RENDERED: NOVEMBER 1, 2018 TO BE PUBLISHED
2017-SC-000569-MR
WILLIAM E. MASON APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE MARY M. SHAW, JUDGE NO. 16-CR-001814
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
A circuit court jury convicted William E. Mason of two counts of murder,
possession of a handgun by a convicted felon, tampering with physical
evidence, and being a first-degree persistent felony offender. The jury
recommended, and the trial court accepted, a total effective sentence of life
imprisonment. Mason now appeals the resulting judgment as a matter of
right, 1 raising several challenges to the admission of certain evidence at trial.
Finding no reversible error on the part of the trial court, we affirm the
judgment.
1 Ky. Const. § 110(2)(b). I. BACKGROUND.
Investigators found the lifeless bodies of three men, Larry Thomas, John
Bailey, and Michael Bass, at the residence of Everett Todd. The bodies of
Thomas and Bailey were found in Todd’s living room, and Bass’s body was
found in the bedroom. All three men had been shot in the head, and their
bodies had been rolled in pieces of carpet cut from the floor. Todd first
informed law enforcement thirteen hours after the men had died. Todd told the
police that he knew nothing about the killings because he had spent the night
at a friend’s house, discovering the bodies upon returning home in the
morning. Authorities questioned three individuals, Todd, Christopher Giddens,
and Mason, as part of the investigation of these apparent crimes.
During questioning, Todd retracted his earlier denial and revealed that,
in fact, he knew about the murders occurring in his home. Todd stated that
Mason murdered the three men and Giddens helped, reluctantly, by cutting the
carpet to wrap the bodies. Specifically, Todd stated that he arrived home at
about 3 a.m. the day of the murders to pick up some clothes for an overnight
stay with his girlfriend when he encountered Mason relaxing in the kitchen and
living room with Bailey and Thomas. A moment later, Giddens came through
the back door, and, at almost that very instant, Todd heard “a shot discharge”
and saw Mason shooting Bailey in the head. Mason then killed Thomas and
asked where Bass was. Mason then went into the bedroom, after which Todd
heard a gunshot and the sound of Bass falling to the floor. Todd spent a few
moments inside the house, mopping up some blood and cutting a strip of carpet. Todd, Giddens, and Mason then went to Giddens’s mother’s house to
discuss what to do next. Todd eventually left for his girlfriend’s house, where
he spent a few hours sitting in his car. He then returned to his own home,
looked briefly inside, and left again to go to his cousin’s house. He slept there
for a few hours before calling police.
Giddens also stated that Mason killed the three men and admitted to
assisting in the manipulation of the crime scene after the shootings.
Specifically, Giddens stated that he arrived at Todd’s house to find Mason,
Bailey, and Thomas conversing. Moments after arriving at the house. Mason
shot Bailey and Thomas. Giddens, Todd, and Mason then left the house and
went to Giddens’s mother’s home, where they sat for a few minutes on the front
porch before deciding to return to Todd’s house to “fix” the scene. Giddens
stated that it was during this return trip that he first saw Bass’s body, finding
it on the floor of a nearby bedroom. Giddens took a box cutter and cut some
carpet from the floor, giving up after a few minutes and leaving the house.
After two weeks of trial and more than eleven hours of deliberation, the
jury convicted Mason of the murder of Thomas and Bailey but not Bass. On
appeal. Mason challenges the introduction of certain evidence during his trial.
II. ANALYSIS.
Mason challenges the admission of allowing four different pieces of
evidence during trial. Generally, we review a trial court’s evidentiary
determinations for abuse of discretion—“whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”2
But our standard of review may change depending on the specific type of error
alleged.
Additionally, “[n]o error in . . . the admission ... of evidence ... is
ground for granting a new trial or for setting aside a verdict or for vacating,
modifying or otherwise disturbing a judgment or order unless it appears to the
court that the denial of such relief would be inconsistent with substantial
justice.”3 “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.”4 “[A] nonconstitutional evidentiary error may be deemed harmless if
the reviewing court can say with fair assurance that the judgment was not
substantially swayed by the error.”5 “[T]he 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. If so, or if one is left in grave doubt, the conviction cannot stand.”6
Finally, we note that the preservation of these issues for our review is
undisputed.
2 Lopez V. Commonwealth, 459 S.W.3d 867, 872-73 (Ky. 2015). 3 Kentucky Rules of Criminal Procedure (“RCr”) 9.24. 4 Id.
5 Murray v. Commonwealth, 399 S.W.3d 398, 404 (Ky. 2013) (citing Kotteakos v. United States, 328 U.S. 750 (1946)). 6 Murray, 299 S.W.3d at 404 (quoting Kotteakos, 328 U.S. at 765).
4 A. Admission of Detective Holland’s interviews of Everett Todd and Christopher Giddens
Todd and Giddens both testified live for the Commonwealth at Mason’s
trial. Following cross-examination, the Commonwealth sought to introduce
Todd’s and Giddens’s separately recorded police interviews. The
Commonwealth contended that during the cross-examination of both Todd and
Giddens, Mason inaccurately characterized the actions of the interviewing
officer as aggressive and improperly influential. The Commonwealth’s entire
rationale for seeking admission of this evidence was to do so under Kentucky
Rules of Evidence (“KRE”) 801A(a)(2), which admits prior-consistent-statement
hearsay evidence if certain conditions are met. Over Mason’s objection, the trial
court allowed this evidence to be presented.
Mason argues, and the Commonwealth concedes, that the admission of
Todd’s and Giddens’s video interrogations under KRE 801A(a)(2) for
substantive purposes was erroneous. Regardless of whether the trial court may
have erred, we are convinced that any purported error is harmless.
The result from the admission of Todd’s and Giddens’s video
interrogations was that the jury heard twice essentially the same statements
implicating Mason for the murders, once with Todd and Giddens on the stand
and again in their video interrogations. Todd and Giddens essentially
incriminated Mason on the stand in the same way they did during their police
interrogations. This hardly rises to the level of needlessly cumulative evidence.7
7 See Daugherty v. Commonwealth, 467 S.W.3d 222, 234 (Ky. 2015).
5 In sum, the introduction of Todd’s and Giddens’s video interrogations cannot
be said to have “substantially swayed” the jury.
Although the trial court erred when it admitted Todd’s and Giddens’s
video interrogations for substantive purposes under the prior-consistent-
statements hearsay exception, we are convinced that the error was harmless.8
B. Admission of Mason’s interrogation
At trial, the Commonwealth sought to introduce video showing
authorities’ interrogation of Mason. The trial court admitted the video into
evidence under KRE 801A(b)(l), which states: “A statement is not excluded by
the hearsay rule, even though the declarant is available as a witness, if the
statement is offered against a party and is[] [t]he [p]arty’s own statement!] in . .
. an individual . . . capacity.”
At the outset, we must clarify an apparent discrepancy as to our
standard of appellate review of the trial court’s decision about whether certain
proposed evidence constitutes hearsay; and, if it is hearsay, whether any
exceptions apply that would allow admission of that hearsay evidence. The
parties have identified two different standards of review for this Court to use in
its review of the trial court’s determination. Mason suggests that we apply the
8 The Commonwealth attempts to justify the inclusion of this evidence in a different way. The Commonwealth argues that, although this evidence should not have been admitted for substantive purposes, the trial court properly admitted the evidence for impeachment purposes. Moreover, although Mason blanketly objected to the admission of this evidence, the Commonwealth argues that Mason should have objected to the substantive use of this evidence and argued to the trial court that the evidence should only be used for impeachment purposes, which Mason did not do. But we do not reach the merits of this argument because we are satisfied that the trial court’s error is harmless. clearly erroneous standard of review, while the Commonwealth argues for an
abuse-of-discretion standard of review.
Our precedent appears to provide the source of the confusion. In three
different cases, we applied the clearly erroneous standard of review to evaluate
the trial court’s application of KRE 803(1),9 (2),10 or (3)11-12, KRE 803(2) and
KRE 801A(a)(2)13;14 and KRE 803(2) and KRE 801A(a)(3)15.16 But we have also
applied the abuse-of-discretion standard to evaluate the trial court’s
application of KRE 801A(b)(2)17;18 kRE 801A(b)(l)19;20 and KRE 801A(a)(2) and
(b)(2).21
The source of the clearly erroneous standard of review appears to stem
from Young v. Commonwealth. There, we stated:
Whether a particular statement qualifies as an excited utterance depends on the circumstances of each case and is often an arguable point; and “when this is so the trial court’s decision to admit or exclude the evidence is entitled to deference.” That is but another way of saying that when the determination depends upon
9 Present sense impression hearsay exception. 10 Excited utterance hearsay exception. 11 Then existing mental, emotional, or physical condition hearsay exception. 12 Ernst V. Commonwealth, 160 S.W.3d 744, 752 (Ky. 2005). 13 Prior consistent statement. 14 Noel V. Commonwealth, 76 S.W.3d 923, 926-29 (Ky. 2002). 15 Statement of identification of a person made after perceiving the person. 16 Young v. Commonwealth, 50 S.W.3d 148, 166-67 (Ky. 2001). 17 Admission by silence. 18 Moss V. Commonwealth, 531 S.W.3d 479, 484 (Ky. 2017). 19 Admission by a party opponent. 20 Lopez v. Commonwealth, 459 S.W.3d 867, 872-73 (Ky. 2015). 21 King v. Commonwealth, 2016-SC-000414-MR, 2018 WL 3933400, *11-14 (Ky. Aug. 16, 2018).
7 the resolution of a preliminary question of fact, the resolution is determined by the trial judge under KRE 104(a) on the basis of a preponderance of the evidence, and the resolution will not be overturned unless clearly erroneous, i.e., unless unsupported by substantial evidence.22
Attempting to discern whether the clearly erroneous or abuse-of-
discretion standard of review should apply proves to be an exercise in futility.
We can ascertain no principle from our precedent that mandates when one is
to be used over the other. We can find no way of determining whether to use
one standard over the other.
What we can definitively say is that the abuse-of-discretion standard has
been used by this Court to evaluate this type of error more often and more
recently than the clearly erroneous standard. In any event, both standards
accomplish the same essential goal—giving proper deference to the evidentiary
determination of the trial court.
A recently published law review article sheds light on the widespread
discrepancy in how appellate courts review a trial court’s determination of the
admission or exclusion of purported hearsay evidence, finding that
jurisdictions across the country use one of six different standards of review in
evaluating the trial court’s actions in this regard.23 The author advocates for
the use of the abuse-of-discretion standard above all others because that
standard captures the appropriate deference a trial court should receive from
appellate review, while still allowing for the appellate court to recognize a trial
22 Young, 50 S.W.3d at 167. 23 Todd J. Brown, Say What?? Confusion in the Courts Over What is the Proper Standard of Review for Hearsay Rulings, 18 Suffolk J. Trial & App. Advoc. 1, *5 (2013).
8 court’s error in making a determination “unsupported by sound legal
principles.”24
Because our precedent more frequently and recently supports the use of
an abuse-of-discretion standard to evaluate this kind of issue, because this
standard is supported by legal scholars who have pondered this issue, and
because this standard captures the necessary deference that should be
afforded to trial courts for their evidentiary determinations while still allowing
for appellate courts to find trial court errors for decisions made that are
“unsupported by sound legal principles,” we shall review the trial court’s
admission of purported hearsay evidence in the case at hand for abuse of
discretion.
Mason argues that the trial court erred in admitting the entirety of the
interrogation because the video predominantly shows only the detective
speaking, with Mason “[doing] very little talking .... [AJside from some
preliminary small talk and supplying some identifying information, he sits
silently and listens while [the detective] outlines the case against him and
challenges him to rebut the incriminating evidence . . . Mason spends long
stretches of the encounter slumped in his chair, his chin drooping onto his
chest, taciturn.”
Mason’s argument is meritless in all respects. Even if we were to accept
as true his characterization of his interrogation and his allegation that the trial
court erred, then admission of the video interrogation would be deemed
24 Id. at *53-54. harmless because Mason did not incriminate himself in any way. All that the
jury saw was a police officer interrogating Mason and Mason sitting silently.
Such evidence cannot be deemed to have “substantially swayed” the jury
because Mason said or did nothing to incriminate himself.
Regardless, our review of the video interrogation reveals that Mason did
respond, both verbally and through body language, to a good portion of the
officer’s questioning. Even Mason admits in his brief that in this situation KRE
801A(b)(l) would allow the admission of the entirety of the relevant portions of
the interrogation between the interviewer and Mason. And this Court has
upheld the admission of different types of statements made by an interrogator
“as proof of verbal acts” to lend context to the interrogation and to show why
the defendant responded as he did.25
Finally, this Court has made clear that the defendant bears the burden
of requesting an admonition from the court to instruct the jury that “an
interrogator’s statement [be] admitted only as evidence of context. ”26 Although
Mason did offer a general objection to the admission of the video interrogation,
he never requested, in the alternative, the trial court to give a limiting
instruction to the jury on the use of any portion of the interrogation.
The trial court did not err in admitting the entirety of Mason’s
interrogation video.
25 Walker v. Commonwealth, 349 S,W.3d 307, 311 (Ky. 2011); Lanham v. Commonwealth, 171 S.W.3d 14, 19 (Ky. 2005). 26 Walker, 349 S.W.3d at 312 (citing Lanham, 171 S.W.3d at 28).
10 C. Admission of polygraph operator testimony
During defense counsel’s cross-examination of Todd, defense counsel
asked Todd about Todd’s interviews with the detective: “And you had one with
an associate of his? On the second interview.” Todd responded, “1 took a lie
detector test.” Defense counsel then asked Todd several other questions
unrelated to the taking of the lie detector test. In response to one of defense
counsel’s questions about the detective’s interview, Todd responded, “He read
me my rights in regards to continuing with the investigation, prior to taking the
lie detector test.” Defense counsel then asked, “How’d you do on that lie
detector test?” to which Todd responded, “Apparently I did well enough not to
be charged with murder.” Defense counsel then asked Todd about his
“reaction” to two questions asked of him during the polygraph exam, stating
that the officer found those reactions suspicious.
Defense counsel later inquired about some specifics regarding the
polygraph exam and made statements about the exam, including: “And maybe
you do or don’t know this, the officer reported to him the machine reacted and
those were you could call them lies, untruthful reaction, deceit ... all these
polygraph folks are different. . . that it was a reaction different than the other
questions.” Defense counsel also asked, “Do you remember him having a
discussion with you that you were asked on the polygraph, ‘Did you intend or
expect to lie to the police?’ and he said that got a reaction.”
In rebuttal to defense counsel’s examination of Todd, the Commonwealth
proposed to introduce testimony from the polygraph operator who conducted
11 Todd’s polygraph test. The Commonwealth argued that this testimony was
necessary “to rebut the information brought out when [defense counsel] was
questioning Mr. Todd” because the Commonwealth felt that defense counsel’s
cross-examination of Todd elicited testimony suggesting that Todd failed the
test. The trial court, reluctantly and over defense counsel’s objection, admitted
the testimony.
Kentucky law is clear in its treatment of the admissibility, or rather
better termed inadmissibility, of evidence relating to polygraph examinations.27
But Kentucky law also clearly states that “‘opening the door’ to otherwise
inadmissible evidence is a form of waiver that happens when one party’s use of
inadmissible evidence justifies the opposing party’s rebuttal of that evidence
with equally inadmissible proof.”28 “The question in each case is not whether
initial proof shares some common quality with proof offered in response.
Rather, it is whether the latter answers the former, and whether it does so in a
reasonable way without sacrifice of other important values.”29
Simply put, Mason opened the door to allowing the Commonwealth’s
examination of the polygraph operator when defense counsel asked Todd
several questions related to the conducting of the polygraph examination. Most
27 Conley v. Commonwealth, 382 S.W.2d 865 (Ky. 1964); Roberts v. Commonwealth, 657 S.W.2d 943 (Ky. 1983); McQueen v. Commonwealth, 669 S.W.2d 519 (Ky. 1984). See Thomas L. Osborne, Trial Handbook for Ky. Law. § 32:23 (2017-2018 ed.) (collecting Kentucky decisions expounding on Kentucky’s rules relating to the admissibility and inadmissibility of polygraph evidence). 28 Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009). 29 Id. at 702.
12 notably, defense counsel specifically asked Todd how he did on the exam. The
admission of the polygraph examiner’s testimony was justifiable because
Mason asked Todd several questions relating to the propriety and substance of
the exam. A review of defense counsel’s questioning does suggest an attempt by
defense counsel to call into question Todd’s credibility by referencing Todd’s
allegedly deficient performance on the exam. The trial court did not abuse its
discretion in allowing the Commonwealth to present the polygraph examiner’s
testimony because Mason’s actions opened the door to such testimony.
Furthermore, we fail to see how the polygraph operator’s testimony
harmed Mason in any way. As Mason himself acknowledged, the substance of
the polygraph operator’s testimony on direct examination by the
Commonwealth simply boiled down to describing the formal method for
conducting and interpreting a lie detector test and confirming that Todd fell
asleep between the first and second stage of the three-stage process, thus
preventing the test from being completed and rendering the results
inconclusive. It was Mason himself who elicited from the polygraph operator on
cross-examination that the polygraph operator observed “a reaction” to two
questions about Todd’s involvement in the murders. Mason himself opened the
door to the Commonwealth’s inquiry on re-direct that allowed the polygraph
examiner to clarify what “a reaction” meant and whether there was any
indication that Todd lied when he answered the two questions.
Regardless of the general propriety of the admission of any evidence
relating to a polygraph examination, Mason’s actions during trial opened the
13 door to the admission of such evidence. We cannot say that the trial court
erred in any respect on this issue.
D. No reversible error occurred in this case
As held, the admission of the video interrogations of Todd and Giddens,
while error, is harmless. The trial court did not err in admitting into evidence
Mason’s video interrogation. Finally, Mason invited any purported trial court
error in admitting evidence related to Todd’s polygraph examination.
Mason lastly argues that the purported errors in this case rise to the
level of reversible cumulative error. Cumulative error is “the doctrine under
which multiple errors, although harmless individually, may be deemed
reversible if their cumulative effect is to render the trial fundamentally
unfair.’’30 “We have found cumulative error only where the individual errors
were themselves substantial, bordering, at least, on the prejudicial.”31
We repeat our reasoning in Brown to explain why we do not find
reversible cumulative error in this case: “Where, as in this case, however, none
of the errors individually raised any real question of prejudice, we have
declined to hold that the absence of prejudice plus the absence of prejudice
somehow adds up to prejudice.”32 Additionally, “[a]lthough errors crept into
30 Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). 31 Id. (citing Funk v. Commonwealth, 842 S.W.2d 476, 483 (Ky. 1992)). 32 Brown, 313 S.W.3d at 631 (citing Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002)).
14 this trial, as they inevitably do . . . they did not, either individually or
cumulatively, render the trial unfair. ”33
Simply put, the errors that occurred in this case did not rise to the level
of reversible cumulative error because we cannot say that anything the trial
court did or failed to do rendered Mason’s trial “fundamentally unfair.”
III. CONCLUSION.
Finding no reversible error on the part of the trial court, we affirm the
All sitting. Minton, C.J., Cunningham, Hughes, Keller, VanMeter and
Wright, JJ, concur. Venters, J., concurs in result only by separate opinion.
VENTERS, J., CONCURRING IN RESULT ONLY: I concur with Chief
Justice Minton’s opinion, but I write to express an additional concern about
what I find to be the sloppy designation of the applicable “standard of review”
featured in many appellant opinions. Innumerable appellate opinions dutifully
recite the phrase, “we review a trial court’s evidentiary rulings for abuse of
discretion,” often without seriously examining the application of the phrase to
the issue at hand. The phrase is simply incorrect. Some evidentiary rulings fall
within the scope of a trial judge’s discretion, but many do not. I would
abandon the phrase altogether as it is imprecise, confusing, and has become
meaningless with overuse.
33 Brown, 313 S.W.3d at 631.
15 We give great deference to the trial court’s discretion with respect to the
findings of fact essential to an evidentiary ruling or to the relative weight to be
given to those facts, including the weighing of the probative value of evidence.
But evidentiary rulings which interpret and apply the Kentucky Rules of
Evidence are matters of law that we must review de novo. We give no deference
to a trial judge’s decision on what the law is.
Our traditional articulation of the abuse of discretion standard is given in
Commonwealth v. English: “The test for abuse of discretion is whether the trial
judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” 993 S.W.2d 941, 945 (Ky. 1999). Embedded within that
statement is the concept of errors of law which we do not review for abuse of
discretion. Whether a trial judge’s decision is “unsupported by sound legal
principles” is a question to which we give no deference; we review it de novo.
When addressing its review of an issue of evidentiary error, the appellate
courts should articulate the proper stand applicable to the specific kind of
evidentiary error involved, rather than lumping all allegations under the
generic category of “evidentiary error” and saying, incorrectly, that they are all
reviewed for abuse of the trial court’s discretion.
16 COUNSEL FOR APPELLANT:
Michael Romano Mazzoli Cox & Mazzoli, PLLC
Frank Mascagni III
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Emily Lucas Jeffrey Allan Cross Assistant Attorney General