finding defendant not entitled to protection-of- another instruction where “[u]nder the actually existing facts, there was no need to kill [victim] in order to protect [third person] from ‘imminent death, serious physical injury . . . or [forcible] sexual intercourse’ at his hands”
How later courts described this case
- finding defendant not entitled to protection-of- another instruction where “[u]nder the actually existing facts, there was no need to kill [victim] in order to protect [third person] from ‘imminent death, serious physical injury . . . or [forcible] sexual intercourse’ at his hands”
- finding that confession was not involuntary despite police ruse, in which police falsely used videotape to convince woman accused of murdering her husband that her calls had been monitored
- explaining that “[a] new theory of error cannot be raised for the first time on appeal”
- stating “[a] new theory of error cannot be raised for the first time on appeal[]”
Written by the judges who cited it.
The opinion
STUMBO, Justice,
dissenting.
Respectfully, I must dissent from that part of the majority opinion (part III) which concludes evidence of Springer’s pri- or sexual activity was properly admitted at trial. I believe the probative value of all of this evidence was substantially outweighed by its potential to unduly prejudice the jury against Springer. KRE 403.
The probative value of Kenneth Clark’s testimony that he and Springer had kissed, fondled, and flirted on a few occasions was minimal. This evidence, which was presented to support the theory that Springer killed her husband in an effort to free herself to be with her “lover” (the two never even had sexual intercourse), really fell considerably short of proving this motive, but went far towards painting Springer as an irreverent, immoral woman deserving of some sort of castigation. Given the tenuous probative value of this evidence when compared to the extreme prejudice it was likely to generate, I would have held the evidence inadmissible under KRE 403.
Similarly, I disagree with the majority’s approval of the admission of testimony regarding Springer’s apparent willingness to participate in three-person sexual intercourse, and the admission of Sgt. Johnson’s description of the contents of the brown briefcase. Although the Commonwealth argues this evidence was crucial to rebut Springer’s claims of abuse, in reality, the Commonwealth introduced no evidence to rebut the overwhelming evidence Springer introduced to show she was repeatedly battered by her husband. Contrary to the Commonwealth’s purported reason for introducing the evidence of Springer’s past sexual conduct, this evidence did little to dispel the notion that Springer was physically abused by her husband, but nonetheless had the desired effect of portraying her as far outside the *459 sexual mainstream so as to incur the wrath of the jurors and invite them to convict Springer for her sexual predilections rather than for any crime she may have committed. This evidence was far more prejudicial than probative, and should have been excluded at trial.
Lastly I would note that, although the trial judge did conclude that displaying the contents of the briefcase might unduly prejudice Springer in violation of KRE 403, she nevertheless permitted Sgt. Johnson to describe the contents and to opine that the photographs and videotape depicted “two consenting adults having fun.” This ruling fell far short of protecting Springer from the extreme prejudice that inevitably would result from such a biased description of evidence. Upon retrial, should the Commonwealth seek to introduce this evidence again, I would respectfully suggest that Sgt. Johnson be made to limit his description to clinical terms, i.e ., “two adults engaging in intercourse, apparently consensual.”
LAMBERT, C.J., and STEPHENS, J., join.