IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 20, 2015 NOT TO BE PUBLISHED
,ittprrittr (Court of 1.firttfurkv 2014-SC-000332-MR
TERRENCE ALAN SIMS APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE JAMES D. ISHMAEL, JR., JUDGE NO. 13-CR-01023
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Terrance Alan Sims, appeals from a judgment of the Fayette
Circuit Court convicting him of murder and sentencing him to imprisonment
for thirty-five years. Appellant raises the following arguments on appeal: (1)
the trial court erred by denying his pretrial motion for self-defense immunity
pursuant to KRS 503.085(1); (2) the trial court erred by denying his Batson
challenge to the Commonwealth's peremptory strike of a juror; and (3) the trial
court erred by limiting his cross-examination of a witness about the victim's
criminal record. For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Stephen Kavenaugh was shot and killed in downtown Lexington.
Although Kavenaugh and Appellant apparently were not previously acquainted,
they both ventured at the same time into the same part of town to buy crack
cocaine, and then joined together to locate a dealer. Soon afterwards, Kavenaugh's empty wallet was found next to his body. The contents of the
wallet were scattered about, suggesting that he had been robbed. Laboratory
testing of a shirt found nearby revealed the presence of Kavenaugh's blood.
DNA, later identified as Appellant's, was also on the shirt.
Eventually, police located Appellant in Michigan and arranged to
interrogate him about Kavenaugh's death. With the hope of inducing Appellant
to speak more freely about the incident, police suggested to Appellant that
Kavenaugh was known to them as a rough character, and a violent individual
who robs people to "snatch[] the dope." They even suggested to Appellant, "You
have the right to defend yourself against getting robbed." Although Appellant
initially told police several different versions of the event, including denying
that he was present at all, he eventually claimed that Kavenaugh attempted to
grab a gun from Appellant's waistband; that a scuffle over the gun ensued; and
that during the struggle, the gun discharged, killing Kavenaugh.
Appellant was indicted for the murder of Kavenaugh. Prior to trial,
Appellant moved for dismissal of the case under the self-defense immunity
provisions of KRS 503.085(1). His motion asserted that:
The police report reveals no motive for this killing, and the witness statements in discovery indicate that Mr. Kavenaugh lunged for Mr. [Sims'] firearm and that the firearm was discharged as Mr. [Sims] attempted to wrestle it back from Mr. Kavenaugh in self- defense.
After conducting an evidentiary hearing on Appellant's motion, the trial court
found from the evidence probable cause to believe that Appellant had not acted
in self-defense, and so the motion to dismiss was denied.
2 At trial, Appellant persisted with his claim of self-defense, but the jury
found to the contrary and returned a verdict convicting Appellant for the
murder of Kavenaugh. The trial court entered judgment consistent with the
verdict. After Appellant's motion for a new trial was denied, he filed this
appeal.
II. APPELLANT WAS NOT PREJUDICED BY THE TRIAL COURT'S METHOD OF RESOLVING APPELLANT'S SELF-DEFENSE IMMUNITY MOTION UNDER KRS 503.085(1)
Appellant first contends that the trial court erred to his prejudice in its
handling of his motion to dismiss the charges pursuant to KRS 503.050 and
KRS 503.085. Citing the procedures we outlined in Rodgers v. Commonwealth,
285 S.W.3d 740 (Ky. 2009) to guide trial courts in their resolution of motions
for dismissal based upon self-defense immunity, Appellant contends that the
trial court erred by basing its findings entirely upon the testimony of Det.
Robert Wilson, the only witness to testify at the self-defense immunity hearing.
Appellant argues that Rodgers mandated that the trial court's ruling must be
based, in Appellant's words, on "materials and reports related to the case so as
to make a neutral determination whether probable cause existed to believe the
accused could be found guilty of murder."
More precisely, we said in Rodgers with respect to defendant's motion for
immunity from prosecution based upon self-defense immunity: "The burden is
on the Commonwealth to establish probable cause and it may do so by
directing the court's attention to the evidence of record including witness
3 statements, investigative letters prepared by law enforcement officers,
photographs and other documents of record." Rodgers at 755.
Appellant's complaint on appeal is not that the trial court misjudged the
evidence by finding probable cause where none existed. Rather, his claim is
that by conducting an evidentiary hearing instead of reviewing the paper record
described in Rodgers, the trial court followed the wrong procedural route to
resolve the self-defense immunity motion, and as a result, overlooked any
compelling evidence that might have been found in the kind of materials
described in Rodgers.
Significantly, Appellant fails to identify any instance in which he asked
the trial court to follow the documentary review process detailed in Rodgers.
Also, we find no indication that he objected to the trial court's use of an
evidentiary hearing rather than a document review. We agree with the
Commonwealth that this issue is not properly preserved. Therefore, our review
of this issue is limited to the manifest injustice standard contained in RCr
10.26.
Upon review, we are persuaded that the record clearly demonstrates that
probable cause existed to support the conclusion that Appellant's use of deadly
force against Kavenaugh was unlawful. It would be nearly impossible to
conclude otherwise, especially since a jury has determined beyond a
reasonable doubt that Appellant did not act in self-defense, and since
Appellant does not contend that the jury's verdict was not supported by
4 evidence sufficient to establish his guilt—a standard of proof far exceeding the
reasonable doubt standard.
Given that probable cause is a very low evidentiary threshold, it is
inconceivable that the trial court, after reviewing "evidence of record including
witness statements, investigative letters prepared by law enforcement officers,
photographs and other documents of record" as set forth in Rodgers, would
have failed to find probable cause, which was so clearly established by the
testimony of a single investigating police officer at the evidentiary hearing. If
the process employed to determine whether probable cause existed to support
the continuation of the prosecution after Appellant asserted self-defense was
error, Appellant suffered no manifest injustice as a result.
HI. DENIAL OF BATSON CHALLENGE TO STRIKE OF JUROR 3053
Appellant contends that the Commonwealth's use of a peremptory
challenge to remove Juror 3053 from the venire violated Batson v. Kentucky,
476 U.S. 79 (1986), and that the trial court erred by denying his objection to
the Commonwealth's use of that challenge. The Commonwealth responded to
Appellant's objection by proffering race-neutral reasons for its decision to strike
the juror.
As we explained in Johnson v. Commonwealth, 450 S.W.3d 696 (Ky.
2014), Batson provides "a three-step process for trial courts to follow in
adjudicating a claim that a peremptory challenge was based on race." Those
steps are: 1) a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race; 2) if that showing has been
5 made, the prosecution must offer a race-neutral basis for striking the juror in
question; and 3) in light of the parties' submissions, the trial court must
determine whether the defendant has shown purposeful discrimination. Id at
702, citing Batson, 476 U.S. at 96. 1 "[T]he trial court's ultimate decision on a
Batson challenge is akin to a finding of fact, which must be afforded great
deference by an appellate court." Chatman v. Commonwealth, 241 S.W.3d 799,
804 (Ky. 2007). Ultimately, however, "[a] trial court's ruling on a Batson
challenge will not be disturbed unless clearly erroneous." Washington v.
Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).
Here, Appellant made the requisite prima facie showing of racial
discrimination necessary for a Batson challenge: Appellant and Juror 3053 are
both of African-American descent and the prosecutor used a peremptory
challenge to remove Juror 3053 from the jury panel. Nothing more is required
to permit an inference of racial discrimination. Blane v. Commonwealth, 364
S.W.3d 140, 149 (Ky. 2012).
The second prong of Batson requires the prosecutor to offer a race-
neutral basis for challenging jurors in the protected class. The threshold is
low. "At this step of the inquiry, the issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race-neutral."
Hernandez v. New York, 500 U.S. 352, 360, (1991) (plurality opinion). "The
1 Johnson actually cites the quoted passage from Batson as "476 U.S. at 97-98,"
which is incorrect. The correct citation is 476 U.S. 96.
6 second step of this process does not demand an explanation that is persuasive,
or even plausible," Purkett v. Elem, 514 U.S. 765, 767-68 (1995), though "the
expressed basis for the strike must rise above the level of an inexplicable
excuse and reach, at least, to the level of a coherent reason for the strike."
Johnson at 703. Here, the prosecutor cited the fact that Juror 3053 had
tattoos, body piercings, suffered from chronic pains, and had an "attitude."
Since none of those factors are exclusive to African-Americans, and they rise
above the level of "inexplicable excuse" as held in Johnson, we have no
difficulty accepting it as a racially-neutral basis for challenging the juror.
The final step of the Batson test requires the trial court "to assess the
plausibility of the prosecutor's explanations in light of all relevant evidence and
determine whether the proffered reasons are legitimate or simply a pretext for
discrimination against the targeted class." Johnson, 450 S.W.3d at 706. As
noted above, the trial court's ultimate decision on this point is given deference
as a finding of fact, and so we review it under the clearly erroneous standard.
A finding of fact is clearly erroneous if it is not supported by substantial
evidence, which is defined as evidence "which has sufficient probative value to
induce conviction in the mind of a reasonable person." Hunter v. Hunter, 127
S.W.3d 656, 659 (Ky. App. 2003).
During jury selection, the Commonwealth issued peremptory challenges
against eight venire members. One of the prosecutors at the trial made
notations on the strike sheet to explain each peremptory challenge. For Juror
3053, the prosecutor wrote: "Chronic back pain. Tatoos/piercings—unclear on her status as Army. Doesn't appear consistent w/ military standards.
Attitude." In the discussion at the bench concerning Juror 3053, the trial
court expressed some reservations about the Commonwealth's basis for
excluding Juror 3053, and asked the Commonwealth to clarify the reference to
her "attitude." The prosecutor replied that she believed Juror 3053 had
somewhat of a strange demeanor when she came to the bench; that the
piercings and the tattoos had nothing to do with race, and that prosecution
had also used a peremptory strike to remove another juror with facial jewelry
and who also had a friend in jail for trafficking marijuana. Ultimately, the trial
court accepted the Commonwealth's reasons as being race-neutral and not
pretextual. Appellant's Batson challenge was denied.
Upon review we are constrained to conclude that there is a substantial
basis to support the trial court's finding. Under the deferential standard
outlined above, we cannot say the trial court's ruling was clearly erroneous.
We are not persuaded that the trial court erred in upholding the
Commonwealth's peremptory strike of Juror 3053.
IV. EXCLUSION OF VICTIM'S PRIOR ROBBERY CONVICTION
Detective Matthew Brotherton, one of the police officers who first
interviewed Appellant after he was located in Michigan, testified at trial. After a
recording of Appellant's police interview was played for the jury, the
prosecution questioned Brotherton about the statements officers made to
Appellant during the interview, including the derogatory statements used to
suggest that Kavenaugh was dangerous. Brotherton acknowledged that the
8 officers employed those statements intentionally to deceive Appellant about
Kavenaugh's past in the hope of inducing Appellant to admit his involvement in
the shooting. Brotherton explained this as an interview technique occasionally
employed as a means of getting information or a confession from a suspect.
Brotherton also testified that the statements made to Appellant about
Kavenaugh's violent past, which the jury heard when the recording was
introduced, were not true. Appellant characterized this testimony as an effort
to cast the victim in a more favorable light, as a non-violent person, in order to
undermine Appellant's claim of self-defense.
Appellant's counsel tried to cross-examine Brotherton about
Kavenaugh's criminal record for the purpose of refuting whatever
misimpression that Brotherton's testimony may have created respecting
Kavenaugh's character. Apparently, Kavenaugh had a prior conviction for
second-degree robbery. The trial court sustained the Commonwealth's
objection to that line of cross-examination on the grounds that police were
using a legitimate interrogation technique and were allowed to lie to suspects
during police interrogation. 2 The trial court hinted that he might allow a
broader inquiry into the issue of Kavenaugh's criminal past when Brotherton's
partner, Detective Wilson, took the stand; however, Wilson was never called as
a witness.
2 The use of a ruse, or "strategic deception," does not render a defendant's
statement involuntary so long as the ploy does not rise to the level of compulsion or coercion. See Illinois v. Perkins, 496 U.S. 292 (1990).
9 This evidentiary ruling was also the subject of Appellant's post-trial
motion for a new trial, in which he distilled the issue as follows:
Mr. Sims was not granted a fair trial due to the improper bolstering of Steven Kavenaugh's character through Detectives Brotherton and Wilson during the recorded interview which was played for the jury. Additionally, Mr. Sims was not given an opportunity to disprove the statements made by those detectives, so the jurors were made to believe that Mr. Kavenaugh was not previously convicted of robbery. Attached is documentation that Mr. Kavenaugh was in fact convicted of robbery.
Appellant argues on appeal that his cross-examination of Brotherton
should not have been curtailed as it was, and that he should have been allowed
to introduce proof of Kavenaugh's prior conviction for second-degree robbery. 3
HeargusthComnweal"pdthorevincwht
presented Brotherton's testimony re-casting Kavenaugh's disposition as that of
a non-violent person to dispel the negative impression created about him when
the jury heard contrary statements made by the police on the interview
recording.
3 The record discloses that in 1997 Kavanaugh, as a result of a plea agreement, was convicted of second-degree robbery (as amended down from the original charge of first-degree robbery); and receiving stolen property over $300.00. In connection with the plea agreement charges for carrying a concealed deadly weapon and third-degree criminal mischief were dismissed. The original charge, first-degree robbery, is classified as a violent offense under KRS 439.3401(m), though second-degree robbery is not similarly classified under the violent offender statute. Nevertheless, KRS 515.030 describes the elements of second-degree robbery, a Class C felony, as follows: "A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft." (emphasis added). As such, while second-degree robbery may not formerly be classified as a "violent offense" under the violent offender statute, second-degree robbery has elements of violence associated with it (actual or threatened use of physical force).
10 "The term 'opening the door' describes what happens when one party
introduces evidence and another introduces counterproof to refute or
contradict the initial evidence . . . If the first party objects to the counterproof,
or loses the case and claims error in admitting it, typically the objection or
claim of error is rejected because he 'opened the door."' ROBERT G. LAWSON, THE
KENTUCKY EVIDENCE LAW HANDBOOK § 1.10[5] (4th ed. 2011) (quoting 1 Mueller &
Kirkpatrick, Federal Evidence, § 12 (2d ed. 1994)). Sometimes referred to as
"curative admissibility," opening the door occurs when one party introduces an
inadmissible fact that opens the door for the opponent to offer similar facts
whose only claim to admission is that they negate, explain, or counterbalance'
the prior inadmissible fact. Norris v. Commonwealth, 89 S.W.3d 411, 414 (Ky.
2002).
We addressed virtually the same circumstances very recently in
Stansbury v. Commonwealth, 454 S.W.3d 293, 300-01 (Ky. 2015), although in
that case the Commonwealth was on the opposite side of the issue:
[]Stansbury . . . elicited testimony from Falconer about the extent to which he cared for her pets, testimony that could have been excluded as inadmissible character evidence. However, as we held in Metcalf [v. Commonwealth, 158 S.W.3d 740 (Ky. 2005)], once Stansbury opened the door to the introduction of "good" character evidence, he cannot complain if the Commonwealth walked through that door and introduced character evidence not to his liking. Therefore, we hold no error occurred.
With reference to Commonwealth v. Higgs, 59 S.W.3d 886, 894 (Ky. 2001), we
noted in Stansbury that "testimony by Higgs's father that Higgs was not a thief
11 `opened the door' to evidence that Higgs's father had accused Higgs of stealing
property from him."
We agree with Appellant. Although evidence that Kavenaugh had been
convicted of a violent crime might otherwise have been inadmissible under KRE
404(b), once the Commonwealth introduced testimony that Kavenaugh did not
have a violent criminal record, the door was opened for Appellant to offer proof
to the contrary. To paraphrase Higgs, supra, testimony by Brotherton that
Kavenaugh was not a robber or a violent person, "opened the door" to
Appellant's evidence that Kavenaugh was a convicted robber. The rule invoked
to the Commonwealth's advantage in Stansbury and Higgs applies to the
defendant as well. The trial court erred by limiting Appellant's cross-
examination of Brotherton on this point.
Nevertheless, we find the error to be harmless. The evidence of
Appellant's guilt was overwhelming. There was no doubt at all that his gun
fired the fatal bullet and that Kavenaugh's blood was on Appellant's shirt,
which he apparently discarded at the scene. Circumstances indicated that the
same person that shot Kavenaugh also robbed him, or attempted to rob him, as
evidenced by the ransacking of the victim's wallet and the fact that people in
the vicinity, upon hearing the gun shot, arrived on the scene almost
immediately. Appellant's flight from the area suggests consciousness of guilt;
forensic evidence discredited the manner in which Appellant claimed the fatal
wound was inflicted; Appellant and Kavenaugh were both involved in the
nefarious activity of buying illegal drugs; and after being located in Michigan
12 and questioned by police, Appellant gave conflicting accounts of the incident,
further evincing a consciousness of guilt. Moreover, Kavenaugh's robbery
conviction was thirteen years prior to this event, and thus did not demonstrate
recent violent conduct, thereby mitigating its significance in light of the other
proof. The jury was made aware of the victim's recent drug use and, in our
view, was not likely to have been unduly sympathetic to the victim, such that
the Appellant was unfairly prejudiced. We find it unlikely that the
Commonwealth's misleading, and conflicting, portrayals of the victim, first in
the interview with Appellant and then in Brotherton's testimony, led the jury to
reject Appellant's self-defense theory.
In summary, although we are satisfied that the trial court's ruling
constraining Appellant's ability to cross-examine Brotherton about the victim's
robbery conviction was erroneous, we are satisfied that it did not substantially
sway the jury's verdict and sentencing recommendation. Looking at totality of
evidence heard by the jury in this case, we conclude with fair assurance that
the error did not substantially sway the verdict, and so was harmless.
Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).
IV. CONCLUSION
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
All sitting. Minton, C.J., Barber, Cunningham, Keller, Noble, and
Venters, JJ., concur. Abramson, J., concurs in result only.
13 COUNSEL FOR APPELLANT:
Linda Roberts Horsman Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Jack Conway Attorney General of Kentucky
James Daryl Havey Assistant Attorney General Office of the Attorney General