         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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                                                         RENDERED: MAY 5, 2016
                                                           NOT TO BE PUBLISHED

                   uprrmr Court of Tfitufurkv
                               2015-SC-000170-MR


RAY HACKER                                                               APPELLANT


                 ON APPEAL FROM JACKSON CIRCUIT COURT
V.                 HONORABLE OSCAR G. HOUSE, JUDGE
                            NO. 10-CR-00036


COMMONWEALTH OF KENTUCKY                                                  APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

      Ray Hacker appeals as a matter of right from the Jackson Circuit Court's

judgment sentencing him to a 50-year prison term for the murder of his

girlfriend, Gerilyn Walerski. Hacker's case reaches this Court for the second

time after our prior reversal due to evidentiary errors in the first trial. In this

appeal, Hacker argues that the trial court erred when it admitted into evidence

the testimony of two witnesses from the first trial. According to Hacker,

admission of this testimony impeded his ability to cross-examine those

witnesses regarding his new theory of defense. Hacker also argues that the

witnesses' testimony unduly prejudiced him because it revealed to the jury that

Hacker had already been tried. For the following reasons, we affirm.

                                 I. BACKGROUND

      This case originally went to trial on February 14, 2012. Following trial,

the jury convicted Hacker of murder, and he appealed to this Court as a matter
of right. This Court reversed and remanded for a new trial because the trial

court had erroneously permitted the Commonwealth to introduce into evidence

a police report regarding a prior incident of domestic violence involving Hacker

and Walerski. Hacker v. Commonwealth, No. '2012-SC-000269-MR, 2014 WL

1664232 (Ky. 2014). In our previous opinion, we set forth the following

relevant facts:

       Having recently relocated from Florida, Ray Hacker and girlfriend
       Gerilyn Walerski shared a rented room in the home of Jackson
       County, Kentucky resident Raymond Crouch.' On June 13,
       Crouch's stepdaughter Connie Worthington, who was visiting
       Crouch at the time, witnessed Hacker and Walerski drinking and
       bickering throughout the day. That afternoon, Crouch and
       Worthington watched Hacker enter the living room, retrieve a rifle
       from behind a flag-stand, and head toward the bedroom that he
       shared with Walerski. After hearing what Worthington described as
       the sound of a B.B. gun firing, Crouch confronted Hacker, who
       stated that "there was only one [bullet] in the gun and it's in the
       back of her head." Hacker then began to suffer a seizure and left
       the residence, but remained on the front porch until the police
       arrived. First responders found Walerski lying on the floor having
       suffered a fatal gunshot wound to the head.

Id. at *1.

       During the first trial, Hacker's theory of defense was that the shooting

was accidental. In support of that theory, Hacker testified that he heard a

scream coming from the bathroom and, when he opened the bathroom door, he

found Walerski pointing the rifle at her own head. According to Hacker, he and

Walerski struggled for control of the rifle and, during the struggle, it

accidentally discharged, killing Walerski. During the second trial, Hacker


       I This Court's original opinion incorrectly referred to Raymond Crouch as
"Raymond Couch." We now correctly refer to him as "Crouch" throughout the
previous opinion's summary of the facts.

                                           2
planned to use a new and alternative theory of defense - that he shot Walerski

while under the influence of extreme emotional disturbance.

        At a pretrial conference, the Commonwealth stated that it intended to

use video recordings from the first trial of the testimony of Savannah Gibson 2

                                                                                      andRymoCruch.BeasGibonwaslborndCuchadie,t

court deemed that neither was available. The court asked Hacker if he wanted

to continue the trial until Gibson could be available, but he declined the court's

offer, stating that he did not object to the admission of Gibson's testimony.

However, Hacker objected to the admission of Crouch's testimony arguing that

he would not be able to cross-examine Crouch based on his new theory of

defense. The court overruled Hacker's objection and permitted the

Commonwealth to play video of the testimony of Gibson and Crouch from the

first trial.

            In support of his new theory of defense, Hacker provided evidence that:

he and Walerski had been consuming alcohol and pills throughout the day; he

and Walerski constantly argued and were arguing that day; Walerski was often

the instigator of such arguments; and during their argument that day Walerski

accused him of being responsible for the death of his son. 3 The jury was not



       Hacker's brief refers to Gibson's first name as "Savannah" while the
        2
Commonwealth's brief refers to her as "Savannie." We choose to refer to her as
"Savannah."
        3The record is unclear regarding the exact details of Hacker's son's death. At
trial, Crouch's and Worthington's testimony made reference to an automobile accident
which apparently resulted in the death of Hacker's son. The only relevance this has is
Walerski's alleged badgering of Hacker regarding this incident, which Hacker presents
as evidence in support of his claim of extreme emotional disturbance.

                                            3
swayed by Hacker's extreme emotional disturbance defense, and it convicted

him of murder and recommended a sentence of 50 years' imprisonment. This

appeal followed.

                             H. STANDARD OF REVIEW

         The issues raised by Hacker have different standards of review.

Therefore, we set forth the appropriate standard of review as we address each

issue.

                                    III. ANALYSIS

         At the outset of our analysis we reiterate that Hacker raises two issues

with regard to the testimony of Gibson and Crouch. According to Hacker,

playing the video of their prior testimony: (1) impeded his ability to cross-

examine them; and (2) unduly prejudiced him by revealing that he had been

previously tried. Hacker's arguments do not differentiate between Gibson's and

Crouch's testimony. However, as set forth below, they must be analyzed

separately, in part because Hacker did not properly preserve the first issue as

to both, and he did not properly preserve the second issue as to either.

A. Admission of Gibson's Testimony Did Not Impermissibly Impede
     Hacker's Ability to Cross-Examine Her.

         Hacker did not object to the admission of Gibson's testimony before or at

trial, stating that he would rather proceed with trial than seek a continuance

until Gibson could be present and subject to cross-examination. This issue is

therefore unpreserved. Kentucky Rule of Criminal Procedure (RCr) 10.26

allows review of an unpreserved error; however, relief will only be granted if the

error affects the substantial rights of the appellant. An error affects the
                                           4
substantial rights of the appellant if it seriously affects the fairness, integrity,

or public reputation of judicial proceedings.    Commonwealth v. Rodefer, 189

S.W.3d 550, 553 (Ky. 2006). To determine if an error is palpable, "an appellate

court must consider whether on the whole case there is a substantial

possibility that the result would have been any different."        Commonwealth v.

McIntosh, 646 S.W.2d 43, 45 (Ky. 1983). To be palpable, an error must be

"easily perceptible, plain, obvious and readily noticeable."       Burns v. Level, 957

S.W.2d 218, 222 (Ky. 1997) (citing Black's Law Dictionary (6th ed. 1995)). A

palpable error must be so grave that, if uncorrected, it would seriously affect

the fairness of the proceedings.   Ernst v. Commonwealth, 160 S.W.3d 744, 758

(Ky. 2005). Admission of Gibson's testimony does not meet this standard for

the following reasons.

      Testimony from an unavailable witness is not excluded if the testimony

was given by "a witness at another hearing of the same or a different

proceeding . . . if the party against whom the testimony is now offered . . . had

an opportunity and similar motive to develop the testimony by direct, cross, or

redirect examination." Kentucky Rule of Evidence (KRE) 804(b)(1). "[B]efore a

witness's prior testimony can be introduced against a defendant at trial, (1) the

prosecution must demonstrate that the witness is `unavailable;' and (2) once

the witness is deemed 'unavailable,' the witness's prior statements are

admissible only if they bear adequate `indicia of reliability."'    Lovett v.

Commonwealth, 103 S.W.3d 72, 82-83 (Ky. 2003) (citing Ohio v. Roberts, 65

Led.2d 597 (1980)). Hacker does not contest that Gibson was unavailable or
the reliability of her testimony. As noted above, he objects because he believes

admission of Gibson's testimony impeded his ability to cross-examine her

regarding his extreme emotional disturbance defense.

      During the first trial, Gibson testified that she did not live with Crouch,

Hacker, or Walerski. But she knew Hacker and Walerski would sometimes

argue. The day Walerski was killed, Gibson was at Crouch's house helping

Worthington care for her grandson. Gibson did not see Hacker and Walerski

arguing that day; did not even realize they were in the house until she heard

the gunshot; and did not interact with Hacker that day after Walerski's death.

Although he argues that he would have cross-examined Gibson differently at

the second trial, Hacker does not specify what he would have asked Gibson or

how his cross-examination would have differed. Furthermore, in light of

Gibson's lack of interaction with Hacker that day, we do not see how she could

have given any different testimony that would have supported his extreme

emotional disturbance defense. For these reasons, admission of Gibson's

testimony did not impermissibly impede Hacker's right to cross-examination.

B.    The Trial Court Did Not Abuse Its Discretion When It Admitted
      Raymond Crouch's Testimony Into Evidence.

      Hacker objected to the admission of Crouch's testimony during a pretrial

conference, and the issue is therefore properly preserved. We review the

court's admission of Crouch's testimony for abuse of discretion.    Clark v.

Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). "The test for abuse of

discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles."   Woodard v. Commonwealth,

147 S.W.3d 63, 67 (Ky. 2004).

      As stated above, admission of testimony from a prior trial is generally

permissible so long as the defendant was represented by counsel who was able

to cross-examine the witness at the time the testimony was given. KRE

804(b)(1). However, as with Gibson's testimony, Hacker does not argue that

admission of Crouch's testimony violated this rule. He argues that the change

in the defense's theory in the second trial rendered the prior cross-examination

inadequate to comply with the Confrontation Clause. Hacker cites no case law

supporting his claim that a change in defense theory between trials renders

prior cross-examination inadequate. Furthermore, as with Gibson, Hacker

does not specify how he would have changed his cross-examination of Crouch

had Crouch been available to testify.

      During the first trial, Crouch testified on cross-examination that: Hacker

and Walerski argued all the time; he never heard Hacker threaten Walerski but

heard Walerski threaten Hacker on multiple occasions; he had never seen

Hacker hit Walerski but had seen Walerski hit Hacker; both Hacker and

Walerski drank a great deal every day and Walerski was "nuts" when she

drank; Hacker and Walerski were fighting and drinking the day Walerski was

shot; and Hacker had a seizure after Walerski was shot. These facts support

Hacker's extreme emotional disturbance theory of defense in his second trial

and he has not stated what other facts he would have or could have learned

through a second cross-examination of Crouch. Since Hacker has been unable


                                        7
to show how his inability to cross-examine Crouch at the second trial would

have had any impact on the outcome, we hold that the trial court did not abuse

its discretion by admitting Crouch's testimony from the first trial.

      Furthermore, even if Crouch's unavailability did prejudice Hacker, he

was not deprived of the ability to present his defense. Worthington, who

testified live at both trials, testified that Hacker and Walerski argued frequently

and that Walerski was always the instigator of these arguments. When asked

to describe the types of arguments that Hacker and Walerski would have,

Worthington testified that: Walerski hated living in Kentucky and always

blamed Hacker for making her move from Florida; Walerski blamed Hacker for

wrecking his car; Walerski blamed Hacker for the death of his son; she had

seen Walerski hit Hacker but had never seen HaCker hit Walerski; Hacker and

Walerski were always drinking; and Walerski was "a pure bitch," "obnoxious,"

and "embarrassing." As to the day of the murder, Worthington testified that

Hacker and Walerski were arguing and during this argument Walerski again

accused Hacker of causing his son's death, to which Hacker responded "shut

your F-ing mouth," which was the loudest Worthington had heard Hacker yell

that day. This testimony by Worthington supported Hacker's extreme

emotional disturbance defense.

C. The Trial Court Did Not Err When It Allowed Testimony That
     Indicated Another Trial Previously Took Place.

      Hacker did not raise this issue at trial. The issue is therefore

unpreserved, and we review it for palpable error. RCr 10.26.



                                         8
      Hacker claims that Crouch's and Gibson's testimony from the first trial

informed the jury that a previous trial had taken place and thus improperly

prejudiced him before the jury in the second trial. Hacker cites to no rule of

evidence or case law to support this claim nor does he indicate how the jury's

knowledge that a previous trial took place prejudiced him. Furthermore, KRE

804(b)(1) permits witness testimony from a previous trial to be admitted under

circumstances such as these. The rule does not state that the jury in a

subsequent trial must be shielded from all knowledge of the prior trial,

implying that such knowledge is not unduly prejudicial. In fact, under our

current system of court reporting, i.e. recorded video, it would be nearly

impossible to shield the jury from knowing about a prior trial while admitting

video testimony from that trial. Finally, although we discern no error, even if

there was error, Hacker has failed to show how it prejudiced him in such a way

as to constitute manifest injustice.

                                IV. CONCLUSION

      For the reasons stated herein, we affirm.

      Minton, C.J., Cunningham, Keller and Venters, JJ., concur. Hughes, J.,

concurs in result only by separate opinion in which Noble and Wright, JJ., join.

      HUGHES, J., CONCURRING IN RESULT ONLY: I respectfully concur in

result only. I write separately to address the Court's review of Hacker's claims

regarding his inability to cross-examine Savannah Gibson during trial. At a

pretrial conference, Hacker was alerted by the Commonwealth that it intended

to use a video recording of Gibson's testimony from Hacker's first trial. Gibson,


                                        9
pregnant at the time of the second trial, was unavailable to testify due to her

being in active labor. The trial court expressly inquired of Hacker if he wished

to continue the trial until Gibson was available, but Hacker declined the offer,

preferring to proceed to trial. In addition, Hacker did not raise an objection to

the trial court's designating Gibson as unavailable nor to the jury's review of

Gibson's recorded testimony.

      By declining to ask the trial court to continue the trial and instead

affirmatively requesting that the trial proceed, Hacker's appellate claims

regarding his inability to cross-examine Gibson were not merely unpreserved,

they were invited. "Generally, a party is estopped from asserting an invited

error on appeal." Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011)

(citing Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). Unlike forfeited

errors which are reviewed for palpable error, this Court has recognized that

invited errors constitute a waiver and are not subject to appellate review.   Id. at

38. As such, Hacker's claims regarding his inability to cross-examine Gibson

are waived and should not be reviewed by this Court for palpable error. In

sum, while I believe that Hacker's alleged errors were properly rejected by this

Court, I disagree with the rationale employed by the Court in doing so as to

Gibson's recorded testimony.

      Noble and Wright, JJ., join.




                                        10
COUNSEL FOR APPELLANT:

Samuel N. Potter
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General

Julie Scott Jernigan
Assistant Attorney General




                                11
