Opinion
2023-CA-1243-MR
09-13-2024
BRIAN T. HOLDER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Christopher A. Spedding Elizabeth C. Woodford Lexington, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky James Havey Assistant Solicitor General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE LUCY VANMETER, JUDGE ACTION NO. 22-CR-00576
BRIEFS FOR APPELLANT:
Christopher A. Spedding
Elizabeth C. Woodford
Lexington, Kentucky
BRIEF FOR APPELLEE:
Russell Coleman
Attorney General of Kentucky
James Havey
Assistant Solicitor General
Frankfort, Kentucky
BEFORE: EASTON, GOODWINE, AND A. JONES, JUDGES.
OPINION
EASTON, JUDGE:
AFFIRMING
The Appellant, Brian Holder ("Holder"), appeals from a final judgment of the Fayette Circuit Court after a jury found Holder guilty of Second-Degree Assault, Second-Degree Wanton Endangerment, and Alcohol Intoxication. Holder argues the circuit court erred by denying him immunity and a related refusal to instruct the jury on a "no duty to retreat" defense under KRS503.055(3). Additionally, Holder claims the Commonwealth's failure to sequester a rebuttal witness during part of the trial constituted reversible error. Having reviewed the record and the applicable law, we affirm.
Kentucky Revised Statutes.
FACTUAL AND PROCEDURAL HISTORY
Holder was an assistant coach for his son's high school hockey team in Owensboro, Kentucky. During the first weekend of March 2022, the team played in a tournament in Lexington. On Saturday, March 5, 2022, Holder, the team, other coaches, and parents were to stay at a DoubleTree Suites hotel in Lexington.
During the evening hours on that Saturday, several individuals from Holder's group were socializing at the hotel bar in the lobby. A wedding reception was taking place in one of the nearby ballrooms of the hotel at the same time. Some of the wedding guests were also mingling in the hotel bar and lobby. Alcohol was not a stranger to the participants in the unfortunate events of that night.
Holder was one of the individuals socializing and drinking at the hotel bar. The testimony is disputed as to whether Holder was "invited" to the wedding reception. At some point, Holder went into the wedding reception and was dancing and mingling for a while with the wedding guests. Later, he was asked to leave.
On his way out of the reception, words were exchanged between Holder and a few of the wedding guests. Another wedding guest, Gregory Cooper ("Cooper") was sitting in the hotel lobby and holding his two-year-old granddaughter. Just after Holder was being strongly encouraged to leave by the others, Cooper came up to Holder and pushed him with one hand. Holder immediately punched Cooper twice in the face, and Cooper fell to the ground. As Cooper fell, his granddaughter fell as well.
Another wedding guest picked up Cooper's granddaughter, who was fortunately unharmed. Cooper, now without the child in his arms, then stood up and began moving toward Holder. Holder again struck Cooper, who fell back and hit his head on the floor. Cooper did not get back up. One of Holder's fellow coaches then quickly led Holder out of the hotel.
The front desk clerk, Paige Miller ("Miller") called 911. Police and Emergency Medical Services ("EMS") quickly arrived. Cooper was taken out on a stretcher and was transported to a nearby hospital. The hotel has security cameras, and the entire altercation was captured on video. The camera showed the altercation clearly, but there is no audio recording.
Holder was indicted in June 2022 for First-Degree Assault for hitting Cooper, First-Degree Wanton Endangerment for placing Cooper's granddaughter at risk of serious injury, and Alcohol Intoxication in a public place. Discovery proceeded, and the case was set for trial.
Holder filed a Motion for Grant of Criminal Immunity and Dismissal of Charges Pursuant to KRS 503.085. The circuit court denied the motion, as it determined the Commonwealth met its burden of showing probable cause that Holder's use of force was not legally justified. The circuit court determined that the ultimate question of whether Holder's use of force was justified due to self-defense was a question for a jury. The jury trial took place on July 10 and 11, 2023.
The Commonwealth's first witness was Cooper. He testified that he has little memory of the night of the wedding. The last thing he remembers was holding his granddaughter at the reception while the bride and groom were greeting their guests. The next memory he has is being loaded into a helicopter to be flown to a hospital. He has no independent memory of the altercation with Holder, but he has viewed the security footage.
Cooper recounted his injuries from the incident: a brain bleed, brain swelling, a broken nose, and the bone underneath his eye socket was broken. He testified he is now always nervous and "tore up." He stated "everything bothers me, and I'm scared all the time. I can't remember nothing no more."
Trial Testimony, July 10, 2023, 13:54:33 Video Record ("VR").
Medical personnel who treated Cooper later testified that he suffered a traumatic brain injury due to blunt force trauma. Dr. Jamie Key ("Dr. Key"), who is a brain injury specialist, was Cooper's treating physician. She testified he had bleeding in multiple areas of his brain, and his brain injury was "severe." She stated that due to the parts of his brain affected, Cooper is unable to regulate his emotions.
In addition to Dr. Key, Aaron Petrie ("Petrie") a physician's assistant who has treated Cooper for several years, testified as to the changes in Cooper since the altercation. Petrie said Cooper has increased migraines, as well as a change in personality. Cooper is unable to process information rationally, and he has increased anger, irritability, and anxiety. Petrie has witnessed firsthand the changes in Cooper's personality since the incident.
The desk clerk, Miller, witnessed the altercation and testified. Initially, there were no issues. People from the wedding and the hockey team were celebrating together and buying each other drinks. She then saw Holder being escorted out of the room reserved for the wedding party, and he and some of the wedding guests were "sharing words." She saw Cooper get up from the couch and go over to where Holder was coming out of the reception. Miller stated Holder appeared angry and aggressive when being escorted out, but she could not hear what was being said.
Miller saw Cooper holding his granddaughter in one arm. She witnessed him go up to Holder and "tap" him with one hand. She then described Holder's actions as he "sucker punched" Cooper in response. Miller witnessed Cooper get up and again go toward Holder, who then hit Cooper again. Cooper then went down and did not get back up.
Miller said that after Holder initially left the hotel immediately after the punches, he briefly returned to the hotel lobby, ripped his shirt off, and yelled "nobody fucks with me." Holder then left again. It was during Miller's testimony that the Commonwealth introduced the hotel's video footage from the security camera.
Several of the responding officers from the Lexington Police Department also testified. They witnessed Holder's demeanor after the altercation. Sergeant Todd Phillips recalled that Holder told him he had consumed about five or six beers throughout the evening. Parts of the footage from individual officers' body cameras were introduced as evidence. Holder repeatedly made statements to the effect that Cooper pushed him or "put hands on him" first. He further asserted that he was "not afraid of a fight," and referred to Cooper as a "tough guy" and then bragged: "he fucking lost." Holder also described himself as a "fucking gladiator."
Some of the other hockey parents testified on Holder's behalf. Their testimony was consistent in that they believed Holder had been invited into the wedding reception. This is also consistent with Miller's testimony and another hotel employee's testimony, who testified a wedding guest said it was fine for Holder to be in the reception hall. The hockey parents also stated that they witnessed Cooper make first contact with Holder, and that Holder was defending himself.
Holder testified on his own behalf. He admitted to drinking throughout the evening, but he did not believe he was intoxicated, only "buzzed." There was a large group of coaches and parents celebrating their team's win earlier in the day. Holder watched the wedding take place. He asked the bartender at the hotel bar if he would give him a free beer if he got a photograph with the bride and groom. The bartender agreed, and Holder got the picture with them.
Holder stated the bride invited him and other parents into the reception to dance with them. He believes he was in the reception for approximately thirty to forty-five minutes. He spoke with both the bride and groom, and he asked the groom for his Venmo information, because he intended to send them a gift of $200. The gift was never sent. At some point, another guest from the wedding told Holder to leave. Holder said this person was cursing at him, and he does not know why. He did proceed to leave the reception.
A cell phone application used to transfer money.
Holder says that when he left the reception room, a few wedding guests were following him out. He testified that the woman who told him to leave looked across the lobby, and he heard her yell "get him." At this point, he saw Cooper coming toward him. He testified he was afraid because Cooper was larger. Holder said Cooper yelled and cursed at him, then shoved him. Holder believed Cooper was going to hit him, so he punched him. Holder testified the first time he hit Cooper, he did not budge, so he hit him a second time. Incredibly, Holder said he did not see the child in Cooper's arms.
Holder then stated he was walking away, and he heard someone say "no, no, no, no." He then saw Cooper, now unencumbered with the child, coming toward him again. Before any additional contact from Cooper, Holder again hit Cooper, and Cooper again fell to the ground. Holder insisted he had no intention of hurting him or fighting anyone. He was trying to get away from Cooper. He then quickly left the hotel with a friend and fellow coach.
Later, as Holder and his friend were walking back to the hotel, they saw a police officer. Holder told the officer that he was involved in the altercation at the hotel. He was handcuffed, and the officers sat him down on a curb, where he sat for approximately forty to forty-five minutes. Holder became frustrated because he believed the officers were not listening to his claim of self-defense. He stated they were smirking at him. Holder said the officers had already determined that he was guilty.
The Commonwealth called Katherine Siler ("Siler") as a rebuttal witness. She was the bride from the wedding. She remembers taking the picture with Holder, even though she did not know him. She insisted Holder was not invited to the wedding reception.
The jury deliberated for slightly less than five hours. They rewatched the surveillance video several times. The jury found Holder guilty of Second-Degree Assault, Second-Degree Wanton Endangerment, and Alcohol Intoxication in a public place. The jury fixed Holder's sentence at five years, which was the minimum sentence available due to the level of the felony assault conviction.
The circuit court denied Holder's later motion to probate his sentence. It also denied his motion for a new trial. This appeal follows.
ANALYSIS
Holder claims the circuit court erred in three ways. First, he contends the circuit court erred in not including a jury instruction on "no duty to retreat" pursuant to KRS 503.055(3). Next, he alleges the circuit court should have granted his motion to dismiss based on immunity. Finally, he argues he was entitled to a new trial because the Commonwealth failed to sequester one of its witnesses. We will address each alleged error individually starting with the immunity claim.
Holder believes he was entitled to immunity from prosecution under KRS 503.085. "The standard of review of a denial of a defendant's motion to dismiss for immunity from prosecution under KRS 503.085 is whether the trial court had a 'substantial basis' for finding probable cause to conclude that the defendant's use of force was unlawful." Ragland v. Commonwealth, 476 S.W.3d 236, 246 (Ky. 2015). "Probable cause is 'reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.' The court must consider the totality of the circumstances to determine whether probable cause exists to conclude that a defendant's use of force was unlawful." Taylor v. Commonwealth, 567 S.W.3d 610, 612 (Ky. App. 2018) (emphasis in original) (internal quotation marks and citations omitted).
At the hearing on the immunity motion, the Commonwealth basically relied upon the undisputed evidence of what happened as seen on video. The question presented was at least imperfect self-defense. The circuit court agreed that the issue seemed to be what force was justified in the situation. In such a hearing, "[t]here is no corresponding right for the defendant to oppose the Commonwealth's proof of probable cause with his own proof supporting his justification. Prosecution must proceed when the Commonwealth meets its probable cause burden." Commonwealth v. Bennett, 553 S.W.3d 268, 270 (Ky. App. 2018) (citations omitted).
KRS 503.085 states:
(1) A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer . . . . As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
When the question of self-defense is later determined against the defendant at a trial, the application of immunity is removed.
When the defendant "has been tried and convicted by a properly instructed jury in a trial with no reversible error," this Court has held that questions raising the propriety of the trial court's immunity determination become "purely academic." Under such circumstances, the defendant's "self-defense claim has been thoroughly examined by both the trial judge under the directed-verdict standard and the jury under the court's instructions and his entitlement to self-defense has been rejected." In such cases, when a jury has already convicted the defendant - and, thus, found that his use of physical force in fact was unlawful beyond a reasonable doubt - and that conviction has not been shown to be flawed, the appellate court will not revisit whether there
was probable cause to believe that a defendant's use of force was unlawful to allow prosecution under KRS 503.085.Id. (citations omitted).
Based on the jury instructions in the record, it is clear that the jury seriously considered Holder's assertion of self-defense. The instructions explained self-defense as well as imperfect self-defense. Jurors made marks on the original jury instructions, underlining and circling certain portions. When the jury returned with their verdict, they specifically found Holder guilty of Second-Degree Assault under Instruction 7(2), which stated:
That when he hit Gregory Cooper, 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 if you would otherwise find the Defendant guilty of First Degree Assault, Intentional, Dangerous Instrument Under Instruction No. 4(1), you shall not find him guilty of that offense, but shall instead find him guilty of Second Degree Assault under this Instruction No. 7(2) and so state in your verdict.
Again, the immunity provided by KRS 503.085 is defeated with only a showing of probable cause. "It is not enough for the defendant to insist his actions were justified: a defendant's subjective belief in his 'assertion of self-protection is not absolute.' The prosecution may overcome this low threshold by providing substantial evidence of imperfect self-defense or the existence of conflicting evidence in the record to show potential unlawful conduct." Bennett, supra at 271 (emphasis added) (internal quotation marks and citations omitted). Considering the jury verdict, the circuit court did not err in its determination that Holder was not entitled to immunity under KRS 503.085.
Holder next claims it was error for the circuit court to refuse to instruct the jury pursuant to KRS 503.055(3). "While we evaluate the trial court's decision to instruct on a specific claim for an abuse of discretion, the substantive content of the jury instructions will be reviewed de novo." Gribbins v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016).
KRS 503.055 is entitled "Use of defensive force regarding dwelling, residence, or occupied vehicle; exceptions[,]" but subsection (3) reads:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.
Holder submitted proposed jury instructions to the circuit court that included this language. The Commonwealth objected to the use of this instruction, as it argued this statute did not apply under these facts.
There were several conversations about the jury instructions. Holder and the Commonwealth focused on the first portion of the statute, regarding whether Holder was or was not engaged in an unlawful activity or if he had a right to be where he was. The Commonwealth argued that because Holder was intoxicated in a public place and that he had been asked to leave, he was not entitled to this instruction. While we see some merit in this argument, we will assume for the sake of argument that Holder was not essentially a trespasser in the hotel lobby outside of the wedding reception room, even though intoxicated.
The larger problem is that the argument ignores the second part of the statute. "A person . . . has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself . . . ." The construction of this sentence in the statute indicates something different from our general self-protection statute, KRS 503.050, which repeats much of the same language.
To be entitled to an instruction under KRS 503.055, Holder must show he had a reasonable belief that the force used was necessary to prevent death or great bodily harm. Unlike the language in KRS 503.050(1), KRS 503.055 requires that a person's belief be objectively reasonable that force is required to prevent death or great bodily harm. Commonwealth v. Hasch, 421 S.W.3d 349, 362 (Ky. 2013). KRS 503.055 just does not apply to the circumstances of this case, and no additional jury instruction was required.
It is true that Cooper made the first physical contact with Holder. It is undisputed by video evidence that Cooper used either his hand or forearm to push Holder. But no reasonable person would believe that Holder was at risk of death or serious injury by a person who did not have full use of his hands and arms as he held a toddler in his arms. While Cooper was not encumbered by holding a child during his second advance toward Holder, Cooper had already been hit twice in the head. There were no weapons involved, and there was never any reference to Cooper having a weapon or anything else that could be perceived as a weapon.
When force is used by both sides, a jury must often determine if force used by a defendant was excessive and thus unlawful. While one may "meet force with force," this does not mean that a defendant may with impunity increase the level of force used and cause unnecessary injury. Holder received the correct instruction for self-defense in these circumstances. The jury considered it and accepted it to a degree. The jury convicted Holder of the lesser degrees of assault and wanton endangerment, despite the fairly clear evidence of a serious physical injury to Cooper and the evidence that when the child fell from Cooper's arms her head missed a concrete planter by inches.
Holder could claim self-defense. But he was not entitled to an additional instruction about any duty to retreat. "[T]he fact that a criminal defendant is entitled to a jury instruction on self-defense does not automatically entitle him to an additional instruction on no duty to retreat." Curry v. Commonwealth, 620 S.W.3d 563, 568 (Ky. 2020). Again, this case was about the level of force used in a very short period of time, not the right to respond to an initial aggressor or the presence or absence of a way for Holder to retreat.
Holder's final claim of error is that the circuit court should have granted him a new trial when it was discovered that the Commonwealth failed to sequester its rebuttal witness. A circuit court's denial of a motion for new trial is reviewed for abuse of discretion. Hall v. Commonwealth, 337 S.W.3d 595, 613 (Ky. 2011). Likewise, we review a trial court's remedial action after a violation of KRE 615 under the abuse of discretion standard. Id. at 616.
Kentucky Rules of Evidence.
"At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion." KRE 615.
Holder did not timely object and thus give the circuit court an opportunity to properly address the issue. On the second day of trial, prior to releasing the jury for the lunch break, the Commonwealth informed the circuit court and Holder's counsel that it intended to call a rebuttal witness who had been present for some of the testimony that morning. The Commonwealth indicated they sequestered the witness as soon as they determined they wanted to call her as a witness. Holder's counsel did not object, nor did he ask for a hearing to determine how long the witness had been in the courtroom and what testimony she may have observed.
Holder's post-trial motion about this issue was also untimely. RCr10.06 requires that a motion for new trial be filed within five days after the return of a jury verdict. Holder filed his motion approximately seven weeks after the verdict. The only exception to the five-day rule is if the motion is based upon "newly discovered evidence," then a defendant has one year to file after the entry of judgment.
Kentucky Rules of Criminal Procedure.
While Holder contends his motion is based on newly discovered evidence, this argument must fail. Holder claims he was unaware what testimony the witness observed until he reviewed the video of the trial. Holder was informed before the witness ever took the stand that she had been present for some of the morning testimony. This situation cannot constitute "newly discovered evidence" as intended by the rule.
In any event, even if this issue had been preserved and the later motion made in a timely manner, the circuit court did not abuse its discretion in failing to grant Holder a new trial on this basis:
Although the rule itself is silent as to remedies for violation, most reported cases present three avenues of remedy: (1) preemptively exclude the allegedly contaminated testimony; (2) permit the testimony
notwithstanding a violation and allow the testimony subject to impeachment and probing cross-examination regarding the alleged contamination; and (3) reverse on appeal, if so required. Notably, this Court has preferred the second remedy, after holding a required hearing. In any case, a violation without prejudice would not entitle a party to any relief on appeal.Dooley v. Commonwealth, 626 S.W.3d 487, 500 (Ky. 2021).
"The purpose of KRE 615 is to prevent a witness's testimony from being influenced by the testimony of other witnesses." Spears v. Commonwealth, 448 S.W.3d 781, 788 (Ky. 2014). The Kentucky Supreme Court "has recognized that 'failure to separate witnesses may be harmless error under the particular circumstances of the case.'" McAbee v. Chapman, 504 S.W.3d 18, 30 (Ky. 2016) (citing Hatfield v. Commonwealth, 250 S.W.3d 590, 595 (Ky. 2008)).
In this instance, the rebuttal witness was the bride at the wedding. She did not witness the altercation between Holder and Cooper, nor did she see or hear anything that occurred between them immediately prior to the altercation. The only and somewhat collateral point of her testimony was that Holder had not been invited to the wedding reception, in contradiction to previous witness testimony.
The altercation took place in the lobby, after Holder had left the hall after being told to do so. Whether Holder had been invited has very little to do with the choices made during the altercation. For whatever reason, including a rescinding of any invitation, Holder was told to leave. Siler's testimony did not add or detract from whether Holder was entitled to use the force he did when he repeatedly struck Cooper, which is the controlling issue in this case.
"[W]e are to disregard trial errors and defects that 'do[] not affect the substantial rights of the parties.' With respect to non-constitutional errors, such as the one here, we have interpreted this rule to mean that an error is harmless 'if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.'" McAbee, supra, at 31 (citations omitted). If there was a violation of KRE 615, the circuit court did not have the opportunity to timely address it due to the lack of an objection, and the claim of error is further not preserved as part of the motion for a new trial. Any error in this regard was harmless. When considering the lack of preservation of the error, we also find any error was not palpable, which is the proper standard for unpreserved errors. Holder is not entitled to a new trial.
This case presents a set of tragic and unfortunate circumstances. Bad decisions by both men led to an altercation which seriously altered their lives. By all accounts both men had been law-abiding, productive members of society who are loved by their families and friends. We have sympathy for everyone involved. Nevertheless, we cannot conclude the circuit court erred in its rulings.
CONCLUSION
Holder was not entitled to immunity from prosecution, nor was he entitled to the jury instructions he sought under KRS 503.055(3). The circuit court did not abuse its discretion in refusing to grant Holder a new trial, including consideration of the claimed error regarding the sequestration of a rebuttal witness. We AFFIRM the Fayette Circuit Court.
ALL CONCUR.