Taylor v. Commonwealth
| Decision Date | 01 October 2021 |
| Docket Number | 2020-CA-0798-MR |
| Parties | DWIGHT TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEF FOR APPELLANT: Joshua M. Reho, Leo G. Smith.
BRIEF FOR APPELLEE: Daniel Cameron, Stephanie L. McKeehan.
BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON L., JUDGE:
Dwight Taylor ("Appellant") appeals from a judgment of the Jefferson Circuit Court reflecting a jury verdict of guilty on one count of wanton endangerment in the first degree[1] (19-CR-000768), and with being a persistent felony offender in the first degree[2] (20-CR-000236). Appellant argues that the circuit court erred in allowing the jury to see a photograph of the victim that was not properly entered into evidence; that the court erred in failing to give a second-degree wanton endangerment instruction as a lesser-included offense of first-degree wanton endangerment and that the court erred in failing to strike a juror for cause. For the reasons addressed below, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
On February 16, 2019, at approximately 4:30 a.m., A.P. and her friend, Quenishia Hatchett (a/k/a/ "Dora"), drove to the STR8 Ryderz night club on Dixie Highway in Louisville, Kentucky. While seated at the bar, A.P. was approached by Appellant. He introduced himself as "700," and A.P. said her name was "London." Appellant and A.P. consumed alcohol, talked for a while, and the conversation eventually turned to the topic of sex. Based on their conversation, Appellant believed A.P. to be interested in having sex with him after the bar closed.
A.P. was intoxicated, having consumed alcohol both before and after arriving at the club. She laid her head on the bar and told Dora that she was ready to leave. Dora, who was with her then-boyfriend, was not ready to leave. Appellant offered to give A.P. a ride home, but Dora thought A.P. should not get in the car with Appellant. Ultimately, Dora drove A.P. and Appellant to A.P.'s residence. Dora's boyfriend, Will Queen, drove a separate vehicle to A.P.'s residence.
Dora dropped off A.P. and Appellant at A.P.'s residence, and then left with Mr. Queen. A.P. would later testify that after Appellant used the bathroom, he approached her from behind, grabbed her by the neck, strangled her, and pushed her onto the bed. A.P. stated that Appellant continued to strangle her on the bed for twenty minutes, that she lost and regained consciousness several times, and that Appellant raped her.
In contrast, Appellant stated that after he came out of the bathroom, A.P. was naked on the bed and acting in a way that made him think she was ready for sex. He stated that he did not have sex with A.P. because he could not achieve an erection. He testified that he passed out on the bed, woke up some time later, and was naked. He said he checked his body to see if he had had sex, determined that he had not, and got dressed.
When both parties were awake, Appellant told A.P. that he was married. He said that this upset her, that she told him he should not have come with her, and that she threw something at him as he tried to leave. According to Appellant, A.P. then demanded $200, approached him in a physically aggressive manner, and swung her fist at him. Appellant stated that he very briefly put his hands on her throat to push her back, forced her on the bed, told her that she was "trippin, '" and that he did not owe her any money. Appellant then left A.P.'s residence and walked home.
A.P. went to the hospital later that morning and told the medical personnel that she had been raped. The hospital transferred her to the Center for Women and Families for a sexual assault nurse examination. Sexual assault nurse examiner ("SANE") Amanda Corzine examined A.P., and took several photographs. Twenty-eight photographs were later entered into evidence.
Louisville Metro Police Department Detective Lyndsey Lynch, who was assigned to the Special Victims Unit, investigated A.P.'s claims. Detective Lynch spoke with A.P. on several occasions, and went to A.P.'s residence to take photographs. Detective Lynch determined that the man that A.P. knew only as "700" was Appellant. At A.P.'s residence, Detective Lynch observed a man's black t-shirt. She did not take the shirt as evidence, as it was not clear that it was related to the alleged crime. Sometime later, however, A.P. gave the shirt to Detective Lynch and told her that Appellant had been wearing it at her residence.
The matter proceeded before a Jefferson County grand jury, which returned an indictment charging Appellant with one count each of rape in the first degree, wanton endangerment in the first degree, assault in the fourth degree, and with being a persistent felony offender in the first degree. The matter proceeded to trial, resulting in a jury verdict finding Appellant guilty of the wanton endangerment in the first degree and persistent felony offender charges. He received a sentence of five years in prison on the wanton endangerment conviction, enhanced to seventeen years by virtue of the persistent felony offender status. This appeal followed.
ARGUMENTS AND ANALYSIS
Appellant, through counsel, first argues that the Jefferson Circuit Court committed reversible error in allowing the Commonwealth to utilize at trial a photograph of A.P. taken by SANE nurse Amanda Corzine that was not properly entered into evidence. Appellant also argues that the court improperly allowed the jury to view this photograph while it deliberated. During the course of Nurse Corzine's examination of A.P., Nurse Corzine took several photographs of A.P. documenting her injuries. Twenty-eight photographs were entered into evidence. Another photograph, characterized in the record as "the general orientation photograph of A.P.," was used by the Commonwealth during its questioning of Nurse Corzine at trial. Nurse Corzine described the photograph as "our general orientation photograph" that is taken "to show how the patient presented at the time of the exam."[3] Appellant now objects to the Commonwealth's usage of this photograph at trial, as it was not given an exhibit number and was not introduced into the evidence. Appellant also argues that the circuit court erred in allowing the jury to view this photograph during its deliberations. Finally, Appellant maintains that the court's error was not harmless because he was ultimately convicted of wanton endangerment.
When Appellant raised this objection at trial, Judge Chauvin examined the record and determined that the photograph at issue was properly placed into evidence, but must have been improperly tallied and recorded. We have no basis for contradicting this conclusion. Arguendo, even if the photograph was not properly admitted into evidence, any error arising therefrom would be harmless. The general orientation photograph merely shows A.P., fully clothed, from several feet away. In contrast, the twenty-eight other photographs entered into evidence and considered by the jury were close-up photographs of A.P.'s injuries, including multiple scrape marks on her throat and hemorrhaging in the sclera, or "whites," of her eyes.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.
Kentucky Rules of Criminal Procedure ("RCr") 9.24. "The test for harmlessness is whether the error substantially swayed the verdict." Allen v. Commonwealth, 395 S.W.3d 451, 467 (Ky. 2013) (citation omitted). Given the innocuous nature of the photograph in question, especially in light of the twenty-eight other photographs, many of which showed clear injuries, we would find any error on this issue harmless even if the photograph were not properly entered into evidence.
The question then becomes whether Judge Chauvin properly allowed the jury to consider this photograph during its deliberation. We must answer this question in the affirmative. "Upon retiring for deliberation the jury may take all papers and other things received as evidence in the case." RCr 9.72. Judge Chauvin expressly found that the general orientation photograph was properly entered into evidence; therefore, the jury was allowed to consider it during its deliberation. We find no error.
Appellant next argues that the circuit court erred in failing to instruct the jury on the lesser-included offense of second-degree wanton endangerment.[4] He notes that while A.P. alleged that Appellant strangled her for twenty minutes, Appellant, in contrast, said that he grabbed her by the neck very briefly to defend himself. While asserting that the circuit court is bound to include an instruction on any lesser-included offense supported by the record, Appellant states that first-degree wanton endangerment includes the element of "aggravated wantonness" or an extreme indifference to the value of human life, whereas second-degree wanton endangerment requires proof of only a substantial danger of physical injury. Appellant argues that the record supported an instruction on second-degree wanton endangerment, and the court's failure to include the instruction constitutes reversible error.
A...
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