ERIC CLARK V COMMONWEALTH OF KENTUCKY
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THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
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CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY CO UR T OF THIS STA TE.
RENDERED : SEPTEMBER 18, 2003
NOT TO BE PUBLISHED
,$ixpzemle (9vuli of
2002-SC-0755-MR
APPELLANT
ERIC CLARK
V
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
1998-CR-2424
APPELLEE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from a judgment based on a jury verdict which convicted Clark of
murder . After the jury returned its verdict, Clark pied guilty to being a second-degree
persistent felony offender and was sentenced to life in prison .
Clark offers three claims of error. First, the trial judge refused to instruct on the
defense of intoxication, and to include second-degree manslaughter as a lesser
offense . Second, the trial judge allowed the introduction of evidence that the victim was
going to seek an emergency protection order against Clark . Introduction amounted to
evidence of past crimes or bad acts . Third, the trial judge improperly allowed the
introduction of sympathy evidence during the guilt phase of the trial .
Clark and the victim divorced in 1997 after approximately 7 years of marriage .
They reconciled in June 1998 and lived together in an apartment. The victim was an
assistant store manager at the Disabled American Veterans store near their home .
Clark had been terminated from his position there in early September 1998 after he
walked off the job.
The victim was found dead in the apartment by an EMT shortly after 11 p.m. on
September 21, 1998. She was lying on her stomach just inside the front door and a
large kitchen butcher knife was next to her. Medical testimony was that the victim died
of a sharp force injury to her left upper chest that penetrated her heart .
At trial, the evidence showed that Clark was seen exiting the victim's apartment
and was overheard saying that he had "killed the bitch, are you happy." After leaving
the victim's apartment, Clark returned to his friend's apartment where he again
acknowledged that he had killed his ex-wife. Ultimately, Clark went to his sister's house
and asked her to take him to the police station because he had "done something" to the
victim . He was arrested and his clothing was taken as evidence . Testing of the blood
stains on the clothing indicated that the blood was consistent with that of the victim .
Clark was convicted of murder and entered a plea agreement with the
Commonwealth whereby he would plead guilty to being a second-degree persistent
felony offender, forego jury sentencing and agree to a life sentence. This appeal
followed .
I . Intoxication
At trial, the defense introduced evidence that Clark had been drinking on the day
of the crime . Evidence was introduced that showed Clark to be in control of his
faculties in and around the time of the murder. There is no evidence of record where
Clark is said to be acting erratically or out of the ordinary, beside the act itself .
In order to justify an instruction on intoxication there must be evidence not only
that the defendant was drunk, but that he was so drunk that he did not know what he
was doing . Stanford v. Commonwealth , Ky., 793 S.W .2d 112,118 (1990) ; Meadows v.
Commonwealth , Ky., 550 S.W .2d 511 (1977).
Clark cites no evidence of any behavior beyond simple drunkenness to support
that such an instruction was justified . The record holds evidence of Clark taking a
shower and telling his friends what he had done soon after. The trial judge did not err
by refusing an instruction on intoxication and second-degree manslaughter as a lesser
included offense.
II . EPO as prior crimes or bad acts
The trial judge allowed the victim's mother as well as the victim's boss to testify
as to the victim's intention to get an EPO against Clark. During the trial, defense
counsel objected to the admission of the mother's testimony on relevancy grounds.
There was never any KRE 404(b) objection made to the trial judge.
Relief may only be granted in cases of unpreserved error when manifest injustice
will result . RCr 10.26 . All the circumstances may be shown which have a relation to
the particular violation of the law imputed, even if, in doing so, other offenses may be
brought to light . Dye v. Commonwealth , Ky., 477 S.W .2d 805 (1972): Francis v.
Commonwealth , Ky., 468 S .W .2d 287, 289 (1971) . Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in
conformity therewith . It may, however, be admissible : (1) if offered for some other
purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . KRE 404(b).
Any evidence used to swear out an EPO against Clark would have to pertain to
his actions toward the victim . The intention of the victim and her mother is highly
probative of Clark's intent and occurs in the immediate time preceding the murder. The
swearing out of and EPO has a probative value which outweighs any undue prejudice
to the defendant and is therefore admissible under KRE 404(b) and the case law. As to
the requirements of notice under KRE 404(c), that issue was definitely not preserved in
the trial court. The lack of notice did not substantially affect the rights of the defendant,
and is therefore not reversible error.
III . Evidence of victim in guilt phase
At trial, the victim's mother testified that the victim had graduated from high
school and that the victim was shy. The prosecution brought in a photograph of the
victim . The defense objected on the basis of relevancy, because identification of the
victim was irrelevant .
This Court has refuted that testimony from the victim's parents regarding
personal and educational activities must be excluded . There is no error in bringing to
the attention of the jury that the victim was a living person, and not a mere statistic.
McQueen v . Commonwealth , Ky., 669 S .W .2d 519, 523 (1984). See also Campbell v.
Commonwealth , Ky., 788 S.W .2d 260, 263 (1990) . A certain amount of background
information regarding the victim is relevant to understanding the nature of the crime.
Sanborn v . Commonwealth, Ky., 754 S .W .2d 534, 542 (1988).
The prosecution did not introduce any evidence that inflamed the passions of the
jury . The evidence presented brought to life a simple outline of the victim . This
evidence was completely relevant as background to the crime . No error occurred in the
admission of the evidence .
Therefore, the judgment of the Jefferson Circuit Court is affirmed .
Lambert, C.J., Graves, Stumbo and Wintersheimer, JJ ., concur. Keller, J .,
concurs in result only.
Cooper, J., concurs by separate opinion and is joined by
Johnstone, J .,
COUNSEL FOR APPELLANT :
Donna L. Boyce
Appellate Branch Manager
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
A. B. Chandler III
Attorney General of Kentucky
William Robert Long Jr.
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : SEPTEMBER 18, 2003
NOT TO BE PUBLISHED
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Courf of ~rnfixxhv
2002-SC-0755-MR
ERIC CLARK
V
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
1998-CR-2424
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE COOPER
I concur in the result reached in this case only because the erroneous admission
of evidence of the victim's intent to seek an emergency protective order (EPO) against
Appellant on the day following her death was not properly preserved for review.
In Moseley v. Commonwealth , Ky., 960 S .W.2d 460 (1997), another domestic
homicide case, witnesses for the prosecution were permitted to testify that the victim
had related to them before her death specific acts of domestic violence perpetrated
against her by the defendant . We held that, while evidence of past abuse was relevant
to prove intent to kill on the subsequent occasion, KRE 404(b)(1), the testimony in
question was inadmissible because it was hearsay . Id. at 461-62 .
Here, both the victim's supervisor and the victim's mother testified that the victim
intended to seek an EPO against Appellant on the day following her death . Of course,
an EPO can only be obtained upon the filing of a petition setting forth specific acts of
alleged domestic violence or abuse committed by the perpetrator. KRS 403.730(1)(c) .
Neither the supervisor nor the mother testified to having personally observed Appellant
commit any such acts. In fact, the supervisor testified that Appellant visited the victim at
her place of employment on the afternoon of the killing and that his demeanor was not
belligerent but polite and well mannered. The mother testified that she had never
observed any animosity between Appellant and the victim during her visits to their
home. Prior to testifying, both witnesses were cautioned by the prosecutor and, at the
prosecutor's request, by the trial judge not to testify to any statements made to them by
the victim. Nevertheless, their testimony that the victim intended to seek an EPO
against Appellant was "indirect hearsay" that was equally as inadmissible as the
hearsay admitted in Moseley .
If the apparent purpose of offered testimony is to use an out-of-court
statement to evidence the truth of facts stated therein, the hearsay
objection cannot be obviated by eliciting the purport of the statements in
indirect form .
Sherley v. Commonwealth , Ky., 889 S .W.2d 794, 802 (1994) (Leibson, J ., concurring)
(quoting McCormick on Evidence § 240 . at 593 (Cleary ed . 1972)) .
In Mitchell v . Hoke , 745 F.Supp. 874, 876 (E.D .N .Y. 1990), affd , 930 F.2d 1 (2d
Cir. 1991), a witness, Primus, in the presence of a police detective, had identified the
defendant at a pretrial lineup but did not testify at trial despite the fact that he was not
"unavailable ." Instead, the detective testified that (1) Primus had identified "someone"
at the lineup and, subsequently, (2) the defendant was arrested . Under New York law,
a witness's pre-trial identification is inadmissible hearsay unless the witness cannot
identify the defendant on the basis of present recollection or is otherwise unavailable .
New York Crim.Proc .Law § 60 .25 (McKinney 1981) . Compare KRE 801A(a)(3); Owens
v. Commonwealth , Ky., 950 S.W.2d 837 (1997). To quote from Judge Weinstein's
opinion :
The prosecution attempted to avoid the hearsay rule by not asking the
detective who Primus picked out of the lineup, but rather asking whether
he picked someone, and who was arrested as a result. This is a
distinction without a legal difference . The case provides a classic example
of indirect hearsay. The act of the hearer (the detective) leads by direct
inference to the precise words of the speaker (the identifying witness).
Since the speaker's credibility must be evaluated to determine the
probative force of this line of identification proof, the hearsay rule applies.
The jury could only draw one reasonable inference from the
detective's testimony : that Primus selected Mitchell . The detective in
effect repeated the substance of Primus's out-of-court statement.
Mitchell , supra, at 876 .
Here, the prosecutor was careful not to elicit from the supervisor and the mother
that the victim had told them about prior incidents of past domestic violence perpetrated
against her by Appellant.
However, their testimony that the victim intended to seek an
EPO against Appellant conveyed that same information by indirect hearsay. The
prosecutor then used this evidence to argue during summation that there must have
been something wrong with the relationship between Appellant and the victim ;
otherwise, the victim would not have intended to obtain an EPO against him .
Unfortunately, defense counsel did not object to the supervisor's testimony and
objected to the mother's testimony only on the basis that "what the victim intended to do
was irrelevant." Where the objecting party states grounds for the objection at trial, new
and different grounds cannot be asserted on appeal . Ruppee v . Commonwealth , Ky.,
821 S.W.2d 484, 486 (1991); Miller v. Watts , Ky., 436 S .W.2d 515, 522 (1969) . Nor do I
find that any manifest injustice resulted from this unpreserved error . RCr 10.26 . The
evidence against Appellant was absolutely overwhelming . Accordingly, I concur in the
affirmance of his conviction .
Johnstone, J ., joins this concurring opinion .
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