Opinion
2019-SC-000442-MR
05-28-2020
CHRISTOPHER LUTIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Euva D. May Assistant Appellate Defender Jazmin Paige Smith Louisville, KY 40202 COUNSEL FOR APPELLEE: Daniel Jay Cameron Attorney General of Kentucky Stephanie Lynne McKeehan Assistant Attorney General
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. NOT TO BE PUBLISHED ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
NO. 17-CR-3327
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Jefferson County Grand Jury indicted Appellant, Christopher Lutin, for a single count of murder for the shooting death of Brian Quintero. At trial, a Jefferson Circuit Court jury found Lutin guilty of one count of intentional murder and recommended a sentence of twenty-five years' imprisonment. Lutin was sentenced in accordance with the jury's recommendation and now appeals to this Court as a matter of right. Ky. Const. §110(2)(b).
On appeal, Lutin alleges the trial court erred by: (1) including an initial-aggressor qualification with the self-protection instruction language, (2) failing to instruct the jury on first-degree manslaughter, and (3) improperly admitting prejudicial and unnecessarily cumulative photographs. Lutin further alleges the Commonwealth erred by improperly calling attention to Lutin's post arrest silence.
For the following reasons, we affirm.
I. BACKGROUND
Christopher Lutin's father, Felix Lutin, and Brian Quintero's mother, Teresa Vidales, were in a long-term relationship when Lutin and Quintero were growing up. Felix and Vidales lived together for more than ten years and raised their four sons (Felix had one son and Vidales had three) together as a family unit. Quintero was Vidales's youngest son and Felix raised him from the time he was two years old. The two had a father-son relationship that continued even after Felix and Vidales split up. Quintero and Lutin, although separated by over ten years in age, were like brothers. The family described the relationship between them as peaceful and loving. The two never argued or fought.
Felix worked in West Virginia and came home to Louisville every other weekend. When Felix was home, he, Lutin, and Quintero often got together for the weekend at Felix and Lutin's home—as was the case on October 28, 2017. That evening, after dinner, Felix went to bed around 6:30 p.m., as he was tired from a hard week of clearing powerlines. Lutin went to his bedroom and Quintero remained in the living room on the couch. Lutin and Quintero had no problems that day.
The men in Felix and Vidales's combined families were familiar with guns. Lutin and Quintero owned handguns and went to the shooting range to practice. On the evening in question, Lutin claims he saw a Facebook post by one of Quintero's brothers containing a picture of various guns. This was not unusual, as some of the sons occasionally posted pictures of guns on Facebook. Lutin claimed Quintero commented on the post, stating, "this motherfucker is dead now" followed by the "100%" emoji. Facebook materials later retrieved by Louisville Metro Police contained neither the alleged Facebook post by Quintero's brother nor Quintero's comment thereon. Lutin introduced evidence of Facebook activity from Quintero's IP address indicating that Quintero was using Facebook the evening he was shot. However, the records do not reveal any details of that activity.
Lutin asserts that after he saw Quintero's comment on the post, he went to the living room to confront Quintero. The Commonwealth's and Lutin's narratives as to how the events unfolded significantly diverge at this point. According to Lutin, he and Quintero argued and then fought over the Facebook comment. Lutin claimed he asked Quintero who he planned to kill and then asked him to leave the house. Lutin said that when Quintero refused to leave, Lutin started pulling him toward the door. Lutin alleged Quintero took a swing at him but missed, and then Quintero reached for his waistband like he was reaching for a gun. While Felix denied allowing Quintero to carry firearms in the house, Lutin said Quintero was armed around 60% of the time when he visited the home.
According to Lutin, believing Quintero to be armed and reaching for his handgun, he was forced to shoot Quintero in self-defense. Lutin claimed that as he started to fire his weapon, Felix tackled him to the floor. According to Lutin, he fired his initial shots while falling and the rest from the floor. The Commonwealth, however, claimed Lutin stood at the end of the couch and fired seven shots at Quintero. Five of those shots hit Quintero—three of them in the back.
According to Lutin, the struggle with Felix continued following the shooting. He said the struggle occurred throughout the living room and kitchen, overturning the kitchen trash can. An overturned trash can was visible in Metro Police Officer Wagner's body cam video. Lutin indicated that when he got away from Felix, he went out the front door and walked to a nearby Marathon gas station where a customer called 911.
Felix's account began when he was awakened by sounds he described as explosions. Felix went into the living room and found Lutin standing over Quintero's body with a gun in his hand. Lutin left through the front door and said that he was sorry, but Quintero had threatened him on Facebook. After Lutin left, Felix called 911. Because Felix did not speak English, he asked for help through a Spanish interpreter and indicated that one of his sons had shot another of his sons. Quintero died of his injuries.
At the home, Metro Police evidence technicians filmed a crime scene video and took numerous crime scene photos. Parts of the video and the photos show Quintero's body lying closer to the couch than the front door. Other than the overturned kitchen trash shown on the officer's body cam video, no indications of a fight or struggle are otherwise visible in the video and photographs.
Metro Police evidence technicians recovered seven shell casings located near the end of the couch (not close to the front door). The evidence technicians collected and processed a blanket from the couch with numerous holes in it, a projectile they recovered from a couch pillow, and another projectile recovered from the carpet near Quintero's body and the couch.
The testimony, findings, and conclusions of the medical examiner Dr. Donna Stewart were a major focus for both parties. Both sides claimed what Dr. Stewart said about bullet trajectories and the relative positions of the shooter and victim fully supported their claims about what happened during the fight between the two men.
Dr. Stewart described external wound locations caused by bullets entering and leaving Quintero's body. She used photographs taken during the autopsy to identify bullet wounds on Quintero's lower back, right knee, and across his chest. Dr. Stewart recovered two projectiles from inside Quintero's chest cavity, but she did not recover one projectile that exited the body. One bullet entered Quintero's chest from the side but did not penetrate very deep into Quintero's chest, remaining close to the skin. Instead of entering the chest cavity, that bullet travelled a few inches across the chest, exited and then re-entered the chest, and entered Quintero's arm, fracturing his humerus. Finally, a single bullet entered above Quintero's right knee and travelled along an upward path to the right buttock where the projectile lodged.
According to Dr. Stewart, the two shots that caused the front chest wounds, arm wound, and knee wound did not cause Quintero's death. The remaining three shots inflicted the fatal damage to Quintero. One of the shots in Quintero's back fractured his spine and Dr. Stewart opined would likely have produced paralysis below the spinal injury. The paralysis would have affected Quintero's diaphragm and interfered with his breathing (which was also compromised when both lungs collapsed due to the other two shots in the back). Quintero's cause of death was bleeding, shock, and suffocation. Dr. Stewart was unable to determine the order of the shots as they entered the body.
Based on bullet projectile paths, Dr. Stewart concluded that the shooter and the victim were at a distinct angle in relation to each other—meaning one was horizontal and the other vertical. Dr. Stewart testified that the shooter and victim could not have both been standing upright. The Commonwealth asked Dr. Stewart if the wounds were consistent with a shooter firing from an upright position standing at the end of the couch shown in crime scene photos with the victim lying on that couch. Dr. Stewart said that was consistent with the bullet trajectories. She also stated the chest and knee wounds were consistent with shots entering Quintero's body as it was moving, with the body rolling or falling off the couch.
On cross-examination, Dr. Stewart agreed that the upward trajectory of the bullets could also be consistent with the victim standing upright and the shooter firing while lying on the floor. The knee and chest wounds were consistent with the victim falling towards the floor and being shot while in a falling motion.
During a pretrial hearing, Lutin had moved the trial court to exclude the medical examiner's photos and upper body x-ray. Lutin renewed his objections when Dr. Stewart began testifying. The trial court permitted the admission of the photos and x-ray. During Dr. Stewart's testimony, she referenced an upper-body x-ray image to reveal the projectile locations inside the body. She also used photos of Quintero's back and chest to show the locations of external entry and exit wounds and a single photo showing the knee wound. A single photo of Quintero's face was also used by Dr. Stewart as an identifier for the "patient" she had autopsied. Dr. Stewart referred to the photos with bullet wounds extensively both during direct and cross-examination.
After the parties concluded proof, Lutin tendered jury instructions. Lutin argued for intentional murder with an extreme emotional disturbance (EED) component. The desired extreme emotional disturbance instruction was based on Lutin's testimony concerning the out-of-character argument between he and Quintero coupled with his panicked reaction to Quintero reaching for his waist as if to pull out a gun. The trial court denied the extreme emotional disturbance instruction finding that no evidence in the record supported an instruction that Lutin was acting with the sudden rage required for extreme emotional disturbance.
Lutin also tendered a first-degree manslaughter instruction based on intent to injure rather than kill Quintero. The trial court denied this first-degree manslaughter instruction based on Lutin's testimony that he fired multiple shots to neutralize a threat. The trial court determined the number of shots Lutin fired was not consistent with an intent to injure.
While the trial court included the self-protection language requested by Lutin in the instructions, it also included an initial-aggressor qualifier instruction over Lutin's objection. The jury ultimately found Lutin guilty of intentional murder and recommended a sentence of twenty-five years' imprisonment.
II. ANALYSIS
A. Initial-Aggressor Qualifier to Self-Protection Instruction
Lutin claims the trial court erred in providing the initial-aggressor instruction requested by the Commonwealth. After Lutin made a timely objection, the trial court determined there was sufficient evidence to justify the instruction and overruled Lutin's objection.
We note our directive to trial courts regarding instructions:
The trial court must instruct the jury upon every theory reasonably supported by the evidence. "Each party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it." McAlpin v. Davis Const., Inc., 332 S.W.3d 741, 744 (Ky. App. 2011) (quoting Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957)). The same rule applies in criminal cases. Thomas v. Commonwealth, 170 S.W.3d 343, 348-49 (Ky. 2005).Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015).
In this case, the trial court heard arguments from counsel outside the presence of the jury and those arguments are included in the record. The Commonwealth referred to Lutin's testimony in support of the instruction. The Commonwealth argued: "Specifically, I believe that comes in through the defendant's testimony. He had a gun in his possession. That he is the one that initially started this confrontation. He confronted the victim, he grabbed the victim, and he started pulling him out of the house." In response, Lutin's counsel argued, "He asked Quintero first to leave the house. It is his house. He is entitled to not have people who he doesn't want in that house. He asked him to leave then once he didn't leave he tried to make him leave. That doesn't make him the initial aggressor." The trial court granted the instruction based on Lutin's testimony.
Lutin's challenge to the initial-aggressor instruction is to the trial court providing the instruction at all—not to the instruction's wording. We review the trial court's decision to provide an instruction under an abuse of discretion standard:
Under the familiar standard prescribed in Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), a trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. A decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom. Because such decisions are necessarily based upon the evidence presented at the trial, the trial judge's superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard.Sargent, 467 S.W.3d at 203.
A review of Lutin's testimony about the fight with Quintero leaves little doubt that Lutin began the confrontation. After dinner, Lutin and Quintero were in separate rooms, with Lutin in his bedroom and Quintero in the front room. According to Lutin's testimony, he read a Facebook comment by Quintero and left his bedroom and went to the living room because he wanted to know what Quintero meant by his comment.
After asking about the comment, Lutin testified he asked Quintero to leave. Quintero refused and Lutin grabbed him by the arm—escalating the verbal argument into a physical struggle. According to Lutin, after he grabbed Quintero and while the two were struggling toward the front door, Quintero broke free, Lutin grabbed him again, and Quintero took a swing at Lutin. After the punch failed to land, Lutin said Quintero reached for his waistband as if to draw a gun. It was Quintero's purported act of reaching for his waistband that Lutin claims qualified Quintero as the initial aggressor, as this act changed the nature of the altercation from one involving mere physical force to one involving deadly force.
Lutin's self-described history with his handgun and his focus on self-defense was offered to help the jury understand Lutin's point of view. Lutin's involvement with his handgun and self-defense began when he went to a shooting range for target practice. The first time Lutin went for target practice, he had to watch a gun safety video. After watching that video, Lutin claimed his interest in self-defense led him to watch more videos online. According to Lutin, his goal was to obtain his concealed carry permit. Lutin claimed that one of the self-defense videos he watched online indicated that one should keep shooting "to neutralize" any threat.
Lutin estimated that he had fired over 2000 rounds through his handgun, and repeatedly practiced a drawing motion to obtain "muscle memory." Lutin said he practiced enough that he could release the safety on his gun while drawing it in a single motion.
According to Lutin, Quintero was armed with a handgun "60%" of the time. Two Facebook photos posted by Quintero before the shooting showed Quintero with handguns. Lutin asserted that Quintero usually wore his gun in his waistband in the back where it was covered by his shirt. Lutin conceded he did not see Quintero with a handgun that evening. Lutin likewise carried his gun around the house in his waistband without a holster explaining he did that, "so I can get used to it." Lutin's gun was in his waistband when the fight began. When Quintero reached for his waistband, Lutin claimed he "panicked and quickly reacted" by drawing his gun and firing seven shots at Quintero.
As noted above, the trial court relied on Lutin's testimony and provided the jury with an initial-aggressor qualification. That instruction immediately follows the self-defense instruction and reads:
Provided, however, that if you believe from the evidence beyond a reasonable doubt that Christopher Lutin was the initial aggressor in the use of physical force, the defense of self-protection is not available to him unless:
(a) He did not initially intend to cause death or serious physical injury to Brian Quintero and his initial physical force was not such that he thereby created and knew he was creating a substantial risk of death or serious physical injury to Brian Quintero;
AND
(b) The force returned or threatened by Brian Quintero was such that Christopher Lutin believed himself to be in imminent danger of death or serious physical injury.
The trial court noted—and as do we—that the instruction provided Lutin a means for the jury to apply self-protection language to the intentional murder instruction. This initial-aggressor instruction tracks what Lutin testified happened between him and Quintero. However, for Lutin's use of deadly force to be allowed and self-protection to apply, Lutin needed the jury to accept that Quintero's act of reaching for his waistband permitted Lutin to believe he was in imminent danger of death or serious physical injury.
The language in the trial court's instruction tracks the wording of KRS 503.060, which in relevant part sets out exceptions to self-defense:
(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury
In applying KRS 503.060 to jury instructions concerning the right to use deadly physical force, we have made clear that there must be sufficient evidence in the record to substantiate the instruction:
The criterion is whether movant, in good faith, believed it was necessary to exercise extreme force in saving his own life. It is not every assertion of such belief that is adequate to support a plea of self-defense. It is the whole circumstances which surround the incident that must be considered by the trial judge in deciding whether an instruction on self-defense is proper or whether an instruction on self-defense with limitations is proper. We have held that before such qualifying instructions are proper there must of course be evidence to justify it. In other words, the trial judge must find as a matter of law that there is sufficient evidence to justify such limitations before instructing the jury. Mayfield v. Commonwealth, 479 S.W.2d 578 (1972); Crigger v. Commonwealth, 225 S.W.2d 113 (1949).Stepp v. Commonwealth, 608 S.W.2d 371, 374 (Ky. 1980).
In this case, the record is clear that the trial court carefully weighed Lutin's testimony concerning his panicked reaction to Quintero's purported gesture toward his waistband. Based on the evidence, the trial court provided the jury with a self-protection instruction and further determined the initial-aggressor qualifying instruction was appropriate in conjunction therewith.
Lutin points to Welch v. Commonwealth, 235 S.W.3d 555 (Ky. 2007), in support of his position that he was not the aggressor and the instruction was not warranted. However, in Welch we noted there was little evidence in the record about which of the two combatants was the aggressor. We said in that case: "From our review of the record, we question whether an initial aggressor instruction was proper because the Commonwealth has cited to no specific evidence showing that Welch or Allen was, in fact, the initial aggressor." Id. at 560-61. The evidence about the identity of the initial aggressor in this case was significantly different than the record we reviewed in Welch.
As noted, Lutin said he came out of the bedroom and into the living room to ask Quintero about the Facebook post. Everything that happened including Quintero's death flowed from Lutin's decision to go into the living room and confront Quintero. Quintero did not come into the bedroom to speak to, confront, or fight with Lutin. Lutin chose not to reply to Quintero's comment on Facebook. Instead, armed with a handgun in his waistband, he sought out Quintero.
From Lutin's testimony, a jury could reasonably have found that Lutin did not begin this confrontation with the intention to cause death or serious physical injury to Quintero—or even to injure him at all. However, from Lutin's own testimony, he escalated the confrontation from words to physical action when he twice grabbed Quintero by the arm and tried to drag him toward the front door. According to Lutin, when Quintero broke free the second time and took a swing at Lutin, the confrontation still had not escalated into one involving deadly force. Lutin argued the nature of the confrontation changed when Quintero reached for his waistband. The jury disagreed.
Quintero's purported act of reaching for his waistband was not the initial aggressive act in this fight. Quintero's alleged act is more accurately described as Quintero's reaction to Lutin's continued escalating aggression. Lutin started this fight with words, proceeded to physical struggle, and then drew a weapon and fired seven shots to end it. Lutin's actions in shooting and ultimately killing Quintero were simply the final acts in a fight that he started.
In his own words, Lutin initiated the confrontation and escalated it. In the span of a few moments, Lutin took a disagreement over a Facebook comment from words to physical force and then to deadly force. However, under the trial court's instruction, if the jury believed that Lutin reasonably felt he was placed in imminent danger by Quintero, then Quintero would be responsible for the escalation to deadly force. That choice was properly a jury decision.
The trial court correctly decided that there was enough evidence to instruct the jury about whether Lutin was the initial aggressor. The trial court further found that the jury should be asked, by way of instruction, if they found beyond a reasonable doubt that Lutin was the initial aggressor and further if they accepted his claims of self-defense. The trial court's decision is consistent with established case authority.
The jury could have made different interpretations of what happened between Lutin and Quintero based on Lutin's testimony. If the jury accepted Lutin's claim that Quintero was the initial aggressor and escalated the argument to the point of deadly force, then Lutin was justified in using deadly force to protect himself. If the jury believed Lutin was the initial aggressor and escalated the argument to the point that he shot an unarmed man, then he was guilty of murder. Finally, the jury could have believed Quintero was the initial aggressor, but not that Quintero raised the level of force to that which created a reasonable belief in Lutin that he needed to respond to Quintero's force with deadly force. The trial court correctly provided the jury with instructions that allowed for that choice based on the evidence presented at trial. The trial court did not abuse its discretion in so instructing the jury.
B. First-Degree Manslaughter Instructions
Lutin next argues the trial court erred in denying two first-degree manslaughter instructions—one for intentional murder with extreme emotional disturbance and one based on intent to cause serious physical injury but not death. Lutin preserved these claims for review by submitting proposed jury instructions to the trial court and arguing for language containing extreme emotional disturbance to be included in the intentional murder instruction.
At the close of evidence, the trial court decided to instruct on intentional murder, second-degree manslaughter, and reckless homicide. The trial court included a self-protection instruction and an initial aggressor qualifying instruction.
"In a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." RCr 9.54(1); see also Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999); Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954). Clear and longstanding precedent guides trial courts in providing the parties the fullest opportunity to have their case decided by a properly-instructed jury. The trial court's obligation to instruct the jury extends to lesser-included offenses upon sufficient evidence to warrant the instruction. Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky. 1997). Appellate review of the trial court's decision regarding instructions is reviewed under an abuse of discretion standard. Sargent, 467 S.W.3d at 203.
1. Extreme Emotional Disturbance
Lutin testified that when Quintero reached for his waistband, he "panicked and quickly reacted." That testimony, according to Lutin, was sufficient to require the inclusion of extreme emotional disturbance language in the intentional-murder instruction. As noted, the trial court declined to include extreme emotional disturbance in the intentional-murder instruction.
We have defined extreme emotional disturbance as:
a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986).
When we determine whether there was evidence to warrant an extreme emotional disturbance instruction, "we must consider the evidence in the light most favorable to Appellant." Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005). As with all instructions, there must be evidence in the record to support the requested instruction. In this case, viewing the evidence in the light most favorable to Lutin, it does not rise to the level required for including extreme emotional disturbance language.
In arguing for extreme emotional disturbance language to be included in the instructions, Lutin pointed to his testimony about his behavior after the shooting. After fleeing his house, Lutin went to a nearby Marathon station to call for help. Lutin said he was so panicked that he did not think to step into his nearby bedroom and use his own cell phone to make the 911 call. This contradicts his testimony that he and Felix fought throughout the house and he fled when he escaped his father. Lutin was returned to the residence in the backseat of a Metro Police cruiser and remained in the vehicle. Lutin asked the officer to move the vehicle because he was concerned about being exposed and about possible retaliation.
The Commonwealth responded to Lutin's claims by reading the definition of extreme emotional disturbance from our McClellan case. It argued that being "panicked" is not the same as being "so enraged as to overcome one's judgment." The trial court agreed with the Commonwealth.
The trial court remarked that leaving the scene and being concerned about sitting in the open where he could be shot was more consistent with a reasoned decision as to what to do next than it was with extreme emotional disturbance. The trial court was also troubled with coupling extreme emotional disturbance and self-protection in this case.
A panicked reaction to a circumstance may provide a defendant with justification for a self-protection instruction. A jury may agree with a defendant that his action was reasonable under the circumstances as he perceived them to be because he found himself in fear for his own life to the extent that he needed to use deadly force. That circumstance is entirely separate from whether he experienced and was acting under a state of mind so enraged, inflamed, and disturbed as to overcome his judgment. The two concepts are distinctly separate, and the trial court correctly found extreme emotional disturbance did not apply under the facts of this case.
Lutin correctly points out that extreme emotional disturbance and self-protection instructions may be justified in the same case. As we made clear in Thomas:
Evidence supporting the defense of self-protection may also support the defense of extreme emotional disturbance.170 S.W.3d at 349.
Self-protection and emotional disturbance are separate defenses and the presence of the former does not automatically trigger the latter, although under certain circumstances and with certain evidence, both might well be justified. Carwile v. Commonwealth, 656 S.W.2d 722, 723 (Ky.1983) (emphasis added).
Said another way, the mere fact that a defendant claims to have acted in self-defense does not mean that he was acting under the influence of EED, i.e., that his state of mind was necessarily "so enraged, inflamed, or disturbed as to overcome [his] judgment, and to cause [him] to act uncontrollably from the impelling force of the extreme emotional disturbance . . . ." McClellan, 715 S.W.2d at 468.
Lutin's testimony was the sole basis for his position that extreme emotional disturbance applied in this case and merited an instruction. Lutin claimed that in the heat of a fight over a Facebook comment, he panicked when Quintero reached for his waistband like he was going to draw a gun. That testimony supported, and the trial properly provided a jury instruction for self-protection. However, that testimony does not support extreme emotional disturbance.
Lutin did not further elaborate or describe his state of mind except to say that he was anxious about sitting exposed in the back seat of a police cruiser parked in front of a house where he had just shot and killed someone. The panic and anxiety Lutin describes are not sufficient to meet our definition of extreme emotional disturbance.
The trial court did not abuse its discretion in denying Lutin a first-degree manslaughter instruction including extreme emotional disturbance language.
2. Intent to Cause Serious Physical Injury, Not to Kill
Lutin also asserts the trial court erred in denying his request for a first-degree manslaughter instruction based on an intent to cause serious physical injury rather than death. Lutin's justification for the instruction was also grounded in his own testimony.
At the close of evidence, the trial court reviewed Lutin's proposed instruction for first-degree manslaughter and heard arguments from counsel. The trial court began by asking Lutin's counsel about the tendered instruction. The following exchange highlights the problems the trial court had with the instruction:
Trial court: Let's talk for a minute about "intended to cause serious physical injury." What is your evidence to support that?
Defense Counsel: The evidence would be basically, Chris had stated in his testimony that he didn't intend to kill Quintero. The fact that five shots were fired, there were shots in the back. The jury could listen to all the rest of his testimony—
Trial court: Did he say he didn't intend to kill him?
Counsel: He said that—his testimony was—he drew the gun to defend himself. He reacted.
Trial court: He also talked about being taught to shoot as much as you can or empty the weapon.
Defense Counsel: The jury could think he didn't mean to kill, just stop the victim any way possible including causing serious physical injury.
The Commonwealth argued "there was nothing there" to support the instruction. The Commonwealth further noted Lutin said he emptied the magazine and police found seven spent shell casings in the living room.
Lutin argues that the jurors were free to determine for themselves what firing seven shots at Quintero meant—including whether that evidenced an intent to cause serious injury rather than death. Lutin refers to an unpublished opinion for guidance in this case, claiming it factually resembles the present case. In that case, Hodge v. Commonwealth, 2005-SC-000329-MR, 2006 WL 2708535 (Ky. Sept. 21, 2006), an assailant was shot once in the face and a bystander was killed. There, we said:
Moreover, this Court has previously recognized that the firing of a gun at another person does not necessarily establish an intent to kill as a matter of law: "[a] reasonable juror could conclude that these defendants fired at [the victim] not intending to kill him but intending only to injure him to the extent necessary to effect their escape." Luttrell v. Commonwealth, 554 S.W.2d 75, 78 (Ky.1977) (finding error where the trial court refused to instruct the jury on second degree assault in addition to attempted murder, because "the question of whether intent to kill or intent to injure should be
inferred from the evidence is one that should have been presented to the jury via an instruction on assault in the second degree"). While the circumstances of a shooting may, in many instances, support only a conclusion that the gunman intended his victim's death, the evidence in the present matter was too conflicted to support this singular conclusion.Id. at *7.
In Hodge, this Court detailed the conflicting and, in some instances, self-serving testimony of the various witnesses that claimed to have seen the actual shooting. We specifically noted what the defendant said:
While it is certainly possible for a juror to infer intent to kill by this conduct, Appellant's own testimony justified an instruction embodying his claim that he did not intend Brodie's death. Appellant testified at trial that he "didn't mean to hurt nobody" and specifically denied that he was "trying to kill" Brodie, but rather that he was "trying not to get [his] own life taken." Thus, based on this testimony, the jury could have rejected Appellant's claim that he was acting in self-defense, but believed that he lacked an intent to kill Brodie.Id. at *6.
However, a review of Lutin's testimony supports only one conclusion. Lutin testified that he panicked and quickly reacted when Quintero reached for his waistband like he was going to draw a gun. While in that panicked state, Lutin claimed his video self-defense training led him to fire seven shots to "neutralize the threat." Lutin, as the trial court noted, was never asked and did not say if "neutralize the threat" meant he intended to seriously injure Quintero, not kill him.
As there was no follow-up in Lutin's testimony that provided a clear answer as to what Lutin meant by "neutralizing" Quintero, we look to common usage. The online Oxford Dictionary defines "neutralize somebody/something" as "to remove the threat of someone or something that might be dangerous, especially by killing them or destroying it. People say 'neutralize' to avoid saying 'kill' or 'destroy.'" Oxford Learners Dictionaries, https://www.oxfordlearnersdictionaries.com/us/definition/american_english/neutralize (last visited May 11, 2020).
We note Lutin's actual words when asked why he fired seven shots. He said:
In one of the self-defense tutorials it states when you are in a self-defense situation, one of the things you want to do is unload as many rounds as you can. Mainly because you don't know how the other person is going to take the shots and whether or not they are still going to come at you and either remove that gun or shoot you with it.The intent demonstrated by Lutin's words is very different from what we found in the record in Hodge. In Hodge, the appellant denied an intent to kill anyone. Rather, he indicated that his goal was to keep from being killed. 2006 WL 2708535, at *6. Furthermore, the appellant in Hodge had fired two shots—one warning shot and then a second shot. Id. That is a far cry from the seven shots Lutin fired herein.
For the foregoing reasons, the trial court did not abuse its discretion in denying Lutin's requested instruction for first-degree manslaughter based on an intent to cause serious physical injury rather than death.
C. Comment on Post-Arrest Silence
Lutin asserts the Commonwealth impermissibly commented on his post-arrest silence. He concedes this error is unpreserved, but seeks palpable error review pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26. That standard has multiple components and is set out as follows:
Under RCr 10.26, an unpreserved error may be reviewed on appeal if the error is "palpable" and "affects the substantial rights of a party." Even then, relief is appropriate only "upon a determination that manifest injustice has resulted from the error." Id. An error is "palpable," only if it is clear or plain under current law. Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). Generally, a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). We note that an unpreserved error that is both palpable and prejudicial, still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice; in other words, unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009).
"When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process." Martin, 207 S.W.3d at 5.
Lutin claims the combination of two questions asked by the Commonwealth during his cross-examination and its use of the word "story" during closing argument give rise to the error.
We begin with the two questions asked by the Commonwealth during cross-examination:
Commonwealth: And you never told any of the responding officers that you had just been attacked, correct?
Lutin: No.
Commonwealth: You never told anyone that you had been attacked?
Lutin: No.
In conjunction with these two questions, Lutin's brief identifies eleven different occasions during the Commonwealth's closing argument where the prosecutor used the word "story" in reference to Lutin's version of events. A review of the record reveals that many of those usages were contrasted with other evidence in the case including: the number and location of shell casings found by police, the lack of bullet holes in the ceiling, the location of a projectile next to Quintero's body, and Dr. Stewart's testimony about bullet trajectories in Quintero's body. The Commonwealth pointed out that Felix testified that he woke up to the sound of explosions, he never struggled over the gun with Lutin, and by the time he came into the living room, Lutin was standing over Quintero's body, which was lying on the floor. The prosecutor repeatedly said in closing that the other facts and witnesses' testimony did not support Lutin's version of what happened to the point that, in order for the jury to believe Lutin, it had to disregard everything else.
We begin with the long-established principle that the Commonwealth commenting on a defendant's post-arrest silence is impermissible. As we made clear in Hunt v. Commonwealth:
The Commonwealth is prohibited from introducing evidence or commenting in any manner on a defendant's silence once that defendant has been informed of his rights and taken into custody. See, e.g., Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L.Ed.2d 91 (1976); Romans v. Commonwealth, 547 S.W.2d 128, 130 (Ky.1977). In Romans, we held that it was error to permit the Commonwealth to elicit from a police
detective that at the time of arrest and interrogation, and after receiving Miranda warnings, the defendant "did not come forth with the explanation ... upon which he ultimately relied for his defense." 547 S.W.2d at 130; see also Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). The idea is that because Miranda warnings implicitly assure their recipient that his silence will not be used against him, it would be fundamentally unfair to allow a defendant's post-Miranda silence to be used for impeachment.304 S.W.3d 15, 35-36 (Ky. 2009).
We also made clear in Hunt that not every mention of silence by the Commonwealth qualifies for reversal. In Wallen v. Commonwealth, we said:
[N]ot every isolated instance referring to post-arrest silence will be reversible error. It is only reversible error where post-arrest silence is deliberately used to impeach an explanation subsequently offered at trial or where there is a similar reason to believe the defendant has been prejudiced by reference to the exercise of his constitutional right. The usual situation where reversal occurs is where the prosecutor has repeated and emphasized post-arrest silence as a prosecutorial tool. These circumstances do not exist in this case. Here the prosecutor did not focus upon appellant's silence and the comments were not linked to appellant's story.657 S.W.2d 232, 233 (Ky. 1983).
The questions asked by the Commonwealth did not amount to impermissible comments upon Lutin's silence. We note that during Lutin's direct testimony, he testified as to his conversations with the Metro Police officers who picked him up at the gas station. He said he gave the officers his address and identifying information and asked that the police car be moved to a more secure location. On cross examination, the Commonwealth merely picked up on the conversation between Lutin and the officers—asking Lutin whether he told officers—or anyone—he had been attacked. Lutin responded that he had not, and the Commonwealth moved on. The Commonwealth followed up a line of questioning that had begun on Lutin's direct examination with two quick questions about other possible topics of conversation between Lutin and the officers. That was not erroneous—much less palpably so.
Next, Lutin would have us accept his argument that the Commonwealth's use of the word "story" eleven times in closing argument equates to a repeated and emphasized comment on his post-arrest silence. We reach the same conclusion that we reached in Wallen. The Commonwealth did not focus on Lutin's silence and link that silence to his version of events.
This record reveals that the Commonwealth repeatedly pointed to Lutin's trial testimony being at odds with the other evidence and witness's testimony. Most directly at odds with Lutin's account of what happened was the testimony of Felix, Lutin's father and the only other person in the house at the time of the shooting that survived. The Commonwealth told the jury in closing argument that if there was ever a time for Felix to lie to save his son, the trial was it. The Commonwealth argued that instead of lying, Felix told the truth.
There are three striking factual differences in the trial testimonies of Lutin and Felix. First, Felix said he was awakened by the sound of explosions, while Lutin claimed his father tackled him when he began shooting. Next, Felix said he came into the living room after the shooting to find Lutin standing over Quintero's body, while Lutin claimed he and Quintero were both standing when he started shooting before Felix tackled him to the floor. Finally, Felix denied struggling with Lutin over the gun. Lutin claimed the struggle carried the two men through the front room and the kitchen.
These two men's factual accounts cannot be reconciled. The Commonwealth highlighted the fundamental differences in the two men's testimony by asserting that only one person had a vested interest in the outcome of the trial and therefore a motive to lie. The Commonwealth declared Lutin lied when he testified but calling him a liar did not direct any emphasis to Lutin's post-arrest silence.
"This Court has repeatedly held that a prosecutor is permitted wide latitude during closing arguments and is entitled to draw reasonable inferences from the evidence, Lynem v. Commonwealth, 565 S.W.2d 141 (Ky. 1978), as well as respond to matters raised by the defense. Hunt v. Commonwealth, 466 S.W.2d 957 (Ky. 1971)." Commonwealth v. Mitchell, 165 S.W.3d 129, 132 (Ky. 2005).
In describing this prosecutor's use of the word "story" in closing argument, we refer to Dickerson v. Commonwealth where we said:
First, all of the comments must be viewed through the lens of the wide latitude counsel is afforded in closing arguments. They are, after all, just that—arguments. "A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of the defense position." Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky.1987). As this Court has previously held, the prosecutor does not exceed the proper bounds of closing argument by characterizing the defense theory as "stupid." See Stopher v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky.2001); see also Slaughter, 744 S.W.2d at 412 (approving criticism of defense counsel for presenting a "great octopus" defense and pulling a "scam," and questioning counsel's intelligence). And we have long recognized that it is permissible for prosecutors to comment on the veracity or credibility of witnesses. Chumbler v. Commonwealth, 905 S.W.2d 488, 503 (Ky.1995) (citing Cavins v. Commonwealth, 272 S.W.2d 656 (Ky.1954)).485 S.W.3d 310, 332 (Ky. 2016).
After reviewing the record, it would not be difficult for this court to substitute the phrase "the defendant's version" or "during the defendant's testimony he said . . ." for the single word "story." However, that is not necessary.
There was no error herein—much less one that created an injustice so manifest that it threatened the integrity of the judicial process.
D. Photographs
Finally, Lutin claims the trial court erred in admitting eight photographs—four from the crime scene and four from Quintero's autopsy. The four crime scene photos taken at different angles display Quintero's deceased body lying on the floor and were selected from the numerous photos taken by Metro Police evidence technicians. The four autopsy pictures were from a group of photos taken during Quintero's autopsy by medical examiner Dr. Donna Stewart.
"Like all evidence, [photographs] are subject to the balancing test of KRE [(Kentucky Rules of Evidence)] 403." Hall v. Commonwealth, 468 S.W.3d 814, 823 (Ky. 2015). This Court has said, "[w]e now make clear that in all cases in which visual media showing gruesome or repulsive depictions of victims are sought to be introduced over objection, as with all other types of evidence, the trial court must conduct the Rule 403 balancing test to determine the admissibility of the proffered evidence." Id. KRE 403 states: "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."
We must evaluate the eight photographs in question in conjunction with the other evidence presented at trial in order to determine if their admission runs afoul of KRE 403. In addition to these eight photographs, the Commonwealth introduced a crime scene video, a store security video from the Marathon station, police officers' body camera videos, numerous other photographs (including several of Lutin's handgun and photographs from the Marathon station), handgun projectiles, a blanket, and spent shell casings. The Commonwealth introduced testimony from a medical examiner, lay witnesses, police officers, and evidence technicians. These types of items or testimony are routinely found in homicide cases reviewed by this Court.
The Commonwealth's witnesses and evidence provided critical information about the location, position, and proximity of Quintero's body to the front door, the couch, spent shell casings, and projectiles. This information was fundamental to proving the Commonwealth's case—as well as Lutin's arguments justifying self-defense.
The four crime scene pictures are depictions visible in the crime scene video and consistent with witness's testimony. Lutin argues that because these photographs do not provide any additional information, they should have been excluded pursuant to our holding in Hall. There, we stated: "the admission of all 28 photographs, many of which depicted the same scene or subject merely from different vantage points, was needlessly cumulative." Hall, 468 S.W.3d at 827.
Lutin argues that the crime scene photographs were needlessly cumulative of the crime scene video introduced during a Louisville Metro Police detective's testimony. The video is slightly over three minutes long and presents views of the inside and outside of Lutin and Felix's apartment. The video contains segments that include Quintero's body lying on the living room floor. As noted above, several witnesses testified as to the location of Quintero's body and its position relative to the couch, front door, and spent shell casings.
The crime scene video is a walk-through of the apartment, including the kitchen, bedroom and living room. As the camera enters the living room through the front door, it shows the feet of a body lying on the floor. Later in the video, two small segments each show two seconds of Quintero's body. Finally, the video includes thirty-two seconds of footage of Quintero's body. During this thirty-two second segment, the camera pans over Quintero's body from head to toe.
Quintero's body was fully clothed in the crime scene video and in the crime scene photographs. Quintero's clothing was dark colored and included socks, pants, and a shirt pulled up to mid-chest. A small blue lead sticker used by EMT's to attach medical sensors is visible on the lower chest. No wounds or blood are readily visible. The crime scene video and photographs are not graphic, bloody, or particularly shocking.
Lutin argued at trial that when added to witness testimony and the crime scene video, the four crime scene photographs conveyed the same information and were, thus, highly prejudicial and unnecessarily cumulative. Lutin maintains that argument on appeal.
Two of the autopsy photos in question show the location of the bullet entrance and exit wounds in Quintero's torso, one shows a knee wound, and the last depicts Quintero's face and displays no wounds. The location of entrance wounds shown in three of the autopsy pictures and the projectiles' track through the body were fundamental to both the Commonwealth's case and Lutin's self-defense arguments. The facial photo was used by Dr. Stewart to identify the patient she had autopsied.
Lutin objected by pretrial motion and timely objection when the autopsy photos were offered by the Commonwealth. The trial court overruled the objections and the photographs were introduced during Dr. Stewart's testimony.
Lutin argued there was no issue about Quintero's identity as the victim and the photo showing his face with the eyes closed was cumulative and prejudicial. We will address that claim separately. Lutin argues the remaining three pictures were cumulative as they repeated what Dr. Stewart testified to and demonstrated with a non-graphic x-ray image. Lutin also alleges the probative value of the three photos showing bullet wounds was greatly exceeded by their prejudicial effect.
In reviewing a trial court's decision concerning admission of evidence, we apply an often-repeated abuse of discretion standard: "[t]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (2000) (citing English, 993 S.W.2d at 945)).
As noted earlier, we look to KRE 403 which states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Photographs are treated no differently than other types of evidence.
1. Cumulative Evidence
Lutin argues that the eight photographs are needlessly cumulative and, therefore, should have been excluded under KRE 403. As to the four crime scene photos, Lutin asserts they were cumulative of the crime scene video, officers' testimony, and evidence technicians' testimony. He argues the three autopsy photographs depicting Quintero's injuries were cumulative of the x-ray image and Dr. Stewart's testimony.
We begin with saying that there is a significant difference between needlessly cumulative evidence and evidence that is ordinarily cumulative and merely supplements other evidence or testimony. Seven of the eight photographs Lutin objects to fall into the latter category. As noted, we will evaluate the single photo of Quintero's face separately.
Lutin relies heavily on Hall, 468 S.W.3d 814, in support of his arguments that the photos were needlessly cumulative. In that case, we made clear there is little evidentiary value in multiple photographs of the same wounds taken from different angles. We said:
In Hall's case, the probative value of many of the gruesome photos was quite low. There was no material dispute of the facts that the Commonwealth sought to use the photos to prove. And there was more than enough alternative evidence—including the less gruesome photos, extensive lay and expert witness testimony, and the crime scene video—to easily prove the same facts beyond a reasonable doubt.Id. at 825.
However, the facts in Hall and the facts in the present case are markedly different. In Hall, the jury was shown a ten-minute graphic crime scene video, forty-three crime scene photographs (including multiple and ever-closer graphic wound pictures), and twenty-eight autopsy photos. The trial court allowed everything into evidence and conducted no balancing test between probative value and prejudicial effect.
This Court stated:
Some of the photographs in question were admissible to allow the Commonwealth to prove the corpus delicti, as they showed both the crime scene and the devastating wounds suffered by the victims. But admission of the entire proffer of 28 photos went well beyond that. While a few photos necessary to show the commission of the crimes and the nature of the victims' injuries were properly admitted, the numerous photos introduced thereafter were cumulative and added little, if any, persuasive force to the other evidence proving the crime and the circumstances surrounding its commission. At the same time, the corresponding danger of inflaming the passions of the jury to the prejudice of Hall's affirmative defenses skyrocketed from the admission of these voluminous and incredibly gruesome images.Id. at 826.
In the present case, the Commonwealth introduced a three-minute crime scene video with less than forty-seconds of video of Quintero's body lying on the floor with no visible wounds or blood. The four crime scene photos do not show Quintero's injuries from multiple angles in a series of ever-closer images. These four photos were not well beyond what the Commonwealth needed to prove its case. The four crime scene photos were not "needlessly cumulative" as we found in describing the stack of photos introduced in evidence in Hall. Id. at 820.
There is another fundamental difference between Hall and the present case. In Hall, there was no dispute between the parties over what the defendant did or what the crime scene revealed. In that case, there was both ample undisputed testimony and less-gruesome photos available for the Commonwealth to prove its case. In this case, the facts surrounding Quintero's death were in dispute. Lutin claimed he shot Quintero as he attempted to pull him toward the front door, while the Commonwealth's theory of the case was that Lutin stood at the end of the couch and shot Quintero as he lay there. Therefore, the location and position of Quintero's body in the living room and what conclusions could be drawn from the location were critical. The information shown in the photographs is clearly relevant to the issues in dispute. That other evidence and testimony touches upon and relates some of the same information does not render these photographs "needlessly" cumulative such that their probative value was outweighed by their prejudicial effect.
Here, the four crime scene photos served as shortcuts to display key facts to the jury during witness testimony. The four pictures do not repeatedly and impermissibly plow the same ground.
Likewise, three of the autopsy photos do not merely repeat what Dr. Stewart testified to and demonstrated using the x-ray image. A review of Dr. Stewart's direct and cross-examination reveals the Commonwealth's and Lutin's extensive questions regarding Quintero's torso. The location of the wounds and the projectile paths through the body were critical to clarify the positions of the shooter and victim to each other. Without the photographs, the information Dr. Stewart offered would have been more difficult to understand and apply.
The knee entrance wound was also critical in this case, as the bullet travelled upward from the knee through Quintero's body. Lutin argued that he kept firing as he fell and that shot must have hit Quintero as he also fell from a standing position. The Commonwealth claimed that the knee wound proved that Quintero was rolling or falling off the couch and the bullet traveled up through the body. The knee wound evidence was critical to both sides.
The small number of photographs offered to prove key elements in this case—elements important to both sides' closing augments—were not needlessly cumulative in violation of KRE 403. Seven of the photos in question fall far short of the problems we found and described in Hall, and instead the pictures fall within the accepted and normal amount of cumulative evidence found in a criminal case. The crime scene photos were a shorthand method to approach the critical and contested issue of where in the living room the shooting happened. The autopsy photos were a visible and useful method for educating the jury about Dr. Stewart's testimony and conclusions.
2. Prejudicial effect versus probative value
Lutin claims the eight photographs created a risk of inciting emotionalism in the jury and that their probative value was outweighed by their prejudicial effect. Lutin again refers us to Hall, where we said: "Indeed, in light of their needlessly cumulative and often duplicative nature, it is difficult for us to surmise any reason for introducing all 28 photos other than to elicit unduly prejudicial emotional responses from the jurors." 468 S.W.3d at 828. However, the photographic evidence in Hall was significantly different than what is at issue in this case.
The four crime scene photographs in question are not bloody or graphic. The forty-seconds of crime scene footage of Quintero's body in this case and the four crime scene photographs presented only what was essential for the Commonwealth to prove its case. As we noted above, in this case unlike Hall, what happened at the crime scene was hotly contested. In Hall, not only was what happened uncontested, it was acknowledged. Even in Hall's circumstances where the defense did not dispute the facts of a horrible crime scene, the Commonwealth was entitled to use some of the evidence at its disposal to show the true nature of the crimes and prove its case. The problem we identified in Hall was the trial court allowed the Commonwealth to use everything it had.
We said:
This is the prototypical case where Rule 403 required the trial judge to comb through and exclude many of the offered photographs; it required the judge to recognize and safeguard against the enormous risk that emotional reactions to the inflammatory photos would obstruct the jury's careful judgment and improperly influence its decision, and the judge failed to do so.Id. at 827.
In this case, the trial court reviewed the challenged crime scene photographs at a pretrial hearing held pursuant to Lutin's pretrial motion. When the issue was timely raised at trial, the trial court referenced its earlier ruling. The trial court conducted the required KRE 403 review of the crime scene photographs and properly exercised its discretion.
The four crime scene photos allowed the jury to consider the contested issues of Quintero's body position and its location in the front room. In this case there was no undue prejudice in admitting the four crime scene photos.
Three of the four autopsy photos in question were more graphic than the crime scene photos. However, that alone is not dispositive. We begin with the general rule for photographs, that: "a photograph, otherwise admissible, does not become inadmissible simply because it is gruesome." Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992) (emphasis added).
As to autopsy photographs, we said: "photographs that are probative of the nature of the injuries inflicted are not excluded unless they are so inflammatory that their probative value is substantially outweighed by their prejudicial effect." Hall, 468 S.W.3d at 823. In Staples v. Commonwealth, we held that "[u]nder this rule, we have many times upheld the Commonwealth's use of autopsy photographs introduced in conjunction with a medical examiner's testimony concerning the cause and manner of a homicide victim's injuries and death." 454 S.W.3d 803, 825 (Ky. 2014).
We further noted about the five autopsy photos at issue in Staples:
Although disturbing, as by their nature autopsy photographs tend to be, the five photographs admitted here were no more than were reasonably necessary to provide illustration for the medical
examiner's testimony and to support her findings. They were relevant as tending to show not only that the child had been fatally injured, but also that the fatal head injury was of a severity almost certain to have been inflicted and not likely to have happened accidentally.Id. at 825-26.
Finally, when it comes to evaluating graphic photos, we have held: "[b]ecause the Commonwealth must prove the corpus delicti, such photographs are relevant to show the nature of the injuries inflicted by the defendant upon the victim." Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003). As we have held, the Commonwealth may "prove its case by competent evidence of its own choosing, and the defendant may not stipulate away the parts of the case that he does not want the jury to see." Pollini v. Commonwealth, 172 S.W.3d 418, 424 (Ky. 2005).
As noted in our analysis of Lutin's cumulative claim, three autopsy photos showing entry wounds were significant and relevant to both the Commonwealth and Lutin. The parties questioned Dr. Stewart extensively about the wounds and bullet trajectories. Both parties utilized the two torso pictures in closing argument. Dr. Stewart's conclusions, demonstrated and supported by the autopsy photographs, provided the jury with a reasonable method to understand what happened to Quintero when he was shot. The probative value of the wound photographs in this case was notably high. Although pictures of a seventeen-year old male with five bullet wounds are not easy to look at, the trial court correctly balanced the probative value of these three autopsy photographs with the likelihood of creating undue prejudice.
3. Autopsy photograph of Quintero's face
One autopsy photograph does not fit with the other three autopsy pictures under the above analysis. The single photo of Quintero's face with eyes closed does not show any wounds and is not graphic or bloody. The explanation Dr. Stewart gave for this photograph was that it helped her identify and humanize her patient.
Quintero's identity as the victim of the shooting was never contested or even raised as an issue. However, the Commonwealth presented its case first. Had it not presented evidence that Quintero was the individual upon whom Dr. Stewart performed the autopsy, it could have been an issue in the case.
This photograph was not bloody or gruesome in any way. Its probative value outweighed any potential for undue prejudice, and the trial court did not abuse its discretion in its admission.
III. CONCLUSION
For the foregoing reasons, we affirm Lutin's conviction and corresponding sentence.
All sitting. All concur. COUNSEL FOR APPELLANT: Euva D. May
Assistant Appellate Defender Jazmin Paige Smith
Louisville, KY 40202 COUNSEL FOR APPELLEE: Daniel Jay Cameron
Attorney General of Kentucky Stephanie Lynne McKeehan
Assistant Attorney General