McKinney v. Com.
| Decision Date | 27 September 2001 |
| Docket Number | No. 1998-SC-0837-MR.,1998-SC-0837-MR. |
| Citation | 60 S.W.3d 499 |
| Parties | Gary Casper McKINNEY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Julie Namkin, Thomas M. Ransdell, Assistant Public Advocate, Frankfort, Counsel for Appellant.
A.B. Chandler III, Attorney General, Susan Roncarti, Assistant Attorney General, Michael G. Wilson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
Appellant, Gary Casper McKinney, was convicted in the Pulaski Circuit Court on three counts of intentional murder, one count of second-degree arson, one count of tampering with physical evidence, and three counts of abuse of a corpse. He was sentenced to death for each murder count, five years for arson, one year for tampering with physical evidence, and twelve months each for the abuse of a corpse charges. For the reasons set forth herein, we reverse the judgment of conviction and remand the matter to the circuit court for a new trial.
On April 2, 1995, Appellant's neighbor, David Burton, received a phone call from another neighbor that Appellant's house was on fire. Burton immediately went to Appellant's house, which was engulfed in flames. Approximately thirty minutes after the fire department arrived at the scene, Appellant drove up, watched the fire for a few minutes, spoke with the firemen, and thereafter drove away. During the course of extinguishing the fire, firemen discovered three bodies, an adult and two children. The victims were later identified as Appellant's wife, Shirley Bowles McKinney, and her two children, 11-year-old Brian and 3-year-old Amy.
An autopsy of the three victims subsequently revealed that they had died as a result of gun shot wounds prior to the fire being set in the house. Kentucky State Police inspected the remains of the house and found not only numerous .22 caliber shell casings which were consistent with having been fired from Appellant's gun, but also discovered trace amounts of an accelerant used to start the fire.
On April 27, 1995, Appellant was indicted for the murders of Shirley, Brian and Amy. Following a trial, a jury found Appellant guilty on all charges and recommended three death sentences. Appellant appealed this to this Court as a matter of right. Because the case is being reversed and remanded, we will address only those issues affecting retrial or likely to occur upon retrial.
Prior to trial, the defense moved to preclude the Commonwealth from offering opinion evidence relating to Appellant's apparent lack of reaction to the death of his family on the day of the fire. In denying the motion, the trial court stated,
As a result, at trial the Commonwealth offered the testimony of ten witnesses who described how Appellant acted on the day of the fire. A neighbor testified that Appellant seemed "calm" and that he "acted normal" at the fire scene. Martha Owens, Shirley McKinney's sister, testified that when she broke the news to Appellant about the fire, he "just had his head down and his hands in his pockets," which she said was normal for him. Charles Bowles, Shirley's brother, stated that Appellant had "no reaction," did not "act any different that day than he had any other day," and did not "seem concerned." Several firemen who did not know Appellant testified that his demeanor was "nothing out of the ordinary," "non-emotional, and `like a normal person.'" Finally, Pulaski County Sheriff Sam Catron, who also did not know Appellant, stated that Appellant was "calm, didn't show any emotion" at the fire scene.
Appellant argues that the lay witness testimony was irrelevant and prejudicial. He contends that the only purpose of the testimony was to create an implication that he did not show any emotion because he was not saddened by the death of his family and that he was not surprised because he already knew they were dead, presumably because he had killed them prior to setting the fire. Moreover, Appellant contends that the evidence was inadmissible because it invaded the province of the jury as to the "ultimate issue".
While Appellant is certainly correct that his lack of emotion on the day of the fire could be perceived as an inference of guilt, we are of the opinion that the evidence was just as consistent with innocence. In fact, defense counsel emphasized during the cross-examination of several of the witnesses that Appellant was acting normal, which would imply a lack of suspicion or guilt on his part. The jury was free to weigh the credibility of each witness and draw its own conclusions.
We departed from the so-called "ultimate issue" rule in Stringer v. Commonwealth, Ky., 956 S.W.2d 883 (1997), cert. denied, 523 U.S. 1052, 118 S.Ct. 1374, 140 L.Ed.2d 522 (1998). Nevertheless, the witnesses here merely testified as to their observations of Appellant on the day in question. There was absolutely no testimony as to whether Appellant specifically "looked guilty " or not. The trial court properly allowed the witnesses' testimony.
Approximately three weeks before trial, the Commonwealth received notice from the defense that a mental health expert had been retained to testify as to Appellant's lack of emotion about the fire and the death of his family. The Commonwealth moved the trial court to exclude the testimony because the defense had not complied with the twenty-day notice rule set forth in RCr 7.24(3)(B)(i). At a hearing on the Commonwealth's motion, the defense proffered "psychological opinions" that Appellant suffered from Schizoid Personality Disorder, and that one of the characteristics of the disorder was a "restricted range of expressions of emotions in interpersonal settings."
In granting the Commonwealth's motion to prohibit the defense from calling an expert to explain Appellant's lack of emotional response, the trial court did not focus on any failure of the defense to comply with the notice rule. Rather, the trial court held the evidence was not properly admissible because: (1) "It is common knowledge and within the realm of experience of almost every adult that people differ in their reactions to tragic events[;]" and (2) "the use of the opinion that the Defendant had Schizoid Personality Disorder to explain the lack of emotional response contains fallacies which render it unhelpful." The trial court further noted a concern that "dueling psychological experts" would confuse the jury.
We are compelled to agree with Appellant that if his failure to have an emotional reaction on the day in question was relevant, which the trial court so ruled, then the fact that he suffers from Schizoid Personality Disorder is also relevant to explain why he possibly did not have any reaction. While the Commonwealth is correct that none of the lay witnesses expressed an opinion as to Appellant's guilt or innocence, their observations that Appellant appeared "calm", "normal," and lacking any emotional response certainly lend themselves to an inference that Appellant was guilty. Therefore, Appellant was entitled to counter that evidence with an expert opinion concerning the potential cause of his lack of emotion. The trial court committed prejudicial error in prohibiting the defense from offering such evidence. Therefore, we reverse the judgment of conviction on this issue.
Appellant argues that a crucial issue in his case was the time of death of the victims. At trial, he maintained that when he left the house on the morning of the fire, his wife and step-children were eating breakfast. However, Daniel Owens, a friend of Appellant's who was with him at the time he was arrested, claimed that Appellant admitted to having shot all three victims the night before the fire. As such, when the state medical examiner, Dr. John Hunsaker, informed the defense that he had preserved the stomach contents of the victims following their autopsy, the defense moved the trial court for funds to "contact a forensic pathologist who would be willing to discuss with the defense counsel the ways and means of conducting whatever testing or analysis is necessary on the preserved stomach contents to opine about the approximate time prior to death that these contents would have entered the victims' systems." The motion did not request funds for either actual testing or analysis. The trial court subsequently denied the motion on the grounds that the information sought by Appellant could be addressed by the state pathologist without disclosure of any confidential details of the defense.
KRS 31.110(1)(b) states that an indigent defendant is entitled "[t]o be provided with the necessary services and facilities of representation including investigation and other preparation." In addition, KRS 31.185(1) provides:
Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he considers their use impractical, the court concerned may authorize the use of private facilities to be paid for on court order by the county.
This Court has held that the allocation of funds for an independent expert is required only when the defendant has shown those services "reasonably necessary." flicks v. Commonwealth, Ky., 670 S.W.2d 837 (1984), cert. denied, 469 U.S. 1040, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). The trial court's denial of...
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