Willis v. Com., No. 2008-CA-001379-MR
| Decision Date | 19 February 2010 |
| Docket Number | No. 2008-CA-001379-MR,2008-CA-001442-MR. |
| Citation | 304 SW 3d 707 |
| Parties | Larry N. WILLIS, Appellant/Cross-Appellee, v. COMMONWEALTH of Kentucky, Appellee/Cross-Appellant. |
| Court | Kentucky Court of Appeals |
Matthew W. Boyd, Lexington, KY, for appellant/cross-appellee.
Jack Conway, Attorney General of Kentucky, James C. Shackelford, Assistant Attorney General, Frankfort, KY, for appellee/cross-appellant.
Before COMBS, Chief Judge; MOORE, Judge; LAMBERT,1 Senior Judge.
Larry Willis appeals his conviction of one count of second-degree assault and one count of first-degree assault in Harrison Circuit Court. The Commonwealth cross-appeals. After our review, we affirm as to the appeal and dismiss the cross-appeal as moot.
In April 2007, Ruby Willis initiated divorce proceedings against her husband, Larry Willis. On June 19, 2007, Larry followed Ruby to her friend's house in Garrard County. He was driving a rental car and asked Ruby to go with him to the nearby fairgrounds to talk. She declined, suggesting that instead they take separate vehicles to a BP gas station. When they left, Ruby's friend called law enforcement. Upon arriving at the BP, a state trooper and Garrard County Sheriff's deputy searched Larry's vehicle and found a gun, rope, a knife, and binoculars. Following this incident ("the BP incident"), Ruby obtained an Emergency Protective Order (EPO).
On August 15, 2007, in the course of an argument at their home in Harrison County, Larry pulled Ruby into the swimming pool ("the swimming pool incident") and held her head under water.2 She fought until she wriggled loose and escaped his grasp, leaving her shoes in his hands. Ruby was afraid to leave that night; the next morning, she left for a hair appointment but did not return home again. The following weekend, Ruby and Larry made arrangements for her to collect her belongings from the residence.
On August 22, 2007, Ruby and four friends arrived at the house with a moving van. As Ruby packed boxes, Larry asked her to talk to him in the bedroom. After they came out of the bedroom, Larry told her friends to step outside in order to allow them some privacy. From the garage, Ruby's friends heard a gunshot followed by Ruby's pleading, "No, Larry!" They then heard another gunshot and called for an ambulance.
Ruby received two gunshot wounds— one in her shoulder and one in her abdomen. Both bullets exited her body through her back. She also sustained an abrasive, "mechanical" injury to her forehead. The cause of this injury was never determined. She was taken to the University of Kentucky Medical Center by helicopter. Treating personnel believed that she was breathing agonal (dying) breaths. Because of the oxygen deprivation caused by bleeding, Ruby was unconscious for nearly one month. She suffered aphasia, the loss of the ability to read or speak. Ruby has undergone extensive therapy to re-learn basic skills, such as writing, counting, and tying her shoes. At the time of trial, she was working on adding two-digit numbers. Her doctors doubt that she will ever recover to the level of her pre-shooting condition.
Larry admitted to police that he shot Ruby. A grand jury indicted him for one count of attempted murder and one count of assault in the first degree. At trial, the attempted murder charge was amended to second-degree assault. The jury convicted him on both charges and sentenced him to a ten-year sentence and a five-year sentence to be served concurrently. Larry subsequently filed this appeal.
As a preliminary procedural matter, the Commonwealth has drawn our attention to Kentucky Rule(s) of Civil Procedure (CR) 76.12(c)(iv), which provides that an appellate brief must include "ample references" to the record within the Statement of the Case. It contends that Larry has failed to fully comply with this rule. We agree that Larry's brief has fallen short of full compliance, but the Commonwealth has also slipped a bit in this regard. Therefore, we have undertaken a review of the reasonably uncomplicated record in the interest of accommodating the appellate process.
Larry's first contention is that the trial court improperly allowed the Commonwealth to present testimony concerning the BP and the swimming pool incidents because they were inadmissible prior bad acts. We disagree.
Kentucky Rule(s) of Evidence (KRE) 404(b)(1) prohibits the admission of evidence of bad acts other than those charged unless they serve to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." KRE 103(1) instructs us to find error only if an erroneous admission of evidence has affected some substantial right of the party. Thus, we review to determine whether the trial court has abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)).
The Supreme Court of Kentucky has provided a three-pronged test when examining admission of evidence that is subject to KRE 404(b)(1). Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994). First, the trial court must determine whether evidence is "relevant for some purpose other than to prove the criminal disposition of the accused." Id. at 889. Second, it should look at whether the disputed bad act is "sufficiently probative of its commission by the accused to warrant its introduction into evidence." Id. at 890. Finally, the court must balance the evidence's probative value against its potential for prejudice. Id.
In this case, Larry admitted that he shot Ruby. At trial, he presented two defenses: of accident and of acting under extreme emotional distress (EED). The crimes with which he was charged were crimes of intent. Therefore, in order to prove its case, the Commonwealth had the burden of proving Larry's intent to harm Ruby and both the absence of accident and his lack of EED. Benjamin v. Commonwealth, 266 S.W.3d 775, 782 (Ky.2008).
Larry argues that the BP and swimming pool incidents clearly fail to demonstrate his intent to harm Ruby. However, he had ample opportunity to present his interpretations of his behavior as defenses to the jury. It was reasonable for a jury to infer that both incidents demonstrated his animosity toward Ruby. The BP incident involved a rental car that would have been unrecognizable to Ruby. That car contained a gun, a rope, a knife, and binoculars—all threatening and ominous objects in this context. In spite of Larry's account of the swimming pool incident as being light-hearted horseplay, he was fully aware that Ruby could not swim. Yet he pushed her into the deep end of the pool. He admitted that he had tried to scare her. Our Supreme Court has recently held that "generally, evidence of prior threats and animosity of the defendant against the victim is admissible as evidence of ... intent." Davis v. Commonwealth, 147 S.W.3d 709, 722 (Ky.2005). See also Sherroan v. Commonwealth, 142 S.W.3d 7, 18 (Ky.2004).
Larry has failed to demonstrate that he was prejudiced to an extent that outweighed the relevance and probative value of this evidence. Under the case law construing KRE 404, we conclude that the court did not err in allowing the Commonwealth to submit evidence of these incidents.
Larry next argues that the trial court erred in its oral instructions to the jury. During its deliberations, the jury sent a note to the court asking if they could be hung on one charge but not the other; they also asked which charge had been reduced. The court spoke to the jury and advised them to address each shot separately without reference to the nature of the charges originally arising from the shots. Larry claims he was unfairly prejudiced by this statement. Although Larry failed to preserve this issue by objecting at trial, we will nonetheless examine it for palpable error. Palpable error is one that affects a party's substantial rights and results in manifest injustice. Kentucky Rules of Criminal Procedure (RCr) 10.26.
It is wholly proper for a court to explain orally its written...
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