Commonwealth v. Russell

COMMONWEALTH OF KENTUCKY APPELLANT v. CLAUDE RUSSELL APPELLEE

NO. 2016-CA-000442-MR

Commonwealth of Kentucky Court of Appeals

JULY 13, 2018

NOT TO BE PUBLISHED

APPEAL FROM TRIGG CIRCUIT COURT

HONORABLE CLARENCE A. WOODALL, III, JUDGE

ACTION NOS. 11-CR-00056 AND 15-CR-00037

OPINION

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND SMALLWOOD, JUDGES.

CLAYTON, CHIEF JUDGE:

The Commonwealth presents an interlocutory appeal from pretrial orders entered by the Trigg Circuit Court on February 17, 2016, and March 21, 2016. The Commonwealth asserts the trial court erroneously ruled on several evidentiary issues in its prosecution of Claude Russell for first-degree rape and murder. We affirm in part, reverse in part, and remand.

The events of this case began on or about June 24, 2002, with the shooting death of Chantell Humphries in Trigg County, Kentucky. There were no known witnesses to the deed, and the victim's body was found in a cow pasture. Russell, the last known person to see Humphries alive, was indicted for murder in 2011 and tried by a Trigg County jury in 2012. As the Trigg Circuit Court would later describe it, the narrative which emerged from Russell's 2012 trial was one of "sex, drugs, and lies, all apparently intertwined with the circumstances of the brutal murder of Chantell Humphries." Police allegedly found a pistol hidden in Russell's home which was identified as the murder weapon through ballistics evidence. Semen was found on the victim's body, and laboratory testing revealed Russell was one of possibly two or more contributors to the male portion of the DNA evidence. However, the jury also heard testimony suggesting Humphries was involved in the local drug trade and her murder may have been drug-related. Ultimately, the jury could not reach a unanimous verdict, resulting in a mistrial.

In May 2015, the Trigg County grand jury returned a superseding indictment, this time charging Russell with first-degree rape as well as murder. The Commonwealth subsequently filed several pretrial motions in limine on certain evidentiary issues which appeared in the 2012 trial. Following a hearing, the trial court entered an order in limine on February 17, 2016. Following the court's order, Russell moved the court to reconsider the portion of its ruling denying his proffered evidence on an alleged alternative perpetrator, Lannie¹ Alexander. Russell also filed notice indicating he intended to introduce evidence regarding the victim's character and behavior as required by Kentucky Rule of Evidence (KRE) 412, commonly known as the rape shield rule. The Commonwealth responded by moving to exclude evidence of the victim's sexual behavior and other character evidence.

The trial court heard arguments on the parties' motions, then issued two orders on March 21, 2016, the morning of the scheduled trial. The first order granted Russell's motion to reconsider and granted permission to allow the alternative perpetrator evidence; in doing so, the court explicitly stated the remainder of the February 17, 2016, order would remain unchanged. In its second order, the trial court considered KRE 412 and other character evidence issues as briefed and through the lens of the evidence presented during Russell's first trial, using the "sex, drugs, and lies, all apparently intertwined" language noted above. The trial court then granted Russell's motion to use evidence of the victim's sexual behavior and other character evidence. The Commonwealth moved the trial court to continue the case until it could file an interlocutory appeal of the orders in limine as permitted under Kentucky Revised Statute (KRS) 22A.020(4). The trial court granted the continuance, and the Commonwealth filed its notice of appeal on March 28, 2016. This appeal followed.

As a preliminary matter, Russell contends three of the six issues presented by the Commonwealth on appeal were untimely, and therefore not properly before this Court, because they stem from the February 17, 2016, order. The Commonwealth filed its notice of appeal on March 28, 2016, meaning any issues resolved in the February 17 order were outside the thirty-day limit imposed by Kentucky Rule of Civil Procedure (CR) 73.02(1)(a). "[A]n interlocutory appeal, under KRS 22A.020, must be taken within 30 days from the date of notation of service of the judgment or order appealed." Commonwealth v. West, 147 S.W.3d 72, 73 (Ky. App. 2004). "Filing a notice of appeal within the prescribed time frame is still mandatory and failure to do so is fatal to an appeal." Fox v. House, 912 S.W.2d 450, 451 (Ky. App. 1995).

Despite this apparent belatedness, however, we must consider the effect of the second set of orders, entered March 21, 2016, on the timeliness of the Commonwealth's notice of appeal. "[W]hen a trial court makes substantive changes—as opposed to merely correcting clerical errors—in entering an amended judgment, the time for filing an appeal starts from the entering of the amended judgment rather than the original judgment." Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 648 (Ky. 2007). The March 21 order changed one portion of the February 17 order to allow alternative perpetrator evidence before including this language: "In all other respects, the Order in Limine previously entered remains unchanged."

Although the trial court did not term its March 21 order as an "amended judgment," we conclude this order functioned as an amendment of the order in limine entered February 17. There is no question this second order's effect upon the first was more than merely "clerical"—the court made a substantive change to its earlier ruling and then included language adopting the remainder of the preceding order. Because the Commonwealth undeniably filed its notice of appeal within thirty days of the March 21 order, we deem the notice to have been timely and will therefore consider all issues as briefed by the Commonwealth.

The Commonwealth presents six issues in its interlocutory appeal, all of which relate to pretrial evidentiary rulings. "[A]buse of discretion is the proper standard of review of a trial court's evidentiary rulings." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). Furthermore, we give substantial deference to a trial court's evidentiary rulings. '"[D]eference to the trial court's factual findings and ruling in such matters as evidentiary questions is required because the trial court is in the best position to evaluate the evidence.'" Bailey v. Commonwealth, 194 S.W.3d 296, 304 (Ky. 2006) (quoting Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004)) (emphasis in Bailey).

For its first issue, the Commonwealth argues the trial court erroneously permitted the introduction of testimony regarding the victim's sexual behavior, in violation of KRE 412. The rule states, in relevant part, as follows:

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions:

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) any other evidence directly pertaining to the offense charged.

"KRE 412 bars the introduction of evidence of an alleged victim's sexual activity when its only relevance is to prove the 'victim's sexual predisposition' or that the 'victim engaged in other sexual behavior.'" Minter v. Commonwealth, 415 S.W.3d 614, 619 (Ky. 2013). However,

exclusion of evidence of a victim's prior sexual history could, in some circumstances, unconstitutionally impinge upon a defendant's right to present a complete defense. We required a balancing of the competing interests, weighing the probative value of the proffered evidence against KRE 412's purpose of protecting the victim's privacy and eliminating unduly prejudicial character evidence from the trial.

Id. at 620 (citing Montgomery v. Commonwealth, 320 S.W.3d 28, 42-43 (Ky. 2010)). "[U]nder both the Kentucky and the United States Constitutions, [the Appellant] has the right to present a complete and meaningful defense." Brown v. Commonwealth, 313 S.W.3d 577, 624 (Ky. 2010) (citing Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003) and Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)).

In its order admitting the KRE 412 evidence, the trial court considered the issues as submitted by the defense: the victim "traded sex for drugs" and "the semen from the rape kit evidence was from someone other than the Defendant." The court found the proffered evidence to be relevant under KRE 401 and probative because it made the likelihood of a not-guilty verdict more likely. The court then found that admitting this evidence was "not substantially outweighed by the danger of undue prejudice or confusion of the issues or misleading the jury."

Although the Commonwealth is correct in stating KRE 412, the rape shield rule, is tilted toward the exclusion of evidence, it is important to note "the 'shield' is not always absolute." Montgomery, 320 S.W.3d at 39. First and foremost, if the defense can offer evidence to show Russell was not the sole source of DNA evidence found on the victim, this may come in under a listed exception to the rule as "evidence of specific instances of sexual behavior by the alleged...