, he then led her into the kitchen where he picked up

a knife. He locked the door, presumably to prevent her escape, and accused

her of cheating on him, saying “There is no other way, Missy. And there’s no

sense in screaming because can’t nobody hear you.” After stabbing her twenty-

six times and breaking eight of her ribs, he then told her to “bleed to death.”

When the trial court heard this evidence, it was well within its discretion to

reject any jury instructions that included “wanton” as the mental state. The

evidence demonstrates Cavanaugh’s “conscious objective”6 was to inflict on

Missy a serious physical injury. Therefore, the trial court did not abuse its

discretion when it declined to instruct the jury on assault in the second-degree.

Since we have found no error on the part of the trial court, we will not

undertake a cumulative error analysis as urged by Cavanaugh under Brown v.

Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).

6 KRS 501.020(1)- Intentionally -- A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct. 10 III. CONCLUSION

For the foregoing reasons, we find that the Trigg Circuit Court committed

no error in its application of Marsy’s Law by permitting the victim to be present

at trial and find no palpable error requiring reversal when the trial court

referred to Missy as a “victim.” Likewise, we find the trial court acted within its

sound discretion when it declined to instruct the jury on assault under extreme

emotional disturbance and assault in the second degree. The judgment of the

trial court is hereby affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT: Robert C. Yang Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Cameron Attorney General of Kentucky

Matthew F. Kuhn Solicitor General