Peacher v. Commonwealth

Decision Date21 February 2013
Docket NumberNos. 2011–SC–000248–MR, 2011–SC–000254–MR.,s. 2011–SC–000248–MR, 2011–SC–000254–MR.
Citation391 S.W.3d 821
PartiesJoshua PEACHER, Appellant v. COMMONWEALTH of Kentucky, Appellee. and Nereida Allen, Appellant. v. Commonwealth of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky


David Lambertus, Tricia Frances Lister, Louisville, KY, Counsel for Appellant, Joshua Peacher.

Bruce P. Hackett, Chief Appellate Defender, Cicely Jaracz Lambert, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant, Nereida Allen.

Jack Conway, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Joshua Peacher and Nereida Allen appeal as a matter of right from Judgments of the Jefferson Circuit Court following a joint trial in which both were convicted of murder (Kentucky Revised Statute (KRS) 507.020), first-degree assault (KRS 508.010), and first-degree criminal abuse (KRS 508.100). These charges stemmed from their mistreatment of Allen's two-year-old nephew, Christopher Allen, resulting in serious physical injuries and his death. The couple was also convicted of abuse-Peacher of first-degree and Allen of third-degree abuse—for their mistreatment of Allen's other two-year-old nephew, Wyatt Allen (Christopher's half-brother). For these crimes the trial court sentenced Peacher, in accord with the jury's recommendation, to consecutive terms of imprisonment with the total sentence of ninety (90) years reduced to the statutory maximum of seventy (70) years. Also in accord with the jury's recommendation, the trial court sentenced Allen to consecutive terms of imprisonment totaling forty-seven (47) years. Because of both the joint trial and the underlying facts common to both cases we have consolidated their appeals for consideration in this single opinion.

On appeal Peacher maintains that the trial court erred (1) by refusing to grant the defendants separate trials; (2) by refusing to sever the charges relating to Christopher from the charge relating to Wyatt; (3) by giving complicity jury instructions which were not supported by the evidence and which incorrectly reflected the law of complicity; (4) by failing to give jury instructions that factually distinguished the murder and assault charges relating to Christopher; (5) by denying Peacher's motion to suppress statements he made to the investigating police officers; and (6) by denying motions for mistrial when, during closing arguments, counsel for Allen and for the Commonwealth made reference to facts not in evidence. For her part, Allen likewise maintains that the trial court's jury instructions failed to distinguish the separate charges relating to Christopher. She maintains additionally that the trial court erred by denying her motion for a directed verdict of acquittal. After careful review, we find no reversible error and affirm the trial court's Judgments.


On Monday, August 25, 2008, a case worker for Child Protective Services ordered Allen's twin sisters, Janet and Jeannette Allen, to clean and repair deplorable conditions at the home they shared in east Louisville and in the meantime to provide alternate housing for their two sons, Janet's twenty-eight month-old son, Wyatt, and Jeanette's twenty-seven month-old son, Christopher. 1 According to the social worker, at the time she visited the home and talked to the mothers both boys were active and alert, were without significant bruises or other obvious signs of injury, and appeared to be normal two-year-olds. At the sisters' request, the social worker contacted Allen, with whom Wyatt had spent most of the preceding six to eight weeks, and Allen agreed to take in the two children. Accordingly, later that afternoon Allen and her live-in boyfriend, Peacher, picked up the boys and took them to their home on Holly Park Drive in south Louisville. Not quite forty-eight hours later, at about 2:00 pm on Wednesday, August 27, EMS workers responded to a 911 call from Allen and found Christopher in Allen's bedroom unconscious and in full cardiac arrest. They took the child to nearby Sts. Mary and Elizabeth Hospital, where doctors were able to reestablish a heartbeat. The child was then, at about 3:00 pm, transported to Kosair Children's Hospital, where scans and other tests revealed that Christopher had suffered severe head injuries rendering him brain dead. He also had numerous severe injuries to his abdominal organs. At about 2:00 pm the next day, August 28, Christopherwas removed from life support and pronounced dead.

Peacher and Allen were jointly tried in February 2011. Their pretrial motions for separate trials were denied as were their motions to sever the charges pertaining to Christopher from the one charge involving Wyatt. Peacher also moved to suppress his police statements but the trial court denied the motion, ultimately allowing the introduction of redacted statements from both defendants.

At trial, the Commonwealth's medical proof included testimony by Dr. Melissa Currie, a child abuse pediatrician. She examined Christopher not long after his arrival at Kosair and documented with photographs, which were presented to the jury, the multitude of bruises he bore literally from head to foot. Among the many bruises on Christopher's head and face, the doctor noted in particular two large bruises on either side of Christopher's neck, just below his jaw. Although the reason is not known, such bruises, according to the doctor, frequently appear on babies who have been violently shaken. Dr. Currie also noted bruises on and behind Christopher's ears, bruises difficult to inflict, she testified, because there is not much blood in those areas. According to the doctor, the bruises were therefore indicative of severe blunt force trauma to both sides of the child's head. The abdomen is another area difficult to bruise, Dr. Currie testified, because there are no bones close to the surface against which the skin can be crushed, the usual reason for a bruise. Nevertheless, Christopher's abdomen had been bruised numerous times, indicating that he had been repeatedly subjected to blunt force blows to his abdomen so severe as to crush the top of his abdomen against his spine. Dr. Currie also noted the extensive bruising to Christopher's penis, scrotum, and groin, bruises again, in her opinion, which could only have resulted from such severe blunt force trauma as repeated kicks. Asked when the injuries to Christopher would have been inflicted, the doctor testified that unfortunately with only one exception the color of a bruise is not a reliable indicator of its age. The exception is the color yellow. According to Dr. Currie, not all bruises turn yellow, but those that do, do not do so until they are about eighteen hours-old. Since none of Christopher's myriad bruises had yellowed, the doctor thought it likely that some of them, at least, had been inflicted during the eighteen hours immediately prior to her examination at 5:00 pm, on August 27, i.e. sometime after about 11:00 pm on Tuesday night, August 26.

With respect to the timing of Christopher's injuries, neither the medical examiner nor the neuro-pathologist who assisted her was able to be more precise. Dr. Donna Stewart, the medical examiner, testified that the cause of Christopher's death was multiple blunt force impacts: extreme and repetitive beating. Her autopsy revealed that Christopher's brain had hemorrhaged on all sides—top, bottom, and all around—and had swelled severely. His head injuries, which included retinal bleeding, an injury often associated with babies who have been violently shaken, were surely fatal. Likely fatal as well were Christopher's numerous abdominal injuries. Virtually every organ in Christopher's torso, with the exception of his heart and lungs, was injured: liver, stomach, gall bladder, spleen, pancreas, intestines, and right adrenal gland. Several of those organs were torn and had hemorrhaged. Asked how long it would have taken for his injuries to render Christopher incapacitated, Dr. Stewart testified that while both the head and the abdominal injuries would have become symptomatic soon after their infliction—the possiblesymptoms including vomiting, thirst, lethargy, lack of appetite, and glazed eyes—she could not say in what order those injuries had been inflicted and could only say with respect to when they had been inflicted that none of them was likely to have preceded Christopher's death by more than forty-eight hours.

The medical examiner was assisted by Dr. Greg Balko, a neuropathologist, who examined samples of Christopher's brain tissue microscopically. Dr. Balko testified that in brains deprived of oxygen, as Christopher's would have been due to hemorrhaging and swelling, the brain cells, the neurons, gradually die and decompose and that it is possible, therefore, by determining the degree of cell death and decomposition, to estimate how long prior to the individual's death the brain injury occurred. According to Dr. Balko, when Christopher died, at about 2:00 pm on Thursday, August 28, 2008, and the process ceased, his brain was still in the relatively early stages of cell death and decomposition, indicating to the doctor that Christopher's brain injury had been sustained within about forty-eight hours of death, or sometime after about 2:00 pm on Tuesday afternoon, August 26. Pressed on the issue of timing by counsel for Peacher, Dr. Balko agreed that Christopher's brain injuries probably occurred within a few to several hours prior to his arrival at the hospital. Dr. Stewart concurred in that estimate, but noted that “several hours” could be as many as twenty-four. All of the medical experts agreed, in other words, that Christopher's catastrophic injuries occurred sometime after Monday afternoon, when Peacher and Allen had taken Christopher into their custody. Drs....

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