DONALD C. LYNCH v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 16, 2002
TO BE PUBLISHED
DONALD C. LYNCH
v.
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL VENTERS, JUDGE
99-CR-00152
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
Affirming
Appellant, Donald C. Lynch, was convicted in the Pulaski Circuit Court for
murder and tampering with physical evidence. He was sentenced to life imprisonment
and appeals to this Court as a matter of right. Finding no error, we affirm.
Pertinent facts to this case began more than 20 years ago, when Appellant
begat) dating his now-estranged wife, Teresa Lynch. Teresa had also known the victim,
Steven Dale Richmond, since the sixth grade. Over the next 14 years, she
predominantly dated Appellant, but left him in 1994 to date Richmond. Teresa
ultimately reunited with Appellant, married him in 1995, and had a son by him In 15336
According to Teresa’s testimony, about a month before she and Appellant
marr-ied, he began asking her about the extent of her prior relationship with Richmond.
The subject arose again, some five years later, when Appellant confronted Teresa at
work, accused her of having had sex with Richmond during their past relationship, and
demanded a divorce. In response, Teresa moved out of the marital home, and, oddly
enough, Richmond moved in with Appellant shortly thereafter. By August 1999, Teresa
had filed a petition of dissolution, listing the date Appellant showed up at her job as the
date of the couple’s physical separation.
About II:00 p.m. on September 29, 1999, Richmond and his girlfriend returned
to the house he was sharing with Appellant. The three watched television until around
midnight when Richmond and his girlfriend went to his bedroom. According to the
girlfriend’s testimony, when she left at approximately I:30 a.m., Richmond asked her to
return the next day and also asked her to call him and let him know that she had arrived
home safely. She called that night but did not receive an answer. Since there was no
answer the next day at noon when she returned to the house, she left Richmond a note.
She returned later, found no one at home, but observed that both of Appellant’s cars
were In the driveway and that the note was gone.
Appellant initially told police he had no idea of Richmond’s whereabouts, but
suggested several places where he might have gone. Appellant claimed that
Richmond left immediately after his girlfriend on the night in question, and that no one
could have entered the house and harmed Richmond anyway, since Appellant slept by
the front door on a couch in the living room. Even after Richmond’s body was found,
Appellant denied any knowledge of his death. Within an hour of discovering
Richmond’s body, police obtained a warrant to search Appellant’s home and discovered
that the mattress in Richmond’s bedroom was missing.
The day after Richmond’s funeral, Teresa met with Appellant to obtain
documents pertaining to their pending divorce. Teresa testified that at that time she
asked Appellant if he had killed Richmond and he admitted unequivocally that he had.
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Teresa stated that Appellant told her that he shot Richmond through the eye so that he
could never look at Teresa again. Appellant’s description of the shooting matched
Ricllrnolnd’s wounds.
During a subsequent police interview, Appellant changed his story and claimed
that he found Richmond’s body in bed with Appellant’s rifle lying next to it. Appellant
claimed he had loaned Richmond the rifle, which was consistent with the caliber of
weapon used in the murder. Explaining that he feared the repercussions of finding a
dead man in his home, Appellant admitted taking the body to a recreational area in
Scott County, Tennessee and leaving it on a bridge. He told police that he had tried to
clean the mattress, but eventually disposed of it because he could not remove the
blood stains. He also cleaned the rifle and placed it in his closet.
On the day of his second interview, police issued a warrant for Appellant’s arrest.
Upon learning of this fact, Appellant shaved and dyed his hair, and fled to California. In
addition to murder, Appellant was eventually indicted for tampering with physical
evidence and for abuse of a corpse.
The abuse of a corpse charge was dismissed. but
the jury recommended a life sentence for the murder and a five-year sentence for
tampering with physical evidence, which the court ordered to run concurrently.
Additional facts are set forth as necessary.
Appellant first argues that the only incriminating evidence against him, Teresa’s
testimony concerning his confession, should have been barred under the marital
privilege. The trial court, however, admitted the statement pursuant to the exception
contained in KRE 504(c)(2)(C), which provides that the marital privilege does not apply
in any proceeding in which one spouse is charged with wrongful conduct against “an
individual residing in the household of either.”
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Finding that Appellant’s home was a
household and that Richmond was residing there at the time of his murder, the trial
court ruled that Teresa’s testimony was admissible under KRE 504(c)(2)(C).
There are no prior Kentucky cases interpreting this exception. However, a
number of jurisdictions have adopted Rule 504 of the Uniform Rules of Evidence and
the exception at URE 504(d)(3) is identical to KRE 504(c)(2)(C). In State v. Widdison, 4
P.3d 100, 111-12 (Utah Ct. App. 2000), the exception was used to admit evidence of
the defendant’s admission to his wife that he had abused his girlfriend’s infant child who
was then residing in his household; and in Munson v. State, 959 S.W.2d 391, 392 (Ark
1998), the exception was used to admit evidence of the defendant’s admission to his
wife that he had sexually abused the wife’s fourteen-year-old sister who was then
residing in their household. The exception for cases involving crimes against “a child of
either,” URE 504(d)(2) and KRE 504 (c)(2)(b), could not have been applied in those
cases since the victim in neither case was the child “of either” spouse. Nor does KRE
504(c)(2)(C) purport to limit its coverage to child victims; for, if so, it would have been a
simple matter to have written the exception to apply to “a child” instead of to “an
individual.” We conclude that the exception applies in this case if Richmond was
residing in Appellant’s household at the time the crime was committed.
The question necessarily becomes whether the trial court correctly found that
Richmond resided in Appellant’s household at the time of the murder.
Kentucky case
law has previously defined residence as a “factual place of abode or living in a
particular locality.” Old Reliable tnsurance Co. v. Brown, Ky. App., 558 S.W.2d 190
(1977).
Typically, where an individual resides is a question of fact for the jury,
however, as this Court stated in Young v. Commonwealth, Ky., 50 S.W.3d 148, 167
(2001):
[Wjhen the determination [of admissibility] depends upon the resolution of.
a preliminary question of fact, the resolution is determined by the trial
judge under KRE 104(a) on the basis of a preponderance of the evidence,
Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778-79,
97 L.Ed.Zd 144 (1987); and the resolution will not be overturned unless
clearly erroneous, i.e., unless unsupported by substantial evidence.
’
There is some dispute whether Richmond lived in various other places while he
was playing music throughout Kentucky and Tennessee. However, it is clear that when
he was in the Pulaski County area, he lived in Appellant’s home and kept his
belongings there. Based on the record, we cannot say that the trial court’s decision
regarding Richmond’s residency was clearly erroneous. Thus, Teresa’s statements
were properly admitted.
Appellant next argues that he was entitled to a mistrial because the jurors must
have discussed the case and begun deliberating prematurely to have returned a verdict
on his guilt in 29 minutes, and on his sentence in 18 minutes. Appellant relies on what
he perceives as a total lack of physical evidence against him. We remain unconvinced.
As our predecessor court stated in Beach v. Commonwealth, Ky., 246 S.W.2d 587, 589
(1952):
The fact that the jury returned a verdict in about eight minutes after having
the case submitted to them does not indicate to us that Beach did not
receive a fair trial when the issues of fact were so clearly drawn. It is true
that a verdict should be the result of dispassionate consideration and the
jury, if necessary, should deliberate patiently until they reach a proper
conclusion concerning the issues submitted to them. Yet where the law does
not positively prescribe the length of time a jury shall spend in deliberation,
the courts will not apply an arbitrary rule based upon the limits of time.
Id. at 589. See also Smith v. Commonwealth, Ky., 375 S.W.2d 242 (1964) (Jury
returned guilty verdict for murder after 34 minutes) and De Berry v. Commonwealth,
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Ky., 289 S.W.2d 495 (1953), cert. denied, 352 U.S. 881 (1956) (Jury was out only 20
minutes before murder conviction).
Here, the evidence presented at trial showed that Richmond had been in a
previous relationship with Appellant’s wife and that Appellant’s jealousy on this subject
led to their divorce. Appellant thereafter invited Richmond to live with him. After
claiming that he found Richmond already dead, Appellant disposed of the body and a
bloody mattress, repeatedly lied to investigators and changed his appearance and fled
to California after an arrest warrant was issued. Testimony further established that the
last person to see Richmond alive left him alone with Appellant.
A mistrial is an extraordinary remedy and, according to our decision in Kirkland v.
Commonwealth, Ky., 53 S.W.3d 71, 76 (2001), “[i]n order to grant a mistrial, there must
appear on the record a manifest necessity for such an action.” Here, we see no such
manifest necessity. Jurors had more than enough evidence presented to them to
convict Appellant in the amount of time that they did. Absent any evidence of juror
misconduct, it is not the duty of this Court to second-guess a jury decision simply
because it viewed the evidence as conclusive. Furthermore, with regard to the
sentencing phase, only one witness, an employee of the Division of Probation and
Parole, testified as to parole eligibility. We find no error in the jury agreeing on a
sentence in 18 minutes.
We affirm the judgrnent and conviction of the Pulaski Circuit Court.
Lambert, C.J., Cooper, Graves, Johnstone, and Wintersheimer, J.J. concur,
Keller, J., concurs in part and dissents in part in a separate opinion in which Stumbo,
J..,
joins.
COUNSEL FOR APPELLANT
John Palombi
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane Ste. 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE
A.B. Chandler III
Attorney General
Dennis W. Shepherd
Office of Attorney General
Criminal Appellant Division
1024 Capital Center Drive
Frankfort KY 40601
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RENDERED: MAY 16,2002
TO BE PUBLISHED
2000-SC-1049-MR
DONALD C. LYNCH
V.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL VENTERS, JUDGE
99-CR-00 152
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
Although I agree with the majority opinion to the extent that I would affirm
Appellant’s conviction and five (5) year sentence for Tampering With Physical
Evidence, I respectfully dissent from the majority’s holding as to Appellant’s conviction
and sentence of life imprisonment for the offense of Murder.
In my opinion, both the
trial court and today’s majority have erroneously interpreted the KRE 504(c)(2)(iii)
exception to the husband-wife privilege for “proceeding[s] in which one (1) spouse is
charged with wrongful conduct against the person or property of. . . an individual
residing in the household of either”’ by essentially deleting the “in the household”
language from the exception.2
While the majority would apply the KRE 504(c)(2)(iii)
‘KRE 504(c)(2)(iii) (emphasis added)..
‘In fact, the majority opinion does not address the definition of “household” at all
and instead defines “residence,” a word not found in KRE 504. Majority Opinion at
(continued.. .)
exception whenever the victim lives under the same roof as the defendant or the
defendant’s spouse, I believe the exception applies only in proceedings against a
defendant for a wrong committed against a member of a social unit or domestic
establishment - commonly known as a “household” - in which one (1) or both of the
parties to the marriage is a member. Accordingly, and because the trial court in this
case relied upon an erroneous interpretation of “household” when it rendered findings
of fact as to the existence of the husband-wife privilege, I question whether the trial
court properly allowed the Commonwealth to solicit testimony from Appellant’s wife
concerning inculpatory statements made to her by her husband. Thus, I would vacate
Appellant’s murder conviction and remand that count of the indictment to the Pulaski
Circuit Court for the trial court to re-examine the merits of Appellant’s claim of privilege
under the properly-construed KRE 504(2)(c)(iii) exception.
To clarify, I do not quibble with the trial court’s conclusion that Richmond resided
with Appellant in a house that Appellant and Teresa Lynch owned in Somerset,
Kentucky. That conclusion is supported by substantial evidence.3
I cannot say the
same, however, about the trial court’s finding that Richmond resided in Appellant’s
household. The trial court’s written and oral findings of fact demonstrate that the court’s
conclusion that Richmond resided in Appellant’s household flowed directly and
exclusively from its prior finding that Richmond and Appellant shared a residence.
‘(...continued)
S.W.3d -, - (200-) (Slip Op. at 4).
‘See KRE 104; Talbot v. Commonwealth, Ky., 968 S.W.2d 76 (1998).
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In the trial court’s original order denying Appellant‘s motion in limine, the court
based its conclusion on its belief that, in the context of KRE 504(b)(2)(iii), a “household”
was tantamount to a “place of occupancy”:
“Household” is defined in Webster’s New World Dictionary
as “all the persons who live in one house; family and
servants.” The word also connotes a place, being,
according to Webster’s Dictionary, “the home and its affairs.”
Ballentine’s Law Dictionary defines household as “persons
who dwell together as a family.” A definition of household
adopted by the Kentucky Court of Appeals in Sutton v.
Shelter Mutual Insurance Company, Ky.App., 971 S.W.2d
807, is from 1981 New College Edition of the American
Heritage Dictionary of the English Language. It defines
household as “a domestic establishment including the
members of a family and others living under the same roof.”
It is not essential to constitute a household that the persons
living together under the same roof be related by blood or
marriage. The definitions refer to persons living together “as
a family.” The language of the exception itself is important,
in that it refers, not to a family member, but to “an
individual.” It is also sianificant to note that the rule does not
refer to individuals residina “as members of the household”
but it uses the lanauaae “in the household”. In that context.
the word household encompasses its meanina as both a
place of occunancv and the oersons living therein as a
familv. In that context, Donald Lynch living alone has a
“household.” Steven Richmond. takina up residence at
Donald Lvnch’s home is “residina in the household” of
Donald Lvnch. The Court concludes that the exception to
the marital privilege rule is applicable. Therefore, there is no
privilege under rule 504 to bar Theresa Lynch from offering
testimony about wrongful conduct by Donald Lynch directed
against the person or property of Steven Richmond, who
was an individual residing in the household of Donald Lynch.
(Emphasis added). On the day the case was called for trial, after Appellant asked the
trial court to reconsider its ruling in light of new evidence concerning Richmond’s place
of residence, the trial court again indicated that it equated Appellant’s “household” with
the residence he occupied, and that it viewed the inquiry as distinct from whether
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Richmond was a “member of the household.” Later that same day, the trial court again
indicated that his findings were premised on the notion that Appellant’s “household”
was simply the structure in which Appellant lived:
Whether or not he’s part of the household isn’t really the
inquiry under [Rule 504(c)(2)(iii)]. The question is whether
he’s residing in the household. . . . I interpret the word
household to include a single person living alone can be a
household. They’re all the related people in the family and
others, including domestic help and others living under that
roof, so whether or not Mr. Richmond was a member of the
household isn’t the inquiry. The inquiry is whether he was
residina in the household of Donald Lvnch and in the context
of the rule I think that means the same thina as residina at
Donald Lynch’s house or living in his apartment, and he had
done so long enough to be considered residing there.
(Emphasis added).
I find the trial court’s interpretation of “household” erroneous. First, and most
important, if “household” is defined simply as a house or apartment or other “place of
occupancy,” that construction renders the “in the household” language in KRE
504(c)(2)(iii) superfluous. Under the trial court’s interpretation, the exception’s meaning
would be identical if the word “household” was deleted from. the provision and the
subsection read “residing with either” because any individual residing in another
person’s house or apartment would, according to this interpretation, necessarily reside
in that person’s household. As explained in more depth below, however, the terms
“house” and “household” are not synonymous. Interpreting KRE 504(c)(2)(iii) in a
manner that renders half of it moot violates our rules of construction.4 and the error is
4a GMC v. Book Chevrolet, Ky., 979 S.W.2d 918, 919 (1998) (recognizing a
rule of construction that enactments “should be construed so that no part of it is
meaningless or ineffectual.“).
-4-
particularly egregious in this case because such a construction would distort the
exception’s meaning.5
Second, as the trial court recognized in its written order, the primary definitions of
“household” invariably refer not to structures in which persons live, but instead to the
social arrangement of persons living together, i.e. “a family living together,“6 or “[a]
family residing together in one dwelling, using common living quarters and facilities
under such domestic arrangements and circumstances as create a single family unit or
establishment,“7 or “[a] domestic unit consisting of the members of a family who live
together along with nonrelatives such as servants,“’ or “[tlhose who dwell under the
same roof and compose a family.“g
And, the process of determining what persons
constitute a “household” requires more than counting the number of pillows where
people lay their heads at night. Courts interpreting the term “household” in the context
of automobile insurance policy exemptions have held that, while a “household” may
consist of either (or both) relatives or non-relatives, in order to constitute a “household,”
a collection of persons must live together as a family:
Whether the term “household” or “family” is used, the term
embraces a collection of persons as a single group, with one
head, living together, a unit of permanent and domestic
character, under one roof, that is, a collective body of
5See AM. JUR. 2~ Automobile insurance § 224 (1997) (“The word ‘household’
connotes a settled status; a more settled or permanent status is indicated by ‘resident
of the same household’ than would be indicated by ‘resident of the same house or
apartment.“‘).
6B~~~‘~ LAW DICTIONARY 744 (7’h ed. 1999).
7B~~~~~~~~~‘~
LAW DICTIONARY (3d. ed. 1969) (citations omitted).
‘AMERICAN HERITAGE DICTIONARY 6~
9W~~~~~~‘~
THE
ENGLISH LANGUAGE (4th ed. 2000).
REVISED UNABRIDGED DICTIONARY (1998).
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persons living together within one curtilage, subsisting in
common and directing their attention to a common object,
the promotion of their mutual interests and social
happiness.”
And, under federal Medicare statutes, “any person sharing a common abode as part of
a single family unit, including domestic employees and others who live together as part
of a family unit, is considered a member of a Medicare beneficiary’s household . . . .
Roomers and boarders are not considered household members.“”
Third, KRE 504(c)(2)(iii)‘s use of the preposition “in” does not support the trial
court’s interpretation. This preposition “is used with verbs signifying being, resting, or
moving within limits, or within circumstance or conditions of any kind conceived of as
limiting, confining, or investing, either wholly or in part. In its different applications, it
approaches some of the meanings of, and sometimes is interchangeable with, within,
on, at, of, and among.“‘* And, although the trial court appears to have believed its
inquiry into whether Richmond was “residing in the household” was distinct from the
question whether Richmond was a “member” of Appellant’s household, the Kentucky
Evidence Rules Study Commission’s explanation for the policy rationale behind the
KRE 504(c)(2) exclusion suggests the trial court misunderstood the inquiry: “The
second exception is based on the thought that when the welfare of a member of the
household is in issue it is inappropriate to recognize a spousal privilege which would
“7 AM. JUR. 2D Automobile insurance § 224 (1997).
“7OC AM. JUR. 2~ Social Security and Medicare $2462 (2000) (emphasis
added). See also 42 C.F.R. § 411.12(b).
‘2W~~~~~~‘~ REVISED UNABRIDGED DICTIONARY (1998). I would also observe that
one of the illustrations following this definition uses the preposition in the phrase “in his
family.” Id.
-6-
deny triers of fact access to relevant evidence.“13
As such, an individual may reside “in”
a household defined as a social unit of persons as easily as he or she could reside “in”
a household characterized by two-by-fours, drywall, and a roof.
Here, the trial court’s conclusion that Richmond resided in Appellant’s household
was based solely upon the fact that the two (2) men occupied the same residence. The
trial court’s orders conclusively establish that it gave no consideration to the question of
whether the men lived together as a quasi-familial social unit. Unfortunately, even if it
were appropriate for this Court to do so, it appears impossible for us, on the basis of the
record before us, to undertake an independent determination of the evidence and
determine whether Appellant’s wife’s testimony would have been admissible under a
properly-construed KRE 504(c)(2)(iii) exception to the husband-wife privilege. The trial
transcript contains no evidence upon which to base a finding that the men lived
together as a household - and in fact, the testimony of at least one (1) witness,
Detective Nelson, supports the contrary conclusion by describing the men as
“roommates.”
However, Appellant’s Designation of Record omitted the evidentiary
hearing regarding Appellant’s motion in limine conducted by the trial court on July 19,
2000. While the responsibility falls upon Appellant to ensure the completeness of the
13Kentucky Evidence Rules Study Commission Commentary to KRE 504
(November, 1989) (emphasis added). I would observe that this Commentary suggests
that the interpretation urged in this dissent is consistent with the narrow purpose for the
exclusion. Although the normative bases supporting the husband-wife privilege have
been the target of severe criticism, perhaps none as biting as 8 Wigmore, Evidence §
2228 (McNaughton rev. 1961), but the fact remains that KRE 504 establishes a
privilege in the husband-wife context. While the temptation to stretch the limits of the
KRE 504 exclusions to permit the admission of relevant evidence is difficult to resist,
judicial fiat is an inappropriate mechanism to change our rules regarding privileges.
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record,14 and, ordinarily, “we are required to assume that any evidence in the record not
before us supports the findings of the lower co~r-t,“‘~ here the trial court’s written order
and statements from the bench demonstrate that his findings of fact followed an
erroneous legal conclusion concerning the interpretation of “household” in KRE
504(c)(2)(iii). Because the trial court explicitly avoided the question of whether
Richmond was a member of Appellant’s household, I can see no basis for this Court to
assume that the record would support a finding that the trial court never made.
Accordingly, I would vacate Appellant’s conviction and sentence of life
imprisonment for the offense of Murder, and remand Count One of Pulaski Circuit Court
Indictment # 99-CR-0152 to the trial court for it to determine, under a properconstruction of the KRE 504(c)(2)(iii) exception, whether the KRE 504 husband-wife
privilege prevents Appellant’s wife from testifying regarding Appellant’s inculpatory
statements. If the trial court were to again find the exception applicable, I would direct it
to reinstate the conviction subject to judicial review of the trial court’s findings on that
question. If, however, the trial court were to find, upon reexamination, that the
testimony comes within the KRE 504 privilege, I would hold that the erroneous
introduction of this evidence at Appellant’s trial would require a new trial on the charge
of Murder with this evidence excluded.
Stumbo, J., joins this opinion, concurring in part and dissenting in part.
14% Commonwealth v. Thompson, Ky., 697 S.W.2d 143 (1985); Fanelli v.
Commonwealth, Ky., 423 S.W.2d 255 (1968).
‘Colonial Life & Act. Ins. Co. v. Weartz, Ky.App., 636 S.W.2d 891 (1982). See
& Burberry v. Bridaes, Ky., 427 S.W.2d 583 (1968).
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