Elery v. Commonwealth

• Decision Date: 21 June 2012
• Docket Number: No. 2010–SC–000669–MR.,2010–SC–000669–MR.
• Citation: 368 S.W.3d 78
• Parties: Michael ELERY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

368 S.W.3d 78

Michael ELERY, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000669–MR.

Supreme Court of Kentucky.

June 21, 2012.

Daniel T. Goyette, Louisville Metro Public Defender, Cicely Jaracz Lambert, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.

Jack Conway, Attorney General, William Bryan Jones, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant Michael Elery was convicted of murder, tampering with physical evidence, and violating a protective order. He was sentenced to life in prison with no possibility of probation or parole. Finding no error requiring reversal, this Court affirms his convictions and sentence.

I. Background

Appellant was convicted of murdering his girlfriend, Dana McDonald. Before the murder, McDonald and Appellant shared an apartment in Jefferson County, despite the fact that she had obtained a domestic violence order against Appellant.

On the night before the murder, McDonald and Appellant had an argument. The argument resumed the following morning. According to Appellant, while he was in the bedroom, McDonald entered the room carrying a kitchen knife, threatening “to cut [Appellant's] ass up.” Appellant later stated to police that he did not believe McDonald would actually hurt him. Nonetheless, he picked up a nearby hammer and struck the top of her head. In the ensuing fight, Appellant hit her again with the hammer. McDonald fell back against the wall but continued to fight back, apparently stabbing herself in the arm in the process. At that point, Appellant wrested the knife from McDonald and stabbed her in the throat two times. After stabbing McDonald in the throat the second time, Appellant choked her into unconsciousness.

Appellant then wrote a note on an index card stating “I don't know what is wrong with me but I'm killing myself, Mike.” He wiped off the knife and replaced the hammer under the sink, placed a bed sheet and dirty clothes over the walls and floor, took McDonald's cellular phone, and locked the apartment as he left.

While driving, he threw McDonald's phone out the window at 10th Street and Market Street. Following discussions with family members about what had just occurred, he threw his own cell phone away, purchased a bottle of liquor and proceeded to Harrison County Hospital in Indiana while drinking the liquor. Upon arrival, he asked that a sheriff be called. The officer answering the call arrested Appellant for public intoxication. Appellant spoke to police in Indiana, including a Louisville Police Detective, and confessed to killing McDonald. He was transported back to Louisville, where he spoke with Louisville Police officers at length about the death of McDonald. Both interviews were recorded.

Appellant was tried in Jefferson Circuit Court. He was convicted of murder, tampering with physical evidence, and violating a protective order. Though the Commonwealth sought the death penalty, Appellant was instead sentenced to life in prison without benefit of probation or parole. He thus appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

II. Analysis

Appellant makes eight arguments on appeal.¹ First, he asserts that the jury was impermissibly allowed to hear evidence of an uncharged crime. Second, he claims that it was error for the trial judge to include extreme emotional disturbance as an element of the manslaughter offense in the jury instructions. Third, he claims that the trial judge failed to adequately inform the jury about the role of reasonable doubt regarding the absence of extreme emotional disturbance in a murder conviction. Fourth, he claims the exclusion of a portable breathalyzer test was an error which resulted in prejudice. Fifth, he claims that the trial judge improperly struck a juror for cause, which resulted in the Commonwealth effectively receiving an additional peremptory challenge. Sixth, he claims that overly emotional victim impact testimony from McDonald's cousin was impermissibly admitted. Seventh, he claims the introduction of evidence that the victim had never been charged with a crime constituted manifest injustice. And eighth, he argues that he is entitled to relief based on the theory of cumulative error. These arguments will be addressed in turn below.

A. Incomplete Redaction of Appellant's Statements to Police.

Appellant first argues that statements made to the police concerning another crime were improperly admitted at trial. Appellant was interrogated by police in both Indiana and Louisville. Versions of recordings of these interrogations were played for the jury, which also looked at transcripts of the interrogations at the same time.

During the interrogations, in addition to confessing to killing his girlfriend, Appellant stated that he had killed another woman who had apparently lived in McDonald's living room and been a friend of McDonald. According to his statements to police in Indiana and Louisville, he beat the other woman on the head with the hammer after his altercation with McDonald, tied her up using clothesline rope, and eventually drowned her at Shawnee Park. However, Louisville police never found the body, nor was a missing persons report recorded matching the description Appellant made of this second individual. Appellant was not charged in the death of the other woman. Indeed, it appears that this additional crime may never have occurred.

Prior to trial, defense counsel moved to suppress Appellant's statements to police regarding this alleged incident on KRE 404(b), RCr 9.60, and constitutional due process grounds. The Commonwealth argued in favor of admissibility, but the trial court seemed to favor excluding the evidence. As a result, the Commonwealth agreed not to introduce the evidence. The Commonwealth then spent a lunch break redacting the recordings and transcripts, and a redacted version of both the Indiana and Kentucky statements was played to the jury. Jury members also received a redacted transcript of the statements to follow along while listening. Before playing the statements, the court instructed the jurors that the recordings were the evidence and the transcripts were only to assist them in following the recorded interrogations, were not evidence, and would not be taken back to the jury room during deliberations.

Despite the redactions, some statements touching on the other “crime” were played for the jury, and others were left in the transcripts. These statements are the subject of the present challenge. Appellant argues that they were erroneously admitted and improperly influenced the jury.

Appellant's motion in limine sufficiently preserved this issue for review. SeeKRE 103(d) (“A motion in limine resolved by order of record is sufficient to preserve error for appellate review”); see also Lanham v. Commonwealth, 171 S.W.3d 14, 22 (Ky.2005).

The first question is whether admission of statements referring to the other crime, whether it occurred or not, was error. As this is evidence of an uncharged, albeit possibly imagined, crime, it falls under KRE 404(b), which generally prohibits the admission of such evidence.² The Commonwealth does not claim that the evidence was admissible under an exception to KRE 404(b). Indeed, the Commonwealth effectively conceded that the evidence was inadmissible by consenting to redacting the transcript. Rather than arguing a KRE 404(b) exception, the Commonwealth argues on appeal that it is not clear whether the unredacted statements actually refer to another crime. If the statements did refer to another “crime,” then they were inadmissible under KRE 404(b). Rather than engaging in an extended analysis and parsing of the statements to decide whether they did refer to another crime (and thus fall under KRE 404(b)),³ the Court reads the Commonwealth's argument as essentially that admission of the statements was harmless error. In fact, the Commonwealth also expressly argues that admission of the statements was harmless error under RCr 9.24.

Criminal Rule 9.24 states that “no error in either the admission or the exclusion of evidence” will warrant reversal unless the “denial of such relief would be inconsistent with substantial justice.” The harmless error inquiry “is not simply ‘whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’ ” Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky.2009) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (alteration in original). ⁴

The statements at issue are described in detail below. When analyzed under the Winstead standard, it is clear that nothing more than harmless error occurred when the jury was exposed to this evidence.

The first statement challenged by the Appellant was heard by the jury on the recording of the first statement made in Indiana. Near the end of the Indiana interview, Appellant said, “I don't know who this other girl is. I just know that she'd just interfere and I was furious. All I remember is calling my momma while I was dropping her off. I know where I put her at. That's all I remember.” This statement was redacted from the transcript the jury saw, but it was left in the recording played in court and admitted into evidence.

The statement was harmless. Although a juror may have wondered who the “other girl” was, and what Appellant meant by “dropping her off,” there is no indication that Appellant caused harm to her. There is no real prejudice from the statement, as it would take substantial imagination, rather than reasonable inference, to reach the conclusion that Appellant harmed her. At most, the evidence could have resulted in some minor confusion of the...