Opinion
NO. 2013-CA-000775-MR
08-01-2014
RAYMOND K. WILSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 12-CR-00273
OPINION
AFFIRMING
BEFORE: DIXON, MOORE AND NICKELL, JUDGES. MOORE, JUDGE: Raymond K. Wilson appeals from a judgment entered by the Hardin Circuit Court convicting him of first-degree assault and tampering with physical evidence. After careful review, we affirm.
On April 8, 2012, Wilson drove to the home of ex-girlfriend Tina Ogle, who was having a birthday party for her son. Wilson initially passed by the house because he thought there might be trouble if he attended, but ultimately returned. Wilson arrived at the house carrying a knife in his back pocket. Michael York approached, introduced himself to Wilson, and asked whether Wilson remembered him. When Wilson responded in the affirmative, York punched Wilson in the mouth. York testified that he hit Wilson due to prior instances of "domestic disputes" between Wilson and Ogle. Wilson fell to the ground after being punched. Various witnesses had different accounts of what transpired next; however, all agree that Wilson stabbed victim Gerald Tharpe. York testified that Wilson charged at him with the knife, shouting "I'm going to kill you," and Tharpe was stabbed by Wilson after jumping in the way. Wilson testified that he pushed Tharpe after seeing Tharpe standing over his brother, Stevie Hart. Wilson fell down and claimed that someone was hitting him in the back of the head as he stood up. Wilson testified that he stabbed the man standing behind him, not knowing the victim was Tharpe. Hart and Wilson fled in Hart's truck. Wilson admitted that he threw the knife out of the window into a river.
Following a jury trial, Wilson was convicted and sentenced to fifteen years for assault in the first degree and two years for tampering with physical evidence. On appeal, Wilson argues that the verdict should be set aside and the matter be remanded for a new trial because he was denied a fair trial for several reasons. Moreover, he argues that these errors together have resulted in cumulative error.
First, Wilson argues that the trial court erred by permitting evidence of prior domestic disputes involving Wilson and Ogle. Three days prior to the trial, the Commonwealth filed a notice of intent to present evidence under Kentucky Rules of Evidence (KRE) 404(b). On a prior occasion, Wilson admittedly used a knife to cut Ogle and later lied about the incident, calling it an accident. The Commonwealth argued that this prior bad act showed the absence of mistake or accident, and showed motive, opportunity, and intent. Wilson filed a motion in limine to exclude the evidence. The trial court granted the motion in limine, finding that the incident was not similar to the facts of this case.
After the first day of trial, the Commonwealth again raised the prior stabbing incident to the court. After meeting with York, the Commonwealth advised the court that the incident would be unavoidably intertwined with York's testimony because it was York's reason for punching Wilson. During a conference regarding the incident, Wilson argued that York's state of mind was not relevant. The trial court held that the incident was relevant in several ways, including Wilson's self-defense claim. If knowledge of the prior incident was circulating in the community, Wilson's knowledge of what danger he might face at the party was relevant to his subjective belief of whether he needed to act in self-defense. In addition, the trial court found that without information of the incident, the jury would be confused as to why York punched Wilson with no provocation. As such, the trial court believed that it would be difficult to completely avoid the topic. It held that witnesses could refer to the prior incident generically as a "domestic dispute," without mentioning the details of the stabbing. To facilitate this, the trial court determined that it would permit the Commonwealth to instruct witnesses not to discuss the details of the incident and to ask leading questions.
During his testimony, York acknowledged punching Wilson. The Commonwealth asked, "You had previously told me that that was because of a prior domestic dispute between Ms. Ogle and Mr. Wilson, is that correct?" York responded, "several prior domestic disputes." Appellant's counsel objected and moved for a mistrial, arguing that only one incident between Wilson and Ogle had been previously discussed and disclosed in discovery. The trial court overruled the objection, finding that there was no reason for the jury to infer the domestic disputes involved violence based on York's response. The trial court instructed the Commonwealth to repeat the question and ask York for a "yes or no" response.
On appeal, Wilson argues that he was denied a fundamentally fair trial due to the testimony of the prior domestic disputes as prior "bad acts." Our Supreme Court has articulated a three-part test to determine the admissibility of prior "bad acts" evidence. Bell v. Commonwealth, 875 S.W.2d 882, 889-90 (Ky. 1994). This test, which is a combination of KRE 403 and KRE 404(b), includes three inquiries: relevance, probativeness, and prejudice. In evaluating whether the evidence is relevant for some purpose other than to prove criminal disposition, the trial court found that it was relevant to show Wilson's knowledge of the danger he might face at the party and his subjective belief of the necessity to defend himself with deadly force.
We find no error in the trial court's determination of relevance. Wilson testified that he had doubts about going to the party and knew he should not have attended it, indicating that he may have been aware that knowledge of the prior strife between Ogle and him was circulating and that his attendance at the party posed a potential danger to him.
In weighing the probative value and prejudicial effect, the trial court acknowledged that the evidence had little probative value. Nonetheless, the court determined that the prejudicial effect did not outweigh the probative value if the witness did not mention a prior stabbing, but instead referred to the incident generically as a "domestic dispute." Even if the prejudicial testimony of "several" domestic disputes outweighed the probative value the evidence had, the prejudicial effect was minimal and amounts to harmless error. The statement was brief in nature and did not mention any prior violence.
Wilson argues that the "prior domestic disputes" statement suggested violence when coupled with another statement by York that Wilson "had been known to use" a knife. Wilson, however, did not object to this statement at trial and does not request review for palpable error; therefore, it is not preserved for appellate review. Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).
Next, Wilson argues that the trial court erred in permitting jurors to submit written questions to witnesses. He argues that this process invited prejudice by allowing jurors to ask inappropriate questions and illicit improper answers. After the trial court instructed the jury on the process by which it may ask questions, the court specifically asked the parties whether they had any objections. Appellant's counsel did not voice an objection to the process and does not request palpable error review. Therefore, a challenge to the process by which jurors were permitted to ask questions is not preserved for review. Id.
In addition to challenging the practice of allowing jurors to ask questions, Wilson complains about three specific questions. The first question asked York, "If you saw the knife, why did you walk up to Wilson?" In his response, York mentioned that Wilson previously "tormented [Ogle and her son, Josh] enough. And I knew he would hit Josh." Wilson did not object to the question when it was reviewed with counsel at the bench and outside the hearing of the jury. After York's response, Wilson did not voice an objection, move to strike the testimony, or request an admonition. As the trial court had no opportunity to rule on the challenge to the testimony, the issue is not properly preserved for appellate review. Kesler v. Shehan, 934 S.W.2d 254, 256-57 (Ky. 1996).
Next, Wilson argues the following question to York, and his response, denied him a fair trial: "Was there anything about what Mr. Wilson said or how he was acting... that made you think he was going to start a fight?" Wilson did not object to this question when it was discussed at the bench. York responded that Wilson "tormented them so much." Wilson objected, and the trial judge directed York to focus on what he saw that night. Wilson did not ask for any further relief. By directing York to focus on the events at issue, the trial court granted Wilson the relief requested. Wilson did not move to strike York's comment and did not ask for a jury admonishment or any further relief. As such, this issue is not properly preserved for appellate review. Id.
Next, Wilson alleges that the trial court erred by allowing the jury to ask him why he believed there might be trouble if he attended the party. This question was read to both parties' counsel at the bench. There was a discussion about whether this information was previously covered at trial; however, Wilson did not voice an objection to the question. Therefore, this issue is not preserved for review. Id.
Next, Wilson argues that the trial court erred by denying his motion for a mistrial after a witness, Detective Allaman, referred to Wilson's nickname "Outlaw." Prior to the trial, the court granted Wilson's motion to prevent the use of this nickname. The Commonwealth's witnesses were instructed accordingly. During the trial, Detective Allaman nonetheless testified that Wilson was approached by an individual who asked Wilson whether he was "Outlaw." Wilson objected and moved for a mistrial. The court overruled the motion for a mistrial, but struck the testimony and admonished the jury to draw no inferences from the nickname.
A party must make a clear showing of "manifest necessity" for a mistrial, and we review a trial court's denial of a motion for a mistrial for an abuse of discretion. Winstead v. Commonwealth, 327 S.W.3d 386, 402 (Ky. 2010). A jury is presumed to follow the trial court's admonishment. Burton v. Commonwealth, 300 S.W.3d 126, 143 (Ky. 2009). As such, Wilson cannot show a manifest necessity for a mistrial in light of the fact that the jury was admonished to disregard this one-time use of his nickname.
Next, Wilson alleges prosecutorial misconduct when the Commonwealth told the jury during its opening statement "not to believe everything that the defense is going to be pitching to you." Wilson alleged that the statement was improper because it calls the defense counsel liars. The trial court disagreed and found that the statement did not offend ordinary sensibilities. Rather, it translated as a caution to the jurors to keep an open mind. We agree and find no abuse of discretion.
Lastly, Wilson argues that the cumulative effect of the alleged errors entitles him to relief. 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." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Given our disposition of the issues presented, Wilson is not entitled to cumulative error relief.
Based on the foregoing, we affirm the judgment of the Hardin Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky