RENDERED: APRIL 2, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1082-MR
ANDREA DAVIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NOS. 15-CR-002745 AND 17-CR-000356
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Following a jury trial, Andrea Davis (“Davis”) was
convicted of possession of a handgun by a convicted felon and being a persistent
felony offender (“PFO”) in the first degree. Davis appeals the Jefferson Circuit
Court’s judgment and order of conviction alleging multiple errors by the trial court.
After careful review of both the record and applicable law, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
On January 27, 2015, detectives in the Louisville Metro Police
Department were investigating a complaint of narcotics activity at Davis’s home.
Detectives elected to conduct a “knock and talk” whereby they spoke with Davis
and explained the nature of the complaint. Upon receiving consent to search the
residence, the detectives inquired as to whether drugs or weapons were located
inside the house. The detectives later testified that Davis told the detectives that a
.40 caliber handgun was in his teenage son’s bedroom under the bed in a box,
while both Davis and his wife testified that it was his wife who told the detectives
where the handgun was located. No narcotics were found during the search.
Thereafter, on October 15, 2015, a Jefferson County grand jury
indicted Davis for possession of a handgun by a convicted felon. Additionally, on
February 8, 2017, a Jefferson County grand jury indicted Davis for being a
persistent felony offender in the first degree.
Beginning on January 9, 2018, the trial court held a three-day trial. At
the trial, Davis testified that he did not know that there was a gun in his home and
that it was his wife who had told the detectives about the gun. Davis’s wife also
testified at trial that Davis was unaware of the gun and that the handgun was
among several items belonging to their son. Davis’s son was unable to testify, as
he had passed away prior to the trial.
-2- Alternatively, the detectives testified at trial that it was Davis who had
told them where the weapon was located and had led them to where the handgun
was ultimately found in the home.
The jury ultimately determined Davis to be guilty of possession of a
handgun by a convicted felon. Penalty proceedings then began, with the trial court
bifurcating the evidence and deliberations regarding Davis’s PFO status from the
proceedings involving the assessment of penalty. During the sentencing phase of
trial, the jury learned of Davis’s lengthy criminal record, which included a
conviction of wanton endangerment in the first degree (police officer) in
November of 1994, and two counts of trafficking in a controlled substance in the
first degree (cocaine) in December of 1994 and February of 1995. Davis was
sentenced to eleven years’ imprisonment for those convictions but received shock
probation in January of 1996.
Davis’s shock probation was revoked in 1998 and he was required to
serve his eleven-year sentence after he was convicted of one count of possession of
a controlled substance in the first degree (cocaine), as well as promoting sex
performance by a minor under 16 years old, promoting sex performance by a
minor under 18 years old, promoting prostitution in the first degree, rape in the
third degree, and sodomy in the third degree.
-3- The jury ultimately convicted Davis of being a PFO in the first
degree. Further, the jury recommended a sentence of five years’ imprisonment on
the charge of possession of a handgun by a convicted felon enhanced to seventeen
years by Davis’s status as a persistent felony offender. The verdicts reflecting the
jury’s decisions were entered on January 23, 2018. In its order upon jury verdict,
the trial court ordered a pre-sentencing investigation, scheduled a sentencing
hearing for March 8, 2018, and placed Davis on the home incarceration program
(“HIP”) in the interim.
Thereafter, Davis failed to report to both the HIP office and to
Probation and Parole to complete his pre-sentencing investigation report. The trial
court issued a bench warrant for Davis on January 24, 2018.
The warrant was not executed until September of 2018, and Davis’s
sentencing hearing was thereafter continued on multiple occasions upon Davis’s
request. Davis subsequently obtained different counsel and his sentencing was
scheduled for April 22, 2019. On April 20, 2019 – prior to any final judgment and
sentencing order entered by the trial court – Davis filed a motion for a new trial
pursuant to Kentucky Rule of Civil Procedure (“CR”) 60.02, CR 60.03, and
Kentucky Rule of Criminal Procedure (“RCr”) 10.06. Davis also included claims
of ineffective assistance of counsel in his motion.
-4- The Commonwealth argued that Davis’s motion was procedurally
improper, as RCr 10.06 required that a motion for a new trial be served no more
than five days after a verdict. Further, the Commonwealth argued that no basis in
law existed for Davis’s argument that his failure to file the motion in a timely
manner should be excused based on the alleged ineffective assistance of counsel.
Finally, the Commonwealth argued that Davis’s motion under CR 60.02 was also
procedurally improper, as CR 60.02 did not authorize relief from a final judgment
which had not yet been rendered. Therefore, the Commonwealth argued that Davis
was seeking relief akin to an interlocutory appeal of the jury’s verdict, and CR
60.02 was limited to post-judgment motions in criminal cases.
At Davis’s sentencing hearing on June 17, 2019, the trial court orally
denied Davis’s motion and sentenced Davis to a total of twelve years’
imprisonment. The trial court entered a written judgment of conviction and
sentence on June 24, 2019.
On June 26, 2019, Davis filed a timely motion for findings of fact and
conclusions of law and a motion to alter, amend, or vacate pursuant to CR 52 and
CR 59.01. Davis also filed a notice of appeal with this Court from the trial court’s
judgment of conviction and sentence on July 17, 2019. The trial court entered an
order on July 26, 2019 denying Davis’s motion pursuant to CR 52 and 59.
-5- Further facts will be developed as required to address the specific
issues presented herein.
ISSUES
On appeal, Davis argues that the trial court erred by giving incorrect
jury instructions regarding constructive possession, failing to grant a Batson1
challenge, denying Davis’s request to present evidence regarding his son’s murder,
bifurcating the sentencing phase of Davis’s trial, giving incorrect jury instructions
regarding the PFO enhancement, failing to give an instruction on PFO status in the
second degree, and permitting inadmissible evidence to be presented during the
sentencing phase. Finally, Davis contends that he received ineffective assistance
of counsel.
ANALYSIS
As a preliminary matter, we note that Davis filed a notice of appeal in
this case prior to the trial court’s resolution and disposition of his CR 52 and 59
motion. Because Davis’s CR 52 and 59 motion was timely, it therefore tolled the
time for filing a notice of appeal. See CR 73.02(1)(e)(i). Therefore, Davis’s notice
of appeal became effective as of the date of the trial court’s decision disposing of
his motion, and this appeal is properly before us. Id.
1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.1712, 90 L. Ed. 2d 69 (1986).
-6- a. Jury Instructions
The Commonwealth pursued a theory of constructive possession
against Davis regarding the charge of possession of a handgun by a convicted
felon, and Davis countered that he had no knowledge of or intent to possess the
gun, either through himself or others. Davis first argues that the jury instructions
regarding possession of a handgun by a convicted felon failed to require the
requisite mens rea, as the definition of “possession” contained in the instructions
did not include the words “knowingly has the power and intention.”
Davis acknowledges, and we find, that this alleged error was not
properly preserved for appellate review by contemporaneous objection pursuant to
RCr 9.22. Thus, our review will proceed under the standard contained in RCr
10.26, which requires a showing of “palpable error which affects the substantial
rights of a party” and which results in “manifest injustice[.]”
As discussed by the Kentucky Supreme Court, “[f]or an error to be
palpable, it must be easily perceptible, plain, obvious and readily noticeable.”
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (internal quotation
marks and citations omitted). The rule’s requirement of manifest injustice requires
“showing [a] probability of a different result or error so fundamental as to threaten
a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207
S.W.3d 1, 3 (Ky. 2006). Stated differently, a palpable error is where “the defect in
-7- the proceeding was shocking or jurisprudentially intolerable.” Id. at 4. Ultimately,
“[m]anifest injustice is found if the error seriously affected the fairness, integrity,
or public reputation of the proceeding.” McGuire v. Commonwealth, 368 S.W.3d
100, 112 (Ky. 2012).
The instructions regarding constructive possession given by the trial
court in this case are as follows:
INSTRUCTION NO. 1: POSSESSION OF A HANDGUN BY A CONVICTED FELON
The defendant, Andrea Davis, has stipulated to the fact that prior to January 27, 2015, he had been convicted of a felony. You will find the defendant, Andrea Davis, guilty of Possession of a Handgun by a Convicted Felon, 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 January 27, 2015, he knowingly had in his possession a firearm;
AND
B. That the firearm was a handgun as defined under instruction No. 2[.]
....
INSTRUCTION NO. 2: DEFINITIONS
A. Knowingly – A person acts knowingly with respect to conduct or to a circumstance when he is aware that his conduct is of that nature or that the circumstance exists.
-8- B. Possession – means to have actual possession or otherwise to exercise actual dominion or control over a tangible object either directly or through others.
The crime with which Davis was charged is described in Kentucky
Revised Statutes (“KRS”) 527.040, which states in applicable part that “[a] person
is guilty of possession of a firearm by a convicted felon when he possesses,
manufactures, or transports a firearm when he has been convicted of a felony[.]”
KRS 500.080(14), which includes the definitions for the penal code, defines
“possession” to mean having “actual physical possession or otherwise to exercise
actual dominion or control over a tangible object[.]”
Davis argues that the jury instructions stated above did not accurately
recite the definition of constructive possession contained in Johnson v.
Commonwealth, 90 S.W.3d 39 (Ky. 2002), as modified (Jan. 13, 2003), overruled
on other grounds by McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010).
Specifically, the Johnson Court stated that possession can be found when a
defendant has actual possession or “knowingly has the power and intention at a
given time to exercise dominion and control of an object, either directly or through
others.” Id. at 42 (internal quotation marks and citation omitted). In failing to
require the exact language of Johnson, Davis argues that the trial court omitted the
mens rea required to support a constructive possession theory.
-9- We first note that the holding in Johnson did not involve jury
instructions. Nor do we need to discuss Davis’s citations to KRS 502.020, as that
statute addresses complicity, with which Davis was not charged. Turning to the
language contained in the jury instructions, “[i]t bears emphasis that jury
instructions are reviewed as a whole to determine whether they adequately inform
the jury of relevant considerations and provide a basis in law for the jury to reach
its decision.” Smith v. Commonwealth, 370 S.W.3d 871, 880 (Ky. 2012) (internal
quotation marks and citations omitted). Here, we believe the instructions properly
informed the jury of the elements necessary to convict Davis of possession of a
handgun by a convicted felon, including the relevant intent requirements. The
instructions provided that Davis could be convicted of the crime only if he
“knowingly had in his possession a . . . handgun[.]” (Emphasis added.) Because
the jury was instructed to find guilt only if Davis “knowingly” possessed the
handgun, the requisite mens rea for constructive possession was sufficiently
addressed.
Moreover, we agree with the Commonwealth that its closing
arguments during the trial sufficiently apprised the jury of the applicable mens rea
element, including the statements that “it’s constructive possession if you know
you have a thing in your home” and “that’s why he was charged, because he
-10- knowingly possessed a handgun[.]” Therefore, we can discern no “plain, obvious
and readily noticeable” error. See Brewer, 206 S.W.3d at 349 (citation omitted).
b. Batson Challenge
Davis next argues that the trial court erred in failing to grant his
Batson challenge. In Batson v. Kentucky, the United States Supreme Court held
that peremptory challenges based solely on a juror’s race “or on the assumption
that black jurors as a group will be unable impartially to consider the State’s case
against a black defendant” violated the Equal Protection Clause. 476 U.S. 79, 89,
106 S. Ct.1712, 1719, 90 L. Ed. 2d 69 (1986). Therefore, under Batson, a three-
step process is required for evaluating such claims:
First, the defendant must make a prima facie showing of racial bias for the peremptory challenge. Second, … the burden shifts to the Commonwealth to articulate “clear and reasonably specific” race-neutral reasons for its use of a peremptory challenge. . . . Finally, the trial court has the duty to evaluate the credibility of the proffered reasons and determine if the defendant has established purposeful discrimination.
Washington v. Commonwealth, 34 S.W.3d 376, 379 (Ky. 2000) (citations omitted).
When engaging in a Batson analysis, “the ultimate burden of showing
unlawful discrimination rests with the challenger.” Rodgers v. Commonwealth,
285 S.W.3d 740, 758 (Ky. 2009) (citation omitted). Moreover, “[g]reat deference
is given to the trial court’s ruling on a Batson motion” and that ruling will not be
disturbed on appeal unless clearly erroneous. Newcomb v. Commonwealth, 410
-11- S.W.3d 63, 81 (Ky. 2013) (citation omitted). When determining whether the trial
court erred in applying Batson, we review the trial court’s decision for an abuse of
discretion. Rodgers, 285 S.W.3d at 757. An abuse of discretion occurs when a
trial court’s determination is “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999) (citations omitted).
In this case, during voir dire, Davis made a Batson challenge when the
Commonwealth struck one juror, an African American man. The
Commonwealth’s explanation for striking the juror was as follows:
When [Davis’s trial counsel] was talking about the penalty and the penalty range, things of that nature, in response to one of his first questions he turned to the juror next to him. He kind of laughed and then he did a motion. I guess they can’t really see me right now, but he sort of did like a close your mouth, lock away, throw away the key and kind of laughed like he wasn’t going to respond or be attentive to that question.
He also wasn’t responsive throughout and that to me gave an indication that he wasn’t going to answer that and so that was the reason for striking the juror.
Davis’s attorney responded that he saw none of the foregoing transpire and the
juror could merely have been speaking to another juror about an unrelated matter.
The trial court stated that it would take the Commonwealth “at their word,” found
that the Commonwealth’s exercise of its peremptory challenge was race-neutral,
and denied Davis’s Batson challenge.
-12- Turning to the three-step test used to evaluate a Batson challenge,
because the Commonwealth in this case offered an explanation for the peremptory
strike, we need not determine whether Davis satisfied the first step of the Batson
test. See Newcomb, 410 S.W.3d at 81-82.
As to the second step, “[t]he issue is the facial validity of the
prosecutor’s explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race[-]neutral.” Mash
v. Commonwealth, 376 S.W.3d 548, 555 (Ky. 2012) (citation omitted). In this
case, the Commonwealth’s explanation concerning the juror’s reaction to certain
questioning and general unresponsiveness met “the facial validity requirement
under Batson because it could apply to a juror of any race.” Newcomb, 410
S.W.3d at 82.
Finally, as to Batson’s third step, “[t]he trial court may accept at face
value the explanation given by the prosecutor depending upon the demeanor and
credibility of the prosecutor.” Commonwealth v. Snodgrass, 831 S.W.2d 176, 179
(Ky. 1992) (citation omitted). Stated another way, the trial court is “entitled to
believe the prosecutor’s explanation based on [its] evaluation of the prosecutor’s
credibility and demeanor.” Harris v. Commonwealth, 134 S.W.3d 603, 612 (Ky.
2004) (citation omitted). “At this step of the analysis, appellate courts should defer
to the trial court absent exceptional circumstances.” Newcomb, 410 S.W.3d at 83
-13- (citation omitted). Indeed, “[b]ecause the trial court’s decision on this point
requires it to assess the credibility and demeanor of the attorneys before it, the trial
court’s ultimate decision on a Batson challenge is like a finding of fact that must be
given great deference by an appellate court.” Commonwealth v. Coker, 241
S.W.3d 305, 308 (Ky. 2007) (citations omitted). Here, the trial court acted within
– and did not abuse – its discretion in finding that the Commonwealth’s race-
neutral explanation for striking the juror was not purposeful discrimination, and
such finding was not clearly erroneous. We find no error.
c. Exclusion of Alternate Perpetrator Evidence
Davis next claims that the trial court improperly excluded evidence
concerning an alternate perpetrator in this case. Specifically, Davis sought to
introduce at trial evidence that his son was killed in an act of gun violence after
Davis was charged in this case, arguing that it was relevant to clarify why his son
could not testify that the gun was not Davis’s but rather his son’s. The trial court
held that the evidence was inappropriate because it was irrelevant and overly
prejudicial, as it would only serve to build sympathy for Davis.
It is well-settled in Kentucky that “[r]ulings upon admissibility of
evidence are within the discretion of the trial judge; such rulings should not be
reversed on appeal in the absence of a clear abuse of discretion.” Simpson v.
Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994).
-14- Here, the trial court determined that the evidence regarding the
circumstances surrounding the death of Davis’s son was irrelevant and prejudicial.
Under Kentucky Rule of Evidence (KRE) 401, relevant evidence is “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Nevertheless, “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of undue
prejudice[.]” KRE 403. As stated by the Kentucky Supreme Court, “[e]vidence
that appeals to the jury’s sympathies . . . or otherwise may cause a jury to base its
decision on something other than the established propositions in the case is
unfairly prejudicial.” Thorpe v. Commonwealth, 295 S.W.3d 458, 462 (Ky. App.
2009) (internal quotation marks and citation omitted). “Whether evidence falls on
the side of probative or prejudicial is a matter reserved to the discretion of a trial
court.” Id.
In this case, we do not believe that the trial court abused its discretion
in ruling that evidence concerning Davis’s son was prejudicial. As previously
discussed, the Commonwealth’s theory was one of constructive possession.
Davis’s knowledge of the gun was the ultimate issue, and the fact that Davis’s son
was later the victim of gun violence did not make Davis’s knowledge of the gun
more or less probable. Rather, it served to “appeal[] to the jury’s sympathies.” Id.
-15- Further, Davis was not precluded from presenting an alternate
perpetrator defense. Davis’s wife testified that the gun belonged to their son and
that Davis did not know it was in the home. The trial court conducted the
appropriate balancing test under KRE 403, and we find no abuse of discretion.
d. Bifurcation of PFO and Truth-in-Sentencing
Davis next argues that the trial court erred when it held the PFO guilt
phase separately from the sentencing phase in contravention of KRS 532.055.
“[S]entencing issues may be raised for the first time on appeal[.]” Cummings v.
Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007). Indeed, because “sentencing is
jurisdictional it cannot be waived by failure to object.” Wellman v.
Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985).
As previously discussed, in this case, after the guilt or innocence
phase concerning the charge of possession of a handgun by a convicted felon, the
trial court conducted two phases of sentencing – the first phase, in which the jury
was instructed to determine whether Davis was a PFO – and then a second phase in
which the jury was instructed to assign a penalty. Although they were not
conducted simultaneously, the penalty phase was held within minutes of the
conclusion of the PFO hearing.
KRS 532.055 addresses “sentencing by jury in felony cases[,]” and
subsection three of the statute states that “[a]ll hearings held pursuant to this
-16- section shall be combined with any hearing provided for by KRS 532.080[,]” or the
PFO statute. Here, the Commonwealth concedes the PFO guilt phase should have
been combined with the penalty phase but argues that any error was harmless
under RCr 9.24.
In Commonwealth v. Reneer, 734 S.W.2d 794 (Ky. 1987), the
Kentucky Supreme Court held that the combined format described in KRS 532.055
was not unconstitutional “because the same evidence that is pertinent toward fixing
the penalty is also pertinent for consideration in the enhancement of [the]
sentence[.]” Id. at 798. However, the dissenting justices in Reneer discussed at
length their concern regarding the possible prejudice that defendants may face
from the combined hearing format described in KRS 532.055. Id. at 803-04
(Leibson, J., dissenting).2
Here, we agree with the Commonwealth that any error committed by
the trial court regarding KRS 532.055 was harmless under RCr 9.24. Indeed, as
our courts have previously suggested by stating that combined hearings create
“apparent difficulties” and “much confusion,” it would not appear that the error
“affect[ed] the substantial rights” of Davis. Lemon v. Commonwealth, 760 S.W.2d
94, 95 (Ky. App. 1988).
2 Lambert, J., joined in the dissenting opinion.
-17- e. PFO Jury Instructions
Davis next argues that the PFO in the first degree jury instructions
allowed for a non-unanimous verdict because the instructions did not require that
the jury be unanimous as to which prior convictions upon which they were basing
their verdict of guilt. Davis also claims that the jury could possibly have premised
their finding of guilt as to his PFO status upon convictions that were invalid
because they were too old. Finally, Davis argues that the jury should have been
instructed on PFO status in the second degree. These alleged errors were not
preserved for appellate review, and this Court will again engage in a palpable error
review.
The applicable jury instruction stated as follows:
INSTRUCTION NO. 1: PERSISTENT FELONY OFFENDER FIRST DEGREE
You will find the defendant, Andrea Davis, guilty of Persistent Felony Offender First Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That prior to January 27, 2015, the Defendant was convicted of at least two of the following:
- Promoting a Sexual Performance by a Minor under 16, Promoting a Sexual Performance by a Minor under 18, Promoting Prostitution in the First Degree, Rape in the Third Degree, and Sodomy in the Third Degree by final Judgment of the Jefferson Circuit Court on the 23rd day of November 1998 and/or,
-18- - The Defendant was convicted of Possession of a Controlled Substance First Degree by final Judgment of the Jefferson Circuit Court on the 17th day of September 1998 and/or,
- The Defendant was convicted of Trafficking in a Controlled Substance First Degree (2 counts), Wanton Endangerment First Degree, Trafficking in Marijuana over 8 oz. while in possession of a firearm, and Possession of drug Paraphernalia While In Possession of a Firearm, all felonies, by final Judgment of the Jefferson Circuit Court on the 2nd day of October 1995
B. That he was eighteen years of age or older when he committed all of the offenses of which you believe he was so convicted;
[AND]
C. That pursuant to those convictions, he was sentenced to a term of imprisonment of one year or more for each conviction and completed the service of the sentence no more than five years before January 27, 2015
OR
That he was discharged from parole or probation from the sentence imposed on him pursuant to at least one such prior conviction no more than five years before January 27, 2015
That he was on probation, parole, conditional discharge, conditional release, or furlough or appeal bond, from at least one such prior conviction at the time he committed
-19- the offense of which you have found him guilty in this case;
[D.] That he is now twenty-one years of age or older.
In Springfield v. Commonwealth, the defendant made an argument
very similar to the argument made by Davis – specifically, that the jury had a right
to disbelieve some – but not all – of the Commonwealth’s evidence concerning the
defendant being a PFO. The Kentucky Supreme Court stated, however, that:
[w]hen it comes to the presentation of proof for PFO status, the jury must take the Commonwealth’s proof all- or-nothing in the absence of some evidence bringing one or both prior convictions into dispute. That is to say, the jury cannot accept part as true and question the rest unless there is an evidentiary basis for disregarding a prior conviction.
410 S.W.3d 589, 597 (Ky. 2013) (emphasis added) (internal quotation marks and
citation omitted).
Here, Davis provided no evidentiary basis for the jury to question the
Commonwealth’s evidence regarding Davis’s prior convictions, and such evidence
went unchallenged at trial. Thus, because the jury must have accepted all three
convictions as true to reach a guilty verdict, the jury must have agreed on which
offenses served as the basis of the PFO conviction. Because the jury was not at
liberty to believe some but not all of the Commonwealth’s evidence regarding
Davis’s prior convictions, and such evidence was not challenged at trial, there was
-20- no basis for the giving of an instruction on PFO in the second degree. Further, as
in Springfield, “the PFO instruction given to the jury was actually in [Davis’s]
favor, given that by instructing the jury on first-degree PFO only, the jury would
have to [acquit] him of PFO altogether if it believed that he had only one prior
conviction.” Id. We see no error, palpable or otherwise.
f. Alleged Inadmissible Evidence
Davis next argues that the Commonwealth offered inadmissible
evidence regarding certain alleged aliases used by Davis and obtained from the
National Crime Information Center (“NCIC”) database and CourtNet. Davis
preserved this claim by contemporaneous objection during the trial. The standard
of review for admission of evidence is whether the trial court abused its discretion.
English, 993 S.W.2d at 945.
Davis bolsters his claim of error by discussing the case Finnell v.
Commonwealth, 295 S.W.3d 829 (Ky. 2009). We find the Finnell case to be
distinguishable from the case sub judice. The Finnell Court held that the use of
CourtNet as the sole means by which to introduce evidence of a defendant’s prior
convictions was reversible error. Id. at 835. Rather, “the evidence of prior
convictions must come from the official court record, or certified copies thereof.”
Id.
-21- In this case, the Commonwealth did introduce certified copies of
Davis’s prior convictions. Here, while the information gleaned from CourtNet and
NCIC was utilized to discuss Davis’s possible aliases, we do not believe that the
inclusion of this information rose to the level of an abuse of discretion, as the jury
received information concerning Davis’s prior convictions “based on properly
authenticated records of prior convictions.” Id. We affirm as to this issue.
g. Ineffective Assistance of Counsel
Davis last argues his entitlement to numerous claims of ineffective
assistance of counsel. We agree with the Commonwealth that such claims are
premature. As discussed by the Kentucky Supreme Court, “claims of ineffective
assistance of counsel are best suited to collateral attack proceedings, after the direct
appeal is over, and in the trial court where a proper record can be made.”
Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998). Moreover, “[a]s a
general rule, a claim of ineffective assistance of counsel will not be reviewed on
direct appeal from the trial court’s judgment, because there is usually no record or
trial court ruling on which such a claim can be properly considered.” Id. An
appellate court may review an ineffective assistance of counsel claim on direct
appeal only if there is a trial record or an evidentiary hearing is held on a motion
for a new trial and the trial court rules on the issue. Id. at 872-73.
-22- Such is not the case here. Nevertheless, Davis is not prohibited from
raising his claims in a properly presented RCr 11.42 motion, for while such claims
may not be considered in this direct appeal, “this does not preclude their
consideration in a proper collateral attack proceeding.” Id. at 872 (citation
omitted). Thus, we decline to review Davis’s ineffective assistance of counsel
claims as procedurally improper at this time.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
F. Todd Lewis Daniel Cameron Louisville, Kentucky Attorney General of Kentucky
Aspen Roberts Assistant Attorney General Frankfort, Kentucky
-23-