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Date: 04-18-2020
Case Style:
BRIAN CURTIS WOODS V. COMMONWEALTH OF KENTUCKY
Case Number: 2019-SC-000075-MR
Judge: MEMORANDUM OPINION OF THE COURT
Court: Supreme Court of Kentucky
Plaintiff's Attorney: Daniel Jay Cameron
Attorney General
Courtney J. Hightower
Assistant Attorney General
Defendant's Attorney:
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Woods appeared at police headquarters and confessed to killing his
fiancée, concealing the body, and cleaning the crime scene. He told police that
he and the victim had last argued about a timeshare, that the argument
1 The jury recommended a sentence of forty years for Murder and five years for
Tampering with Physical Evidence, to be served concurrently for a total sentence of
forty years. At final sentencing, the trial court ruled that Woods’s sentences were to
run consecutively, for a total of forty-five years’ imprisonment, and the trial court
entered judgment accordingly.
2 Ky. Const. § 110(2)(b).
2
“turned violent,” and that he killed the victim by beating her over the head.
Woods stated that he wrapped the victim’s body in trash bags, put the body in
the garage of the residence the couple cohabited with the victim’s four children,
and spent two days cleaning the crime scene. After obtaining a search warrant,
police found the victim’s body in the garage and arrested Woods. The medical
examiner testified that the victim’s body showed several sharp force, blunt
force, and chop injuries to the head and torso.
Woods testified in his own defense and described the events leading up
to the murder and his state of mind before, during, and after he killed the
victim. He testified that he and the victim, his fiancée, lived in a house with the
victim’s four children, all of whom were born from her previous relationships
with other men, but whom he loved and cared for as his own. The couple had
been together, off-and-on, for about six years.
A few weeks before the murder, Woods and the victim became engaged
and began to plan their wedding. Soon after, near St. Patrick’s Day of that year,
the couple did some wedding planning and obtained a timeshare package that
they intended to use for their honeymoon, intending to wed later in the year. A
few days after getting the timeshare paperwork, the victim informed Woods that
she was pregnant by her ex-husband. The couple argued and broke off their
engagement, but Woods remained in the home, continued to care for the
children, and slept on the couch. He testified that he and the victim barely
spoke, and when they did speak, they argued.
About four days before the murder, Woods discovered on the victim’s
phone text messages she exchanged with her ex-husband regarding her alleged
pregnancy. According to Woods, the text messages included, for example, a
3
picture of a positive pregnancy test with accompanying text that read, “[i]t was
positive. Happy Birthday, daddy,” and another text sent by the victim stating
that she had “been trying for years to have a baby.” Woods took pictures of
these texts with the intention of showing them to the victim’s ex-husband’s
wife. Woods testified that the victim caught him taking these pictures, and she
tased him in the testicles. Over the following days, Woods and the victim
communicated very little.
During Woods’s interview with detectives, he stated that immediately
before the murder, arguments between he and the victim focused on the
honeymoon timeshare. Woods testified that the victim approached him while he
was folding laundry and asked for the timeshare paperwork. When he ignored
her, she began punching him, and he fought back. During the ensuing physical
altercation, the victim told Woods that he “wasn’t a real man because [he
couldn’t] have kids.” Woods testified that he reacted with rage and beat the
victim to death with a fireplace shovel.
Woods told the jury he knew he would not get away with killing the
victim, but that he started to clean the crime scene so that he could get the
memory of what he had done “out of his mind.” He purchased cleaning
supplies and spent two days cleaning the crime scene, putting the fireplace
shovel and some other items he used to clean in the trash, which was taken
away in the regular trash pickup. Claiming he wanted additional time to clean
the crime scene before turning himself in, Woods testified that he used the
victim’s phone to send some text messages, and to log onto her Facebook page
and post a statement saying that she would be in California for the next nine
months.
4
II. ANALYSIS.
A. Admissibility of Woods’s Proposed Testimony Describing the Victim’s
Earlier Affair and Pregnancy.
At trial, Woods attempted to offer his own testimony that, about four
years before the murder, the victim had an affair that resulted in a pregnancy
and the birth of a child. When his defense counsel attempted to question
Woods to present this testimony, the Commonwealth objected, prompting a
bench conference. At the bench, defense counsel explained the testimony she
intended to illicit from Woods. But the trial court ruled that this evidence was
not relevant to Woods’s EED defense, partly because the jury already knew that
the victim had children by other men and that Woods cared for them. The trial
court ruled that Woods’s testimony should be limited to events that occurred
“close in time” to the murder. Defense counsel accepted the trial court’s ruling
without further argument and resumed her examination of Woods.
i. This issue is preserved for appellate review under the abuse-ofdiscretion standard.
Woods argues that this issue must be reviewed for the trial court’s abuse
of discretion because defense counsel preserved it by her unsuccessful attempt
to question Woods about the prior affair and pregnancy. The Commonwealth
counters that this issue is unpreserved for appellate review because Woods’s
counsel accepted the trial court’s direction at the bench and waived the issue.
The Commonwealth insists that because of the waiver the appropriate standard
of review is limited to palpable-error review under RCr3 10.26.
3 Kentucky Rules of Criminal Procedure.
5
The issue presents itself through the colloquy at the bench between the
trial court and counsel following the Commonwealth’s objection:
Trial Court: Since we’re going down the EED pathway here . . .
let’s make sure we go down that way. If [Woods] is testifying that
around St. Patrick’s Day. . . the relationship starts to deteriorate . .
. case law on that, I think, is if there is an uninterrupted series of
events . . . you can testify about that. But [the victim] is not going
to be placed on trial and I’m not going to get into did she ever do
something bad the years before or something like that. [Defense
counsel] restate your question that [the Commonwealth] objected
to.
Defense Counsel: The question was “had she gotten pregnant . . .
before?” . . . The path that I am going down is that when they were
together before [the victim] had gotten pregnant by another
man . . . They broke up when the baby was born . . . They got back
together, and he raised that baby as his own. So, . . . I’m not
putting her on trial. I am just mainly saying . . . It had happened
before, he overcame it[,] moved forward and raised those kids like
they were his own.
Commonwealth: How is that relevant to . . .
Trial Court: It’s not . . .
Defense Counsel: Because it’s the second time that it’s happened.
Trial Court: It’s not relevant in terms of an EED defense . . .
[Woods] has already said that these are not his children . . . The
jury already knows that [the victim] has children by different
men . . . [The jury knows] that he’s raising these children, and that
[Woods and the victim] had been in a relationship for six years. All
of that is out there . . . To start leaning to . . . [the victim] got
pregnant by some other man, we already know that. From the EED
standpoint, you [have] to stay focused on [events occurring] very
close in time . . . . It has to be an uninterrupted period . . . . I think
that. . . you get there with the . . . [Wood’s testimony that the
victim] told [him] that she was pregnant by her ex-husband. Now
first of all, the jury is going to decide whether that statement was
actually made . . . and then the jury has to decide what impact
such a statement had on [Appellant]. All of that is fair game . . .
But we need to stay focused on “this is the beginning and the end
of the relationship.” . . . So around St. Patrick’s Day, going to [meet
the wedding planner], [then the victim] says she’s pregnant by her
ex-husband, and they start getting into problems. It has to
stay . . . that way.
Defense Counsel: It will.
Trial Court: Because I think you have got in what you need for
your argument. That’s what I’m getting at. It’s already [been] said
“they’re not my kids and I raised them.”
Defense Counsel: Okay.
6
Trial Court: We just don’t want to get into suggesting that there is
something immoral about her . . .
Defense Counsel: Okay.
Trial Court: Let’s just go from there.
We are satisfied from this colloquy that Woods’s proffer sufficiently
preserved this issue for appellate review. As we explain in Holland v.
Commonwealth, KRE4 103(a)(2) demands that to preserve an evidentiary ruling
for appeal, the offering party must provide to the trial court “‘the substance of
the excluded testimony’ . . . by way of an offer of proof ‘adducing what that
lawyer expects to be able to prove through a witness’s testimony.’”5 So we
review the trial court’s evidentiary ruling for abuse of discretion, which
prohibits a finding of error unless the “‘trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.’”
6
ii. The trial court did not abuse its discretion or violate Woods’s
constitutional right by the way it limited Woods’s presentation of
evidence in support of his EED defense.
Woods argues that the trial court erred by not allowing him to testify
about an event that occurred four years before the murder when the victim had
a relationship with another man, became pregnant, and bore a child. In
support of this argument, he essentially claims that his emotional distress
began four years before he killed the victim—the time when she first told him
she was pregnant by another man. And he argues that the trial court erred
4 Kentucky Rules of Evidence
5 466 S.W.3d 493, 501 (Ky. 2015) (quoting Henderson v. Commonwealth., 438
S.W.3d 335, 339–40 (Ky. 2014)).
6 Probus v. Commonwealth, 578 S.W.3d 339, 347 (Ky. 2019) (quoting
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
7
when it failed to consider Fields v. Commonwealth7 in determining whether the
challenged testimony was close enough in time to the murder. Woods further
argues that the trial court’s ruling denied him his constitutional right to
present a complete defense.
To be entitled to an EED instruction, a defendant must show that before
the charged crime he was presented with a “triggering event” or “adequate
provocation” that impelled him to commit the crime while under the influence
of “extreme emotional distress,” or “a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one's judgment, and to cause one to act
uncontrollably from the impelling force of the extreme emotional disturbance.”8
While this Court has held that the “triggering event” may be the “‘impact of a
series of related events’ with no specific time frame” between the trigger and the
homicide,9 it is up to the jury to determine whether, from the defendant’s point
of view, the claimed provocation is “adequate” or reasonable. However, the
claimed provocation must still be “sudden and uninterrupted” and there may
arise a “‘subsidiary inquiry’ as to whether there intervened between the
provocation and the homicide a cooling-off period sufficient enough to preclude
a conclusion that the provocation was adequate.”10
7 44 S.W.3d 355, 359 (Ky. 2001) (finding that the proposed triggering event may
happen months before the actual crime occurred, but that any “cooling off period”
between the provocation and the homicide gives rise to a “subsidiary inquiry” as to
whether the period is sufficient to render inadequate the alleged provocation).
8 McClellan v. Commonwealth, 715 S.W.2d 464, 468–69 (Ky. 1986).
9 Benjamin v. Commonwealth, 266 S.W.3d 775, 783 (Ky. 2008) (quoting Lawson
and W. Fortune, Kentucky Criminal Law § 8-3(b)(3), at 342).
10 Id. at 782–83.
8
In many EED cases, reviewing courts have mainly considered whether a
trial court erred in ruling that a defendant is or is not entitled to an EED
defense jury instruction.11 But in Padgett v. Commonwealth12 and Lasure v.
Commonwealth,13 this Court considered whether a trial court erred in
excluding certain evidence offered by a defendant in support of his EED
defense theory. In the first line of cases, this Court set out to determine
whether the defendant offered sufficient evidence to prove every element of the
defense based on how EED has been defined.14 In contrast, in Padgett and
11 See, e.g., Holland v. Commonwealth, 466 S.W.3d 493, 503 (Ky. 2015)
(“Appellant next contends that the trial court erred by denying his request for an
instruction on first-degree manslaughter based upon the theory that the jury could
have reasonably believed from the evidence that, when he killed Weatherwax, he acted
under the compelling influence of an extreme emotional disturbance (EED).”); Keeling
v. Commonwealth, 381 S.W.3d 248, 264 (Ky. 2012) (“Appellant next argues that the
trial court committed reversible error by failing to instruct the jury on the lesser
included offense of assault under extreme emotional disturbance (hereinafter “EED”)
with respect to the assault on Morefield.”); Benjamin, 266 S.W.3d at 782 (“Appellant
next argues that the trial court erred in failing to include an instruction pertaining to
extreme emotional disturbance as an element of the jury's murder instructions.”);
Fields v. Commonwealth, 44 S.W.3d 355, 357 (Ky. 2001) (“Appellant asserts there was
no proof that she was under the influence of extreme emotional disturbance (EED)
when she killed her child; thus, there was no evidentiary basis for her conviction of
first-degree manslaughter.”); Springer v. Commonwealth, 998 S.W.2d 439, 452 (Ky.
1999) (“Springer asserts that she was entitled to instructions on first-degree
manslaughter as a lesser included offense of murder and a concomitant instruction on
extreme emotional disturbance.”).
12 312 S.W.3d 336 (Ky. 2010).
13 390 S.W.3d 139 (Ky. 2012).
14 See McClellan, 715 S.W.2d at 468–69 (“Extreme emotional disturbance is a
temporary state of mind so enraged, inflamed, or disturbed as to overcome one's
judgment, and to cause one to act uncontrollably from the impelling force of the
extreme emotional disturbance . . . [for which] there is a reasonable explanation or
excuse therefor[] . . . ”). See also Benjamin, 266 S.W.3d at 782–83 (“Adequate
provocation, or a ‘triggering event,’ [is] a necessary element of EED . . . [P]rovocation
adequate to induce an EED analysis must be sudden and uninterrupted, [but] need
not be contemporaneous with the triggering event. . . . [A] delayed event may be the
‘impact of a series of related events’ with no specific time frame between the triggering
event and the actual homicide. . . . However, . . . there exists a “subsidiary inquiry” as
to whether there intervened between the provocation and the homicide a cooling-off
period sufficient enough to preclude a conclusion that the provocation was adequate.”)
(citations omitted).
9
Lasure we set out to determine whether the defense theory was undermined,
and defendant’s rights were violated, by the trial court’s decision to exclude a
piece of evidence offered in support of the EED defense.
Because the trial court gave proper EED instructions in the present case,
this case does not fall within the first line of cases. As such, Woods’s reliance
on cases like Fields, McClellan, and Benjamin, while understandable, is
misguided.15 As explained in more detail below, the present case is still slightly
different than Padgett and Lasure because Woods chose to testify regardless of
whether the challenged evidence would be admitted; nonetheless, those cases
still support a finding that the trial court here did not abuse its discretion in
limiting the evidence Woods was permitted to present in support of his EED
defense, and such limitation did not otherwise violate Woods’s constitutional
right to present a full defense.
Woods’s defense counsel argued that the testimony regarding the event
that occurred between him and the victim four years before was relevant to his
EED defense. It seems that the trial court assumed, based on Woods’s
testimony up to that point in the trial and his defense counsel’s explanation at
the bench conference, that the “triggering event” that allegedly commenced
Wood’s emotional disturbance was purportedly after the St. Patrick’s Day
wedding-planning excursion when the victim informed Woods that she was
pregnant with her ex-husband’s baby, the couple argued and ended their
engagement. This event then presumably “festered” in Woods’s mind until the
15 Those cases fall squarely within the first line of cases; therefore, the analysis
employed in them does not help us decide whether the trial court in the present case
abused its discretion by excluding the challenged evidence.
10
proposed event came forward to “exact its damage” when the victim “provoked”
Woods by saying that he was not a real man because he was not able to father
children. Based on this version of events, the trial court ruled that the
challenged testimony of the prior affair and pregnancy was not admissible
because it was not “close in time” to the murder, and as such it does not
satisfy the requirement that EED provocation occur during an “uninterrupted
period.” Moreover, the trial court ruled that the testimony was not otherwise
relevant because the jury already knew that Woods was not the father of any of
the victim’s children, that Woods and the victim were in a six-year long
relationship, and that the victim told Woods a few days before the murder that
she was pregnant with her ex-husband’s baby. On appeal, Woods argues that
the trial court erred in limiting his testimony because the triggering event was
the event that occurred four years prior to the murder.16
16 This specific argument is arguably not preserved for appeal. It appears from
the video record of the bench conference that Woods did not specifically argue that
this was the relevant triggering event, nor did he rely on Fields or any other specific
case to argue that a four-year period is not so remote as to be rendered ineligible to
serve as the triggering event. In fact, defense counsel’s statement that the prior
pregnancy was relevant for EED “because it’s the second time that it happened,”
seems to suggest that the defense counsel was instead arguing that the prior event
was relevant to provide proof that Woods was telling the truth when he claimed that
the victim again told him she had an affair and was pregnant, even though the
autopsy showed no signs that the victim was ever pregnant during this time. It seems
that the trial court, as reflected in statements at the bench, interpreted Woods’s
arguments in this way given the court’s statement that the evidence was not
admissible for the purposes of EED because the jury already heard that the victim told
Woods that she was pregnant by another man a matter of days before the murder, and
the trial court stated that “the jury is going to decide whether that statement was
actually made. . . and then the jury has to decide what impact such a statement had
on [Woods].” But because we find that under Padgett evidence presented in support an
EED defense still must be presented from an admissible source, and that the evidence
was not improperly excluded under KRE 403, there is no need to determine whether
this argument is properly preserved. Whether this type of remote evidence can ever
serve as evidence of a “triggering point” for the purposes of an EED defense is not
relevant for the purposes of this appeal.
11
In Padgett,
17 Defendant Padgett was convicted of, among other things,
criminal attempt to commit first-degree manslaughter arising from an
argument with his ex-wife, which began as a result of Padgett’s belief that she
was improperly supervising their teenage son.18 At trial, Padgett’s theory was
that he acted under EED based on his assertion that he was “triggered” by
seeing his son cross the street into oncoming traffic.19 In support of his theory,
Padgett wanted to call an expert witness to testify, but the trial court ruled
that, unless Padgett testified, the expert witness’s testimony was inadmissible
because the expert’s opinion was based on Padgett’s out-of-court statements.20
The trial court allowed the expert to testify only after Padgett testified about the
triggering event giving rise to his EED.21
On appeal, Padgett argued that the trial court compelled him to
incriminate himself, in violation of the Fifth Amendment right,22 when it
required him to testify in order to receive an instruction on EED.23 This Court
reiterated that an EED defense instruction “must be supported by ‘some
definite, non-speculative evidence,’”
24 and that “as in every other context, the
evidence supporting extreme emotional disturbance must come from some
17 312 S.W.3d 336.
18 Id. at 339–40.
19 Id. at 341.
20 Id.
21 Id.
22 U.S. Const. amend. V (“No person shall be . . . compelled in any criminal case
to be a witness against himself.”).
23 312 S.W.3d at 341.
24 Id. (quoting Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky. 2003)).
12
admissible source.”25 Accordingly, this Court found that the trial court did not
abuse its discretion in requiring Padgett to testify in order for the expert
witness to testify.26 The Court reasoned that the trial court made clear that it
was not compelling Padgett to testify, but was only excluding the expert
witness’s testimony because it was inadmissible as an opinion based only on
Padgett’s out-of-court statements.27 To allow the expert witness’s testimony
without Padgett’s, this Court explained, “would have been to improperly allow
the defendant to testify by proxy.”
28 This Court further found that Padgett’s
right against self-incrimination was not implicated by the trial court’s ruling
because the trial court did not require Padgett to testify, but instead only
required him to present “some admissible evidence” to support the EED
instruction.29
In Lasure,
30 Defendant Lasure was convicted of intentional murder after
the jury rejected his EED defense.31 Before trial, the Commonwealth moved to
prevent Lasure from offering the expert testimony of Dr. Shilling, who
diagnosed Lasure with PTSD, for the purpose of offering “his expert opinion
that persons suffering from PTSD react more explosively to stress or tension.”
32
The Commonwealth claimed that Dr. Shilling's testimony was inadmissible
25 Id. at 342.
26 Id.
27 Id.
28 Id. (relying on Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998)).
29 Id. (“The fact that Appellant may have only been able to support this
instruction by testifying does not implicate the Fifth Amendment.”).
30 390 S.W.3d 139.
31 Id. at 140–41.
32 Id. at 142–44.
13
because it would include out-of-court statements made by Lasure regarding
the alleged EED.33 After the close of the Commonwealth’s case, the trial court
ruled, in reliance on Talbott v. Commonwealth34 and Padgett v.
Commonwealth,
35 that because Dr. Shilling’s testimony included Lasure’s outof-court statements regarding the EED, the expert could not testify unless
Lasure did.36 Lasure repeatedly stated that he did not wish to testify, but
nevertheless testified in order to present Dr. Shilling's testimony.37
On appeal, the Lasure court found the facts distinguishable from those
in Padgett and reversed based on the finding that the trial court erred in not
allowing Dr. Shilling to testify unless Lasure also testified, finding that the
evidence was relevant, and the trial court’s ruling otherwise infringed on
Lasure’s Fifth Amendment rights. Following the Court’s discussion of Talbott
and Padgett, it provided the following explanation:
Turning to the present matter, we believe that the trial court erred
in ruling that Lasure's testimony was required in order to admit
Dr. Shilling's testimony. . . . [W]hen the issue was revisited after
the close of the Commonwealth's case-in-chief, significant evidence
of Lasure's alleged EED had been admitted[, including testimony
from the detective who interviewed the defendant following the
homicide, and testimony offered by the Commonwealth from two
expert witnesses who testified as to the defendant’s mental state in
the days leading up to the shooting].
. . .
33 Id. at 142.
34 968 S.W.2d at 85 (ruling that “Where the defendant does not testify and there
is no other factual basis to support a defense of extreme emotional disturbance, that
defense cannot be bootstrapped into the evidence by an expert opinion premised
primarily on out-of-court information furnished by the defendant . . .”).
35 312 S.W.3d at 342 (ruling that “as in every other context, the evidence
supporting extreme emotional disturbance must come from some admissible source”).
36 Lasure, 390 S.W.3d at 142.
37 Id.
14
We recognize that [the victim’s] rejection and taunts typically do
not constitute adequate provocation to create an EED. Talbott, 968
S.W.2d at 85 (“mere hurt or anger” is insufficient to constitute a
triggering event). However, a defense of EED requires the jury “to
place themselves in the actor's position as he believed it to be at
the time of the act.” KRS 507.030, Commentary (1974). For this
reason, evidence of a defendant's mental condition or illness at the
time of the alleged EED is relevant.
Accordingly, when the trial court made its ruling, significant
evidence supporting a defense of EED had been presented.
Therefore, the defense of EED would not have been “bootstrapped
into the evidence” by the testimony of Dr. Shilling. [quoting Talbott,
968 S.W.2d at 85.] Rather, Lasure was entitled to present evidence
of his mental condition, including Dr. Shilling's diagnosis of PTSD
and his expert opinion that persons suffering from PTSD react
more explosively to stress or tension. . . .
The trial court's ruling in this case was erroneous and
compromised Lasure's Fifth Amendment rights. In order to
advance his defense of EED and present the testimony of Dr.
Shilling, Lasure chose to take the stand. In light of the trial court's
ruling, this choice cannot be considered voluntary.
Unlike the defendants in Padgett and Lasure, Woods voluntarily chose to
testify. Accordingly, there is no need to provide the same analysis as the
Padgett and Lasure courts to determine whether Woods’s Fifth Amendment
right was violated. But Woods was still precluded from presenting testimony he
argues is relevant to his EED defense.
Based on these cases, the only questions that we must answer are: (1)
whether Woods was entitled to present the challenged testimony under the
Kentucky Rules of Evidence; and, if no, (2) whether Woods’s constitutional
right to present a defense nonetheless entitled him to present the evidence.
Whether or not the trial court was incorrect in finding that the
challenged event could not be presented for the purposes of EED, as this Court
ruled in Padgett, evidence supporting extreme emotional disturbance must
15
always come from an admissible source.38 The trial court here excluded the
testimony claiming it was not relevant, presumably under KRE 402 and 403.
KRE 401 defines relevant evidence as “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 402 provides that “[a]ll relevant evidence is admissible, except
as otherwise provided by . . . these rules, or by other rules adopted by the
Supreme Court of Kentucky. . . .” Finally, KRE 403 provides that “[a]lthough
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of undue prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”
Based on the trial court’s statements that it did not believe that Woods
needed to present the challenged testimony because the jury already knew all
the facts that the testimony would have purported to prove, we presume that
the trial court found that the evidence was not relevant under KRE 403
because it was needlessly cumulative. We agree.
As the defense counsel explained during the bench conference, the
challenged testimony would have offered to prove that the victim had been
pregnant by another man once before during her relationship with Woods, and
that he remained in a relationship with her and raised the resulting child as
his own. Just as the trial court found, the jury already knew that Woods and
the victim had been in a six-year long relationship, that Woods fathered none
38 312 S.W.3d at 342.
16
of the victim’s children, and that he cared for and thought of all the victim’s
children as if they were his own. Based on this information, the jury could
clearly understand that the victim had given birth to another man’s child while
she was in a relationship with Woods, but Woods nonetheless chose to
continue his relationship with her. The additional explanation regarding the
specifics of the conversation between Woods and the victim when she informed
him that she had an affair was unnecessarily cumulative and arguably unduly
prejudicial. Accordingly, the trial court did not abuse its discretion in excluding
the evidence under KRE 403.
Since Woods’s challenged testimony was properly excluded under KRE
403, we now turn to the issue as to whether Woods’s constitutional right to
present a defense nonetheless entitled him to present the challenged evidence.
As Woods correctly notes, we have made clear, under standards
established by the United States Supreme Court, evidence rules are not to be
applied to deprive a defendant of due process,39 and that due process requires
that a defendant be afforded a “fair opportunity to defend against the State’s
accusations.”40 Woods is also correct that under the Fifth,41 Sixth42 and
39 See Montgomery v. Commonwealth., 320 S.W.3d 28, 40 (Ky. 2010) (citing, for
example, Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L.Ed.2d 636 (1986),
Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974), and Chambers
v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L.Ed.2d 297 (1973)).
40 Chambers, 410 U.S. at 294, 93 S. Ct. at 1045, 35 L.Ed.2d 297.
41 U.S. Const. amend. V (“No person shall be. . . deprived of life, liberty, or
property, without due process of law. . .”).
42 U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right. . . to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defen[s]e[]”).
17
Fourteenth43 Amendments of the United States Constitution, and under
Section 11 of the Kentucky Constitution,44 he has a right to “‘meaningful
opportunity to present a complete defense.’”45 But as the Commonwealth
asserts, this rule is not absolute. The defendant is still required to comply with
the “‘established rules of procedure and evidence designed to ensure both
fairness and reliability in the ascertainment of both guilt and innocence[,]’”46
and reversal is only required where the exclusion of the evidence “‘significantly
undermine[s] fundamental elements of the defendant’s defense[.]”47 For the
43 U.S. Const. amend. XIV (“No State shall . . . deprive any person of life, liberty,
or property, without due process of law . . .”).
44 Ky. Const. § 11 (“In all criminal prosecutions the accused has the right to be
heard by himself and counsel; to demand the nature and cause of the accusation
against him; to meet the witnesses face to face, and to have compulsory process for
obtaining witnesses in his favor. He cannot be compelled to give evidence against
himself, nor can he be deprived of his life, liberty or property, unless by the judgment
of his peers or the law of the land . . .).
45 Montgomery, 320 S.W.3d at 41 (quoting Crane, 476 U.S. at 690, 106 S. Ct.
2142).
46 Commonwealth v. Bell, 400 S.W.3d 278, 284 (Ky. 2013) (quoting Chambers,
410 U.S. 284, 302, 93 S. Ct. 1038, 35 L.Ed.2d 297). See also Baze v. Parker, 371 F.3d
310, 323-24 (6th Cir. 2004); Baze v. Commonwealth, 965 S.W.2s 817, 820-21 (Ky.
1997) (“The trial judge limited the amount of testimony regarding the family feud. . .
because it did not directly involve Baze and the two police officers who were killed. The
remainder of the feud evidence was allowed in by avowal. . . . The presentation of
evidence and the scope and duration of cross-examination is within the sound
discretion of the trial judge . . . . Here the trial judge did not abuse his discretion by
limiting the amount of feud evidence presented to the jury. The constitutional rights of
the defendant were not violated in any way.”) (citations omitted); Moore v.
Commonwealth, 2010 WL 2471846, No. 2008-000914-MR, *2-4 (Ky. June 17, 2010)
(holding that the trial court did not violate defendant’s right to present a defense when
it limited the evidence of threats made by the victim to the defendant to only those
threats which occurred at the time of the “onset of the relevant conflict” because those
were the only threats which were relevant).
47 Bell, 400 S.W.3d at 284 (quoting United States v. Scheffer, 523 U.S. 303, 308,
118 S. Ct. 1261, 1264, 140 L.Ed.2d 413 (1998) (citing Rock v. Arkansas, 483 U.S. 44,
55, 107 S. Ct. 2704, 2711, 97 L.Ed.2d 37 (1987))). See also, Beaty v. Commonwealth,
125 S.W.3d 196, 206-07 (Ky. 2003) (“An exclusion of evidence will almost invariably be
declared unconstitutional when it significantly undermine[s] fundamental elements of
the defendant's defense.”) (internal quotations omitted), abrogated on other grounds by
Gray v. Commonwealth, 480 S.W.3d 253, 267 (Ky. 2016).
18
same reasons that we found that the trial court did not err in excluding the
challenged testimony as needlessly cumulative, we find that the trial court did
not violate Woods’s right to present a complete defense.
In Commonwealth v. Bell, this Court found that the trial court did not
violate Bell’s right to present a complete defense.48 At trial, Bell’s defense was
that the sexual act giving rise to the sodomy charge was consensual because
he and the victim were trading drugs for sexual favors.49 This Court explained
that the trial court allowed Bell “what he needed to present his defense” by
allowing him to present evidence that “he and [the victim] had traded sex for
drugs the night of the incident and one other time, and that [the victim] tested
positive for cocaine the night of the incident.”
50 The trial court’s exclusion of
the additional evidence regarding the victim’s “twenty years of drug use and
addiction,” did not violate his right to present a complete defense even though
the evidence “arguably would have further shown Bell's defense.”51
Similarly, the trial court in the present case gave Woods “what he
needed” for his EED defense by allowing him to testify fully about the events
that occurred “close in time” to the homicide, and by further allowing him to
testify generally about how his and the victim’s relationship existed up until
the murder. As the Court in Bell explained, just because the trial court here did
not give Woods “everything he wanted” does not mean that it violated his
48 400 S.W.3d at 284.
49 Id. at 283.
50 Id.
51 Id.
19
constitutional rights even if the evidence of the earlier affair and pregnancy
“arguably would have further shown [Woods’s] defense.”52
In sum, the trial court did not abuse its discretion in limiting the
evidence that Woods presented in support of his EED defense, and such
limitation did not otherwise violate his right to present a complete defense.
B. Propriety of the Commonwealth’s closing argument.
The trial court included Woods’s EED theory of defense in instructions to
the jury, and the prosecutor attempted in closing argument to negate Woods’s
EED evidence. In so doing, the prosecutor argued that the EED was not
supported by the evidence produced. It was not an “excuse for a bad temper”
was a phrase the prosecutor used at least twice during closing arguments. The
prosecutor then read from the instructions the definition of EED, being “a
temporary state of mind, so engaged, enflamed or disturbed, to overcome one’s
judgment and causes them to act uncontrollably.” The prosecutor also
emphasized that there must be a triggering event and a “reasonable
explanation for the excuse from the defendant’s standpoint” for the EED
defense to apply. The prosecutor also reminded the jury of testimony offered by
the Commonwealth that Woods told police that he killed the victim because of
the argument over the timeshare, not because of the victim’s alleged
statements about his inability to father children, and that the jury must ask
whether “from [Woods’s] position, was it reasonable to beat the victim to death
52 Id. at 283–84 (“In essence, the trial court gave Bell what he needed to present
his defense under the facts of this precise case, but it did not give him everything he
wanted. Such a decision is a clear exercise of a trial court's discretion, and is not an
abuse of that discretion. . . . Bell was not barred from presenting the defense he
wanted; rather, the trial court limited the evidence of it. That limit was a reasonable
one and did not violate Bell's constitutional rights.”).
20
with a shovel over a vacation house?” Finally, the prosecutor concluded the
argument by exhorting the jury to “send a message to this defendant that there
is no room for excuses in this courtroom.” The only time defense counsel
objected while the prosecutor made the above statements was when the
prosecutor asked the jury to send Woods a message, and that objection the
trial court overruled.
Woods contends that the Commonwealth engaged in prosecutorial
misconduct during closing arguments, depriving him of his constitutional
rights to a fair trial, due process and fair sentencing, by “misstat[ing] the
defense of EED.” Woods also claims that the misstatements did not allow the
jury to give effect to the EED instructions. Woods concedes that this issue is
not preserved for appeal.
“It is a fundamental precept that a prosecutor must conduct himself with
“. . . due regard to the proprieties of his office and to see that the legal rights of
the accused, as well as those of the Commonwealth, are protected.”53 As this
Court explained in Padgett:
Counsel has wide latitude during closing arguments. Brewer v.
Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006). . . . This Court
recently explained the appropriate standard of review for
prosecutorial misconduct during closing arguments, stating that
reversal is required “only if the misconduct is ‘flagrant’ or if each of
the following are satisfied: (1) proof of defendant's guilt is not
overwhelming; (2) defense counsel objected; and (3) the trial court
failed to cure the error with sufficient admonishment.” Miller v.
Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009) (emphasis
removed, quoting Barnes v. Commonwealth, 91 S.W.3d 564, 568
(Ky. 2002)). Additionally, this Court “must always consider these
closing arguments ‘as a whole.’” Id. (quoting Young v.
Commonwealth, 25 S.W.3d 66, 74–75 (Ky. 2000)). . . . Counsel
53 Moore v. Commonwealth, 634 S.W.2d 426, 437 (Ky. 1982) (quoting Bowling v.
Commonwealth, 279 S.W.2d 23, 24 (1955)).
21
may, during closing arguments, discuss the law applicable to the
case as instructed by the court. Counsel may not, however,
misstate the law or make comments on the law inconsistent with
the court's instructions. East [v. Commonwealth, 249 Ky. 46, 52–
53, 60 S.W.2d 137, 140 (Ky. 1933)]. . . . The standard for whether
or not prosecutorial misconduct is reversible error in this context
is the same . . . as described above and is generally satisfied if the
misconduct is flagrant or prejudicial to the defendant.54
Because Woods concedes that this issue is not preserved for appeal, we
must only determine whether the Commonwealth’s challenged conduct was
flagrant.55 In determining whether the challenged conduct was flagrant, we
consider the following four factors: “(1) whether the remarks tended to mislead
the jury or to prejudice the accused; (2) whether they were isolated or
extensive; (3) whether they were deliberately or accidentally placed before the
jury; and (4) the strength of the evidence against the accused.”56
In support of his argument that the Commonwealth engaged in flagrant
prosecutorial misconduct by misstating the law of an EED defense during
closing arguments, Woods points to the Commonwealth’s statements regarding
its belief that the he killed the victim because he had a bad temper and by
stating that “EED is not an excuse for a bad temper,” that the reasonableness
prong of EED requires a “reasonable explanation for his behavior,” and that the
Commonwealth ended its argument by requesting the jury “send a message to
this defendant that there is no room for excuses in this courtroom.”57 These
54 312 S.W.3d at 350-51.
55 Id. See also Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010).
56 Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010) (citing United
States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994)), superseded on other ground by
statute as stated in Commonwealth v. Hasch, 421 S.W.3d 349 (Ky. 2013).
57 Woods’s trial counsel did object specifically to this last statement by the
Commonwealth, but Woods does not acknowledge this objection or otherwise argue
that the propriety of this statement is preserved for appeal. Instead, Woods simply
22
statements, according to Woods, undermined the nature of an EED instruction
as an affirmative defense, rending the jury unable to “follow and give effect
to the . . . entirety of the court’s instructions.”
In response, the Commonwealth argues that these statements were not
flagrant and did not render the jury unable to give effect to the instruction
provided for the affirmative defense of EED, especially considering the entirety
of the prosecutor’s closing argument. The Commonwealth points to the
prosecutor’s recitation of the definition of EED as set forth in the jury
instructions after it stated that EED was not an excuse for a bad temper. The
prosecutor also emphasized that the definition included the requirement that
the reasonable explanation must be considered from the defendant’s point of
view. The Commonwealth further argues that the prosecutor’s statement that
EED was not an excuse for a bad temper was appropriate because finding EED
required more than just establishing that Woods had a bad temper, and that
the prosecutor was merely attempting to properly distinguish EED from a bad
temper. We agree with the Commonwealth that based on the entirety of the
prosecutor’s closing argument, the Commonwealth did not misstate the law of
the EED defense, and the prosecutor’s other statements did not otherwise
amount to flagrant misconduct.
Outcome: For the foregoing reasons, we affirm the judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: