APPEAL FROM HENRY CIRCUIT COURT. HONORABLE DENNIS A. FRITZ, JUDGE. 92-CR-009.
Released for Publication December 19, 1996. Petition for Rehearing Denied December 19, 1996.
Stephens, C.j., Baker, Graves, King, Lambert and Wintersheimer, JJ., concur. Stumbo, J., concurs in part and Dissents in part by separate opinion.
MEMORANDUM OPINION OF THE COURT
This appeal arises from the judgment of conviction of Stella Marie Collins for intentional murder and first-degree criminal abuse, for which she received twenty-one years' imprisonment. Appellant appeals to this Court as a matter of right.
The Commonwealth also appeals to this Court, not in the form of a cross-appeal to Appellant's action, but as two separate appeals eventually consolidated into one and designated to be heard with Appellant's action herein. The appeal by the Commonwealth, which concerns the punishment phase and for which we remand this case for resentencing, will be discussed below, after Disposition of the issues as related to Appellant's appeal, which relates to the guilt/innocence phase.
Appellant was charged with the criminal abuse, between June 6, 1991 and June 24, 1991, and subsequent murder, on or about June 24, 1991, of her stepson, Otis Wayne Collins, Jr. ("Wayne Junior"), who suffered from an advanced stage of Duchenne's Muscular Dystrophy. The disease weakens the large muscles around the hips and shoulders and progresses to other muscles, including the heart and lungs, with an eventual prognosis being death, usually in the mid to late teenage years. At the time of his death, Wayne Junior was one day shy of his twelfth birthday.
In early June of 1991, Wayne Junior was permitted visitation with his father, Otis Wayne Collins, Sr. ("Wayne Senior") and Appellant, and stayed at the Henry County trailer the couple shared with their two-year-old son, Daniel. During this time, Teresa Devore, a friend of the couple, frequently stayed at the Collins' residence and would sometimes lend assistance in the care of Wayne Junior. Devore proved to be a key prosecution witness, as she testified to instances of abuse dealt to Wayne Junior by Appellant. For instance, Devore stated that Appellant would force Wayne Junior to crawl around inside the trailer for two hours at a time, two to three times a day, claiming that such "exercise" had been prescribed by the doctor, and that if he refused to do what she wanted, Appellant would spank the child, sometimes with a fly swatter.
Devore further testified that on June 23, 1991, the day before the child died, Appellant called her to the trailer because Wayne Junior was misbehaving and Appellant needed someone to help her calm down. Devore stated that at the trailer, she observed Appellant take the belt from her bathrobe and wrap it around Wayne Junior's neck, commenting that this would quiet the child. Devore also noted that later that evening, Appellant beat the boy about the head, chest and face, after Wayne Junior had pinched her. Devore testified that after this outburst, there were no more fights that night, and that everyone eventually went to sleep. However, the next morning, Devore was awakened by Appellant, who had noticed that Wayne Junior's breathing had become irregular and he had mucous-type fluids coming from his mouth. Devore stated that she fell back to sleep, but was later again awakened, this time by Wayne Senior, who began screaming upon finding the boy not breathing.
Attempts to revive the child proved to no avail and on June 24, 1991, Wayne Junior was pronounced dead in the Emergency Room of Carrollton Hospital. An autopsy revealed that Wayne Junior suffered a horizontal, linear injury to the carotid artery and airway, along with various abrasions and contusions, and, of course, the advanced Muscular Dystrophy. The cause of death was determined to be traumatic asphyxia.
Although Devore's testimony was valuable to the Commonwealth's case, she was, by her own admission, not wholly an innocent observer to the mistreatment of Wayne Junior. She stated that she too, at times, became short with the boy, sometimes even striking him. Devore also admitted to forcing the child, on one occasion, to drink his own urine, something she had initially blamed on Appellant. It is Appellant's contention, thus, that based upon Devore's character and her penchant for lying, she was not a credible witness and her testimony should not have been given much weight in the determination of Appellant's guilt. Appellant raises five issues on appeal, the first of which discussed herein more specifically involves Devore's role as a witness.
At issue is a diary kept by Devore during her stay at the Collins' residence which Appellant contends should have been admitted at trial in its entirety. According to Appellant, this diary contained, with some degree of particularity, an accounting of the daily activities and attitudes of Devore. In it, Devore made disparaging remarks about Wayne Junior, referring to him as a "hateful brat," and writing, at one point, "He needs to die if he don't want to do his [exercises]." Appellant notes that conspicuously absent from the diary was any mention of abuse of Wayne Junior by Appellant or any statements regarding the child's death. Appellant asserts that while the diary was shown, on cross examination, to have been written totally contemporaneously with Devore's presence with the Collins family between June 6, 1991 and June 24, 1991, the diary was not permitted at trial to be completely and totally allowed for the jury's consideration.
Appellant asserts that as the prosecution questioned Devore extensively regarding her diary, the defense should have been allowed to present the remainder of the diary upon cross-examination of Devore pursuant to the rule of completeness. In sum, Appellant asserts that the Commonwealth's examination of Devore opened the door for the admission of the entire diary, in that once a party elicits part of a statement or writing from a witness, the opposing party may introduce all other portions of that writing which are relevant to the case. Crane v. Commonwealth, Ky., 833 S.W.2d 813 (1992); Tarrance v. Commonwealth, Ky., 521 S.W.2d 521 (1975); Winn v. Commonwealth, Ky., 303 S.W.2d 275 (1957); Meadors v. Commonwealth, 281 Ky. 622, 136 S.W.2d 1066 (1940). Appellant adds that cross-examination of the government's star witness is extremely important in ensuring that the criminal defendant receives a fair trial, and that there is a presumption which favors free cross-examination on possible bias, motive, ability to perceive and remember, and general character for truthfulness. United States v. Phelps, 733 F.2d 1464 (11th Cir. 1984). Appellant also cites to Grigsby v. Commonwealth, 299 Ky. 721, 725, 187 S.W.2d 259, 262 (1945), for the proposition that a witness, by taking the stand, "must submit to a searching cross-examination upon subjects or phases thereof introduced in his direct examination . . . or to examination upon incidental or collateral and apparently irrelevant matters which are calculated to test the credibility and the weight of his testimony." See also Wonn v. Commonwealth, Ky.App., 606 S.W.2d 169 (1980).
Appellant contends that the excluded sections of the diary clearly establish, in Devore's own words, her lack of veracity, as well as her absence of character and her compulsion for lying. In particular, Appellant notes that the diary contained details of Devore's sexual promiscuity, drug abuse, and use of a racial slur. As such, and because the diary also shed light upon Devore's thought processes and mental state, Appellant asserts, and contrary to the trial court's ruling, that these entries were clearly relevant to Devore's testimony at trial, KRE 401, and went to the character of Devore, her credibility as a witness, and the weight that the jury would give her testimony. KRE 404, KRE 607. Appellant concludes that this was all the more important given the fact that in order to convict Appellant, the jury had to believe Devore.
Appellant also makes much of the fact that the jury requested the diary shortly after it had been submitted the case for deliberation. What the jury received, according to Appellant, was an "edited" copy, with whole passages actually cut out by the trial Judge, which, Appellant asserts, indicated to jurors that something was being hidden from them. Appellant's point, herein, seems to be that the obvious nature of the sanitization of the diary in some way weighed against Appellant. Appellant asserts that a motion in limine, prior to trial, by the prosecution, would have provided ample time for the defense to clean up the diary for the jury - although, as Appellant points out, this would still have been objectionable - without it appearing that the defense had hidden parts of the diary through such blatant exclusion. Appellant concludes that the presumption of harm caused by errors in regard to the admission or exclusion of evidence in a jury trial, Crawford v. United States, 212 U.S. 183, 29 S. Ct. 260, 53 L. Ed. 465 (1909), could not be overcome in this matter as the Commonwealth's case rested on Devore's testimony and her credibility with the jury.
To begin, we do not feel that the defense's trial strategy was hindered or jeopardized by the trial court's decision not to include the entirety of the diary. Those portions which were admitted, including that which was read by defense counsel during opening arguments, did indeed portray Devore as a sexually promiscuous drug abuser who had ambivalent, often hateful, feelings toward the victim. Moreover, a review of the trial proceedings reveals that much of what defense counsel unsuccessfully sought to introduce via the portions of the diary ruled inadmissible came in anyway. For example, defense counsel was able, on cross-examination, to elicit from Devore that she had more than one boyfriend and that she had sexual relations with one of these boyfriends at Appellant's residence on the night of Wayne Junior's death. We agree with the Commonwealth, and ultimately with the trial court, that specific details of these sexual encounters were not relevant as to the issue of whether or not Appellant abused and murdered Wayne Junior. Likewise, Devore's description of a minority with a politically incorrect slang term was irrelevant to the case, but, rather, if introduced along with the other excluded evidence, would have undoubtedly reached an impermissibly cumulative level.
Moreover, we do not feel that the use of the diary in this matter invokes the rule of completeness. KRE 106; Crane, supra. The objective of that doctrine "is to prevent a misleading impression as a result of an incomplete reproduction of a statement or document." Robert G. Lawson, The Kentucky Evidence Law Handbook § 1.20 at 48 (3d ed. 1993). In evaluating the evidence which was, in fact, admitted relating to the character and actions of Devore, we do not believe that the jury was mislead by the trial court's, refusal to admit the diary in its entirety. The completeness doctrine is based upon the notion of fairness - namely, whether the meaning of the included portion is altered by the excluded portion. Meadors, supra, at 1068; see also Lawson, (supra) , at 48-49. Here, as the Commonwealth points out, the excluded portions relating to specific details of Devore's sexual conduct and her use of the racial term do not refute or change the meaning of those portions which were admitted. Finally, we are not convinced, as Appellant would have us believe, that the jury placed the blame upon the defense for hiding something in those edited portions of the diary. As such, we hold that Appellant's argument herein does not warrant reversal.
Appellant next argues that the trial court erred in not granting a directed verdict as there was insufficient evidence to support either the murder or the abuse verdict. Appellant contends that the Commonwealth's case rested on supposition, innuendo, and circumstantial evidence. In order to sustain a conviction on such proof, Appellant argues that the evidence "must be so unequivocal and incriminating as to exclude every reasonable hypothesis of innocence," Hays v. Commonwealth, 270 Ky. 561, 563-564, 110 S.W.2d 279 (1937), and, that, likewise, the evidence "must point unerringly to the accused's guilt and it must do more than create a suspicion of guilt." Bullock v. Commonwealth, 249 Ky. 1, 7, 60 S.W.2d 108, 110 (1933) (citation omitted). Appellant asserts that both convictions herein must be reversed in that the sum of the evidence presented by the Commonwealth amounted to no more than a mere suspicion of guilt, and did not meet that burden of beyond a reasonable doubt. Appellant postulates that she was charged with Wayne Junior's murder only because she had the misfortune of being the first one awake on the ...