Rico L. Cavanaugh v. Commonwealth of Kentucky

RENDERED: DECEMBER 15, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0441-MR
RICO L. CAVANAUGH APPELLANT
ON APPEAL FROM TRIGG CIRCUIT COURT
V. HONORABLE C.A. WOODALL III, JUDGE
NO. 19-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
AFFIRMING
A Trigg Circuit Court jury found Rico Cavanaugh guilty of first-degree
assault and being a persistent felony offender in the first degree. He was
sentenced to thirty-four years in prison. Cavanaugh appeals to this Court as a
matter of right.1 He claims the trial court erred first, in its application of
Marsy’s Law and second, when it refused to grant lesser-included instructions
to the charge of assault in the first-degree. Finding no error, we hereby affirm
the judgment of the trial court.
I. FACTS AND PROCEDURAL BACKGROUND
On June 8, 2019, Cavanaugh and his wife, Missy Cain, went to his
mother’s house and waited for her to return home. Upon her arrival they
1 Ky. Const. § 110(2)(b).
planned to visit Cavanaugh’s cousin who had recently lost a son. Missy and
Cavanaugh waited for his mother in the back bedroom of his mother’s house
watching television, while Missy scrolled through Facebook on her cellphone.
Unexpectedly, Cavanaugh rolled on top of her and started choking her.
He released her and then got up and asked her if she wanted to go outside and
smoke. Missy followed him into the kitchen where he picked up a knife and
locked the door. He turned around and accused her of cheating on him.
Despite her fervent denials, Cavanaugh said “There is no other way, Missy. And
there’s no sense in screaming because can’t nobody hear you.”
Missy stood there in the kitchen while Cavanaugh stabbed her twenty-six
times. He pierced every major organ with the exception of her heart. After he
finished stabbing her, he repeatedly punched the left side of her body breaking
eight of her ribs. He told her to “Go over and lay in front of the washer and
dryer and bleed to death, bitch.” As she lay on the floor bleeding, she begged
him to call 911. Cavanaugh eventually relented and called.
When the police arrived, Cavanaugh admitted to stabbing Missy. The
police arrested him and charged him with assault in the first degree.
Cavanaugh was indicted for assault in the first degree and being a persistent
felony offender in the first degree. He was arraigned in Trigg Circuit Court on
September 12, 2019. At trial, the Commonwealth requested that Missy be
permitted to remain in the courtroom during the trial despite the invocation of
KRE2 615, the rule mandating the separation of witnesses. Cavanaugh
2 Kentucky Rules of Evidence.
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objected but the trial court overruled him. The trial court allowed Missy to be
present during the trial, noting that Marsy’s Law allows a victim to be present
during the proceedings. At the close of evidence, Cavanaugh tendered
instructions for assault in the second-degree and assault under extreme
emotional disturbance, which the trial court rejected. There was a one-day trial
on August 9, 2021, and Cavanaugh was found guilty on both counts. The jury
recommended a sentence of thirty-four years, which the trial court then
imposed. We now address the merits of the appeal.
II. ANALYSIS
Cavanaugh argues the trial court erred when it allowed Missy to be
present during the trial and observe other witnesses’ testimony prior to her
testifying in this case. Cavanaugh also claims the trial court erred when it
referred to Missy as a “victim” in front of the jury. Additionally, he argues the
trial court should have instructed the jury on lesser-included offenses. Finally,
Cavanaugh urges this Court to reverse under the cumulative error doctrine.
A. The trial court did not err in its application of Marsy’s Law.
Marsy’s Law, as it is commonly known, is a constitutional amendment
that was ratified by the voters in the fall of 2020. It is codified as Section 26A
in Kentucky’s Constitution and entitled “Rights of victims of crimes.” At issue
in this case is the right of the victim to be “present at the trial and all other
proceedings, other than grand jury proceedings, on the same basis as the
accused.” Ky. Const. § 26A.
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Cavanaugh argues that this constitutional provision runs afoul of KRE 615.
This rule is widely recognized as an important tool that undergirds the truth-
seeking process in the judicial system. The purpose of the rule is to ensure that
witnesses do not alter their testimony based on the testimony of other
witnesses. Hatfield v. Commonwealth, 250 S.W.3d 590, 594 (Ky. 2008). KRE
615 calls for the separation of witnesses and states:
At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other witnesses
and it may make the order on its own motion. This rule does not
authorize exclusion of:
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural
person designated as its representative by its attorney; or
(3) A person whose presence is shown by a party to be essential
to the presentation of the party's cause.
While Cavanaugh is correct that KRE 615 and Section 26A of the Kentucky
Constitution conflict with each other he is wrong when he argues KRE 615
should take precedence over a provision of the Kentucky Constitution. Instead,
this Court has held that “constitutional rights prevail over conflicting statutes
and rules.” Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky.2003).
Normally this Court addresses constitutional rights in the context of
vindicating the rights of the accused. However, this principle remains the same
where, under Marsy’s Law, a victim has constitutional rights as well.
Importantly, however, in the event an application of Marsy’s Law should
violate a defendant’s federal constitutional rights, then this Court would be
compelled to remedy such a violation. U.S. Const. art. VI, cl. 2. Cavanaugh,
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however, cannot point to any authority stating KRE 615 is constitutionally
required and is unable to point to any prejudice caused by the trial court
permitting Missy to remain in the courtroom. Missy was the only witness who
testified to the events leading up to the assault and the assault itself. We are at
a loss to understand how Missy’s testimony could have been influenced by the
testimony of the other witnesses because she was the only witness at trial who
was present when she was assaulted.3
Cavanaugh also contends that the trial court erred by calling Missy a
victim. He argues the trial court created an inference of guilt when it called
Missy a “victim.” At the beginning of the trial, when referring to Missy, the trial
court explained to the jury:
And the other exception is that the victim of a crime does have a
right to be present under a relatively new statute and
constitutional amendment, and so, she may come and go in the
courtroom as she sees fit.
Cavanaugh objected to Missy’s presence in the courtroom. However, he did not
object when the trial court referred to her as a “victim.” Nor did Cavanaugh
request an admonition from the court instructing the jury not to make an
inference against Cavanaugh’s presumption of innocence.4 In fact, defense
counsel referred to Missy as a victim some thirty minutes later during his
questioning of a witness.
3While this case raises no issues of prejudice to Cavanaugh, there may arise
concerns for due process relating to the testimony of victims in the future. The best
course of action is for trial courts to have the victim testify first so that no question of
improper influence on their testimony occurs. KRE 611.
4 The trial court instructed the jury to afford Cavanaugh the presumption of
innocence when deliberating on the guilt and persistent felony offender phase.
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As such, this issue is unpreserved. Consequently, this Court will review
this issue using the palpable error standard under RCr5 10.26. Early v.
Commonwealth, 470 S.W.3d 729, 737 (Ky. 2015). For an error to be palpable it
must be “easily perceptible, plain, obvious and readily noticeable.” Brewer v.
Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). An unpreserved error may be
corrected on appeal if failure to do so would cause a manifest injustice.
Commonwealth v. Goss, 428 S.W.3d 619, 626-27 (Ky. 2014). This is an error
that if it remained uncorrected, there would be a likelihood of a different result,
or call into question the defendant’s right to due process. Id. at 627.
This Court has held that it does not unduly prejudice the defendant or
invade the province of the jury when a prosecutor calls an alleged victim a
“victim” in front of the jury and that it is no more prejudicial to the defendant
than the reading of the indictment. Whaley v. Commonwealth, 567 S.W.3d
576, 590 (Ky. 2019). And yet trial courts should refrain from referring to an
alleged victim as a “victim.” Trial courts must exercise great caution when
balancing the rights of an alleged victim under Marsy’s Law and the
fundamental rights of the accused.
Here there was no palpable error. Cavanaugh’s argument that the trial
court upended the presumption of innocence when it called Missy a victim
holds little water when Cavanaugh also referred to her as a “victim.” In fact,
counsel for Cavanaugh conceded during his opening statement that
Cavanaugh assaulted Missy. While counsel adopted that approach as a
5 Kentucky Rules of Criminal Procedure.
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plausible trial strategy to argue for lesser-included offenses, it is a concession
that Missy was certainly a victim of some crime. The evidence was so
overwhelming for Cavanaugh’s guilt that there is no likelihood of a different
result, therefore the trial court did not commit palpable error which would
require reversal.
B. The trial court did not abuse its discretion when it declined to
instruct the jury on lesser-included offenses.
Cavanaugh next argues that the trial court erred when it refused to
instruct the jury on assault under extreme emotional disturbance and assault
in the second-degree. We review the trial court’s decision declining to instruct
the jury on lesser-included offenses using the abuse of discretion standard.
Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010) (citing Crain v.
Commonwealth, 257 S.W.3d 924 (Ky. 2008)). A trial court abuses its discretion
when its decision is “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The trial court’s duty is to instruct the jury on the whole law of the case
consistent with the evidence presented at trial. Taylor v. Commonwealth, 995
S.W.2d 355, 360 (Ky. 1999). Defendants are entitled to an instruction on any
defense that is supported by the evidence. Hayes v. Commonwealth, 870
S.W.2d 786 (Ky. 1993). This includes instructing on lesser-included
offenses. Swain v. Commonwealth, 887 S.W.2d 346, 348 (Ky. 1994). And
though “a lesser included offense is not a defense within the technical meaning
of those terms as used in the penal code, it is, in fact and principle, a defense
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against the higher charge.” Slaven v. Commonwealth, 962 S.W.2d 845, 856 (Ky.
1997). And yet an instruction for a lesser-included offense is only required
if, “considering the totality of the evidence, the jury might have a reasonable
doubt as to the defendant's guilt of the greater offense, and yet believe beyond
a reasonable doubt that the defendant is guilty of the lesser offense.” Caudill v.
Commonwealth, 120 S.W.3d 635, 668 (Ky. 2003).
Cavanaugh first contends that the trial court erred by not instructing the
jury on assault under extreme emotional disturbance (EED). He argues the jury
could have reasonably concluded that Cavanaugh snapped because he thought
that Missy was potentially cheating on him. This Court has defined extreme
emotional disturbance as:
a temporary state of mind so enraged, inflamed, or disturbed as to
overcome one's judgment, and to cause one to act uncontrollably
from the impelling force of the extreme emotional disturbance
rather than from evil or malicious purposes. It is not a mental
disease in itself, and an enraged, inflamed, or disturbed emotional
state does not constitute an extreme emotional disturbance unless
there is a reasonable explanation or excuse therefor, the
reasonableness of which is to be determined from the viewpoint of
a person in the defendant's situation under circumstances as
defendant believed them to be.
McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986). An EED
defense is essentially the adoption by the legislature of the concept of a “crime
of passion.” Driver v. Commonwealth, 361 S.W.3d 877, 888 (Ky. 2012). A
necessary component to EED is adequate provocation, a concept often referred
to as a “triggering event.” Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky.
1991). The event that triggers the violence must be sudden and uninterrupted.
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Id. And yet the triggering event must be based on some “definite, non-
speculative evidence.” Padgett v. Commonwealth, 312 S.W.3d 336, 341 (Ky.
2010).
Cavanaugh urges this Court to regard his statement accusing Missy of
conducting an affair as a sufficient triggering event to establish EED when he
assaulted his wife. And yet since Cavanaugh did not testify, the adequacy of
the evidence of this affair remains speculative at best. Nothing in the record
suggests there actually was an affair, how he learned of the affair, and how
long was he aware of Missy’s purported affair. Without a sufficient factual
basis, EED should not be used as a cudgel to defame the victim while
simultaneously hoping to diminish one’s culpability at trial. When it refused to
instruct the jury on assault under extreme emotional disturbance, the trial
court’s decision was well within its discretion.
Cavanaugh also claims the trial court should have instructed the jury on
assault in the second degree. Cavanaugh is not disputing that Missy sustained
a serious physical injury. Instead, he contends that the jury, if so instructed,
could have reasonably believed that Cavanaugh acted wantonly, rather than
intentionally. Under KRS 508.020(1)(c) a person is guilty of assault in the
second degree when:
He wantonly causes serious physical injury to another person
by means of a deadly weapon or a dangerous instrument.
The Kentucky General Assembly defines “wanton” as:
A person acts wantonly with respect to a result or to a
circumstance described by a statute defining an offense when he is
aware of and consciously disregards a substantial and
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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.
KRS 501.020(3). It is difficult for this Court to square Cavanaugh’s contention
that he acted wantonly when the uncontroverted evidence presented at trial
shows that he strangled his wife in the back bedroom of his mother’s house.
After he abruptly stopped, he then led her into the kitchen where he picked up
a knife. He locked the door, presumably to prevent her escape, and accused
her of cheating on him, saying “There is no other way, Missy. And there’s no
sense in screaming because can’t nobody hear you.” After stabbing her twenty-
six times and breaking eight of her ribs, he then told her to “bleed to death.”
When the trial court heard this evidence, it was well within its discretion to
reject any jury instructions that included “wanton” as the mental state. The
evidence demonstrates Cavanaugh’s “conscious objective”6 was to inflict on
Missy a serious physical injury. Therefore, the trial court did not abuse its
discretion when it declined to instruct the jury on assault in the second-degree.
Since we have found no error on the part of the trial court, we will not
undertake a cumulative error analysis as urged by Cavanaugh under Brown v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).
6 KRS 501.020(1)- Intentionally -- A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense when his conscious
objective is to cause that result or to engage in that conduct.
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III. CONCLUSION
For the foregoing reasons, we find that the Trigg Circuit Court committed
no error in its application of Marsy’s Law by permitting the victim to be present
at trial and find no palpable error requiring reversal when the trial court
referred to Missy as a “victim.” Likewise, we find the trial court acted within its
sound discretion when it declined to instruct the jury on assault under extreme
emotional disturbance and assault in the second degree. The judgment of the
trial court is hereby affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Robert C. Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Matthew F. Kuhn
Solicitor General
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