Opinion
NO. 2015-CA-001409-MR
12-21-2018
ANTHONY FARLEY APPELLANT v. COMMONWEALTH OF KENTUCKY; HONORABLE TOM WINE, JEFFERSON COUNTY ATTORNEY; AND HONORABLE CHRIS FOSTER, ASSISTANT COMMONWEALTH ATTORNEY APPELLEES
BRIEFS FOR APPELLANT: Michael Goodwin Louisville, Kentucky BRIEF FOR APPELLEE: Andy G. Beshear Attorney General of Kentucky Julie Renae Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 11-CR-002690 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT, AND TAYLOR, JUDGES. LAMBERT, D., JUDGE: In this case Anthony Farley ("Anthony") appeals his criminal convictions from the Jefferson Circuit Court alleging numerous evidentiary errors. After thorough review of the record, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Anthony and Deborah Owens ("Deborah") married on August 8, 2008. Their marriage was short-lived and three years later, on August 8, 2011, an emergency protective order ("EPO") was issued against Anthony. The reason for the EPO was not discussed at trial. The EPO directed that Anthony have no contact with Deborah and that he could not return to their marital residence. He was arrested the same night the EPO was issued because he returned to the residence. During the hearing for that violation, the family court again ruled Anthony should have no contact with Deborah but arranged for him to return to the marital home for his belongings.
On August 29, 2011, Anthony returned to the home for his things accompanied by his nephew and two sheriff's deputies. Though the mood in the home was tense, things went smoothly. After several hours, the sheriff's deputies instructed Anthony to leave, and he did so without incident. However, sometime around 11 p.m. the same evening, he returned to the home without permission. Deborah and her daughter Brenna Owens ("Brenna") testified that he entered the home through an unlocked patio door and attacked Deborah with a butcher knife. When Deborah screamed for help, Brenna—who was twenty years old at the time—came to her aid. Brenna struggled with Anthony for the knife, allowing Deborah to barricade herself in her bedroom and call the police. Anthony ultimately fled the home before the police arrived. Fortunately, neither Brenna nor Deborah were mortally wounded, but both sustained several cuts.
At trial Anthony asserted the mitigating defense of extreme emotional disturbance ("EED"). He testified that several of the items he got back from Deborah earlier in the day had been broken, he believed intentionally. Later in the evening he went for a walk in the neighborhood where Deborah lived to relieve stress. As he passed Deborah's house, he looked into a window and saw items he was unable to get earlier. He claimed his only reason for going back into the home that evening was to retrieve the rest of this things, but when he saw Deborah he just "snapped." He claimed that both Deborah and Brenna accidently cut themselves on the knife, and that he did not remember stabbing either of them.
He was staying with his brother who lived in the same neighborhood as Deborah.
Following a week-long trial, the jury convicted Anthony of one count of first-degree burglary, two counts of second-degree assault, one count of violating a protective order, and one count of violating of a pretrial order of release. It acquitted him of one count of attempted murder, one count of first-degree assault, and one count of terroristic threatening. The trial court entered a judgment consistent with the jury's verdict and sentenced him to serve a concurrent ten-year sentence. This appeal followed.
Kentucky Revised Statute ("KRS") 511.020.
Additional facts are discussed below as necessary.
II. ANALYSIS
A. STANDARD OF REVIEW
Anthony asserts several evidentiary errors on appeal: (1) the circuit court erred in not allowing expert testimony regarding Anthony's depression or EED; (2) the circuit court erred by not compelling production of Deborah's psychotherapy records and by limiting cross-examination of Deborah regarding her use of prescription medications; and (3) the circuit court erred by allowing investigative hearsay testimony. We will discuss each of these arguments in turn.
We review a trial court's evidentiary determinations for abuse of discretion. Engles v. Commonwealth, 373 S.W.3d 456, 457 (Ky. App. 2012). An abuse of discretion means the trial court acted "arbitrarily, unreasonably, unfairly, or in a manner unsupported by sound legal principles." Id.
B. THE CIRCUIT COURT DID NOT ERR REGARDING TESTIMONY
ABOUT ANTHONY'S DEPRESSION OR EED
To aid in the presentation of his EED defense, Anthony called Dr. Dennis Wagner ("Dr. Wagner"), a psychologist, to testify on his behalf. Dr. Wagner met with Anthony eight times between May 2012 and February 2013 and diagnosed him with major depressive disorder. Anthony intended to have Dr. Wagner testify that he was suffering from depression on the day of the incident. This is because, while mental illness and EED are not one and the same, "mental illness may be considered by the jury . . . when there is probative, tangible and independent evidence of initiating circumstances . . . which is contended to arouse extreme emotional disturbance." Wellman v. Commonwealth, 694 S.W.2d 696, 697 (Ky. 1985).
On appeal, Anthony urges us to hold that the trial court erred by not allowing Dr. Wagner to testify about Anthony's depression diagnosis. But, after review of the record, this was not the circuit court's ruling. During his testimony Dr. Wagner began discussing at length the different tests he used to evaluate Anthony, and the Commonwealth objected. The Commonwealth explained that it was unsure where Dr. Wagner's testimony was going and was concerned Dr. Wagner was about to offer his opinion that Anthony suffered from EED at the time of the incident. The defense made it clear that it was not going to ask Dr. Wagner whether Anthony suffered from EED, as that is the province of the jury. Rather, the defense wanted him to testify about whether Anthony was suffering from a mental illness that caused him to "be more susceptible to explosive rage when placed in an EED situation." The court dismissed the jury so there could be a full discussion on the matter. That discussion went as follows:
For the sake of conciseness and clarity, we have omitted verbal tics such as "um," "uh," and "you know."
COURT: I want to talk about the limits of Dr. Wagner's testimony, and it's not clear to me what you're offering him for [defense counsel], so begin with that. What are you offering him for?
DEFENSE: Judge I would cite you to 3 cases: Foster v. Commonwealth, 827 S.W.2d 670, McClellan v. Commonwealth, 715 S.W.2d 464, Fields v. Commonwealth, 44 S.W.3d 355...All of these, judge, seem to bring in to the scope of our inquiry with Dr. Wagner, his observations about those things he was getting ready to testify to...I'm not going to ask Dr. Wagner, "is it your opinion, then, Dr. Wagner that on August 29th Anthony Farley acted under [EED]." I'm not going to put that in front of the jury. But I am going to inquire as to the architecture, the furniture, in Anthony's mind that would support our defense. That appears to be reasonable and I don't think I'm way out of bounds on it judge, but you're the gatekeeper so that's submitted to you.
COURT: I am. What's your thought on that Commonwealth ("CW")?
CW: Judge, my original objection when we came up to the bench was when he asked about EED I didn't know exactly where he was going at that point in time. He cannot give that opinion and it doesn't sound like he's
going to ask for that . . . . I feel like we're letting this doctor just kind of talk a little bit, and then he started going on about some things he had been told and I had no idea where he was going. I know he received some information and he can certainly base his opinion on those interviews, but just to sit up here and give a narrative about everything he received and everything he heard, that was why I originally came up there.
DEFENSE: You know I think, judge, Dr. Wagner is well-informed on these matters and has testified previously on these matters and I think he actually has something interesting and helpful for the jury and he's not just new to this. This is not new territory for him and I think it should be admitted.
COURT: I agree counsel, you've accurately read the law but at the end of the day all evidence has to be tied to this case. Any witness can testify in a way that assists the jury, but it looks and feels like a competency hearing and this is not that. So, he cannot offer the ultimate factual opinion that the jury will resolve, and it needs to be couched in a way with your control with appropriate questions that take him much more succinctly to the point. I'm allowing him to testify in this area...so I'm going to let you keep going, take some control of it though and get right to the point that you think he's helpful. But the background testing, the test results for Mr. Farley, if that's where you're going, I can't imagine is relevant to this determination. The issue is what's his knowledge that would be helpful with regard to this defense which
you both agree with because it's the law of KY . . . . Does that make sense?(Emphasis added). Therefore, it seems to us that, while the court did not necessarily agree with the defense's strategy, it did agree with its interpretation of the law and would have allowed Dr. Wagner to testify that he diagnosed Anthony with depression. The only limitation placed on Dr. Wagner's testimony was that he could not say whether Anthony suffered from EED during the incident. All parties correctly agreed on that issue being solely for the jury to decide. But when the defense began questioning Dr. Wagner again, it asked no questions concerning what, if any, mental illnesses Anthony suffered from. That was defense counsel's decision as an advocate, and we cannot find the circuit court committed an abuse of discretion.
DEFENSE: It does. I'll go forward and try to control the witness.
In a similar vein, Anthony also alleges the trial court erred by not allowing Dr. Wagner to testify that Anthony suffered from EED at the time of the incident. The defense clearly stated several times that he would not be asking Dr. Wagner whether it was his opinion that Anthony suffered from EED, and conceded it was a point solely for the jury to decide. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). The defense conceded that whether Anthony suffered from EED was solely a question for the jury. Therefore, the claim of error brought before us now was not properly preserved for our review.
Further, the jury alone must decide whether a defendant acted under the influence of an EED. Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2000); see also McClellan v. Commonwealth, 715 S.W.2d 464, 467 (Ky. 1986). Therefore, even if the issue had been properly preserved, we could find no abuse of discretion in the circuit court forbidding the testimony.
C. THE CIRCUIT COURT DID NOT ERR BY FAILING TO COMPEL
PRODUCTION OF DEBORAH'S PSYCHOTHERAPY RECORDS,
NOR DID IT IMPROPERLY LIMIT DEBORAH'S CROSS-
EXAMINATION
Anthony next argues that the circuit court erred by both not compelling the production of Deborah's alleged psychotherapy records and by improperly limiting defense counsel's cross-examination of Deborah regarding her use of prescription medication. These arguments are closely related, and we will therefore address them together.
Prior to trial, Anthony alleged Deborah had bipolar disorder and was taking medication for that mental illness at the time of the incident. Anthony made a pre-trial motion under Barroso to have the court review Deborah's psychotherapy records related to that illness in camera. The Commonwealth responded that it spoke with Deborah, and she stated she was neither bipolar nor was she taking medication for that illness at the time of the offense. Accordingly, the court denied Anthony's motion to compel.
Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003). --------
During the defense's cross-examination of Deborah, she testified she was prescribed Wellbutrin for depression and took Lortab as needed for arthritis pain in her knees. After eliciting this testimony, the defense requested a side bench. During the side bench, the defense made an objection for failure to disclose exculpatory evidence and moved for a mistrial. As we understand it, defense counsel's argument was twofold. First, that the Commonwealth intentionally withheld information regarding Deborah's use of medication and her depression, which prejudiced Anthony's case. Second, that the evidence was exculpatory, and the defense was therefore entitled to the entirety of Deborah's psychotherapy records. The Commonwealth responded that the pre-trial motion Anthony made was specific to records about Deborah having bipolar disorder and taking medications for that disorder and, as Deborah is not bipolar, none of those records even exist. The Commonwealth further noted that evidence both of her use of Wellbutrin and Lortab as well as her depression was in the record, and the defense was therefore not surprised by that information to its prejudice. The trial court denied the defense's motion for a mistrial, finding that the evidence was not exculpatory.
On appeal, Anthony renews his argument that Deborah's alleged psychotherapy records contained exculpatory information and he was therefore entitled to them. His basis for that argument is that Lortab and Wellbutrin, when taken together, are known to have negative interactions including loss of memory and confusion. No scientific evidence is cited to support that bare conclusion. However, after review of the record, whether or not that information was exculpatory is immaterial. The fact that Deborah was prescribed Wellbutrin and Lortab and was suffering from depression was included at least twice in the discovery materials provided by the Commonwealth: once in the EMS Patient Care Report, and again in Deborah's medical records from the University of Louisville's Emergency Department. The former was given to defense counsel on February 13, 2012, and the latter on March 6, 2012. Thus, both were provided well before the trial held from February 10 until February 17, 2014. Anthony's complaint that he had no knowledge of her taking Wellbutrin or Lortab or that she had depression is belied by the record.
Further, we cannot find that the circuit court abused its discretion in ruling that the fact that Deborah takes Wellbutrin and Lortab was not exculpatory. Under Barroso, "in camera review of a witness's psychotherapy records is authorized only upon receipt of evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence." Id. at 564 (emphasis added). We could not find any evidence presented by the defense that would establish a reasonable belief that the records, if they in fact exist, contain exculpatory evidence. Therefore, the circuit court did not rule unreasonably or in a way unsupported by sound legal principles.
Anthony next argues the trial court prohibited cross-examination regarding Deborah's use of her prescription medications, and that in doing so violated Anthony's confrontation clause, due process, and fair trial rights. Again, the record directly refutes Anthony's assertions. During the same side bench discussed supra the following exchange occurred:
COURT: Counsel do you have any good faith basis to suggest [Deborah] is not a competent witness to testify? Is that what you're saying?
DEFENSE: I would say that whether it's discoverable that she is on medication today is a reasonable impeachment question that's exculpatory and potentially useable.
COURT: You can ask her that, nothing is preventing that. Alright, well, to the extent you're asking for a mistrial that's denied. To the extent you're telling me you believe it's exculpatory I disagree. You can follow up with her about her treatment to the extent
that's important with regard to exposing bias for her.(Emphasis added). The following morning Deborah's cross-examination resumed. The defense asked if she took both Wellbutrin and Lortab to "pick up her mood." The Commonwealth objected, arguing that the defense was misstating the evidence: she took Wellbutrin to raise her mood and Lortab for knee pain. Again, we will allow the record of the side bench to speak for itself:
...
COURT: Alright, then I'd rather break now where you can think through whatever this issue is you think you want to either present back to me or to more efficiently cross-examine her on this.
DEFENSE: I'll be clearer about it in the morning, we can have a discussion briefly.
COURT: Sure, but I don't need it. I'm allowing you to vigorously cross-examine her. But it's late in the day and this is just one of those delicate things that cuts both ways.
COURT: Well, back to her and her cross examination. What are you trying to do with regard to her medical profile and the drugs that she's taking?
DEFENSE: I'm trying to show that she had become insensitized [sic] to her effect on Anthony and was doing reckless behavior that injured him and caused him to suffer emotional disturbance.
...(Emphasis added). We, therefore, fail to see how the trial court prevented defense counsel from cross-examining Deborah about her use of medications and their impact on her memory and mind. The trial court not only gave the opportunity for "vigorous cross-examination," but even suggested ways to approach it. When the cross-examination resumed, the defense established that Deborah began taking Wellbutrin two years prior to the incident, and that she never received counseling. Defense counsel did not ask how the medication made her feel, whether she had taken any the day of the incident, how often she took the medication, its effect on her memory, etc. That was a decision made by the defense and the trial court committed no abuse of discretion.
COURT: That's your position. I will never seek to tell any lawyer what to do or how to do it I can only rule on what you have done. But let me suggest what she was taking, how it makes her feel, how often she took it, those type of things are what I would expect and then what actually happened in the case. You're cross-examining her as though she were a plaintiff in a medical malpractice action and that's not this case
DEFENSE: I wouldn't presume to do such judge, but I can see if I can modify my approach.
COURT: Alright let's move on. I'm sustaining that objection. You've got to be very careful with implications with regard to these narcotics and psychotropic drugs. She's told you forthrightly what she's taking. The effect of that, what she tells you, if she's asked, that should be the end of it.
D. THE CIRCUIT COURT DID NOT ALLOW INVESTIGATIVE
HEARSAY
Anthony's final argument is that the trial court allowed investigative hearsay to be admitted over the defense's objection. At trial, the Commonwealth called Detective Amber Keonig ("Det. Keonig") to discuss her involvement in the case. She testified that during her investigation she went to Anthony's mother's house to try and get a taped statement from his mother and stepfather. But they declined to speak with her without having a lawyer present. Defense objected to this statement on the grounds that it was investigative hearsay. The Commonwealth responded that it was not being offered for its truth, but to explain the steps in her investigation. The trial court overruled this objection, finding it was not hearsay.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Kentucky Rule of Evidence 801(c). The admissibility of investigative hearsay is limited to circumstances where:
the taking of action by the police is an issue in the case and where it tends to explain the action that was taken as a result of the hearsay information. In such circumstances, hearsay may be admissible to prove why the police acted in a certain manner, but not to prove the
facts given to the officer. In any event, however, such information is admissible only if there is an issue about the action of the police officer.Gordon v. Commonwealth, 916 S.W.2d 176, 179 (Ky. 1995). In this case, the trial court ruled Det. Keonig's testimony was not hearsay, and therefore not investigative hearsay, because it was not being offered for its truth. Rather, it was offered to show what happened in the course of Det. Keonig's investigation. We cannot find this ruling was inconsistent with sound legal principles and therefore find no abuse of discretion.
III. CONCLUSION
After review of the record, we find that the trial court committed no abuse of discretion in its evidentiary rulings. Accordingly, we affirm Anthony's convictions.
JONES, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Michael Goodwin
Louisville, Kentucky BRIEF FOR APPELLEE: Andy G. Beshear
Attorney General of Kentucky Julie Renae Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky