Gregory Wahl v. Commonwealth of Kentucky ( 2021 )

RENDERED: DECEMBER 16, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0139-MR
GREGORY WAHL APPELLANT
ON APPEAL FROM GARRARD CIRCUIT COURT
V. HONORABLE HUNTER DAUGHERTY, JUDGE
NO. 2018-CR-00089
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING
Gregory Wahl (Wahl) was convicted of one count of first-degree assault
and one count of being a second-degree persistent felony offender. He was
thereafter sentenced to forty-five years and now appeals his convictions to this
Court as a matter of right.1 After review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts in this case are hotly contested. Therefore, we will outline the
basic undisputed facts, then summarize the relevant testimony from the
witnesses.
1 Ky. Const. § 110(2)(b).
Without doubt, on May 28, 2018, there was an altercation at the home of
Wahl and his fiancé, Alisha Sharp (Alisha), that left Alisha’s father, Steven
Christopher Gifford (Chris), severely injured.2
Wahl and Alisha lived in a trailer on the property of Chris and his wife,
Alisha’s mother, Beverly Gifford (Beverly). The trailer was located a short
distance from Chris and Beverly’s (the Giffords) home and on the same
property as that home. Alisha was allowed to live in the trailer, but there was
no formal agreement between the parties regarding tenancy. Wahl and Alisha
lived there with their child in common, who was two years old at the time of the
incident. Sometime before May 28, 2018, the Giffords had noticed two other
people they did not know were staying overnight at the trailer. Prior to the
incident, they developed concern regarding the guests because of the tender
age of their granddaughter.
On May 28, 2018, Alisha’s eighteen-year-old son, Ty Sharp (Ty), wanted
to see his little sister before leaving town and had come to visit his
grandparents. He and Beverly walked the short distance from the Giffords’
residence to Wahl and Alisha’s trailer. Once there, they saw Wahl and a man
unknown to either of them in the driveway packing the vehicle that the Giffords
allowed Alisha to drive. They met Alisha at the door, and took the child back to
2 The Commonwealth and the Appellant have alternate spellings of Alisha
Sharp’s given name. Because her name was spelled this way in the jury instruction,
we adopt this spelling throughout. Further, because some relevant persons share a
last name, we will refer to them by their first name.
2
the Giffords’ residence. The pair saw Chris on the way back, and alerted him
to the strange man at the trailer. According to Beverly, Chris was frustrated
because both she and he had told Wahl and Alisha several times that there
were to be no more strangers living with them in the trailer.
After hearing from Beverly and Ty that a strange man was at the trailer,
Chris grabbed a garden tool close to him in the barn to stabilize himself, and
began walking to the trailer.3 Chris was sixty-three years old at the time,
suffered from vertigo, and used a cane or walking stick to keep his balance.
According to Chris, he was concerned for his daughter and granddaughter, and
wanted to inform Alisha and Wahl that he would be beginning eviction
proceedings to remove them and their unknown overnight guests. He also
wanted to convey to Alisha that she and Wahl were welcome to come back once
the strangers were evicted, but that it was his understanding that he had to
evict them all to remove the strangers first. According to Alisha and Wahl,
Chris was angry with them for having unknown persons at the trailer and had
merely come to confront them about it. Either way, Chris made his way to the
trailer with the mutt in hand, which he and Beverly testified that he had used
as a walking stick numerous times.
Several diverging accounts exist regarding what happened once Chris
reached the trailer.
3 Though called various names throughout the trial, the record reflects that this
was a long wooden tool with a rectangular metal plate secured to the end that is used
as a scraper and chopper, and commonly referred to as a mutt. Therefore, we refer to
the tool as a mutt for clarity.
3
According to Wahl, he and Alisha saw Chris coming with the mutt in
hand at what Wahl described as a “pretty good clip.” Chris appeared angry as
he approached and yelled, “I’m going to kill you, motherfucker,” and then
swung the mutt at Wahl. Chris did not make physical contact with Wahl.
Wahl then grabbed a stick that was resting near a trashcan by the trailer to
defend himself, but did not swing it at Chris. In the interim, he heard Alisha
exclaim “dad, what are you going to do, try and kill me, too?” Chris then turned
his fury toward Alisha, who was seated in a car parked outside the trailer, and
swung the mutt at her. It bounced off the door, and struck and penetrated the
windshield. It was at this time that Wahl struck Chris for the first time in the
head. Chris fell, tried to get up, and Wahl struck him at least three more
times.
Alisha testified that Chris looked angry when he approached the trailer.
He was using the mutt as a walking stick and walking at a normal pace. There
was a conversation about evicting her and Wahl from the trailer. For some
reason unknown to her, Chris screamed, “You sorry motherfucker!” at Wahl
and the two exchanged insults. Not used to hearing her dad cuss, Alisha
thought to herself, “He’s pissed off big time.” Chris swung the mutt at Wahl at
least three times, during which time Wahl grabbed the stick on the trashcan.
Alisha decided at this point that the best way to end the altercation was to
leave, so she walked to the car and opened the door. She told Wahl they
should leave, at which point Chris noticed her, turned and walked toward her.
Chris then raised and swung the mutt at her, and struck the windshield of the
4
vehicle. She said, “dad, what are you going to do, try and kill me, too?” The
mutt came close to her head, and she was fearful for her life. Wahl then struck
Chris in the head with the stick. Chris tried to get up or grab the tool, and
Wahl struck him in the head with each attempt to move. Once Chris stopped
moving and Wahl stopped striking him, Alisha called 911 and went to the
Giffords’ house to find her children.
According to Chris, when he approached the trailer Wahl was holding
two sticks in his hand. He asked Wahl what the strange man was doing at the
trailer. Chris then told Wahl and Alisha that he would be evicting them and
wanted to let them know before they got the paperwork. Wahl then started
cursing at Chris, and Alisha opened the car door and told him that she did not
have to listen to him. She did not get inside the car and was standing adjacent
to the open car door. In an attempt to get Alisha to stay to discuss the
situation, he slammed the mutt onto the vehicle in frustration. He wanted her
to know he was serious. Chris then felt something strike him in the back of
the head, intense pain followed. He then fell to the ground. He was not sure
what had struck him. In an attempt to protect himself from further harm, he
tried to roll under the vehicle, but Wahl hit him several more times in the head
and face while yelling, “how do you like that, motherfucker!” His eyes were
swelling, so he could not see what he was being struck with, but he no longer
had the mutt in his hand.
According to Beverly, once she and Ty arrived back at the Giffords’ home,
she could see Chris walking toward the trailer through the tall grass. He was
5
using the mutt to help him walk. Chris did not seem angry. She thought that
Chris was going to talk to Wahl and Alisha about evicting them from the trailer.
It was uncommon, in her experience, for Chris to go down to the trailer. Once
she realized he would likely be discussing eviction, she, Ty, and the child went
back outside the house and watched. She could hear Wahl yelling, but could
not hear Chris. The two were standing about five to six feet apart. Wahl was
holding two sticks from the trashcan, and Chris was still holding the mutt he
had used to help him walk to the trailer. She heard Alisha tell Chris she was
leaving and open the car door, but Alisha was standing next to the open door
and not in the car. From her point of view, it did not appear that Chris had
swung the mutt toward Alisha, but she did see him slam the mutt onto the car,
breaking the windshield. She then saw Wahl strike Chris in the back of the
head, and then saw Chris’s body dip below the tall grass and out of her sight.
She saw Wahl strike toward the ground several more times. She instructed Ty
to take the child into the house, and she drove down to the trailer. Once there,
she hurried to Chris. He had deep gashes above his right eye and on his nose,
was bleeding profusely, his eyes were swollen shut, and he was writhing in
pain. Beverly also saw Alisha walk toward the Giffords’ house, and Wahl walk
toward the barn. She collected a bed sheet from the car, and wrapped it
around Chris’s head in an effort to stop the bleeding.
From the Giffords’ home, Ty saw Chris talking to Wahl and Alisha at the
trailer. He could tell that Wahl was saying something loud and aggressive, but
could not make out the exact words other than cuss words. He knew that
6
Chris walked with the assistance of a cane or walking stick, and saw the mutt
in his hand. He then saw Chris slam the mutt onto the car, breaking the
windshield. He saw Wahl strike Chris, and then strike toward the ground once
Chris fell, but could not see whether Wahl was striking Chris due to the tall
grass.
After the incident, Alisha and Wahl separately called 911. Alisha, Ty,
and the child stayed at the Giffords’ home while Beverly tended to Chris, who
was laying next to the vehicle with his eyes swollen and head bleeding.
Meanwhile, Wahl walked toward the barn and laid in the grassy field until
police arrived.
It took approximately fifteen minutes for Emergency Medical Services
(EMS) workers to arrive at the Giffords’ residence. Kay Roberts (Roberts) was
the supervising paramedic who was dispatched to the residence. For
approximately forty-five minutes she waited there with Alisha, Ty, and the child
until police could arrive and ensure the EMS workers’ safe entry to the trailer.
While waiting, she got information from Alisha regarding what happened.
Roberts testified she did so in order to be able to better treat Chris once her
team could safely get to him. During that time, Alisha told Roberts that Wahl
had struck Chris with the mutt. Roberts testified that she included that
information in her report so that subsequent treating physicians could know
what kind of object had caused the trauma to Chris’s head and face.
Kentucky State Trooper Jacob Shepherd (Trooper Shepherd) arrived at
the scene nearly an hour after the incident was over. He found Wahl speaking
7
to local police, approached Wahl and spoke with him, and then took his
statement regarding the altercation. He noted that Wahl had sustained no
injuries. Trooper Shepherd took several photographs at the scene, including of
Chris, of the mutt, of the stick or sticks Wahl had picked up from the trashcan,
of the vehicle, of the residences, and of the barn. However, Trooper Shepherd
did not take the sticks or the mutt into evidence. Trooper Shepherd did take
several other recorded statements. Wahl’s recorded statement was played at
trial, and so was Beverly’s.
Wahl was indicted for first-degree assault and being a first-degree
persistent felony offender on October 5, 2018 by way of the Garrard County
Grand Jury. On December 20, 2019, Wahl filed a motion to dismiss the
indictment, claiming immunity from prosecution pursuant to Kentucky Revised
Statute (KRS) 503.085. KRS 503.085(1) provides in pertinent part that:
[a] person who uses force as permitted in KRS
503.050, 503.055, 503.070, and 503.080 is justified in
using such force and is immune from criminal
prosecution and civil action for the use of such force
[…]. As used in this subsection, the term “criminal
prosecution” includes arresting, detaining in custody,
and charging or prosecuting the defendant.
The relevant portions of KRS 503.050 provide that:
(1) The use of physical force by a defendant upon
another person is justifiable when the defendant
believes that such force is necessary to protect himself
against the use or imminent use of unlawful physical
force by the other person.
(2) The use of deadly physical force by a defendant
upon another person is justifiable under subsection (1)
only when the defendant believes that such force is
necessary to protect himself against death, serious
8
physical injury, kidnapping, sexual intercourse
compelled by force or threat, felony involving the use of
force, or under those circumstances permitted
pursuant to KRS 503.055.
[. . .]
(4) A person does not have a duty to retreat prior to
the use of deadly physical force.
The relevant portion of KRS 503.055(3) states that:
[a] person who is not engaged in an unlawful activity
and who is attacked in any other place where he or
she has a right to be has no duty to retreat and has
the right to stand his or her ground and meet force
with force, including deadly force, if he or she
reasonably believes it is necessary to do so to prevent
death or great bodily harm to himself or herself or
another or to prevent the commission of a felony
involving the use of force.
The trial court reviewed the entirety of the evidence in the record at the
time of the motion and considered the foregoing statutes. The trial court then
denied the motion to dismiss after reviewing the record in accordance with
Commonwealth v. Eckerle,4 and the case proceeded to trial.
Dr. Sri Rapuri was Chris’s family physician. He reviewed the medical
records that were created at the University of Kentucky Hospital (U.K. Hospital)
where Chris was initially treated. Dr. Rapuri treated Chris after his release
from U.K. Hospital, and testified about his extensive injuries at trial as an
expert witness. Dr. Rapuri stated that Chris eventually had to have his right
eye removed, has advanced scarring on his face and head from the altercation,
suffered numerous skull fractures, and suffered a subdural hematoma in
4 470 S.W.3d 712 (Ky. 2015).
9
addition to the superficial injuries to the skin on his head and face. Based
upon Dr. Rapuri’s training and experience, he stated it would take a great
amount of physical force to break the skull on the forehead. Dr. Rapuri stated
that he also treated Chris for severe anxiety, panic attacks, post-traumatic
stress, and nightmares related to the altercation. Following Dr. Rapuri’s
testimony, the Commonwealth moved to enter a limited number of certified
medical records into evidence, including records from U.K. Hospital and
records from Dr. Rapuri’s office.
Alisha, Ty, Beverly, Chris, Roberts, and Trooper Shepherd testified at
trial. Wahl also testified on his own behalf. Each recounted the occurrences of
that day from their own perspective. Chris and Beverly were emphatic that
Chris would never hurt Alisha, stating that their only other child died by
suicide several years prior, and it had compelled them to nurture their
relationship with Alisha and her children.
On direct examination, Alisha initially stated that she never saw Wahl
with the mutt. Confronted with the paramedic’s report during cross
examination, Alisha stated that she did not remember telling Roberts that Wahl
had the mutt and does not know why she would have said it, but conceded
that Roberts would not have included it in her notes if she had not said it.
On direct examination, Alisha asserted that she had a loving relationship
with Wahl. In an effort to impeach her, the prosecutor engaged in the following
line of questioning:
Q: You testified that you love Greg [Wahl], but aren’t
you scared of [him]?
10
A: Like, I don’t…
Q: Fearful of him.
A: In what situation?
Q: Violence. That he may be violent with you.
A: I guess there have been times when we have had
disagreements.
Q: Okay, so in the timeframe leading up to 2018, were
you fearful of…
A: At that particular time, I was not fearful.
Defense counsel objected on the ground that notice was required to
question Alisha for the purpose of impeachment on Wahl’s prior bad act (i.e.
charges of assault that Alisha had filed against Wahl) and moved for a mistrial.
Defense counsel stated that the charges were for assault, and that the
Commonwealth hinted to the jury that Wahl had assaulted the witness. The
Commonwealth argued that he was not using the prior bad act in his case in
chief, and therefore notice was not required under the rule. The trial court
sustained the objection, but stated that mistrial was improper because Alisha
had not discussed anything that he had done, and that an admonition would
be sufficiently curative. Further, the trial court stated that, because Alisha’s
credibility was at issue and because her being fearful of Wahl would reflect her
motivation for testifying, evidence of the pair’s alleged domestic violence would
have been admissible if the prosecutor had given proper notice. Defense
counsel asked that the court not admonish the jury, fearing an admonition
would leave more questions than provide answers.
After the close of the evidence, the jury was instructed on the charge of
first-degree assault and the lesser-included offenses of second-degree and
11
fourth-degree assault. The jury also was instructed on the defenses of self-
protection and protection of another. The jury found Wahl guilty of first-degree
assault, and sentenced Wahl to twenty years during the guilt phase.
During the penalty phase, the Commonwealth read pertinent information
from each of Wahl’s previous convictions and entered certified copies of each as
exhibits rather than introducing the convictions through live testimony. The
exhibits reflect the following information about Wahl’s prior convictions:
(1) one count of fourth-degree assault in Casey
County, Kentucky in 2004 (including the name of the
assault victim);
(2) one count of theft by unlawful taking in Boyle
County, Kentucky in 2009 (including the name of a
Wal-Mart manager as complaining witness and
address of the Wal-Mart);
(3) six counts of theft by deception in Casey County,
Kentucky in 2010 (including the names of store
managers as complaining witnesses and addresses of
stores);
(4) separate counts of driving under the influence,
improper passing of a loading/unloading school bus,
expired license plates, and eighteen counts of first-
degree wanton endangerment (one count for each
person on the bus, naming each person in the
indictment) in Casey County, Kentucky in 2010;
(5) two counts of second-degree trafficking in a
controlled substance in Casey County, Kentucky in
2011 (containing the name of a Kentucky State Police
officer as complaining witness).
The trial court allowed the exhibits (Commonwealth Exhibit Nos. 2, 3, 4, 5, and
6, respectively) to go with the jury into the deliberation room with no objection
from defense counsel.
12
The jury found Wahl guilty of being a second-degree persistent felony
offender during the penalty phase, which enhanced the sentence to forty-five
years by the finding of persistent felony offender status. The trial court
imposed the sentence as recommended by the jury. This appeal followed.
We discuss additional facts as necessary below.
II. ANALYSIS
Wahl asserts a number of errors on appeal to this Court. First, Wahl
contends that the trial court erred by denying his motion to dismiss the
indictment on the basis of immunity. Second, Wahl argues that the trial court
erred by allowing the Commonwealth to introduce the hearsay statement of
Alisha that Wahl struck Chris with the mutt through the testimony and written
report of EMS worker Roberts.5 Third, Wahl argues that the trial court erred
by not granting his motion for a mistrial after the Commonwealth questioned
Alisha about whether Wahl had been violent toward her during cross
examination. Fourth, and finally, Wahl contends that the trial court exceeded
5 Wahl tangentially argues that paramedic Roberts made statements that were
beyond lay testimony, and that she was not qualified as an expert to offer such an
opinion. Namely, that she testified that it would take a great amount of force to break
the frontal bone and that the deep lacerations on Chris’s face looked like they had
been made with a slim, heavy object. The trial court ruled that she could not state
specifically which instrument was used but could detail what type of object would be
consistent with the injuries she observed. Defense did not object to this testimony,
therefore this alleged error was unpreserved. Kentucky Rule of Criminal Procedure
(RCr) 9.22. Wahl did not request review for palpable error. “Ordinarily, when an issue
is unpreserved at the trial court, this Court will not review it unless a request for
palpable error review under RCr 10.26 is made and briefed by the appellant.” Webster
v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014) (citing Shepherd v. Commonwealth,
251 S.W.3d 309, 316 (Ky. 2008)). Accordingly, palpable error review is denied.
Further, we note that Dr. Rapuri made substantially the same statements during the
trial, thus rendering any such comment by Roberts as merely cumulative.
13
the scope of KRS 532.055 when copies of documents related to his prior
convictions were introduced and sent into deliberations with the jury. We take
each argument in turn.
A. The trial court did not err by denying Wahl’s motion to dismiss the
indictment under KRS 503.085.
Wahl contends that error occurred when the trial court denied his
motion to dismiss the indictment on the basis of immunity.6 He argues that
the Commonwealth failed to point to sufficient evidence in the record at the
time of the motion to support the trial court’s probable cause finding under
KRS 503.085. Further, he states that the trial court incorrectly determined
that he was not immune from prosecution because at least some of the force
may have been justified.
We ordinarily do not revisit a trial court’s probable cause finding in cases
in which “a jury has already convicted the defendant—and, thus, found [his
actions were] unlawful beyond a reasonable doubt” unless there are flaws in
the conviction.7 Considering the seriousness and fact-intensive nature of the
errors alleged by Wahl, however, we will review the trial court's denial of his
immunity motion.
“The standard of review of a denial of a defendant's motion to dismiss for
immunity from prosecution under KRS 503.085 is whether the trial court had
a ‘substantial basis’ for finding probable cause to conclude that the defendant's
6This issue was preserved for appellate review upon Wahl’s motion to dismiss
pursuant to KRS 503.085. RCr 9.22.
7 Ragland v. Commonwealth, 476 S.W.3d 236, 246 (Ky. 2015).
14
use of force was unlawful.”8 This Court elucidated this rule further in Ragland
v. Commonwealth, stating as follows:
[t]he standard of probable cause is “a fluid concept—
turning on the assessment of probabilities in
particular factual contexts—not readily, or even
usefully, reduced to a neat set of legal rules.”9
It has been defined as “reasonable grounds for belief,
supported by less than prima facie proof but more
than mere suspicion.”10
And judges must consider the totality of the
circumstances then known to determine whether
probable cause exists to conclude that a defendant's
use of force was unlawful.11
As this Court has previously stated, “in order for the prosecutor to bring
charges or seek an indictment, there must be probable cause to conclude that
the force used by the defendant was not fully justified under the controlling
provision or provisions of KRS Chapter 503.”12 A defendant is justified in using
deadly physical force “only when the defendant believes that such force is
necessary to protect himself against death . . . [or] serious physical injury . .
.”13 Under KRS 503.070(2), deadly physical force to protect another person is
justified if “[t]he defendant believes that such force is necessary to protect a
third person against imminent death . . . [or] serious physical injury” and
8 Id. at 246 (citing Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014)).
9 Id. at 246 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
10 Id. at 246 (quoting Commonwealth v. Jones, 217 S.W.3d 190, 200 (Ky. 2006)).
11 Id. at 246-47 (citing Rodgers v. Commonwealth, 285 S.W.3d 740, 754-55 (Ky.
2009)).
12 Rodgers, 285 S.W.3d at 754.
13 KRS 503.050(2).
15
“[u]nder the circumstances as they actually exist, the person whom he seeks to
protect would himself have been justified . . . in using such protection.”
The trial court ruled that the force Wahl used was not fully justified after
considering the following evidence: audio recordings of interviews with Beverly,
Chris, Wahl, and Alisha, police reports, and photographs of the scene,
including those of Chris’s injuries, the walking sticks and mutt, and the
vehicle. Inconsistent evidence and testimony alone provide the substantial
basis upon which the trial court formed its probable cause finding that the
force Wahl used was unlawful. The four interviews offered varying accounts of
what happened and are critical to whether Wahl was entitled to self-defense or
defense of another.
Beverly told Trooper Shepherd that Chris smashed the window with the
mutt he was using as a walking stick, but he did not swing it at Alisha and had
not swung it at Wahl at all. She then saw Wahl strike Chris in the back of the
head, Chris fall, and Wahl strike Chris several more times.
According to Chris, Wahl was holding two sticks in his hand when Chris
approached. Alisha came out of the house and asked him what he was doing
down there. Chris explained he was going to evict them. He never attempted
to strike either one of them. Wahl raised his stick at Chris, started screaming
and cussing at him, then Alisha said she was leaving, and Chris slammed the
mutt onto the car to stop her from leaving. Immediately, he was struck in the
back of the head by Wahl, who had been standing behind him. Alisha said,
“Dad, why did you try to kill me?” He did not lose consciousness. Wahl struck
16
him at least six more times while he was on the ground. He never tried to get
up, and instead tried to roll under the vehicle to get away from Wahl.
Alisha told Trooper Shepherd that she saw her dad coming to the trailer
with the mutt in hand. She said to him, “dad, I don’t know what you’re trying
to do, but just leave.” She then heard Chris tell Wahl that he would kill him,
and saw him swing the mutt toward Wahl, but not strike him. Wahl then
picked up a walking stick, and the two hit each other’s sticks. Alisha tried to
leave, and Chris tried to strike her with the mutt, but instead hit the
windshield as she was trying to get in the car. Chris again swung the mutt at
Wahl, and Wahl struck Chris in the head. Chris fell, and tried to get up, and
Wahl struck him several more times until Chris quit trying to get up.
Wahl told Trooper Shepherd that he and Alisha were getting ready to
leave when Beverly and Ty came to get the child. Ten minutes later, he saw
Chris coming toward the trailer carrying the mutt. Chris told Wahl that he had
come to kill him, and swung the mutt at him. Then Chris turned toward Alisha
and swung at her while she was in the car, and struck the windshield. Chris
then turned and swung at Wahl, and Wahl struck Chris in the head with a
walking stick. Chris then fell to the ground. Wahl did not know how many
times he struck Chris, but he kept striking him until he quit trying to get up.
These varying accounts alone provide the substantial basis upon which
the trial court formed its reasonable grounds for belief that the force Wahl used
was not justified. Wahl contends that Chris approached quickly with the
intent to kill him and while possessing a deadly weapon. Chris and Beverly
17
contend that Chris approached without anger and with only a tool he carried to
stabilize his unsteady and slow gate. Wahl contends that Alisha was in
imminent danger. Chris contends that he would never harm his only surviving
child and never swung the mutt at either her or Wahl. While Wahl contends
that he only struck Chris while he was on the ground because he was trying to
get up, Chris contends that Wahl continued to beat him when he tried to shield
himself by seeking safety under the vehicle. These facts, which Wahl portrays
as undisputed, are clearly at odds. These critical variances in the testimony
have great effect on whether Wahl acted justifiably, and certainly on whether
each blow dealt was justifiable. We conclude from the evidence that the trial
court had a substantial basis to find that Wahl’s use of force was unlawful.
Therefore, the trial court did not err in denying Wahl’s motion to dismiss the
indictment based on his claim of self-defense or defense of others.
B. Roberts’ report and her testimony concerning it were admissible.
Roberts’ report and her testimony reflected that Alisha told her that Wahl
had struck Chris with the mutt. Wahl contends that this is inadmissible
hearsay evidence under KRE14 802.15 We review a trial court’s determination
14 Kentucky Rule of Evidence.
15 This issue was preserved for appellate review by defense counsel’s
contemporaneous objection and subsequent motion for a mistrial. RCr 9.22. In
addition to alleging that the portion of the report that contains Alisha’s statement is
inadmissible hearsay, Wahl further alleges error in admission of the report as a whole
on appeal, and posits that it was not admissible as a business record. Wahl did not
raise this issue before the trial court. Wahl did not request palpable error review by
this Court or brief how admission of the whole record would constitute palpable error
reviewable by this Court under RCr 10.26. Therefore, we decline to address it. Thus,
the sole question properly before us is whether the hearsay statement made by Alisha,
18
regarding the admissibility of evidence under the abuse of discretion
standard.16
“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.”17 Subject to a full panoply of well-established exceptions,
hearsay is inadmissible.18
The Commonwealth chiefly relied on KRE 803(4) in arguing that the
hearsay statement contained in the report and testimony concerning that
hearsay statement were admissible.19 KRE 803(4) states in relevant part:
[t]he following are not excluded by the hearsay rules,
even though the declarant is available as a witness:
Statements made for purposes of medical treatment or
diagnosis and describing medical history, or past or
present symptoms, pain, or sensations, or the
inception or general character of the cause or external
source thereof insofar as reasonably pertinent to
treatment or diagnosis.
It is evident that Roberts’ testimony and report regarding the out of court
statement of Alisha was used to prove the truth that Wahl struck Chris with
the mutt. However, for the reasons discussed below, we hold that this
who did not have a business duty to make the statement, is admissible under some
other hearsay exception.
16 Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994).
17 KRE 801(c).
Moore v. Commonwealth, 462 S.W.3d 378, 381 (Ky. 2015) (quoting Wells v.
18
Commonwealth, 892 S.W.2d 299, 301 (Ky. 1995); then citing KRE 802).
19The Commonwealth argues in the alternative that the statement was
admissible under KRE 801A(a)(1). Because we hold the report was admissible under
KRE 803(4), we need not and do not address that argument.
19
statement was properly admissible under KRE 803(4)’s exception to the general
bar on hearsay.
The admission of the report presents a rather unique question: do EMS
pre-hospital care reports containing hearsay fall within the definition of
medical records excepted from the bar on hearsay under KRE 803(4)? Having
extensively reviewed the precedent of this Court, we are not satisfied that we
have directly addressed this question.
Professor Robert Lawson has accurately pointed to the basics of the rule:
[m]ost of the hearsay admitted under the exception will
consist of statements made to treating physicians, but
the defining language of KRE 803(4) does not limit the
exception to such statements for good reason (as
drafters explained in their commentary on the
exception):
The language of subsection (4) does not limit the
coverage of the exception to statements made to
physicians. It is commonplace for physicians to use
nurses, technicians, and other highly trained
individuals, in the course of providing treatment to
patients. The drafters of the Federal Rule made the
following statement about this issue: Under the
exception the statement need not have been made to a
physician. Statements to hospital attendants,
ambulance drivers, or even members of the family
might be included . . . Extending coverage to
statements made to family members may be somewhat
extravagant. But it is proper to apply the exception to
statements made to medical personnel.
Most of the hearsay admitted under the exception will
consist of statements made by patients, but once again
the language of the defining provision extends beyond
the normal situation to cover statements made by
third persons on behalf of patients (such as
statements made by parents to physicians in obtaining
treatment of their children) so long as they are made
for purposes of diagnosis or treatment. In addition to
20
having been made for this purpose, qualifying
statements must fall into one of these three categories:
(1) medical history, (2) symptoms, pain, or sensations,
or (3) the inception or general character of the cause or
external source thereof.20
We agree with Professor Lawson. To the extent that EMS care reports
contain statements made to paramedics for the purpose of medical treatment
or diagnosis and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as the statements are reasonably pertinent to
treatment or diagnosis, these records may be generally admissible under KRE
803(4). A statement made to paramedics for the purpose of diagnosis or
treatment, “like any other relevant evidence, is subject to exclusion if its
probative value is substantially outweighed by the danger of undue prejudice
[…], confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence.”21 “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.”22
20 Robert Lawson, The Kentucky Evidence Law Handbook, § 8.55[1][a] at 746
(LexisNexis Matthew Bender 2019) (quoting Evidence Rules Study Committee,
Kentucky Rules of Evidence—Final Draft, p. 85 (Nov. 1989)).
21 Garrett v. Commonwealth, 48 S.W.3d 6, 14 (Ky. 2001) (citing KRE 403).
22 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
21
However, we caution that “[t]his exception to the hearsay exclusionary
rule does not open the door to testimony by”23 paramedics to all conversations
with witnesses or the patient. 24 As this Court has detailed, whether
statements are excepted from the general bar against hearsay under the
medical diagnosis and treatment exception is “governed by a two-prong test: (1)
the declarant's motive in making the statement must be consistent with the
purpose of promoting treatment; and, (2) the content of the statement must be
such as is reasonably relied on by a physician in treatment or diagnosis.”25
Under the first prong of the test, the declarant’s motive must be carefully
scrutinized. “This exception to the hearsay rule is premised on the notion that
a declarant seeking treatment has a selfish motive to be truthful because the
effectiveness of medical treatment depends upon the accuracy of the
23 Tackett v. Commonwealth, 445 S.W.3d 20, 27 (Ky. 2014).
24 We further caution that a paramedic’s care report will not always admissible,
and certainly not always admissible in full. In Gillam v. Commonwealth, an
unpublished opinion, this Court determined that a victim’s statements made to an
Emergency Medical Technician (EMT) regarding the identity of her attacker were
testimonial, and therefore implicated the confrontation clause, and were also not
relevant to her treatment or diagnosis. No. 2007-SC-000180-TG, 2008 WL 4291544,
at *5 (Ky. Sept. 18, 2008). We analogized statements made by the victim to an EMT
regarding the identity of her attacker to those the victim made to police officers. This
logic was sound and appropriate under the facts of that case. Then as now,
“statements of identity are seldom if ever pertinent to diagnosis or treatment” when
they are later sought to be admitted to prove that the defendant committed the
charged criminal offense in that case. Garrett, 48 S.W.3d at 12. Importantly, identity
of the attacker is not at issue here, and Wahl had the ability to confront Roberts with
the statement, and offered Alisha as his own witness.
25 Id. (Ky. 2010) (internal citations and quotation marks omitted).
22
information provided.”26 When a patient is unable to speak on their own behalf
due to disability or infancy, this Court has held that the declarant’s motive may
be ascertained by their relationship with the patient.27 Statements made by
close family members in such circumstances are inherently more reliable than
statements made by non-family declarants due to the uniquely close nature of
those relationships. An adult child, who by all accounts had a close and loving
relationship with her father, especially after the untimely death of her only
sibling, would necessarily have a motive to be truthful to paramedics waiting in
the wings to render aid to her gravely injured father during an ongoing
emergency.
Under the second prong of the test, the plain language of KRE 803(4)—
i.e., whether the statements were “reasonably pertinent to treatment or
diagnosis”—demands an objective test.28 An adult child’s statement as to the
“general character of the cause or external source” of her father’s injury would
logically be necessary for medical personnel to render effective aid.29 A trial
court should consider all objective facts in the record to make its determination
of whether the statement made would be pertinent to treatment or diagnosis.
26 Id.
27 See Miller v. Watts, 436 S.W.2d 515 (Ky. 1969), wherein this Court reaffirmed
Commonwealth, Div. of Forestry, Dep’t of Conservation v. Farler, 391 S.W.2d 371 (Ky.
1965), recognizing “that a patient's history related to a treating doctor by a member of
the patient's family was admissible.”
28 (Emphasis added).
29 KRE 803(4).
23
This case clearly demonstrates the circumstances under which hearsay
statements contained in a paramedic’s care report can be a medical record
exempt from the hearsay bar under KRE 803(4).
Under the first prong of the test, the facts in the record indicate that
Alisha had a strong motivation for truthfulness. Alisha called 911, and was the
one who relayed the information that Wahl had struck Chris with the mutt to
the paramedic. She testified that she made the call with the purpose of seeking
medical treatment for her father and understood that he was gravely injured.
Though she was not the patient herself, she did have a special relationship
with the person for whom she was seeking medical treatment: that of a child
concerned for her parent after he had been beaten. The emergent situation for
which she was seeking medical assistance from the paramedic was still
ongoing at the time she made the statement: the paramedics had yet to reach
Chris due to their concern for their own safety, and he still laid where he had
fallen with no aid other than a bedsheet to stop his bleeding. These facts
underscore her motivation for truthfulness. Therefore, for the same reasons
the trial court found, the first prong of the test is satisfied.
Under the second prong, the facts in the record strongly indicate that a
statement identifying the weapon would, objectively, be relied on by a physician
in treatment or diagnosis. Whether the trauma was blunt force, caused by a
sharp object, a gun, or some other instrument is clearly pertinent to how
emergency responders and other providers would treat Chris’s injuries.
Though the rule does not require that medical professionals actually rely on
24
the statement, it is clear here that Roberts did in fact rely on it. Roberts
testified that she “always” included information regarding what caused the
injury, because the more information that she had the better she could treat
Chris’ injuries. Therefore, for the same reasons the trial court found, the
second prong of this test is satisfied.
We have carefully considered whether EMS care reports containing
hearsay statements are excepted from the rule against hearsay when made for
the purpose of medical treatment or diagnosis. We hold that these statements
are admissible under KRE 803(4), unless rendered inadmissible under some
other rule of evidence.
The statements contained in Roberts’ report satisfy the requirements
under 803(4) for the reasons discussed above. We cannot say that the
probative value of this evidence was substantially outweighed by its prejudice.
Which weapon Wahl employed to exert force was highly probative to whether
that force was necessary. That he used one weapon over another was
minimally prejudicial. We conclude that it was not error for the trial court to
admit the report.
For the same reason, it was not error for the trial court to permit Roberts
to testify about the report or its contents.
C. The trial court did not err by denying Wahl’s motion for a mistrial as
the Commonwealth did not violate KRE 404(c).
Alisha did not testify for the Commonwealth but was called by the
defense. During her direct examination, Alisha discussed how she and Wahl
had a loving relationship and intended to get married. During the
25
Commonwealth’s cross examination of Alisha, she was asked whether she had
ever been fearful of Wahl. Alisha denied being fearful of him and defense
counsel objected. At the bench conference, the trial court sustained the
objection and offered to admonish the jury to disregard the question. Defense
counsel declined the admonition and moved for a mistrial.
Wahl argues that these two or so questions about whether Alisha was
fearful of Wahl were inadmissible evidence under KRE 402, 403, and 404(b),
and that he was not given adequate notice as required under KRE 404(c).30
Wahl argues that the only remedy for the implication that Wahl had assaulted
Alisha in the past was a mistrial. However, Alisha answered that she was not
fearful of Wahl and counsel’s timely objection prevented the entry of any
evidence of domestic violence between Alisha and Wahl. Therefore, we hold
that the trial court did not abuse its discretion in denying Wahl’s motion for a
mistrial.
D. The trial court did not commit palpable error by admitting proof of
Wahl’s prior convictions.
Wahl argues for reversal of his sentence and remand for a new penalty
phase because the names of victims of his prior crimes were disclosed in
30 The issue of admissibility under KRE 404 was preserved for appellate review
by defense counsel’s contemporaneous objection and subsequent motion for a
mistrial. RCr 9.22. The issue of admissibility under KRE 402 and 403 was not
preserved, but Wahl requests review for palpable error. “Ordinarily, when an issue is
unpreserved at the trial court, this Court will not review it unless a request for
palpable error review under RCr 10.26 is made and briefed by the appellant.”
Webster v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014) (citing Shepherd v.
Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008)) (emphasis added). Aside from his
cursory request, Wahl failed to brief how the trial court’s ruling of admissibility under
KRE 402 and 403 would constitute palpable error. Accordingly, we decline to address
his argument concerning admissibility under KRE 402 and 403.
26
unredacted exhibits sent with the jury into deliberation.31 Wahl argues that
the trial court exceeded the scope of KRS 532.055 when copies of documents
related to his prior convictions were introduced and sent into deliberations with
the jury. The Commonwealth concedes that admission of certified copies of
Wahl’s prior convictions that included victims’ names was error but argues that
it did not result in manifest injustice, and, therefore, reversal is not warranted.
“Kentucky’s Truth-in-Sentencing statute [(KRS 532.055)] is geared
toward providing the jury with information relevant to arriving at an
appropriate sentence for the particular offender.”32 KRS 532.055 allows the
prosecution to introduce evidence related to sentencing during the penalty
phase of a defendant’s trial. KRS 532.055(2)(a) states that “[e]vidence may be
offered by the Commonwealth relevant to sentencing including: (1) [m]inimum
parole eligibility, prior convictions of the defendant, both felony and
misdemeanor; (2) [t]he nature of prior offenses for which he was convicted….”
This Court drew a bright line rule in Mullikan v. Commonwealth that “the
evidence of prior convictions is limited to conveying to the jury the elements of
the crimes previously committed.”33 Therefore, “[t]he trial court should avoid
identifiers, such as naming of victims, which might trigger memories of jurors
who may—especially in rural areas—have prior knowledge about the crimes.”34
31 Wahl concedes this issue was unpreserved and requests this Court review for
palpable error. RCr 10.26.
32 Williams v. Commonwealth, 810 S.W.2d 511, 513 (Ky. 1991).
33 341 S.W.3d 99, 109 (Ky. 2011).
34 Id.
27The exhibits at issue here clearly violate this Court’s bright line rule.
Submitting the records to the jury during deliberations was error. However,
only if a “manifest injustice has resulted from the error” will we reverse under
the palpable error standard.35
Palpable error is one “easily perceptible, plain, obvious and readily
noticeable.”36 “[T]he required showing is probability of a different result or
error so fundamental as to threaten a defendant’s entitlement to due process of
law.”37 Our “focus is on what happened and whether the defect is so manifest,
fundamental and unambiguous that it threatens the integrity of the judicial
process.”38
In Webb v. Commonwealth, this Court determined that the admission of
detailed prior-conviction evidence, which included victims’ identities, was
palpable error.39 We held it was highly prejudicial for the identities of the
victims, five of which were police officers, to be disclosed to the jury primarily
because all of the victims in that case had also been law-enforcement or
correctional officers.40 Similarly, in Stansbury v. Commonwealth, this Court
found palpable error in the admission of the past victims’ names and records
35 RCr 10.26.
36 Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
37 Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
38 Id.
39 387 S.W.3d 319 (Ky. 2012).
40 Id.
28detailing prior dismissed charges.41 In Webb and Stansbury, this Court
determined that because the improper evidence was either read to the jury by a
witness or prosecutor or was referenced or emphasized by the prosecutor
during argument, or both, that the unpreserved error required reversal. In the
case at bar, however, no impermissible evidence of prior dismissed charges was
introduced as in Stansbury, and the victim in this case was not remotely
similar to the victims of Wahl’s previous offenses as were in Webb. The jury
heard only proper information regarding Wahl’s criminal history and the
prosecutor did not refer to the other inadmissible information. Therefore, we
find the facts in Webb and Stansbury distinguishable.
The facts presented by the instant case are more closely related to those
this Court considered in Martin v. Commonwealth42 and Wallace v.
Commonwealth.43
In Martin v. Commonwealth, “copies of the final judgments were
introduced into evidence as documentary exhibits, and they did contain
references to original charges that were ultimately dismissed or amended to
lesser offenses.”44 The prosecutor made no “testimonial or argumentative
reference to the improper evidence,” and there existed “only the possibility that
41 454 S.W.3d 293 (Ky. 2015).
42 409 S.W.3d 340 (Ky. 2013).
43 478 S.W.3d 291 (Ky. 2015).
44 Martin, 409 S.W.3d at 348.
29
the jurors might have gleaned that information if they looked at the judgments
during their deliberations.”45 This Court further noted that
[w]hatever prejudicial influence the exhibits may have
exerted was not apparent to the trial court or to
Appellant’s trial counsel. Even upon our presumption
that the documents went to the jury room and the
further assumption that the jury became aware of the
original charges underlying Appellant’s prior
convictions, we believe that it is unlikely that such
knowledge affected the resulting sentence.46
Therefore, we held that “manifest injustice did not result and reversal for a new
penalty phase is not appropriate.”47
In Wallace:
inadmissible evidence was only submitted to the jury
through the various certified court documents and was
intermingled with the properly admitted evidence. The
Commonwealth’s witness recited to the jury only
proper information regarding Wallace’s criminal
history—namely, the offenses resulting in convictions,
relevant dates, and sentences—and the prosecutor did
not refer to the other inadmissible information in
closing arguments.48
Looking to Martin for instruction in Wallace, this Court found no palpable
error, because there was no testimonial evidence or argumentative reference to
any of the victims of Wallace’s prior convictions.49
45 Id. at 349.
46 Id.
47 Id.
48 478 S.W.3d at 301.
49 Id. at 302.
30
Our holdings in Martin and Wallace are instructive and directly
applicable in the instant case. Neither the prosecutor, the trial court, nor any
witness referenced the names of the victims or their identities during the
penalty phase, though the prosecutor did say that Wahl had been convicted of
twenty-one felonies in an apparent reference to the twenty-one charges for
which Wahl had either pled guilty or been convicted. The jury was entitled to
know about these convictions. Despite this knowledge, the jury did not deliver
the maximum sentence available. Further, the jury was presented with
testimony supporting a theory that Wahl believed he acted in self-defense, or in
defense of Alisha, but chose to reject it. We do not believe it more likely that
the sentence would have been more lenient absent the inadmissible evidence.
As a result, although there was error in submitting the unredacted
exhibits to the jury, it was not palpable. Wahl’s sentencing was fundamentally
fair. Wahl’s other crimes were not committed in Garrard County, and,
therefore, are less likely to “trigger memories of jurors who may [. . .] have prior
knowledge about the crimes.”50 Therefore, we hold now as we did in Wallace,
that “the erroneous admission of the improper penalty-phase evidence did not
result in manifest injustice and does not warrant reversal.”51
III. CONCLUSION
For the reasons set forth above, the judgment of conviction and sentence
of the Garrard Circuit Court are affirmed.
50 Mullikan, 341 S.W.3d at 109.
51 Wallace, 478 S.W.3d 291 at 302.
31
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen K. Schmidt
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Mark D. Barry
Assistant Attorney General
32