WILLIAM NICKY MORRIS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 15, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001705-MR
WILLIAM NICKY MORRIS
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS FOUST, JUDGE
INDICTMENT NO. 97-CR-00074
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GARDNER and HUDDLESTON, Judges.
HUDDLESTON, Judge: Following a jury verdict finding William Morris
guilty of first degree stalking, terroristic threatening and two
counts
of
sentenced
harassing
him
imprisonment.
to
communications,
serve
a
four
and
Marshall
Circuit
one-half
year
Court
term
of
Morris claims that the court erred to his prejudice
by admitting evidence of other crimes and bad acts and that, as a
result, his conviction should be set aside.
The jury heard the following evidence.
On Morris and
Jackie Murphy’s wedding day, August 8, 1996, Morris verbally abused
her.
Murphy testified that Morris subsequently grabbed her, threw
her down and threatened to crush her car with his bulldozer.
Within the first two months of the marriage, Murphy sought and
obtained an emergency protective order (EPO) against him.
brief period of separation, they again lived together.
tumultuous relationship did not abate.
situation became worse.
chest into her.
Yet, their
Murphy testified that the
Morris would throw her down and ram his
Morris also continued to verbally accost Murphy.
Murphy obtained another EPO on November 13, 1996.
separated
After a
again,
but
another
brief
period
of
The couple
reconciliation
followed. Murphy asserted that on December 30, 1996, Morris forced
her to have sex.
More allegations of physical and verbal abuse
followed. Morris was then incarcerated for three months. On April
1, 1997, the day following his release, Morris called Murphy using
a fictitious name and made threats.
Morris was again arrested.
The indictment charged that from April 18, 1997, through
July 15, 1997, Morris stalked Murphy. Morris argues that the trial
court erred by allowing introduction of his alleged bad acts and
other crimes that occurred before April 18, 1997.
Kentucky
Rule
of
Evidence
(KRE)
404(b)
governs
admissibility of other crimes, wrongs or acts evidence.
the
According
to the rule, “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith.”
In Bell v. Commonwealth,1 the
Supreme Court said that the trial court should make three inquiries
to determine “the admissibility of other crimes evidence:”
1
Ky., 875 S.W.2d 882, 889, 890 (1994).
-2-
[1]
Is the other crimes evidence relevant for some
purpose other than to prove the criminal disposition of
the accused?
[2]
Is evidence of the uncharged crime
sufficiently probative of its commission by the accused
to warrant its introduction into evidence? [3] Does the
potential for prejudice from the use of other crimes
evidence substantially outweigh its probative value?2
Morris argues that the crimes and bad acts that occurred
before April 18, 1997, were irrelevant.
Morris states that he
offered to stipulate the existence of the EPO, an element of the
crime of stalking.3
Morris also argues that the Commonwealth did
not have to introduce the pre-indictment bad acts and crimes to
establish that he intended to harass, alarm, intimidate or annoy
Murphy.4
According to Morris, these events were unnecessary to
show a course of conduct.
Because he offered to stipulate to the
2
Id.
See also Robert G. Lawson, The Kentucky Evidence
Handbook § 2.25, at 88 (3d ed. 1974) (noting that “[b]ecause
evidence of other crimes is inadmissible to prove the criminal
propensity or predispostion [sic] of the accused, determinations of
admissibility depend first and foremost upon finding that such
evidence has relevancy to the dispute other than to show propensity
or predisposition”).
3
Ky. Rev. Stat. (KRS) 508.140 provides in part that “[a]
person is guilty of stalking in the first degree, [w]hen he
intentionally: Stalks another person; and makes an explicit threat
or implicit threat with the intent to place that person in
reasonable fear of:
Sexual contact . . . [s]erious physical
injury; or [d]eath; and [a] protective order or other judicial
order . . . has been issued by the court to protect the same victim
or victims and the defendant has been served with the summons or
order or has been given actual notice . . . .”
4
KRS 508.130 defines stalking
intentional course of conduct: Directed
persons; [w]hich seriously alarms, annoys,
the person or persons; and [w]hich serves
-3-
as “engag[ing] in an
at a specific person or
intimidates, or harasses
no legitimate purpose.”
existence of the EPO and because the other crimes and bad acts were
not important to show a course of conduct, Morris argues that the
events that occurred before April 18, 1997, were irrelevant.
The Supreme Court observed in Chumbler v. Commonwealth
that “[a] defendant is not entitled to stipulate away the parts of
the case which he does not want the jury to see.”5
While it may
have benefitted Morris to have prevented the jury from learning of
the circumstances which led Murphy to seek an EPO, the Commonwealth
was not required to accept his offer of stipulation.
The real
issue is not whether the Commonwealth had to accept Morris’s offer,
but rather whether evidence of other crimes and bad acts was
relevant and, if relevant, whether the evidence’s probative value
was substantially outweighed by its prejudicial effect.6
According to KRE 401, relevant evidence is “evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.”
Whether
Morris intentionally engaged in a course of conduct that placed
5
Ky., 905 S.W.2d 488, 492 (1995) (citing Gall v.
Commonwealth, Ky., 607 S.W.2d 97 (1980), overruled on other grounds
by Payne v. Commonwealth, 623 S.W.2d 867, 870 (1981)). See also
Barnett v. Commonwealth, Ky., 979 S.W.2d 98, 103 (1998) (citing
Chumbler and noting that the “[a]ppellant further argues that his
offer to stipulate to the seriousness of Harding's injury would
have eliminated the possibility of undue prejudice, and made the
admission of the photographs unnecessary. Generally, however, the
prosecution is permitted to 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”).
6
See Old Chief v. United States, 519 U.S. 172, 179, 117 S.
Ct. 644, 649, 136 L. Ed. 2d 574, 587 (1997)(noting that the
exclusion of relevant, undisputed evidence should be based on
considerations like unfair prejudice or waste of time).
-4-
Murphy in reasonable fear of sexual contact, physical injury or
death is a fact that is of consequence to the determination of his
guilt.
The prior bad acts and crimes that occurred before the
indictment gave the jury the contextual background upon which to
base a finding that Murphy had an objectively reasonable fear of
contact, injury or death.
Therefore, evidence of prior bad acts
and crimes was “relevant for some purpose other than to prove the
criminal disposition of [Morris].”7
The evidence was also probative of whether Morris had
committed the crimes for which he was on trial. Regarding the
second prong of the other crimes inquiry, the Court in Bell said
that “[t]he question is whether the . . . testimony . . . is
sufficiently
probative
of
the
uncharged
act
to
warrant
its
introduction.”8 Murphy’s testimony regarding her relationship with
Morris supported her assertion that Morris had physically and
verbally abused her.
Unlike the witness in Bell, “who had never
come forward with allegations of sexual abuse against appellant
until he learned of his little brother's abuse,”9 Murphy had sought
two EPOs against Morris before he was indicted for stalking.
Accordingly, the evidence of Morris’s prior bad acts and crimes was
both relative and probative.
The final prong of the other crimes and bad acts inquiry
involves a balancing of prejudicial effect and probative value.
7
Bell, 875 S.W.2d at 889.
8
Id. at 890.
9
Id.
-5-
Prejudicial evidence is generally admissible, while evidence that
is unduly prejudicial is not.
Evidence of other crimes and bad acts was undoubtedly
prejudicial.
It gave a context to Morris’ abusive conduct which
provided the basis for understanding why Murphy reasonably feared
Morris.
However, allowing the finder of fact to hear prejudicial
evidence of other crimes is not error per se.
Virtually all
evidence is prejudicial to one side or the other, but only if the
danger of undue prejudice substantially outweighs the evidence’s
probative value may the trial court exclude it.10
The circuit court found that evidence of other crimes and
bad acts was not unduly prejudicial.
The Supreme Court said in
Barnett v. Commonwealth11 that “[a]n appellate court should reverse
a trial court's ruling under KRE 403 only if there has been an
abuse of discretion.”12
Regarding other crimes evidence, the Court
noted in Bell that “there exists universal agreement that evidence
of this sort is inherently and highly prejudicial to a defendant.”13
Thus, in reviewing a trial court’s ruling on the admissibility of
other crimes and bad acts evidence, this Court must examine the
10
KRE 403.
11
Ky., 979 S.W.2d 98 (1998).
12
Id. at 103 (citing Partin v. Commonwealth, Ky., 918 S.W.2d
219, 222 (1996); Simpson v. Commonwealth, Ky., 889 S.W.2d 781, 783
(1994)). See also Bell, 875 S.W.2d at 890 (noting that “[a] ruling
based on a proper balancing of prejudice against probative value
will not be disturbed unless it is determined that a trial court
has abused its discretion”).
13
Bell, 875 S.W.2d at 890.
-6-
ruling utilizing the abuse of discretion standard in light of the
inherently and highly prejudicial nature of such evidence.
Although the testimony concerning the bad acts and other
crimes that pre-dated the dates on the indictment was highly
prejudicial, the trial court did not abuse its discretion by
admitting the evidence because it was probative of the course of
conduct
Morris
engaged
in
which
seriously
alarmed,
annoyed,
intimidated or harassed Murphy and because it tended to show Murphy
had a reasonable fear of sexual contact, serious physical injury or
death.
Morris also argues that the Commonwealth failed to give
him reasonable pretrial notice of its intent to use other crimes
evidence.
KRE 404(c) provides that “if the prosecution intends to
introduce evidence [of other crimes] as a part of its case in
chief, it shall give reasonable pretrial notice to the defendant of
its intention to offer such evidence.”
intent
of
the
provision
is
to
Lawson notes that “[t]he
provide
the
accused
with
an
opportunity to challenge the admissibility of this evidence through
a motion in limine and to deal with reliability and prejudice
problems at trial.”14
Morris made a motion in limine regarding the
other crimes evidence and the court repeatedly dealt with the issue
at trial.
The judgment is affirmed
ALL CONCUR.
14
Lawson, supra, N.2, § 2.25, at 106.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
-8-
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