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Welch v. Commonwealth

Supreme Court of Kentucky

December 13, 2018

RICKY L. WELCH APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM CARROLL CIRCUIT COURT HONORABLE REBECCA LESLIE KNIGHT, JUDGE NO. 16-CR-00042.

          COUNSEL FOR APPELLANT: Robert Chung-Hua Yang Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. High tower Assistant Attorney General

          OPINION

          VANMETER, JUSTICE

         Following 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[1] 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND.

         On 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.

         Once 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.

         Jones 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.

         Jones 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.

         Upon 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.

         Welch 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.

         At 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 appeal followed.

         II. STANDARD OF REVIEW.

         All of 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 ...


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