RENDERED : APRIL 24, 2008 TO BE PUBLISHED
2007-SC-000154-MR
JULIAN CHESTNUT APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE NOS. 06-CR-003744, 06-CR-002355, 04-CR-003146, 04-CR-003038, AND 04-CR-002479
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVE RSING
Appellant, Julian Chestnut, was convicted by a Jefferson Circuit Court jury
on four counts of burglary in the second degree, receiving stolen property over
three hundred dollars, possession of a controlled substance, and illegal
possession of drug paraphernalia . The jury recommended an aggregate
sentence of seventy-seven (77) years imprisonment, as enhanced by persistent
felony offender status . Appellant now appeals as a matter of right . Ky. Const . §
110(2)(b) .
Appellant raises eight claims of error: 1) that investigative hearsay
testimony was allowed at trial, violating his confrontation rights; 2) that he was
denied due process because of the Commonwealth's failure to disclose an
incriminating statement made by him; 3) that the trial court abused its discretion
in permitting the Commonwealth's motion to join offenses ; 4) that the trial court erred in permitting the peremptory strike of a juror in violation of Batson; 5) that
the trial court abused its discretion in allowing the introduction of prejudicial
photographs; 6) that Appellant was denied his due process rights when the jury
was allowed to consider excluded evidence during deliberations; 7) that the trial
court erred in failing to make findings of fact at a suppression hearing ; and 8)
that Appellant was denied due process due to faulty jury instructions on the
illegal use or possession and persistent felony offender charges . Upon review,
having concluded that the Commonwealth's failure to disclose an incriminating
oral statement of the defendant per RCr 7.24(1) impermissibly tainted the
Appellant's defense in this case, we hereby reverse the conviction and
sentencing and remand this matter for a new trial .
I. BACKGROUND
The following facts center on the criminal activity of Appellant, Julian
Chestnut, during the course of a nine-day period in August 2004 . In the early
morning hours of August 18, 2004 a series of burglaries were committed on Mt.
Rainier Drive in Jefferson County . At that time, officers were dispatched to
respond to a call for a burglary in progress . Officer Ebersol was one of the
officers who responded to the call. Once in the area, Ebersol noticed a gray
Chevrolet parked outside of the residence from which the call had been made.
The gray Chevrolet then started its engine and sped away . Ebersol gave chase
in his cruiser, eventually catching up with the car approximately a mile later.
Appellant was the driver and sole occupant of the gray Chevrolet.
Upon being stopped, Appellant told Ebersol that he was lost and had
turned around in the subdivision . Subsequently, a show-up identification was 2 conducted with the owner of the residence, Anne Boldrick, and the back-up
officer, Detective Mellon . Appellant was then arrested and taken for further
questioning . In total, three burglaries occurred on Mt. Rainier Drive on the night
in question . All burglaries were perpetrated in a similar manner and with similar
items being taken, i .e . wallets, purses, money, cell phone, etc .
Appellant's partially estranged wife, Shakita, was also indicted for the Mt .
Rainier burglaries and pled guilty under a complicity theory. According to
Shakita's testimony, she and Appellant and had spent the day together, drinking
and getting high smoking crack cocaine . Upon running out of drugs, the two
decided to go get money to obtain more drugs.
Testimony indicates that the two went to a neighborhood with nice homes
where Appellant told Shakita to wait in the car while he got some money from a
"friend ." Shakita testified that she became bored with waiting and decided to
burglarize some homes. She was confronted in one of the homes by the
homeowner and fled. Thereupon, she called Appellant on a cell phone which
she had stolen from one of the residences . At this point, however, Appellant was
already in the custody of police.
Appellant, on the other hand, claims that he was working at the Waffle
House on the night in question, and that he was only in the area to pick up
Shakita, who called him indicating that she had burglarized some homes and
needed a ride. Appellant denied ever being in the Mt. Rainier subdivision .
On August 13, 2004, the home of Richard LeBlanc on Falls Creek Rd .,
was burglarized . In the early morning hours, Richard's son noticed a gray
Chevrolet parked in front of the house. Upon waking, the family noticed that a purse, laptop computer, and some distinctive, personalized men's jewelry were
missing . A pawn shop record showed Appellant pawned the jewelry .
On August 20, 2004, a home was burglarized on Mockingbird Lane in
Jefferson County. Additionally, their black Lexus sedan was stolen . Two days
later on August 22, 2004, officers on narcotics patrol in west Louisville pulled the
black Lexus over . Appellant was the passenger in the car. Upon being stopped,
testimony indicates Appellant shouted to the driver "go, go, go!" Appellant had a
key to the Lexus in his pocket along with a bag of cocaine and a used crack pipe.
The Lexus was the same automobile stolen from the Mockingbird Lane residence
two days earlier .
11. ANALYSIS
A. Appellant's confrontation rights were not denied because the testimony was non-hearsay offered for the purpose of explaining the development of Appellant as a suspect in the case and thus not investigative hearsay.
Appellant argues that testimony presented at trial by Officers Ebersol and
Mellon is investigative hearsay, and that, as such, his confrontation rights were
violated by its admission . We disagree .
During trial Appellant objected to the introduction of certain testimony by
Officer Ebersol indicating that after the stop of Appellant in the Mt. Rainier Dr.
area, a "show-up" identification was held . Additionally, Appellant objected to
testimony by Detective Mellon that he took Ms . Boldrick to the scene of the stop
to conduct the "show-up" identification, and that the purpose of a "show-up" is to
see if a witness can identify a suspect. The officers also testified that Appellant
was arrested following the "show-up." The trial judge sustained Appellant's objections to the extent that no hearsay statements of Ms . Boldrick regarding
identification would be admissible . Thus, no identification testimony was
presented regarding what Ms. Boldrick said about Appellant .
It is well-established that investigative hearsay is still, fundamentally,
hearsay and, thus, disallowed . See, e.g . , Sanborn v. Commonwealth , 754
S.W.2d 534, 541 (Ky. 1988), overruled on other grounds by Hudson v.
Commonwealth , 202 S .W .3d 17 (Ky. 2006). However, it is equally evident that
not all testimony from a police officer concerning an investigation is hearsay.
This Court accepted the plurality holding of Sanborn regarding
investigative hearsay and the verbal acts doctrine in Brewer v. Commonwealth,
206 S .W.3d 343, 351 (Ky. 2006), therefore rendering it binding precedent. Thus,
the rule on investigative hearsay which Sanborn announced proves dispositive .
"The rule is that a police officer may testify about information furnished to him
only where it tends to explain the action that was taken by the police officer as a
result of this information and the taking of that action is an issue in the case."
Sanborn , 754 S.W.2d at 541 . Such testimony is then admissible not for proving
the truth of the matter asserted, but to explain why a police officer took certain
actions. Young v. Commonwealth , 50 S .W.3d 148,167 (Ky. 2001). However,
Sanborn places a short leash on the extent to which investigative hearsay, or as
more appropriately styled, investigative verbal acts, may be used . It limits such
testimony
to circumstances where the taking of action by the police is an issue in the case and where it tends to explain the action that was taken as a result of the hearsay information . In such circumstances, hearsay may be admissible to prove why the police acted in a certain manner, but not to prove the facts given to the officer. Gordon v. Commonwealth, 916 S .W .2d 176,179 (Ky. 1995) .
Here, development of Appellant as a suspect in the case, and his
subsequent arrest were certainly at issue, particularly in light of Appellant's
testimony at trial. Appellant testified that he was never in the Mt. Rainier
subdivision . However, at trial, testimony was presented that police saw a gray
Chevrolet in the area of the burglary call they responded to, that the car drove
away and was pursued by the police and subsequently stopped . Moreover,
Appellant accused Officer Ebersol of lying during his testimony. Therefore, why
the police arrested Appellant was clearly at issue.
Thus, the complained of testimony concerning the show-up identification
also served to explain Appellant's arrest. The testimony was not offered to prove
the truth of what Boldrick told the officers . Rather, it was offered to prove the
officers' motive for arresting Appellant . In the present instance, what was not
said concerning the "show-up" identification is as important as what was said.
There was no hearsay testimony presented purporting to show that what Boldrick
told the officers was true or untrue . The officers' testimony concerned only what
they did on the night in question, not that Boldrick identified the Appellant .
Therefore, Appellant was not denied his right to confrontation . See Crawford v.
Washington, 541 U .S . 36,124 S .Ct. 1354, 158 LEd .2d 177 (2004); Norton v.
Commonwealth , 890 S.W .2d 632, 635 (Ky. 1994) (noting that the admissibility of
out of court statements for non-hearsay purposes does not violate the
confrontation clause) . Therefore, there was no error here .
B. The trial court committed reversible error in admitting Appellant's oral statements withheld in violation of RCr 7.24(1), effectively destroying the credibility of the whole defense. 1. The Commonwealth should have disclosed Appellant's incriminating oral statements during discovery irrespective of the fact that such statement had not been reduced to writing .
Appellant argues that the Commonwealth presented testimony which they
were bound to disclose to him under RCr 7.24(1), and thus the trial court's
admission of said testimony was error. We reluctantly agree.
Detective Wright interviewed Appellant at the police station following his
arrest. During that interview, Appellant admitted to Detective Wright that he
waited outside as his wife burglarized homes . Appellant now asserts that certain
testimony presented at trial by Wright concerning these previously undisclosed
oral statements made by the Appellant was given in violation of RCr 7 .24(1).
RCr 7 .24(1) states in pertinent part that
the attorney for the Commonwealth shall disclose the substance, including, time, date, and place, of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness, and to permit the defendant to inspect and copy or photograph any relevant (a) written or recorded statements or confessions made by the defendant, or copies thereof, that are known by the attorney for the Commonwealth to be in the possession, custody, or control of the Commonwealth
RCr 7.24(1) (emphasis added). Admittedly, this Court has previously held that
the first part of RCr 7.24(1) applies only to written or recorded oral statements .
Berry v. Commonwealth , 782 S.W.2d 625, 627 (Ky. 1990) ("RCr 7.24 applies
only to written or recorded [oral] statements .") ; Partin v. Commonwealth, 918
S .W .2d 219, 224 (Ky. 1996) (finding that no substantive changes had been made
to RCr 7.24 that would affect the Court's ruling in B_ errs, and thus finding no error
in the trial court allowing testimony of previously undisclosed oral statement) .
However, although we upheld these previous decisions in Matthews v.
Commonwealth , 997 S.W.2d 449, 451 (Ky. 1999), overruled on other grounds by 7 Hayes v. Commonwealth , 58 S .W.3d 879, 882 (Ky. 2001), we were troubled by
the result and began to question the soundness of the line of reasoning these
prior opinions espoused. See infra .
Truly, we are heedful of the doctrine of stare decisis . "[S]tare decisis [is]
the means by which we ensure that the law will not merely change erratically, but
will develop in a principled and intelligible fashion ." Vasquez v. Hillary, 474 U.S .
254, 265-265, 106 S .Ct. 617, 624, 88 L .Ed .2d 598 (1986). Thus, it is with
anything but a cavalier attitude that we broach the subject of changing the ebb
and flow of settled law. However, we do not feel that the doctrine compels us to
unquestioningly follow prior decisions when this Court finds itself otherwise
compelled . "The doctrine of stare decisis, like almost every other legal rule, is
not without its exceptions . It does not apply to a case where it can be shown that
the law has been misunderstood or misapplied, or where the former
determination is evidently contrary to reason ." Payne v. City of Covington, 276
Ky. 380, 123 S.W .2d 1045, 1050-1051 (1938). While the doctrine does guide us
to decide every case with a respect for precedent, it does not demand that this
Court be precluded from change.
Looking at the plain language of RCr 7 .24(1) stating that, "the
Commonwealth shall disclose . . . any oral incriminating statement . . . made by a
defendant," we find that it is apparent from a reading of the language of the rule,
that RCr 7 .24(1) was intended to apply to both oral and written statements, which
were incriminating at the time they were made. Consequently, to the extent that
Berry, and its progeny Partin and Matthews hold that RCr 7.24(1) does not apply
to a defendant's oral incriminating statements, they are overruled . We simply cannot in good faith square such a counterintuitive reading of the rule's manifest
intention. The Commonwealth's ability to withhold an incriminating oral
statement through oversight, or otherwise, should not permit a surprise attack on
an unsuspecting defense counsel's entire defense strategy. Such a result would
run afoul of the clear intent of RCr 7.24(1).
Accordingly, we now conclude that nondisclosure of a defendant's
incriminating oral statement by the Commonwealth during discovery constitutes a
violation of the discovery rules under RCr 7.24(1), since it was plainly
incriminating at the time it was made.'
As such, we find this Court's reasoning in the dissent in Matthews to be
persuasive .
There are two clear parts to RCr 7.24(1)(a). The first requires that the Commonwealth "disclose the substance of any oral incriminating statement .. . made by a defendant to any witness ." The second mandates that the Commonwealth give the defendant access to "any relevant written or recorded statements ." The reason that it is clear there are two separate parts to RCr 7.24(1)(a) is that the conjunction "and" is employed in the middle of the rule. Accordingly, there are two separate burdens imposed by RCr 7.24(1)(a) .
RCr 7.24(l)(a) demands disclosure of "any incriminating statement." This is not a vague or complex concept. Basically anything that the defendant has said to a witness which in any way incriminates himself or herself must be disclosed to the defense. This part of the rule does not require that the statement even be recorded, simply that the Commonwealth know of the statement.
Mathews , 997 S .W .2d at 454 (Stephens, J ., dissenting) . In Matthews , the
dissent notes that when the appellant did not learn that the Commonwealth was
in possession of his incriminating statements until trial, his rights were
' This ruling would not be applicable to non-incriminating or innocuous statements made by defendant prior to trial which only become incriminating in the context of testimony at trial . impermissibly violated . Id. at 454 (Stephens, J., dissenting) . Justice Stephens
reasons therein, that such impermissible violation of one's rights constitutes
reversible error in his estimation . Id . at 453-454 . Today, we are inclined to
agree.
Having concluded that such action constitutes a violation of the discovery
rules in that the statements were incriminating, we next turn to whether the trial
court erred in allowing the introduction of Appellant's statements, and whether
such error mandates reversal . The United States Supreme Court has held that a
discovery violation serves as sufficient justification for setting aside a conviction
when there is a reasonable probability that if the evidence were disclosed the
result would have been different . Wood v. Bartholomew, 516 U.S . 1, 5-6,116
S .Ct. 7, 10, 133 L.Ed .2d 1 (1995) (quoting Kyles v. Whitley, 514 U .S. 419, 433-
444, 115 S .Ct. 1555, 1565-1566, 131 L .Ed .2d 490 (1995)) ; see also Weaver v.
Commonwealth , 955 S .W.2d 722, 725-726 (Ky. 1997).
Here, Appellant asserts that had the incriminating statement been
disclosed prior to trial, there was a reasonable probability that the result would
have been different . Specifically, he argues that the Commonwealth's failure to
turn over the statement served to fatally undermine his whole defense by
permitting the Commonwealth to introduce a surprise confession in an otherwise
circumstantial case, which directly refuted testimony proffered by both Appellant
and Shakita. Appellant contends that the failure to disclose the statement
induced him to rely on a defense strategy he may not have otherwise asserted
and denied his right to due process of law. However, before such a determination can be made, we must turn to the
question of whether, despite the Commonwealth's violation in failing to turn over
Appellant's oral statement, the trial court properly admitted such testimony in
rebuttal .
2. Presentation of undisclosed evidence in violation of RCr 7.42(1) under the guise of rebuttal evidence pursuant to RCr 9.42 constitutes reversible error.
The Commonwealth asserts that even if the failure to disclose the
statements was a discovery violation, the statements could be used in rebuttal .
However, the duty of discovery imposed by RCr 7.24(1) to disclose incriminating
statements does not end at the close of the Commonwealth's case in chief.
Rebuttal does not offer a protective umbrella, under which prosecutors may lay in
wait. "A cat and mouse game whereby the Commonwealth is permitted to
withhold important information requested by the accused cannot be
countenanced ." James v. Commonwealth, 482 S.W.2d 92, 94 (Ky. 1972) .
That the statements were Appellant's own is immaterial . The premise
underlying RCr 7 .24(1) is not only to inform the defendant that he has made
these statements, as he should be clearly aware, but rather to inform the
defendant (and to make sure his counsel knows) that the Commonwealth is
aware that he has made these statements . This ensures that the defendant's
counsel is capable of putting on an effective defense, as per the intent of the rule .
See Anderson v. Commonwealth , 864 S.W.2d 909, 914 (Ky. 1993) (holding that
Commonwealth's failure to disclose incriminating statement "denied the defense
the opportunity to prepare for and refute the incriminating evidence by cross- examination or other proof'). This holds true regardless of whether the
incriminating statements are written or oral.
The Commonwealth likens the present situation to the instances of tainted
evidence under Miranda violations, as addressed by the United States Supreme
Court in Harris v. New York, 401 U .S. 222, 91 S.Ct. 643, 28 L.Ed .2d 1 (1971). In
Harris , the Court reasoned that statements which were precluded from entering
into the prosecutor's case in chief, because of a failure to comply with the
procedural protections of Miranda, could nonetheless be used for impeachment
purposes. The Court articulated that in these instances, the exclusionary rule
would offer sufficient protections, both in its preclusion of admitting evidence
during the prosecutor's case in chief and in curbing impermissible police conduct.
Harris, 401 U.S . at 225, 91 S .Ct. at 645.
However, in the present instance we are not confronted with Miranda
violations, of which the defendant and his counsel would be aware . Moreover,
protections such as the exclusionary rule are not in place. Instead, we are faced
with a violation of discovery rules under RCr 7 .24(1) and the potential for the late
introduction of evidence which is then destructive of the credibility of the entire
defense . See Wood, 516 U .S. at 5-6, 116 S .Ct. at 10. Furthermore, absent the
protections of RCr 7.24(1), there is nothing to curb the errant prosecutor who
may strategically violate the rule in an attempt to surprise a defendant with an
undisclosed statement.
This is not to say that a defendant is permitted to take the stand and
commit perjury without recourse . Indeed, a criminal defendant who testifies in
his own defense is bound by the same rights and repercussions as every other
12 witness in a court of law, and may rightfully be subject to impeachment or any
other available remedy. However, we cannot say that when evidence is withheld
in violation of the rules of this Court, that they may be permissibly used under the
pretext of rebuttal without consequence .
Assuredly, the trial court is granted broad discretion in its determination on
the admissibility of evidence in rebuttal under RCr 9 .42 . Pilon v. Commonwealth,
544 S.W.2d 228, 231 (Ky. 1976). Therefore, the test for admission of evidence is
an abuse of discretion . Commonwealth v. King , 950 S.W.2d 807, 809 (Ky.
1997). However, by permitting evidence to be admitted on rebuttal which was
withheld from the defense in violation of the rules, we find that the trial court
abused its discretion in this instance . Surely, there may be some cases where
such introduction will be harmless, yet we are not convinced such was the case
here . Therefore, Detective Wright's testimony was improperly placed before the
jury at trial as rebuttal evidence .
In Akers v. Commonwealth, 172 S .W .3d 414, 417-418 (Ky. 2005), this
Court held that the Commonwealth's RCr 7.24 discovery violation mandated
reversal as it prejudiced the appellant's ability to properly prepare a defense .
This Court noted that if the Commonwealth had provided the withheld evidence,
it is doubtful "defense counsel would have proceeded in the same manner or the
jury would have reached the same result." Id.
Likewise, in Grant v. Commonwealth , --- S .W.3d ---, 2008 WL 199711 *4
(Ky. 2008), this Court was recently presented with a closely analogous situation,
wherein the Commonwealth attempted to introduce a defendant's undisclosed
incriminating statements in rebuttal. In Grant, we concluded that the
13 Commonwealth's withholding of the appellant's statement until after he had put
on his defense, prevented counsel from making an informed decision as to an
appropriate defense strategy, therefore requiring reversal. Id.
Here, Appellant's defense consisted of his testimony at trial . When
questioned concerning the Mt. Rainier subdivision burglaries, Appellant denied
any participation . However, prior testimony indicated that Appellant had told
police that he had gotten lost and entered the subdivision to turn around .
Appellant never mentioned working that night, nor did he mention to police that
he was in the subdivision to pick up his wife. However, he testified at trial that he
explained his presence on the night in question to Detective Wright, claiming that
he was merely there to pick up his wife, and that he never entered the
subdivision where Mt. Rainier is located . Moreover, he testified that he was
working at the Waffle House on the night in question prior to being stopped . On
rebuttal, over Appellant's objection, the Commonwealth called Detective Wright.
Detective Wright testified that after Appellant was transported to the police
substation and further questioned, he admitted that he was in the subdivision and
that he waited outside in the car while his wife burglarized homes . He testified
that Appellant's oral statement was never reduced to writing.
Consequently, Wright's testimony concerning Appellant's confession
essentially gutted Appellant's defense. For this reason, we cannot say that had
Appellant been presented with this information prior to trial, he would have
proceeded with his defense in the same manner or that the trial would have
achieved the same result. Grant , --- S.W.3d ---, 2008 WL 199711 *4 ("While we
cannot say with certainty that the result at trial would have been different, we can
14 say that Appellant's defense to the charges would have been different, and we
cannot conclude that the jury would have reached the same result."); see also Akers , 172 S.W.3d at 417 ("We cannot reasona bly conclude that, had Akers'
been provided the assault report, defense counsel would have proceeded in the
same manner or the jury would have reached the same result .") As such, we find
that because the trial court abused its discretion in allowing the admission of the
statements in violation of RCr 7 .24(1), and because we find it reasonably likely
that had the evidence been disclosed, Appellant's defense, and potentially the
result, would have been different, we cannot find the error harmless.
Having determined that Appellant's convictions should now be reversed,
we will consider the remaining issues as such may, or will, recur on retrial.
C. Appellant was not unduly prejudiced by joinder of the charges against him, and the trial court's error in regard to the source of the stolen vehicle was harmless.
Appellant also argues that the trial court abused its discretion in permitting
the various charges against him to be joined together and heard in a single trial .
We disagree .
RCr 6 .18 states that two or more offenses may be charged in the same
indictment "if the offenses are of the same or similar character or are based on
the same acts or transactions connected together or constituting parts of a
common scheme or plan ." A trial judge has broad discretion concerning the
joinder of indictments for trial, and absent a clear demonstration of abuse of that
discretion, the trial judge will not be overturned. Violett v. Commonwealth, 907
S.W.2d 773, 775 (Ky. 1995) . Offenses that stem from closely related events and which occur within a short period of time may be properly joined in one
indictment . See Pennington v. Commonwealth , 479 S.W.2d 618, 619 (Ky. 1972) .
Further, RCr 9.12 sets forth the standard to be applied by a trial judge in
determining whether joined offenses may be tried together or separately. RCr
9.12 indicates that two or more offenses may be tried together "if the offenses . . .
could have been joined in a single indictment." Again, here, the trial judge has
broad discretion in determining whether charges should be joined for trial, and
such a decision should not be overturned absent a showing of prejudice and
clear abuse of that discretion . Sherley v. Commonwealth , 889 S .W.2d 794, 800
(Ky. 1994). RCr 9.16 mandates that a separate trial is in order if joinder of the
offenses would result in undue prejudice to either party. A conviction based on
joinder of offenses should only be reversed if there is a clear showing of abuse of
discretion and prejudice to the defendant. Spay v. Commonwealth , 609 S .W.2d
128, 131 (Ky. 1980). It is well-established that joinder is proper under RCr 6.18
and RCr 9 .12 when "the crimes are closely related in character, circumstance,
and time." Id .
Appellant's charges all occurred within a close temporal period . Appellant
was charged with the Falls Creek burglary occurring on August 13, 2004. The
three Mt. Rainier burglaries happened on August 18, 2004 . Appellant was then
stopped on August 22, 2004, in a stolen car with both the keys to the stolen car
and drugs in his pocket.
Joinder in this instance was proper and not an abuse of discretion, nor
overly prejudicial to Appellant . All of the charges stemmed from criminal activity
taking place within a nine-day period in close geographic proximity in Jefferson
16 County. Moreover, the circumstances surrounding the events suggested a
common plan or scheme . The trial court found that the separate offenses were
part of a common course of conduct and motive whereby Appellant burglarized
and stole from residences, pawning the stolen property to finance his drug habit
of using and selling drugs. The court articulated that all of the burglaries
occurred in the same area of town, and that the charges served to explain an
enmeshed source of motive, one for the other .
Thus, the trial court did not abuse its discretion in permitting joinder
despite a factual error on the court's behalf. Appellant correctly asserts that the
trial court was erroneous in their belief that the stolen car was from one of the
Falls Creek or Mt. Rainier burglaries . In fact, the car was stolen from another
location, the burglary of which Appellant was indicted for, but acquitted .
That being said, a sufficient nexus of factual and schematic evidence
existed between all of the charges joined . Thus, separate trials would be
unnecessary, notwithstanding the factual error of the trial court, as evidence from
each offense would have been admissible in either trial, even if conducted
separately. See Russell v. Commonwealth , 482 S.W.2d 584, 588 (Ky. 1972)
("An important factor in determining whether a joinder of offenses for trial is
prejudicial is whether the evidence of one of the offenses would be admissible in
a separate trial for the other offense . If the evidence is admissible, the joinder of
offenses, in most instances, will not be prejudicial ."). Here, there was neither a
demonstration of an abuse of discretion, nor a clear showing of undue prejudice .
See Harris v. Commonwealth , 556 S .W .2d 669, 670 (Ky. 1977).
D. The trial court was correct in its determination that there was no Batson violation during voir dire. 17 Appellant argues that a prospective African-American juror was struck in
violation of Batson v. Kentucky, 476 U .S. 79, 106 S .Ct . 1712, 90 L.Ed.2d . 69
(1986), thus violating his Sixth and Fourteenth Amendment rights . Appellant's
argument lacks merit as it is unsupported by the facts at trial.
The United States Supreme Court, in Batson , articulated a three-step
process for determining whether the state's use of peremptory challenges
violates the Equal Protection Clause . A defendant first has the burden of making
a prima facie showing that a peremptory challenge has been exercised on the
basis of race ; second, if this showing is made, then the burden shifts to the
prosecutor to articulate a race-neutral reason for striking the juror in question ;
and third, the trial court must then determine whether the burden of proving
purposeful discrimination has been met. Id. at 96-98, 106 S.Ct. at 1723-1724 .
"Batson was not intended to remove all prosecutorial discretion in peremptory
strikes, but rather to eliminate the odious practice of eliminating potential jurors
simply because of race ." Washington v. Commonwealth , 34 S.W .3d 376, 379
(Ky. 2000) .
Admittedly, jurisdictions are divided as to whether and to what extent an
explanation is required upon an allegation of discrimination in the use of
peremptory challenges, and many states have declined to proffer a bright line
requirement as to under what circumstances a race-neutral justification is
required . See 50A C.J.S . Jury § 451 (2008). However, if a court can point to
certain circumstances in the record which indicate that the prosecution has not
exercised peremptory challenges in a discriminatory manner, then a race-neutral
justification may not be required . See Valentine v. State, 616 So.2d 971, 974 18 (Fla . 1993). Moreover, some courts have held that the burden of a prima facie
showing of discrimination has not been met until the trial court asks for a race-
neutral justification . See State v. Newell, 132 P.3d 833, 845 (Ariz. 2006).
We believe, however, it is the circumstances which raise the inference and
thus establish the threshold requirement . Here the court correctly reasoned that
the objection was premised upon a confusion regarding the two jurors, thus no
prima facie showing occurred . Commonwealth v. Hardy, 775 S.W.2d 919, 920
(Ky. 1989). Therefore, the burden of going forward, in this instance, did not shift
to the Commonwealth to provide a race-neutral justification for this peremptory
strike .
During voir dire, there were two African Americans on the panel . The
Commonwealth used eight of its nine peremptory challenges to strike prospective
jurors of other races. The Commonwealth struck juror number thirty-two (32),
one of the two African-Americans, with one of its nine peremptory challenges .
Appellant then objected and asked for a race-neutral justification for striking juror
number thirty-two (32) in line with Batson . The Commonwealth, indicating that it
took these allegations very seriously, asked that Appellant establish a prima facie
case of racial discrimination .
Appellant then argued that juror number thirty-two (32) had answered
several questions in a manner that would indicate that she would be a good juror.
The trial judge then asked Appellant's counsel if he were confusing juror number
thirty-two (32) with juror number twenty-one (21). Both jurors were African-
American females . The court explained that juror number thirty-two (32) had
answered no questions at all, that it was juror number twenty-one (21) which had
19 given those answers . The Commonwealth did not strike African-American juror
number twenty-one (21). She did, in fact, serve on the jury during trial .
Appellant conceded that he may have confused the two jurors. Appellant,
however, stood on his objection as to juror number thirty-two (32) . Appellant said
that he would offer what he had already stated (meaning that juror number thirty-
two had answered questions well), and added, "if I'm mistaken then I'm
mistaken ." The judge then stated that, "the record will be clear, seat number
twenty-one answered quite articulately . . . but number thirty-two made no
responses to anything ." Plainly, the court did not require the Commonwealth to
provide a race-neutral reason for striking juror number thirty-two (32) because
the record was clear that Appellant's objection was due to his confusion . See
Valentine , 616 So.2d at 974.
Appellant now argues that although juror number thirty-two (32) did not
answer any questions, she listened attentively and nodded approvingly at several
occasions, thus a race-neutral justification was required . On appellate review, a
trial court's denial of a Batson challenge will not be reversed unless clearly
erroneous . Hernandez v. New York, 500 U .S. 352, 369, 11 S .Ct . 1859, 114
L .Ed .2d 395 (1991); Washington , 34 S.W.3d 376, 379-380 . "Because the trial
court is the best `judge' of the Commonwealth's motives in exercising its
peremptory strikes, great deference is given to the court's ruling." Grate,
Commonwealth , 203 S.W.3d 679, 691 (Ky. 2006) (citing Wells v.
Commonwealth , 892 S.W.2d 299, 303 (Ky. 1995)) .
Here, Appellant failed to meet the threshold requirement demonstrating a
prima facie showing that the Commonwealth exercised a peremptory challenge
20 on the basis of race as required under Batson , since the circumstances did not
reach a prima facie violation . Batson, 476 U.S . at 96-98, 106 S .Ct. at 1723-1724 .
Thus, the Commonwealth was not required to proffer a race-neutral justification .
Given the Appellant's obvious confusion and his conceded
misidentification of the two African-Americans, the trial court was not clearly
erroneous in its denial of Appellant's objection . Appellant's argument is without
merit .
E . Photographs of the interior of Appellant's car were properly admitted as they were relevant and not unduly prejudicial .
Appellant claims that he was unduly prejudiced at trial by the admission of
photographs of the interior of his car on the night he was arrested for burglary .
Evidence, of any nature, must clear two preliminary hurdles in order to be
admissible. First, it must be relevant. Robert G . Lawson, The Kentucky
Evidence Law Handbook § 2.00, 77 (4th ed . 2003). Second, its prejudicial effect
must not substantially outweigh its probative value . KRE 403 . Mere prejudice
alone will not exclude a relevant photograph ; the prejudicial effect must be
substantial . In this regard, a trial judge has broad discretion in determining the
admissibility of photographic evidence . Woodall v. Commonwealth, 63 S .W.3d
.104, 130 (Ky. 2001) . The general rule is that relevant pictures are not rendered
inadmissible even when the photographs depict gruesome or heinous images of
a crime . Esc . , Brown v. Commonwealth, 558 S .W.2d 599 (Ky. 1977).
Here, the complained of photographs were neither heinous, nor
gruesome, nor overly prejudicial . Appellant claims that the photographs
depicting the interior of his car portrayed an unopened condom on the seat, 21 causing extreme prejudice . However, the photographs also depict the way the
car appeared on the night of Appellant's arrest, upon leaving the scene of a
burglary. The photographs also depict other contents of the car, including a
flashlight . The prejudice, if any, suffered by Appellant is certainly outweighed by
the photograph's probative nature. There was no error in allowing admission of
the photograph .
F. The trial court committed error in allowing excluded evidence into the jury room during deliberations .
Appellant argues prejudice in that the jury was allowed to consider
evidence, during deliberations, which was specifically excluded from the record .
We agree.
During deliberations the jury was permitted, pursuant to RCr 9.72, to take
back a pawn shop record which contained evidence indicating that Appellant had
pawned jewelry from the Falls Creek burglary. However, the pawn shop record
also contained a receipt showing an unrelated pawn ticket of a men's bracelet
three days before the Falls Creek burglary . Appellant objected to its inclusion,
and the trial court ordered that portion of the pawn record redacted . However,
the complained of portion was not actually redacted and was allowed to go back
with the jury. This was error which should not reoccur.
G. The omitted record as to the pretrial suppression hearing supports the decision of the trial court.
Appellant argues that the trial court erred by failing to render findings of
fact at a pretrial suppression hearing, thus mandating reversal . Appellant's
argument is without merit .
22 Initially, it should be noted that the record is incomplete as to the
evidentiary suppression hearing for the Mt. Rainier burglaries . At trial, Appellant
moved to suppress physical evidence, statements, and identifications made
pursuant to the stop following the Mt. Rainier burglaries, and to suppress
evidence from the drug case. RCr 9.78 states:
If at any time . . . a defendant moves to suppress. . . evidence consisting of (a) a confession or other incriminating statements alleged to have been made by the defendant to police authorities, (b) the fruits of a search, or (c) witness identification, the trial court shall conduct an evidentiary hearing . . .and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling. If supported by substantial evidence the factual findings of the trial court shall be conclusive .
Indeed, RCr 9.78 necessitates an evidentiary hearing and entry into the record of
findings of fact. Appellant does not claim that an evidentiary hearing did not
occur. Appellant argues that because the record lacks proof of the findings,
reversal is mandated . This is not so .
The video record is incomplete as to portions of the suppression hearing ;
therefore to say that proof was not entered would be presumptuous at best. This
Court is not in the business of making baseless presumptions . It is incumbent
upon Appellant to present the Court with a complete record for review. See Steel
Technologies, Inc. v. Congleton , 234 S.W.3d 920, 926 (Ky. 2007); Davis v.
Commonwealth , 795 S .W.2d 942, 948-949 (Ky. 1990) . When the record is
incomplete, this Court must assume that the omitted record supports the trial
court. Commonwealth v. Thompson , 697 S.W.2d 143,145 (Ky. 1985) . "We will
not engage in gratuitous speculation as urged upon us by appellate counsel,
based upon a silent record ." Id.
23 In Davis , this Court examined RCr 9.78 hearings on suppression motions
and the standard for appellate review of such motions . 795 S .W.2d at 948. The
appellant in Davis claimed error, but the record lacked any transcript of the
suppression hearing. Id. The Court stated that they would not entertain the
appellant's claim of error, because she had failed to avail herself of CR 75 .13 .
Id. at 949 . Cr 75 .13 allows an appellant to prepare a narrative statement "for use
. . as a supplement to or in lieu of an insufficient electronic recording" of a
suppression hearing. CR 75.13(1). The Court articulated :
[a]ppellant has failed to show that the ruling below was not supported by substantial evidence . "In the absence of any showing to the contrary, we assume the correctness of the ruling by the trial court." It is the duty of a party attacking the sufficiency of evidence to produce a record of the proceeding and identify the trial court's error in its findings of fact. Failure to produce such a record precludes appellate review.
Id. (quoting Harper v. Commonwealth , 694 S.W.2d 665, 668 (Ky. 1985)) .
Here, Appellant has similarly failed to avail himself of CR 75.13.
Moreover, Appellant has failed to provide this Court with a complete record for
review. As such, we are bound to assume that the omitted record supports the
decision of the trial court. Thompson , 697 S .W.2d at 145. Therefore, pursuant to
RCr 9.78, the factual finding of the trial court would be conclusive .
H. Complained of jury instructions did not render Appellant's trial fundamentally unfair, nor did they permit the Commonwealth to avoid proving every element of the crimes charged .
Appellant argues that jury instructions pertaining to the illegal use or
possession of drug paraphernalia tendered to the jury were improper as they
precluded the Commonwealth from proving beyond a reasonable doubt all
statutory elements of the offense . Further, Appellant argues that the jury
24 instructions regarding the first-degree persistent felony offender instruction
tendered to the jury was likewise insufficient . We disagree in both instances.
Appellant contends that the jury instruction concerning the illegal
possession of drug paraphernalia charge lacks the intent element and thus
deprives him of constitutional rights . Admittedly, RCr 9.54(2) provides that "no
party may assign as error the giving or the failure to give an instruction unless the
party's position has been fairly and adequately presented to the trial judge" by
proper objection, or unless the party specifically states grounds for objection
before the jury is instructed . This Court has consistently regarded failure to
comply with the requirements of RCr 9.54(2) as precluding review.
Commonwealth v. Thurman, 691 S .W .2d 213, 216 (Ky. 1985); Johnson v.
Commonwealth , 105 S .W .3d 430, 435 (Ky. 2003); Chumbler v. Commonwealth ,
905 S.W.2d 488, 499 (Ky. 1995). Although Appellant's argument is unpreserved
for appellate review under RCR 9.54, we will nonetheless examine the substance
of Appellant's allegation for sake of clarity upon retrial.
Appellant argues that omission of the intent element from the instructions
violated his due process rights by avoiding the Commonwealth's obligation to
prove every element of an offense beyond a reasonable doubt. However, the
United States Supreme Court has stated that "an instruction that omits an
element of the offense does not necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence." Neder v.
United States, 527 U.S . 1, 9,119 S.Ct. 1827, 1833, 144 L.Ed .2d 35 (U .S . 1999).
The Court in Neder specifically rejected appellant's position that omission of an element from a jury instruction amounted to a de facto rendition of an unfair trial.
Id . at 13-15.
Here, in the court's instruction on illegal possession of drug paraphernalia,
the jury was instructed to find guilt if it believed:
A. That in this county on or about August 22, 2004 he had in his possession a pipe; AND
B. That said pipe constituted drug paraphernalia, as defined in Instruction No. 10
Jury instruction No . 10 defined drug paraphernalia as "all equipment, products
and material of any kind which are used, or intended for use . . . in . . . ingesting .
. . into the human body a controlled substance." Clearly, the instruction defining
drug paraphernalia was a concomitant aspect of the guilt instruction, which
directly referenced the definitional instruction . See Crawley v. Commonwealth ,
107 S .W.3d 197, 200 (Ky. 2003) (holding that the intent element for complicity
can be satisfied by a separate definition of complicity elsewhere in the
instructions).
Appellant argues that the instruction was flawed because it did not include
an intent element. However, in order for the jury to determine that the pipe was
drug paraphernalia under the definition provided in the instruction, it was also
required to conclude that it be used or was intended to be used to consume a
controlled substance . Therefore, the intent element was incorporated in the
paraphernalia definition . The pipe could not have been found paraphernalia
without the jury simultaneously determining that Appellant intended to use the
pipe for drugs. Because the intent element was satisfied within another definition, the complained of instruction did not render the trial fundamentally
unfair .
Similarly, Appellant argues that the persistent felony offender instruction
permitted the Commonwealth to circumvent its obligation of proving every fact
necessary to constitute a crime beyond a reasonable doubt. Appellant claims
that due to a clerical error concerning the date of a prior conviction, the jury was
instructed improperly as to his prior offenses . As before, this issue is
unpreserved for appellate review under RCr 9.54 and Thurman . 691 S.W.2d at
216.
However, we will once again examine the merits of Appellant's argument.
The crux of Appellant's contention is that the Commonwealth failed to prove
persistent felony offender status because the jury instructions listed the date of a
prior burglary conviction as June 9, 1991, when the actual date of the conviction
was June 20, 1991 . Such argument bears no weight, as there was
uncontroverted evidence presented that Appellant had two prior convictions .
Appellant suffered no prejudice due to the clerical error regarding the date of the
conviction .
As this Court stated in Howe v. Commonwealth, 462 S.W.2d 935, 938 (Ky.
1971), when addressing a clerical error of date in a jury instruction, "[w]e are of
the opinion that the error in the date did not affect the substantial rights of the
accused and that he was not prejudiced by this inadvertent mistake ." Likewise,
although review under RCr 10 .26 on this matter is not compulsory, we find no
prejudice and no error. Appellant's arguments in both instances are without
27 III. CONCLUSION
For the preceding reasons, set out in section II(B) of this opinion,
Appellant's conviction on four counts of burglary in the second degree, trafficking
in a controlled substance and illegal possession of drug paraphernalia are
reversed and remanded for a new trial.
Lambert, C .J.; Cunningham, Minton, Noble, and Schroder, JJ ., concur.
Abramson, J., not sitting . COUNSEL FOR APPELLANT :
Daniel T. Goyette Louisville Metro Public Defender 200 Advocacy Plaza 719 West Jefferson Street Louisville, KY 40202
Cicely Jaracz Lambert Deputy Appellate Defender 200 Advocacy Plaza 719 West Jefferson Street Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway Attorney General of Kentucky
Kenneth Wayne Riggs Assistant Attorney General Office of Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601