Leslie Lee Parson v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: September 21, 2020
• Docket: 2019 SC 000318
• 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 24, 2020 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0318-MR

LESLIE LEE PARSON APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE KIMBERLY N. BUNNELL, JUDGE NO. 16-CR-001095

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Leslie Lee Parson was convicted following a jury trial of murder and

subsequently entered a guilty plea to being a convicted felon in possession of a

handgun. He was sentenced to thirty years’ imprisonment and now appeals as

a matter of right. Ky. Const. § 110(2)(b). Prior to trial, Parson claimed

immunity from prosecution pursuant to KRS1 503.085, which provides

criminal and civil immunity for the use of permitted force. However, following a

hearing on Parson’s motion, the trial court found probable cause existed to

conclude he used unlawful deadly physical force. At trial, Parson’s motion for

1 Kentucky Revised Statutes.

1 a directed verdict—based on his assertion the Commonwealth failed to prove he

was not privileged to act in self-defense—was denied. He now alleges these two

rulings were erroneous, as was the trial court’s denial of his motion to exclude

certain evidence, and contends he is entitled to reversal. For the reasons

which follow, we affirm.

A. FACTUAL AND PROCEDURAL SUMMARY

On May 28, 2016, Parson and three friends decided to go to Saddle Ridge

Bar near the University of Kentucky campus. That same evening, Jacob Skyler

Ray, his girlfriend, and two other friends also went to Saddle Ridge Bar to meet

several associates. At some point during the evening, Parson and one of Ray’s

friends got into an altercation inside the bar. Racial tensions grew and verbal

jabs were thrown. At the end of the night, around 2:30 a.m., following another

verbal altercation, Parson and his companions left the bar. On the way out,

Parson bumped into another patron who followed him outside demanding an

apology for the “disrespect.” Parson apologized but the other man struck him

anyway. A brawl then broke out in the parking lot.

Hearing of the fight, Ray grabbed a beer bottle and headed to the parking

lot. In a frantic scene caught on at least two cell phone videos, Ray can be

seen entering the fracas and striking someone over the head with the bottle.

Almost immediately, a single gunshot rang out, and Ray went down. He had

been shot in the back of the head and would succumb to complications

stemming from that injury some four months later. Parson and his friends

2 quickly vacated the lot. During their drive, Parson told his friends he had fired

the shot.

Following interviews at the scene, police were able to identify the license

plate number of the vehicle Parson had been in and quickly traced it to a

residence in Frankfort, Kentucky. Detectives went to the residence and made

contact with the owner of the vehicle, Ashley Whitis, who informed them she

had allowed Parson, her boyfriend, to use the car the previous evening. Parson

was at the apartment and told police he had been home all night. After being

confronted with a photo of himself standing outside Saddle Ridge Bar, Parson

admitted he had been there but had not been allowed inside because of his

attire. He stated he had gone to the bar alone and denied being present at the

time of the shooting. Parson agreed to undergo a complete interview at the

police station and left the apartment. He never voluntarily appeared for an

interview prior to his arrest.

Following additional investigation, an arrest warrant was issued for

Parson charging him with assault. The warrant was served on June 8, 2016.

After his arrest, Parson provided a statement in which he claimed to be the

victim. He stated there had been a verbal altercation inside the bar and, after

being asked to leave, he complied and walked to the parking lot. He claimed a

group of people followed him, hurling racial epithets and demanding an

apology. After offering the requested apology, he reported being struck and

knocked to the ground. When he got up, he stated he shot one round from the

pistol he had retrieved from his vehicle. He claimed to have shot behind him

3 without looking as he ran from the fight, with no intent to strike anyone, and

without knowing his round had found its mark.

When Ray subsequently died, a superseding indictment was rendered by

the Fayette County Grand Jury, charging Parson with murder and possession

of a handgun by a convicted felon. On March 3, 2017, Parson moved to

dismiss the murder charge on grounds he was immune from prosecution

pursuant to KRS 503.085 because he was acting in justifiable self-defense

when he discharged his weapon. The statute provides immunity to persons

who use force in self-defense or defense of others, unless there is probable

cause to believe the use of force was unlawful.

The trial court conducted a hearing on Parson’s motion on March 21,

2017. Parson argued the facts and circumstances of the case did not establish

probable cause to show he was not fully justified in defending himself, nor that

his use of force was unlawful. The trial court denied the motion, concluding

the totality of the circumstances revealed conflicting factual evidence sufficient

to find the Commonwealth had satisfied its burden of showing probable cause

Parson’s use of force was unlawful and denied the motion to dismiss.

A three-day trial on the murder charge commenced on March 25, 2019.2

Surveillance videos from inside the bar, along with two cellphone videos of the

parking lot altercation were played for the jury. In addition, numerous

2 The charge of possession of a handgun by a convicted felon was severed for trial purposes.

4 witnesses testified regarding their recollections of the evening leading up to and

including the fateful moment Ray was shot.

Keyon Patterson, a friend who had accompanied Parson to the bar,

opined he and two other friends were “winning” the parking lot fight prior to

the shot being fired because they had knocked one of the main instigators to

the ground and were kicking him. Immediately prior to the shot, he recalled

one of the two friends being struck by a bottle.

Kylie Price, Ray’s fiancée, testified Ray entered the melee to protect his

friend who was on the ground and being kicked in the head. She said Ray

struck one of the kicking men in the head with a bottle he had grabbed upon

exiting the bar. Immediately thereafter, she recalled a tall and slender black

male grabbed Ray and shot him in the back of the head.

Whitis confirmed Parson used her vehicle on the night of the shooting,

identified the pistol used in Ray’s shooting as belonging to Parson, and was

asked to read several text messages exchanged between herself and Parson on

the night of the shooting. Parson objected to the latter, claiming the text

messages were irrelevant and more prejudicial than probative, but the trial

court overruled the objection and permitted the Commonwealth to proceed in

eliciting the testimony.3

3 Parson’s pre-trial motion in limine to exclude the text messages on the same grounds had likewise been denied.

5 The Commonwealth also introduced testimony of the physician who

performed Ray’s autopsy, along with her report, indicating the bullet had

entered the rear of his skull and had travelled at a downward slope, slightly left

to right. Additionally, Detective Bill Brislin detailed the results of his

investigation, which contradicted Parson’s account of running away from the

fight when he fired his weapon and revealed several instances of Parson’s

untruthfulness in statements provided to police.

At the close of the Commonwealth’s case, Parson moved for a directed

verdict. He asserted the Commonwealth had failed to meet its burden of

proving murder and “all the evidence, even some of the Commonwealth’s

witnesses,” showed he was acting in self-defense. In response, the

Commonwealth argued Parson shot Ray, ultimately causing his death, and he

was not privileged to do so. The Commonwealth noted the only indication of

self-defense had arisen from Parson’s own self-serving statements to police

following his arrest. The trial court, in viewing the evidence in the light most

favorable to the Commonwealth, concluded a factual disagreement sufficient to

present the case to the jury existed and the Commonwealth had met its burden

of going forward. Parson’s renewed motion for directed verdict at the close of

all of the evidence was also denied.

The jury found Parson guilty of murder and recommended a sentence of

twenty-five years’ imprisonment. Following the verdict, Parson entered a guilty

plea to the handgun possession charge and received a recommended sentence

6 of five years. The sentences were ordered to run consecutively for a total of

thirty years’ imprisonment. This appeal followed.

B. LEGAL ANALYSIS

Parson raises three allegations of error in seeking reversal of his murder

conviction. He asserts the trial court erred in denying his pre-trial motion for

dismissal on grounds of self-defense immunity under KRS 503.085, denying

his motions for a directed verdict, and in permitting Whitis to read the

challenged text messages to his substantial prejudice. We shall address his

contentions in reverse order.

First, Parson argues the Commonwealth introduced the challenged text

messages—which demonstrated only that he had been untruthful to his

perturbed girlfriend—for the sole purpose of casting him as a habitual liar.4 He

contends the text messages sent between himself and Whitis on the night of

the murder were irrelevant because they did not tend to make the existence of

any consequential fact more or less probable in relation to the murder charge

and were otherwise more prejudicial than probative. Further, Parson argues

for the first time on appeal that the Commonwealth’s introduction of the text

messages was nothing more than a thinly-veiled attempt to present evidence of

other bad acts to the jury, constituting a violation of KRE5 404b. Based on the

4 Although the Commonwealth’s stated purpose for introducing the text

messages was to show Parson’s state of mind and his propensity for untruthfulness, no such argument was put to the jury and Parson does not point us to where the Commonwealth again mentioned the challenged messages.

5 Kentucky Rules of Evidence. 7 foregoing, he asserts the messages should have been excluded. In response,

the Commonwealth concedes the text messages were admitted in error, but

argues the error was harmless due to the substantial evidence supportive of

the jury’s verdict. We agree with the Commonwealth.

Evidence demonstrated Whitis sent the initial text message to Parson at

11:39 p.m. on May 28, 2016. Her text chastised him for leaving her alone and

bored, expressed her anger for his not arriving at home when promised, and

demanded respect. Approximately one hour later, Parson texted Whitis

indicating he was on his way home, Whitis responded by asking from where he

was coming, and he replied he was at his sister’s house. Other than

confirming her belief Parson had been at his sister’s house, the Commonwealth

posed no further questions to Whitis regarding the text messages.

“[N]o error or defect in any ruling . . . is ground for granting a new trial or

for setting aside a verdict . . . unless it appears to the court that the denial of

such relief would be inconsistent with substantial justice.” Anderson v.

Commonwealth, 281 S.W.3d 761, 766 (Ky. 2009) (quoting RCr6 9.24). “A non-

constitutional evidentiary error may be deemed harmless . . . if the reviewing

court can say with fair assurance that the judgment was not substantially

swayed by the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89

(Ky. 2009) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90

L.Ed. 1557 (1946)). However, “[t]he inquiry cannot be merely whether there

6 Kentucky Rules of Criminal Procedure.

8 was enough to support the result, apart from the phase affected by the error.

It is rather, even so, whether the error itself had substantial influence. If so, or

if one is left in grave doubt, the conviction cannot stand.” Crossland v.

Commonwealth, 291 S.W.3d 223, 233 (Ky. 2009) (quoting Kotteakos, 328 U.S.

at 765, 66 S.Ct. at 1248).

Here, though the jury was read brief text messages in which Parson was

untruthful with his upset girlfriend regarding his whereabouts, no further

testimony or argument concerning the incident was forthcoming. Whitis’s

fleeting recitation of the text messages lasted less than one minute and was

practically inconsequential compared to the magnitude of evidence offered over

the three days of trial. Even were the admission of the challenged text

messages error, the amount of evidence presented against Parson—including

witness testimony, cellphone and surveillance videos, and his own plainly self-

serving and demonstrably false statements to investigators—fairly assures us

the jury was not substantially swayed, nor the outcome affected, by their

admission. In short, we cannot say that but for this testimony the jury would

have acquitted Parson of Ray’s murder. See Hilton v. Commonwealth, 539

S.W.3d 1, 19 (Ky. 2018). Thus, any error was harmless.

Second, asserting the Commonwealth failed to meet its burden of

disproving his self-protection defense, Parson argues the trial court erred in

denying his motions for a directed verdict. We disagree.

In ruling on a motion for directed verdict, the trial court takes as true all

evidence favoring the Commonwealth and draws all reasonable inferences from

9 such evidence. It is not at liberty to determine the weight or credibility to be

given to the evidence, that function being reserved for the jury. Commonwealth

v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “If the evidence is sufficient to

induce a reasonable juror to believe beyond a reasonable doubt that the

defendant is guilty, a directed verdict should not be given.” Id. On review, we

are tasked with determining whether, “if under the evidence as a whole, it

would be clearly unreasonable for a jury to find guilt, only then the defendant

is entitled to a directed verdict of acquittal.” Lamb v. Commonwealth, 510

S.W.3d 316, 325 (Ky. 2017). Convictions must be based on more than a mere

“scintilla of evidence,” Benham, 816 S.W.2d at 187-88, because “there must be

evidence of substance.” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).

The trial court utilized the appropriate standard in ruling on Parson’s

motions for directed verdict and analyzed the evidence in the light most

favorable to the Commonwealth. In so doing, the trial court noted sufficient

factual issues existed and agreed with the Commonwealth the jury must

determine the credibility of the witnesses and the mental state involved when

the shooting occurred. Parson’s argument relies solely on his perception of the

evidence and he faults the trial court for not ascribing to his view he was acting

in self-defense when he shot Ray and no reasonable juror could conclude

otherwise.

As correctly noted by the Commonwealth, “[r]arely is a defendant relying

upon self-defense entitled to a directed verdict.” West v. Commonwealth, 780

S.W.2d 600, 601 (Ky. 1989). “If the testimony relied on to establish self-

10 defense is contradicted in any way or if there is evidence of any fact or

circumstance from which a jury could reasonably conclude that some element

of self-defense was lacking, a directed verdict should not be given.” Wheeler v.

Commonwealth, 472 S.W.2d 254, 256 (Ky. 1971).

Here, Parson fails to appreciate the sole evidence regarding his position

arises from his own self-serving statement to police made nine days after the

shooting and following his arrest. Contrary to his contention, no other

testimony or evidence tended to establish he acted in his own defense when he

shot Ray in the back of the head. Taken in a light most favorable to the

Commonwealth, substantial evidence was presented to support Parson’s

conviction and it was not clearly unreasonable for a jury to find guilt. Thus,

the trial court properly denied the motions for directed verdict.

Parson’s final argument on appeal is that the trial court erred in denying

his pretrial motion for immunity. As previously stated, Parson moved the court

to grant him criminal immunity based on the provisions of KRS 503.085. The

court denied his motion. Parson argues this was error and asks for reversal of

his conviction.

When the defendant “has been tried and convicted by a properly instructed jury in a trial with no reversible error,” this Court has held that questions raising the propriety of the trial court’s immunity determination become “purely academic.” Under such circumstances, the defendant’s “self-defense claim has been thoroughly examined by both the trial judge under the directed- verdict standard and the jury under the court’s instructions and his entitlement to self-defense has been rejected.” In such cases, when a jury has already convicted the defendant—and, thus, found that his use of physical force in fact was unlawful beyond a reasonable doubt—and that conviction has not been shown to be flawed, the appellate court will not revisit whether there was 11 probable cause to believe that a defendant’s use of force was unlawful to allow prosecution under KRS 503.085.

Ragland v. Commonwealth, 476 S.W.3d 236, 246 (Ky. 2015) (citations and

footnote omitted). Based on this precedent, and having found no reversible

error in Parson’s conviction, we are without authority to review this issue.

C. CONCLUSION

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

Circuit Court is AFFIRMED.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Roy Alyette Durham, II Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Jay Cameron Attorney General of Kentucky

Stephanie Lynne McKeehan Assistant Attorney General