WALTERS (ADAM JUSTIN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ADAM JUSTIN WALTERS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 06-CR-00204
COMMONWEALTH OF KENTUCKY
REVERSING AND REMANDING
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BEFORE: CAPERTON, KELLER, AND WINE, JUDGES.
CAPERTON, JUDGE: Adam Justin Walters appeals as a matter of right his
conviction and sentencing in the Kenton Circuit Court of second degree
manslaughter. Walters contends that the trial court erred in denying retroactive
application of the amendments to KRS Chapter 503 and in admitting evidence of
prior bad acts under KRE 404(b) and 403. While we disagree that KRS Chapter
503 has retroactive application in this case, we agree that the introduction of the
KRE 404(b) material constitutes reversible error. Therefore, we reverse and
remand for a new trial.
The events which transpired were the result of Walters working
alongside a young female named Jasmine at a local fast food chain. According to
Jasmine, Walters made lewd comments and sexually explicit remarks to her.
Jasmine informed her boyfriend, Mathew Maltaner, of the remarks. Maltaner
allegedly became angry and approached Walters outside the fast food
establishment where the two exchanged aggressive, profane words.
Two days later, Maltaner came to pick Jasmine up at the fast food
establishment with his brother, Chris Kearns, and his best friend, Michael Duvall.
Kearns testified that the three dropped Jasmine off at her house and then went back
to the fast food restaurant to again confront Walters about the remarks Walters
made to Jasmine. Walters was not there. Kearns and Maltaner then dropped
Duvall off. At this point the two spotted Walters and his friend Jason Roland
(Roland) in a car. Kearns and Maltaner followed Walters and Roland. Walters
and Roland apparently believed they had lost the car following them and pulled
into a parking spot on the street.
Seconds later, Maltaner’s car pulled directly beside Walters and
Roland. When Roland got out of the car, Kearns intercepted him. Roland testified
that Walters was still in the car when Maltaner started hitting Walters and finally
dragged Walters out of the car.1 Kearns testified that the fight between Walters
Other testimony presented by Walter’s girlfriend Nicole Schneider indicated that Maltaner was
beating Walters severely. A neighbor also testified to similar events.
and Maltaner lasted only about twenty or thirty seconds. Kearns testified that both
men were standing upright when they fought and he did not see Maltaner beat
Walters while in the car nor drag him out. All eye witnesses agree that Maltaner
went to his car after the fight and physically collapsed. Maltaner died of multiple
stab wounds sustained during the fight.
After hearing testimony from the eye witnesses, the investigating
police officers, and a forensic pathologist, the jury convicted Walters of seconddegree manslaughter.
Prior to trial, Walters counsel made a motion to dismiss the charges in
light of the recent amendments to KRS Chapter 503 regarding self defense. As the
amendments to KRS Chapter 503 went into effect after the death of Maltaner,
counsel asked the trial court to retroactively apply the amendments pursuant to
KRS 446.110. Specifically, Walters argued that the newly enacted KRS 503.085
rendered him immune from prosecution. After a hearing on the motion, the trial
court disagreed and found that KRS 446.080 foreclosed the retroactive application
since the legislature did not expressly make the newly enacted statute retroactive.
The trial court further concluded that the newly enacted statute did not mitigate an
existing penalty but instead was a substantive change to the law. Walters first
claim of error is from the denial of this motion.
The proscription against retroactively applied statutes is found in KRS
446.080. Two exceptions to KRS 446.080 are (1) an express statement by the
legislature allowing retroactivity or (2) KRS 446.110 wherein a statute may be
retroactively applied “if any penalty, forfeiture or punishment is mitigated by any
provision of the new law, such provision may, by the consent of the party affected,
be applied to any judgment pronounced after the new law takes effect.
Our discussion now turns to KRS 508.085 and whether it falls within
the KRS 446.110 exception. The newly enacted KRS 503.085 grants immunity
(1) A person who uses force as permitted in KRS
503.050, 503.055, 503.070, and 503.080 is justified in
using such force and is immune from criminal
prosecution and civil action for the use of such force,
unless the person against whom the force was used is a
peace officer, as defined in KRS 446.010, who was
acting in the performance of his or her official duties and
the officer identified himself or herself in accordance
with any applicable law, or the person using force knew
or reasonably should have known that the person was a
peace officer. As used in this subsection, the term
“criminal prosecution” includes arresting, detaining in
custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard
procedures for investigating the use of force as described
in subsection (1) of this section, but the agency may not
arrest the person for using force unless it determines that
there is probable cause that the force that was used was
(3) The court shall award reasonable attorney's fees,
court costs, compensation for loss of income, and all
expenses incurred by the defendant in defense of any
civil action brought by a plaintiff, if the court finds that
the defendant is immune from prosecution as provided in
subsection (1) of this section.
Id. (emphasis added). The effective date of the statute was July 7, 2006, five
months after the death of Maltaner.
The legislature did not, by any express statement, make KRS 503.085
retroactive. Thus to be retroactive, KRS 503.0852 must mitigate punishment.
Walters argues that the grant of immunity mitigates punishment by precluding it.3
The Commonwealth argues that KRS 503.085 does not mitigate any penalties.
The Commonwealth interprets KRS 446.110 as requiring mitigation of sentence
before the new, revised, or amended statute can be retroactively applied. The
Commonwealth interprets KRS 503.085 as not addressing itself to any sentencing
The Kentucky Supreme Court addressed KRS 446.110 in Phon v.
Commonwealth, 17 S.W.3d 106 (Ky. 2000) and in Bolen v. Commonwealth, 31
S.W.3d 907 (Ky. 2000). In Phon the court held that the new crime bill which
added life without parole to capital sentencing scheme was a mitigating provision
that could be retroactively applied as a life sentence without the possibility of
parole is a lesser penalty than death. In Bolen the court held that an amendment to
the persistent felony offender (PFO) statute was a mitigation of sentence. More
specifically, the amendment was mitigating as it eliminated an eligible person's
sentence from enhancement as a persistent felony offender by reason of a previous
conviction for possession of drug paraphernalia. Thus, retroactive application of
Walters also argues that KRS 503.055, which allows the use of defensive force regarding
dwelling, residence, or occupied vehicle, should be combined with KRS 503.085 to show
circumstances that, though previously prosecutable, would now be excluded from prosecution.
Walters states that “when a person’s eligibility to receive a sentence is eliminated by an
amendment, the amendment is definitely mitigating.” He views the newly enacted portions of
KRS Chapter 503 as amendments and not additions.
the statute was appropriate under KRS 446.110. Bolen requires that the
amendment be mitigating before KRS 446.110 takes effect. Id at 909.
We do not agree with Walters that KRS 503.085 mitigates
punishment. In Bolen the court undertook an analysis of the PFO statute, which is
a hybrid creature. While one may be convicted of a PFO, PFO itself serves only to
enhance a sentence of a qualified offender. Simply stated, a person cannot merely
commit PFO; it must be based on the commission of another crime.
The newly enacted KRS 503.085 provides immunity from prosecution
unlike the PFO statute which has the effect of increasing a sentence. We do not
equate Walters’s immunity from prosecution argument with mitigation of
punishment contemplated by KRS 446.110. KRS 503.085 gives immunity from
prosecution, i.e., bars prosecution. This is unlike the PFO statute which enhances
sentences for repeat offenders. Thus, there was no error in the trial court’s denying
retroactive application of KRS 503.085.
Walters and the Commonwealth make various arguments as to the
application of KRS 503.085 at the trial court proceedings. In that we have decided
not to retroactively apply KRS 503.085, we decline to address the mechanics of its
Walters second claim of error is that the trial court improperly
admitted KRE 404(b) evidence. The trial court held an evidentiary hearing on the
proposed evidence. After the hearing the trial court ruled that the statements could
be introduced at trial. Walters claims that this is error. The Commonwealth argues
that the evidence was properly admitted.
For discussion, we note that the comments in question should be
divided into two separate statements; one, the lewd statements by Walters to
Jasmine and two, the statements of hostility between Walters and Maltaner. Both
sets of statements occurred at the fast food restaurant well before the stabbing of
Maltaner. Over the objection of Walters, the trial court admitted both sets of
statements. The statements between Walters and Maltaner served to escalate the
situation between the two of them and given the discretion of the trial court were
properly admitted. Our discussion focuses on the statements made by Walters to
Jasmine which were sexually explicit and addressed Jasmine’s chastity and
promiscuity, as well as Walters offering to show his male anatomy to her.
All statements made by Walters fall under KRE 404(b). KRE 404(b)
makes evidence of other crimes, wrongs, or acts, inadmissible to prove the
character of a person in order to show conformity. Two exceptions exist within the
rule. KRE 404(b)(1) allows admission of the evidence if offered for some other
purpose, such as motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. KRE 404(b)(2) allows admission of
the evidence if it is so inextricably intertwined with other evidence essential to the
case that separation of the two could not be accomplished without serious adverse
effect on the offering party. In determining the admissibility of “other acts”
evidence, it is useful to analyze the evidence using a three-tier inquiry involving
its: (1) relevance, (2) probativeness, and (3) prejudice. Bell v. Commonwealth, 875
S.W.2d 882 (Ky. 1994). Moreover, a trial court's decision to admit evidence will
not be disturbed absent abuse of discretion. Matthews v. Commonwealth, 163
S.W.3d 11, 19 (Ky. 2005).
Walters argues that the statements made by him to Maltaner should
have been excluded. The Commonwealth argues that the statements of Walters
tended to show motive, absence of mistake, preparation, and plan under KRE
404(b)(1). Using the three-tier analysis of Bell, the evidence regarding the
comments made by Walters to Maltaner were properly admitted. The hostile
statements certainly were probative of motive, absence of mistake, preparation, or
plan and were not so prejudicial as to warrant exclusion. Therefore, the trial court
properly admitted those statements into evidence.
Walters argues that the statements made by him to Jasmine were
highly prejudicial and any probative value was substantially outweighed by their
prejudicial effect. The Commonwealth argues that the court properly admitted the
evidence because the lewd comments to Jasmine were inextricably intertwined
with the evidence essential to the case. Therefore, an analysis under KRE
404(b)(2) is appropriate for this set of statements.
“KRE 404(b)(2) allows the Commonwealth to present a complete,
unfragmented picture of the crime and investigation.” Adkins v. Commonwealth, 96
S.W.3d 779, 793 (Ky.2003), citing Robert G. Lawson, Kentucky Evidence Law
Handbook § 2.25 at 96 (3d ed. Michie 1993): see also Major v. Commonwealth,
177 S.W.3d 700, 708 (Ky. 2005). “[T]he key to understanding this exception is the
word ‘inextricably.’ The exception relates only to evidence that must come in
because it is so interwoven with evidence of the crime charged that its introduction
is unavoidable.” Funk v. Commonwealth, 842 S.W.2d 476, 480 (Ky. 1992).
(internal citation omitted).
Using the three-tier analysis of Bell, the evidence regarding the
comments made by Walters to Jasmine should have been excluded as the probative
value of the statements were substantially outweighed by the prejudicial effect.
Wilson v. Commonwealth, 199 S.W.3d 175(Ky.2006). The lewd statements made
by Walters were not within the bounds of acceptable parlance between co-workers
and would only serve to elicit strong emotional responses from the jury.
Moreover, the statements to Jasmine are not so inextricably interwoven4 that the
introduction of the evidence was unavoidable. The jury could have simply been
told that the animosity between Walters and Maltaner was the result of an incident
between Walters and Jasmine. Certainly the testimony could have elaborated on
the conversation between Walters and Jasmine without a verbation recitation.
Thus, it was possible for the jury to be apprised that statements were made without
the prejudicial effect that would necessarily result if the statements were
introduced into evidence verbatim. See Funk at 480-481. The introduction of the
We do note that the timing of the statements was crucial. If the lewd statements made by
Walters to Jasmine had occurred in front of Maltaner and immediately precipitated the stabbing
our analysis might be different.
highly prejudicial evidence exceeded the trial court’s discretion and constitutes
For the foregoing reasons, we reverse and remand for a new trial.
BRIEFS AND ORAL ARGUMENT
BRIEF AND ORAL ARGUMENT
J. Brandon Pigg
Gregory D. Stumbo
Samuel J. Floyd, Jr.
Assistant Attorney General
“An error is reversible if the erroneously admitted evidence has a reasonable possibility of
contributing to the conviction; it is harmless if there is no reasonable possibility that it
contributed to the conviction.” See Anderson v. Commonwealth, 231 S.W.3d 117(Ky.2007) and