Roe v. Commonwealth, 2013–SC–000793–MR

• Decision Date: 24 September 2015
• Docket Number: 2013–SC–000793–MR
• Citation: 493 S.W.3d 814
• Parties: Marty Lee Roe, Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

493 S.W.3d 814

Marty Lee Roe, Appellant

v.Commonwealth of Kentucky, Appellee

2013–SC–000793–MR

Supreme Court of Kentucky.

RENDERED: SEPTEMBER 24, 2015

REHEARING DENIED MAY 5, 2016

MODIFIED: MAY 5, 2016

CORRECTED: NOVEMBER 14, 2016

Counsel for Appellant: John Gerhart Landon, Assistant Public Advocate, Department of Public Advocacy.

Counsel for Appellee: Andy Beshear, Attorney General of Kentucky, Leilani K.M. Martin, Assistant Attorney General.

MEMORANDUM OPINION OF THE COURT

A circuit court jury convicted Marty Roe of murdering Martha Post, tampering with physical evidence, and harassing communications, a misdemeanor charge. Roe was sentenced to life imprisonment. On appeal to this Court as a matter of right,¹ he raises a host of trial errors that allegedly rendered the judgment entered against him fundamentally unfair. We find no error at trial and affirm the judgment.²

I. FACTUAL AND PROCEDURAL BACKGROUND

At the end of her workday, Martha Post, a dermatologist, left the building that housed her medical practice, Commonwealth Dermatology (“ComDerm”), as well as her husband's internal-medicine practice; stepped into her van; and started the engine. As she sat there, parked in the grass next to the building, security cameras reveal that a man approached her van. After a brief exchange of words, the man fired three gunshots into the van and fled the scene. Post suffered gunshot wounds to the neck, left thigh, and chest. The chest wound was fatal.

Immediately after the shooting, as Post was succumbing to her injuries, her van rolled into a nearby parking lot, where it collided with a vehicle driven by Sandra Schroeder. Schroeder had noticed Post's van nearby and observed that she was engaging in conversation with a man standing by the driver's side window. She characterized the man as a “landscaper” because of his attire and the van's location on the grass. She could not identify that man, but investigators later determined that man was Marty Roe.

Roe was a long-time acquaintance of Post and her family. Roe and Post had met some four years before the murder when he was an assistant on a remodeling project at ComDerm. Roe was homeless at the time, and Post agreed to let him live in the basement of ComDerm, where he began working as the building's handyman the next few years. While living at ComDerm, Roe became familiar with Post's family, including her husband, Robert Truitt, an internal medicine physician, and their three daughters. Roe even attended family functions and holiday celebrations. But the amicable relationship between Roe and the Post–Truitt family derailed when Roe began expressing romantic feelings for Post.

About a year before the murder, Roe was fired and evicted from ComDerm. This occurred for a number of reasons, but primarily because of his progressively erratic behavior and his obsession with Post. Even after his eviction, Roe believed that he would eventually achieve a romantic relationship with Post. He continued to send her gifts; repeatedly called her cell phone; and began leaving her increasingly bizarre messages, some of which contained violent or threatening undertones. About ten months before the murder, Post took recordings of messages she received from Roe to the county attorney's office and filed a criminal complaint against Roe for harassing communications because of the intrusive frequency and threatening nature of their contents. Contact between Roe and Post then ceased for about eight months.

After Post banished him from ComDerm, Roe bought a van and moved to Ohio. His first return trips back into Kentucky began shortly before the murder, around the time that Post began receiving repeated phone calls and messages from him again. Roe says he went to Kentucky to visit his daughters in attempt to give one of them his van. On the afternoon of Post's murder, Roe was spotted at a bar near the ComDerm facilities. Receipts show that in the days following the murder, Roe made a sojourn into east Tennessee, where he stayed for a while before returning to Ohio.

Law enforcement arrested Roe in Ohio. When searching his van, officers found a handgun wrapped in plastic lodged under the hood. A DNA analysis found Roe's DNA on the gun, along with one other partial profile of an unknown individual. A ballistic analysis of the shell casings confirmed that this gun was the same one used to kill Post.

Roe was charged with Post's murder, felony tampering with physical evidence, and misdemeanor harassing communications. At trial, he presented an alternate-perpetrator theory of defense, suggesting that Post's husband, Truitt, played a role in his wife's death, perhaps by engaging the services of a contract killer. The jury ultimately found Roe guilty on all three counts, sentencing him to life imprisonment for murder, five years for tampering with physical evidence, and ninety days for harassing communications, to run consecutively. Recognizing that a term of years' sentence may not run consecutively with a life sentence, the trial court ordered his sentences to run concurrently.³

II. ANALYSIS.

Roe's appeal presents seven allegations of error: (1) the trial court allowed improper and prejudicial opinion testimony from witnesses with no personal knowledge, (2) the trial court allowed prejudicial victim-impact evidence during the guilt phase of Roe's trial, (3) Roe's right to present a defense was violated when the trial court excluded evidence crucial to Roe's alternate-perpetrator theory, (4) a violation of Batson v. Kentucky⁴ occurred during jury selection, (5) the trial court erred in sentencing Roe without the benefit of a PreSentence Investigation (PSI) Report, (6) cumulative error, and (7) the trial court inappropriately imposed court costs. We will address each of these issues in turn.

The issues presented are largely unpreserved below, and we will employ two separate standards of review. For non-constitutional issues preserved at trial, we will review the evidence for whether an error substantially sways the judgment.⁵

The test is not “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.”⁶ As for unpreserved issues, Kentucky Rules of Criminal Procedure (RCr) 10.26 authorizes us to reverse the trial court only upon a finding of “manifest injustice.”⁷ This occurs when “the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’ ”⁸

A. The Trial Court Did Not Allow Improper Opinion Testimony.

During the Commonwealth's case-in-chief, members of Post's family and work associates were called to testify to their knowledge of the relationship between Roe and Post. The witnesses all testified that Roe had sent Post frequent and disturbing messages and that after learning of her death, they instantly “thought of” Roe. But Roe's counsel never objected to this specific evidence at trial and, as such, failed to preserve this issue for our review. Nevertheless, Roe asks us to review the testimony below for palpable error under RCr 10.26. He primarily claims that the testimony was both irrelevant to his guilt and improper opinion testimony from lay witnesses who lacked personal knowledge. Roe does present a persuasive argument as to the relevance of this particular testimony, but because he failed to object at trial, we will not reverse absent a conclusion that the identification testimony rendered his trial manifestly unjust.

The Kentucky Rules of Evidence (KRE) state that evidence is relevant if it has “any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”⁹ This standard is powerfully inclusionary and is met upon a showing of minimal probativeness.¹⁰ As for opinion testimony from lay witnesses, such evidence is permitted so long as the opinions are rationally related to the witness's perceptions; helpful to an understanding of the testimony or determination of a fact in issue; and not based on scientific, technical, or specialized knowledge.¹¹

This issue centers on the testimony of five witnesses: (1) Post's sister, Elizabeth Post; two of Post's daughters, (2) Caitlyn Truitt and (3) Erin Truitt; (4) her husband, Robert Truitt; and (5) former employee, Sara Smith. All five witnesses knew both Post and Roe, and each had an understanding of Roe's romantic infatuation with Post. They testified to their knowledge of Roe's persistent contact with Post and were asked to describe their thoughts upon learning of Post's murder.

Because Roe's counsel only preserved certain pieces of each witness's testimony, we will review excerpts of each witness's statements individually.

1. Elizabeth Post.

Elizabeth Post came to the crime scene the evening that Post was murdered and spoke with police as they were conducting their investigation. The Commonwealth called her to testify about her observations that night and her impressions hours after the shooting. Post had told Elizabeth about Roe's incessant communications, which Elizabeth termed “creepy and haunting.” She testified that police asked her if she knew of anyone who would want to harm Post, and Roe instantly came to her mind. Elizabeth went on to say that Truitt arrived at the scene where he commented, “Well, he did it, he finally did it.” Roe's counsel only objected to Elizabeth's characterization of the text messages Post received from Roe and, therefore, leaves any review of the rest of the testimony unpreserved.

We see no palpable error in the trial court's admitting Elizabeth's testimony. Because Elizabeth had been apprised of the situation by Post and had knowledge of Roe's messages, this testimony appears to be a classic use of her own impressions of the situation. Her identification of Roe as the only person she envisioned who would wish Post harm...