RENDERED: APRIL 26, 2018
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[Q) ffi\1J ~-'P7p8 14~ tkdr.wa, rx EUGENE BAKER APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE NO. 12-CR-003691-001
COMMONWEALTH OF KENTUCKY APPELLEE
·,,- OPINION OF THE COURT BY JUSTICE WRIGHT
AFFIRMING IN PART AND REVERSING AND VACATING IN PART
Appellant, Eugene Baker, was convicted by a Jefferson Circuit Court jury
of murder, first-degre~ robbery, tampering,with physical evidence, and
possession of a handgun by a convicted felon. For these crimes, the jury
recommended sentences of thirty years' imprisonment for murder and ten
years' imprisonment for robbery, to be run consecutively. The jury also
recommended a one-year sentence on the tampering with physical evidence
conviction and a five-year sentence for the possession of a handgun by a
convicted felon conviction, to be served concurrently with the murder and
robbery sentences. The trial court sentenced Bake! to forty years'
imprisonment in ac~ordance\with the jury's recommendation. Appellant now
appeals to this Court as a matter of right; Ky. Const.§ 110(2)(b), and asserts
five grounds for reversal of his convictions: (1) the trial court abused its
discretion when it did not allow defense counsel to argue in closing that the Commonwealth did not produce any evidence of motive; (2) the trial court .
abused its discretion when it allowed the Commonwealth to introduce
unauthenticated call logs, and when it allowed the Commonwealth to recall a l witness to testify as to a phone number appearing in the call logs; (3) the trial
court erred in. failing to grant a directed verdict on the tampering with physical
evidence and possession of a handgun by a convicted felon charges; (4) the trial
court erred in refusing to instruct on facilitation to murder and first-degree
robbery; and (5) Baker is entitled to reversal of his conviction and a new trial
due to cumulative error. We will address each claimed error in turn.
I. BACKGROUND In 2012, Baker and co-defendant Duzuan Lester were indicted as
complicitors in the 2007 murder and robbery of Dominic Hudson. Baker and
Lester's trial ended with Lester acquitted of all charges and with the jury .
unable to agree upon a verdict as to Baker. This appeal concerns Baker's
retrial.
On retrial, several witnesses testified regarding events surrounding the
crime at issue herein. We will outline their testimony in order to give a full
picture of the evening of Hudson's murder. Witnesses testified that Hudson
sold both marijuana and "bootlegged" DVDs. Hudson kept two cell phones-
one for personal use, and the other for "business."·
Kristie Hart testified she was in Hudson's apartment on the evening of
his murder. She said two men came to the apartment and she opened the door
for them, as she was expecting her cousin Teresa to stop by. Hart did not
2 know the men, but said one of them wore a red baseball cap with a flat bill.
Teresa eventually . arrived at Hudson's apartment, and she and Hart left around '
7:00. The two. men Hart did not know remained in the ·apartment with
Hudson. Hart later picked Baker's picture out of a photographic line-up as
being one of the men who was in Hudson's apartment on the night in question.
Two other witnesses, Yvonne Wolf and Alvin Servin (who happened to be
neighbors) testified that they were each going to Hudson's apartment on the
evening of his murder and did not know the other would be there. Wolf was
there to pick up DVDs Hudson had made her, and talked to Hudson to let him
know sher-was on her way. She could hea: people in the background during
the phone call, and Hudson told her he had to take care of something. She
arrived at Hudson's apartment seven minutes later, and ran into Servin in the
parking lot (he testified he was going to the apartment to buy marijuana from
Hudson). The two approached the apartment together and knocked, but
Hudson did not answer the door. They noticed the door was ajar, and Wolf
knew Hudson typically kept his door locked. The two called out, but got no
response. They walked in the door, rounded a corner, and saw Hudson's
lifeless body lying in the hallway. They testified "weed" was everywhere. An
autopsy would later determine Hudson died as the result of a gunshot wound
to the back of his head. ' Charles Evans, Jr., who lived in the same apartment complex as Hudson, --...
also testified at trial. He said on the night of Hudson's murder, just before
7:00, he saw two men running out the complex. One of the men held at-shirt,
3 · which he appeared to be using to conceal something. While the description
Evans provided matched Baker's description, he n~ither identified Baker nor
saw a handgun.
· Jasmine Williams testified she was dating Baker at the time of Hudson's
murder. She said she knew Hudson, but had never called him; she stated it
was possible Baker had used her phone to call Hudson. It turned out her
number had called Hudson about an ·hour before his death. Williams testified
that Lester and his girlfriend picked her up on the evening in question, along
with her baby and Baker. They traveled to Hudson's apartment, where Baker
said he needed to go to get his cell phone. Williams testified that when Baker
and Lester returned t~ the car, they were running down the street, dropping
money and marijuana as they ran. Williams testified the two men were very
upset when they returned to the car and said, "Go, go, go!" when they re-
entered the vehicle. They drove to Baker's cousin Ebony's house, where Lester
and his girlfriend dropped off Baker, Williams, and her baby. Baker was
throwing up and vi~ibly shaken when they arrived at Ebony's house.
Willia:µis testified that when she asked Baker what was wrong, he told
her he had killed Hudson by shooting him in the back of the head. Baker said
he was in the kitchen when he shot Hudson (and this is, in fact, where
Hudson's body was founq). Williams did not see the glin, but thought Baker's
cousin Gary had come the next day and gotten the weapon. ·
Williams was friends with Nikkia Sullivan, who had a relationship with
. Hudson. Williams told Sullivan what had happened with Hudson and the two
4 stopped talking after Williams's revelation. Williams became upset with
Sullivan when Sullivan told police what Williams told her regarding Hudson
and asked Williams to help her "cop a deal."
Williams was a convicted felon, but testified she did not receive any deals /"
in exchange for her testimony.'
Sullivan was serving a sentence for manslaughter and aggravated
robbery at the time of Hudson's trial-and was almost eight years into her
sentence. Sullivan testified she used to hang out with Baker, Williams, and
Hudson. Hudson may,have been the father of Sullivan's ~aughter, though
paternity was never established. Sullivan was not aware of any animosity
between Hudson and Baker, and had never met Lester. ' '
Sullivan was supposed to go to the fair with Hudson on the night of his
murder. Hudson told her he had some things to do. At some point that
evening, Hudson stopped answering her phone calls. Sullivan called Williams,
because she thought Baker may know where Hudson was. She could not recall
at trial if anyone answ:ered her call. However, in a 2012 statement to police,
Sullivan said Williams did answer her call. When she asked where Hudson
was, Sullivan said Baker got on the phone and told her she was not going to
see Hudson again. The next time Sullivan called Williams, she said Baker
answered the phone, told her he had killed Hudson, and hung up. Sullivan did
not initially call the police to report this information.
In early 2008, Sullivan said she did call Crime Stoppers after speaking·
with Williams. Williams had sent Sullivan a message saying she wanted to talk
5 about Hudson. Sullivan testifi°ed Williams told h,er she had been driving the
get-away car on the night of Hudson's murder. She said Baker and another
male were passengers. Sullivan testified that Williams told her she heard
gunshots, and the man with Baker jumped back in the car and voniited. When
Baker made it back to the car, he looked like a ghost .. Sullivan testified
Williams told her she and the two men then drove to Williams's apartment. 1
Sullivan was unable to identify Baker from a photo pack five years after
Hudson's murder. She said she could not remember what Baker looked like.
Another witness, Susan Copass-Cheng had a child with Baker. Baker
called Copass-Cheng and asked her to bring their daughter to see him. She
testified he told her he had done something and if anyone ever found out, he
may not be able to see her or their child again. Copass-Cheng testified she did
not know Williams, but had spoken with her on the phone. She testified that
Williams had called her only once, but that Baker called her from Williams's
phone numerous times. On recall, Copass-Cheng identified Williams's number (
(the same number which appeared in call logs as having called Hudson:
approximately an hour·before his death) as the number from which Baker
called her.
Marquez Turner also testified at trial. He said he and Baker were friends . . and had bought marijuana from Hudson. Turner said he was supposed to
1 Sullivan's testimony differs from Williams's. As noted, Williams testified that
Lester's girlfriend drove the car and that she dropped Williams, her baby, and Baker off at Ebony's house. 1
6 meet Hudson on the night of his murder to pay him some money. When
· Turner went to Hudson's apartment that night; police were there and he did
not approach the apartment. However, Turner spoke with police in 2009 and
2012 and told police, in taped statements, that Baker had confessed to killing
Hudson. However, at trial, Turner claimed he lied to police and that these
statements were untrue.
A red baseball cap was found lying in the kitchen floor, just two feet
away from ,Hudson's body. DNA found on the cap matched both Baker and
. Lester .. Lead Detective Keith Roberts testified marijuana was on Hudson's
. body, the floor, and the counter. He also testified money was found in
Hudson's back pocket. Detective Roberts interviewed Baker in 2007. Baker
admitted he knew Hudson and had bought marijuana from him. Baker said he
did not know what the detective was talking about when Detective Roberts
asked Baker if he had anything to do with Hudson's murder.
At trial, Baker called two witnesses: Ebony, at whose house Williams
testified they went on the night of Hudson's murder, and his for~er co-
defendant, Lester. Ebony denied knowing Williams and denied Williams and
Baker had come to her house on the night of Hudson's murder. Lester testified \ that he and Baker were friends. He denied ever having been to Hudson's
apartment complex and denied being present during Hudson's murder. He told
the jury that he had also been tried for.Hudson's murder, but found not guilty
on all counts.
7 In its closing argument, defense counsel argued that the Commonwealth
had taken eight years to "cobble" its case together. He referred to the
Commonwealth's witnesses as drug addicts and felons, and said their
testimony was inconsistent.
In its closing, the Commonwealth pointed out that a witness had picked
Baker's photograph out of a line up as being one of the two men in Hudson's
apartment just minutes before his murder; that Evans described two men
running from the scene, and that description was consistent with Baker;
Williams testified as to key details Baker told her concerning information that
had not been released to the public (such as that Hudson had been shot in the
back of the head in his kitchen); Sullivan testified that Baker had told her on
the phone that he killed Hudson; and Copass-Cheng testified that shortly after
Hudson's murder, Baker told her he did something and that if anyone found
out, he may not be able to see her and their child. The Commonwealth also . . discussed Turner's statement that Baker had . •" confessed to Hudson's murder,
even though Turner denied its truth at the time of trial. Finally, the
Commonwealth pointed to the baseball cap found feet away from Hudson's
body matching Baker's DNA;
The jury ultimately found Baker guilty of murder, first-degree robbery,
tampering with physical ~vidence, and possession of a hand~n by a convicted
felon and recommended he be sentenced to serve a total of forty years'
imprisonment. The trial court sentenced Baker accordingly and this appeal
followed as a matter of right. Ky. Const.§ l 10(2)(b) .
.8 II. ANALYSIS
A. Motive During Baker's trial, the Commonwealth sought to introduce KRE 404(b)
evidence of "other crimes, wrongs, or acts" in an attempt to establish Baker's
motive for murdering Hudson. Specifically, the Commonwealth wanted to
introduce Williams's testimony that Baker's motive to kill Hudson was that
Baker was a small-time drug dealer.and ·was jealous of Hudson's thriving drug
trade or that he viewed Hudson as his competition. The trial court did n,ot
allow this KRE 404(b) testimony, as Williams's testimony would have been the
only evidence that Baker was a drug dealer and the admission of the evidence , ' would be more prejudicial than probative. While the Commonwealth was not
permitted to introduce this particular evidence of motive, Williams did testify
that she saw Baker running back to the car on the night of Hudson's murder
carrying money and marijuana. The Commonwealth argues this was evidence
from which the jury could infer another motive: nameJy, that Baker's motive
for murdering Hudson was to rob him of money and drugs. In addition to
murder, Baker was convicted of first-degree robbery.
During the defense's closing argument, trial counsel told the jury that,
while motive I was not an element of the crime, the Commonwealth had I
introduced no evidence of motive. The Commonwealth objected, arguing that
the trial court had excluded its motive evidence, and, therefore, the defense
should not be permitted to argue the Commonwealth had no theory as to
Baker's motive to murder Hudson. The trial court sustained the
9 Commonwealth's objection, and agreed that the defense's argument regarding
motive would be ·misleading to the jury, since the Commonwealth did have a
theory of motive, albeit inadmissible. Neither the Commonwealth nor the trial
court made any menti_on of the Commonwealth's alternate theory regarding
motive (that Baker's motive in murdering Hudson was to steal his money and
marijuana).
Baker points out "that counsel has wide latitude while making opening
or closing statements." Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky.
2006). He argues the trial court abused its discretion in disallowing defense
counsel's argument that tpe Cominonwe1;1lth did not produce any evidence of a
motive. He insists the trial court erred in prevented him from "draw[ing]
reasonable inferences from the evidence and propound[ing] [his] explanation[]
of the evidence and why the evidence supports [his] respective theor[y] of the
case." Garrett v. Commonwealth, 48 S.W.3d 6, 16 (Ky. 2001). ' However, it was not a reasonable inference that the Commonwealth
presented no evidence of motive when, in fact, it presented testimony that
Baker was seen carrying money and marijuana near Hudson's apartment
·around the time of the murder. Again, this was neither argued at trial by the
Commonwealth nor relied upon by the trial court in its ruling. Baker argues
that because the Commonwealth failed to raise this argument at trial, we
should not now consider it. However, "[w]e have long held that we will uphold )
a correct result made for the wrong reasons." Jarvis v. Commonwealth, 960
S.W.2d 466, 469 (Ky. 1998). We are not constrained by either the reasoning of
10 the tria),,court in making its ruling or the arguments of the Commonwealth at
trial in coming to O:ur decision. .Because the. Commonwealth had presented )
other evidence from which the jury could infer motive, the trial court did not
err in preventing defense counsel from arguing that the Commonwealth had
produced no evidence of motive. Because we hold the trial court came to the
correct result, we need not determine whether it reached said result for the
wrong reasons.
B.- Cell Phone Records and Number Detective Keith Roberts testified that he subpoenaed call logs from both I
of Hudson's two cell phones from the carrier. Th~ Commonwealth introduced
these call logs as exhibits. The logs showed calls made to and from Hudson's
phones, but the only identifying information _regarding the calls was the phone
number (no names were linked to these numbers); The Commonwealth
recalled Susan Copass-Cheng to identify a number from which Baker had
called her in the past. The number Copass-Cheng testified to appeared in the
call logs as having called Hudson's phone an hour before_ his death. Baker
argues the trial court abused its diScretion by allowing the Commonwealth to
introduce the ~all logs, which he insists were unauthenticated. He also argves
~he trial.court erred in allowing the CoIIl.monwealth to recall Copass-Cheng-to _, . I , .
' _/
testify regarding a' phone number contained in those logs.
1. Phone records \ -Baker objected at trial when the trial court allowed Detective Roberts to
testify regarding the call logs from Hudson's cell phone carrier. ·The
11 Commonwealth countered that the detective could authenticate the call logs, as
he had received them in response to a subpoena. The trial court allowed the
__,logs' introduction and the Commonwealth introduced the call logs into evidence
as exhibits. Baker argues the call logs were not properly authenticated
pursuant to KRE 901. We note 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). "The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles." Commonwealth. v. English,
993 S.W.2d 941, 945 (Ky. 1999).
KRE 901 (a) reads: "The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to
suppo.rt a finding that the matter in question is what its proponent claims."
The factual inquiry is whether the evidence is what its proponent claims it to
be. Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004). "Part of the
identification of evidence is a demonstration of its integrity, that it is in fact
what its proponent claims it to be." Rogers v. Commonwealth, 992 S.W.2d 183,
187 (Ky. 1999). We have held: "The proponent's burden of authentication is
slight, which requires only a prima facie showing of authenticity to the trial
court.... On appellate review, the trial court's finding of authentication is
reviewed for abuse of discretion." Johnson, 134 S.W.3d at 566.
12 . . . ' .
Here, there was no argument to the trial court that the call logs were not
what they purported to be. KRE 901 (b) gives "examples of authentication or
identification conforming with the requirements of this rule,'' including "(1)
Testimony of witness with knowledge. Testimony that a matter is what it is
. claimed to be." Here, Detective Roberts testified he received the call logs in
response to a subpoena he sent to Hudson's cell phone carrier.
Furthermore, KRE 902(11) provides, in pertinent part:
Business records.
(A) Unless the sour.ces of information or other circumstances indicate lack of trustworthiness, the original or a duplicate of a record of regularly conducted activity within the scope of KRE 803(6) or KRE 803(7), which the custodian thereof certifies: 1
(i) Was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;
(ii) Is kept in the course of the regularly conducted activity; and
(iii) Was made by the regularly conducted activity as a regular practice.
Pursuant to this rule, business records (such as the phone records in the case
at bar) are "sel(-authenticating" so long as they meet KRE 902(1 l)'s dictates.
However, the call logs admitted into evidence herein were not certified as
required by KRE 902(11) and were, therefore, not self-authenticating.
Even if we were to hold that th.e records were properly authenticated, our
inquiry does not end there. As this Court has held, "the establishment of
authenticity of a document does not necessarily mean that the document is 13 admissible l?ecause there may be other barriers, ~.g., hearsay, to its
admission." ·Matthews v. Commonwealth, 163 S.W.3d 11, 23 (Ky. 2005).
Hearsay is an out-of-court statement offered into evidence as substantive proof
that-the matter ·asserted in the statement is true. KRE 80l(c). Here, the call
logs were introduced to prove a number Baker was known to use had called
Hudson an hour before his death. Hearsay is inadmissible unless it satisfies
the requirements of one of the exceptions laid out in our rules. KRE -803.
Thus, even properly authenticated documents offered into evidence for the
truth of matter asserted therein must qualify under an exception to the
hearsay rule.
KRE 803 provides exceptions to the general rule against hearsay.
Specifically, KRE 803(6) exempts:
Records of regularly conducted activity. A memorandum, report, record, .or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time ·by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business a~tivity, and if it was the regular practice of that business activity to make the memorandum, ·report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the· method or circumstances of preparation indicate lack of trustworthiness.
The· call logs at issue herein fall under this exception as '·'records of regularly
conducted activity." However, the rule goes on to require the testimony of the
custodian of the records. In the present case, neither a custodian of the call
logs nor any other qualified witness testified at Baker's trial in compliance with
14 )
the rule.2, Absent the testimony of the· records' custodian or authentiCation
pursuant to KRE 902(11), the call logs were inadmissible hearsay. Therefore,
the trial court abused its discretion in admitting the call J.ogs into evidence.
The next step of our analysis is to. determine if the trial court's
evidentiary error requires reversal of Baker's conviction. An "error may be
deemed harmless if the reviewing court can say with fair assurance that the • I
' judgment was not substantially swayed by the error." Winstead v.
Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (citing Kotteakos v. United
· States, 328 U.S. 750 (1946)). The call logs served only to show that Baker had
called Hudson's phone an hour before Hudson was murdered-·not to offer
substantive proof he was Hudson's killer. On the other hand, Williams's
testimony placed Baker at the scene of the crime, Hart placed him in the
apartment with Hudson moments ' before Hudson's murder; ' witnesses testified
Baker admitted to the murder; Baker gave Williams details about the crime
that were not released to the- public, Sl,lch as the fact that Hudson was shot. in . the back of the head in his kitchen; Baker's DNA was found on a cap found
lying next to Hudson's body; Williams testified Baker was running from
Hudson's apartment with money ?Jld marijuana around the time of the
murder; and Copa~s-Chep.g testified he told her he had "done something'' and if
anyone found out, he may never see her· or their child again. Giveri the volume
2 Had the records been properly certified pursuant to KRE 902(11), the custodian would not have been required to testify pursuant to KRE 803(6)(A). As noted, that is not the case here.
/ of evidence against Baker, we hold that the trial court's error in admitting the
call logs was harmless, as we "can say with fair assurance that the judgment
was not substantially swayed by the error."· Id.
2. ·Copass-Cheng testimony regarding phone number When the Commonwealth recalled Susan Copass-Cheng (the mother of
Baker's child) to identify a number from which Baker had c.alled her in the
past, Baker.!s trial counsel objected. Baker now argues the trial court abused
its discretion in allowing the Commonwealth to recall Copass-Cheng and that
its question exceeded the scope allowed of a rebuttal witness. Since we have
already held the trial court erred in admitting the call logs, there is no need to
delve further into testimony concerning them. The purpose of Copass-Cheng's
recall was merely to identify the number found in the logs as being a number
from which Baker had called her in the past. Because the trial court erred in ' 1
admitting the call logs into evidence, it likewise erred in allowing Copass-
Cheng's testimony based upon this inadmissible hearsay found in the logs.
However, while this amounts to error, such error is harmless for the reasons
expounded upon above. At most, Copass-Cheng's testimony linked a numb~r
to Baker which (along with a host of other numbers) called Hudson's phone
leading up to his murder. Considering the other, evidence adduced at trial, we
"can say with fair assurance that the judgment was not substantially swayed
by the error." Id.
16 C. Directed Verdict Baker next argues the trial court erred in failing to grant directed
verdicts as to his tampering with physical evidence anq possession of a
handgun by a convicted felon charges. Baker argues he preserved the error by
making a general motion for a directed verdict of acquittal at the conclusion of I .
the Commonwealth's case-in-chief, and renewing that motion both at the
conclusion of his case and at the conclusion of the Commonwealth's rebuttal
evidence. That motion was based on an alleged general lack of evidence Baker
committed any of the charged crimes. However, this Court has held that in
order to preserve a motion for directed verdict, the motion must not be generic:
"[w]e have ... held that the motion must state specific grounds for relief and
should identify which elements of the alleged offense the Commonwealth has
failed to prove. Merely moving summarily for a directed verdict or making a
general assertion of insufficient evidence is not enough." Commonwealth v.
Jones, 283 S.W.3d 665, 669 (Ky. 2009). Therefore, Baker failed to preserve
this issue by making a general motion for directed verdict based as to all the (
charges against hiin.
While the issue was unpreserved, Baker requests palpable error review
pursuant to RCr 10.26. "Palpable error affects the substantial rights of the
party and results in manifest injustice. Furthermore, an appellant claiming
palpable error must show that the error was more likely than ordinary error to
have affected. the jury." Boyd v. Commonwealth, 439 S.W.3d 126, 129-30 (Ky.
2014). The "required showing is probability of a.differentresult or error so
17 fundamental as to threaten a defendant's entitlement to due process of law."
Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
When reviewing a challenge to a trial court's denial of a motion for
directed verdict, this Court construes all evidence in the light most favorable to
the Commonwealth. Jones, 283 S.W.3d at 668. In doing so, we must draw all
fair and reasonable inferences from the evidence in favor of the
Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). '
"It should be remembered that the trial court is certainly authorized to direct a
verdict for the defendant if the prosecution produces no in.ore than a mere
scintilla of evidence. Obviously, there must be evidence of substance."
Commonwealth v. sa"whill, 660 S.W.2d 3, 5 (Ky. 1983). "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 guilt, only then the defendant is entitled
to a directed verdict of acquittal." Id.
If we hold that "the trial court did, in fact, err by failing to direct a verdict
of acquittal, that failure would undoubtedly have affected Appellant's
substantial rights. And, we likewise observe that the trial result necessarily
would have been ,differeht if the trial court had directed a verdict in Appellant's.
favor." Schoenbachler v. Commonwealth, 95 S.W.3d 830, 837 (Ky. 2003).
Therefore, if we hold the trial court erred il). failing to direct a verdict, such
err:or is palpable.
18 1. T~mpering with physical evidence Baker first alleges that the trial court erred in failing 'to direct a verdict
on his tampering with physical evidence charge. The jury instru~tions for that
. charge read:
You will find [Baker] guilty under the 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 the 25th day of August, 2007, [Baker] concealed clothing and/ or a handgun which he believed was about to be produced or used in an official proceeding; ·
AND
(B) That he did so with the intent to impair its verity or availability in the official proceeding.
Both parties acknowledge there was no .evidence whatsoever adduced at
trial regarding Baker's concealment of clothing. Therefore, the Commonwealth
bore . the burden of producing more than a mere . scintilla of evidence that Baker
.concealed a handgun, which he believed would be used in an official
proceeding, and that he did so to prevent its use at the proceeding. Baker
argues the Commonwealth failed. to meet this burden. We agree.
Charles Evans, Jr. testified that, on the night of Hudson's murder, he
saw a man running out of the apartment complex holding a t-shirt which
appeared to be covering something. Evans neither identified Baker as the man
he saw running nor testified that he saw a gun. This testimony does not
amount to "more than a mere scintilla of evidence" or "evidence of substance"
required by Sawhill, 660 S.W.2d at 5.
19 Furthermore, in Mullins v .. Commonwealth, 350 S.W.3d 434; 442 (Ky.
2011), this Court held, "walking away from the scene with the gun is not
enough to support a tampering charge without evidence of some additional act
demonstrating an intent to conceal." Therefore, even had Evans both identified
Baker and testified that he saw him leave the scene with the firearm, it would
not be enough to support the tamp~ring with physical evidence conviction.
The other testimony concerning Baker's alleged tampering came from
Williams. When the Commonwealth asked Williams if she had seen the gun on
the night of Hudson's murder, she said, "I think he kept it concealed .. It just
wasn't out." When the Commonwealth asked Williams if she knew what
happened to the gun, she said "I think his cousin took it." Williams provided
· no basis as to why she believed Baker's cousin took the handgun, nor did she
state that she had any personal knowledge of what had happened to the gun or ,
that Baker had told her his cousin had taken it. Williams denied that Baker's
cousin was at the residence they went to after the murder. When the
Commonwealth asked if she remembered "when, if at all Gary came to" the
house where she and Baker were, she replied "[m]aybe the next day." Just like
Evans's testimony, Williams's statements do not amount to "more than a me:re
scintilla of evidence" or "evidence of substance." Therefore, even viewing the \,_
evidence in a light most favorable the Commonwealth, the trial court should
.have directed a verdict as to the tampering with physical evidence charge.
Because the trial court erred in failing to direct a verdict as to this " charge, the error was palpable. See Schoenbachler, 95 S.W.3d at 837. Thus,
20 we reverse and vacate Baker's conviction and corresponding sentence for
tampering with physical evidence.
2. Possession of a handgun by a convicted felon Appellant next argues that the tria~ court erred by failing to ,direct a
verdict on the possession of a .handgun by a convicted felon charge for many of
the same reasons it should have directed a verdict on the tampering charge.
While Baker stipulated as to his felony conviction, he argues the
Commonwealth failed to prove that he ever possessed a handgun in order to
prove the elements of this charge. We disagree.
Evans's testimony that he saw someone (whom he did not identify as
Baker) concealing some item (which he did not identify as a handgun) under a
t-shirt does not ~eet the Sawhill requirements. However, everi though
Williams testified that she did not see Baker with a gun that night, she also
testified Baker told her he shot Hudson in the back of the head-and Hudson
was, in fact, shot in the back of the head. By the time the jury considered the
possession of a handgun by a convicted felon charge, it had already found that
Baker had murdered Hudson. Viewing the circumstances in the light most
favorable to the Commonwealth, a reasonable juror could believe Baker
possessed a handgun based upon the circumstances of Hudson's death and
Williams's testimony regarding Baker's statement to her that he had shot
Hudson. Therefore, the trial court did not err in failing to direct a verdict as to
this charge.
21 D. Facilitation Instruction Baker submitted proposed jury instructions to the trial court containing
a lesser-induded offense instruction on criminal facilitation as to the murder
and robbery charges. He argues the trial court erred in failing to give provide
those instructions to the jury.
This Court reviews a trial court's refusal to give a lesser-included offense
instruction under the 'reasonable juror' standard set out in Allen v.
Commonwealth:
[W]e review a trial court's decision not to give a criminal offense jury instruction under the same "reasonable juror" standard we apply to the review of its decision to give such an instruction. See Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). Construing the evidence favorably to the proponent of the instruction, we ask whether the evidence would permit a reasonable juror to make the finding the in~truction authorizes. We typically do not characterize our review under this standard as either de nova or for abuse of discretion ... ·. In this context, the characterization makes little difference and so the inconsistency is more apparent than real .... Regardless of the characterization, however, the "reasonable juror" is the operative standard, in the appellate court as well as in the trial court.
338 S.W.3d 252, 255 (Ky. 2011). Therefore, we construe the evidence most
favorably to the proponent of the instruction and "ask whether the evidence
. would permit a reasonable juror to make the finding the instruction
authorizes." 'Id.
The trial court has the duty in a criminal case "to prepare and give
instructions on the whole law of the case, and this rule requires instructions
applicable to every state of the case deducible or supported to any extent by the
testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999).
22 However, "[a]n instruction on a lesser-included offense is appropriate if and
only if on the given evidence a reasonable juror could entertain reasonable
doubt of the defendant's guilt on the greater charge, bu~ believe beyond a· ·
reasonable doubt that the defendant is guilty of the lesser offense."_ Skinner v.
Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993).
Turning to the specifics of this case, "[a] _person is guilty of criminal
facilitation when, acting with knowledge that another person i~ committing or
intends to commit a crime, he engages in conduct which knowingly provides
such' person with means or opportunity for the commission of the' crime and
which in fact aids such person to commit the crime." KRS 506.080.
"Facilitation reflects the mental state of one who is 'wholly indifferent' to the
actual completion of the crime." Perdue v. Commonwealth, 916 S.W.2d 148,
160 (Ky. 1995), overruled on other grounds by Huddleston v. Commonwealth, ---
, S.W.3d---, No. 2016-SC-000673-MR, 2018 WL 898700 (Ky. Feb. 15, 2018).
Baker had made these same claims in his first trial, in which the jury
could not reach a decision regarding his guilt, but acquitted his co-defendant,
Duzuan Lester. Baker would have us believe that, since Lester's girlfriend was
driving the car (in which he just happened to ·be riding), a reasonable juror
· could believe he was indifferent to the crimes'. He insist~ a reasonable juror
could infer from the evidence that Baker could have had the gu:r:i going into
Hudson's apartment, given it to Lester, who used it to shopt Hudson, and then·
.retrieved the weapon and carried it back to the car. Here, however, "given
evidence a reasonable ju~or could [not] entertain reasonable doubt of the
23 defendant's guilt on the. greater charge, but believe beyond a reasonable doubt
that the defendant is guilty of the lesser offense." Skinner, 864 S.W.2d at 298.
Specifically, the evidence adduced at trial included testimony of individuals
who said Baker told them he killed Hudson. Williams testified Baker told her
he had shot Hudson in the back of the head in the kitchen of his apartment.
Williams further testified that, as Baker ran back to the getaway car, moriey
and marijuana were falling from his pockets from the robbery. Baker argues
the jury C?ould have disbelieved these witnesses. However, he did not present
an alternative theory regarding Hudson's murder and robbery. There was no
evidence that Baker was indifferent to the murder and robbery. As such, based
on the evidence at trial, a reasonable jur~'r could not have found Baker guilty of
facilitating, but not committing, these crimes.
For these ~easons, we affirm the trial court's ruling as to the facilitation
instructions.
E. Cumulative Error Baker's final argument is that cumulative error rendered his trial
fundamentally unfair. "We have found cumulative error only where the
individual errors were themselves substantial, bordering, at least, on the
prejudicial." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). That
- is not the case herein. While we found error in the trial court's admission of
the call logs, as they were inadmissible hearsay, that error did not "border on
the prejudicial." Furthermore, the only other error this· Court found was
regarding Baker's tampering with physical evidence charge-. Given the gravity
24 of the other charges against him, this Court does not believe that error-which
was entirely limited to the tampering charge-impacted Baker's other
convictions or rendered his trial fundamentally unfair.
III. CONCLUSION For the foregoing reasons, we reverse and vacate Baker's conviction and I corresponding sentence for tampering with physical evidence. We affirm the I
trial court as to the remainder of the charges and their corresponding
. sentences.
All sitting. All concur.
COUNSEL FOR APPEL~ANT:
Daniel T. Goyette Louisville Metro Public Defender
Cicely Jaracz Lambert Chief Appellate Defender Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Susan Roncarti Lenz Assistant Attorney General
Jason Bradley Moore Assistant Attorney .General