RENDERED: AUGUST 14, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0056-MR
ISAIAH BROWN APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE BRIAN C. EDWARDS, JUDGE NO. 22-CR-000178-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
A Jefferson County jury found Isaiah Brown (“Brown”) guilty of murder
(complicity) and robbery in the first degree (complicity). It fixed his punishment
at twenty-two years’ imprisonment for murder and ten years for first-degree
robbery and recommended that those sentences run concurrently. The
Jefferson Circuit Court sentenced Brown accordingly. Brown now appeals as a
matter of right and challenges his convictions. See KY. CONST. § 110(2)(b).
Having reviewed the record, the arguments of the parties, and the applicable
law, we affirm the Jefferson Circuit Court.
I. BACKGROUND
Fatima Alabusalim lived with her family in Louisville, Kentucky, when
she began dating Rayshawn Tucker in the fall of 2018. Soon thereafter, Alabusalim met Tucker’s cousin, Isaiah Brown. Alabusalim would frequently
smoke marijuana with Tucker and Brown.
At that time, Alabusalim also began dating DaMani Dulaney. Dulaney
also lived and worked in Louisville. At trial, Alabusalim alleged that Tucker was
bothered by her relationship with Dulaney and that as a result, Tucker
formulated a plan to use Alabusalim to set Dulaney up for a robbery. According
to their plan, Alabusalim would pretend to go out on a date with Dulaney.
Brown and Alabusalim both helped to plan the robbery, though Alabusalim
claimed that she only assisted because she was scared.
On January 3, 2019, Alabusalim exchanged a series of text messages
with her friend Shamia. In these text messages, Alabusalim stated to Shamia
that Tucker and Brown had her “setting people up” to rob.
On January 6, 2019, Dulaney borrowed his mother’s Kia Optima and
picked up Alabusalim for what he believed to be a date. The pair went for a
walk on the pedestrian bridge connecting Louisville and Southern Indiana
before going to dinner at a local restaurant. Alabusalim, in communication
with Tucker, then directed Dulaney to take her to a park near her house, where
the two sat in Dulaney’s vehicle for approximately thirty to forty-five minutes
before Tucker and Brown arrived.
At trial, the Commonwealth introduced certified business records into
evidence from Verizon Wireless and AT&T for the mobile phones Tucker and
Brown used in the relevant time period. Tucker’s phone, beginning in “702,”
was on the Verizon Wireless network. Brown’s phone, beginning in “356,” was
2 on the AT&T network. The Commonwealth introduced the following text
messages from the evening of the incident:
[6:10 p.m.] Tucker: Ets wat i was rey tell u [6:10 p.m.] Tucker: She said bruh got money on em and shit [6:11 p.m.] Tucker: Im wit dis bitch rn so i cant do nun [6:11 p.m.] Brown: Wya [6:12 p.m.] Tucker: Crib [6:12 p.m.] Tucker: Im comin out newburg to drop her off in like a hour and a half prolly [6:14 p.m.] Brown: I’ma jus chill itl take me that long to get out there [6:14 p.m.] Tucker: Yea jus stay der I gotta come out der anyway [7:10 p.m.] Brown: U ready bra [7:10 p.m.] Brown: Dudes tryna shake [7:13 p.m.] Brown: We gotta hurry [8:29 p.m.] Brown: I’m bout to go to stop and go if u otw
The Commonwealth also produced records from cell phone towers that showed
Tucker’s phone traveling toward Newburg Road, where Brown lived, at
approximately 8:30 p.m. The cell site data then showed Tucker and Brown’s
phones traveling toward the park where Dulaney and Alabusalim were located.
Tucker and Brown arrived at the park around 9:00 p.m. and exited their
vehicle. Tucker approached the passenger side door of Dulaney’s vehicle while
Brown walked to the driver’s side. Brown used a gun to break the driver’s side
window. Tucker pulled Alabusalim from the passenger seat of Dulaney’s vehicle
and Alabusalim took refuge in Tucker’s vehicle. At trial, Alabusalim testified
that she heard a single gunshot, and that as she, Brown, and Tucker left the
scene together in Tucker’s vehicle, Brown stated, “I shot him in the shoulder.”
The next morning, a bystander called 911 to report that Dulaney’s
vehicle was still running, lodged in the park shrubbery, and that an individual
(Dulaney) appeared to be deceased inside the vehicle. Emergency responders
3 declared Dulaney deceased at the scene. Dr. Amy Burrows, the assistant
Medical Examiner, testified that Dulaney had died from a single gunshot
wound to the back. Dr. Burrows testified that the gunshot wound had caused
Dulaney to bleed to death. However, due to the nature of the injury, Dr.
Burrows stated that it could have taken anywhere from several minutes to an
hour for Dulaney to succumb to the wound.
The Louisville Metro Police Department’s Crime Scene Unit (“CSU”)
collected evidence and photographed the scene. Importantly, CSU recovered a
Cash America pawn ticket with Rayshawn Tucker’s name on it and a single
spent 9mm shell casing on the ground. Law enforcement officers also
canvassed the surrounding neighborhood and spoke with Alabusalim’s mother,
who told them that Alabusalim and Tucker were together.
Immediately following the shooting, Tucker, Brown, and Alabusalim
traveled to Tucker’s grandparent’s house in Frankfort, Kentucky. While on the
way to Frankfort, Tucker directed Alabusalim to call her mother and inform her
that she and Dulaney had been robbed by two unknown individuals.
The trio then returned to Louisville the next day, and Alabusalim spoke
with Detective Timothy O’Daniel. Alabusalim testified that she gave a false
statement to Detective O’Daniel. At this time, Alabusalim told Detective
O’Daniel that Dulaney trafficked Xanax and that he had been killed by people
he knew. Alabusalim also told him that she fled when the alleged perpetrators
arrived and had Tucker pick her up. Detective O’Daniel testified that he did not
4 believe Alabusalim’s story given that he had found a pawn receipt belonging to
Tucker at the scene.
On January 9, 2019, Tucker, Brown, and Alabusalim drove to Pensacola,
Florida, and stayed with Brown’s father. While there, Alabusalim cooked,
cleaned, and cared for Brown’s younger siblings. Alabusalim testified that
Tucker abused her, and that she was afraid to leave. On January 16, 2019,
Tucker drove Alabusalim to Louisville, Kentucky, to have her withdraw funds
from her Fifth Third bank account. The pair then returned to Pensacola and
remained there for approximately three months.
In various text messages and phone calls, Alabusalim’s family begged her
to return to Louisville and tell the truth. In April 2019, Alabusalim left Brown’s
father’s house and went to a friend’s house. Alabusalim’s mother drove to
Florida, picked her up, and brought her back to Louisville.
After returning to Louisville, Alabusalim again spoke to Detective
O’Daniel. During this conversation, Alabusalim denied that the incident was
“set up,” but told Detective O’Daniel that she had been directed to inform
Tucker and Brown when she and Dulaney arrived at the park. Alabusalim
further stated that Tucker had pulled her out of Dulaney’s car, placed her in
Tucker’s vehicle, and that she then “blacked out” and missed the shooting.
Alabusalim surrendered her cell phone to Detective O’Daniel for an extraction
of its data.
Alabusalim later gave a third statement to law enforcement in which she
admitted that she had lied about “blacking out” and missing the shooting.
5 During this statement, Alabusalim also conceded that Dulaney had not been
involved in trafficking Xanax.
Brown was indicted, with co-defendants Rayshawn Tucker and Fatima
Alabusalim, for the murder and first-degree robbery of DaMani Dulaney. Both
Tucker and Alabusalim entered into plea agreements, and Brown was the sole
defendant at trial.
The jury found Brown guilty of murder and first-degree robbery. In turn,
the jury fixed Brown’s punishment at twenty-two years for murder and ten
years for the first-degree robbery. It recommended these sentences be served
concurrently, and the trial court sentenced Brown consistently with that
recommendation. This appeal followed.
Additional facts will be developed below as necessary.
II. ANALYSIS
On appeal to this Court, Brown alleges the trial court made various
errors which require reversal. First, he alleges that the trial court erred when it
permitted alleged hearsay testimony attributing cell phone number “356” to
Brown, as well as other numbers to various third-party non-witnesses. Second,
Brown argues that the text messages from the “356” number should have been
excluded because the Commonwealth failed to establish an adequate
foundation for their introduction as Brown’s statements. Third, Brown
contends that the trial court erred in permitting Detective O’Daniel to comment
on the truthfulness of Alabusalim’s statements to police. Fourth, Brown alleges
that the trial court erroneously admitted text messages from Tucker to Brown
6 under the co-conspirator exception to the hearsay prohibition. Finally, Brown
claims that the trial court deprived him of a fair trial under the cumulative
error doctrine. We address each of Brown’s arguments in turn.
A. While the trial court erred in permitting Detective O’Daniel to rely on the RTCC report in identifying the “356” number as belonging to Isaiah Brown and other cell phone numbers contained within the “356” call logs as belonging to other unnamed individuals, the error was harmless.
a. Identification of the “356” Phone Number as Belonging to Brown
At trial, the Commonwealth sought to admit evidence from various
separate phone numbers. It began by calling Deborah Lang, the Louisville
Metro Police Department’s tactical intelligence analyst, who provided testimony
concerning Real Time Crime Center (“RTCC”) “workups.” RTCC is a branch of
the Louisville Metro Police Department that analyzes public surveillance video,
intelligence, and data from several sources to aid law enforcement. Lang
testified that law enforcement officers frequently request a “workup” from RTCC
when pursuing potential criminal suspects. She explained that a “workup”
involves providing the officer with a person’s name, date of birth, driver’s
license number, potential addresses, potential phone numbers, cars registered
to that person, social security number, social media, and criminal records.
Frequently, RTCC obtains the majority of this information through internet
searches, but, when necessary, they also use various databases, including
property valuation administration databases and a database called LexisNexis
Accurint (“Accurint”). Accurint is an investigative technology that expedites the
identification of people and their personal information through its access to a
7 comprehensive database of public records. RTCC utilizes Accurint to identify
individuals associated with phone numbers.
The Commonwealth then called Detective O’Daniel to the stand. He
testified that he frequently uses RTCC as a tool in his investigations. Detective
O’Daniel testified that after finding a pawn ticket at the scene of the crime with
Tucker’s name on it, he contacted RTCC and requested Tucker’s phone
number. RTCC identified a “702” phone number as belonging to Tucker. After
receiving this information, Detective O’Daniel then reached out to the carrier
associated with that phone number, Verizon Wireless, to obtain Tucker’s phone
records. Verizon Wireless’s records included a recent history of
communications, cell site data indicating the approximate location of the
phone, and the content of incoming and outgoing text messages. At trial, the
Commonwealth introduced proper certification of the records, and the trial
court admitted them pursuant to Kentucky Rule of Evidence (“KRE”) 803(6),
the business records exception to the hearsay rule.
Detective O’Daniel testified that in his review of the Verizon Wireless
records associated with Tucker, he discovered that prior to the shooting,
Tucker was communicating with a “356” number about robbing an individual.
In turn, Detective O’Daniel again contacted RTCC to determine the owner of the
“356” number. RTCC, using the Accurint database, identified the “356” number
as belonging to Isaiah Brown. This phone number was on the AT&T network.
The Commonwealth also admitted certified AT&T records for the “356” phone
number. However, these records did not list Brown as the owner of the “356”
8 phone account; instead, the account was opened in the name of a barbeque
business located next door to Brown’s address on a residential street. Detective
O’Daniel testified that the listing of the barbeque business as the owner of the
“356” phone number was unsurprising, as, in his investigative experience,
individuals often use false names on their phone records.
On appeal, Brown argues that the Accurint-provided information in the
RTCC “workup” identifying the “356” number as belonging to him should have
been excluded as impermissible hearsay. He properly preserved this issue by
objecting to Detective O’Daniel’s testimony that the telephone number belonged
to Brown. As a result, we review this issue under the abuse of discretion
standard. “Rulings 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).
Pursuant to KRE 801(c), “‘[h]earsay’ is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” “Hearsay is not admissible except as
provided by these rules or by rules of the Supreme Court of Kentucky.” KRE
802. The rationale underlying the prohibition against hearsay is “a fear about
the reliability of in-court testimony about out-of-court statements when the
proponent is attempting to use the statements as substantive evidence in the
9 case.” Edward J. Imwinkelried, Evidentiary Foundations § 10.02[1] (11th ed.
2020). The exceptions to the hearsay rule exist to accommodate “situations
where it is impossible or impractical to present an actual witness, yet the
proffered necessary evidence is inherently trustworthy under the
circumstances.” 5 John Henry Wigmore, Evidence § 1420, at 251 (rev. ed.
1974).
Here, the Commonwealth introduced text messages between the “702”
number and the “356” number that it had received in certified business records
from Verizon Wireless and AT&T. Brown does not contest the admissibility of
these records. Instead, his issue lies squarely with Detective O’Daniel’s reliance
on the RTCC “workup,” which was not admitted as an exhibit, in concluding
that the “356” number belonged to Brown. Importantly, the “workup” identified
Brown as the owner based upon information that it had obtained through the
third-party data server, Accurint. A prior statement that a phone number
belongs to a certain individual would generally constitute hearsay as it is an
out of court statement offered to prove the truth of the matter asserted, KRE
801(c), and would therefore be excluded under KRE 802 unless one of the
exceptions to the hearsay rule applies.
Typically, phone numbers are attributed to a specific individual using
certified business records obtained directly from the carrier. Here, the
Commonwealth followed this practice and admitted the phone carrier records
associated with the “702” (Verizon Wireless) and “356” (AT&T) phone numbers
in question. However, because the AT&T records did not reliably identify the
10 owner of the “356” number, Detective O’Daniel testified that he believed the
“356” phone number to be associated with Brown based upon information
forwarded to him by RTCC and supplied by the Accurint phone database. On
appeal, the Commonwealth argues that the information from Accurint was
admissible under KRE 803(17), the market reports exception. KRE 803(17)
exempts from the hearsay prohibition: “Market quotations, tabulations, lists,
directories, or other published compilations, generally used and relied upon by
the public or by persons in particular occupations.” The application of this
hearsay exception is a matter of first impression for this Court.
KRE 803(17) bears substantial similarity to its federal counterpart,
Federal Rule of Evidence (“FRE”) 803(17). KRE 803(17) only differs from FRE
803(17) in that KRE 803(17) includes “tabulations.” 1 Due to the similarity in
language and policy between the two exceptions, this Court looks to federal
courts’ interpretation and application of FRE 803(17) for guidance in
construing KRE 803(17).
The market reports exception applies to documents that “recite
established factual information” of the same sort as “market quotations,”
“lists,” and “directories.” Cisson v. C.R. Bard, Inc. (In re C.R. Bard, Inc., MDL. No.
2187, Pelvic Repair Sys. Prods. Liab. Litig.), 810 F.3d 913, 924 (4th Cir. 2016).
In particular, the exception allows various compilations of objective facts, such
as “price lists, stock market and futures market quotations (published in
1 FRE 803(17) exempts from hearsay “[m]arket quotations, lists, directories, or
other compilations that are generally relied on by the public or by persons in particular occupations.” 11 newspapers of general circulation or specialty journals) . . . phone directories,
mortality tables, registers of such things as animals and ships, and
compilations of estimated value of commonly traded items like used cars,
comic books, postage stamps, and similar items.” 4 CHRISTOPHER B. MUELLER &
LAIRD C. KIRKPATRICK, Federal Evidence § 8:101.
The exception does not account for “evaluative conclusions,” id., or
statements that go beyond the recitation of “relatively straightforward objective
facts.” 2 BROUN ET AL., McCormick on Evidence § 321, at 587 (Robert P.
Mosteller ed., 8th ed. 2020). Instead, the exception applies to “readily verifiable
information such as telephone directories, price lists and the like,” not to
“statements that correctly can be classified as directions, opinions,
suggestions, and recommendations.” Garvey v. O'Donoghue, 530 A.2d 1141,
1145 (D.C. 1987).
As with other hearsay exceptions, the admissibility of market reports and
similar commercial publications under KRE 803(17) is predicated on the two
factors of necessity and reliability. 5 JACK B. WEINSTEIN & MARGARET A. BERGER,
Weinstein’s Federal Evidence § 803.19[1], at 803–131 (Joseph M. McLaughlin
ed., 2d ed. 2014). Thus, in determining whether evidence is admissible under
KRE 803(17), the inquiry does not end after concluding that the proposed
evidence comports with the plain language of the Rule, i.e., that it is purely a
recitation of “relatively straightforward objective facts” and does not contain
“evaluative conclusions.” After surpassing this hurdle, the proponent of the
12 evidence must then lay the requisite foundation as to necessity and reliability
of the evidence for admission under KRE 803(17).
Here, the admission of the Accurint data is considered necessary
because it would be difficult or impracticable to locate and summon every
person who contributed to its telephone number identification database. See
WEINSTEIN, supra, § 803.19[1]. The question of Accurint’s reliability, however,
presents a more difficult question. The advisory committee’s note to FRE
803(17) states that the “basis of trustworthiness is general reliance by the
public or by a particular segment of it, and the motivation of the complier to
foster reliance by being accurate.” “Reliability is based, at least in part, on
evidence that the compilers ‘stake their business or public reputations on the
accuracy’ of a compilation.” United States v. Arrington, 634 F. Supp. 3d 57, 62
(W.D.N.Y. 2022) (internal citations omitted). Whether market reports and
similar commercial publications meet “the requisite standard of
trustworthiness entitling [them] to hearsay exemption must be determined on a
case-by-case basis.” See WEINSTEIN, supra, § 803.19[2][a].
Here, RTCC employee Deborah Lang testified that the intelligence branch
routinely relies on Accurint data in formulating reports. Detective O’Daniel also
testified that he frequently relies on the information forwarded to him in RTCC
reports. However, the Commonwealth chose not to offer the underlying
Accurint report for admission into evidence. While we acknowledge that KRE
803(17)’s broad language requires only that the evidence be “generally used
and relied upon by the public or by persons in particular occupations,” it is
13 implicit in the Rule that the underlying report be admitted for trial courts’
reliability assessment. Because the Accurint report was not admitted in this
case, it is impossible for this Court to determine its reliability with sufficient
certainty. Without the admission of the underlying report, Lang and Detective
O’Daniel’s testimonies alone are incapable of establishing Accurint’s reliability,
and we simply cannot definitively determine whether Accurint may be
characterized as a telephone directory such that its phone number
identification entries would be admissible under KRE 803(17). As a result, we
agree with Brown that the trial court erred in allowing Detective O’Daniel to
attribute the “356” phone number to Brown based upon information from
RTCC and Accurint.
However, per Kentucky Rule of Criminal Procedure (“RCr”) 9.24, this
Court “will deem an error in the admittance of evidence harmless ‘if [it] can say
with fair assurance that the judgment was not substantially swayed by the
error.’” Saxton v. Commonwealth, 671 S.W.3d 1, 14 (Ky. 2022) (quoting Brown
v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010)). “Our inquiry is not simply
‘whether there was enough evidence to support the result, apart from the
phase affected by the error. It is rather, even so, whether the error itself had
substantial influence. If so, or if one is left in grave doubt, the conviction
cannot stand.’” Brown, 313 S.W.3d at 595 (quoting Kotteakos v. United States,
328 U.S. 750, 765 (1946)).
Here, we are assured that the judgment was not substantially swayed by
the error merely because of the detective’s testimony attributing the “356”
14 phone number to Brown. There was ample other circumstantial evidence tying
the “356” phone number to Brown. The AT&T records obtained for the “356”
number listed the owner as a barbeque restaurant, which happened to be
located right next door to Brown’s own residence. Further, the cell-site location
records detailing the movements of the “702” and “356” numbers were telling.
The data revealed that the “702” and the “356” numbers traveled to and from
the scene of the murder together. This was supported by Alabusalim’s
testimony, in which she stated that Tucker and Brown arrived at the crime
scene together. Additionally, certified records from Google indicated that
Tucker had searched for directions to the street where Brown’s residence was
located on the night of the incident.
Following the murder, the cell site data then showed the two phone
numbers together in Pensacola, Florida. This was consistent with Alabusalim’s
testimony that she, Tucker, and Brown fled there after the shooting. Detective
O’Daniel provided further corroborating evidence when he testified that during
his investigation, he was alerted that Brown had sold items at a pawn shop in
Pensacola. At Detective O’Daniel’s request, an Escambia County sheriff’s
deputy obtained the items Brown had sold and documentation proving that
Brown had presented his driver’s license and signed a document. This evidence
further confirmed that Brown’s location was consistent with the location of the
“702” and “356” phone numbers provided by the cell site data. Finally, the
Commonwealth introduced photographic evidence taken during the relevant
period of Brown in front of a sign with the Pensacola State College logo.
15 These circumstantial facts, when taken together, clearly support an
inference that Brown was the owner of the “356” phone number. Given the
weight of the other evidence presented by the Commonwealth tying Brown to
the “356” number, we cannot say that the admission of Detective O’Daniel’s
testimony as to the data supplied by RTCC and Accurint “substantially swayed”
the judgment in this case. Saxton, 671 S.W.3d at 14 (quoting Brown, 313 at
595). The error was harmless.
b. Identification of Other Phone Numbers Brown additionally contends that the trial court erred in admitting
Detective O’Daniel’s testimony that other cell phone numbers contained within
the “356” call logs belonged to Brown’s brother and another individual alleged
to be Brown’s brother. Detective O’Daniel based this conclusion upon
information forwarded to him by RTCC and supplied by the Accurint phone
database. Because this was the same method employed above in attributing
the “356” phone number to Brown, our holding above applies here with equal
force. The only difference lies in the fact that Brown failed to preserve this
issue, making it subject to palpable error review pursuant to RCr 10.26 rather
than the abuse of discretion standard. Potts v. Commonwealth, 172 S.W.3d
345, 348 (Ky. 2005). Under this rule, an unpreserved error may be noticed on
appeal only if the error is “palpable” and “affects the substantial rights of a
party,” and even then, relief is appropriate only “upon a determination that
manifest injustice has resulted from the error.” RCr 10.26. In general, a
palpable error “affects the substantial rights of a party” only if “it is more likely
16 than ordinary error to have affected the judgment.” Ernst v. Commonwealth,
160 S.W.3d 744, 762 (Ky. 2005). An unpreserved error that is both palpable
and prejudicial still does not justify relief unless the reviewing court further
determines that it has resulted in a manifest injustice, or unless the error so
seriously affected the fairness, integrity, or public reputation of the proceeding
as to be “shocking or jurisprudentially intolerable.” Martin v. Commonwealth,
207 S.W.3d 1, 4 (Ky. 2006).
Brown fails to specifically allege what manifest injustice may have
occurred as a result of the detective’s testimony. Although there was limited
other circumstantial evidence tying the phone numbers to Brown’s brother and
Brown’s “suspected brother,” the impact of this testimony was de minimis. It
was merely a brief statement and served no other purpose than to provide
context for Brown’s non-incriminating text messages. Therefore, we cannot say
that the admission of this testimony resulted in a manifest injustice, or that
the admission of this testimony so seriously affected the fairness, integrity, or
public reputation of the proceeding as to be “shocking or jurisprudentially
intolerable.” Id.
B. The trial court did not abuse its discretion in admitting the text messages for the “356” phone number. Brown argues that the Commonwealth failed to establish a sufficient
foundation for the introduction of the text messages from the “356” number as
his own statements. He properly preserved this issue in objecting to Detective
O’Daniel’s testimony that the telephone number belonged to Brown. As a
result, we review this issue under the abuse of discretion standard. “Rulings
17 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, 889 S.W.2d at 783. “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” English, 993 S.W.2d at 945.
KRE 901(b)(4) states that authentication can occur through the
“appearance, contents, substance, internal patterns, or other distinctive
characteristics [of the writing], taken in conjunction with circumstances.” This
rule is “flexible and far-reaching” in allowing circumstantial evidence to
authenticate a writing. Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky.
2010) (quoting LAWSON, The Kentucky Evidence Law Handbook § 7.05(5) (4th
ed. 2003)). The burden on the proponent of the evidence sought to be
authenticated is “slight” and “requires only a prima facie showing.” Ordway v.
Commonwealth, 352 S.W.3d 584, 593 (Ky. 2011) (citing Sanders, 301 S.W.3d at
501).
Here, the Commonwealth provided adequate circumstantial evidence and
clearly met its “slight” burden in establishing that the statements from the
“356” number were Brown’s statements. Id. The barbeque restaurant listed as
the owner of the “356” phone number in the AT&T records was located right
next door to Brown’s residence. The Verizon and AT&T cell site location records
showed that the “702” and the “356” numbers traveled to and from the scene of
the murder together. Alabusalim testified that Tucker and Brown arrived at the
crime scene together. Certified records from Google indicated that Tucker had
18 searched for directions to the street where Brown’s residence was located on
the night of the incident.
Further, the cell site data showed the two phone numbers together in
Pensacola, Florida, and there was evidence that demonstrated that Brown had
sold items at a Pensacola pawn shop. The Commonwealth also introduced a
photograph of Brown in front of a sign with the Pensacola State College logo.
This evidence corroborated Brown’s presence at the same location, at various
different points, as the “356” phone number.
All these circumstantial facts together support an inference that Brown
did, in fact, author the statements in the text messages. The Commonwealth
met the low threshold required for authentication, and the trial court therefore
did not abuse its discretion in admitting these text messages into evidence.
C. Although the trial court erred in allowing Detective O’Daniel to express his opinion as to the credibility of Alabusalim’s prior statements, the error did not result in manifest injustice. Brown concedes that this issue is unpreserved. Because this claim of
error is unpreserved, it is subject to palpable error review pursuant to RCr
10.26. Potts, 172 S.W.3d at 348. Under this rule, an unpreserved error may be
noticed on appeal only if the error is “palpable” and “affects the substantial
rights of a party,” and even then, relief is appropriate only “upon a
determination that manifest injustice has resulted from the error.” RCr 10.26.
In general, a palpable error “affects the substantial rights of a party” only if “it
is more likely than ordinary error to have affected the judgment.” Ernst, 160
S.W.3d at 762. An unpreserved error that is both palpable and prejudicial still
19 does not justify relief unless the reviewing court further determines that it has
resulted in a manifest injustice, or unless the error so seriously affected the
fairness, integrity, or public reputation of the proceeding as to be “shocking or
jurisprudentially intolerable.” Martin, 207 S.W.3d at 4.
Here, the alleged improper testimony occurred during the
Commonwealth’s examination of Detective O’Daniel:
Commonwealth: I want to talk about the significance of this corroborating evidence [Commonwealth Exhibit Nos. 57 and 58 showing Fatima Alabusalim and Rayshawn Tucker at a bank]. Det. O’Daniel: Yeah. So, uh, basically, I mean, we just—we try to corroborate evidence, um, and stories as people share them with us. And in this instance, it is Fatima [Alabusalim] and Rayshawn [Tucker] together but also in Louisville. Commonwealth: In Louisville, and what are they doing? Det. O’Daniel: They are at the bank. Commonwealth: And what are they doing at the bank? Det. O’Daniel: They’re either, I don’t recall, either depositing money or, uh, taking out cash. Commonwealth: Well, if Fatima [Alabusalim] testified that they were getting money out, any reason to dispute that? Det. O’Daniel: No. Commonwealth: Based on what you saw on the video. Okay? Do you agree? Det. O’Daniel: Yeah, I agree.
Following this exchange, the Commonwealth then elicited the following
testimony from Detective O’Daniel concerning Alabusalim’s conversations with
the detective:
Commonwealth: Let’s talk about the corroborating information. First of all, as far as the scene—broken glass. Was what she [Alabusalim] told you corroborated by the scene? Det. O’Daniel: Yes. Commonwealth: And was the scene corroborating her version of what happened? Det. O’Daniel: Yes. Commonwealth: In terms of the one shot fired—one shot fired. Det. O’Daniel: Yes, sir. 20 Commonwealth: Was that corroborated by both the scene and the autopsy? Det. O’Daniel: It was. Commonwealth: So, they corroborated each other? Det. O’Daniel: Yeah. Commonwealth: Fatima [Alabusalim] was corroborated? Det. O’Daniel: Yes. Commonwealth: In terms of her telling you that he was shot outside the car—the shell casing, the scene, the lack of shell casing, the lack of evidence inside the car. Was that confirming and corroborating of Fatima [Alabusalim]? Det. O’Daniel: Yes. Commonwealth: Her account about being on a “date.” Det. O’Daniel: Yes, sir. Commonwealth: Although she made it clear, or clearer that it was a bit of a ruse, right? Det. O’Daniel: Yes, sir. Commonwealth: Was that confirmed by Big Four Bridge? Det. O’Daniel: Yes. Commonwealth: Was that confirmed by her communications with DaMani [Dulaney] through Goodkid? Det. O’Daniel: Yes, sir. Commonwealth: Was it confirmed on BW3’s packages? Det. O’Daniel: Yes, sir. Commonwealth: The evidence and the information about the flight to Florida—in terms of—you have the pawn shop information already on Isaiah [Brown]. Det. O’Daniel: Yes, sir. Commonwealth: Did you already know he was in Florida? Det. O’Daniel: Yes, sir. Commonwealth: Did you have cell site information by that time— by April confirming he was in Florida? Had been in Florida right after this? Det. O’Daniel: Yes. Commonwealth: Did Fatima [Alabusalim] corroborate all that? Det. O’Daniel: She did. Commonwealth: Again—did this cell site, cell phone records cross- confirm and corroborate what Fatima [Alabusalim] told you? Det. O’Daniel: Yes. Commonwealth: The situation with Rayshawn [Tucker] being a boyfriend to Fatima [Alabusalim]? Det. O’Daniel: Yes. Commonwealth: And DaMani [Dulaney] being just a guy she was just starting to go out with? Det. O’Daniel: Yes, sir.
21 Commonwealth: Was that confirmed with the cell phone records and the records of contact between DaMani [Dulaney] and Fatima [Alabusalim], as well as Fatima [Alabusalim] and Rayshawn [Tucker]? Det. O’Daniel: Through the Facebook records, yes. Commonwealth: Facebook? Det. O’Daniel: Yeah. Commonwealth: Was the relationship—not romantic relationship— with Isaiah Brown but knowing Isaiah Brown—Fatima [Alabusalim]—was that confirmed by contents of her phone such as pictures of him in there down at Pensacola and his name showing up in her—in communications with Rayshawn? Det. O’Daniel: Yes. Commonwealth: Again, corroborating and confirming? Det. O’Daniel: Yes.
Brown argues that Detective O’Daniel’s testimony was an improper comment
on Alabusalim’s credibility. In its brief, the Commonwealth does not dispute
that Detective O’Daniel’s “conclusory testimony was improper,” but instead
notes that “Brown doesn’t suggest it was false or misleading, or that it would
have confused the jury about the evidence.” Because the parties agree that the
testimony was error, and the Commonwealth only disputes its impact on the
fairness of the proceeding, we need not reach the merits of the issue, but
instead may simply include it in our palpable error analysis under RCr 10.26.
On re-direct, the Commonwealth also elicited testimony from Detective
O’Daniel regarding the credibility of Alabusalim’s allegations of abuse against
Tucker. The Commonwealth asked, “This idea of Rayshawn Tucker abusing
her, beating on her . . . she has credibility with regards to that?” Detective
O’Daniel responded, “I believe her, yes.” It is well settled that a witness cannot
vouch for the truthfulness of another witness either directly or indirectly. Hoff
v. Commonwealth, 394 S.W.3d 368, 376 (Ky. 2011). The Commonwealth
22 concedes that this testimony was admitted in violation of the rule against
vouching but insists that Brown suffered no prejudice as a result.
In turn, we consider whether the admission of the improper corroborative
testimony, along with the erroneous question directly addressing Alabusalim’s
credibility, constituted a “palpable error” that “affect[ed] the substantial rights
of [Brown],” and resulted in “manifest injustice.” RCr 10.26.
When we engage in a palpable error review, the “focus is on what
happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Martin, 207
S.W.3d at 5. A palpable error is “easily perceptible, plain, obvious, and readily
noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). In
other words, a palpable error occurs where “the defect in the proceeding was
shocking or jurisprudentially intolerable.” Martin, 207 S.W.3d at 4.
Brown argues that Detective O’Daniel’s testimony resulted in manifest
injustice because the Commonwealth allegedly “lacked physical evidence at the
scene linking Brown to the shooting, failed to call Rayshawn Tucker to testify
about his plea and Brown’s alleged involvement, and principally relied upon
Fatima’s [Alabusalim’s] assertions to establish that Brown (not Tucker or
Alabusalim) committed the crime.” We disagree with Brown’s characterization
of the evidence as resulting in the deprivation of a fair trial. The
Commonwealth introduced substantial evidence apart from Alabusalim’s
testimony that linked Brown to the crime. For example, it admitted cell phone
location data from Tucker and Brown’s phones showing them travelling to and
23 from the scene of the crime, text messages between Tucker and Brown
explicitly discussing the robbery, and Alabusalim’s messages stating that
Tucker and Brown had her “setting people up” to rob. While it is unavoidable
that Detective O’Daniel’s testimony likely resulted in some prejudice to Brown,
we cannot say that it resulted in a manifest injustice and so seriously affected
the fairness, integrity, or public reputation of the proceeding as to be “shocking
or jurisprudentially intolerable.” Martin, 207 S.W.3d at 4.
D. The trial court did not abuse its discretion in admitting Tucker and Brown’s text messages.
Brown argues that the trial court erred in admitting the text messages
from Tucker to Brown before and after they had allegedly murdered and robbed
Dulaney. Specifically, Brown alleges that the Commonwealth did not establish
that Tucker’s statements in the text messages met the requirements for the
statements of a co-conspirator exception to the hearsay prohibition, and that
the text messages required Tucker’s interpretation.
Brown preserved this issue through his continuing objection to the
exhibits containing the text messages at trial. Thus, we review this issue under
the abuse of discretion standard. “Rulings 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, 889 S.W.2d at
783. “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 945.
Pursuant to KRE 801A(b)(5), 24 A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is: ... (5) A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
The co-conspirator exception requires that the proponent prove, by a
preponderance of the evidence, the existence of three basic elements: “(1) a
conspiracy existed, (2) both the defendant and the declarant were participants
in the conspiracy, and (3) the statement was made during and in furtherance of
the conspiracy.” Gerlaugh v. Commonwealth, 156 S.W.3d 747, 752 (Ky. 2005).
The law of evidence adopts the criminal law’s definition of conspiracy as an
agreement between two or more people to commit a crime. See Lawson,
supra, § 8.30[1][b] (citing 5 JOSEPH M. MCLAUGHLIN, Weinstein’s Federal
Evidence § 801.34[3][a] (2d ed. 2013)). “A conspiracy begins . . . as soon as an
agreement is reached to commit a crime.” Monroe v. Commonwealth, 244
S.W.3d 69, 76 (Ky. 2008) (quoting LAWSON, supra, § 8.30[3] (4th ed. 2003)).
At trial, Alabusalim testified that she, Tucker, and Brown all participated
in planning to rob Dulaney. Further, the Commonwealth introduced
Alabusalim’s personal messages to her friend wherein she stated that Tucker
and Brown had her “setting people up” to rob. This is undoubtedly sufficient
evidence for the trial court to believe by a preponderance of the evidence that a
conspiracy existed. The remaining question, therefore, is whether the
statements sought to be introduced were made in furtherance of a conspiracy.
The necessity that statements be made “in furtherance” of a conspiracy
“guards against the use of untrustworthy hearsay,” as it “attempts to bridge 25 the gap between the need to control conspiracies, which are inherently
secretive and difficult to prove, and the need to protect idle conversations
among criminal partners, as well as to minimize the admission of inadvertently
misreported or deliberately fabricated evidence.” See LAWSON, supra, §
8.30[3][a] (quoting 5 MCLAUGHLIN, supra, § 801.34[5]). In resolving whether
statements were made “in furtherance” of a conspiracy, “[t]he determining
factor is whether a statement in any way assists or advances the objectives of
the conspiracy.” Monroe, 244 S.W.3d at 77. Accordingly, casual conversation
and idle commentary do not meet this requirement. Id. at 78.
Brown argues that the Commonwealth failed to establish that Tucker’s
statements in the text messages below were made “in furtherance” of a
conspiracy. The following exchange occurred on the evening of the murder:
[6:10 p.m.] Tucker: Ets wat i was rey tell u [6:10 p.m.] Tucker: She said bruh got money on em and shit [6:11 p.m.] Tucker: Im wit dis bitch rn so i cant do nun [6:11 p.m.] Brown: Wya [6:12 p.m.] Tucker: Crib [6:12 p.m.] Tucker: Im comin out newburg to drop her off in like a hour and a half prolly [6:14 p.m.] Brown: I’ma jus chill itl take me that long to get out there [6:14 p.m.] Tucker: Yea jus stay der I gotta come out der anyway [7:10 p.m.] Brown: U ready bra [7:10 p.m.] Brown: Dudes tryna shake [7:13 p.m.] Brown: We gotta hurry [8:29 p.m.] Brown: I’m bout to go to stop and go if u otw
Tucker’s statements clearly assisted in aiding the objectives of the conspiracy.
Tucker’s text messages to Brown, while communicated in a casual tone, serve
to inform Brown of developments in their plan (e.g., “[s]he said he got money on
em and shit”), thereby “assist[ing] or advanc[ing] the objectives of the
26 conspiracy.” Id. at 77. Furthermore, as to Brown’s contention that the
statements required interpretation by Tucker, we disagree. The meaning of the
texts is apparent. As a result, the trial judge’s decision to admit Tucker’s
statements in these text messages was not “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” English, 993 S.W.2d at 945.
Brown also pursues a similar argument concerning a January 8, 2019,
text message from Tucker wherein he asserts that “Fatimah wanna see the
article.” This text message is, presumably, in relation to Alabusalim’s concern
regarding a news article, as the following exchange occurred between the
Commonwealth and Detective O’Daniel immediately after the admission of the
text message:
Commonwealth: Detective O’Daniel, as the lead on this case, were you aware of media coverage? Det. O’Daniel: Yes. Commonwealth: Homicide? A dead young man? Was that covered in the media? Det. O’Daniel: Yes, sir. Commonwealth: Would there have been articles that existed on January 8, 2019? Det. O’Daniel: Yes.
Importantly, the text message occurred two days after the completion of the
murder and robbery. “Any such statements . . . made . . . after the objectives of
the conspiracy were accomplished were not made during the course and in
furtherance of the conspiracy.” Marshall v. Commonwealth, 60 S.W.3d 513, 520
(Ky. 2001). However, text messages between Alabusalim and her friend revealed
that prior to killing Dulaney, Tucker and Brown had her “setting people up” to
rob. The fact that Brown, Tucker, and Alabusalim were conspiring to rob others
27 cannot be disregarded merely because they only had the opportunity to do so
once before they were apprehended.
Furthermore, the alleged error occurred while the trio was attempting to
avoid discovery by the police. With the evidence presented in the record, we
cannot assume that Brown, Tucker, and Alabusalim’s conspiracy to continue
“setting people up” to rob was completed. The statement relates to their
intention to monitor media coverage of the murder and thereby further their
plan by avoiding detection. Of course, the brevity of the statement and the lack
of additional dissection by the Commonwealth reduces its probative value in
advancing that point. Nevertheless, the bar for relevancy is low, and “[t]o show
that evidence is relevant, only a slight increase in probability must be shown.”
Yates v. Commonwealth, 430 S.W.3d 883, 897 (Ky. 2014); KRE 401.
Accordingly, we hold that the statement was admissible under KRE 801A(b)(5),
as it went to show an intention to control damage to or detection of the
conspiracy. As a result, we cannot say that the trial judge’s decision to admit
Tucker’s statement that “Fatimah wanna see the article” was “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” English, 993
S.W.2d at 945.
E. Reversal is not required under the cumulative error doctrine.
Brown contends that his convictions should be reversed on the basis of
cumulative error. The cumulative error doctrine states that where there are
“multiple errors, although harmless individually, [the errors] may be deemed
28 reversible if their cumulative effect is to render the trial fundamentally unfair.”
Brown, 313 S.W.3d at 631.
Brown claims that if the asserted errors do not individually warrant
reversal, then the cumulative effect of the errors requires reversal. We have
found cumulative error only where the individual errors were themselves
substantial, bordering, at least, on the prejudicial. Funk v. Commonwealth, 842
S.W.2d 476 (Ky. 1992).
The only errors in this case were Detective O’Daniel’s improper testimony
attributing phone numbers to Brown and other various third-party non-
witnesses, and his opinion testimony regarding the veracity of Alabusalim’s
prior statements. Given the amount of other significant, compelling evidence
presented tying Brown to the “356” phone number, and the de minimis nature
of the attribution of phone numbers to other individuals related to Brown, the
admission of Detective O’Daniel’s testimony regarding the “356” phone number
was harmless and his testimony regarding the other phone numbers did not
constitute palpable error. Furthermore, the improper testimony as to
Alabusalim’s credibility did not constitute “manifest injustice.” Individually,
these errors were not substantial, nor were they “bordering, at least, on the
prejudicial.” Id. Although errors crept into this trial, Brown received a
fundamentally fair trial, and the isolated instances of error were insufficient to
create a cumulative effect which would warrant reversal of his convictions.
Furnish v. Commonwealth, 95 S.W.3d 34, 53 (Ky. 2002), as modified (Dec. 10,
2002).
29 III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
All sitting. Conley, Goodwine, Nickell and Thompson, JJ., concur. Bisig,
J., concurs in result only by separate opinion which Lambert, C.J., joins.
BISIG, J., CONCURRING IN RESULT ONLY: I concur with the Majority’s
Opinion affirming the conviction of defendant Isaiah Brown. However, I write
separately because I disagree that the trial court erred in allowing Detective
O’Daniel to attribute the phone number found through the Accurint search to
Brown. I would find that his testimony was not hearsay.
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” KRS 801(c). “Declarant” is defined as “a person who makes
a statement,” and a statement is an “oral or written assertion.” KRE 801. The
“statement” in the Accurint report associating the phone number with Brown is
the result of a computer database search and constitutes a data point or piece
of information which is, importantly, subject to cross-examination. Even an
executive from Accurint could not independently affirm or deny Brown’s
ownership of the phone number. Instead, if Brown elected to contest the
number, he could certainly cross-examine Detective O’Daniel with any
information in his defense. As such, a data point in this context is not the type
of out-of-court declaration our hearsay rules are crafted to safeguard against.
Lambert, C.J., joins.
30 COUNSEL FOR APPELLANT:
Joshua M. Reho Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
James Havey Assistant Attorney General