Terry v. Commonwealth of Ky., No. 2009–SC–000497–DG.

• Decision Date: 21 October 2010
• Docket Number: No. 2009–SC–000497–DG.
• Parties: John Marrion TERRY, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

332 S.W.3d 56

John Marrion TERRY, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000497–DG.

Supreme Court of Kentucky.

Oct. 21, 2010.Rehearing Denied March 24, 2011.

[332 S.W.3d 57]

Bruce P. Hackett, Chief Appellate Defender, Cicely Jaracz Lambert, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice SCOTT.

We granted discretionary review in this case to determine the correctness of the Kentucky Court of Appeals' decision construing RCr 7.24(3)(B)(i) as precluding certain expert witness testimony. For the following reasons, we reverse the Court of Appeals, reverse Appellant's conviction, and remand this case to the trial court for further proceedings consistent with this opinion.

I. Background

In March 2004, Linda Elmore's body was found under an overpass in Louisville, Kentucky covered in debris and riddled with over one hundred stab wounds. Homeless individuals, including Appellant, John Marrion Terry, commonly frequented the overpass area. At the time in question, Appellant was forty-three years of age with an eighth-grade education.

Appellant attracted the attention of Detective Gary Huffman of the Louisville Metro Police Department, the lead investigator in this case, after Appellant provided the detective with certain specifics regarding Elmore's murder. In particular, Appellant told Huffman that during the night in question, he witnessed Tonk, a drug

[332 S.W.3d 58]

dealer, fleeing the area. Over the next seven months, Huffman provided Appellant with food and money. Huffman also drove Appellant around Louisville searching for Tonk and getting details about what Appellant remembered concerning the night of Elmore's murder.¹ Their encounters continued until approximately November 2004, when Appellant admitted in a recorded statement to killing Linda Elmore.

In the recorded statement, Appellant claimed, among other things, that: (1) he and Elmore, whom he described as a twenty-year-old “crack-head,” were engaging in a sexual activity, during which time Elmore was partially unclothed; (2) at some point, Elmore attacked him with a knife that she had concealed in her purse; (3) in self defense, he managed to garner the knife, kill Elmore, by, in part, stabbing her beneath her right breast; and (4) after killing Elmore, he covered her body with a blanket.

On the strength of this confession, Appellant was indicted for murder and tampering with physical evidence.

The day of trial, Appellant moved to admit expert testimony from Dr. Solomon Fulero regarding false confessions. The Commonwealth opposed the motion, arguing that under RCr 7.24(3)(B)(i) Appellant was required to provide twenty-days' notice because Fulero's testimony addressed a mental condition and related to an issue of guilt. The trial court agreed with the Commonwealth and refused Fulero's testimony, citing Appellant's lack of notice.

During trial, the Commonwealth presented no physical evidence linking Appellant to the crime. To the contrary, certain physical evidence tended to exculpate Appellant, e.g., hair found in the victim's hand did not match Appellant and neither did the DNA under her fingernails. Additionally, Appellant's description of Elmore was inaccurate, as she was 53 years old at the time of her death and was found fully clothed. Furthermore, no blanket or purse was recovered from the scene. Indeed, the Commonwealth's entire case hinged on Appellant's confession to the crime.

Appellant defended on grounds that his confession was unreliable and, testifying on his own behalf, told the jury that he made the statements, in part, because he wanted to continue to receive money from Huffman. But, based solely on Appellant's confession, the jury convicted him of first-degree manslaughter and tampering with physical evidence.

On direct appeal to the Kentucky Court of Appeals, Appellant argued that the trial court abused its discretion by applying RCr 7.24(3)(B)(i) to Fulero's expert testimony. The Court of Appeals affirmed the conviction and held RCr 7.24(3)(B)(i) applicable because Fulero's testimony addressed Appellant's mental condition and related to an issue of guilt. This appeal followed.

Appellant contends that the trial court abused its discretion and misapplied the notice requirement in RCr 7.24(3)(B)(i) when it excluded Fulero's expert testimony on false confessions because: (1) the rule only applies to the mental state of a defendant at the time of the commission of the crime, which, in this case, Fulero's testimony did not address; and (2) Fulero's testimony was offered as evidence regarding police interrogations and not as

[332 S.W.3d 59]

evidence directly addressing Appellant's mental condition.

The Commonwealth responds by noting that a plain reading of RCr 7.24(3)(B)(i) defies the notion that the rule only applies to the mental status of the defendant at the time of the offense, but rather is applicable anytime the testimony relating to a mental condition bears upon “the issue of [the defendant's] guilt.” The Commonwealth further contends that because Fulero's testimony “consistently discussed psychology and the psychological underpinnings of a false confession” and because “[t]he primary definition of psychology deals with mental processes and behavior,” Fulero's testimony did in fact address Appellant's mental condition and therefore triggered RCr 7.24's notice requirement.

We hold that the notice requirement in RCr 7.24(3)(B)(i) was not triggered in this case and thus the trial court erred when it excluded Fulero's testimony.

In keeping with the adversarial nature of a criminal trial, we have held that a party to a criminal proceeding is generally not required to provide a list of witnesses to the opposing party. Lowe v. Commonwealth, 712 S.W.2d 944 (Ky.1986) ( citing King v. Venters, 596 S.W.2d 721 (Ky.1980)). The underlying premise of this rule is reiterated in KRS 500.070(2), which provides, “no court can require notice of a defense prior to trial time.” But, as noted by the United States Supreme Court, a criminal trial is not “a poker game in which players enjoy an absolute right always to conceal their cards until played,” and thus we recognize that there are circumstances where parties must divulge their witnesses. Williams v. Florida, 399 U.S. 78, 85, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). RCr 7.24(3)(B)(i) provides such a circumstance and requires a defendant to divulge certain experts that he intends to call, to wit:

If a defendant intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his or her guilt or punishment, the defendant shall, at least 20 days prior to trial, or at such other time as the court may direct upon reasonable notice to the parties, notify the attorney for the Commonwealth in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(emphasis added). As is clear, when a defendant intends to introduce an expert (1) who will testify to a mental disease or defect or any other mental condition of the defendant and (2) that testimony bears upon the issue of the defendant's guilt or punishment, RCr 7.24(3)(B)(i) is triggered and the expert must be disclosed.

The federal courts, interpreting the nearly identical federal rule, ² and noting the Advisory Committee Notes, have found the rule necessary, because:

in all circumstances in which the...