DRIVER (STEPHEN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001996-MR
STEPHEN DRIVER
v.
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 07-CR-00020
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE AND NICKELL, JUDGES; LAMBERT,1 SENIOR JUDGE.
ACREE, JUDGE: Stephen Driver appeals from a judgment of the Marshall Circuit
Court convicting him of first-degree assault committed against his wife, Vera.
This appeal raises issues related to evidence of prior bad acts, alleged prosecutorial
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute(s)
(KRS) 21.580.
misconduct, violation of the jury oath, and failure to instruct the jury on extreme
emotional disturbance. We have examined the evidence and all of the issues
presented, and we conclude that the trial court’s judgment of conviction is proper.
Driver’s offense occurred during an argument with his wife after
discovering that she was having an affair. The assault began when Driver threw a
bottle of window cleaner at Vera and she ran to the bathroom. Driver dragged his
wife out of the bathroom by her hair. He then began pulling her hair out and
choking her. Vera managed to free herself and run out of the house. Driver pulled
her back inside and continued choking and hitting her. Vera attempted to escape in
the couple’s van, but Driver again pulled her inside the house and continued to
assault her. Driver used a belt to both strike and choke Vera and, at one point, she
saw stars and almost lost consciousness. During the course of the assault, Driver
stated multiple times that he would kill Vera.
Officer Dan Melone was dispatched after neighbors called 911 and
reported screams coming from the Drivers’ yard. He arrived on the scene and was
let into the house by two small children. Driver stated that there was no problem
and that his wife was in the shower and could not speak with the officer.
Eventually, Vera appeared with a towel wrapped around her head and contradicted
Driver’s version. She provided a written statement, accusing Driver of choking her
with a belt, hitting her, and pulling out her hair. She was missing large patches of
hair, which had been torn out by the roots, and on the ground beside the van were
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several clumps of what appeared to be Vera’s hair. Vera was taken to the
emergency room for treatment.
The grand jury returned an indictment charging Driver with attempted
murder. At both the preliminary hearing and at trial, Vera recanted part of her
story in an effort to minimize the culpability of her husband with whom she had
been cohabiting while he was released on bond. The Commonwealth introduced
evidence of previous assaults against Vera, as well as Driver’s assaults against his
former wife, at his trial. Driver tendered a jury instruction on assault under
extreme emotional disturbance; however, the trial court refused to instruct the jury
accordingly. Driver was convicted of the lesser included offense of first-degree
assault and sentenced to fifteen years. This appeal followed.
On appeal, Driver first argues that the trial court improperly allowed
evidence of prior bad acts to be introduced. Among the evidence to which Driver
objected were his previous convictions for fourth-degree assault, terroristic
threatening, and wanton endangerment against Vera, as well as for first-degree
assault and wanton endangerment against his former wife. The jury heard that
Driver slapped Vera, threatened to kill her and waved a butcher knife at her in one
incident. During another assault, he hit Vera with his hands, a stick and a clothes
hanger, kicked her, threatened to cut her throat with a butcher knife, poked her in
the leg, pulled her hair, forced her to eat dirt, and forced her into the trunk of the
car. The Commonwealth introduced evidence that Vera knew Driver had been in
prison for assaulting his former wife and that the conviction was based on a
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beating he had given her with a .22 caliber rifle and a baseball bat. Finally, the
jury heard that Driver broke into the home of his former wife, attacked her family
and threatened to burn their trailer.
Admission of evidence of prior bad acts is governed by Kentucky
Rules of Evidence (KRE) 404(b) which reads as follows:
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident; or
(2) If so inextricably intertwined with other
evidence essential to the case that separation of the
two (2) could not be accomplished without serious
adverse effect on the offering party.
Prior to trial, Driver filed a motion in limine, seeking to have evidence of prior acts
of domestic violence excluded. The trial court decided that such evidence was
admissible under KRE 404(b)(1) to prove absence of mistake or accident. The trial
court further admonished the jury that the prior acts could not be taken as proof of
Driver’s guilt of the current charge, but only as evidence that Vera’s injuries were
not the result of accident or mistake.
The Commonwealth sought to prove attempted murder by establishing
the severity of the assault and Driver’s threats to Vera. Driver countered by
attempting to minimize the effect of his threats to kill Vera during the assault. He
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relied in part on Vera’s own testimony, in which she presented a version of events
portraying him as less culpable than the statement she made to the responding
officer on the actual night of the assault. Sticking with her testimony from the
preliminary hearing, Vera denied that Driver had used the belt to choke her and
attributed some of the bruising on her neck to an earlier fall in the yard. She told
the jury she did not believe Driver would ever kill her and that she was not afraid
of him at the time of the trial. In her opening statement, Driver’s trial counsel told
the jury that the assault began as a mutual argument that spiraled into a physical
altercation. She further stated that murdering his wife was never on her client’s
mind.
The Kentucky Supreme Court previously determined that evidence of
a defendant’s prior abuse of a murder victim was admissible under KRE 404(b)(1)
to show absence of mistake when he later killed her. Moseley v. Commonwealth,
960 S.W.2d 460, 461 (Ky. 1997).2 Thus, the purpose for which the
Commonwealth sought to introduce the evidence of Driver’s prior acts of abuse
against Vera was proper under the rule. While Driver is correct that evidence of
his assaults against his former wife was not admissible to prove either intent or
absence of mistake with regard to his assault on Vera, we find the admission of this
evidence to be harmless error. See Greene v. Commonwealth, 197 S.W.3d 76, 84
(Ky. 2006)(defining harmless error as one in which “the substantial rights of the
2
Although the Court upheld the admission of the evidence under KRE 404(b)(1) in Moseley, the
case was nevertheless reversed because the evidence in question was not admissible under any of
the hearsay exceptions found in KRE 803.
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defendant are not affected or there appears to be no likely possibility that the result
would have been different had the error not occurred”).
Driver next contends that the Commonwealth engaged in
prosecutorial misconduct during closing argument. He takes issue with two
sections of the prosecution’s closing argument. First, the Commonwealth referred
to the prior bad acts evidence and argued that these previous acts of violence
against Vera showed his intent to kill her on the night in question. Driver objected,
but was overruled. On appeal, he contends that the Commonwealth’s use of the
prior bad acts evidence violated the trial court’s decision that the evidence would
only be used to show absence of mistake or accident. KRE 404(b).
When reviewing claims of prosecutorial misconduct, the appellate
courts of Kentucky will reverse only if the misconduct is flagrant, or if it meets all
of the following criteria:
(1) Proof of defendant’s guilt is not overwhelming;
(2) Defense counsel objected; and
(3) The trial court failed to cure the error with a sufficient
admonishment to the jury.
Matheny v. Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006)(citations omitted).
Driver’s argument does not satisfy the first element of the Matheney
test. The evidence of Driver’s guilt included Vera’s account of the attack, as well
as photographs of the injuries she sustained. Even on appeal, Driver does not
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argue that Vera’s assault was committed by anyone other than himself. There is
overwhelming proof supporting Driver’s conviction for assaulting Vera.
Additionally, we disagree with Driver’s contention that mention of his
prior acts of violence against his wife was flagrant misconduct in the context in
which it occurred. “Some leeway must be accorded each side in arguing the
meaning and effect of evidence.” Kinnett v. Commonwealth, 408 S.W.2d 417,
418 (Ky. 1966)(citation omitted). We do not believe the language used by the
Commonwealth in closing argument indicates an improper motive such as urging
the jury to find guilt on the present charge due to prior offenses. More directly,
proof of prior bad acts is admissible to prove intent. KRE 404(b)(1).
Driver’s second claim of prosecutorial misconduct is more persuasive.
Near the end of closing argument, the Commonwealth described how the couple’s
small children answered the door when Officer Melone arrived. Although the
children did not testify and their statements to the officer were not introduced, the
Commonwealth speculated that they may have asked him whether he was there to
help them. Driver objected to the Commonwealth being permitted to make the
following argument: “And don’t you think these kids have a right to never, ever,
ever have to answer the door for a police officer again and say something like,
‘Are you here to help us?’” (VR No. 1: 7/12/07; 9:31:43). The Commonwealth
then went on to ask the jury to prevent similar occurrences in the future by
convicting Driver of attempted murder or first-degree assault.
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The Kentucky Supreme Court addressed the propriety of arguing for
the jury to convict in order to avoid undesirable future consequences in Payne v.
Commonwealth, 623 S.W.2d 867 (Ky. 1981), saying:
The main function of the jury is to determine guilt or
innocence. The constitutional right to a trial by jury is
limited to that determination. . . . The consideration of
future consequences . . . have [sic] no place in the jury’s
finding of fact and may serve to distort it. For that reason
we now hold that neither the prosecutor, defense counsel,
nor the court may make any comment about the
consequences of a particular verdict at any time during a
criminal trial.
Payne at 870. Driver claims that the children’s unsubstantiated statements, to
which he objected, were the linchpin of the Commonwealth’s argument proving
his guilt. Clearly, the Commonwealth should not have offered to the jury, as a
reason for conviction, that it would protect the children from the need to allow the
police through the door to rescue their mother. “When prosecutorial misconduct is
claimed, the relevant inquiry on appeal should always center around [sic] the
overall fairness of the trial, not the culpability of the prosecutor.” Maxie v.
Commonwealth, 82 S.W.3d 860, 866 (Ky. 2002). Thus, given the strength of the
evidence against Driver and the overall fairness of the trial, we hold that the
Commonwealth’s improper but brief comments did not affect the outcome of the
trial.
Driver’s third argument involves a question asked by one juror as the
members of the jury were retiring to deliberate after the guilt phase of the trial.
The juror in question asked about sentencing procedures. This suggested to Driver
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that the juror had already determined his guilt prior to deliberating with fellow
jurors. He moved for a mistrial, but his motion was denied by the trial court. He
now argues that this juror violated her oath not to form or express an opinion
regarding his guilt prior to submission of the case to the jury. We disagree.
While examining the issue of jury bias, the Kentucky Supreme Court
previously stated that “[a] basic principle of due process is the right to an unbiased
decision.” Grooms v. Commonwealth, 756 S.W.2d 131,134 (Ky. 1988). Driver
argues that the juror in question “had already decided he was guilty, was ready to
set his sentence, and apparently had no desire to consider the option that he was
not guilty.” (Appellant’s brief at page 16).
The juror’s specific statement, as best it can be discerned from the
recorded transcript, was: “What, what kind of, uhm, sentencing occurs?”
(Appellant’s brief, p. 14). Without more, this statement is no more an indicator of
the juror’s premature decision than it is of his curiosity regarding criminal trial
procedure.
Moreover, Kentucky Rule(s) of Criminal Procedure (RCr) 9.70, which
addresses the admonition given jurors, states that a juror must avoid forming or
expressing an opinion on the trial “until the cause be finally submitted to them.”
As noted by Driver, the juror made her statement as the jury members were retiring
to deliberate. Thus, the case had already been submitted to the jury. Nothing
indicates the juror in question refused to deliberate or be benefitted by the
deliberation of other jurors. Further, the jurors decided to convict Driver of first-9-
degree assault, rather than the charged offense of criminal attempt to commit
murder. Consequently, Driver fails to demonstrate that any jury member was
unable to meaningfully consider all of the available options, including a verdict of
not guilty, because of the question of this one juror.
Finally, Driver contends that the trial court erroneously refused to
instruct the jury on the mitigating factor of assault under extreme emotional
disturbance. KRS 508.040 allows a defendant charged with assault to mitigate his
culpability if he acted under extreme emotional disturbance. In order to mitigate
his culpability, Driver was required to establish that he
acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation
or excuse, the reasonableness of which is to be
determined from the viewpoint of a person in the
defendant's situation under the circumstances as the
defendant believed them to be.
KRS 507.020(1)(a). Had Driver been convicted of assault under extreme
emotional disturbance, he would have faced the penalties for a Class D felony,
rather than the Class B penalties for first-degree assault. KRS 508.040(2)(a).
Driver asserts that the evidence in the case established that, when he
assaulted his wife, he was acting under extreme emotional disturbance.
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.
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Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). The jury heard
evidence that Driver began fighting with Vera because she was having an affair.
He argues that marital infidelity leads to uncontrollable emotions which could
“enrage, inflame, or disturb” a spouse to the point that he loses the ability to
control his actions. (Appellant’s brief at page 19). While that may be true, Driver
failed to present any evidence of the state of his emotions at the time of the assault.
Driver maintains that his wife’s infidelity and the fact that he was admitted to the
hospital after he assaulted her provided sufficient evidence upon which to base a
jury instruction for assault under extreme emotional disturbance. We find this
argument unpersuasive.
Driver declined to testify, as is his right under the Fifth Amendment to
the U.S. Constitution. However, he also failed to present any other evidence at his
trial, such as through the testimony of any of the other witnesses including Vera,
that his learning of her infidelity brought about in him an extreme emotional
disturbance. “Where the situation itself provides no justification or excuse and no
other evidence is presented which would give rise to a subjective determination of
the situation which would furnish a justification or excuse, the court would be
remiss in allowing speculation by the jury.” Thomas v. Commonwealth, 587
S.W.2d 264, 266 (Ky.App. 1979). The mere fact of marital infidelity, without any
evidence of its effect on Driver’s emotions at the time of his attack on Vera, is
insufficient justification for a mitigating instruction.
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For the foregoing reasons, the judgment of the Marshall Circuit Court
is affirmed.
NICKELL, JUDGE, CONCURS.
LAMBERT, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
LAMBERT, SENIOR JUDGE, DISSENTING: I dissent on grounds
that there was prosecutorial misconduct and trial court error with respect to
statements attributed to the parties’ small children and use of such statements to
make a “Send a Message” argument. I also dissent on grounds that the trial court
erred in failing to give an instruction on extreme emotional disturbance as
requested by Appellant.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
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