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Court of Appeals of Kentucky.


NO. 2010–CA–000796–MR

    Decided: April 06, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  LAMBERT AND THOMPSON, JUDGES.BRIEFS FOR APPELLANT:  Kathleen K. Schmidt Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky



Walter Ray George appeals the McCracken Circuit Court's judgment of conviction following a jury trial on the charges of reckless homicide and being a persistent felony offender in the first degree.   We affirm.

On April 1, 2009, George and his girlfriend Debra Hollowell were driving to his mother's residence located on Park Avenue.   Around this time, Artavius Chunn, Ricky Ragsdell, Devonte Woods, and Ben Pryor left a cookout and proceeded to walk to Ragsdell's residence also on Park Avenue.   When George and his girlfriend arrived at his mother's residence, the couple crossed paths with the group of men.   In the weeks prior to this encounter, George and Chunn had multiple hostile dealings regarding money that George allegedly owed to Chunn.

Although the testimony at trial varied among the witnesses, it is undisputed that George and Chunn exchanged words.   Punches were thrown by one or both parties before George was struck on the head.   George then pulled out a pocket knife and stabbed Chunn in the left side of the chest.   Chunn realized that he had been stabbed and began to leave the scene but collapsed.   Chunn later died.

On May 29, 2009, a McCracken County grand jury indicted George for murder and for being a persistent felony offender in the first degree (PFO–I).   A jury acquitted George of murder but found him guilty of reckless homicide.   George was sentenced to five years in prison, which was enhanced to eighteen years in prison by the PFO–I conviction.

George contends that the trial court erred by precluding Tiffany Ellison from testifying about George's statements at the scene of the stabbing.   According to Ellison's testimony by avowal, she did not observe anything until Chunn was on the ground.   She then walked to the scene where George emerged from his mother's residence several minutes after Chunn's stabbing.   Ellison told George that the victim looked like he was a kid.   George replied, “What was I supposed to do, let him kill me?”   Ellison responded, “With what?”   George then informed Ellison that Chunn had previously pulled a gun on him.

George offered this evidence during his case-in-chief to show why he believed he was justified in using deadly force against Chunn or, in the alternative, under an excited utterance or present state of mind exception to the hearsay rule.   The Commonwealth argued that George was no longer under shock at the time of his statements and, thus, could not admit the statements.   The trial court sustained the Commonwealth's objection and excluded the testimony.

We review a trial court's ruling regarding the admission of evidence for abuse of discretion.  Wiley v. Commonwealth, 348 S.W.3d 570, 580 (Ky.2010).  “An abuse of discretion arises when the court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Id.

In a homicide case, a defendant can introduce evidence of particular violent acts and threats by the alleged victim and evidence of hearsay statements about such acts or threats that show the defendant had a justifiable fear of the victim at the time of their encounter.  Commonwealth v. Davis, 14 S.W.3d 9, 14 (Ky.1999).   When an out-of-court statement is offered for such a purpose, the evidence is not admitted to prove the truth of the matter asserted, but only to show “why the appellant believed it was necessary to use deadly force against the victim.”  Wilson v. Commonwealth, 880 S.W.2d 877, 878 (Ky.App.1994).   If an out-of-court statement is admitted for a purpose other than to prove the truth of the matter asserted, the out-of-court statement does not constitute hearsay evidence.  Slaven v. Commonwealth, 962 S.W.2d 845, 855 (Ky.1997).

In this case, George's out-of-court statements were not hearsay.   The proposed testimony was not intended to prove the truth of the matter asserted, which was that Chunn had pulled a gun on George in the past, but was intended to explain why George believed it was necessary to use deadly force against Chunn.   Therefore, George's out-of-court statements were improperly excluded.

George contends that the trial court erred by precluding him from questioning Detective Matt Smith regarding George's statement to Detective Smith during a police interrogation that Chunn threatened him in the past.   We agree.

During its case-in-chief, the Commonwealth had Detective Smith testify to statements made by George during his police interrogation.   On cross-examination of Detective Smith, George requested to have the detective testify that George told him during interrogation that Chunn had pulled a gun on George on numerous occasions.   The Commonwealth objected arguing hearsay.   The trial court sustained the Commonwealth's objection.

After review of the record, we conclude that the trial court erred by excluding evidence from George's police interrogation which affected why George believed it was necessary to use deadly force against Chunn.  Wilson, 880 S.W.2d at 878.   George's out-of-court statement regarding Chunn pulling a gun on him multiple times was not offered to prove that Chunn in fact pulled a gun on him.   Rather, George's out-of-court statement was offered to establish why he believed it was necessary to use deadly force against Chunn.   Therefore, George's out-of-court statement was not inadmissible hearsay.  Slaven, 962 S.W.2d at 855.

Having concluded that the trial court erred in excluding George's out-of-court statements regarding prior incidents when Chunn pulled a gun on him, we must subject the trial court's errors excluding evidence to harmless error review.   Graham v. Commonwealth, 319 S.W.3d 331, 339 (Ky.2010).   Under this standard, no error in the exclusion of evidence is sufficient to set aside a conviction unless it appears that denying such relief would be inconsistent with substantial justice.  Id.

Ultimately, if it appears that there is a reasonable possibility that the outcome of George's case would have been different with the inclusion the evidence, the trial court's error would be prejudicial requiring the reversal of George's conviction.  Burchett v. Commonwealth, 314 S.W.3d 756, 759 (Ky.App.2010).

After reviewing the evidence in the record, we conclude that the exclusion of George's out-of-court statements were harmless.   During trial, Alesha George, George's niece, testified in great detail regarding the two incidents where Chunn allegedly pulled a gun on George.   Alesha testified that Chunn pulled a gun on George when George was at her Aunt Maddie's house.   She testified that George was cutting down a tree when Chunn emerged yelling threats and waving his gun at George.   She testified that she eventually called the police.

Alesha further testified that she and George were at her mother's house to repair a fence and gutters.   She testified that Chunn arrived and asked George to come outside.   She testified that Chunn then asked George why he called the police on him for the prior incident.   Alesha testified that Chunn then began to walk away with his gun and stated, “I'm going to get you, [George].”   Further, Linda George, George's sister, testified that she observed Chunn threaten George when she and George went to the grocery store.

From this evidence, it is clear that the jury heard detailed evidence regarding past incidents of Chunn approaching George with threats and a gun.   This evidence went to the core of George's claim of self defense, because these past incidents explained why George believed he needed to use deadly force.   While the trial court improperly denied some of George's evidence, the record demonstrates that he was able to introduce ample evidence of Chunn's past acts.   Thus, we conclude that there is no reasonable possibility that the trial court's improper exclusion of George's evidence affected the outcome of his case.

George argues that the trial court's exclusion of his out-of-court statements, regarding Chunn previously accosting him with a gun, violated his constitutional right to present a defense as stated in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).   He argues that the exclusion of his out-of-court statements prevented him from presenting the core of his defense.

In Chambers, the U.S. Supreme Court stated that evidentiary rules excluding hearsay cannot be applied to mechanically defeat the ends of justice where constitutional rights directly affecting the ascertainment of guilt are implicated.  Id. at 302.   However, Chambers is distinguishable from George's case.   First, in Chambers, the defendant was not able to present his only critical evidence because he was not permitted to impeach his own witness.  Paulley v. Commonwealth, 323 S.W.3d 715, 730 (Ky.2010).   Further, the excluded witness's statements were self-incriminating and, thus, made under circumstances showing reliability.  Walker v. Commonwealth, 288 S.W.3d 729, 741 (Ky.2009).

In this case, George was not precluded from presenting his only critical evidence in his defense.   To the contrary, the trial court permitted him to introduce evidence regarding past hostile acts by Chunn, which directly aided his self-defense claim.  Id. (Chambers does not hold that evidentiary rules cannot be applied to properly channel the avenues available for presenting a defense.).   Further, George's statement was not made under circumstances tending to establish reliability.   George's statements were self-serving unlike the witness's statements in Chambers, which were against self interest.   Certainly, statements against self interest are generally more reliable than self-serving statements.   Accordingly, we conclude that George's constitutional right to present a defense was not violated.

George contends that the trial court's PFO–I instruction was erroneous because it invited the jury to reach a non-unanimous verdict.   He argues that three prior felony convictions were admitted against him, but that the Commonwealth only presented evidence proving that one of his convictions violated a provision of KRS 532.080(3)(c)(1)-(3).   Because the Commonwealth did not show that two of his convictions occurred within the five years prior to the date of commission of his reckless homicide offense, George argues that the jury was left to guess if his other convictions were within the five-year window in KRS 532.080(3)(c)(1) and (3).   George concedes that this claim of error was not preserved.

In Grady v. Commonwealth, 325 S.W.3d 333, 355 (Ky.2010), the Kentucky Supreme Court stated the standard of review for unpreserved issues:

To review an error under the palpable error standard, we must find that a manifest injustice has resulted from an error not properly preserved for appeal.  RCr 10.26.   We also require a demonstration that a different outcome would have resulted at trial or evidence of an error so fundamental as to threaten a defendant's entitlement to due process of law.  Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006).   The burden to demonstrate palpable error is high, as a defendant must show that the error involved prejudice more egregious than that occurring in reversible error.  Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky.2006).   Indeed we must make an ultimate finding that the error was shocking or jurisprudentially intolerant.

Martin, 207 S.W.3d at 4.

In order to be convicted of a PFO–I, KRS 532.080 provides that a defendant must be more than twenty-one (21) years of age and stand convicted of a felony after having been convicted of two (2) or more felonies.   With respect to the two or more prior felonies, the PFO–I “statute ․ only requires that completion of service of sentence or discharge from probation or parole on any, not each, of the prior convictions shall have occurred within five (5) years of the commission of the instant offense.”  Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky.2000) (quoting Howard v. Commonwealth, 608 S.W.2d 62, 64 (Ky.App.1980)).   The Commonwealth is only required to prove that one of the defendant's prior felonies occurred within five years of the commission of the instant offense.  Id.

In this case, the Commonwealth offered evidence that George's felony sentence entered in 2006 was completed within five years of the commission of the reckless homicide offense, or that George was discharged from probation or parole for his 2006 conviction within five (5) years of the commission of the reckless homicide offense.   Therefore, there was sufficient evidence to permit the jury to reach a unanimous verdict under the trial court's PFO–I jury instruction.

For the foregoing reasons, we affirm the McCracken Circuit Court's judgment of conviction following a jury verdict.



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