JOSEPH MICHAEL SCHRIMSHER V. COMMONWEALTH OF KENTUCKY
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JOSEPH MICHAEL SCHRIMSHER
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APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z . CLYMER, JUDGE
03-CR-92-1
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
A McCracken Circuit Court jury convicted Appellant, Joseph Michael Schrimsher,
of three counts of wanton assault in the first degree, KRS 508 .010(1)(b), one count of
wanton assault in the second degree, KRS 508.020(1)(c), and one count of criminal
abuse in the first degree, KRS 508.100. He was sentenced to twenty years for each
conviction of first-degree assault and ten years for the conviction of second-degree
assault, to be served concurrently, and an additional ten years for the conviction -of
criminal abuse, to be served consecutively, for a total of thirty years in prison . He
appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) .
On February 23, 2003, A .S., Appellant's six-month-old daughter, was presented
to the emergency room at Western Baptist Hospital in Paducah, Kentucky, by her
biological mother, Erica Porter, for examination of swelling on the back of the child's
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head. In addition to the swelling, A.S. had bruises and scratches on her face . A C .T .
scan revealed that A.S. had multiple skull fractures on both sides of her head. She was
transferred to Kosair Children's Hospital in Louisville, Kentucky, and hospital officials
contacted the social services division of the Cabinet for Families and Children . Further
examination of A .S . revealed that, in addition to five skull fractures, she had the
following injuries (in varying stages of healing): several contusions or abrasions around
her head, neck, and thigh, multiple rib fractures on both her left and right sides,
fractures of the tibia and fibula of her right leg, and a lacerated liver. Additionally, she
was in a state of severe malnutrition (the basis for the indictment and conviction of
criminal abuse) . Both Porter and Appellant, A .S .'s biological father and Porter's live-in
boyfriend, were indicted for various degrees of assault or complicity to assault and
criminal abuse .
Appellant now challenges his convictions, asserting five counts of reversible
error, viz: (1) failure to sever his trial from Porter's and improper redaction of Porter's
out-of-court statements ; (2) failure of the indictment and the jury instructions on assault
to specify what conduct on his part caused A.S .'s injuries ; (3) insufficiency of the
evidence to support his convictions ; (4) denial of Appellant's request to show the
entirety of his videotaped police interrogation ; and (5) failure to instruct the jury on
assault under extreme emotional disturbance . Finding no error, we affirm.
I. FAILURE TO SEVER.
Appellant argues that the trial court's denial of his motion to sever his trial from
Porter's violated his Sixth Amendment right of confrontation . Because the
Commonwealth intended to introduce out-of-court admissions made by Porter during a
police interrogation that tended to incriminate Appellant, Appellant moved for a
severance pursuant to RCr 9 .16 or, alternatively, for a redaction of any of Porter's
statements made during the interrogation that inculpated him . The Commonwealth
recognized the potential confrontation problem and prepared a redacted transcript of
Porter's statements . The trial court denied Appellant's motion to sever, but granted the
motion to redact . Appellant claims that the Commonwealth's redacted transcript still
contained statements incriminating him .
We review a trial court's ruling on a motion to sever for an abuse of discretion .
Foster v. Commonwealth , 827 S .W.2d 670, 679-80 (Ky. 1991) ; Bo
s v.
Commonwealth, 424 S.W.2d 806, 808 (Ky. 1966) ; Smith v. Commonwealth , 375 S .W.2d
819, 820 (Ky. 1964) . A criminal defendant is entitled to a severance only upon a
showing, prior to trial, that joinder would be unduly prejudicial. RCr 9.16; Huml2hrey v.
Commonwealth , 836 S.W.2d 865, 868 (Ky . 1992) . Appellant argues that denial of his
motion to sever was unduly prejudicial because his right to confrontation was violated
when the Commonwealth introduced admissions made by Porter during its case-in-chief
without first calling Porter as a witness .
The Sixth Amendment to the United States Constitution guarantees a defendant
in any prosecution the right to confront all witnesses against him . Pointer v. Texas, 380
U .S . 400, 400-401, 85 S .Ct. 1065, 1066, 13 L.Ed.2d 923 (1965) . The introduction of a
non-testifying co-defendant's admission that expressly implicates the defendant violates
the defendant's right of confrontation . Bruton v. United States , 391 U .S. 123, 137, 88
S .Ct. 1620, 1628, 20 L.Ed.2d 476 (1968) . However, a Bruton problem may be cured by
an appropriate redaction of the co-defendant's confession, so long as "the confession is
redacted to eliminate not only the defendant's name, but any reference to his or her
existence ." Richardson v. Marsh, 481 U.S . 200, 211, 107 S .Ct. 1702, 1709, 95 L.Ed .2d
176 (1987) ; Barth v. Commonwealth , 80 S.W.3d 390, 394 (Ky. 2001) .
[A] joint trial utilizing a properly redacted statement is appropriate where
given the totality of the circumstances no substantial prejudice will result .
It is appropriate where the statement does not provide details that point
unerringly to the nonconfessing defendant. Indeed, although
inappropriate, it is not reversible error where the proof against the
nonconfessing codefendant is so overwhelming that no possible prejudice
resulted, the "harmless beyond a reasonable doubt" standard that applies
to constitutional error. Chapman v. California , 386 U.S . 18, 24, 87 S.Ct.
824, 828, 17 L.Ed.2d 705, 711 (1967) .
Cosby v. Commonwealth , 776 S .W.2d 367, 370 (Ky. 1989), overruled on other -grounds
by St. Clair v. Roark, 10 S.W .3d 482, 487 (Ky. 1999) .
A redaction that is facially valid may still amount to a Sixth Amendment violation
if it can only be reasonably interpreted as inculpating the defendant. Gray v. Maryland ,
523 U .S . 185, 188, 118 S .Ct. 1151, 1153, 140 L. Ed.2d 294 (1998) ; Barth, 80 S.W.3d at
395. However, the introduction of a redacted statement that improperly incriminates a
co-defendant does not violate the Sixth Amendment if the declarant subsequently
testifies and is available for cross-examination, even if the redacted statement is
introduced prior to the declarant's testimony. Nelson v . O'Neil , 402 U .S . 622, 629-30,
91 S.Ct. 1723, 1727, 29 L.Ed .2d 222 (1971); Davis v. Commonwealth , 967 S .W.2d 574,
579 (Ky. 1998) .
In the case sub iudice , Porter testified in her own defense and was crossexamined by Appellant's counsel . As such, we find no prejudice resulting from the trial
court's denial of Appellant's motion to sever or the introduction of Porter's redacted
statements .
II. DUE PROCESS .
Appellant argues that the indictment charging him with four counts of assault in
the first degree was insufficient under the Due Process Clause because it lacked
adequate detail, thus did not give adequate notice regarding the conduct for which he
was prosecuted . He also argues that the indictment and instructions lacked sufficient
detail regarding his alleged criminal conduct, thus implicating the proscription against
double jeopardy .
We note at the outset that any alleged error as to the indictment is unpreserved .
The Commonwealth filed a bill of particulars in response to Appellant's motion for such .
The record does not reflect any objection by Appellant to the sufficiency of the bill of
particulars as filed . A party's failure to object to a bill of particulars renders that
objection unpreserved for review. Thomas v . Commonwealth , 931 S.W.2d 446, 450
(Ky. 1996); Howard v. Commonwealth ,
v. Commonwealth , 956 S.W .2d
874,
554
S.W.2d 375, 378 (Ky. 1977) ; see also Lane
876 (Ky.
1997) .
Thus, we examine any alleged
error with respect to the . indictment for palpable error under RCr 10.26.
The indictment read as follows :
In the period between February 10, 2003 and February 25, 2003, in
McCracken County, Kentucky, the defendant, Joseph Michael Schrimsher,
committed the offense of first-degree assault, when under circumstances
manifesting extreme indifference to the value of human life, he wantonly
engaged in conduct which created a grave risk of death to [A .S .], an
infant, and thereby caused multiple skull fractures to [A .S.] . . . .
Each of the remaining three counts of assault in the first degree contained identical
language, except for differences in the time periods alleged, and each described a
different injury that was caused by Appellant's conduct, i.e. , multiple rib fractures, a
lacerated liver, and two leg fractures.
A . Adequate Notice .
Appellant argues that the indictment failed to give him notice of the crimes for
which he was being prosecuted because none of the four charges were "anchored to
four distinguishable acts ." Specifically, he asserts that due process requires the
indictment to set forth specific acts of conduct or "occurrences" - Pte striking the victim
.,
with his fist, striking the victim with an instrument, hurling the victim to the ground - in
order to provide adequate notice.
The sufficiency of an indictment is governed by RCr 6 .10(2), which states : "The
indictment . . . shall contain, and shall be sufficient if it contains,
a plain,
concise and
definite statement of the essential facts constituting the specific offense with which the
defendant is charged." "The indictment need not detail the essential elements of the
charged crime, so long as it fairly informs the accused of the nature of the charged
crime . . . and if it informs the accused of the specific offense with which he is charged
and does not mislead him." Ernst v. Commonwealth , 160 S .W.3d 744, 752 (Ky. 2005)
(quotations omitted) ; see also Parrish v. Commonwealth , 121 S.W .3d 198, 202 (Ky.
2003) ; Thomas v. Commonwealth, 931 S .W.2d 446, 450 (Ky. 1996) ; Wylie v.
Commonwealth , 556 S.W .2d 1, 2-3 (Ky. 1977) ; Howard v. Commonwealth , 554 S.W.2d
375, 377 (Ky. 1977) ("[A]n indictment is sufficient if it fairly informs the defendant of the
nature of the crime with which he is charged, without detailing the essential factual
elements .") (citation and quotation omitted) .
Assault is a "result offense," with bodily injury being the prohibited result .
Commonwealth v. Hager , 41 S.W.3d 828, 831 (Ky. 2001) (citing Robert G . Lawson,
Criminal Law Revision in Kentucky, Part I - Homicide and Assault , 58 Ky. L.J . 242, 263
(1969-70)) . The indictment at issue here apprised Appellant of the specific offense with
which he was charged (first-degree assault), the nature of the charged crime (inflicting
various injuries upon A .S.), and was not misleading . Contrary to Appellant's contention,
these facts are sufficiently detailed to enable him to set forth a defense - e .g_, that A .S.
was not injured or, if she was, that he did not inflict the injuries; or that someone else
(Porter?) had access to A.S. and might have inflicted the injuries. To require the
indictment to set forth the level of detail sought by Appellant would render an assault
against an infant virtually incapable of indictment barring eye-witness testimony, as the
victim in such a case cannot provide testimony on her own behalf . The indictment
sufficiently notified Appellant of the nature of the offenses for which he was indicted .
B . Double Jeopardy.
Under the Due Process Clause, the sufficiency of an indictment is measured by
two criteria: first, that an indictment sufficiently apprise a defendant of the criminal
conduct for which he is called to answer; and, second, that the indictment and
instructions together provide adequate specificity that he may plead acquittal or
conviction as a defense against any future indictment for the same conduct and that he
not be punished multiple times in this action for the same offense . Russell v. United
States, 369 U .S. 749, 763-64, 82 S .Ct. 1038, 1047, 8 L.Ed.2d 240 (1962) ; Valentine v.
Konteh , 395 F .3d 626, 634-35 (6th Cir. 2005) . Thus, Appellant argues that the lack of
specificity in the indictment and instructions for assault not only gave him inadequate
notice but also implicated the proscription against double jeopardy . For an indictment to
be sufficient, "the language of the statute may be used in the general description of an
offence, but it must be accompanied with such a statement of the facts and
circumstances as will inform the accused of the specific offence, coming under the
general description, with which he is charged." Hamling v. United States , 418 U.S. 87,
117-18, 94 S .Ct . 2887, 2907-08, 41 L.Ed.2d 590 (1974) (citation and quotation omitted) .
Appellant argues that the indictment and the jury instructions premised thereon
violated the proscription against double jeopardy because they did not explicitly state
which conduct by him caused the injuries that formed the bases for his convictions . The
instruction for first-degree assault stated :
INSTRUCTION NO . 3
(First-Degree Assault)
(Skull Fractures)f'l
You will find [Appellant] guilty of first-degree assault . . . if, and only
if[,J you believe from the evidence beyond a reasonable doubt all of the
following :
A.
That . . . he caused serious physical injury to fA.S.1 by fracturing her
skull .
AND
B.
That in so doing, [Appellant] was wantonly engaging in conduct
which created a grave risk of death to her and thereby injured [A .S .] under
circumstances manifesting extreme indifference to the value of human life.
(Emphasis added.) The second-degree assault instruction included similar language
regarding the criminal conduct for which Appellant was charged, viz , "he inflicted an
injury on [A.S .] by fracturing her skull." Each series of instructions also contained an
instruction requiring the jury, if guilt was found, to state in its verdict whether the injury
resulted from an act that was separate from the acts that caused A.S .'s other injuries .
Appellant argues that, because the instructions did not state what physical conduct on
his part caused each injury, he would be unable to plead conviction as a defense
' Among the skull fractures, rib fractures, leg fractures, and lacerated liver, a different
injury was stated for each count of assault (in varying degrees) .
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against any possible future prosecution, thus removing his protection against double
jeopardy . He relies upon Valentine v. Konteh , 395 F.3d 626 (6th Cir. 2005), and Miller
v. Commonwealth , 77 S .W.3d 566 (Ky. 2002), in support of this proposition .
In Valentine , a defendant's conviction of twenty counts of child rape and twenty
counts of felonious sexual penetration was reversed because each count of the
indictment was a "carbon copy" of the others (for rape or sexual abuse), with no
differentiation as to time, method, or any other distinguishable facts. The bill of
particulars simply set forth the same information contained in the indictment, but named
the family home as the location of all forty offenses. The only testimony at trial was the
victim's estimate that the abuse occurred "twenty or fifteen times" coupled with a single
description of "typical" abusive behavior, the only distinguishing facts being the victim's
estimate of how many times the abuse occurred in one of four rooms in the home .
Valentine , 395 F.3d at 633. In reversing the defendant's convictions because he was
given inadequate notice of the charges against him, the Sixth Circuit Court of Appeals
explained:
In its charges and in its evidence before the jury, the prosecution did not
attempt to lay out the factual bases of forty separate incidents that took
place . Instead, the 8-year-old victim described "typical" abusive behavior
by Valentine and then testified that the "typical" abuse occurred twenty or
fifteen times . Outside of the victim's estimate, no evidence as to the
number of incidents was presented. . . . The jury could not have found
Valentine guilty of Counts 1-5, but not Counts 6-20 . Nor could the jury
have found him guilty of Counts 1, 3, 5 and 7, but not the rest. Such a
result would be unintelligible, because the criminal counts were not
connected to distinguishable incidents.
Id. at 632-33; see also Miller, 77 S.W .3d at 576 (finding reversible error where victim
described facts surrounding one instance of rape and sodomy and estimated the
number of times that conduct was repeated, but did not offer any additional information
differentiating the first instances from the remaining 224 instances of rape or sodomy for
which the defendant was convicted) . Unlike Valentine , in the case sub iudice each
count of the indictment and the instruction on that count was distinguished from the
others by a statement of the type of injury caused by each assault, i .e . , fractured ribs,
fractured leg, fractured skull, or lacerated liver. The evidence adduced at trial further
distinguished each injury listed in the indictment or instructions by establishing different
(though in some cases overlapping) time frames in which each injury occurred .
A conviction of assault in the first, second, or fourth degree requires proof of a
physical injury, serious or otherwise . See KRS 508.010-508 .030 . Therefore, Appellant
could defend himself from double jeopardy in any future prosecution for causing the
same physical injury to A .S. by pleading his conviction in the case sub iudice and
requiring the subsequent prosecution to establish a different physical injury or time
frame of commission.
The court in Valentine noted that, when evaluating the sufficiency of a factually
vague indictment, courts "must acknowledge the reality of situations where young child
victims are involved ." Valentine , 395 F.3d at 632 . With no eyewitness to the criminal
conduct except for one or both of the two co-defendants and the infant victim, the
specificity in the indictment and instructions was adequate to avoid double jeopardy .
III . SUFFICIENCY OF THE EVIDENCE .
Appellant argues in a similar vein that, because the Commonwealth did not prove
what conduct on his part caused A.S.'s injuries, the evidence was insufficient to sustain
his convictions of first- or second-degree assault.
2 Medical testimony established windows of time in which each injury occurred based on
the various stages of healing .
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An appellate court reviews a ruling on a motion for a directed verdict of acquittal
to determine "whether, under the evidence viewed as a whole, it was clearly
unreasonable for the jury to have found the defendant guilty ." Bray v. Commonwealth ,
177 S.W.3d 741, 746 (Ky. 2005); see also Beaty v. Commonwealth , 125 S .W.3d 196,
203 (Ky. 2003) ; Commonwealth v. Sawhill , 660 S .W.2d 3, 5 (Ky. 1983) . On a
defendant's motion for a directed verdict, a trial court must draw all fair and reasonable
inferences in the Commonwealth's favor. Commonwealth v. Benham , 816 S .W .2d 186,
187 (Ky. 1991) . "The Commonwealth bears a burden of proof in establishing each
element of a charged crime, else a motion for a directed verdict by the defendant must
be properly entertained ." Williams v. Commonwealth , 721 S.W.2d 710, 712 (Ky. 1986) .
A. Conduct that Caused_ In'ui ries.
Appellant claims entitlement to a directed verdict for each count of assault
because the Commonwealth failed to present evidence that indicated which of A .S.'s
injuries was caused by Appellant's conduct, which conduct caused which injury, and
additionally whether the injuries were caused by four separate acts rather than one.
The Commonwealth responded that Dr. Ralston, an Assistant Medical Examiner,
testified to four potential time frames, possibly overlapping but possibly distinct, in which
each injury could have been sustained, then the Commonwealth recited the list of
instances of conduct from which a jury could reasonably find guilt. The judge overruled
Appellant's motion and stated that the "separate acts" jury instructions 3 served to
3 After the instructions for first-, second-, and fourth-degree assault (with respect to
each injury), the jury was given a "separate acts" instruction : "[y]ou will further state in
your verdict whether you believe beyond a reasonable doubt that the act of
[fracturing/lacerating] A.S.'s [skull/ribs/leg/liver] was separate from the acts which
caused A .S.'s [other injuries].
ensure that the jury would determine whether there was evidence to support each count
of assault.
The Commonwealth may prove guilt by circumstantial evidence . Varble v.
Commonwealth , 125 S.W .3d 246, 254-55 (Ky. 2004); Blades v. Commonwealth , 957
S.W.2d 246, 250 (Ky. 1997) . Circumstantial evidence is evidence that makes the
existence of a relevant fact "more likely than not." Timmons v. Commonwealth , 555
S .W.2d 234, 237-38 (Ky. 1977) . The test of the sufficiency of the evidence on a motion
for a directed verdict is the same for circumstantial evidence as for direct evidence .
Davis v. Commonwealth , 795 S.W.2d 942, 945 (Ky. 1990); Sawhill , 660 S .W.2d at 4 .
The jury heard testimony regarding admissions by Appellant that provided direct
evidence of different abusive acts he perpetrated against A.S ., ,ea,, that he threw A .S .
to the floor on one occasion, causing blood to come out of her mouth ; that he would
"torture" A .S . at times ; that he "jerks" A.S . around; that he hit A.S . in the mouth hard
enough to draw blood on more than one occasion ; that he kicked a car seat while A.S .
was strapped into it; that on occasion he spanked A .S . "too hard ." Furthermore, Porter
provided direct and circumstantial evidence of the same, e.g_, that she "knew" Appellant
spanked A.S . with a belt; that she discovered Appellant had wrapped A.S . in a blanket
so tightly that A.S . turned purple ; that Porter heard Appellant smacking A .S . behind
closed doors ; that she had come home on multiple occasions to find blood stains on the
carpet ; that she would discover knots or bruises on A.S . The jury also heard testimony
by Dr. Ralston that a C .T. scan of A.S . revealed that, within the fourteen days prior to
her presentation to the hospital, A .S . had sustained five skull fractures, several rib
fractures, a lacerated liver, and two fractures in one leg. The Commonwealth proved
multiple acts of assault and multiple injuries, some occurring in different time frames.
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The fact that it could not specifically prove which particular act caused which particular
injury did not require a directed verdict of acquittal .
B. Serious Physical InLrv.
Appellant additionally argues that there was insufficient evidence to convict him
of second-degree assault for causing the leg fractures because KRS 508 .020 requires a
"serious physical injury," and no reasonable jury could conclude that the leg fractures
constituted a "serious physical injury" based on the testimony of Dr. Ralston .
The instruction at issue stated :
INSTRUCTION NO . 16
(Second Degree Assault)
(Leg Fractures)
[Y]ou will find the Defendant guilty of Second-Degree Assault, under this
instruction if, and only if you believe from the evidence beyond a
reasonable doubt all of the following:
A.
That in this county between January 25, 2003 and February 25,
2003, and before the finding of indictment herein, he inflicted an injury
upon [A .S .] by fracturing her leg;
AND
B.
That in so doing, the Defendant
1) intentionally caused a serious physical injury to [A.S .I;
OR
2) wantonly caused a serious physical injury to [A .S .] by means of a
dangerous instrument .
(Emphasis added.) The instructions defined "serious physical injury" pursuant to KRS
500 .080(15) as a "physical injury which creates a substantial risk of death, or which
causes serious and prolonged disfigurement, prolonged impairment of health, or
prolonged loss or impairment of the function of any bodily organ ." "KRS 500.080(15)
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sets a fairly strict level of proof which must be met by sufficient evidence of injury,
medical and/or non-medical . . . ." Prince v. Commonwealth , 576 S.W .2d 244, 246 (Ky.
1978) . The seriousness of a physical injury depends upon the nature of the injury as
well as the victim's characteristics . See, e.g_, Johnson v. Commonwealth , 926 S.W.2d
463 (Ky. 1996) ; Cooper v. Commonwealth , 569 S.W.2d 668 (Ky. 1978) . There was
insufficient evidence to find that the leg fractures created a substantial risk of death
(because Dr. Ralston testified that a leg fracture did not create a substantial risk of
death) or caused a "serious and prolonged disfigurement" (because uncontroverted
testimony established that the fracture was not visible to the naked eye and would heal
without treatment).
However, there was sufficient evidence for the jury to conclude that the leg
fractures caused a "prolonged impairment of health ." Dr. Ralston testified that the injury
would take up to two months to heal, that the fractures would have been very painful
when sustained, and that the pain would have been exacerbated by A.S.'s concurrent
state of malnutrition . Though an impairment of health must be "prolonged" in order to
constitute a "serious physical injury" under KRS 500 .080(15), see , e .g., Parson v.
Commonwealth , 144 S .W.3d 775, 786 (Ky. 2004), a reasonable jury could conclude that
two months of healing time is "prolonged" with respect to the young life of a six-monthold infant.
Thus, viewing the evidence as a whole and drawing all inferences in favor of the
Commonwealth, it was not "clearly unreasonable for the jury to have found the
[Appellant] guilty ." Bra v, 177 S.W.3d at 746 . The trial court properly overruled
Appellant's motion for a directed verdict of acquittal . Benham, 816 S .W.2d at 187.
IV. RULE OF COMPLETENESS .
During its case-in-chief, the Commonwealth had Kentucky State Police trooper
Tim Reed testify to statements made by Appellant and Porter during their separate
interrogations . On cross-examination of Trooper Reed, Appellant sought to play the
videotape of the entire police interrogation of Appellant - more than an hour of footage
- in a purported effort to show how the Commonwealth had taken Appellant's
statements out of context. The Commonwealth objected on the grounds that
Appellant's videotaped statements were hearsay because, while admissible when
offered by the Commonwealth under KRE 801 A(b) (admissions of parties), they were
inadmissible if offered by Appellant because Appellant was not a "party opponent"
under the rule, and no other hearsay exception applied . Appellant responded that the
"rule of completeness" required admission of the entirety of an out-of-court statement
once an opposing party has properly introduced a portion of that statement.
The trial court sustained the Commonwealth's objection on hearsay grounds and
did not allow Appellant to play the videotape during his cross-examination of Reed.
However, after both Appellant and Porter cross-examined Reed, the following colloquy
occurred at the bench .
Judge:
I have been . . . reviewing this KRE 106 completeness rule
and comparing it with the hearsay exceptions . . . . Normally
[a statement] is going to have to comply with hearsay and
106. But if you've got some statement that you think
changes the meaning of a statement elicited by [the
Commonwealth's] witness, the fair thing to do is, even if it's
hearsay, to let you bring that in, because 106 . . . in this case
at least, would trump hearsay. But it's got to be closely
related, and it's got to really affect how the jury would
interpret that statement.
Defense:
Some of those things would be, you know, 'I didn't realize
what I had done,"I didn't mean to hurt her,' you know, 'I love
her,' 'I didn't mean to'- I mean, those things are in there
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also, which, without those things being in there, that doesn't
give the true picture . . . .
Judge :
Okay. Well, if there's things such as that that you want to
bring in through the witness, uh, you can do that, and we'll
let you get - you know, re-question on that point . I think
that's the fair way to go about it.
Pros . :
But you don't play the whole hour and fifteen minute tape .
Judge :
No .
Thus, the trial court ruled that Appellant could cross-examine Reed from the transcript
of the interrogation as to otherwise inadmissible hearsay statements made by Appellant
during the interrogation, but the videotape could not be played for the jury in its entirety.
Appellant did not object to the judge's ruling on this issue and was permitted on recrossexamination to elicit statements surrounding those to which Reed testified on direct.
Therefore, the error claimed on appeal was not preserved . Thus, we review the issue
only for palpable error under RCr 10.26.
. A trial court's ruling under KRE 106 (i .e . , the "rule of completeness") is
discretionary. KRE 106 Drafters' Commentary 1989; see also United States v.
Mussaleen , 35 F.3d 692, 696 (2d Cir. 1994) ; United States v. Maccini , 721 F.2d 840,
844-45 (1 st Cir. 1983) ; Robert G . Lawson, The Kentucky Evidence Law Handbook ,
§ 1 .20[3][b], at 68-69 (4th ed. 2003).
KRE 106 provides :
When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction at that time of any
other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneouslvwith it.
(Emphasis added .) See also Soto v. Commonwealth , 139 S.W.3d 827, 865-66 (Ky.
2004); Young v. Commonwealth , 50 S .W.3d 148,169 (Ky. 2001) ; Lawson, supra
§ 1 .20[3], at 67-71 .
However, a party purporting to invoke KRE 106 for the admission of otherwise
inadmissible hearsay statements may only do so to the extent that an opposing party's4
introduction of an incomplete out-of-court statement would render the statement
misleading or alter its perceived meaning . "The issue is whether 'the meaning of the
included portion is altered by the excluded portion ."' Young, , 50 S .W.3d at 169 (quoting
Commonwealth v. Collins, 933 S.W.2d 811, 814 (Ky. 1996)) .
The single purpose of considering the utterance as a whole is to be
able to put a correct construction upon the part which the first party relies
upon, and to avoid the danger of mistaking the effect of a fragment whose
meaning is modified by a later or prior part . . . .
Lawson, supra, § 1 .30[2], at 67 (quoting 7 Wigmore, Evidence in Trials at Common
Law, § 2550 (Chadbourne rev. 1978)) . Contrary to Appellant's position, KRE 106 does
not "open the door" for introduction of the entire statement or make other portions
thereof admissible for any reason once an opposing party has introduced a portion of it .
The completeness doctrine is based upon the notion of fairness - namely,
whether the meaning of the included portion is altered by the excluded
portion . The objective of that doctrine is to prevent a misleading
impression as a result of an incomplete reproduction of a statement. This
does not mean that by introducing a portion of a defendant's confession in
which the defendant admits the commission of the criminal offense, the
Commonwealth opens the door for the defendant to use the remainder of
that out-of-court statement for the purpose of asserting a defense without
subiectinq it to cross-examination.
Gabow v. Commonwealth , 34 S .W.3d 63, 69 n .2 (Ky. 2000) (citations and quotations
omitted) (emphasis added) . That is precisely what Appellant was endeavoring to do by
4 KRE 106 explicitly states that an "adverse party" may require introduction ; parties that
are not adverse to one another may not avail themselves of the rule. Young , 50 S .W .3d
at 169.
- 1 7-
attempting to introduce the exculpatory portions of the videotape, i .e. , introduce his own
exculpatory statements without subjecting them to cross-examination. (Appellant did
not testify at trial.) His statements made during the interrogation were inadmissible
hearsay - admissible when offered by the Commonwealth as admissions of a party
opponent, KRE 801 A(b), but inadmissible when offered by himself . Id . Accordingly,
KRE 106 applied only to the extent that fairness required the introduction of additional
portions of the interrogation to correct or guard against any likely misperception that
would be created by an opponent's presentation of a fragmented version of the
statement.
After reviewing KRE 106, the trial judge determined that it would be fair to allow
cross examination from the transcript on subjects "closely related" if they "really effect
how the jury would interpret that statement." Far from constituting an abuse of
discretion, this was a .proper enunciation and application of the rule . Appellant never
explained to the trial court how putting Appellant's statements "in context" by playing the
entire videotape would correct any likely misconception as to their meaning - or what
misconception was likely at all. We rejected a similar argument in Young v.
Commonwealth , 50 S .W .3d at 169, where a defendant sought to introduce six hours of
a recorded interrogation to show how the statements introduced by the Commonwealth
"evolved" throughout the interrogation . Though we ultimately held in Young that the
alleged error was unpreserved, we explained that introduction was not necessary under
KRE 106 because the meaning of the included portion was not altered by the excluded
portion . Id. Here, we find no error, let alone palpable error, in the exclusion of the
entire videotaped interrogation .
V . ASSAULT UNDER EXTREME EMOTIONAL DISTURBANCE .
Appellant argues that the jury should have been instructed on assault under
extreme emotional disturbance as a lesser included offense of each count of firstdegree assault. KRS 508.040. That statute specifically limits its application to
prosecutions "in which intentionally causing physical injury or serious physical injury is
an element of the offense," and the Commonwealth argues that Appellant was indicted
for and convicted of only wanton assaults . That, however, is only partially true, because
the conviction of second-degree assault was premised on an instruction that permitted
conviction on alternative theories of intentional infliction of serious physical injury or
wanton infliction of serious physical injury by means of a dangerous instrument .
Furthermore, each instruction on first-degree assault was followed by an instruction on
second-degree assault as a lesser included offense that included the same alternative
theory of intentional conduct . Thus, if supported by the evidence, Appellant would have
been entitled to additional instructions on - assault under extreme emotional disturbance
as lesser included offenses of each instruction on second-degree assault . This issue
was preserved for appeal by Appellant's tendered instructions on assault under extreme
emotional disturbance, which the trial court rejected . RCr 9 .54(2) .
Under KRS 508 .040 (by reference to KRS 507.020(1)(a)), a defendant found
guilty of intentional first-degree assault, KRS 508 .010, or second-degree assault, KRS
508 .020, may have his sentence reduced "if he acted under the influence of extreme
emotional disturbance for which there was a reasonable explanation or excuse , the
reasonableness of which is to be determined from the viewpoint of a person in the
defendant's situation under the circumstances as the defendant believed them to be ."
KRS 507 .020(1)(a) (emphasis added) .
_ 1 9_
In McClellan v. Commonwealth , 715 S .W.2d 464 (Ky. 1986), we said that an
extreme emotional disturbance is "a temporary state of mind so enraged, inflamed, or
disturbed as to overcome one's judgment, and to cause one to act uncontrollably from
the impelling force of the extreme emotional disturbance rather than from evil or
malicious purposes ." Id . at 468-69 . Further, "[e]xtreme emotional disturbance is
established only by a showing of some dramatic event which creates a temporary
emotional disturbance ." Baze v. Commonwealth , 965 S .W.2d 817, 823 (Ky. 1997)
(citations and quotations omitted) ; see also Whitaker v. Commonwealth , 895 S.W.2d
953, 954 (Ky. 1995) ; Cecil v. Commonwealth , 888 S.W.2d 669, 673 (Ky. 1994) ; Bowlin
v. Commonwealth , 873 S .W .2d 175,179 (Ky. 1993) .
However, the triggering event need only be "sudden and uninterrupted ."
No definite time frame between the triggering event and the killing is
required, so long as the EED remains uninterrupted . In fact, the onset of
EED may be more gradual than the "flash point" normally associated with
sudden heat of passion. In Springer fv. Commonwealth , 998 S.W.2d 439
(Ky. 1999)], we said "[t]he fact that the triggering event may have festered
for a time in [the defendant's] mind before the explosive event occurred
does not preclude a finding that she killed her husband while under the
influence of extreme emotional disturbance ."
Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2000) (citations and quotations
omitted) ; see also Holland v. Commonwealth , 114 S.W.3d 792, 807 (Ky. 2003); Fields v.
Commonwealth , 44 S.W.3d 355, 359-60 (Ky. 2001).
In the case sub judice , Appellant argues that the "reasonable explanation or
excuse" for his extreme emotional disturbance was that A .S . would persist in crying or
sucking her thumb despite his insistence that she not do so, coupled with the stress of
parenting both A .S ., age six-months, and his son, age seventeen-months . (Appellant
was unemployed and was the primary caretaker of the children while Porter was at
work.)
- 20-
Although "the concept of adequate provocation is broad enough to include the
cumulative impact of a series of related events," Holland , 114 S.W.3d at 807, "an
enraged, inflamed, or disturbed emotional state does not constitute an extreme
emotional disturbance unless there is a reasonable explanation or excuse therefor ." Id.
at 806 ; Caudill v. Commonwealth, 120 S .W.3d 635, 668 (Ky. 2003) (victim's refusal of
drug-addicted defendant's demand for money not a reasonable explanation or excuse) ;
Hodge v. Commonwealth, 17 S.W.3d 824, 850 (Ky. 2000) (mere resistance by victim of
armed robbery not a reasonable explanation or excuse) . No reasonable person would
consider the ordinary stresses of childrearing, specifically an infant's crying and thumbsucking, a "reasonable explanation" for "a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one's judgment, and to cause one to act
uncontrollably from the impelling force of the extreme emotional disturbance rather than
from evil or malicious purposes." McClellan , 715 S .W.2d at 468-69. Compare Holland ,
114 S.W.3d at 807-08 (finding erroneous refusal to instruct jury on extreme emotional
disturbance where, within days of shooting, suicidal defendant with borderline
personality disorder underwent back surgery, discovered boyfriend in bed with another
woman, experienced police intervention over suicide threat, and was under influence of
prescribed narcotics) with Foster v. Commonwealth , 827 S.W.2d 670, 678 (Ky. 1991)
(holding that defendant's drug abuse and upbringing in abusive, dysfunctional family
was insufficient "triggering event" to sustain instruction on extreme emotional
disturbance) . The trial court properly refused to instruct the jury on assault under
extreme emotional disturbance .
Accordingly, the judgment of convictions and the sentences imposed by the
McCracken Circuit Court are AFFIRMED .
All concur.
COUNSEL FOR APPELLANT :
Margaret Foley Case
Appeals Branch Manager
Department of Public Advocacy
Suite 301
100 Fair Oaks Lane
Frankfort, KY 40601
Julie Namkin
Assistant Public Advocate
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Michael Harned
Bryan D . Morrow
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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