Chris James Lowe v. Commonwealth of Kentucky ( 2021 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: AUGUST 26, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0126-MR
CHRIS JAMES LOWE APPELLANT
ON APPEAL FROM WHITLEY CIRCUIT COURT
V. HONORABLE PAUL WINCHESTER, JUDGE
NO. 17-CR-00126
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Whitley Circuit Court jury convicted Chris Lowe (Lowe) of murder,
unlawful imprisonment, and tampering with physical evidence. The court
sentenced Lowe to life in prison with the possibility of parole. He challenges
his conviction on two grounds. First, he argues that that the court abused its
discretion by admitting evidence of other wrongful acts in violation of KRE1
404(b). Second, he argues that the court erred in allowing the Commonwealth
to present victim impact testimony during the guilt phase of the trial. Both
arguments are unavailing, and we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 23, 2017, Lowe’s uncle Charles noticed a strange
scene unfolding in front of Lowe’s house. He saw two women, one atop the
1 Kentucky Rule of Evidence.
other, lying in the middle of the road. As Charles stopped his car, he saw one
of the women, whom he believed to be Lori Mattie (Mattie), get off of the other
woman and walk toward Lowe’s house through the yard. The other woman,
who was subsequently identified as Michelle Marlow (Michelle), remained still.
Upon examining Michelle further, Charles told Lowe that she “didn’t look good”
and stated that someone needed to call 911. Lowe responded that Michelle
was “asleep” and, with Charles’ help, pulled her from the road into the yard.
Upon leaving the scene, Charles returned home and called 911.
Kentucky State Police Lieutenant Tony Dingess responded to the call. Lt.
Dingess immediately noticed blood in the road, driveway, and yard leading
toward Lowe’s home. Lt. Dingess followed the blood to the rear of the house
and entered. The blood trail continued inside the home through the kitchen
towards a hallway bathroom. Lt. Dingess looked inside the bathroom and
observed more blood and a broken walking stick. Lt. Dingess continued his
sweep of the home until he came upon the master bedroom. Inside, he found
Lowe lying on the bed, naked and covered in what appeared to be blood. Lt.
Dingess attempted to rouse Lowe from the doorway, but Lowe did not respond
and appeared to be unconscious. Lt. Dingess walked further into the master
bedroom, at which point he noticed two women. First, he looked behind him
into an adjacent room and saw Michelle, who appeared deceased. Next, he saw
Mattie draped across the toilet in the master bathroom. Mattie appeared to be
unconscious and covered in blood.
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Lowe eventually awoke. He clothed himself in a pair of athletic shorts
that appeared to be stained with blood and submitted to Lt. Dingess. Upon
restraining Lowe, Lt. Dingess examined Michelle. He observed that she had
sustained severe head wounds, lacked a pulse, and was not breathing. Lt.
Dingess next examined Mattie, who became aggressive upon waking up and
had to be secured. Mattie complained of pain in her mouth and vaginal area
and was transported to the hospital after emergency services arrived at the
scene.
As officers were summoned and began securing the crime scene, another
woman, Linda Carpenter (Linda), drove up to the house. Linda told Lt. Dingess
that her son, Claude Dean (Claude), asked her to go to the Lowe residence to
pick up his girlfriend, Michelle Marlow. Soon thereafter, Lt. Dingess went to
the Carpenter residence to speak with Claude. When Lt. Dingess arrived at
Linda’s house, he observed a white Chevrolet Monte Carlo in the driveway.
Further examination of the passenger compartment of the vehicle revealed
smears of blood on the steering wheel and driver’s side headrest. Inside
Linda’s home, Claude was passed out on the floor, heavily intoxicated. Lt.
Dingess noted small specks of blood on his jeans.
The ensuing investigation revealed a jumbled web of hazy recollections
and contradictory tales. All parties, however, agree on certain basic facts. The
day before the incident, Lowe, Mattie, Claude and Michelle partied together at
Lowe’s home. The couples drank a significant amount of beer and liquor and
took Xanax throughout the evening. Upon waking up the next morning, Lowe
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and Claude resumed drinking beer. At some point, the couples separated.
Claude testified that he and Michelle went to eat lunch and run errands before
returning to Lowe’s house to continue partying. Claude claimed that upon
returning to the house that afternoon, Lowe and Mattie invited them inside but
“had the devil in their eyes.” Soon after returning to the Lowe house, Claude
said that Mattie began screaming from the bedroom. Claude overheard Lowe
and Mattie discussing a missing wallet and prepared to leave with Michelle.
Claude testified that, before he could leave, Lowe emerged from the back
bedroom with a shotgun aimed at them. Lowe and Mattie accused Claude and
Michelle of stealing his wallet and, according to Claude, threatened to kill them
both if his property was not returned.
Lowe eventually put the shotgun down and grabbed his walking stick,
which was approximately six-feet long and made of thick wood. Claude
testified that Lowe struck Michelle on the top of her head with the stick,
causing her to briefly lose consciousness and begin to bleed from her head.
Michelle eventually convinced Lowe and Mattie to allow her to go out to her
car—the white Monte Carlo—to look for the billfold. Claude testified that as
Michelle looked through the car, Mattie sat on top of her, sometimes striking
her head with her hand and telling her that Lowe would kill her if she failed to
find the wallet.
Lowe eventually ordered everyone back inside the home, continuing to
strike Michelle as she exited the car. Claude testified that upon returning to
the home, he was able to calm Lowe somewhat. They gave Michelle a dishrag
4
to attempt to stop her head from bleeding, and Mattie accompanied Michelle to
the shower to try to clean the wound. Claude, who remained in the kitchen,
claimed that the beating resumed shortly after they took Michelle back to the
bathroom. He claimed that he saw Mattie strike Michelle again with the
walking stick. While Lowe and Mattie were occupied with Michelle, Claude ran
from the home and, eventually, made his way to his mother’s home.
Lowe presented a starkly different account of the incident in his trial
testimony. Lowe testified that when the couples separated after the first night
of partying, they did not plan to meet back up. He stated that he and Mattie
drove into town to pick up more whiskey and cigarettes. Lowe claimed that he
resumed drinking on the trip home and blacked out during the drive.
According to Lowe, he remembered walking in the front door of the home to
discover Claude and Michelle running out of his master bedroom. Mattie
informed him that his wallet was missing, so he grabbed his shotgun, stepped
outside, and fired two shots into the air. He then claimed to have blacked out
again, rousing briefly to see Michelle passed out in the road bleeding and
Mattie crying nearby, only to black out again. Lowe claimed that he finally
regained consciousness when he was sitting handcuffed to his porch swing.
Police searched the entirety of Lowe’s home and the surrounding area.
Investigators found numerous items covered in blood: the walking stick—split
in two pieces; a Jim Bean whiskey bottle; the shotgun; a dishrag; and a t-shirt.
The police additionally tested the blood found on Lowe and Mattie. DNA testing
later identified the blood on several of the items, including clothing worn by
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Lowe and Mattie, as Michelle’s blood. Medical examination of Michelle’s body
determined that she died as result of blunt force trauma to her head.
Lowe and Mattie were both charged with complicity to murder, first-
degree unlawful imprisonment, and tampering with physical evidence.2 The
jury ultimately convicted Lowe on all counts and recommended a sentence of
life in prison with the possibility of parole. Lowe now appeals his conviction
and sentence as a matter of right.3
II. ANALYSIS
A. The trial court did not improperly admit KRE 404(b) evidence.
Lowe first asserts that the circuit court should have excluded two
instances of testimony concerning other uncharged criminal acts. We review a
trial court’s evidentiary rulings for an abuse of discretion.4 A trial court’s
ruling is an abuse of discretion if the ruling is “arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.”5
KRE 404(b) prohibits a party from introducing “evidence of other crimes,
wrongs, or acts … to prove the character of a person in order to show action in
conformity therewith.” The rule sets out two exceptions to this general
prohibition. First, evidence of an uncharged, wrongful act may be admissible if
offered for some purpose other than the accused’s character. Second, evidence
This Court recently considered Mattie’s appeal in a separate opinion. Mattie v.
2
Commonwealth, 2020-SC-0090-MR, 2021 WL 731486 (Ky Feb. 18, 2021).
3 Ky. Const. §110.
4 Ordway v. Commonwealth, 391 S.W.3d 762, 774 (Ky. 2013).
5 Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
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of bad acts that are “inextricably intertwined with other evidence essential to
the case” may be admissible if separating “the two could not be accomplished
without serious adverse effect on the offering party.”
i. Evidence of prior incidents of domestic violence between Lowe and
Mattie.
Lowe contends that the introduction of a recorded police interview during
which Mattie claimed that he had beaten her severely enough to warrant
medical attention violated KRE 404. This argument is preserved by Lowe’s
objection as the audio recording was being played before the jury. He argued
that he had not received notice of these recorded statements and that, even if
notice had been given, such evidence was not relevant for a non-character
purpose. In response, the Commonwealth argued that such evidence was not
being offered to prove that Lowe acted in conformity with his prior conduct, but
to explain the source of bruises on Mattie’s body. In her opening statement,
Mattie identified herself as an “abused spouse.” Under the Commonwealth’s
theory, Mattie’s opening statement implied that she may have received the
bruises on the night of Michelle’s death and opened the door to her statements
in the recorded interview which indicate such bruises may predate the night of
Michelle’s death. The trial court agreed and overruled the objection.
On appeal, Lowe principally relies on 404(b) and argues that the
significant prejudice posed by Mattie’s statements outweighs any possible
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probative value.6 We turn, as we often do, to the analytical framework set out
in Bell v. Commonwealth to address this argument.7 Under that framework, we
must assess the relevance, probativeness, and prejudice of an admitted item of
evidence.
We begin with relevance. In admitting evidence of an uncharged criminal
or wrongful act, the reviewing court must determine if the evidence is being
offered “for some other purpose than to prove the criminal disposition of the
accused.”8 Moreover, the evidence must make the existence of a material fact
to the dispute more or less probable than it would be without the evidence.9
Mattie’s statements pass this bar. Mattie claimed, through her opening
statement, that she woke up bruised, battered, and with no memory of the day
of the incident. That statement, without context, raises the reasonable
inference that Mattie was also attacked on the night of the incident and
received medical treatment for injuries sustained in that attack. Mattie’s
statements provide context that casts skepticism on that inference. The officer
who questioned her at the hospital testified that he believed, based on his
observation and experience, that Mattie’s injuries could not have been the
source of the significant amount of blood on her person due to their age and
We note that Lowe’s trial counsel also objected to the issue of notice under
6
KRE 404(c). Lowe does not raise the issue of lack of notice before this Court, so we
confine our consideration of the issue to KRE 404(b).
7 875 S.W.2d 882, 889 (Ky. 1994).
8 Id.9 KRE 401. See also Southworth v. Commonwealth, 435 S.W.3d 32, 54 (Ky.
2014).
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severity (or lack thereof). Mattie’s statements identify a source of those
injuries—a physical altercation with Lowe that predated this incident by
several days—consistent with the officer’s observations. In short, the
statements were relevant.
Next, we must consider whether “evidence of the uncharged crime [is]
sufficiently probative of its commission by the accused to warrant its
introduction into evidence.”10 Whereas the relevance prong considers the
relation between the evidence offered and the charged offense, the
probativeness inquiry concerns the relation between the evidence offered and
the act it purports to establish. A reviewing court must determine if the jury
could “reasonably infer that the prior bad acts occurred and that the
[defendant] committed such acts[.]”11 Here, Mattie claimed that Lowe assaulted
her. Lowe seemingly does not contest the accuracy of that statement. Absent
evidence in the record to the contrary, the statement is sufficiently probative of
that act
Finally, we must ask whether the “potential for prejudice from the use of
other crimes evidence outweighs its probative value.”12 Importantly, an item of
evidence is not prejudicial simply because it harms the party against whom it
is offered. An item of evidence is unduly prejudicial if it “appeals to the jury’s
sympathies, arouses its sense of horror, provokes its instinct to punish, or
10 Bell, at 890.
11 Jenkins v. Commonwealth, 496 S.W.3d 435, 457 (Ky. 2016).
12 Bell, at 890.
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otherwise may cause a jury to base its decision on something other than the
established propositions in the case.”13 On one hand, the risk of prejudice to
Lowe is significant. It is reasonable to argue that a juror who has heard that
the defendant assaulted another woman may be more likely to reach a
character-based judgment that he assaulted another than one who has not.
Moreover, the probative value of Mattie’s statement—at least when considered
solely by reference to the Lowe’s guilt of the charged offense—is quite low. The
fact that Lowe allegedly committed an assault against another victim does not
entitle one to conclude that he murdered the victim in this case. In this case,
however, the evidence was offered not to prove that Lowe committed the
offenses he was charged with but to cast doubt on Mattie’s argument that she
was assaulted that night and was not involved as a perpetrator. In that light,
the evidence’s probative value is notably higher. Further, it is unlikely that
this evidence aroused more sympathy in Mattie’s favor than Lowe’s as each
received life sentences. On balance, we determine that probative value of
Mattie’s statements is not substantially outweighed by the risk of undue
prejudice.
ii. Evidence of Mattie’s treatment at the hospital.
Lowe next argues that admission of testimony that Mattie complained of
vaginal pain, which was treated at the hospital, violated KRE 404(b). Lowe
failed to make a contemporaneous objection to this testimony, so we review for
13 Helton v. Commonwealth, 595 S.W.3d 128, 132 (Ky. 2020).
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palpable error.14 To prevail under palpable error review, a party must show “[a]
probability of a different result or error so fundamental as to threaten a
defendant’s entitlement to due process of law.”15 Lowe fails to make such a
showing.
The mention of Mattie’s vaginal pain occurred twice during trial. Each
time, the witnesses briefly stated that she was brought to the emergency room
due to complaints of pain in her mouth and vaginal area. Lowe asserts that
these statements are unduly prejudicial because of the suggestion that Lowe
may have caused said pain. Though this inference may be possible, it is
unlikely and, in any event, not so prejudicial as to warrant reversal under the
palpable error standard. At most, the jury heard two brief mentions of the pain
and nothing more. In comparison, the jury heard testimony that Lowe struck
the victim in the head with a walking stick and was discovered near Michelle’s
body covered in her blood. Ultimately, there was no substantial possibility that
the exclusion of Mattie’s complaints of vaginal pain would have swayed the
outcome of this case.
B. The trial court did not improperly admit victim impact testimony.
Lowe finally argues that the trial court erred in permitting Claude,
Michelle’s boyfriend, to offer victim impact testimony during the guilt phase of
the trial. Lowe failed to object to this issue at trial, so we again review for
palpable error.
14 Kentucky Rule of Criminal Procedure (RCr) 10.26.
15 Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
11
During the guilt phase of a trial, the prosecution must refrain from
introducing evidence “intended to arouse sympathy for the families of
victims.”16 Though such evidence is relevant to determining the ultimate
sentence, it often “is largely irrelevant to the issue of guilt or innocence.”17 The
prosecution may, however, provide background evidence to “identify the victim
as a living person rather than a statistic.”18 The jury may receive “an adequate
word description of the victim as long as the victim is not glorified or
enlarged.”19
Here, Claude testified that he and Michelle dated and that she acted as a
mother figure for his children and that she was the mother of nine children.
He testified that when they were dating, they lived together and would go out to
eat, go to the zoo or go out dancing for dates. Throughout the entirety of his
testimony, Claude was visibly distraught and often stopped to compose
himself. Despite the emotionally charged nature of his testimony, the scope of
Claude’s statements concerning Michelle is more accurately characterized as
background evidence rather than victim impact testimony. While such
testimony was presented by an emotionally upset witness who knew the victim
personally, at heart, it remains background information and its inclusion is not
16 Bennett v. Commonwealth, 978 S.W.2d 322, 325 (Ky. 1998).
17 Id.18 McQueen v. Commonwealth, 669 S.W.2d 519, 523 (Ky. 1984).
19 Stopher v. Commonwealth, 57 S.W. 3d 787, 803 (Ky. 2001).
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error and certainly not error so fundamental as to threaten Lowe’s entitlement
to due process of law.
III. CONCLUSION
In consideration of the foregoing, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Adam Meyer
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General
Jenny L. Sanders
Assistant Attorney General
Office of the Attorney General
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