Timothy Robinson v. Commonwealth of Kentucky ( 2015 )

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RENDERED: AUGUST 20, 2015
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Suprrinr (Court tif 4 urtitijVhip\_.
2014-SC-000467-MR
DA' Eci-to-ts
TIMOTHY ROBINSON APPELLANT
ON APPEAL FROM LINCOLN CIRCUIT COURT
V. HONORABLE DAVID A. TAPP, JUDGE
NO. 13-CR-00063-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Lincoln County Grand Jury indicted Appellant, Timothy Robinson, of
first-degree sodomy (victim less than twelve years old), incest (victim less than
twelve years old), and use of a minor in a sexual performance (victim less than
twelve years old). A Lincoln Circuit Court jury found him guilty of all three
charges and recommended sentences of life imprisonment for sodomy, fifty
years' imprisonment for incest, and twenty years' imprisonment for use of a
minor in a sexual performance. Appellant now appeals as a matter of right, Ky.
Const. § 110(2)(b), and raises the following issues: (1) he was unfairly
prejudiced by the trial court's joinder of his case with his brother's, (2) the trial
court erroneously admitted evidence of numerous bad acts, and (3) the trial
court erred in ordering that his sentence in the case at bar be run
consecutively to a sentence he was already serving in a separate case.
I. BACKGROUND
Appellant lived in a two-bedroom mobile home with his wife, the couple's
seven children, and one of his step-daughters, Suzie. 1 Appellant's brother,
James Matthew Robinson (Matt), visited Appellant's home frequently, often
drinking beer with Appellant until both were intoxicated. Several witnesses
testified at trial that the events described below took place when Appellant and
Matt got drunk.
Appellant and Matt were each charged with the first-degree sodomy of
Appellant's son, Sam, who was under the age of twelve at the time the abuse
occurred. Appellant was also indicted for incest and use of a minor in a sexual
performance—both these counts related to his sodomy of Sam. The Grand
Jury indicted Matt of seven counts of use of a minor in a sexual performance
and six counts of first-degree sexual abuse in a separate indictment. All of
Matt's charges concerned Appellant's children and Suzie.
II. ANALYSIS
A. Joinder
Over Appellant's objection and motion to sever, the trial court granted
the Commonwealth's motion to consolidate the two indictments and heard the
brothers' cases jointly, as the two were "alleged to have participated in the
same act or transaction . . . constituting an offense." RCr 6.20. All but one of
We have changed the names of the minors in this opinion.
2
Matt's charges were brought in a separate indictment from Appellant's,
however, RCr 9.12 provides:
The court may order two (2) or more indictments, informations,
complaints or uniform citations to be tried together if the offenses,
and the defendants, if more than one (1), could have been joined in
a single indictment, information, complaint or uniform citation.
The procedure shall be the same as if the prosecution were under a
single indictment, information, complaint or uniform citation.
Appellant argues that he was prejudiced by the joinder of his and Matt's
cases. Pursuant to RCr 8.31, lig it appears that a defendant or the
Commonwealth is or will be prejudiced by a joinder of offenses or of defendants
in an indictment, information, complaint or uniform citation or by joinder for
trial, the court shall order separate trials of counts, grant separate trials of
defendants or provide whatever other relief justice requires." As this Court
recently held, "[w]e review the trial court's denial of a motion to sever for abuse
of discretion . . . and the burden is on the appellant to show that the denial
was in fact unfairly prejudicial." Peacher v. Commonwealth, 391 S.W.3d 821,
834 (Ky. 2013) (citing Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky.
2011)); see also Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993)
("We start with the general proposition that a trial court has broad discretion
with respect to joinder, and will not, be overturned absent a showing of
.
prejudice and clear abuse of discretion."); Rachel v. Commonwealth, 523
S.W.2d 395, 400 (Ky. 1975) ("If upon the consideration of the case a trial judge
orders a joint trial, we cannot reverse unless we are clearly convinced that
prejudice occurred and that the likelihood of prejudice was so clearly
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demonstrated to the trial judge as to make his failure to grant severance an
abuse of discretion.").
Appellant and Matt did not present antagonistic defenses at trial and the
trial court admonished the jury any time testimony applied only to one of the
brothers. Accordingly, the trial court instructed the jury several times during
the course of the trial that the testimony of various witnesses would be
considered only for purposes of Matt and had no bearing on Appellant's case.
We have held "[a] jury is presumed to follow an admonition to disregard
evidence and the admonition thus cures any error." Johnson v.
Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). The only argument Appellant
makes to this court to rebut the presumption that the jury followed the trial
court's admonitions is that the jury recommended the maximum sentence for
each of his charges and recommended that those sentences run consecutively
to one another.
Appellant points out that Matt was charged with thirteen counts
unrelated to the sodomy charge for which both brothers were jointly indicted.
He insists that the testimony solely related to Matt's sexual abuse and use of a
minor in a sexual performance charges was often extremely inflammatory.
Specifically, Appellant claims that Matt was tried for an additional indictment
of first-degree sodomy "of a separate child in which [Appellant] was not alleged
to have been involved." However, this claim is patently false. The only charge
of first-degree sodomy against Matt tried jointly with Appellant's case was the
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charge for which Appellant was also indicted: in which both Appellant and
Matt were charged with sodomizing Appellant's son, Sam.
Relying on our statement in Rearick v. Commonwealth, 858 S.W.2d 185,
187 (Ky. 1993), that "[a] significant factor in identifying such prejudice is the
extent to which evidence of one offense would be admissible in a trial of the
other offense," Appellant argues that because none of the evidence presented
against Matt in the charges stemming from his second indictment would be
admissible in Appellant's trial, this created sufficient prejudice. However, as
stated above (and as Appellant acknowledges), we will not overturn the decision
of the trial court absent a showing that it abused its discretion. "The test for
abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles."
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
As to the brothers' sodomy charge, Sam testified in graphic detail about
his father and uncle anally raping him. Sam testified that his father had first
sodomized him when he was in first or second grade. He went on to testify that
when he was in third grade, his father and Matt took turns having sex with
him in the bathroom of the mobile home Sam lived in with his parents and
seven siblings. When the Commonwealth asked what he meant by his
statement that Appellant and Matt had sex with him, Sam responded that he
meant that they stuck their penises in his butt. Clearly, so far as the charges
arising from Appellant and Matt's sodomy of Sam, the brothers were "alleged to
have participated in the same act or transaction . . . constituting an offense"
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pursuant to RCr 6.20 and the cases were properly joined under our Rules.
Appellant was not prejudiced by the joinder of his and Matt's charges under
this indictment. All of the "evidence of one offense would be admissible in a
trial of the other offense." Rearick, 858 S.W.2d at 187. Therefore, the trial
court did not abuse its discretion in denying Appellant's motion for severance
of the charges included in the same indictment.
The charges arising from Matt's separate indictment are a bit more
problematic. Under that indictment, Matt was charged with six counts of first-
degree sexual abuse and seven counts of use of a minor in a sexual
performance. The alleged victims were six of Appellant's children, including
Sam, and Appellant's step-daughter, Suzie. In addition to Sam and Suzie,
three of Appellant's other children testified about Matt touching them
inappropriately, or about seeing Matt touch their siblings or step-sister
inappropriately. While the evidence of these other charges would not have
been admissible in Appellant's trial, we have reviewed the trial record at length
and are satisfied with the admonitions the trial court gave the jury. In each
instance, the jury was instructed to only consider the testimony as it related to
Matt and not to use it against Appellant in any way. Appellant does not
attempt to rebut the presumption that the jury followed the trial court's
admonitions.
Appellant also complains that a statement a witness (Matt's ex-girlfriend)
made prejudiced him. That witness testified that Matt "would get around them
[(Appellant's children)] and always tell me that he was going to fuck them in the
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ass or make them suck his dick. And he would always say he always wanted a
school boy, he would fuck one eight to eighty." The jury was also admonished
that this testimony only concerned Matt and that it was not to use any of this
witness's testimony against Appellant. We note again that "[a] jury is
presumed to follow an admonition to disregard evidence and the admonition
thus cures any error." Johnson 105 S.W.3d at 441. "Nor does [Appellant]
present any argument to rebut the presumption that the trial court's
admonition cured the error," Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky.
1999) overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336
(Ky. 2010). As such, we hold that the trial court's admonitions cured any error
resulting from the joinder of Appellant's and Matt's indictments.
Furthermore, Appellant's argument that the evidence should not have
been admitted, as "unless a collateral act has some direct relationship to the
charge being tried, its admission necessarily depends on the view that the
defendant's character and predisposition are probative of his guilt," Rearick,
858 S.W.2d at 187, is without merit. None of the complained of testimony was
admitted against Appellant; but, rather, it was admitted against Matt and the
jury was specifically directed not to use it in any way against Appellant.
As to Appellant's contention that his sentence reflects the fact that
evidence of his brother's crimes prejudiced the jury against him, we point out
that the most inflammatory witness statements in the case would have come in
as evidence in Appellant's trial regardless of whether it was joined with his
brother's. In addition to Sam's testimony that his father sodomized him on at
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least two occasions in the bathroom of their home, Suzie (who had lived with
Appellant since she was around eighteen months old) also testified that
Appellant had anally raped her in the same bathroom described by Sam. (This
testimony will be discussed in more detail below.) While the evidence against
Matt included testimony by several of the children that he had fondled their
breasts and/or genital areas inside or outside their clothing or exposed himself
to the children or had the children disrobe for him, the trial court admonished
the jury not to consider this evidence against Appellant. We believe that the
fact that two child witnesses testified that Appellant had anally raped them—
and the fact Appellant served as a father figure to both of them—is enough to
account for the jury's recommended sentence without accounting for any
alleged prejudice.
We are not "clearly convinced that prejudice occurred and that the
likelihood of prejudice was so clearly demonstrated to the trial judge as to
make his failure to grant severance an abuse of discretion." Rachel, 523
S.W.2d at 400. Therefore, we affirm the trial court as to the joinder of
Appellant and Matt's trials.
B. Other Bad Acts Evidence
Appellant next alleges that the introduction of evidence of Appellant's
other bad acts constitutes reversible error. First, Appellant argues that Suzie's
testimony about Appellant sodomizing her should not have been admitted.
This issue was preserved by contemporaneous objection at trial. Appellant also
argues that other instances of other bad acts testimony should not have been
8
admitted at trial, though no objections were made regarding this evidence.
These unobjected-to instances include: Appellant's daughter's testimony that
her father had sexually abused her, Sam's testimony that Appellant had
physically abused him, and testimony of Appellant's drug and alcohol use.
Appellant argues that the trial court was on notice that such evidence should
not be admitted in spite of his failure to object and that we should treat these
errors as preserved. In the alternative, he requests that we review this
testimony for palpable error.
1. Suzie's Testimony
Kentucky Rules of Evidence 404 deals with character evidence and
evidence of other crimes. More specifically, KRE 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however,
be admissible:
(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident;
or
(2) If so inextricably intertwined with other evidence
essential to the case that separation of the two (2)
could not be accomplished without serious adverse
effect on the offering party.
In Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994), this Court stated
"trial courts must apply the rule cautiously, with an eye towards eliminating
evidence which is relevant only as proof of an accused's propensity to commit a
certain type of crime." We set out a three-prong test that should be followed in
determining if KRE 404(b) evidence should have been excluded at trial: . (1) the
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first factor goes to relevance and asks, "[i]s the other crimes evidence relevant
for some purpose other than to prove the criminal disposition of the accused?,"
Id.; (2) the second factor goes to probativeness and asks, "[i]s evidence of the
uncharged crime sufficiently probative of its commission by the accused to
warrant its introduction into evidence?," Id. at 890; and (3) the third factor goes
to prejudice and asks, "[d]oes the potential for prejudice from the use of other
crimes evidence substantially outweigh its probative value?,"
Id. We review a trial court's evidentiary rulings for an abuse of discretion.
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).
Before Suzie testified at trial, the jury was instructed that it could
consider the testimony for the limited purpose of Appellant's pattern of
conduct—and could not consider her testimony for any other purpose. Suzie
testified at trial that Appellant had sex with her. When asked exactly what
Appellant did to her, she stated "[p]ut his penis in my butt. He said that he
was cleaning it." Suzie had lived in the same house as Appellant from the time
she was eighteen months old until she was removed from the home at age
fourteen. The described abuse happened sometime between the time she was
twelve and fourteen in the same bathroom Sam identified as the location of his
abuse. The fact that Appellant had already pled guilty to sexually abusing
Suzie and signed a written letter apologizing to her for said abuse was not
admitted at trial. The trial court admitted Suzie's testimony, finding that it was
relevant and admissible as it established a pattern of conduct. Specifically, the
trial court looked at the Bell factors and found:
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[Suzie] lived in Appellant's household since the time that she had
any recollection or memory. Appellant was in the role of father to
[Sam] and [Suzie] when the sexual abuse occurred against each.
The sexual abuse occurred in the same house and same bathroom
. . . . [Suzie] described an act of anal penetration that was the
same act to which [Sam] testified.
In Pendleton v. Corn., 685 S.W.2d 549, 552 (Ky. 1985), this Court held
"[e]vidence of independent sexual acts between the accused and persons other
than the victim are admissible if such acts are similar to that charged and not
too remote in time provided the acts are relevant to prove intent, motive or a
common plan or pattern of activity." Appellant argues that Pendleton is
distinguishable from his case for several reasons. First, he argues that the
facts that Suzie and Sam are of different genders and ages, and that Suzie is
not his biological daughter, while Sam is his biological son, make the acts
dissimilar. We disagree. The sexual act—anal sodomy—was the same in both
instances. The fact that Suzie happened to be female did not alter the type of
sexual act Appellant subjected her to. Sam was likely around eight years old
when his father and uncle sodomized him, while Suzie was between twelve and
fourteen when Appellant sodomized her. We do not believe this approximate
four-year age difference is enough to say that the acts are not of a similar
nature. Finally, Appellant was the only father figure Suzie had ever known.
She and Appellant had lived in the same home since she was eighteen months
old. As the trial court found, Appellant was a father figure for both Suzie and
Sam when he sodomized them.
Next, Appellant argues that, under Pendleton, the acts were too remote in
time for Suzie's allegations to be properly admitted at trial. We disagree. When
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they testified at trial, Suzie was sixteen years old and Sam was twelve. Suzie's
abuse occurred when she was between the ages of twelve and fourteen (or two
to four years prior to the trial) and the last time Sam described being
sodomized occurred when he was about eight years old (or about four years
before trial). So, these events occurred at the most two years apart, but
possibly even closer in time.
Under the Bell factors, the trial court had to first determine that the
evidence was relevant to prove something apart from Appellant's criminal
disposition before it could admit Suzie's testimony. The trial court found that
the testimony was relevant to show Appellant's pattern of conduct.
The next Bell factor required the trial court to determine if Suzie's
testimony of Appellant's other sexual acts was sufficiently probative and, if so,
whether the probative value was outweighed by undue prejudice. Appellant
points out our language in Driver v. Commonwealth, 361 S.W.3d 877, 885-86
(Ky. 2012), that "prior acts of violence or threats of violence against persons
other than the victim in the case on trial have significantly less probative value
than similar prior acts and threats against the same victim." He goes on to
note that lain exception has been recognized when the threat against the third
person is so close in time to the charged offense as to be considered a part of
the same transaction." Id. at 886 citing Chatt v. Commonwealth, 268 Ky. 141,
103 S.W.2d 952, 954-955 (Ky. 1937). However, we emphasize that these were
not threats of violence as contemplated by Driver and Chatt; nor were they
unproven allegations of sexual abuse brought up for the first time at trial, as
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was the case in Bell. Rather, Suzie's testimony was describing abuse for which
Appellant had been previously charged and to which he had already pled guilty
(thought this fact was not revealed to the jury). We cannot hold that the trial
court abused its discretion in allowing the testimony to come in under these
factors—it was close enough in time and circumstances to be considered part
of the same transaction and to show a course of conduct. Moreover, as this
Court held in Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999):
[t]he test of relevancy having been satisfied by proof of a modus
operandi, the evidence of [Appellant's] prior sexual misconduct was
properly admitted unless its probative value was substantially
outweighed by the danger of undue prejudice. KRE 403. This is the
point at which the issue of temporal remoteness becomes a factor
in determining admissibility. Robey v. Commonwealth, Ky., 943
S.W.2d 616, 618 (1997). However, it is not the sole determining
factor. While temporal remoteness tends to lessen the probative
value of the evidence of Appellee's prior sexual misconduct, its
probativeness is conversely heightened by the multiplicity of
victims, the multiplicity of occurrences, and the fact that the abuse
was perpetrated against members of several generations of the
same family. Lear v. Commonwealth, Ky., 884 S.W.2d 657 (1994).
The balancing of the probative value of such evidence against the
danger of undue prejudice is a task properly reserved for the sound
discretion of the trial judge. Rake v. Commonwealth, Ky., 450
S.W.2d 527, 528 (1970).
See also Jones v. Commonwealth, No. 2002-SC-1011-DG, 2005 WL 635051, at
*2 (Ky. Mar. 17, 2005) ("When the charged crime and the uncharged crime are
so similar and so unique as to indicate a reasonable probability that the crimes
were committed by the same person, under the same circumstances, the
evidence of the uncharged crime is admissible.").
Suzie's testimony tended to show that Appellant had a common scheme
or pattern of conduct: sodomizing his children in the bathroom of their home.
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Of course this testimony is prejudicial to his case—just as any adverse
evidence is. However, we hold that the trial court did not abuse its discretion
in finding that Suzie's testimony was not only probative, but that it was also
more probative than prejudicial. Suzie's testimony was properly admitted for
the limited purpose of showing Appellant's pattern of conduct.
2. Unpreserved Evidentiary Errors
Appellant alleges that, although unobjected to, the remainder of his
allegations of error were, in fact, preserved, as the trial court "was on notice
that such evidence should not be admitted." This argument is disingenuous,
as Appellant admits that "his trial counsel inexplicably did not object." In fact,
trial counsel failed to object even after the trial court sua sponte asked counsel
to approach the bench and raised KRE 404(b) concerns. Even after the trial
court pointed out that there had been no objection on those grounds,
Appellant's trial counsel still failed to make one. Appellant asks, in the
alternative, that we review these allegations for palpable error pursuant to RCr
10.26. "Palpable error affects the substantial rights of the party and results in
manifest injustice. Furthermore, an appellant claiming palpable error must
show that the error was more likely than ordinary error to have affected the
jury." Boyd v. Commonwealth, 439 S.W.3d 126, 129-30 (Ky. 2014). "In
determining whether an error is palpable, 'an appellate court must consider
whether on the whole case there is a substantial possibility that the result
would have been any different."' Commonwealth v. Pace, 82 S.W.3d 894, 895
(Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43. 45 (Ky. 1983)).
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We will not examine whether any error occurred in these instances, but only, if
there was an error, if it rose to the level of palpable error.
a. Patty's testimony
Appellant's first unpreserved contention arose from the testimony of his
daughter, Patty, who was eight years old at the time of trial. When the
Commonwealth asked Patty if she had been sexually abused, she responded in
the affirmative. Then, when the Commonwealth asked Patty who had abused
her, she said, "my dad." Appellant did not object, but now complains that he
had no notice under KRE 404(c) that this testimony would be provided and
that it failed to meet the admissibility requirements under the Bell test.
The Commonwealth points out that it did not follow up on Patty's
response that Appellant had sexually abused her. Rather, it immediately asked
Patty if anyone else had sexually abused her and began asking her questions
about Matt. The Commonwealth did nothing to emphasize Patty's statement
about Appellant. We hold that any error in the admission of Patty's testimony
was not "more likely than ordinary error to have affected the jury." Boyd, 439
S.W.3d at 129-30 (Ky. 2014). Furthermore, considering the other evidence
presented against Appellant, there is no "substantial possibility that the result
would have been any different" in the absence of any such error. Pace, 82
S.W.3d at 895.
b. Sam's testimony of physical abuse
During Sam's testimony, he recounted an event during which Appellant
slammed his head into the bathroom wall, leaving a hole visible in pictures he
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and Suzie were shown to identify the bathroom in which Appellant sodomized
them. When the Commonwealth asked Sam about this event, the trial court
asked counsel to approach the bench and expressed concerns about KRE
404(b). Appellant's counsel's only remark was that he did not "have notice of
404(c)." Appellant never objected to the line of questioning. The trial judge
informed the Commonwealth that if these claims could be related to the
charges, that would be fine, but, "just general evidence about these are bad
people despite the lack of objection, I am not going to allow that." (Emphasis
added.)
The Commonwealth argues that this testimony should have come in to
avoid any unanimous verdict issues. There is no need for us to address that
contention, because, due to the lack of objection—even though the trial court
indicated that it may be a concern—we will review only for palpable error. Sam
testified in depth about what Appellant did to him sexually. There is no
substantial possibility that a manifest injustice occurred such that the result -
in the case would have been any different absent testimony of physical abuse.
Therefore, we hold that there was no palpable error.
c. Drug and Alcohol Use
Again, Appellant raised no objection to any admission of testimony that
he drank, used drugs, or was unemployed. Much of the testimony regarding
his alcohol use was when the children were "setting the scene" for the events
surrounding their abuse. The testimony concerning his unemployment only
came up when a witness testified that he stayed home with the kids. Due to
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the testimonial evidence the jury heard from Sam and Suzie concerning being
sodomized by Appellant, there is no substantial possibility that a manifest
injustice occurred such that the result in the case would have been any
different absent testimony of physical abuse. Therefore, we hold that there was
no palpable error.
C. Sentence
The jury recommended that Appellant be sentenced to life imprisonment
for sodomy, fifty years' imprisonment for incest, and twenty years'
imprisonment for use of a minor in a sexual performance. The judgment is
silent as to whether the sentences are to run concurrently or consecutively.
Appellant claims that the trial court erred in ordering that his life sentence be
run consecutively to a twenty year sentence he was already in the process of
serving. He points out that this ruling was made orally, but that the
sentencing order failed to reflect whether the sentences were to be run
concurrently or consecutively.
As the Commonwealth points out, the sentences must be served
concurrently pursuant to KRS 532.110, which provides:
(2) If the court does not specify the manner in which a sentence
imposed by it is to run, the sentence shall run concurrently with
any other sentence which the defendant must serve unless the
sentence is required by subsection (3) of this section or KRS
533.060 to run consecutively.
While the trial court did orally rule from the bench that Appellant's life
sentence should be served consecutively to the twenty-year sentence he had
already begun serving (and even indicated he would like a ruling from this
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Court on the issue), the written order did not reflect this. In fact, the order did
not refer to Appellant's twenty-year sentence at all. "[T]he rule in Kentucky is
that when there is an inconsistency between oral statements of the presiding
judge and an order or judgment reduced to writing, the written order or
judgment prevails." Cardwell v. Commonwealth, 12 S.W.3d 672, 678 (Ky.
2000), citing RCr 13.04; CR 54.01; Commonwealth v. Taber, Ky., 941 S.W.2d
463, 464 (1997); Commonwealth v. Hicks, Ky., 869 S.W.2d 35, 37-38 (1994).
Appellant's sentence, as pronounced in the written sentencing order,
comports with the law. There is no relief to be granted upon this issue and we
will not address it further.
III. CONCLUSION
For the foregoing reasons, we affirm Appellant's convictions and
sentence.
Minton, C.J., Abramson, Barber, Cunningham, Keller, and Noble, JJ.,
concur. Venters, J., dissents by separate opinion.
VENTERS, J., DISSENTS: I respectfully dissent because I believe that
Appellant's trial on three counts involving a single victim should not have been
joined for trial with the multitude of charges against his brother, Matt,
involving seventeen crimes against seven different' victims. The majority
concedes that much of the evidence presented against Matt would have been
inadmissible in a trial against Appellant.
The fact that Appellant was being tried alongside his brother does not
render such evidence admissible against Appellant; in fact, the association of
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Appellant at trial with his brother on the unrelated crimes enhanced the
prejudicial effect of the improper evidence. I do not believe any trial judge
could fashion an admonition to the jury sufficient to remove that taint.
Introducing such prejudicial evidence and telling the jury not to consider it was
like throwing hot pepper into the stew and telling the jury not to taste it. I
believe Appellant's conviction should be reversed.
COUNSEL FOR APPELLANT:
Jason Apollo Hart, Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky
James Hays Lawson, Assistant Attorney General
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