Released for Publication June 19, 2014.
[Copyrighted Material Omitted]
ON APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. NO. 11-CR-00644.
COUNSEL FOR APPELLANT: Shannon Renee Dupree, Jason Apollo Hart, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, James Daryl Havey, Assistant Attorney General, Office of the Attorney General, Frankfort, Kentucky.
Noble, Minton, C.J.; Abramson, Keller and Venters, JJ., concur.
Donald Southworth was convicted of murdering his wife, Umi Southworth, and was sentenced to life in prison. He raises numerous issues on appeal, including that he was entitled to a directed verdict and that the trial court admitted evidence of other acts in violation of KRE 404(b). While Southworth was not entitled to a directed verdict of acquittal, and therefore may be retried, the admission of the other-acts evidence was in error and prejudiced Southworth. For that reason, his conviction is reversed.
Donald Southworth married Umi Southworth in the mid-1990s. She had been working at a bank in Indonesia when they met. They settled in Lexington, Kentucky, where Southworth was an overnight UPS driver. They had a daughter, Almira, in 1997. Umi worked at the corporate
headquarters of the restaurant chain Fazoli's.
Almira began playing guitar and singing when she was six. Apparently, she was quite talented and had a promising future as a musician. In fact, she frequently performed at restaurants and churches in Lexington, and had begun to travel to perform. Her parents had been contacted by promoters and producers, who worked with the family on Almira's career.
By 2010, however, Southworth and Umi's marriage was moving toward an end. They were getting a divorce, and Umi was planning to move to Nashville with her daughter to help with her fledgling music career. Almira had signed a contract with Buck Williams, a music agent and manager in Nashville. June 9, 2010 was to be Umi's last day at work before the move.
But Umi never showed up to work that day and could not be found. Some of her co-workers went to her apartment complex to look for her. They found some of Umi's belongings scattered outside the apartment building: a pair of her shoes, with one under her car and one by the garbage cans, and her keys in the yard. Southworth had been contacted by his daughter, and he returned home from an overnight shift at UPS sometime in the morning. Over the course of the morning, Southworth spoke with some of Umi's co-workers, telling at least one that his wife might be with her boyfriend. Apparently, the co-workers were concerned about Southworth, as one testified that she had asked him where Umi was and stated to him " I know you know where she is."
At 11:47 a.m., Southworth called 911 to report his wife missing, though he stated that she often disappeared and went to visit friends. During the call, he mentioned the pending divorce, laughing at it, and stating that it was just on paper and that they were not actually breaking up. He also stated that Umi's co-workers had gotten him " jumpy." He declined to have an officer dispatched and said he would go to the police station to file a report.
The co-workers continued to look for Umi. They encountered a police officer, Susan Brown, in the neighborhood and reported the disappearance to her. The officer went to the apartment complex around noon, just as Southworth and Almira were starting to drive away. The officer asked Southworth some questions. He said he was going to file a report at the station; that Umi had been up late texting a boyfriend, a musician whose name he did not recall; that Umi frequently walked around the neighborhood while texting or talking on the phone to the boyfriend; and that he and Umi were not actually breaking up when she moved to Nashville but that he wanted a divorce on paper so he could date other women. Officer Brown offered to take a report and asked Southworth for the name and phone number of the boyfriend. Southworth reiterated that he was on his way to the police station to report the disappearance.
At 12:49 p.m., Southworth called John DeGrazio, a contemporary-Christian musician and producer in New Jersey, with whom Umi had been corresponding by email, text, and telephone since 2009, and whom the family had met in person at least once. DeGrazio was helping with Almira's music career. He was the person Southworth referenced when he mentioned Umi's boyfriend, despite claiming at times that he did not know the identity of the alleged boyfriend. DeGrazio missed Southworth's call.
Southworth did not arrive at the police station until 2:45 p.m., where he met with Sergeant Chris Woodyard an hour later. After noting Umi's disappearance, he told
Woodyard that she had a boyfriend, whom he had tried to call that morning. When Woodyard asked for the boyfriend's name and number, Southworth claimed that he could not recall it, and that the information was on his mobile phone, which was in the family's other car. Southworth said that his wife's shoes and keys had been found in the yard. Woodyard did not take a missing-persons report at that time, stating they were not filed until the person had been missing for 24 hours. Woodyard offered to send an officer to investigate, but Southworth declined, saying he had to go to Cincinnati but that he would call if circumstances changed. Shortly after leaving, Southworth called to clarify whether the report would be filed after 24 or 48 hours.
Around 4:30 p.m., Southworth called one of Umi's co-workers to see if they had heard anything and to explain that a missing-persons report could not yet be filed. The co-workers continued to search for Umi. Around 5:30 p.m., they checked her office voicemail and heard a message containing what sounded like a scuffle and a reference to a killing. Though this message later turned out to be innocuous--it was recorded during an inadvertent dial when Almira had been playing video games--police opened an investigation upon hearing it. Lieutenant Mark Brand was dispatched to the Fazoli's headquarters to listen to the message. Several other officers were dispatched to the Southworth residence.
After listening to the voicemail, Lieutenant Brand called Southworth, who was returning to Lexington with Almira and his youngest daughter (from another relationship, described below). This conversation was recorded. Southworth stated that his wife had been up late text messaging and had told him she intended to get up at 4:00 a.m. He was surprised that the police had opened an investigation but agreed to meet Lieutenant Brand at the Fazoli's headquarters. Instead of meeting Brand, however, Southworth went home.
Other officers were already at the apartment. They were concerned by the voicemail and performed a protective sweep of the residence. They did not find anyone or any signs of an altercation, blood, or that a crime scene had been cleaned up. They searched around the property and found nothing.
Southworth arrived at the apartment around 7:00 p.m. He spoke with Officer Todd Phillips, who secretly recorded parts of the conversation. Southworth mentioned DeGrazio by name at that point, saying that Umi loved him. He again said that Umi walked around the neighborhood when she talked with DeGrazio. This time, however, he claimed he was jealous and had told Umi that DeGrazio was " family." He also insisted that he and Umi were still in love. At some point, he also denied having a reason to kill Umi, which the Commonwealth describes as having been gratuitous at the time, and he later denied having killed her.
A pair of officers continued to search the grounds of the apartment complex. Near the tree-line behind the complex, they found a " hobo camp," which consisted of a piece of plywood that had been set up as a shelter over a twin-sized box spring (also referred to as a mattress in some of the filings) and a rug.
The officers lifted the mattress and found Umi. She was lying face down, was naked, and had a belt wrapped loosely around her neck. Her skin was an unnatural color and sunken in, and she had a wound to the back of her head, which was matted with blood and brain tissue and had flies on it. The officers believed she was dead and began processing the scene for evidence.
Police strategically chose not to tell Southworth what they had found. They instead asked for a picture of Umi and asked Southworth to go to the police station. Before leaving for the station, Southworth told one of the officers, " So you have not found her yet. That's good--I meant not good, you've not found her yet. But that means she's still okay." At headquarters, he said, " I never killed my wife, officer. She should have stayed inside. This is going to mess everything up."
Police continued processing the scene where Umi had been found. They retrieved a broken tree limb with blood on one end, and collected a swatch of apparently bloody fabric from the box spring. They also found Umi's nightdress and sweater nearby. Various other items, such as a bag of clothing, shopping bags, a garbage bag, and a stolen wallet, were found in the area. The clothing was not Southworth's size, though the belt found around Umi's neck was. (Almira later testified that the belt was similar to ones from the apartment but she could not say for sure it was from her home.) The box spring, except for a fabric swatch, was not collected, nor were the plywood or rug.
Soon after Southworth left to go to the station, the coroner arrived at the residence. He found that Umi was still alive. She was transported to the University of Kentucky Medical Center. Doctors found that Umi had significant head trauma, with two skull fractures and brain matter leaking out, and blunt force trauma to her chest. Maggots were present in the head wound. Umi was clinically brain dead with no chance for recovery.
Meanwhile, Southworth was still being questioned by police. He told them of the alleged affair between Umi and DeGrazio, in which Umi would see Degrazio when he was in town (even though DeGrazio never visited Kentucky). He also claimed DeGrazio had a home in Nashville, which was not true. During this interview, Southworth again claimed that the divorce was only to be on paper. He also claimed he had bluffed Umi by telling her that he could listen to her cell phone calls on a scanner, which is why she walked on the street while using the phone. (Neighbors interviewed by police had never seen Umi walking around the neighborhood talking on the phone.) Southworth also told officers that Umi had text messaged DeGrazio late that night and had intended to get up at 4 a.m. He claimed he was woken at 3:18 a.m. by a call from work.
That call had gone unanswered. (In fact, the dispatcher who made the call later testified that he had received a busy signal.) Southworth had been scheduled to work at 3:15 a.m., and another worker had been scheduled in his place when he failed to show up for his shift or answer the phone. At 3:30 a.m., Southworth had called the dispatcher at work, who had told him that his shift had been re-assigned. Despite having no-show days available, meaning he could skip the shift without penalty, Southworth had begged to come into work. The dispatcher had then rearranged the schedule so that Southworth could still work that night, and Southworth had clocked in at 3:35 a.m. (Later testimony established that Southworth had been late to work only one other time in the preceding seven years.)
When Southworth was being questioned by police, he emphasized this work alibi. When officers eventually revealed to Southworth that Umi had been located and was at the UK hospital, he told them, " I didn't hurt her. Can I see her, please?" The officers asked Southworth who had a motive to hurt Umi, and he brought up two male tenants in the apartment complex. He quickly discounted these men, saying
that one was at work and that one was gay.
When questioned about arriving back home that morning, he said he had been with his daughter the whole time since then, which she later confirmed. He claimed that he had walked through the back yard and saw what looked like a camp back in the trees. He said nothing about going into the camp. A detective then told Southworth that they would be able to retrieve touch DNA from the scene to identify her assailant, and Southworth admitted to having walked through the area where Umi was found. (Almira, however, in her taped statement, said that Southworth did not go into the woods at that time.) Southworth also admitted to having lifted the rug that was on the box spring, and said he may have touched or sat on the box spring. He also said he .picked up the bag of clothing and shook it. After the interview, officers asked if Southworth wanted a ride to the hospital, but he asked instead to be taken to a hotel.
The investigation continued. In the Southworth apartment, police found that the washing machine had been set on hot and contained a pair of women's underwear, a pair of size-10.5 black leather shoes, a pair of UPS pants, a UPS hat, and other clothes. Investigators swabbed the inside of the washing machine but found no blood present. Investigators also saw no stains on the clothing and did not collect those items as evidence or test them for blood. A copy of a divorce petition was found in a trash can. Police also searched the Southworths' cars but found no evidence of blood or cleaning.
Forensic examination of Umi's injuries revealed that the crown of her skull had been caved in. This wound was consistent with being struck by a hammer-like object (though no such object was found by police), and the blow would have rendered her unconscious and may have been fatal. Several tears of the skin on the crown of the skull and near the left ear showed several blows from a club-like object. Bone fragments protruded through these tears. Umi's face was scraped and bruised, and her nose was broken. The conclusion was that Umi died of multiple blunt-force trauma that caused massive bleeding and swelling of the brain.
The belt had left no marks on Umi's neck. While there was no evidence of injury to Umi's genitals, a vaginal swab revealed semen. No silicone or starches indicative of a condom were found. DNA tests of the semen revealed it was not Southworth's (or John DeGrazio's), and it was not matched to anyone else.
A forensic entomologist analyzed the maggots from Umi's head. He testified that they were indicative of a mortal wound. The entomologist found, based on the maggots' larval stage, that flies would have settled on Umi just after sunrise (around 6:15 a.m.). Based on this, he believed the injuries had occurred three to several hours before, though it was possible that the injuries had occurred as late as 4:00 a.m. and far less likely that they occurred at 5:00 a.m. (Southworth eventually postulated to police that Umi had been assaulted when she awoke at 4:00 a.m. and had gone outside to talk on her phone.)
DNA tests of samples from the bloody swatch from the box spring and the tree limb showed that they belonged to Umi. Her blood was also found on the rug at the scene, and a single drop of blood was found on one of the shoes that had been recovered from the yard.
The only other DNA found at the scene was from a single drop of blood on Umi's nightdress. That DNA was found to be Southworth's, though how long the blood
had been on the nightdress could not be determined.
A dog search the next day turned up Umi's purse beside a garbage bag behind the apartment complex. Umi's cell phone (turned off) and credit cards were in the purse, but no cash was found. The garbage bag was the same type as that found at the scene and that the Southworths kept in their kitchen. The garbage bag found with the purse contained a washcloth, a roll of paper towels, and a disposable Carthage brand cup. The paper towels were identical to the ones found in the Southworth home and had markings suggesting they could have come from the same lot. The cup also was identical to some found in the Southworth home. Tests of the washcloth and paper towels showed no chloroform or other substances.
A search of a computer in the Southworths' home turned up a copy of the divorce petition, which had been created and printed on May 28, 2010. Cell phone records showed that Umi's last incoming call had been from Southworth, at 7:08 p.m. on June 8, 2010. Umi had sent a text to John Degrazio at 11:25 p.m., and the two exchanged several messages over the next couple of hours. The last outgoing activity on her phone was a text to DeGrazio; it had been sent at 1:42 a.m. on June 9, 2010. Her phone showed several unread texts starting around 7:00 a.m., including several from her husband.
Police did not hear from Southworth again until June 17, 2010, when he called to ask how to get his car and phone back. This conversation was recorded by the detective taking the call. Southworth added to the story he had previously told about looking in the area where Umi's body was found, stating that the box spring had been flat on the ground and that he had actually lifted it up and had seen vines underneath. (There had, in fact, been vines under the box spring, but when the body was found by police, the box spring was raised up and the body could be seen underneath.) He also stated that he had found the rug in the back yard two months before and had thrown it in the trash. There were, however, no visible mildew stains or other signs it had been left outdoors.
Southworth was indicted and tried for Umi's murder. At trial, testimony and proof as to the facts described above was introduced at trial.
Additionally, multiple witnesses testified about the Southworths' relationship. They almost universally described Southworth as controlling, especially with respect to Almira's music career. For example, Southworth would shout directions at Almira as she performed, would not let her wear her glasses while performing, and had told a concert promoter that even though people believed Almira was the act, he had created it and it all came from him.
Similarly, witnesses testified that Southworth was controlling and inconsiderate toward Umi and that Umi was withdrawn or passive when in Southworth's presence. For example, one witness testified that during a business meeting, Southworth had declined a chair at the table for Umi, stating that she could instead sit in the back. The same witness testified that in another meeting, he said that Umi could help clean up afterward, despite being on crutches. Other witnesses testified that while Umi was talkative when Southworth was not around, she was silent when he would show up.
One witness testified that in April 2010, Southworth said that he and Umi were splitting up because she was cheating on him. This was said in front of Almira. In the same conversation, Southworth referred to Umi as a whore, and claimed to
have telephone records showing the affair and to have hired a private investigator.
Witnesses also testified that Umi had opened a bank account in her own name, had her paychecks deposited in the account, and had the statements sent to her office, presumably to hide them from her husband. They also testified that she had opened a new cellular phone account with a provider different from the one for the family account she shared with Southworth. She listed a co-worker as her secondary contact on this account. The records for this account were also hidden at Umi's office. A co-worker testified that Umi had given her a key to a safe deposit box and asked her to keep it secret.
One of Umi's friends, WiWi Harrison, testified that in May 2010 she had given Umi the name of a lawyer, presumably for the divorce. She testified that at that time Umi told her she had documents she intended to hide at work. Another witness, Patti Williams, testified that Umi kept divorce papers hidden and that she had intended to give them to Southworth when she left Lexington.
The Commonwealth also introduced testimony of one of the Southworths' neighbors who lived in the apartment across the hall. This woman testified that around midnight of June 9, 2010, she had been carrying laundry to the basement laundry room. She saw that the back door of the apartment complex was open and unlocked, which was against the apartment complex's policy. As she went back and forth doing laundry, she found the back door open two more times. She did not see any water tracked in, though it was a very stormy night. At one point, she saw that the Southworths' door was slightly open and that Donald Southworth was hunched over the floor. She also testified that the Southworths' washing machine, which was in the basement also, was running the entire time (about an hour and a half) she did laundry that night. The woman's fiance found the back entrance unlocked again around 6:00 a.m.
Another resident of the apartment complex testified that around 3:00 a.m. she was woken by a " sharp sound." She described it as similar to " a glass breaking." She could not identify where the sound came from. On cross-examination, she admitted that it could have been thunder from storms that night.
The Commonwealth also introduced testimony of an unusual relationship between Southworth and another woman, Hesti Johnson, who moved from Indonesia to the United States, and began babysitting Almira and cooking and cleaning for the family. Johnson testified that she lived in the Southworth home from 1998 to 2005 and had a sexual relationship with Southworth. She also testified that on a trip back to Indonesia with the family, she and Southworth had a religious marriage ceremony, and that she later became pregnant by Southworth.
She also testified that in 2005, Southworth had come to her and asked her to masturbate. He then retrieved a used condom from the freezer or refrigerator and placed it inside her. She testified that he told her it was okay and that the condom had been retrieved from the garbage of a friend named Agung, who Southworth described as clean and good looking for an Indonesian man. She testified that she moved away to Indianapolis with their daughter, Alea, in November 2005. (Alea was the daughter Southworth went to Cincinnati to pick up on the ...