RICKY L. WELCH APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
APPEAL FROM CARROLL CIRCUIT COURT HONORABLE REBECCA LESLIE
KNIGHT, JUDGE NO. 16-CR-00042.
COUNSEL FOR APPELLANT: Robert Chung-Hua Yang Assistant Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Courtney J. High tower Assistant Attorney General
a jury trial in Carroll Circuit Court, Ricky Welch was
convicted of first-degree robbery, kidnapping, third-degree
burglary and of being a first-degree persistent felony
offender ("PFOl"). He was sentenced to fifty
years' imprisonment. Welch appeals as a matter of
right and raises four claims of error: (1) the
trial court abused its discretion by excluding Welch's
eyewitness expert testimony, (2) the trial court should have
prevented law enforcement officers from presenting expert
testimony regarding boot prints and infrared cameras, (3) the
photo pack shown to the victim was unduly suggestive due to
law enforcement's failure to follow recommended
procedures from the Department of Justice, and (4) cumulative
error warrants reversal. Finding none of Welch's claims
meritorious, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND.
February 10, 2016, Judy Jones, the owner of Country Treasures
in Carrollton, Kentucky was delivering breakfast to her
friend, J.D. Arnold, at his home. Jones arrived at
Arnold's home around 9:45 a.m. after a fresh layer of
snow had fallen on the ground. As Jones was leaving around
10:00 a.m., she saw a man approaching her from Arnold's
barn. The man pointed a gun at her and told her she was being
robbed. The man, who was carrying a small black gun, told
Jones to get in the car and drive. The man wore a hooded
sweatshirt that covered part of his face, but she could tell
his skin was "red as fire." Once they were both in
the car the man told Jones to "give me your f*******
money or I'm going to kill you." Jones gave the man
all the money she had, about $500 and a couple checks.
she started driving, Jones began to cry. The man told her
shut up or he would kill her. Around this time, Jones figured
out that the man was Ricky Lee Welch. Jones knew Welch
because he was her sole employee's nephew. Jones knew
that her employee had raised Welch and Welch had been in the
store on five or six different occasions.
followed Welch's directions and steered the car to the
back of Butler State Park. There, Welch told Jones to let him
out, drive away, and not call police, because he knew where
she lived, and he would come back and kill her. Jones had to
get out of the car to let Welch out because the child locks
were on in the back. When Welch exited the car, he ran into
the state park. Jones called a friend soon after Welch
disappeared, and that friend called police. When Jones
initially talked to police she gave a brief description of
her assailant, including that he was wearing dark pants and a
dark hooded sweatshirt. She did not tell them that she knew
the man was Welch because the woman who raised him was a
close friend, and she was still afraid that he would kill her
if she told.
gave police a brief description of the robber and told them
that Arnold had an infrared trail camera in his barn.
Assistant Chief of Police Tim Mitchell was dispatched to the
entrance of the state park, and he found a set of bootprints
which he followed to the Stack Tite Factory parking lot.
Deputy Rodney Hawkins received the S.D. card from the camera
around noon the same day. Deputy Hawkins reviewed the images
and recognized Welch from one of the images. Deputy Hawkins
then met with Assistant Chief Mitchell and Officer Tim
Gividen in the Stack Tite Factory parking lot. Both Mitchell
and Gividen also recognized Welch. Officer Gividen knew Welch
was staying at a location close to the factory. Upon arrival
at Welch's place of residence, Deputy Hawkins saw
bootprints in the snow that looked similar to the ones he had
seen at Arnold's home.
entry, the officers found Welch standing in the shower, fully
clothed. Welch had a pair of wet and muddy black sweat pants
draped over his shoulder. Officers discovered Welch's
wallet hidden in between some towels with $248 inside. A dark
hooded sweatshirt was also discovered in the laundry.
Officers did not find a weapon, but Welch's grandmother
stated that he did have a black gun that she had not seen in
a few days. Welch's grandmother also gave Welch an alibi,
testifying that Welch had left the home around 6:00 a.m. and
returned home around 9:45 a.m., before the robbery.
was transported to the Carroll County Sheriffs Department,
where a computer program created a photo lineup that included
a picture of Welch and five other white men with similar
features against the same background. Jones came down to the
station, was shown the photo lineup, and immediately
identified Welch as the person who robbed her. She was also
asked to listen to a voice from an adjacent room and
identified the voice as the robber. Welch, the man in
adjacent room, was subsequently arrested and indicted on
charges of first-degree robbery, kidnapping, third-degree
burglary, and PFO1.
trial, Welch sought to introduce the testimony of eyewitness
testimony expert, Dr. Jeffrey Neuschatz. For reasons
discussed below, Dr. Neuschatz was not allowed to testify at
trial, but was allowed to testify by avowal. Upon conclusion
of trial, a jury convicted Welch of all charges and the trial
court sentenced him to fifty years' imprisonment. This
STANDARD OF REVIEW.
Welch's claims of error were preserved for appellate
review. Moreover, they are all evidentiary issues. We review
the trial court's factual findings for clear error.
Duncan v. Commonwealth,322 S.W.3d 81, 95 (Ky.
2010). Further, "[t]he standard of review of an
evidentiary ruling is abuse of discretion. The test for abuse
of discretion is whether the trial judge's decision was
arbitrary, unreasonable, unfair, or ...