Driver v. Commonwealth

Decision Date22 March 2012
Docket NumberNo. 2009–SC–000639–DG.,2009–SC–000639–DG.
Citation361 S.W.3d 877
PartiesStephen DRIVER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky


Samuel N. Potter, Department of Public Advocacy, Assistant Public Advocate, Frankfort, KY, for appellant.

Jack Conway, Attorney General, Joshua D. Farley, Assistant Attorney General, Attorney General's Office, Frankfort, KY, for appellee.

Opinion of the Court by Justice VENTERS.

Appellant, Stephen Driver, appeals from an opinion of the Court of Appeals which affirmed a judgment of the Marshall Circuit Court convicting him of first-degree assault and sentencing him to a prison term of fifteen years. Consistent with his arguments before the Court of Appeals, Driver raises the following claims of error: (1) that the trial court erroneously permitted the Commonwealth to introduce KRE 404(b) prior bad act evidence of previous violent conduct by Driver against his present wife (the victim) and his former wife; (2) that the trial court erred by failing to give an instruction on assault under extreme emotional disturbance (EED); and (3) that the Commonwealth committed prosecutorial misconduct during closing arguments by (a) referring to the KRE 404(b) evidence as evidence of intent, and (b) by asking the jury whether it would “help the victim's children” by its verdict.

Because the evidence of prior bad acts committed by Driver against his ex-wife was inadmissible under KRE 404(b), and we cannot say with reasonable assurance that the error did not sway the verdict, we reverse the first-degree assault conviction and remand for a new trial upon the allegations.1 We further discuss the other issues raised by Driver insofar as they may arise again upon retrial.


In the light most favorable to the verdict, the evidence presented at trial disclosed that in early 2007, Driver resided with his wife, Vera, and their two children in Marshall County, Kentucky. On the night of January 6–7, 2007, they had an altercation that arose because Vera was having an extramarital affair. 2 Neighbors called 911 and reported hearing screams from the direction of Driver's yard. Officer Dan Melone of the Marshall County Sheriff's office responded to the call and was let into the residence by the two children. When asked what was going on, Driver responded “nothing.” He told Officer Melone that his wife was in the shower and could not speak with him. Eventually, however, Vera appeared with a towel wrapped around her head and told the officer about their altercation. Afterward, Vera gave a written statement in which she described the assault.

According to Vera's statement, while arguing about the extramarital affair, Driver threw a bottle of glass cleaner at Vera. She ran into the bathroom, but Driver pulled her out by her hair. Driver then threw her on the floor, strangled and hit her, and told her he was going to kill her. Vera ran out the back door but Driver caught her and dragged her by her hair back into the residence. Then, Driver got a belt, wrapped it around Vera's neck and began strangling her and told her multiple times he was going to kill her. Vera felt like she was passing out; Driver again said he was going to kill her and then he was going to kill himself. Vera attempted to escape again by running to the couple's van, but Driver again pulled her by the hair back into the residence. Pictures taken immediately after the assault show patches of hair missing from Vera's scalp, and various scratches and bruises on her face, chest, arms, and neck. Clumps of hair, pulled out by the roots, were also found in the area of the altercation.

As a result of Vera's statement, the Grand Jury returned an indictment charging Driver with attempted murder. However, at the preliminary hearing, and later at trial, Vera changed her story and described a far more subdued altercation, apparently in an effort to minimize Driver's culpability. 3 Most importantly, Vera recanted her allegation that Driver had strangled her with a belt. She testified that some of the injuries apparent on the night of the events, including the injuries around her neck, were caused by her doing yard work. She attributed some of her other injuries to carpet burns she received during the scuffle. While she did concede there was a physical conflict, she described it as “wrestling.” Overall, Vera's testimony was very sympathetic toward Driver.

In response to the changes in her version of the fight, the Commonwealth introduced Vera's written statement given the night of the events as a prior inconsistent statement. Over Driver's objection, the Commonwealth was also permitted to introduce two episodes of prior violence against Vera and two instances of prior violence against Driver's former wife, Melinda.4 Prior to the submission of the case to the jury, the trial court denied Driver's request for an instruction on assault under extreme emotional disturbance.

At the conclusion of the trial, the jury acquitted Driver of attempted murder but returned a verdict of guilty on the lesser included offense of first-degree assault.5 It recommended a sentence of fifteen years' imprisonment, and the trial court entered final judgment in accordance with the jury's verdict and sentencing recommendation. The trial court denied Driver's post-trial motion for judgment notwithstanding the verdict or, alternatively, for a new trial.

Upon review, the Court of Appeals determined that evidence of the prior bad acts committed by Driver against Vera was properly admitted; that evidence of his prior bad acts against his ex-wife was erroneously admitted but that the error was harmless; that the prosecutor's reference to Driver's prior bad acts in closing arguments was error; that the prosecutor's reference to the jury “helping the children” was error, but harmless; and that Driver was not entitled to a jury instruction on the charge of assault under extreme emotional distress.

We granted discretionary review principally to examine whether the prior bad acts evidence was properly admitted, and whether the trial court erred by denying the requested assault under the extreme emotional distress instruction.


The Commonwealth filed a pretrial notice pursuant to KRE 404(c) to-introduce the prior acts of violence Driver had committed against Vera and his former wife, Melinda. Driver responded with a motion in limine to exclude the evidence. Following a hearing, the trial court ruled that the prior bad acts evidence was admissible under an exception to KRE 404(b) for the purpose of showing that the injuries Vera incurred were not as a result of a mistake or accident, as she now claimed, but, were the result of Driver's intentional violent conduct. The trial court further limited the introduction of Driver's prior acts to conduct for which there had been an actual criminal conviction.

As a result of the trial court's ruling, and over Driver's continued objection, the Commonwealth introduced the following prior bad acts evidence at trial:

1. That in October 2002, Driver waived a butcher knife at Vera, slapped her, and threatened to kill her and, as a result, was convicted of fourth-degree assault, terroristic threatening, and wanton endangerment.

2. That in April 2002, Driver hit Vera with his hands, with a stick, with a clothes hanger, kicked her with his feet, threatened to have her throat cut with a butcher knife, pulled her hair, made her eat dirt, and put her in the trunk of their car.

3. That in 1995 Driver had been convicted of first-degree assault and wanton endangerment for beating his former wife with a .22 caliber rifle and baseball bat, thereby causing serious physical injuries to her, and that he had served time in prison as a consequence; and

4. That in 1995 Driver broke into his former wife's residence (his former home), attacked his former family, including his son, and threatened to burn down their trailer.

Driver contends that each of these prior bad acts should have been excluded pursuant to KRE 404(b).

1. KRE 404(b)

KRE 404(b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;....

Generally, evidence of crimes other than that charged is not admissible. KRE 404(b); Lawson, Kentucky Evidence Law Handbook, 3rd Ed., § 2.25 (1993). However, evidence of other crimes or wrongful acts may be introduced as an exception to the rule if relevant to prove motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident. KRE 404(b)(1). To be admissible under any of these exceptions, the acts must be relevant for some purpose other than to prove criminal predisposition, and they must be sufficiently probative to warrant introduction. Further, the probative value of the evidence must outweigh the potential for undue prejudice to the accused. Clark v. Commonwealth, 833 S.W.2d 793, 795 (Ky.1991); Chumbler v. Commonwealth, 905 S.W.2d 488, 494 (Ky.1995).

As this Court has previously stressed, KRE 404(b) is “exclusionary in nature,” and as such, “any exceptions to the general rule that evidence of prior bad acts is inadmissible should be closely watched and strictly enforced because of [its] dangerous quality and prejudicial consequences.” O'Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky.1982). To determine the admissibility of prior bad act evidence, we have adopted the three-prong test as described in Bell v. Commonwealth, 875 S.W.2d 882, 889–891 (Ky.1994), which evaluates the proposed evidence in terms of: (1) relevance, (2) probativeness, and (3) its prejudicial effect. We review the trial court's application of KRE 404(b) for an abuse of discretion....

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