Larry Herald v. Commonwealth of Kentucky

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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RENDERED: SEPTEMBER 22, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0256-MR
LARRY STEVENS HERALD II APPELLANT
ON APPEAL FROM BOONE CIRCUIT COURT
V. HONORABLE JAMES R. SCHRAND, JUDGE
NO. 19-CR-00645
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REVERSING IN PART
Larry Stevens Herald II (Herald) was convicted of murder and sentenced
to life in prison. He now appeals as a matter of right.1 Herald raises three
issues on appeal. He argues that the trial court erred by failing to grant a
directed verdict. Herald also claims the trial court committed reversible error by
failing to grant a missing evidence instruction and abused its discretion when
it imposed court costs. We hereby affirm the conviction but reverse the
imposition of costs.
1 Ky. Const. § 110(2)(b).
I. FACTS AND PROCEDURAL BACKGROUND
Herald and Jennifer Cummins (Cummins) lived together as a couple.
They hosted a party on June 29, 2019. Herald invited his friend Rodney
Holbrook who brought along his brother Michael Holbrook (Michael). Michael
made some lewd comments about Cummins and her adult daughter Brandi
Taylor. Herald grew increasingly angry about it. While the party was winding
down, everyone was congregating in the garage. Herald told Michael to leave
the party several times, but Michael did not. The last time Michael refused to
leave Herald went to retrieve a handgun from his closet, pulled the slide back
and chambered a round and said, “this f*****g guy’s gonna leave tonight.”
Michael was seated among other partygoers when Herald again entered the
garage. Herald fired a “warning” shot towards Michael and took a few more
steps towards him and struck him with the gun. The handgun discharged
when Herald struck Michael with the gun. The bullet entered Michael’s left
chin and exited his back. Had Michael lived, he would have been a
quadriplegic, but this injury proved fatal, when he eventually died twenty-five
days later.
When the Boone County Sheriff’s Department arrived and investigated
the shooting, Michael was still sitting in his chair bleeding heavily. The chairs
nearby were moved in the process of rendering first-aid. Michael was taken to
a hospital and the officers began processing the crime scene. Detective
Faulkner took photos of a chair and ottoman because they appeared to contain
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bullet defects2 and he testified to such at the trial. However, he did not take
physical possession of them nor conduct any scientific testing to confirm his
beliefs. Thus, the chair and ottoman were unavailable for Herald’s defense
team to examine and confirm if the purported defects contained the presence of
lead.
Herald was indicted for murder and the case was tried in front of a jury.
He was found guilty of wanton murder and the jury recommended a sentence
of life imprisonment. The trial court accepted the recommendation and
sentenced Herald accordingly and imposed court costs. Herald filed this
appeal as a matter of right, we now address the merits of the appeal.
II. ANALYSIS
Herald claims the trial court erred by failing to grant his motion for a
directed verdict and for refusing to issue a missing evidence instruction.
Herald also contends that the trial court erred when it imposed court costs.
A. The trial court properly denied Herald’s motion for a directed
verdict on the murder charge.
At trial, Herald moved for a directed verdict on the charge of murder, and
thus properly preserved this issue for appeal. His motion was overruled by the
trial judge. He argued, then as now, there was insufficient evidence that he
acted under circumstances manifesting extreme indifference to human life.
This Court has previously stated that:
On motion for directed verdict, the trial court must draw all
fair and reasonable inferences from the evidence in favor of the
“Bullet defects” is the term crime scene investigators use for what are more
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commonly known as “bullet holes.”
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Commonwealth. If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury questions
as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The standard of
review for an appellate court on reviewing a lower court’s decision regarding a
directed verdict is, “if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then is a defendant entitled to a
directed verdict of acquittal.” Id.Herald was convicted of wanton murder. KRS 507.020(1)(b) states as
follows:
A person is guilty of murder when . . . 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.
By Herald’s own admission, he struck Michael in the face with a loaded and
cocked firearm. Herald urges this Court to declare as a matter of law that
intentionally striking someone in the face with a loaded firearm which then
discharges and kills a person, is not wanton murder. We decline to do so. In
fact, this Court has upheld a conviction in a similar circumstance where a
firearm discharged in the course of a “pistol-whipping.” Gribbins v.
Commonwealth, 483 S.W.3d 370, 376-77 (Ky. 2016).
Herald grabbed a firearm, made sure it was loaded and ready to fire and
went to confront and evict an uninvited party guest. Herald discharged a
firearm in a garage filled with people and struck Michael in the face with the
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same weapon he discharged just a few moments earlier. It is certainly
plausible that Herald did not intend the predictable result, but that is why he
was convicted of wanton murder, not intentional murder. It was not clearly
unreasonable for a jury to find that his actions wantonly created a grave risk of
death to Michael and that it was those actions that did cause Michael’s death.
The trial court did not abuse its discretion when it denied Herald’s motion.
B. The trial court properly denied a missing evidence instruction.
Herald is also seeking reversal of his conviction on the grounds the trial
court failed to grant a missing evidence instruction. He properly preserved this
issue for appeal by tendering instructions to this effect. Trial courts decide
what instructions are proper given the evidence in each case and are vested
with broad discretion. Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d 783, 790 (Ky.
2011). We review the lower court’s denial of a missing evidence instruction
under the abuse of discretion standard. Id.Herald claims the police failure to preserve the chair with the bullet
defects amounted to the destruction of potentially exculpatory evidence.
Herald’s argument rests on the supposition that had a defense expert been
allowed to perform chemical tests on the purported bullet defects in the chair
and ottoman it would then prove that Detective Faulkner’s testimony was
incorrect. This would mean that the holes in the chair and ottoman were not
bullet defects and thus make Herald’s version of events, that his first shot was
fired into the grass, more plausible to a jury.
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The intentional destruction of exculpatory evidence is a violation of the
due process rights of a defendant. Sanborn v. Commonwealth, 754 S.W.2d 534(Ky. 1988). The granting of a missing evidence instruction is one of several
remedies available to a trial court when confronted with this due process
violation. Id. A missing evidence instruction allows a jury to make an inference
that if the evidence was not destroyed then it would have been favorable to the
defendant. Id. This Court has stated that:
In order for Appellant to be entitled to a missing evidence
instruction, he must establish that (1) the failure to preserve the
missing evidence was intentional and (2) it was apparent to law
enforcement that the evidence was potentially exculpatory in
nature.
White v. Commonwealth, 544 S.W.3d 125, 151 (Ky. 2017) (emphasis added).
This Court requires a showing of bad faith on the part of the Commonwealth.
Collins v. Commonwealth, 951 S.W.2d 569, 573 (Ky. 1997). Bad faith in this
case means the Commonwealth intentionally destroyed the chair even though
it knew it was potentially exculpatory.
The exculpatory nature of this potential evidence is of dubious value,
certainly in this Court’s perspective. It is therefore understandable why the
exculpatory value of these same tests would elude Detective Faulkner when he
conducted the investigation. Multiple eyewitness testified that Herald fired a
shot toward a group of people in the garage and narrowly missed them. Chad
Lynn testified his wife Mandy was sitting next to Michael when Herald fired the
first shot causing her to roll away from the gunfire. Mandy Lynn testified she
was seated next to Michael when Herald fired the shot in between them. Herald
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himself admitted firing the weapon. And yet, which direction Herald fired a
handgun, and where the bullet ultimately landed, at a party in a garage filled
with people is less important than the fact that he did fire a handgun at a party
in a garage filled with people. Once Herald fired that first shot, he knew that he
held a loaded weapon readily capable of firing, and by his own admission
struck Michael with it. It was this conduct that was wanton and which
ultimately resulted in Michael’s death. The trial court did not abuse its
discretion when it denied the inclusion of a missing evidence instruction.
C. The trial court erred when it adjudged Herald to be a poor person
under KRS 453.190(2) and yet imposed court costs.
The trial court imposed court costs in its final judgment entered on July
2, 2021. Trial courts are required under KRS 23A.205 to impose court costs on
a defendant upon conviction. The exception is as follows:
Unless the court finds that the defendant is a poor person as
defined by KRS 453.190(2) and that he or she is unable to pay
court costs and will be unable to pay the court costs in the
foreseeable future.
KRS 23A.205(2). Here, the trial court issued an order granting Herald’s motion
to proceed in forma pauperis on July 1, 2021. In this order the trial court found
Herald to be a “pauper within the meaning of KRS 453.190 and KRS
31.110(2)(b).” Courts look to the latter statute to determine whether someone is
“needy” and therefore qualified for the services of the Department of Public
Advocacy. KRS 453.190(b), however, defines “poor person:”
A "poor person" means a person who has an income at or
below one hundred percent (100%) on the sliding scale of indigency
established by the Supreme Court of Kentucky by rule or is unable
to pay the costs and fees of the proceeding in which he is involved
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without depriving himself or his dependents of the necessities of
life, including food, shelter, or clothing.
This Court has previously stated that a trial court’s imposition of court costs is
illegal if the trial court had previously adjudged the defendant to be “poor.”
Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014). The trial court found
Herald to be a “pauper within the meaning of KRS 453.190.” Though the trial
court appears to conflate “needy” and “poor” in its order granting Herald in
forma pauperis status, it is clear the trial court adjudged Herald to be “poor”
and thus, under Spicer, exempt from costs.
III. CONCLUSION
Based on the foregoing, the trial court did not err when it denied Herald’s
motion for a directed verdict and likewise did not abuse its discretion when it
refused to grant a missing evidence instruction. However, this Court does find
the trial court erred when it imposed costs upon Herald despite adjudging him
to be a poor person. Therefore, we hereby affirm the conviction and reverse the
trial courts imposition of costs.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Robert C. Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Bryan Morrow
Assistant Attorney General
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