ERIC LEE ANTHONY V. COMMONWEALTH OF KENTUCKY

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In 2010 Anthony shot Dontae Thompson. He was convicted of the

shooting, was sentenced to prison, and had been released shortly before the

June 21, 2016, shootings at issue in this case. There were hard feelings

between Anthony and Thompson’s extended family because of the 2010

shooting that resulted in suspicions on both sides.

Murder victims Donte Jefferson and Montae Compton were Thompson’s

cousins. Dequandre Brown was a friend of Jefferson and Compton’s and was

also, unconnectedly, a friend of Anthony’s. Brown, who was present at the

shootings, testified that he, Jefferson, and Compton had followed Anthony in

Jefferson’s gray Chevrolet Impala earlier in the day to “see who he was with . .

see if he was on anything” because they were “hearing he’s out to . . . kill us

and things like that” and so they were “keeping tabs” on him. Anthony was

familiar with Jefferson’s Impala and was aware he was being followed.

The shootings occurred at an apartment located at 2802 Rodman Street

in Louisville. Brown was a drug dealer and was frequently at that location

dealing drugs.

Anthony was also a drug dealer. He testified that on the day of the

shootings, he received a text from a customer wanting to buy marijuana.

Anthony didn’t have any marijuana, and he testified he decided to find his

friend Brown and trade Brown some meth for some marijuana, something he

had done in the past. Anthony knew that Brown regularly stayed at the

Rodman Street apartment, and according to Anthony, he went to the

apartment to complete the trade.

Anthony testified that while he expected Brown to be at the location, he

did not expect Jefferson and Compton to be there. He further stated he would

have avoided being in the same room with Jefferson because if that occurred,

he believed Brown and Compton would be there as well and he would be

outnumbered.

On the evening of June 21, 2016, Jefferson, Compton, and Brown,

among others, were at the Rodman Street apartment. Jefferson and Compton

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were armed with pistols. Brown testified that about an hour before the

shootings, Anthony’s girlfriend, Cicely Morris, drove slowly past the apartment

twice, then parked in front of it. Morris lived about three blocks from the

apartment, and Anthony was at Morris’s apartment just before he left for the

Rodman Street apartment around 10:00 p.m. Anthony testified he parked his

car some distance away from the apartment and walked the rest of the way.

Jefferson had driven his Impala to the apartment that day, but he had

parked it in back so that it could not be seen from Rodman Street. Anthony

testified he did not see the Impala when he arrived at the apartment, and he

would not have gone to the apartment if he had seen the car or otherwise

known Jefferson was there. Nevertheless, although Anthony entered the

apartment from the back, he testified he did not see the Impala as he entered.

Anthony testified he carried a gun most of the time and had one with him

that evening. When Anthony arrived at the apartment, the rear door was open.

Brown and Jefferson were in the kitchen seated at the kitchen table, with

Jefferson nearest the door. Compton was in the front area of the apartment.

Tiffany Funk and Craig Ziegler were in the kitchen standing by a cabinet,

Jenna King was in a bedroom, and Ashley Hodges had just started to enter the

bathroom. King and Hodges lived in the apartment.

Anthony entered the apartment and asked where Brown was. According

to Brown, someone “yell[ed] my name . . . me and Donte looked at each other

like who was that. . . [Jefferson] reached for his gun” but “it fell out of his lap .

. . he was reaching for his gun, picking his gun up, so ... I knew he was ready

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to pick his gun up, he was ready to start shooting.” Brown stated he then

ducked into a closet.

Elsewhere in his testimony, Brown stated Anthony did not have his gun

drawn when he first walked in, but Jefferson first introduced a gun into the

situation by “go[ing] for his gun,” dropping it, and then starting to pick it up.

Brown testified Anthony “was pulling [his gun] out at the same time that

[Jefferson] was picking his gun up,” but Jefferson had started to pick up his

gun first before Anthony began shooting. It is worth noting, however, that

Jefferson’s picking up his gun does not necessarily equate to an intent to fire at

Anthony after retrieving it.

In contrast, Anthony testified that when he arrived at the back door,

Montea Compton drew his gun and he responded by raising his hands and

saying he was just there looking for Brown. According to Anthony, Compton

responded by placing the gun back on his lap. Anthony stated he started

walking toward Brown and then heard a thump and looked and saw Jefferson

trying to pick up his gun from the floor. Anthony then testified, “he’s got his

hand on his gun, he’s trying to pick it up, but looking at me.”

Anthony testified that upon seeing Jefferson pick up his gun and look at

him, he felt “panic,” drew his gun, and, while trying to back out of the

apartment, fired a shot toward Jefferson. Anthony stated he then observed

Compton “going for his gun again,” and so he shot toward Compton as well.

Anthony testified that while he was trying to exit the apartment, he saw other

people coming out of a bedroom and so he “just fired[d] two more random

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shots” and ran from the apartment. He further stated that while fleeing, he

saw that the front door was opening, and so he fired a couple of more shots

because he believed he was being chased.

As a result of the shootings, Jefferson and Compton were killed, and

Ashley Hodges and Craig Ziegler were wounded.

Sergeant Jason Vance was the lead detective on the case. Shortly after

the shootings, he interviewed Tiffany Funk and Ashley Hodges. Both identified

Anthony as the shooter. Anthony was arrested shortly after the shootings and

denied any involvement in the occurrence, including even being at the

apartment. Anthony filed a pretrial motion seeking to exclude Funk and

Hodges’ out-of-court identification of him.

Anthony’s defense at trial, contrary to his statement to the police the

night of the shooting when he claimed he was not at all involved, was self

defense. At the end of the trial, the jury convicted Anthony of two counts of

wanton murder, two counts of second-degree assault, three counts of first

degree wanton endangerment, and one count of possession of a handgun by a

convicted felon. He was sentenced to imprisonment for life.

II. CROSS-EXAMINATION OF ANTHONY ON HIS PRETRIAL MOTION TO SUPPRESS

Anthony contends the trial court erred by permitting the Commonwealth

to cross-examine him concerning his filing an unsuccessful pretrial motion to

suppress Tiffany Funk and Ashley Hodges’ identification of him. He argues

that the subject matter of the cross-examination was not relevant at trial and

served only to penalize him for asserting a constitutional right. He also

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contends that permitting cross-examination on the suppression motion had the

additional effects of impeding his right to advice of counsel, his right to testify

on his own behalf, and his right to present a defense.

Tiffany Funk and Ashley Hodges were both present at the Rodman Street

apartment when the shootings occurred, and both already knew Anthony.

Hodges testified she saw Anthony at the apartment but did not see the actual

shootings, while Funk testified she saw Anthony firing the gun. Funk and

Hodges were interviewed by the police following the shootings, and both

witnesses identified Anthony as the shooter.

Anthony filed a motion to suppress both the pretrial identification of him

as unduly suggestive and any in-court identification of him as being the

product of an unduly suggestive identification process. See Neil v. Biggers, 409

U.S. 188 (1972); Perry v. New Hampshire, 565 U.S. 228 (2012). The trial court

denied the suppression motion, and Anthony does not challenge that ruling;

rather, he challenges the trial court’s ruling permitting the Commonwealth to

cross-examine him on his having filed the motion.

The Commonwealth contends this cross-examination was proper because

its purpose was to reveal Anthony’s shifting stories and changing defenses and

to impeach him on these differing versions. Further, the Commonwealth

asserts its cross-examination demonstrated that when Anthony could not keep

these witnesses from testifying, he abandoned his original claim that he was

not present at the Rodman Street apartment that night and instead switched to

a self-protection defense.

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Our holding addressing an analogous situation in Coulthard v.

Commonwealth, 230 S.W.3d 572 (Ky. 2007), is dispositive of this issue. In

Coulthard the defendant was convicted of first-degree manslaughter and

tampering with physical evidence. On appeal Coulthard argued his

constitutional right to be free of warrantless searches was violated when the

Commonwealth introduced evidence that he had refused to consent to a

fingerprint sampling during the investigation. In support of his argument,

Coulthard relied on Deno v. Commonwealth, 177 S.W.3d 753 (Ky. 2005), a case

in which we held it is unconstitutional to penalize a defendant for exercising

his constitutional right to be free of warrantless searches. In Deno the

defendant refused to voluntarily consent to the taking of a biological specimen,

which refusal was then used against him at trial to show he acted

inconsistently with how an innocent person would act. Id. at 762

(“Nevertheless, the fact of Appellant’s initial refusal was presented as evidence

of his guilt and argued as such by the Commonwealth. We believe this to be a

violation of Appellant’s rights under the Fourth Amendment and Section 10 of

the Constitution of Kentucky! ]”).

Anthony raises a similar argument here. He argues his pretrial motion

was predicated upon his constitutional right not to be subjected to an

improperly obtained suggestive identification under Neil v. Biggers, and the

filing of that motion to vindicate this right was improperly allowed to be used

thereafter by the Commonwealth at trial as evidence of guilt. Just as was

Coulthard, however, this case is distinguishable from Deno. Unlike in Deno

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where the Commonwealth used the defendant’s refusal to give a biological

specimen purely to show that is not how an innocent person would act, here

there was a legitimate and proper use of the pretrial motion to, at minimum,

demonstrate (1) Anthony’s shifting and contradictory defenses, and (2) a

pattern in attempting to silence witnesses.

“In determining whether a constitutional right has been burdened

impermissibly, it also is appropriate to consider the legitimacy of the

challenged governmental practice.” Coulthard, 230 S.W. 3d at 583 (citing

Jenkins v. Anderson, 447 U.S. 231, 238 (1980)). In Coulthard we distinguished

the use of the fingerprint evidence impeachment from the facts in Deno in that

Coulthard’s refusal to consent to fingerprint sampling was relevant for

purposes other than to simply penalize him for the exercise of a legal privilege,

whereas there was no such legitimate other purpose in Deno. Coulthard, 230

S.W.3d at 582.

More specifically, in Coulthard we acknowledged the Commonwealth

utilized his refusal to consent to a fingerprint sample for the legitimate

purposes of rebuttal and impeachment of a self-defense claim advanced by

Coulthard at trial. That is similar to what occurred here. In this case the

Commonwealth did not seek to introduce the identification suppression motion

evidence to penalize Anthony by arguing an innocent person would not do that.

Rather, the Commonwealth sought to impeach Anthony’s self-defense claim by

showing he originally denied being at the Rodman Street apartment, but later

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changed his trial strategy when he was unable to suppress the eyewitness

testimony placing him at the apartment.

This case is on point with Coulthard. There, the Commonwealth argued

Coulthard’s claim of self-defense was not credible considering the

circumstances that transpired following the shooting, including evidence which

tended to show Coulthard initially did everything in his power to deny

involvement, including destroying evidence, and only when those attempts

failed did Coulthard change his story and claim self-defense. Id. at 582-83.

That is substantially what occurred here.

In finding that the refusal to submit to fingerprint sampling in Courthard

was properly used against the defendant at trial, we stated as follows:

Once Appellant submitted himself to cross-examination after claiming self defense at trial, it was not only appropriate but necessary for the Commonwealth to impeach Appellant's credibility and rebut his allegations. As the traditional truth-testing devices of the adversarial process, impeachment and rebuttal are vital to ensuring a just and fair trial. Thus, preserving each party's right to utilize such devices at trial should weigh heavily when considering counterbalancing claims of “constitutional privilege.” See Jenkins, 447 U.S. at 238, 100 S.Ct. 2124 (“Once a defendant decides to testify, ‘[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’”) (quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958)).

Coulthard, 230 S.W.3d at 584 (emphasis in original). See also Jenkins, 447

U.S. at 238 (The use of the defendant’s pre-arrest silence against him at trial

was not unconstitutional since “impeachment follows the defendant’s own

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decision to cast aside his cloak of silence and advances the truth-finding

function of the criminal trial[ ]”).

Coulthard also relied upon another case similar to this one, United States

v. Robinson, 485 U.S. 25 (1988). Coulthard, 230 S.W.3d at 583. In Robinson

the defendant’s attorney argued several times during closing argument that the

government never allowed the defendant (who did not testify) to explain his side

of the story. 485 U.S. at 26. In response, the prosecutor commented during

his closing argument that the defendant “could have taken the stand and

explained it to you.” Id. The defendant's convictions were subsequently

reversed on grounds that the prosecutor's comment regarding the defendant’s

failure to take the stand in his own defense violated the defendant's privilege

against self-incrimination. Id. at 29.

Upon review, the U.S. Supreme Court in Robinson found no violation of

any constitutional rights since the prosecutor's “reference to the defendant's

opportunity to testify [was] a fair response to a claim made by defendant or his

counsel.” Id. at 32. In so holding, the Court quoted Justice Stevens for the

following principle: “the protective shield of the Fifth Amendment should [not]

be converted into a sword that cuts back on the area of legitimate comment by

the prosecutor on the weaknesses in the defense case.” Id. (quoting United

States v. Hasting, 461 U.S. 499, 515 (1983) (Stevens, J., concurring) (citation

omitted)). See Coulthard, 230 S.W.3d at 583.

We also stated in Coulthard that “[although Jenkins and Robinson

involved the privilege against self-incrimination and whether arguments

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regarding its use violated either the Fifth or Fourteenth Amendments, the

principles set forth therein aptly apply to this case and the determination as to

whether these facts violated [Neil v. Biggers] and Section 10 of the Kentucky

Constitution.” Id. at 584.

Coulthard concluded with the following summary of the rule we apply

here:

Generally, such as in Deno, exercising one’s privilege to be free of warrantless searches is simply not probative (or has low probative value) to a determination of guilt, and thus, the defendant's right to not be penalized for exercising such a privilege is paramount. See, e.g., United States v. Thame, 846 F.2d 200, 207 (3rd Cir. 1988), United States v. Prescott, 581 F.2d 1343, 1350-51 (9th Cir. 1978).

However, in circumstances when such evidence is probative for some purpose other than to simply penalize the defendant for exercising a constitutional right, then notions of fair play and the need to preserve the truth-testing functions of the adversarial process may outweigh the defendant's interest in suppressing the evidence.

Id. at 584.

The facts in this case do not demonstrate a violation of Anthony’s

constitutional rights under Neil v. Biggers, any other federal constitutional

section, or Section 10 of Kentucky’s Constitution. The circumstances

surrounding Anthony’s efforts to suppress the identifications by Hodges and

Funk were fairly admitted for the proper purposes of rebutting and impeaching

Anthony’s claim of self-defense. Since we find that Anthony was not unfairly

penalized for exercising a constitutional right in this case, he is not entitled to

relief on this issue. See Coulthard, 230 S.W.3d at 584.

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Anthony makes essentially the same argument that the cross-

examination on the suppression issue was improper because it impeded his

right to advice of counsel, his right to testify on his own behalf, and his right to

present a defense. For the same reasons as explained above, we conclude that

the suppression motion evidence was properly presented to counter and

impeach Anthony’s self-protection defense. See Coulthard, supra.

The concurring opinion disagrees with the above analysis determining

that the trial court properly allowed the prosecutor to cross-examine Anthony

on his motion to suppress eyewitness identification so as to demonstrate to the

jury Anthony’s shifting defense from “I wasn’t there” to self-defense and thus to

refute his self-protection defense and, ancillary to that, to impeach his

credibility.

Under the facts of this case, pursuant to our holding in Coulthard, it was

permissible for the Commonwealth to call into question Anthony’s self

protection defense by noting he had acted inconsistently with that defense by

initially falsely claiming he was not at the residence that night, then seeking to

suppress witness testimony showing he was present at the time of the

shootings, and failing that, fabricating an entirely new defense of self

protection.

Once Anthony raised self-protection as his defense, the burden was then

placed upon the Commonwealth to show that he did not act in self-defense.

Estep v. Commonwealth, 64 S.W.3d 805, 811 (Ky. 2002). Anthony admitted at

trial that he had fired the shots, and the central issue in the case at that point

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was whether those shots were fired in self-defense. Any evidence relating to

that issue had probative value and was properly subject to consideration by the

jury in making its decision concerning whether Anthony had fired in self

defense.

KRE 611(b) provides as follows: “Scope of cross-examination. A witness

may be cross-examined on any matter relevant to any issue in the case,

including credibility.” Relevant evidence is “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the

evidence.” KRE 401; Moorman v. Commonwealth, 325 S.W.3d 325, 332 (Ky.

2010). Evidence that Anthony at the outset of the criminal proceedings falsely

claimed he was not present at the residence and sought to suppress the

testimony of witnesses who would place him there makes it less probable that

he committed the shootings in self-protection; rather, it casts doubt on the

defense as a post hoc rationalization for the shootings. Nor is the probative

value of the evidence substantially outweighed by the danger of undue

prejudice, confusion of the issues, misleading to the jury, or needlessly

cumulative. KRE 403. Thus, under a KRE 401-403 relevance analysis, we

believe the evidence is admissible.

The concurring opinion recognizes that evidentiary rules allow an attack

on a witness’s credibility, but it also asserts that Anthony did not testify at the

suppression hearing, that the mere filing of the motion was a decision of his

defense counsel, and that such decision and the filing of the motion cannot be

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attributed to Anthony for purposes of impeachment. In other words, the

concurring opinion holds that cross-examining Anthony was not an acceptable

manner of impeaching him because his defense counsel’s tactical decision in

seeking to suppress the eyewitnesses’ identification had no bearing on his

credibility as a witness.

In support of its position, the concurring opinion cites Neal v.

Commonwealth, 95 S.W.3d 848 (Ky. 2003), and People v. Mulero, 176 I11.2d

444, 680 N.E.2d 1329 (1997). In Neal the defendant attempted to impeach the

trial testimony of a co-defendant in another matter in order to demonstrate

that the co-defendant had a pattern of blaming the defendant for other

shootings. Id. at 849. This Court held that such was improper as collateral

impeachment evidence. Id. Impeachment on collateral facts has consistently

been prohibited under our law. Matheny v. Commonwealth, 191 S.W.3d 599,

607 (Ky. 2006). Here, however, the introduction of the suppression motion to

refute Anthony’s self-protection defense is not impeachment on a collateral

matter; rather, it is crucial evidence whereunder the Commonwealth seeks to

meet its burden of showing that Anthony did not act in self-defense.

The concurring opinion also relies in part on the Mulero case from

Illinois. See Mulero, 680 N.E.2d 1329. For the reasons stated above, we

believe our opinion in Coulthard, supra, is dispositive and does not require us

to seek guidance from the courts in Illinois. Further, we believe the facts in

Mulero are sufficiently distinguishable from the facts in Coulthard and the facts

herein to warrant a different result.

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The concurring opinion emphasizes the fact that the suppression motion

was a trial tactic or strategy and that such tactical decisions have no bearing

on a defendant’s credibility. Again, however, the purpose of the evidence was

to rebut his self-protection defense and demonstrate its recent fabrication.

And, presumably, the tactics and strategy of the attorney were consistent with

Anthony’s defense as developed in concert with his attorney

The concurring opinion would disallow the cross-examination of Anthony

concerning the suppression motion because Anthony did not testify at the

hearing of the motion. The concurring opinion asserts that the suppression

motion itself has no bearing on Anthony’s credibility as a witness. In the

majority’s view, however, the suppression motion itself undermines the

credibility of Anthony’s trial testimony wherein he raised the defense of self

protection.

III. INITIAL AGGRESSOR QUALIFICATION INSTRUCTION

Anthony contends the trial court erred by giving an initial aggressor

instruction in connection with his self-protection defense.

KRS 503.050 provides, in relevant part, as follows:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse

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compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.1

The initial aggressor statute, KRS 503.060 provides, in part, as follows:

Notwithstanding the provisions of KRS 503.050, the use of physical force by a defendant upon another person is not justifiable when:

(2) The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person; or

(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:

(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or

(b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.

Here, the trial court instructed the jury consistently with KRS 503.050

and KRS 503.060 in each of the instructions relating to the shootings of

Jefferson, Compton, Hodges, and Zeigler.

In Randolph v. Commonwealth the Court of Appeals stated as follows:

As the Kentucky Supreme Court explained, albeit in an unpublished decision, “[t]he purpose of the initial aggressor doctrine, like the ‘provocation doctrine’, is to prevent a defendant from instigating a course of conduct then claiming he was acting in self-defense when that conduct unfolds.” Hayes v. Commonwealth, 2015-SC-000501-MR, 2017 WL 639387, at *4 (Ky. Feb. 16, 2017).

566 S.W.3d 576, 578 (Ky. App. 2018). 1

1 KRS 503.055 addresses the no duty to retreat/castle doctrines.

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Similarly, as stated in Stepp v. Commonwealth, in determining whether a

limitation to a self-defense instruction is proper, the trial court must consider

the circumstances surrounding the incident as a whole:

It is not every assertion of such belief that is adequate to support a plea of self-defense. It is the whole circumstances which surround the incident that must be considered by the trial judge in deciding whether an instruction on self-defense is proper or whether an instruction on self-defense with limitations is proper. We have held that before such qualifying instructions are proper there must of course be evidence to justify it. In other words, the trial judge must find as a matter of law that there is sufficient evidence to justify such limitations before instructing the jury. Mayfield v. Commonwealth, Ky., 479 S.W.2d 578 (1972); Criggerv. Commonwealth, Ky., 225 S.W.2d 113 (1949).

608 S.W.2d 371, 374 (Ky. 1980); see also Welch v. Commonwealth, 235 S.W.3d

555, 561 (Ky. 2007).

In summary, for a defendant to be the initial aggressor, the defendant

must use physical force prior to any act of purported self-protection. KRS

503.060(3)(a).

It is the trial court's obligation to “instruct the jury upon every theory

reasonably supported by the evidence.” Sargent v. Shaffer, 467 S.W.3d 198,

203 (Ky. 2015). Review of a trial judge’s decision whether to give an

instruction is under an abuse of discretion standard. Id. “The test for abuse of

discretion is whether the trial judge's decision was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co.

v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999)).

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Anthony argues that an initial aggressor instruction was not warranted

in this case for two reasons. His first argument is somewhat unclear, but it

centers upon the following sentence to the commentary to KRS 503.050:

“This limitation applies to the situation where a defendant, not having an

intent to cause death or serious physical injury, starts an encounter with

another and subsequently finds himself believing in a need to use physical

force, perhaps deadly, to protect himself from the other’s attack.” (emphasis by

Anthony). From this section of the commentary, Anthony argues:

The Commonwealth’s theory - that Eric Anthony went to the apartment “to ambush” and “that if you’re out hunting somebody, and then when you get there, they have a weapon to hunt you back, you’re still not allowed to argue self-protection - is an argument that Eric Anthony had the “intent to cause death or serious physical injury” all along. At its core, this is an argument that Eric Anthony had committed intentional murder and not that he acted in self-defense, but was not legally entitled to do so because he was the initial aggressor. Therefore, this is not, as explained in the statutory commentary, the contemplated scenario that justifies qualifying a self-protection defense with the initial aggressor instruction. See KRS 503.050, Commentary. In sum, even accepting arguendo the theory proposed by the Commonwealth, the trial court providing an initial aggressor jury instruction was error in this case.

There were conflicting theories concerning Anthony’s purpose for going to

the apartment on the evening of the shootings and how the events transpired.

Likewise, there were conflicting theories concerning who intended what once he

got there and the shooting started.

We conclude the initial aggressor instruction was proper under the

circumstances of this case. First, if, as the Commonwealth suggests, Anthony

went there armed with a pistol looking for Jefferson to confront him over the

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ongoing hostilities between Anthony and the Jefferson family and then entered

the apartment armed and without announcing himself, the jury could have

believed Anthony was the initial aggressor and not entitled to an absolute self

protection defense even if Jefferson was trying to pick up his gun to shoot at

Anthony.

Also, even if the jury believed Anthony had gone to the apartment merely

to do a drug trade with Brown, the jury could still have believed Anthony was

the initial aggressor because it also could have believed all Jefferson was doing

when Anthony shot him was picking up his gun after it had accidently fallen to

the floor. In that case as well, the jury could have believed Anthony was the

initial aggressor because Jefferson had taken no action other than picking up

his pistol without any intent to harm Anthony after he had retrieved it.

Anthony’s second point is also somewhat unclear. He argues that an

initial aggressor instruction was not proper in this case because:

But to the extent that this evidence proved that Eric Anthony was looking for Donte Jefferson and had reason to believe that Mr. Jefferson would be at the apartment, this evidence suggests that Mr. Anthony intended to kill Mr. Jefferson before he went to the apartment that night, not that he intended to confront Mr. Jefferson, who in turn responded, which then caused Mr. Anthony to have to use deadly physical force in self-defense. Therefore, this evidence did not establish that Eric Anthony had acted as an initial aggressor on that night. See KRS 503.050, Commentary.

Under this argument Anthony appears to distinguish between whether

when going to the apartment to shoot Jefferson he was intending to summarily

shoot Jefferson or to first confront him to create some sort of standoff with him

before shooting him. By going to the apartment with the specific intent to use

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deadly force against Jefferson in the first instance, a juror could conclude that

Anthony was the initial aggressor, and any doubt raised to the contrary

because of the dropped gun and other alternative interpretations of the

evidence, including Anthony’s failure to create a standoff, authorized the initial

aggressor instruction.

In short, there was sufficient evidence for the jury to conclude that

Anthony came in the back door, surprised the occupants, and shot four of

them in a matter of a few seconds and before they had a chance to defend

themselves or otherwise evade him. Based on that evidence, he would have

been the initial aggressor. We conclude the trial court did not abuse its

discretion by giving an initial aggressor instruction as to all four shootings.

IV. EVIDENCE OF PRIOR SHOOTING

Anthony contends the trial court erred by permitting the Commonwealth

to introduce evidence that in 2010 he had shot Dontae Thompson, who was the

cousin of both murder victims, Jefferson and Compton.

Anthony shot Thompson in 2010, admitted and pled guilty to the

assault, was sentenced to prison, and had been released not long before the

June 21 shootings. Anthony filed a pretrial motiofi to exclude the 2010

shooting pursuant to KRE 404(b). The trial court denied the motion. When the

Commonwealth raised the issue at trial, Anthony again objected, and the trial

court again overruled the objection.

KRE 404(b) provides, in relevant part, as follows:

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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;....

Generally, evidence of crimes other than that charged is not admissible.

KRE 404(b); Lawson, Kentucky Evidence Law Handbook, 5th Ed., § 2.30[l][a]

(2013). However, evidence of other crimes or wrongful acts may be introduced

as an exception to the rule if relevant to prove motive, opportunity, intent,

plan, knowledge, identity, or absence of mistake or accident. KRE 404(b)(1). To

be admissible under any of these exceptions, the acts must be relevant for

some purpose other than to prove criminal predisposition, and they must be

sufficiently probative to warrant introduction. Further, the probative value of

the evidence must outweigh the potential for undue prejudice to the accused.

Clark v. Commonwealth, 833 S.W.2d 793, 795 (Ky. 1991); Chumbler v.

Commonwealth, 905 S.W.2d 488, 494 (Ky. 1995).

As this Court has previously stressed, KRE 404(b) is “exclusionary in

nature,” and as such, “any exceptions to the general rule that evidence of prior

bad acts is inadmissible should be closely watched and strictly enforced

because of [its] dangerous quality and prejudicial consequences.” O’Bryan v.

Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982). To determine the

admissibility of prior bad act evidence, we have adopted the three-prong test as

described in Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994), which

evaluates the proposed evidence in terms of: (1) relevance, (2) probativeness,

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and (3) its prejudicial effect. We review the trial court’s application of KRE

404(b) for an abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d

117, 119 (Ky. 2007); Driver v. Commonwealth, 361 S.W.3d 877, 883 (Ky. 2012).

“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).

There was an abundance of evidence that the 2010 shooting resulted in

hostility and anger between Anthony and Dontae Thompson’s extended family,

including Jefferson. Thus, evidence concerning the 2010 shooting was

indispensable to explain the dynamics underpinning this shooting. The trial

court did not abuse its discretion by permitting the Commonwealth to

introduce evidence concerning the 2010 shooting

The judgment of the Jefferson Circuit Court is affirmed.