Faughn v. Commonwealth

694 S.W.3d 339

Billy Jo FAUGHN, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2023-SC-0094-MR

Supreme Court of Kentucky.

June 13, 2024

ON APPEAL FROM TODD CIRCUIT COURT, HONORABLE JOE W. HENDRICKS, JR., JUDGE, NO. 20-CR-00069

COUNSEL FOR APPELLANT: Travis Bewley, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Russell M. Coleman, Attorney General of Kentucky, J. Grant Burdette, Assistant Attorney General.

OPINION OF THE COURT BY CHIEF JUSTICE VANMETER

Billy Jo Faughn appeals as a matter of right¹ from a Todd Circuit Court judgment sentencing him to life imprisonment for wanton murder and operating a motor vehicle under the influence of methamphetamine. On appeal, Faughn raises four claims of error, none of which merit reversal. We therefore affirm the judgment of the Todd Circuit Court in all respects.

BACKGROUND

The facts underlying this case stem from a tragic automobile collision that occurred on July 29, 2020. Faughn was in Hopkinsville, Kentucky to spend time with his family after the death of his father. After leaving the funeral home early on the day of the funeral, Faughn went to the home of Gerald Harper, an individual known to local law enforcement to be a methamphetamine dealer. Four hours after leaving the funeral, Faughn was seen by Erica Skipworth traveling South on Blue and Gray Park Road. Skipworth, who was traveling the opposite direction, observed Faughn’s vehicle traveling at a high rate of speed and veering into her lane of travel. As she got closer, she also noticed Faughn was slumped over the steering wheel. Skipworth turned around to follow Faughn’s vehicle and called 911.

At the same time Faughn was seen travelling erratically, Sarah Barrow was outside tending to flowers in the front yard of her home off Blue and Gray Park Road. As Faughn neared Barrow’s home, his vehicle left the roadway, traveled across a driveway, was briefly airborne, continued through a neighbor’s yard, sideswiped a tree, ran over a fence post and bush, went airborne again, and sideswiped another tree. Barrow noticed Faughn’s vehicle careening in her direction and retreated to her garage to seek shelter. Unfortunately, Faughn’s vehicle continued in the direction of the garage. Faughn’s vehicle struck Barrow and carried her through the sidewall of her garage, bringing her to rest approximately 39 feet from where the vehicle struck her. Barrow died from the injuries she sustained.

Detective Richard Carroll of the Kentucky State Police arrived at the scene shortly after the collision. Carroll spoke to Faughn and observed that Faughn appeared to be under the influence. At Carroll’s request, Faughn performed Standard Field Sobriety Tests ("SFST") and exhibited signs of impairment in nearly every one. Faughn consented to a blood test. Later examination of the blood showed the presence of methamphetamine in Faughn’s system. As a result of the collision, the Todd County Grand Jury indicted Faughn for wanton murder, operating a motor vehicle under the influence of methamphetamine, and possession of marijuana. Following a four-day trial, a jury found Faughn guilty of wanton murder and operating a motor vehicle under the influence of methamphetamine. Faughn was acquitted of possession of marijuana. The jury recommended a sentence of life imprisonment, which the circuit court imposed. Faughn now appeals as a matter of right.

ANALYSIS

Faughn raises three primary arguments for reversal of his sentence: (1) error from allowing some of the Commonwealth’s witnesses to testify by Zoom; (2) prosecutorial misconduct; and (3) error as a result of admitting only a portion of a bodycam video. Faughn further argues that even if none of these three alleged errors merit reversal, he is still entitled to a new trial because of the cumulative effect of those errors. We address each contention in turn.

I. Remote Testimony was Harmless Error.

[1] Faughn first argues that the circuit court erred by allowing two of the Commonwealth’s witnesses to testify by Zoom, a software platform that facilitates video-phonic communication. Faughn contends that allowing the witnesses to testify remotely deprived him of his right to confront the witnesses preserved under the Sixth Amendment of the U.S. Constitution and Section 11 of the Kentucky Constitution.

At trial, the Commonwealth sought to introduce evidence of the amount of methamphetamine present in Faughn’s blood at the time of the collision. The Kentucky State Police Lab can determine the presence of a controlled substance in a blood sample but lacks facilities to quantify the amount of a drug in a person’s blood. To remedy this issue, the sample was sent to a lab in Pennsylvania for analysis. Prior to trial, the Commonwealth moved to permit several individuals from the Pennsylvania lab to testify remotely, although ultimately only one testified at trial. The Commonwealth further moved to permit Mike Ward, a toxicologist at the University of Kentucky, to testify remotely.

As justification for their remote testimony, the Commonwealth indicated that allowing the lab employees testify remotely would save the state approximately $10,000 to $15,000 in travel and accommodation costs. As to Ward, the Commonwealth stated that because Ward is a professor at UK with an active teaching load, requiring him to travel to Todd County would force him to cancel some of his classes. Allowing Ward to testify remotely would vitiate that concern. The circuit court permitted Ward and any Pennsylvania lab employees to testify remotely.

This Court has recently addressed the question of remote appearances by witnesses in a criminal case in two opinions, Campbell v. Commonwealth, 671 S.W.3d 153 (Ky. 2023), and Spalding v. Commonwealth, 671 S.W.3d 693 (Ky. 2023). In those opinions, we expressed our skepticism as to the continuing validity of the U.S. Supreme Court’s opinion in Maryland v. Craig² in light of the demise of the balancing test set forth in Ohio v. Roberts,³ which served as the analytical foundation of Craig. Despite skepticism we applied the Craig framework to an alleged confrontation clause error. Like Spalding, we again see no need to depart from the Craig analysis in the present case.

[2–4] Pursuant to Craig, a defendant’s right of confrontation is balanced against the competing public policy interests set forth by the Commonwealth. Campbell, 671 S.W.3d at 158-59 (citing Craig, 497 U.S. at 855, 110 S.Ct. 3157). " '[T]he Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ a preference that ‘must occasionally give way to considerations of public policy and the necessities of the case[.]’ " Craig, 497 U.S. at 849, 110 S.Ct. 3157 (quoting Roberts, 448 U.S. at 63, 100 S.Ct. 2531; Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895)) (citation omitted) (emphasis in original). See also Sparkman v. Commonwealth, 250 S.W.3d 667, 669 (Ky. 2008) ("[W]hile face-to-face confrontation is preferred, the primary right secured by the Confrontation Clause is that of cross-examination. Accordingly, the right to confront is not absolute and may be limited to accommodate legitimate competing interests." (citing Roberts, 448 U.S. at 63, 100 S.Ct. 2531; Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)) (footnote omitted). In addition to the presence of an important public policy underlying the request, remote testimony can only be allowed "where the reliability of the testimony is otherwise assured." Craig, 497 U.S. at 850, 110 S.Ct. 3157.

The reasons proffered by the Commonwealth to explain why their witnesses needed to testify remotely fall well short of public policies that could outweigh Faughn’s constitutional right to confront those witnesses. While we applaud the Commonwealth for their commitment to the financial well-being of Kentucky’s prosecutorial system, a savings of ten to fifteen-thousand dollars cannot outweigh a defendant’s constitutional rights. Similarly, while we can appreciate Ward’s reluctance to cancel his classes and of the Commonwealth’s efforts to accommodate Ward and his students, the relatively minor inconvenience to Ward does not in any way approach the gravity needed to deprive Faughn of his right to confront Ward in person. See Campbell, 617 S.W.3d at 161 ("Thus, by allowing [Commonwealth’s witness] to testify via Zoom as a convenience to him, the trial court erred[ ]"). As noted by Faughn, if Ward wishes to engage in the business of testifying as an expert witness, he should be prepared to forego other obligations in pursuit of that endeavor. Accordingly, the circuit court erred in allowing the Pennsylvania lab employee and Ward to testify remotely.

[5, 6] However, finding a confrontation clause error is not, in itself, sufficient to justify reversal. Rather, "we must decide ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction … or put otherwise, that error was harmless beyond a reasonable doubt.’ " Campbell, 671 S.W.3d at 161-62 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998)). "An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence." Coy v. Iowa. 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

[7] Faughn was convicted of wanton murder. KRS 507.020 provides, in relevant part, "A person is guilty of murder when: … (b) Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person." No party disputes that Faughn operated a motor vehicle and as a...