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ACTION.
2018-SC-000615-MR

JAMES M. SPAULDING APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE OLU ALFREDO STEVENS, JUDGE

NO. 16-CR-000358

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

James M. Spaulding was convicted of wanton murder, four counts of

first-degree wanton endangerment, and first-degree fleeing or evading police.

Pursuant to the jury’s recommendation, the Jefferson Circuit Court sentenced

him to thirty-three years’ imprisonment. Spaulding now appeals as a matter of

right,1 raising three claims of error: (1) the trial court improperly instructed the

jury on wanton murder, (2) Spaulding was prejudiced by the Commonwealth’s

Moss violation2 and (3) the trial court improperly limited mitigating evidence of

details of Spaulding’s prior convictions during the sentencing phase of trial.

After review of the record and appEcable law, we affirm.

1 Ky. Const. § 110(2)(b).

2 Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997).
I. Factual and Procedural Background.

The night of February 2, 2016, Spaulding rode around Louisville with his

friend Antoine Major in Major’s F-150 truck. They stopped to get cigarettes

and beer and eventually ended up at Major’s mother’s home, where Spaulding

smoked spice,3 marijuana, did methamphetamine and drank alcohol.

Spaulding became paranoid and thought someone was out to kill him. The

next morning, Spaulding smoked more spice and marijuana and perhaps did

more meth; he could not recall. Later that evening, he bought more cigarettes

and spice, and he and Major rode around in Major’s truck into the early

morning hours of February 4th. Due to his drug hallucinations, Spaulding

became increasingly paranoid, thinking people were following them and out to 

get him. Believing Major was wired by the FBI, Spaulding made Majors strip

and then threw his clothes out the window of the truck.

They stopped at a Denny’s Restaurant and Spaulding went inside and

asked for help and for someone to call the police. While inside Denny’s,

Spaulding picked up the phone and called 911 himself, reporting that he had

been robbed. Convinced people were out to get him, he left before police

arrived. Spaulding and Major then pulled into a Four Points by Sheraton Hotel

parking lot. They went inside the lobby of the hotel; Major was naked, and

Spaulding was screaming and yelling at the desk clerk to call the police.

Believing people were still out to get him, Spaulding took the elevator to the

3 Spice is a class of synthetic cannabinoids.

2
sixth floor of the hotel and ran down the hall, banging on doors and yelling for

help and for someone to call 911. He then fled down the stairs, leaving Major

inside the hotel.

Spaulding got into Major’s truck and drove to a nearby Stop-n-Go

Liquor/Convenience Store. It was about 2 a.m. at this point. A store

employee, Kahmal Zahden, was on his way out the door with his friend, as

Zahden’s shift had just ended. The other store employee, Denny Davis, was

inside. Spaulding rushed into the store, shoving Zahden and his friend back

inside, and pulled the door behind him, all the while waving his arms and

screaming for help, saying someone was trying to rob and kill him. When

Zahden picked up the phone to call 911, Spaulding jumped over the counter

and wrestled with him for the phone. When Zahden grabbed the store gun

which was kept under the counter, Spaulding fought with him for that too.

When the gun fell to the floor, Spaulding grabbed it and shot Davis, who fell to 

the ground. Spaulding fired shots at Zahden, missed, then fatally shot Davis

3-4 more times before leaving the store on foot with the gun and continuing

down the street, screaming.

A nearby resident, Mark Adair, was out back of his house smoking a

cigarette when he heard someone screaming. Adair went into his house and

looked out the front window and saw a guy run up to his door and try to get in.

As Adair approached the door to keep the guy from entering, the guy shot the

lock off. The bullet stopped by a couch where Adair’s teenage son slept.

3
Adair’s 5-month-old daughter was in the next room, which was not too far from

where the bullet ended up. Adair said the shooter did not enter his home.

Spaulding ran to the house next door where Sean Allender resided with

his roommate. Allender heard screaming and pounding on the window of his

house and called the police. Allender’s bedroom window broke and the loaded

handgun went through it. Spaulding did not enter but rather ran back to

Major’s truck and drove off.

Detective Vito spotted Major’s truck as matching the description of the

one involved in the shooting at the convenience store and pulled behind it at a

red light, activating the sirens and lights. Spaulding ran the red light and a

police pursuit ensued down 1-65. As Spaulding approached the ramp to the

Waterson Expressway, he did a U-turn, hit a wall/rail of the expressway and

jumped out of the truck while it was still in gear. He stood up, put his hands

up and walked toward the officers yelling, “Just kill me, just kill me!” It took

multiple officers to subdue Spaulding and get him on an ambulance stretcher.

Spaulding bit one of the officers on the arm. In the ambulance and at the

hospital, Spaulding remained paranoid, shouting and yelling for help.

Eventually, Spaulding was discharged from the hospital to jail.

Spaulding was indicted on 13 counts, including murder, criminal

attempt to murder, first-degree robbery, first-degree burglary, criminal attempt

to commit burglary, four counts of wanton endangerment, tampering with

physical evidence, first-degree fleeing/evading police, third-degree assault, and

4
first-degree criminal mischief.4 Ultimately, the jury found Spaulding guilty of

wanton murder of Davis, four counts of first-degree wanton endangerment (one

count as to Zahden, and three counts as to Adair and his two children in the

path of the shot fired into the lock of Adair’s door), and first-degree

fleeing/evading police. The jury recommended a sentence of thirty years for

wanton murder and three years each on the remaining convictions, with the

three-year sentences to run concurrently with each other, and consecutively to 

the thirty-year sentence, for a total sentence of thirty-three years. The trial

court imposed the recommended sentence and this appeal followed.

II. Analysis.

A. The Wanton Murder Jury Instruction Was Proper.

Spaulding argues the trial court abused its discretion by instructing the

jury on wanton murder, as that instruction was not supported by the evidence.

At trial, Spaulding objected to the wanton murder instruction on grounds that

he did not act wantonly because he was not “aware of and consciously

disregarded a substantial and unjustifiable risk that the result will occur.”

Spaulding also moved for a directed verdict on this charge. The trial court

overruled his objection and denied his directed verdict motion.

“When the question is whether a trial court erred by: (1) giving an

instruction that was not supported by the evidence; or (2) not giving an

4 The charges of criminal attempt to commit burglary and first-degree criminal

mischiefwere dismissed prior to trial. During trial, the charges of first-degree robbery

and first-degree burglary were dismissed.

5
instruction that was required by the evidence; the appropriate standard for

appellate review is whether the trial court abused its discretion.” Sargent v.

Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). An abuse of discretion occurs if the

trial court’s ruling is “arbitrary, unreasonable, unfair, or unsupported by

sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.

1999).

The jury was instructed as follows on the wanton murder charge:5

You will find the Defendant, James Spaulding, guilty under this

Instruction if, and only if, you believe from the evidence beyond a

reasonable doubt, all of the following:

(A) That in Jefferson County, Kentucky, on or about February 4, 2016,

James Spaulding killed Denny Davis by shooting him with a

handgun; AND

(B) That in doing so, James Spaulding was wantonly engaging in

conduct which created a grave risk of death to another and thereby

caused the death of Denny Davis under circumstances manifesting

an extreme indifference to human life.

The following definition of “wantonly” was included in the jury instructions:

A person acts wantonly with respect to a result or circumstance

when he is aware of and consciously disregards a substantial and

unjustifiable risk that the result will occur or that the

circumstance exists. The risk must be of such nature and degree

that disregard thereof constitutes a gross deviation from the

Standard of conduct that a reasonable person would observe in the

situation. A person who creates such a risk but is unaware thereof

solely by reason of voluntary intoxication also acts wantonly with

respect thereto.6

5 This instruction mirrored the definition of wanton murder set forth in KRS

(Kentucky Revised Statutes) 507.020(1)(b): “(1) A person is guilty of murder when: . . .

(b) Including, but not limited to, the operation of a motor vehicle under circumstances

manifesting extreme indifference to human life, he wantonly engages in conduct which

creates a grave risk of death to another person and thereby causes the death of

another person.”

6 This definition mimics that found in KRS 501.020(3).

6
Spaulding maintains that because of his state of mind, he was unable to

form the requisite mental state required of wanton murder. Spaulding further

asserts that because he did not seek violence when he entered the convenience

store, he did not meet the definition required for a finding of wantonness. In

support, Spaulding points out that he was not brandishing a gun or other

weapon when he entered the Stop-n-Go.

However, Spaulding overlooks the last sentence included in the statutory

definition of “wantonly,” which was included in the jury instructions: “A person

who creates such a risk but is unaware thereof solely by reason of voluntary

intoxication also acts wantonly with respect thereto.” KRS 501.020(3). Thus,

under the plain language of the statute, voluntary intoxication does not negate

the existence of an element of wanton murder. See also Nichols v.

Commonwealth, 142 S.W.3d 683, 689 (Ky. 2004) (holding that “voluntary

intoxication, which does negate an element of specific intent offenses, does not

negate any element of Wanton Murder, particularly the mens rea of

‘wantonness[]”’) (citing McGuire v. Commonwealth, 885 S.W.2d 931, 934 (Ky.

1994) (holding that “[voluntary intoxication does not negate culpability for a

crime requiring a culpable mental state of wantonness or recklessness, but it

does negate specific intent[]”)).

The “extreme nature” of a defendant’s intoxication can be “sufficient

evidence from which ajury could infer wantonness so extreme as to manifest

extreme indifference to human life.” Walden v. Commonwealth, 805 S.W.2d

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102, 105 (Ky. 1991), overruled on other grounds by Commonwealth v. Burge,

947 S.W.2d 805 (Ky. 1996). Such a determination is a question of fact for the

jury. Id. “If the jury determines that, under the given circumstances, a

defendant’s conduct rises to the level of aggravated wantonness, then the jury

could find ‘extreme indifference to human life’ as required by the statute.”

Ramsey v. Commonwealth, 157 S.W.3d 194, 197 (Ky. 2005) (citation omitted).

Here, evidence was presented that Spaulding’s paranoia and

hallucinations were fueled by his voluntary drug binge that took place over the

course of days, during which time he ingested a variety of drugs to become,

and remain, extremely intoxicated. Spaulding testified at trial that he had

smoked spice and methamphetamine together in the past, and knew the effects

it could have, but that they had never made him hallucinate or paranoid like

this. He also testified in detail about the events leading up to him fatally

shooting Davis, as well as the events that took place after. He recalled shooting

Davis, with both hands on the gun, and admitted that neither Zahden nor

Davis ever pointed a gun at him.

The video recording of what transpired in the convenience store was

played for the jury at trial, and both Zahden and his friend who was with him

that night testified. That evidence showed Spaulding forcing his way into the

store door, shoving Zahden and his friend inside, and pulling the door shut

behind him. Once in the store, Spaulding ran around like a maniac, demanded

that Zahden call 911, and then jumped over the counter and grabbed the

phone before Zahden even had time to call. When he took the phone away

8
from Zahden, he glanced at it then tossed it over the counter. Mayhem

continued when Spaulding wrestled with Zahden for the gun. Spaulding shot

Davis, who was simply standing to the side the entire time. Spaulding then

shot at Zahden through the glass door. Both times he ran by Davis he casually

fired down at him. Spaulding shot Davis a total of 4-5 times before exiting the

store with the gun in hand.

The fact that Spaulding may not have been seeking to kill when he

entered the convenience store is not dispositive, as wanton murder does not

require premeditation. From the evidence presented at trial, a reasonable jury

could have concluded that Spaulding’s continuous ingestion of spice,

marijuana, methamphetamine and alcohol over the course of days, and his

decision to ride around Louisville high on drugs in Major’s truck, and enter the

Stop-n-Go in his condition, was behavior “so extreme as to manifest extreme

indifference to human life.” A reasonable jury could have also concluded that

Spaulding’s actions after entering the store created “a grave risk of death to

another person and thereby cause[d] the death of another person.” KRS

507.020(l)(b). Because the evidence supported an instruction on wanton

murder, the trial court did not abuse its discretion in so instructing the jury.

B. No Moss Violation Occurred.

Spaulding claims the Commonwealth’s question on cross-examination

asking him to characterize another witness’s testimony as lying was

impermissible and in violation of Moss v. Commonwealth, 949 S.W.2d 579 (Ky.

1997). Spaulding further maintains that the Commonwealth’s question

9
constituted prosecutorial misconduct and damaged his credibility as a witness

so severely as to warrant a new trial.

In Moss, this Court held that an attorney may not ask a witness to

characterize another witness’s testimony as lying. Id. at 583. In the case at

bar, a resident who lived in the apartment complex adjacent to the Stop-n-Go,

Craig Benefield, testified that on the night in question, he and his friend heard

tires screeching, and witnessed from the fourth story window Spaulding pull

into the convenience store parking lot, exit the F-150 truck and enter the

convenience store. Benefield testified that thereafter, he heard gunshots, saw

Spaulding leave the store, and watched Spaulding bang on the door of a nearby

house, then shoot through the door lock with a gun. Spaulding then went to

another house; Benefield testified that he saw him make a distinctive arm

movement, a punching motion, then broke the window. Benefield stated that

he did not know what went through the window. He then observed Spaulding

drive off in the F-150 truck.

The day after Benefield testified, Spaulding testified that after he shot the

lock off the door of one house, he knocked on the window of the next house,

and that’s when the gun slipped out of his hand and fell through the window.

On cross examination, he admitted that he had to have been banging hard on 

the window for the gun to go through it. At that point, the prosecutor

confirmed with Spaulding that he had been in court the day before and had

heard Benefield recall seeing him reach his arm back and throw something

through the window. The prosecutor asked Spaulding if Benefield was lying.

10
Before Spaulding could answer, his attorney asked to approach the bench.

There, defense counsel said that case law was clear that the prosecutor could

not ask Spaulding to characterize another witness’s testimony as lying. The

prosecutor said that was fine, the judge did not rule, the attorneys immediately

returned to their seats and the prosecutor moved on to a new question.

Spaulding now claims the prosecutor’s question violated Moss, amounted

to prosecutorial misconduct, and the trial court failed to cure the misconduct

with an admonition to the jury. See Duncan v. Commonwealth, 322 S.W.3d 81,

87 (Ky. 2010) (holding that “prosecutorial misconduct can assume many forms,

including improper questioning .... If the misconduct is objected to, we will

reverse on that ground if proof of the defendant’s guilt was not such as to 

render the misconduct harmless, and ifthe trial court failed to cure the

misconduct with a sufficient admonition to the jury[]”).

The Commonwealth argues that this claim of error was not preserved, as

Spaulding’s trial counsel requested no relief and was satisfied with the

prosecutor’s agreement not to pursue the question. “Failing to request an

admonition is generally regarded as trial strategy, and therefore waives the

issue on appeal.” Luna v. Commonwealth, 460 S.W.3d 851, 876 n.52 (Ky.

2015) (citations omitted). In Luna, the prosecutor asked a prior-bad-acts

question, defense counsel objected, the prosecutor withdrew the question, and

defense counsel did not request an admonition. As a result, this Court noted

that Luna’s preservation of the issue for appellate review was based on a pretrial objection, not the objection at trial. Id. at 876.

11
Similarly, here, defense counsel was satisfied with the prosecutor moving

on to the next question, and requested no further relief from the trial court, in

the form of a formal ruling on the objection or an admonition to the jury.

Thus, Spaulding’s claimed error is unpreserved and reviewable for palpable

error only under RCr7 10.26, which provides:

A palpable error which affects the substantial rights of a party may

be considered ... by an appellate court on appeal, even though

insufficiently raised or preserved for review, and appropriate relief

may be granted upon a determination that manifest injustice has

resulted from the error.

“Palpable error relief is available under RCr 10.26 only upon a determination

that manifest injustice has resulted from the error. ‘Manifest injustice’ is ‘error

[that] so seriously affect[s] the fairness, integrity, or public reputation of the

proceeding as to be ‘shocking or jurisprudentially intolerable.5” Davidson v.

Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v.

Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).

Spaulding has failed to show that the prosecutor’s single, isolated

question which was immediately objected to, and which Spaulding did not

answer, so seriously affected the fairness of his trial as to be “shocking or

jurisprudentially intolerable.” Spaulding further claims the Commonwealth

compounded the error by stating the following during closing argument:

You have to judge the credibility of each and every witness. Every

individual who takes this stand, you get to decide if you want to

believe them. But you all heard from Craig Benefield. This is

someone who is unbiased. He gains nothing from coming in here

to testify. He witnessed the defendant’s entire actions. He told you

7 Kentucky Rules of Criminal Procedure.

12
he saw the defendant reach back and his arm go like this

[throwing motion].

The prosecutor’s statement during closing argument that Benefield was

an unbiased witness, and the demonstration of a throwing motion, was not

objected to by defense counsel. Moreover, “all of the comments must be viewed

through the lens of the wide latitude counsel is afforded in closing arguments.

They are, after all, just that—arguments. ‘A prosecutor may comment on

tactics, may comment on evidence, and may comment as to the falsity of the

defense position.”’ Dickerson v. Commonwealth, 485 S.W.3d 310, 332 (Ky.

2016) (quoting Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987)).

The prosecutor’s statement contrasting the credibility of the witnesses was

within bounds of the wide latitude afforded to counsel during closing

arguments and certainly did not rise to the level of palpable error. Moreover,

the jury was not convinced that Spaulding tried to dispose of the handgun to

make it unavailable, as it found him not guilty of tampering with physical

evidence and not guilty of first-degree wanton endangerment in relation to

throwing the gun through the window of Allender’s home. So even if any error

had occurred, it was harmless.

C. Spaulding’s Claim ofError Regarding Mitigating Evidence is

Unreviewable.

Spaulding contends the trial court abused its discretion by not allowing

him to present details of his prior convictions during the sentencing phase of

trial, in violation of Kentucky’s Truth-in-Sentencing statute, KRS 542.055.

Specifically, he argues that he should have been permitted to elicit details of

13
his prior convictions during cross examination of Shana Farmer, the paralegal

who testified about the records of his prior convictions. He requested to do so

during the sentencing phase and in his Motion for New Trial or Judgment

Notwithstanding the Verdict.

We review a trial court’s evidentiary rulings for an abuse of discretion.

Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).

Similarly, we review a trial court’s denial of a motion for a new trial under an

abuse of discretion standard. See Anderson v. Commonwealth, 63 S.W.3d 135,

141 (Ky. 2001). An abuse of discretion occurs if the trial court’s ruling is

“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

English, 993 S.W.2d at 945.

KRS 532.055, known as the “Truth-in-Sentencing” statute, “is geared

toward providing the jury with information relevant to arriving at an

appropriate sentence for the particular offender.” Beard v. Commonwealth, 581

S.W.3d 537, 547 (Ky. 2019) (citation omitted). KRS 532.055(2)(a) allows the

Commonwealth to offer evidence relevant to sentencing including the nature of

prior offenses for which a person was convicted.8 In this regard, “evidence of

8 KRS 532.055(2)(a) provides, “Evidence may be offered by the Commonwealth

relevant to sentencing including: 1) Minimum parole eligibility, prior convictions of the

defendant, both felony and misdemeanor; 2) The nature of prior offenses for which he

was convicted; 3) The date ofthe commission, date of sentencing, and date of release

from confinement or supervision from all prior offenses; 4) The maximum expiration of

sentence as determined by the division of probation and parole for all such current

and prior offenses; 5) The defendant’s status if on probation, parole, postincarceration

supervision, conditional discharge, or any other form of legal release[.]”

14
prior convictions is limited to conveying to the jury the elements of the crimes

previously committed.” Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky.

2011). KRS 532.055(2)(b) provides that “[t]he defendant may introduce

evidence in mitigation or in support of leniency” during the sentencing phase.

See also Beard, 581 S.W.3d at 548 (holding that the defendant “may introduce

relevant penalty-phase mitigation testimony concerning his motive for

committing the crimes[]”).

Here, the Commonwealth introduced evidence of Spaulding’s prior

convictions through Farmer, who testified about Spaulding’s 2005 felony

conviction in Indiana for the 2004 offense of dealing in cocaine; his 2008 felony

conviction and sentence in Kentucky for the 2003 offenses of first-degree

possession of a controlled substance (cocaine) and giving an officer a false

name and address; and half a dozen separate Jefferson County misdemeanor

convictions. On cross examination, defense counsel asked Farmer if she was

aware that the trafficking conviction involved approximately 2.7 grams of

cocaine. She stated she did not know.

The Commonwealth objected; at the bench, it argued that under Truthin-Sentencing, the parties could not go into details about the prior convictions.

Defense counsel responded that the Commonwealth could not, but it could.

Neither party provided any legal authority in support of its position. The trial

court sustained the Commonwealth’s objection. Defense counsel did not

proffer the excluded evidence by way of avowal.

15
Defense counsel then clarified with Farmer that Spaulding’s other felony

conviction was for possession of cocaine and the other convictions were

misdemeanors. Defense counsel further emphasized that the cocaine offenses

occurred in 2003 and 2004 - fourteen to fifteen years ago. Spaulding argued in

his Motion for New Trial or Judgment Notwithstanding the Verdict that at a

minimum, he should have been permitted to have Farmer read the indictments

for both felony offenses, to inform the jury that the amounts of cocaine were

small. Specifically, Spaulding was concerned that the trafficking in cocaine

conviction and sentence was highly prejudicial, as it implied a large amount of

cocaine was involved. In his motion, Spaulding provided no legal authority in

support of his position and did not tender evidence of the prior indictments or

details he wished to proffer. The trial court denied his motion.

Before reaching the merits of Spaulding’s argument, we must address

the Commonwealth’s assertion that this claim of error is unreviewable since

Spaulding failed to include the indictments and plea sheets setting forth details

of his prior offenses. Without a complete record, the Commonwealth argues

that this Court cannot assume that the plea sheets or any information about

his prior felony offenses contained relevant mitigating evidence.

“It is incumbent upon Appellant to present the Court with a complete

record for review.” Chesnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008)

(citations omitted). When the record is incomplete, this Court must assume

that the omitted record supports the trial court. Id.

16
The record does not contain the indictments or plea sheets of Spaulding’s

prior felony convictions. At no point during his cross examination of Farmer or

in his motion for post-trial relief did defense counsel seek to introduce copies of

these documents into the record, either by avowal or otherwise. Spaulding’s

criminal history conviction report to which Farmer testified did not contain

details of the convictions other than the date, offense, conviction and sentence.

As such, Farmer was unable to verify whether Spaulding’s trafficking in

cocaine conviction involved 2.7 grams, or another amount.

Even assuming the evidence Spaulding sought to admit falls within the

purview of the Truth-in-Sentencing statute, based on the incomplete record, we

are unable to confirm the evidence contains any basis for mitigation or

leniency. While Spaulding is correct that in Wood v. Commonwealth, the Court

of Appeals held that the defendant may present mitigating evidence relating to 

details of a prior serious offense, in that case the attendant “circumstances [of

the prior offense] were in the record; the testifying witness used the plea

sheets, which included the details of the crime.” 432 S.W.3d 726, 729 (Ky.

App. 2014). In Wood, defense counsel introduced the plea sheets by avowal

following the trial court’s ruling excluding presentation of that evidence.

Therefore, the appellate court had an evidentiary basis on which to determine

that the trial court’s exclusion of that evidence was erroneous. By contrast,

since those details are not in the record here, we are compelled to hold that the

silent record supports the trial court’s decision not to allow Spaulding to

present details of his prior convictions.

17
III. Conclusion.

For the foregoing reasons, we affirm Spaulding’s convictions and

sentence.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Karen Shuff Maurer

Assistant Public Advocate

DEPARTMENT OF PUBLIC ADVOCACY

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

James Daryl Havey

Assistant Attorney General

Jason Bradley Moore

Assistant Attorney General

18