RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0145-MR
ANDRE MORRIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 17-CR-002628
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.
CALDWELL, JUDGE: Appellant Andre Morris (“Morris”) appeals as a matter of
right from his conviction on one count of assault in the fourth degree and his
resultant six-year sentence of imprisonment. We hold that the trial court
committed errors which implicated the fundamental fairness of the trial and reverse
and remand this matter back to the Jefferson Circuit Court.
FACTS
Morris had recently moved back to his native Louisville from Atlanta,
where he had moved as a young person. He had been dating a woman named
Tracy. In August of 2017, Tracy asked him to spend the night at her apartment
because she had a job interview the next morning and needed him to give her a ride
to the interview. He did so, and after her interview Morris took her back to the
apartment and left for work.
After work, Morris returned to Tracy’s apartment. He had stopped by
the bank earlier to cash his paycheck and had quite a bit of cash in his pocket. He
knocked on the door, but there was no answer, and there was no vehicle in the
driveway. Looking through the window in her front door, he saw a man in her
apartment. Though Morris did not know the man, his name was Brian Simmons
(“Simmons”). Morris tried to call Tracy, but she did not answer.
Morris went to his car, parked outside her apartment, and planned on
waiting, thinking Tracy must not be home. While waiting he saw a man named
Roger Little (“Little”), with whom he had previously had an altercation, walking
toward the apartment building. At their prior and only meeting, Little had been
threatening toward Morris and Tracy, but he had left quickly once Morris brought
out his legally-carried handgun and fired a shot in the air. Not wanting a repeat of
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that incident, Morris started his vehicle and left to go get a soft drink at a nearby
convenience store.
When Morris returned a bit later, an unfamiliar truck was now in the
driveway, and he saw no sign of Little. Figuring Tracy had been in the truck and
was now home, he approached the building, thinking he would retrieve belongings
which he had left in Tracy’s apartment. Morris knocked on the front door. There
was still no answer, despite the presence of the truck in the driveway. After
persistent knocking, Tracy came to the door and looked through the glass at
Morris. He could see Simmons still in the apartment and saw him bend down as if
he were reaching for something. At that moment, Little appeared from the side of
the building, startling Morris. Fearing he had been set up and knowing he had a
large amount of cash on him, Morris began to remove his gun from his pocket
when it became tangled with his keys and fired.
The bullet hit the window of the front door of Tracy’s apartment and
grazed her scalp. Little fled. Morris entered the apartment, grabbed his belongings
and left. He found out only later that the bullet had grazed Tracy’s scalp.
Tracy didn’t realize at first that she had been hit by the bullet, but
once she did, she went to the hospital. She was admitted and hospitalized for three
days, discharged with directions to take antibiotics, and given a prescription for
Tylenol with codeine for pain.
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Morris later found out that the bullet had hit Tracy. He hired an
attorney and made preparations to turn himself in to the police; however, he was
arrested before he could do so. He was charged with attempted murder, assault in
the first degree and burglary in the first degree.
After a trial, he was convicted only of assault in the second degree and
was acquitted of all other charges. He was sentenced to six years of imprisonment.
He appealed to this Court as a matter of right. Finding multiple prejudicial errors
were committed by the trial court, we reverse and remand.
ANALYSIS
1. Instruction on Assault in the Fourth Degree
a. Standard of Review
The first alleged error concerns whether the trial court erred when it
refused to instruct the jury on assault in the fourth degree as a lesser-included
offense of assault in the first degree. Issues concerning whether a trial court has
properly declined to instruct the jury as requested are reviewed for an abuse of
discretion.
A decision to give or to decline to give a particular jury
instruction inherently requires complete familiarity with
the factual and evidentiary subtleties of the case that are
best understood by the judge overseeing the trial from the
bench in the courtroom. Because such decisions are
necessarily based upon the evidence presented at the trial,
the trial judge’s superior view of that evidence warrants a
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measure of deference from appellate courts that is
reflected in the abuse of discretion standard.
Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015).
b. Analysis
This issue was preserved for our review by Morris’ request for
instructions on the offense of assault in the fourth degree as a lesser-included
offense of the charged offense of assault in the first degree. The trial court denied
the request, reasoning that because the method of assault involved a dangerous
weapon or deadly instrument, to wit, a handgun, an assault in the fourth degree
instruction would not be appropriate, holding that it was not possible for a person
to commit assault in the fourth degree whilst using a deadly weapon.
The trial court is simply incorrect on the law. The statute clearly
provides that if a person acts recklessly and causes injury to another by means of a
deadly weapon or dangerous instrument, such can be assault in the fourth degree.
Kentucky Revised Statutes (“KRS”) 508.030. As the Kentucky Supreme Court has
observed, as long as there is proof to support a jury finding that the accused acted
recklessly, the instruction should be given if requested:
Appellant could not have been convicted of assault in the
fourth degree absent evidence that when he struck
McCreary, he was acting recklessly, KRS 508.030(1),(2),
i.e., that he failed to perceive the risk that McCreary
would be injured as a result of being struck in the head
with the rifle. KRS 501.020(4). An instruction on a
lesser included offense requiring a different mental state
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from the primary offense is unwarranted unless there is
evidence supporting the existence of both mental states.
Taylor v. Commonwealth, 995 S.W.2d 355, 362 (Ky. 1999).
We review that question as we would any issue concerning
sufficiency of evidence, in a light most favorable to the party requesting the
instruction, here Morris. “[O]n claim of error in failing to give requested jury
instruction, appellate court reviews evidence in light most favorable to party
requesting instruction.” Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky.
2005) (citing Ruehl v. Houchin, 387 S.W.2d 597 (Ky. App. 1965)). Thus, if
Morris presented sufficient evidence that he acted recklessly, he was entitled to the
instruction on assault in the fourth degree.
A person acts recklessly with respect to a result or to a
circumstance described by a statute defining an offense
when he fails to perceive 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
failure to perceive it constitutes a gross deviation from
the standard of care that a reasonable person would
observe in the situation.
KRS 501.020(4).
Morris testified that he never intended to harm Tracy, and both she
and Simmons testified that Morris never aimed the gun at either of them. We hold
that, based upon this evidence, it would not have been unreasonable for a juror to
find that Morris was reckless in placing a loaded handgun in his pocket with an
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instrumentality (keys) which could cause it to discharge or that he was reckless in
not removing the gun from his pocket in a way which ensured that it would not
fire.
It is error not to instruct a jury on a lesser-included offense “if the
evidence is such that a reasonable juror could doubt that the defendant is guilty of
the crime charged, but conclude that he is guilty of the lesser-included offense.”
Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995), as modified on denial
of reh’g (Aug. 24, 1995) (citing Luttrell v. Commonwealth, 554 S.W.2d 75, 78
(Ky. 1977)). “Furthermore, the trial court’s failure to give a necessary lesser-
included offense instruction cannot be deemed a harmless error.” Commonwealth
v. Swift, 237 S.W.3d 193, 196 (Ky. 2007). “Refusal to allow such an instruction,
when supported by the evidence presented, constitutes reversible error.” Webb,
904 S.W.2d at 229. The error was prejudicial, and the judgment is reversed for a
new trial wherein Morris is to receive an instruction on fourth-degree assault as a
lesser-included offense.
2. Self-defense and Imperfect Self-defense Instruction
a. Standard of Review
This allegation of error concerns whether the trial court erred in
refusing to instruct the jury concerning self-protection, after first indicating that it
would so instruct. When the question concerns whether the trial court erred in
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giving an instruction it should not have given, or failed to give an instruction which
the evidence reveals should have been given, the proper standard of review is
abuse of discretion. Sargent, 467 S.W.3d at 203.
b. Analysis
Morris alleges that the trial court erred in refusing to instruct the jury
on self-defense or imperfect self-defense. We agree.
At the outset, we note that Morris indicates in his brief that self-
protection instructions were tendered by the defense so as to preserve this issue for
appellate review. No such tendered instructions can be found, however, in the
record. The video clearly shows defense counsel approach the bench and tender
instructions during a discussion about the propriety of instructing the jury on self-
protection.
There is a manila envelope in the record marked “Jury Instructions,”
but the envelope does not indicate who tendered the enclosed proposed
instructions. Further, the instructions in that envelope do not contain any self-
protection instructions and are date stamped “May 30, 2018”; the discussion
concerning self-protection instructions and the tender of proposed instructions by
defense counsel occurred on the record on June 1, 2018. Clearly, the proposed
instructions were not properly included in the record. However, the
Commonwealth does not question the preservation of this alleged error, and the
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discussion of the instruction on the record makes clear the wording of the proposed
instructions requested by the defense. We mention this simply to underscore the
importance of ensuring that proposed instructions tendered by counsel be included
in the record for the review of the appellate court. In this case, the video record
supports the allegation of preservation, but in many cases, the tender may not be
made in open court and would not appear on the record.
During the discussion concerning instructions, at the close of the
proceedings on May 31, 2018, the trial court first indicated that it would instruct
the jury on self-defense. The missing tendered instructions were handed to the trial
court the next morning, and the prosecution agreed that Morris’ testimony
supported the giving of the instruction. Overnight, however, the trial court had
apparently changed its mind and announced that it would not give the instruction
because, it reasoned, accident and self-defense were “mutually exclusive
concepts.” The trial court expressed that because Morris was outside of the house
of another, namely Tracy, he was not entitled to act in self-defense, which is an
incorrect statement of the law. The “stand your ground” law, KRS 503.055, and
the general self-protection statute, KRS 503.050, are disparate statutes. Morris
apparently never requested the KRS 503.055 instruction, so the trial court’s
conclusion that it does not apply is erroneous.
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The self-protection statute at issue here is not the “stand your ground”
or “Castle Doctrine” instruction, but rather, the old-fashioned, common law
grounded self-defense.
The self-protection statute, KRS 503.050(1), bases the
self-defense justification on the subjective standard; that
is, the defendant’s use of force is justifiable if he actually
believes, correctly or incorrectly, that force is necessary
to protect himself from an attack from another person. In
contrast, the common law “no duty to retreat” rule and its
statutory successor, KRS 503.055(3), predicate a
defendant’s right to stand his ground and “meet force
with force” without retreating from an aggressor on the
objective standard; that is, when the defendant
“reasonably believes” that such force is necessary. Thus,
under the statutory language, one’s actual belief that his
use of defensive force was necessary will preclude a
murder conviction, but he can only avail himself of the
“no duty to retreat rule” if his belief was objectively
reasonable.
Theoretically then, as the Commonwealth’s
argument goes, a defendant who truly holds an
unreasonable belief that his use of defensive force is
necessary for his own protection is not entitled to avail
himself of the “no duty to retreat” doctrine. The
Commonwealth harmonizes these differing statutory
standards with an argument that produces this result: the
availability of an avenue of escape would not be relevant
in the jury’s consideration of the murder charge, where
refuting the defendant’s actual (subjective) belief in the
need to act in self-defense is an essential element, but it
would become relevant to the lesser charge of reckless
homicide, where the jury must consider whether the
defendant’s mistaken belief in the need to act in self-
defense was a gross deviation from the reasonable person
(objective) standard.
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Commonwealth v. Hasch, 421 S.W.3d 349, 362 (Ky. 2013).
We hold that Morris was entitled to instructions on self-protection and
imperfect self-protection. If the jury had been instructed on self-protection and
believed Morris was entitled to act in self-protection, it would have found him not
guilty under the instructions.
If it had been properly instructed, the jury could have alternatively
reasonably found that he was reckless in his belief that he needed to protect
himself from either Little or Simmons and that belief led him to retrieve his gun
from his pocket, which then accidentally fired when the trigger caught on his keys.
Under the imperfect self-defense theory of reckless
homicide, the defendant knows that his conduct could
cause another person’s death and he actually believes that
the use of force is necessary to protect himself from
another person. The element of recklessness is supplied
by his failure to perceive a substantial and unjustifiable
risk that his belief in the need to use force is mistaken.
Id. at 356 (citations omitted).
The model instruction reads:
You will find the Defendant guilty of Fourth-Degree
Assault under this Instruction if, and only if, you believe
from the evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about _________ (date) and
within 12 months before the finding of the Indictment
herein, he caused physical injury to ___________
(victim) by _________________ (method);
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AND
B. That the ______ (ID weapon) was a dangerous
instrument as defined under Instruction No. ___;
C. That in so doing he acted recklessly or as described in
D.2 of this Instruction.
AND
D. That in so doing:
(1) He was not privileged to act in self-protection.
OR
(2) Though otherwise privileged to act in self-
protection, the Defendant was mistaken in his
belief that it was necessary to use physical
force against ________________ (victim) in
self-protection, or in his belief in the degree of
force necessary to protect himself and when
the defendant cause physical injury to
_______ (victim), he failed to perceive a
substantial and unjustifiable risk that he was
mistaken in that belief, and that his failure to
perceive that risk constituted a gross deviation
from the standard of care that a reasonable
person would have observed in the same
situation.1
The Commonwealth argues that KRS 503.120 precludes the giving of
a self-protection instruction here because Tracy was an “innocent party.”
When the defendant is justified under KRS 503.050 to
503.110 in using force upon or toward the person of
1
1 Cooper, Kentucky Instructions to Juries, Criminal § 11.09 (5th ed. 2011).
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another, but he wantonly or recklessly injures or creates a
risk of injury to innocent persons, the justification
afforded by those sections is unavailable in a prosecution
for an offense involving wantonness or recklessness
toward innocent persons.
KRS 503.120(2).
We are unpersuaded by the Commonwealth’s argument, which seeks
to reduce its burden of proof. First, in this case under these facts, it is a matter of
fact for the jury to decide whether Tracy was, indeed, an innocent party, and such
determination is not a matter of law for the court to decide. By substituting its
judgment for that of the jury on this question, the trial court denied Morris his right
to trial by jury. The jury should have been instructed that if they believed that
Morris acted recklessly or wantonly and that Tracy was an innocent third person,
such findings would preclude finding that Morris acted in self-protection.
It does not appear that either this Court or the Kentucky Supreme
Court has ever addressed the question of whether a victim was an “innocent
bystander” pursuant to KRS 503.120(2). However, it is a fundamental
constitutional precept that trial by jury requires that the jury make factual
determinations.
Indeed, in Short v. Commonwealth, 519 S.W.2d 828, 833
(Ky. 1975), this Court quoted at length from Patton v.
United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed.
854 (1930), to emphasize the fundamental importance of
the jury as the fact-finder in a criminal matter.
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Trial by jury is the normal and, with occasional
exceptions, the preferable mode of disposing of
issues of fact in criminal cases above the grade of
petty offenses. In such cases the value and
appropriateness of jury trial have been established
by long experience, and are not now to be denied.
Not only must the right of the accused to a trial by
a constitutional jury be jealously preserved, but the
maintenance of the jury as a fact finding body in
criminal cases is of such importance and has such
a place in our traditions, that, before any waiver
can become effective, the consent of government
counsel and the sanction of the court must be had,
in addition to the express and intelligent consent of
the defendant.
Commonwealth v. Eckerle, 470 S.W.3d 712, 724-25 (Ky. 2015).
The Kentucky Supreme Court has had occasion to discuss KRS
530.120(2), but it has never declared that the question of the innocence of a
bystander is a factual question for the jury. In Phillips v. Commonwealth, the
Supreme Court considered a case in which the appellant argued the trial court had
erred in not providing a self-protection instruction. 17 S.W.3d 870 (Ky. 2000). In
that case, the appellant and another man had been shooting at one another whilst
the latter man was fleeing, driving a vehicle in which the victim was a passenger.
In affirming the trial court, the Supreme Court determined, the “statute precludes
an instruction on self-protection if the defendant’s wanton or reckless use of deadly
force caused the death of an innocent person. Thus, Phillips was not entitled to an
instruction on self-protection as a defense to the wanton murder of [the passenger
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in the vehicle].” Id. at 875-76. The Supreme Court engaged in no analysis as to
whether the jury should determine whether a victim is an “innocent bystander” as it
does not appear that question was presented to the Supreme Court for
determination.
In Commonwealth v. Caudill, the Supreme Court, citing Phillips, did
not directly address whether the determination that one is a innocent bystander is a
question of fact for a jury. 540 S.W.3d 364, 368 (Ky. 2018). In Caudill, the facts
clearly established that the victims were uninvolved in the squabble and were
placed in danger while in their home, which was hit by bullets, thus subjecting
them to wanton endangerment. The Supreme Court noted that the trial court had
erred in instructing the jury that it had to find that the defendant was not entitled to
act in self-protection before finding him guilty of wanton endangerment.
However, the Supreme Court held the error was harmless as the jury had found
him guilty even under this heightened standard. Id. Again, there was no analysis
of whether, upon close facts, the determination of “innocent bystander” is a jury
question.
Recently, this Court determined in the unpublished matter of Gilbert
v. Commonwealth, that given close facts, it was error not to instruct the jury on
self-protection as to wanton endangerment as to two persons who could have been
determined to have either been participants in the events or “innocent bystanders.”
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No. 2019-CA-0511-MR, 2020 WL 4555821 (Ky. App. Aug. 7, 2020).2 In so
doing, this Court held,
There was conflicting evidence as to who was the
initial aggressor and whether Zacari and Lorenzo were
innocent bystanders. Although it was undisputed that
Gilbert accompanied Lindsey to the Amacher home for
the purpose of Lindsey to engage in an altercation with
Ronnie, Gilbert testified that he did not intend to fight
anyone. Contrary to the Commonwealth’s assertion that
Gilbert was a trespasser on the Amacher property when
he fired his handgun, the evidence does not support that
factual assertion. The witnesses testified that Gilbert was
in the street when he fired his gun.
We cannot say that the omitted instructions on the
wanton endangerment counts were harmless. As noted,
the trial court did instruct on self-protection and
imperfect self-protection as to the assault charge. The
jury found Gilbert guilty of assault in the second degree
based on those instructions. Therefore, given that the
offenses charged occurred at the same time, it is more
than possible that Gilbert was prejudiced by the failure to
give the requested instructions.
Id. at *6.
2
“Clearly, unpublished cases are not binding precedent. Estate of Wittich By and Through
Wittich v. Flick, 519 S.W.3d 774, 779 (Ky. 2017); CR 76.28(4)(c).” Kendall v. Godbey, 537
S.W.3d 326, 335 (Ky. App. 2017). However, we may consider Gilbert as persuasive authority.
CR 76.28(4)(c).
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There being no Kentucky precedent on this question, we turn to the
jurisprudence of our sister states to guide our analysis. Texas has a substantially
similar provision to KRS 503.120(2):
Even though an actor is justified under this chapter in
threatening or using force or deadly force against
another, if in doing so he also recklessly injures or kills
an innocent third person, the justification afforded by this
chapter is unavailable in a prosecution for the reckless
injury or killing of the innocent third person.
Tex. Penal Code § 9.05.
In Dugar v. State, the accused had shot toward persons pursuing him
and his wife in an open-air Jeep, killing an occupant of one of the pursuing
vehicles. 464 S.W.3d 811 (Tex. App. Crim. App. 2015). The question was
whether the decedent, a passenger in a pursuing vehicle, was an “innocent
bystander” after the trial court had refused to instruct the jury on self-protection,
citing the above statute as preclusive of the instruction. Reversing the trial court,
the Texas Court of Appeals determined whether the decedent was an “innocent
bystander” was “a fact question as to whether the complainant was an innocent
bystander.” Id. at 819. Further, the Court ruled, the question of whether the
appellant acted “recklessly” was itself a question of fact, such that the jury should
be instructed that if it found his actions reckless and found the decedent to be an
innocent bystander, then it should find the defendant was not privileged to act in
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self-protection. “Whether a person acts recklessly is a determination that can be
made only by the finder of fact, which in this case was the jury.” Id.
It is axiomatic that the prosecution must be held to its burden of proof
on each and every element of the crimes for which the jury is to determine guilt or
innocence of the accused.
It is now elementary that the burden is on the government
in a criminal case to prove every element of the charged
offense beyond a reasonable doubt and that the failure to
do so is an error of Constitutional magnitude.”
Lest there remain any doubt about the
constitutional stature of the reasonable-doubt
standard, we explicitly hold that the Due Process
Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with
which he is charged.
Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002) (citing In re Winship,
397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)).
Additionally, it was for the jury to determine if Morris’ actions were,
in fact, reckless once determining Tracy was an “innocent bystander.” Had the
model instruction been given and adopted to the facts of this case, the jury would
have had the option to find that Tracy was not an “innocent bystander,” and thus,
Morris was entitled to act in self-protection, but that he was mistaken in the belief
he needed to use physical force in self-protection, OR that he failed to recognize a
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risk and was therefore reckless in his actions, and that he injured an innocent third
party in so doing.
If the jury had been instructed on imperfect self-defense, as we find it
should have been, it could have found Morris guilty of assault in the fourth degree,
rather than assault in the second degree.
“Imperfect self defense” does not provide for complete
exoneration, but instead allows a jury to convict a
defendant for a lesser offense, one for which wantonness
or recklessness is the culpable mental state. [Elliott v.
Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998)],
Therefore, if the charged offense is first-degree assault, a
wantonly held belief in the need for self-protection
reduces the offense to second-degree assault and a
recklessly held belief reduces the offense to fourth-
degree assault.
Davis v. Commonwealth, No. 2008-SC-000406-MR, 2009 WL 4251646, at *3 (Ky.
Nov. 25, 2009).
A trial judge must prepare and give instructions on the whole law of
the case, including instructions on a lesser-included offense, if supported by the
evidence. Kentucky Rules of Criminal Procedure (“RCr”) 9.54; Houston v.
Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998); see also Perry v.
Commonwealth, 839 S.W.2d 268, 272 (Ky. 1992). “An instruction on a lesser
included offense is required only if, considering the totality of the evidence, the
jury might have a reasonable doubt as to the defendant’s guilt of the greater
offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser
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offense.” Houston, 975 S.W.2d at 929 (citing Wombles v. Commonwealth, 831
S.W.2d 172, 175 (Ky. 1992)).
Upon remand, if again requested by Morris, the jury should be
instructed on self-protection.
3. Character Evidence
a. Standard of Review
Rulings on admissibility of evidence are reviewed for an abuse of
discretion. “An appellate court’s standard of review for admission of evidence is
whether the trial court abused its discretion.” Brewer v. Commonwealth, 206
S.W.3d 313, 320 (Ky. 2006) (citing Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999)).
b. Analysis
1. Medical Evidence
Morris raises several issues involving character evidence concerning
Tracy which the trial court ruled not admissible on the grounds of relevance.3 We
will address each issue separately.
3
“ʻRelevant evidence’ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Kentucky Rules of Evidence (“KRE”) 401.
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To begin, Morris sought to introduce evidence about Tracy’s level of
intoxication and drug use on the night of the incident, hoping to implicate her
ability to perceive and recall so that the jurors might doubt the reliability of her
testimony. The defense entered medical evidence gathered at the hospital when
she was treated for the scalp laceration caused by the bullet by avowal, thereby
properly preserving the issue for our review.4 In summary, the defense presented
the avowal testimony of the Commonwealth’s medical expert, William Smock
M.D.,5 who reviewed the hospital records. Dr. Smock testified outside the
presence of the jury that Tracy had tested positive for opiates and cocaine and had
a blood alcohol level of .058. He further testified that it appeared that such a low
level of alcohol intoxication would not likely affect memory and it was likely that
the opiates were given in treatment, but he acknowledged that the cocaine was not
administered therapeutically.6
4
KRE 103. “We find no such exception to the avowal requirement and reiterate today the
holding we reached in Partin–an alleged error in the trial court's exclusion of evidence is not
preserved for appellate review unless the words of the witness are available to the reviewing
court.” Commonwealth v. Ferrell, 17 S.W.3d 520, 524 (Ky. 2000) (citing Partin v.
Commonwealth, 918 S.W.2d 219, 223 (1996)).
5
Dr. Smock is an emergency and forensic physician and was under contract with Louisville
Metro Government as a police surgeon.
6
Dr. Smock testified by avowal that the positive screen for opiates could have reflected pain
medications administered in hospital, rather than substances taken prior to the shooting.
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Tracy had acknowledged using cocaine the night of the incident
during her testimony. While being questioned, Tracy had difficulty recalling
specifics. As the Commonwealth acknowledges in its brief, the Supreme Court has
held that “[e]vidence of a witness’ prior drug use may be admitted insofar as it
relates to his possible inability to recollect and relate.” Cantrell v. Commonwealth,
288 S.W.3d 291, 296 (Ky. 2009) (citing United States v. Majica, 185 F.3d 780 (7th
Cir. 1999)). The Commonwealth argues that the instances of Tracy’s lack of
recollection did not relate to the shooting itself, but it cites no authority that such a
delineation would render the evidence irrelevant.
Relevant evidence is evidence which tends to prove a consequence of
fact. “This standard is powerfully inclusionary and is met upon a showing of
minimal probativeness.”7 Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky.
2015), as modified (May 5, 2016), as corrected (Nov. 14, 2016).
At retrial, should Morris desire to introduce the medical evidence
concerning Tracy’s cocaine use the night of the incident, which she herself
acknowledged, he should be allowed to do so after laying a proper foundation.
The right of an accused in a criminal trial to due process
is, in essence, the right to a fair opportunity to defend
7
See Lawson, THE KENTUCKY EVIDENCE LAW HANDBOOK § 2.05(2)(b) (LexisNexis Matthew
Bender) (“The inclusionary thrust of the law of evidence is powerful, unmistakable, and
undeniable, one that strongly tilts outcomes toward admission of evidence rather than
exclusion.”).
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against the State’s accusations. This right, often termed
the “right to present a defense,” is firmly ingrained in
Kentucky jurisprudence, and has been recognized
repeatedly by the United States Supreme Court. An
exclusion of evidence will almost invariably be declared
unconstitutional when it significantly undermines
fundamental elements of the defendant’s defense.
Dickerson v. Commonwealth, 174 S.W.3d 451, 471 (Ky. 2005) (emphasis added)
(citing Beaty v. Commonwealth, 125 S.W.3d 196, 206-07 (Ky. 2003)).
It 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).
2. Reputation for Truthfulness
The second issue of relevant evidence relating to Tracy concerns the
trial court’s ruling preventing the introduction of evidence of Tracy’s reputation for
truthfulness, or more particularly, her lack of truthfulness through defense witness
Quantez Gibson (“Gibson”).
Upon defense counsel’s attempting to elicit testimony from Gibson,
who knew both Tracy and Morris, about Tracy’s general reputation for
truthfulness, the Commonwealth objected, arguing that such is not relevant in a
case involving an allegation of self-defense. Putting aside the fact that the trial
court’s evidentiary ruling discussed supra eviscerated the self-defense claim, such
was an incorrect statement of the law. Further, it was not an appropriate response
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as one of the main contested issues in the trial was whether Little actually was on
the scene. The Commonwealth insisted through Tracy’s and Simmons’ testimony
that he was not, while Morris testified that he did see him and his presence was a
major factor in Morris fearing for his safety and pulling the gun from his pocket.
Thus, Tracy’s believability as a witness was key. The trial court ruled the evidence
about her reputation for truthfulness not admissible. We hold that ruling was in
error.
It must be remembered that the defense Morris presented centered on
the fact that he was alerted and suspicious that he was being set up to be robbed of
the cash he had on him from cashing his paycheck and so when he saw Little and
observed Simmons reach for something when he was on the porch, he feared for
his personal safety. Disallowing him to present evidence that he had valid reason
to suspect that Tracy was capable of such a scheme and that her testimony was not
believable eviscerated his defense. The trial court’s error in disallowing Morris’
claim of self-defense by not properly instructing the jury was compounded by its
ruling that the character evidence was not relevant given his claim of self-defense.
The credibility of a witness testifying to relevant evidence is always at
issue. Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997). Further, this
erroneous ruling abridged Morris’ right to present a defense. Dickerson v.
Commonwealth, supra; McGregor v. Hines, supra. On retrial, the admissibility of
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evidence of Tracy’s reputation for untruthfulness should be evaluated anew,
consistent with this Opinion.
3. Specific Instances of Conduct
Last, the trial court refused to allow the defense to present evidence of
specific instances of conduct of Tracy pursuant to KRE 608. The evidence
involved a trip to a Kroger store after the shooting wherein Tracy alleged she
became anxious and afraid after she thought she saw Morris in the store.
Expressing fear, she approached an employee and asked for assistance to be
escorted to her vehicle, telling the employee she had seen the man in the store who
had shot her some time before. Tracy then left the store, escorted, without paying
for the groceries in her cart. She was later charged with theft by unlawful taking
for the incident. At Morris’ trial, she claimed to have difficulty remembering the
Kroger incident or being charged with theft, even after watching the video outside
of the presence of the jury. The Commonwealth stipulated that Morris was not in
the store at that time, implicating Tracy’s honesty. The defense questioned her
about other instances of shoplifting in her past, and she was likewise loath to
provide cogent testimony in response to these questions.
Theft offenses directly bear on a person’s propensity to be truthful.
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’
credibility, other than conviction of crime as provided in
Rule 609, may not be proved by extrinsic evidence.
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They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness: (1) concerning
the witness’ character for truthfulness or untruthfulness,
or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character
the witness being cross-examined has testified. No
specific instance of conduct of a witness may be the
subject of inquiry under this provision unless the cross-
examiner has a factual basis for the subject matter of his
inquiry.
KRE 608(b).
To be admissible under KRE 608, the evidence must be probative of
truthfulness or untruthfulness. Extrinsic evidence is not allowed to challenge the
testimony of a witness being subjected to cross-examination about his or her
truthfulness, but KRE 609 does allow evidence of convictions.
General rule. For the purpose of reflecting upon the
credibility of a witness, evidence that the witness has
been convicted of a crime shall be admitted if elicited
from the witness or established by public record if denied
by the witness, but only if the crime was punishable by
death or imprisonment for one (1) year or more under the
law under which the witness was convicted. The identity
of the crime upon which conviction was based may not
be disclosed upon cross-examination unless the witness
has denied the existence of the conviction. However, a
witness against whom a conviction is admitted under this
provision may choose to disclose the identity of the crime
upon which the conviction is based.
KRE 609(a).
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Thus, extrinsic evidence is admissible if a witness denies having been
convicted. When Tracy denied that she had walked out of Kroger with unpaid
merchandise after falsely telling an employee that the man who had shot her
previously was in the store and testified that she did not even remember the event
for which she was eventually charged and convicted, the defense should have been
entitled to confront her with the conviction under KRE 609.
Because the jurors’ opinion of Tracy’s veracity was relevant to their
duty in determining which testimony to credit, such was error. On retrial, the trial
court should be mindful of KRE 608 and KRE 609 and rule accordingly,
depending upon the testimony offered. See generally Allen v. Commonwealth, 395
S.W.3d 451 (Ky. 2013).
4. Exclusion of Evidence Relating to Level of Injury.
a. Standard of Review
As stated supra, rulings on admissibility of evidence are reviewed for
an abuse of discretion.
b. Analysis
The penultimate assignment of error involves the same videotape
evidence from Tracy’s later shopping excursion to a local Kroger store after which
she was charged with theft for shoplifting. The defense argued that it should also
be able to show portions of the surveillance video obtained from the store to show
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that Tracy had no apparent problems with vision, which she alleged in her
testimony stemmed from the bullet which grazed her scalp and which the
Commonwealth employed as proof of serious physical injury. The defense argued
that the video would assist the jury in determining whether the injury Tracy
suffered was a physical injury or a serious physical injury, a determination
necessary given the crimes charged.
As the jury was instructed, after determining Morris was not guilty of
attempted murder or assault in the first degree assault, it was left only with the
options of acquitting him completely or finding him guilty of second-degree
assault, which it did.8 The jurors were not required to delineate under which theory
of second-degree assault they found the evidence satisfied; the jury could have
found Morris guilty either because he intentionally caused physical injury to Tracy
or because he wantonly caused serious physical injury to Tracy. Thus, it is not
clear whether the jury was convinced that Tracy was seriously injured as it could
have found Morris intentionally caused her only physical injury.
In any event, the video evidence of Tracy shopping, excluding any
portions of the video showing the theft occurrence, was relevant evidence which
8
We have already determined supra that the trial court erred in not instructing the jury on the
whole law of the case in failing to instruct on fourth-degree assault as a lesser-included
instruction, so we will analyze this assignment of error considering not only the instructions
which were given the jury, but also as to the missing fourth-degree assault instruction.
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went to the question of whether there were lasting effects of the injury she
received. The Jury Instructions provided the following definition of “serious
physical injury:”
[P]hysical injury which creates a substantial risk of death,
or which causes serious and prolonged disfigurement,
prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ.
Therefore, the jury was expressly charged with determining whether
Tracy’s injuries were serious. Because of this duty, the evidence of her ability to
shop was relevant, particularly when Tracy had previously told treating medical
professionals that she had no vision problems. The relevance of the video is also
implicated by the excluded evidence of Tracy’s truthfulness as it is objective
evidence wherein she was in her “natural” state, as she was not intent on
convincing a trier of fact as to her ongoing quality of vision.
Questions of admissibility start with KRE 401, which
permits evidence “having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less
probable than it would be without the evidence.”
Burchett v. Commonwealth, 98 S.W.3d 492, 496 (Ky. 2003).
If the jury believed Tracy’s injury was not a serious physical injury,
and that Morris was reckless and that he was either not entitled to act in self-
protection or engaged in imperfect self-defense, they should have found him guilty
not of second-degree assault, but fourth-degree assault. Thus, by not providing
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relevant evidence on a fact of consequence, i.e., and element of a criminal offense
of which we have found the jury should have been instructed, the trial court erred
to Morris’ prejudice.9 On retrial, all evidence of consequence should be admitted.
5. Prosecutorial Misconduct
a. Standard of Review
The standard of review on allegations of prosecutorial misconduct is
whether the misconduct “was of such an ‘egregious’ nature as to deny the accused
his constitutional right of due process of law.” Slaughter v. Commonwealth, 744
S.W.2d 407, 411 (Ky. 1987). The gravamen is whether the trial was fair overall,
not focusing exclusively on the egregiousness of the misconduct of the
prosecution. Parker v. Commonwealth, 291 S.W.3d 647, 659 (Ky. 2009).
b. Analysis
Because we have found several errors require reversal of Morris’
conviction and have already determined to remand this matter to the trial court for
a new trial absent the prejudicial errors we have identified supra, we will address
this assignment of error only to caution the prosecution to take care not to
comment upon the exercise of an accused’s Sixth Amendment rights in a
pejorative manner. The United States Constitution grants all persons accused of a
9
It should be noted that assault in the fourth degree is a Class A misdemeanor, while assault in
the second degree is a Class C felony.
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crime the right to counsel, and no inference should be invited when a person avails
himself or herself of that right. Counsel should take care not to repeat this
occurrence at retrial. If such occurs, the trial court is reminded of its duty to
admonish the jury upon an instance of improper questioning when such is
requested by the aggrieved party. The Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged. In re Winship, 397
U.S. 358, 364 (1970).
For the foregoing reasons, we hold that the trial court’s errors led to a
fundamentally unfair trial. We reverse Morris’ conviction and remand this matter
to the Jefferson Circuit Court for a new trial.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky
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