Southworth v. Commonwealth, 2012–SC–000179–MR.

• Decision Date: 19 June 2014
• Docket Number: No. 2012–SC–000179–MR.,2012–SC–000179–MR.
• Citation: 435 S.W.3d 32
• Parties: Donald SOUTHWORTH, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

435 S.W.3d 32

Donald SOUTHWORTH, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2012–SC–000179–MR.

Supreme Court of Kentucky.

March 20, 2014.

As Modified March 21, 2014.

As Modified on Denial of Rehearing June 19, 2014.

Shannon Renee Dupree, Jason Apollo Hart, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.

Jack Conway, Attorney General, James Daryl, Havey Assistant Attorney General, Office of the Attorney General, Frankfort, KY, for Appellee.

Opinion of the Court By Justice NOBLE

Donald Southworth was convicted of murdering his wife, Umi Southworth, and was sentenced to life in prison. He raises numerous issues on appeal, including that he was entitled to a directed verdict and that the trial court admitted evidence of other acts in violation of KRE 404(b). While Southworth was not entitled to a directed verdict of acquittal, and therefore may be retried, the admission of the other-acts evidence was in error and prejudiced Southworth. For that reason, his conviction is reversed.

I. Background

Donald Southworth ¹ married Umi Southworth in the mid–1990s. She had been working at a bank in Indonesia when they met. They settled in Lexington, Kentucky, where Southworth was an overnight UPS driver. They had a daughter, Almira, in 1997. Umi worked at the corporateheadquarters of the restaurant chain Fazoli's.

Almira began playing guitar and singing when she was six. Apparently, she was quite talented and had a promising future as a musician. In fact, she frequently performed at restaurants and churches in Lexington, and had begun to travel to perform. Her parents had been contacted by promoters and producers, who worked with the family on Almira's career.

By 2010, however, Southworth and Umi's marriage was moving toward an end. They were getting a divorce, and Umi was planning to move to Nashville with her daughter to help with her fledgling music career. Almira had signed a contract with Buck Williams, a music agent and manager in Nashville. June 9, 2010 was to be Umi's last day at work before the move.

But Umi never showed up to work that day and could not be found. Some of her co-workers went to her apartment complex to look for her. They found some of Umi's belongings scattered outside the apartment building: a pair of her shoes, with one under her car and one by the garbage cans, and her keys in the yard. Southworth had been contacted by his daughter, and he returned home from an overnight shift at UPS sometime in the morning. Over the course of the morning, Southworth spoke with some of Umi's co-workers, telling at least one that his wife might be with her boyfriend. Apparently, the co-workers were concerned about Southworth, as one testified that she had asked him where Umi was and stated to him “I know you know where she is.”

At 11:47 a.m., Southworth called 911 to report his wife missing, though he stated that she often disappeared and went to visit friends. During the call, he mentioned the pending divorce, laughing at it, and stating that it was just on paper and that they were not actually breaking up. He also stated that Umi's co-workers had gotten him “jumpy.” He declined to have an officer dispatched and said he would go to the police station to file a report.

The co-workers continued to look for Umi. They encountered a police officer, Susan Brown, in the neighborhood and reported the disappearance to her. The officer went to the apartment complex around noon, just as Southworth and Almira were starting to drive away. The officer asked Southworth some questions. He said he was going to file a report at the station; that Umi had been up late texting a boyfriend, a musician whose name he did not recall; that Umi frequently walked around the neighborhood while texting or talking on the phone to the boyfriend; and that he and Umi were not actually breaking up when she moved to Nashville but that he wanted a divorce on paper so he could date other women. Officer Brown offered to take a report and asked Southworth for the name and phone number of the boyfriend. Southworth reiterated that he was on his way to the police station to report the disappearance.

At 12:49 p.m., Southworth called John DeGrazio, a contemporary-Christian musician and producer in New Jersey, with whom Umi had been corresponding by email, text, and telephone since 2009, and whom the family had met in person at least once. DeGrazio was helping with Almira's music career. He was the person Southworth referenced when he mentioned Umi's boyfriend, despite claiming at times that he did not know the identity of the alleged boyfriend. DeGrazio missed Southworth's call.

Southworth did not arrive at the police station until 2:45 p.m., where he met with Sergeant Chris Woodyard an hour later. After noting Umi's disappearance, he told Woodyard that she had a boyfriend, whom he had tried to call that morning. When Woodyard asked for the boyfriend's name and number, Southworth claimed that he could not recall it, and that the information was on his mobile phone, which was in the family's other car. Southworth said that his wife's shoes and keys had been found in the yard. Woodyard did not take a missing-persons report at that time, stating they were not filed until the person had been missing for 24 hours. Woodyard offered to send an officer to investigate, but Southworth declined, saying he had to go to Cincinnati but that he would call if circumstances changed. Shortly after leaving, Southworth called to clarify whether the report would be filed after 24 or 48 hours.

Around 4:30 p.m., Southworth called one of Umi's co-workers to see if they had heard anything and to explain that a missing-persons report could not yet be filed. The co-workers continued to search for Umi. Around 5:30 p.m., they checked her office voicemail and heard a message containing what sounded like a scuffle and a reference to a killing. Though this message later turned out to be innocuous—it was recorded during an inadvertent dial when Almira had been playing video games—police opened an investigation upon hearing it. Lieutenant Mark Brand was dispatched to the Fazoli's headquarters to listen to the message. Several other officers were dispatched to the Southworth residence.

After listening to the voicemail, Lieutenant Brand called Southworth, who was returning to Lexington with Almira and his youngest daughter (from another relationship, described below). This conversation was recorded. Southworth stated that his wife had been up late text messaging and had told him she intended to get up at 4:00 a.m. He was surprised that the police had opened an investigation but agreed to meet Lieutenant Brand at the Fazoli's headquarters. Instead of meeting Brand, however, Southworth went home.

Other officers were already at the apartment. They were concerned by the voicemail and performed a protective sweep of the residence. They did not find anyone or any signs of an altercation, blood, or that a crime scene had been cleaned up. They searched around the property and found nothing.

Southworth arrived at the apartment around 7:00 p.m. He spoke with Officer Todd Phillips, who secretly recorded parts of the conversation. Southworth mentioned DeGrazio by name at that point, saying that Umi loved him. He again said that Umi walked around the neighborhood when she talked with DeGrazio. This time, however, he claimed he was way past being jealous and had told Umi that DeGrazio was “family.” He also insisted that he and Umi were still in love. At some point, he also denied having a reason to kill Umi, which the Commonwealth describes as having been gratuitous at the time, and he later denied having killed her.

A pair of officers continued to search the grounds of the apartment complex. Near the tree-line behind the complex, they found a “hobo camp,” which consisted of a piece of plywood that had been set up as a shelter over a twin-sized box spring (also referred to as a mattress in some of the filings) and a rug.

The officers lifted the mattress and found Umi. She was lying face down, was naked, and had a belt wrapped loosely around her neck. Her skin was an unnatural color and sunken in, and she had a wound to the back of her head, which was matted with blood and brain tissue and had flies on it. The officers believed she was dead and began processing the scene for evidence.

Police strategically chose not to tell Southworth what they had found. They instead asked for a picture of Umi and asked Southworth to go to the police station. Before leaving for the station, Southworth told one of the officers, “So you have not found her yet. That's good—I meant not good, you've not found her yet. But that means she's still okay.” At headquarters, he said, “I never killed my wife, officer. She should have stayed inside. This is going to mess everything up.”

Police continued processing the scene where Umi had been found. They retrieved a broken tree limb with blood on one end, and collected a swatch of apparently bloody fabric from the box spring. They also found Umi's nightdress and sweater nearby. Various other items, such as a bag of clothing, shopping bags, a garbage bag, and a stolen wallet, were found in the area. The clothing was not Southworth's size, though the belt found around Umi's neck was. (Almira later testified that the belt was similar to ones from the apartment but she could not say for sure it was from her home.) The box spring, except for a fabric swatch, was not collected, nor was the plywood.

Soon after Southworth left to go to the station, the coroner arrived at the residence. He found that Umi was still alive. She was transported to the University of Kentucky Medical Center. Doctors found that Umi had significant head trauma, with two skull fractures and brain matter leaking out, and blunt force trauma to her chest. Maggots were present in the head wound. Umi was clinically brain dead with no chance for recovery.

...