SCOT E. GAITHER APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE JOSEPH W.
CASTLEN, III, JUDGE NO. 02-CR-00446
COUNSEL FOR APPELLANT: Margaret Anne Ivie Assistant Public
Advocate Department of Public Advocacy Kelsey Roth Assistant
Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Matthew Robert Krygiel Assistant Attorney General
2004, Appellant Scot E. Gaither was convicted and sentenced
in the Daviess Circuit Court for the 2001 kidnapping of James
Parson and for the associated crimes of first
degree manslaughter, tampering with physical evidence, and
theft by unlawful taking (property less than $300.00). Those
convictions were affirmed by this Court in Gaither v.
Commonwealth, 2004-SC-0474-MR, 2006 WL 436071 (Ky. Feb.
upon Appellant's motion for post-conviction relief
pursuant to RCr 11.42, the trial court set aside
Appellant's kidnapping sentence and granted a new
penalty-phase trial on that charge. Upon retrial of the
kidnapping penalty phase, the trial court imposed the
sentence recommended by the jury: imprisonment for life, to
be served concurrently with the twenty-year sentence for
manslaughter. This appeal followed.
argues that the retrial of the kidnapping penalty phase was
fatally flawed because the trial court 1) allowed the
admission of irrelevant, cumulative and unduly prejudicial
evidence; 2) permitted the introduction of improper victim
impact testimony; 3) improperly limited his admission of
mitigation evidence; and 4) permitted the Commonwealth to
display evidence from the guilt-phase trial during closing
argument without prior notice to Appellant. For the reasons
stated below, we affirm the judgment.
GRUESOME DETAILS OF THE CONDITION OF THE VICTIM'S BODY
WERE IRRELEVANT AND CUMULATIVE BUT DID NOT SWAY THE
JURY'S SENTENCING DECISION.
to our statutory scheme for bifurcated criminal trials and
jury sentencing, the guilt phase and punishment phase of a
trial are ordinarily heard by the same jury. Occasionally
that protocol becomes a practical impossibility, when for
example, as in cases like this one, flaws in the original
trial compel a re-trial only of the penalty phase. In
Boone v. Commonwealth, 821 S.W.2d 813, 814-15 (Ky.
1992), we outlined a practical course for trial courts to
follow in such circumstances, including the preparation of a
carefully-drafted stipulation of the relevant facts to be
read to the jury.
the manner of presenting the essential information remains
subject to the trial court's discretion, the parties and
the trial court in the case now before us followed
Boone's suggestion to present a stipulated
summary of the guilt-phase evidence to the penalty-phase
jury. A portion of the stipulated summary pertaining to the
issue under review reads as follows:
The Daviess County Coroner took charge of the body and with
police assistance the body was packaged and removed from the
bottom of the ditch. The body was transported to the Kentucky
Medical Examiner's Office and examined by Dr. Amy
Burrows. Dr. Burrows testified that her examination of Mr.
Parson's body revealed there were two bullets inside the
body but she was unable . to identify where the bullets
entered the body due to the body being so badly decomposed.
She did testify that there were two large defects in the skin
from the right side of the chest over to the left side of the
chest and in the left side of the lower back, which were most
likely the entrance wounds.
Because of the condition of the body, the body and adjacent
materials, mud and grass, from around the body were submitted
to Dr. Amy Burrows, a medical examiner, along with the body.
She testified as a witness for the Commonwealth that her
examination did not find any evidence of restraints on the
body, such as rope or duct tape. An examination of the
materials led to the recovery of a spent 9 mm shell casing.
Appellant's objection, the trial court permitted the
Commonwealth to go outside the agreed-upon summary and
introduce recorded portions of Dr. Burrows' actual
guilt-phase testimony. That testimony included a gruesome
macabre description of the decomposition of Parson's
body. Specifically, the jury heard that Parson's head had
fallen off his torso and was carried to the autopsy lab in a
baby-sized body bag; that Parson's left arm had detached
from his body; that decomposition rendered his face
unrecognizable; that maggots and insects infested the body;
and that large portions of the skin were removed by animal
and insect activity.
KRE 402 and KRE 403,  Appellant argues that this
additional detail was unnecessarily cumulative, given the
summary's reference to Parson's "badly
decomposed" body, and irrelevant to a penalty
determination for the kidnapping charge. He also argues that
the testimony prejudicially overemphasized the gruesome
condition of Parson's body long after the kidnapping.
review a trial court's decision as to the relevance of
evidence for abuse of discretion. Love v.
Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). Whether
relevant evidence should be excluded as unduly prejudicial or
needlessly cumulative is also a matter we leave to the trial
court's sound discretion. Webb v. Commonwealth,
387 S.W.3d 319, 325-26 (Ky. 2012). A trial court abuses its
discretion when it decides an issue arbitrarily,
unreasonably, unfairly, or unsupported by sound legal
principles. Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999).
trial court reasoned that Dr. Burrows' vivid description
of Parson's decaying body was relevant because it helped
the jury understand the kidnapping in context-that it was not
simply a kidnapping, but a kidnapping in which the victim was
not released alive. The Commonwealth argues that the details
assisted the jury by providing "background information
on the crime;" in "assessing Gaither's [claim
of self-defense];" and in "assessing the
aggravating and mitigating circumstances" leading to an
unable to see how the ghastly details about the victim's
remains shed any light on the sentencing issue beyond what
was otherwise provided by the stipulated statement of
evidence. The fact of Parson's death was not disputed.
Parson's disappearance, together with the blood found in
and about Parson's van, and a bullet hole, a bullet, and
a shell casing found in the van, all of which were noted in
the stipulated summary, established the proximate time of the
kidnapping and of Parson's death. The gruesome details of
the body's decomposition two months later did not augment
the jury's appreciation of the gravity of the crime.
Nevertheless, despite the irrelevance of the evidence and its
cumulative nature, we fail to discern any substantial
prejudicial effect upon Appellant's sentence. A
non-constitutional evidentiary error is deemed harmless
"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). We are confident that the grim details provided
by Burrows' trial testimony did not sway the verdict.
THE VICTIM ...