Hampton v. Com., 2002-SC-0291-MR.

• Decision Date: 19 February 2004
• Docket Number: No. 2002-SC-0291-MR.,2002-SC-0291-MR.
• Parties: Karen HAMPTON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

133 S.W.3d 438

Karen HAMPTON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2002-SC-0291-MR.

Supreme Court of Kentucky.

February 19, 2004.

As Amended April 19, 2004.

As Modified on Denial of Rehearing May 20, 2004.

John Palombi, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Samuel J. Floyd, Jr., Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

GRAVES, Justice.

Appellant, Karen Hampton, was convicted in the Laurel Circuit Court of the 1998 murder of her husband, Wade Hampton, as well as tampering with physical evidence. She was sentenced to fifty years imprisonment on the murder charge and five years on the tampering charge, to run consecutively for a total of fifty-five years imprisonment. She appeals to this Court as a matter of right.

Wade Hampton was sleeping on the morning of August 13, 1998, when Appellant and the couple's two children left the house around 7:30 a.m. According to Appellant, she took the children to school and then went to look for work at a tobacco patch. She left when she realized no one was working that day, and then went to a Dairy Mart to buy a Mountain Dew and cigarettes. The cash register receipt indicated Appellant had left the store before 7:57 a.m. She thereafter stopped at the home of Wade's aunt sometime between 8:00 and 8:30 a.m., leaving at approximately 8:45 a.m. Appellant stated that she returned home to find her husband lying on the floor with several gunshot wounds to his back. She stated that she called 911, and, at about 9 a.m., ran to her next-door neighbor's home, and told him of her discovery. She also told the neighbor that several items were missing from their trailer. A subsequent autopsy revealed that Wade died as a result of four gun shot wounds to the back, inflicted sometime between 7:00 and 8:00 a.m., although the coroner admitted that his estimate could have been off as much as an hour in either direction.

A couple of weeks after the murder, two garbage men were throwing items from Appellant's trash into the truck when a bowl broke open and .22 caliber ammunition spilled out. Upon further inspection, the men discovered a .22 caliber pistol inside a money bag that had been placed in a child's book bag. A forensic scientist with the Kentucky State Police later determined that the gun was, in fact, the murder weapon. Following several interviews with police, Appellant was arrested and later indicted for Wade's murder.

Following a trial in August 1999, Appellant was found guilty of murder and tampering with physical evidence, and was sentenced to forty-five years imprisonment. On appeal, this Court reversed the convictions and ordered a new trial on the grounds that the trial court erred in permitting the Commonwealth to introduce a scandalous and highly inflammatory true-crime novel as evidence relevant to Appellant's plan, intent and preparation.

Following a second trial in February 2002, Appellant was again convicted of murder and tampering with physical evidence. She was sentenced to fifty-five years imprisonment and appeals to this Court as a matter of right. Additional facts will be set forth as necessary.

I.

At trial, prosecution witness Jenny Goins testified that as a manager of Peoples Security Bank she made a loan to Appellant and Wade Hampton in the amount of $4,000.00. During the first trial, Goins was permitted to testify that Wade came into the bank in July 1998, after receiving a loan payment notice, complaining that he had never taken out a loan there and that he had not signed the loan papers that purportedly bore his signature. On appeal, we held that Goins testimony constituted an improper out-of-court hearsay statement made by the victim offered by the Commonwealth to prove the truth of the matter asserted, i.e., that Appellant and Wade were having financial and marital problems and that Appellant killed him for monetary reasons. This Court further noted that had the error been preserved, it would have been reversible, and thus concluded that absent the Commonwealth demonstrating an exception justifying the admission of the statement, such was inadmissible on retrial.

At the second trial, Goins testified that she compared the signature on the loan papers with that on Wade's driver's license, and that "it didn't look like the same signature to [her]." Appellant argues that Goins was improperly permitted to give lay testimony as to the authenticity of Wade's signature even though she was not sufficiently familiar with his handwriting to do so. Again, any error is unpreserved as defense counsel did not object to Goins' testimony.

The Commonwealth responds that Goins was sufficiently familiar with what was purported to be Wade's handwriting since she processed the loan, and thus, she was properly permitted to express her opinion that the signatures did not look the same. We disagree. In fact, the documents that the Commonwealth contends established Goins' familiarity, the loan papers, are that which it seeks to prove as a forgery.

Notwithstanding, we conclude that Goins' testimony falls squarely within KRE 701, which permits a nonexpert witness to an express an opinion which is rationally based on the perception of the witness and is helpful to a determination of a fact in issue. In Clifford v. Commonwealth, Ky., 7 S.W.3d 371 (1999), we commented:

The adoption of KRE 701 in this Commonwealth signaled this Court's intention to follow the modern trend clearly favoring the admission of such lay opinion evidence. KRE 701 reflects the philosophy of this Court, and most courts in this country, to view KRE 701 as more inclusionary than exclusionary when the lay witness's opinion is rationally based on the perception of the witness and is helpful to the jury or trial court for a clear understanding of the witness's testimony or the determination of a factual issue.

Clifford, supra, at 377 (Johnstone, J. concurring).

This case is analogous to Crowe v. Commonwealth, Ky., 38 S.W.3d 379 (2001), wherein a witness testified that he observed what appeared to him to be a spot of blood the size of a golf ball on the defendant's floor, but that when he returned after leaving the room, the substance was gone. In upholding the testimony, we stated:

Flora did not opine that the substance was blood; he only stated that it appeared to him to be blood, i.e., it looked like blood. His testimony was rationally based on his own perception of what he personally observed and was helpful in determining a fact in issue, viz: whether Appellant attempted to conceal the fact that there was blood inside his residence. KRE 701.

Crowe, supra, at 384. Similarly, Goins did not opine that the signatures on the loan documents were, in fact, forged. Rather, she stated that in her opinion the signatures on the documents and the signature on Wade's driver's license did not look the same. Thus, Goins' testimony was based on her personal observation and was helpful to determining a fact in issue, viz: whether Appellant had a financial motive for murdering her husband. Accordingly, Goins' testimony was properly admissible under KRE 701.

II.

Appellant was originally indicted for second-degree cruelty to animals stemming from evidence that she shot and killed the family cat at about the same time as she shot her husband in an effort to confuse the crime scene. However, at Appellant's first trial, the trial court granted her motion for a directed verdict on that charge. Nonetheless, Appellant contends that the Commonwealth impermissibly introduced evidence at the second trial concerning the death of the cat. Appellant concedes that any error is unpreserved but argues that such was palpable under RCr 10.26.

Although Appellant could obviously not be retried for the cruelty to animals offense, the Commonwealth stated during a pretrial conference that it intended to introduce evidence regarding the dead cat as it related to Appellant's commission of the other offenses. Specifically, the Commonwealth introduced evidence that Appellant had told a Detective Owens that a neighbor had shot the cat. However, Appellant's daughter and a Sheriff's Deputy, Buddy Blair, both testified that Appellant told them that Wade had shot the cat the previous day. Finally, Appellant herself testified that she had no idea how the cat had died. Since the forensic report indicated that the cat was killed with the same type of weapon used to shoot Wade, and since the examiner concluded that the cat died within the same time frame as Wade, the Commonwealth maintains that Appellant's conflicting statements about the death of the cat were relevant and admissible.

Appellant relies on this Court's decision in Commonwealth v. Hillebrand, Ky., 536 S.W.2d 451 (1976), wherein we held that the Commonwealth is precluded from introducing evidence of issues that "must have been decided" against the Commonwealth at the previous trial. Citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). It is Appellant's position that the trial court granted a directed verdict on the animal cruelty charge because the Commonwealth was unable to prove that she killed the cat. Thus, since the issue was necessarily decided against the Commonwealth at the first trial, Appellant argues that it should have been prohibited from introducing any evidence relating to the cat regardless of whether she was being tried for the offense or not.

In Benton v. Crittenden, Ky., 14 S.W.3d 1 (2000), this Court noted in dicta that in a post-Ashe decision, Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), the United States Supreme Court concluded that an acquittal does not bar evidence of the same conduct in a subsequent trial. In Dowling, the Government introduced evidence of a previous residential robbery for which the defendant had been acquitted for the purpose of...