Chumbler v. Com.

• Decision Date: 24 August 1995
• Docket Number: 91-SC-921-MR and 91-SC-932-MR,Nos. 91-SC-916-M,s. 91-SC-916-M
• Citation: 905 S.W.2d 488
• Parties: Charles Aaron CHUMBLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Holly KARIAKIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Michael KARIAKIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 488

905 S.W.2d 488

Charles Aaron CHUMBLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Holly KARIAKIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Michael KARIAKIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 91-SC-916-MR, 91-SC-921-MR and 91-SC-932-MR.

Supreme Court of Kentucky.

Aug. 24, 1995.

Julie Namkin, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Charles Chumbler.

Marie Allison, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Holly Kariakis.

Larry H. Marshall, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Michael Kariakis.

Chris Gorman, Attorney General, Lana Grandon, Carol C. Ullerich, Assistant Attorney General, Criminal Appellate Division, Frankfort, Thomas L. Osborne, Commonwealth Attorney, Paducah, for appellee.

LEIBSON, Justice.

In a joint trial, Michael Kariakis, his wife, Holly Kariakis, and Charles Chumbler were convicted of crimes resulting in the murder of Nelda Chumbler, Charles Chumbler's wife. Michael was convicted of murdering Nelda, and Holly and Charles were convicted of murder by complicity. Michael and Charles were sentenced to life without parole for 25 years and Holly was sentenced to life in prison.

Nelda and Charles were school teachers in Florida. Charles was originally from Kentucky. During December, 1990, Nelda and Charles visited Charles's family in Kentucky. On December 27, around 4:00 P.M., Nelda was shot by a high-velocity weapon, such as a hunting rifle, while feeding the horses on Charles's brother's horse lot. The murder weapon was not recovered. Charles and his four-year old grandson were with Nelda at the time. There were no other eye witnesses.

At first the police believed Nelda's death was caused by a hunter's stray bullet. Approximately a week after Nelda's death, the police changed their theory and believed Nelda was killed by a shooter in a nearby shed.

The Commonwealth's theory of the case was that Michael shot Nelda from the shed and Holly and Charles conspired in the murder. The motive was to obtain the proceeds from Nelda's insurance: Charles was the beneficiary of his wife's retirement benefits as well as her $35,000 life insurance policy which increased to $70,000 if she died of an accident. Nelda and Charles married on November 20, 1987, and executed an antenuptial agreement that day which listed her assets at $200,000 and his assets at $500 and which prevented Charles from inheriting Nelda's estate.

Michael and Charles met in 1979 when Michael, who was 16 at the time, worked stripping tobacco on Charles's farm in the Paducah area. Evidence was presented at trial to allow the jury to infer that Charles and Michael had a homosexual relationship, which Michael and Charles denied. Charles characterized their relationship as a "deep friendship" wherein Charles acted as a foster father to Michael. Charles regularly gave Michael money, bought things for him, and made restitution for bad checks written by Michael and one of Michael's ex-wives. In large part because of the money flowing from Charles to Michael, Charles declared bankruptcy in 1987 and drained much of Nelda's finances after marrying her.

Michael and Holly met in November, 1988. Michael moved to Virginia, where Holly lived, and the two married in April, 1989. In February, 1990, Michael and Holly moved to Palm Harbor, Florida. Holly first met Charles in June, 1989, when he visited Holly and Michael in Virginia, and Holly testified that she met Charles two additional times after that in Florida.

Michael and Holly planned on taking a trip over the 1990 Christmas holiday. On December 26, 1990, after picking up and cashing Holly's paycheck, Holly and Michael drove to a parking lot where Michael had arranged to meet a gun dealer to buy a gun on which Michael had previously placed a deposit. Holly gave Michael $100 to $200, which Michael used towards the $700 purchase price of a unique, custom-built, unregistered .270 caliber rifle with a scope. Michael testified he bought the rifle for Charles to give to Perri Mathis, Charles's adult daughter, as a Christmas present. Holly testified that Michael told her Charles would probably buy the gun from him and that Michael had previously bought guns as investments. Charles testified that he did not ask Michael to buy a gun for him to give to Perri and that Michael never told him he bought it.

After purchasing the gun, Holly and Michael left on their trip. They ended up driving to Paducah, arriving about 1:00 P.M. on December 27. They left the next morning to return to Florida. While in Paducah, the rifle Michael had purchased in Florida was removed from the back seat of their car. There was no sign of forced entry. The rifle has not been found.

The trial took 18 days and the transcript of evidence is 29 volumes. All three defendants testified and denied responsibility for the shooting and claimed it was a hunting accident. The three defendants raise a great many issues and sub-issues on appeal. Some issues are common to all the defendants, others are raised only by one or two defendants. Many of the issues or sub-issues were not properly preserved for appellate review. For the reasons to be stated, we reverse and remand as to all three defendants.

I. SEXUAL EVIDENCE

Both before and at trial, Michael and Charles objected to the introduction of evidence regarding their sexual behavior, preferences or orientation. They suggested that the Commonwealth could prove a "close relationship" between the defendants without "crossing the line into proof of homosexuality." Charles offered to stipulate to a "strong relationship" between Michael and Charles.

Charles and Michael claim that evidence regarding their sexuality was irrelevant or, if relevant, should have been excluded because the prejudicial nature of the evidence outweighed the probative value. The Commonwealth responds that proof of their homosexual relationship was relevant to establish motive for Nelda's murder and that the evidence was not unduly prejudicial.

Although no Kentucky cases specifically address the introduction of evidence of homosexuality, such evidence may be analogized to evidence of an extramarital affair. In Barnett v. Commonwealth, Ky., 763 S.W.2d 119 (1988), we reversed in part because of the admission of evidence of an extramarital affair which had ended twenty-one months prior to the murder and lacked any connection to the crime. This Court has held that evidence of extramarital affairs is irrelevant and error in a number of cases. Stallings v. Commonwealth, Ky., 556 S.W.2d 4 (1977); Pruitt v. Commonwealth, Ky., 487 S.W.2d 940 (1972); Brown v. Commonwealth, Ky., 275 S.W.2d 928 (1955); Acres v. Commonwealth, Ky., 259 S.W.2d 38 (1953).

Evidence of extramarital sexual activity should be admitted or excluded without regard to the gender of the parties and without regard to whether homosexual or heterosexual activity is involved. As we stated in Smith v. Commonwealth, 93-SC-724-MR, rendered 6/8/95,

.2d 220, where the majority found that the defendant established sufficient connection to the charged crime to permit evidence of an extramarital lesbian affair, "evidence of marital infidelity which lacks legitimate connection to the crime charged amounts to an attack upon the defendant's character and results in prejudicial error." Id. at 5, 904 S.W.2d at 222. So too, evidence of the sexual behavior of the defendants which lacks legitimate connection to the crime charged is irrelevant and amounts to a smear upon the defendant's character, resulting in prejudicial error.

In this case, evidence regarding the relationship between Michael and Charles and the extent of that relationship was properly admitted. Charles's offer to stipulate to a "close relationship" between Michael and Charles would be unfair to the Commonwealth. A defendant is not entitled to stipulate away the parts of the case which he does not want the jury to see. Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980). The relationship between Charles and Michael was at the heart of the Commonwealth's theory of a conspiracy between Charles and Michael to murder Nelda. Evidence of the love between Michael and Charles, whether that love was emotional or physical or both, was necessary to sufficiently establish a motive for Charles to conspire to murder a wife he claimed to love and for Michael to murder Charles's wife.

However, the Commonwealth presented evidence of Charles's and Michael's sexual behavior far in excess of what was relevant to prove their relationship and establish motive. The prosecutor began his opening statement by telling the jury that Charles came from a good family in McCracken County, "[b]ut Charles is different. Charles was gay." He continued by saying, "we will prove that Charles enjoyed the company of young boys." The prosecutor also stated in his opening that Charles married his second wife in order to become the foster father of a young man with whom he was sexually involved.

Charles's first wife testified that during their marriage from 1964 to 1970 (twenty years prior to Nelda's death) Charles spent time with more than one young man. She further testified to an incident where Charles prostituted her so that Charles could have sex with a young man. The prosecutor mentioned this in his opening, and in his summation he stated:

Charles then used Donna to get a young man that he wanted to have sex with. He sold Donna's body for his own pleasure. Sold? Traded would be a better word. He allowed the young man to have sex with Donna, so that the young man would agree to have sex with him.

One of Charles's co-workers testified that while Charles was staying at her home she washed his clothes. When asked if she found anything unusual in the wash, she testified that she found women's underwear and that Charles wore women's nylon panties.

During cross-examination of Charles, the prosecutor...