Campbell v. Commonwealth

Decision Date27 April 2023
Docket Number2021-SC-0479-MR
CourtUnited States State Supreme Court — District of Kentucky

COUNSEL FOR APPELLANT: Molly Mattingly Assistant Public Advocate

COUNSEL FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General



An Adair Circuit Court jury found Donnie Campbell guilty of first-degree assault, first-degree robbery, and violating a domestic violence order (DVO). The jury also found Campbell to be a persistent felony offender in the first degree and recommended a sentence of life imprisonment, which the trial court then imposed. Campbell appeals to this Court as a matter of right.[1] He claims the trial court erred because it: Allowed testimony via Zoom; permitted the Commonwealth's witness to testify despite a purported discovery violation; failed to strike a juror for cause; refused to grant a mistrial; and failed to grant a directed verdict on first-degree assault and first-degree robbery. Campbell further contends the Commonwealth committed prosecutorial misconduct during closing argument. Finally, Campbell urges this Court to overturn his conviction based on cumulative error. We find the trial court committed error when it permitted a witness to testify via Zoom and hold that error requires reversal of the conviction of assault in the first-degree but affirm the Adair Circuit Court on the remaining convictions and the resultant life sentence.


Felicia Woolridge had an intimate relationship with Campbell for approximately three years, and eventually, Campbell came to reside with her at her home on Pinetree Street in Columbia. In December of 2019, Felicia obtained a domestic violence order (DVO) against Campbell. Campbell then moved out of her residence and left Columbia entirely.

After Campbell left, Felicia began a friendship with Michael Smith. Felicia denied that she and Smith were involved romantically but when Campbell returned in May of 2020, he did not want them talking anymore. Felicia acquiesced because she wanted to work things out with Campbell. Both men became jealous of one another, and after several serious physical confrontations transpired between Campbell and Smith, it escalated to the matter currently before this Court.

On May 22, 2020, Smith came home from work and was relaxing at his home. He had recently gotten paid and had approximately $170 on his person. He was sitting in a chair and listening to music when he noticed someone walk by his window. At first, he thought it was his brother. He was suddenly struck on his shoulder and fell to the floor. He saw it was Campbell holding a steel pipe standing over him. Smith played dead while Campbell beat him several times with the weapon and took his wallet and left.

When he was sure that Campbell had fled, he ran to his landlord Billy Wheat's house for help. Billy called for an ambulance and when Chad Wheat, (no relation) the emergency medical technician (EMT) arrived, he saw that Smith was covered in blood and had lost consciousness for approximately forty-five seconds. EMT Wheat also observed that Smith had numerous lacerations and a one square inch chunk of flesh missing from his head where he could see Smith's skull.[2] Smith also had a large swelling on the back of his neck. He was transported to the local hospital where a computerized topography (CT) scan of his head and neck was administered. The CT scan discovered his cervical spine was fractured. Melissa Snead, a registered nurse (RN), sutured the lacerations but was unable to do so for the avulsion on the back of his head. Smith had to be transported to the University of Kentucky's Medical Center because it was determined he required further treatment at the trauma center there.

EMT Wheat drove the ambulance that transported Smith to Lexington. While enroute, Smith experienced a severe drop in blood pressure. When it registered at 66/40, Wheat pulled the ambulance over to administer fluids in order to stabilize Smith. When they arrived at the University of Kentucky Medical Center the swelling on the back of Smith's neck was the size of a softball.

While at UK, Smith was treated by Dr. Brian Tucker. Dr. Tucker diagnosed Smith as having a fractured skull located at the back of his head, a concussion, a hematoma and swelling on the back of his head and neck, a cervical spine fracture, broken nose, and an avulsion on the back of his head.

Campbell was arrested at Felicia's house shortly after the 911 call was made. On June 25, 2020, an Adair County grand jury indicted Campbell for assault in the first-degree, robbery in the first-degree, violation of a domestic violence order and being a persistent felony offender in the first-degree. After a two-day trial the jury convicted Campbell on all counts and recommended a sentence of life imprisonment. The circuit court accepted the recommendation of the jury and sentenced Campbell accordingly. Further facts will be adduced as necessary. We now discuss the merits of the appeal.


First, Campbell argues the trial court erred by permitting a witness to testify via Zoom which violated his rights under the Confrontation Clause of the 6th Amendment of the United States Constitution.[3] Secondly, he claims the trial court erred by not excluding expert testimony because of the Commonwealth's purported discovery violation. Next Campbell claims that during voir dire the trial court erred by failing to grant the defense motion to strike a juror for cause. Campbell also argues the trial court ought to have granted a mistrial upon motion of the defense when Smith claimed he was at risk of being paralyzed. Campbell further argues that the trial court erred by not granting a directed verdict on both the assault in the first-degree and robbery in the first-degree. Campbell also contends the Commonwealth committed prosecutorial misconduct during closing arguments and finally, Campbell argues that the errors in this case require reversal under the cumulative error doctrine.

A. The trial court erred by allowing Dr. Tucker to testify via Zoom which requires reversal of the assault in the first degree conviction.

Campbell argues that the trial court erred by allowing Dr. Tucker to testify via Zoom in violation of his right of confrontation afforded by the 6th Amendment of the U.S. Constitution. Dr. Tucker's testimony about the extent of Smith's injuries was relevant to prove Smith sustained a serious physical injury,[4] an essential element of assault in the first degree.[5] Campbell preserved this issue by making contemporaneous objections.

On the morning of trial, the Commonwealth informed the court and Campbell's attorney that it would have Dr. Tucker testify remotely via Zoom. As justification the Commonwealth stated Dr. Tucker was scheduled to work that day at the hospital and would be unable to travel to Adair County, a distance of approximately one hundred miles. Although neither party addresses it, we note Dr. Tucker's subpoena is dated August 11, 2021, and he was served on the 18th of August, only one day prior to his scheduled testimony.[6]

Evidentiary rulings by the trial court are reviewed for abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). The test for abuse of discretion is whether the trial court's ruling was arbitrary, unfair, unreasonable or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

The Sixth Amendment to the United States Constitution guarantees the accused in all criminal prosecutions the right to be "confronted with the witnesses against him." U.S. Const. amend. VI. This right of confrontation is also enshrined in Kentucky's Constitution that guarantees "in all criminal prosecutions the accused has the right .... to meet the witnesses face to face." Ky. Const. §11. Courts have long recognized that the right of confrontation is one of the "fundamental guaranties of life and liberty[.]" Kirby v. United States, 174 U.S. 47, 55 (1899). And the primary purpose of which is to compel the witness "to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-43 (1895).

At times courts have grappled with issues on the application of the Sixth Amendment right of confrontation. Courts have had to decide, for instance, whether certain rules admitting hearsay evidence conflicted with the right of defendant to confront witnesses against them. The United States Supreme Court in Ohio v. Roberts was faced with the issue of whether testimony given during a preliminary hearing was admissible at trial. 448 U.S. 56 (1980). They held the Sixth Amendment merely expressed a preference for face-to-face confrontation. Id. at 65. The Court in Roberts reasoned that defendants' confrontation rights must occasionally give way to competing interests of "public policy and the necessities of the case." Id. at 64 (citing Mattox v. United States, 156 U.S. at 243). Thus, hearsay was permitted as long as it was firmly rooted in a hearsay exception or bore a "sufficient indicia of reliability." Id. at 66.

The idea that confrontation rights, as guaranteed by the Sixth Amendment, required "balancing" with competing interests of public policy led courts to weigh the rights of the accused against the state's interest in protecting child sex abuse victims from re-traumatization by their purported abuser. The U.S. Supreme Court, reversing the Iowa Supreme...

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