RICHARD GABBARD V. COMMONWEALTH OF KENTUCKY
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RICHARD GABBARD
PELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
NO. 06-CR-00028
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING
Appellant Richard Gabbard was convicted of murdering his girlfriend by
shooting her. On appeal, he claims that the trial court erred by failing to strike
two jurors for cause, by not to allowing him to ask lay witnesses their opinion
about whether the shooting was accidental, and by allowing evidence of prior
threats he had made . Because this Court agrees that the trial court erred by
not striking one of the jurors for cause, Appellant's conviction must be
reversed.
I. Background
Appellant lived with the victim, Michelle Davidson Krystofik, who had
been his girlfriend for five years . Kelly and Kim, who were the victim's
daughters, along with Kim's infant son, also lived with them .
Kelly testified that on the night of the shooting Appellant and the victim
had been sitting in the living room . Appellant was cleaning his guns . Kelly
Klabe- ..D.C
was in her bedroom when she heard a gunshot. She went to the living room
and saw that her mother had been shot . She testified that Appellant told her it
had been an accident. She had heard no arguing between her mother and
Appellant prior to the shooting.
Kim testified that earlier in the evening, Appellant had argued with her,
her ex-boyfriend (via telephone), and the victim about an incident at a family
gathering several weeks earlier during which Appellant had argued with the
victim's father. She stated that her mother and Appellant appeared angry at
each other. She claimed that Appellant then took a gun from the cabinet and
walked outside . When he returned, according to Kim, the victim asked him
why he needed a gun. He replied, "Because I might need to shoot somebody ."
Kim testified that she started to walk to her room when she heard the shot.
It was revealed at trial that Kim had given two interviews to police after
the shooting in which she said it was an "ordinary" evening . In the interviews,
she did not say that there had been any arguing or that Appellant said he
"might need to shoot somebody," though she said Appellant may have been
cleaning his gun when the shooting occurred.
Appellant admitted to police that he had "kinda" been arguing with the
victim about the incident at her father's house several weeks before. He
claimed that he had been cleaning his guns and that he took a gun when he
went outside because a neighbor had threatened him earlier. He told police
that when he came back into the house, he may have been "goofing off' and
raised the gun "like a fool," but claimed never to have pointed the gun at the
victim . He admitted he may have pulled the trigger, though he did not think he
2
did . One of the officers testified that Appellant had also stated that the gun
went off while he was cleaning it.
Other testimony at trial came from competing expert witnesses (about
what would have been necessary for the gun to accidentally fire), a medical
examiner, an accident reconstructionist, and witnesses who testified about
other incidents where Appellant had threatened or pointed a gun at people,
including the victim. In addition to his expert witness, Appellant presented
witnesses who testified that he and the victim appeared to be getting along
prior to the shooting and did not argue.
The jury convicted Appellant of wanton murder. To avoid a penalty
phase, Appellant and the prosecution agreed to a sentence of twenty years in
prison. This appeal, then, is a matter of right. Ky. Const. § 110(2) (b) .
II. Analysis
A. For-Cause Strikes
Appellant complains that two jurors should have been struck for cause
and that he was forced to use peremptory challenges on them. He notes that if
the jurors should have been struck for cause, the trial judge's failure to do so
was reversible error under Shane v. Commonwealth, 243 S .W.3d 336 (Ky.
2007) .
The first juror stated that she knew the defendant's sister, had worked
with her for at least the last ten years, and saw, worked with, and talked to her
every day. When asked if that relationship could interfere with her "deciding
the facts of this case based upon the law," she replied,
No, it would not. The problem I have is from what I heard, the gun
was supposed to accidentally went off. My dad was a game
warden . I've lived in a house with guns all my life, loaded guns,
taught hunter safety. My brother taught hunter safety, my sons
taught hunter safety. It's not impossible, but it's improbable to
me
She was interrupted at that point by the prosecutor, and the following
exchange took place :
Prosecutor : Could you wait to make your determination of whether
that happened in this case until you've heard all the
evidence?
Juror:
I have pretty much made up my mind on that.
Prosecutor : If the judge were to instruct you to set that aside,
would you be able to make your decision based on
what you hear in court? I mean, I'm not telling you not
to use your common sense and your life experiences,
but in judging this case whether or not he's guilty or
not guilty, could you set aside any previous opinions
you might have and reach a decision based upon the
law and the evidence in the case?
Juror:
It would still be in the back of my mind .
Judge:
Juror:
Let me ask you this. When you come in-everybody
comes in with their life's experiences, everybody comes
in here-nobody comes in here with a clean, empty
blackboard of a mind . They all come in with certain
beliefs and things . What I'm asking you is, when youthe evidence you hear in this courtroom, and the law
that I give you, that will you be able to make a decision
based on the evidence using your common sense and
listening to the evidence and following the law that I
give you? Can you make your decision on that, and
put aside any preconceived notions at the same time?
Common sense, I believe I could.
(Emphasis added .)
The judge then allowed defense counsel to ask questions, and the
following discussion took place :
Defense :
You said based upon your family's history of having
guns and using guns, and something about a hunter's
course, that you are skeptical that a gun would go off
accidentally . Is that right?
Juror:
Uh-huh . [Indicating the affirmative .]
Defense:
So if you were to hear evidence at the trial that-from
the defense that-or you know by Rick Gabbard, "The
gun accidentally went off in my hand.", are you saying
that based on your experience and your family's
experience, and your knowledge of firearms and their
knowledge of firearms, and handling them that you
would not really believe that?
Juror:
Defense :
I would do as the judge instructed me and put it aside .
Are you sure that you could put that aside or would
you-you know, I mean, that's kind of hard to-
Juror:
Defense :
Juror :
Defense:
It is hard.
-to say for sure, because I thought earlier, hearing
that what you said, from what you knew about the
case, you-and your own family's history-that you
didn't think that the gun would go off accidentally?
I said it was, it's not impossible, but it's improbable .
Okay, could you explain more what you mean by that?
Juror:
It's not impossible that accidents do happen, but to
my knowledge of firearms, it's improbable if handled
correctly .
Defense:
Okay, so you're leaning against, I mean, and if I'm
misstating it, please let us know that. You say that it's
not probable . In your mind, does that mean that you
think it's a lot more likely that it didn't go off
accidentally?
Juror:
Yes.
Judge:
I'll ask you this question, now you worked with
[Appellant's sister] for ten years, so you kind of got,
you're sort of got two-
Juror:
Judge:
Yes, I'm caught between the two .
You're the tug o' war party here. So, if you're chosen to
sit on this jury, and the Commonwealth has got to
prove it beyond a reasonable doubt that the defendant
is guilty, and the defendant's presumed to be innocent.
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And if you're unsatisfied that the Commonwealth has
shown guilty beyond a reasonable doubt, could you
find the defendant not guilty?
Juror:
Yes, I could .
Judge:
And if you were satisfied that the defendant was guilty
beyond a reasonable doubt, you could do that?
Juror:
Yes, I could.
The court then allowed more defense questions:
Defense :
Based on what you said about the history of using
firearms and firearms in your family, you would
approach it, you're skeptical that the gun could go off
by accident?
Juror:
Yes, I am skeptical
Defense :
Is that fair to say, that you're skeptical of that right
now? And that skepticism won't go away, will it, just
based on the facets from your personal history?
Juror :
Um, I could listen to it, yes. And I could take
everything into consideration .
Defense :
Okay. But
Juror:
But I still have my own opinions.
Defense:
Okay, and part of your own opinions are based on
your own-
Juror:
My own personal experience .
Defense :
Juror:
your own personal experience and your own belief
based on that that guns-it's a lot more likely that
they do not go off accidentally, is that right?
More or less that they don't go off accidentally .
Prosecutor: Would you agree with me that anybody with common
sense knows it's much more probable that the gun
goes off when somebody pulls the trigger than it just
goes off by itself?
Juror :
Oh, yes.
The juror then indicated that she knew members of the victim's familyspecifically the victim's father and his grandchildren (the victim's nephews and
nieces)-who she "had. . . in school ." She did not know them socially but said
she spoke with them "on a regular basis." She did not live near them .
The following discussion then took place :
Defense:
Based on=you said that, you know, you had heard, I
guess, things about the case . Do you have an opinion
about it?
Juror:
Right now, I do, yes .
Defense:
What is your opinion?
Juror:
That's he's guilty.
Judge :
Okay, and you've heard that on unsworn testimony,
things you've heard just out-
Juror:
Just in the community. Nothing from nobody in
specific .
Judge :
Okay, and that's just what you've heard from-would
be able to still make your decision on what you hear
here, from the sworn testimony and the law that you're
given?
Juror:
Yes, I could.
(Emphasis added.)
The prosecutor said he thought she was qualified, focusing on her claims
that she could set her beliefs aside. Defense counsel moved to strike her for
cause, claiming that once the juror expresses a belief she cannot be
rehabilitated with the "magic incantation" that she could set that belief aside
and citing Montgomery v. Commonwealth, 819 S .W .2d 713 (Ky. 1991) .
The court then stated :
This one's a tough one for this reason : it doesn't bother me about
the-I'm not really concerned about the gun part because she said
she was open to the possibility. I know the case you're talking
about, because it says you can't the thing she's got here, she
works with her [sic] sister, and I think the way she said that, the
way I took it, it's just that she-this is the way I read that case you
were talking about, I'm not sure of the name of it, I read about the
7
magical words don't just eliminate it. She works with this, she
sees this girl every day. She sees the Davidson's children. She said
that her dad was a game warden, just for the record, and teaches
hunter's safety courses . She said she was open to the possibility of
the evidence . She also said she could find him guilty or not guilty.
And then she said, based on what she heard out in the
community, and I'm thinking from what-that case you're talking
about says that if they've formed an opinion, you can't just wipe it
away. But the way I took what she was saying was, she's heardit's a close one . Anything else you want to say about it?
The prosecutor then made some comments, including, "How in a small
town do you not have an opinion?" The court continued :
It's kind of like with her, when you hear something, you're gonna
hear certain facts, and the way she talked, I think-and this might
just be my personally knowing her, but the way she talked, with
the relationship, every-seeing the sister every day, I'm just still
not sure which one she's the better juror for, because I-and I
might be tainted by knowing her, but this lady here, I don't know
which way she's the better juror for right now . Right this very
second . I'm just trying to balance it both ways. She seemed like
she would be a better juror for the Commonwealth, but she's, she
is, Mrs . B[------] is my-and this has nothing to do with anything,
I'm just telling you where I'm coming from. My mom's a B[------ ] .
She was my mom's second cousin. She's a-she works with-she
has connections with both families . She said what she was, what
she knew about the gun, and that she was open to the possibility.
Then you asked her-she's just telling you all she knows and as an
afterthought, she said, from what she heard, she could have
formed-she had an opinion . But I don't think her opinion is-she
said she could set it aside, which Mr. Nelson [the defense counsel]
quoted it correctly. I think, I think [she] is-she's not a perfect
juror, but I think [she] is probably-could give both of you all a fair
trial. That's my take on it. That's my take . And like I said, in my
mindset right now I think Mr. Nelson probably thinks she's a worse
juror for him than you. But I'm not sure she is . That's just my
take on her, because I've known her a long time.
The prosecutor then stated he was at a disadvantage because he did not
know these jurors and that the juror might "know the magic words" and want
to sit on the jury, but that neither he nor the defense counsel wanted such a
juror. The court then discussed the "magic words" case, noting that he
thought this juror was different from the one in that case .
The prosecutor, recognizing that it was a difficult decision, noted that the
appellate courts could possibly reverse the trial court for leaving the juror on
but could not for taking her off the jury. And while he thought she was
qualified, he stated he was trying to look at it from all three aspects .
The judge stated he was inclined to leave the juror on but stated that his
notes indicated that a juror who had formed an opinion should be excused .
The Commonwealth then suggested they play it safe, keeping her around only
in the event that there were not enough jurors otherwise. The defense counsel
stated he had not heard of that procedure as an option .
The court declined this option, stating instead that he would just leave
her on the jury, noting for the record that what she said was "not the classic
case of forming an opinion," and that he did not think either side would strike
her with a peremptory . He also thought the juror could be fair, and noted that
everyone in the town would have to say they had an opinion because the town
was so small, noting it had less than 1,000 people . I He also noted that the
"totality of this juror's circumstances" made him think she could be impartial
and doubted even that the defense would use a peremptory strike on her .
When asked if the defense motion to strike for cause was overruled, the
court said, "It's overruled very reluctantly and timidly and antennas are up and
1 This figure is somewhat misleading, since the venire should be drawn from the entire
population of Lee County, which according to the U.S. Census, is about seven times
that of Beattyville, which is the county seat and the town to which the judge was
referring.
beads of sweat are starting to pop out. So I'm concerned about this one . But I
think I'm making the right decision on this." He then recommended that they
break for lunch but noted that he might "come back and revisit this one ."
After lunch, the judge indicated he had read a case from 1993 covering
jurors like the second juror and that the case indicated that such a juror
should be struck only if she had both detailed knowledge about the case and
had formed an opinion about the guilt or innocence of the defendant.z Based
on this case, he felt he needed to hear from the juror to see if she had detailed
knowledge of the case . She was called up and the following discussion ensued :
Court:
Your knowledge of the case . How would you describe
your knowledge of the case?
Juror:
Very limited.
Court:
Okay. You want to ask any questions?
Defense:
I think that . . .you'd said before that, from either what
you knew about the case or what you had heard and
that you had an opinion and that you think that Rick
was guilty
Juror:
Uh-huh .
Defense :
And what was-we didn't really ask you what about
exactly what that knowledge was that led you to
believe that.
Juror:
The only thing I heard that he was supposedly been
cleaning his gun, the gun went off and shot her .
That's all.
Prosecutor : That all you heard?
Juror:
Defense :
2
That's it.
And what was it about that that made you think that
he was guilty?
The court called the case the "Thompson case," but may have been referring to
Thomas v. Commonwealth , 864 S.W.2d 252 (Ky. 1993) .
10
Juror:
It's just to me, it's like I said, improbable for the gun to
go off when you're cleaning it.
Court:
[to the prosecutor] Any questions?
Prosecutor : Who did you hear that from?
Juror:
I don't even know, just in passing .
Presumably the judge was satisfied with the juror's answers because he
did not discuss her further after she returned to the gallery.
The second juror Appellant complains of was the head teller at a local
bank. He had known the victim's family for a long time, having worked with
the victim's father in the past and having referred business to the victim, who
he had known professionally for about ten years and who worked at a finance
company. He spoke frequently with the victim in the course of their business
dealings, describing their contact as "daily," though he did not go to her
funeral . He also stated that the victim's father's wife was one of his customers
at the bank, that she was a good customer, and that he wanted to keep her
business. He was also a neighbor of Appellant's parents, who lived down the
street from him, and knew other relatives of Appellant through work.
He admitted to having heard things about the case "on the street" from
customers at the bank, including that the Appellant was on drugs or drunk
and shot the victim . He described his knowledge about the case as not detailed
and as limited to what he had read in the paper and heard from customers at
the bank. He said that if the evidence matched what he had heard, he would
think the Appellant was guilty and should serve time. He also described the
situation as a tragic one that was preventable, and noted that a person should
take responsibility when handling a firearm, even when intoxicated, but did not
express an opinion about this case particularly .
He stated that he could separate his knowledge from "the street" from the
evidence that was presented at trial and decide the case only on that evidence.
In response to an unusual but insightful set of questions from the trial judge,
the juror stated that if he were a defendant, he would be comfortable being
tried by a jury composed of people like himself, so long as they could
distinguish between what they had heard on the street and the evidence at trial
and thus make an impartial decision . He then reiterated that he could make
such a distinction . In response to further questions from the judge, he also
said that he could make the prosecution prove its case and presume Appellant
was innocent, though he stumbled at first in reaching the latter conclusion,
saying at first he "guessed" he could.
Defense counsel argued that the juror had a conflict of interest because
of the business relationship, had formed an opinion about the case based on
his assertion that if the facts were as he had heard then Appellant deserved to
serve time, and had hesitated in saying he could presume innocence.
Though the judge expressed concern that the juror hesitated about
presuming Appellant was innocent, he concluded that the hesitation alone was
not sufficient to strike the juror. The judge also noted that the relationship
with the victim was only a business relationship (and the juror was not the
owner of the bank), that he had stated he could be fair, and that the juror did
not have detailed knowledge. Based on this, the judge declined to excuse the
furor .
12
Defense counsel used peremptory strikes against both jurors of whom
Appellant now complains . On the strike sheet, defense counsel also named two
other jurors he would have struck with peremptories had his for-cause strikes
been granted. One of these two jurors actually sat on the jury that convicted
Appellant.
As the description above demonstrates, the trial judge went to great
lengths to ascertain whether the jurors had any bias or other disqualification .
As to the first juror, he observed her demeanor, heard her answers to his and
the attorneys' questions, and had personal knowledge of her as a resident of
the community. It is obvious from the record that he struggled with the
decision and recognized there were potential problems with allowing her on the
jury, but ultimately concluded that she would be impartial . In reaching this
decision, the judge placed great weight on the fact that she had connections to
family members of both Appellant and the victim, which the judge saw as
giving her a balance that made her an appealing juror to both the prosecution
and the defense .
As to the second juror, the judge noted the hesitation of the juror but
focused on the juror's claims that he could be fair and could consider the
evidence over the gossip he had heard on the street. He expressly noted that
there was insufficient evidence that the juror had a probability of bias or
prejudice.
It is largely because of the familiarity both with what occurs during voir
dire and the community that "[t]he law recognizes that the trial court is vested
with broad discretion to determine whether a prospective juror should be
13
excused for cause. . . ." Mabe v. Commonwealth, 884 S.W.2d 668, 670 (Ky.
1994) . However, that discretion does not mean a trial judge's decision not to
strike a juror for cause is beyond review by an appellate court.
Both jurors complained of here were "tough calls ." The judge's handling
of the second juror demonstrates the wisdom of deferring to the trial judge's
discretion in most cases . The judge considered the limited relationship of the
juror to the parties, his statements regarding his ability to consider the
evidence and be fair, the fact that he had not yet formed an opinion in the case,
and his lack of detailed knowledge, and concluded that this juror could be fair.
Whether the juror's hesitation in answering the question about the
presumption of innocence made him unable to sit on the jury is precisely the
type of issue that a trial judge is best suited to decide, as the judge is able to
take in the totality of the circumstances surrounding the hesitation and the
hesitation itself. Though the juror was a tough call, this Court cannot say that
the trial judge erred in making the call that he did .
The first juror, however, is a different story . She specifically stated that
she had formed an opinion about the case, that she had made up her mind,
and that she thought Appellant was guilty. She did not couch her claims as
hypotheticals, unlike the second juror, who premised his statement about the
Appellant deserving to serve time on the prosecutor's proving his case .
Unfortunately, it appears that the trial judge, while giving special attention to
whether the first juror could be fair and spending about half an hour in voir
dire and discussions with the attorneys, ultimately focused on the wrong
criteria in finding that the first juror would be impartial. That she had a
14
connection to both the victim and the Appellant, or that she repeatedly said
she could set aside her views and review the evidence and apply the law as
instructed by the judge, could not undo the fact that she had also clearly
indicated a bias. (If anything, that the juror had connections to the families
exacerbated the problem by raising additional potential biases .) The juror had
already stated that she had made up her mind and that she thought Appellant
was guilty.
Defense counsel was correct that a juror who has already formed such
opinions cannot be rehabilitated . As this Court noted in Montgomery , the case
relied on by the defense at trial :
One of the myths arising from the folklore surrounding jury
selection is that a juror who has made answers which would
otherwise disqualify him by reason of bias or prejudice may be
rehabilitated by being asked whether he can put aside his personal
knowledge, his views, or those sentiments and opinions he has
already, and decide the case instead based solely on the evidence
presented in court and the court's instructions . This has come to
be referred to in the vernacular as the "magic question." But, as
Chief Justice Hughes observed in United States v. Wood , 299 U .S .
123, 146, 57 S .Ct. 177, 185, 81 L .Ed. 78 (1936), "[i]mpartiality is
not a technical conception . It is a state of mind." A trial court's
decision whether a juror possessed "this mental attitude of
appropriate indifference" must be reviewed in the totality of
circumstances. It is not limited to the juror's response to a "magic
question." . . .
There is no "magic" in the "magic question." It is just another
question where the answer may have some bearing on deciding
whether a particular juror is disqualified by bias or prejudice, from
whatever source, including pretrial publicity. The message from
this decision to the trial court is the "magic question" does not
provide a device to "rehabilitate" a juror who should be considered
disqualified by his personal knowledge or his past experience, or
his attitude as expressed on voir dire . We declare the concept of
"rehabilitation" is a misnomer in the context of choosing qualified
jurors and direct trial judges to remove it from their thinking and
strike it from their lexicon.
15
819 S .W.2d at 717-18 .
In making this decision, "`the test is whether the nature and strength of
the opinion formed are such as in law necessarily . . . raise the presumption of
partiality . The question thus presented is one of mixed law and fact. . . ."' Id . at
717 (quoting Irvin v . Dowd, 366 U.S . 717, 723 (1961)) (ellipsises in original) .
The juror clearly stated her partiality in this case . That she later indicated she
could listen to the evidence and follow the law did not undo her statements
showing bias. Id . at 718 ("It makes no difference that the jurors claimed they
could give the defendants a fair trial.") . Thus, like in Montgomery , "the record is
replete with circumstances establishing an inference of bias or prejudice on the
part of [the] juror[] so pervasive that the juror[] [was] beyond being rehabilitated
as [an] appropriate juror[] by affirmative answer to such a question, however
well intentioned ." Id .
Though the judge is to be commended in this case for inquiring
extensively about the juror's possible bias, engaging in thoughtful deliberation
about the juror's qualifications, and creating an extensive record for review,
this Court concludes that the judge nevertheless abused his discretion in not
striking the first juror for cause . The totality of the circumstances indicate that
she did not possess the "mental attitude of appropriate indifference" that is
required for a person to sit on a jury, as evidenced by her repeated statement
that she had already formed the opinion that Appellant was guilty.
Because the first juror should have been struck for cause, Appellant was
forced to remove her with a peremptory strike.
16
Though this Court's recent cases have not expressly required that a
defendant identify the other jurors he would have struck if his for-cause strikes
were granted in order to bring a claim under Shane , the wisdom of such a
requirement has become clear . Thus, this Court concludes that in order to
complain on appeal that he was denied a peremptory challenge by a trial
judge's erroneous failure to grant a for-cause strike, the defendant must
identify on his strike sheet any additional jurors he would have struck .
Appellant did just that here by identifying two additional jurors he would have
struck .
The question then is whether the trial court's erroneous failure to grant
the for-cause strike is a reversible error. This Court has ruled that ordinarily,
such an error affects a substantial right of a defendant and is presumed to be
prejudicial. Shane , 243 S.W.3d at 341 ; Thomas , 864 S .W.2d at 259 . However,
such an error can be shown to be non-prejudicial if the other jurors the
defendant would have used his peremptory strikes on do not actually sit on the
jury . See King v. Commonwealth , 276 S .W .3d 270, 279 (Ky. 2009) . In such an
instance, there can be no reversible error because the "Appellant received the
jury he wanted," id. , and any error is "effectively cured," id . This exception to
Shane is not applicable in this case because one of the jurors that Appellant
would have struck did in fact sit on the jury. Thus, the presumption of
prejudice in Shane has not been refuted . Therefore, Appellant's conviction
must be reversed . Shane , 243 S .W.3d at 341 .
Though Appellant's conviction is being reversed, it is necessary to
address the other assignments of error as they are likely to recur on remand.
17
B. Lay Witness Testimony
Appellant also claims that the trial court erred by not allowing him to ask
the victim's daughters on cross-examination whether they told police at the
scene that they thought the shooting had been accidental . He claims this
would have been proper lay testimony under KRE 701, and that by barring this
testimony, the trial court violated his right to confrontation by limiting his
ability to impeach their testimony.
KRE 701 states:
If the witness is not testifying as an expert, the witness' testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are :
(a) Rationally based on the perception of the witness,
(b) Helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue, and
(c) Not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702 .
In asking to have the victim's daughters testify that he accidentally shot
the victim, Appellant essentially sought to introduce lay witness testimony as to
the mental state of another person . The difficulty with such testimony is that
"[s]tates of mind are not observable, of course, and there is risk that such an
opinion would be based on pure guesswork." Robert G. Lawson, Kentucky
Evidence Law Handbook § 6 .10[4], at 420
(4th
ed. 2003) [hereinafter Lawson,
Kentucky Evidence Law] .
Because of this difficulty, under KRE 701 and the common law that
preceded it, a lay witness is not ordinarily allowed to testify as to the mental
state of another person. However, an "exception occurs if the opinion is based
on the witness's own factual observations or perceptions ." Young v.
18
Commonwealth , 50 S.W .3d 148, 170 (Ky. 2001) . "[T]he `collective facts rule'
applies to this type of opinion if the witness is expressing an opinion about
another's mental conditions and emotions `as manifested to that witness."' Id .
(quoting Commonwealth v . Sego, 872 S .W.2d 441, 444 (Ky. 1994) . As Professor
Lawson has stated, "No such opinion should be admitted unless it is descriptive
of the perceptions of the testifying witness (`short hand renditions') and none
should be admitted when the witness can fully describe those perceptions
without resort to opinion ." Lawson, Kentucky Evidence Law § 6 .10[4], at 421 .
Admission of such opinions should be limited to "situations in which
observations of another's appearances and behaviors could produce a
perception about the person's state of mind that would be reliable enough to
aid jurors and that could not be communicated by the observer without resort
to conclusory language (`she seemed to know the victim') ." Id . § 6 .10[4], at 420;
see also id . § 6 .05[5], at 411 (discussing the "collective facts" doctrine : "Known
in other circles as the 'short-hand rendition' rule, it has been used to permit lay
witnesses to use conclusions or phenomena where there exists no other feasible
way for the witnesses to communicate their knowledge to the triers of fact."
(citation omitted)) .
Under this rule, that the victim's daughters were present in the house
and observed both Appellant and the victim immediately before and after the
shooting goes a long way toward being sufficient personal knowledge of the
"collective facts" that they could properly testify as to their impression of
Appellant's mental state at the time of the shooting. However, their perception
of the event itself appears to have been limited, consisting only of hearing the
19
gunshot. Absent something further tending to show accidentsay, having
heard Appellant trip just before the gunshot or a contemporaneous exclamation
of surprise by Appellant (e .g., "Oops!")-the daughters' statements that the
shooting was accidental could not be admissible because it could not be said
that "the opinion can be drawn from the perceptions without `irrational leaps of
logic,"' id. § 6 .05[4], at 409 (quoting Lynch v. City of Boston, 180 F.3d 1., 16
(1St
Cir. 1999), or that "the opinion `is one which a normal person would draw on
the basis of the observed facts,"' id . (quoting Torres v . County of Oakland , 758
F.2d 147, 149 (6th Cir. 1985) . An opinion that the shooting was accidental
based only on the perception of the behavior of the victim and Appellant in the
moments leading up to and following the shooting simply stretches those
perceptions beyond the limits allowed by the Rules of Evidence .
This is not to say, however, that on retrial the statements may not be
admitted under any circumstances. If defense counsel can elicit further
perceptions of the witness that can convince the trial judge the opinion is a
"short-hand rendition" of the witness's perceptions and that such a rendition is
the only adequate way to relate those perceptions to the jury, it will be within
the trial court's discretion to admit the statement . Without such an additional
showing, however, defense counsel will be limited to introducing testimony
about the witnesses' perceptions themselves .
Beyond the lay witness opinion issue, Appellant also argues that the
statements made to police soon after the shooting could be impeachment of the
daughters' trial testimony. For example, Kim testified that she and her mother
had been arguing with Appellant and that she was worried about her mother's
20
safety, which appears to have differed substantially from the statements she
made to police soon after the accident, where she failed to mention any
argument or disturbance leading up to the shooting. Her claim in the
statements that the shooting was an accident further demonstrates this
difference . Though it is not clear how valuable such testimony would be as
impeachment, since Appellant himself told police he had been arguing with the
victim, the daughter's statement nevertheless could be admissible to impeach
her testimony as possibly having been recently fabricated. In such a situation,
Appellant would not be seeking to offer a lay opinion per se but to show that
the witness's claims about the events of that night had changed . This would be
proper cross-examination. Again, however, whether to admit such evidence will
ultimately depend on the other evidence admitted at retrial and will lie in the
trial judge's sound discretion .
C. Evidence of Other Bad Acts
Appellant also claims error in the admission of two instances of threats
to the victim and other persons involving his waving or pointing a gun. He
argues that this evidence violated KRE 404(b)'s bar on evidence of other bad
acts used to show character and action in conformity therewith.3
Specifically, Appellant complains of the following testimony: (1) Several
years before the shooting, Appellant and the victim had an argument at a
friend's house during which Appellant waved a gun around and threatened to
3 Appellant also argues that the Commonwealth violated the KRE 404(c) "reasonable
notice" requirement for such also . This issue is rendered moot, at least as to the
evidence that was previously admitted, because Appellant's conviction is being
reversed and he now has notice of the prosecution's intent.
21
"shoot the house up ." (2) Several weeks prior to the shooting, during the
incident in which Appellant argued with the victim's father, Appellant drew his
gun . Some time later, Appellant and the victim left on a four-wheel ATV, with
Appellant pointing his gun at the victim.
The Commonwealth argues that this evidence shows lack of mistake or
accident because it demonstrates prior instances of wanton conduct by
Appellant. The logic in that claim is not apparent, since the Commonwealth is
basically arguing that prior instances of wanton conduct tend to show that the
charged wanton conduct was not accidental . If anything shows a lack of
mistake or accident it is the fact that Appellant wielded a gun during these
prior instances without firing it . They show that Appellant was able to wave or
point a gun, even when his emotions ran high, without firing it, which makes
the evidence at least slightly relevant as to whether Appellant's firing of the gun
was an accident . Whether such evidence is admissible at retrial, however, still
depends on whether it satisfies KRE 403's balancing test (i.e., by cautiously
comparing probative value with the chance of undue prejudice under Bell v.
Commonwealth , 875 S .W.2d 882, 889 (Ky. 1994)), a decision that also falls
squarely within the trial court's discretion and depends largely on the unique
state of the evidence that might exist at retrial .
Appellant argues that threats against third parties are not admissible at
all under KRE 404(b), and that both instances complained of involved such
threats. While this Court has stated "specific threats directed against third
parties are inadmissible," Sherroan v. Commonwealth, 142 S.W.3d 7, 18 (Ky.
2004), the holding of that case is not that limiting . That language described
22
the holding of pre-Rules cases, not the current state of the law . Sherroan went
on to state that the older cases were largely in conformity with KRE 404(b), or
at least "premised upon the same exclusionary policy," id . , but that "such
evidence is admissible if offered for another purpose or inextricably intertwined
with other evidence essential to the case," id . (citation omitted), as stated in the
rule. In fact, the Court went on to hold in Sherroan that the KRE 404(b)
analysis of the threats involved "supports the admission of Appellant's threat
against the [third party] ." Id . Thus, admissibility of threats against third
parties is controlled by KRE 404(b) as described above.
III. Conclusion
For the foregoing reasons, the judgment of the Lee Circuit Court is
reversed and any further proceedings shall be in conformity with this opinion.
Minton, C .J. ; Abramson, Cunningham, Schroder and Scott, JJ., concur.
Venters, J., concurs except that he would hold that the trial court abused its
discretion under KRE 404(b) by admitting into evidence Appellant's threat to
"shoot the house up" several years earlier and his flourishing of a gun several
weeks earlier.
COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
Suite 301, 100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Gregory C . Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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