Schrimsher v. Com.

• Decision Date: 20 April 2006
• Docket Number: No. 2004-SC-0544-MR.,2004-SC-0544-MR.
• Citation: 190 S.W.3d 318
• Parties: Joseph Michael SCHRIMSHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

190 S.W.3d 318

Joseph Michael SCHRIMSHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-SC-0544-MR.

Supreme Court of Kentucky.

April 20, 2006.

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Margaret Foley Case, Appeals Branch Manager, Department of Public Advocacy, Julie Namkin, Assistant Public Advocate, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, State Capitol, Michael Harned, Bryan D. Morrow, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

A McCracken Circuit Court jury convicted Appellant, Joseph Michael Schrimsher, of three counts of wanton assault in the first degree, KRS 508.010(1)(b), one count of wanton assault in the second degree, KRS 508.020(1)(c), and one count of criminal abuse in the first degree, KRS 508.100. He was sentenced to twenty years for each conviction of first-degree assault and ten years for the conviction of second-degree assault, to be served concurrently, and an additional ten years for the conviction of criminal abuse, to be served consecutively, for a total of thirty years in prison. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

On February 23, 2003, A.S., Appellant's six-month-old daughter, was presented to the emergency room at Western Baptist Hospital in Paducah, Kentucky, by her biological mother, Erica Porter, for examination of swelling on the back of the child's head. In addition to the swelling, A.S. had bruises and scratches on her face. A C.T. scan revealed that A.S. had multiple skull fractures on both sides of her head. She was transferred to Kosair Children's Hospital in Louisville, Kentucky, and hospital officials contacted the social services division of the Cabinet for Families and Children. Further examination of A.S. revealed that, in addition to five skull fractures, she had the following injuries (in varying stages of healing): several contusions or abrasions around her head, neck, and thigh, multiple rib fractures on both her left and right sides, fractures of the tibia and fibula of her right leg, and a lacerated liver. Additionally, she was in a state of severe malnutrition (the basis for the indictment and conviction of criminal abuse). Both Porter and Appellant, A.S.'s biological father and Porter's live-in boyfriend, were indicted for various degrees of assault or complicity to assault and criminal abuse.

Appellant now challenges his convictions, asserting five counts of reversible error, viz: (1) failure to sever his trial from Porter's and improper redaction of Porter's out-of-court statements; (2) failure of the indictment and the jury instructions on assault to specify what conduct on his part caused A.S.'s injuries; (3) insufficiency of the evidence to support his convictions; (4) denial of Appellant's request to show the entirety of his videotaped police interrogation; and (5) failure to instruct the jury on assault under extreme emotional disturbance. Finding no error, we affirm.

I. FAILURE TO SEVER.

Appellant argues that the trial court's denial of his motion to sever his trial from Porter's violated his Sixth Amendment right of confrontation. Because the Commonwealth intended to introduce out-of-court admissions made by Porter during a police interrogation that tended to incriminate Appellant, Appellant moved for a severance pursuant to RCr 9.16 or, alternatively, for a redaction of any of Porter's statements made during the interrogation that inculpated him. The Commonwealth recognized the potential confrontation problem and prepared a redacted transcript of Porter's statements. The trial court denied Appellant's motion to sever, but granted the motion to redact. Appellant claims that the Commonwealth's redacted transcript still contained statements incriminating him.

We review a trial court's ruling on a motion to sever for an abuse of discretion. Foster v. Commonwealth, 827 S.W.2d 670, 679-80 (Ky.1991); Boggs v. Commonwealth, 424 S.W.2d 806, 808 (Ky. 1966); Smith v. Commonwealth, 375 S.W.2d 819, 820 (Ky.1964). A criminal defendant is entitled to a severance only upon a showing, prior to trial, that joinder would be unduly prejudicial. RCr 9.16; Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky.1992). Appellant argues that denial of his motion to sever was unduly prejudicial because his right to confrontation was violated when the Commonwealth introduced admissions made by Porter during its case-in-chief without first calling Porter as a witness.

The Sixth Amendment to the United States Constitution guarantees a defendant in any prosecution the right to confront all witnesses against him. Pointer v. Texas, 380 U.S. 400, 400-401, 85 S.Ct. 1065, 1066, 13 L.Ed.2d 923 (1965). The introduction of a non-testifying co-defendant's admission that expressly implicates the defendant violates the defendant's right of confrontation. Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968). However, a Bruton problem may be cured by an appropriate redaction of the co-defendant's confession, so long as "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987); Barth v. Commonwealth, 80 S.W.3d 390, 394 (Ky.2001).

[A] joint trial utilizing a properly redacted statement is appropriate where given the totality of the circumstances no substantial prejudice will result. It is appropriate where the statement does not provide details that point unerringly to the nonconfessing defendant. Indeed, although inappropriate, it is not reversible error where the proof against the nonconfessing codefendant is so overwhelming that no possible prejudice resulted, the "harmless beyond a reasonable doubt" standard that applies to constitutional error. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967).

Cosby v. Commonwealth, 776 S.W.2d 367, 370 (Ky.1989), overruled on other grounds by St. Clair v. Roark, 10 S.W.3d 482, 487 (Ky.1999).

A redaction that is facially valid may still amount to a Sixth Amendment violation if it can only be reasonably interpreted as inculpating the defendant. Gray v. Maryland, 523 U.S. 185, 188, 118 S.Ct. 1151, 1153, 140 L.Ed.2d 294 (1998); Barth, 80 S.W.3d at 395. However, the introduction of a redacted statement that improperly incriminates a co-defendant does not violate the Sixth Amendment if the declarant subsequently testifies and is available for cross-examination, even if the redacted statement is introduced prior to the declarant's testimony. Nelson v. O'Neil, 402 U.S. 622, 629-30, 91 S.Ct. 1723, 1727, 29 L.Ed.2d 222 (1971); Davis v. Commonwealth, 967 S.W.2d 574, 579 (Ky.1998).

In the case sub judice, Porter testified in her own defense and was cross-examined by Appellant's counsel. As such, we find no prejudice resulting from the trial court's denial of Appellant's motion to sever or the introduction of Porter's redacted statements.

II. DUE PROCESS.

Appellant argues that the indictment charging him with four counts of assault in the first degree was insufficient under the Due Process Clause because it lacked adequate detail, thus did not give adequate notice regarding the conduct for which he was prosecuted. He also argues that the indictment and instructions lacked sufficient detail regarding his alleged criminal conduct, thus implicating the proscription against double jeopardy.

We note at the outset that any alleged error as to the indictment is unpreserved. The Commonwealth filed a bill of particulars in response to Appellant's motion for such. The record does not reflect any objection by Appellant to the sufficiency of the bill of particulars as filed. A party's failure to object to a bill of particulars renders that objection unpreserved for review. Thomas v. Commonwealth, 931 S.W.2d 446, 450 (Ky.1996); Howard v. Commonwealth, 554 S.W.2d 375, 378 (Ky. 1977); see also Lane v. Commonwealth, 956 S.W.2d 874, 876 (Ky.1997). Thus, we examine any alleged error with respect to the indictment for palpable error under RCr 10.26.

The indictment read as follows:

In the period between February 10, 2003 and February 25, 2003, in McCracken County, Kentucky, the defendant, Joseph Michael Schrimsher, committed the offense of first-degree assault, when under circumstances manifesting extreme indifference to the value of human life, he wantonly engaged in conduct which created a grave risk of death to [A.S.], an infant, and thereby caused multiple skull fractures to [A.S.] . . . .

Each of the remaining three counts of assault in the first degree contained identical language, except for differences in the time periods alleged, and each described a different injury that was caused by Appellant's conduct, i.e., multiple rib fractures, a lacerated liver, and two leg fractures.

A. Adequate Notice.

Appellant argues that the indictment failed to give him notice of the crimes for which he was being prosecuted because none of the four charges were "anchored to four distinguishable acts." Specifically, he asserts that due process requires the indictment to set forth specific acts of conduct or "occurrences"—e.g., striking the victim with his fist, striking the victim with an instrument, hurling the victim to the ground—in order to provide adequate notice.

The sufficiency of an indictment is governed by RCr 6.10(2), which states: "The indictment ... shall contain, and shall be sufficient if it contains, a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged." "The indictment need not detail the essential elements of the charged crime, so long as it fairly informs the accused of the nature of the charged crime . . . and if it informs the accused of the specific offense with...