IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : JUNE 17, 2010 NOT TO BE PUBLISHED
,~Uyrrmr (~Vurf Jaf rnfurh~ 2008-SC-000847-MR
SHARON DALE GREER APPELLANT
ON APPEAL FROM LINCOLN CIRCUIT COURT V. HONORABLE DAVID A . TAPP, JUDGE NO . 2008-CR-00005
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING AND REMANDING WITH DIRECTION PURSUANT TO RCr 10.10
Sharon Dale Greer appeals as a matter of right from a judgment of the
Lincoln Circuit Court entered upon a jury verdict convicting him of first-degree
assault, first-degree wanton endangerment, and of being a second-degree'
persistent felony offender (PFO) . Greer's assault conviction stems from his
shooting his ex-girlfriend two times and his wanton endangerment conviction
stems from his firing the gun in close proximity to the assault victim's young
granddaughter. In accord with the jury's recommendation, Greer received an
enhanced sentence of life imprisonment for the assault conviction and ten
1 Although the final judgment states that Greer was convicted of being a first- degree PFO, this appears to be a typographical error as it is clear from the record that Greer was indicted and found guilty of being a second-degree PFO. years imprisonment for the endangerment conviction . Although the jury
recommended that the sentences run consecutively, the trial court properly ran
the sentences concurrently . See Mabe v.. Commonwealth, 884 S.W .2d 668 (Ky.
1994) .
On direct appeal to this Court, Greer raises three claims of error: 1) that
the trial court erred in refusing to give an instruction on extreme emotional
disturbance (EED) ; 2) that KRE 404(b) evidence of prior bad acts was
improperly admitted; and 3) that the Commonwealth offered false evidence
during the sentencing phase of Greer's trial . We reject each of the foregoing
contentions and affirm Greer's conviction and sentence .
However, we note that the judgment appears to contain a clerical error
and direct the trial court to correct the error set out below pursuant to RCr
10 .10 .
RELEVANT FACTS
Appellant, Sharon Dale Greer, and the assault victim, Sandra Mullins,
began a romantic relationship in 2006. The couple soon began living together,
at first in Greer's camper, and later, part-time in the camper and part-time in a
home owned by Mullins, which the two were remodeling. The remodeling, in
part, was for the purpose of enhancing access for Mullins' ailing aunt, who
eventually moved in so that Mullins could care for her. After Mullins' aunt
moved into the home, the relationship between Greer and Mullins became
increasingly strained, and ultimately terminated with Mullins' request for Greer
to move out in November 2007. Greer moved into the camper on the same property temporarily, but Mullins forced him to move out of the camper by
cutting off the electricity. At that point, Greer reluctantly moved off the
property, but he continued to contact Mullins frequently with pleas of
reconciliation and often drove back and forth on the road in front of Mullins'
home . In the meantime, Mullins continued to care for her aunt around the
clock during the week . On the weekends, Mullins' son and daughter-in-law
would relieve her, and she would stay in the camper located on the same
property.
In early January 2008, Mullins' daughter-in-law was in the house and
the electricity started flashing on and off. She called Mullins to report the
problem and Mullins drove to the residence, bringing her two-year-old
granddaughter with her. When Mullins exited the vehicle, but before she got
her granddaughter out of the car, she saw Greer "hunkered beneath the
porch ." Greer then pointed a sawed-off shotgun at her and began ranting
about why she had left him. Mullins begged Greer for her life and all the while
Mullins' granddaughter, still in the car just a few feet away, was screaming.
Mullins' daughter-in-law came out onto the porch, but complied with Mullins'
immediate request to go back into the house, lock the door, and call the police .
After assuring Greer that she would not call the police if he let her go, Mullins
began to back away from Greer, at which point he shot her. After Greer loaded
another shell and shot Mullins a second time, she pretended to be dead and
Greer fled the scene . Two police officers responded to the scene . One of the officers dialed a
cell phone number that was believed to be Greer's. Someone picked up the call
but did not say anything. The officer proceeded to identify himself and ask for
Greer. The officer reminded Greer that the two of them knew each other and
then told Greer that he "needed to take care of this." Greer replied, "How's
Sandy [Mullins]?" The officer answered that Mullins was being transported to
the hospital for her injuries, but that she was alert. He then tried to get Greer
to divulge his location before things got any worse . Greer responded, "I'm not
going back," and ended the call.
The police soon located Greer's abandoned vehicle and began a search of
the nearby wooded area. One of the officers discovered Greer sitting on a log
with a gun resting on his leg. Although it is unclear whether the act was
deliberate or accidental, Greer shot himself in the face and lost an eye as a
result.
Subsequently, Greer was charged with first-degree assault for the
shooting of Mullins and first-degree wanton endangerment for firing the gun in
close proximity to Mullins' granddaughter . The jury found Greer guilty of both
offenses and found him guilty of being a second-degree PFO . In accord with
the jury's recommendation, Greer was sentenced to life imprisonment for the
assault conviction and ten years imprisonment for the wanton endangerment
conviction . Greer seeks reversal of his convictions and sentence, urging that
he was entitled to an instruction on extreme emotional disturbance (EED) . He
also asserts that admission of a statement that should have been excluded by KRE 404(b) resulted in reversible error. Finally, Greer argues that certain
statements elicited by the prosecutor regarding good-time credits constitute
palpable error. After careful review, we find no merit in Greer's claims of error.
ANALYSIS
I. There Was No Error in the Trial Court's Refusal to Instruct the Jury on Extreme Emotional Disturbance.
Certain charged offenses may be reduced in degree if the offense was
committed under the influence of extreme emotional disturbance. KRS
508 .040(1) . One of those offenses is first-degree assault where the charge is
based upon the theory that the defendant intentionally caused serious physical
injury to another by means of a deadly weapon or dangerous instrument . KRS
508 .010(1)(a) . Because Greer was charged with first-degree assault upon this
theory, he contends that he was entitled to an EED instruction. However, even
though the statute provides that a defendant so charged "may establish in
mitigation that he acted under the influence of extreme emotional
disturbance," KRS 508 .040(1), entitlement to an EED mitigation instruction is
not automatic, but rather, is dependent upon the presentation of evidence
sufficient to support such instruction. Talbott v. Commonwealth, 968 S .W.2d
76 (Ky. 1998) . In explaining the concept of EED, this Court has stated:
There must be evidence that the defendant suffered "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from [an] impelling force of the extreme emotional disturbance rather than from evil or malicious purposes ." McClellan v. Commonwealth, 715 S.W .2d 464, 468-69 (Ky. 1986) . "[T]he event which triggers the explosion of violence on the part of the criminal defendant must be sudden and uninterrupted ." Foster v. Commonwealth, 827 S .W.2d 670, 678 (Ky. l. 991) .
Greene v. Commonwealth, 197 S .W.3d 76, 81 (Ky. 2006) .
In the case at bar, Greer presented no evidence of a triggering event nor
was there evidence that he suffered an enraged, inflamed, or disturbed state of
mind that compelled his criminal actions . Greer did not take the stand, but he
alleges that sufficient evidence of EED was introduced through other witnesses.
Specifically, he highlights other witnesses' testimony concerning his persistent
attempts to communicate with Mullins after their breakup, aimed at
persuading her to reconcile, as well as testimony that he was seen frequently
driving up and down the road in front of Mullins' home . Lastly, Greer points to
Mullins' testimony, describing Greer's look or demeanor immediately prior to
the shooting as "wild ."
We agree with the trial court that Greer failed to present evidence
sufficient to warrant an EED instruction. The trial court explained :
The evidence does not demonstrate that he was enraged, inflamed or disturbed. Other than the evidence that Greer appeared "wild," a characterization of his appearance by Mullins in the moments before Greer shot her the first time, no evidence even hints at a bases for an EED instruction . . . . No testimony establishes that Greer acted uncontrollably . To the contrary, at one point, immediately prior to the shooting, Greer seemed to objectively weigh the advantages of not shooting Mullins in exchange for her promise not to notify law enforcement of his threatening conduct . . . . Moreover, the evidence establishes that in the period preceding the shooting, though the parameters of the period cannot be identified with certainty, Greer actually laid in wait for Mullins to appear. Uncontroverted evidence suggests he parked his vehicle some distance away, that he concealed himself in the storage shed, and, under the porch immediately adjacent to the house, and that he did all of those things with the forethought to arm himself beforehand .
Greer argues that the mere fact that he lay in wait, implying premeditation,
does not automatically preclude entitlement to an EED instruction. We agree
provided that competing evidence is introduced tending to show EED . Holland
v. Commonwealth, 114 S .W .3d 792 (Ky. 2003) . But, again, we must agree with
the trial court that such evidence was not presented here .
In his brief to this Court, Greer identifies the triggering event for his EED
as "a traumatic breakup" or "rejection ." However, "evidence of mere `hurt' or
`anger' is insufficient to prove extreme emotional disturbance ." Talbott, 968
S.W.2d at 85 (citing Thompson v. Commonwealth, 862 S .W.2d 871 (Ky. 1993)) .
Furthermore, there must be a reasonable explanation or excuse for the claimed
EED . McClellan v. Commonwealth, 715 S .W.2d 464 (Ky. 1987) . The
reasonableness of the explanation or excuse "is to be determined from the
viewpoint of a person in the defendant's situation under the circumstances as
the defendant believed them to be ." KRS 507 .020(1) (a) . However, Greer offered
no evidence that his perception of the situation or circumstances was somehow
altered . A romantic breakup that upset the defendant, even if traumatic, is
simply insufficient standing alone, either to constitute a triggering event or to
supply a reasonable explanation for the purported EED.
Greer further attempts to support his argument by comparing his case to
Holland v. Commonwealth, supra . We see little similarity in the two cases . In Holland, the defendant shot her boyfriend and his ex-wife, who were attempting
to reconcile . The evidence supporting an EED instruction for Holland included
her recent repeated suicide attempts and expert medical testimony that the
prescribed pain medications that she was taking at the time of the shootings as
well as diagnosed psychiatric conditions could have altered her perception .
Further, her behavior in the few days preceding the shooting supported the
EED instruction . Specifically, Holland was taking the pain medication as a
result of a recent back surgery . Although her boyfriend (ultimately one of the
victims) promised to stay with her during her recovery, she awoke one night
and could not find him . She drove to his apartment and found him in bed with
his ex-wife . The confrontation ended when her boyfriend physically threw her
down the stairs and out of the house . Holland went to the hospital for her
injuries and the evidence revealed that she had proceeded to run errands the
day thereafter while still in her hospital gown. There was also testimony that
on the morning of the shooting, Holland was groggy and incoherent . After the
shooting, Holland fled to her sister's residence in another state, but upon
arrival, immediately called the Kentucky police and confessed to the shootings .
Given the foregoing, it is understandable that this Court determined that
Holland should have received an instruction on EED .
We fail to discern, however, anything but a stark contrast between the
evidence presented in Holland and the evidence, or lack thereof, presented
here. Although Holland did explain that the notion of a triggering event was
broad enough to include "the cumulative impact of a series of related events," id. a t 807 (quoting Fields v. Commonwealth, 44 S.W.3d 355, 3,59 (Ky. 2001)),
there was, in fact, evidence presented in that case of an uninterrupted series of
emotionally charged events, each one potentially increasing Holland's
emotionally disturbed state of mind . We do not find Holland to be persuasive
here where the evidence demonstrated nothing more than an uninterrupted
reaction to a single occurrence - a bad breakup . At best, the "series" of events
would be Mullins' ejecting Greer from the property and refusing to reconcile
with him. Nor do we agree with Greer that the act of shooting himself when
confronted by the police officer in the woods was sufficient to support an EED
instruction . The officer who witnessed the shot testified that he believed the
gun accidentally fired, but conceded on cross-examination that it may have
been deliberate . Regardless, there was no evidence presented of a triggering
event and there, likewise, was no evidence presented to support that Greer's
purported EED was the result of a reasonable explanation or excuse, even from
Greer's own viewpoint. Accordingly, we affirm the trial court's ruling as Greer
did not present evidence sufficient to warrant an instruction on EED.
II. There Was No Error in the Admission of Greer's Statement that "I'm not going back."
As noted above, when the officer called Greer's cell phone just after the
shooting and asked for Greer's location, Greer's response just before ending the
call was "I'm not going back." Greer contends that the admission of this
statement was improper under KRE 404(b) because it suggested that Greer had
previously been incarcerated . This issue is preserved by Greer's
contemporaneous objection to introduction of the statement . KRE 404(b) prohibits evidence of other crimes, wrongs, or bad acts offered to prove the
character of a person . However, we agree with the trial court that, absent
additional evidence suggesting that the statement was made in reference to a
prior incarceration, it was too ambiguous to be characterized as a reference to
a prior bad act under KRE 404(b). As the trial court pointed out, "back" could
have had multiple meanings, such as "back to the scene of the crime," rather
than "back to prison ." Further, even accepting Greer's argument that the likely
interpretation of the statement suggested that Greer had been incarcerated in
the past, this vague and fleeting reference would not constitute reversible error.
The admission of evidence is subject to the trial court's discretion, Matthews v.
Commonwealth, 163 S.W.3d 11 (Ky. 2005), and we discern no abuse of that
discretion here .
III. There Was No Error in the Introduction of Evidence Concerning Good- Time Credit in the PFO Phase of Trial.
Greer contends that the Commonwealth used false evidence when it
informed the jury that he would be entitled to good-time credit when, in fact,
his status as a violent offender, KRS 439 .3401(4) precludes him from receiving
any good-time credit. A review of the record confirms the Commonwealth's
position on this issue to the effect that Greer has mischaracterized the
proceedings by failing to provide the proper context for the testimony cited in
support of his argument . Specifically, at defense counsel's request, Greer's
proceedings were trifurcated . The first phase was the guilt phase for the
assault and endangerment charges . The second phase was the guilt phase for the PFO charge . And the final phase consisted of penalty determination on
both the underlying offenses as well as the PFO enhancement .
During the second phase (PFO guilt phase), the Commonwealth elicited
testimony from a probation and parole officer concerning good-time credit.
However, two of the required elements of the PFO charge were that Greer had
previously been convicted of a felony and that he had completed service of the
sentence for that felony within five years prior to the date he committed the
current felonies . KRS 532.080(2) . The testimony concerning good-time credit
was elicited for the purpose of establishing Greer's date of release or serve out
on a previous manslaughter sentence and to explain to the jury how Greer
served out his previously imposed sentence before the full period of time
imposed by the sentence had elapsed. There was no suggestion during this
testimony that Greer would be eligible for good-time credit during incarceration
for the current offenses. And, in fact, during the third phase (the penalty
phase), the Commonwealth elicited testimony concerning Greer's status as a
violent offender and the relevance of this status inasmuch as it would require
Greer to serve eighty-five percent (85%) of any sentence imposed before he
would be eligible for parole . There was no mention of good-time credit in the
penalty phase .
In his reply brief to this Court, Greer maintains that his argument was
not a mischaracterization because the good-time credit evidence offered in the
PFO phase would have left the jury with the impression that Greer would be
entitled to good-time credit for the current offenses . Specifically, the previous felony was also a violent offense, but at the time of Greer's previous conviction,
violent offenders were not precluded from the receipt of good-time credit .
Because the jury was not made aware of this change in the law, Greer argues
that the good-time credit testimony misled the jury to assume that Greer was
eligible for good-time credit despite his violent offender status . At any rate,
Greer concedes that the issue is unpreserved and requests palpable error
review .
To constitute palpable error, a defendant must demonstrate the
"probability of a different result or error so fundamental as to threaten a
defendant's entitlement to due process of law ." Martin v. Commonwealth, 207
S .W .3d l, 3 (Ky. 2006) . Greer's assertions come nowhere near meeting this
standard . Any connection between the evidence offered to prove the PFO
charge and its speculative impact upon the jury in the penalty phase is remote
at best. Not only has Greer failed to support his assertion that the
Commonwealth's evidence was "false," he has failed to offer more than mere
speculation that the jury may have been misled . Greer could have easily
clarified the issue of which he now complains during the penalty phase .
However, notwithstanding his failure to offer such clarification, the speculation
that the jury made the remote connection that Greer now discerns is simply
insufficient to merit relief.
IV. The Trial Court is Directed to Correct a Clerical Error in the Judgment.
Although not noticed by either party, the trial court's judgment twice
refers to Greer's first-degree PF4 conviction when, in fact, Greer was adjudged
12 a PFO in the second degree . Although Greer was indicted on two counts of
second-degree PFO, implying that he may have had more than one prior felony
conviction, in which case a first-degree PFO charge could have been
appropriate, evidence of only one prior felony conviction was introduced and
the jury was properly instructed on second-degree PFO. Having verified in the
record that the jury was also properly instructed on sentencing options in
accord with Greer's second-degree PFO status, the erroneous designation of
first-degree PFO in the judgment appears to be a mere clerical error. As the
indictment, instructions, jury's verdict, and sentencing comport with second-
degree PFO, the error could not have been "the deliberate result of judicial
reasoning and determination," but rather a clerical error, subject to correction
by the trial court at any time under RCr 10 .10 . Hutson v. Commonwealth, 215
S .W .3d 708 (Ky. App . 2006) . RCr 10 .10 allows the trial court to correct a
clerical error in its judgment at any time, even while on appeal with leave of the
appellate court . Accordingly, we affirm the trial court's judgment in all
respects, but direct the trial court to correct the clerical error pursuant to RCr
CONCLUSION
The trial court properly determined that Greer failed to present evidence
warranting an instruction on extreme emotional disturbance . Additionally,
Greer's vague statement to the police officer, "I'm not going back," did not
introduce evidence of a prior bad act and, therefore, was not inadmissible
under KRE 404(b) . Nor was there error, let alone palpable error, in the
13 admission of testimony concerning good-time credit, particularly where the
testimony was properly elicited to prove an element of the PFO offense during
the second phase of the three phase trial . Accordingly, Greer's convictions and
sentences are affirmed but the judgment and sentence must be vacated and
remanded for correction . Pursuant to RCr 10 .10, the trial court is directed to
correct the clerical error in the judgment, replacing first-degree with second-
degree in reference to Greer's PFO status .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Erin Hoffman Yang Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway Attorney General of Kentuc
Jason Bradley Moore Assistant Attorney General Office for Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601-8204