Jermaine Williams v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: June 12, 2024
• Docket: 2023 SC 0287
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 13, 2024 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0287-MR

JERMAINE WILLIAMS APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE JULIE KAELIN, JUDGE NO. 18-CR-001915

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A jury convicted Jermaine Williams in Jefferson Circuit Court of

manslaughter in the second degree and being a convicted felon in possession of

a handgun. He was sentenced to twenty years’ imprisonment and now appeals

as a matter of right 1 raising two allegations of error in seeking reversal.

Following a careful review, we affirm.

On June 6, 2018, Louisville Metro Police Department (LMPD) Officers

Kierstan Holman and Justin Nava each drove by 1770 West Oak Street in

Louisville several times. Multiple people were seen standing outside around

10:30 p.m. Approximately two hours later, Officer Holman observed only three

people, two of whom seemed to be in a heated argument on the sidewalk in

1 KY. CONST. §110(2)(b). front of the home. Officer Holman drove around the block to ensure the fight

did not become physical. As she passed the home again, the altercation

seemed to have cooled, so she and Officer Nava continued their normal patrols.

A short time later, a call came across the police radio about a shooting

which had occurred at 1770 West Oak Street. Upon arrival at the scene,

Officer Holman saw Darryl Lewis lying on the ground. She recognized Lewis as

one of the men who had been fighting at the location earlier in the evening. He

had been shot multiple times and died as a result of his injuries. Officer

Holman noted Lewis was wearing shorts and a dark t-shirt and a cellphone had

fallen out of his waistband. Other officers arrived and began processing the

scene. Lewis’ blood was found on a BMW parked in front of the home. Officers

knocked on the door of 1770 West Oak Street but received no response.

Around 2:00 a.m., after police had been at the crime scene for

approximately an hour, Williams calmly walked out of the house carrying a

duffle bag and told police he was leaving to catch a cab. When asked if he

knew anything about the shooting, Williams said he had heard three or four

gunshots and saw three black males running down West Oak Street. He

allowed responding officers to enter the home after he informed them there

were two other individuals inside. Upon exiting the residence, the officers

learned Williams’ name and discovered he had an outstanding warrant for his

arrest. He was taken into custody and a search incident to arrest was

conducted. Officer Holman found a blue latex glove in Williams’ pocket which

contained multiple spent shell casings and projectiles. Officer Nava searched

2 the duffle bag and located a .38 special revolver, more latex gloves, and some

toiletries. Subsequent ballistics testing of the spent shell casings and

projectiles located on Williams’ person and at the scene revealed four recovered

casings and two projectiles had been fired from Williams’ revolver.

Williams invoked his right to counsel and refused to speak to police

about the shooting. His hands were swabbed, and testing revealed the

presence of gunshot residue. Williams was subsequently charged with murder,

being a felon in possession of a handgun, and violating a protective order. 2

During trial, Williams testified and did not deny shooting Lewis. The

thrust of his defense was that he shot Lewis in self-defense. He indicated he

had gone to sleep around 9:00 p.m. on the night of the incident. At some

point, he was awakened by “a whole bunch of chaos” outside. He looked out

the window and observed Lewis fighting with two men. Williams claimed to

know none of the three men. A man he did know, Snoop, was watching the

fight and trying to calm Lewis down. Williams said the fighting went on for

some time, with Lewis getting knocked down by one of the men then getting up

to fight the other. The altercation ended with Lewis walking down an alleyway

while proclaiming he was leaving to get his gun. The other two men walked

away, leaving only Snoop outside the residence.

Williams went out to speak with Snoop when Lewis reappeared, holding a

piece of broken concrete. Lewis and Snoop began arguing and Snoop told

2 At trial, the Commonwealth moved to dismiss the latter charge.

3 Lewis he needed to calm down and go home. Williams, who said he had been

sitting on the hood of a car parked on the curb, indicated he tried to go back

inside but Lewis confronted him. Lewis was larger and stronger than Williams

which Williams said made him afraid, especially since Lewis had previously

been fighting two men and kept coming back for more, even after being

knocked down. Williams said he saw a bulge at Lewis’ waist as he approached

which Williams believed to be a firearm. He admitted Lewis had not reached

for anything and Williams had not seen him with a weapon that night.

Because of his fear and the events of the night, Williams drew his own firearm

and shot Lewis four times, once in the head, once in the hip, and twice in the

chest. Two of the shots proved fatal.

The jury acquitted Williams of murder but found him guilty of the lesser-

included offense of manslaughter in the second degree and being a convicted

felon in possession of a handgun. Consecutive ten-year sentences for each

count were recommended by the jury and subsequently imposed by the trial

court. This appeal followed.

Williams alleges the trial court committed two reversible errors. First, he

asserts the trial court improperly prohibited trial counsel from asking Williams

on re-direct examination about his previous claims of self-defense. Second, he

contends on several occasions the trial court failed to admonish the jury as

required by RCr 3 9.70.

3 Kentucky Rules of Criminal Procedure.

4 For his first allegation of error, Williams claims the trial court erred in

precluding trial counsel from questioning him about a previous court

appearance where Williams claimed he shot Lewis in self-defense. During his

direct examination, Williams stated he had been wanting to tell his story for a

while. At a bench conference, the Commonwealth argued Williams had opened

the door to questioning about his refusal to speak with police on the night of

the shooting. Defense counsel conceded the door had been opened and the

trial court permitted the line of questioning.

On cross-examination, the Commonwealth extensively questioned

Williams regarding the failure to speak with police since—as he professed on

direct examination—he so badly wanted to tell his side of the story. Williams

was evasive, abrasive, and argumentative, often responding to the

Commonwealth’s questions with questions of his own. The Commonwealth

was ultimately able to elicit responses indicating Williams had initially told

police he saw three black males running away from the scene. Additional

questioning emphasized Williams had not indicated he shot Lewis in self-

defense, even after police located a revolver in his duffle bag hours after the

shooting. Williams admitted he told police nothing at the scene about how

Lewis came to be found dead in front of Williams’ home. He also testified that

later that evening he told police he would not speak without an attorney

present. The plain implication of the Commonwealth’s questioning was,

contrary to his assertions under direct examination, Williams had done

everything but try to tell his self-defense story.

5 On re-direct examination, defense counsel attempted to ask Williams if

he recalled making a statement previously, but the Commonwealth objected,

and a bench conference ensued. Defense counsel, in an effort to respond to

what he believed was the Commonwealth’s inference to the jury regarding a

recent fabrication, indicated he wanted to ask about a previous court

appearance during which Williams had blurted out that he had killed Lewis in

self-defense. The Commonwealth contended defense counsel was merely

attempting to bolster Williams’ own testimony. In response, defense counsel

argued Williams had said he wanted to tell his story “for some time” but never

said he had told the truth from the beginning. Because the court appearance

at which the alleged proclamation of self-defense occurred in 2020, he intended

to ask Williams about it because that was “some time ago.” Counsel further

alleged the Commonwealth had opened the door to the line of questioning by

implying to the jury that Williams had raised self-defense for the first time that

day. Neither party cited a rule of evidence or caselaw in support of their

relative positions. In sustaining the Commonwealth’s objection, the trial court

referred to Williams’ proposed testimony as bolstering and believed admitting it

would “open up such a can of worms.”

Rulings on the admissibility of evidence are reviewed for an abuse of

discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.

2000). An abuse of discretion occurs when “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). Williams argues

6 the trial court abused its discretion in excluding the evidence, alleging his prior

claim of self-defense was admissible as substantive evidence rebutting the

Commonwealth’s implication of a recent fabrication and to rehabilitate his

credibility after the Commonwealth attacked it. We disagree.

“The law is well established that ‘[a] witness is not permitted to bolster

her own testimony unless and until her credibility has been attacked.’” Garrett

v. Commonwealth, 534 S.W.3d 217, 225 (Ky. 2017) (quoting Tackett v.

Commonwealth, 445 S.W.3d 20, 32 (Ky. 2014)). Once the credibility of a

witness has been attacked, a prior consistent statement may be introduced

when offered “to rebut an express or implied charge against the declarant of a

recent fabrication or improper influence or motive[.]” KRE 4 801A(a)(2). Such

prior consistent statements must have been “made before the alleged motive to

fabricate came into existence.” Slaven v. Commonwealth, 962 S.W.2d 845, 858

(Ky. 1997). However, these statements are inadmissible when they are merely

“offered to prove that the declarant’s trial testimony is truthful because it is

consistent with her prior statements.” Winstead v. Commonwealth, 283 S.W.3d

678, 688 (Ky. 2009) (quoting Dickerson v. Commonwealth, 174 S.W.3d 451, 472

(Ky. 2005)). The longstanding rule in Kentucky is that generally

a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony. Where, however, a witness has been assailed on the ground that his story is a recent fabrication, or that he has some motive for testifying falsely, proof that he gave a similar account of the matter when the motive did not exist, before the effect of such an account could be foreseen, or when motive or interest would

4 Kentucky Rules of Evidence.

7 have induced a different statement, is admissible.

Eubank v. Commonwealth, 210 Ky. 150, 275 S.W. 630, 633 (1925) (emphasis

added).

Both at trial and on this appeal, Williams has failed to demonstrate that

he did not have a motive to fabricate at the time he made his claims of self-

defense in 2020, which was nearly two years after Lewis was killed. The claim

came well after he was arrested and was made aware of the Commonwealth’s

evidence against him. It was inconsistent with his statements to police on the

night of the shooting that he saw three men running from the scene and his

attempts to distance himself completely from any involvement. Williams

consistently attempted to conceal, deflect, and downplay his responsibility for

Lewis’ death by offering differing version of events. The incentive to lie about

what happened arose at the time he pulled the trigger of his revolver four

times. His motivation to fabricate simply did not change from the night of the

shooting through his trial. Indeed, he admitted during his trial testimony he

believed his best plan was to obfuscate and lie from the very beginning.

Therefore, because Williams’ motive to fabricate clearly existed prior to his

2020 claim of self-defense, those prior statements were inadmissible as

substantive evidence under KRE 404A(a)(2) to bolster his trial testimony.

In addition, Williams was not entitled to introduce his previous claim of

self-defense for rehabilitative purposes. A witness’s “post-motive” prior

consistent statements may be offered for purposes other than proof of the truth

of their contents such as when they are “offered primarily for rehabilitative, not

8 substantive purposes.” Noel v. Commonwealth, 76 S.W.3d 923, 929 (Ky. 2002).

“In such a case, the statement is not admitted under KRE 801A(a)(2) as a prior

consistent statement. Indeed, KRE 801A(a)(2) does not even address this

scenario[.]” James v. Commonwealth, 360 S.W.3d 189, 206 (Ky. 2012).

Instead, the prior statement is admitted as non-hearsay “because it is offered

not for the truth of the matter but to ‘rehabilitate . . . credibility.’” Id. (quoting

Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 730 (6th Cir. 1994)).

However, it must be shown that “the statement [has] ‘some rebutting force

beyond the mere fact that the witness has repeated on a prior occasion a

statement consistent with his trial testimony.’” Noel, 76 S.W.3d at 929

(quoting United States v. Ellis, 121 F.3d 908, 920 (4th Cir. 1997)). Williams’

entire defense was that he shot Lewis in self-defense. Based on the facts of

this case, the attempt to introduce his 2020 consistent claim of self-defense

could have no purpose other than to try to show the jury he was telling them

the truth from the stand. Because no other “rebutting force” exists,

introduction of the prior statement for rehabilitative purposes was

unwarranted. We discern no error in the trial court’s decision to exclude the

testimony.

Second, Williams argues the trial court committed reversible error when

it failed to admonish the jury during several recesses of the trial. He points to

six instances over the course of the four-day trial where the trial court did not

give or refer to the admonition. Defense counsel did not object to any of these

failures. Thus, the issue is not preserved for appellate review. Salinas v.

9 Commonwealth, 84 S.W.3d 913, 917 (Ky. 2002). While Williams admits this

claim of error is unpreserved, he seeks review under the palpable error

standard set forth in RCr 10.26, which provides:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

A palpable error is “easily perceptible, plain, obvious and readily

noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To

demonstrate manifest injustice, a party must show the “probability of a

different result or error so fundamental as to threaten a defendant's

entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3

(Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)). In other

words, a palpable error occurs where “the defect in the proceeding was

shocking or jurisprudentially intolerable.” Id. at 4.

RCr 9.70 provides as follows:

The jurors, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, nor form, nor express any opinion thereon, until the cause be finally submitted to them. This admonition must be given or referred to by the court at each adjournment.

The Commonwealth concedes the trial court did not admonish the jury

on the occasions noted by Williams. It observes, however, that the court did

10 properly admonish the jury on all other occasions when the jury was excused

from the courtroom.

We agree the trial court erred in failing to admonish the jury prior to

each recess. However, while RCr 9.70 requires an admonition at each

adjournment, “in the absence of some showing of misconduct, substantial

compliance with [the rule] will suffice.” Commonwealth v. Messex, 736 S.W.2d

341, 342 (Ky. 1987). Williams has not suggested or shown that he was

actually prejudiced by these failures. Furthermore, he does not identify any

instance where any member of the jury behaved contrary to the mandate of the

admonitions which were given. Messex, 736 S.W.2d at 342 (Ky. 1987);

Schweinefuss v. Commonwealth, 395 S.W.2d 370 (Ky. 1965). Moreover, a

review of the record reveals the trial court gave numerous, detailed

admonitions throughout the course of this lengthy trial. Thus, we assume any

supposed error was harmless and reversal is not warranted. RCr 9.24. This is

particularly true where, as here, as we are reviewing the issue under a palpable

error standard. See, e.g., Salinas, 84 S.W.3d at 917; Messex, 736 S.W.2d at

342; Daniels v. Commonwealth, 404 S.W.2d 446, 447 (Ky. 1966).

For the foregoing reasons, the judgment of the Jefferson Circuit Court is

affirmed.

All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell,

JJ., concur. Thompson, J., concurs in result only.

11 COUNSEL FOR APPELLANT:

Joshua M. Reho Louisville Metro Public Defender’s Office

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General

Jenny L. Sanders Assistant Attorney General