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Gaither v. Commonwealth

Supreme Court of Kentucky

June 15, 2017



          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



         In 2004, Appellant Scot E. Gaither was convicted and sentenced in the Daviess Circuit Court for the 2001 kidnapping of James Parson[1] 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. 23, 2006).

         Later, 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.[2] 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.

         Appellant 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.


         Pursuant 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.[3]

         Although 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.

         Over 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.

         Citing KRE 402[4] and KRE 403, [5] 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.

         We 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).

         The 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 appropriate sentence.

         We are 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.

         II. THE VICTIM ...

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