STUMBO, Judge.
Mike Rieder appeals from his conviction of manslaughter in the second degree. We find that the Commonwealth elicited impermissible testimony during the jury trial; therefore, we vacate Appellant's conviction and remand for a new trial.
Around 1:00 A.M. on April 17, 2011, Appellant and Jimmy Muzic were leaving the Office Lounge. Appellant and Mr. Muzic had arrived at the Office Lounge separately and did not interact inside the bar. Mr. Muzic did not have a ride home from the bar, so he requested one from Appellant. Appellant declined. Mr. Muzic got into the backseat of Appellant's vehicle and asked for a ride to the Shell Station up the street. Appellant initially said no, but after further requests from Mr. Muzic, acquiesced. Appellant drove Mr. Muzic to the gas station.
Once at the gas station, Mr. Muzic refused to get out of the vehicle. After several attempts to convince Mr. Muzic to exit the vehicle, Appellant removed a pistol he had concealed on his person.
A jury trial was held over three days. The jury found Appellant guilty of manslaughter in the second degree and he was sentenced to ten years imprisonment. This appeal followed. Further facts will be discussed as they become necessary.
As stated previously, we are vacating Appellant's conviction due to impermissible testimony at trial; however, we will begin our analysis of this case with a pre-trial issue. Appellant's first argument on appeal is that the trial court erred in not dismissing his case because the Commonwealth did not establish probable cause to prosecute him. KRS 503.085 states:
In the case at hand, KRS 503.050 and KRS 503.055 are relevant. KRS 503.050 states in pertinent part:
KRS 503.055 states in relevant part:
Rodgers v. Commonwealth, 285 S.W.3d 740, 754 (Ky. 2009). In the case before us, Appellant argues that he used deadly force to protect himself and because Mr. Muzic had unlawfully entered an occupied vehicle. Appellant claims that the Commonwealth had no proof to rebut his claims of self-defense and that his use of force was legally justified; therefore, his motion to dismiss the charges pursuant to KRS 503.085 should have been granted. Questions of probable cause are reviewed de novo. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001).
We believe that the trial court was correct in finding the Commonwealth had probable cause to prosecute Appellant. The trial court found probable cause because Appellant claimed that the gun went off accidentally, not that he fired it in self-defense. In addition, both the victim and Appellant were outside of the vehicle when Mr. Muzic was killed; therefore, Appellant could not use the defense of an occupied vehicle argument. Finally, the victim was unarmed. The trial court found that these reasons met the probable cause standard that Appellant's use of force was not legally justified and we agree.
We now move to the error that requires us to vacate Appellant's conviction. During the Commonwealth's case-in-chief, it called Sergeant Richardson to testify. Sergeant Richardson was the officer who interviewed Appellant after the shooting.
Appellant argues that Sergeant Richardson's opinion that he felt Appellant did not have the right to use his gun invaded the province of the jury as fact finder.
Appellant did not object to Sergeant's Richardson's statement at trial and asks us to review this as palpable error.
RCr 10.26. "[I]f upon consideration of the whole case the reviewing court does not conclude that a substantial possibility exists that the result would have been any different, the error complained of will be held to be nonprejudicial." Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky. App. 1986) (citation omitted).
Appellant cites to Ordway v. Commonwealth, 391 S.W.3d 762 (Ky. 2013), and Stone v. Commonwealth, 2013 WL 1919566 (Ky. App. 2013), as support. In Ordway, the defendant was charged with murder and presented a self-defense claim after he shot and killed two men. During the trial, certain evidence was presented that the defendant tried to leave the scene of the shooting before the police arrived. Responding to questions posed by the Commonwealth, a detective testified that people who use self-defense typically do not leave the scene of the incident, they call for help. The detective essentially testified that the defendant did not act like a person who had killed two men in self-defense. This was objected to at trial. The Kentucky Supreme Court found that "[t]he testimony was incompetent because it permitted the police detective to authoritatively suggest how innocent persons behave after they lawfully engage in an act of self-defense, and to then, with some measure of certainty, exclude Appellant from that class of persons based upon his conduct following the shooting." Ordway at 775-6. The Supreme Court found this to be reversible error.
In Stone, the defendant was on trial for multiple charges, one being assault. Stone claimed that he did not assault the victim, merely that he restrained the victim because the victim was trying to assault him. The victim testified that Stone assaulted her. One claim of error in that case was that the Commonwealth elicited impermissible testimony from a district court prosecutor, Alison Cox. At trial, Ms. Cox stated that she felt the allegations against Stone were true. This was not objected to at trial, but Stone requested palpable error review on appeal to this Court.
This Court stated:
Stone at 5 (footnote omitted). The Court went on to review the error for palpable error. The Court stated:
Id. at 5-6.
Here, the only evidence concerning self-defense came from Appellant. The evidence contradicting it was speculative. There were other witnesses to the shooting, but they were far away and only saw the two pushing one another and then Appellant shooting Mr. Muzic. Appellant's claim at trial is that he was defending himself against Mr. Muzic when the gun fired. Whether or not Appellant used the gun and shot Mr. Muzic in self-defense was a question for the jury, not Sergeant Richardson. Using the cases of Ordway and Stone as a guide, we find that the testimony of Sergeant Richardson was improper and resulted in manifest injustice. We therefore vacate Appellant's conviction and remand for a new trial.
Appellant raises other arguments on appeal. Some of them may arise again in a new trial; therefore, we will address those arguments. Appellant claims that the trial court erred in not giving a jury instruction for defense of a vehicle. Pursuant to KRS 503.055 Appellant would have been entitled to such an instruction if he had a reasonable fear of imminent peril of death or great bodily harm when he used deadly force if the victim were unlawfully trying to enter Appellant's occupied vehicle. The trial court denied the defense's request for this instruction because the vehicle was not occupied when Mr. Muzic was shot. We agree with this reasoning and find no error.
Next, Appellant argues that evidence that he violated the rules of the concealed deadly weapon license when he took his concealed weapon into the bar should have been excluded. Prior to trial, the defense made a motion in limine to exclude any testimony or argument about the rules concerning carrying a concealed deadly weapon into the Office Lounge bar. The trial court granted the motion, but warned that the defense could always open the door to this kind of questioning at trial. At trial, Appellant stated that he had a valid conceal and carry license on the day of the shooting.
On cross-examination, the Commonwealth asked about his familiarity with the rules of carrying a concealed deadly weapon. Defense counsel objected, but the trial court overruled. The court determined that the Commonwealth was permitted to ask Appellant about his license and the rules he learned in obtaining the license. The Commonwealth then elicited testimony that Appellant was familiar with the rules, including one about not carrying a concealed weapon into a bar.
The proper standard for review of evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We cannot say the trial court erred in allowing the questioning about the license rules. The trial court stated in its ruling on the motion in limine that the defense could open the door to such questioning. It appears this is what happened here. We find no abuse of discretion.
Appellant also argues that the trial court erred in allowing the Commonwealth to introduce into evidence autopsy photos of Mr. Muzic's brain. Appellant claims the photos were unnecessary and unduly prejudicial due to their gruesome nature.
Hunt v. Commonwealth, 304 S.W.3d 15, 41 (Ky. 2009).
We have reviewed the photos in question. While they are quite gruesome, they were relevant to show the injuries sustained to Mr. Muzic's brain. Their probative value was not substantially outweighed by the prejudicial effect. The trial court did not abuse its discretion in allowing the introduction of the photos.
Appellant's next argument is that the restitution he was ordered to pay in the final judgment was improper because it did not meet the requirements set forth in KRS 532.032 and KRS 532.033. Because we are vacating Appellant's conviction and remanding for a new trial, this issue is moot. Any errors in the final judgment regarding restitution can be corrected should Appellant be convicted again.
Finally, Appellant argues that the trial court erred in denying his motions for directed verdict at the close of the Commonwealth's case and at the close of the defense's case. Appellant claims the Commonwealth presented no evidence to rebut his claim of self-defense.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citation omitted). "A reviewing court does not reevaluate the proof because its only function is to consider the decision of the trial judge in light of the proof presented." Id. "Circumstantial evidence is sufficient to support a criminal conviction as long as the evidence taken as a whole shows that it was not clearly unreasonable for the jury to find guilt." Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994) (citing Trowel v. Commonwealth, 550 S.W.2d 530 (Ky. 1977); Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)).
In the case at hand, we believe that the trial court was correct in denying the motion for directed verdict. Evidence suggested that Appellant did not intend to shoot Mr. Muzic, but that the gun went off accidentally. Also, Mr. Muzic was not armed, so there was still a question as to whether Appellant was in fear of imminent death or serious physical injury. These facts make it reasonable for a jury to find guilt.
For the foregoing reasons, we vacate Appellant's conviction and remand for a new trial.
ALL CONCUR.
