Joshua Tate Davenport v. Commonwealth of Kentucky

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 RENDERED: SEPTEMBER 24, 2020
NOT TO BE PUBLISHED

Supreme Court of Kentucky
2019-SC-0637-MR

JOSHUA TATE DAVENPORT APPELLANT

ON APPEAL FROM LAUREL CIRCUIT COURT
V. HONORABLE GREGORY ALLEN LAY, JUDGE
NO. 18-CR-00121

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Laurel County jury convicted Appellant, Joshua Tate Davenport, of the

murder of his wife, Stephanie Davenport, and tampering with physical

evidence. The jury recommended sentences of thirty-five years for murder and

five years for tampering with physical evidence, to be served consecutively. In

accordance with the jury’s recommendation, Appellant was sentenced to forty

years’ imprisonment and now appeals to this Court as a matter of right. Ky.

Const. §110(2)(b).

On appeal, Appellant claims the trial court erred by: (1) admitting a lab

report, testimony by a lab technician, and certain portions of a recorded police

interview; (2) failing to admit two photographs of Stephanie Davenport; and (3)

failing to grant a mistrial.

For the following reasons, we affirm.

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 I. BACKGROUND

Stephanie and Appellant married in September 2017 and lived in Corbin

in a home owned by Appellant’s parents. From December 17, 2017, until

March 1, 2018, Appellant was incarcerated for drug crimes. Six days after

Appellant’s release, Stephanie sent a message to her boss, telling him she

would not be at work, as Appellant had bruised her face. A few hours after

that message, Stephanie was shot twice at close range. One of the bullets

entered the back of her head on the right side and exited the front of her head

on the left. The other entered her left abdomen, went through her heart and

diaphragm, and exited the left side of her back. Either gunshot would have

caused Stephanie’s death.

Appellant claimed he found Stephanie after hearing four gunshots and

walking outside to determine where they had come from. Appellant then asked

his mother if Stephanie had shot herself and asked her to call 911. Police

found Stephanie facedown with a .38 caliber revolver partially underneath her

body. Later, a neighbor also reported hearing four gunshots—a number which

corresponded with the four spent shell casings found in the cylinder of the

revolver.

Police were skeptical of Appellant’s claims that Stephanie had died by

suicide since she had two gunshot wounds. Police also questioned Appellant’s

story due to the presence of footprints on the right hip of Stephanie’s pants.

Appellant and Appellant’s brother and son all told police that the day

before Stephanie died, she was found kneeling in the backyard holding the

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revolver in her hand. In his brief, Appellant refers to this incident as an

apparent “suicide rehearsal.” He also claims Stephanie had tried to overdose

on pills. According to Appellant, Stephanie asked him for the revolver on the

morning of her death, but he had hidden it from her. The authorities were not

notified of any of these events.

In the hours following Stephanie’s death, police conducted three

interviews with Appellant. During these interviews, officers suspected

Appellant was under the influence of drugs, as he was sweating profusely,

picked at his hands often, and seemed both agitated and unfocused. Appellant

submitted to a urine and blood test, which eventually revealed both

methamphetamine and amphetamine in his system. Within a few hours, police

charged Appellant in connection with Stephanie’s death. On May 3, 2018,

Appellant was indicted for murder and tampering with physical evidence.

Lab analysis and findings were critical for the Commonwealth in proving

Appellant killed Stephanie. Chief among the critical lab results were gunshot

residue tests, which determined that lifts taken from Appellant’s hands were

consistent with gunshot residue. Furthermore, lab testing revealed

presumptive blood stains on Appellant’s pants, shoes, and jacket. Lab tests

taken during Stephanie’s autopsy showed traces of methamphetamine in her

urine, but her blood tests showed no evidence of any drugs. Stephanie’s blood

tests were in contradiction of Appellant’s claim that she had attempted to

overdose on pills the night before her death.

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 Appellant’s blood sample was examined by lab examiner Jason Berry and

revealed the presence of methamphetamine and amphetamine. He was unable

to opine if Appellant was actually under the influence of methamphetamine

either at the time of the crime or when the sample was taken; however, Deputy

Medical Examiner Dr. Darius Arabadjief testified the presence of drugs in the

blood normally indicates that a person is under the influence of those drugs.

Berry’s report analyzing Appellant’s blood was completed in May 2018.

However, the prosecutor did not receive the lab results until August 30, 2019—

the Friday before Labor Day weekend and four days before trial was scheduled

to begin; the results were turned over to defense counsel that same day.

Appellant filed a motion in limine to exclude the lab report, testimony of lab

analyst Berry, and statements Appellant made to police concerning the last

time he used methamphetamine. Among his main arguments to the trial

court, Appellant asserted a lack of pretrial notice and that the evidence violated

KRE 404(b)(1) as prior bad acts.

The trial court found the evidence fell within KRE 404(b)(1), and that

Appellant was therefore entitled to KRE 404(c) notice. After finding the

Commonwealth had provided timely notice, the trial court considered

Appellant’s argument as to relevancy and withheld final ruling until the parties

developed the evidence during trial. After two detectives and the deputy

medical examiner testified, the trial court allowed the admission of the

evidence.

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 During trial, Appellant sought to introduce two photographs of Stephanie

holding a handgun, which the Commonwealth agreed was the same gun

involved in her death. The Commonwealth objected to the introduction of the

two pictures, arguing they lacked relevance. The trial court sustained the

Commonwealth’s objection and excluded the photographs.

When the jury retired to deliberate after closing arguments, Stephanie’s

autopsy report was left on the podium, so the jury did not have it during

deliberations. Appellant moved for a mistrial on these grounds, but the trial

court overruled his motion. In ruling on the mistrial motion, the trial court

noted that witnesses had testified to the pertinent parts of the report and the

jury could have examined the report if it had asked to do so; therefore, the trial

court found there was no manifest injustice requiring a mistrial.

The jury found Appellant guilty of Stephanie’s murder and of tampering

with physical evidence. The judge sentenced Appellant to forty years’

imprisonment in accordance with the jury’s recommendation. Appellant now

appeals to this Court.

II. ANALYSIS

A. Lab report, Lab Analyst Berry’s testimony, and forty-one seconds of
recorded police interview

Appellant asserts the trial court erred in admitting a lab report by state

crime lab analyst Jason Berry, Berry’s testimony about his findings contained

in that report, and forty-one seconds of Appellant’s recorded interview with

police (in which an officer asked him about the last time he used drugs).

Appellant alleges four separate grounds relating to this evidence. Specifically,
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he claims the trial court erred by: 1) finding the pretrial notice of the report and

testimony of Berry was timely, 2) the manner in which it applied KRE 404(b)(1)

to the evidence, 3) finding the evidence was relevant and admissible, and 4)

determining the probative value of the evidence outweighed its prejudicial

effect.

“Rulings upon admissibility of evidence are within the discretion of the

trial judge; such rulings should not be reversed on appeal in the absence of a

clear abuse of discretion.” Simpson v. Commonwealth, 889 S.W.2d 781, 783

(Ky. 1994). “The test for abuse of discretion is whether the trial judge’s

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Prior to trial, Appellant filed a motion in limine and specifically sought to

exclude evidence of his “drug content of blood (provided to undersigned counsel

on Friday, August 30, 2019, at approximately 3:00 p.m.) and a portion of

Defendant’s second interview (16:42-17:23).” Appellant claimed the

Commonwealth’s pretrial KRE 404(c) notice of intent to introduce 404(b)

evidence was unreasonable. Appellant also argued in the alternative that if the

trial court determined the evidence was not 404(b) evidence or that notice was

proper, then the evidence was irrelevant, and its prejudicial effect outweighed

its probative value.

In conducting its 404(b) analysis, the trial court first determined the

evidence of methamphetamine in Appellant’s blood was evidence of a prior

crime which required the Commonwealth give Appellant notice of its intention

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to offer it in evidence. Then, relying on Dant v. Commonwealth, 258 S.W.3d 12,

21 (Ky. 2008), the trial court found the Commonwealth gave sufficient notice

when it filed notice and provided the lab report to defense counsel four days

before trial. The trial court withheld its final ruling concerning the admission

of the lab report and testimony about drugs in Appellant’s system until further

evidence was developed at trial. The trial court indicated that if the testimony

reflected on Appellant’s state of mind, it was relevant as to his ability to recall

facts and the reliability of those facts Appellant related to the detectives during

the interviews.

Appellant was interviewed three times by police within hours after the

shooting. One of the officers conducting the interviews was Laurel County

Sheriff’s Office Detective Sergeant Chris Edwards. Edwards’s law enforcement

background included over thirteen years with the Drug Enforcement

Administration task force. Through that work, Edwards developed

considerable experience and familiarity with persons under the influence of

drugs. In laying a foundation for admission of the statements concerning

Appellant’s methamphetamine use, the Commonwealth asked Edwards to

describe his observations of Appellant during the interviews. Edwards

described that Appellant was sweating profusely, visibly agitated, repeatedly

picking at his hands, and that Appellant’s attention drifted in and out of focus.

When the Commonwealth asked Edwards what he deduced from Appellant’s

actions, Edwards replied it was his opinion that Appellant was under the

influence of drugs while giving his statements.

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 After hearing the testimony of Edwards, Bryan Lawson (another Laurel

County Sheriff’s Office detective who sat in on the interviews), and the Deputy

Medical Examiner, Dr. Darius Arabadjief, the trial court ruled the lab report,

Berry’s testimony regarding the report, and the forty-one seconds of Appellant’s

interview in question were admissible. Dr. Arabadjief had testified about the

difference between drugs found in urine samples and drugs found in blood

samples. According to Dr. Arabadjief, the presence of drugs in the blood meant

drug use currently affected the person, while presence in the urine meant past

usage with no current effect.

Dr. Arabadjief opined Stephanie was not under the influence of

methamphetamine when she died because the meth was only in her urine.

Appellant had methamphetamine in his blood. Applying that explanation to

the lab report showing methamphetamine and amphetamines in Appellant’s

blood, the trial court ruled the items of evidence in question were relevant and

admissible.

While we will address each of Appellant’s arguments individually below,

we pause first to note that each of these alleged errors would be subject to

harmless error analysis. Even if we were to hold the trial court erred, any such

error would be harmless. “One of the foremost tests in determining whether an

error is prejudicial is consideration of whether upon the whole case there is a

substantial possibility that the result would have been any different.” Stiles v.

Commonwealth, 570 S.W.2d 645, 647 (Ky. App. 1978) (internal citations

omitted).

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 The overwhelming amount of other evidence in this case—including lab

results suggesting the presence of gunshot residue on Appellant’s hands,

stains which were presumptive for blood on Appellant’s clothing, the visible

foot print on Stephanie’s pants, the fact that Stephanie sustained two

independently fatal gunshot wounds (one in back of her head on the right side

and one which entered her abdomen on the left side and went through her

heart), the deputy medical examiner’s conclusion that Stephanie’s wounds

were not consistent with wounds of a person who shot herself twice, the

absence of drugs in Stephanie’s system that would have indicated an effort to

overdose the previous night (as claimed by Appellant), and the myriad of other

evidence contradicting Appellant’s version of events— far outweighed any effect

the trial court’s evidentiary rulings had on the outcome of Appellant’s trial.

We conclude there is no substantial possibility the result would have

been different in this case even if we were to assume the trial court erred. As

noted, however, we will address each of Appellant’s arguments in turn.

1. Timeliness

Appellant first claims the Commonwealth’s notice, provided on the Friday

before a holiday weekend with the trial set to begin on Tuesday, was untimely.

Relying on Dant, 258 S.W.3d 12, the trial court found the notice was sufficient.

After review, we agree with the trial court’s determination and hold Dant was

applicable and determinative.

The factual circumstances in Dant are remarkably similar to those in this

case. In Dant, notice was provided by “the Commonwealth on the Friday before

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a holiday weekend, with the trial beginning on Tuesday.” Id. at 21. We

reiterated “‘[t]he intent of KRE 404(c) is to provide the accused with an

opportunity to challenge the admissibility of this evidence through a motion in

limine and to deal with the reliability and prejudice problems at trial.’” Id. at

21-22 (quoting 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)).

Here, Appellant’s counsel was able to file a motion in limine challenging

the evidence. In response to that motion, the trial court conducted a hearing

and determined the evidence fell within KRE 404(b) and required prior notice.

The trial court then found the prior notice provided was sufficient but withheld

final ruling on admissibility until after hearing other contextual evidence. We

stated in Dant, “[s]ince Dant was given actual notice of the Commonwealth’s

intent to introduce KRE 404(b) evidence in time to adequately challenge its

admissibility, we conclude that he did not suffer any prejudice and the trial

court did not err in finding that the notice requirement of KRE 404(c) was

satisfied.” Id. at 22. The same is true herein.

As such, we agree with the trial court’s determination that the

Commonwealth provided timely notice to Appellant.

2. KRE 404(b)

Appellant next claims the trial court erred when it allowed the

Commonwealth to admit the lab report, Berry’s testimony, and forty-one

seconds of recorded interview into evidence pursuant to KRE 404(b). From the

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outset, we acknowledge that Appellant indicates in a footnote of his brief that

counsel could not hear what determination the trial court made with respect to

the 404(b)(1) analysis. Counsel asserts “[t]he audio was not clear or loud

enough.”

After review, we agree it is a bit difficult to hear, but we disagree with

counsel’s assertion the trial court failed to make a finding. The trial court

expressly disagreed with the Commonwealth and found the evidence to fall

within 404(b) as it was evidence of other crimes, wrongs, or acts. The court

went on to note the available exceptions for the evidence to come in, and then

moved to analyze notice and relevance.

Although the audio record is not as clear as it could have been about

what actual findings the trial court made, what is clear is that the trial court

found the evidence was within 404(b), but was not being offered to prove

Appellant had acted in conformity with previously displayed bad character.

Further, the trial court’s later discernable actions and language clearly indicate

the trial court felt the evidence went to Appellant’s state of mind at the time of

his statements to officers.

The Commonwealth argues the record supports its claim that the

evidence went to intent or motive as confirmed by the prosecution’s closing

argument, which argued Appellant’s state of mind was influenced by

methamphetamine and was the reason for his claiming Stephanie’s death was

a suicide.

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 We hold the record of the trial court’s actions, although not memorialized

by an entirely clear audio recording, made clear the 404(b) issue was resolved.

It can be inferred that by moving onto the issue of relevancy, the trial court had

concluded the issue was about Appellant’s mental state—his intent. In a

slightly different context, we said: “[w]e also do not require trial courts to make

detailed written findings to support the many evidentiary rulings they must

make in the course of a trial.” Cox v. Commonwealth, 553 S.W.3d 808, 816

(Ky. 2018). In this circumstance, with a jury waiting and a multi-day trial set

to begin, the trial court sufficiently ruled and moved on to an issue that

required further testimony to resolve. Neither the Commonwealth nor

Appellant objected to or sought clarification of the trial court’s determination

concerning KRE 404(b), and we find no error in the trial court’s conclusion or

actions.

3. Relevance

Appellant next claims neither lab analyst Jason Berry’s testimony and

report nor a forty-one second clip of Appellant’s police interview were relevant.

Appellant alternatively argued to the trial court that if the evidence was

admissible despite his KRE 404(b) objection, then it should not be deemed

relevant. The crux of Appellant’s claim focuses on that portion of Berry’s

testimony in which Berry stated he was unable to determine from his lab

analysis exactly when Appellant was acting under the influence of the drugs

and when Appellant last ingested methamphetamine.

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 If the only evidence the Commonwealth offered was the report and

Berry’s testimony, it may be more difficult for us to determine that it was

relevant. However, Berry’s lab analysis, report, and testimony must be viewed

in the context of the other evidence. “To show that evidence is relevant, only a

slight increase in probability must be shown.” Blair v. Commonwealth, 144

S.W.3d 801, 808 (Ky. 2004).

Within hours of Stephanie’s death, Appellant was interviewed at the

Laurel County Sheriff’s Department by Detectives Sergeant Edwards and Bryan

Lawson and a blood sample was taken. When asked about a time frame for

methamphetamine to remain in Appellant’s blood, Berry responded

methamphetamine had a half-life in the blood stream of somewhere between 5

and 30 hours, a range that could include both the time Stephanie was shot

and the police interviews.

As noted above, Edwards testified about his observations of Appellant

during the interviews. The recordings also reveal Appellant’s lack of focus,

which resulted in Edwards whistling and slapping the desk to bring Appellant’s

attention back to the interviews. Edwards did not testify definitively that

Appellant was intoxicated—just that he thought Appellant was under the

influence due to his actions.

Lab analyst Berry’s inability to state the level of influence the drugs had

on Appellant, including whether he was intoxicated at the time of Stephanie’s

death or the interviews, does not make the evidence irrelevant. The trial court

relied on Burton v. Commonwealth, 300 S.W.3d 126 (Ky. 2009), in finding that

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evidence of drugs in Appellant’s system was relevant to a determination of his

mental state at the time he gave interviews with police.

Additionally, where a significant question for the jury is whether a person

died by suicide or homicide, what the Appellant had to say close to the event

and his state of mind when he said it were important for the jury’s

consideration. Appellant’s version of events did not line up with the other

evidence gathered in the investigation. Evidence that Appellant was under the

influence of methamphetamine could explain—at least in part—the

inconsistences found in Appellant’s version of the events.

As Appellant points out, when Berry was asked about possible effects, he

could not say if Appellant was intoxicated or when he last consumed drugs.

Berry testified those types of conclusions depended on information he did not

have—including how much of the drug was taken, the drug’s potency, and how

fast Appellant metabolized the drugs in his system. The questions posed to

Berry exceeded what this type of lab testing can reveal.

The answers sought by Appellant’s questions were better addressed to

the other witnesses who testified, such as Edwards, who described Appellant’s

condition and unusual behaviors during the interviews and then concluded he

was under the influence of drugs. Dr. Arabadjief also spoke to this evidence,

clarifying that drugs found in the blood indicate a current impact on a person.

As to the specific question of when Appellant last used drugs, that question

was best answered by Appellant in his recorded interview.

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 Merely because the questions posed to Berry were best answered by

other witnesses or other evidence does not render the lab report and Berry’s

testimony irrelevant. When viewed in conjunction with other evidence, as the

trial court did, this evidence offered more than the slight probability required

for a relevancy determination. As such, the trial court correctly determined the

lab report, Berry’s testimony, and the forty-one seconds of questioning in the

recorded interview were relevant.

4. Probative value and prejudicial effect

Appellant finally asserts that the probative value of the lab report, Berry’s

testimony, and the forty-one seconds of questioning by police about the last

time he used drugs was exceeded by its undue prejudice. Appellant proclaims

that once the jury found out he had methamphetamine in his system, the

verdict was a foregone conclusion because the use of drugs carries a stigma

that labelled him a “Meth Head.” Further, Appellant claims that since the

evidence failed to show he was impaired at the time of the occurrence, it merely

served to create an inference he was more likely to commit a murder and

therefore painted him in a bad light.

First, we note “[i]t is within the sound discretion of the trial judge to

determine whether the probative value of evidence is outweighed by its possible

prejudicial effect and to admit or exclude it accordingly.” Rake v.

Commonwealth, 450 S.W.2d 527, 528 (Ky. 1970). Furthermore, “[a] ruling

based on a proper balancing of prejudice against probative value will not be

15
disturbed unless it is determined that a trial court has abused its discretion.”

Bell v. Commonwealth, 875 S.W.2d 882, 890 (Ky. 1994).

“This deference to the trial court’s discretion arises from our recognition

that the trial court has a ‘superior view’ of the evidence and is better situated to

assess its nuances.” Jackson v. Commonwealth, 481 S.W.3d 794, 797 (Ky.

2016) (quoting Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)). As such,

“[t]he test for abuse of discretion is whether the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

English, 993 S.W.2d at 945.

Here, the trial court relied on Burton, 300 S.W.3d at 133. Appellant had

been indicted for murder and at the point the evidence was offered, it remained

to be determined if the trial court would find the evidence supported jury

instructions containing wanton, intentional, or reckless mental states. “One

way to prove wantonness is to show that the defendant in a vehicle-homicide

[,or injury,] case was driving while intoxicated.” Id. As wantonness was an

issue relating to what mental state would potentially be included in the court’s

jury instructions, assuming a directed verdict was not granted, evidence

concerning Appellant’s mental state was relevant. The trial court did not act

unreasonably or arbitrarily in finding the evidence in question was relevant.

Since we already held the trial court correctly found the evidence was

relevant, the question becomes was that relevance overcome by undue

prejudice. Our analysis begins with a recognition that all evidence offered by

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the Commonwealth against a defendant carries with it some degree of

prejudice, so our focus is on whether the prejudice was “undue.”

In evaluating what is “undue” prejudice we recently quoted Robert G.

Lawson, The Kentucky Evidence Law Handbook, § 2.10[4][b] (4th ed. 2003)

(internal citations omitted):

What is contemplated as “unfairly” or “unduly” prejudicial is
evidence that is harmful beyond its natural probative force:
“Evidence is unfairly prejudicial only if . . . it ‘appeals to the jury’s
sympathies, arouses its sense of horror, provokes its instinct to
punish,’ or otherwise ‘may cause a jury to base its decision on
something other than the established propositions in the case.’”
McLemore v. Commonwealth, 590 S.W.3d 229, 234 (Ky. 2019).

Does the word “methamphetamine” provoke the “instinct to punish” just

by its mention? Sadly, methamphetamine and the consequences of its use are

not unfamiliar to Kentucky citizens. However, the use and consequences of

other illegal drugs such as fentanyl, heroin, and cocaine are likewise not

unfamiliar to potential Kentucky jurors. Unfortunately, drugs such as these

are often evidence in criminal cases and cannot be routinely excluded in cases

simply because jurors may be aware of them.

Rather than excluding evidence of high profile drugs because of their

notoriety to jurors, we recognize that those jurors who have strong feelings and

life or family experiences involving drugs like methamphetamine may not be

suitable to sit as a juror on a given case. It would be rare indeed to find a

family that has not been touched by the drug epidemic in Kentucky.

Appellant’s argument assumes that evidence of his drug use would predispose

the jury to convict. However, the opposite could also hold true: the juror’s

17
experiences trying to help family or friends may engender sympathy for

someone in the clutches of drugs. Experience gained over time has made clear

that voir dire is the best method to identify those potential biases and deal with

issues.

Peremptory and for-cause strikes are available to assist counsel if juror

bias would affect a given juror’s ability to fairly sit on a case. A good example

of this application can be found in Appellant’s voir dire on another sensitive

topic in this case. In response to counsel’s questions about suicide, several

jurors asked to approach the bench and were questioned individually. After

questioning, three jurors were excused for cause based on their answers to

questions on this topic. However, in contrast, no questions about

methamphetamine and possible juror life experiences surrounding that drug

were asked.

Further, if the entire panel had been too affected by a specific drug’s

abuse in a community, such as Appellant claims is the issue with

methamphetamine, and an unbiased jury cannot be found, our rules provide

the trial court with options to obtain more jurors or to move the case to a

different locale for trial. Here, the record reveals no requests for more jurors or

for a change of venue in this case.

Although the trial court reserved ruling on the admissibility of the

methamphetamine evidence until it heard witness testimony, the jury’s

reaction to methamphetamine could have been broached during voir dire.

Counsel could reasonably anticipate the jury was going to hear testimony

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about methamphetamine found in Stephanie’s urine because of the deputy

medical examiner’s autopsy report. Counsel for either side, or both sides,

would undoubtedly ask about that finding. Methamphetamine was a fact in

the case regardless of the trial court’s ultimate finding concerning the motion

in limine.

If the trial court excluded the evidence objected to in the motion in

limine, then Appellant would not have been harmed by asking about

methamphetamine, because it also applied to Stephanie. However, if the trial

court allowed the evidence, juror bias could have been exposed by appropriate

questioning. Dealing with the issue of potential juror prejudice during voir dire

is a better way to handle difficult issues rather than imposing a blanket rule

excluding relevant, albeit potentially emotionally charged, evidence.

After review of the record, we conclude the trial court did not abuse its

discretion in admitting the evidence of the lab report, lab analyst Berry’s

testimony, and the forty-one seconds of recorded interview. The prejudicial

effect of the evidence was not so undue as to outweigh its probative value.

B. Photographs of Stephanie

Appellant next argues the trial court erred in denying admission of two

sexually suggestive “boudoir photographs” of Stephanie. The two photographs

display Stephanie in a revealing, black, lowcut top, wearing heavy makeup, and

holding a revolver (which all parties agree is the same gun used in Stephanie’s

death).

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 The Commonwealth objected to the photographs based on relevancy and

noted there had been no testimony about when the pictures were taken.

Appellant argued the “very dark and disturbing” photos would help lead the

jury to conclude Stephanie died by suicide.

In his brief, Appellant’s counsel clearly mischaracterizes the photographs

to this Court. Counsel claims they show Stephanie “with a handgun held in

her right hand up to her head and pointed at the same position as the entry

wound discovered by law enforcement officers on her body.” That assertion is

glaringly inaccurate. Counsel even concedes his blatant mischaracterization in

his reply brief, but claims it was his “understanding and good faith belief at the

time.” Nonetheless, counsel maintains his argument that the trial court

abused its discretion in denying admission of the photographs.

Initially, the trial court found it was not unusual for people to have

pictures taken with their guns and noted the suggestive nature of the

photographs were not indicative of suicide. The trial court then sustained the

Commonwealth’s objection at that time but left the door open for Appellant to

renew his request for admission if other evidence came to light. The trial court

found the prejudicial effect of the photographs greatly outweighed their

probative value, and the pictures could potentially confuse the issues and

mislead the jury.

A defendant has a right to present a defense, which includes

photographs; however, that right is not without limits nor outside the Rules of

20
Evidence. In a prior case where we sustained the trial court’s exclusion of both

gruesome and family photographs offered by the defense, we said:

Appellant asserts that the evidence was admissible because it was
probative of his mental state at the time of the crimes. No doubt,
Appellant has a constitutional right to a fair opportunity to present
a defense. Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct.
2142, 2146-47, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi,
410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973);
Beaty v. Commonwealth, Ky., 125 S.W.3d 196, 206-07 (2003). The
exclusion of evidence violates that constitutional right when it
“significantly undermine[s] fundamental elements of the
defendant's defense.” United States v. Scheffer, 523 U.S. 303, 315,
118 S.Ct. 1261, 1267-68, 140 L.Ed.2d 413 (1998).

Hughes v. Commonwealth, No. 2002-SC-1081-MR, 2004 WL 2624053, at *17-

18 (Ky. Nov. 18, 2004).

The trial court’s exclusion of the two photographs did not undermine

fundamental elements of Appellant’s defense. We conclude, as the trial court

did, that the photographs did not contribute anything to answering the

question of whether Stephanie died by suicide. Other evidence admitted in this

case, including a letter written by Stephanie, went directly to the question of

whether she took her own life.

Appellate review of evidentiary rulings on admission of evidence, such as

excluding the photographs in this case, is conducted under an abuse of

discretion standard, and “[t]he test for abuse of discretion is whether the trial

judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound

legal principles.” English, 993 S.W.2d at 945.

Here, the trial court found the photographs lacked relevancy. KRE 401

defines relevant evidence as “having any tendency to make the existence of any

21
fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Appellant argues the

issue to be determined was whether Stephanie’s death was suicide or homicide,

and that the jury could look at the photographs and conclude Stephanie died

by suicide. However, Appellant offers no further support for that contention

once he admitted the pictures do not, in fact, show Stephanie pointing the gun

at her head.

Appellant’s mere description of the photographs as “very dark and

disturbing” is insufficient absent additional information or testimony to

connect it to the question of Stephanie’s claimed suicide. The trial court left

open the door for additional evidence, but none was presented; therefore, the

trial court did not abuse its discretion in determining the photographs were not

relevant at the time they were offered.

In the photographs, there is no connection to the backyard where

Stephanie died, and there was no indication that Stephanie’s death occurred

during some type of fantasy enactment or roleplay. Photos of Stephanie in a

suggestive and revealing outfit do not shed light on her death, while wearing a

t-shirt and jeans. Finally, the photos are not dated, so the possibility exists

they were taken before she met and married Appellant, which was only six

months prior to her death. Last, proximity of the photographs to Stephanie’s

death, or any suicidal behavior, was never established.

The trial court further found the photographs had potential to mislead

the jury and confuse the issues. In comparison, we point to Stephanie’s letter

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to Appellant describing her struggle with depression. The letter was admitted

and clearly relevant to helping the jury answer the question of whether

Stephanie’s death was homicide or suicide. Any probative value of the two

photographs was greatly exceeded by their prejudicial effect.

The trial court did not abuse its discretion in disallowing Appellant to

admit these photographs into evidence.

C. Denial of Mistrial Motion

Last, Appellant asserts the trial court erred in failing to grant a mistrial

when it was discovered that Stephanie’s autopsy report had been left in the

courtroom and not included with the other trial exhibits provided to the jury

during deliberations. The autopsy report included deputy medical examiner

Dr. Arabadjief’s cause and manner of death findings, a wound location drawing

he prepared as part of the autopsy, and Stephanie’s toxicology lab results.

Following guilt/innocence deliberations, the autopsy report was found on a

podium in the courtroom and Appellant moved for a mistrial.

After considering Appellant’s motion and the Commonwealth’s response,

the trial court noted the jury had heard all pertinent information contained in

the report and had not asked to see the report during deliberations. Finding

no manifest necessity had occurred, the trial court overruled the motion.

Appellate review of a trial court’s decision concerning a mistrial is

generally one of deference.

It is well established that the decision to grant a mistrial is within
the trial court’s discretion, and such a ruling will not be disturbed
absent a showing of an abuse of that discretion. Moreover, a

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 mistrial is an extreme remedy and should be resorted to only when
there is a fundamental defect in the proceedings and there is a
manifest necessity for such an action. The occurrence complained
of must be of such character and magnitude that a litigant will be
denied a fair and impartial trial and the prejudicial effect can be
removed in no other way.

Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (internal quotations

and citations omitted) (emphasis added).

“[A] finding of manifest necessity is a matter left to the sound discretion

of the trial court.” Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000).

Further, “[a]lthough a trial court is vested with discretion in granting a mistrial,

the power to grant a mistrial ought to be used sparingly and only with the

utmost caution, under urgent circumstances, and for very plain and obvious

causes.” Id. at 685.

Appellant claims jury deliberations were impeded when the autopsy

report did not accompany the jury. According to Appellant, the jury not having

the report meant Stephanie’s lab report showing methamphetamine in her

urine was not available for the jury’s review, and, therefore, the jury was less

likely to infer that the location of a bruise on Stephanie’s face was possibly

caused by falling after she was shot instead of from Appellant assaulting her.

Appellant asserts a real and tangible prejudice resulting in a manifest necessity

for a mistrial occurred, and there was no other remedy for the report being left

on the podium during deliberations.

A review of Dr. Arabadjief’s testimony supports the trial court’s

determination that the pertinent evidence contained in the report had been

presented at trial. Addressing Appellant’s specific concerns, the record reveals
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Dr. Arabadjief testified about the methamphetamine in Stephanie’s urine and

opined she was not under the influence at the time of her death, but she had

used meth at some point. During cross examination, Appellant elicited from

Dr. Arabadjief that the bruise on Stephanie’s forehead was consistent with a

forward-facing fall from a standing position. In closing argument, Appellant

reminded the jury about the methamphetamine present in Stephanie’s urine

and about the fall being a possible source for the facial bruise.

The Commonwealth asserts any error concerning the report remaining in

the courtroom was harmless. Defining harmless error, RCr 9.24, reads in

pertinent part:

no error or defect . . . in anything done or omitted by the court or
by any of the parties, is ground for . . . disturbing a judgment . . .
unless it appears to the court that the denial of such relief would
be inconsistent with substantial justice. The court at every stage
of the proceeding must disregard any error or defect in the
proceeding that does not affect the substantial rights of the parties.
In this case, the two grounds raised by Appellant were subjects of

Dr. Arabadjef’s testimony before the jury; and as the trial court noted, the

jury did not ask to see the report while deliberating. We conclude that any

error in leaving the report on the podium during deliberations was

harmless.

Furthermore, there is not a plain and obvious cause for a mistrial, and

as such, any error resulting from leaving the autopsy report in the courtroom

did not create a manifest necessity for a mistrial. We hold the trial court did

not abuse its discretion when denying Appellant’s motion for a mistrial.

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 III. CONCLUSION

For the foregoing reasons, we affirm Appellant’s convictions and

corresponding sentences.

All sitting. All concur.

COUNSEL FOR APPELLANT:

John A. Combs
Combs Law, PLLC

COUNSEL FOR APPELLEE:

Daniel Jay Cameron
Attorney General of Kentucky

Perry Thomas Ryan
Assistant Attorney General

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