BETTY ANN FOPMA V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CI VI_L PR OCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : JUNE 17, 2004
NOT TO BE PUBLISHED
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BETTY ANN FOPMA
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS C . COMBS, JR.
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Appellant, Betty Ann Fopma, was convicted in the Perry Circuit Court of FirstDegree Manslaughter. The trial court fixed her sentence in accordance with the jury
recommendation, at a maximum term of 20 years imprisonment . Appellant appeals to
this Court as a matter of right, alleging a number of claimed errors involving (1) the jury
instructions on self-defense, (2) the competency of a key witness, (3) venue, and (4) the
admissibility of videotape narration .
The events leading to the trial and conviction of Appellant occurred on March 9,
2001, at a Hazard saloon called "The Broke Spoke Tavern ." Appellant and Cheryl
Baker quarreled intermittently inside the bar, until Appellant suggested that they settle
their differences outside . Once outside, several witnesses observed Appellant kicking
the victim in the head, face and neck. The medical examiner later determined that the
victim died from a blunt-force injury to her neck.
I. Jury Instructions
The jury was instructed on Murder, First and Second-Degree Manslaughter, and
Reckless Homicide. Each instruction required the Commonwealth to prove beyond a
reasonable doubt that Appellant was not privileged to act in self-protection, and the trial
court submitted a separate instruction which properly explained the basis of this
privilege. However, at the request of both parties, the trial court omitted any reference
to the erroneous belief qualifications provided by KRS 503.120(1) . Appellant now
claims that the trial court's decision to delete this instruction denied her the right to a fair
The erroneous belief qualification, colloquially known as the "imperfect selfdefense," does not provide for complete exoneration, but instead allows a jury to convict
a defendant for a lesser offense, one for which wantonness or recklessness is the
culpable mental state. Elliott v. Commonwealth , Ky., 976 S.W.2d 416, 420 (1998) .
Appellant complains that the self-protection instruction given in this case was not stated
within the proper statutory framework because it did not include directions for the jurors
should they have concluded that Appellant believed in the need for self-protection .
A trial court has a duty to instruct the jury on the whole law of the case. See. ea
Garland v. Commonwealth , Ky., 127 S.W.3d 529 (2003) . Here though, Appellant
intentionally waived her right to the erroneous belief qualification and the omission of
this instruction could only have worked in her favor. If the jury had determined that
Appellant held any subjective belief in the need for self-protection, the omission of the
wanton and reckless belief qualifications would have compelled the jury to acquit
Appellant, rather than convict her of a lesser-included offense .
Appellant gained an advantage at trial that was not contemplated by statute .
The Commonwealth inexplicably agreed to waive these instructions . Any error by the
trial court in striking the wanton and reckless belief qualifications from the instructions
submitted to the jury is therefore harmless . RCr 9.24.
II . Witness Competency
Appellant argues that the trial court erred by failing to strike the testimony of Bert
Stacy, a witness who testified that Appellant made threatening statements regarding the
victim. Shortly before the homicide occurred, Appellant allegedly told Mr . Stacy that she
planned to "kill that f
ing bitch ." Appellant claims that Mr. Stacy was incompetent to
testify because he could not properly recollect events and that he was a "noted
fabricator of stories ."
Competency determinations are governed by KRE 601, which begins with the
presumption that all witnesses are competent to testify . The rule then sets forth several
exceptions. KRE 601(b)(2) states that a person shall be disqualified to testify if the
court determines that the witness "[I]acks the capacity to recollect facts." Likewise, a
person may be disqualified who "[I]acks the capacity to understand the obligation of a
witness to tell the truth." KRE 601(b)(4) .
Only rarely will witnesses be declared incompetent to testify . As the
Commentary to KRE 601 explains :
This provision serves to establish a minimum standard of testimonial
competency for witnesses. It is designed to empower the trial judge to
exclude the testimony of a witness who is so mentally incapacitated or so
mentally immature that no testimony of probative worth could be expected
from the witness. It should be applied grudgingly, only against the
"incapable" witness and never against the "incredible" witness, since the
triers of fact are particularly adept at judging credibility.
Our review of the record reveals attempts by defense counsel to discredit the
accuracy and veracity of Mr. Stacy's testimony, primarily by juxtaposing his in-court
testimony with statements he made shortly after the victim's death . Such evidentiary
inconsistencies go to the credibility of the witness, rather than to the witness'
competence to testify . Price v. Commonwealth , Ky., 31 S .W .3d 885, 891 (2000).
Furthermore, whether Mr. Stacy's version of the events at the Broke Spoke reflects an
utter inability to remember real events, or to truthfully relate them, is a question best left
to the sound discretion of the trial judge . Pendleton v. Commonwealth , Ky., 83 S.W .3d
522, 525 (2002) ; Kotas v. Commonwealth , Ky., 565 S.W.2d 445, 447 (1978) .
Accordingly, we find no abuse of discretion in this matter .
The circumstances surrounding Appellant's pending trial received substantial
media publicity in and around Perry County, heightened in this case because of the
death of the victim's brother, which occurred only two days before the victim met her
own untimely demise . Appellant claims this pretrial publicity permeated the entire
proceedings, denying her an impartial jury and creating bias in favor of her conviction .
A defendant is entitled to a change in venue when "public opinion is so aroused
as to preclude a fair trial ." Kordenbrock v. Commonwealth , Ky., 700 S.W.2d 384, 387
(1985), cert . denied , 476 U .S. 1153 (1986) . However, "`the mere fact that jurors may
have heard, talked, or read about a case' does not require a change of venue, `absent a
showing that there is a reasonable likelihood that the accounts or descriptions of the
investigation and judicial proceedings have prejudiced the defendant."' Montgomery v.
Commonwealth , Ky., 819 S .W.2d 713, 716 (1991),
uotin Brewster v. Commonwealth ,
Ky ., 568 S.W.2d 232, 235 (1978) .
In the case sub judice, the trial court conducted individual voir dire with each of
the potential jurors in order to discern the effects of pre-trial publicity . Although nearly
every juror professed some familiarity with the case, only two jurors, who were struck for
cause, expressed any hesitancy when questioned about their ability to serve as
impartial arbiters . Voir dire revealed no hint of the pervasive animosity or prejudgment
of the facts which would necessitate a change in venue. See Jacobs v. Commonwealth ,
Ky., 870 S.W.2d 412 (1994) .
The decision of whether to grant a change of venue is within the discretion of the
trial court. Gill v. Commonwealth , Ky., 7 S.W.3d 365, 369, cert. denied , 531 U.S . 830
(2000) . We will not disturb the trial court's decision on appeal absent a clear abuse of
this discretion . Bowling v. Commonwealth , Ky., 942 S .W.2d 293, 298, cert. denied , 522
U.S . 986 (1997) . The record demonstrates that Appellant was not denied a fair and
impartial jury. We therefore find no abuse of discretion in the trial court's denial of
Appellant's motion to change venue .
IV. Videotape Narration
Finally, Appellant argues that the trial court should not have allowed several
witnesses to narrate a security videotape of the Broke Spoke, recorded on the night of
the incident. The tape was originally played for the jury without narration . Later, the
trial court allowed witnesses to identify individuals seen on the video . Appellant now
claims the witnesses were given excessive leeway in their testimony, some witnesses
going so far as to give their impressions of what they viewed on tape, rather than letting
the jurors interpret this evidence for themselves .
KRE 701 permits opinion testimony by lay witnesses if the witness' testimony "is
limited to those opinions or inferences which are: (a) [r]ationally based on the perception
of the witness; and (b) [h]elpful to a clear understanding of the witness' testimony or the
determination of a fact in issue ." In Mills v. Commonwealth , Ky., 996 S .W.2d 473
(1999), cert . denied , 528 U .S. 1164 (2000), this Court concluded that a police officer's
narration of a crime scene video was appropriate lay testimony under KRE 701, where
the officer's testimony helped the jury to evaluate the images displayed on the
videotape. Id. at 489.
In the present matter, witnesses identified both Appellant and the victim in the
videotape. As lay opinion, this testimony helped the jury to analyze the video in order to
assess the events shown which preceded the victim's death . See generally Brent G .
Filbert, Annotation, Admissibility of Lay Witness Interpretation of Surveillance
Photograph or Videotape, 74 A.L.R. 5th 643 (2004) (stating that "the current trend is to
admit lay opinion testimony identifying the person, usually a criminal defendant, in a
photograph or videotape") .
Although the prosecutor at times asked witnesses to more fully describe the
events seen on the videotape, our review shows that the objections by defense counsel
were promptly sustained . These brief comments were not so excessive as to invade
the province of the jury in the interpretation of the surveillance video . We therefore find
any error in this matter harmless. RCr 9 .24.
For the reasons set forth in this opinion, the judgment and sentence are hereby
COUNSEL FOR APPELLANT
Department of Public Advocacy
100 Fair Oaks Lane, Ste . 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Matthew D. Nelson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601