Giles v. Commonwealth

1

JOHN GILES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2021-SC-0558-MR

Supreme Court of Kentucky

October 26, 2023

NOT TO BE PUBLISHED

ON APPEAL FROM GRAVES CIRCUIT COURT HONORABLE KEVIN D. BISHOP JUDGE NO. 19-CR-00385

COUNSEL FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate

COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Christopher Henry Assistant Attorney General

MEMORANDUM OPINION

John Giles was convicted by a Graves Circuit Court jury of first-degree assault and being a first-degree persistent felony offender. Giles was sentenced to thirty years in prison consistent with the jury's recommendation and he now appeals as a matter of right. After review, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

A.T.^[1] began dating John Giles in early 2019. They maintained an unstable relationship, in part due to both parties' substance abuse. On August 30, 2019 A.T. and Giles were at Giles's house and A.T. planned to move out soon. Both parties used drugs that day and things were generally good, until a sheriff's deputy came to Giles's house to perform a welfare check on A.T. because her family had not heard from her recently. A.T. told the deputy she was okay, and after the deputy left Giles became angry because there was a cop at his house. He accused A.T. of being a "cop caller," "a narc," and accused her of "working undercover." As a result, A.T. left, planning to come back for the rest of her belongings later.

A.T. walked to her friend Andrea's house. Andrea testified that A.T. asked for a phone to call Giles as soon as she showed up at her house. A.T. stated that when she arrived at Andrea's house, Giles began sending A.T. messages, asking her to return to his house so they could have sex. She obliged and decided to walk back to Giles's house. At some point, Giles accused A.T. of putting something in his syringe to try to kill him. She denied doing anything and told him to inject her with it to prove that she was not trying to kill him. Giles complied, and eventually calmed down.

Giles fell asleep. Later, A.T. woke him up to ask if he wanted anything from Walmart. According to A.T., Giles looked for his wallet for two seconds, immediately got angry, and accused A.T. of stealing his wallet. A.T. denied his accusation but nevertheless left his residence. She forgot her purse, so she went back to the residence to retrieve it. She also asked for a flashlight because it was very dark outside. She knocked on the door and Giles would not give her a flashlight, but he threw her purse at her.

A.T. testified that as she was walking down the driveway, Giles came out of the trailer and said "Hey, I got something for you." She asked him what he had, to which he responded, "Do you want to die tonight?" As A.T. started to walk away, Giles hit her in the back of the head with what she believed to be a hammer. A.T. got down and covered her head with her arms. At some point, she rolled over onto her side. Giles struck A.T. repeatedly, hitting her at least five times in the head as well as stomping and kicking her. She testified that Giles was screaming "You're gonna die tonight!" and that she was screaming, crying, and begging Giles to stop.

She eventually got up and ran to Giles's grandmother's house which was located nearby. Once inside, she locked the front and back doors out of fear that Giles was going to come after her. Giles's grandmother insisted that Giles did not hurt A.T. and had not done anything wrong. Eventually, Giles's grandmother gave A.T. a ride back to Andrea's house but Andrea was not home. A nearby resident let A.T. in his house where she changed her clothes because she urinated on herself during the attack. She cowered in the neighbor's kitchen until police arrived.

Police took her to the hospital where she was examined by Dr. Joseph Payant, an emergency medicine physician. Dr. Payant testified that A.T. was upset and appeared to be in pain. Dr. Payant discussed A.T.'s injuries, including that she suffered a hematoma, and had bruising in her hairline and on her chest, all of which he opined were consistent with blows from a hammer. While A.T. did not suffer any skull fractures, Dr. Payant stated it was possible that A.T. suffered a concussion, although he could not say definitively whether she had. Importantly, Dr. Payant acknowledged that blows to a person's head from a hammer could create a substantial risk of death. He also recognized the severe nature of the attack, stating "I see assaults every . . . month, and in the whole time I've ever been practicing, I've never seen anything like this. This is absolutely the most horrendous thing I have ever seen one human body inflict on somebody else."

A.T. also described her injuries during her trial testimony. She testified that she "knew" she had a concussion because she "could see [her] forehead out of the top of [her] eyes," and because she had experienced several concussions in her life and was familiar with "what it felt like" to have one. Additionally, she noted a scar on her forehead, "knots" on the back of her head, a black eye, and bruising. When A.T. left the hospital, a family member transported her to her mother's house and took photos of her injuries.

At some point after the attack, A.T. obtained a no-contact protective order against Giles. As is not unusual in domestic violence cases, eventually she sought to amend that order to a no violent contact order. In her motion to amend, A.T. stated that Giles never tried to kill or harm her in any way. She also stated that she was hallucinating at the time of the alleged incident due to taking a mind-altering substance. During trial, she explained that she sought to amend the protective order because she loved Giles and wanted to be with him. In fact, A.T. moved back in with Giles and at some point, he was arrested again. While he was incarcerated, A.T. wrote him love letters and "put money on his books" so that he could buy food and other necessities. She explained her actions by stating that she was willing to do anything for Giles and wanted him to be free so they could be together.

Ultimately, the jury acquitted Giles of attempted murder but found him guilty of first-degree assault. During the penalty phase, the jury recommended a thirty-year sentence for that charge, which was enhanced by Giles's status as a first-degree persistent felony offender. Accordingly, the trial court imposed a thirty-year sentence.

ANALYSIS

Giles raises three issues on appeal: (1) the first-degree assault conviction resulted in manifest injustice because there was insufficient evidence of a serious physical injury; (2) the exclusion of relevant testimony of a defense witness inhibited Giles's constitutional right to present a defense; and (3) the prosecutor improperly inserted himself as a witness. Finding no errors, we affirm the judgment of the Graves Circuit Court. We address each alleged error in turn.

I. The trial court properly instructed the jury on first-degree assault.

Giles argues that the jury should not have been instructed on first-degree assault, and that he preserved his objection to the inclusion of this lesser included offense by moving for a directed verdict as to the greater offense of attempted murder. We disagree.

The parties engaged in much discussion regarding whether this issue is properly preserved for our review, and even filed supplemental briefing to discuss Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020), in which this Court clarified the requirements of preserving a directed verdict issue for appellate review. Ray explicitly delineates the requirements for preserving a directed verdict issue for appeal:

[W]e now hold that in order to preserve an alleged directed verdict issue for appeal, criminal defendants must: (1) move for a directed verdict at the close of the Commonwealth's evidence; (2) renew the same directed verdict motion at the close of all the evidence, unless the defendant does not present any evidence; and identify the particular charge the Commonwealth failed to prove, and must identify the particular elements of that charge the Commonwealth failed to prove. Criminal defendants may move for directed verdict on one count of a multiple count indictment without rendering the alleged error unpreserved; defendants are not required to move for directed verdict on any lesser included offenses to a particular charge in order to preserve the issue; and, nor are they required to object to instructing the jury on that particular charge to preserve the alleged directed verdict error.

611 S.W.3d at 266 (emphasis added).

Here, Giles moved for a directed verdict at the close of the Commonwealth's case and at the close of all evidence, as required. However, Giles merely stated that the Commonwealth failed to prove the elements of attempted murder. In renewing his motion at the close of all evidence, Giles simply renewed his objection on the "same grounds." Giles did not provide any further detail or explanation as to which specific elements the Commonwealth failed to prove. As such and based on the clear and concise rule set forth in Ray, Giles's motion for directed verdict was insufficient to preserve this issue for appellate review. We further note that a proper directed verdict argument under the unique facts of this case also would have likely touched upon the fundamental issue we now face, i.e., whether A.T. suffered serious physical injury.

Because this alleged error is unpreserved, we will only review for palpable error. "A palpable error which affects the substantial rights of a party may be considered. . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and...