Coulthard v. Com., 2005-SC-000804-MR.

• Decision Date: 23 August 2007
• Docket Number: No. 2005-SC-000804-MR.,2005-SC-000804-MR.
• Citation: 230 S.W.3d 572
• Parties: Andrew Dean COULTHARD, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

230 S.W.3d 572

Andrew Dean COULTHARD, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000804-MR.

Supreme Court of Kentucky.

August 23, 2007.

Shannon Dupree, Assistant Public Advocate, Department for Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Matthew R. Krygiel, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

Appellant, Andrew Dean Coulthard, was convicted by a Fayette County jury of manslaughter in the first degree and tampering with physical evidence. For these crimes, Appellant was sentenced to a total of twenty-five years in prison. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm Appellant's convictions.

On November 13, 2003, Appellant fatally shot eighteen-year-old Brian Brown in the neck. At trial, Appellant claimed he went looking for Brown that night because he believed that Brown burglarized his home earlier in the month. Eventually, Appellant found Brown in his vehicle at a stop sign in the trailer park where Brown lived with his grandmother. Appellant testified that he drove his vehicle in front of Brown's, forcing Brown to stop. Appellant then exited his vehicle and confronted Brown about burglarizing his home. During their brief conversation, Appellant's passenger, Robbie Burns, moved from the passenger seat and maneuvered Appellant's vehicle so that it was facing Brown's vehicle. When Appellant heard a truck coming towards their vehicles, Appellant testified that he quickly attempted to punch Brown through the half-open window of Brown's car. Upon walking back toward his car, Appellant claimed that Brown suddenly started driving towards him in an attempt to run him over. In fact, Appellant stated that Brown actually collided with his vehicle. In reaction and out of fear for his life, Appellant testified that he pulled a gun from his pants and shot towards Brown's vehicle. Appellant admitted fleeing the scene and disposing evidence related to the crime.

At trial, the Commonwealth presented a slightly different version of events. The Commonwealth's evidence tended to show that Appellant did indeed confront and attempt to assault Brown by forcing his way into Brown's vehicle. However, when Brown drove away from Appellant in an attempt to flee, Appellant opened fired and instantly incapacitated Brown with a bullet to the neck. Once incapacitated by the bullet, Brown's vehicle sideswiped two neighborhood vehicles before crashing into and stopping against a third vehicle. It was the Commonwealth's position that the evidence did not support a suggestion that Brown may have collided with Appellant's vehicle prior to sideswiping and crashing into the three other vehicles located at the scene.

Appellant was subsequently apprehended, arrested, and charged with the murder of Brown. On September 1, 2005, a Fayette County jury found Appellant guilty of manslaughter in the first degree and tampering with physical evidence. A final judgment was entered against Appellant on October 5, 2005. Appellant now appeals directly to this Court as a matter of right and we affirm.

I. There was no error regarding victim "propaganda," emotional reactions from spectators, or evidence regarding victim impact/background.

In his first assignment of error, Appellant attempts to lump several alleged errors which he claims, in accumulation, amount to reversible error. These alleged errors include the use of "victim propaganda," the refusal of the trial court to grant a mistrial after the jury witnessed emotional reactions from spectators, and the improper utilization of victim impact evidence. Upon review of each of these issues, we find no errors, either individually or cumulatively, which entitle Appellant to a new trial.

Appellant first argues the trial court erred when it overruled his motion to eliminate "propaganda" from the courtroom during Appellant's trial. Notably, Appellant's counsel claimed that he saw family members wearing t-shirts portraying the victim's photograph prior to trial and license plates in the parking lot which supported the victim. Appellant also stated that he was forced to ask the Court for escorts to assist in the arrival and departure of his family members due to harassment and aggressive behavior from spectators.

During a hearing on the matter, Appellant asked the trial court to ban the t-shirts from the courtroom and to order the Commonwealth to talk with the victim's family members regarding appropriate courtroom attire. Although noting that it had not seen any of the t-shirts or inappropriate behavior, the trial court complied with Appellant's requests and asked the Commonwealth to ensure that the victim's family members dress appropriately for the trial. The trial court noted that although it was not granting Appellant's motion at that time, the issue would remain "open" and "subject to change" should he encounter any inappropriate conduct. Eventually, the trial court issued an order overruling Appellant's motion regarding "propaganda."

Appellant now complains that he was denied his right to a fair trial by the trial court's "refusal to exclude propaganda from the courtroom." See Norris v. Risley, 918 F.2d 828, 832 (9th Cir.1990) ("Where fair trial rights are at significant risk, however, the first amendment rights of trial attendees can and must be curtailed at the courthouse door.")(Emphasis added). Appellant's argument could possibly have merit if he were able to cite to any "propaganda" displayed in the courtroom during the trial or which was viewed by the trial jury at any time. Yet, he cannot do so. Rather, Appellant's argument is based on the alleged presence of such propaganda "at one time prior to trial" and speculation as to whether cars outside the courthouse contained the aforementioned license plates. Thus, no error occurred.

Appellant next alleges he was unduly prejudiced by emotional outbursts in front of the jury from spectators in the courtroom. The alleged "outbursts" occurred during the Commonwealth's direct examination of Evidence Technician Tim Russell. Russell testified about the evidence collected at the crime scene. Approximately thirty minutes into Russell's testimony, the Commonwealth rapidly introduced a series of five photographs which depicted the victim as he was found in his vehicle. Upon review of the record, soft sobbing can be heard during the brief period of time when photographs of the victim are displayed. The record also seems to depict spectators leaving the courtroom as they were instructed to do if they became overwhelmed during the trial.

After the brief series of photographs, Russell continued to testify regarding additional photographs and evidence found at the scene. Eventually, the Commonwealth displayed another picture of the victim in which blood is seen on the back of his neck. Soft sobbing once again can be heard and Appellant's counsel asked to approach the bench. Due to the emotional nature of the situation, Appellant's counsel requested a recess, which the trial court granted.

Upon return from the recess, Appellant made a motion for mistrial based not on the sobbing which occurred in the courtroom prior to the recess, but on an incident which Appellant's counsel stated he witnessed after the recess. He reported that he saw several family members on the floor sobbing outside of the courtroom. Unfortunately, the jury had walked past these family members and according to Appellant's counsel, some of the jury members began "busting up" themselves.

The trial court overruled Appellant's motion for mistrial, noting that Appellant himself was sobbing and weeping in front of the jury to a far greater extent than any of the spectators or family members and that he witnessed no "substantial outbursts" from the family. The trial court stated that in the future, the jury would be taken out the back of the courtroom to avoid any further problems. Finally, the trial court addressed the audience and advised them that if they could not maintain their composure during the presentation of the evidence, they must leave the courtroom. After this admonition to the audience, there were no additional emotional displays during the remainder of the presentation of the evidence.

Appellant argues that the cumulative effect of the aforementioned emotional displays entitled him to a mistrial. However, it is important to note that Appellant's motion for mistrial was not based on the soft sobbing which occurred during the brief series of photographs that depicted the victim. In that instance, Appellant asked for and received his requested remedy — a recess. Rather, Appellant's motion for mistrial was based solely on the emotional display which Appellant's counsel stated he witnessed in the hallway outside the courtroom. It was the jury's reaction to that display which Appellant's counsel argued entitled his client to a mistrial.

When there is some kind of emotional display by victims or their family members, this Court has held that an admonition to the jury to disregard the display is more than sufficient to cure any possible prejudice that might occur from the situation. See Blackburn v. Commonwealth, 247 S.W.2d 528, 530 (Ky.1952) (admonition sufficient to cure any prejudice resulting when clothing worn by victim was displayed, victim's widow screamed, cried, became hysterical and was escorted from the courtroom); Belt v. Commonwealth, 2 S.W.3d 790, 793 (Ky.App.1999) (admonition remedied any prejudice caused during cross-examination when victim screamed at and shouted obscenity at defendant while jurors were being led from courtroom). In holding as such in these cases, we have noted the following:

It is a frequent occurrence in homicide cases that the next of kin or other close relatives, under the...