Welch v. Commonwealth

• Decision Date: 13 December 2018
• Docket Number: 2017-SC-000528-MR
• Citation: 563 S.W.3d 612
• Parties: Ricky L. WELCH, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

563 S.W.3d 612

Ricky L. WELCH, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2017-SC-000528-MR

Supreme Court of Kentucky.

DECEMBER 13, 2018

COUNSEL FOR APPELLANT: Robert Chung-Hua Yang, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE VANMETER

Following a jury trial in Carroll Circuit Court, Ricky Welch was convicted of first-degree robbery, kidnapping, third-degree burglary and of being a first-degree persistent felony offender ("PFO1"). He was sentenced to fifty years' imprisonment. Welch appeals as a matter of right¹ and raises four claims of error: (1) the trial court abused its discretion by excluding Welch’s eyewitness expert testimony, (2) the trial court should have prevented law enforcement officers from presenting expert testimony regarding boot prints and infrared cameras, (3) the photo pack shown to the victim was unduly suggestive due to law enforcement’s failure to follow recommended procedures from the Department of Justice, and (4) cumulative error warrants reversal. Finding none of Welch’s claims meritorious, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND.

On February 10, 2016, Judy Jones, the owner of Country Treasures in Carrollton, Kentucky was delivering breakfast to her friend, J.D. Arnold, at his home. Jones arrived at Arnold’s home around 9:45 a.m. after a fresh layer of snow had fallen on the ground. As Jones was leaving around 10:00 a.m., she saw a man approaching her from Arnold’s barn. The man pointed a gun at her and told her she was being robbed. The man, who was carrying a small black gun, told Jones to get in the car and drive. The man wore a hooded sweatshirt that covered part of his face, but she could tell his skin was "red as fire." Once they were both in the car the man told Jones to "give me your f* * * * * * * money or I'm going to kill you." Jones gave the man all the money she had, about $500 and a couple checks.

Once she started driving, Jones began to cry. The man told her shut up or he would kill her. Around this time, Jones figured out that the man was Ricky Lee Welch. Jones knew Welch because he was her sole employee’s nephew. Jones knew that her employee had raised Welch and Welch had been in the store on five or six different occasions.

Jones followed Welch’s directions and steered the car to the back of Butler State Park. There, Welch told Jones to let him out, drive away, and not call police, because he knew where she lived, and he would come back and kill her. Jones had to get out of the car to let Welch out because the child locks were on in the back. When Welch exited the car, he ran into the state park. Jones called a friend soon after Welch disappeared, and that friend called police. When Jones initially talked to police she gave a brief description of her assailant, including that he was wearing dark pants and a dark hooded sweatshirt. She did not tell them that she knew the man was Welch because the woman who raised him was a close friend, and she was still afraid that he would kill her if she told.

Jones gave police a brief description of the robber and told them that Arnold had an infrared trail camera in his barn. Assistant Chief of Police Tim Mitchell was dispatched to the entrance of the state park, and he found a set of bootprints which he followed to the Stack Tite Factory parking lot. Deputy Rodney Hawkins received the SD card from the camera around noon the same day. Deputy Hawkins reviewed the images and recognized Welch from one of the images. Deputy Hawkins then met with Assistant Chief Mitchell and Officer Tim Gividen in the Stack Tite Factory parking lot. Both Mitchell and Gividen also recognized Welch. Officer Gividen knew Welch was staying at a location close to the factory. Upon arrival at Welch’s place of residence, Deputy Hawkins saw bootprints in the snow that looked similar to the ones he had seen at Arnold’s home.

Upon entry, the officers found Welch standing in the shower, fully clothed. Welch had a pair of wet and muddy black sweat pants draped over his shoulder. Officers discovered Welch’s wallet hidden in between some towels with $248 inside. A dark hooded sweatshirt was also discovered in the laundry. Officers did not find a weapon, but Welch’s grandmother stated that he did have a black gun that she had not seen in a few days. Welch’s grandmother also gave Welch an alibi, testifying that Welch had left the home around 6:00 a.m. and returned home around 9:45 a.m., before the robbery.

Welch was transported to the Carroll County Sheriff’s Department, where a computer program created a photo lineup that included a picture of Welch and five other white men with similar features against the same background. Jones came down to the station, was shown the photo lineup, and immediately identified Welch as the person who robbed her. She was also asked to listen to a voice from an adjacent room and identified the voice as the robber. Welch, the man in adjacent room, was subsequently arrested and indicted on charges of first-degree robbery, kidnapping, third-degree burglary, and PFO1.

At trial, Welch sought to introduce the testimony of eyewitness testimony expert, Dr. Jeffrey Neuschatz. For reasons discussed below, Dr. Neuschatz was not allowed to testify at trial, but was allowed to testify by avowal. Upon conclusion of trial, a jury convicted Welch of all charges and the trial court sentenced him to fifty years' imprisonment. This appeal followed.

II. STANDARD OF REVIEW.

All of Welch’s claims of error were preserved for appellate review. Moreover, they are all evidentiary issues. We review the trial court’s factual findings for clear error. Duncan v. Commonwealth, 322 S.W.3d 81, 95 (Ky. 2010). Further, "[t]he standard of review of an evidentiary ruling is abuse of discretion. The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Cox v. Commonwealth, 553 S.W.3d 808, 814 (Ky. 2018) (citations omitted).

III. ANALYSIS.

A. Eyewitness Testimony Expert.

Welch attempted to introduce the expert testimony of Dr. Neuschatz, a psychologist from the University of Alabama, Huntsville, who, according to his avowal testimony, has been qualified as an expert in eyewitness testimony in numerous states, including the Commonwealth. The trial court held that Dr. Neuschatz was an expert, but prohibited his testimony, citing Commonwealth v. Christie, 98 S.W.3d 485 (Ky. 2002). In Christie, this Court held that "trial courts in the Commonwealth have the discretion under KRE² 702 to admit expert-witness testimony regarding the reliability of eyewitness identification[.]" Id. at 488. The Christie court opined (1) that an abuse of discretion occurred when the trial court did not hold a hearing regarding the expert testimony, (2) that the avowal testimony of the witness qualified as expert testimony, and (3) other evidence in the case was weak, thus making exclusion under KRE 403 an abuse of discretion as well. Id. at 490–92. The trial court in the present case did not exclude Dr. Neuschatz’s testimony based on him not being an expert, but distinguished Welch’s facts from those in Christie, and held that the present facts allowed it discretion to bar the proffered eyewitness testimony expert.

The trial court prohibited the introduction of the evidence because the facts of Welch’s case were distinguishable from those in Christie. Namely, (1) this was not cross-racial eyewitness testimony, (2) the crime took place over the course of at least fifteen minutes, whereas the robbery in Christie was a mere ten second incident, (3) Welch was not a complete stranger to Jones, (4) three officers, some of whom knew Welch very well, identified him from the trail camera image, (5) Jones identified Welch immediately from the photo pack roughly three hours after the incident, and (6) Jones had no sustained or prolonged interview with police officers.

KRE 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Citing one commentator favorably, the Christie court held:

Where identification rests on testimony by someone who knew the defendant well and was in a good position to see the crime, or where the identification seems strongly established for other reasons (like physical evidence connecting defendant to the crime), there is little reason to admit [eyewitness identification expert] testimony. Where identity is a crucial and closely contested issue, however, and where critical testimony is given by people who did not know the perpetrator and had only a short time to see him or were limited or distracted by other factors, expert testimony seems more clearly warranted.

98 S.W.3d at 491 (quoting Christopher B. Mueller & Laird C. Kirkpatrick, Evidence, § 6.37, at 601 (1995) ).

To clarify, "[a] guiding principle, [in admitting eyewitness identification expert testimony,] should be the strength or weakness of the evidence corroborating the eyewitness' positive identification of a defendant." Shegog v. Commonwealth, 275 S.W.3d 728, 731 (Ky. App. 2008). Whereas a brief, cross-racial, eyewitness identification was the only strong evidence in Christie, the present facts warrant a different conclusion. Not only did the trial court list six separate pieces of evidence distinguishing this case from Christie, but several other pieces of evidence existed, including the multitude of bootprints found by officers and their similarity to boots located on Welch’s person; Jones’s voice identification of Welch at the sheriff’s department; and the circumstances surrounding Welch’s arrest—fully clothed, in the shower, with dark wet sweatpants draped over shoulder, a dark...