Jerard Garrett v. Commonwealth of Kentucky

Opinion

MODIFIED: DECEMBER 20, 2017 RENDERED: DECEMBER 14, 2017 TO BE PUBLISHED

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JERARD GARRETT APPELLANT

ON. APPEAL FROM JEFFERSON CIRCUIT COURT .

v. HONORABLE.JAMES M. SHAKE, JUDGE NOS. 1.3-CR-000246 AND 13-CR-000744

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VANMETER

AFFIRMING

Jerard Garrett appeals as a matter of 'right from a judgment of the

Jefferson Circuit Court sentencing him to life in prison without ·the possibility

of parole for twenty-five years for two counts of murder, two counts of first-

degree robbery, one count of first-degree wanton endangerment, and one count

of terroristic threatening. For the following reasons, we affirm the judgm~nt

and sentence.

I. BACKGROUND.

In one indictment, a Jefferson County gr~djury charg~d Garrett and

his co-defendant, Billy Richardson, with one count each of murder, first-degree

robbery, first-degree wanton endangerment, third-degree terroristic

threatening, and being a first-degree persistent felony offender ("PFO 1"), arising from the murder of Jamie Young on December 29, 2012. In a separate

indictment, the granp jury charged Garrett .and Richardson with one count

each of murder and first-degree robbery, arising from the murder of Kenny

Forbes on December 23, 2012. Over Garrett's objection, the trial court

consolidated the charges in the two indictments for trial. Pursuant to RCrl

6.18, the trial court found that the defendants' practice of scheduling meetings

throug~ a known intermediary to conduct a drug transaction, then robbing the

victim, was sufficiently unique to warrant joinder of the charges and /

consolidation of the indictments. Garrett now challenges this decision of the

trial court, as well as several of its other decisions. We do not find any of

Garrett's challenges to have merit.

II. ANALYSIS.

a. The Trial Court Did Not Abuse Its Discretion by Admitting the Commonwealth's Ballistics Evidence.

Garrett suggests, as a general matter, that an opinion from a firearm and

toolmark examiner that a particular bullet was fired from a parlicular gun

should no longer be admissible in criminal trials in Kentucky. We note that

ballistics te~timony has been allowed by this· Court since at least 1948. Mof!is

v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948). Still, Garrett argues

that the methodology and reliability. of the Com~onwealth's ballistic examiner's

testimony that bullets found at both murder ~cenes were fired from the same

1 Kentucky Rules of Criminal Procedure.

2 weapon did not meet the criteria set forth in KRE2 702 for admissibility, and

therefore should not have been admitted. After conducting Daubert3 hearings

on the admissibility of testimony from the Commonwealth's Kentucky State

Police ("KSP") firearms expert, Leah Collier, and Garrett's expert, William Tobin,

a forensic metallurgist materials scientist who worked for the FBI for 27 years,

the trial court concluded that both experts' testimony would be admissible. . . This Court reviews a trial court's ruling on the admissibility of expert

testimony for an abuse of discretion unless the challenge is to the trial court's

findings of fact regarding the Dauberl factors, which we review for clear error ..

Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004). Because Garrett challenges

the trial court's preliminary factual determination as to the reliability of

ballistic evidence under Daubert, we review for clear error.

Daubert assigns the trial court the role of "gatekeeper" charged with

preventing the admission of unreliable, pseudoscientific evidence:

[T]he trial judge must determine at the outset ... whether the expert is proposing to testify. to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. ·

Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 (footnote omitted); KRE 702.

2 Kentucky Rules of Evidence. 3 Dc;iubert v. Merrell Dow Phann., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The. trial court may consider the following factors in assessing the

reliability of expert testimony:

(1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there ar.e standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or . other specialized community.

Goodyea_,r Tire & !?ubber Co. v. Thompson, 11 S.W.3d 575, 578-79 (Ky. 2000}

(citing Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-97). "In addition to

being reliable, the proposed testimony must assist the trier of fact to

understand the evidence or to determine E;l fact in issue. This condition. goes

primarily to relevance." Miller, 146 S.W.3d at 914 (internal quotations and

citation omitted).

Garrett maintains that the scientific community has attacked and

refuted the reliability of the premises and methods of specific source

attribution_in ballistics' analysis, thus rendering Collier's testimony

incompetent. In support of his _position, Garrett primarily relies on a 2009

National Research Council's report titled Strengthening Forensic Science in the

United States: A Path Fonuard ("NRC. Report"), which calls into question the

validity. of the assumptions about toolmarks that underlie firearms

identificatiop. .. Howeve:i:-, the Association of Firearm·and Toolmark Examiners

("AFTE") theory of identification, which Collier testified she utilized and which

the federal courts have recently held satisfies Daubert, permits .a conclusion

4 that two or more bullets are of common origin "when the micro.scopic surface

contours of the toolmarks are in sufficient agreement." United States v. Otero,

849 F.Supp.2d 425 (D.N.J. 2012), aff'd $57 Fed. Appx. 146 (3rd Cir. 2014).

In Otero, the defendants sought to exclude the testimony of the

government's firearms examiner that a bullet was discharged by a specific

weapon. 849 F.Supp.2d at 427. The Otero court recognized that the AFTE

theory of identification innately contains a subjective component in

determining "sufficient agreement" which "must necessarily be based on the

examiner's training and experience." Id. ~t 432. In assessing the admissibility

of the firearm examiner's testimony, the Otero court meticulously analyzed the ·

Daubert factors and found the proffered testimony satisfied each one. Id. at .

431-435.

Specifically, the Otero court found that "the AFTE theory is testable and

has been tested." Id. at 432. The court acknowledged the same NRC Report,

.upon which Garrett relies, and found that while the toolmark identificatjon

procedures "do indeed involve some degree of subjective analysis and reliance

upon the expertise and experience of the examiner'' the methodology is reliable.

Id. at 438. Garrett points to the Otero court recognition that "claims for

absolute certainty as to identifications made by practitioners in this area may

well be overblown" to argue that Collier's identification of the bullets improperly

amounted to absolute certainty, as opposed to a reasonable degree of certainty.

Id. However, our review of the record shows that Collier testified that she

examined the two bullets from this case visually and microscopically and

5 "made the determination that they were fired from the same firearm." Collier

went oh to testify that bullet condition can vary. She stated that while bullet

condition runs the full range, even completely mutilated, the bullets in this

. case were in very good condition. Assessing Collier's conclusion that the · ' bullets were fired from the same gun in the context of her entire testimony, .

which reflects the varying condition of bullets and her subjective experience

analyzing them, we do not believe her testimony amounted to "absolute

certainty" so as to require exclusion.. Rather, we believe the jury. was charged

with assessing the reliability and credibility of her opinion, given all the

evidence presented.

We agree with the Otero court's application of the Daubert factors to

ballistics testimony such as that at hand, and with the trial court's analysis of

the Dauberl factors and ultimate decision to admit Collier's testimony. The

. proper avenue for Garrett to address his concerns about the methodology and

reliability of Collier's testimony was through_ cross-examination, as well as

through the testimony of his own expert. In this way, the jury was presented

. with both parties' positions, and with any limitations to the testimony, and

charged with weighing all the _evidence presented.

b. The Triat Court Did Not Abuse Its Discretion by Joining the Offenses for Trial.-

Garrett argues that the trial court abused its discretion by joining the

Forbes and Young murder charges together for a single trial because the

murders were not sufficiently .similar i_n character, and therefore did not meet

the common scheme and plan rubric of RCr 6.18. 6 The interaction of RCr 9.12 and RCr 6.18 allows the charges brought in separate indictments to be joined for trial only when the offenses are "of the same or similar character" or are "based on the same acts or transaGtions·connected together or constituting parts of a common scheme or plan." When the conditions set forth in RCr 6 .. 18 and RCr 9.12 are present, the trial judge has broad discretion to allow the joinder of offenses charged in separate indictments. We review such decisions for abuse of discretion. Nevertheless, to be reversible, an erroneous joinder_ of offenses must be accompanied by "a showing of prejudice" to the defendant. This showing of prejudice cannot be based on mere speculation, but must be supported by the record.

*** [A] significant factor in identifying prejudice from joining offenses for a single trial is the extent to which evidence of one offense would be inadmissible in th~ trial of the other offense.

Hammond v. Commonwealth, 366 S.W.3d 425, 428-29 (Ky. 2012) (internal

citations and footnote omitted). .

Because a defendant is prejudiced simply by being tried at all, a

defendant is required to show prior to trial that he would be "unfairly

prejudiced" by ajoinder. Parker v. Commonwealth, 291 S.W.3d 647, 656-57

(Ky. 2009).

Offenses closely related in character, circumstance[,] and time need not be severed. If evidence from one of the offenses joined in the indictment would be admissible in a separate trial of the other offenses; the joinder of offenses generally will not. be prejudicial. Additionally, considerations of judicial economy and the efficiency of avoiding multiple trials are reasons for joint trials;

7 Cohron v. Commonwealth, 306 S.W.3d 489, 493-94 (Ky. 2010) (footnote

omitted); see also Peacher v. Commonwealth, 391 S.W.3d 821, 836 (Ky. 2013)

(discussing the liberal joinder of offenses considering the advantages of joint

trials).

Garrett emphasizes the differences between the crimes: the murders

occurred six days apart, in different parts of the city; no connection existed

between the victims; one murder occurred inside a car in a parking lot in the

middle of the afternoon; the other murder took place in a residenGe during the

evening; and no common witnesses to the two murders were identified. Thus,

Garrett asserts that joinder was improper since no nexus or relationship exists

between the two murders, nor·a common plan or.scheme.

The trial court found that the two murders and robberies were part of a.

common scheme: in both cases, the same two co-defendants were charged with

murder and robbery after they arranged with the victims to purchase drugs;

both victims were shot during the drug transactions; ballistics examination

concluded that the bullets from both murders were fired from the same gun;

and both sets of offenses occurred within six days of each other in the same

city. Accordingly, the trial court concluded that the crimes committed were

closely related ,in character, circumstance, and time, antj. were sufficiently

similar to permit joinder under RCr 6.18. Under these circumstances, we do

not believe the trial court abused its discretion by joining the offenses for trial,

or that Garrett has identified "unfair prejudice" connected with the joinder ·

sufficient to require a new trial.

8 c. The Trial Court Properly Permitted a Witness to Make an In-Court . Identification of Garrett.

Garrett asserts that the trial court abused its discretion by overruling his

objection to witness Jamie Quisenberry making an in-court identification of

him as the one who shot Young. He argues that because Quisenberry was

.unable to identify him in a photographic lineup five days after the shooting,

Quisenberry should not have been allowed to make an in-court identification

under application of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d

401 (1972).

We review a trial court's evidentiary rulings for an abuse of discretion.

·Goodyear, 11 S.W.3d at 577. An abuse of discretion occurs if the trial court's

ruling is "arbitrary, unreasonable, unfair, or unsupported by so-µnd legal

principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Garrett's argument is not well taken. After appellate briefs were

submitted in this case, this Court issued an Opinion in Fairley·v.

_/Commonwealth, 527 S.W.3d 792 (Ky. 2017), rejecting the very claim Garrett

now presents. In Fairley, we held that the witness's inability to identify the

defendant in a photographic lineup did not bar him from making an in-court

identification:

[T]he proper course is to permit the witness to attempt to identify the suspect in court and, 1.f an identification is made, allow the defense to thoroughly cross- examine the witness concerning his failure to n:i.ake a prior identification. The jury is fully capable of determining what weight to assign to the in-court identification .... Accordingly the trial court did not

9 abuse its discretion in permitting the introduction of this evidence.

Id. at·797.

In Fairley, we also rejected the defendant's assertion that the witness's

in-court identification should have been analyzed by the trial court under the

factors set forth in Biggers before allowing the. witness to testify. Id. at 798.

"In Biggers, the S~preme Court set forth a two-prong due process test for

considering an identification by a witness following impermissible suggestive

pretrial procedures such as a photo array or line-up." Id. at 797-98. We

expressly declined to extend Biggers to in-court identifications when no unduly

suggestive pretrial behavior has been alleged; "'a primary aim of the Biggers

line of cases ~as deterrence of law enforcement's use of improper "lineups,

showups, and photo arrays, a factor clearly not present in the case before us. m

Id. at 799 (citation omitted).

Garrett has not suggested that the photographic lineup presented to

Quisenberry was unduly suggestive, or alleged any other improper pretrial

procedures; rather, Garrett argues that the in-court identification by a witness

who did not make an identification previously is unduly suggestive. This

reasoning does not trigger application of Biggers, and is unsupported by

Kentucky case law. T~e trial court followed the proper course of action by

allowing Quisenberry to make an in-court identification, allowing Garrett the

opportunity to cross-examine him, and letting the jury assess Quisenberry's

credibility and weigh the evidence presented.

10 d. Detective Guffy Did Not Improperly Bolster His Own Credibility by Answering Questions from Co-Defendant's Counsel on Cross- Examinatie>n.

Garrett alleges that the trial court improperly allowed Det. Guffy to

bolster his credibility during co-defendant Richardson's cross-examination of

him, over Garrett's objection. We review the trial court's ruling for an abuse of

discretion. Goodyear, 11 S.W.3d at 577. I

During Garrett's cross-examination of Det. Guffy, Garrett's courisel

questioned him vigorously regarding the phone call Det. Guffy testified he

received froni Garrett's older brother, Je.rmaine Garrett, after the murders, in

which Jermalne informed Det. Guffy that the last phone number Forbes called

before his death, 419-262-5824 ("the 419 number"), belonged to Garrett.

Garrett's counsel implied that Det. Guffy was not being truthful about receiving

the phone call from Jermaine because he did not swiftly record it in an

investigative letter. Det. Guffy testified that three months after his

conversation with Jermaine, he recorded in an investigative letter, "I spoke with

a person later identified as a family member of Jerard Garrett, from phone

number 502-4 71-8873. This conversation assisted in the verification of

·number 419-262-5824 as being the number associated with.Jerard." Det.

Guffy further testified that no police policy mandates that investigative letters

be recorded within a specified time frame, or contain specified information.

During co-defendant Richardson's cro~s-examination of Det. Guffy, ' Richardson's counsef followed up on the line of questioning regarding Det.

Guffy's truthfulness, to which Det. Guffy responded that he did his work as

11 diligently, as honestly as he could, and that he found any suggestion he was

dishonest to be distasteful. At this point, Garrett's counsel objected, arguing

. that Det. Guffy's testimony constituted improper self-bolstering.

The la:w is well established that "[a] witness is not permitted to bolster

her own. testimony unless and until her credibility has been attacked." Tackett

v. Commonwealth, 445 S.W.3d 20, 32 (Ky. 2014). As the Commonwealth points

out, though, Garrett plainly attacked Det. Guffy's credibility during his. cross-

examination of him, insinuating that he was lying and committing perjury.

Garrett put Det. Guffy's credibility squarely at issue, thus allowing it to be

bolstered by Richardson's counsel during his cross-examination of Det. Guffy.

Accordingly, the trial court did not abuse its· discretion by overruling Garrett's

. objection to Det. Gu,ffy's testimony.

e. ·The Commonwealth's Use of the CourtNet Information Was Not Improp~r.

Garrett contends that he should be granted a new trial because the

Commonwealth's use of a CourtNet printout to impeach Jermaine prejudiced

Garrett and denied him the right to a fair trial. Whether Jermaine lived at 426

South 12th Street in 2012 was relevant because a call was placed from the

number associated with that address, 502-471-8873 ("the 502 number"), to

Det. Guffy after the murders, during which Det. Guffy testified that Jermaine

identified the 419 number as belonging to Garrett. Det. Guffy had left a

voicemail at the 502 number after obtaining Forbes' cellphone records and

discovering that the last two calls Forbes placed before .his death were to the

419 number. Det. Guffy obtained the call log for the 419 number and left 12 voicen:iails with the most recent numbers called, including the 502 number.

He testified that he received a call back from the 502 n\].mber, and that the

caller identified himself as Jermaine, who said the 419 number belonged to

Garrett.

At trial, the Commonwealth sought to link Jermaine with the 502

number, and the phone call made to Det. Guffy, by showing that he resided at

426 South 12th Street around the time of the murders. Jermaine testified that

he did not remember his phone number from 2012, denied having spoken with

Det. Guffy after the murders, denied telling Det. Guffy that the 419 number

belonged to Garrett; and said he never lived at 426 South 12th Street. The

Commonwealth then presented him with a CourtNet printout of a district court misdemeanor showing Jermaine's listed address as 426 South 12th Street in

2012. Over Garrett's objection that the CourtNet docun:ient was unreliable, the

trial court permitted the Commonwealth to show it to Jermaine and ask ifthe

address listed on the CourtNet document, 426 South 12th Street, was his

address in 2012. The document was not admitted into evidence or otherwise

shown to the jury. We.review the trial court's ruling for an abuse of discretion.

Goodyear, 11 S.W.3d at 577.

CourtNet is a product that is compiled by the Administrative Office of the Courts (AOC) that is generally useful for investigation into a person's background, but it is not intended as an official record of that background. In fact, CourtNet's user agreement states that the AOC "CANNOT GUARANTEE the accuracy of information obtained via CourtNet." Criminal Justice Agency, CourtNetindividual User Agreement, http://courtnet.kycourts. net/courtnet/manuals/CourtNetCJindividual.pdf. It 13 further states that "[d]ata obtained from this system is not an official court record" and that "[i]nformation received from CourtNet ... may not at any particular moment reflect the true status of court cases." Id.

Finnell v. Commonwealth, 295 S.W.3d 829, 834 (Ky. 2009).

In Finnell, this Court disapproved of the use of a CourtNet document to

prove a defendant's prior convictions during the sentencing phase of trial. Id.

In that caf:!e; the Commonwealth introduced into evidence, and spent over eight

minu~es reading from, ten pages of a CourtNet printout listing Finnell's 14

prior .misdemeanor convictions, including one felony that it had already

introduced by testimony from a certified copy of the judgment. Id. at 834. We

reversed and remanded for a new sentencing phase on the following grounds:

CourtNet is not an appropriaty document to use to. influence ajury's decision on fixing a penalty. It lacks the requisite indicia of reliability nec~ssary to reliably prove a defendant's prior convictions. To do that, the evidence of prior convictions must come from the official court record, or certified copies thereof. However, other elements of proof, such as proving a defendant's parole status or age, may be introduced through other appropriate records.

Id. at 835.

Relying on an unpublished decision from the Court of Appeals,

Merriweather v. Commonwealth, No. 2011-CA-001398-MR, 2012 WL 6651882

(Ky. App. Dec. 21, 2012), Gan:ett argues that CourtNet documents should not

be used to impeach a witness. In Merriweather, prior to the sentencing phase,

·the parties discussed introduction of the defendant's prior felony convictions

for purposes of the PFO charge; the Commonwealth had certified documents

relating to three prior felonies of the defendant, but only a CourtNet printout of 14 a fourth 1995 felony conviction. Id. at *3. The trial court determined that the

CourtNet document was not reliable enough to be used for purposes of

establishing a PFO charge and the parties agreed to remove the 1995 felony

conviction from the PFO instructions. Id.

In Merriweather, on cross-examination of the defendant, the

Commonwealth inquired into whether he had a 1995 felony conviction; defense

counsel objected, arguing that the conviction was riot to be mentioned. Id. at

*4. The trial court overruled the objection and allowed the Commonwealth to

ask the question; the defendant replied that he did not recall whether he had a

felony conviction from 1995. Id. On appeal, the Court of Appeals held that no

error occurred:

In the case at hand, the Commonwealth sought to . elicit testimony from Merriweather about his 1995 conviction for truth-in-sentencing purposes, not persistent felony offender purposes. The Commonwealth did not introduce the CourtNet document showing the 1995 conviction into evidence, it only used it as a basis to inquire from Merriweather as to whether the conviction existed. Had the Commonwealth sought to use the CourtNet document to impeach Merriweather, or tried to introduce it when Merriweather stated he did not remember a 1995 conviction, then that would have been improper. Unlike in Finnell, the Commonwealth in this case did not introduce the CourtNet document and its contents into evidence; therefore, there is no error.

Id. at *5.

Notwithstanding that Merriweather is not binding on this Court, or any

other court since unpublished, we briefly note that the situation at bar is

distinguishable in that the Commonwealth used the CourtNet document not to

15 prove jermaine's criminal history or the status of a court case, but rather to

confirm with Jermaine background information contained thereon: his name,

date of birth, and address. Jermaine confirmed his name and date of birth as

listed, but disputed the 4.26 South 12th Street address'. Based on these facts,

we believe the Commonwealth's use of the CourtNet printout did not run afoul '

of our holding.in Finnell, or of the stated purpose of CourtNet identified.in that

case.

Further, even without use of the CourtNet printout linking Jermaine to

that address and consequently to the. 502 number associated therewith,

G8!1"ett was connected to the 419 number through the testimony of Det. Guffy,

who stated that he received a call from Jermaine informing him that the 419

number belonged to Oarrett. The jury was charged with assessing the..

credibility of the witnesses, and to weigh the evidence accordingly. Thus, even

if we accepted Garrett's argument that error occurred, such error did not have

substantial influence so as to require reversal under the harmless error

·standard .. See RCr 10.26; Winstead v. 9ommonwealth, 283 S.W.3d 678, 688-

89 (Ky. 2009)[(the inquiry into whether a non-constitutional evidentiary error

may be deemed harmless "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.") (internal quotations and citations

offiitted)].

16 f. No Cumulative Error Exists.

Garrett argues that he is. entitled to relief on the basis of cuml,Jlative

error, "the doctrine under which multiple errors, although harmless

individually, may be deemed reversible if their cumulative effect is to render the

trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631

(Ky. 2010). Since none of Garrett's alleged errors merit relief individually, they

do not become meritorious .W.hen considered cumulatively.

III. CONCLUSION.

For the foregoing reasons, the judgment and sentence of the Jefferson

Circuit Court is affirmed.

All sitting. Minton, C.J., Cunningham, Hughes,. Keller, VanMeter, and .

Wright, J.J., concur. Venters, J., concurs in result only.

COUNSEL FOR APPELLANT:

Samuel N. Potter Robert Chung-Hua Yang Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Jason Bradley Moore Assistant Attorney General

17 2016-SC-000263-MR

JERARD GARRETT APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE v. CASE NOS. 13-CR-000246 AND 13-CR-000744

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER

On the Court's own motion, this Court hereby modifies the Opinion of

the Court by Justice VanMeter rendered December 14, 2017 in the· above

styled case by the substitution of a new opinion as attached hereto in lieu of

the Opinion of the Court as originally entered. Said modification does. not

affect the holding, and is made only to reflect a typographical error·on page 11

changing "Det. Duffy" to "Det. Guffy".

ENTERED: December 20, 2017