Funk v. Commonwealth ( 1992 )

LEIBSON, Justice.

On May 1,1989, the body of a seven year old girl, Jennifer lies, was found in an abandoned, uninhabited house located at 1417 Chesapeake in Covington, Kentucky. The building was condemned by the city and in a badly deteriorated condition.

The child had disappeared on April 21, 1989, and had been the subject of widespread newspaper and television coverage. The owner of the premises where the body was discovered testified he visited the premises to check for the missing child three days before the discovery occurred, and he neither found the body nor detected the smell that would be expected had a body been there for any substantial length of time. The only access to the premises was through a window which was too high to reach except by climbing up on a cinder block.

When the body was found it was extensively decomposed and partially skeleton-ized. It was also infested with maggots and larvae, and the flesh of the child’s thigh had been torn away in a manner which, according to the Commonwealth’s forensic anthropologist, was consistent with dogs having attacked the victim and dragged her partially decomposed body to her final resting place. Traces of body substances left on the floor confirmed this.

On April 25, 1989, during the period of the child’s disappearance, appellant, Michael Funk, had been arrested in nearby Norwood, Ohio, charged with the offense of gross sexual imposition for having digitally assaulted a nineteen month old child whom he was babysitting. Various persons who were appellant’s cell mates in the Ohio Jail testified at his trial on the present charge as to statements Funk made incriminating himself in the assault and murder of Jennifer lies.

Funk was indicted and tried in Kenton Circuit Court for capital murder and first-degree burglary. He was convicted of first-degree burglary and involuntary (second-degree) manslaughter. The jury could not unanimously agree upon what sentences to impose. The court then imposed the maximum sentence of 20 years for first-degree burglary and 10 years for second-degree manslaughter, to be run consecutively. This appeal followed, raising six issues:

1)Error in admitting into evidence photographs of the decomposed, maggot infested, canine damaged body of the victim.

2) Error associated with admitting evidence of the Norwood, Ohio offense: first, in permitting any evidence that this offense had occurred, and then in permitting extensive testimony regarding this prior offense from a police officer, a physician, and the mother of the little girl that had been victimized.

3) Failing to declare a mistrial because the prosecution had withheld exculpatory evidence which was material to the defense.

4) Failing to dismiss the Burglary I charge because the premises where the body was found did not meet the statutory definition of an inhabited building.

5) Error in the jury instructions regarding reasonable doubt.

6) Cumulative error.

For reasons that will be stated we reverse on grounds one, two, three and six, and remand subject for a retrial on the charge of Burglary I and Manslaughter II.

I. THE PHOTOGRAPHS

Six different photographs were admitted over objection. They included closeups of various rotting and decomposed portions of the victim’s head, neck and thigh; massive maggot infestation; the area where the flesh had been torn away from the thigh by dogs; and the torso with the child’s garment pushed up toward her waist and legs sprawled in a position suggestive of sexual assault. Other photographs and the uncontradicted testimony established that the child’s body had been dragged across the floor and savaged by dogs, so the photographs depicted neither the cause of death, nor the condition or location of the body at the time of death.

The Commonwealth argues the photographs were properly admitted to show the condition of the room and because the Commonwealth’s experts had referred to the photographs in testifying. The most offensive pictures were not offered as evidence while the Commonwealth’s experts were testifying, but at a later time after a pathologist testifying for the defense challenged some of the conclusions from the Commonwealth’s pathologist. Nothing was apparent in the pictures which could have possibly assisted the jury in deciding this disputed testimony. The pictures were repulsive and extremely offensive by any standard, even considering the extent to which the public has been desensitized by modern day television.

The Commonwealth’s experts testified to their findings and opinions from their firsthand examination of the body, not from what they discovered on the pictures. Even if we were to accept that the reason for introducing the pictures was to assist the jury in understanding the expert testimony, then the appropriate time to introduce the pictures would have been contemporaneous with their use after a proper foundation had been laid, by asking the witnesses if and when these pictures would be of assistance in understanding their testimony, at the time when the experts were pointing out what the pictures showed.

The general rule is that a photograph, otherwise admissible, does not become inadmissible simply because it is gruesome and the crime is heinous. Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980). In Salisbury v. Commonwealth, Ky., 417 S.W.2d 244, 246 (1967), we explain:

“Were the rule otherwise, the state would be precluded from proving the commission of a crime that is by nature heinous and repulsive.... Where the photographs revealed nothing more than the scene of the crime and the persons of the victims, they were not incompetent [citations omitted].”

The photographs here exceeded the bounds of this explanation. The problem here is not that what the pictures showed was relevant, but what they showed that was irrelevant, offensive and highly prejudicial. They showed mutilation, decomposition and decay not directly related to the crime.

For instance, it is true that the Commonwealth’s pathologist testified about various aspects of the condition of the child’s clothes as suggestive of sexual assault, and the pictures in part supported his testimony. But the Commonwealth concedes “from the photographs one could see trails or pools of body fluids indicating that the cadaver had been moved several times by dogs.” Thus the condition of disarray of the garments, while visually suggestive of a sexual assault, are of necessity unrelated to that cause.

Similarly, while the expert witness testified that larvae infestation in the genital area was consistent with trauma caused by digital penetration, and while this was a contested issue because of testimony from appellant’s expert, looking at the pictures does not assist in resolving the conflict. It only generates shock and revulsion in the viewer.

This is a case, such as Holland v. Commonwealth, Ky., 703 S.W.2d 876 (1986) and Clark v. Commonwealth, Ky., 833 S.W.2d 793 (1992), where much of what is shown on the photographs was not directly relevant to the issues because the body had been materially altered by animal mutilation, decomposition and other extraneous causes unrelated to the commission of the crime, conditions that “tend to arouse passion and appall the viewer.” Clark, draft op. p. 3. As we stated in Clark:

“Imprinting a lasting inflammatory image in the minds of the jurors far outweighs any relevant value the [photographs] may have.”

And as we stated in Holland:

“[T]he presentation of photographs depicting the animal mutilation of the corpse goes far beyond demonstrating proof of a contested relevant fact.” 703 S.W.2d at 879.

This is not a case where proof of guilt other than the photographs was so overwhelming that we can rule out the possibility of any prejudice from their use. The principal proof of guilt consisted of the testimony of jailhouse informants as to incriminating statements the appellant allegedly made regarding this crime while in jail in Ohio on another offense and proof regarding that prior offense showing it was similar in nature. Unfortunately, because of the deteriorated condition of the body and the absence of physical evidence connecting the appellant to the crime, the cause of death and the circumstances surrounding the commission of this crime were difficult to establish. This is a case where the Commonwealth charged the defendant with intentional murder and sought the death penalty, and the jury convicted only of involuntary manslaughter, and even then it was unable to agree upon a sentence. It is, in a word, a close case, one lacking the overwhelming evidence of guilt essential to conclude that these photographs, which should not have been admitted, were not prejudicial error.

II. THE PRIOR OFFENSE

The appellant contends he was tried and convicted in this case by this jury based upon his prior gross sexual imposition offense in Ohio, to which he pled guilty. Extensive evidence regarding this prior offense was introduced through testimony from the arresting officer, which was mostly hearsay, from the examining physician in the prior crime, and from the mother of the victim of the prior crime.

The threshold question is whether any evidence of the prior offense was admissible.

“The ‘General Rule’ is ‘[ejvidence of the commission of crimes other than the one that is the subject of a charge is not admissible to prove that an accused is a person of criminal disposition.’ Lawson, The Kentucky Evidence Law Handbook, 2d ed., Sec. 2.20(A) (1984). Before admitting such evidence the burden is on the Commonwealth to establish a reason to apply some well-defined exception.” Drumm v. Commonwealth, Ky., 783 S.W.2d 380, 381 (1990).

The principle involved is thus stated in the newly enacted Kentucky Rules of Evidence, codifying our previous decisions on this subject:

“Rule 404(b) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.”

Here, subparagraph (2), covering prior acts “inextricably intertwined with other evidence essential to the case,” does not apply. The Commonwealth has argued that evidence of the prior Ohio offense should be treated as evidence “intertwined,” but the key to understanding this exception is the word “inextricably.” The exception relates only to evidence that must come in because it “is so interwoven with evidence of the crime charged that its introduction is unavoidable.” Lawson, The Kentucky Evidence Law Handbook, 2d Ed., Sec. 2.20, p. 37 (1984). See examples cited therein. Patently this is not a case where it would be necessary to suppress facts and circumstances relevant to the commission of the offense charged in order to exclude evidence of the prior offense.

The question then becomes whether evidence of the prior offense was of such a nature as to be relevant under one of the exceptions stated in KRE 404(b)(1), quoted above. Because common characteristics between the way the two crimes were committed and the short time interval between the two, one day apart, the prior crime was proof of “identity” of the appellant as the perpetrator of the second crime. “Common scheme,” as such, is not included in the list of exceptions in KRE 404(b)(1), stated above, but evidence of another crime, committed close in time, with a common scheme, is probative to identify the perpetrator of the offense charged. Vince Walsh, one of the jail inmate witnesses who testified against the appellant, stated the appellant told him he would never be indicted for the Kentucky crime because he had just “fingered” the victim like he did the small girl in Ohio. The Commonwealth’s pathologist testified he deduced from his examination that the victim’s vagina had been damaged consistent with having been penetrated in this manner. There was testimony about “Bugler” cigarette papers found at the scene of the Kentucky crime, and similar paper observed at the appellant’s residence where the Ohio sexual assault occurred. Thus we conclude that evidence of the prior crime was admissible as bearing on an issue in controversy here, viz., the identity of the perpetrator.

The next issue is more difficult. Even where evidence of a prior crime has some relevancy, in admitting such evidence the trial judge must use some discretion in deciding whether and to what extent evidence of the prior offense may be utilized without prejudice:

“[W]hen dealing with evidence of a litigant’s prior misconduct, where such evidence is debatably or remotely relevant, the trial court must decide whether the probative value of the evidence outweighs its inflammatory nature. If it does, the evidence is admissible. Otherwise it is not.” Commonwealth v. Morrison, Ky., 661 S.W.2d 471, 473 (1983). [Emphasis original.]

Here the evidence of prior misconduct was presented in' such a way as to cause undue prejudice. Funk had admitted to the Norwood, Ohio police that he sexually assaulted a year and a half old little girl by inserting his finger into the child’s vagina, and he pled guilty to a criminal offense designated “gross sexual imposition” for having done so. This admission and the plea of guilty were ample to prove what was necessary on the identity issue and as a basis for understanding evidence from cell mates about his jailhouse statements. Nevertheless, the Commonwealth called a Cincinnati physician to testify in detail as to the nature of the injuries sustained in the prior criminal act and the child’s mother was questioned extensively about the prior occurrence. Much of this was irrelevant, such as the mother’s testimony that she talked to Funk with her daughter the night of the incident and he denied anything had happened. The investigating police officer from Ohio went beyond the nature of the offense as admitted by Funk and into Funk’s original denials and other irrelevant details, as well as investigative hearsay. A plain statement of the admissions the appellant made establishing the nature of the prior offense, introduced through the indictment and plea of guilty and the admissions the appellant made about the crime to the police officer, would have sufficed. The extensive use of overkill was unduly prejudicial and trial error.

III. WITHHOLDING EXCULPATORY EVIDENCE

Appellant contends the trial court should have granted a mistrial because the Commonwealth withheld exculpatory evidence in violation of the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as applied by our Court in Carter v. Commonwealth, Ky., 782 S.W.2d 597 (1990). This requires “the Commonwealth, upon request, to notify the defense in advance of trial of exculpatory evidence known to the prosecution.” Carter, supra at 601. A pretrial order required the Commonwealth to furnish all “police documents” so the court could review them “for discoverable, exculpatory evidence and if any is found, provide same to counsel for the Defendant.” When a Commonwealth’s detective testified, he had in his possession a report which, among other things, contradicted the Commonwealth’s pathologist’s in-court testimony theorizing that the child had been sexually molested and asphyxiated. The detective’s report stated that on the autopsy the pathologist reported that the cause of death was strangulation based on redness of the victim’s throat, and that upon examination of the body sexual molestation could not be determined. At trial the Commonwealth’s pathologist testified differently on both of these key points. The evidence in the detective’s report surfaced after it was too late to cross-examine the doctor about these contradictions. The detective’s report also revealed the presence of carpet hair particles found on the victim which would have placed her at a party which occurred at a point in time subsequent to the time the Commonwealth’s evidence placed the time of death.

Next, an FBI agent testified about a human hair fragment found on the victim’s sock which came from a black person, and which tended to exculpate this appellant who is white. The appellant maintains this evidence also should have been revealed in advance of trial.

The exculpatory evidence withheld on discovery was of an importance and magnitude to constitute reversible error. It qualifies neither as inadvertently overlooked or not of a prejudicial nature. The Commonwealth argues that the complaint against this failure to disclose was not adequately preserved, but the record reveals the appellant protested the failure to disclose in both instances, and asked for a mistrial when the evidence about the foreign hair surfaced.

IV. CRIMINAL LIABILITY FOR FIRST-DEGREE BURGLARY

The appellant was charged and convicted of first-degree burglary pursuant to KRS 511.020(l)(b), which provides in pertinent part:

“(1) A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:

(b) Causes physical injury to any person who is not a participant in the crime.”

The word “building” in KRS 511.020 is defined in KRS 511.010 as follows:

“(1) ‘Building,’ in addition to its ordinary meaning, means any structure, vehicle, watercraft or aircraft:

(a) Where any person lives; or

(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation. Each unit of a building consisting of two (2) or more units separately secured or occupied is a separate building.”

KRS 511.010 also separately defines “dwelling” (“a building which is usually occupied by a person lodging therein”) and “premises” (which “includes the term ‘building’ as defined herein and any real property”).

Appellant contends that the structure where the body was found, the abandoned, condemned and uninhabited building at 1417 Chesapeake in Covington, Ky., was not a “building” within the definition of a “building” as it applies to first-degree burglary because, conclusively, this was not a “building” where “any person lives” or where “people assemble for purposes of business, government, education, religion, entertainment or public transportation.” The resolution of this issue turns on whether the qualifying phrases in subparagraphs (a) and (b) of KRS 511.010(1) refer to any “building” as the appellant contends, or refer only to the words “any structure, vehicle, watercraft or aircraft” as the Commonwealth contends.

The Commonwealth argues the first-degree burglary statute applies to every structure that meets the definition of a building as used in common parlance, without regard to whether it is inhabited or inhabitable. In 1980, the Kentucky General Assembly amended the language of KRS 511.020 to provide that the crime of first-degree burglary may encompass acts committed within a “building” in contrast to the language of the former statute requiring that the crime be committed in a “dwelling.” The appellant contends the effect of the 1980 change is restrictive, and the Commonwealth contends the effect is expansive. The Commonwealth argues:

“In this case, the General Assembly clearly and unequivocally broadened the scope of KRS 511.020 to encompass ‘buildings’ and not just ‘dwellings’. The intention of the General Assembly is so apparent on the face of the statute that there is no room for construction.”

The Majority of this Court agrees.¹

V. INSTRUCTION ON REASONABLE DOUBT

The appellant contends the instruction on reasonable doubt at the conclusion of the guilt/innocent phase of this trial contains the same error we criticized in Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 141 (1988). In Grooms we stated:

“This instruction was erroneous in that it tells the jury that if it has a reasonable doubt as to appellant’s guilt it may nevertheless find him guilty. The instruction should have told the jury that if it had no reasonable doubt that he was guilty of some offense, but had a reasonable doubt as to the degree of the offense of which he is guilty, it should find him guilty of the lower degree.” Id.

In this case no objection was made to the instruction at the time it was given, nor is there any evidence to suggest that the jury was misled in this respect. The most that can be said against the language of the instruction as given in this case is that it raises the possibility of a misunderstanding. We would not reverse this case, or any case, for a Grooms error unless preserved for appellate review as required by RCr 9.22. However, in the event of a retrial, instructions including lesser degrees of the burglary offense should be qualified by a reasonable doubt instruction worded as directed in Grooms.

YI. CUMULATIVE ERROR

We have held that each of the errors discussed in Parts I, II and III of this Opinion are so prejudicial that a reversal and remand is required. We further agree with the appellant, that if each of these errors were not, in and of itself, sufficient to require a reversal, the cumulative effect of the prejudice from all three would certainly so require.

For the reasons stated above, the within case is reversed and remanded for further proceedings in conformity with this Opinion.

STEPHENS, C.J., and COMBS, LAMBERT and LEIBSON, JJ., concur. LEIBSON, J., dissents in part, concurs in part by separate opinion, in which STEPHENS, C.J., and COMBS, J., join. SPAIN, J., dissents by separate opinion in which REYNOLDS and WINTERSHEIMER, JJ., join.

1 . The author of this Opinion disagrees, and has filed a separate Dissenting Opinion.