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2015-sC-000609_MR _
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scoT E. GAITHER APPELLANT
ON APPEAL FROM D`Aless cI-RCUIT coURT
v. , HoNoRABLE JosEPH W. cAsTLEN, 111, JU'DGE
~ ' - - No. 02-cR-00446

COMMONWEALTH 'OF KENTUCKY d APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS

AFFI RMING

In 2004, Appellant Scot E. Gaith_er was convicted and sentenced in the
Daviess Circuit Court for the 2001 kidnapping of James Parson1 and for the
s associated crimes of first degree manslaughter, tampering With physical _
evidence, and theft by unlawful taking (property less than $300.00]. 'Those
convictions Were affirmed by this Court inn Gaither v. Com,monwealth, 2004~SC-`
0474-MR, 2006 WL 436071 (Ky. Feb. 23, 2006). n
1 s Later, upon Appellant’s motion for post-conviction relief pursuant to RC_I'

1 1 .42, the trial court set aside Appellant’s kidnapping sentence and granted a

 

_ 1 Parson was not released alive. Kidnapping is a capital oH`ense when the victim
ls not released a]ive. ICRS 509.040(2). ' '

new penalty-phase trial on that charge.2 Upon retrial of the kidnapping penalty
phase, the trial court imposed the sentence recommended by the jury:
imprisonment for life, to be served concurrently With the twenty~year sentence
for manslaughter. This appeal followed.

Appellant argues that the retrial of the kidnapping penalty phase was
fatally flawed because the trial court l) allowed the admission of irrelevant,
cumulative and unduly prejudicial evidence; 2) permitted the introduction of
improper victim impact testimony; 3) improperly limited his admission of
mitigation evidence; and 4) permitted the Commonwealth to display evidence
from the guilt-phase trial during closing argument Without prior notice to
Appellant. For the reasons stated below, we affirm the judgment

I. GRUESOME DETAILS OF THE CONDITION OF THE VICTIM’S BODY
WERE IRRELEVANT AND CUMULATIVE BUT DID NOT SWAY THE JURY’S
SENTENCING DECISION.

Pursuant to our statutory scheme for bifurcated criminal trials and jury
sentencing, the guilt phase and punishment phase of a trial are ordinarily
heard by the same jury. Occasionally that protocol becomes a practical
impossibility, when for example, as in cases like this one, flaws in the original

trial compel a re-trial only of the penalty phase. In Boone v. Commonwealth,

 

2 The trial court rejected several other claims made by Appellant in his RCr
1 1.42 motion. The Court of Appeals affirmed the trial court on twenty-two of twenty-
iive issues; three issues were remanded. Gaither v. Commonwealth, 2007-CA-000634,
2008 WL 4822233 (Ky. App. Nov. 7, 2008]. After the remand, although Appellant did
not appeal the trial court’s ruling on his kidnapping sentence', he did appeal other
aspects of the trial court’s RCr 1 1.42 ruling. See also Gaither 1`). Commonwealth, 2010-
CA-002300-MR, 2013 WL 3013579 (Ky. App. June 14, 2013].

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821 S.W.2d 813, 814-15 (Ky. 1992], we outlined a practical course for trial
courts to follow in such circumstances, including the preparation of a
carefully-drafted stipulation of the relevant facts to be read to the jury.3

Although the manner of presenting the essential information remains
subject to the trial court’s discretion, the parties and the trial court in the case
now before us followed Boone’s suggestion to present a stipulated summary of
the guilt-phase evidence to the penalty-phase jury. A portion of the stipulated
summary pertaining to the issue under review reads as follows:

The Daviess County Coroner took charge of the body and with
police assistance the body was packaged and removed from the
bottom of the ditch. The body was transported to the Kentucky
Medical Examiner’s Office and examined by Dr. Amy Burrows. Dr.
Burrows testified that her examination of Mr. Parson’s body
revealed there were two bullets inside the body but she was unable
to identify where the bullets entered the body due to the body
being so badly decomposed. She did testify that there were two
large defects in the skin from the right side of the chest over to the
left side of the chest and in the left side of the lower back, which
were most likely the entrance wounds.

Because of the condition of the body, the body and adjacent
materials, mud and grass, from around the body were submitted to
Dr. Amy Burrows, a medical examiner, along with the body. She
testified as a witness for the Commonwealth that her examination
did not find any evidence of restraints on the body, such as rope or
duct tape. An examination of the materials led to the recovery of a
spent 9 mm shell casing.

Over Appellant’s objection, the trial court permitted the Comrnonwealth

to go outside the agreed-upon summary and introduce recorded portions of Dr.

 

3 For other cases providing similar guidance, see Jacobsen v. Commonwealth,
376 S.W.3d 600, 612 (Ky. 2012) and St. Clair v. Commonwealth, 319 S.W.3d 300, 311-
312 (Ky. 2010].

Burrows’ actual guilt-phase testimony. That testimony included a gruesome
macabre description of the decomposition of Parson’s body. Specifically, the
jury heard that Parson’s head had fallen off his torso and was carried to the
autopsy lab in a baby-sized body bag; that Parson’s left arm had detached from
his body; that decomposition rendered his face unrecognizable_; that maggots
and insects infested the body; and that large portions of the skin were removed
by animal and insect activity.

Citing KRE 4024 and KRE 403,5 Appellant argues that this additional
detail was unnecessarily cumulative, given the summary’s reference to Parson’s
“badly decomposed” body, and irrelevant to a penalty determination for the -
kidnapping charge. He also argues that the testimony prejudicially v
overemphasized the gruesome condition of Parson’s body long after the
kidnapping

We review a trial court’s decision as to the relevance of evidence for_
abuse of discretion. Love v. Com,monwealth, 55 S.W.3d 816, 822 (Ky_. 2001).
Wh-ether relevant evidence should be excluded as unduly prejudicial or
needlessly cumulative is also a matter we leave to the trial court’s sound
discretion. Webb v. Commonwealth, 387 S.W.3d 319, 325-26 (Ky. 2012). A

trial court abuses its discretion when it decides an issue arbitrarily,

 

4 KRE 402 provides in part: “Evidence which is not relevant is not admissible.”

5 KRE 403 states: “Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of undue prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”

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unreasonably, unfairly, or unsupported by sound legal principles.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999].

The trial court reasoned that Dr. Burrows’ vivid description of Parson’s
decaying body was relevant because it helped the jury understand the
kidnapping in context_that it was not simply a kidnapping, but a kidnapping
in Which the victim was not released alive. The Commonwealth argues that the
details assisted the jury by providing “background information on the crime;”
in “assessing Gaither’s [claim of self-defense];” and in “assessing the
aggravating and mitigating circumstances” leading to an appropriate sentence.

We are unable to see how the ghastly details about the victim’s remains
' Shed any light on the sentencing issue beyond what was otherwise provided by
the stipulated statement of evidence. The fact of Parson’s death was not
disputed. Parson’s disappearance, together with the blood found in and about
Parson’s van, and a bullet hole, a bullet, and a shell casing found in the van,
all of which were noted in the stipulated summary, established the proximate
time of the kidnapping and of Parson’s death. The gruesome details of the
body’s decomposition two months later did not augment the jury’s appreciation
of the gravity of the crime. Nevertheless, despite the irrelevance of the evidence
and its cumulative nature, we fail to discern any substantial prejudicial effect
upon Appellant’s sentence. A non-constitutional evidentiary error is deemed
harmless “if the reviewing court can say with fair assurance that the judgment

was not substantially swayed by the error.” Winstead v. Commonwealth, 283

S.W.Sd 678, 688-89 (Ky. 2009). We are confident that the grim details
provided by Burrows’ trial testimony did not sway the verdict.

II. THE VICTIM IMPACT TESTIMONY

Appellant asserts that he suffered manifest injustice because the trial
court erroneously allowed victim impact testimony beyond the scope allowed by
KRS 532.055(2)(a]7, and that the victim impact witness presented improper
character testimony. Having failed to preserve the issue with a
contemporaneous objection, Appellant seeks palpable error review.

Under RCr 10.26, an unpreserved error may generally be reviewed

on appeal if the error is palpable and if it affects an appellant’s
substantial rights. Even then, relief is appropriate only if the error
resulted in manifest injustice. For an error to be palpable, it must be
easily perceptible, plain, obvious and readily noticeable. Generally, a
palpable error affects the substantial rights of the party only if it is
more likely than ordinary error to have affected the judgment

Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotation
and citations omitted).

A. Victim impact of testimony relating to several “victims” was proper. _

The Cornmonwealth presented victim impact testimony through Parson’s
daughter, Leigh Ann Duke. Duke testified, not only about the impact of
Parson’s death upon her, but also how his death impacted Parson’s widow, his
son, and his grandchildren. Citing Terry v.‘ Commonwealth, 153 S.W.3d 794
(Ky. 2005), Appellant asserts that Duke’s testimony exceeded what was allowed

by KRS 532.055(2)(3)7.

Ten'y, decided under the pre-2008 version of KRS 532.055(2](a)7, held
that when the direct victim of the crime was deceased and not related to the
defendant, the victim impact testimony was limited to the impact of the crime
upon a single “victim” designated in KRS 421.500(1) as (a] the spouse of the
deceased, and if none, (b) an adult child; and if none, (c] a parent; and if none,
(d) a sibling; and if none, a grandparent

In 2008, presumably in response to Terry, the legislature removed the
single victim limitation of KRS 532.055(2)(a]7 and KRS 421.500 and expanded
the allowable scope of victim impact testimony to include the “impact of the
crime upon the victim or victims,” designated as a “spouse;” an “adult child;” a
“parent;” a “sibling;” and “a grandparent.” The Commonwealth argues that
Duke’s testimony comports with the post- Terry, version of KRS 532.055(2)(a)7.

The pre-2008 version construed by Teny was in effect at the time of the
crime in 2001 and at the time of the first trial in 2004, but the amended
version was in effect when the kidnapping penalty phase was retried. Oddly,
neither party argues the retroactive application of the revised versions of KRS
532.055(2)(a]7 and KRS 421.500. Appellant argues the law as stated in Terry
and never addresses the subsequent revisions of the statutes upon which Terry
was based; the Commonwealth relies upon the current version of the statutes
and never mentions Terry or the previous version of the statutes Duke’s
testimony was proper under the current, post- Teny statute, but it would have

been improper under the version of the statute cited in Terry.

The applicable version of the statutes regarding the scope of victim
impact evidence is determined by our construction of the ex post facto clauses
of the state and federal constitutions6 and KRS 446. 1 107 which govern the
retrospective application of statutes in criminal cases.

An ex post facto law is any law which criminalizes an act that was
innocent when done, aggravates or increases the punishment for a
Crime as compared to the punishment when the crime was committed,
or alters the rules of evidence to require less or different proof in

order to convict than what was necessary when the crime was
committed.”

Buck 1). Commonwealth, 308 S.W.3d 661, 664 (Ky. 2010]. The 2008
amendments to KRS 532.055(2)(a]7 and KRS 421.500 did not subject Appellant
to prosecution for conduct that was not previously criminalized, and they did
not subject him to increased or aggravated punishments for his previously-
committed crimes. And, they did not reduce or change the evidence required to
convict him of the offenses. At most, the amendments made non-essential

evidence, which previously could not have been admitted, relevant and

 

6 U.S. Const. art. I, § 10; Ky. Const. § 19[1].

7 KRS 446.1 10: “No new law shall be construed to repeal a former law as to any
offense committed against a former law, nor as to any act done, or penalty, forfeiture
or punishment incurred, or any right accrued or- claim arising under the former law,
or in any way whatever to affect any such offense or act so committed or done, or any
penalty, forfeiture or punishment so incurred, or any right accrued or claim arising
before the new law takes effect, except that the proceedings thereafter had shall
conform, so far as practicable, to the laws in force at the time of such proceedings lf
any penalty, forfeiture or punishment is mitigated by any provision of the new law,
such provision may, by the consent of the party affected, be applied to any judgment
pronounced after the new law takes effect.”

admissible. The application of the post-2008 version of the victim impact
statutes did not unconstitutionally subject Appellant to an ex post facto law.
Application of the 2008 amendments to KRS 532.055(2)(a)7 and KRS 421.500
did not violate Appellant’s rights under KRS 446.110.`

Under KRS 446.110, unless the General Assembly unmistakably

_ intends otherwise, substantive changes to criminal statutes will not
be retroactively applied and offenses committed against the statute
before its repeal, may thereafter be prosecuted, and the penalties
incurred may be enforced. Substantive amendments are those which
change and redefine the out-of-court rights, obligations and duties
of persons in their transactions with others By contrast, procedural
amendments_those amendments which apply to the in-court
procedures and remedies which are used in handling pending
litigation_are to be retroactively applied (assuming no separation-of-
powers concerns) so that the proceedings shall conform, so far as
practicable, to the laws in force at the time of such proceedings

Rodgers v. Commonwealth, 285 S.W.3d 740, 751 (Ky. 2009) (citations and
internal quotation marks omitted).

The 2008 amendments to the victim impact statutes did not change or
re-define any out-of-court rights, obligations or duties for which Appellant was
being prosecuted; they changed no legal standard pertaining to his crimes or-
his punishment KRS 446.1 10 did not bar the retrospective application of the
post-2008 version of the victim impact statutes

We are satisfied that the trial court correctly admitted Duke’s victim
impact testimony under the post-2008 version of the victim impact statutes
Moreover, for unpreserved trial error to be regarded on appeal as “p_alpable”
and thus subject to corrective relief under RCr 10.26, “it must be easily

perceptible, plain, obvious and readily noticeable.” Young v. Commonwealth,

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426 S.W.3d 577, 584 (Ky. 2014). The error alleged by Appellant cannot be
characterized as plain, obvious and readily noticeable, and therefore, would not
be regarded as palpable in any event.

. B. The improper testimony was not palpable error.

Duke’s victim impact testimony also included statements that her
mother, Parson’s widow, never felt safe after his kidnapping and death because
she heard about “people being in jail and hiring somebody to come . . . .” She
complained that “[Appellant] keeps putting us through this, over and over
agai-n. It just seems like something is always coming up, .some parole or
something always coming up and he sits over there smug, with that little smug
look on his face.”

Appellant cites St. Clair v. Commonwealth, 451 S.W.3d 597 (Ky. 2014], as
support for his argument that Duke improperly assailed his character. St.
Clair notes that “the purpose of [the victim impact statement] is to give the jury
an understanding of the impact of the crime being tried, not the defendant’s
bad character or overall negative effect on society,” when confronted with the
issue of victim impact testimony having been given by one not a victim of the
crime for which the defendant was being tried. Id. at 625.

Appellant did not contemporaneously object to Duke’s testimony.
Instead, hours later, after Duke had testified, he belatedly requested an
admonition to the jury, We regard the matter as inadequately preserved and
subject to review only for palpable error. “[T]he general rule is that an

objection is not timely unless it is made ‘as soon as the basis for objection

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becomes apparent.’” lll/in.st¢-zcrclz 283 S.W.3d at 688 (quoting Lawson, The
Kentucky Evidence Law Handbook (Fourth Edr'tion), p'. 36 (2003)). Duke’s
expression of her family’s fears and anguish over the crimes was proper victim
impact testimony, but her complaints about the protracted litigation and her
frustration that Appellant would be “coming up” for parole on the
manslaughter conviction are not proper factors for the jury to consider in
assessing.Appellant’S punishment for kidnapping That testimony was clearly
erroneous, but it was not adequately preserved for appellate review.

Upon consideration of the testimony in context with the other penalty
phase evidence, we are satisfied that it was not so unduly prejudicial as to
render the proceeding fundamentally unfair. Martin v. Commonwealth, 207
S.W.3d l, 3- (Ky. 2006). The error that occurred was not palpable. q

III. THE TRIA_L COURT DID NOT IMPROPERLY LIMIT APPELLANT’S
PRESENTATION OF MITIGATION EVIDENCE.

Glenn Amerson is a pastor who became acquainted with Appellant in
prison following the first trial. Amerson testified for Appellant in mitigation of
punishment, explaining how he took Appellant’s mother to the prison to visit
Appellant. As Amerson testified about Appellant’s kind interaction with his
elderly mother, the Commonwealth asked to approach the bench. The
Commonwealth complained that Amerson’s testimony was more appropriately
heard at final sentencing before the judge rather than as mitigation evidence in
the penalty phase. Appellant’s counsel stated she was “wrapping up” but
argued that case law suggests there is no limit to mitigation evidence regarding

leniency and character. After further discussion and verification that

ll

Appellant’s counsel Was concluding her examination of Amerson, the trial court
simply instructed her to move on. Counsel for Appellant asked Amerson` one
more question before finishing. Appellant asserts on appeal that the trial court
abused its discretion by limiting appropriate mitigation evidence.

KRS 532.025(2)(b) provides that the defendant may introduce evidence in
mitigation or in support of leniency during the penalty phase. Mitigation
evidence is generally viewed as evidence “bearing on the defendant’s character,
prior record or circumstances of the offense, or relative to one of the specified

”

statutory mitigating circumstances See Jacobs v. Commonwealth, 870
S.W.2d 412, 419 (Ky. 1994), overruled on other grounds; St. Clair, 319 S.W.3d
300, 314-315. Citing Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986),
Appellant contends that testimony related to his institutional behavior, despite
being after Parson’s death and his first trial, was relevant mitigating evidence
and should not have been limited.

During the bench conference that followed, Appellant’s counsel argued
that Amerson’s observation of Appellant’s interaction with his mother and his
personal knowledge of Appellant was evidence of Appellant’s current character.
Amerson’s testimony prior to the bench conference can be fairly described as
fulfilling that evidentiary role, and the testimony was not stricken. Since no
proffer of evidence was made, We cannot judge the admissibility of any

additional testimony Amerson may have had to offer. Appellant does not show

how he was prejudiced (if indeed he Was] by the trial court’s directive to “move

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on” to another line of questioning or another witness We are satisfied that the

trial court acted within its sound discretion.

IV._ THE TRIAL COURT DID NOT ERR BY PERMITTING THE `
COMMONWEALTH TO USE GUILT-PHASE PHYSICAL EVIDENCE DURING
~ ITS CLOSING ARGUMENT.

During the closing arguments of the penalty-phase retrial, and -over
Appellant’s objection, the trial court permitted the Commonwealth to show the
jury certain items of evidence that had been introduced as exhibits in the guilt
phase of the first trial: specifically, Parson’s dentures and car keys, which had
been found on Appellant when he was arrested. The discovery of both items
was noted in the stipulated summary of guilt-phase evidence. _

Appellant contends that it was fundamentally unfair for the
Commonwealth" to display these items to the jury without giving Appellant’s
counsel advance notice, thus leaving Appellant no reasonable opportunity to
respond to the demonstration. Appellant asserts that the physical evidence
focused the jury’s attention on the manslaughter and tampering convictions
rather than the kidnapping for Which he was to be sentenced.

Generally, any evidence introduced at trial may be the subject of fair
comment during closing argument Slaughter v. Commonwealth, 744 S.W.2d
407, 412 (Ky. 1987). “Once introduced, however, such evidence may be the
subject of fair comment during closing argument.” Hodge v. Commonwealth 17
S.W.3d 824, 853 (Ky. 2000). We do not require advance notice of what items of
physical evidence will be exhibited during closing arguments This principle

does not change for a retrial of the penalty phase.

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Subject to the discretion of the trial court, an item mentioned but not
formally introduced during the trial may be displayed to the jury during closing
arguments Edwards v. Whitley City Sales, 246 S.W.2d 1018, 1020 (Ky. 1952)
(No error occurred when “counsel exhibited to the jury a booklet about which
he had previously interrogated the appellant but which had not been officially
introduced in evidence.”] We see no error in the Commonwealth’s penalty-
phase use of the items, and no abuse of discretion in the trial court’s ruling in

the matter.

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Daviess_ Circuit
Court sentencing Appellant to life imprisonment for the kidnapping of James
Parson.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Margaret Anne Ivie
Assistant Public Advocate
Department of Public Advocacy

Kelsey Roth

Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Matthew Robert Krygiel
Assistant Attorney General

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