IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 18, 2019 NOT TO BE PUBLISHED
2018-SC-000017-MR
WILLARD CALHOUN APPELLANT
ON APPEAL FROM GREEN CIRCUIT COURT V. HONORABLE ALLAN RAY BERTRAM, JUDGE NO. 16-CR-00017
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Green County jury convicted Appellant, Willard Calhoun, of one count
first-degree manslaughter and being a first-degree persistent felony offender
(PFO). The jury recommended a sentence of ten years’ imprisonment enhanced
to twenty-five years. The trial court accepted the jury’s recommendation and
sentenced him accordingly. Calhoun now appeals, arguing five points of error:
(1) the trial court prevented him from presenting his defense by excluding
evidence of the victim’s violent nature; (2) the court erred by allowing a
photograph of the victim and his family into evidence; (3) the court erred in allowing duplicative autopsy photographs; (4) the court violated RCr1 9.74 by
allowing a diagram of Calhoun’s home into the jury room; and (5) cumulative
error. After careful review, we affirm the judgment and sentence.
I. BACKGROUND
Around midnight on June 15, 2016, Calhoun stabbed and killed
Gerald Scott with a pocket knife while the two were fighting at Calhoun’s
home in Green County, Kentucky. Calhoun’s girlfriend, Christina Pica,
and Gerald’s wife, Shaun Scott, were present that evening. Both women
testified at trial that an altercation occurred between Calhoun and
Gerald. Christina testified that Gerald barged into the house, confronted
Calhoun, said he was there to fight Calhoun, punched Calhoun in the
face, and then placed him in a chokehold. Shaun testified that she was
in the bathroom while the two men were fighting and that when she
returned, Gerald was dead on the kitchen floor. Another individual,
Trevor Tucker, was also present during the altercation. He testified that
Calhoun stabbed Gerald after Gerald threw a pot at him and then placed
him in a tight headlock.
Calhoun did not testify. However, portions of a recording of his
police interrogation were played for the jury wherein he claimed self-
defense. During his interrogation, Calhoun said that, when they were
kids, Gerald asked Calhoun to have sex with him. According to Calhoun,
1 Kentucky Rules of Criminal Procedure
2 he believed that this old accusation is what led to the physical altercation
resulting in Gerald’s death.
More specifically, Calhoun told Christina about Gerald’s alleged
sexual proposition. Christina then told Gerald’s wife, Shaun, who then told
Gerald. Shaun testified that after she mentioned this to Gerald, they drove to
Calhoun’s home to confront him. She informed the investigating officers that
Gerald was going over there to “whoop his ass.” Christina echoed this concern.
Shaun further testified that she and Gerald had been consuming alcohol that
evening. Methamphetamine and other drugs were subsequently discovered in
Gerald’s system.
II. ANALYSIS
A. EVIDENTIARY ISSUES
Although Calhoun raises five primary issues on appeal, four of these
issues concern various alleged evidentiary errors and, therefore, will be
addressed together. A trial court’s decision whether to admit evidence is
reviewed for an abuse of discretion. Matthews v. Commonwealth, 163 S.W.3d
11, 19 (Ky. 2005). Abuse of discretion occurs if “the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Police Interrogation Recording
Prior to trial, the Commonwealth filed a motion in limine to exclude
portions of an audio recording of Calhoun’s police interrogation wherein he
discussed Gerald’s violent nature and, specifically, his violence against Shaun.
3 The court granted the Commonwealth’s motion over Calhoun’s objection,
and the interrogation recording was redacted prior to being played for the
jury. The defense also raised this issue in support of its motion for a
new trial and for a judgment notwithstanding the verdict. Therefore, this
issue is properly preserved.
Calhoun cites Saylor v. Commonwealth in support of his argument
that these statements were admissible in support of his self-defense
claim. 144 S.W.3d 812 (Ky. 2004). Saylor held that “[g]enerally, a
homicide defendant may introduce evidence of the victim’s character for
violence in support of a claim that he acted in self-defense or that the
victim was the initial aggressor.” Id. at 815 (citations omitted). In
addition to general reputation or opinion evidence, evidence of specific
violent acts by the victim may be admitted only if “the defendant so
feared the victim that he believed it was necessary to use physical force .
. . ‘provided that the defendant knew of such acts, threats, or statements
at the time of the encounter.’” Id. at 815-16 (emphasis added) (citing
Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.15[4][d], at
105-106 (4th ed. 2003) (Lawson, Kentucky Evidence Law)).2 See also
2 “Though widely recognized as maybe the most probative of all character evidence, [specific acts) are the most troublesome of the three methods and the one that is subjected to the greatest controls.” Lawson, Kentucky Evidence Law § 2.25[ 1], at 116-17 (5th ed. 2013).
4 KRE3 405 (“Methods of Proving Character”).4 This principle has been
consistently applied in our case law. Ordway v. Commonwealth, 391
S.W.3d 762, 779 at n. 9 (Ky. 2013). Unlike the present case, we
concluded in Ordway that the victim’s statement while holding a gun to
Appellant's head: “Give it up, you know what time it is, or you're going to
die[,]” was clearly admissible under this principle. Id. The Court
reasoned that the victim’s statement was “plainly a threat that would
have reasonably put Appellant in fear for his life.” Id. We cannot say the same
about the present facts.
Ten redacted statements are at issue here, most of which referred to
Gerald’s violent nature and history of beating his wife. Having reviewed all ten,
the following are several examples of the statements that were excluded from
evidence in the present case:
I told [Christina] they [the Scotts] was crazy, they all the time into it, he’s all the time beating the shit out of her and they all the time crazy, the law ends up there, and I told the old lady to stay away from them.
3 Kentucky Rules of Evidence 4(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to general reputation in the community or by testimony in the form of opinion.
(b) Inquiry on cross-examination. On cross-examination of a character witness, it is proper to inquire if the witness has heard of or knows about relevant specific instances of conduct. However, no specific instance of conduct may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of the inquiry.
(c) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
5 Yea, and I told [Christina], I told her to stay away from them cause they was crazy he was all the time beatin on her and they was all the time into it and stuff I mean it was crazy. Pretty violent.
I don’t know if he was beating her, seemed like he was beating her before I opened the door, I was like good lord what’s going on.5
With one notable exception, these statements—as well as others that
were excluded—strain the boundaries of “general opinion” evidence. See
Lawson, Kentucky Evidence Law § 2.25[1] at 116 (providing examples of
opinion evidence under KRE 405: “the defendant is an honest person,” “the
victim was prone to violence.”). However, these statements are not aptly
categorized as specific acts evidence either. One excluded statement is
more clearly opinion evidence. Calhoun’s statement that “I know they
drink and get crazy, they get crazy, they violent” should have been
admitted under Saylor.
Nevertheless, it is noteworthy that while many of the omitted
statements demonstrate that Calhoun claimed to have knowledge of
Gerald’s violence towards Shaun, nothing in these statements suggests
that he was personally threatened by Gerald. Cf. Ordway, 391 S.W.3d at
779. It is also noteworthy that, unlike the present case, the defendant in
Ordway testified concerning the victim’s threat to harm him. As such,
Ordway exposed himself to cross-examination on that issue. In contrast,
5 This statement refers to the events that took place on the night of the crime. The door being referenced was the back door of the Calhoun residence.
6 Calhoun sought to introduce his own statements concerning Gerald’s violent
behavior while denying the Commonwealth the opportunity to cross-examine
him.
However, we have no explanation of the trial court’s exercise of its
discretion to exclude this evidence. The parties have failed to cite any written
or oral findings resolving the matter and we have discovered none. As such, we
cannot determine with assurance that the court’s discretion was not abused.
Therefore, we will review this issue for harmless error. RCr 9.24. We described
this standard in detail in Dunlap v. Commonwealth.
Preserved errors are reviewed under normal standards. As noted in Brown v. Commonwealth, “preserved evidentiary and other non constitutional errors will be deemed harmless under RCr 9.24 and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), if we can say with fair assurance that the judgment was not substantially swayed by the error.” 313 S.W.3d 577, 595 (Ky.2010). “Our inquiry is not simply ‘whether there [is] 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. If so, or if one is left in grave doubt, the conviction cannot stand.’ ” Id. (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239).
435 S.W.3d 537, 553 (Ky. 2013).
The present case was defended under a self-protection theory wherein
the jury heard extensive testimony from four eyewitnesses to the events that
resulted in Gerald’s death. Except for Gerald’s wife, Shaun, much of that
testimony was favorable to the defense. For example, the jury heard testimony
from Christina that Gerald barged into the house, confronted Calhoun, said he
was there to fight Calhoun, punched Calhoun in the face and then placed him
in a chokehold. Trevor Tucker similarly testified that Calhoun stabbed Gerald 7 after Gerald threw a pot at him and then placed him in a tight headlock.
And, of course, the jury was played a redacted recording of Calhoun’s
own statement to the police wherein he detailed the events surrounding
the altercation and stabbing. Multiple witnesses also testified concerning
the underlying event that allegedly sparked Gerald’s rage—Calhoun’s
accusation that Gerald once petitioned him for sex when they were
children.
Therefore, the jury was presented with a vivid description of the
events surrounding Gerald’s death, much of which portrays Gerald as
the initial aggressor. After all, it was Gerald who barged into Calhoun’s
home. Calhoun’s version of events was reflected in the “no duty to
retreat” jury instruction, as well as “perfect and qualified” self-protection
instructions. The self-protection instruction included the following
language:
If you believe from the evidence that Gerald Scott had unlawfully and forcibly entered Willard Calhoun’s dwelling, and that Willard Calhoun knew that Gerald Scott had unlawfully and forcibly entered Willard Calhoun’s dwelling, then you shall presume that Willard Calhoun had a reasonable fear of imminent peril of death or great bodily harm under this instruction.
By convicting Calhoun of first-degree manslaughter, the jury rejected these
defenses. In doing so, however, the jury also rejected the Commonwealth’s
theory of murder. Considering the testimonial evidence presented in this case
detailing the events surrounding the killing, we can say “with fair assurance
that the judgment was not substantially swayed” by any error that may have
8 occurred here. Driver v. Commonwealth, 361 S.W.3d 877, 886 (Ky. 2012)
(citation omitted).
Calhoun raises additional evidentiary issues as well. He claims that the
trial court erred in failing to admit the following: 1) a phone call recording
between Christina and her mother; 2) a portion of Christina’s testimony about
why she would not have opened the back door for Gerald and Shaun on the
night of the killing; and 3) a portion of Shaun’s testimony stating that Gerald
physically abused her on the night of his death. That portion of Shaun’s
testimony was taken by avowal along with testimony from a nurse who treated
Shaun. For the following reasons, the exclusion of these items of evidence does
not constitute an abuse of the trial court’s discretion.
Phone Call Recording
The transcript of a phone call between Christina and her mother was
used to impeach Christina’s testimony. During cross-examination, Christina
was specifically asked by defense counsel to read from the phone call
transcript. The trial court denied defense counsel’s subsequent request to play
the audio recording on the basis that it was duplicative. “[T]rial courts retain
broad discretion to regulate cross-examination.” Yates v. Commonwealth, 430
S.W.3d 883, 901 (Ky. 2014). Therefore, “so long as a reasonably complete
picture of the witness's veracity, bias and motivation is developed, the judge
enjoys power and discretion to set appropriate boundaries.” Davenport v.
Commonwealth, 177 S.W.3d 763, 768 (Ky. 2005) (quoting Commonwealth v.
Maddox, 955 S.W.2d 718 (Ky. 1997)). As such, the trial court did not abuse its
9 discretion by refusing to admit audio evidence where a written transcript
of that evidence was sufficient. See Goncalves v. Commonwealth, 404
S.W.3d 180, 203-04 (Ky. 2013).
Christina’s Testimony
The disputed portion of Christina’s testimony occurred during her
cross-examination by defense counsel. Christina was discussing why
she let Shaun and Gerald inside the Calhoun residence the night of the
crime. She stated that she would not have let Shaun in the back door
had she known that Shaun was with Gerald. According to Christina,
Shaun knocked on the door and said that she was there with her brother
when, in fact, she was accompanied by Gerald. Christina proceeded to
discuss a conversation between herself and Shaun that occurred on a
previous occasion. The Commonwealth objected on hearsay grounds.
During the nine-minute bench conference that ensued, several
theories were raised in support of the objection. Defense counsel
generally claimed that Christina would testify that Shaun told her that
the two men would fight if they met. Counsel also mentioned that
threats were involved. However, there was no disclosure of what exactly
Christina would have testified to had she been permitted to continue.
Defense counsel additionally argued that the contested statement was
not hearsay because it did not concern the truth of the matter asserted,
and that, even if it was hearsay, it qualified under the then existing
mental or emotional condition of the declarant exception. KRE 803(3).
10 It is unclear from the record why the court ultimately sustained the
Commonwealth’s objection. Therefore, we cannot determine whether the
contested testimony was hearsay or whether an exception to that rule applies.
However, we note that Christina was permitted to testify as to her own
perception of hostility between Gerald and Calhoun and why she would not
have opened the door had she known Gerald was there. This uncontested
testimony occurred immediately prior to the contested testimony. She
specifically testified as follows:
Counsel: And Shaun told you that it was her and her brother?
Christina: Yes ma’am.
Counsel: And that’s why you opened the door?
Christina: Yes.
Counsel: If she would have said it was Gerald at the door
Counsel: Would you have opened that door?
Christina: No.
Counsel: Why not?
Christina: Because I knew that there would have been an altercation between those two.
Therefore, although Christina did not testify as to why she specifically
thought there would be an altercation, she was permitted to testify that she
had reason to believe that there would have been. We also note that this
testimony benefited the defense. Any additional testimony concerning what
Christina heard from Shaun in this regard would have been cumulative. 11 Therefore, even when taking the evidence in the light most favorable to
the Calhoun, there was no reversable error here.
Avowal Testimony
By avowal, defense counsel introduced Shaun’s statement that,
prior to going to the Calhoun residence, Gerald “kinda of went crazy” and
“snapped.” Dixie Vanarsdale, a nurse who treated Shaun, also testified
by avowal about Shaun’s injures, Shaun informed Ms. Vanarsdale that
Gerald physically abused her on the night of the crime. This is evidence
of a specific violent act—that Gerald “snapped” and physically abused
Shaun earlier that day prior to coming to Calhoun’s home. Calhoun’s
argument here is extremely brief and provides no clear indication that
Calhoun was aware of these abusive events. As such, this evidence is
inadmissible under Saylor. 144 S.W.3d at 815-16.
Pictorial Evidence
Calhoun also argues that the trial court erred by admitting into
evidence a family photo wherein Gerald is seated and surrounded by his
wife and children. The photo was admitted as an exhibit for the
Commonwealth in response to defense counsel’s questioning of Shaun
about Gerald’s physique. Gerald was larger in stature than Calhoun.
Therefore, this issue was relevant in light of Calhoun’s self-defense claim.
And although Calhoun concedes that the photo was relevant to the
issue of Gerald’s size, he nevertheless argues that the admission of this
photo opened the door to additional evidence concerning Gerald’s family
12 life, including the previously discussed evidence that Gerald allegedly beat his
wife. The trial court disagreed and stated that it failed to see how introducing
this photo into evidence allowed the defense to springboard into Gerald’s
relationship with Shaun. When defense counsel suggested that an autopsy
photo be used instead, the trial court overruled the objection and the trial
continued. Like the trial court, we also fail to see how admitting this relevant
photo of Gerald requires the admission of the other attenuated evidence of
which Calhoun complains. There was no error here.
Calhoun further contends that the trial court erred by introducing
thirteen autopsy photographs of Gerald. The photos were used during the
testimony of Dr. Donna Stewart, who performed the autopsy. The size of these
photos was enhanced to fit on large poster boards and displayed to the jury on
an easel. Smaller versions of these photos were also available to the jury. “The
general rule is that a photograph, otherwise admissible, does not become
inadmissible simply because it is gruesome and the crime is heinous.” Funk v.
Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992). However, “[t]his general rule
[of admission] loses considerable force when the condition of the body has been
materially altered by mutilation, autopsy, decomposition or other extraneous
causes, not related to the commission of the crime . . . .” Hall v.
Commonwealth, 468 S.W.3d 814, 823 (Ky. 2015) (quoting Clark v.
Commonwealth, 833 S.W.2d 793, 794 (Ky. 1991)).
The specific photos at issue here showed Gerald’s forty-four stab wounds
located on multiple parts of his body. As such, it seems appropriate that
13 multiple pictures would be necessary to capture the scope of the victim’s
injuries. And to the extent that the body was “materially altered” it was due to
the stab wounds. Hall, 468 S.W.3d at 823. Calhoun’s primary claim is
that it was error to admit the large and small versions of the photos, and
that the trial court failed to conduct a proper analysis under KRE 403 of
each photo’s incremental probative value. In so arguing, Calhoun fails to
argue how these photos were irrelevant, gratuitous, or otherwise unduly
prejudicial under KRE 403. In fact, this Court has previously approved
of the admission of similar autopsy photos in other cases. See, e.g.,
Davis v. Commonwealth, 967 S.W.2d 574, 579 (Ky. 1998). Therefore, the
trial court did not abuse its discretion here.
Lastly, Calhoun asserts that structural error occurred when the
jury was erroneously provided with an exhibit that visually depicted the
layout of Calhoun’s home. This visual aid was contained on the back of
one of the properly admitted exhibits. The Commonwealth concedes that
the home diagram was not admitted into evidence and should not have
been provided to the jury during deliberations. RCr 9.72. However,
Calhoun has failed to demonstrate any prejudice that he suffered
because of this error. Nor does he elaborate on the “structural” nature of
this error and why reversal of his conviction is required. Having reviewed
and discussed the evidence in this case, we can determine “with fair
assurance that the judgment was not substantially swayed by the error.”
14 Driver, 361 S.W.3d at 886 (citation omitted). Therefore, the error is harmless.
RCr 9.24.
B. THERE IS NO CUMULATIVE ERROR
Calhoun argues that his conviction should be reversed for cumulative
error. Under this limited doctrine, we will reverse only when the “individual
errors were themselves substantial, bordering, at least, on the prejudicial.”
Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). In the present case
there is “insufficient harmless error to create a cumulative effect which would
mandate reversal for a new trial.” Tamme v. Commonwealth, 973 S.W.2d 13,
40 (Ky. 1998).
III. CONCLUSION
For the foregoing reasons, the judgment and sentence of the Green
Circuit Court is affirmed.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ.,
concur. Buckingham, J., not sitting.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Jason Bradley Moore Assistant Attorney General