Ratliff v. Com.

• Decision Date: 15 June 2006
• Docket Number: No. 2004-SC-0452-MR.,2004-SC-0452-MR.
• Citation: 194 S.W.3d 258
• Parties: Nick RATLIFF, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

194 S.W.3d 258

Nick RATLIFF, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2004-SC-0452-MR.

Supreme Court of Kentucky.

June 15, 2006.

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Julie Namkin, Assistant Public Advocate, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, State Capitol, Ian G. Sonego, Tami Allen Stetler, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

MEMORANDUM OPINION OF THE COURT

Appellant, Nick Ratliff, was convicted by a Lawrence Circuit Court jury of intentional murder, KRS 507.020(1), for which he was sentenced to fifty years in prison, and seven counts of first-degree criminal abuse, KRS 508.100(1)(c) (torture or cruel punishment), for which he was sentenced to ten years in prison on each count.

On January 27, 2002, Tammy Kirk, Appellant's domestic companion, presented L.M., her twenty-month-old daughter by another relationship, to Three Rivers Medical Center ("Three Rivers") in Lawrence County, Kentucky. An x-ray revealed L.M. had a fractured left humerus for which no cause was stated except that she might have caught her arm in the slats of her crib. L.M. was discharged on February 1, 2002, to the care of her mother, Kirk. On February 4, 2002, L.M. was again presented to Three Rivers for treatment of crusty lesions around her mouth, belly, and on one wrist, which was diagnosed as impetigo. Treating officials also noted bruising around her lower jaw, which Kirk attributed to the sling L.M. wore for the broken arm.

Four days later, on the morning of February 8, 2002, L.M. was presented to the hospital, where, upon examination, she was pronounced dead. She was reportedly found dead in her bed at Appellant's apartment by Appellant while Kirk was asleep. During the failed resuscitation attempt at Three Rivers and the subsequent postmortem examination of L.M.'s body, a number of injuries were discovered which formed the bases for Appellant's convictions of murder and criminal abuse.

Appellant appeals his convictions and sentences to this court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error by the trial court: (1) denial of his motions to sever the count of murder from the counts of criminal abuse and to sever his prosecution from that of his codefendant, Kirk (2) denial of his motion to strike two venirepersons for cause; (3) denial of his motions for directed verdicts of acquittal with respect to all counts; (4) denial of his motion to exclude opinion testimony of Dr. Betty Spivack; (5) admission of gruesome photographs; (6) denial of his motion to merge all seven counts of criminal abuse into one count; (7) refusal to instruct the jury on lesser degrees of homicide and criminal abuse; (8) refusal to inquire into allegation of sleeping juror; and (9) errors in the amended final judgment. We affirm Appellant's convictions but vacate the judgment and remand this case to the Lawrence Circuit Court with directions to enter a new final judgment.

I. SEVERANCE.

Appellant asserts error in the denial of his RCr 9.16 motion to sever (1) the murder count from the criminal abuse counts against him; and (2) his own criminal prosecution from the prosecution of Kirk. RCr 9.16 provides in pertinent part:

If it appears that a defendant . . . will be prejudiced by a joinder of offenses or of defendants in an indictment, ... the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires.

Under RCr 9.16, "a defendant must prove that joinder would be so prejudicial as to be `unfair' or `unnecessarily or unreasonably hurtful.'" Commonwealth v. Rogers, 698 S.W.2d 839, 840 (Ky.1985); see also Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky.1992); Ware v. Commonwealth, 537 S.W.2d 174, 176-77 (Ky.1976). A trial judge has broad discretion in ruling on an RCr 9.16 motion, and that determination will not be overturned on appeal unless an abuse of discretion is shown. Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky.1999); Foster v. Commonwealth, 827 S.W.2d 670, 679-80 (Ky.1991). We review each claim separately.

A. Severance of Charges.

Appellant argues that failure to sever the seven counts of first-degree criminal abuse from the murder count was an abuse of discretion because a finding of guilt as to the criminal abuse charges would unfairly prejudice the jury against him as to the murder charge.

A significant factor in identifying such prejudice is the extent to which evidence of one offense would be admissible in a trial of the other offense. In the case at bar, the evidence relating to the abuse charge would have been admissible in a trial on the murder charge, not, as Appellant mischaracterizes it, as proof of criminal disposition, but, rather, as proof of a similar course of conduct or common scheme or plan.

Commonwealth v. Collins, 933 S.W.2d 811, 816 (Ky.1996) (citations and quotation omitted); see also Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky.1993). Furthermore, "the joinder of offenses ... is proper where the crimes are closely related in character, circumstances, and time." Seay v. Commonwealth, 609 S.W.2d 128, 130-31 (Ky.1980) (citations omitted); see also Cannon v. Commonwealth, 777 S.W.2d 591, 597 (Ky.1989). In the case sub judice, the injuries that substantiated the acts of abuse and murder were inflicted within a span of two weeks. They are similar in character and circumstance in that each occurred in either Kirk's or Appellant's apartment, and each occurred when there were no other witnesses present. Further, evidence of other assaults perpetrated by a defendant against the same victim is generally admissible to prove intent and motive with respect to the subsequent assault. Cf. Price v. Commonwealth, 31 S.W.3d 885 888 & n. 4 (Ky.2000) (prior sexual assaults perpetrated against same victim admissible to prove intent, motive, and plan to commit subsequent sexual assault).

Appellant cites Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky.1977), for the proposition that different criminal charges should be severed when a finding of guilt as to one charge would cause the jury to be "less inclined" to believe the defendant was innocent of the other charge. However, Romans involved the joinder against one criminal defendant of two charges of rape involving two different victims, where the defense to one charge was consent of the victim, whom the defendant claimed was a prostitute (and the victim had been previously convicted of soliciting prostitution), whereas the defense to the other charge was alibi, i.e., that he was not the perpetrator, and there was undisputed evidence that the victim had been forcibly raped by someone. Id. at 130-31. The coalescence of the prostitution defense, the first victim's previous conviction, and the undisputed forcible rape perpetrated against the second victim easily distinguishes the facts in Romans from the case sub judice. In this case both the victim and the defense (alibi) are identical for all joined counts.¹

B. Severance of Parties.

Appellant argues that failing to sever his trial from that of Kirk was error because Kirk blamed him as the principal actor in the abuse and murder of L.M. and, for that reason, the denial of his RCr 9.16 motion was an abuse of discretion.²

Although antagonism between the defenses of two codefendants is a relevant consideration in deciding whether to sever charges, "[t]he movant must show that the antagonism between the codefendants will mislead or confuse the jury." Foster v. Commonwealth, 827 S.W.2d 670, 679-80 (Ky.1991); see also United States v. Horton, 847 F.2d 313, 317 (6th Cir.1988).

[N]either antagonistic defenses nor the fact that the evidence for or against one defendant incriminates the other amounts, by itself, to unfair prejudice.... That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.

Ware, 537 S.W.2d at 177.

Furthermore, Appellant's defense was not clearly antagonistic to Kirk's; they were actually consistent in that both affirmed throughout the trial that neither had ever harmed L.M. in any way and that neither had ever seen the other do so. The fact that an inference arises from the facts tending to inculpate Appellant (and Kirk) does not make their defenses antagonistic. See generally Davis v. Commonwealth, 967 S.W.2d 574, 581 (Ky.1998) (holding joinder of defendants proper where two codefendants were indicted for criminal abuse and one was indicted for homicide for death of child).

II. JURY CHALLENGES.

Appellant asserts that the trial court committed reversible error by refusing to strike three jurors for cause. RCr 9.36(1) provides that a motion to strike for cause should be granted "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence." We review a trial court's ruling on such a motion for an abuse of discretion. Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003); Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky.2002).

The right to an impartial jury is a fundamental constitutional right, a violation of which may never be harmless. Paenitz v. Commonwealth, 820 S.W.2d 480, 481-82 (Ky.1991). A potential juror should be excused for cause only when the juror cannot conform his/her views to the requirements of law and render a fair and impartial verdict. Mabe v. Commonwealth, 884 S.W.2d 668, 670-71 (Ky.1994). "It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause." Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky....