Cordero M. Wilbanks v. Commonwealth of Kentucky

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: JANUARY 20, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0041-MR
CORDERO M. WILBANKS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE BARRY WILLETT, JUDGE
NOS. 16-CR-003101 & 17-CR-000996-005
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Cordero Wilbanks appeals as a matter of right1 from the Jefferson Circuit
Court’s judgment after entering a conditional guilty plea to manslaughter
pursuant to North Carolina v. Alford2 reserving his right to appeal the ruling
denying his invocation of the spousal privilege.3 In this prosecution for
murder, the plea agreement included combining two cases for a total sentence
of twenty-five years. Only the denial of spousal privilege is relevant to this
appeal. After review, we affirm the decision of the trial court.
1 Ky. Const. §110(2)(b).
2 400 U.S. 25 (1970).
3 Kentucky Rules of Evidence (KRE) 504.
Cordero and Kim Wilbanks are husband and wife. On October 20, 2016,
about one month before the shooting death of Curtis Benberry, Cordero
Wilbanks pled guilty in Jefferson District Court to Assault in the Fourth Degree
– Domestic Violence.4 He was sentenced to 275 days conditionally discharged
for two years with a condition he was to have no contact with his wife, Kim,
who was the victim in that case.
Later, on November 18, 2018, Benberry was shot and killed after
emerging from his vehicle in the parking lot in front of his home. Police
responded to a 911 call which reported a shooting where a distraught woman
wearing pink clothing ran from the parking lot immediately after the shooting.
Kim matched the description. She was picked up a few blocks away and told
police she had gotten into an argument with her husband during a phone
conversation. She called Benberry to ask for a ride home with her groceries
from Walmart and Benberry agreed. She said Wilbanks did not know she was
with Benberry before he walked up to her side of the vehicle and told her to get
out. She did not, but Benberry did, telling Wilbanks nothing was going on.5
She stated Wilbanks shot Benberry several times and then fled on foot.
4 Commonwealth v. Wilbanks, No. 16-M-011320 (Jefferson Dist. Ct., Ky., filed
July 19, 2016).
5 Discrepancies exist in the record over what the relationship was between
Benberry and Kim. Benberry’s cousin told police Kim was Benberry’s on-again, off-
again girlfriend. Wilbanks acknowledged Kim had a long-standing, on-again, off-again
relationship with Benberry which did not bother him because they each dated exes.
Kim insisted Benberry was strictly an ex-boyfriend.
2
After his arrest, Wilbanks gave an interview to police where he
proclaimed his innocence. Despite Wilbanks being ordered not to have contact
with Kim and his awareness of that order from the domestic violence case, both
Wilbanks and Kim admitted to police they had continued to live together. Kim
was the only witness who identified Wilbanks as the shooter, and he filed a
motion to invoke spousal privilege to prevent any testimony by her against him.
After the trial court denied his motion, Wilbanks entered a conditional Alford
plea of guilty to manslaughter, reserving his right to appeal the adverse ruling.
This appeal followed.
As he did in the trial court, Wilbanks contends his wife, Kim,
should have been precluded from providing testimony against him pursuant to
KRE 504(a), which states:
Spousal testimony. The spouse of a party has a privilege to refuse
to testify against the party as to the events occurring after the date
of their marriage. A party has a privilege to prevent his or her
spouse from testifying against the party as to the events occurring
after the date of their marriage.
Conversely, the Commonwealth contends her statement was admissible under
an exception to the KRE 504(a) privilege contained in KRE 504(c)(2)(D), which
states in pertinent part:
(c) Exceptions. There is no privilege under this rule:
...
(2) In any proceeding in which one (1) spouse is charged
with wrongful conduct against the person or property of:
(A) The other;
(B) A minor child of either;
3
(C) An individual residing in the household of either;
or
(D) A third person if the wrongful conduct is
committed in the course of wrongful conduct against
any of the individuals previously named in this
sentence[.]
The standard of review for the application of KRE 504 spousal privilege is
set out in Meyers v. Commonwealth, 381 S.W.3d 280 (Ky. 2012). “First, we
must interpret the language of KRE 504[.] We do so de novo . . . . Second, we
must determine whether the trial court abused its discretion in permitting
Appellant’s spouse to testify under our interpretation of KRE 504[.] . . . Finally,
[if] we find that the trial court abused its discretion, we ask whether the trial
court’s error was harmless.” Id. at 283.
“Rulings upon admissibility of evidence are within the discretion of the
trial judge; such rulings should not be reversed on appeal in the absence of a
clear abuse of discretion.” Simpson v. Commonwealth, 889 S.W.2d 781, 783
(Ky. 1994). “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)
(citations omitted).
With these standards in mind, we turn to Wilbanks’ argument that the
trial court erroneously allowed his wife, Kim, to testify against him pursuant to
the exception to spousal privilege found in KRE 504(c)(2)(D). The
Commonwealth argues Gonzalez de Alba v. Commonwealth, 202 S.W.3d 5924
(Ky. 2006), is analogous and controlling. A case of first impression in
Kentucky, Gonzalez de Alba addressed the third-party exception to spousal
privilege found in KRE 504(c)(2)(D). Gonzalez de Alba was physically assaulting
his wife, Pauline, when her son intervened. After the fight between the two
men spilled over from in the house to in the street, Gonzalez de Alba went back
inside his residence, retrieved a gun, and shot his wife’s son. This Court found
“the uninterrupted and logical progression of events in this case compels the
conclusion that the murder was committed ‘in the course’ of the assault on
Pauline.” Id. at 596.
In the present case, Wilbanks argues no exception to spousal privilege
was warranted because he was not engaged in the course of assaulting Kim at
the time of Benberry’s shooting, asserting her presence was merely incidental
and coincidental. He argues the spousal privilege is broad and should not be
diminished by the courts. However, the trial court rejected Wilbanks’
arguments and held Gonzalez de Alba supported imposition of the KRE
504(c)(2)(D) exception to preclude Wilbanks’ invocation of spousal privilege. We
agree.
At the hearing, the Commonwealth argued, and the trial judge correctly
accepted, spousal privilege is unavailable under KRE 504(c)(2)(D) when a
husband is charged with a crime against the person or property of a third party
if that crime is committed in the course of wrongful conduct against his
spouse. While Wilbanks did not engage in the wrongful conduct of assaulting
his wife, as was the case in Gonzalez de Alba, the Commonwealth noted he
5
nevertheless engaged in wrongful conduct when he made contact with his wife
in violation of the district court’s no-contact order immediately before and
during the shooting of Benberry. Here, the trial court found Wilbanks had
recognized his wife when approaching Benberry’s vehicle and knowingly
engaged in a course of wrongful contact with her when he demanded she exit
and leave, rather than immediately turning and leaving the scene himself.
When Benberry tried to defuse the situation created by Wilbanks’ ongoing
wrongful contact with Kim, Wilbanks escalated and extended his wrongful
conduct by shooting Benberry multiple times. Thus, the trial court correctly
held Wilbanks shot Benberry while in the uninterrupted course of having
wrongful contact with his wife in violation of the no-contact order.
Wilbanks argues his case is more akin to our holding in Meyers.
However, the Attorney General correctly noted Meyers addressed the exception
to spousal privilege set forth in KRE 504(c)(2)(A), pertaining to a situation in
which one spouse is charged with wrongful conduct against the person or
property of “the other” spouse. Conversely, the exception set forth in KRE
504(c)(2)(D) pertains to a situation involving wrongful conduct perpetrated by
one spouse upon the person or property of a “third person” while “in the course
of wrongful conduct” against the “other [spouse],” a “minor child of either,” or
an “individual residing in the household of either.” As such, although it sets
forth the appropriate standard of review for cases involving application of the
exceptions to KRE 504, we agree Meyers is not otherwise controlling, nor
relevant, to the substance of any KRE 504(c)(2)(D) analysis.
6
In summary, we hold the trial court correctly applied the KRE
504(2)(2)(D) exception to spousal privilege to allow Kim’s testimony against her
husband. We discern no abuse of discretion and conclude the trial court’s
judgment was supported by sound legal principles. The trial court properly
applied the KRE 504(c)(2)(D) exception.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Rob Eggert
Tisha F. Lister
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
7