Tammy Roberts v. Commonwealth of Kentucky ( 2020 )

RENDERED: MARCH 26, 2020
TO BE PUBLISHED
2018-SC-000249-MR
TAMMY ROBERTS APPELLANT
ON APPEAL FROM GRAVES CIRCUIT COURT
V. HONORABLE TIMOTHY C. STARK, JUDGE
NO. 17-CR-00131
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE WRIGHT
REVERSING, VACATING, AND REMANDING
A Graves Circuit Court jury convicted Appellant, Tammy Marie Roberts,
of murder and recommended a twenty-year sentence. Roberts was sentenced
in accordance with the jury’s recommendation, and now appeals to this Court
as a matter of right. Ky. Const. §110(2)(b).
Roberts raises four claims of error in her appeal, alleging: (1) the trial
court erred in failing to grant a mistrial, (2) the trial court erred in refusing to
instruct on self-defense and imperfect self-defense, (3) the trial court erred in
ruling she did not qualify for the domestic violence exemption, and, (4) that she
should be granted a new trial because of cumulative errors. For the following
reasons, we reverse Roberts’s conviction, vacate her sentence, and remand to
the trial court for further proceedings consistent with this opinion.
I. BACKGROUND
James Pinion died on February 10, 2017, from a single stab wound to
the chest. Roberts, Pinion’s girlfriend, was charged with his murder. Pinion
and Roberts lived together and shared a two-bedroom trailer with David and
Amy Hogg, a married couple. All four roommates frequently used drugs.
The night Pinion died, the Hoggs overheard an argument between Pinion
and Roberts. The argument resulted from a trip to the Dollar General Store by
Roberts and Amy. The toxic and turbulent relationship between Pinion and
Roberts was such that Pinion required Roberts to acquire his permission before
leaving the trailer—and to show him her underwear both before leaving the
trailer and after returning home. The day in question, Roberts failed to obtain
his permission, leading to an argument when she got home.
At some point, Amy heard blows being exchanged. Then, Roberts exited
the bedroom and talked to Amy in the kitchen for a few moments. Roberts told
Amy that Pinion had her medication and would not give it back to her. Then,
shortly before the stabbing, David heard Roberts and Pinion arguing and went
into their bedroom. Roberts told David that Pinion had her money and would
not give it back. David told Pinion to return the money and Pinion threw three
twenty-dollar bills on the bed. Police would later find three blood-soaked
twenty-dollar bills in the shoes Roberts wore. Shortly after David left the room
with the two still arguing, he heard Roberts scream “help” and saw Pinion
slumping in the hallway bleeding. Pinion was declared dead at the hospital.
2
In multiple statements to police, Roberts claimed Pinion accidentally fell
on the knife when he got his foot tangled in a sheet. Roberts maintained there
was no domestic violence the night Pinion was stabbed even after multiple
attempts by police to get Roberts to admit to stabbing Pinion in self-defense.
This denial was made despite both Amy and David hearing an argument prior
to the stabbing, Amy reporting the sound of someone being hit, and fresh
bruises and apparent red slap marks on Roberts observed by police that night.
Prior to trial, the Commonwealth gave Kentucky Rules of Evidence (KRE)
404(c) notice that it intended to introduce one of Roberts’s prior bad acts: a
2003 first-degree assault conviction from Fulton County. Roberts filed a
motion in limine seeking to prevent introduction of this prior assault. The trial
court issued a written order stating the Commonwealth could use information
regarding the prior crime in its case-in-chief if it first laid the proper
foundation.
The morning of trial, Roberts sought clarification of the court’s earlier
ruling. In response, the Commonwealth indicated it would redact those
portions of Roberts’s various recorded statements to police in which officers
confronted her with the prior assault. However, when the recordings were
played in the presence of the jury during trial, numerous statements were
played concerning the prior assault.
Roberts did not testify. She tendered and argued for self-defense
language in the murder instruction as well as for imperfect self-defense
instructions for second-degree manslaughter and reckless homicide. The trial
3
court overruled the tendered instructions, finding no evidence in the record to
support them. The jury convicted Roberts of wanton murder and
recommended a twenty-year sentence.
After the jury convicted Roberts, she moved the trial court to apply the
domestic violence victims’ exemption to change her parole eligibility from 85%
to 20%. The trial court overruled the motion finding there was no evidence
connecting the crime with an act of domestic violence.
II. ANALYSIS
A. Mistrial
During trial, the Commonwealth played recordings of police interviews
with Roberts. Multiple times in playing these recordings, the Commonwealth
failed to follow the trial court’s order to remove references to a prior assault
Roberts committed fourteen years prior to Pinion’s death. Roberts made three
mistrial motions during trial after the Commonwealth played the inadequately
redacted recordings.
1. KRE 404(b)
As a preliminary matter to determining whether the trial court abused its
discretion in failing to grant a mistrial, we examine whether the trial court
erred in ruling to allow the admission of KRE 404(b) evidence regarding the
fourteen-year-old Pulton County assault.
While KRE 404(a) states the general rule that “[ejvidence of a person’s
character or a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion,” the rule goes on to
4
enumerate exceptions when evidence of one’s character may be used.
Specifically, KRE 404(b) reads, in pertinent part:
[e]vidence 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 ....
In examining whether the prior assault fit within the KRE 404(b)
exception, the trial court examined the similarities in the two crimes. The trial
court reviewed tendered documents from the 2003 assault in conducting its
review. In 2003, Roberts and her then-boyfriend, Louis Estrada, got into a
physical altercation. Roberts alleged Estrada had held her by her head and
punched her. According to Roberts, she stabbed him after he kept “getting in
her face.” Estrada countered that Roberts grabbed the knife while the two were
arguing. He said she lunged at him and stabbed him in the back as he was
walking away. Roberts ultimately pleaded guilty to first-degree assault in that
case after initially claiming it had been an accident.
The trial court emphasized the similarities in the cases, noting that in
both situations: Roberts’s victim was her then-boyfriend, Roberts and her
victim had been involved in an argument, Roberts said she had been hit,
Roberts stabbed the victim, and Roberts claimed an implausible story. After
explaining its reasoning, the trial court found that admission of the prior
assault showed absence of accident, motive, and intent pursuant to the
exceptions contained in 404(b)(1) allowing the admission of certain evidence of
5
other crimes. Therefore, the trial court found that the Commonwealth could
use evidence of the prior assault in its case-in-chief so long as it laid a proper
foundation. Notably, the trial court instructed the Commonwealth it could not
rely on hearsay to establish the prior conviction and it was disinclined to allow
a certified copy of the prior conviction to come into evidence. The
Commonwealth responded that it would have an officer from Fulton County
present to testify regarding Roberts’s prior assault.
On appeal, “[w]e will not disturb a trial court’s decision to admit evidence
absent an abuse of discretion.” Matthews v. Commonwealth, 163 S.W.3d 11,
19 (Ky. 2005) citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996).
“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). We hold that the
trial court abused its discretion by denying Roberts’s motion in limine and
ruling to allow the Commonwealth to introduce evidence concerning the 2003
assault.
While the trial court was correct that the facts surrounding Roberts’s
former stabbing of a boyfriend were somewhat similar to those in her stabbing
of Pinion, it erred in determining those similarities made the evidence
admissible. We addressed this issue in Driver v. Commonwealth, 361 S.W.3d
877 (Ky. 2012). In Driver’s trial for charges arising from the assault of his
current-wife, the Commonwealth sought to introduce evidence that he had
assaulted his former wife twelve years earlier. Id. at 885. In that case, we
6
noted that “[b] ecause 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, as
a general rule ‘specific threats directed against third parties are
inadmissible.” Id. at 885-86 (quoting Sherroan v. Commonwealth, 142 S.W.3d
7, 18 (Ky. 2004)). We recognized in Driver that “[a]n 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.
There is no assertion here that Roberts’s stabbing of Estrada fourteen years
earlier was part of the same transaction as her stabbing of Pinion.
In Driver, this Court ultimately relied on Barnes v. Commonwealth, 794
S.W.2d 165 (Ky. 1990), in holding that the evidence of assault of a third party
twelve years earlier was inadmissible. In Barnes, this Court held, “[a]cts of
physical violence, remote in time, prove little with regard to intent, motive, plan
or scheme; have little relevance other than establishment of a general
disposition to commit such acts; and the prejudice far outweighs any probative
value in such evidence.” Id. at 169. Just as in Driver, the trial court here erred
in ruling that the Commonwealth could present evidence of a similar more-
than-decade-old crime against a third party. Such evidence is not properly
admissible under KRE 404(b) as it is too remote in time.
For the above reasons, the trial court abused its discretion in ruling to
allow the KRE 404(b) evidence of Roberts’s past crime the Commonwealth
sought to introduce. However, its error in this ruling did not, in and of itself,
7
prejudice Roberts. The trial court had ruled that the Commonwealth could not
present this evidence without first laying a proper foundation. The
Commonwealth did not do so. Rather, the Commonwealth, against the trial
court’s order, improperly introduced the evidence (which should have been
ruled inadmissible from the start) by playing a recording of one of Roberts’s
police interviews which included numerous references to the prior crime. As
there was no proper foundation laid for the evidence, the jury never heard
things such as how long ago the previous stabbing had occurred. In the next
subsection, we shift our focus to whether the trial court erred in denying
Roberts’s numerous motions for mistrial based upon the playing of those
recordings.
2. Inadmissible Evidence of Prior Crime Presented to the Jury
Roberts claims the trial court abused its discretion when it denied her
mistrial motions after the Commonwealth played references to her prior Fulton
County assault in its case-in-chief. The trial court, as discussed above, denied
Roberts’s motion in limine seeking to exclude references to this prior assault
evidence, and, instead, required the Commonwealth to lay a proper foundation
prior to the admission of evidence. We have already determined that this
ruling by the trial court was erroneous. We are now tasked with determining
whether the admission of this evidence required the trial court to grant
Roberts’s mistrial motions.
During trial, the Commonwealth never laid a foundation for admission of
evidence of Roberts’s prior crime. Therefore, the Commonwealth did not follow
8
the trial court’s order (though it was erroneous on other grounds as we held
above). Rather, the Commonwealth repeatedly put the improper evidence
before the jury through references contained in a police interview with Roberts.
In fact, shortly after the Commonwealth’s case began, the court and parties
faced problems with the video recordings running afoul of the trial court’s
pretrial order requiring foundation prior to the admission of evidence regarding
the 2003 assault. Specifically, when the Commonwealth played video of
Roberts’s police interviews, an officer brought up her prior assault conviction,
saying: “[n]ow, we know that you have an assault first conviction on your
record. We looked it up. We know you have already been down this road to
some degree. You’ve assaulted somebody with a dangerous instrument, a
deadly weapon. We know that you did it. . . .” At that point, the trial judge
told the Commonwealth to stop the video and defense counsel moved for a
mistrial. The trial court denied that motion and admonished the jury to ignore
the mention of past events as, “at [that] time” it had no relevance.1
As we noted in Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.
2003), “[a] jury is presumed to follow an admonition to disregard evidence and
the admonition thus cures any error.” Therefore, even though the evidence
should not have been admitted, the admonition cured this particular error.
1 We note that all the references to the 2003 assault in this case came from the
Commonwealth playing video statements. Recorded statements are significantly
different from live witnesses. Recorded statements are entirely within the control of
the offering party. They are, for example, vastly different from a lay witness who, in an
isolated event, improperly answers a question with an unresponsive and prejudicial
answer.
9
Following the admonition, trial broke for the day. Even after the trial
court stopped the playing of the interview—allowing the Commonwealth
overnight to redact the video to remove the references for which it had laid no
foundation—the Commonwealth failed to do so and played several more
references to the 2003 assault the next day. When trial resumed, the
Commonwealth began its presentation of evidence by restarting the video from
the beginning that the trial judge had ordered stopped the evening before.
When the video reached the portion of the interview discussing the prior
assault, the Commonwealth simply muted the sound and let the tape continue
playing—resuming the sound once the offending portion ended. The trial court
advised the jury that the muted sections were due to technical difficulties in
the recording transfers. However, the jury had heard the same section the day
before with the audio regarding Roberts’s prior conviction.
Shortly after the Commonwealth resumed playing the video following the
admonition, the jury heard officers speaking to Roberts several more times
about the Fulton County assault. In one of those exchanges, the officer said,
And you’re the knife person. You’re the one who’s . . . stuck people
with knives before. You’ve already done that—been convicted of it.
. . . Right shoulder blade area, same area. You stabbed the man
the same way, you got it down pat. You know what to do. Your
weapon of choice. Steak knife. Same thing. You did it once with a
steak knife. Now you have done it twice.
Minutes later, the jury heard the officer in the interview say, the Hoggs “ran off
and left you. Every one of them ran off and left you with a dying man. They
didn’t want no part of this because they knew you done stabbed somebody
before” (Emphasis added.) And then, within three minutes of hearing that
10
statement, the jury heard the officer in the recording say, “It’s the exact same
thing you did the last time. You stuck somebody with a knife. You changed
your story.”
These statements about the prior assault came in within minutes of one
another and defense counsel failed to make contemporaneous objections after
each of these statements came in. However, counsel did renew his motion for a
mistrial after the last of these references. The trial judge denied the motion,
indicating that he had missed the improper references—and that if he had
missed them, the jury likely had as well.
The trial court’s response was wholly inadequate. Once the issue was
raised, the trial court should have taken the time necessary to review that
portion of the video being challenged to make a determination as to whether
improper evidence had been presented to the jury. The trial court could have
then taken appropriate action based on that review. Instead, the trial court
interjected his belief that since he missed the reference, so must the jury.
Nothing in the record supports this belief. The trial court failed to review the
improperly admitted evidence so that it could make a ruling based on its
admission.
The combination of the Commonwealth introducing multiple improper
references to the prior assault, the lack of defense counsel raising
contemporaneous objections, and the trial court’s failure to take proper
corrective action in response to the continued improper references to Roberts’s
prior crime—or to even review the record so that it could make an informed
11
ruling as to evidence it admitted it had not paid any attention—left Roberts in
an untenable situation, seriously imperiling her right to a fair trial. However,
the prejudicial damage was not finished, as even more impermissible
references continued in the remaining video statements played by the
Commonwealth.
Following Roberts’s second mistrial motion and a break, the
Commonwealth resumed playing the video. Soon thereafter, the officer on the
recording can be heard telling Roberts:
And here’s the thing, when it comes in at court that this has
already happened to you once—and it will, it will during your
sentencing phase is when it will come in—that you have already
done this before, you’ve already cut somebody, them people gonna
know all of this and we’re gonna parade you around up here in the
district courtroom, in front of all these people and we’re just gonna
tell them that you’re a person that keeps subjecting yourself to a
violent lifestyle, and abusive lifestyle that you keep getting beat up
and this is how you react to it. And we can prove that from past
events.
Finally, half an hour later in the interview the officer said, “Tammy, who has
been in trouble before and doesn’t want to be in trouble again.” (Emphasis
added.)
Again, defense counsel did not contemporaneously object to each of
these statements referencing the 2003 assault. However, counsel did renew
his motion for a mistrial at the end of the taped interview based upon these
references. The trial judge denied the motion, indicating the references were
vague. The trial court offered to give the jury another admonition. Defense
counsel indicated he would think about it, but never requested the trial court
to admonish the jury.
12
Approximately thirty minutes into deliberations, the jury sent out a
question, reading: “[t]he jury heard questioning in the 3rd interview about
another episode with a knife. Some conversations were deleted but some
weren’t. Can we use the ones that weren’t muted? We are curious.” Defense
counsel immediately renewed his motion for a mistrial. The trial judge denied
this fourth mistrial motion, brought the jury but, and told them: “[t]he short
answer is no. The long answer is you have to decide the evidence as it was
presented to you and you’re not entitled to any additional information.”
The jury’s question makes it clear that the jury was attempting to follow
the trial court’s earlier admonition—and also makes it clear that, unlike the
trial court’s belief, the jury had noticed the other references. This only further
emphasizes that the trial court should have replayed the objected to portions of
the video if it had not “noticed” them. Its ruling denying the motion and taking
no further action such as a second admonition only furthered the jury’s
confusion as to what evidence it should consider and what it should ignore.
The trial court gave its answer in open court, thus, it did not run afoul of
Kentucky Rules of Criminal Procedure 9.74, which reads, “[n]o information
requested by the jury or any juror after the jury has retired for deliberation
shall be given except in open court in the presence of the defendant. . . and
the entire jury, and in the presence of or after reasonable notice to counsel for
the parties.” Furthermore, the trial court did not violate “the general rule that
new evidence will not be admitted after the case has been submitted to the
jury.” Malone v. Commonwealth, 364 S.W.3d 121, 133 (Ky. 2012) (citing Stokes
13
v. Commonwealth, 275 S.W.3d 185 (Ky.2008) (recognizing an exception to the
rule)). However, the trial court’s answer is incomprehensible—and we caution
the bench about providing such answers. The trial judge giveth with one hand,
and with the other taketh away: first telling the jurors that they could not
consider the evidence of the prior stabbing; then, telling them to “decide the
evidence as it was presented.” The evidence as it was presented to the jury
contained numerous improper references to the prior stabbing—which the trial
court instructed the jury to consider in its deliberations (once those
deliberations were already underway).
In summary, the Commonwealth first brought evidence of Roberts’s prior
assault before the jury in violation of the trial court’s (albeit erroneous) order
requiring it lay a foundation before presenting such in its case-in-chief.
However, it provided an admonition which cured this error. Then, when the
Commonwealth played several other portions of the interview which referenced
the past assault, defense counsel objected. The trial court stated that it had
not noticed the references, and, since he had not, it was unlikely the jury had
either. Rather than reviewing the video to consider the basis of the objection—
which he admitted he had not noticed—he ruled with no consideration of the
facts, overruling the defense objection. Then, when several more references
came in later through the interview recording, the trial court overruled the
mistrial motion, claiming the references were vague. Finally, the obviously
(and understandably) confused jury asked the trial court whether it could use
the portions of the interview referencing Roberts’s prior assault which were not
14
muted in its deliberations. This made it clear that the jury had picked up on
those references—even if the trial judge had not. The judge then provided the
jury with a meaningless answer: first telling the jury to disregard the evidence,
and then instructing them to consider it. We must now determine if the facts
of this case rise to the high level of reaching a manifest necessity for the
granting of a mistrial.
3. Manifest Necessity
First, we recognize that “[i]t is well established that the decision to grant
a mistrial is within the trial court’s discretion, and such a ruling will not be
disturbed absent a showing of an abuse of that discretion.” Woodard v.
Commonwealth, 147 S.W.3d 63, 67 (2004). We have held “mistrial is an
extreme remedy and should be resorted to only when there is a fundamental
defect in the proceedings and there is a ‘manifest necessity for such an action.'"
Id at 68 (quoting Bray v. Commonwealth, 68 S.W.3d 375, 383 (2002)). Further,
“a finding of manifest necessity is a matter left to the sound discretion of the
trial court.” Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000).
Moreover, this Court is mindful that
[i]n reviewing a decision to grant a mistrial, the trial court must
have a measure of discretion. “The interest in orderly, impartial
procedure would be impaired if he were deterred from exercising
that power by a concern that at any time a reviewing court
disagreed with his assessment of the trial situation a retrial would
automatically be barred.”
Grimes v. McAnulty, 957 S.W.2d 223, 225 (Ky. 1997) (quoting Arizona v.
Washington, 434 U.S. 497, 513 (1978)). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
15
unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (2000) (citing Commonwealth v. English, 993
S.W. 2d 941, 945 (1999)).
With those standards in mind, we turn to the case at bar. The first
miscue arose near the end of the first day of trial. The trial court resolved the
problem with an admonition.
It is normally presumed that a jury will follow an instruction to
disregard inadmissible evidence that is inadvertently presented to
it, unless (1) there is an overwhelming probability that the jury will
be unable to follow the court’s admonition; and (2) a strong
likelihood that the effect of the inadmissible evidence would be
devastating to the defendant. Greer v. Miller, 483 U.S. 756, 766, n.
8, 107 S. Ct. 3102, 3109, n. 8, 97 L.Ed.2d 618 (1987).
Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky. 1993), overruled on
other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997). Here,
there was neither an “overwhelming probability the jury [was] unable to follow
the court’s admonition” nor “a strong likelihood the effect of the inadmissible
evidence” was devastating to Roberts after one brief mention.
As this Court has noted, we do not expect a jury to erase from their
minds what they have heard; and we do not expect testimony or evidence to be
“unheard.” Bartley v. Commonwealth, 400 S.W.3d 714, 736 (Ky. 2013).
However, we do expect that instructions from the trial court will make clear
what jurors are to disregard and what they are not allowed to consider.
However, when the jury sent out a question during deliberations about
how it was to treat the evidence it had seen and heard—but had been told to
disregard some parts but not others, the jury indicated confusion over what it
16
was supposed to do with the improper admissions. The trial court’s confusing
instruction in answer to that question failed to cure the problem. The
overwhelming probability the jury could not follow the instruction is
inescapable, as the trial court’s response was, itself, contradictoiy.
Defense counsel’s second motion for mistrial further highlights the
problems at trial. When the officer on the recording indicated that Roberts’s
weapon of choice was a steak knife, no immediate objection was raised.
Several minutes later (and after additional statements regarding the prior
assault came in), Roberts’s counsel made this second motion for mistrial. The
trial court remarked that he missed the reference and the jury had likely done
the same. This was an unacceptable response by the trial court, as noted
above. The trial court failed to review the evidence the jury had heard and
properly address the motion for a mistrial.
When defense counsel raised its final motion for mistrial, the trial court
denied it, finding that the mention of the prior bad act was “vague.” Though
the trial court offered another admonition, Roberts did not seek one. Given the
numerous references to Roberts’s inadmissible prior bad act, it was likely
defense counsel sought to minimize further attention to the subject.
When viewed collectively, the multiple references to details of the 2003
assault and of Roberts being in trouble before created a manifest necessity for
the trial court to grant her motion for mistrial, as she was denied a fair trial. It
is important to note that, contrary to the trial court’s ruling on the 404(b)
evidence, it could not have been properly admitted even had the
17
Commonwealth laid a foundation. The trial court abused its discretion in
failing to grant a mistrial.
We look for guidance to a recent opinion of this Court outlining the
myriad of issues involved in a mistrial motion and appellate review of that
decision. There, this Court stated:
A mistrial is reserved for unique circumstances in which the
prejudice is so great that a trial cannot continue fairly for both
parties. “[T]he power to grant a mistrial ought to be used sparingly
and only with the utmost caution, under urgent circumstances,
and for very plain and obvious causes.” Cardine v. Commonwealth,
283 S.W.3d 641, 647 (Ky. 2009) (quoting Commonwealth v. Scott,
12 S.W.3d 682, 685 (Ky. 2000) (citing Glover v. McMackin, 950 F.2d
1236, 1240 (6th Cir. 1991))).
Commonwealth v. Padgett, 563 S.W.3d 639, 646 (Ky. 2018).
In this case, the prejudice to Roberts by the introduction of inadmissible
evidence time and again was so great that she could not receive a fair trial. In
reaching this conclusion, we reaffirm this Court’s prior holdings that the trial
court should be granted considerable leeway in ruling on mistrial motions.
“However, our stance on review does not require this Court to blindly adhere to
a decision made in a trial court’s discretion when such a decision was
unsound.” Id. at 647.
Herein, the jury heard inadmissible evidence of Roberts’s prior assault
numerous times. The first time, the trial court stopped the playing of the
interview and admonished the jury. Had this been the sole reference to the
prior bad act, the admonition would have cured the error. However, the very
next day, the jury heard numerous references to Roberts stabbing another
boyfriend with a steak knife in the past. In one of her motions for a mistrial,
18
the trial court denied her motion without reviewing the recording, even though
it admitted it did not notice the references (and announced his belief that if he
did not notice the references, the jury likely did not either). Then, the court
compounded its error when the jury sought guidance as to what evidence it
could consider in its deliberations. After reviewing the trial record, replete with
references to Roberts’s prior assault, we hold Roberts was denied a fair trial.
Therefore, the trial court abused its discretion. These multiple errors, one
added to the next, created just the sort of manifest necessity our precedent
envisions for the extreme remedy of a mistrial.
For the above-stated reasons, we hold the trial court abused its
discretion in denying Roberts’s motion for mistrial. We address the remaining
issues insofar as they are likely to recur on remand.
B. Instructions for Self-Defense and Imperfect Self- Defense
It is well established in this Commonwealth that a trial court has a duty
to instruct based on the facts in evidence before it. We have stated the
applicable law on jury instructions many times and summarize it as follows:
In a criminal trial, the trial court is obligated to instruct the jury
on the “whole law of the case, and this rule requires instructions
applicable to every state of the case deducible or supported to any
extent by the testimony.” Taylor v. Commonwealth, 995 S.W.2d
355, 360 (Ky. 1999) (citing RCr 9.54(1); Kelly v. Commonwealth,
267 S.W.2d 536, 539 (Ky. 1954)). This obligation extends to lesser-
included offenses and affirmative defenses, but is dependent upon
there being sufficient evidence to warrant the giving of an
instruction. Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky. 1997).
“We review a trial court’s rulings regarding instructions for an
abuse of discretion.” Ratliff v. Commonwealth, 194 S.W.3d 258,
274 (Ky. 2006) (citing Johnson v. Commonwealth, 134 S.W.3d 563,
569-70 (Ky. 2004)).
19
Turner v. Commonwealth, 544 S.W.3d 610, 625 (Ky. 2018).
Because the evidence in the case on remand may well differ from that in
the previous trial (for example, Roberts may choose to testify on remand and
provide additional evidence necessitating an instruction), we will not examine
whether the trial court will be obligated to instruct the jury as to either self-
defense or imperfect self-defense.
C. Domestic Violence Exemption
After her conviction in the underlying trial, Roberts sought application of
the domestic violence exemption for parole eligibility pursuant to KRS 403.720.
The trial court held a hearing on the motion. Relying on testimony presented
at that hearing, testimony and evidence from the trial, and evidence from the
court’s pretrial handling of the motion to admit Roberts’s prior stabbing, the
trial court ruled as follows: “The Court does not find the required nexus
between the domestic abuse perpetrated by the victim upon the defendant, and
the murder of the victim.” Because this issue is likely to recur on remand
assuming Roberts is again convicted, we address it.
A trial court’s ruling on the applicability of the domestic violence
exemption must be made under a preponderance of the evidence standard set
out in KRS 403.740, and appellate review is conducted under a “clearly
erroneous” standard. Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996).
The trier of fact is permitted to believe the evidence of one litigant over another
and may consider all circumstances including the credibility of witnesses. Id.
at 278. As we set out in Anderson, the evidence must be such that the trier of
20
fact believes more likely than not the accused was a victim of domestic
violence. Id. at 278.
We begin with the relevant statutory language. The applicable portions
of KRS 403.740 are subsection (1) defining domestic violence and abuse and
subsection (5) defining an unmarried couple. The definition of domestic
violence and abuse includes physical injury and serious physical injury
between members of an unmarried couple. Subsection (5) defines an
unmarried couple to include people living together.
KRS 439.3401 defines and determines application of violent offender
parole eligibility to certain offenses and includes an exception in subsection (5)
for a person determined to have been a victim of domestic violence or abuse “in
regard to” offenses involving the death of a victim. If found to qualify for the
exemption, the accused shall not have the higher parole eligibility provisions
set out in the violent offender statute apply to their sentence. Roberts’s parole
eligibility for murder would change from 85% to 20%, if the exemption were
applicable.
We will examine the evidence presented concerning domestic violence
both at trial and at the post-trial hearing on the applicability of the domestic
violence exemption. While Roberts did not testify at trial, she did testify at the
hearing on the exemption. There, she stated that Pinion struck her with the
folding knife. The blow was hard enough to permanently damage her hearing
in one ear. At trial, the only evidence of Roberts being hit with the folding knife
came from one of Roberts’s statements to the police. In that statement after
21
saying she was hit with the folding knife, Roberts clarified when she was hit
with the knife—saying it had occurred earlier.
At trial, Amy and David Hogg testified that Roberts and Pinion lived
together for several months prior to his death. At one point during this time,
Roberts and Pinion separated. When they resumed living together, things
between them were problematic. According to David and Amy, after Roberts
and Pinion resumed living together, the couples no longer socialized with one
another. Roberts and Pinion stayed in their bedroom, even taking their meals
there.
Amy described bruises on Roberts and seeing her with a black eye.
Pinion also had bruises on his arms according to Amy. Roberts and Pinion
were daily drug users, and both were extremely jealous of one other. According
to Amy, whenever Roberts left the trailer, Pinion checked her panties before she
left and again when she returned. Roberts’s recorded statements to police
included her saying she was hit, slapped, and otherwise abused by Pinion.
The witness accounts about the night of the stabbing began with Amy
and Roberts’s trip to the Dollar Store. When they went, Roberts did not have
Pinion’s permission to go and problems began immediately. Amy testified she
had to loan Roberts money because Roberts said Pinion had her money. Pinion
sent Roberts a text message while they were at the store that read, “[y]ou best
come home now, girlfriend.” After returning from the Dollar Store, Amy said
she heard an argument in the bedroom and “licks being passed” but Amy did
not know who was being hit. After the argument and slapping sounds stopped,
22
Amy said Roberts came out of the bedroom and told her Pinion had her
medicine and would not give it back. Amy did not know what David was doing
when she spoke with Roberts and David did not testify that he witnessed this
conversation.
David testified that after the Dollar Store trip, he heard an argument but
no hitting. David went in the bedroom shared by Roberts and Pinion, and
Roberts said Pinion had her money and would not give it back. After David
told Pinion to return the money, Pinion threw three twenty-dollar bills on the
bed. David left the bedroom and minutes later he heard Roberts yell “help.”
David and Amy testified they saw Pinion in the hallway bleeding and slumping
to the floor. At the post-trial hearing, Roberts testified that she was hit
immediately before the stabbing and had to defend herself.
Amy Hogg’s and David Hogg’s trial testimony and Roberts’s recorded
statements to police did not explain what happened in the bedroom between
Pinion and Roberts in the critical moments before the stabbing.
At the post-trial hearing, in addition to Roberts, the trial court heard
from Roberts’s sister Misty Toomes, and her daughter Brittany Roberts. Misty
and Brittany described what they saw during the time Roberts and Pinion lived
together. They saw bruising on Roberts’s arms and thighs, as well as a black
eye, possibly on more than one occasion. Roberts described thirty episodes of
assault by Pinion during the relationship. Reviewing the evidence before the
trial court, the domestic relationship between Roberts and Pinion can be
23
described as toxic and physically abusive. The evidence clearly showed
domestic violence and abuse between an unmarried couple living together.
Roberts testified at the post-trial hearing that Pinion struck the side of
her head with a large folding knife that he kept in a holster on his belt.
According to Roberts, the blow burst her eardrum and the injury left her
unable to hear well out of that ear. The knife was found out of its holster next
to Pinion’s body in the hallway.
The police theory about why Pinion was stabbed changed when three
blood soaked twenty-dollar bills were retrieved from Roberts’s shoes in her
personal property at the jail. The bills were found in the soles of the shoes
Roberts was wearing the night of the stabbing. The police no longer theorized
the stabbing was in self-defense because of domestic violence but was a result
of a fight over money. The trial court found in its written order that the fight
and stabbing arose over money and were not a product of domestic violence.
However, based on the evidence, Pinion’s control of Roberts’s money was an
element of the domestic violence in and of itself. Based on a review of the
evidence the trial court had before it, findings that separated Pinion’s control of
Roberts’s money from the pattern of domestic violence were erroneous.
The trial court noted in its order that it did not find the required nexus
between the stabbing and domestic violence. As we made clear in Gaines v.
Commonwealth, 439 S.W.3d 160, 164 (Ky. 2014), there must be a sufficient
connection to comply with the “in regard to” language of KRS 439.3401(5).
With regard to the second prong of the test—whether domestic
violence or abuse endured by a defendant occurred “with regard to
24
the offenses” committed by that defendant—we have construed the
statutory text to mean that the domestic violence exemption of KRS
439.3401(5) applies only when the domestic violence or abuse was
“involved ” in the offense committed by the violent offender. See
Springer v. Commonwealth, 998 S.W.2d 439, 457 (Ky. 1999). In
Commonwealth v. Vincent, 70 S.W.3d 422 (Ky. 2002), we further
explained the evidence must establish “some connection or
relationship between the domestic violence suffered by the
defendant and the underlying offense committed by the
defendant.” Id. at 424.
Gaines, 439 S.W.3d at 165.
While there was ample testimony concerning a history of domestic
violence during the relationship between Roberts and Pinion, that is not
enough to qualify for the exemption. As we further said in Gaines, “a prior
history of domestic violence between a violent crime victim and the criminal
defendant who perpetrated the violent offense does not, in and of itself, make
the defendant eligible for the parole exemption of KRS 439.3401(5).” Id. at 165
(internal citations omitted). “Thus, the statute requires that there be a
relationship between the domestic violence or abuse and the underlying
offense. Proof of history of domestic violence between the defendant and the
victim is not, by itself, sufficient to trigger the statute’s parole exemption.”
Vincent, 70 S.W.3d at 424.
The evidence of domestic violence the night Pinion was stabbed was
abundant and compelling. The key indicators of domestic violence present that
night were control, threats of violence, and actual violence. A review of the
evidence from the night of the stabbing is fundamental.
We begin with Amy’s testimony that she and Roberts went to the Dollar
store where Amy had to loan Roberts money because Pinion had taken her
25
money. Roberts was required to obtain Pinion’s permission to leave the trailer
and, on this night, she did not have that permission. As a result, Roberts
received a text message that told her she better come home then—a message
clearly carrying a threat of consequences if she did not comply. Usually when
Roberts went anywhere, Pinion checked her panties before she left and when
she returned. That did not happen on this night because Roberts did not seek
permission to go to the store.
Once Roberts returned, Amy heard blows being swapped in the bedroom
Roberts and Pinion shared. At some point, Roberts spoke to Amy in the
kitchen and said Pinion had her medicine and would not give it back. David
said he heard an argument, went in the bedroom and told Pinion to return
Roberts’s money and he tossed it on the bed. Moments later, Pinion was
stabbed. The trial court found that the stabbing was related to the money, not
to domestic violence. However, this finding does not make sense. At the time
Roberts stabbed Pinion, he had already returned her money. As previously
discussed, Pinion taking Roberts’s money was, itself, an act of domestic
violence—it was a means through which he exacted control. If Pinion were
trying to take Roberts’s money from her again when she stabbed him, this
would have been a further act of domestic violence—and could have potentially
amounted to robbery. The trial court’s ruling that the dispute over money was
not domestic violence was erroneous. We address it as it may recur on
remand.
26
Roberts correctly points out that there is no requirement that the offense
and domestic violence occur simultaneously. As the Court of Appeals has said:
“We believe that the statutes require a lesser showing of connection than proof
that appellant was undergoing physical abuse at that time. The trial court
should look at the totality of the evidence to determine if some connection was
shown.” Holland v. Commonwealth, 192 S.W.3d 433, 439 (Ky. App. 2005).
Guidance in understanding domestic violence can be found on the Ky.gov
website, the official website of the Commonwealth of Kentucky. CHFS, the
Kentucky Cabinet for Health and Family Services posts numerous
informational resources there to assist victims of domestic violence. Included
in the resources is The Clark County Indiana Prosecutor’s Office page
“Domestic Violence,” which contains useful information about recognizing
domestic violence. The first paragraph makes clear that domestic violence
includes not only physical harm or sexual assault, but also “fear of physical
harm.” The site indicated: “The batterer uses acts of violence and a series of
behaviors, including intimidation, threats, psychological abuse, and isolation to
coerce and control the other person.” These acts subject the other person to
intense and repetitive degradation to gain power and control over that person.
The webpage lists numerous examples of abuse and we point to relevant
ones present in this case including the following: slapping; hitting; using
weapons; making her ask for money; taking her money; making or carrying out
threats to hurt her; controlling what she does, who she sees, and where she
27
goes; not allowing her to freely use the car; and checking up on where she’s
been or who she’s talked to.
The above list is reflected in the evidence surrounding the evening Pinion
died, beginning with Robert’s trip to the store without Pinion’s permission and
ending with his stabbing. The illustrative items on this list found in this case,
met the requirements in the exemption statute for a required connection
between the violent act and the domestic violence. The trial court in this case
did look at the totality of the circumstances including the history of domestic
violence in the relationship between Roberts and Pinion, Roberts’s prior history
of violence involving live-in boyfriends, rampant drug use by the trailer
inhabitants, Roberts’s and Pinion’s jealousy toward each other, Amy Hogg’s
and David Hogg’s testimony, and physical evidence from the crime scene.
Upon review of the record, we hold the trial court was clearly erroneous in its
finding that Roberts did not meet her burden that Roberts’s actions in stabbing
Pinion were “in regard to” domestic violence. As noted, Pinion taking Roberts’s
money was an act of domestic violence in the context of the extensive evidence
about the couple’s relationship.
Therefore, the trial court’s finding that the dispute being over money
somehow excluded it from also being an act of domestic violence was
erroneous. On remand, it should be mindful of the principles set forth above.
D. Cumulative Error
Having already found reversible error, we need not address Roberts’s
cumulative error claim.
28
in. CONCLUSION
For the foregoing reasons, we reverse Roberts’s conviction, vacate her
corresponding sentence, and remand for further proceedings consistent with
this opinion.
Minton, C.J.; Hughes, Keller, Lambert, and VanMeter, JJ., concur.
Nickell, J., concurs in result only.
COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Joseph A. Newberg II
Assistant Attorney General
29