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CHICO DUWAN RUCKER \ APPELLANT_

 

 

 

 

 

 

oN APPEAL FROM FAYETTE cIRcUIT CoURT
v. HONORABLE JAMEs D. IsHMAEL, JR., JUDGE
' No. 14-cR-01178

COM-MONWEALTH OF KENTUCKY l APPELLEE

OPINION OF THE CQURT BY JUSTl.CE HUGHES
REvERsING AND 1215:1\¢11\1\1'1)11¥¢3¢l
Appellant, Chico Duwan Rucker, appeals as a matter of right from a _
judgment of the Fayette Circuit Court sentencing him to twenty years’
imprisonment for second-degree manslaughter, tampering With physical
evidence, and fraudulent use of a credit card over $500. Rucl<er alleges the
trial court erred in four ways: l) by permitting the introduction of sexually
explicit communications he made after the victim’s 'death; 2) by authorizing the
admission of sexually explicit communications he made before the victim’s
death; 3) by allowing the Commonwealth to introduce hearsay testimony; and
4) by permitting the Commonwealth to show photographs and a video
recording depicting the victim’s body. Due to the improper admission of
Rucker’s sexually explicit communications made after the yictim’s death, we

reverse his conviction and remand this case to the trial court for a new trial.

I\'"l¢LVCTUA_LL AHD PROCEDURAL BACKGROUND

During the evening of June 28, 20.13, Elma Farris discovered another
woman’s phone number in Rucker’s cellular phone. Fariis, who was in a
romantic relationship with Rucker, became upset and began to attack Rucker
while he was asleep in bed. According to Rucker, he pushed Farris away from
him, causing her to fall to the floor and hit her head. Afterwards, Rucker
gathered some his belongings together and took a cab to spend the evening at
an inn. d

The following day, Rucker returned to Farris’s apartment and discovered
her body. Fearful of notifying the authorities, Rucker wrapped Farris’s body in
a shower curtain and disposed of it by placing it in a nearby dumpster. v
Afterwards, Rucker intermittently occupied Farris’s apartment and used her
debit card to make purchases and cash withdrawals

A body was°located a week later due to_ complaints of a foul odor. After
- Farris’s relatives notified the authorities that she had been missing for several
days, the body Was identified as that of Farris. At the same time, police
learned that Rucker and Farris had been romantically involved and living n
-together.

On the same day that police discovered Farris’s body, Rucker was
arrested on unrelated traffic warrants. When searched Rucker was found with
personal property belonging to Farris, including her cellular phone and debit
card. Upon questioning by police, Rucker initially denied laiowledge Of Farris’S

disappearance, but he ultimately informed the police about their struggle and

2

his subsequent flight from the apartment Rucker maintained that Farri_s’s
death .Was an accident and that he was unaware of her death until his return
to the apartment-the next day. '
Rucker was indicted by the Fayette County grand jury for second-degree

manslaughter, tampering with physical evidence, and fraudulent use of a credit
card under $500.1 After a jury trial`, he was found guilty of all charges._ The_
jury recommended ten years’ imprisonment for second-degree manslaughter
and five years’ imprisonment for tampering with physical evidence and
fraudulent use of a credit card 0veru$500. The jury recommended that thosel
sentences be served consecutively for a total sentence of twenty years’ .
imprisonment, and the trial court sentenced Rucker accordingly. Rucker
brings this appeal as a matter of right.

. ANALYSIS '

I. The Trial Court Abused Its Discretion by Permitting the Admission of
Irrelevant and Unduly Prejudicial Prior-Bad-Acts Evidence. y

Rucker argues that reversible error occurred when the trial court allowed
the Commonwealth to introduce Sexually explicit social media exchanges he

had With other women after -Farris’s death.2 We are compelled to agree.

 

1 Later, the Commonwealth obtained a superseding indictment charging Rucker
with second-degree manslaughter, tampering with physical evidence, and fraudulent
use of a credit card over $500.

l 2 Rucker also contends that the admission of` this evidence violated his rights

under the Fourteenth Amendment to the United States Constitution and Sections Two
and Eleven of the Kentucky Constitution.

In Rucker’s opening statement, he explained the process through which
he discovered Farris’S body. According to Rucker, when he arrived back at the
apartment he discovered Farris’s body and believed her to be asleep, but
quickly realized that she was stiff, had nonpulse, and was cold‘. Consequently,
Rucker was “scared to death,” and did not know what to do. When trial
resumed the following morning, the Commonwealth sought to introduce in its
case-in-chief sexually explicit communications involving Rucker. These '
sexually explicit images and conversations were exchanged through the use of
Facebook--a social media platform. lhe conversations at issue covered a ten-
day period beginning on June 28, 2013, the day of Farris’s death, and lasting
until July 7, 2013. The Commonwealth’s theory of the case was that Rucker
killed Farris on June 28 and that he returned to the apartment the following
evening.

T_he Commonwealth argued that Rucker had opened the door to the
admission of this evidence in his opening statement, and that it went to his -
state of mind. Rucker objected to the introduction of this evidence, claiming
that the messages Were irrelevant, unduly prejudicial, and improper_character
evidence under Kentucky Rule of Evidence (KRE) 4.04(b). The trial court
'. permitted the introduction of this evidence, agreeing With the Commonwealth
that the messages went to Rucker’s state of mind and that they were not
covered by KRE 404(b). d

d Subsequently, during the Commonwealth’s case-in-chi_ef, Detective Joe

Sission, read portions of the Facebook messages sent by Rucker after Farris’s

4

death to the jury. lt took Detective Sission approximately nineteen minutes to
read these exchanges He also showed the jury two explicit photographs that
Rucker sent With the messages

Contrary to the trial court’s ruling, Rucker’s Facebook messages were
prior-bad-acts evidence and therefore subject to analysis under KRE 404(b).
The relevant portion of KRE 404(b)- states as follows',

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. lt may, however, be admissible:

(l) If offered for some other purpose, such as- proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident;
While KRE 404(b](l) offers some examples of other purposes, “it states the
‘other purpose’ provision in a way that leaves no doubt that the specifically
listed purposes are illustrative rather than exhaustive.” Tamme v.
Commonwealth, 973 S.W.2d 13, 29 (Ky. 1998), as modified on denial of
rehearing (Mar. 19, 1998) (quoting Lawson, THE KENTUCKY EVIDENCE LAW
HANDBOOK § 2.25 at 161` (3rd ed. 1993)). Courts must Weigh the admission of
KRE 404(b] evidence carefully so as to avoid the admission of character
evidence that “is said to weigh too much with the jury and to so overpersuade
them as to prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge.” Michelson v. United States,
335 U.S. 469, 476, 69 S. Ct. 213, 218 (1948]. See also United States v. Vance,

871 F.2d 572 (6th Cir. 1989) (“By limiting the admission of bad_acts evidence,

[Federal Rule of Evidence (-FRE)] Rule 404(b) therefore helps secure the

5

presumption of innocence and its corollary ‘that a defendant must be tried for
what he did, not for who he is.”’ (quoting United States v. Myers, 550 F.2d
1036, 1_.044 (5th Cir. 1977), cert denied, 439 U.S. 847, 99 S. Ct. 147 (1978])).

In the case at bar, the trial court concludedhthat Rucker’s Facebook
messages did not fall under KRE 404(b), as this conduct was not a crime or a
Wrong. However, this evidence is covered by KRE 404(b) as Rucker’s conduct
unquestionably constituted an “act.”3 “KRE 404(b) is not limited to other acts
that are criminal or unlawful, but applies to any acts offered to prove character
in order to show action in conformity therewith.” n Dcwis v. Commonwealth, 147 -
S.W.3d 709, 723 (Ky. ‘2004] (citing Lawson, THE`KENTUCKY EvIDENcE LAW
I-IANDBOOK, § 2.25[2] at 125 (4th ed. 2003)). Mor`eover, KRE 404(b) also applies n
to acts that are committed after the charged offense. See, ~e.g., United States v.
Lighty, 616 F.3d 321, 352, n.33 (4th Cir. 2010) (“no distinction between ‘prior’,
bad acts and ‘subsequent’ bad acts for purposes of Rule 404(b)”).'

On appeal, the Commonwealth contends that 404(b) does not apply to
the admission of Rucker’s communications as KRE 404(b) “proscribes’the
introduction of evidence tending to prove a particular character trait ‘in order
to show action in conformity therewith.’ Evidence of immorality would not tend
to prove a propensity or predisposition to commit homicide.” This

interpretation of what constitutes KRE 404(b) evidence is too narrow and would

 

3 BLACK'SLAWDICTIONARY (10th ed. 2014] contains multiple definitions for “act,”
but the one most pertinent to this discussion is “[s]omething done or performed, esp.
voluntarily; a deed.”

permit the Commonwealth to obtain a conviction based on the low character of
. the defendant See_ United States v. Dunn, 805 F.2d 1275, 1280 (6th Cir. 1986)l
(Evidence of crimes allegedly committed by the defendant, must “be subjected
to [E`RE] Rule 404(b) inquiry in order to ensure that it is not used to show that,
on the occasion in question, the accused ‘acted in conformity therewith,’ or to
show the defendant’s bad character or criminal propensity.”),' See also Meece v.
Commonwealth, 348 S.W.3d 627, 664 (Ky. 2011) (Admission of testimony in
Commonwealth’s case-in-chief in homicide case which established defendant’s
talent for lying was error as it was “a preemptive attack on [defendant’s]
credibility,” and _“it reflect[ed] upon a trait of character within the confines of
KRE 4o4(b)).

It is clear that the Commonwealth’s purpose in showing the jury these
Facebook conversations, which included sexually explicit photos of Rucker,
‘ was simply to demonstrate that he is a contemptible person of low character.
Further, by showing that Rucker engaged in explicit sexual conversations with
multiple women, immediately after the death of his girlfriend, the
Commonwealth preemptiver sought to undermine any suggestion that Rucker
genuinely cared about Farris. These “bad acts” were plainly subject to analysis
under KRs 404(b).'

“To determine whether evidence of prior bad acts is admissible, we must
decide if the evidence is relevant ‘f`or some purpose other than to prove the
criminal disposition of the accused[,] probative as to the actual commission of

the prior bad act, and not overly piejudicial under KRE 403.’” Kerr v.

7

commonwealth 400 s.W.sd 250, 260 (Ky. 2013) (quoting Meece, 348 s.W.3d at
662); (citing King v. Commonwealth, 276 S.W.3d 270, 275 (Ky. 2009)). We
review the KRE 403 “`evidence in the light most favorable to its proponent,
giving the evidence its maximum reasonable probative force and its minimum
reasonable prejudicial value.” Major v. Commonwealth, 177 S.W.3d 7 00, 707
(Ky. 2005) (citing Turpin v_. Kassulke, 26 F.'3d 1392, 1400 (6th Cir. 1994)).

The standard .of` review for a trial court’s evidentiary ruling is abuse of
discretion. Meskimen v. Commonwealth2 435 S.W.3d 526, 534 (Ky. 2013)
(eiting_Anders-on v. com_monivealth, 231 s.w.sd 117_,`1 19 (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~.
Commonwealth v. English, 993 S.W.2d 94_1, 945 (Ky. 1999).

In the case at bar, the Commonwealth argued that the messages and
images Rucker sent after Far.ris’s death were appropriately admitted as they
f went to Rucker’s state of mind. ’1`his argument is meritless as Rucker’s
sexually explicit communications to various women were not probative of his
l state of mind regarding crimes that had already been committed against his
former girlfriend. Cf. Sherro_an v. Commonwealth, 142 S.W.3d 7, 18-19 (Ky.l
2004) (Threat to kill third party, made hours before defendant committed
multiple murders, was admissible under KRE 404(b) as it went to defendant’s

state of mind.). Nor did any of Rucker’s messages pertain in any way to the

crimes with which he was charged. Accordingly, the messages and images sent
by Rucker after Farris’s death had no relevancy.4 h

However, even if we were to agree with the Commonwealth that this
evidence went to -Rucker’s state of mind, it should not have been admitted
under KRE 403. The probative value of this evidence, was grossly outweighed
' by the prejudicial effect of the evidence, which painted Rucker in a bad light by
establishing that he was a callous ph-ilanderer. Accordingly, the trial court
abused its discretion in permitting the admission of this evidence.

Additionally, later in the trial the Commonwealth was permitted to play
two sexually graphic audio recordings involving Rucker. This occurred during
the Commonwealth’s cross-examination of Rucker when he was asked about
charges that he made to Farris’s credit card after her death. Rucker responded
that he had used the credit card to pay fees to certain adult sites. The

Commonwealth argued that this was a false claim and that he was instead

 

4 The Commonwealth also argues that Rucker opened the door to this evidence
by putting his mental state at issue during opening statement “Generally stated,
‘opening the door’ to otherwise inadmissible evidence is a form of waiver that happens
when one party's use of inadmissible evidence justifies the opposing party!s rebuttal of
that evidence with equally inadmissible proof.” Commonwealth v. Stone, 291 S.W.3d
696, 701-02 (Ky. 2009] (citing Purcell v. Commonwealth, 149 S.W.3d 382, 399 (Ky.
2004]]-. While evidence of conversations occurring prior to Farris’s death, would be
relevant to Rucker’s state of mind at the time he committed the offense, messages
written after Rucker killed Farris and disposed of her body are generally irrelevant to
his state of mind. We also note that post-murder messages could in some
circumstances be relevant, but given the content of the messages Rucker sent that is
plainly not the case here. As such, the Commonwealth was not entitled under the '
guise of responding to Rucker’s opening the door to his mental state, to introduce
irrelevant and prejudicial evidence created long after the commission of the offense.
While Rucker opened the door to his mental state he did “not open the door to the
storm of evidence that followed.” Pur.'cell, 149 S.W.3d at 399 (quoting Sanbom v.
Commonwealth, 754 S.W.2d 534, 548 (Ky. 1988)).

9

using the card to engage in phone sex. The trial court accepted this argument
and permitted the Commonwealth to play the recordings to impeach Rucker’s
testimony, However, it is not clear that Rucker made a false claim. A`s he
explained in his testimony, Rucker used the card to purchase access to a
website which would allow him to create a profile outlining his sexual desires.
Subsequently, women would respond to his profile and then Rucker would call
those interested women and leave sexually explicit messages Rucker testified
that he purchased sixty minutes’ worth of time to make these calls. Based on
this testimony, it is not clear that Rucker lied, warranting impeachment on this
issue. However, even assuming that Rucker misstated how he used Farris’s
‘ credit card, the trial court went too far in permitting the Commonwealth to
__rebut that claim. lt would be one thing for the Commonwealth to impeach
Rucker or introduce records showing that he used this sexual service. This'
could logically be done for the purpose of showing Rucker’s improper use of
Farris’s credit card. However, playing recordings where Rucker details sexual
acts, served no legitimate purpose, and was just a further effort o`n the part of
the Commonwealth to paint Rucker as a sexual deviant. Accordingly, the trial
court abused its discretion by permitting the admission of these recordings
“A non-constitutional evidentiary error may be deemed harmless, the
United States Supreme Court has explained, 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.3d 678, 688-89 (Ky. 2009) (citing

Kotteakos v. United States, 328 U.S. 750, 66 S. 'Ct.~ 1239 (1946)). The key

`lO

'~
inquiry is “whether the error itself had substantial influence [on the result]. lf

so, or if one is left in grave doubt, the conviction cannot stand.” Id. (quoting
Kotteakos, 328 U.S. at 765). Here, the Facebook messages, images, and
sexually graphic audio recordings were unnecessary to establish the
Commonwealth’s case, but this evidence carried with it an overwhelming
potential for prejudice. That Rucker received the maximum twenty-year
sentence from the jury suggests at a minimum that this error contributed to
the final result. As such, we cannot conclude that the erroneous admission of d
this evidence was harmless error. l /
We are compelled to' observe that this outcome is lamentable given the
overall strength of the evidence against Rucker. The admission of this post-
death evidence was absolutely unnecessary to secure what should have been a
relatively obvious conviction. However, the Commonwealth’s overzealousness
-in pursuing the admission of this evidence, and the trial court’s error in
admitting same, resulted in a fundamentally flawed proceeding, which
necessitates reversal. Having reversed, we will examine Rucker’s additional
claims of error that are likely to recur upon retrial. Major, 177 S.W.3d at 704
. (citing springer o. commonwealth 993 s.W.2d 439, 445 (Ky. 1999)).
II. The Trial Court Did Not Abuse its Discretion in Admitting Sexually
Explicit Exchange`s Between Rucker and Other Women that Occurred
Before Farris’s Death.

Rucker also contends that admission of Facebook messages he wrote to

other women prior to Farris’s death was improper. We disagree.

11

When a defendant elects to testify at trial, “he subjects himself to that
character of examination that can be made of any other witness; and his -
inclination to tell the truth, or to swear falsely,'may be shown by the
commonwealth.in the usual mode of impeaching the general character of a
witness for truth and veracity.” Scott v. Commonwealth 685 S.W.2d 184, 186
(Ky. 1984) (quoting McDor_zald v. Commonwealth, 4 S-.W. 687, 688 (Ky. 1887)).
As such, by claiming that Farris had no reason to be upset with him as he was
not being unfaithful to her, Rucker opened the door to the Commonwealth
exploring the veracity of his claims and impeaching his credibility. In short, on
those facts there was no error in the admission of Rucker’s statements made
prior to Farris’s death. d

III. The Trial Court .Did Not Abuse Its Discretion in Admitting Hearsay
Testimony. v `

Rucker argues that the trial court erred by permitting the
Commonwealth to introduce inadmissible hearsay testimony from Farris’s
cousin, Shalia Ferguson. In response to the Commonwealth’s questioning
regarding Farris’s relationship with Rucker, Ferguson responded-, “She was
getting tired of taking care of him . . . she said that she gave him an ultimatum
to leave. He Was to either find a job by July lst or leave ._ . . . She was giving
him a month to find a job.” The trial court determined that Ferguson’s hearsay
testimony'was admissible pursuant to the state-of-mind exception found in
KRE 803(3). We review the trial court’s admission of this evidence under an

abuse of discretion standard. Meskimen, 435 S.W.3d at 534.

1 2

Whether an out-of-court statement qualifies as an exception to the bar
against hearsay depends_on the circumstances of each case, and the trial
court’s ruling will not be disturbed unless clearly erroneous. Noel v.
Commonwealth 76 S.W.3d 923, 926 (Ky. 2002) (citations omitted). KRE 803(3)
' allows hearsay testimony if it demonstrates “the declarant’s then existing state
of mind,- emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health).” Rucker argues that
Ferguson’s testimony concerned past facts, and did not indicate Farris’ present
state of mind. He contends the requirements of KRE 803(3) were not met since
Ferguson’s testimony concerned an ultimatum that Farris had already relayed
to Rucker. We disagree.-

The “crucial component of [KRE 803(3)] [i]s contemporaneity of the
declarant’s state of mind and the statement describing it,” and it “le[aves] no
room`for the use of a statement describing a state of mind that existed at some _.
earlier point in time.” Robert G. Lawson, THE KENTUCKY EvIDENcE LAW
HANDBOOK § 8.5[2][a] at 647-48 (5th ed. 2013]. Accordingly, the statement
cannot solely concern past information, but may instead “cast light upon []`
future intentions . . . .” aer o. commonwealth 160 s.w..sd 744, 75e (Ky.
2005] (citing Crowe v. Commonwealth, 38 S.W.3d 379, 383 (Ky. 2001)). This
Court explained the distinction between past versus present mental states in
Dillon v. Commonwealth 475 S.W.3d 1 (Ky. 2015).' The Court clarified that “the .
statement ‘I felt scared yesterday’ would not be admissible, but the statement 'I

feel scared now’ would be, if relevant to a given case.” Id. at 23.

13

While it is true that Farris’s statement concerned a past conversation she
had with Rucker,`it also demonstrated her then-present intentions concerning
a future event-she would leave Rucker by July 1 if he failed to obtain
employment S'ee Emst, 160 S.W.3d at 753 (KRE 803(3] permitted the
introduction of testimony that victim intended to evict appellant). Additionally,

this Court has consistently determined that a victim’s statement concerning
future plans to break off a relationship with the offender is admissible as state
of mind evidence. See, e.g., Dillon, 475 S.W.3d at 23 (victim’s statements to
daughter that she planned on leaving the appellant and moving to a different
state were admissible under KRE 803(3]); Crowe; 38 S.W.3d at 383 (Victim’s
statements to coworkers that she planned on filing for divorce from appellant
demonstrated her mental state). Allowing this type of evidence shows
estrangement and*-bad feelings between Farris and Rucker. Whether Farris did
in fact provide the ultimatum to Rucker is irrelevant Farris’s statement that
she planned on evicting Rucker gave the jury a testimonial picture of her state
of mind towards Rucker. l

Even though'Ferguson’s testimony falls within the scope of the state of
mind hearsay exception, it must also have relevancy to be admissible.. Blair v.
commonwealth 144 s.w.3<1l 801, 805 (Ky. 2004) (citing Broy o. commonwealth
68 S.W.3d 375, 381-82 (Ky. 2002)). Ferguson’s testimony was relevant
considering, on the night in question, Rucker was less than three days away
from the deadline of Farris’s ultimatum, and had yet to obtain employment

The case at bar is similar to Emst, in which a tenant murdered his landlord.

14

160 S.W.3d at 7 49. The victim’s daughter testified that her mother stated she -
was going to evict Ernst. Id. at 753. The Court allowed the daughter’s hearsay
statements pursuant to KRE 803(3) and found that the statements were
relevant “to prove the increasingly strained relations between [the victim and
Ernst] tending to show a motive for [] murder thus refuting -`[Ernst’s] claims that
[her] death was either of` internal origin (sudden collapse) or accidental
(unintentional strangulation).”- Id. at 754. This is exactly what we have here.
The state of mind of the victim is relevant to demonstrate the growing
animosity between her and Rucker. Farris’s statement to Ferguson was not
admitted for the truth of the statement-that she did in fact give Rucker an
ultimatum-but rather to establish Farris’s state of mind. There was no error

in the admission of Ferguson’s testimony.

IV. The Trial Court Did Not Abuse Its Discretion' m Admitting Photographs
and a Video Recording of Farris’ s Body.

Rucker’s final argument is that the trial court erred in permitting the
jury to view photographs and a video recording of Farris’s body.5 During the
trial, the jury viewed eleven pictures of Farris’s body as it was found at the
crime scene and during the autopsy. The Commonwealth also played a video
recording of the crime scene which-displayed the condition of Farris’s remains.
Rucker maintains that the photographs and video recording were too gruesome

for the jury to view, thereby evoking prejudiced He takes particular issue with '

 

5 Rucker contends that the admission of this evidence violated his rights under‘ l
the Fourteenth Amendment to the United States Constitution and Sections One, Two,
and El`even of the Kentucky Constitution.

15

the video recording’s depiction of flies on Farris’s body. The trial court’s
admission of this evidence is reviewed under an abuse of discretion lstandard.
Meskimen, 435 S.W.3d at 534.

In order to evaluate the admissibility of the photographs and video
‘recording, the Court must determine if the probative value of the evidence was
substantially outweighed by its prejudicial effect Adkins v. Commonwealth, 96
S.W.3d 779, 794 (Ky. 2003) (citing KRE 403) (“[P]hotographs that are probative
of the nature of the injuries inflicted are not excluded unless they are so
inflammatory that their probative value is substantially outweighed by their
prejudicial effect.”); see alsoFields v. Commonwealth 12 S.W.3d 275, 279 (Ky.
2000) (citing Bedell v. Commonwealth, 870 S.W.2d 779 (Ky. 1993); Milbum v.
Commonwealth 788 S.W.2d 253 (Ky. 1989) (“A videotape of a crime scene,
including the position of the victim’s body and the location of the victim’s
injuries, is just as admissible as a photograph, assuming a proper foundation
is laid.”).

ln the case at bar, both the photographs and video recording had
substantial probative value. In addition to depicting the location of the crime,
and Rucker’s attempt to conceal Farris’s body, the evidence also assisted the
jury in determining that Rucker caused injury to Farris that resulted in her
death. This conclusion was particularly difficult for‘the jury to deduce based
on Rucker’s denial of causing 'Farris a serious injury and the medical

examiner’s inability to pinpoint a cause of death.

16

\

By the time that the police were able to recover Farris’s body, it had
already become severely decomposed. The degree of decomposition was such
that the medical examiner was unable to identify a time of death, the victim’s
age, or race. While the medical examiner was not able to definitively state a
cause of death, she also was unable_to identify a natural disease or disorder
that would have caused Farris’s death. Based on her examination, the medical
examiner opined that blunt force trauma was not the cause of Farris’s death.
Additionally, the medical examiner was unable to say whether strangulation or
suffocation was the cause of Farris’s death, again due to the level of
decomposition. As such this photographic/ video evidence had extensive
probative value as it shed light on a material fact The Commonwealth was
entitled to provide the jury with evidence explaining the absence of a definitive
cause of death for Farris. Also, there was no other evidentiary alternative to
demonstrate the extent of the medical examiner’s difficulty.5 j

The Court acknowledges that both the photographs and video recording

likely perpetuated some prejudice. Farris’ body was bloated, discolored, and

 

6 In arguing that this evidence was improperly admitted`Rucker relies on Hall v.
Commonwealth 468 S.W. 814 (Ky. 2015). This Court reversed Hall’s conviction due to
the admission of twenty-eight crime scene photographs which were unduly prejudicial
and needlessly cumulative Id. at 827. The Court noted that the probative value of
many of the gruesome crime scene photos was quite low as “there was more than
enough alternative evidence-including the less gruesome photos, extensive lay and
expert witness testimony, and the crime scene video-to easily prove the same facts
beyond a reasonable doubt.” Id. at 825. However, Hall is distinguishable from the
case at bar. The photographs and video recording in this case were more probative
than prejudicial as they were necessary to explain why it was impossible to determine
Farris’s likely cause of` death. Nor was the admission of this evidence needlessly
cumulative

17

insects were present However, we have explained that as a general rule “a
photograph, otherwise admissible, does not become inadmissible simply
because it is gruesome and the crime is heinous.” =Funk v. Commonwealth, 842
S.W.2d 476, 479 (Ky. 1992) (citing Gall v. Commonwealth 607 S.W.2d 97 (Ky.
1980)).

Here, the photographs and video recording do not display a body that
has “been materially altered by mutilation, autopsy, decomposition or other
extraneous causes, not related to the commission of the crime . . . .” Clark v.
Commonwealth, 833 S.W. 2d 793, 794 (Ky. 1991-). Nor, were the depictions of
the victim’s body admitted solely to produce shock`and revulsion, as was the
case in Funk. 842 S.W.2d at 478. Rather, the evidence had extensive
probative value. Additionally, while disturbing, the photographs and video
recording of Farris’s body were not remarkany worse than any other highly
- probative images this Court has permitted into evidence. See, e.g. Ross v.
Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015) [permitting the introduction of
pictures showing the victim’s body which was “charred nearly beyond
recognition as a human corpse with the intestines protruding from his
abdomen . . . .”). Accordingly, the trial court did not abuse its discretion in
determining that the photographs’ and video recording’s probative value

substantially outweighed their prejudicial effect

coNcLosroN
The judgment and sentence are hereby reversed, and the matter is

remanded to the Fayette Circuit Court for a new trial.

18

`Minton-, C.J.; Venters and Wright, J.J., concur. Cunningham, J.,
dissents by separate opinion in which Keller and VanMeter, JJ., join.

CUNNINGHA'M, J., DISSENTING: I respectfully dissent from 'the
Majority’s opinion due to its application o`f KRE-404(b] and its finding of
reversible error. ' `

The Majority’s opinion today demonstrates an incorrect and Finconsistent d
use of the .KRE 404(b) exclusion.1 The crux of any 404(b) analysis centers on
the proffered evidence’s objective ,S'-ee, e.g,` Davis i). Commonwealth 147
S.W.3d 709, 723 (Ky. 2004). ln other words,\ what purpose is the evidence
being used for? In regards to the Faceboo`k messages which occurred
subsequent to Ms. Farris’ death,_ the Commonwealth made clear that it was
offering the evidence to challenge Rucker’s credibility. Such an objective, as
will be discussed, may be questionable Even so, the Commonwealth provided
_a reasonable argument that it was attempting to rebut the defense’s opening
statements portraying Rucker as a terrified and unknowing discoverer of Farris’
.body. Accordingly, I find it perplexing that the .Majority utilizes KRE 404(b), as
opposed to the other applicable Rules of Evidence, to find error.

As the Majority has already detailed, KRE 404(b) prohibits the
introduction `of “[e]vi'dence of other crimes, Wrongs, or acts”.used “to prove the
character of a person in order to show action in conformity therewith.” The
M-a_jority’s analysis fails to find the existence of the rule’s second requirement
for exclusion_that Rucker;s Facebook_messages'were offered to show action in

conformity therewith. Instead, the `Majority merely concludes that the' '

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introduction of Rucker’s Facebook messages violated KRE 404(b) because it
showed that “he is a contemptible person of low character.” ;For many reasons,
this is not the stanHard by which We invoke the 404(b) exclusion. Indeed, if the
' Court excluded all prior bad acts simply because they revealed the defendant’s
shameful character, lwe would have no need for the evidentiary rule. Such an
analysis is-more appropriate for the inevitable KRE 403 balancing test.

d For these reasons, the Court should utilize the correct analysis, which
investigates whether the Commonwealth’s introduction of Rucker’s messages
was an attempt to demonstrate that he was any more or any less likely to kill
Ms. Farris. In this regard, the Majority’s reasoning that Rucker’s appetite for .
sexual communications somehow demonstrates a criminal propensity for
manslaughter is unsound. The Commonwealth’s motive in introducing the
evidence was merely an attempt, however unnecessary, to impeach Rucker’s
credibility and defense. Thusly, I do not believe Rucker’s-Facebook messages
fell within the purview of 404(b)'. n

Nevertheless, I do agree that it was error for the trial court to admit

Rucker’s Facebook messages pursuant to KRE 401, 402, and 403. First,
l Rucker’s Facebook messages had little, if any, relevancy to the case at barr
Whether Rucker was scared upon discovering Ms. Farris’ body is not a fact of
consequence to the determination of the crimes charged. KRE 401. Moreover,
the need'to refute such a claim proves doubtful, as the statement that Rucker
was “scared to death” Was brief and occurred during opening statements In

addition, the evidence certainly induced prejudice as it. demonstrated that

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Rucker was more preoccupied with\satisfying his sexual desires than mourning
the loss of his girlfriend.

Despite the error, I disagree with the Majority that the admission of
Rucker’s Facebook messages rises to the level of reversible error. As explained
below, the jury was informed of Rucker’s relentless infidelity preceding Ms.
Farris’ death. The jury was also properly presented with evidence that he used
Ms. Farris’ debit card to purchase a phone sex service. The prejudice lQucker
endured from the introduction of his Facebook messages was likely negligible
considering the amount of other evidence demonstrating his preoccupation
With sexual communications Iri light of the overwhelming evidence of Rucker’s
guilt, including his admission to injuring Ms. Farris, the erroneously admitted
messages likely had no effect on the jury’s ultimate determination. See RCr
9.24_.

I also differ with the Majority’s conclusion that Rucker’s recorded
sexually explicit phone messages were both irrelevant and unduly prejudicial
Rucker testified that_Ms. Farris had provided him with a copy of her debit card
and stated that she allowed him to use it prior to her death. Rucker Was
essentially claiming that Ms. Farris had consented to his use of her debit card.
During cross-examination, the Commonwealth questioned Rucker about a
specific charge on Ms. Farris’ debit card which was incurred from the'use of a
1-800 number. Rucker acted clueless, claiming that he used her debit card for
“some things-l paid off, certain fees to social sites, personal sites, adult sites. I

Was paying off the fees for some of those. I believe that is probably included in

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one of those.”` In response, the Commonwealth introduced the recordings to
show that the charges actually arose from a paid subscription to a service
whereby Rucker sent and received sexual voice messages with other women.

This Court has explained that “[a] ‘fact that is of consequence to the
determination of the action’ includes not only a fact tending to prove an
element of the offense, but also a fact tending to disprove a defense.” Dunlap v.
Commonwealth7 435 S.W.3d 537, 592 (Ky. 2013). ln this respect, the evidence
Was probative in that it demonstrated to the jury that Rucker was not
innocently paying off internet fees that the couple may have previously
incurred together, or that Ms. Farris Would have consented tO, but that he was
really using the deceased’s money to engage in phone sex. I believe the trial
court properly exercised its wide-ranging discretion in determining that the
recordings-could be used to impeach Rucker. Even assuming that the
recordings were admitted in error, they certainly do not necessitate a new jury
trial. Any likely harm was minimal considering the_overwhelming proof of
Rucker’s guilt, the jury’s knowledge of his use of- the “adult site,” and the fact
that the jury, just ten minutes prior, viewed highly Sexual Facebook messages
Rucker sent to numerous women just before Ms. Farris’ death.

For the aforementioned reasons, I would affirm the Fayette Circuit’s

judgment and sentencc.

Keller and VanMeter, JJ., join.

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coUNsEL FoR APPELLANT:`

John Gerhart Landon

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR 'APPELLEE:

Andy Beshear, Attorney General of Kentucky
Joseph Todd Henning

Assistant Attorney General
Office of the Attorney General

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