IMPORTANT NOTICE
NOT TO BE PUBLISH ED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : MAY 22, 2008
NOT TO BE PUBLISHED
6*Uyrrutr "Ourf of
2007-SC-000290-MR
GARY GOODMAN APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE GEOFFREY P. MORRIS, JUDGE
NO. 05-CR-002617
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case is on appeal as a matter of right from the Jefferson Circuit Court
where Appellant, Gary Goodman, was convicted of murder, four counts of
criminal attempt to commit murder, tampering with physical evidence and
resisting arrest. Appellant was sentenced to life on murder, twenty years each
on the criminal attempt charges, five years for resisting arrest and a concurrent
twelve months for resisting arrest with a sentence of life being imposed pursuant
to KRS 532.110(1)(c) .
Appellant raises four claims of error: (1) that he was entitled to an
instruction of first-degree criminal attempt to commit manslaughter as a lesser-
included offense to the four counts of criminal attempt murder; (2) that he was
entitled to an instruction of first-degree wanton endangerment as a lesser-
included offense to the four counts of criminal attempt murder ; (3) that he was
denied due process when the Commonwealth failed to disclose, prior to trial, an
incriminating statement allegedly made by Appellant ; and (4) that the trial court
improperly admitted weapons and ammunition unrelated to the offenses .
Because none of these constitute reversible error, Appellant's conviction and
sentence are affirmed .
1. Background
In 1986, Appellant and the victim, Paula Goodman, were married . In May
2005, Paula Goodman moved out of the family home . Testimony revealed that
Appellant was sad, depressed and confused about his wife's departure.
Appellant testified that, in July 2005, he learned Paula Goodman was
having an affair with Blaine Morgan . Appellant's son testified that he thought
Appellant seemed normal after hearing of the affair, but that he grew concerned
when Appellant started having "episodes" or "acting nuts." After one of these
episodes, Appellant got into an argument with his son, Kris Goodman, who
testified that Appellant stuck a pistol in his face .
Morgan and Paula Goodman began living together. The morning of
August 18, 2005, Morgan drove Paula Goodman from their apartment to her
mother's house on Venango Street . He stopped his truck in the road next to her
car, and she got out. Appellant was on his way home from work when he saw
Paula Goodman outside Morgan's truck. He had never seen them together
before. Appellant reacted and made a sharp turn, nearly hitting Morgan's truck in
the process . Appellant indicated that Paula Goodman approached the truck to
tell him she had some papers he wanted . As she was approaching, Appellant
had forgotten to let the truck out of gear, and the clutch "popped" causing the
truck to hit Morgan's truck.
After the impact, Appellant claimed that he saw Morgan's arm move to the
right like he was reaching for something, and then Morgan came up with a
revolver and pointed it at him . Appellant grabbed his .357 Magnum revolver,
pointed it at Morgan and pulled the trigger several times, but it would not fire. He
finally noticed that it was still in its holster with the hammer strap snapped, and
while he did not remember unholstering the gun, he did admit seeing his hand
come up and fire the gun . Morgan stated in rebuttal that he had not owned a
handgun in twenty-five years and did not have one that morning .
Appellant claims that at this point he started blacking out and did not know
if Morgan fired at him. He saw Morgan back up and drive away. He claims he
did not recall seeing Paula Goodman running or screaming "no," only that he saw
his hand come up and saw the gun fire in her direction. Witnesses testified that
Appellant walked to the back of the house and they heard two to five shots
thereafter . They also testified that they saw Appellant come from the backyard
moving slowly, and then get into his truck and drive away from the scene of the
shooting slowly in the direction Morgan had gone .
Paula Goodman sustained one lethal wound to the side of her head and
three other wounds to her legs and arm. According to the testimony of his
children, Appellant came through the back door of his house, stating that he had
just killed Paula Goodman and for everyone to get out of the house because the
cops were on the way. Appellant's daughter told police later that morning that
Appellant said, "I killed that bitch and she begged and I thought about not killing
her but she was lying to me and I was trying to get that motherfucker but he ran
like a pussy." She later claimed she did not remember making this statement
and Appellant denied saying it.
Officers Kelly Lee and Dennis Beatty arrived on the scene, meeting in the
street in front of the house . They saw Appellant's son Steven come out of the
house advising that his dad had killed his mom and was going to kill him too.
Steven then moved behind a police car for cover. Officer Lee testified that once
Steven was safely behind the car, rounds were fired from the front of the house
and she took cover behind a tree. Officer Beatty had just gotten behind the truck
in the driveway when rounds started coming in his direction, with several rounds
hitting the truck.
Officer Lee testified that Appellant saw her and stated, "Come out from
behind that tree, I've got something for you." Appellant began firing toward the
tree. When Officer Lee tried to engage Appellant in conversation, he replied,
"Fuck that whore, she's dead," and, "She is dead ; I shot her in the fucking head
and I'm going to shoot you in the fucking head too ." Other officers reported that
Appellant also said to Lee, "Fuck you, earn your paycheck."
Officer Lee testified that Appellant shot at her two dozen times while she
was behind the tree using a shoulder-mounted long gun. Detective Smithers was
moving up the driveway when he heard rounds coming through the leaves by his
head and hitting the gravel near his feet.
The next morning, between 3 :00 and 4:00, SWAT Officer Culver saw
Appellant running toward him from the house. Culver testified that Appellant
pointed his fingers at him in gun-like fashion and said, "boom boom boom ." A
standoff with the SWAT team ensued and Appellant was apprehended .
Thereafter, Appellant's residence and vehicle were searched . Recovered
items included approximately fifty firearms, rounds of ammunition, holsters, spent
shell casings, a magazine and a pocket knife. After he was arrested, Appellant
was hospitalized and made several incriminating statements to police and
hospital staff. He did not deny murdering Paula Goodman nor did he deny firing
at the officers at his home . His defense at trial consisted of a combination of
seeing his wife with Morgan for the first time and claiming that he had no memory
of the pertinent details surrounding the events that followed .
11. Analysis
A. Requested Manslaughter Instruction
At the close of evidence, the trial court held that there was enough
evidence to create a jury question as to the occurrence of extreme emotional
disturbance through a "triggering event" when Appellant saw his wife and Morgan
together for the first time and therefore included an instruction on the lesser
included offense of first-degree manslaughter. The court declined, however, to
extend this ruling to the four attempted murder charges involving the police
officers. The court stated that the EED triggering event served only as a defense
to the actual murder and that, furthermore, no EED language was required due to
the lapse of ten to fifteen minutes between the shooting of Paula and the
shootout with police.
Extreme emotional disturbance is "a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one's judgment, and to cause one to act
uncontrollably from the impelling force of the extreme emotional disturbance
rather than from evil or malicious purposes." McClellan v. Commonwealth, 715
S.W .2d 464, 468-69 (Ky. 1986) . This requires a "triggering event" that leads to
the extreme emotional disturbance . Whitaker v. Commonwealth , 895 S.W.2d
953, 954 (Ky. 1995). However, the trigger is not limited to sudden or intense
events, such as were sufficient to produce the common law "sudden heat of
passion" : "it is possible for any event, or even words, to arouse extreme mental
or emotional disturbance ." Spears v. Commonwealth , 30 S .W .3d 152, 155 (Ky.
2000) (quoting Gall v. Commonwealth, 607 S.W.2d . 97,109 (Ky. 1980)) .
Additionally, the EED trigger may be a gradual series of events, rather
than a single intense one, and does not have to be contemporaneous with the
resulting EED. The notion of a "triggering event" may be somewhat misleading,
because the concept of adequate provocation is broad enough to include the
cumulative impact of a series of related events . Further, a jury may find
adequate provocation even if the triggering event did not immediately precede
the defendant's criminal act. Holland v. Commonwealth, 114 S .W .3d 792, 806
(Ky. 2003). Ultimately, "[i]t is for a jury to decide whether a triggering event has
occurred and whether a defendant acted under the influence of EED." Springer
v. Commonwealth , 998 S .W .2d. 439, 452 (Ky. 1999) .
Here, the trial court did have a rationale for refusing to instruct on extreme
emotional disturbance in the attempted murder counts. Despite a lapse of only
fifteen minutes between shooting his wife and shooting at the officers, the court
reasoned that the disturbed state of mind that could have existed when Appellant
saw his wife and her lover together did not extend to his fleeing to another
location or the deliberate actions he took towards the stand-off with the officers .
While reasonable minds could differ on this application, it is not necessary for this
Court to examine this ruling for error, because the jury expressly rejected
Appellant's claim of extreme emotional disturbance in killing his wife . If there is
no application of EED to her killing, then there can be none in the later attempted
murder charges. If there were any error in the attempted murder charges, then it
was harmless. Thacker v. Commonwealth, 194 S.W.3d 287 (Ky. 2006).
B. Alleged Statement by Appellant
LMPD Officer Galvan testified at trial that while in the doorway of
Goodman's hospital room, he heard someone ask Goodman how he felt that day
and heard Goodman respond, "she deserved what she got" and "I killed the
fucking bitch ." The latter statement had been turned over in discovery, but the
former had not. Appellant asked for a mistrial, which was denied .
RCr 7.24(1) provides that "[u]pon written request by the defense, the
attorney for the Commonwealth shall disclose the substance, including time,
date, and place, of any oral incriminating statement known by the attorney for the
Commonwealth to have been made by a defendant to any witness ."
Appellant was able to establish on cross-examination that the statements
were not written down by Officer Galvan and that Galvan's statement to
Detective Finch on that day was inconsistent with his testimony at trial .
However, the statement was similar to other statements that were
admitted . Appellant claims that allowing the statement "she deserved what she
got" permitted the Commonwealth to introduce evidence of his state of mind,
thereby potentially inducing him to rely on a defense he may not otherwise have
asserted . But, the following admitted statement was of a similar nature : "yeah, I
fucking killed my wife. . . it pissed me off because I had to chase her to finish it."
Additionally, there was testimony that Appellant thought about not killing the
victim, but that she had lied to him . While the statement should have been
turned over to Appellant when the Commonwealth discovered it, there is no
justification for setting aside his conviction unless there is a "reasonable
possibility that it affected the verdict." Emerson v. Commonwealth, 230 S .W.3d
563, 570 (Ky. 2007).
There is no evidence to indicate that this particular statement had any
impact on the conviction given the other statements and testimony regarding
Appellant's state of mind. Appellant was also able to address any perceived
prejudice to his case by cross-examining Officer Galvan and Detective Finch .
Therefore, any error in the Commonwealth's failure to disclose the statement is
harmless under RCr 9.24.
C. Requested Wanton Endangerment Instruction
Appellant argues that he should have received an instruction on first-
degree wanton endangerment with respect to the four counts of criminal attempt
murder on the police officers. KRS 501 .020(3) defines a person as acting
wantonly "with respect to a result or circumstance described by the statute
defining an offense when he is aware of and consciously disregards a substantial
and unjustifiable risk that the result will occur or that the circumstance exists.
The risk must be of such nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a reasonable person would
observe in the situation." Appellant claims he was entitled to the instruction
because there were witnesses who saw him shooting in the air.
In criminal cases, the trial court must present "instructions applicable to
every state of the case deducible or supported to any extent by the testimony ."
Manning v. Commonwealth , 23 S .W.3d 610 (Ky. 2000) . It is clear in this case
that the evidence did not support an instruction for wanton endangerment .
Appellant explicitly told Officer Lee that he was going to shoot her in the
head and also yelled for the officers to come out and that he would get them too.
Additionally, Detective Smithers heard and felt shots around his head and feet as
he was approaching the house and Officer Blake said once he made it to the
truck, there were no more gun shots. Perhaps Appellant could also have been
charged with wanton endangerment for some random shots, but he was not.
The totality of the evidence demonstrates that Appellant's shots were intentional
and purposeful . No wanton endangerment instruction was warranted and there
was no error .
D. Admission of Weapons and Ammunition
Appellant did not object to the introduction of the following weapons and
ammunition collected at the scene: a Smith and Wesson 357 Magnum revolver
found under a tree in the front yard (identified as consistent with the weapon
used to shoot the victim), and a pistol and a revolver (both found in the kitchen
and consistent with spent shell casings and live rounds around the house) . He
did, however, object to the introduction of ammunition and guns not used in the
crimes, namely: a box of 50 Remington high-velocity .22 long rifle hollow point
live rounds collected from the rear floorboard of his truck and fifty-five weapons,
ammunition, and weapon accessories collected from two gun cabinets, two gun
safes, a bedroom closet and a basement laundry room closet. Appellant claims
this evidence was not relevant, that there was no connection between these
weapons and the crimes, that not all of the weapons were his, and that the
Commonwealth was only introducing them to prejudicially portray him as a gun
fanatic .
The Commonwealth responded that the weapons and ammunition were
relevant to show that Appellant had clear knowledge about weapons and their
use and that the presence of them lent credence to their theory that his actions
were purposeful.
Appellant relies on a line of cases that have held inadmissible guns not
related to the crime or which cannot be authenticated as those related to a crime .
Major v. Commonwealth , 177 S.W .3d 700 (Ky. 2006) ; Gerlaugh v.
Commonwealth , 156 S.W.3d 747 (Ky. 2005). In Major, several guns completely
unrelated to a murder were introduced . In Gerlaugh, a gun was introduced into
evidence as the one used in a robbery with no evidence, direct or indirect,
identifying the weapon . The basic rule embodied by these cases is that it is
"error to introduce . . . weapons without [a] connection to the crime ." Major, 177
S .W.3d at 711 . This does not mean, as Appellant urges, that guns are only
admissible at a trial if they were used in the crime .
The facts as they actually happened distinguish this case from Major and
Gerlaugh. Appellant left the house where he shot his wife and drove immediately
to his own home where the small arsenal of weapons and ammunition was
stored . Once he arrived there, he ordered his family to leave the house, telling
10
them that the police were coming because he had just killed Paula . The
presence of the extra guns there, especially in combination with the statements
made to family members at the time, helps show that he went to the house with
the intention, or at least the ability, to engage in the ensuing shootout and
standoff with officers. In this way, the guns were also relevant to show
Appellant's state of mind with regard to the attempted murder of the police
officers. (Though the merits of the issue are not addressed above, the fact that
Appellant drove to a house with a large number of guns also undercuts any claim
that he was suffering under EED when he attacked the police.) Also, there was
no question that the weapons introduced at trial were actually the ones found at
the house where the Appellant fired at the police and engaged in a standoff.
Thus, the extra guns in this case were relevant, their probativeness was not
significantly outweighed by their prejudicial effect, and they were properly
admitted into evidence .
III. Conclusion
For the reasons set forth herein, the judgment and sentence of the
Jefferson Circuit Court is affirmed .
Lambert, C .J . ; Abramson, Cunningham, Minton, Noble and Scott, JJ .,
concur . Schroder, J., concurs in result only.
COUNSEL FOR APPELLANT :
Daniel T. Goyette
Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
Cicely Jaracz Lambert
Deputy Appellate Defender
Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
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