MEYERS (KEITH EDWARD FRANCIS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 23, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000376-MR
KEITH EDWARD FRANCIS MEYERS
v.
APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 08-CR-00034
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KELLER, AND VANMETER, JUDGES.
VANMETER, JUDGE: Keith Edward Francis Meyers appeals from the judgment
of the Hickman Circuit Court sentencing him to eighteen-years’ imprisonment for
possession of a firearm by a convicted felon and for being a second-degree
persistent felony offender (PFO). For the following reasons, we affirm.
Stemming from a course of events on May 10, 2008, involving
Meyers, his wife S.C., and others, Meyers was indicted on nine charges: firstdegree rape, first-degree sodomy, kidnapping, first-degree wanton endangerment,
possession of a firearm (handgun) by a convicted felon, tampering with physical
evidence, theft by unlawful taking over $300, criminal attempt to commit murder,
and first-degree PFO. Meyers pled guilty to the amended charges of first-degree
sexual abuse and tampering with physical evidence, and upon motion by Meyers,
the trial court severed for trial the charges of possession of a handgun and PFO.
Prior to trial, Meyers moved to preclude S.C. from testifying against
him on the basis that her testimony was inadmissible under the marital privilege of
KRE1 504. The trial court denied his motion and admitted S.C.’s testimony as an
exception to the marital privilege under KRE 504(c)(2)(A). S.C. testified that on
May 10, 2008, she and Meyers got into an argument at Todd Rushing’s residence
and Meyers took a handgun from Rushing’s bedroom wall and pointed it at her,
stating “he was going to shoot at the cops and make them shoot him because he
didn’t want to go back to jail.”
During trial, Meyers admitted to committing the offense of possession
of a handgun by a convicted felon; specifically, that he took a handgun from the
bedroom wall of Rushing’s residence. Meyers pleaded to the jury for mercy
during sentencing. The jury returned a verdict of guilty and recommended a
1
Kentucky Rules of Evidence.
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sentence of eighteen-years’ imprisonment, which the trial court imposed. This
appeal followed.
Meyers claims the trial court abused its discretion by denying his
motion to prevent S.C. from testifying. Specifically, Meyers contends that S.C.’s
testimony was not admissible as an exception to the marital privilege because the
trial on the severed charge of possession of a handgun by a convicted felon was a
separate “proceeding” from the remaining counts of the indictment and involved
no allegations of wrongful conduct against S.C. He further avers that S.C.’s
testimony was unnecessary and prejudicial. We disagree.
We review a trial court’s evidentiary rulings for an abuse of
discretion. Penman v. Commonwealth, 194 S.W.3d 237, 245 (Ky. 2006). The test
for abuse of discretion is whether the trial court’s decision was “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth
v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
KRE 504 provides, in relevant part:
(a) Spousal testimony. The spouse of a party has a
privilege to refuse to testify against the party as to events
occurring after the date of their marriage. A party has a
privilege to prevent his or her spouse from testifying
against the party as to events occurring after the date
of their marriage.
....
(c) Exceptions. There is no privilege under this rule:
....
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(2) In any proceeding in which one (1) spouse
is charged with wrongful conduct against the
person or property of:
(A) The other;
(B) A minor child of either;
(C) An individual residing in the household of
either; or
(D) A third person if the wrongful conduct is
committed in the course of wrongful conduct
against any of the individuals previously named
in this sentence;
(Emphasis added).
The trial court held that the “proceeding” for purposes of KRE
504(c)(2)(A) encompassed every count contained in the indictment, including
those counts alleging wrongful conduct against S.C. Although this issue
apparently has not been resolved by any Kentucky court, we note that the policy
concerns of the marital privilege, and the application of its exceptions, have been
addressed in Gonzalez De Alba v. Commonwealth, 202 S.W.3d 592 (Ky. 2006).
In Gonzalez, the Kentucky Supreme Court upheld the trial court’s
admission of the defendant’s wife’s testimony under an exception to the marital
privilege, KRE 504(c)(2)(D). Gonzalez was indicted and convicted of fourthdegree assault against his wife and murder of his wife’s adult son, both charges
stemming from an argument which escalated and produced two violent crimes.
While Gonzalez conceded that he could not prevent his wife from testifying about
the assault, he sought to prevent her testimony concerning the murder under KRE
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504(a), arguing that the murder charge “though close in time, was factually distinct
from the assault he was alleged to have committed against [his wife.]” Id. at 596.
The trial court in Gonzalez allowed the wife to testify about the
murder under KRE 504(c)(2)(D), reasoning that the defendant’s assault against his
wife was the first in a connected series of wrongful acts that culminated in the
murder of his wife’s son. On appeal, the Court affirmed, holding that “[t]o
conclude otherwise, and thereby deny [the wife] the right to testify, would amount
to an unjustifiable expansion of the spousal testimony privilege.” Id. at 596-97.
Though the wife’s testimony in Gonzalez was admitted under a
different exception than the one applied in this case, both Gonzalez and the case at
bar involve allegations of wrongful conduct committed by the defendant against
his wife, or in her presence, evolving from a course of events on one particular
day. The Court in Gonzalez emphasized that the marital privilege should be
construed narrowly:
The exceptions provided in KRE 504(c)(2) reflect the
fact that the marital privilege is considered by many to be
in disfavor as a result of abuses which prevent
ascertaining the truth. . . . The courts have approached
the privilege by narrowly and strictly construing it
because it has the potential for shielding the truth from
the court system. Many courts have determined that
when the reason supporting the privilege, marital
harmony, no longer exists, then the privilege should not
apply to hide the truth from the trier of fact.
Id. at 596 (citations omitted).
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Here, the charges of wrongful conduct by Meyers against S.C.,
coupled with S.C.’s firsthand knowledge of his possession of the handgun, call into
question the need to shield her testimony from the court under the marital
privilege. Meyers maintains that since he admitted to possessing the handgun,
S.C.’s testimony was unnecessary. However, as noted in Johnson v.
Commonwealth, 105 S.W.3d 430 (Ky. 2003), “the prosecution is permitted to
prove its case by competent evidence of its own choosing, and the defendant may
not stipulate away the parts of the case that he does not want the jury to see.” Id. at
438-39 (quoting Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky. 1998)). In
this case, the trial court determined that S.C.’s testimony concerning the facts and
circumstances of Meyers’ possession of the handgun was relevant for purposes of
establishing her credibility, or veracity, as a witness. Further, denying S.C. the
right to testify would amount to an unjustifiable expansion of the marital privilege.
Thus, admitting her testimony was not an abuse of the trial court’s discretion.
The judgment of the Hickman Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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