VILARDO (DOMENICO) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 12, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001894-MR
DOMENICO VILARDO
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 08-CR-00066
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND THOMPSON, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE: Domenico Vilardo appeals the September 15, 2008,
final judgment of the Kenton Circuit Court, which found him guilty of two charges
of assault in the third degree, one charge of menacing, and one charge of being a
persistent felony offender in the first degree. Vilardo challenges the admittance of
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
certain evidence during the trial. Because we hold that the trial court did not abuse
its discretion in its inclusion of the challenged evidence, we affirm.
Vilardo was an inmate at the Kenton County Detention Center when,
on December 4, 2007, Officer Hilton Humphrey detected the smell of marijuana
when walking by Vilardo’s cell. After refusing to comply with a urine test,
Vilardo was escorted to the Intensive Supervision Unit where he was placed in an
isolation cell. Later that day, there was an altercation between Vilardo and several
officers when Vilardo refused to change into a jumpsuit.2 During the struggle,
Vilardo injured his mouth and spat bloody spit which hit officers Ryan Simms and
Stephen Johnson. Vilardo was subsequently placed into a restraining chair. When
Officer Humphrey attempted to perform a check on Vilardo, Vilardo lunged
towards Officer Humphrey and allegedly attempted to bite him.
Vilardo was subsequently indicted by the Kenton County Grand Jury
for four counts of first-degree assault and for being a persistent felony offender.
Detention facility personnel had captured some of the December 4, 2007, incident
on tape, which the Commonwealth wanted to introduce as evidence. Vilardo filed
a motion in limine to prohibit the introduction of the videotaped evidence. The
trial court ruled that the videotape showed Vilardo’s demeanor and aggressive
behavior and denied the motion. Vilardo also filed a motion in limine to prohibit
the Commonwealth from introducing evidence that Vilardo used racial slurs
2
Because the majority of inmates in the intensive supervision unit are on suicide watch,
jumpsuits were mandatory for all inmates in the unit in order to keep inmates from passing
clothing to a suicidal inmate.
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directed at Officer Humphrey. The trial court denied this motion as well, but
informed Vilardo that he could object during trial, as the trial court’s opinion
regarding the evidence may be altered due to other evidentiary developments. A
jury trial was held, and Vilardo was subsequently found guilty of two charges of
assault in the third degree, one charge of menacing, and one charge of being a
persistent felony offender in the first degree. He received a combined sentence of
ten years. This appeal followed.
On appeal, Vilardo argues that he was substantially prejudiced and
denied due process by the admission of the videotaped evidence, the evidence of
his use of racial epithets, and the evidence regarding a prior altercation with
Officer Humphrey in 2004. When reviewing an admission or exclusion of
evidence, we must consider whether the trial court has abused its discretion. Holt
v. Commonwealth, 250 S.W.3d 647 (Ky. 2008).
Vilardo first maintains that the introduction of the entire videotape
was improper because it contained irrelevant material and its prejudicial nature
outweighed any probative value. In support of this argument, Vilardo cites to
KRE3 403, which allows for the exclusion of relevant evidence if “its probative
value is substantially outweighed by the danger of undue prejudice.” The
challenged portion of the videotape features Vilardo agitated, cursing, and yelling.
Vilardo argues that the only relevant portion of the videotape is that portion which
shows him lunging towards Officer Humphrey.
3
Kentucky Rules of Evidence.
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In response, the Commonwealth argues that the probative value of the
videotape was not substantially outweighed by the danger of undue prejudice.
Instead, the Commonwealth argues that it is a direct depiction of the events, it
portrays the demeanor and intent of Vilardo, and substantiated the testimony of
eyewitnesses. We agree with the Commonwealth. It has previously been held that
a videotape was properly permitted when it was helpful to the jury’s understanding
of the events as they played out. See, e.g., Johnson v. Commonwealth, 105 S.W.3d
430 (Ky. 2003). It has also been held that even gruesome videotapes are
admissible if they are relevant and probative. See, e.g., Fields v. Commonwealth,
12 S.W.3d 275 (Ky. 2000). Vilardo has failed to show that the probative value of
the videotape is outweighed by any prejudices. Consequently, he has also failed to
show that the trial court abused its discretion in allowing the videotape.
Vilardo next argues that the trial court improperly allowed testimony
that he was making racial slurs towards Officer Humphrey during the altercation.
Vilardo cites to KRE 404(b), which prohibits evidence of other wrongs or acts in
order to show action in conformity with the charged crime. KRE 404(b) allows
such evidence if it is “offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” It is not clear that the evidence was offered for a purpose allowed
under KRE 404(b). Having not actually heard the testimony, the trial court
deferred a ruling on the motion in limine until the evidence was actually offered. It
was at this time, that the evidence was presented, that defense counsel failed to
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object to the testimony, therefore also failing to preserve it for our review.
However, “a palpable error which affects the substantial rights of a party may be
considered . . . even though insufficiently raised or preserved for review.” CR4
10.26. We may grant relief from such a palpable error if we determine “that
manifest injustice has resulted from the error.” Id. Manifest injustice exists when
the substantial rights of a party were prejudiced; i.e., a substantial possibility exists
that the result of the trial court would have been different. Partin v.
Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996) (overruled on other grounds by
Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)).
Vilardo has failed to show that the inclusion of the testimony resulted
in manifest injustice. Said otherwise, he has failed to show that there is a
substantial possibility that the trial result would have been different had the
testimony been excluded. Between the videotape and the testimony of those
present, the evidence appears to sufficiently support a conviction of Vilardo.
Furthermore, the sentence which the jury recommended was for the minimum
amount of time possible. Accordingly, Vilardo’s argument is without merit.
Vilardo ends his appeal with an attack on the Commonwealth for
eliciting testimony that appellant had a prior altercation with Officer Humphrey in
2004 at the detention center. He again cites to KRE 404(b) and argues that the
testimony led the jury to believe that he was more likely to commit the crimes with
which he was charged. We do not agree. The testimony to which Vilardo refers
4
Kentucky Rules of Civil Procedure.
-5-
took place when the prosecutor asked Officer Humphrey whether he had
previously had an altercation with Vilardo inside the detention center and Officer
Humphrey replied “once, in 2004.” Defense counsel objected; the prosecutor
subsequently apologized and withdrew his question; and the defense counsel
requested no other relief. Accordingly, it would appear that counsel for Vilardo
was satisfied with the prosecutor’s withdrawal. Vilardo may not request relief
from this Court that was not requested from the trial court. Furthermore, the
testimony that was elicited does not appear to be prejudicial in that it would have
altered the outcome of the trial. As previously stated, the evidence against Vilardo
was overwhelming, and he was given the minimum sentence possible.
For the foregoing reasons, the September 15, 2008, final judgment of
the Kenton Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shelly R. Fears
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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