Saylor v. Com., No. 2002-SC-0456-DG.

144 S.W.3d 812

Gregory SAYLOR, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2002-SC-0456-DG.

Supreme Court of Kentucky.

September 23, 2004.

Appeal from the Circuit Court, Kenton County.

David E. Davidson, William C. Oldfield, Cobb & Oldfield, Covington, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Matthew D. Nelson, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

Roy Thomas Faulconer was found stabbed to death at his residence in Covington, Kentucky, on the afternoon of August 26, 1999. In addition to a fatal stab wound through the heart, Faulconer's throat had been cut and there were defensive stab wounds to his arms. Appellant, Gregory Saylor, admitted killing Faulconer but claimed he did so in self-defense. Following a trial by jury in the Kenton Circuit Court, Appellant was convicted of manslaughter in the first degree ("manslaughter 1st") and sentenced to eighteen years in prison. The Court of Appeals affirmed. On discretionary review, Appellant asserts the following claims of error: (1) the trial court failed to require the Commonwealth to provide discovery of the Covington Police Department's entire records pertaining to Faulconer so that he could use them to prove Faulconer's violent disposition; (2) the prosecutor exercised a peremptory strike in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (3) the trial court failed to direct a verdict of acquittal because of the Commonwealth's failure to properly prove its case; (4) the trial court failed to direct a verdict of acquittal on the Commonwealth's theory of wanton murder; and (5) the trial court failed to give separate "stand alone" instructions on lesser included offense of manslaughter in the second degree ("manslaughter 2nd") and reckless homicide. Finding no error, we affirm.

* * * * * *

Appellant was forty-three years old when Faulconer was killed; Faulconer was several years older. The two had been friends since childhood and lived only three blocks apart. Appellant arrived at Faulconer's residence for a visit at approximately 2:00 a.m. on August 26, 1999. As usual, Appellant was wearing his buck knife in a sheath on his belt. Another acquaintance, Ronnie Gregory, whom Appellant described several times as an "enforcer" for a motorcycle gang known as the "Iron Horsemen," was also present. According to Appellant, Gregory approached him and, without warning, hit him in the side of the head with a pipe wrench and demanded that he apologize for having referred to Faulconer as a "snitch." (Gregory testified that he only struck Appellant with his fist.) Faulconer then picked up his .357 magnum Smith &amp Wesson handgun and pointed it at Appellant. Gregory took the gun from Faulconer and threatened to shoot Appellant. No further violence ensued and Gregory departed the residence at about 3:00 a.m.

Appellant testified that immediately after Gregory's departure, Faulconer charged at him, again brandishing the handgun. Appellant was able to knock the gun away. As Faulconer retrieved the gun, Appellant drew his knife. As the two wrestled on the sofa, Appellant cut Faulconer's throat and stabbed him in the arms. Finally, he placed the knife against Faulconer's chest, put his weight on it, and "pushed it in." Appellant claimed he then retrieved both the knife and the handgun, cut the telephone wire, and left the residence before 6:00 a.m. In contradiction of Appellant's version of events, Ronnie Gregory's sister, Phyllis Hall, testified that when she arrived at Faulconer's residence at approximately 8:00 a.m., Faulconer was asleep and his telephone was ringing. She then awakened Faulconer, who told her that Gregory had been there the night before but had left to go home. If Hall's testimony were believed, Appellant did not kill Faulconer during a fight shortly after 3:00 a.m., but returned to Faulconer's residence and killed him sometime after 8:00 a.m.

I. DISCOVERY.

Appellant filed a motion for discovery of all records of the Covington Police Department pertaining to the victim. At a hearing on the motion, the trial court essentially told the parties to "work it out." Appellant claims the Commonwealth furnished him with records of three separate instances of prior violent misconduct on the part of Faulconer. His claim of a discovery violation is premised upon the testimony of Covington Police Detective Bud Vallandingham that he had been to Faulconer's residence on at least 150-200 occasions and that several of those visits were for acts of violence. Appellant's claim relates not so much to a claimed discovery violation as to the fact that the trial court ruled that evidence of particular violent acts by Faulconer of which Appellant was unaware was inadmissible. Obviously, Appellant could not have been prejudiced by a failure to obtain evidence of misconduct by Faulconer that was inadmissible.

Appellant posits that whenever a claim of self-defense is asserted, any evidence tending to show that the victim was a violent person is admissible. He is mistaken. Generally, a homicide defendant may introduce evidence of the victim's character for violence in support of a claim that he acted in self-defense or that the victim was the initial aggressor. KRE 404(a)(2); Johnson v. Commonwealth, Ky., 477 S.W.2d 159, 161 (1972); Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.15[4][b], at 104 (4th ed. LexisNexis 2003). However, such evidence may only be in the form of reputation or opinion, not specific acts of misconduct. KRE 405(a); Lawson, supra, § 2.20[4], at 116 ("By providing only for the use of reputation or opinion evidence in this situation, the rule plainly implies a prohibition on evidence of particular acts of conduct."). Specifically, in Johnson, our predecessor court held that a homicide defendant could not introduce the victim's police record for the purpose of showing his propensity for violence. Johnson, 477 S.W.2d at 161.

An exception exists, however, when evidence of the victim's prior acts of violence, threats, and even hearsay evidence of such acts and threats, is offered to prove that the defendant so feared the victim that he believed it was necessary to use physical force (or deadly physical force) in self-protection, "provided that the defendant knew of such acts, threats, or statements at the time of the encounter." Lawson, supra, § 2.15[4][d], at 105-06. See also Commonwealth v. Higgs, Ky., 59 S.W.3d 886, 892 (2001); Commonwealth v. Davis, Ky., 14 S.W.3d 9, 14 (2000); Wilson v. Commonwealth, Ky.App., 880 S.W.2d 877, 878 (1994). In that scenario, the evidence is not offered to prove the victim's character to show action in conformity therewith but to prove the defendant's state of mind (fear of the victim) at the time he acted in self-defense. "Obviously, such evidence could not be used to prove fear by the accused without accompanying proof that the defendant knew of such matters at the time of the alleged homicide or assault." Lawson, supra, § 2.15[4][d], at 106 (citing Baze v. Commonwealth, Ky., 965 S.W.2d 817, 824-25 (1997)).

The trial court allowed Appellant to testify to six specific incidents of prior violent conduct by Faulconer of which Appellant had knowledge at the time he killed Faulconer. Presumably, Appellant was unaware at the time of the killing of any other prior acts of violence by Faulconer as he did not offer evidence of any other such acts. Any evidence contained in the Covington Police Department's records of acts of misconduct by Faulconer of which Appellant was unaware was neither relevant nor exculpatory, thus was inadmissible; and the failure to provide such evidence was not prejudicial.

II. BATSON.

The prosecutor used a peremptory strike to excuse Juror No. 102, the lone African-American on the jury panel. Although Appellant is Caucasian, it is well settled that he has standing to raise the Equal Protection issue. Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). When asked to state his reason for striking Juror No. 102, the prosecutor responded that his office had previously prosecuted members of the juror's family. The trial judge accepted the explanation as race-neutral and not pretextual, and we conclude that the trial judge's finding in this respect was not clearly erroneous. Caudill v. Commonwealth, Ky., 120 S.W.3d 635, 667 (2003). See Berry v. Commonwealth, Ky.App., 84 S.W.3d 82, 88-89 (2001) (exercise of peremptory strike against juror who admitted that family members had been criminally prosecuted did not violate Batson).

III. COMPETENCY OF COMMONWEALTH'S EVIDENCE.

In addition to introducing the crime scene evidence, the Commonwealth proved the cause of death through the testimony of the pathologist who conducted the postmortem examination of Faulconer's body. At the conclusion of the Commonwealth's case, Appellant moved for a directed verdict of acquittal because the crime scene evidence was presented by witnesses other than the coroner, and proof of cause of death came from a witness other than the coroner. He relies on KRS 72.020(2):

The coroner shall take possession of any objects, medical specimens, or articles which, in his opinion, may be helpful in establishing the cause of death, and he can make or cause to be made such tests and examinations of said objects as may be necessary or useful in determining the cause of death. In the event that a criminal prosecution arises, all such objects and articles together with reports of any examination made upon them, shall be retained by the coroner until their production in evidence is required by the prosecuting authority, unless otherwise directed by written order of the court in which such prosecution is pending.

Manifestly, this statute is not a rule of evidence. To the extent that it imposes...