IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 25, 2021 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0471-MR
DEANGELO POLLARD APPELLANT
ON APPEAL FROM HENDERSON CIRCUIT COURT V. HONORABLE KAREN LYNN WILSON, JUDGE NO. 18-CR-00072
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
DeAngelo Pollard appeals as a matter of right1 after being convicted of
complicity to first-degree robbery and sentenced to twenty-years imprisonment.
Pollard raises four trial-based challenges in his appeal: failure to direct a
verdict of acquittal, a Batson2 violation, discovery violations, and cumulative
error. Finding none of these challenges meritorious, we affirm the Henderson
Circuit Court’s judgment.
I. Factual and Procedural Background
In November 2017, Devin Fields, with a friend, Charles Olson, drove to
Henderson, Kentucky. Olson testified that Fields’ intent was to sell marijuana.
Eventually, they met Keandre Tapp and Z.G., a juvenile, in a park. Tapp and
Z.G. advised that they needed a ride to their brother’s apartment to get money.
1 Ky. Const. § 110(2)(b). 2 Batson v. Kentucky, 476 U.S. 79 (1986). These four then got in Fields’ car: Fields drove, Olson sat in the front passenger
seat, with Tapp and Z.G. in the back. When they arrived at their destination,
Tapp and Z.G. exited the vehicle. According to Olson, three people got in the
back of the car 5 to 10 minutes later. Fields then started laying out marijuana
on the front center console. At that point, Olson felt a gun at the back of his
head with a warning not to move. A scuffle ensued over the marijuana, and
someone from the back seat shot Fields fatally in the chest. Olson did not
know who fired the shot but believed it came from the back center or back
right.
Tapp testified at trial. He had never met Fields prior to the day in
question, but had communicated with him through Snapchat, learned Fields
would be travelling through Henderson and discussed buying marijuana from
Fields. Tapp was, however, good friends with Z.G. and Pollard. He told them of
his plan to buy marijuana, but that Pollard wanted to rob Fields, taking the
marijuana instead. Tapp’s testimony corroborated Olson’s testimony about the
initial meeting, driving to the other apartment complex, and Tapp and Z.G.
exiting the vehicle. When Tapp and Z.G. with Pollard returned to Fields’ car,
Tapp and Pollard were armed; Tapp had a .22 revolver and Pollard had a silver
and black .38 special. Tapp sat behind Fields, Z.G. was in the center back,
and Pollard was behind Olson. When Fields displayed the marijuana, Tapp
and Pollard revealed their guns. Tapp testified that, in the fight over the
marijuana, Pollard shot Fields after Fields grabbed Tapp’s revolver.
Immediately following the shooting, Pollard and Tapp exited the vehicle and
fled. Tapp acknowledged making a plea bargain in exchange for his testimony. 2 Z.G. testified about his involvement. He testified that he was very close
to Tapp, but only knew Pollard as an acquaintance. His testimony
corroborated that of Olson and Tapp as to the initial meeting and driving to the
other apartment complex, although he denied initial knowledge of the
marijuana transaction/robbery. He corroborated Tapp’s account of returning
to Fields’ car with Pollard, but that when Z.G. realized something bad was
about to happen, he said he had to go to the bathroom and got out of the car.
Z.G. testified that he saw Tapp and Pollard pull their guns, the scuffle, and
then Pollard shoot Fields.
Following a police investigation which implicated Tapp and Pollard,
Pollard was arrested. The Henderson Circuit Court grand jury indicted Pollard
on two counts: a) murder and b) first degree robbery and/or complicity to first
degree robbery. At trial, the jury acquitted Pollard of murder, but convicted
him of complicity to first degree robbery. The trial court imposed the jury’s
recommended sentence of twenty-years imprisonment.
Pollard appeals as a matter of right. Ky. Const. § 110(1)(b). Further
facts will be set forth as necessary to address Pollard’s arguments on appeal.
II. Analysis
Pollard makes four arguments in his appeal. 1) The trial court erred in
denying his motion for directed verdict since no witness explicitly identified
Pollard in the courtroom as the person who robbed Fields. 2) The trial court
erred in denying Pollard’s motion for a new trial based on a Batson violation. 3)
The trial court erred in failing to grant any relief for the Commonwealth’s
3 discovery violations. And 4) cumulative errors in the trial warrant a new trial.
We address each of these claims in turn.
A. Denial of Motion for Directed Verdict.
In Culver v. Commonwealth, 590 S.W.3d 810, 812–13 (Ky. 2019), we
stated,
On the motion for a directed verdict, the single controlling question for the trial court is whether the Commonwealth has sustained the burden of proof by more than a scintilla of evidence, with such evidence being of probative value and of the quality to induce conviction in the minds of reasonable men. James v. England, 349 S.W.2d 359, 361 (Ky. 1961) (citation omitted). When the evidence is insufficient to induce reasonable jurors to believe beyond a reasonable doubt that a defendant is guilty, a verdict may be directed. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When assessing the evidence, the trial court must consider the Commonwealth’s evidence as a whole, assume the evidence is true, and draw all reasonable inferences from the evidence in favor of the Commonwealth. Id. The trial court may not consider questions of weight and credibility, those being the province of the jury. Id.
Our standard of review on such an issue is “if under the evidence as a whole, it
would be clearly unreasonable for a jury to find guilt, only then the defendant
is entitled to a directed verdict of acquittal.” Ray v. Commonwealth, 611
S.W.3d 250, 266 (Ky. 2020) (quoting Commonwealth v. Benham, 816 S.W.2d
186, 187 (Ky. 1991)).
Pollard argues that he was entitled to a directed verdict in this case
because no one specifically identified him at trial. While the trial court
acknowledged that no witness “pointed a finger” at Pollard and no one ever
identified the person sitting at counsel table as DeAngelo Pollard, it
nevertheless found that enough testimony and evidence by other means was
adduced to overrule the motion. On the morning of the first day of trial, during 4 voir dire, Pollard’s own counsel identified him to the jury. Thereafter, during
trial, Tapp’s and Z.G.’s testimony provided ample identifying information that
was unique to Pollard. Tapp testified to Pollard’s nickname, stated that he had
known Pollard for a long time and that the two were good friends. Tapp
testified that he knew the weapon Pollard used to help him rob and ultimately
kill Fields. Afterwards, the Commonwealth called Z.G. to testify and asked him
similar biographical information about Pollard. Z.G. noted that while he was
not close friends with Pollard, the two were friendly and that Z.G. and Tapp
had been friends since elementary school. Following their direct testimony,
Pollard’s counsel conducted vigorous cross-examination of both witnesses.
We hardly need authority to state that convictions may be based on
circumstantial evidence. E.g., Rogers v. Commonwealth, 315 S.W.3d 303, 311
(Ky. 2010). Even in the absence of a “finger point,” whom would Tapp and Z.G.
have been testifying about? Consequently, the jury was properly presented
with ample evidence that the young man sitting at the defense table was the
same Pollard whom Tapp and Z.G. spoke about and identified at length. The
jury could, and did, make reasonable factual conclusions regarding the
defendant. We note that the jury ultimately acquitted Pollard of murder and
robbery in the first degree, demonstrating its ability to observe and weigh the
evidence, as was its duty. Pollard was not entitled to a directed verdict.
B. Batson challenge.
When a party raises a Batson challenge, the trial court must engage in a
three-step inquiry to determine whether a prospective juror was struck for an
impermissible reason. Commonwealth v. Snodgrass, 831 S.W.2d 176, 178 (Ky. 5 1992). The first step requires the defendant to make a prima facie showing
that the peremptory challenge was based on race. Id. After the requisite
showing by the defendant, the burden shifts to the prosecution to present a
race-neutral explanation for its peremptory strike. Id. Finally, during the last
step, the trial court must determine whether the prosecutor’s race-neutral
explanation was sufficient, or whether the defendant’s challenge had “carried
his burden of proving purposeful discrimination.” Id.
A trial court’s ruling on a Batson challenge is treated as a finding of fact
by the reviewing court. France v. Commonwealth, 320 S.W.3d 60, 67 (Ky.
2010) (citation omitted). Consequently, on appeal this Court will not disturb
the ruling unless it was clearly erroneous. Id. (citation omitted). However, our
deference to the trial court does not mean that we will not engage in a
meaningful and independent review. See Miller-El v. Dretke, 545 U.S. 231, 240
(2005) (in which the Supreme Court reiterated that courts must conduct
rigorous inquiries into the proffered race neutral justifications of prosecutors to
find and reject clearly pretextual offerings). As we noted in France, the
ultimate burden of showing unlawful discrimination rests with the challenger.
320 S.W.3d at 67 (citation omitted).
In this case, the Commonwealth exercised a peremptory strike as to the
last remaining African-American in the thirty-one-member venire panel. When
Pollard challenged the strike, the Commonwealth advised that the juror had
misrepresented on her Juror Qualification Form, specifically answering “no” to
6 the question as to whether she had been convicted of a crime.3 The audio
portion of the video record is unclear, but apparently the Commonwealth’s
Attorney was questioned about his factual basis. He is shown retreating to his
table and then returning to the bench with papers which he then shows to the
trial judge and defense counsel. The attorneys and judge then appear to
discuss the information presented: the juror’s conviction of a crime, apparently
welfare fraud, and, additionally, whether she was a Henderson County
resident. Significantly, at this point in the proceeding, all thirty-one members
of the venire panel were present because immediately afterwards, the trial
court directed the clerk to randomly select thirteen jury members to try the
case. But, while counsel were at the bench during the Batson challenge, no
one thought to call the juror up to the bench for further questioning or
clarification. In his post-trial motion, as in this appeal, Pollard argued that the
Commonwealth’s race-neutral reason was pretextual since he had discovered
that the Commonwealth’s criminal record check may have uncovered a woman
with a similar name4 in a different county who had been placed on welfare
fraud diversion in 2018.
3 The questions on the standard Juror Qualification Form (Form AOC-005-A) request disclosure as to whether an individual is currently under indictment, currently a participant in a felony diversion or deferred prosecution program, or a convicted felon who has not been pardoned or received restoration of civil rights. AOC-005-A, Part A. 5-7. The Form also requests a yes or no answer to the following question: “Have you or a family member been a defendant, witness or complainant in a criminal case?” AOC-005-A, Part B.4. The Juror at issue did not check any of the boxes in Part A, and on the yes/no question in Part B, concerning criminal case participation, checked the “no” box. 4 The record Pollard proffers shows a woman with an identical first name and a surname which is similar but additionally has “on” at the end. For example, the difference between “Judy Roberts” and “Judy Robertson.” 7 In Snodgrass, we addressed the latitude afforded to prosecutors in
utilizing peremptory challenges. In that case, the defendant made a Batson
motion as to the Commonwealth’s peremptory challenge of an African American
juror. The Commonwealth’s stated reason for the strike was that the juror did
not inform the prosecutor that he lived near and had known the defendant,
despite the trial court’s question on that topic to the jury. 831 S.W.2d at 178.
The trial court found the Commonwealth’s reason sufficiently specific and race-
neutral and denied the Batson motion. Following conviction, Snodgrass
appealed the Batson issue, and the Court of Appeals reversed the trial court.
Id. That Court noted that the Commonwealth failed to ask follow-up questions
of the juror to ascertain whether his information was correct and “further
criticized the prosecutor by stating that his decision was based upon ‘intuition
or information aliunde.[5]’” Id. This Court disagreed, finding no Batson
violation and reinstating the trial court’s ruling.
In coming to its conclusion, the Snodgrass court laid out several
principles inherent to reviewing Batson decisions. First, the Court noted that
prosecutors are free during voir dire to rely on information they receive outside
of the voir dire process. Id. at 179. Additionally, peremptory strikes do not
need to satisfy the requirements for striking jurors for cause. Id. Moreover,
the Court stated the test for evaluating Batson challenges in the following
terms:
5 “‘Aliunde’ adj. [Latin] (17c) From another source; from elsewhere[.]” Black’s
Law Dictionary (10th ed. 2014). 8 Whether the information is true or false is not the test. The test is whether the prosecutor has a good-faith belief in the information and whether he can articulate the reason to the trial court in a race-neutral manner which is not inviolate of the defendant’s constitutional rights. The trial court, as the final arbiter, then decides whether the prosecutor has acted with a forbidden intent.
Id. (emphasis added). Finally, the Court stated that while clarifying
questions of the juror prior to exercising a peremptory strike would have
been helpful, such questions were not necessary predicates. Id.
Consequently, because the trial court was presented with two plausible
arguments and had made its determination, the Court of Appeals abused
its discretion when it came to a separate factual conclusion and
substituted that for the trial court’s finding. Id. at 180.6
Of course, limits exist to the Commonwealth’s creativity in exercising
peremptory challenges. See, e.g., Washington v. Commonwealth, 34 S.W.3d
376, 380 (Ky. 2000) (holding that the cumulative effect of expressing surprise
at the peremptory strike and a subsequent series of implausible reasons and
bare assertions in justification were indefensible, despite the fact that the
ultimate result was a facially satisfactorily race-neutral justification for the
strike).
In this case, the Commonwealth articulated clear reasons for striking the
juror. We find it notable that when Pollard’s counsel brought this challenge to
the trial court, the Commonwealth presented the CourtNet report to the judge
6 This Court quoted Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) which stated: “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” 9 and Pollard’s counsel.7 Counsel and the court then reviewed the document,
after which the court made its ruling. No one discovered the mistake during
the bench conference when anyone, the trial court, the Commonwealth or
defense counsel, could have easily asked clarifying questions of the juror.
While the Commonwealth may have conflated two individuals with similar
names, we are unable to say that Pollard has met his burden of proving a
racially-motivated reason for the Commonwealth’s peremptory challenge.
C. Discovery violations.
Pollard asserts that the trial court abused its discretion by failing to
order a new trial or judgment of acquittal because of a series of discovery
violations by the Commonwealth. The alleged violations concern four items:
ballistics testing, police cell phone messages, police fingerprint training
manual, and plea bargain terms given to Tapp. For the reasons discussed
below, we reject Pollard’s arguments and suggested remedy.
RCr8 7.24(1), upon written request, compels the Commonwealth to
disclose the substance of any incriminating statements known to or in
7 Pollard’s citation to Foster v. Chapman, ___ U.S. ___, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016) does not compel a different result. In Foster, proof was developed that the prosecutor treated white and black prospective jurors differently, notwithstanding substantially similar backgrounds, leading to the conclusion that the reasons for exercising peremptory strikes on black jurors were pretextual. In this case, Pollard has produced no proof that the Commonwealth failed to strike a white juror who made a misrepresentation on the Juror Qualification Form. In addition, the prosecutor’s file in Foster only became available after the defendant filed an open records request. Id. at 1747. That stands in contrast to the Commonwealth’s Attorney in this case disclosing to the trial court and Pollard’s counsel the information supporting its basis for the strike, as to which no one followed up with the juror in question who was sitting in the courtroom. 8 Kentucky Rules of Criminal Procedure. 10 possession of the Commonwealth, as well as the substance of any expert
testimony the Commonwealth intends to introduce at trial. Meanwhile, RCr
7.24(2) entitles the defendant to inspect “data” or other tangible evidence in the
“possession, custody, or control” of the Commonwealth “upon a showing that
the items sought may be material to the preparation of the defense and that
the request is reasonable.”
The premise underlying RCr 7.24 is not simply about informing the
defendant of the information available to the Commonwealth, but to inform the
defendant that the Commonwealth is aware of the information. Given the
inherent disparity in resources and access to both incriminating and
exculpatory evidence or statements, RCr 7.24 reflects a policy that a criminal
defendant not be left in the dark to wonder what the Commonwealth intends to
wield against him at trial. Baumia v. Commonwealth, 402 S.W.3d 530, 545
(Ky. 2013) (citing Chestnut v. Commonwealth, 250 S.W.3d 288, 297 (Ky. 2008)).
Stated differently, the purpose of RCr 7.24 is to “ensure[] that the defendant’s
counsel is capable of putting on an effective defense[.]” Id.
As with all discovery rulings, the appeals court must review the trial
court’s decision for an abuse of discretion. Brown v. Commonwealth, 416
S.W.3d 302, 308 (Ky. 2013). Consequently, that decision will remain
undisturbed unless it was “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d
575, 581 (Ky. 2000). Moreover, this Court has stated explicitly that a
conviction is to be set aside because of a discovery violation only when “a
‘reasonable probability’ [exists] that had the evidence been disclosed the result 11 at trial would have been different.” Weaver v. Commonwealth, 955 S.W.2d 722,
726 (Ky. 1997) (quoting Wood v. Bartholomew, 516 U.S. 1, 6 (1995)); see RCr
9.24 (setting forth harmless error rule and stating “court at every stage of the
proceeding must disregard any error or defect in the proceeding that does not
affect the substantial rights of the parties[]”); see also Baumia, 402 S.W.3d at
545–46 (affirming conviction due to overwhelming evidence against defendant,
notwithstanding Commonwealth’s failure to disclose prior misdemeanor theft
conviction introduced during penalty phase); Grant v. Commonwealth, 244
S.W.3d 39, 44 (Ky. 2008) (reversing conviction due to Commonwealth’s
concealment of defendant’s incriminating phone call introduced in rebuttal
following defendant’s testimony).
1. Ballistics Report. Pollard complains that his counsel received
the ballistics report for the .38 caliber bullet retrieved from Fields’ body less
than forty-eight hours before trial in violation of RCr 7.26. He therefore moved
for its exclusion. The Commonwealth’s Attorney represented to the trial court
that he relayed the information to defense counsel as soon as he received it.
Pollard has correctly identified a discovery violation committed by the
Commonwealth.
A violation of the forty-eight-hour rule, however, does not require
automatic reversal. Beaty v. Commonwealth, 125 S.W.3d 196, 202 (Ky. 2003)
(internal citation omitted), abrogated on other grounds by Gray v.
Commonwealth, 480 S.W.3d 253, 267 (Ky. 2016). The trial court in this case
acknowledged the discovery violation and admonished the prosecutor but
chose to withhold its ruling until after the testimony had been introduced. 12 While perhaps the report should have been excluded, given that Pollard was
acquitted of murder and first-degree robbery despite the introduction of the
ballistics report, we find any error to be harmless.9
2. Police Cell Phone Messages. With regards to the
Commonwealth’s failure to preserve certain text messages on Detective
Isonhood’s personal cellphone, the trial court conducted an in camera review of
the cell phone utilizing a method suggested by Pollard’s counsel. After
conducting the review, the court found no messages to which Pollard was
entitled and further found no bad faith on the part of the Commonwealth or
Det. Isonhood. Consequently, while conceivable that a discovery violation
occurred purely as a result of prosecutorial negligence, no evidence suggests
that the violation was prejudicial to Pollard. Moreover, without any evidence to
the contrary, Pollard’s assertion is purely speculative.10
3. Fingerprint Training Manual. Officer Jeremy Ebelhar, crime
scene officer with the Henderson Police Department, checked Fields’ car for
fingerprints. His testimony was that he obtained two prints but determined
they were of insufficient quality for further testing. Pollard claims that a
discovery violation occurred when the Commonwealth failed to produce a
training manual, more than a decade old, used by Officer Ebelhar. The officer
testified that he was no longer in possession of the manual. Pollard argues
9 As suggested by the Commonwealth, the jury likely was uncertain as to who fired the fatal shot. 10 The Commonwealth, in its Appellee brief, states that this claim is more akin to a destruction of evidence argument. We agree and note that Pollard does not argue that he was entitled to a missing evidence instruction. 13 that having the training manual was important to impeach Officer Ebelhar
properly. We fail to understand how possession of an old manual would have
changed Pollard’s strategy in any way. Industry standards for fingerprint and
evidence collection are widely known and often litigated. As Pollard’s attorney
demonstrated, rigorous cross-examination is entirely possible without access to
an outdated training material.
4. Tapp’s Plea Agreement. Tapp and the Commonwealth entered
a plea agreement with respect to the charges against Tapp arising from this
incident. Apparently, under the plea agreement, Tapp was to provide a written
statement. Tapp, however, never provided the statement. Notwithstanding
that Pollard’s counsel received the Tapp plea agreement, Pollard claims that
Tapp’s failure to provide a written statement constituted a modification of the
plea agreement to which he was entitled. Since he did not receive a modified
plea agreement, Pollard moved for dismissal of the charges. The trial court
denied the motion. After reviewing the record, we do not believe the plea
agreement was modified or that the trial court abused its discretion when it
denied Pollard’s motion with regards to Tapp’s plea agreement. Regardless,
Pollard received a copy of Tapp’s plea agreement and was able to cross-examine
Tapp about his statements to the police and any inconsistencies in that
statement.
D. Cumulative error.
Finally, Pollard argues his conviction should be overturned because of
cumulative error. We disagree. To overturn a conviction for cumulative error
the defendant must successfully demonstrate that the cumulative effect of a 14 series of errors resulted in prejudice which was not present individually. Elery
v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012). Cumulative error is a
limited doctrine, which is only appropriate when “individual errors were
themselves substantial, bordering, at least, on the prejudicial.” Id. (citing
Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)). Here, we have only
identified a single instance of a clear violation, the Commonwealth’s failure to
produce the ballistics report, with which we have already dispensed. Thus,
application of the cumulative error doctrine is inappropriate.
III. Conclusion.
For the foregoing reasons, the Henderson Circuit Court’s judgment is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Mark Daniel Barry Assistant Attorney General