RENDERED: OCTOBER 23, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0507-MR
KEVON LAWLESS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE A. C. MCKAY CHAUVIN, JUDGE NOS. 20-CR-001499-001 & 22-CR-001786
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE THOMPSON
REVERSING AND REMANDING
Kevon Lawless was convicted after a jury trial on two counts of murder
and one count of first-degree burglary. The jury also found aggravating
circumstances existed due to the murders occurring during the commission of
a burglary. Lawless was sentenced to life without the possibility of parole on
each murder count and ten years for first-degree burglary enhanced to twenty
years by virtue of Lawless being a persistent felony offender in the second
degree (PFO-2).
Lawless appeals to this Court as a matter of right arguing that the trial
court committed reversible error by: denying his motion for a mistrial once it
was known that the jury had become aware that a witness had been ordered
taken into custody by the trial court at the conclusion of his testimony for lying
on the stand; denying his motion made pursuant to Kentucky Revised Statutes (KRS) 532.135 to exclude the death penalty; and denying him a second motion
for a continuance made in relation to his motion to exclude the death penalty.
We conclude that a mistrial should have been declared once the trial
court was made aware that the entire jury had been improperly informed that a
key Commonwealth witness had not only been taken into custody, but had also
been accused of perjury by the trial court. Therefore, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 14, 2020, Brandon Waddles and Waddles’s three-year-old
daughter, Trinity Randolph, were murdered in their residence. Lawless was
indicted by a Jefferson County Grand Jury on October 7, 2020, on two counts
of murder, and one count each of first-degree burglary and being a convicted
felon in possession of a handgun.
On June 7, 2021, the Commonwealth filed a Notice of Aggravating
Circumstances pursuant to KRS 532.025 due to the murders being committed
in the course of the commission of a first-degree burglary, where the killings
were intentional and resulted in multiple deaths. KRS 532.025(2)(a)2. and 6.
On August 7, 2022, Lawless filed a motion to exclude the death penalty
and a motion to continue his trial. According to Lawless’s counsel, the request
for continuance followed “several significant last-minute disclosures of school
records” to the mitigation specialist who had been retained on Lawless’s behalf
as well as the recent enactment of KRS 532.130 - 532.140. On August 9, 2022,
the trial court denied the motion to continue and scheduled the hearing on the
motion to exclude the death penalty for September 9, 2022, which was the day
2 after jury selection was set to begin. 1 On September 8, 2022, Lawless’s trial
began with voir dire and jury selection. The trial resumed on September 15,
2022.
While there were no eyewitnesses to the murders, the Commonwealth
presented evidence and testimony consistent with its theory that Lawless had
enlisted his girlfriend, Akoi Reclow, who was seventeen at the time, to contact
Waddles to first make Waddles believe she wanted to start a relationship with
him and then to draw Waddles into a situation where he could be ambushed.
Later, after Reclow had told Waddles she was on her way to see him at
Waddles’s home, Evan Ross drove Lawless to Waddles’s residence. Reclow, who
had not accompanied Ross and Lawless, then texted Waddles and asked him to
come outside to see her.
According to the Commonwealth, when Waddles opened his door
expecting to see Reclow, Lawless emerged from Ross’s vehicle with a .40-caliber
handgun and ultimately fired eleven rounds striking Waddles six times and his
daughter twice. Numerous text and social media exhibits were introduced by
the Commonwealth evidencing this “set up” and Lawless’s motivation for
revenge against Waddles.
1 Lawless initiated an original action with this Court for writs of mandamus and
prohibition requesting this Court prohibit the trial court enforcing the order denying a continuance and also order the trial court to continue the trial date. This Court denied Lawless’s petition on September 7, 2022. Lawless v. Hon. A.C. McKay Chauvin & Commonwealth of Kentucky, No. 2022-SC-0343-MR (September 7, 2022) (unpublished).
3 Both Reclow and Ross testified at Lawless’s trial. Each of them had
previously entered into plea agreements wherein they had each pled guilty to
two counts of facilitation to murder. Those plea agreements contemplated their
cooperation and testimony against Lawless consistent with their prior
statements to the Commonwealth. Reclow’s case was still pending in juvenile
court, while Ross had received a ten-year probated sentence. Both proved to
be, at best, reluctant witnesses.
Reclow ultimately testified that she aided Lawless in setting up Waddles
to be robbed. Ross testified that he gave Lawless a ride to Waddles’s residence
believing he was driving Lawless to meet a woman. Ross denied hearing any
gunshots after Lawless had exited his car, explaining that the music he was
playing in his car was very loud.
At the conclusion of Ross’s testimony on September 19, 2022, the jury
was excused for a break. However, members of the media (and at least one
television camera) remained present in the courtroom.
While the jury was absent, the trial court announced that Ross would be
taken into custody. The trial court found, sua sponte, that probable cause
existed to find Ross had violated the terms of his plea and diversion
agreements by committing perjury during the course of his testimony.
Subsequently, at least one media outlet reported Ross’s arrest and at least one
juror watched this report.
On September 21, 2022, after both sides had rested, the jury was
instructed and began deliberations. During deliberations late that afternoon,
4 the jury sent out a note advising the court they had become aware that Ross
had been arrested for “lying on the stand” and one member of the jury felt they
could “no longer make a decision truthfully” after being informed of his arrest.
Lawless’s counsel moved for a mistrial which was denied.
It was ultimately determined that one of the jurors, whose identity
remains unknown (Juror 1), informed the other jurors that they had seen a
television report concerning Ross’s arrest. Subsequently, as a result of this
information, another juror, also not identified (Juror 2), determined to change
their vote.
The trial court, after questioning the jury, ultimately determined to
replace one juror 2 who volunteered that she could no longer render a verdict
based solely on the evidence presented at trial. This singular juror was
replaced with a randomly chosen alternate who was called back into court that
evening. After the alternate juror reported to court, the jury was instructed to
begin their deliberations anew.
Later that evening, the newly-composed jury found Lawless guilty of both
counts of murder and one count of burglary in the first degree. The parties
agreed to go directly into the capital penalty phase of the trial and after hearing
opening statements from counsel, mitigation evidence from the defense,
aggravating circumstances evidence from the Commonwealth, and closing
statements, the jury found that aggravating circumstances existed with respect
2 It is not known if this juror was the same person (Juror 2) who spoke up
during deliberations stating they could “no longer make a decision truthfully.”
5 to the murders of Waddles and Randolph, namely, that Lawless committed
these murders while he was engaged in the commission of first-degree
burglary. The jury recommended fixing the penalty for both murder convictions
at “confinement in the penitentiary for life without benefit of probation or
parole” and the circuit court adopted the jury’s recommendation.
The trial court also addressed Lawless’s other charges and the
Commonwealth moved to sever the remaining possession of a handgun by a
convicted felon charge, and Lawless, acting in reliance on an agreement
reached with the Commonwealth, waived his right to be sentenced by the jury
on the first-degree burglary conviction and entered a plea of guilty to being a
PFO-2. The remaining possession of a handgun by a convicted felon charge was
later dismissed.
II. ISSUES
Lawless argues the trial court erred by: (1) not granting his motion for a
mistrial relative to the jury being informed that a witness had been taken into
custody for allegedly lying on the stand; (2) denying his motion made pursuant
to KRS 532.135 to exclude the death penalty as a potential sentence owing to
alleged mental illness; and (3) not granting a second motion for a continuance
sought by his trial counsel relative to the preparation and presentation of his
motion to exclude the death penalty.
6 A. The Trial Court Committed Reversible Error by not Granting a Mistrial After Being Advised One of its Members had Informed the Whole Jury that the Trial Court had Ordered a Key Commonwealth Witness be Arrested for Perjury.
Lawless argues that the trial court committed reversible error by refusing
his counsel’s motion for a mistrial after it became known that the jury had
been made aware of the fact that the trial court had ordered Ross to be taken
into custody. According to Lawless, the failure of the trial court to order a
mistrial denied Lawless a fair and impartial verdict because the trial court’s
opinion of a key witness’s testimony served to taint the entire jury. The
underlying facts of this issue are not at issue and were reflected sufficiently in
the trial’s video record.
Lawless, the Commonwealth, and the trial court all agreed that Ross
lacked credibility. The unanswered question is, when was he lying? The
Commonwealth asserts that his feigned ignorance of the murders was where he
perjured himself. At trial, Lawless’s counsel attempted to discredit Ross’s
testimony that it was Lawless who was in Ross’s car on the night of the
murders which placed him at the scene of the crimes.
After Ross’s testimony, and out of the presence of the jury, the trial court
sua sponte ordered that Ross be taken into custody remarking that Ross “didn’t
tell the truth, the whole truth, and nothing but the truth,” and that he “clearly
lied any number of times,” and noted that lying under oath was a clear
violation of Ross’s probation, and something that the trial court had a
responsibility not to ignore. As discussed above, the trial court’s decision to
7 arrest Ross was noted by the media and reported to the public which had been
following this trial.
Two days later, after the jury was instructed and began its deliberation, a
jury member penned a note which was forwarded to the trial court. The note
stated:
While in deliberation it was mentioned that there was a statement that Evan Ross was arrested for lying on the stand. This statement has caused a juror to feel they can no longer make a decision truthfully after having heard this. Before having heard this, the juror was thinking one way but is now feeling differently.
Lawless’s counsel moved for a mistrial and maintained that position
throughout all discussions. The Commonwealth was initially noncommittal and
even indicated it might join such motion due to the fact that if Lawless was
found not guilty, the Commonwealth would not be able to appeal.
Over Lawless’s objection, the trial court determined that it would instead
instruct the jury that Ross’s arrest would neither be admitted or denied, but
that it was not in evidence and thus could not be considered in their
deliberation. The trial court informed counsel that it would ask the jurors if
they believed that they could still render a verdict based solely on the evidence.
The trial court also noted there were only two alternate jurors available, and
therefore, as long as no more than two jurors excused themselves, a mistrial
would not be necessary.
The trial court then recalled the jury to the courtroom and read the note
to them. The jury was informed that the trial court was “not saying [Ross’s
8 arrest] happened,” nor was it “saying [it] didn’t happen,” but what mattered
was that such an occurrence was “not evidence.”
The trial court asked the jury as a whole:
Is there anything that has happened during the course of this trial, up to and including your deliberations, which has impacted your ability to base your decision solely on the evidence that’s presented inside this courtroom? Or can you compartmentalize and separate anything else, any extraneous information or misinformation, that you may have heard or think you heard, and base your decision solely on the evidence presented inside the courtroom? Is there anyone who cannot do this, and please be honest?
One female juror raised her hand and was questioned further at the
bench before being excused from further service. This juror advised the trial
court that she was not the source of the information shared with the jury and
that it was another jury member who reported seeing a media report of the
arrest and relayed that information to the rest of the jury members. The juror
also reported that another juror had family that once lived in the residence
where the murders occurred.
The trial court did not ask this juror if she was the same juror mentioned
in the note as “feeling differently” after hearing of Ross’s arrest. The trial court
did not ask the juror who it was on the jury that shared news of Ross’s arrest
with the rest of the jury. Those questions were also not posed to the remaining
jurors. Those questions remain unanswered. No other jurors were individually
questioned by the trial court.
The trial court then posed an open-ended question to the remaining
jurors asking if there was anything else that would give them cause to believe
9 that they could not render a fair and impartial verdict and none of the
remaining jurors responded.
(1) Standard of Review on Issues Concerning Mistrials
A mistrial is an extreme remedy for trial courts. Arguing that a mistrial
was necessary in this instance is a concomitant high bar for an appellant. For
a mistrial to be granted, there must be “a manifest necessity for such action or
an urgent or real necessity.” Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky.
1985). We have also recognized that “[i]t is universally agreed that a mistrial is
an extreme remedy and should be resorted to only when there is a fundamental
defect in the proceedings which will result in a manifest injustice.” Gould v.
Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996). The defect in the
proceedings “must be of such character and magnitude that a litigant will be
denied a fair and impartial trial and the prejudicial effect can be removed in no
other way.” Id. The “fair and impartial trial” referred to in Gould is that to
which all citizens are entitled and guaranteed within the Sixth Amendment to
the United States Constitution, and Sections 7 and 11 of the Kentucky
Constitution.
In the specific context of extra-judicial information reaching the jury, we
previously determined in Gould that there was no presumption that “[o]nce a
juror is exposed to extra-judicial information that juror is automatically
presumed ‘legally tainted,’” and further explained:
When a juror acquires extra-judicial information during trial, the trial court should inquire into the juror’s views in a manner calculated to discover those views. Relying on the totality of the
10 inquiry, rather than on a predictable response to a so-called “magic question,” it is within the trial court’s sound discretion to determine the effect of the extra-judicial information. The trial court must then determine whether there is a manifest necessity for a mistrial due to an error affecting the substantial rights of the parties where prejudice cannot be otherwise removed. Whether removal of prejudice can be accomplished by a curative admonition or whether a mistrial is necessitated is a matter within the sound discretion of the trial court.
929 S.W.2d at 740.
It is also well established that “[j]urors are presumed to have followed an
admonition.” Tamme v. Commonwealth, 973 S.W.2d 13, 26 (Ky. 1998).
However, any such presumption can be rebutted “when there is an
overwhelming probability that the jury will be unable to follow the court’s
admonition and there is a strong likelihood that the effect of the inadmissible
evidence would be devastating to the defendant[.]” Johnson v. Commonwealth,
105 S.W.3d 430, 441 (Ky. 2003) (citing Alexander v. Commonwealth, 862
S.W.2d 856, 859 (Ky. 1993)).
Subsequent caselaw post-Gould clarifies that extra-judicial information,
if it causes a jury to not be impartial, constitutes a structural error which
automatically taints a jury and requires that a new trial be provided.
In 2018, we recognized that matters which call into question a
defendant’s right to an impartial jury trial are structural errors necessitating a
reframing of our standard of review, an abandonment of any notions of
harmless error, and recognition of a presumption of prejudice.
Defendants are guaranteed the right to an impartial jury by the Sixth Amendment to the United States Constitution, as well as
11 Sections Seven and Eleven of the Kentucky Constitution. Denial of a defendant’s right to an impartial jury is a structural error. Hayes v. Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005). It is therefore not subject to harmless error analysis, as prejudice is presumed. See Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007) (“Harmless error analysis is simply not appropriate where a substantial right is involved.”). “[T]he defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’ For the same reason, a structural error ‘def[ies] analysis by harmless error standards.’” Weaver v. Massachusetts [582 U.S. 286], 137 S.Ct. 1899, 1907-08, 198 L.Ed.2d 420 (2017) (internal citations omitted).
Commonwealth v. Douglas, 553 S.W.3d 795, 799–800 (Ky. 2018) (emphasis
added).
The United States Supreme Court opinion in Weaver v. Massachusetts,
which builds upon two prior opinions of that Court, and which is cited by our
own Court in Douglas states:
The Court now turns to the proper remedy for addressing the violation of a structural right, and in particular the right to a public trial. Despite its name, the term “structural error” carries with it no talismanic significance as a doctrinal matter. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.” Chapman [v. California], 386 U.S. 18, 24 (1967). Thus, in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
582 U.S. 286, 299 (2017), (Emphasis added).
12 The language “generally entitled to ‘automatic reversal’” found in Weaver,
while certainly tipping the balance to the defendant, does not mandate reversal
in all circumstances. The circumstances under which particular extra-judicial
information, or outside influences, mandate a new trial and the manner in
which that determination should be made, has been previously explored in the
federal circuits. In United States v. Cheek, 94 F.3d 136 (4th Cir.1996), the
Fourth Circuit Court of Appeals applied a presumption of prejudice to all
“extrajudicial communications and contacts,” when they amounted to more
than “innocuous interventions,” and permitted rebuttal of the presumption by
the government when it could demonstrate that there existed no reasonable
possibility they influenced the verdict.
Somewhat similarly, the Ninth Circuit determined that “[a] defendant is
entitled to a new trial when the jury obtains or uses evidence that has not been
introduced during trial if there is ‘a reasonable possibility that the extrinsic
material could have affected the verdict.’” Dickson v. Sullivan, 849 F.2d 403,
405 (9th Cir.1988). The Ninth Circuit determined that the prosecution bears
the burden of proving beyond a reasonable doubt that extrinsic evidence did
not contribute to the verdict. Id. at 405–06.
(2) Application to a Jury Which has Been Tainted by Extraneous Information
The first element for us to consider is recognition of the nature of the
information improperly relayed to the jury. When the trial court decided, sua
sponte, in front of the media and with the jury still in close proximity to the
13 proceedings, to arrest Ross while stating that there was “no doubt that [Ross]
perjured [himself]” and that he “clearly lied,” it created a grave risk that the
jury would discover not only that Ross had been arrested, but that the trial
court had made an extreme, adverse, determination regarding the truthfulness
of a prosecution witness. That is exactly what ultimately transpired.
The trial court’s actions and statements, as communicated by the media
report which Juror 1 shared with the rest of the jury, could only result in the
jurors believing that the trial court had already adjudged Ross’s credibility and
found him to have been not only “less than completely honest,” but to have
committed criminal perjury necessitating his immediate imprisonment.
“Matters of a witness’s credibility and of the weight to be given to a
witness’s testimony are solely within the province of the jury.” King v.
Commonwealth, 472 S.W.3d 523, 526 (Ky. 2015) (emphasis added). A trial
court may not substitute its own judgment of the credibility of a witness for
that of the jury and neither may it attempt to, by its words or actions, sway a
jury’s own impressions.
In the matter of Quercia v. United States, 289 U.S. 466, 468 (1933), the
trial judge had explicitly told the jury that he “th[ought] that every single word
[one witness] said, except when he agreed with [other prosecution] testimony,
was a lie.” The United States Supreme Court determined that this direct
commentary on one of the witness’s testimony was error and “highly
prejudicial.” Id. at 472. Certainly, in Lawless’s case, the trial court did not
14 intend for its decision to arrest Ross, or its statements regarding Ross’s
testimony, to be heard or discovered by the jury, but they were.
A question left unanswered in the record is, what part(s) of Ross’s
testimony had the trial court determined to be false and what part(s) of Ross’s
testimony did the jurors believe the trial court had found to be false. It may
have been Ross’s testimony that he did not hear gunshots after he dropped off
Lawless. That was the only testimony explicitly described by the trial court
when it placed Ross under arrest. However, it is not clear how explicit the
media report Juror 1 heard was about what testimony the trial court suggested
was perjured, and what Juror 1 then communicated to the rest of the jurors
about the report. It is also unclear whether the jury speculated about what part
of Ross’s testimony was perjured. These matters were never clarified. The
jurors may have thought, for example, that Lawless informed Ross of his pre-
planned intentions to commit murder and burglary and they jointly conspired
to commit these crimes, meaning that Ross lied by minimizing what took place,
perhaps even omitting damning statements that Lawless made to him.
Therefore, Ross’s perjury could have been to benefit Lawless by making him
seem less culpable, and thus provided reasonable doubt where otherwise there
would be none.
As to the juror who admitted to the trial court that she could no longer
render a verdict based solely on the evidence presented at trial, our concerns
only grow. The trial court did not ask the juror anything of substance. She was
not asked to identify Juror 1 who had informed the rest of the jurors of the
15 news report on Ross’s arrest. She was not asked exactly what the jury had
been told by Juror 1. She was not asked how much discussion was had by the
jury, and by whom on the jury, after they were informed of Ross’s arrest but
before they reported the issue to the trial court. She was not asked if, prior to
hearing of Ross’s arrest for perjury, she had considered Lawless guilty or not
guilty. If she had previously considered Lawless to be not guilty, then her
exposure to the out-of-court information denied Lawless at least one juror who
would have voted to find him not guilty and who could have thwarted his
conviction by causing a hung jury.
Likewise, we do not know who composed the note given to the trial court,
nor do we know the identity of Juror 2 who was referenced in the note as
“feel[ing] they can no longer make a decision truthfully.” The trial judge did not
confirm that the juror who raised her hand after his questioning, and was
subsequently excused, was the same juror, Juror 2, who had voiced their
misgivings during deliberations.
There is no dispute about the substance of information to which the jury
was exposed in this case, or the timing and circumstances of that exposure.
Juror 1 reported the media coverage of Ross’s arrest for perjury; this tainted
the jury as a whole. It is undisputed that accurate information, from an
authoritative source was brought to the attention of the full jury well before a
verdict of guilt was returned. Such information was immediately prejudicial—at
that time—to either the Commonwealth or to Lawless. It should be axiomatic
that a trial court instructing a jury to ignore exculpatory evidence would be
16 “devastating to the defendant” and that is, almost literally, what in effect
occurred here. See Johnson, 105 S.W.3d at 441. 3
There is no need to presume prejudice in this case as prejudice is
obvious and self-evident. It is only in retrospect, following a guilty verdict, that
we are asked to discern the extent to which it may have prejudiced Lawless.
Ross was a significant witness for the Commonwealth. While video of a person
exiting a car near the scene of the crimes was presented, it was Ross who
confirmed that it was his vehicle which appeared near the crime scene and
Ross was the sole witness identifying Lawless as the occupant who exited the
vehicle thereby definitively placing Lawless in physical proximity to the crime
scene near the time of the murders. Assuming arguendo that a jury would ever
be able to disregard the trial court arresting such a key witness for perjury, the
limited admonition attempted by the trial court once the situation became
known was inadequate under the circumstances where it was left unknown to
what extent the knowledge of Ross’s arrest for perjury had already improperly,
and quite probably irreparably, influenced the jury’s deliberative process.
Given the overall context and content of the extra-judicial information
which came to the jury during deliberations, we determine that such incident
was inherently prejudicial to Lawless and created a patent structural defect in
Lawless’s trial. Whether or not such a fundamental flaw and obvious prejudice
3 “There are only two circumstances in which the presumptive efficacy of an
admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant[.]”
17 could have even been corrected, and our concerns ameliorated, by additional
questioning of the jury’s members cannot be determined here as we find that
the trial court’s questioning of the jury was insufficient to allay our concern for
the impact of such extra-judicial information on the jury’s deliberations. The
manifest nature of this error tainted the jury and effectively eliminated
Lawless’s right to receive a fair trial determined by an untainted and impartial
jury as guaranteed by the Sixth Amendment to the United States Constitution,
and Sections 7 and 11 of the Kentucky Constitution.
B. Did the Trial Court Commit Reversible Error by not Granting Lawless’s Motion to Exclude the Death Penalty or When It Refused to Grant Lawless a Continuance?
Lawless argues that the trial court committed reversible error “in not
granting a motion for continuance after the defense received relevant records
requiring further investigation.” The records Lawless references were
educational records obtained relative to his motion to exclude the death
penalty made pursuant to KRS 532.135. He also, and separately, argues the
trial court’s ultimate determination to not exclude the death penalty was in
error.
Both of these arguments are now moot. In Brown v. Commonwealth, 313
S.W.3d 577 (Ky. 2010), which relied on Bullington v. Missouri, 451 U.S. 430
(1981), our Court recognized that once a jury has been given the opportunity to
recommend the death penalty but determines the penalty to be inappropriate,
double jeopardy attaches and on retrial the Commonwealth may not again seek
the death penalty.
18 III. CONCLUSION
The trial court committed reversible error by denying Lawless’s motion
for a mistrial after the jury became aware of the trial court arresting a key
Commonwealth witness for perjury. We vacate Lawless’s convictions and
remand to the Jefferson Circuit Court for further proceedings consistent with
this opinion.
All sitting. Lambert, C.J.; Conley, Goodwine, and Nickell, JJ., concur.
Bisig, J., dissents by separate opinion in which Keller, J., joins.
BISIG, J., DISSENTING: While I unequivocally agree with the Majority’s
conclusion that juror knowledge of the trial judge detaining a key witness for
alleged perjury was error, given the remedial steps immediately taken by the
court and the totality of evidence presented at trial, I would affirm the
conviction.
As the Majority Opinion states, a mistrial is an extreme remedy for trial
courts and should only be granted in situations of real, urgent, or manifest
necessity. Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky. 1985). Indeed,
where an error is of a constitutional dimension, we may affirm the conviction
so long as the error was “harmless beyond a reasonable doubt.” Dillon v.
Commonwealth, 475 S.W.3d 1, 15 (Ky. 2015). An error is harmless beyond a
reasonable doubt if there is no “reasonable possibility” that it “might have
contributed to the conviction.” Commonwealth v. Armstrong, 556 S.W.3d 595,
604 (Ky. 2018) (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky.
1998)). Thus, we consider the error “in the context of the entire trial” and ask
19 whether there is any reasonable possibility it might have contributed to the
conviction. Staples v. Commonwealth, 454 S.W.3d 803, 826-27 (Ky. 2014). If
so, the conviction must be reversed. If not, the conviction may be affirmed.
Here, the jury appropriately reported to the court that a juror had
extrajudicial information from a news story about the arrest of a witness. Upon
learning the information, the trial judge consulted with counsel and brought
the jury back into the courtroom. He admonished the jury very clearly that any
information that may or may not be true regarding a news story outside of the
evidence presented at trial was not to be considered. He questioned the jury as
to whether despite this directive, any of them believed the information would
impact their ability to make true decisions in the case. He replaced the one
juror who answered in the affirmative with an alternate. 4 He reiterated the
serious nature of the inquiry and asked if any other jurors had an issue. He
also explained that the rules of court required the remaining jurors to begin
their deliberations anew with the alternate juror. It is well established in our
jurisprudence that jurors are presumed under our law to follow an
admonishment given by the court. Tamme v. Commonwealth, 973 S.W.2d 13,
26 (Ky. 1998).
4 Judge Chauvin had previously told the two alternate jurors, on the record,
that they were to continue to maintain the Court’s prior admonishments about not discussing the case or doing outside research. He obtained contact information from these jurors advising them that it was possible if there were a problem such as a health issue with another juror, they may need to be recalled back to service.
20 Next, it is critical to look at the nature of the information alleged to have
tainted this jury, and the totality of the evidence, proffered defense, and
argument by counsel. This analysis is to determine if in the context of the
entire trial, this information contributed to a conviction. The witness at issue,
Evan Ross, was a longtime friend and associate of the Defendant Lawless. Ross
testified he drove Lawless to the victim’s home the day of the shooting. The core
theory of Defense counsel’s cross examination of Ross was establishing he was
untruthful. He was asked on repeat questions about his willingness to say
anything to save himself. Even a lay person observing Ross’ testimony at trial
would reach the conclusion he was recalcitrant, uncooperative, evasive, and
difficult. In fact, attacking the credibility and veracity of this witness was
important enough to the defense that in closing argument, counsel for Lawless
called him a liar. He further emphatically stated it was “self-evident” from Ross’
testimony he was lying. Finally, he told the jury Ross lied “straight to your
face.” The nature of the “outside” trial information was that Ross was
untruthful and as a result detained by the court.
Further, the jury heard significant testimonial and physical evidence
supporting its verdict in the case. While not recounting the entirety of the trial,
the jury saw an Instagram live video of Lawless and the victim arguing with
harsh words and showing weapons prior to the murder. The victim was seen
taunting Lawless regarding the death of another friend. Video evidence
obtained from more than one source showed a dark Chrysler 200 as the vehicle
driving the shooter to and from the crime scene. Neighbors also witnessed this
21 vehicle. Evan Ross was the owner of the vehicle. Ross told the jury he was close
with Lawless and drove him in that very vehicle to the victim’s home the day
and time of the shooting. Akoi Reclow, a friend/girlfriend of Lawless, but
unknown to Ross, testified she assisted Lawless in setting up the victim
Waddles to be robbed the day in question. Lawless directed Reclow to begin
luring the victim to want to see her when he was with Reclow the night before
the shooting. She texted the victim with an offer to hook up. Reclow testified
she directed Lawless via phone to the victim’s home. Reclow directed the victim
Waddles to come outside as Lawless arrived. Those messages were shown to
the jury as extracted from her phone. Police testified there were three shots
fired outside and eight shots fired inside the home. A medical examiner
testified Brandon Waddles and his 3-year-old daughter Trinity Randolph were
killed by gunshot wounds. Lawless’ physical description is consistent with
video evidence of the individual exiting and re-entering the Chrysler the
moment of the shooting. Despite Lawless’ alibi that he was at a Goss Avenue
Kroger, cell data obtained from his phone places him in the vicinity of the crime
scene at the time of the shooting. Cell phone records show Lawless
communicating with Reclow and Reclow communicating with the victim
immediately proceeding the shooting. Transcripts of the content of these
messages were shown to the jury. The jury saw undisputed information that
Lawless changed his phone number following the shooting. Upon Lawless’
direction, Reclow also contacted her phone carrier and changed her phone
number after the shooting. In a controlled call to Lawless by Reclow as part of
22 her statement to police, Lawless stated he was avoiding the south end of town
because things were “hot.” A previously published music video featuring
Lawless and Ross together was deleted from the internet. Importantly, the jury
learned both Reclow and Ross pled guilty to charges of Facilitation to Murder.
The constitutional importance of protecting the impartiality of jurors in
the trial process is paramount. Balancing this important truth with the weight
of the evidence against the Defendant, the nature of the specific facts in this
trial, the nature of the extrajudicial information openly disclosed by the jury,
and the steps immediately taken by the court including an admonishment, I do
not join the structural error analysis of the Majority where prejudice is
presumed. Instead, I find no prejudice to the dignity of the verdict reached by
this jury. Our case law gives wide discretion to the trial court when ruling on a
motion for a new trial and the judge’s decision should not be disturbed on
appeal absent manifest error or a finding of abuse of discretion. Gould v.
Charlton Co., Inc., 929 S.W.2d 734, 741 (Ky. 1996) (citing Gray v. Sawyer, 247
S.W.2d 496 (Ky. 1952)).
Finally, Lawless raised two additional allegations of error. These
additional issues were not addressed in the Majority Opinion because having
found reversal warranted by the jury issue, it declines to address the remaining
allegations. The two additional issues were: 1) the trial court’s denial of
Lawless’ motion to continue the trial, and 2) a challenge to the trial court’s
denial of Lawless’ motion to exclude the death penalty. Both motions dealt with
the timing of the hearing of the motion to exclude the death penalty and the
23 merits of the trial court’s decision to deny the motion. The parties address
these motions in briefing to the court; however, ultimately, any error in this
aspect would be harmless as the death penalty is not part of the sentencing in
this case. Accordingly, for all of these reasons, I would affirm the trial court.
Keller, J., joins.
COUNSEL FOR APPELLANT:
Kevin M. Glogower
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Matthew F. Kuhn Solicitor General of Kentucky
John H. Heyburn Principal Deputy Solicitor General
Shawn D. Chapman Deputy Solicitor General