RENDERED: MARCH 26, 2020 NOT TO BE PUBLISHED
2018-SC-000219-MR
CURTIS SNELL APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HON. GREGORY M. BARTLETT, JUDGE NO. 16-CR-00665
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Curtis Snell (“Snell”), was convicted by the Kenton Circuit Court of assault
in the first-degree, and four counts of wanton endangerment in the first-degree.
Snell was also found guilty of being a persistent felony offender in the first-
degree. The jury recommended Snell serve 50 years for the assault charge and
10 years for each of the wanton endangerment charges, to run consecutively
for a total of 90 years. Ultimately, the trial court reduced the sentence to the
statutory maximum of 70 years. For the reasons set forth herein, we affirm the
court below.
A. BACKGROUND
Linsey Kidwell (“Kidwell”) and her boyfriend Lamar Mills (“Mills”) had
arrived at Muggbees bar in Florence, Kentucky around 11:00 P.M. on May 18,
2016. Curtis Snell and his girlfriend Jennifer Konkright (“Konkright”) went to
Muggbees in the early morning hours of May 19, 2016. At some point, Kidwell
1 and Mills encountered Konkright and Snell. They were all familiar with each
other because Konkright and Snell had visited Kidwell’s apartment once before,
which resulted in Snell and Konkright being asked to leave by Kidwell.
Near the end of the evening at Muggbees, Konkright and Kidwell got into
an altercation. Snell and other individuals also got involved. Snell testified
that he was attempting to intervene, when he was attacked by four members of
a motorcycle gang known as “Bad to the Bone.” The individuals involved from
the motorcycle gang included Mills and his fellow members Robert Smith,
Willie Washington and Jonathan Griffin. Bouncers broke up the fight and all
parties were thrown out of the establishment.
Kidwell claimed that Snell then approached her in the parking lot. She
testified that Snell told her he was going to shoot them and that he knew where
she lived. Konkright and Snell then got into their vehicle and left. Kidwell and
Mills then left in another vehicle and were followed by Mills’ fellow motorcycle
gang members in a separate vehicle. Throughout the night, Konkright sent
multiple angry and threatening messages to Kidwell via Facebook Messenger.
Because of Snell’s earlier threats, Kidwell, Mills, and the other vehicle
proceeded to Kidwell’s apartment in Park Hills. Kidwell’s son and mother were
at her apartment and Kidwell wanted to make sure they were ok. Kidwell and
Mills parked at the foot of the hill near Kidwell’s apartment. Kidwell and Mills
eventually saw Konkright’s vehicle, with Snell in the passenger seat, turn onto
Kidwell’s street. Kidwell turned her vehicle around and followed Konkright up
the hill. Konkright’s vehicle began to turn around once it reached Kidwell’s
apartment. Seeing that Konkright was turning around, Kidwell and the
motorcycle gang turned their vehicles around in front of Konkright’s vehicle 2 and then turned right onto Dixie Highway. Konkright’s vehicle followed as
Kidwell was attempting to locate a police officer who often sat in a nearby
parking lot late at night. On this particular night the officer was not there, and
while Kidwell drove on Dixie Highway Konkright’s vehicle pulled alongside
Kidwell’s.
Within seconds, Kidwell and Mills saw the barrel of a gun emerge from
the passenger side window of Konkright’s vehicle. Shots were then fired at
Kidwell’s vehicle and at the motorcycle gang member’s vehicle. Kidwell testified
she saw a flash, heard glass break, and felt her car shift. She also testified
that she felt her insides shift, and soon after realized she had been shot.
Kidwell was hit in the thigh and abdomen and stopped her vehicle in the
middle of the road. The vehicle with the motorcycle gang members sped off and
struck a curb further down the block, but no one in that vehicle was injured.
Police officers responded to the scene and Kidwell was taken to the
hospital. Officers then interviewed the motorcycle gang members. Not all of
them were able to identify the shooter but several of them indicated it was the
person with whom they had gotten into a fight earlier at Muggbees.
Park Hills officer Lieutenant Richard Webster (Lt. Webster) investigated
the shooting and interviewed Kidwell and Mills. Both Kidwell and Mills were
unsure of Snell’s full name, but they did know him as “Gucci Black,” “Black,”
or “Curtis” and that he was from Mississippi. Kidwell claimed she was “one
million percent” sure that it was the same person from the bar.
Lt. Webster was able to locate the person whom he beEeved to be the
defendant through Facebook and confirm that he was involved in the bar
altercation through surveillance footage from Muggbees bar. Webster showed 3 Kidwell Snell’s mugshot pulled from the Kenton County jail’s website, and she
confirmed that was the person who shot her. Separately, Webster showed the
same photo to Mills who also confirmed that was the individual from the fight
that evening and who shot Kidwell.
Konkright was then contacted through Facebook by a police detective
asking her to help in apprehending and prosecuting Snell. After receiving the
message Konkright turned herself in and assisted police in locating and
apprehending Snell. Snell was subsequently located in Cincinnati, Ohio and
arrested.
Konkright testified against Snell at trial in exchange for a lesser
sentence. Konright testified that after they left Mugbees she drove Snell to
Covington, where he changed clothes and obtained a firearm. She further
testified that Snell came up with an alibi to deny involvement in the shooting,
and that she and Snell discussed taking a trip to Mississippi following the
shooting. According to Konkright’s testimony, the plan was for her to take
responsibility for the shooting and claim that she had dropped Snell off before
the shooting. The Commonwealth introduced evidence of jail phone calls and
letters, believed to be from Snell, which discussed this plan and the case
against Snell.
After a three day trial, Snell was convicted of all charges. This appeal
followed.
B. MISSING EVIDENCE INSTRUCTION WOT WARRANTED
On August 22, 2016, defense counsel filed a “Motion for Discovery and
To Review Bond.” Specifically, defense counsel requested, “(7) ... All evidence
known to the Commonwealth, or which may become known, or which through 4 the exercise of due diligence may be learned from investigating officers[.]” The
Commonwealth filed an initial response, four days later, on August 26, 2016.
The August 26th discovery response the Commonwealth provided to Snell did
not contain a recording of a 911 call or the dispatch log.
On June 2, 2017, in preparation for trial, defense counsel made a
request for the audio from the 911 call and dispatch log, noting they were not
provided by the Commonwealth in the earlier discovery. On June 14, 2017,
thirteen months after the shooting, the Commonwealth provided, via email, the
dispatch log from Kenton County emergency management. This email
indicated that the Commonwealth requested the audio and call log and they
were informed that the 911 recording was no longer available as it was over a
year old. On June 30, 2017, the defense moved to dismiss the indictment
because the Commonwealth failed to timely turn over the now destroyed 911
audio. The trial court denied the motion to dismiss and reserved the right to
rule on the missing evidence instruction at trial. Snell now argues that the
trial court erred in failing to give a missing evidence instruction regarding the
911 recording.
A missing evidence instruction is only required when failure to collect or
preserve evidence was intentional and the nature of the evidence was
apparent.1 This Court shall review a trial court’s denial of a missing evidence
instruction for abuse of discretion.2
1 Madden v. Commonwealth, 582 S.W.3d 54, 69 (Ky. 2019). 2 Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). 5 This Court has held that the standard for a missing evidence instruction
is the following:
First, the purpose of a “missing evidence” instruction is to cure any Due Process violation attributable to the loss or destruction of exculpatory evidence by a less onerous remedy than dismissal or the suppression of relevant evidence. Thus, there is no basis for an instruction permitting the juiy to infer that missing evidence, if available, would be adverse to the defendant and favorable to the Commonwealth. See South Carolina v. Katzenbach, 383 U.S. 301, 323-24, (1966) ... Second, the Due Process Clause is implicated only when the failure to preserve or collect the missing evidence was intentional and the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed. None of the above precludes a defendant from exploring, commenting on, or arguing inferences from the Commonwealth's failure to collect or preserve any evidence. It just means that absent some degree of “bad faith,” the defendant is not entitled to an instruction that the jury may draw an adverse inference from that failure.3
Snell asserts that exculpatory information would be found within the 911
recordings. He argues that any evidence identifying the shooter on the 911 call
would be material. Kidwell and Mills testified that immediately after the
shooting they called 911. The call log notes that the caller knew the shooter.
Snell maintains that the call log contained the names of the victims and
Konkright’s name, however the notes did not identify Snell, instead only that
the victims knew the shooter. Snell claims that the identification of Konkright
but not him specifically would have been exculpatory as his main defense was
that he was not the shooter.
3 Estep v.Commonwealth, 64 S.W.3d 805, 810 (Ky. 2002). 6 A missing evidence instruction is required where: 1) the evidence is
obviously exculpatory; 2) the exculpatory nature was apparent before it was
destroyed; and 3) the destruction was intentional.4 In the present case there is
no evidence to support that the 911 recording was exculpatory, or that the
destruction was intentional. The mere fact that the 911 call stated that the
victim knew who the shooter was without stating specifically who they were
does not establish the call was exculpatory. From the time that Kidwell was
shot and throughout the trial she maintained that she knew the individual who
shot her, that individual was the same individual from Muggbees earlier that
night, and that she knew him as either “Curtis” or “Gucci Black.” Kidwell
informed Lt. Webster of the information she knew about Snell while in the
hospital, and subsequently identified him.
Snell fails to show that the destruction was intentional as the recording
was destroyed within normal practices of Kenton County Emergency
Management. While Snell asserts that the trial court erred in determining that
the Commonwealth did not act in bad faith, he offers no evidence that the
Commonwealth intentionally destroyed the 911 recording. Snell asserts that
the prosecutor ignored the discovery request and that should be sufficient
evidence of misconduct. However, this Court has held that an “attempt to
distill bad faith...is utterly speculative and, as we have observed, jury
instructions may not reflect merely speculative theories.”5
4 Id. 5 McPherson v. Commonwealth, 360 S.W.3d 207, 218 (Ky. 2012). 7 When the Commonwealth fails to preserve evidence, the defendant must
prove bad faith. This Court has held that “negligence simply does not arise to
the level of bad faith....”6 Therefore, we hold that there is no due process
violation on the mere failure of the Commonwealth to timely preserve the 911
recording.
Furthermore, Snell contends that even if this Court determines that the
recording was not exculpatory we should find that the recording would have
provided impeachment material. Snell argues that the 911 call was relevant to
impeach the witnesses because it would confirm that one of Kidwell or Mills
was lying about calling 911. Snell believes that either Kidwell or Mills was
lying about calling 911. Both Kidwell and Mills testified that immediately after
the shooting Kidwell stopped the vehicle and called the police. Both Kidwell
and Mills testified that they, themselves, were the individual who called 911
and that they stated they knew who the individual was who shot Kidwell.
The absence of a missing evidence instruction does not preclude the
defendant from “exploring, commenting on, or arguing inferences from the
Commonwealth’s failure to collect or preserve any evidence. It just means that
absent some degree of had faith,’ the defendant is not entitled to an instruction
that the jury may draw an adverse inference from that failure.”7 In the present
case, defense counsel cross-examined Kidwell regarding any 911 call
discrepancy, however he chose to not cross-examine Mills about the 911 call.
Snell did call Gordon Ramler, of Kenton County emergency communication
6 Collins v. Commonwealth, 951 S.W.2d 569, 573 (Ky. 1997). 7 Estep, 64 S.W.3d at 810. 8 center, who testified that the call log contained incident notes including: 1)
“girlfriend shot”; 2) “red Kia”; 3) “victim knows them”; and 4) “female shot in
leg.” During closing arguments defense counsel made multiple mentions to the
jury that they believed Mills and/or Kidwell testified incorrectly to information
regarding the 911 call. The jury was able to weigh the credibiEty of the
evidence as a whole and found SneU guilty. We hold the trial court did not err
in declining to include a missing evidence instruction.
C. TRIAL COURT DID NOT ERR IN OVERULING MOTION FOR DIRECTED VERDICT
Snell’s second argument is that the trial court erred in not granting a
directed verdict on the first-degree assault charge. Snell argues that the
Commonwealth’s evidence was insufficient to prove that Kidwell suffered a
serious physical injury. At the close of the Commonwealth’s evidence, defense
counsel moved for a directed verdict, and the trial court denied Snell’s motion.
Defense counsel renewed its motion for a directed verdict at the close of all the
evidence, which was again overruled by the trial court. Therefore, the issue is
preserved for review.
In Commonwealth v. Benham, this Court set the standard for granting or
denying directed verdict motions:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find 9 guilt, only then the defendant is entitled to a directed verdict of acquittal.8
We therefore review Snell’s claim based on the evidence presented to determine
if it is sufficient to persuade a reasonable juror to believe beyond a reasonable
doubt that the defendant is guilty of an assault which results in serious physical
injury.
Pursuant to Kentucky Revised Statute (“KRS”) 508.010, assault in the
first-degree requires “serious physical injury” caused either intentionally or
wantonly. KRS 500.080(15) defines “serious physical injury” as “physical injury
which creates a substantial risk of death, or which causes serious and prolonged
disfigurement, prolonged impairment of health, or prolonged loss of impairment
of the function of any bodily organ.”9
Dr. Betty Tseui was the trauma surgeon who treated Kidwell the night she
was shot. In Dr. Tseui’s deposition testimony, which was played at trial, she
noted that the initial surgery revealed a total of six seperate injuries to Kidwell’s
abdomen, small bowel, and colon. Dr. Tseui further testified that without the
surgery Kidwell would have suffered stool leakage from her colon into her
abdomen, and it would have created a substantial risk of death.
Snell counters that Kidwell’s injuries were not a “serious physical injury”
as Kidwell was treated at the hospital for her gunshot wounds and bowel
damage, but never faced “substantial risk of death.” Snell cites to multiple cases
where the Commonwealth failed to establish “serious physical injury.” The first
case presented a victim who sustained an extensive facial laceration along the
8 816 S.W.2d 186, 187 (Ky. 1991). 9 KRS 500.080(15). 10 jaw line caused by a straight razor.10 However, that particular victim had the
laceration sutured and he was sent home the same day, there was no subsequent
medical treatment required.11 In the second case Snell cites a victim that was
only shot through the hand.12 The trial record showed that no medical experts
testified and only a small scar was visible when the victim testified.13 The
emergency room records in that case indicated no range of motion limitations or
loss of strength, and the victim testified that the injury only required a follow-up
to remove the stitches.14
It is uncontested that Kidwell’s gunshot wound in her abdomen perforated
her bowel and that her wounds required surgery. Approximately one month after
the initial surgery Kidwell returned to the hospital due to an obstruction in her
bowel, which required her to be hospitalized for a week. Kidwell additionally
required another five days in the hospital stemming from further obstruction
complications.
In Brown v. Commonwealth, this Court held that a stab wound resulting
in a collapsed lung and pneumothorax was sufficient to establish “serious
physical injury.”15 This Court found that the trial testimony established
sufficient evidence that if the victim’s wounds were left untreated they would be
potentially fatal.16 In the present case, Dr. Tsuei testified that surgery was
10 Anderson v. Commonwealth, 352 S.W.3d 577, 582 (Ky. 2011). 11 Id. 12 McDaniel v. Commonwealth, 415 S.W.3d 643, 659 (Ky. 2013). 13 Id. 14 Id. 15 553 S.W.3d 826 (Ky. 2018). 16 Id. at 831. 11 required to repair the damage; that if the bullet hole in her colon were not
repaired it would result in leakage of stool into Kidwell’s abdomen; that if
untreated a person would become extremely sick; and, these types of injuries
could be fatal if left untreated.
We hold that it was not “clearly unreasonable” for the jury to find that
multiple gunshot wounds, specifically the shot causing injuries in the abdomen,
were a “serious physical injuiy.”
D. INSTRUCTION ON LESSER INCLUDED OFFENSE WOT WARRANTED
At trial the defense counsel argued for a second-degree assault instruction
on the theory that the jury could not find the evidence sufficient to prove serious
physical injury but could have found physical injuiy. The trial court denied the
defense counsel’s tendered instruction. Snell now argues that the instruction
for the lesser included offense was warranted because the Commonwealth failed
to prove “serious physical injury.”
A lesser-included offense instruction is required “if, only if, considering the
totality of the evidence, the jury might have a reasonable doubt as to the
defendant’s guilt of the greater offense, and yet believe beyond a reasonable
doubt that he is guilty of the lesser offense.”17 We therefore must determine
whether a reasonable juror could acquit of the greater charge but convict on the
lesser.18 This Court shall review the trial court’s denial of a jury instruction as
to the lesser-included offense for abuse of discretion.19
17 Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). 18 Thomas v. Commonwealth, 170 S.W.3d 343 (Ky. 2005). 19 Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). 12 Snell attempts to argue that as in Swan v. Commonwealth, the evidence
here “fell somewhere in the gray area between mere physical injury and serious
physical injury.” 20 However, the Swan court involved two victims who suffered
gun shots to either the leg, thigh, or ankle that mainly resulted in scarring and
some minor nerve damage.21 Neither victim was required to stay more than a
day in the hospital due to their underlying gun shot wounds.22 In Swan, this
Court held the Commonwealth’s evidence was far from persuasive that the
victims suffered serious physical injury and the court erred by not providing the
lesser included offense instruction.23
Snell relies on the argument that not all gunshot wounds cause serious
physical injuries.24 Snell argues that the Luttrell court found the trial court erred
in not giving a second-degree instruction because Luttrell intended to injure and
not kill the victim.25 Yet, the facts of Luttrell are distinguishable as Luttrell shot
a police officer in the chest with “bird shot” and the wounds were only
superficial.26
Here, Kidwell and Dr. Tsuei both testified that the single gunshot to
Kidwell’s abdomen had punctured her colon and caused multiple internal
injuries. Dr. Tsuei testified that leakage from the colon into the body could cause
serious complication, extreme sickness, and death if not treated. Kidwell
20 384 S.W.3d 77, 101 (Ky. 2012). 21 Id. at 99. 22 Id. 23 Id.
24 Luttrell v. Commonwealth, 554 S.W.2d 75, 79 (Ky. 1977). 25 Id. at 77. 26 Id. 13 required surgery to repair her colon and she suffered multiple complications
from bowel obstructions because of the gunshot. The injuries suffered by Kidwell
were more serious than those within a “gray area.” The jury heard testimony
from Kidwell and recorded deposition testimony from Dr. Tsuei about the
seriousness of Kidwell’s injuries. Certainly a reasonable juror could have found
the evidence sufficient to determine the gun shot wounds resulted in serious
physical injury. We hold that an instruction on the lesser included offense was
not warranted.
E. PHOTO IDENTIFICATION WAS NOT UNDULY SUGGESTIVE
Snell argues that the single mugshot photo used by Lt. Webster for Kidwell
and Mills to identify Snell was unduly suggestive. Defense counsel filed a motion
to suppress and it was denied by the trial court.
We review a trial judge’s ruling on admissibility of evidence for an abuse
of discretion.27 The trial judge abuses their discretion if the decision was
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”28
The United States Supreme Court has established that there is a two-part
analysis used when determining if the due process clause may have been violated
by impermissibly suggestive evidence.29 This two-pronged analysis has been
adopted in Kentucky, and the first prong requires this Court to “determine
whether the confrontation procedures employed by the police were
‘suggestive.’”30 Then if we determine that the procedure was suggestive, the
27 Commonwealth v. Parker, 409 S.W.3d 350, 352 (Ky. 2013). 28 King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004). 29 Neil v. Biggers, 409 U.S. 188 (1972). 30 Wilson v. Commonwealth, 695 S.W.2d 854, 857 (Ky. 1985). 14 identification may still be admissible “if under the totality of the circumstances
the identification was reliable even though the [identification] procedure was
suggestive.”31
In determining the totality of circumstances Neil laid out a five-factor test.
The five factors, as applied by King, include: “1) the opportunity of the witness
to view the criminal at the time of the crime; 2) the witness’ degree of attention;
3) the accuracy of his prior description of the criminal; 4) the level of certainty
demonstrated at the confrontation; and 5) the time between the crime and the
confrontation.”32
This Court has clearly established that the identification of a suspect using
a single mug shot photograph without any other photos is unduly suggestive.33
Here, it is undisputed that Lt. Webster showed only a single mug shot photo of
Snell to Kidwell and separately to Mills. However, this was not an identification
set up through a confrontation procedure, this was the identification of an
individual the victim knew, and knew specifically by first name and nickname.
Kidwell knew that the individual who shot her was a person she was familiar
with called “Curtis” or “Gucci Black” who was from Mississippi. Kidwell and
Mills both encountered Snell earlier that evening at Muggbees bar, and in the
parking lot. Kidwell and Mills informed Webster of this fact, and Webster
subsequently used a former mug shot to confirm Snell’s identity to assist in the
31 Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999) (quoting Stewart v. Duckworth, 93 F.3d 262, 265 (7th Cir. 1996), and Neil v. Biggers, 409 U.S. 188, 199 (1972)). 32 142 S.W.3d at 649. 33 Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky. 1978) (citing Manson v. Brathwaite, 432 U.S. 98 (1977)). 15 investigation. This Court has held that it is not improper to use a single photo
to confirm a witness’s previous identification: “there’s certainly nothing wrong
with a witness being allowed to reaffirm the accuracy of her previous
identification as long as that previous identification has not been impermissibly
suggestive or tainted.”34
Nevertheless, we briefly review whether Kidwell’s and Mills’ identification
of Snell was reliable even though it was suggestive.35 Kidwell testified that she
observed Konkright and Snell get into Konkright’s vehicle in Muggbees parking
lot. Kidwell testified she witnessed Snell in the passenger seat as Konkright’s
vehicle passed her heading towards Kidwell’s apartment. Kidwell and Mills both
testified that the intersection they were driving through when the shooting
occurred was well-lit, and they had no issues identifying Konkright and Snell
inside the vehicle. Kidwell testified she saw Snell’s face as he was shooting at
her vehicle.
Second, in assessing the witness’s degree of attention we are convinced
that Kidwell was specifically looking for Konkright’s vehicle. Kidwell testified she
was sitting at a stop sign close to her apartment when she witnessed Konkright’s
vehicle turn onto her street with Snell in the passenger seat.
Third, we assess the accuracy of Kidwell’s prior description of Snell.
Kidwell testified she knew the shooter from a previous interaction at her
apartment that also involved Konkright. Kidwell stated that the individual who
shot her was the same individual from the earlier altercation at Muggbees.
34 Barnes v. Commonwealth, 410 S.W.3d 584, 587-88 (Ky. 2013). 35 Moore, 569 S.W.2d at 153. 16 Kidwell also stated that his name was “Curtis,” went by “Gucci Black,” and he
was originally from Mississippi. The accuracy of Kidwell’s description is
unquestionable.
Fourth, the level of certainty shown by Kidwell was high. She testified that
she was certain Snell was the shooter, she maintained from the moment the 911
call was placed until she identified Snell in the courtroom that she knew the
individual who shot her.
The final factor requires examining the length of time between the crime
and the identification. Here, the shooting occurred around 2:55 A.M. on May
19th, and Lt. Webster interviewed both Kidwell and Mills following the shooting
where they identified Snell. Webster returned to the hospital on May 20th and
showed Kidwell the mug shot photograph of the man she previously
acknowledged was the shooter, which she subsequently confirmed as the
individual from the bar and the person who shot her.
Under the five-factor test as applied through King, we find the
identification of Snell to have been reliable. We agree that a single photo
identification can be unduly suggestive, however we hold that in the present case
the trial court properly denied the motion to suppress.
F. SENTENCING PHASE ERRORS DO NOT MEET PALPABLE ERROR STANDARD
Snell claims that he was substantially prejudiced because the
Commonwealth presented incorrect or false testimony during the sentencing
phase regarding parole eligibility and the application of “good time credits.” Snell
acknowledges the errors claimed are not preserved for review, therefore he
requests we review for palpable error.
17 Pursuant to Kentucky Rule of Criminal Procedure (RCr) 10.26 we proceed
to review unpreserved errors on direct appeal for palpable error. RCr 10.26
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.
“The palpable error rule mandates reversal when ‘manifest injustice has resulted
from the error.”36 Snell now requests palpable error review, claiming the
inaccurate testimony affected the fairness and integrity of the sentencing phase
rendering it “shocking and jurisprudentially intolerable.”37
During the sentencing phase of the trial, the Commonwealth elicited
testimony from Probation and Parole Officer Taleah Jefferson. Officer Jefferson
testified that first-degree wanton endangerment, a class D felony, has a penalty-
range of one to five years. She also testified that first-degree assault, a class B
felony, carries a penalty range of 10 to 20 years. She testified that under parole
eligibility guidelines Snell would be eligible for parole after serving 15% of his
sentence for the wanton endangerment charges, and after serving 85% of the
assault charge. She did not make clear that parole eligibility would be 15% only
if the aggregate sentence for Snell’s entire conviction were one to five years.
Officer Jefferson’s testimony was inaccurate because Snell’s aggregate
sentence was more than five years. Due to persistent felony offender
36 Murphy v. Commonwealth, 509 S.W.3d 34, 42 (Ky. 2017) (quoting Elery v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012)). 37 Martin v. Commonwealth, 2Q7 S.W.3d 1, 4 (Ky. 2006). 18 enhancement, Snell received a 10-year sentence on each of the four wanton
endangerment counts. Therefore, Snell would be required to serve 20% of his
sentence before being eligible for parole. Officer Jefferson’s testimony also
resulted in the jury receiving misinformation as to “good time credits” that would
be applied to Snell’s sentence. Officer Jefferson initially testified that Snell would
automatically receive seven days of meritorious good time credit per month.
However, a few moments later she had to clarify that Snell would receive good
time credit if he behaved. Officer Jefferson’s testimony was factually incorrect
as meritorious good time credits are only applied if Snell performed exceptional
meritorious duties of importance in connection with institutional operations and
programs.38 Pursuant to Kentucky Corrections Policies and Procedures 15.3,
inmates are entitled to be considered for meritorious good time credits and
granted at the discretion of the warden. This distinction is key, as there is no
automatic award of good time credits absent bad behavior.
Officer Jefferson’s testimony regarding parole eligibility and meritorious
good time credits was incorrect. “The use of incorrect, or false, testimony by the
prosecution is a violation of due process when the testimony is material.”39
Regardless of good faith or bad faith on the part of the prosecution it is a violation
of due process.40 When the prosecution knows or should have known that
testimony is false, we must examine and determine whether “there is any
reasonable likelihood that the false testimony could have affected the judgment
38 KRS 197.045. 39 Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). 40 Brady v. Maryland, 373 U.S. 83, 87 (1963). 19 of the jury.”41 The Commonwealth knew or should have known that the KRS
439.340(3)(a) limits 15% parole eligibility to Class D felonies with an aggregate
sentence of five years or less. Additionally, the Commonwealth knew or should
have known that meritorious good time credits are not automatically applied as
was testified to by Jefferson.
The Commonwealth asked the jury to impose a fifty year sentence on the
assault conviction and ten years on each of the other four convictions, leaving to
the jury to decide whether the ten year sentences should run concurrently or
consecutively. The Commonwealth made it clear in its closing argument that it
was concerned that Snell not have the opportunity to
“ever have access to another gun again.” While the jury could have
recommended more time, it recommended a total sentence of ninety years, and
that the four, ten-year sentences run consecutively. The trial court later reduced
this sentence to the statutory maximum of seventy years.
Because these errors are unpreserved, they are only subject to palpable
error analysis. To find reversible, palpable error, “an appellate court must
consider whether on the whole case there is substantial possibility that the result
would have been any different.” Commonwealth v. McIntosh, 646 S.W.2d 43, 45
(Ky. 1983). Later, in Ernst v. Commonwealth,42 our Court defined palpable error
as error so grave, that if uncorrected, it would seriously affect the fairness of the
proceedings. Having reviewed the record, the palpable error rule and applicable
case law, we cannot hold that the inaccurate testimony of Ms. Johnson created
United States v. Agurs, 427 U.S. 97, 103 (1976). 41 42 160 S.W.3d 744, 758 (Ky. 2005). 20 a “substantial possibility that the result would have been any different”43 or
affected the fairness and integrity of the sentencing phase.
G. CONCLUSION
Finding no reversible error, we affirm the trial court below.
All sitting. Minton, C.J.; Hughes, Lambert, Nickell, VanMeter and
Wright, JJ., concur. Keller, J., concurs in result only.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Assistant Public Advocate Department of Public Advocacy
Aaron Reed Baker Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky
Mark D. Barry Assistant Attorney General
43 McIntosh, 646 S.W.2d at 45. 21