GREGORY SAYLOR V KENTON COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 23, 2004
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2002-SC-0456-DG
[DATE
GREGORY SAYLOR
V
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO . 2000-CA-2915
CIRCUIT COURT NO . 00-CR-2915
KENTON
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Roy Thomas Faulconer was found stabbed to death at his residence in
Covington, Kentucky, on the afternoon of August 26, 1999 . In addition to a fatal stab
wound through the heart, Faulconer's throat had been cut and there were defensive
stab wounds to his arms. Appellant, Gregory Saylor, admitted killing Faulconer but
claimed he did so in self-defense . Following a trial by jury in the Kenton Circuit Court,
Appellant was convicted of manslaughter in the first degree ("manslaughter 1 st") and
sentenced to eighteen years in prison . The Court of Appeals affirmed . On discretionary
review, Appellant asserts the following claims of error: (1) the trial court failed to require
the Commonwealth to provide discovery of the Covington Police Department's entire
records pertaining to Faulconer so that he could use them to prove Faulconer's violent
disposition ; (2) the prosecutor exercised a peremptory strike in violation of Batson v.
Kentucky, 476 U .S . 79, 106 S .Ct. 1712, 90 L .Ed.2d 69 (1986) ; (3) the trial court failed to
direct a verdict of acquittal because of the Commonwealth's failure to properly prove its
case ; (4) the trial court failed to direct a verdict of acquittal on the Commonwealth's
theory of wanton murder ; and (5) the trial court failed to give separate "stand alone"
instructions on lesser included offense of manslaughter in the second degree
("manslaughter 2nd") and reckless homicide . Finding no error, we affirm.
Appellant was forty-three years old when Faulconer was killed ; Faulconer was
several years older. The two had been friends since childhood and lived only three
blocks apart. Appellant arrived at Faulconer's residence for a visit at approximately 2 :00
a .m. on August 26, 1999. As usual, Appellant was wearing his buck knife in a sheath
on his belt. Another acquaintance, Ronnie Gregory, whom Appellant described several
times as an "enforcer" for a motorcycle gang known as the "Iron Horsemen," was also
present . According to Appellant, Gregory approached him and, without warning, hit him
in the side of the head with a pipe wrench and demanded that he apologize for having
referred to Faulconer as a "snitch." (Gregory testified that he only struck Appellant with
his fist.) Faulconer then picked up his .357 magnum Smith & Wesson handgun and
pointed it at Appellant . Gregory took the gun from Faulconer and threatened to shoot
Appellant . No further violence ensued and Gregory departed the residence at about
3:00 a .m.
Appellant testified that immediately after Gregory's departure, Faulconer charged
at him, again brandishing the handgun . Appellant was able to knock the gun away. As
Faulconer retrieved the gun, Appellant drew his knife . As the two wrestled on the sofa,
Appellant cut Faulconer's throat and stabbed him in the arms. Finally, he placed the
knife against Faulconer's chest, put his weight on it, and "pushed it in ." Appellant
claimed he then retrieved both the knife and the handgun, cut the telephone wire, and
left the residence before 6:00 a .m. In contradiction of Appellant's version of events,
Ronnie Gregory's sister, Phyllis Hall, testified that when she arrived at Faulconer's
residence at approximately 8 :00 a.m., Faulconer was asleep and his telephone was
ringing . She then awakened Faulconer, who told her that Gregory had been there the
night before but had left to go home . If Hall's testimony were believed, Appellant did not
kill Faulconer during a fight shortly after 3 :00 a.m ., but returned to Faulconer's residence
and killed him sometime after 8:00 a.m .
I. DISCOVERY .
Appellant filed a motion for discovery of all records of the Covington Police
Department pertaining to the victim . At a hearing on the motion, the trial court
essentially told the parties to "work it out." Appellant claims the Commonwealth
furnished him with records of three separate instances of prior violent misconduct on the
part of Faulconer. His claim of a discovery violation is premised upon the testimony of
Covington Police Detective Bud Vallandingham that he had been to Faulconer's
residence on at least 150-200 occasions and that several of those visits were for acts of
violence . Appellant's claim relates not so much to a claimed discovery violation as to
the fact that the trial court ruled that evidence of particular violent acts by Faulconer of
which Appellant was unaware was inadmissible . Obviously, Appellant could not have
been prejudiced by a failure to obtain evidence of misconduct by Faulconer that was
inadmissible .
Appellant posits that whenever a claim of self-defense is asserted, any evidence
tending to show that the victim was a violent person is admissible . He is mistaken .
Generally, a homicide defendant may introduce evidence of the victim's character for
violence in support of a claim that he acted in self-defense or that the victim was the
initial aggressor. KRE 404(a)(2) ; Johnson v. Commonwealth , Ky., 477 S.W.2d 159, 161
(1972); Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.15[4][b], at 104
(4th ed . LexisNexis 2003). However, such evidence may only be in the form of
reputation or opinion, not specific acts of misconduct . KRE 405(x) ; Lawson, supra, §
2.20[4], at 116 ("By providing only for the use of reputation or opinion evidence in this
situation, the rule plainly implies a prohibition on evidence of particular acts of
conduct.") . Specifically, in Johnson , our predecessor court held that a homicide
defendant could not introduce the victim's police record for the purpose of showing his
propensity for violence . Johnson , 477 S.W .2d at 161 .
An exception exists, however, when evidence of the victim's prior acts of
violence, threats, and even hearsay evidence of such acts and threats, is offered to
prove that the defendant so feared the victim that he believed it was necessary to use
physical force (or deadly physical force) in self-protection, "provided that the defendant
knew of such acts, threats, or statements at the time of the encounter." Lawson, supra,
§ 2 .15[4][d], at 105-06 . See also Commonwealth v. Higgs , Ky., 59 S.W .3d 886, 892
(2001) ; Commonwealth v. Davis , Ky ., 14 S .W .3d 9,14 (2000) ; Wilson v.
Commonwealth, Ky. App ., 880 S .W .2d 877, 878 (1994). In that scenario, the evidence
is not offered to prove the victim's character to show action in conformity therewith but
to prove the defendant's state of mind (fear of the victim) at the time he acted in selfdefense . "Obviously, such evidence could not be used to prove fear by the accused
without accompanying proof that the defendant knew of such matters at the time of the
alleged homicide or assault." Lawson, supra , § 2 .15[4][d], at 106 (citing Baze v.
Commonwealth , Ky., 965 S .W.2d 817, 824-25 (1997)) .
The trial court allowed Appellant to testify to six specific incidents of prior violent
conduct by Faulconer of which Appellant had knowledge at the time he killed Faulconer.
Presumably, Appellant was unaware at the time of the killing of any other prior acts of
violence by Faulconer as he did not offer evidence of any other such acts. Any
evidence contained in the Covington Police Department's records of acts of misconduct
by Faulconer of which Appellant was unaware was neither relevant nor exculpatory,
thus was inadmissible; and the failure to provide such evidence was not prejudicial .
II . BATSON.
The prosecutor used a peremptory strike to excuse Juror No . 102, the lone
African-American on the jury panel. Although Appellant is Caucasian, it is well settled
that he has standing to raise the Equal Protection issue. Campbell v. Louisiana , 523
U .S . 392, 118 S.Ct. 1419, 140 L.Ed .2d 551 (1998) ; Powers v. Ohio, 499 U.S. 400, 111
S .Ct. 1364, 113 L.Ed .2d 411 (1991) . When asked to state his reason for striking Juror
No. 102, the prosecutor responded that his office had previously prosecuted members
of the juror's family . The trial judge accepted the explanation as race-neutral and not
pretextual, and we conclude that the trial judge's finding in this respect was not clearly
erroneous. Caudill v. Commonwealth , Ky., 120 S .W.3d 635, 667 (2003) . See Berry v.
Commonwealth, Ky. App ., 84 S .W .3d 82, 88-89 (2001) (exercise of peremptory strike
against juror who admitted that family members had been criminally prosecuted did not
violate Batson ) .
III. COMPETENCY OF COMMONWEALTH'S EVIDENCE.
In addition to introducing the crime scene evidence, the Commonwealth proved
the cause of death through the testimony of the pathologist who conducted the
postmortem examination of Faulconer's body. At the conclusion of the
Commonwealth's case, Appellant moved for a directed verdict of acquittal because the
crime scene evidence was presented by witnesses other than the coroner, and proof of
cause of death came from a witness other than the coroner. He relies on KRS
72 .020(2):
The coroner shall take possession of any objects, medical specimens, or
articles which, in his opinion, may be helpful in establishing the cause of
death, and he can make or cause to be made such tests and
examinations of said objects as may be necessary or useful in determining
the cause of death . In the event that a criminal prosecution arises, all
such objects and articles together with reports of any examination made
upon them, shall be retained by the coroner until their production in
evidence is required by the prosecuting authority, unless otherwise
directed by written order of the court in which such prosecution is pending .
Manifestly, this statute is not a rule of evidence . To the extent that it imposes duties on
the coroner, any violation of those duties does not affect the admission of relevant,
competent, and properly identified evidence at a homicide trial. Even if it could be
argued that the evidence at trial was obtained by the police in violation of KRS
72 .020(2), such would not require its exclusion . Brock v. Commonwealth , Ky., 947
S.W.2d 24, 29 (1996) (exclusionary rule applies only to evidence obtained in violation of
a constitutional right). Finally, Appellant did not register a contemporaneous objection
to any of this evidence at the time it was introduced . KRE 103(a)(1) ; RCr 9 .22 . This
claim is as meritless as it is novel .
IV. WANTON MURDER.
Appellant claims he was prejudiced by the fact that the trial court overruled his
motion for a directed verdict of acquittal on the Commonwealth's theory of wanton
murder . The Commonwealth theorized that if Appellant killed Faulconer under a
mistaken belief in the need to use deadly physical force in self-protection, that mistaken
belief was so wantonly held as to manifest an extreme indifference to human life, thus
rising to the level of wanton murder. We specifically rejected that theory in Elliott v.
Commonwealth , Ky., 976 S .W .2d 416 (1998):
[T]he "wanton or reckless belief' analysis has no application to a charge of
wanton murder, because the existence of an actual subjective belief in the
need to act in self-protection necessarily precludes a finding of the
element of "extreme indifference to the value of human life" required by
KRS 507 .020(1)(b) .
Id . at 420 n.3 (citing Robert G. Lawson & William H. Fortune, Kentucky Criminal Law §
4-2(3)(3), at 152 n .90 (1998)). See also Commonwealth v. Hager, Ky., 41 S .W .3d 828,
842 (2001).
Nevertheless, the trial court withheld ruling on the motion until after Appellant
testified that he acted in self-defense, then effectively granted a directed verdict of
acquittal on this theory by failing to include it in the jury instructions . Kotila v.
Commonwealth, Ky., 114 S .W .3d 226, 236 (2003). Appellant offers no plausible
explanation as to how he was prejudiced by the fact that the trial court reserved its
ruling on the issue until after hearing Appellant's self-defense evidence instead of
directing a verdict of acquittal on the issue at the conclusion of the Commonwealth's
case . Although Appellant suggests that the ruling forced him to testify in his own
defense, that claim rings hollow in view of the admission during the Commonwealth's
case of his out-of-court statements that he killed Faulconer, the Commonwealth's proof
that blood stains on his shoes matched Faulconer's DNA profile, and the fact that his
only defense was self-protection .
V. INSTRUCTIONS .
The trial court instructed the jury in Instruction No . V on intentional murder, KRS
507 .020(1)(a), and in Instruction No . VI on both theories of manslaughter 1st, i.e. , intent
to injure but not to kill, KRS 507 .030(1)(a), and intent to kill but under extreme emotional
disturbance, KRS 507.030(1)(b) . The court then instructed the jury as follows with
respect to the defense of self-protection :
INSTRUCTION NO. VII
Even though the defendant might otherwise be guilty of Murder
under Instruction V, or First Degree Manslaughter under Instruction VI, if
at the time the defendant killed Roy Thomas Faulconer he believed that
Roy Thomas Faulconer was then and there about to use, or believed there
was an impending danger that Roy Thomas Faulconer would use physical
force upon him, he was privileged to use such physical force against Roy
Thomas Faulconer as he believed to be necessary in order to protect
himself against it, but including the right to use deadly physical force in so
doing only if he believed it to be necessary in order to protect himself from
death or serious physical injury at the hands of Roy Thomas Faulconer.
Provided, however, if you believe from the evidence beyond a
reasonable doubt that the defendant was mistaken in his belief that it was
necessary to use physical force against Roy Thomas Faulconer in self
protection, or in his belief in the degree of force necessary to protect
himself,
AND
A. That when he killed Roy Thomas Faulconer he was aware of
and consciously disregarded a substantial and unjustifiable risk that he
was mistaken in that belief, and that his disregard of that risk constituted a
gross deviation from the standard of care that a reasonable person would
have observed in the same situation, then you shall not find the defendant
guilty of Murder under Instruction V or First Degree Manslaughter under
Instruction VI, but shall instead find him guilty of Second Degree
Manslaughter under this instruction;
OR
B. That when he killed Roy Thomas Faulconer he failed to
perceive a substantial and unjustifiable risk that he was mistaken in that
belief, and that his failure to perceive that risk constituted a gross
deviation from the standard of care that a reasonable person would have
observed in the same situation, then you shall not find the defendant guilty
of Murder under Instruction V or First Degree Manslaughter under
Instruction VI, but shall instead find him guilty of Reckless Homicide under
this instruction .
Thus, the self-protection instruction was substantially the same as specimen
Instruction No. 7 recommended in Hager, 41 S .W .3d at 846-47 (though Ha er was
decided after the trial of this case). The trial court's instructions also included verdict
forms for the jury to use in finding Appellant not guilty, guilty of murder under Instruction
No . V, guilty of manslaughter 1 st under Instruction No . VI, guilty of manslaughter 2nd
under Instruction No. VII A, or guilty of reckless homicide under Instruction No. VII B.
Appellant's only objection to the instructions at trial was to the wanton and
reckless belief qualifications that would have allowed the jury to convict him of
manslaughter 2nd or reckless homicide even if the jury found that he subjectively
believed it was necessary to use deadly physical force against Faulconer in selfdefense . He does not raise the same objection on appeal . Instead, he claims that the
trial court confused the jury by not giving "stand alone" instructions on manslaughter
2nd and reckless homicide as set forth in Instructions Nos. 5 and 6 of the specimen
instructions recommended in Halter , 41 S .W.3d at 845-46 . In Ha er, however, there
was evidence that the defendant had unintentionally killed the victim, thus providing an
evidentiary basis for a conviction not only of manslaughter 2nd or reckless homicide, but
also of wanton murder (see specimen Instruction No. 3 B(2) in Halter , at 845) .
To reiterate, there are two theories under which a defendant can be convicted of
manslaughter 2nd: (1) the defendant acted without an intent to kill but with an
awareness and conscious disregard of a substantial and unjustifiable risk that his action
would result in the victim's death, KRS 507 .040(1) ; KRS 501 .020(3) ; and (2) the
defendant acted either with or without an intent to kill but under an actual but mistaken
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belief that the circumstances then existing required the use of physical force (or deadly
physical force) in self-protection, and with an awareness and conscious disregard of a
substantial and unjustifiable risk that such belief was mistakenly held . KRS 501 .020(3);
KRS 503.120(1) . Both theories require that the risk (that death would result or that the
belief in the need to act in self-protection was mistakenly held) was of such nature and
degree that disregard thereof constituted a gross deviation from the standard of care
that a reasonable person would observe in the situation . KRS 501 .020(3). Wanton
disregard of the risk that the defendant's actions would result in the victim's death
supplies the element of wantonness necessary to convict of manslaughter 2nd under
the theory set forth in KRS 507 .040(1) . Wanton disregard of the risk that the belief in
the need to use physical force (or deadly physical force) in self-protection was
mistakenly held supplies the element of wantonness necessary for conviction under the
theory set forth in KRS 503.120(1) . Elliott , 976 S .W.2d at 419-20.
Similarly, there are two theories under which a defendant can be convicted of
reckless homicide : (1) the defendant acted without an intent to kill but failed to perceive
a substantial and unjustifiable risk that his actions would result in the victim's death,
KRS 507 .050(1) ; KRS 501 .020(4) ; and (2) the defendant acted either with or without an
intent to kill but under an actual but mistaken belief that the circumstances then existing
required the use of physical force (or deadly physical force) in self-protection, and failed
to perceive a substantial and unjustifiable risk that such belief was mistakenly held.
KRS 501 .020(4); KRS 503 .120(1) . As with manslaughter 2nd, both theories of reckless
homicide require that the risk (that death would result or that the belief in the need to act
in self-protection was mistakenly held) was of such nature and degree that failure to
perceive it constituted a gross deviation from the standard of care that a reasonable
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person would observe in the situation . KRS 501 .020(4). Reckless failure to perceive
the risk that the defendant's actions would result in the victim's death supplies the
element of recklessness necessary to convict of reckless homicide under the theory set
forth in KRS 507.050(1) . Reckless failure to perceive the risk that the belief in the need
to use physical force (or deadly physical force) in self-protection was mistakenly held
supplies the element of recklessness necessary for conviction of reckless homicide set
forth in KRS 503.120(1). Elliott , 976 S .W.2d at 420.
Here, there was no evidence to support a conviction of manslaughter 2nd under
KRS 507 .040(1) or reckless homicide under KRS 507 .050(1) because there was no
evidence that Appellant did not intend to kill Faulconer. Appellant admitted as such in
his written motion for a directed verdict on the issue of wanton murder:
The Commonwealth's case has been entirely predicated upon the
supposition that the Defendant Saylor was intentional in his conduct and
that he meant to kill Faulconer. There has been no proof of wanton
behavior by the Defendant. . . . There has been proof of intentional
actions, of a fight and threats, and of a stabbing of Faulconer, but no proof
of wanton conduct .
Nor did Appellant testify to anything other than an intentional killing when he
testified in his own behalf . His theory of the case was that he knew Faulconer was such
a dangerous and violent man that he (Appellant) had no choice but to use deadly
physical force against Faulconer in self-protection. Thus, the only evidentiary basis for
a conviction of manslaughter 2nd or reckless homicide was that Appellant was wanton
or reckless in his belief in the need to use deadly physical force in self-protection.
There was no evidentiary basis for "stand alone" instructions on manslaughter 2nd or
reckless homicide premised upon a theory that Appellant unintentionally killed
Faulconer.
Accordingly, the decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
David E. Davidson
William C. Oldfield
Cobb & Oldfield
213 East 4th Street
P .O . Box 1078
Covington, KY 41012-1078
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Matthew D. Nelson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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