SCHERRETZ (JEFFREY ALAN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JEFFREY ALAN SCHERRETZ
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN A. HAYDEN, JUDGE
ACTION NO. 06-CR-00195
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: MOORE, NICKELL AND STUMBO, JUDGES.
MOORE, JUDGE: Jeffrey Alan Scherretz appeals from a judgment of the
Henderson Circuit Court in which he was convicted of manslaughter in the second
degree and burglary in the first degree and was sentenced to 15 years in prison. On
appeal, Scherretz claims the jury instructions were in error; the Commonwealth
failed to comply with a discovery order; the trial court erred by holding a “dry-run”
of a defense witness’s testimony; prosecutorial misconduct during the
Commonwealth’s closing argument; he was prejudiced by being forced to establish
the chain of custody regarding DNA evidence; the trial court violated his
constitutional rights when one of his witnesses, who was incarcerated, was not
transported for trial; and cumulative error. After carefully reviewing the record
and the appropriate law, we affirm Scherretz’s conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Anna Green was strangled to death in her home in Henderson,
Kentucky, during what appeared to be the commission of a burglary and robbery.
Although Scherretz was only one suspect among many investigated by the
Henderson Police Department in connection with Green’s death, he was the only
person indicted. He was initially charged with murder, robbery in the first degree
and burglary in the first degree. At the Commonwealth’s request, the trial court
amended the indictment, adding one count each of conspiracy to commit murder,
conspiracy to commit robbery in the first degree, and conspiracy to commit
burglary in the first degree.
At trial, the lead detective testified that someone had broken into
Green’s house and ransacked two bedrooms. The police found Green lying facedown in a bedroom. Green’s head was bound by duct tape, covering only her eyes.
Her arms were bound behind her back with duct tape, and her legs were also bound
with duct tape. Another officer testified that a roll of duct tape was found on a
piece of property adjacent to Green’s property.
The medical examiner also testified. She found three parallel, red
bruises on Green’s neck, consistent with the marks being made by a hand. The
medical examiner attested that Green was killed by asphyxia caused by manual
An analyst from the Kentucky State Police (KSP) Crime Lab testified
that the duct tape used to bind Green’s legs and her head came from the roll of duct
tape found near her home. Additionally, a KSP fingerprint analyst testified he
found one fingerprint on the duct tape used to bind Green’s legs and that print was
made by Scherretz’s right thumb.
Beyond the forensic evidence, the Commonwealth put on evidence
that Scherretz knew Green; her habits; had been inside her home before; and was
aware that Green may have had several thousand dollars in cash in her home.
After the close of the evidence, the trial court instructed the jury on
intentional murder, wanton murder, manslaughter in the second degree, robbery in
the first degree, complicity to robbery in the first degree, burglary in the first
degree, and complicity to burglary in the first degree. Despite the multitude of
instructions, the jury only found Scherretz guilty of second-degree manslaughter
and first-degree burglary. The trial court sentenced Scherretz to serve a total of 15
years in the state penitentiary.
A. INSTRUCTION REGARDING SECOND-DEGREE MANSLAUGHTER
On appeal, Scherretz insists the evidence did not support a jury
instruction regarding manslaughter in the second degree. Scherretz avers Green
died from asphyxia by strangulation and that strangulation can only be an
intentional act. Relying on Commonwealth v. DeHaven, 929 S.W.2d 187, 188 (Ky.
1996), Scherretz argues it is improper to instruct on second-degree manslaughter
when the evidence adduced at trial established that the victim was intentionally
killed.1 Furthermore, relying on Mills v. Commonwealth, 44 S.W.3d 366, 372 (Ky.
2001), Scherretz claims the Supreme Court of Kentucky recognized that “death by
strangulation is the type of conduct that would warrant a murder instruction, not
some other instruction.” According to Scherretz, there was no evidence adduced at
trial that he engaged in wanton, reckless or unintentional behavior, resulting in
Green’s death; thus, he reasons the second-degree manslaughter instruction was
not supported by the evidence.
It is well settled in the Commonwealth that the trial court has the
responsibility to instruct the jury on the whole law of the case, giving instructions
that are applicable to every state of the case deducible from or supported to any
extent by the evidence adduced at trial. Lawson v. Commonwealth, 85 S.W.3d
571, 574 (Ky. 2002).
In the present case, the trial court instructed the jury regarding
manslaughter in the second degree. For the Commonwealth to convict Scherretz of
second-degree manslaughter, it had to prove that he wantonly caused the death of
While we do not necessarily disagree with Scherretz’s proposition, we note that the holding in
DeHaven simply does not support this proposition.
Anna Green. See KRS2 507.040. According to Scherretz, in Mills, the Supreme
Court held that death by strangulation cannot be anything other than intentional.
However, the holding in Mills does not support Scherretz’s proposition at all.3 In
fact, the Supreme Court has held the opposite. In Hudson v. Commonwealth, 979
S.W.2d 106, 109 (Ky. 1998), the victim died from asphyxia by manual
strangulation. The appellant was charged with murder. Id. at 108. At trial, the
court instructed the jury on intentional murder and wanton murder. Id. at 109. On
appeal, the appellant argued the fact that the victim had been strangled to death
could not be evidence of wanton conduct. Id. at 110. According to the Supreme
[i]ntent to kill can be inferred from the extent and
character of a victim’s injuries. Further, because a
person is presumed to intend the logical and probable
consequences of his conduct, “a person’s state of mind
may be inferred from actions preceding and following the
charged offense.” However, whether a defendant
actually has an intent to kill remains a subjective matter.
Moreover, neither the inference nor the presumption of
intent [is] mandatory. Indeed, if they were, most trials
would be mere formalities.
Once the facts of a killing are established, whether the act
itself is murder depends upon the mind of the killer. The
state of that mind at the time of the killing is almost
never clear, not even to the defendant himself . . . .
Kentucky Revised Statute.
Contrary to Scherretz’s assertion, the Mills Court neither discussed death by strangulation nor
hold that strangulation could only be an intentional act. The victim in Mills was not strangled
but was both shot and stabbed. Mills, 44 S.W.3d at 368-369. Thus, Mills is factually
distinguishable from the case at hand.
To say that the method and means of [the victim’s] death
[strangulation] only support an instruction on intentional
murder is to make the inference of intent mandatory.
Id. Consequently, Scherretz’s proposition that death by strangulation can only
support a jury instruction of intentional murder is not supported by prior case law.
When the rationale of Hudson is combined with the evidence in this
matter, we find no error in the manslaughter instruction. Green was bound by duct
tape and strangled to death. Scherretz’s right thumb print was found on the duct
tape used to bind Green’s leg. Scherretz testified that he must have left his print on
the duct tape when he helped Green tape up a cardboard box three days prior to the
murder. In his brief, Scherretz makes much of this testimony, insisting it was
uncontradicted and unassailed.
Despite Scherretz’s testimony, the jury was under no obligation to
accept it as true. See Dunn v. Commonwealth, 286 Ky. 695, 151 S.W.2d 763, 764765 (1941); Gillispie v. Commonwealth, 212 Ky. 472, 279 S.W. 671, 672 (1926).
It was within the jury’s discretion to believe all, part or none of Scherretz’s
testimony. Given the evidence, we cannot say it was reasonable for the jury to
infer Scherretz strangled Green to death, satisfying the element that he caused
Pursuant to Hudson, the jury was not required to conclude Scherretz
intended to kill Green; thus, the jury could reasonably conclude Scherretz had
acted wantonly. While the evidence adduced against Scherretz was primarily
circumstantial, it was sufficient to support an instruction on second-degree
manslaughter. See Baker v. Commonwealth, 307 S.W.2d 773, 775 (Ky. 1957)
(“Indirect and circumstantial evidence may be the basis of establishing the
necessary elements of an offense. The jury may consider circumstances from
which it may reasonably infer guilt, and in such instances, the question of guilt or
innocence is for the jury.”) Thus, the trial court did not err when it instructed the
jury on manslaughter in the second degree.
B. INSTRUCTION REGARDING FIRST-DEGREE BURGLARY
In addition to challenging the instruction regarding second-degree
manslaughter, Scherretz claims the evidence at trial did not support an instruction
on first-degree burglary. According to Scherretz, there is no evidence he was in
Green’s home the day she was killed. Scherretz argues that his fingerprint does not
establish when he was in Green’s home, and Scherretz points out the
Commonwealth’s fingerprint expert conceded that point. Furthermore, Scherretz
testified he was in Green’s home three days before her murder, helping her place
duct tape on a box at Green’s request. In addition, he claims the Commonwealth
did not prove the elements of burglary in the first degree because it did not prove
he caused physical injury to Green.
Turning to the elements of first-degree burglary as they pertain to this
case, according to KRS 511.020, to sustain a conviction for first-degree burglary
the evidence must demonstrate that Scherretz: 1) with intent to commit a crime, 2)
knowingly entered or remained unlawfully in a building, and 3) while in the
building, caused physical injury to a person who was not a participant in the crime.
The evidence established Scherretz’s thumbprint was found on the duct tape used
to bind Green’s legs. Based on this evidence, the jury could reasonably conclude
Scherretz was present in Green’s house when her house was ransacked and she was
killed. Consequently, we cannot say it was unreasonable for the jury to convict
Scherretz of first-degree burglary.
Scherretz also argues he could not be convicted of first-degree
burglary because the jury acquitted him of first-degree robbery. However, this
proposition is not supported by the law in the Commonwealth. In fact, the former
Kentucky Court of Appeals, now the Supreme Court, held many years ago that
robbery and burglary are distinct offenses which have different elements; therefore,
“the conviction or acquittal of either is not a bar to the other.” Easley v.
Commonwealth, 320 S.W.2d 778, 779 (Ky. 1958).
In conclusion, as with Scherretz’s conviction for second-degree
manslaughter, the evidence against him was mostly circumstantial; however, the
evidence was sufficient to sustain his conviction. Consequently, the trial court
properly instructed the jury regarding burglary in the first degree.
C. FAILURE TO IDENTIFY CO-CONSPIRATORS
Scherretz argues that prior to trial, the trial court ordered the
Commonwealth to disclose the identity or identities of Scherretz’s alleged coconspirator or co-conspirators, but the Commonwealth failed to comply with this
order. Scherretz claims this allowed the Commonwealth to make vague arguments
to the jury about conspiracy without presenting any evidence regarding conspiracy.
Scherretz maintains this was inherently unfair and unduly prejudicial. Citing
Harper v. Commonwealth, 43 S.W.3d 261 (Ky. 2001) and Hollin v.
Commonwealth, 158 Ky. 427, 165 S.W. 407 (1914), Scherretz argues the
Commonwealth must prove the existence and identity of co-conspirators to prove
conspiracy. Furthermore, Scherretz claims the Commonwealth did not provide the
identity of the principal who killed Green and claims the DNA and hair evidence
presented at trial excluded him from any involvement in her death.4 Yet, by
arguing that Scherretz acted in concert with unidentified third parties, the
Commonwealth was able to refute the DNA and hair evidence.
Scherretz’s prior counsel moved the trial court for a bill of particulars
and asked for the identity of Scherretz’s alleged co-conspirators. The trial court
granted the motion and ordered the Commonwealth to disclose the name of the
individuals who allegedly conspired with Scherretz. In response, the
Commonwealth stated in its bill of particulars that “[t]he exact name of the
individuals Jeffrey Scherretz conspired with and/or aided and/or was complicit
with in the commission of the charged offenses is, at this time, unknown to the
Commonwealth.” After the Commonwealth filed its bill of particulars, Scherretz
did not object to the Commonwealth’s response and did not move for clarification
of the bill of particulars. Knowing the Commonwealth’s response, he neither
moved to quash the amended indictment nor to dismiss the conspiracy charges.
At trial, evidence was adduced that a hair was found, and DNA and hair structure analyses
established it did not belong to the victim, Green, nor Scherretz. While Scherretz believes this
proves that he could not have been involved in Green’s death, it merely proves the hair did not
come from him or Green.
Scherretz did not challenge this again until his motion for judgment of acquittal
and/or a new trial that the Commonwealth never disclosed the identities of the coconspirators as required by the trial court’s order.
While the Commonwealth did not disclose the identities of the alleged
co-conspirators, it nevertheless sufficiently complied with the court’s order by
giving Scherretz all the information it had in its possession at the time. See
Deskins v. Commonwealth, 512 S.W.2d 520, 524 (Ky. 1974). Nonetheless, the
trial court did not instruct the jury on conspiracy. Consequently, we simply find no
error regarding this issue.
D. “DRY-RUN” PURSUANT TO COMBS V. COMMONWEALTH
Scherretz called Archie Turner, a hostile witness, to testify on
Scherretz’s behalf. The trial court, for unclear reasons, was concerned about
Turner’s Fifth Amendment right against self-incrimination. Consequently, the trial
court held a “dry-run” pursuant to Combs v. Commonwealth, 74 S.W.3d 738 (Ky.
2002) in chambers. However, Scherretz insists Combs was inapplicable.
According to Scherretz, the holding in Combs is limited to those situations where a
criminal defendant wants to call a co-defendant or co-conspirator as a witness.
Scherretz avers that he merely wished to call a hostile, non-implicated witness. By
holding the “dry-run,” Scherretz maintains the trial court deprived him of his
constitutional right to call witnesses on his behalf.
It is well settled in the Commonwealth that to preserve an issue for
appeal, an appellant has the duty to timely object and must be specific enough in
his objection to indicate to the trial court and the appellate court to what he is
objecting. Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971). Furthermore,
if an appellant does object, he must insist the trial court rule on the objection;
otherwise, the issue is waived. Id.; see also Collett v. Commonwealth, 686 S.W.2d
822, 823 (Ky. App. 1984) (“Kentucky Rule of Criminal Procedure 9.22 requires a
party to render a timely and appropriate objection in order to preserve an issue for
review. By his failure to object, [the appellant] has waived this allegation of
error.”). A review of the record reveals Scherretz neither objected to nor made any
motion regarding the “dry-run.” Consequently, he waived this issue for our
E. ERROR DURING THE COMMONWEALTH’S CLOSING ARGUMENT
Scherretz argues that after the close of the evidence, the
Commonwealth moved in limine to prohibit Scherretz from making any reference
or suggestion to the jury “about taking a roll of duct tape and experimenting with it
during deliberations.” Scherretz claims the trial court “sustained” the
Commonwealth’s motion. During the Commonwealth’s closing argument, the
prosecutor “challenged the jury to go back and test, by way of experiment, the
veracity of [Scherretz’s] uncontradicted testimony as to how he rolled and re-rolled
the tape, for the victim.” According to Scherretz, the Commonwealth violated the
trial court’s order regarding its own motion in limine, prejudicing him.
The Commonwealth moved in limine to prevent Scherretz, during
closing argument, from conducting an experiment by removing duct tape from a
previously taped box and from arguing duct tape could be easily removed from a
previously taped box. Scherretz claimed he could argue that duct tape could be
removed because he testified that he removed duct tape from a box and re-rolled
the duct tape onto the original roll. Scherretz cites to the record, insisting the trial
court granted the Commonwealth’s motion in limine; however, we have thoroughly
reviewed the record and have found the trial court never ruled on the motion.
During the Commonwealth’s closing, the prosecutor stated to the jury
it should not be misled by the fact that there were several pieces of duct tape. The
prosecutor told the jury the tape was in evidence and the jurors may unroll it.
Scherretz immediately objected, argued that the Commonwealth had previously
moved in limine about unrolling the duct tape, and asked for an admonition. In
response, the trial court sustained Scherretz’s objection but gave no admonition.
Instead, the trial court ordered the prosecutor to correct his statements, which the
prosecutor did. Scherretz did not object to the prosecutor correcting himself and
did not ask for a ruling on the admonition.
As discussed supra, an appellant must object and insist on a ruling in
order to preserve an issue for appeal. See Bell, 473 S.W.2d at 821. Scherretz
objected to the prosecutor’s comments, and the trial court sustained the objection.
Furthermore, while Scherretz asked for an admonition, he did not insist on one
when the trial court failed to give it. Scherretz appeared satisfied with the trial
court’s resolution; consequently, Scherretz waived this issue.
F. BURDEN OF PROOF
Scherretz argues that the “Commonwealth, during its closing
arguments, stated that [Scherretz] produced no witnesses to corroborate his story or
that he failed to produce alternative suspects.” (Emphasis in original). According
to Scherretz, the Commonwealth impermissibly shifted the burden of proof to him,
which was highly prejudicial.
During the Commonwealth’s closing, the prosecutor stated to the
jurors that they did not hear any witness come into the court and testify that the
Commonwealth’s experts were wrong. Additionally, the prosecutor stated
Scherretz had the right to subpoena witnesses, and he could have brought in
experts to testify that the Commonwealth’s experts were not right. Scherretz
immediately objected to the prosecutor’s comments; argued the prosecution had
shifted the burden of proof to him; and asked the trial court for an admonition. The
trial court sustained Scherretz’s objection and admonished the jury that Scherretz
had no burden to present witnesses. It is presumed that when a trial court
admonishes a jury, it will heed the admonition. Boone v. Commonwealth,
155 S.W.3d 727, 729-730 (Ky. App. 2004). Thus, we find no error.
G. CHAIN OF CUSTODY
Scherretz challenges the Commonwealth’s failure to call its own DNA
expert to testify regarding the results of the tests performed on the hairs found in
Green’s home. Scherretz speculates the Commonwealth failed to call this expert
due to the exculpatory nature of the evidence in her possession, i.e., the hairs
belonged to Green and to an unknown third person. Believing this information
would exonerate him, Scherretz called his own DNA expert to the stand to testify.
However, the Commonwealth objected to her testimony, arguing that Scherretz
was required to prove the chain of custody of the evidence in the expert’s
possession before she could testify. The trial court agreed and required Scherretz
to establish the chain of custody.
Scherretz argues that by being forced to prove the chain of custody, he
was unduly prejudiced. Nonetheless, he proved the chain of custody and presented
the results of the DNA tests to the jury.
Although a hearing under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) is no longer required
to introduce certain types of DNA evidence, the party opposing the introduction of
such evidence can still challenge the chain of custody. See Fugate v.
Commonwealth, 993 S.W.2d 931, 938 (Ky. 1999). Furthermore, while Scherretz
cries prejudice on appeal, he fails to demonstrate any prejudice because he
sufficiently proved the chain of custody and successfully introduced the results of
the DNA tests. Because Scherretz achieved the results he was seeking, there was
simply no error regarding this issue.
H. FAILURE TO TRANSPORT DEFENSE WITNESS
At trial, Scherretz attempted to call Terry Wayne Tyler, an inmate, to
testify on Scherretz’s behalf. Scherretz “applied for and received an executed
transport Order” for Tyler; however, Tyler was not transported. After the trial
court informed Scherretz that Tyler was not present, the trial court commented that
a subpoena had not been issued for Tyler. On appeal, Scherretz argues, the trial
court’s rationale regarding the lack of a subpoena is misplaced and only a transport
order could have secured Tyler’s presence for trial. The order, however, was not
forwarded to the penitentiary where Tyler was housed. Because the order was not
forwarded, Scherretz reasons the trial court erred and denied him his Sixth
Amendment and Section Eleven of the Kentucky Constitution right to call
witnesses on his behalf.
It has long been established that a criminal defendant has the right to
compel witnesses to attend trial in order to testify on his behalf. Ross v.
Commonwealth, 577 S.W.2d 6, 10 (Ky. App. 1977). Furthermore, a criminal
defendant has the right to compel the attendance of a prisoner as a defense witness,
and it is appropriate for the defendant to secure the attendance of such a witness by
court order. Id. So, Scherretz is correct that a subpoena was not necessary to
secure Tyler’s attendance. However, a criminal defendant is required to exercise
due diligence to ensure the attendance of his witnesses. See id. at 11.
The trial court signed an order to transport Tyler for trial. Scherretz
drafted that order but failed to include either the Department of Corrections or the
institution in which Tyler was incarcerated in the certificate of service. Because
the certificate of service failed to name the Department of Corrections or the
appropriate penitentiary, neither was served with the transport order.
On appeal, Scherretz claims the Henderson Circuit Clerk’s Office
assured him Tyler would be at trial. However, it was Scherretz’s responsibility to
exercise the necessary due diligence to ensure his witness was at trial. By failing
to include the proper institutions in the certificate of service, Scherretz failed to
exercise the necessary due diligence, resulting in Tyler’s absence. Thus, we find
I. CUMULATIVE ERROR
Additionally, Scherretz claims cumulative error. However, because
none of Scherretz’s individual allegations of error merit reversal, we disagree with
him and conclude his allegations do not constitute cumulative error.
The judgment of conviction entered by the Henderson Circuit Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dax R. Womack
Zack N. Womack
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General