APPEAL FROM LIVINGSTON CIRCUIT COURT. NO. 91-CR-025. HON. WILLARD B. PAXTON, JUDGE. APPEAL FROM LIVINGSTON CIRCUIT COURT. 91-CR-013. HON. WILLARD B. PAXTON, JUDGE. APPEAL FROM LIVINGSTON CIRCUIT COURT. 91-CR-025. HON. WILLARD B. PAXTON, JUDGE.
Released for Publication September 14, 1995.
Stephens, C.j., Lambert, Leibson and Stumbo, JJ., concur. Wintersheimer, J., Dissents by separate opinion in which Reynolds, J., joins. Fuqua, J., not sitting.
The opinion of the court was delivered by: Leibson
OPINION OF THE COURT BY JUSTICE LEIBSON
In a joint trial, Michael Kariakis, his wife, Holly Kariakis, and Charles Chumbler were convicted of crimes resulting in the murder of Nelda Chumbler, Charles Chumbler's wife. Michael was convicted of murdering Nelda, and Holly and Charles were convicted of murder by complicity. Michael and Charles were sentenced to life without parole for 25 years and Holly was sentenced to life in prison.
Nelda and Charles were school teachers in Florida. Charles was originally from Kentucky. During December, 1990, Nelda and Charles visited Charles's family in Kentucky. On December 27, around 4:00 P.M., Nelda was shot by a high-velocity weapon, such as a hunting rifle, while feeding the horses on Charles's brother's horse lot. The murder weapon was not recovered. Charles and his four-year old grandson were with Nelda at the time. There were no other eye witnesses.
At first the police believed Nelda's death was caused by a hunter's stray bullet. Approximately a week after Nelda's death, the police changed their theory and believed Nelda was killed by a shooter in a nearby shed.
The Commonwealth's theory of the case was that Michael shot Nelda from the shed and Holly and Charles conspired in the murder. The motive was to obtain the proceeds from Nelda's insurance: Charles was the beneficiary of his wife's retirement benefits as well as her $35,000 life insurance policy which increased to $70,000 if she died of an accident. Nelda and Charles married on November 20, 1987, and executed an antenuptial agreement that day which listed her assets at $200,000 and his assets at $500 and which prevented Charles from inheriting Nelda's estate.
Michael and Charles met in 1979 when Michael, who was 16 at the time, worked stripping tobacco on Charles's farm in the Paducah area. Evidence was presented at trial to allow the jury to infer that Charles and Michael had a homosexual relationship, which Michael and Charles denied. Charles characterized their relationship as a "deep friendship" wherein Charles acted as a foster father to Michael. Charles regularly gave Michael money, bought things for him, and made restitution for bad checks written by Michael and one of Michael's ex-wives. In large part because of the money flowing from Charles to Michael, Charles declared bankruptcy in 1987 and drained much of Nelda's finances after marrying her.
Michael and Holly met in November, 1988. Michael moved to Virginia, where Holly lived, and the two married in April, 1989. In February, 1990, Michael and Holly moved to Palm Harbor, Florida. Holly first met Charles in June, 1989, when he visited Holly and Michael in Virginia, and Holly testified that she met Charles two additional times after that in Florida.
Michael and Holly planned on taking a trip over the 1990 Christmas holiday. On December 26, 1990, after picking up and cashing Holly's paycheck, Holly and Michael drove to a parking lot where Michael had arranged to meet a gun dealer to buy a gun on which Michael had previously placed a deposit. Holly gave Michael $100 to $200, which Michael used towards the $700 purchase price of a unique, custom-built, unregistered .270 caliber rifle with a scope. Michael testified he bought the rifle for Charles to give to Perri Mathis, Charles's adult daughter, as a Christmas present. Holly testified that Michael told her Charles would probably buy the gun from him and that Michael had previously bought guns as investments. Charles testified that he did not ask Michael to buy a gun for him to give to Perri and that Michael never told him he bought it.
After purchasing the gun, Holly and Michael left on their trip. They ended up driving to Paducah, arriving about 1:00 P.M. on December 27. They left the next morning to return to Florida. While in Paducah, the rifle Michael had purchased in Florida was removed from the back seat of their car. There was no sign of forced entry. The rifle has not been found.
The trial took 18 days and the transcript of evidence is 29 volumes. All three defendants testified and denied responsibility for the shooting and claimed it was a hunting accident. The three defendants raise a great many issues and sub-issues on appeal. Some issues are common to all the defendants, others are raised only by one or two defendants. Many of the issues or sub-issues were not properly preserved for appellate review. For the reasons to be stated, we reverse and remand as to all three defendants.
Both before and at trial, Michael and Charles objected to the introduction of evidence regarding their sexual behavior, preferences or orientation. They suggested that the Commonwealth could prove a "close relationship" between the defendants without "crossing the line into proof of homosexuality." Charles offered to stipulate to a "strong relationship" between Michael and Charles.
Charles and Michael claim that evidence regarding their sexuality was irrelevant or, if relevant, should have been excluded because the prejudicial nature of the evidence outweighed the probative value. The Commonwealth responds that proof of their homosexual relationship was relevant to establish motive for Nelda's murder and that the evidence was not unduly prejudicial.
Although no Kentucky cases specifically address the introduction of evidence of homosexuality, such evidence may be analogized to evidence of an extramarital affair. In Barnett v. Commonwealth, Ky., 763 S.W.2d 119 (1988), we reversed in part because of the admission of evidence of an extramarital affair which had ended twenty-one months prior to the murder and lacked any connection to the crime. This Court has held that evidence of extramarital affairs is irrelevant and error in a number of cases. Stallings v. Commonwealth, Ky., 556 S.W.2d 4 (1977), Pruitt v. Commonwealth, Ky., 487 S.W.2d 940 (1972), Brown v. Commonwealth, Ky., 275 S.W.2d 928 (1955); Acres v. Commonwealth, Ky., 259 S.W.2d 38 (1953).
Evidence of extramarital sexual activity should be admitted or excluded without regard to the gender of the parties and without regard to whether homosexual or heterosexual activity is involved. As we stated in Smith v. Commonwealth, 93-SC-724-MR, rendered 6/8/95, where the majority found that the defendant established sufficient connection to the charged crime to permit evidence of an extramarital lesbian affair, "evidence of marital infidelity which lacks legitimate connection to the crime charged amounts to an attack upon the defendant's character and results in prejudicial error." Id. at 5. So too, evidence of the sexual behavior of the defendants which lacks legitimate connection to the crime charged is irrelevant and amounts to a smear upon the defendant's character, resulting in prejudicial error.
In this case, evidence regarding the relationship between Michael and Charles and the extent of that relationship was properly admitted. Charles's offer to stipulate to a "close relationship" between Michael and Charles would be unfair to the Commonwealth. A defendant is not entitled to stipulate away the parts of the case which he does not want the jury to see. Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980). The relationship between Charles and Michael was at the heart of the Commonwealth's theory of a conspiracy between Charles and Michael to murder Nelda. Evidence of the love between Michael and Charles, whether that love was emotional or physical or both, was necessary to sufficiently establish a motive for Charles to conspire to murder a wife he claimed to love and for Michael to murder Charles's wife.
However, the Commonwealth presented evidence of Charles's and Michael's sexual behavior far in excess of what was relevant to prove their relationship and establish motive. The prosecutor began his opening statement by telling the jury that Charles came from a good family in McCracken County, "but Charles is different. Charles was gay." He continued by saying, "we will prove that Charles enjoyed the company of young boys." The prosecutor also stated in his opening that Charles married his second wife in order to become the foster father of a young man with whom he was sexually involved.
Charles's first wife testified that during their marriage from 1964 to 1970 (twenty years prior to Nelda's death) Charles spent time with more than one young man. She further testified to an incident where Charles prostituted her so that Charles could have sex with a young man. The prosecutor mentioned this in his opening, and in his summation he stated:
Charles then used Donna to get a young man that he wanted to have sex with. He sold Donna's body for his own pleasure. Sold? Traded would be a better word. He allowed the young man to have sex with Donna, so that the young man would agree to have sex with him.
One of Charles's co-workers testified that while Charles was staying at her home she washed his clothes. When asked if she found anything unusual in the wash, she testified that she found women's underwear and that Charles wore women's nylon panties.
During cross-examination of Charles, the prosecutor introduced pictures of "sexual toys" *fn1 found under a washtub in the garden of Nelda's and Charles's home. The jury was shown three slides of the "toys" blown up to 3 1/2 - 4 feet wide by 4 feet tall. Charles did not open the door to introduction of this evidence by introducing evidence of his reputation for peacefulness and truthfulness in the community as claimed by the Commonwealth. The evidence regarding the dildos had nothing to do with truthfulness; it did not show a particular wrongful act; it didn't even show that Charles used the dildos with Michael or that Charles was homosexual. The pictures of the dildos were "not legitimate impeachment, [but] served only to inflame the jury against" Charles. Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 279 (1992) (Combs, J., Dissenting).
During his closing argument, the prosecutor revisited the testimony about Charles's homosexuality and preference for young boys. He referred to Charles's use of dildos in his relationships and keeping a steady stream of young men coming through the house during his first marriage. Although the prosecutor stated, "being gay is no crime," he then said, "it's the way Charles Chumbler handled it that made it murder." He referred to Charles's homosexuality as "satisfying his own perverted needs" and said Charles's "desires grew stronger and stronger and kinkier and kinkier. [A witness] told you that what he really enjoyed in the sexual use was the use of these artificial items."
The Commonwealth argues, and we agree, that proof considerations are no different than if Charles was having an affair with a woman. In Davis v. Commonwealth, Ky., 795 S.W.2d 942 (1990), testimony about an extra-marital affair, which was connected to the charged crime, was allowed. Likewise, evidence regarding Charles's and Michael's relationship and regarding their "love of a lifetime" was connected to the crime charged and was relevant to establish motive.
However, testimony about and references to Charles's and Michael's relationships with third parties and evidence of the defendants' sexual habits unrelated to the crime charged was improper smear evidence irrelevant to their motive to murder Nelda. Such evidence did not tend to make the existence of a fact that is of consequence to the determination of the action more or less probable and had the effect of poisoning the atmosphere of the trial, rendering it impossible for the defendants to have had a fair trial.
II. EVIDENCE OF COLLATERAL CRIMINAL ACTIVITY AND BAD CHARACTER
Charles and Michael both objected to the introduction of a variety of evidence of collateral criminal activity, bad acts, and bad character. Generally, evidence of crimes other than that charged, is not admissible to prove that an accused is a person of criminal Disposition. KRE 404(b); Lawson, Kentucky Evidence Law Handbook, 3rd Ed., Sec. 2.25 (1993). Evidence of other crimes or wrongful acts may be introduced as an exception to the rule to show proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident. KRE 404(b)(1). To be admissible under any of these exceptions, the acts must be relevant for some purpose other than to prove criminal preDisposition; sufficiently probative to warrant introduction; and the probative value must outweigh the potential for undue prejudice to the accused. Clark v. Commonwealth, Ky., 833 S.W.2d 793, 795 (1990).
Evidence that Charles committed bankruptcy fraud in filling out a bankruptcy petition was introduced. Despite a motion in limine which was granted prohibiting evidence of the uncharged crime of bigamy, evidence that Michael was a bigamist was introduced. These acts had little or no bearing on the charges for which the men were being tried, yet they presented the men as being of criminal Disposition. Evidence of bigamy was not necessary to show Michael's relation to a witness who was Michael's "ex-wife," as claimed by the Commonwealth. In conjunction with the other errors, we find these to be reversible errors as well.
Evidence that Michael stole a variety of items from Nelda's and Charles's home, including taking a table and chairs the day after Nelda and Charles left for Kentucky, was relevant evidence of the relationship between the two men and of Michael's ongoing need for money and the lengths to which he would go to obtain it. Evidence of thefts from Nelda's and Charles's home which cannot be tied to Michael are irrelevant.
Witnesses testified that Michael fantasized he was a character in a day-time soap opera who was portrayed as a killer for a mythical Greek society. Four witnesses testified that Michael had stated he was a "hit man" and that he talked about "icing" people and making it look like an accident. This evidence was properly allowed to show intent, identity, and the absence of accident.
A police detective read parts of a letter from Michael to Charles in which Michael said, "I beg that you do still have feeling for me, because I need you. Always have. I just wish it'd turn out better for us. Maybe it will when I am out in a few months or so. Please wait." When defense counsel objected, the prosecutor claimed that getting out could mean out of jail, school, or the navy and the objection was overruled. The prosecutor later said the letter indicated that Michael was probably in jail at the time he wrote it. Although it is "reversible error to call to the attention of the jury information that tends to show another crime had been committed which is independent of, and unconnected with, the one for which the accused is on trial," Payne v. Commonwealth, Ky., 509 S.W.2d 264, 265 (1979), the error in this case was harmless because Michael had previously elicited testimony from his mother, without objection, about his incarceration.
We do not address the additional alleged errors regarding collateral criminal activity or bad acts because they were either unpreserved or inadequately preserved for appellate review. On retrial defense counsel should object if they believe error has occurred to allow the trial court to provide appropriate relief.
The prosecutor claimed in his opening statement that Michael Kariakis left a "virtual signature" inside the shed by leaving a cigarette butt on the floor. The butt was not collected until a week after Nelda's death, and, according to Michael, may have been left there before or after Nelda's death. The butt was tested and found to have been smoked by a type A secretor. Michael is a type A secretor. The brand of the cigarette butt was narrowed down to twelve possibilities, one of which possibilities Michael smoked. In closing, the prosecutor multiplied the percentage of the population who are type A secretors by the percentage of the American public who smoke by the nation-wide market share of the type of cigarette Michael smoked to arrive at the figure of .2 percent or 2 in 1000: "And that's the odds that Michael Kariakis was standing there, 2 in 1000. . .would've flipped down a Newport cigarette."
The calculations were completely unfounded and in error. Although there was no objection at trial, this was a "palpable error" affecting Michael's "substantial rights" resulting in "manifest inJustice." RCr 10.26. The prosecutor referred to the butt as Michael's "signature" and the statistical "evidence" compounded that view. The statistical calculations rival a polygraph in their unreliability and propensity to mislead and may have convinced jurors of modest analytical ability that no one but Michael could have committed the crime.
IV. PROSECUTORIAL MISCONDUCT
All three defendants allege a variety of prosecutorial misrepresentations and prosecutorial misconduct denied them a fair trial. Many of the alleged instances of prosecutorial misconduct are unpreserved. One of the most egregious instances of unpreserved prosecutorial misconduct came during the Commonwealth's closing argument. A defense theory of the case was that, because of the damage to Nelda and the possibility the bullet was deflected when going through ...