BILLY FRANKLIN FIELDS V. COMMONWEALTH OF KENTUCKY AND JIMMIE CRAMER V. COMMONWEALTH OF KENTUCKY AND JEFFREY LEE BOYD V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED: AUGUST 25, 2011
NOT TO BE PUBLISHED
BILLY FRANKLIN FIELDS
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE EDWIN M. WHITE, JUDGE
COMMONWEALTH OF KENTUCKY
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE EDWIN M. WHITE, JUDGE
COMMONWEALTH OF KENTUCKY
JEFFREY LEE BOYD
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE EDWIN M. WHITE, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Appellants, Billy Franklin Fields, Jimmie Cramer, and Jeffrey Lee Boyd
appeal from final judgments entered against them by the Christian Circuit
Court' following a joint trial. Fields was convicted of murder, first-degree rape,
kidnapping, first-degree sodomy, and tampering with physical evidence; Boyd
was convicted of murder, first-degree rape, and kidnapping; and Cramer was
convicted of first-degree manslaughter, rape, and kidnapping. For these
crimes, Fields and Boyd were each sentenced to a total term of life
imprisonment and Cramer was sentenced to a total of sixty years'
imprisonment. Because Appellants were tried together and they raise common
issues on appeal, we have consolidated their appeals and resolve each in this
Appellants each present the following claims for our review:
1. That the trial court erred by refusing to grant each Appellant a separate
2. That Cramer's out-of-court incriminating statement was improperly
admitted into evidence in violation of the rule against hearsay and in
violation of Boyd's and Fields's right of confrontation; and otherwise
should have been admitted only with a cautionary instruction concerning
the use of testimony by an inmate informant;
The crimes occurred in Muhlenberg County; however, a change of venue was granted
transferring the case to Christian County.
3. That their kidnapping convictions are barred by the kidnapping
exemption contained in KRS 509.050;
4. That the trial court erroneously admitted evidence that Boyd was
previously associated with a crime ring, in violation of KRE 404;
5. That the trial court denied Appellants' right to present a defense by
excluding, because of lack of authentication and hearsay, a tape
recorded statement purporting to be a confession made by a deceased
individual allegedly confessing to the crimes; and,
6. That the trial court erred in denying their motions for directed verdicts.
Additionally, Fields individually raises the claim that the Commonwealth
failed to turn over to him exculpatory material in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Boyd individually raises the claim that the trial
court erred in admitting a witness's out-of-court identification of him. Finally,
Cramer and Boyd both raise the claim that the convictions should be reversed
because of cumulative error.
For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the morning of October 2, 1987, a city street worker in the
Muhlenberg County town of Central City noticed a vehicle with blood on it
parked near the city garage. He contacted police, who opened the vehicle and
discovered the body of Corrina Mullen. An autopsy revealed that Mullen had
been beaten and stabbed to death and that the injuries she suffered were
extraordinarily brutal. 2
At the time of her death, Mullen was the girlfriend of Jimmy Springer,
but she was also involved in a relationship with Fields, then a lieutenant on the
Central City Police force. Fields and Springer were friends with Appellants
Cramer and Boyd. In the weeks before her death, Mullen had falsely claimed
that she was pregnant and that Fields was the father. She also reported to
Central City Police Officer John Scott that Boyd, Springer, and a person named
Dale Duncan were involved in criminal activity involving illegal drugs and
stolen property. Scott told Fields about Mullen's tip.
The initial investigation of Mullen's murder resulted in murder charges
against Jimmy Springer. However, in 1988, Springer was tried and acquitted.
Thereafter, the case languished until 2005.
In 2005, Kentucky State Police Detective Steve Silfies, while investigating
a different crime, learned that a person named Samantha Robinson had
information about an unsolved murder in Central City. He passed her name
on to Detective Damon Fleming, who had recently begun to reinvestigate the
Mullen murder. Fleming interviewed Robinson who told him she was an
eyewitness to Mullen's murder. Her statement, along with other evidence
Mullen suffered multiple severe facial injuries; she had two stab wounds and one cut
to her neck; she had bruises on her back and arms; one of her nipples was cut off;
there were tears and one deep laceration of her vagina; and she suffered defensive
wounds to her wrists, fingertips and palms.
gathered during the investigation, led to Appellants' indictments. Mullen's
roommate, Angela Smith and Jimmy Springer were also indicted. 3
In the light most favorable to the verdict, the facts established at trial are
as follows. On the evening of October 1, 1987, Robinson, then sixteen-years
old, was standing outside her residence when two men abducted her. The
men, later identified as Fields and Boyd, grabbed and forced her into their car.
They drove her to the apartment where Mullen and Smith lived and took her
into the residence. Mullen, Smith, Cramer, Springer, and another man that
Robinson could not identify were inside.
Fields began to argue with Mullen. Robinson was unsure of what the
argument was about, but testified it could have been about Mullen's supposed
pregnancy. Fields then took Mullen into a bedroom and Boyd pushed
Robinson in after them. Robinson testified that, Fields continued to argue with
Mullen about "opening her mouth" and told her that he was going to make sure
"she got what she deserved." Fields began beating Mullen with a metal bar. He
then raped Mullen, after which Cramer, Boyd, and Springer each raped her.
Fields then held down Robinson and sodomized her. After that, Fields beat
Mullen again and then stabbed and cut her with a knife.
Mullen, by then either dead or unconscious, was placed in the trunk of
her own car. Fields ordered Robinson to drive Mullen's vehicle to the city
Because of his 1988 acquittal on murder charges arising out of Mullen's death,
Springer was charged only with kidnapping, rape, and sodomy. Smith was charged
with perjury in connection with the 1988 trial, and being complicit in the murders,
rape and kidnapping of Mullen.
garage in Central City, and she did so. When she arrived, Boyd was already
there. Robinson places her arrival at the garage around sunrise. She testified
that after parking the vehicle she fled and ran to her mother's home. She had
no subsequent contact with any of the codefendants concerning her
participation in the events. At the time, Robinson told only her adoptive
mother what she had seen.
Other witnesses observed. Appellants near the city garage that night.
Brian Robinson4 was helping to close his father's business when he saw Fields
and Boyd walking together near the old city garage at about 1:00 a.m. Central
City Police Officer Michael Phillips testified that he saw Boyd walking toward
the garage around 3:00 a.m.
Fields was the first policeman to arrive at the city garage after Mullen's
car was found. He also was involved in the initial stages of the investigation.
He handled some of the evidence that was gathered, including evidence that
was sent to the state police lab. Some of the evidence handled by Fields was
lost and never found again. That missing evidence forms the basis for his
present conviction of tampering with physical evidence.
We now review in turn each of the claims of error.
II. THE CASES WERE PROPERLY CONSOLIDATED FOR TRIAL
Appellants first argue that the trial court erred by joining their cases for
trial. RCr 9.12 permits consolidation of separate indictments for trial if, under
No relation to Samantha Robinson.
RCr 6.20, the charges could have been joined in a single indictment. 5 Initially,
the trial court consolidated all of the related indictments for a common trial,
but later granted Springer and Smith's motions for separate trials pursuant to
RCr 9.16. The cases against Fields, Cramer, and Boyd remained joined over
RCr 9.16 requires separate trials whenever it appears that either party
will be prejudiced by a joint trial. The burden upon the party seeking
severance is to make a positive showing that the joinder is prejudicial.
Antagonistic defenses, including defendants casting blame on each other, do
not inherently result in unfair prejudice and do not invariably mandate
separate trials. We have stated recently that the expectation of defendants to
present conflicting versions of the events in question may be a reason for,
rather than against, a joint trial because if either one is lying, it is easier for the
truth to be determined if all are required to be tried together.
See Paulley v.
Commonwealth, 323 S.W.3d 715, 728 (Ky. 2010).
We held in Wilson v. Commonwealth, 836 S.W.2d 872, 887 (Ky. 1992),
overruled on other grounds by St. Clair v. Roark, 10 S.W.3d 482 (1999), that
convictions will not be reversed for the failure to grant separate trials unless
"the likelihood of prejudice was so clearly demonstrated to the trial judge as to
make his failure to grant severance an abuse of discretion." To demonstrate
RCr 6.20 provides as follows: "Two (2) or more defendants may be charged in the
same indictment, information or complaint if they are alleged to have participated
in the same act or transaction or in the same series of acts or transactions
constituting an offense or offenses. Such defendants may be charged in one or
more counts together or separately, and all of the defendants need not be charged
this prejudice, "[a] defendant must show that antagonism prevented a jury
from being able to separate and treat distinctively evidence that is relevant to
each particular defendant at trial and that the antagonism between
codefendants will mislead or confuse the jury." Id.
Appellants now identify several distinct grounds to support the claim
that their trials should have been of severed. We consider these, in turn,
A. The Additional Charges Against Fields
Cramer and Boyd complain that being tried alongside of Fields, who
faced two charges (sodomy against Robinson and tampering with physiCal
evidence) that they were not charged with prevented them from receiving a fair
trial, because the jury may have unjustly associated them with those crimes.
However, Appellants offer no reason why the jury would be unable to
differentiate between the separate crimes for which Fields was individually
charged, and crimes in which the entire group allegedly participated. Juries
are often required to differentiate among multiple charges against a single
defendant and regularly do so without bias or prejudice. We see no reason that
they would be unable to do so when presented with different charges against
multiple defendants. The fact that evidence may pertain to one defendant, but
not the other, does not establish the kind of prejudice that compels separate
trials. See Humphrey v. Commonwealth, 836 S.W.2d 865, 869 (Ky. 1992). The
generalized concern that one may be tainted as a result of a codefendant's
deeds does not constitute a positive showing of prejudice and is therefore, not
cause for reversal of Appellants' convictions.
B. Testimony Concerning Cramer's Incriminatory Out-of-Court Statement
Next, Appellants argue that their trials should have been severed
because of the introduction at trial of incriminating out-of-court statements
made by Cramer. Prior to trial; Cramer shared a jail cell with inmateinformant Billy Gibson. Gibson claimed that Cramer, while viewing his case
discovery materials saw photographs of Mullen's body and exclaimed, "Look
what we did . . . look what they did." Appellants argue that Gibson's testimony
compelled separate trials because Cramer's decision not to testify left them
with no opportunity to confront and cross-examine Cramer about the alleged
statement, and that Gibson's testimony would not have been admissible in
their individual trials.
This question arises frequently in connection with joint trials and it is
resolved, not by severing the trials of multiple defendants, but by compliance
with principles established under Crawford v. Washington, 541 U.S. 36 (2004)
and Bruton v. United States, 391 U.S. 123 (1968), which we discuss below in
Section VII, infra. If Cramer's alleged statement had a prejudicial effect, the
remedy would ordinarily be addressed with a limiting instruction and a
redaction of the prejudicial parts of the statement. Separate trials would not
be required, and the trial court therefore did not abuse its discretion in failing
to order separate trials on account of Gibson's testimony.
C. The Commonwealth's Evidence of Conflicting Motives
Appellants also allege that separate trials were required because the
Commonwealth attributed to Appellants differing and conflicting motives for
the commission of the crimes, specifically that Mullen was killed: (1) because
she was pregnant with a child fathered by Fields; (2) because she was planning
on reporting Boyd's and Springer's alleged involvement in a crime ring; and (3)
because she did not pay money she owed to Boyd and others. 6 These
conflicting motives, Appellants contend, forced them into presenting
Regardless of the multiple theories suggested by the Commonwealth
concerning motive, the defenses of the three codefendants were not
antagonistic. None of the three attempted to blame the others for the crimes in
an attempt to exonerate himself. Instead, they were unified in their defense
that Robinson fabricated her story implicating them in the crimes against
Mullen. Each Appellant sought to undermine Robinson's credibility and
portray her testimony as entirely unbelievable. Their defenses were
harmonious, not antagonistic. That Appellants may have each had individual
motives for killing Mullen, as the Commonwealth theorized, does not render
their defenses inconsistent or antagonistic.
Moreover, a degree of inconsistency among the defenses, rather than ipso
facto requiring separate trials, is but one factor for the trial judge to consider in
On the day of Mullen's murder, Boyd was observed pointing a gun at her and
threatening her by stating, "You owe us. Pay or you'll die."
deciding whether defendants will be prejudiced by a joint trial.
Commonwealth, 523 S.W.2d 395, 400 (Ky. 1975); Tinsley v. Commonwealth,
495 S.W.2d 776 (Ky. 1973) (Trial court did not abuse discretion in denying
severance of trial to two defendants charged with the murder of two police
officers where the defenses were not antagonistic or hostile because there was
no attempt on the part of one defendant to directly incriminate the other
defendant in the shooting of one of the officers and the record failed to disclose
any prejudice resulting from the joint trial). Accordingly, the fact that the
Commonwealth presented alternative motives for the crimes did not compel
D. Prevention of Rebuttal Testimony by Fields
Finally, Fields argues that the joint trial kept him from presenting
evidence that would have bolstered his defense. Part of the Commonwealth's
theory for Fields's involvement in murdering Mullen was that he wanted to
prevent her from disclosing Boyd's involvement in a crime ring. To rebut this,
Fields, a former police officer, wanted to show that he had once arrested Boyd
as a rape suspect, and participated in a police investigation aimed at Boyd.
This evidence, he argues, was inadmissible because of its prejudicial effect on
Boyd, but at a separate trial he could have presented it.
The fact that Fields may have once arrested Boyd and otherwise
investigated him does not negate the Commonwealth's theory that Fields was
also involved in criminal activities with Boyd, and thus the relevance of those
facts was not clearly established. Fields could have been involved in the crime
ring with Boyd, and performed his police duties as cover for his criminal acts.
Accordingly, we are not persuaded that Fields's inability to introduce evidence
of his police work adverse to Boyd's interest was so essential to his case as to
compel the trial judge to grant separate trials.
"If upon the consideration of the case a trial judge orders a joint trial, we
cannot reverse unless we are clearly convinced that prejudice occurred and
that the likelihood of prejudice was so clearly demonstrated to the trial judge
as to make his failure to grant severance an abuse of discretion."
S.W.2d at 400. Appellants were not prejudiced by the joint trial, and therefore
we do not find any abuse of discretion by the trial court's joining of these cases
for a single trial.
III. CRAMER'S OUT-OF-COURT INCRIMINATING STATEMENT WAS
Appellants next argue that Cramer's out-of-court incriminating
statements which were admitted into evidence through the testimony of Billy
Gibson should have been inadmissible. As briefly discussed in Section II,
supra, prior to trial Cramer shared a jail cell with Gibson and eight other
inmates. While in jail, Cramer received copies of discovery material relating to
his case, including various photographs. Over the objection of all Appellants,
Gibson was permitted to testify that Cramer boastfully displayed photographs
of Mullen's body and exclaimed, "Look what we did" and "look what they did."
Accordingly, Gibson's testimony may reasonably be interpreted as an
admission to his involvement in the crimes against Mullen. Each Appellant
contends that Gibson's testimony was inadmissible, but given their
distinguishable positions, Fields and Boyd do so for slightly different reasons
A. Cramer's Inculpatory Statement was Admissible Against Cramer as a
Statement Against His Penal Interest under KRE 804(b)(3)
Acknowledging that KRE 804(b)(3) excepts from the hearsay rule
statements that "so far tended to subject the declarant to civil or criminal
liability . . . that a reasonable person in the declarant's position would not have
made the statement unless believing it to be true," Cramer argues nonetheless
that Gibson's testimony is inadmissible. He relies upon the additional
requirement for admissibility set forth in the last sentence of KRE 804(b)(3): "A
statement tending to expose the declarant to criminal liability is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the
statement." Id. He argues that Gibson's testimony fails to meet that
requirement because it was inherently untrustworthy.
Crawley v. Commonwealth, 568 S.W.2d 927 (Ky. 1978) identifies four
factors by which the trustworthiness, and hence the admissibility, of a
statement against penal interest is to be assessed: 1) the time of the
declaration and the party to whom it was made; 2) the existence of
corroborating evidence in the case; 3) the extent to which the statement is
against the declarant's interest; and 4) the availability of the declarant as a
witness. See also Harrison v. Commonwealth, 858 S.W.2d 172, 175 (Ky. 1993).
Here, Cramer was unavailable as a witness because he exercised his
constitutional right not to testify. KRE 804(a)(1); Taylor v. Commonwealth, 821
S.W.2d 72 (Ky. 1990), overruled on other grounds by St. Clair v. Roark, 10
S.W.3d 482 (Ky. 1999). Reasonably construed, Cramer's statement, as
repeated by Gibson, is a strong admission of responsibility for the crime
depicted in the photo. It is corroborated by Robinson's testimony identifying
Cramer as one of the perpetrators of the crimes. Gibson, an inmate himself
with prior felony convictions, may be a less than ideal witness, but inmates
and convicted felons regularly testify with credibility in our courts. The trial
judge is in the best position to evaluate the circumstances in applying the
trustworthiness element of KRE 804(b)(3). The elements for the admission of
Cramer's inculpatory statement under KRE 804(b)(3) are satisfied. The trial
court plainly determined that the probative value of Gibson's testimony
outweighed its prejudicial effect. KRE 403. We find no abuse of discretion
here and will not disturb the trial court's decision. Brown v. Commonwealth,
313 S.W.3d 577 (Ky. 2010).
B. Cramer Was Not Entitled to an Instruction Regarding Jailhouse Informants
Cramer further argues that upon admission of Gibson's testimony, the
trial court should have admonished the jury that the testimony of a "jailhouse
informant," such as Gibson, should be met with a degree of skepticism. 7 A
The trial court did admonish the jury regarding Gibson's credibility as a convicted
similar request was rejected by this Court in Parrish v. Commonwealth, 121
S.W.3d 198, 203 (Ky. 2003), overruled on other grounds by Brown, 313 S.W.3d
577. Cramer acknowledges Parrish but urges that we reconsider and adopt
rules similar to those in California and Alaska providing for such an
admonition. We remain convinced of the soundness of our holding in Parrish,
and decline Cramer's invitation to revisit the decision.
C. The Use of Cramer's Admission Did Not Violate Boyd's and Fields's Sixth
Amendment Right of Confrontation under Crawford and Bruton
Fields and Boyd additionally argue that Cramer's statement was
inadmissible against them under Crawford v. Washington, 541 U.S. 36 (2004),
because it was an out-of-court statement implicating them in the crimes and
that they were not able to cross-examine Cramer regarding the statement, in
violation of their Sixth Amendment Confrontation Clause rights.
Cramer's statement did not identify those the included among "we" and
"they." However, Boyd and Fields contend that their association with Cramer
as codefendants undoubtedly suggested to the jury that Cramer's remark
included them, and thereby inferentially linked them to the crimes depicted in
the photographs. Thus they argue that Cramer's statement was incriminating
to them as well as to Cramer. It was certainly the Commonwealth's theory of
the case that "we" included Boyd and Fields. They accordingly contend that
Crawford barred the introduction of the statement. Stone v Commonwealth,
291 S.W.3d 696, 700 (Ky. 2009) ("Crawford . . . applies when the out-of-court
statement is offered as evidence against a defendant other than the declarant.")
Crawford holds that, notwithstanding the applicability of traditional
hearsay exceptions, "testimonial" hearsay statements may not be admitted as
evidence against one other than the declarant, unless there is, or has been, an
opportunity to cross-examine the declarant regarding the statement.
541 U.S. at 54. In this matter, Cramer could not be cross-examined because
he invoked his right to refuse to testify, and he had not otherwise been subject
to cross-examination about his statement. Therefore, if his incriminating
statement was "testimonial," Crawford precludes its admission.
The United States Supreme Court has yet to define "testimonial" hearsay
with any degree of precision. However, Crawford does distinguish testimonial
statements from casual remarks made to friends. Id. at 51 (An accuser who
makes a formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does not). Since
Cramer's remarks were spontaneously made to his fellow inmates, we do not
regard them as "testimonial" under Crawford. Brown v. Commonwealth, 313
S.W.3d 577, 622-623 (Ky. 2010); Hartsfield v. Commonwealth, 277 S.W.3d 239,
245 (Ky. 2009) (Spontaneous, informal statements unsolicited by law
enforcement officers or their surrogates is not testimonial under Crawford.)
Therefore, admission of Cramer's statement did not infringe upon Boyd's and
Fields's right of confrontation.
Fields and Boyd also contend that the admission of Cramer's statement
violated Bruton v. United States, 391 U.S. 123 (1968), which holds that the
Confrontation Clause forbids "the use of a non-testifying codefendant's
confession that 'expressly implicate[s]' the other defendant."
Commonwealth, 251 S.W.3d 309, 314 (Ky. 2008). However, when a
codefendant's confession does not expressly implicate the other defendant, but
rather inferentially "links" him to the crime, the Confrontation Clause is not
offended so long as the evidence itself is otherwise "properly admitted" and "the
confession is redacted to eliminate all references to the defendant's existence."
Id. at 314-15 (citing Richardson, 481 U.S. at 202). 8
The Bruton analysis presumes that the prejudicial effect of a
codefendant's confession will be eliminated by the redaction of the statement to
eliminate references to non-declarant defendants and an instruction to the jury
admonishing it to consider the statement as evidence only against the
declarant. Ordinarily, the combination of a redaction and a limiting instruction
satisfies Sixth Amendment concerns.
Rodgers v. Commonwealth, 285 S.W.3d
740, 747 (Ky. 2009). KRE 105(a) expressly provides for such admonitions, but
it also provides, "In the absence of such a request [for an admonition], the
admission of the evidence by the trial judge without limitation shall not be a
ground for complaint on appeal, except under the palpable error rule.
It has been held that plural pronouns like "we" and "they" are so broad in scope that
they cannot be regarded as implicating specific codefendants, where circumstances
make it apparent that the crimes were committed by multiple parties. See, e.g.,
Plater v. U.S., 745 A.2d 953, 961 (D.C. 2000) ("The use of the plural neutral
pronoun, 'we,' when referring to the group who attacked the decedent, in no way
specifically linked [Appellant] to the crime because there was no dispute that the
incident was a group assault. Thus, the use of 'we' was not prejudicial because the
term 'we' does not connote a particular number of people or single out any
Neither Fields nor Boyd requested a redaction of Cramer's statement or a
limiting instruction. They argued only that Cramer's testimony mandated
separate trials for each defendant. Their failure to request an appropriate
admission restricting the use of Cramer's statement waives the issue on
appeal. Id. In Barth v. Commonwealth, 80 S.W.3d 390, 396 (Ky. 2001), we
The "upon request" qualification of the [KRE 403] is but a
codification of the principle that "Nile admission of mixed
admissibility evidence without an accompanying admonition
cannot be questioned on appeal by a party who failed to request an
admonition at trial." R. Lawson, The Kentucky Evidence Law
Handbook § 1.05, at 17 (3d ed. Michie 1993) (citing 1 Wigmore,
Evidence 697 (Tiller's rev. 1983) ("[T]he opponent of the evidence
must ask for that instruction. Otherwise, he may be supposed to
have waived it as unnecessary for his protection.")). Kentucky has
long adhered to this view[.] (Citations omitted)
Boyd and Fields declined to request a redaction of the Cramer statement
and an instruction limiting its use. The failure of the trial court to so provide
sua sponte was not error.
In summary, the admission of Billy Gibson's testimony with respect to
Cramer's. incriminatory statement presents us with no reversible error. While
Cramer's statement was perhaps subject to redaction and a limiting instruction
to exclude its use against Boyd and Fields, the failure to request these
remedies waives further consideration of the matter on appeal.
IV. THE KIDNAPPING CONVICTION WAS NOT
PRECLUDED BY THE KRS 509.050 EXEMPTION
Appellants next contend that they should have been granted a directed
verdict on the kidnapping charges upon application of the kidnapping
exemption statute, KRS 509.050. Specifically, they argue that any interference
with Mullen's liberty was incidental to and occurred contemporaneously with
the underlying crimes of murder and rape, and that such interference was no
more than was necessary to commit the rape and murder.
The kidnapping statute, KRS 509.040, provides, in relevant part, that "[a]
person is guilty of kidnapping when he unlawfully restrains another person
and when his intent is . . . to accomplish or to advance the commission of a
felony; or to inflict bodily injury or to terrorize the victim or another . . . ." KRS
509.040(1)(b)(c); Hatfield v. Commonwealth, 250 S.W.3d 590, 598 (Ky. 2008).
However, KRS 509.050 provides, in certain circumstances, an exemption from
a kidnapping charge:
A person may not be convicted of unlawful imprisonment in the
first degree, unlawful imprisonment in the second degree, or
kidnapping when his criminal purpose is the commission of an
offense defined outside this chapter and his interference with the
victim's liberty occurs immediately with and incidental to the
commission of that offense, unless the interference exceeds that
which is ordinarily incident to commission of the offense which is
the objective of his criminal purpose. The exemption provided by
this section is not applicable to a charge of kidnapping that arises
from an interference with another's liberty that occurs incidental to
the commission of a criminal escape. 9
The trial court, rather than the jury, determines whether the exemption
applies, and we review that determination under the abuse of discretion
standard. Duncan v. Commonwealth, 322 S.W.3d 81, 94 (Ky. 2010).
This Court has applied the following three-prong test to determine the
applicability of the exemption statute:
1. The underlying criminal purpose must be the commission of a
crime defined outside of KRS 509;
2. The interference with the victim's liberty must have occurred
immediately with or incidental to the commission of the underlying
3. The interference with the victim's liberty must not exceed that
which is ordinarily incident to the commission of the underlying
In the commentary to KRS 509.050, the drafters pointed to the policy considerations
behind the kidnapping exemption statute:
The provision seeks to express a policy against the use of kidnapping to impose
sanctions upon conduct which involves a movement or confinement (of another
person) that has no criminological significance to the evil toward which
kidnapping is directed. It then provides a flexible standard by which courts are to
enforce that policy. Before criminal behavior that is directed toward the
completion of robbery, rape, or some other offense can constitute kidnapping,
there must be an interference with liberty in excess of that which ordinarily
accompanies that offense.
KRS 509.050 (Drafters Commentary 1974). "Thus, the drafters expressed a
willingness to alleviate the problem of overzealous prosecution, by tacking on
kidnapping charges to certain crimes through a hyper-technical application of the
statutory language. The commentary noted that restriction of another's liberty is
often an essential or incidental element to the commission of certain violent
crimes. KRS 509.050 (Drafters Commentary 1974)." Hatfield, 250 S.W.3d at 599
All three prongs must be satisfied in order for the exemption to apply. Hatfield,
250 S.W.3d at 599.
We agree that Appellants easily satisfy the first two prongs of the
foregoing test. In conjunction with the kidnapping of Mullen, Appellants were
also charged with her rape and murder, both crimes being codified outside of
KRS Chapter 509. And, the rape and murder of Mullen required restraint of
her liberty incidental to and contemporaneously with the commission of those
The proper application of KRS 509.050 requires that we read the third
prong of the test in conjunction with the second. To meet the third prong, the
interference with the victim's liberty must not go beyond that which would
normally be incidental to the commission of the underlying crimes. As was
noted in Hatfield, 250 S.W.3d at 600, "Mt is difficult to pin down precisely what
is the 'appropriate' amount of restraint one would normally use to attempt to
take one's life."
Thus, the exception will apply when the restraint used to accomplish the
commission of the underlying crime is a part of, or incident to, the act of
committing the crime itself and, as such, temporally coincides with the
commission of the crime. Deprivation of liberty that segues into a more
pronounced, prolonged or excessive detainment falls outside the limits of the
exemption statute, and the accused should be held separately accountable for
those actions. Id.
By Robinson's testimony, Mullen was detained over a period of several
hours, during which time she was forcibly raped four times, and beaten and
stabbed to death. We need not specify an amount of time reasonably required
for murder and multiple rapes in order to say that the testimony presented
clearly established that Mullen was held for a period that well exceeded the
time "ordinarily incident" to the commission of such crimes.
If nothing else, the testimony indicated Mullen was not free to leave
during the time Fields sodomized Robinson. Further, Robinson's testimony
and the medical evidence reflect that Mullen was excessively brutalized during
the course of events, far beyond her rape and murder. The additional
confinement associated with this superfluous brutalization plainly supports a
finding that the detention exceeded what was necessary for her rape and
In view of these factors demonstrating excessive detainment, we are
constrained to conclude that the trial court properly declined to apply the
V. REFERENCE TO BOYD'S OTHER CRIMINAL
CONDUCT WAS PROPERLY ADMITTED
Appellants next contend they were prejudiced by the admission of
evidence concerning Boyd's other criminal acts. Four days before the
commencement of trial, the Commonwealth filed a notice of its intention to
introduce evidence under KRS 404(b). The notice provided that Central City
Police Officer John Scott would testify that, on the day before her death, Mullen
told him that Boyd, Springer and others were engaged in the interstate
trafficking of stolen property, and that Officer Scott then told Fields about
Mullen's tip. Appellants argue that the trial court erred in admitting this
evidence because the notice was untimely and because the probative value was
substantially outweighed by the danger of undue prejudice.
A. Timeliness of Notice
Appellants contend that notice of the Commonwealth's intention to use
this evidence was untimely because it came sixteen days after the deadline set
by the trial court for 404(b) disclosures, and that providing the notice four days
prior to the commencement of trial was not "reasonable," as required by KRE
KRE 404(c) requires the prosecution to provide a defendant with
"reasonable pretrial notice" of its intent to offer evidence described under KRE
404(b), "Other crimes, wrongs, or acts." The purpose of the notice requirement
is "to provide the accused with an opportunity to challenge the admissibility of
this evidence through a motion in limine and to deal with reliability and
prejudice problems at trial." Bowling v. Commonwealth, 942 S.W.2d 293, 300
(Ky. 1997) (quoting Robert G. Lawson, The Kentucky Evidence Law Handbook, §
2.25 (3rd ed. 1993)). Whether reasonable pre-trial notice has been given is
decided on a case-by-case basis.
Appellants complain that the trial court did not hold the Commonwealth
to the disclosure deadline established by the court in a pre-trial scheduling
order. The failure of the trial court to adhere to that deadline is not
determinative of KRS 404(b) compliance. The pretrial disclosure deadline
presumably was entered to satisfy the court's ability to efficiently manage the
litigation, and does not serve to define compliance with KRE 404(c).
In Bowling, and again in Dant v. Commonwealth, 258 S.W.3d 12 (Ky.
2008), we concluded that the reasonableness requirement of KRE 404 (c) was
met where the defendant had actual notice of the proposed evidence in time to
challenge its admissibility by way of a motion in limine. The facts in this case
compel the same result as Bowling and Dant. Mullen's comments to Officer
Scott were provided to Appellants through pretrial discovery and Appellants
challenged the admissibility of the evidence at an in limine proceeding held the
day prior to trial. Further, Appellants had the opportunity to object to the
admission of the evidence during trial and did not request the continuance
designated by KRE 404(c) as an appropriate remedy for late disclosure.
We do not assume that in the days immediately preceding a trial, a
lawyer has an abundance of free time to deal with unanticipated contingencies.
We allow that other cases may present circumstances in which a late
disclosure would not permit defense counsel to drop his other responsibilities
in order to hastily draft a motion in limine and prepare for a last-minute
hearing. But Appellants fail to identify with specificity any prejudice resulting
from the timing of the notice given here. As such, we are constrained to
conclude that Appellants were not prejudiced by the timing of the
Commonwealth's 404(b) disclosure.
B. Balancing the Prejudicial Impact and Probative Effect of the KRE 404(b)
Appellants next argue that evidence about the alleged crime ring should
have been excluded because its prejudicial effect substantially outweighed its
probative value, because there was a lack of corroboration that a crime ring
even existed, and because the evidence was an impermissible attack on their
character. As this Court has previously stressed, KRE 404(b) is "exclusionary
in nature," and as such, "any exceptions to the general rule that evidence of
prior bad acts is inadmissible should be 'closely watched and strictly enforced
because of [its] dangerous quality and prejudicial consequences."'
Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (quoting O'Bryan v.
Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982)). One of the exceptions
expressly identified in the rule is evidence that shows motive. The relevance of
Scott's testimony fits squarely within that exception. Mullen's inclination to
tell police what she knew about Boyd's and Springer's criminal activity strongly
suggests a motive for Mullen's murder. The purpose of its admission into
evidence was not simply to impugn Appellants' character, and therefore it is
admissible per KRE 404(b).
Nevertheless, KRE 404(b) "like the other rules providing for the
admission of evidence, are all subject to the KRE 403 balancing test, which
permits the exclusion of otherwise admissible evidence 'if its probative value is
substantially outweighed by the danger of undue prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence."' Dennis v. Commonwealth, 306 S.W.3d
466 . (Ky. 2010). "The trial court's decision regarding KRE 404(b) matters is
reviewed by this Court under an abuse of discretion standard[.]"
v. Commonwealth, 320 S.W.3d 28, 34 (Ky. 2010).
The prejudicial impact of the victim's statement arises from the concern
that when the jury learns that Boyd was involved in a scheme to possess and
transfer stolen property, it might be tempted to impute to him a general
disposition toward the commission of other crimes. The probative value arises
from the indication that Mullen was about to alert the police to the criminal
enterprise and that Fields was tipped off about her intended disclosure a few
hours before Mullen was killed. Whether the probative value exceeds the
prejudicial effect is a matter entrusted to the trial judge'S discretion. We do not
conclude that the trial court abused its discretion in determining that such
evidence was admissible to prove motive, and that its probative value
substantially outweighed its prejudicial effect.
VI. THE EXCLUSION OF THE CRANDALL GIBSON RECORDING WAS PROPER
AND DID NOT VIOLATE APPELLANTS' RIGHT TO PRESENT A DEFENSE
Appellants argue that their right to present a defense was violated
because they were unable to introduce into evidence out-of-court statements
allegedly made by a person named Crandall Gibson, who, Appellants contend,
by incriminating himself tended to exculpate Appellants.
Among the items in the police file of the Mullen murder investigation was
a tape recording of a police interview with Gibson.'° Appellants believed that
the content of this interview was exculpatory evidence because the person
being interviewed states, apparently in connection with the Mullen murder,
"You can't get me without the other two." Therefore, Appellants wanted to
introduce testimony from Detective Fleming that Gibson had made that
statement to police investigators. However, between the time of the interview
and the trial, Gibson died.
The Commonwealth gave two reason for its objection to the testimony:
the recording had not been properly authenticated; and it was hearsay not
subject to any hearsay rule exception. The trial court sustained the
Commonwealth's objection and excluded the proffered evidence. Appellants
contend the ruling deprived them of their right to present a defense.
The recording had been made before Fleming was assigned to the Mullen
case and Fleming was not present at the interview. Fleming instead received
the recording when he took over the case. Appellants interpret Gibson's
recorded statement to be a confession that he and two other unnamed
individuals murdered Mullen. They argue the tape is therefore exculpatory
because Robinson did not identify Gibson as one of the perpetrators, and so, by
inference, Robinson is lying and the murderers must be Gibson and two
Cramer and Boyd also contend that their right to present a defense was violated by
the trial court's failure to allow trial counsel to question Detective Fleming regarding
a fight involving Jimmy Springer, Chris Daniels, and Corinna Mullen. They provide
no supporting analysis for this claim, however, and we accordingly will not review
this sub-issue`on the merits. CR 76.12; Cherry v. Augustus, 245 S.W.3d 766, 781
(Ky. App. 2006).
The fundamental right of a criminal defendant to present a defense is
well established. Chambers v. Mississippi, 410 U.S. 284 (1973); Rogers v.
Commonwealth, 86 S.W.3d 29, 39-40 (Ky. 2002). We recognize that "[I]t is
crucial to a defendant's fundamental right to due process that he be allowed to
develop and present any exculpatory evidence in his own defense, and we reject
any alternative that would imperil that right." McGregor v. Hines, 995 S.W.2d
384, 388 (Ky. 1999). However, the "right to present a defense" does not
supersede the rules of evidence. Implicit in the accused's right to present a
defense is that he do so within the bounds of the established evidentiary law.
Chambers, 410 U.S. at 302 ("In the exercise of [the right to present a defense],
the accused, as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.") In this vein, an audio taped
conversation such as Gibson's is subject to the authentication requirements of
KRE 901; Parker v. Commonwealth, 291 S.W.3d 647, 665 (Ky. 2009).
KRE 901 provides: "The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims."
The burden of authentication is slight, requiring "only a prima facie showing of
authenticity." Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004)
(citing United States v. Reilly, 33 F.3d 1396, 1404 (3rd Cir. 1994)). The trial
court's determination in this respect is reviewed for an abuse of discretion.
In the present case, Appellants offered no evidence to authenticate the
recording. The recording could have been authenticated by the officer who
conducted the interview or someone else who could identify Gibson's voice. In
light of Appellants' failure to authenticate the tape recording as required under
KRE 901, we conclude that the trial court did not abuse its discretion by
excluding the evidence.il The exclusion of such evidence, based upon a sound
application of our evidentiary rules, was not a denial of Appellants' right to
present a defense. This conclusion applies with equal force to Cramer's
individual claim that exclusion of the recording was a denial of his right to
present evidence of an alternative perpetrator.
VII. APPELLANTS WERE NOT ENTITLED TO A DIRECTED VERDICT
Appellants next argue that they were entitled to a directed verdict on all
charges contained in their respective indictments. In particular, they direct us
to numerous inconsistencies and deficiencies in the Commonwealth's case,
including credibility issues relating to Robinson's testimony.
In considering a motion for a directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in favor of the
Commonwealth, and otherwise assume that evidence for the Commonwealth is
true, reserving for the jury any question as to credibility and weight to be given
to the evidence. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Because of our disposition of this argument, we need not address whether the
statement was admissible under the hearsay rule.
On appellate review, test of directed verdict is whether, under the evidence as
whole, the jury's finding of guilt was clearly unreasonable. Id.
It is apparent that the Commonwealth's case, as a whole, had gaps,
unexplained events, and inconsistencies. At first impression, aspects of
Robinson's story may seem implausible to some. However, "[t}he court acting
as an appellate court cannot . . . substitute its judgment as to credibility of a
witness for that of the trial court and jury." Brewer v. Commonwealth, 206
S.W.3d 313,319 (Ky. 2006) (quoting Commonwealth v. Jones, 880 S.W.2d 544,
545 (Ky. 1994)). It is only where the testimony on behalf of the Commonwealth
fails to incriminate the accused, or is wholly insufficient to show guilt, that a
directed verdict of acquittal should be given.
Bradley v. Commonwealth, 465
S.W.2d 266, 267 (Ky. 1971).
Robinson testified that she saw Fields, Cramer, and Boyd rape and kill
Mullen. Her testimony alone was sufficient to sustain the rape, homicide, and
kidnapping convictions against the codefendants if the jury believed her.
Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002) ("The testimony of
even a single witness is sufficient to support a finding of guilt, even when other
witnesses testified to the contrary if, after consideration of all of the evidence,
the finder of fact assigns greater weight to that evidence."). Likewise, Robinson
testified that Fields sodomized her, and so he was not entitled to a directed
verdict on this charge. The testimony of the victim alone is sufficient to
support a sodomy conviction. Garrett v. Commonwealth, 48 S.W.3d 6, 8 (Ky.
Guided by the appropriate standards described above, we conclude that
the trial court properly regarded the Commonwealth's evidence case as true,
and drew the reasonable inferences in its favor. Appellants were not entitled to
a directed verdict.
VIII. NO BRADY VIOLATION OCCURRED
Fields individually argues that his verdicts should be reversed because
the Commonwealth failed to disclose a midtrial "exculpatory" statement made
by his ex-wife, Theresa Puckett, in violation of Brady v. Maryland, 373 U.S. 83
Puckett was subpoenaed by the Commonwealth with the expectation that
she would testify that on the night of Mullen's murder, Fields left their house in
the evening and returned later wearing different clothing. When the time came
for her testimony, however, the prosecutor informed the court that the he no
longer desired to call her. The prosecutor did not disclose why she would not
be called, but it is suggested that during midtrial discussions with her, Puckett
placed Fields's late night departure on an evening other than the night of the
murder. This, Fields argues, was exculpatory information that should have
been disclosed. We disagree.
During pretrial proceedings Fields sought to prevent Puckett from testifying by
application of the Spousal Privilege rule contained in KRE 504(b); however, the
merits of that issue are not relevant to our discussion.
Our consideration of the matter is somewhat impeded by the fact that
Puckett's pretrial statement is not in the record of this case. 13 Bearing in mind
that Puckett did not testify at all, the fact that she might have originally told
the prosecutor that Fields went out on the night of the murder, and then later
changed her statement to say that he went out on a different night is neither
exculpatory nor inculpatory; it is irrelevant. There is nothing exculpatory
about her recollection of his whereabouts at times having no connection to the
murder or to other evidence presented in the case.
Fields next alleges that Puckett stated in her midtrial discussions with
the prosecutor that he was home with her on the night of the crimes. If she
made such a statement, it would be exculpatory and therefore subject to
disclosure under Brady. However, a closer examination of paragraph four of
Puckett's post-trial affidavit discloses only that she said "Rjo the best of my
memory and recollection, Billy Fields was home with me the Thursday
night/Friday Morning when Ms. Mullen was killed." She clearly does not claim
to have told the prosecutor or any agent of the Commonwealth that Fields was
home with her on the night of the murder, and there is otherwise no
evidentiary support for the proposition that the prosecution was informed
during the trial of that claim. Because the statement contained in the affidavit
Appellant had a responsibility to present a "complete record" before the Court on
appeal. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007).
"Matters not disclosed by the record cannot be considered on appeal." Montgomery
v. Koch, 251 S.W.2d 235, 237 (Ky. 1952); see also Wolpert v. Louisville Gas & Elec.
Co., 451 S.W.2d 848 (Ky. 1970).
arose after the completion of the trial, Brady is not applicable. Accordingly, we
find no Brady violation here.
IX. ROBINSON'S IN-COURT IDENTIFICATION
OF BOYD WAS PROPERLY ADMITTED
Boyd next argues that the trial court should have granted his motion to
suppress Robinson's in-court identification of him. At trial, Boyd moved to
suppress Robinson's in-court identification of him as one of the perpetrators of
Mullen's murder because the identification was induced by an unduly
suggestive process. When interviewed by police concerning the Mullen murder,
Robinson was unable to identify by name the man who, together with Fields,
abducted her in front of her home. She told them that, although she did not
recall having seen the man before and did not recall the name he used, she
remembered what he looked like and that he was a "bigger guy, a real big guy."
The police then showed her a single photograph of Boyd from Department of
Corrections files. She was told that the photo was of Boyd, and asked if he was
one of the perpetrators of the crimes. She affirmed that he was. Following a
suppression hearing, the trial court overruled Boyd's motion to suppress
Robinson's photographic identification. 14
Ordinarily, when reviewing a trial court's ruling on a motion to suppress
an identification based upon a photographic line-up, we first determine if the
circumstances leading to the identification were "unduly suggestive." Only if
the circumstances were unduly suggestive do we move on to the next step of
No written order on the motion is contained in the record.
determining if the identification was, nevertheless, reliable. Because
Robinson's identification of Boyd was based upon being shown a single
photograph, coupled with a question of whether the person depicted was the
perpetrator, we agree that the procedure used here was unduly suggestive.
Accordingly, we consider the five-factors identified in Neil v. Biggers, 409
U.S. 188, 199-200 (1972), for determining whether the suggestive nature of the
process improperly tainted Robinson's in - court identification of Boyd. Those
factors are: (1) the opportunity of the witness to view the criminal at the time of
the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's
prior description of the criminal, (4) the level of certainty demonstrated by the
witness at the confrontation, and (5) the length of time between the crime and
Three factors weigh in favor of the identification. The events of the night
of the crime were of a prolonged duration, beginning with Robinson's
abduction, which involved Boyd, continuing at the apartment with the rapes,
sodomy, and murder, during which time Boyd was present, and ending at the
city garage, where Boyd's presence was confirmed by an independent witness.
Robinson therefore had an extensive period of time in which to observe Boyd.
Also, Robinson testified that when she looked at the photograph and heard
Boyd's name she had no doubt that he,was one of the perpetrators, expressing
a high degree of certainty. Her description of him as a large man apparently
comports accurately with the identification of Boyd.
The remaining factors are less determinative. There was no direct
testimony citing Robinson's degree of attentiveness, but it is obvious that she
was not a casual observer to the events she claims to have seen that night. It
is reasonable to infer, given the nature of the events transpiring, that she was
paying close attention. Certainly the lapse of nineteen years between the
crimes and Robinson's identification of Boyd as one of the perpetrators weighs
against the veracity of her identification.
We agree that for the trial court this was a close call. We cannot say that
the trial court's decision to admit Robinson's identification, in light of the
Biggers factors, was clearly erroneous, or that it was so "arbitrary,
unreasonable, unfair, or unsupported by sound legal principles" so as to
constitute an abuse of discretion.
Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999). We therefore affirm the trial court's ruling that the
identification was admissible.
X. CUMULATIVE ERROR DID NOT OCCUR
Finally, Cramer and Boyd each contend that their convictions should be
reversed on the basis of cumulative error. Fields does not raise this particular
Cumulative error is "the doctrine under which multiple errors, although
harmless individually, may be deemed reversible if their cumulative effect is to
render the trial fundamentally unfair." Brown, 313 S.W.3d at 631. Here,
however, as reflected in our discussions above, there were no errors at all —
even harmless errors — to accumulate into cumulative error, and so the
doctrine is inapplicable. In summary, our review of the entire case reveals that
the appellant received a fundamentally fair trial and that there is no
cumulative effect or error that would mandate reversal.
Commonwealth, 304 S.W.3d 15, 55-56 (Ky. 2009).
For the foregoing reasons, the judgment of the Christian Circuit Court is
All sitting. All concur.
COUNSEL FOR APPELLANT BILLY FRANKLIN. FIELDS:
Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302 .
COUNSEL FOR APPELLANT JIMMIE CRAMER:
Julia Karol Pearson
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLANT JEFFREY LEE BOYD:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601