Cook v. Commonwealth

Full title: JACKIE COOK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Dec 9, 2016

NO. 2015-CA-000035-MR (Ky. Ct. App. Dec. 9, 2016)

Opinion

NO. 2015-CA-000035-MR

12-09-2016

JACKIE COOK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Samuel N. Potter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Taylor Payne Assistant Attorney General Frankfort, Kentucky

MAZE, JUDGE

NOT TO BE PUBLISHED APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 13-CR-00063 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. MAZE, JUDGE: Appellant, Jackie Cook, appeals from his conviction for assault in the first degree, two counts of wanton endangerment in the first degree, and terroristic threatening in the third degree. Cook alleges four primary instances of error: 1) that the trial court denied him a fair trial when it refused to permit him to be recalled to testify about facts material to his defense or to bring expert medical testimony; 2) that the trial court erred when it refused to instruct the jury on the defense of extreme emotional disturbance (EED); 3) that the trial court abused its discretion when it excluded testimony that it deemed to be hearsay; and 4) that the trial court should have directed a verdict on the charge of first-degree assault. After a thorough review of the record, we affirm.

BACKGROUND

The following facts derive from Cook's November 2014 trial. The Commonwealth's proof included testimony from Cook's estranged wife, Magdalena, and Cook's neighbor, Rebecca. Magdalena testified that she and Cook met in 1991 and were married in 1999. In 2011, Magdalena and Cook separated. During the separation they remained in contact and occasionally saw one another at family gatherings. Magdalena testified that after a brief and unsuccessful attempt to reconcile in 2012, she and Cook had a clear understanding that they were no longer a couple though they continued to speak regularly. Magdalena's primary contact with Cook involved her giving him rides to various places because he did not own a vehicle.

On April 4, 2013, Cook arrived at Magdalena's residence to arrange for her to add minutes to his cellular phone. Immediately upon leaving Magdalena's residence, Cook began calling Magdalena and leaving her threatening messages. Cook testified that this was in an attempt to confirm his suspicion that Magdalena was seeing another man. According to Cook, Magdalena confirmed his suspicion, news which he stated was "catastrophic" and which "shocked" him. Cook testified that he drank heavily throughout the ensuing evening.

The next morning, Cook awoke, took two anti-nausea pills, and continued drinking. He also continued to call Magdalena incessantly. However, the messages Cook left were not threatening, but apologetic. In one message, Cook asked if he and Magdalena could meet and talk, and Magdalena obliged, but a friend, Brennan Nelson, accompanied her to Cook's home. Cook described his mood as "angry" and "depressed" immediately preceding Magdalena's arrival at his home. When Magdalena pulled in Cook's driveway, Cook asked her to come inside his home. However, Magdalena refused and remained seated in her vehicle, and she asked Nelson to gather her things from inside the home. An argument ensued, and as Brennan exited the vehicle, Cook drew a .45 caliber handgun and held it to Magdalena's head. From inside the vehicle, Magdalena attempted to wrestle the gun from Cook. Cook fired a shot, which missed Magdalena. Cook fired a second shot through the roof of the vehicle and into Magdalena's ankle. Magdalena escaped the vehicle and ran toward a neighboring home. As she did so, Cook shot a third time, hitting Magdalena in the buttocks. Magdalena managed to reach the neighboring house, but Cook followed her. A resident of that home, Rebecca, confronted Cook. Rebecca testified that when she confronted Cook, he threatened to kill her and pushed her out of his way, once again holding the gun to Magdalena's head. Rebecca was finally able to wrestle the gun from Cook's grip and turned it on him. At this time, Cook "calmly" said that he would be at his house next door waiting for the police to arrive. Cook testified that he had little or no recollection of this incident except its conclusion.

Following trial, the trial court granted Cook a directed verdict on the terroristic threatening charge, but overruled the same motion regarding the charge of first-degree assault. The jury subsequently found Cook guilty of assault in the first degree and two counts of wanton endangerment in the first degree. The jury recommended a sentence totaling twelve-years' imprisonment, and the trial court imposed the recommended sentence. This appeal follows. Further facts will be developed as they become necessary to our analysis.

ANALYSIS

I. Jury Instruction on Extreme Emotional Disturbance

The chief theory Cook's defense employed at trial was that his mental state at the time of the incident, brought on by Magdalena's confession that she was seeing someone else, mitigated his culpability for the assault. On appeal, Cook argues that the trial court erred in refusing to tender a jury instruction on the defense of EED. We review a trial court's decision concerning jury instructions for an abuse of discretion. Williams v. Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005). Further, we consider the evidence in a light most favorable to Cook. Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005) (citing Ruehl v. Houchin, 387 S.W.2d 597, 599 (Ky. 1965)).

Pursuant to KRS 508.040(1), a defendant charged with assault in the first degree is permitted to present evidence, and may have his conviction mitigated to manslaughter, if the evidence demonstrates that he acted under EED. KRS 507.020 defines EED as acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." In McClellan v. Commonwealth, 715 S.W.2d 464 (Ky. 1986), Kentucky's Supreme Court expanded on this statutory definition, explaining that, "[e]xtreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." Id. at 468-69.

Considering this definition and relevant law, "[i]t is the duty of the trial judge to prepare and give instructions on the whole law of the case . . . including instructions applicable to every state of the case deducible or supported to any extent by the testimony." Holland v. Commonwealth, 114 S.W.3d 792, 802 (citations and internal quotation marks omitted). However, a defendant must present "some definitive, non-speculative evidence" in support of an EED instruction before a trial court is required to tender that instruction. Hudson v. Commonwealth, 979 S.W.2d 106, 109 (Ky. 1998) (citing Morgan v. Commonwealth, 878 S.W.2d 18, 20 (Ky. 1994)). This evidence must establish three elements: "(1) there must be a sudden and uninterrupted triggering event; (2) the defendant must be extremely emotionally disturbed as a result; and (3) the defendant must act under the influence of this disturbance." Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2001).

In contesting Cook's entitlement to an EED instruction, the Commonwealth focuses primarily upon the first of these three elements, the immediacy of the alleged triggering event. The Commonwealth points out that more than a day elapsed between the alleged triggering event and the shooting, and it argues that Cook failed to provide sufficient evidence of behavior meeting the definition of EED in the interim. While an adequate and uninterrupted provocation or triggering event is essential to a defense of EED, this event need not occur concurrently with, or even shortly before, the subsequent offense. See Fields v. Commonwealth, 44 S.W.3d 355, 359 (Ky. 2001) (citations omitted). "The adequate provocation of EED may be more gradual than the 'flash point' normally associated with sudden heat of passion." Schrimsher v. Commonwealth, 190 S.W.3d 318, 332 (Ky. 2006) (quoting Spears, 30 S.W.3d at 155).

We point out that the triggering event to which Cook points, the revelation that his estranged wife was seeing another man, can be a sufficient triggering event to warrant an EED instruction. See, e.g., Driver v. Commonwealth, 361 S.W.3d 877 (Ky. 2012). However, the evidence must establish a disturbance which ranges beyond "mere hurt" or "anger." See Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998). The Commonwealth's argument can be reduced to this exactly, that the evidence at trial failed to establish that Cook was anything more than merely hurt or angry at Magdalena. We agree.

The evidence at trial established that Cook reacted to the news of his wife's infidelity by drinking heavily that evening and into the next day. Cook himself described his feelings during that time as "angry," "hurt," and "in disbelief." Upon seeing his wife the day of the incident, he began to argue with her and curse at her. Finally, Cook testified that he had memory lapses during the time period in question and during the incident itself. The Commonwealth's witness, Rebecca, testified that as Cook approached her house behind Magdalena, he seemed "very angry" and "red-faced." After she wrestled the gun away from Cook, his demeanor became "inexplicably calm." She testified that this "shocked her" and that it was "really strange." Even viewing this evidence in a light most favorable to Cook, and even excluding the relative separation in time between the triggering event and the assault, these facts constitute speculative, non-definitive evidence that Cook acted under the influence of EED when he shot Magdalena.

Though it has evolved, Kentucky law still requires that an alleged emotional disturbance be traceable to a relatively recent triggering event, or events, the extreme emotional effect of which continues uninterrupted until surfacing in a defendant's violent act. Id. at 782. Given the evidence presented at trial, we cannot conclude that Cook acted "uncontrollably from [an] impelling force of the extreme emotional disturbance . . . ." Greene v. Commonwealth, 197 S.W.3d 76 (Ky. 2006) (citing McClellan at 468-69). Accordingly, the trial court acted within its discretion in refusing to tender a jury instruction on the defense of EED.

II. Cook's Proffered Rebuttal and Expert Testimony

During his case-in-chief, Cook attempted to call a medical expert, Dr. Harwell Smith, to testify about the effects of alcohol and Phenergan upon a person's mental state and how the two substances may combine to make a person appear calm, as one witness stated Cook appeared, despite being in an emotionally disturbed state. The trial court declined Cook's request because it believed that Cook had not already testified regarding the amount of alcohol he had consumed that day, and because Cook had failed to establish a viable EED defense to that point. In response, defense counsel attempted to recall Cook to testify on the matter; however, the trial court also denied this request, stating that Cook had already announced his case "closed." Cook claims that the trial judge's refusal to allow him to be recalled to the stand deprived him of his due process rights and a fair trial. We review evidentiary issues for abuse of discretion. The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

KRE 611 endows a trial court with inherent authority to control the trial proceedings and the mode of interrogation of witnesses. See Mullikan v. Commonwealth, 341 S.W.3d 99, 104 (Ky. 2011). KRE 611 states, in relevant part:

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

(1) Make the interrogation and presentation effective for the ascertainment of the truth;

(2) Avoid needless consumption of time; and

(3) Protect witnesses from harassment or undue embarrassment.

Regarding Cook's proposed rebuttal testimony, the record reveals that Cook did testify to the amount of alcohol he had consumed and had not announced his case "closed." While the trial court's conclusion to the contrary was incorrect, to extent that it was error, it was harmless.

Cook alleges that the additional testimony was necessary to provide a sufficient basis for the court to admit expert testimony regarding the effects of intoxication. However, after taking the expert's testimony by avowal, Cook informed the court that "given his testimony, I don't intend ... I don't think I want to proffer him as a witness." Therefore, Cook's additional testimony became unnecessary for the purpose of laying an evidentiary foundation for the expert witness's testimony. No prejudice resulted from Cook's inability to testify further.

The trial court based its refusal to accept Cook's expert testimony upon its conclusion that Cook failed to establish a viable defense of EED. As our conclusion regarding the proposed EED jury instruction might indicate, we once again agree with the trial court.

On avowal, Dr. Smith testified as to why a person like Cook could become enraged upon learning that Magdalena was in a relationship with another man and why Cook could appear calm and "normal," despite being in a state of EED. Such testimony would have been relevant for the purpose of assisting the jury "to place themselves in the actor's position as he believed it to be at the time of the act[]" only if Cook established a legal basis for an EED defense. Lasure v. Commonwealth, 390 S.W.3d 139, 143 (Ky. 2012) (quoting KRS 507.030, Commentary (1974)). As we have held, Cook failed to do so. Therefore, the trial court did not abuse its discretion in excluding Dr. Smith's testimony.

III. Cook's Testimony Excluded as Hearsay

At trial, in an apparent attempt to demonstrate why his suspicions of Magdalena's infidelity were intensifying, Cook attempted to testify concerning a conversation with his son. During this phone call, Cook's son asked to speak to Magdalena, under the apparent understanding that she was with Cook when she was not. The Commonwealth objected on the grounds that the related conversation was impermissible hearsay. At the ensuing bench conference, defense counsel argued that the statements were not offered for the truth of the matter asserted, only for their effect upon Cook. Nevertheless, the trial court excluded the statements as hearsay. We once again review Cook's allegation of error for an abuse of discretion. See, e.g., Wiley v. Commonwealth, 348 S.W.3d 570, 580 (Ky. 2010) (citing King v. Commonwealth, 950 S.W.2d 807, 809 (Ky. 1997)).

We note that Cook's argument on appeal does not mirror his argument before the trial court. At trial, Cook argued that his testimony concerning the conversation with his son was not hearsay because it was not offered to prove "the truth of the matter asserted." On appeal, Cook apparently concedes that his statement was hearsay, instead arguing that the exception provided for in KRE 803(3) ¹ applies. We are not inclined, nor are we amused to have been asked, to entertain an argument which the trial court did not hear. Such practice on appeal is strongly disfavored, and we decline to address Cook's newfound argument further.

1 KRE 803(3) provides that an otherwise hearsay statement is admissible when it is "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . ." --------

We will go so far as to conclude that the trial court's decision to exclude Cook's statement was not an abuse of its discretion. Hearsay is an "out-of-court statement offered to prove the truth of the matter asserted." KRE 801(c). Addressing Cook's original argument concerning the statement's admissibility, the statement was clearly offered to demonstrate that Magdalena was not where she said she would be, and therefore as evidence that Cook's suspicions of her infidelity were correct and true, allegedly bringing about his subsequent mental state. This statement, which occurred outside of court and which came from the mouth of a person, Cook's son, who was unavailable at trial, was, by definition, hearsay; and the trial court rightfully excluded it.

IV. Serious Physical Injury

Finally, Cook asserts that the trial court erred in denying his motion for a directed verdict on the charge of first-degree assault. Cook based this motion upon his belief that Magdalena did not sustain a "serious physical injury" as defined and required under Kentucky law. We disagree.

A person is guilty of first-degree assault when he intentionally causes serious physical injury to another person with a deadly weapon. KRS 508.010. Serious physical injury is defined as a "physical 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." KRS 500.080(15).

A defendant is entitled to a directed verdict only "[i]f under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Benham v. Commonwealth, 816 S.W.2d 186, 187-88 (Ky. 1991). To overcome this low bar, the Commonwealth need only present "more than a scintilla of evidence." Id. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, reserving questions of credibility and weight for the jury. Id. at 187.

In support of his argument, Cook points to Anderson v. Commonwealth, 352 S.W.3d 577 (Ky. 2011), in which our Supreme Court held that a laceration along the jaw line of the victim was not of sufficient severity to constitute serious physical injury. The Supreme Court declared:

The only proof presented as to Ormes's injury was that Anderson cut the side of Ormes's face, on the jaw line, with a straight razor, inflicting a laceration that was one inch deep and bleeding. At the hospital, Ormes was given IV medication for his elevated heart rate, which the physician attributed to adrenaline, his laceration was sutured and he was sent home. After the incident, Ormes claimed he was off work for "a while" and has sharp pains in his neck "every once in a while." There was no proof of any subsequent medical treatment attributable to the injury.

Id. at 582. Cook asserts that Anderson and the present case are comparable because Magdalena's testimony regarding her injuries, which included scars and lingering discomfort, did not rise to the level of proof required to establish a serious physical injury. This argument is untenable.

In Parson v. Commonwealth, 144 S.W.3d 775 (Ky. 2004), our Supreme Court held that, where the victim experienced headaches, neck pain, a decreased range of neck motion, and numbness in her right arm that continued at least five months after the assault, the jury could reasonably believe the victim suffered a serious physical injury. The Court determined that substantial prolonged pain constitutes a "serious physical injury." Id. at 787.

Unlike in Anderson, the Commonwealth in this case presented evidence of a prolonged impairment of Magdalena's health in the form of her testimony that as a result of her injuries, she was required to walk with the assistance of a cane for several months; that she has two permanent scars; and that nineteen months after the incident, she still experiences pain of varying intensity in her leg and ankles. The Commonwealth further presented evidence of a substantial risk of death. Rebecca, a registered nurse, testified that Magdalena was bleeding so heavily from the gunshot wound that she had to apply a tourniquet to prevent additional, and potentially fatal, blood loss.

Although medical proof would have been more helpful in establishing a serious physical injury, Anderson, 352 S.W.3d at 581, it was not necessary. Brooks v. Commonwealth, 114 S.W.3d 818, 824 (Ky. 2003). Proof by lay testimony will suffice if the nature and cause of the injury is obvious to a layperson. Id. (stab wounds to the face, neck and upper extremities, and slashing wounds to the neck, resulting in substantial loss of blood and obvious disfigurement). Drawing all fair and reasonable references in favor of the Commonwealth, we hold that the Commonwealth presented evidence sufficient to cause a reasonable juror to find that Magdalena had sustained a serious physical injury. Therefore, the trial court properly overruled Cook's motion for a directed verdict.

CONCLUSION

We can find no error in the Meade Circuit Court's various rulings in this case. Accordingly, its Judgment of Conviction and Sentence is affirmed.

CLAYTON, JUDGE, CONCURS.

THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

THOMPSON, JUDGE, DISSENTING: As the majority recognizes, Cook's theory of defense was that he acted under extreme emotional distress (EED). In an attempt to present sufficient evidence to warrant a jury instruction on EED, he sought to call a medical expert. The trial court refused to permit Cook to call this expert on the erroneous belief that Cook had not testified regarding the amount of alcohol he consumed. The trial court then again inaccurately recalled the facts when it stated Cook had announced his case closed.

I do not quarrel with the notion that a trial court has inherent authority to control the trial proceedings and our review is limited to an abuse of discretion standard. Mullikan v. Commonwealth, 341 S.W.3d 99, 104 (Ky. 2011). 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).

I do not believe that the trial court's rulings based on its inaccurate recollection of the evidence presented and the trial proceedings can be characterized as reasonable, fair, or supported by sound legal principles. Based on those inaccuracies and not on the actual record, the trial court denied Cook's request to be recalled to the stand and prohibited him from presenting medical expert testimony to support his theory of defense.

While the majority acknowledges that the trial court inaccurately recalled the evidence and the events that occurred during the trial, it concludes no harm was caused because Cook did not establish a basis for an EED defense. However, I submit that Cook was denied the right to establish that defense when he was not permitted to be recalled to the stand and when his medical expert was not permitted to testify.

I would reverse and remand this matter to the trial court for a new trial. BRIEF FOR APPELLANT: Samuel N. Potter
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Taylor Payne
Assistant Attorney General
Frankfort, Kentucky