James M. Spaulding v. Commonwealth of Kentucky ( 2020 )

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ACTION.
2018-SC-000615-MR
JAMES M. SPAULDING APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE OLU ALFREDO STEVENS, JUDGE
NO. 16-CR-000358
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
James M. Spaulding was convicted of wanton murder, four counts of
first-degree wanton endangerment, and first-degree fleeing or evading police.
Pursuant to the jury’s recommendation, the Jefferson Circuit Court sentenced
him to thirty-three years’ imprisonment. Spaulding now appeals as a matter of
right,1 raising three claims of error: (1) the trial court improperly instructed the
jury on wanton murder, (2) Spaulding was prejudiced by the Commonwealth’s
Moss violation2 and (3) the trial court improperly limited mitigating evidence of
details of Spaulding’s prior convictions during the sentencing phase of trial.
After review of the record and appEcable law, we affirm.
1 Ky. Const. § 110(2)(b).
2 Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997).
I. Factual and Procedural Background.
The night of February 2, 2016, Spaulding rode around Louisville with his
friend Antoine Major in Major’s F-150 truck. They stopped to get cigarettes
and beer and eventually ended up at Major’s mother’s home, where Spaulding
smoked spice,3 marijuana, did methamphetamine and drank alcohol.
Spaulding became paranoid and thought someone was out to kill him. The
next morning, Spaulding smoked more spice and marijuana and perhaps did
more meth; he could not recall. Later that evening, he bought more cigarettes
and spice, and he and Major rode around in Major’s truck into the early
morning hours of February 4th. Due to his drug hallucinations, Spaulding
became increasingly paranoid, thinking people were following them and out to
get him. Believing Major was wired by the FBI, Spaulding made Majors strip
and then threw his clothes out the window of the truck.
They stopped at a Denny’s Restaurant and Spaulding went inside and
asked for help and for someone to call the police. While inside Denny’s,
Spaulding picked up the phone and called 911 himself, reporting that he had
been robbed. Convinced people were out to get him, he left before police
arrived. Spaulding and Major then pulled into a Four Points by Sheraton Hotel
parking lot. They went inside the lobby of the hotel; Major was naked, and
Spaulding was screaming and yelling at the desk clerk to call the police.
Believing people were still out to get him, Spaulding took the elevator to the
3 Spice is a class of synthetic cannabinoids.
2
sixth floor of the hotel and ran down the hall, banging on doors and yelling for
help and for someone to call 911. He then fled down the stairs, leaving Major
inside the hotel.
Spaulding got into Major’s truck and drove to a nearby Stop-n-Go
Liquor/Convenience Store. It was about 2 a.m. at this point. A store
employee, Kahmal Zahden, was on his way out the door with his friend, as
Zahden’s shift had just ended. The other store employee, Denny Davis, was
inside. Spaulding rushed into the store, shoving Zahden and his friend back
inside, and pulled the door behind him, all the while waving his arms and
screaming for help, saying someone was trying to rob and kill him. When
Zahden picked up the phone to call 911, Spaulding jumped over the counter
and wrestled with him for the phone. When Zahden grabbed the store gun
which was kept under the counter, Spaulding fought with him for that too.
When the gun fell to the floor, Spaulding grabbed it and shot Davis, who fell to
the ground. Spaulding fired shots at Zahden, missed, then fatally shot Davis
3-4 more times before leaving the store on foot with the gun and continuing
down the street, screaming.
A nearby resident, Mark Adair, was out back of his house smoking a
cigarette when he heard someone screaming. Adair went into his house and
looked out the front window and saw a guy run up to his door and try to get in.
As Adair approached the door to keep the guy from entering, the guy shot the
lock off. The bullet stopped by a couch where Adair’s teenage son slept.
3
Adair’s 5-month-old daughter was in the next room, which was not too far from
where the bullet ended up. Adair said the shooter did not enter his home.
Spaulding ran to the house next door where Sean Allender resided with
his roommate. Allender heard screaming and pounding on the window of his
house and called the police. Allender’s bedroom window broke and the loaded
handgun went through it. Spaulding did not enter but rather ran back to
Major’s truck and drove off.
Detective Vito spotted Major’s truck as matching the description of the
one involved in the shooting at the convenience store and pulled behind it at a
red light, activating the sirens and lights. Spaulding ran the red light and a
police pursuit ensued down 1-65. As Spaulding approached the ramp to the
Waterson Expressway, he did a U-turn, hit a wall/rail of the expressway and
jumped out of the truck while it was still in gear. He stood up, put his hands
up and walked toward the officers yelling, “Just kill me, just kill me!” It took
multiple officers to subdue Spaulding and get him on an ambulance stretcher.
Spaulding bit one of the officers on the arm. In the ambulance and at the
hospital, Spaulding remained paranoid, shouting and yelling for help.
Eventually, Spaulding was discharged from the hospital to jail.
Spaulding was indicted on 13 counts, including murder, criminal
attempt to murder, first-degree robbery, first-degree burglary, criminal attempt
to commit burglary, four counts of wanton endangerment, tampering with
physical evidence, first-degree fleeing/evading police, third-degree assault, and
4
first-degree criminal mischief.4 Ultimately, the jury found Spaulding guilty of
wanton murder of Davis, four counts of first-degree wanton endangerment (one
count as to Zahden, and three counts as to Adair and his two children in the
path of the shot fired into the lock of Adair’s door), and first-degree
fleeing/evading police. The jury recommended a sentence of thirty years for
wanton murder and three years each on the remaining convictions, with the
three-year sentences to run concurrently with each other, and consecutively to
the thirty-year sentence, for a total sentence of thirty-three years. The trial
court imposed the recommended sentence and this appeal followed.
II. Analysis.
A. The Wanton Murder Jury Instruction Was Proper.
Spaulding argues the trial court abused its discretion by instructing the
jury on wanton murder, as that instruction was not supported by the evidence.
At trial, Spaulding objected to the wanton murder instruction on grounds that
he did not act wantonly because he was not “aware of and consciously
disregarded a substantial and unjustifiable risk that the result will occur.”
Spaulding also moved for a directed verdict on this charge. The trial court
overruled his objection and denied his directed verdict motion.
“When the question is whether a trial court erred by: (1) giving an
instruction that was not supported by the evidence; or (2) not giving an
4 The charges of criminal attempt to commit burglary and first-degree criminal
mischief were dismissed prior to trial. During trial, the charges of first-degree robbery
and first-degree burglary were dismissed.
5
instruction that was required by the evidence; the appropriate standard for
appellate review is whether the trial court abused its discretion.” Sargent v.
Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). An abuse of discretion occurs if the
trial court’s ruling is “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999).
The jury was instructed as follows on the wanton murder charge:5
You will find the Defendant, James Spaulding, guilty under this
Instruction if, and only if, you believe from the evidence beyond a
reasonable doubt, all of the following:
(A) That in Jefferson County, Kentucky, on or about February 4, 2016,
James Spaulding killed Denny Davis by shooting him with a
handgun; AND
(B) That in doing so, James Spaulding was wantonly engaging in
conduct which created a grave risk of death to another and thereby
caused the death of Denny Davis under circumstances manifesting
an extreme indifference to human life.
The following definition of “wantonly” was included in the jury instructions:
A person acts wantonly with respect to a result or circumstance
when he is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and degree
that disregard thereof constitutes a gross deviation from the
Standard of conduct that a reasonable person would observe in the
situation. A person who creates such a risk but is unaware thereof
solely by reason of voluntary intoxication also acts wantonly with
respect thereto.6
5 This instruction mirrored the definition of wanton murder set forth in KRS
(Kentucky Revised Statutes) 507.020(1)(b): “(1) A person is guilty of murder when: . . .
(b) Including, but not limited to, the operation of a motor vehicle under circumstances
manifesting extreme indifference to human life, he wantonly engages in conduct which
creates a grave risk of death to another person and thereby causes the death of
another person.”
6 This definition mimics that found in KRS 501.020(3).
6
Spaulding maintains that because of his state of mind, he was unable to
form the requisite mental state required of wanton murder. Spaulding further
asserts that because he did not seek violence when he entered the convenience
store, he did not meet the definition required for a finding of wantonness. In
support, Spaulding points out that he was not brandishing a gun or other
weapon when he entered the Stop-n-Go.
However, Spaulding overlooks the last sentence included in the statutory
definition of “wantonly,” which was included in the jury instructions: “A person
who creates such a risk but is unaware thereof solely by reason of voluntary
intoxication also acts wantonly with respect thereto.” KRS 501.020(3). Thus,
under the plain language of the statute, voluntary intoxication does not negate
the existence of an element of wanton murder. See also Nichols v.
Commonwealth, 142 S.W.3d 683, 689 (Ky. 2004) (holding that “voluntary
intoxication, which does negate an element of specific intent offenses, does not
negate any element of Wanton Murder, particularly the mens rea of
‘wantonness[]”’) (citing McGuire v. Commonwealth, 885 S.W.2d 931, 934 (Ky.
1994) (holding that “[voluntary intoxication does not negate culpability for a
crime requiring a culpable mental state of wantonness or recklessness, but it
does negate specific intent[]”)).
The “extreme nature” of a defendant’s intoxication can be “sufficient
evidence from which a jury could infer wantonness so extreme as to manifest
extreme indifference to human life.” Walden v. Commonwealth, 805 S.W.2d
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102, 105 (Ky. 1991), overruled on other grounds by Commonwealth v. Burge,
947 S.W.2d 805 (Ky. 1996). Such a determination is a question of fact for the
jury. Id. “If the jury determines that, under the given circumstances, a
defendant’s conduct rises to the level of aggravated wantonness, then the jury
could find ‘extreme indifference to human life’ as required by the statute.”
Ramsey v. Commonwealth, 157 S.W.3d 194, 197 (Ky. 2005) (citation omitted).
Here, evidence was presented that Spaulding’s paranoia and
hallucinations were fueled by his voluntary drug binge that took place over the
course of days, during which time he ingested a variety of drugs to become,
and remain, extremely intoxicated. Spaulding testified at trial that he had
smoked spice and methamphetamine together in the past, and knew the effects
it could have, but that they had never made him hallucinate or paranoid like
this. He also testified in detail about the events leading up to him fatally
shooting Davis, as well as the events that took place after. He recalled shooting
Davis, with both hands on the gun, and admitted that neither Zahden nor
Davis ever pointed a gun at him.
The video recording of what transpired in the convenience store was
played for the jury at trial, and both Zahden and his friend who was with him
that night testified. That evidence showed Spaulding forcing his way into the
store door, shoving Zahden and his friend inside, and pulling the door shut
behind him. Once in the store, Spaulding ran around like a maniac, demanded
that Zahden call 911, and then jumped over the counter and grabbed the
phone before Zahden even had time to call. When he took the phone away
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from Zahden, he glanced at it then tossed it over the counter. Mayhem
continued when Spaulding wrestled with Zahden for the gun. Spaulding shot
Davis, who was simply standing to the side the entire time. Spaulding then
shot at Zahden through the glass door. Both times he ran by Davis he casually
fired down at him. Spaulding shot Davis a total of 4-5 times before exiting the
store with the gun in hand.
The fact that Spaulding may not have been seeking to kill when he
entered the convenience store is not dispositive, as wanton murder does not
require premeditation. From the evidence presented at trial, a reasonable jury
could have concluded that Spaulding’s continuous ingestion of spice,
marijuana, methamphetamine and alcohol over the course of days, and his
decision to ride around Louisville high on drugs in Major’s truck, and enter the
Stop-n-Go in his condition, was behavior “so extreme as to manifest extreme
indifference to human life.” A reasonable jury could have also concluded that
Spaulding’s actions after entering the store created “a grave risk of death to
another person and thereby cause[d] the death of another person.” KRS
507.020(l)(b). Because the evidence supported an instruction on wanton
murder, the trial court did not abuse its discretion in so instructing the jury.
B. No Moss Violation Occurred.
Spaulding claims the Commonwealth’s question on cross-examination
asking him to characterize another witness’s testimony as lying was
impermissible and in violation of Moss v. Commonwealth, 949 S.W.2d 579 (Ky.
1997). Spaulding further maintains that the Commonwealth’s question
9
constituted prosecutorial misconduct and damaged his credibility as a witness
so severely as to warrant a new trial.
In Moss, this Court held that an attorney may not ask a witness to
characterize another witness’s testimony as lying. Id. at 583. In the case at
bar, a resident who lived in the apartment complex adjacent to the Stop-n-Go,
Craig Benefield, testified that on the night in question, he and his friend heard
tires screeching, and witnessed from the fourth story window Spaulding pull
into the convenience store parking lot, exit the F-150 truck and enter the
convenience store. Benefield testified that thereafter, he heard gunshots, saw
Spaulding leave the store, and watched Spaulding bang on the door of a nearby
house, then shoot through the door lock with a gun. Spaulding then went to
another house; Benefield testified that he saw him make a distinctive arm
movement, a punching motion, then broke the window. Benefield stated that
he did not know what went through the window. He then observed Spaulding
drive off in the F-150 truck.
The day after Benefield testified, Spaulding testified that after he shot the
lock off the door of one house, he knocked on the window of the next house,
and that’s when the gun slipped out of his hand and fell through the window.
On cross examination, he admitted that he had to have been banging hard on
the window for the gun to go through it. At that point, the prosecutor
confirmed with Spaulding that he had been in court the day before and had
heard Benefield recall seeing him reach his arm back and throw something
through the window. The prosecutor asked Spaulding if Benefield was lying.
10
Before Spaulding could answer, his attorney asked to approach the bench.
There, defense counsel said that case law was clear that the prosecutor could
not ask Spaulding to characterize another witness’s testimony as lying. The
prosecutor said that was fine, the judge did not rule, the attorneys immediately
returned to their seats and the prosecutor moved on to a new question.
Spaulding now claims the prosecutor’s question violated Moss, amounted
to prosecutorial misconduct, and the trial court failed to cure the misconduct
with an admonition to the jury. See Duncan v. Commonwealth, 322 S.W.3d 81,
87 (Ky. 2010) (holding that “prosecutorial misconduct can assume many forms,
including improper questioning .... If the misconduct is objected to, we will
reverse on that ground if proof of the defendant’s guilt was not such as to
render the misconduct harmless, and if the trial court failed to cure the
misconduct with a sufficient admonition to the jury[]”).
The Commonwealth argues that this claim of error was not preserved, as
Spaulding’s trial counsel requested no relief and was satisfied with the
prosecutor’s agreement not to pursue the question. “Failing to request an
admonition is generally regarded as trial strategy, and therefore waives the
issue on appeal.” Luna v. Commonwealth, 460 S.W.3d 851, 876 n.52 (Ky.
2015) (citations omitted). In Luna, the prosecutor asked a prior-bad-acts
question, defense counsel objected, the prosecutor withdrew the question, and
defense counsel did not request an admonition. As a result, this Court noted
that Luna’s preservation of the issue for appellate review was based on a pre-
trial objection, not the objection at trial. Id. at 876.
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Similarly, here, defense counsel was satisfied with the prosecutor moving
on to the next question, and requested no further relief from the trial court, in
the form of a formal ruling on the objection or an admonition to the jury.
Thus, Spaulding’s claimed error is unpreserved and reviewable for palpable
error only under RCr7 10.26, which provides:
A palpable error which affects the substantial rights of a party may
be considered ... by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate relief
may be granted upon a determination that manifest injustice has
resulted from the error.
“Palpable error relief is available under RCr 10.26 only upon a determination
that manifest injustice has resulted from the error. ‘Manifest injustice’ is ‘error
[that] so seriously affect[s] the fairness, integrity, or public reputation of the
proceeding as to be ‘shocking or jurisprudentially intolerable.5” Davidson v.
Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v.
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).
Spaulding has failed to show that the prosecutor’s single, isolated
question which was immediately objected to, and which Spaulding did not
answer, so seriously affected the fairness of his trial as to be “shocking or
jurisprudentially intolerable.” Spaulding further claims the Commonwealth
compounded the error by stating the following during closing argument:
You have to judge the credibility of each and every witness. Every
individual who takes this stand, you get to decide if you want to
believe them. But you all heard from Craig Benefield. This is
someone who is unbiased. He gains nothing from coming in here
to testify. He witnessed the defendant’s entire actions. He told you
7 Kentucky Rules of Criminal Procedure.
12
he saw the defendant reach back and his arm go like this
[throwing motion].
The prosecutor’s statement during closing argument that Benefield was
an unbiased witness, and the demonstration of a throwing motion, was not
objected to by defense counsel. Moreover, “all of the comments must be viewed
through the lens of the wide latitude counsel is afforded in closing arguments.
They are, after all, just that—arguments. ‘A prosecutor may comment on
tactics, may comment on evidence, and may comment as to the falsity of the
defense position.”’ Dickerson v. Commonwealth, 485 S.W.3d 310, 332 (Ky.
2016) (quoting Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987)).
The prosecutor’s statement contrasting the credibility of the witnesses was
within bounds of the wide latitude afforded to counsel during closing
arguments and certainly did not rise to the level of palpable error. Moreover,
the jury was not convinced that Spaulding tried to dispose of the handgun to
make it unavailable, as it found him not guilty of tampering with physical
evidence and not guilty of first-degree wanton endangerment in relation to
throwing the gun through the window of Allender’s home. So even if any error
had occurred, it was harmless.
C. Spaulding’s Claim of Error Regarding Mitigating Evidence is
Unreviewable.
Spaulding contends the trial court abused its discretion by not allowing
him to present details of his prior convictions during the sentencing phase of
trial, in violation of Kentucky’s Truth-in-Sentencing statute, KRS 542.055.
Specifically, he argues that he should have been permitted to elicit details of
13
his prior convictions during cross examination of Shana Farmer, the paralegal
who testified about the records of his prior convictions. He requested to do so
during the sentencing phase and in his Motion for New Trial or Judgment
Notwithstanding the Verdict.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).
Similarly, we review a trial court’s denial of a motion for a new trial under an
abuse of discretion standard. See Anderson v. Commonwealth, 63 S.W.3d 135,
141 (Ky. 2001). An abuse of discretion occurs if the trial court’s ruling is
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 945.
KRS 532.055, known as the “Truth-in-Sentencing” statute, “is geared
toward providing the jury with information relevant to arriving at an
appropriate sentence for the particular offender.” Beard v. Commonwealth, 581
S.W.3d 537, 547 (Ky. 2019) (citation omitted). KRS 532.055(2)(a) allows the
Commonwealth to offer evidence relevant to sentencing including the nature of
prior offenses for which a person was convicted.8 In this regard, “evidence of
8 KRS 532.055(2) (a) provides, “Evidence may be offered by the Commonwealth
relevant to sentencing including: 1) Minimum parole eligibility, prior convictions of the
defendant, both felony and misdemeanor; 2) The nature of prior offenses for which he
was convicted; 3) The date of the commission, date of sentencing, and date of release
from confinement or supervision from all prior offenses; 4) The maximum expiration of
sentence as determined by the division of probation and parole for all such current
and prior offenses; 5) The defendant’s status if on probation, parole, postincarceration
supervision, conditional discharge, or any other form of legal release[.]”
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prior convictions is limited to conveying to the jury the elements of the crimes
previously committed.” Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky.
2011). KRS 532.055(2)(b) provides that “[t]he defendant may introduce
evidence in mitigation or in support of leniency” during the sentencing phase.
See also Beard, 581 S.W.3d at 548 (holding that the defendant “may introduce
relevant penalty-phase mitigation testimony concerning his motive for
committing the crimes[]”).
Here, the Commonwealth introduced evidence of Spaulding’s prior
convictions through Farmer, who testified about Spaulding’s 2005 felony
conviction in Indiana for the 2004 offense of dealing in cocaine; his 2008 felony
conviction and sentence in Kentucky for the 2003 offenses of first-degree
possession of a controlled substance (cocaine) and giving an officer a false
name and address; and half a dozen separate Jefferson County misdemeanor
convictions. On cross examination, defense counsel asked Farmer if she was
aware that the trafficking conviction involved approximately 2.7 grams of
cocaine. She stated she did not know.
The Commonwealth objected; at the bench, it argued that under Truth-
in-Sentencing, the parties could not go into details about the prior convictions.
Defense counsel responded that the Commonwealth could not, but it could.
Neither party provided any legal authority in support of its position. The trial
court sustained the Commonwealth’s objection. Defense counsel did not
proffer the excluded evidence by way of avowal.
15
Defense counsel then clarified with Farmer that Spaulding’s other felony
conviction was for possession of cocaine and the other convictions were
misdemeanors. Defense counsel further emphasized that the cocaine offenses
occurred in 2003 and 2004 - fourteen to fifteen years ago. Spaulding argued in
his Motion for New Trial or Judgment Notwithstanding the Verdict that at a
minimum, he should have been permitted to have Farmer read the indictments
for both felony offenses, to inform the jury that the amounts of cocaine were
small. Specifically, Spaulding was concerned that the trafficking in cocaine
conviction and sentence was highly prejudicial, as it implied a large amount of
cocaine was involved. In his motion, Spaulding provided no legal authority in
support of his position and did not tender evidence of the prior indictments or
details he wished to proffer. The trial court denied his motion.
Before reaching the merits of Spaulding’s argument, we must address
the Commonwealth’s assertion that this claim of error is unreviewable since
Spaulding failed to include the indictments and plea sheets setting forth details
of his prior offenses. Without a complete record, the Commonwealth argues
that this Court cannot assume that the plea sheets or any information about
his prior felony offenses contained relevant mitigating evidence.
“It is incumbent upon Appellant to present the Court with a complete
record for review.” Chesnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008)
(citations omitted). When the record is incomplete, this Court must assume
that the omitted record supports the trial court. Id.16
The record does not contain the indictments or plea sheets of Spaulding’s
prior felony convictions. At no point during his cross examination of Farmer or
in his motion for post-trial relief did defense counsel seek to introduce copies of
these documents into the record, either by avowal or otherwise. Spaulding’s
criminal history conviction report to which Farmer testified did not contain
details of the convictions other than the date, offense, conviction and sentence.
As such, Farmer was unable to verify whether Spaulding’s trafficking in
cocaine conviction involved 2.7 grams, or another amount.
Even assuming the evidence Spaulding sought to admit falls within the
purview of the Truth-in-Sentencing statute, based on the incomplete record, we
are unable to confirm the evidence contains any basis for mitigation or
leniency. While Spaulding is correct that in Wood v. Commonwealth, the Court
of Appeals held that the defendant may present mitigating evidence relating to
details of a prior serious offense, in that case the attendant “circumstances [of
the prior offense] were in the record; the testifying witness used the plea
sheets, which included the details of the crime.” 432 S.W.3d 726, 729 (Ky.
App. 2014). In Wood, defense counsel introduced the plea sheets by avowal
following the trial court’s ruling excluding presentation of that evidence.
Therefore, the appellate court had an evidentiary basis on which to determine
that the trial court’s exclusion of that evidence was erroneous. By contrast,
since those details are not in the record here, we are compelled to hold that the
silent record supports the trial court’s decision not to allow Spaulding to
present details of his prior convictions.
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III. Conclusion.
For the foregoing reasons, we affirm Spaulding’s convictions and
sentence.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
DEPARTMENT OF PUBLIC ADVOCACY
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney General
Jason Bradley Moore
Assistant Attorney General
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