RICHARD ROCK V. COMMONWEALTH OF KENTUCKY
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RENDERED : OCTOBER 19, 2006
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2005-SC-000290-MR
RICHARD ROCK
V.
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
03-CR-00149
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Richard Rock appeals from his jury conviction on charges of wanton murder and
tampering with physical evidence in the homicide of his mother, Elaine Rock. Appellant
was sentenced to a total of thirty years imprisonment. He argues on appeal that 1) the
instructions in this case were deficient ; 2) he should have been permitted to call an
expert as to his medical condition on the night of the crime ; 3) the Commonwealth
engaged in a line of irrelevant and prejudicial questioning regarding a mental disorder
which appellant did not have ; 4) appellant was compelled to curtail his defense based
on the Commonwealth's deception regarding its ability to bring forth rebuttal evidence;
5) the court improperly limited his questioning of a Commonwealth's witness ; 6) the
Commonwealth did not give notice regarding prior bad acts evidence ; and 7) victim
impact evidence was improper. Having reviewed these claims of error, we
affirm appellant's conviction.
Appellant confessed to causing the death of his mother, Elaine Rock. He stated
that he and his mother had been fighting about money, which they did frequently, when
he "snapped." He indicated that he strangled her by holding her in a headlock. He
admitted that afterward, he moved her body from the garage into the house and
changed the clothes she had been wearing. He asserted that he took a bottle of
sleeping pills and blood pressure pills and lay down beside his mother's body. When
he awoke, he called his uncle, Terry Rock. Terry was the brother of appellant's
deceased father and the brother-in-law of Elaine . He asked his Uncle Terry to come
over, but would not give him a reason why. When his uncle arrived at about 3 :15 a .m .,
appellant first gave him titles to his vehicles and some other personal documents, and
then showed his uncle his mother's body, covered by a sheet .
A plan was formulated for appellant to go to Las Vegas and stay with a cousin ;
both appellant and his uncle claimed it was the other's idea. Terry moved a beer can,
retrieved the clothing that had been removed from Elaine from the garage, placed it in a
hamper, and left.' Appellant called one of his mother's co-workers to say that she was
ill and would not need a ride to work. Then appellant caught a flight to Las Vegas at
7:30 a.m. Terry told his wife and a friend later that morning that appellant had killed his
mother. They convinced Terry to notify law enforcement. Appellant was arrested in
Las Vegas, where he gave a statement admitting that he had committed the offense.
He asserted that he was bipolar and that he had been off his medication for some time,
and when he did not take his medication he had violent and suicidal tendencies .
1 Terry Rock pled guilty to Tampering with Physical Evidence .
I. Instructions
Appellant's first claim of error is that the trial court erred in failing to instruct the
jury on manslaughter in the first degree. As to the homicide, the jury was instructed on
intentional murder, wanton murder, manslaughter in the second degree, and reckless
homicide. Appellant was found guilty of wanton murder. He argues that an instruction
on manslaughter in the first degree was appropriate because the jury could have
believed he did not intend to kill his mother, but could have believed instead that he
intended only serious physical injury. He asserts the evidence at trial which supported
this instruction was the remorse he expressed after her death and his claim in his
statement to Detective Tapp of the Kentucky State Police that he attempted to perform
CPR after his mother became non-responsive .
Lesser-included offense instructions are proper if the jury could consider a doubt
as to the greater offense and also find guilt beyond a reasonable doubt on the lesser
offense. Skinner v. Commonwealth , 864 S .W.2d 290 (Ky. 1993). Manslaughter in the
first degree is committed when a person acts with intent to cause serious physical injury
to another person, but causes the death of that person . KRS 507 .030(1)(a) . Proof of
intent in a homicide case may be inferred from the character and extent of the victim's
injuries . Parker v. Commonwealth , 952 S .W.2d 209, 212 (Ky.1997) . Intent may be
inferred from actions because a person is presumed to intend the logical and probable
consequences of his conduct and a person's state of mind may be inferred from actions
preceding and following the charged offense . Id. Appellant cites Hudson v.
Commonwealth , 979 S.W.2d 106, 110 (Ky. 1998), a case in which strangulation was
the means of death, for the following language: "To say that the method and means of
[the victim's] death only support an instruction on intentional murder is to make the
inference of intent mandatory ."
It was not error to refuse to give an instruction on manslaughter in the first
degree . Appellant told Detective Tapp in his statement that he knew his mother was
really hurt when she had no response when he let her go. We have no indication from
his statement that he meant to stop before he caused her the ultimate harm . The
testimony from the medical examiner was that a person would lose consciousness
within a minute or less of a person holding them in a headlock, and that brain death .
occurs after three to five minutes of asphyxiation . The evidence as a whole did not
support a belief that appellant intended only serious physical injury .
We conclude that the other cases appellant cites are distinguishable factually. In
Bartruq v. Commonwealth , 568 S .W.2d 925 (Ky. 1978), overruled on other grounds,
Wellman v. Commonwealth , 694 S .W.2d 696 (Ky. 1985), a manslaughter in the first
degree instruction was given even though the defendant shot the victim numerous
times . The instruction was held to be required, however, due to the fact that the
defendant testified that he intended only to scare her. Id: at 925 . Thus there was an
evidentiary basis, unlikely as it may have been, for the jury to infer the defendant
intended serious physical injury . Hudson, cited by appellant is also distinguishable
since the jury in the case at bar was instructed on a number of lesser-included offenses
that were applicable to the facts of the case. In addition, the court notably in Hudson
did not include an instruction on manslaughter in the first degree as an alternative to an
intentional murder charge .
In this case, there was no evidence from which to infer that appellant intended
his actions to only seriously injure his mother. There was no evidence that he
expressed that he only intended to scare or intimidate her. Furthermore, we do not
believe that appellant's alleged attempt to resuscitate his mother, occurring after the
death, establishes his state of mind when committing the act. 1t is consistent with regret
of his actions, but does not show intent only to injure . We affirm the denial of an
instruction for manslaughter in the first degree . We further note that the jury had the
opportunity to convict on a number of lesser-included offense instructions which were
applicable to the facts of the case.
2 . Exclusion of Expert Testimony
Appellant next believes that it was error for the trial court to exclude the
testimony of a physician who would have testified to appellant's condition at the time of
the offense. In his statement to Detective Tapp, appellant said on the evening of the
offense his mother confronted him in the garage after he got home. He told Detective
Tapp that just before that, while driving home, he "lost control of [his] bladder." He
asserted that was what happened when his blood sugar level was high . He stated,
"And that happens when blood sugar gets high, I can't see, you lose control of your
bladder, so I pissed all over myself." The defense's medical witness was to testify
about what happens to a diabetic when blood sugar is elevated . The trial court initially
agreed to allow the evidence, then ruled that the testimony was not relevant upon
learning that it had not been verified that appellant had diabetes .
Appellant argues that the trial court erred in excluding the testimony. He claims
there was an adequate foundation to show that appellant suffers from diabetes from the
circumstances that night and the fact that appellant's father had diabetes . He argues
the evidence was relevant to explain his physical state just prior to the confrontation
with Elaine Rock. The Commonwealth argues the claimed error is unpreserved for
appellate review because appellant failed to make an avowal of the proposed
testimony.
KRE 103(a) provides that error cannot be predicated upon a ruling which admits
or excludes evidence unless it affects a substantial right of the party. KRE 103(a)(2)
provides :
Offer of proof. In case the ruling is one excluding evidence, upon request
of the examining attorney, the witness may make a specific offer of his
answer to the question .
An alleged error in the trial court's exclusion of evidence is not preserved for appellate
review "unless the words of the witness are available to the reviewing court" by way of
an avowal . Commonwealth v. Ferrell , 17 S.W.3d 520, 524 (Ky. 2000). The purpose of
an avowal is to make the substance of evidence known for the information of the trial
and also to allow a reviewing court to determine whether the exclusion was erroneous
and whether it affected a substantial right. Robert G . Lawson, The Kentucky Evidence
Law Handbook, ยง 1 .10(3) at 31 (4th Ed. 2003).
In this case, the record contains only counsel's assertion that the physician
would have testified with regard to the physical condition of a diabetic experiencing a
high blood sugar level. This Court has nothing to indicate the substance of what that
testimony would have been. Without the doctor's testimony, we cannot know if he
could have indicated the likelihood that appellant had a diabetic condition based on the
limited facts he related. We have no indication whether a hyperglycemic condition
could impact a person's state of mind. We agree with the Commonwealth that
appellant's failure to present this testimony by avowal renders the allegation of error
incapable of being reviewed .
2 RCr 9.54, which formerly governed avowals in addition to KRE 103, was deleted by Order of the
Supreme Court, effective January 1, 2005.
Appellant further alleges that the trial court erred in not conducting a hearing on
the admissibility of the expert testimony pursuant to KRE 702. We disagree, however,
in that the evidence was not ruled inadmissible as being scientifically unsound, but was
excluded on the basis of relevance . Thus, it was not incumbent on the court to conduct
a hearing under KRE 702.
3. Questioning on Antisocial Personality Disorder
Next, appellant alleges that the Commonwealth engaged in a line of questioning
regarding mental disorders that was designed to confuse the jury. Appellant had
asserted in his statements to the investigating officers that he was bipolar and had not
been taking his medication . The defense called Dr. Michael Harris, a forensic
psychiatrist, to testify about what Bipolar Disorder is, how it is treated, and whether it is
common for those with the disorder to stop taking their medication . On crossexamination, the Commonwealth elicited from the witness that he had not diagnosed
appellant with having Bipolar Disorder and could not say that appellant had the
disorder . Dr. Harris further testified that he did not observe any instance in his review of
appellant's hospital and outpatient records where appellant had been diagnosed with
having Bipolar Disorder. He stated that he found that appellant had some of the criteria
of the disorder, but not all. He testified that appellant's records showed he had been
diagnosed with major depression and possibly with a panic disorder .
The Commonwealth's Attorney asked, "Now, did you ever see an occasion
where the defendant was diagnosed with an Antisocial Personality Disorder?" The
doctor responded, "I don't believe I saw that." The Commonwealth's Attorney asked the
doctor about irritability as a psychiatric symptom . Then the Commonwealth's attorney
returned to the subject of Antisocial Personality Disorder . Dr. Harris described it as a
condition caused by repeated antisocial acts and attitudes. The Commonwealth
Attorney asked Dr. Harris a series of questions about the symptoms of Antisocial
Personality Disorder - whether they included irritability, a tendency to get involved in
physical altercations, a failure to consistently work, and a tendency to rationalize one's
actions . For each, the doctor agreed that it could be a characteristic of Antisocial
Personality Disorder . At last, defense counsel objected to "any other line of questioning
on Antisocial Personality Disorder ."
At the bench, defense counsel argued that the questioning implied that appellant
had the disorder, though he did not. The Commonwealth asserted that appellant
presented information that he had Bipolar Disorder, so the Commonwealth was trying to
show that it was just as likely that appellant could be categorized as having Antisocial
Personality Disorder . The trial court questioned the relevance, and furthermore noted
that the Commonwealth already had established that appellant did not have Bipolar
Disorder . Still expressing reservations about relevance, the court decided to allow the
Commonwealth to continue based on the fact that appellant had opened the door to the
questions on direct examination.
The Commonwealth then elicited from the psychiatrist that appellant did not
neatly fit into the category for a disorder, and had some characteristics of Antisocial
Personality Disorder. The Commonwealth asked, "He could go either way, now,
couldn't he?" The psychiatrist replied that it would also depend on the history obtained,
and acknowledged that diagnoses are sometimes inexact . Finally, the
Commonwealth's Attorney asked, "is it true that as far as the Antisocial Personality
Disorder that a lot of those - a lot of people that you can diagnose with that are people
you see in jail or prison . Is that right?" The psychiatrist responded,
I think it depends on which end you are looking for. If you go to a jail or
prison probably a lot of the people there have Antisocial Personality
Disorder . But 1 don't know how many people on the outside who have the
disorder are going to end up in jail . Correct .
Appellant alleges that he was prejudiced when the Commonwealth's Attorney
brought up the subject again in closing argument. The prosecutor asserted that Dr.
Harris's testimony had not informed the jury of anything of any assistance to them . He
asserted that the witness' testimony was intended to have the jury believe that appellant
was bipolar, even though the doctor agreed that he did not meet some of the criteria of
Bipolar Disorder . The Commonwealth's Attorney stated that appellant did fit some of
the criteria for Antisocial Personality Disorder according to Dr. Harris.
He noted that Dr. Harris had stated that research tended to show that Bipolar
Disorder has an organic cause, but that no organic basis had been discovered for
Antisocial Personality Disorder . He continued :
There is no such organic reason or excuse for Antisocial
Personality Disorder . What causes that? He told us that, well, it is more
nearly your personality and what you have been brought up to see and
what you have done as a kid, and those kinds of things .
And I asked him, you know, does that kind of personality describe
people you a lot of times see in prisons and he said yes. I can't tell you
how many; there's probably a lot of them outside of prison, too .
So we get this picture of what is going on. This is thrown out for
you that there is this Bipolar Disorder . That is what caused him to snap.
That's not what caused him to snap. What caused him to snap is, that is
his personality. That's how he functioned .
Dr. Harris, the defendant has never been diagnosed as having a
Bipolar Disorder . And there was no testimony at all that he suffered from
any type of disorder on June 12th/June 13th .
There was no objection during the Commonwealth's closing argument. Appellant
contends that the argument regarding this testimony which was not relevant permitted
the prosecutor to portray appellant as suffering from a disorder without an organic
"excuse" and which is shared by the general jail and prison population . He argues that
even if it had been relevant, its probative value was substantially outweighed by its
tendency to mislead the jury. KRE 403 .
We agree with appellant that this entire line of questioning as to Antisocial
Personality Disorder should not have been pursued . It had no relevance. Relevant
evidence is evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be
without the evidence. KRE 401 . This evidence did not tend to prove or disprove any
fact of consequence to the determination of the action . The fact that appellant had
some criteria of a disorder, but not the disorder itself, did not tend to prove anything
about Bipolar Disorder or the facts of the case, and did tend to mislead . It was
misleading for the prosecutor to pursue an inference that if appellant had enough of the
criteria he may have the disorder, and prejudicial to infer that he may share it with much
of the prison population . The Commonwealth's asserted premise - that appellant
merely exhibited some characteristics of a disorder - could have been addressed
without injecting into the minds of the jury an additional disorder appellant did not have.
Furthermore, the trial court erred in ruling that the defense's questioning "opened
the door" to allow the Commonwealth to question the psychiatrist about disorders not
raised by the defense case and which appellant did not have. "Opening the door,"
sometimes referred to as "curative admissibility," occurs when one party introduces an
inadmissible fact that opens the door for the opponent to offer similar facts whose only
claim to admission is that they negate, explain, or counterbalance the prior inadmissible
fact.
Blair v. Commonwealth , 144 S.W.3d 801, 806 (Ky. 2004). We agree appellant
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opened the door for the Commonwealth to refute appellant's evidence regarding bipolar
disorder . But the Commonwealth could do this without reference to another disorder,
and without the additional implications made in this case. Where the probative value of
rebuttal evidence is substantially outweighed by its prejudicial effect under KRE 403,
the trial court should exclude it, even when presented with the argument that the door
was opened to the evidence. Purcell v. Commonwealth , 149 S .W .3d 382, 400-401 (Ky.
2004).
Having determined that the line of questioning was error, we must determine
whether it affected appellant's substantial rights . We consider whether there is a
reasonable possibility that the error might have affected the jury's decision . Crane v.
Commonwealth , 726 S .W.2d 302, 307 (Ky. 1987) . We conclude that what saves this
error from inviting reversal is the fact that the psychiatrist clearly reported to the jury that
appellant had not been diagnosed with either Bipolar or Antisocial Personality Disorder .
He also defused the question about Antisocial Personality Disorder in the prison
population with his assessment that essentially it is not effective as a predictor of who
will wind up in prison . Thus, we believe the jury was effectively informed by the expert
testimony despite the improper questioning . In addition, although the prosecutor
returned to the prejudicial aspects of this line of questioning in his closing argument,
which incurred no objection, he did reiterate to the jury that appellant was not
. diagnosed with any disorder.
We do not believe the jury's ultimate determination of appellant's mental state at
the time of the killing would have been affected by this improper questioning . The
psychiatrist expressed no opinion as to appellant's mental state at the time of the killing .
The prosecutor did not use the disorder evidence to argue for any particular result in
this case. From our review of the record as a whole, we find that appellant's substantial
rights were not affected and the error was harmless in this case.
4 . Commonwealth's Contentions Regarding Rebuttal Evidence
Appellant filed a motion for new trial in which he argued that the Commonwealth
misled appellant and the court by claiming to have rebuttal evidence which did not exist.
In appellant's and Terry Rock's transcribed statements, they referred to an alleged
earlier incident when appellant once beat Elaine Rock so badly during a fight that she
was hospitalized . The Commonwealth elected not to pursue the matter of prior bad
acts in its case-in-chief. Appellant alleges that the Commonwealth, in discussions with
defense counsel, asserted that he had witnesses he could call in rebuttal who would
testify about the alleged beating . Appellant argues that the threat of calling these
witnesses curtailed his defense and caused him to advise appellant not to take the
witness stand in his own defense . He states that he only learned during the sentencing
phase of trial that the Commonwealth did not have witnesses prepared to testify to the
prior bad acts. Appellant alleges that the Commonwealth's Attorney's threats of
introducing evidence of a prior bad act, made with the knowledge that it did not have
competent evidence to establish such proof, constituted prosecutorial misconduct .
This Court can only review this issue as to what is in the trial record . In the trial
transcript, the Commonwealth asserted that if appellant introduced only a portion of his
statement at trial, the Commonwealth was entitled to put in the remainder of the
statement. The trial court ruled that the parties would be free to admit the portions of
the tape they wanted, subject to a determination of relevance. Defense counsel stated
that he needed a recess to decide what he wanted to do . Following the recess, the
defense announced its case was closed .
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The required analysis by a reviewing court in considering an allegation of
prosecutorial misconduct must focus on the overall fairness of the trial, and not the
culpability of the prosecutor. Slaughter v. Commonwealth , 744 S.W.2d 407, 411-412
(Ky. 1987) . We believe the record shows that the Commonwealth elected to forgo any
attempt to prove the prior bad act, which was potentially admissible in its case-in-chief,
out of caution . However, the Commonwealth maintained that if appellant played a
portion of the tape the Commonwealth could introduce the remainder of the tape . The
Commonwealth acknowledged to the court that it had not prepared witnesses to prove
that what was said on the tape had occurred . We do not regard this as a "bluff' by the
Commonwealth as to what its evidence would be. The record shows that the defense
was concerned about the playing of the tape and potential to open the door to evidence
of prior bad acts, and decided to end its case in chief without using the tape or
appellant's testimony. That was a strategic decision by defense counsel, based on the
evidence, actual and potential, known to the defense . We perceive no instance of
prosecutorial misconduct, and believe that the overall trial was fair.
5. Limitation of Cross-Examination
Next, appellant argues that the trial court improperly limited its questioning of the
investigating detective. Detective Tapp testified that Jeremy Rock's answers to his
questions regarding how he caused his mother's death "were elusive ." Defense
counsel asked about this on cross-examination and the detective responded that
appellant omitted the details . Defense counsel asked,
You say when you look at Jeremy's demeanor in his statement, "The only
thing I know is somebody i cared about was gone." Do you think his
reluctance to tell you the actual blow-by-blow, the moment-by-moment,
every single detail, do you think that was motivated by an effort to deceive
you or do you think it may have had something to do with just pure
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shame?
The court sustained Commonwealth's objection to the question on the basis that it was
not relevant, the officer would have to speculate as to whether appellant was trying to
hide something or felt shame, and such determinations were for the jury.
Appellant argues that the response should have been allowed because evidence
of the accused's demeanor, appearance and behavior during the time period in which
the crime was committed and shortly thereafter is considered relevant evidence in the
determination of guilt. Garland v. Commonwealth , 127 S .W.3d 529, 542 (Ky. 2003),
overruled on other grounds, Lanham v. Commonwealth , 171 S.W.3d 14 (Ky. 2005) .
Appellant further argues that the Commonwealth opened the door to this evidence. We
agree with the trial court's ruling . The question purely called for speculation on the part
of the detective . The question, moreover, had to do with appellant's demeanor at the
time of police questioning, not at the time of the crime nor shortly thereafter.
6 . Statement of Co-Worker
Next, appellant argues that the Commonwealth failed to comply with the
requirement in KRE 404(c) that the prosecution give "reasonable pretrial notice" of its
intention to use evidence of the defendant's prior acts. However, the evidence at issue
was a statement, not any acts committed by appellant . Appellant argued the
Commonwealth could not call as a witness a former co-worker of appellant's who gave
a statement that appellant told him while they were at work that sometimes his mother
made him so mad he wanted to beat her with a bat or a two-by-four. KRE 404(b), by its
terms, is concerned with "other crimes, wrongs or acts," but not with statements of a
person . For that reason, the KRE 404 notice requirement is inapplicable to the
statement the Commonwealth sought to introduce in this case. Moreover, the
F
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statement was provided in the Commonwealth's discovery. The trial court correctly
concluded that the statement was relevant and admissible .
7. Victim Impact Evidence
Appellant admits that this claim of error was not preserved by contemporaneous
objection, but argues that it should be reviewed as a palpable error pursuant to RCr
10 .26. In the sentencing phase of appellant's trial, the Commonwealth called two
witnesses, a sister and sister-in-law of Elaine Rock, to testify to the impact on her family
following her death . Appellant urges us to find palpable error since this Court has
previously held that only one witness is permitted to present victim impact evidence
pursuant to KRS 532.055(2)(x)(7) and KRS 421 .500, citing Terry v. Commonwealth ,
153 S.W .3d 794, 805 (Ky. 2005). Appellant also argues that there is no provision in the
definition of victim in KRS 421 .500 for a sister-in-law of the victim to offer victim impact
evidence, and in actual fact, the witness only married Elaine Rock's brother after
Elaine's death .
While appellant argues that the additional testimony provided by the future
sister-in-law of the victim was emotional, he fails to show that it was palpable error. The
evidence was basically cumulative of other evidence tending to show how Elaine was
going to be missed by her close-knit family . We perceive no manifest injustice to
appellant in having a second, even improper, witness testify to the impact of her death .
This was not palpable error under RCr 10.26 .
For all the foregoing reasons, we affirm the conviction of appellant for wanton
murder and tampering with physical evidence.
All concur.
ATTORNEY FOR APPELLANT
Christopher N . Lasch
Michael L. Goodwin
Goodwin & Lasch, PSC
6008 Brownsboro Park Blvd
Louisville Ky 40207
ATTORNEY FOR APPELLEE
Gregory D. Stumbo
Attorney General of Kentucky
Ken W . Riggs
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Ky 40601
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