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Posey v. Commonwealth

Supreme Court of Kentucky

August 29, 2019

GREGORY Q. POSEY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM LOGAN CIRCUIT COURT HONORABLE JOHN L. ATKINS, SPECIAL JUDGE NO. 16-CR-00195

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

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Lucas Assistant Attorney General Office of Criminal Appeals Office of the Attorney General

          OPINION

          HUGHES JUSTICE

         Gregory Q. Posey appeals as a matter of right from the Logan Circuit Court judgment sentencing him to life in prison for murder and being a convicted felon in possession of a handgun. Posey was convicted of murdering Patrick "PJ" Gilbert, who was in a relationship with Posey's ex-girlfriend, the mother of his two children. On appeal, Posey argues that the trial court erred in (1) failing to give the jury an instruction on extreme emotional disturbance, (2) failing to admonish the jury, and (3) failing to exclude prior convictions provided prior to the penalty phase. Finding no error, we affirm the trial court.

         FACTS AND PROCEDURAL HISTORY

         From 2009 to 2014 Gregory Posey and Chelsea Ogles were in a relationship which produced two children. In 2015, Ogles entered a relationship with Posey's friend, Patrick "PJ" Gilbert. When Posey learned of their relationship, he was angry and felt disrespected and betrayed. Posey called Judge Tyler Gill, the local circuit judge, on March 28, 2016, because he was very upset and expressed that he did not care whether he went to the penitentiary or the graveyard but he refused to let someone keep disrespecting him.[1] Judge Gill met with Posey a short time after their phone conversation. At trial, Judge Gill testified that during the in-person conversation he tried to reason with Posey and reminded him of the potential consequences of taking extreme action. Judge Gill stated that after Posey expressed that consequences did not matter to him, Judge Gill arranged for immediate counseling for Posey.

         After talking with Posey, Judge Gill asked a sheriff to speak with Chelsea and PJ to warn them because Posey was very upset. The sheriff also attempted to find Posey. Because of these potential threats to harm either Chelsea or PJ, the police began monitoring Posey's Facebook account. As early as June 2015 (more than a year before PJ's murder), Posey began making threatening comments to PJ via text message and Facebook. At trial, the Commonwealth introduced numerous messages from Posey to PJ stating things like "you can't hide forever," Posey swearing on his life that PJ is going to die, and that he bets he will kill PJ before PJ kills him.[2]

         On July 24, 2016, Patrick "PJ" Gilbert (PJ) was playing dice with friends in a small room used for gaming. Posey entered the room and shot PJ five times. PJ then crawled outside where he died soon after.

         After a jury trial, Posey was convicted of murder and being a convicted felon in possession of a firearm and he was sentenced to life imprisonment.[3]Posey now appeals his conviction as a matter of right.

         ANALYSIS

         Posey alleges three errors on appeal: (1) the trial court erred by not giving an instruction for first-degree manslaughter based on extreme emotional disturbance; (2) the trial court should have admonished the jury that prior threats are not substantive evidence that Posey committed a crime, and (3) the trial court should have excluded prior convictions that were provided to the defense the morning of sentencing. We address each argument in turn.

         I. The Trial Court Did Not Err in Denying Posey's Request for a First-Degree Manslaughter Instruction Under Extreme Emotional Disturbance.

         When discussing jury instructions during trial, Posey argued that he was entitled to a first-degree manslaughter instruction on the grounds that he acted under extreme emotional disturbance (EED). Posey argued that his Facebook posts and the text messages he sent to PJ showed his state of mind, i.e., that he was "beyond upset." He stated that finding out Chelsea was pregnant constituted the triggering event, which led to PJ's death.

         The Commonwealth disagreed, stating that there was no testimony as to how or when Posey found out about the pregnancy, the alleged triggering event. Further, the Commonwealth suggested Posey may have pre-meditated using EED as a defense based on a text message Posey sent to PJ that contained death threats and stated "[n]ot guilty on the grounds of insanity." After hearing arguments from both sides, the trial court decided against providing a first-degree manslaughter instruction on the basis of EED. On appeal, Posey argues that the trial court erred in failing to instruct the jury based on EED. "We review a trial court's rulings regarding jury instructions for an abuse of discretion." Ratliffv. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006) (citing Johnson v. Commonwealth, 134 S.W.3d 563, 569-70 (Ky. 2004)).

         Under Kentucky Revised Statute (KRS) 5O7.O3O(1)(b),

[a] person is guilty of manslaughter in the first degree when:
[w]ith intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the ...

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