Cody Bates v. Commonwealth of Kentucky ( 2020 )

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2019-SC-000121-MR
CODY BATES APPELLANT/CROSS-APPELLEE
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE ANNIE O’CONNELL, JUDGE
NO. 17-CR-001730
COMMONWEALTH OF KENTUCKY APPELLEE/CROSS-APPELLANT
AND
2019-SC-000141-MR
COMMONWEALTH OF KENTUCKY APPELLANT/CROSS-APPELLEE
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE ANNIE O’CONNELL, JUDGE
NO. 17-CR-001730
CODY BATES APPELLEE/CROSS-APPELLANT
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Jefferson County Grand jury indicted Appellant, Cody Bates, of one
count of murder for the death of three-month-old Prestyn Amato. A Jefferson
Circuit Court jury convicted him of wanton murder and recommended a
sentence of thirty-five years’ imprisonment. Bates was sentenced in
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accordance with the jury’s recommendation, and now appeals to this Court as
a matter of right. Ky. Const. § 110(2)(b).
Bates asserts the trial court erred in admitting four of Prestyn’s autopsy
photographs. The Commonwealth, in a cross-appeal, asserts the trial court
erred by excluding portions of Bates’s statements to a co-worker and excluded
portions of his confession. The Commonwealth sought review of these issues
only if Bates’s conviction was overturned and the case remanded for a new
trial. Bates argues the Commonwealth could not file such a cross-appeal. We
need not address either the issues the Commonwealth raises or the propriety of
the cross-appeal, however, as we affirm the trial court and dismiss the
Commonwealth’s cross-appeal as moot.
I. BACKGROUND
Cody Bates and Audiyeonna Amato were involved in an on-and-off
relationship for four years. In February 2017, during one of the “ofF periods,
Amato gave birth to Prestyn, a healthy baby boy. About a week after Prestyn’s
birth, Bates and Amato resumed their relationship, with Bates eventually
moving into Amato’s apartment with her and Prestyn. Paternity was never
established; however, Bates assumed the role of Prestyn’s father. Amato and
Bates shared parental duties including getting up with the baby for feedings
and diaper changes.
Bates and Amato both worked night shift during the week at their
respective jobs and Amato’s stepmother, Rita Amato, cared for Prestyn while
the couple worked. On a typical workday, Amato would drop Prestyn off at
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Rita’s home on her way to work and then Bates would pick Prestyn back up in
the early morning hours on his way back home.
On June 9, 2017, Bates picked Prestyn up from Rita’s and he and the
baby were back at the family apartment before 6:00 a. m. when Amato returned
home from work. After arriving home, Amato checked on Prestyn a couple of
times before she and Bates went to bed. According to Amato, Prestyn was
sleeping soundly and breathing normally when she checked on him. At some
point after Amato and Bates went to sleep, Prestyn stirred and Bates got up
and took the baby into the living room to change his diaper and feed him.
Before 8:00 a.m., Bates woke Amato telling her Prestyn had rolled off the couch
and would not wake up. When Amato went to the couch where Prestyn was
lying, the baby appeared to be asleep, but was breathing irregularly.
Bates called 911 and reported Prestyn had fallen and hit his head. When
EMS arrived and performed CPR on the baby, they called for Advanced Life
Support because Prestyn’s heart had begun slowing. Prestyn had gone into
cardiac arrest before being transported to the Norton’s Children’s Hospital
emergency room. Medical personnel continued performing CPR while en route
to the hospital; however, when Prestyn arrived at the emergency room, he had
no pulse and was not breathing. At the hospital, doctors were unable to get a
pulse and declared Prestyn deceased before 9:00 a.m.
Pursuant to a request from the Jefferson County Coroner’s office, Norton
Hospital completed X-rays and a CT scan of Prestyn. The tests revealed a skull
fracture, three sub-scalp injuries, and a subdural hemorrhage with
accompanying brain bleed. Later, Prestyn’s autopsy revealed optic nerve
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sheath damage not visible in the CT scan. These closed-head injuries were not
externally visible.
The morning Prestyn died, Bates told Amato, the 911 dispatcher, and
EMS personnel that Prestyn rolled off the couch and hit his head. After
Prestyn died, Louisville Metro Police Detective Timothy O’Daniel interviewed
Bates. Bates initially gave Detective O’Daniel the same account. In the
recorded interview (conducted just hours after Prestyn’s death), Bates began
his account of the occurrences the morning in question by telling Detective
O’Daniel that Prestyn had fallen off the couch and possibly hit his head on a
wooden table as he fell. When Detective O’Daniel told Bates that a fall of that
nature would not have caused Prestyn’s skull fracture, Bates changed his
story. In the new explanation of the baby’s injuries, Bates told Detective
O’Daniel he accidentally dropped Prestyn to the floor, tried to pick him up, and
then Bates fell. When he fell, Bates said he threw Prestyn three to four feet
toward the couch. Prestyn missed the couch, fell to the floor, and hit his head.
At trial, Bates denied throwing Prestyn toward the couch. Bates said
when he got up with Prestyn, he tried to comfort him by walking and holding
him. Bates claimed that while walking, his left leg gave out underneath him
and caused him to fall. According to Bates’s new version of events, he landed
on top of Prestyn when he fell. Bates said that when he tried to put Prestyn on
the couch after the fall, he dropped him and Prestyn hit his head on the floor.
At trial, Amato described Prestyn as a healthy three-month-old with only
minor visible injuries including a “ding” on his forehead and a slight cut on his
nose from his own fingernails. Dr. Katherine Nichols, the Norton Hospital
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emergency room physician who treated Prestyn when he was brought in, noted
in her report and testified at trial that she saw mild scabbing at the base of
Prestyn’s nose, a slight bruise to his forehead, and a chin abrasion. According
to Dr. Jeffrey Springer, the medical examiner who performed Prestyn’s autopsy,
the externally-visible injuries described by Amato and Dr. Nichols did not
cause Prestyn’s death. Dr. Springer testified that the externally-visible injuries
were related to Prestyn’s medical treatment with exception of a slight, healing
bruise on his forehead.
The Commonwealth sought to introduce two photos to show the minor
injuries described by Amato and Dr. Nichols. The two photos, taken by Dr.
Springer before the autopsy, are of the front and side of Prestyn’s head. In
reviewing these two photographs, we note they are not graphic or bloody and in
both photos, Prestyn’s eyes are closed. If someone did not know the
photographs were from an autopsy in a child homicide case, the two pictures
could be described as those of a sleeping infant’s face.
The Commonwealth also sought to introduce two autopsy photos
revealing three sub-scalp injuries. These two photos show the scalp pulled
back from the skull, revealing three separate dark spots. Due to the nature of
these fatal injuries (which were not externally visible), these photographs were
graphic. Dr. Springer testified the dark spots seen in the two pictures were
impact wounds. The two internal-injury photographs are unmistakably of an
infant’s head.
The Commonwealth indicates these four photographs were selected by
the Commonwealth from among more than seventy autopsy pictures taken by
Dr. Springer. The four photos do not show the optic nerve sheath damage. Dr.
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Springer testified that there was no single photo depicting all the head injuries
due to their disparate locations (with some injuries being external and others
internal). Bates objected to the introduction of the four photos.
The Commonwealth sought to avoid any confusion between Amato’s
description of Prestyn’s minor visible external injuries and internal injuries
that proved fatal. When discussing the two external injury photos, the trial
court specifically referenced Amato’s testimony describing Prestyn’s minor head
injuries prior to his death. The trial court admitted the two external injury
photographs.
The trial court took the Commonwealth’s request to admit the two
remaining photos under submission until Dr. Springer testified about Prestyn’s
internal injuries. The trial court expressed concern about the possible
cumulative nature and prejudicial effect of the pictures. The trial court
instructed the Commonwealth to obtain as much detail and explanation of the
internal injuries as possible from Dr. Springer.
Dr. Springer described Prestyn’s internal injuries as being the result of
blunt force trauma to the infant’s head. Based on the number and location of
the injuries, Dr. Springer concluded that a fall from a couch, even if the child
hit a table during the fall, would not account for the three sub-scalp injuries,
the skull fracture, and the optic nerve sheath damage. Each of the internal
injuries Dr. Springer described, reflected separate “strike” sites or points of
impact. According to Dr. Springer, the skull fracture may have been another
separate strike site unconnected to the three sub-scalp injuries; however, Dr.
Springer could not conclusively make that determination. Dr. Springer
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testified that it was possible that four distinct blows to the head caused
Prestyn’s internal fatal injuries.
Dr. Springer also testified the optic nerve sheath damage was consistent
with sudden deceleration—meaning Prestyn’s head was moving and came to an
abrupt stop. Dr. Springer concluded that the internal injuries were consistent
with the infant being thrown four or five feet, striking an object, and falling to
the floor where he struck his head again.
During Dr. Springer’s testimony, the Commonwealth renewed its motion
for admission of the two autopsy photographs depicting Prestyn’s fatal internal
injuries. The Commonwealth argued that two photographs were not
cumulative, but conceded that autopsy photos in general were gruesome—
especially in a case involving a baby’s death. At the bench conference, the
Commonwealth asserted it had a high burden to meet and the two photos were
necessary to show the location and extent of the injuries described by Dr.
Springer. The Commonwealth argued the internal injuries were the cause of
death and were not extraneous injuries unrelated to issues before the jury.
Bates renewed his objection.
The trial court explained that because this was a murder case, Prestyn’s
dead body was a fact in the case, and autopsy photos were part of the evidence.
Further, the trial court found that the Commonwealth’s need to demonstrate
the location and extent of the injuries described by Dr. Springer and shown in
these two photographs was compelling. The trial court permitted two printed
copies of the photographs to be circulated to the jury, but directed the two
photos not be displayed on the large video screen on which other photos had
been shown to the jury.
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The trial court instructed the jury on theories of intentional murder,
wanton murder, second-degree manslaughter, and reckless homicide. The jury
found Bates guilty of wanton murder and recommended a sentence of thirty-
five years’ imprisonment. The trial court followed the jury’s sentencing
recommendation.
The Commonwealth filed a cross-appeal of a pretrial ruling excluding
statements Bates allegedly made to a co-worker and parts of Bates’s confession
to Detective O’Daniel. As we are affirming Bates conviction, thus mooting the
cross-appeal, we will not address the factual matters or legal arguments in the
cross-appeal or Bates’s contention that these issues are not properly before
this Court.
II. ANALYSIS
Bates alleges error when the trial court admitted the four autopsy photos
described above—two of which displayed external head injuries and two
internal. The four photographs were admitted in conjunction with the
testimony of the medical examiner who conducted Prestyn’s autopsy, Dr.
Jeffrey Springer, and were selected by the Commonwealth from the seventy-
nine pictures taken by Dr. Springer during the autopsy. During Dr. Springer’s
testimony, the photographs were used to demonstrate and explain the nature
and location of Prestyn’s injuries.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Woodard, v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004). The test for abuse
of discretion is whether the trial judge's decision was arbitrary, unreasonable,
8
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
Bates claims the trial court should have excluded Prestyn’s autopsy
photographs pursuant to the KRE 403 balancing test. KRE 403 states:
“[ajlthough 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.” “Like all evidence, [photographs] are
subject to the balancing test of KRE 403.” Hall v. Commonwealth, 468 S.W.3d
814, 823 (Ky. 2015). Hall provides significant guidance for analysis of claims
involving graphic victim photographs.
This Court has said, “[w]e now make clear that in all cases in which
visual media showing gruesome or repulsive depictions of victims are sought to
be introduced over objection, as with all other types of evidence, the trial court
must conduct the Rule 403 balancing test to determine the admissibility of the
proffered evidence.” Id. at 823. Bates argues that the four photographs at
issue were improperly admitted and his conviction must be reversed. We
disagree.
A trial court must conduct a three-part evaluation of objected-to
evidence:
(i) assessment of the probative worth of the evidence whose
exclusion is sought; (ii) assessment of the probable impact of
specified undesirable consequences likely to flow from its
admission (i.e., “undue prejudice, confusion of the issues, or
misleading the jury, ... undue delay, or needless presentation of
cumulative evidence”); and (iii) a determination of whether the
product of the second judgment (harmful effects from admission)
exceeds the product of the first judgment (probative worth of
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evidence).
Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012).
In the case at bar, the trial court conducted a review of Prestyn’s autopsy
photographs pursuant to KRE 403. As aforementioned, after determining the
two external-injury photos were admissible, the trial court withheld ruling on
the admissibility of the two internal-injury photographs due to concerns over
their potential undue prejudice and cumulative effect. When the
Commonwealth sought to introduce the photographs during Dr. Stringer’s
testimony, Bates claims the trial court’s stated reasons for allowing the
admission of the photographs are erroneously lacking requisite language.
Although the trial court did not recite exact language from the rule when
conducting the review, that is not dispositive. This Court does not “require
trial courts to make detailed written findings to support the many evidentiary
rulings they must make in the course of a trial.” Cox v. Commonwealth, 553
S.W.3d 808, 816 (Ky. 2018). Nor do we require that trial courts use exact
language taken from the rule to explain decisions about admitting evidence.
The record does, however, need to be clear that the trial court engaged in the
required balancing. The record in this case is clear the trial court engaged in
the required KRE 403 balancing.
In the present case, the trial court utilized a balancing of probative value
versus prejudicial effect—beginning when the Commonwealth first tendered the
four photographs for admission. The trial court carefully reviewed each
individual photograph and asked questions concerning pictures both
individually and collectively. The trial court listened to arguments of counsel
and responded to those arguments. When ruling that the two photographs
10
depicting minor external injuries were admissible, the trial court referenced
Amato’s testimony concerning some minor head injuries Prestyn had prior to
his death. As to the photographs showing Prestyn’s fatal internal injuries, the
trial court did not find their probative value outweighed their prejudicial effect
until after the Commonwealth was able to adequately demonstrate that its
need for the photographs’ admission in order to show the location and nature
of the injuries was essential.
In evaluating graphic photos, we have said, “[b]ecause the
Commonwealth must prove the corpus delicti, such photographs are relevant to
show the nature of the injuries inflicted by the defendant upon the victim.”
Ernst v. Commonwealth, 160 S.W.3d 744, 757 (Ky. 2005) overruled on other
grounds by Mason v. Commonwealth, 559 S.W.3d 337 (Ky. 2018).
Furthermore, “we have consistently held that the Commonwealth may ‘prove its
case by competent evidence of its own choosing, and the defendant may not
stipulate away the parts of the case that he does not want the jury to see.”
Hall, 468 S.W.3d at 825 (quoting Pollini v. Commonwealth, 172 S.W.3d 418,
424 (Ky. 2005)).
In this case, Bates did not contest the descriptions of the external or
internal injuries by Amato, Dr. Nichols, and Dr. Springer. Despite that lack of
contest, albeit tacit acceptance, the Commonwealth offered a credible reason
for admitting the photographs. Namely, the Commonwealth argued it needed
the photographs to prove its case to jurors who may learn visually. The
Commonwealth stated that some jurors might grasp the importance of the
injuries, both fatal and non-fatal, from Dr. Springer’s testimony. However,
other jurors may be visual learners who require a different way to receive
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critical information. Faced with a high burden of proof and with defense
counsel’s claim in opening statements that Bates was going to testify and offer
a version of what happened more consistent with accident (or at least with a
state of mind less than intentional), the Commonwealth’s contention that it
needed to reach every juror with its critical evidence was reasonable.
The trial court admitted the two photographs of external injuries prior to
Dr. Springer testifying, noting Amato’s testimony about the very minor injuries
the child had prior to his fatal injuries. The external injuries Amato described,
and those noted and described by Dr. Nichols, were not the cause of Prestyn’s
death according to Dr. Springer. The Commonwealth sought to prove the
injuries inflicted by Bates caused Prestyn’s death—and that included showing
the jury that the minor external injuries were not severe. The two external-
injuiy photos, as noted above, were not gruesome or graphic and the trial court
did not abuse its discretion in finding they were not unduly prejudicial.
The trial court’s decision to admit the two external-injury photographs
before Dr. Springer testified and withhold ruling on the remaining two pictures
until after hearing his testimony shows the trial court was aware of the
possible undue prejudice and possible cumulative impact the photographs
might have. The two sets of pictures are very different in their nature, in the
injuries they present, and in the potential for prejudice.
The trial judge made the concerns she had with the pictures clear in
withholding her decision to admit the two internal-injury photos. The trial
judge said, “I am going to withhold my ruling on this. I do think this is
highly—could—first of all, I think it is potentially cumulative, but also could
really inflame the jury in a way that is more prejudicial than probative.” These
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words indicate the trial court’s careful weighing of the probative value versus
prejudicial effect of the pictures of Prestyn’s internal injuries. The trial court
instructed the Commonwealth to bring out as many details about the internal
injuries as possible from the medical examiner.
During Dr. Springer’s testimony, the Commonwealth sought to admit the
two internal-injury photographs. Bates renewed his objections to the
photographs. The Commonwealth argued that the injuries reflected in the
photographs were the injuries associated with Prestyn’s cause of death. The
trial court ultimately accepted the Commonwealth’s argument that it needed to
show the jury the location and nature of the internal injuries. Although the
trial court did not use specific words such as “the probative value exceeded the
prejudicial effect,” that is precisely what the trial court determined. The trial
court’s determination met the third and final prong of the test set out in Webb,
387 S.W.3d at 326. As a further example of the trial court’s continued
balancing of probative value versus prejudicial effect, the court ordered the
Commonwealth to circulate the two photographs to the jury rather than
presenting them on the large video display where all other photographic
evidence during the trial had been presented.
Bates argues that in making the determination that the photographs
were necessary to show the nature and location of the injuries, the trial court
failed to give due regard to the other evidence admitted as required by Hall. In
Hall we said
Thus, in cases like Hall’s, the trial judge cannot do a Rule 403
balancing for an individual photo in a vacuum. Instead, the judge
must consider the photographs within the full evidentiary context
of the case, giving due regard to other evidence admitted as well as
evidentiary alternatives, so as to ascertain each item’s “marginal”
13
or “incremental” probative worth for purposes of weighing that
value against the risk of prejudice posed by the evidence. See
Norris v. Commonwealth, 89 S.W.3d 411, 416 (Ky. 2002) (“[I]n
exercising its discretion under Rule 403, a trial court must
consider in the balancing test. . . other available evidence to prove
the fact in issue.”); United States v. Beechum, 582 F.2d 898, 914
(5th Cir. 1978) (holding “incremental” probative value, or what the
evidence contributes to the persuasive force of other evidence on
the same point, must be weighed against prejudice).
468 S.W.3d at 824.
In Hall, the trial court had admitted a graphic crime scene video,
individual crime scene photographs showing the victims and their injuries from
multiple angles including increasingly closer pictures of the injuries, and
autopsy photos. The photographic evidence was in addition to law enforcement
testimony, lay witness testimony, expert testimony, lab technician testimony,
and other recorded evidence including 911 tapes and the defendant’s
confession. Many witnesses testified about the gruesome injuries and crime
scene.
We made clear in Hall that the probative value of each photograph, often
of the same gruesome subject from a slightly different angle or distance,
significantly reduced the probative value of the later pictures. We said:
Not only will the probative worth of each additional gruesome
photograph be incrementally discounted as the facts to be proven
become ever more certain, but admission of additional photos will
also correspondingly increase the danger of undue prejudice. That
is, as the jury is confronted with gory image after gory image, the
inflammatory and prejudicial effect of the images as a whole
increases, while the marginal probativeness of each new image is
less than the one before. The two concepts are inversely related,
and at some point, the marginal probative worth of an additional
photo will certainly be substantially outweighed by the risk that
the juiy’s decision-making will be improperly influenced by bias,
sympathy, or animosity engendered by the additional inflammatoiy
evidence. In the present case, that point was far exceeded.
Id. at 826.
14
The issue of multiple and highly inflammatory photographs seen in
Hall is not found in this case. When arguing for admission of the two
internal injury photos, the Commonwealth informed the trial court it had
reviewed and evaluated one hundred and twenty photographs, including
hospital treatment photos and other more graphic autopsy photos. From
those, the Commonwealth selected only four pictures to admit at trial.
We note the Commonwealth did not even offer photographs of the child’s
eyeballs to show optic nerve sheath damage consistent with a sudden
deceleration injury described by Dr. Springer.
Apart from the photographs, evidence of Prestyn’s internal injuries that
caused his death consisted of Dr. Nichols’s testimony concerning the post­
mortem X-rays and CT scan taken at Norton Children’s Hospital revealing a
skull fracture, three sub-scalp injuries, and a brain bleed. In addition to
identifying and explaining these injuries, Dr. Springer described optic nerve
sheath damage not shown in any photographs. As noted above, the internal
injuries were not visible simply by looking at the child.
In Hall,
There was no material dispute of the facts that the Commonwealth
sought to use the photos to prove. And there was more than
enough alternative evidence—including the less gruesome photos,
extensive lay and expert witness testimony, and the crime scene
video—to easily prove the same facts beyond a reasonable doubt.
Id. at 825.
We further stated in Hall, “[w]hile a few photos necessary to show the
commission of the crimes and the nature of the victims’ injuries were properly
admitted, the numerous photos introduced thereafter were cumulative and
added little, if any, persuasive force to the other evidence proving the crime and
15
the circumstances surrounding its commission.” Id. at 826. The
Commonwealth in this case used as few pictures as necessary to prove its case
and did not offer repeated graphic images which was the compounding problem
we identified in Hall. Here, there was no overwhelming and unnecessary piling
up of graphic pictures.
Consistent with our directives in Hall, the Commonwealth’s essential
proof was accomplished with two graphic photos. The Commonwealth’s
restraint in choosing these four photographs from choices that included more
graphic and unsettling possibilities and the trial court’s careful weighing of the
images’ probative value versus prejudicial effect clearly sets this case apart
from Hall. This record was not inundated and overwhelmed with an
unnecessary number of graphic images. The four photographs used by Dr.
Springer to explain his findings concerning the cause and manner of death
directly support his testimony. These four photographs, instead of being the
main focus of the Commonwealth’s case, served as a visual tool for the jury.
In reviewing a case where the trial court admitted five autopsy
photographs, we said
Although disturbing, as by their nature autopsy photographs
tend to be, the five photographs admitted here were no more
than were reasonably necessary to provide illustration for
the medical examiner’s testimony and to support her
findings. They were relevant as tending to show not only
that the child had been fatally injured, but also that the fatal
head injury was of a severity almost certain to have been
inflicted and not likely to have happened accidentally.
Staples v. Commonwealth, 454 S.W.3d 803, 825-26 (Ky. 2014).
We reach the same conclusion in this case that we did in Staples. The
trial court’s admission of four photographs, including two of external injuries
16
and two revealing internal injuries, was supported by sound reasoning and
applicable legal authority. The trial court did not abuse its discretion in the
admission of the four autopsy photographs.
III. CONCLUSION
After careful review of the issues presented, we affirm Bates’s conviction
and corresponding sentence. As we affirm Bates’s conviction, we dismiss the
Commonwealth’s cross-appeal as moot.
All sitting. All concur.
COUNSEL FOR APPELLANT/CROSS-APPELLEE CODY BATES:
Leo Gerard Smith
Louisville Metro Public Defender
Yvette Rene’ Delaguardia
Assistant Appellate Public Defender
COUNSEL FOR APPELLEE/CROSS-APPELLANT COMMONWEALTH OF
KENTUCKY:
Daniel Jay Cameron
Attorney General of Kentucky
Jeanne Deborah Anderson
Special Assistant Attorney General
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2019-SC-0121-MR
AND
2019-SC-0141-MR
CODY BATES APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
NO. 17-CR-001730
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER DENYING PETITION FOR REHEARING
The Petition for Rehearing, filed by the Appellant, of the Memorandum
Opinion of the Court, rendered April 30, 2020, is DENIED.
All sitting. All concur.
ENTERED: September . 2020.
CHIEF JUSTICE