RENDITION: JULY 9, 2020 TO BE PUBLISHED
Supreme Court of Kentucky 2018-SC-000402-MR
TERRENCE DOWNS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE ANGELA MCCORMICK BISIG, JUDGE NOS. 16-CR-003370 & 18-CR-001693
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
REVERSING AND REMANDING
Terrence Downs appeals as a matter of right1 from his twenty-five-year
sentence for convictions of first-degree manslaughter, tampering with physical
evidence, possession of a handgun by a convicted felon, and second-degree
persistent felony offender (PFO2). Because Downs was deprived of his right to
counsel at a critical stage of the proceedings, we reverse his judgment of
conviction and sentence and remand for further proceedings consistent with
this Opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND.
On Saturday, December 10, 2016, Downs shot and killed Ronnie Reed
inside the kitchen of Brandy Taul’s apartment, located in the Guardian Court
apartment complex in Louisville. Brandy, her roommate Juanita Downs,2 and
1 Ky. Const. § 110(2)(b). 2 No relation to Terrence Downs. Juanita’s sister Jordyn Hinkle, witnessed the shooting. The shooting occurred
shortly after Jordyn telephoned Downs, who was a good friend of hers, and told
him that she was upset because Reed had put his hands on her in the parking
lot of the apartment complex where Jordyn also resided. At Jordyn’s request,
Downs drove over to her apartment to talk with her.3
Downs believed Jordyn but having known Reed since middle school,
wanted to talk with him about what happened. Downs and Jordyn went to
Brandy’s apartment looking for Reed but he was not there. Downs spoke with
the people there and tried to get a sense of what had happened. They informed
Downs that Reed was on his way back to Brandy’s apartment. At this point,
Jordyn called Reed, and Downs spoke with him. Reed denied putting his
hands on Jordyn and said he was coming over.
While they waited, Downs and Jordyn went to the store. Upon returning,
they encountered Reed in the apartment parking lot. Downs saw Reed was
holding a .45 handgun with an extended clip. Jordyn went upstairs to
Brandy’s apartment while Downs and Reed remained outside. Downs testified
that Reed denied responsibility and became frustrated and wanted to talk to
Jordyn. Reed headed upstairs to the apartment, Downs followed. Juanita,
who watched their encounter from a window at the landing outside the
apartment, testified that Downs and Reed spoke cordially, with no indication of
a conflict.
3 Evidently, the conflict between Reed and Jordyn arose because Jordyn learned
that Reed was also having an intimate relationship with her sister, Juanita. 2 In the apartment, Jordyn and Juanita were in the small kitchen, sitting
on the countertop. Reed entered the kitchen first, with Downs behind him. At
this point, the evidence is conflicting as to whether Reed was waving the
handgun around with his hand on the trigger threatening people OR whether
Reed simply set the gun on the counter and turned his back to it while civilly
speaking with Juanita and Jordyn. Regardless, Downs grabbed the gun and
struck Reed in the head with it from behind. Reed staggered, turned to face
Downs, and Downs shot him. Downs then fled the scene; he testified that he
dropped the gun in the parking lot as he ran away. Reed was taken to the
hospital, where he died that morning. Downs was arrested two days later. The
handgun was never found.
A grand jury indicted Downs for murder, robbery first-degree, possession
of a handgun by a convicted felon, wanton endangerment first-degree,
tampering with physical evidence, and PFO2. The trial court dismissed the
robbery first-degree and wanton endangerment first-degree counts and severed
the handgun-possession count. After the guilt phase of trial, a jury convicted
Downs of manslaughter first-degree and tampering with physical evidence. At
that point, the parties agreed to the disposition of the other offenses and the
penalty. Downs pled guilty to possession of a handgun by a convicted felon,
being a PFO2, and to the tampering with physical evidence charge for which he
already had been convicted. Pursuant to the parties’ agreement, Downs waived
sentencing and the trial court imposed twenty-five years’ imprisonment with
Downs reserving his right to appeal the manslaughter first-degree conviction.
3 II. ANALYSIS.
a. Downs was denied the right to counsel at a critical stage of the proceedings.
Downs claims he was denied the right to conflict-free counsel at a critical
stage of the proceedings — during an in-chambers hearing the trial court
conducted on the fitness and ability of his private attorney, Brendan McLeod,
to try the case. Kentucky case law is settled that “a complete absence of
counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment
violation warranting reversal of a conviction, a sentence, or both, as applicable,
without analysis for prejudice or harmless error.” Allen v. Commonwealth, 410
S.W.3d 125, 144 (Ky. 2013).
On the afternoon voir dire was scheduled to commence, the
Commonwealth informed the court that it had an issue to address and asked
to approach the bench. At the bench conference, Dorislee Gilbert, an appellate
attorney with the Jefferson County Commonwealth’s Attorney’s office, entered a
limited appearance to report concerns about the fitness of Downs’s attorney,
McLeod, to try the case. She told the court:
Our point here, Judge, is not to accuse Mr. McLeod, or to say bad things about him. Honestly, if the things that I am hearing about him are true, I have concerns about him personally, but today the purpose of this hearing and the reason we’re putting this stuff on the record, is because there is a man who is facing a prison sentence who has a Sixth Amendment right to effective counsel, and we are aware of something, and as prosecutors it is our obligation to help secure his rights.
Gilbert informed the court that she had witnesses, including potentially
another Jefferson Circuit Court Judge, who would testify as to their concerns
4 about McLeod’s fitness to try the case. The trial judge said that Jefferson
Circuit Court Judge Chauvin had already approached her out of court, off the
record, expressing his observation that McLeod’s thinking sounded circular or
disjointed during a bond arraignment hearing earlier that day, but that he did
not plan on reporting McLeod to a lawyer agency or anything of that nature.
The trial judge stated that in observing McLeod that day, she had not perceived
any physical manifestation of him being under the influence of anything.
When the court indicated that it would hear from the Commonwealth’s
witnesses, McLeod requested that it do so in chambers.
Downs remained in the courtroom while the attorneys retreated to
chambers. In chambers, the court heard from two assistant Commonwealth’s
Attorneys: Justin Janes, who had appeared in Judge Chauvin’s courtroom with
McLeod for a bond arraignment hearing earlier that day, and Scott
Drabenstadt, who had interacted with McLeod in the hallway that day. Janes
said that after sitting through the arraignment, he was concerned about
McLeod’s health and his ability to work, since McLeod did not seem like
himself. After the arraignment, Judge Chauvin asked Janes if McLeod was
going to try a case that day, then stated “that man should not be operating
heavy machinery.” Drabenstadt told the court that he was friends with
McLeod, had known him for many years and had encountered McLeod in the
hallway earlier, and that McLeod was not himself — he was not speaking or
walking in his usual manner — and Drabenstadt wondered if something was
neurologically wrong with him like maybe he had suffered a stroke.
5 The trial court commented that it had not seen anything inappropriate
from McLeod since starting the case. The court then questioned McLeod,
inquiring as to whether he was under the influence of any medication, or had a
health issue, or a personal situation affecting him that would impair his ability
to adequately represent Downs that day. McLeod said that nothing in his
personal life affected his ability to try the case. He further denied having a
health issue or being under the influence of medication, other than taking
Sudafed for postnasal drip. He told the court he was “naturally hyper” but that
he had stopped taking Valium a month ago. He pointed to the prosecutors’
aggressive attitude toward Downs and confrontational proceedings as a source
of agitation in this case. The trial court acknowledged that the case had been
acrimonious.
The Commonwealth then asked the court to make a ruling on whether
McLeod was fit to proceed that day. The Commonwealth further requested that
in the event the court determined he was fit to proceed, the court advise Downs
of the general concerns raised so that he would be aware and could raise any
observations or concerns he had with McLeod’s representation. McLeod
protested on grounds that informing Downs of the allegations amounted to
corroding his relationship with his client.
The trial court ruled that McLeod was fit to proceed, finding as follows:
To take the very serious step of saying that a lawyer is not fit to represent his client I believe that I would need more information than what has been presented to me. I haven’t had anyone say that there’s been any smell, I haven’t seen any physical manifestation, like I said, I do not doubt, and I wholeheartedly believe these allegations are being made in good faith and are not 6 being made for tactical advantage in this underlying case. I’ve been on the bench 16 years and I’ve never had anyone raise an issue like this. I don’t think the Commonwealth would start today just doing this to gain an advantage in this case. But I just don’t see enough evidence to remove Mr. McLeod from representing his client.
While noting the importance of a defendant’s right to counsel of his
choice, the court refused to inform Downs of the issues raised and the court’s
ruling, stating that it had observed Downs and McLeod appropriately
interacting throughout the proceeding and that Downs had not asked the court
to intervene, or looked to the court as though there was a problem. The court
believed that to question Downs about McLeod’s fitness at this point would
prejudice their relationship, which the court declined to do without more
evidence of inappropriate behavior from McLeod. The court said that it would
continue to monitor the situation.
McLeod asked to break for the day because he felt upset and under
attack. The court dismissed the jury for the night. The next morning, McLeod
was thirty minutes late to court and the trial court reprimanded him for his
tardiness, informing him he would be fined every time he was late going
forward. The court then addressed Downs in open court, checking in with him
to make sure he wished to proceed with McLeod as his counsel, and that he
was comfortable with McLeod as his counsel. Downs responded yes, and the
court asked him if he had any questions. Downs said, “I mean I didn’t really
get the full extent of what was going on but he told me a little bit of it . . . I
mean, I don’t know.” The court clarified that Downs was comfortable going
7 forward with McLeod as his attorney, and that they were working together in
his defense, and Downs said yes.
On appeal, Downs’s DPA-appointed counsel argues that Downs had the
right to be represented by conflict-free counsel and to have been present during
the court’s in-chambers hearing or, at the very least, should have been
informed of the nature of the inquiry and the court’s findings. RCr4 8.28(1)
states, in part: “The defendant shall be present at the arraignment, at every
critical stage of the trial including the empaneling of the jury and the return of
the verdict, and at the imposition of the sentence.” Indeed, “[i]t is well-settled
that a criminal defendant has a right to be represented by counsel that extends
beyond the actual trial to every critical stage of the proceedings.” Allen, 410
S.W.3d at 138 (citations omitted).
[A]n analysis of a critical stage necessarily involves a retrospective inquiry as to the nature and consequences of each step in the proceedings. Particular attention must be given to how counsel would have benefited the defendant at these moments. A portion of a criminal proceeding is a critical stage if a reasonable likelihood exists that the defendant was prejudiced by the absence of counsel.
Id. at 139 (internal quotations and citations omitted).
Downs asserts that the in-chambers hearing on McLeod’s fitness to try
the case was a critical stage of the proceedings and that he was prejudiced by
not having conflict-free counsel represent him. He points out that the hearing
turned on contested facts, rather than mere legal arguments, which he
4 Kentucky Rules of Criminal Procedure. 8 distinguishes from situations involving only legal arguments between the court
and counsel, or other minimal events for which the defendant’s presence
makes no difference. See, e.g., Tamme v. Commonwealth, 973 S.W.2d 13, 38
(Ky. 1998) (holding that the defendant’s absence during discussion of jury
instructions was not reversible error, as such discussion involved only legal
arguments); Parrish v. Commonwealth, 472 S.W.2d 69, 71 (Ky. 1971) (holding
that the defendant’s absence from a pretrial motion for a continuance was not
reversible error).
Downs emphasizes that no one in chambers was representing his
interests: McLeod was acting as a fact witness for the subject matter of the
hearing and not in his capacity as Downs’s attorney. Downs argues that
McLeod’s objection to the court informing him of the inquiry reveals the
inherent conflict: McLeod was seeking to preserve his attorney-client
relationship with Downs, rather than serving as an advocate for Downs’s
interests. In support, Downs directs us to Zapata v. Commonwealth, wherein
this Court held on direct appeal that the defendant was deprived of his right to
conflict-free counsel during a critical stage in the proceedings when his counsel
was placed in the untenable position of defending her own interests which were
adverse to her client’s. 516 S.W.3d 799, 803 (Ky. 2017). In Zapata, the
defendant moved to withdraw his plea based on his counsel’s alleged deception.
The defendant’s counsel admitted the motion put her in an “awkward position”
and this Court agreed, holding that “to argue in favor of [her] client’s motion
would require admitting serious ethical violations and possibly subject [her] to
9 liability for malpractice; on the other hand, any contention by counsel that
defendant’s allegations were not true would . . . contradict [her] client.” Id.
(citations omitted).
In response, the Commonwealth argues that the in-chambers hearing
was a procedural conference unrelated to the issues at trial and therefore did
not require Downs’s presence. The Commonwealth cites no Kentucky cases in
support of its argument and instead directs us to two cases from the Tenth and
Eleventh Circuits in which the federal courts held that the defendant’s
presence was not required. In the first case, United States v. Oles, the Court
ruled that the defendants had no right to be present at a pretrial hearing, held
two weeks before the jury trial, during which prospective counsel declined to
enter an appearance and the court thus denied the appointed counsel’s motion
to withdraw. 994 F.2d 1519, 1525 (10th Cir. 1993). Specifically, the Oles
court held that “the preliminary hearing was not a critical stage of trial, but
instead would more accurately be classified as an administrative conference
unrelated to any issues at trial. . . . appellants failed to establish that their
presence at this hearing would contribute to the fairness of the overall
proceeding.” Id. Downs distinguishes Oles on grounds that the pretrial
proceeding in that case did not affect the overall fairness of the proceedings as
it did here where the health and fitness of defense counsel was questioned as
voir dire commenced.
In the second case, United States v. Bowe, the Court cited Oles in
applying the principle that procedural conferences unrelated to the issues at
10 trial do not require a defendant’s presence. 221 F.3d 1183, 1189 (11th Cir.
2000); see also Small v. Endicott, 998 F.2d 411, 414–15 (7th Cir. 1993) (holding
that defendant had no right to attend scheduling hearing where court made no
adverse ruling). In Bowe, an attorney on the defense team was arrested prior
to trial and entered a drug rehabilitation program. Id. at 1188. Subsequently,
the defense attorneys requested a continuance until that attorney completed
rehab, which the trial court denied after holding a status conference. Id. The
appellate court held that the defendant had no due process right to attend the
status conference as it was not formal, the defendant’s presence would not
have contributed to the discussion, the defendant did not claim to have a more
extensive knowledge of counsel’s situation than those who attended, and the
defendant’s request for a continuance was communicated to the court through
his attorneys. Id. at 1189. Downs distinguishes Bowe, as the unavailable
attorney in that case was part of a defense team, i.e., the client had two other
attorneys well-versed in the case representing him, whereas McLeod was
Downs’s only attorney. Moreover, Downs points out that the conference in
Bowe occurred at least a month before trial commenced, not the day of voir
dire, and the court had record of the defendant’s wishes as expressed in an
affidavit from Bowe explaining that he knew about the attorney’s arrest and
rehabilitation and wanted a continuance so that attorney could remain part of
his defense team. Unlike the defendant in Bowe, Downs had no notice of the
concerns raised about McLeod’s fitness to try the case, and his acquiescence to
11 McLeod’s continued representation of him was made without this available
information.
As this Court has noted, what constitutes a “critical stage” for Sixth
Amendment purposes includes those circumstances in which “the accused
must find himself confronted, just as at trial, by the procedural system, or by
his expert adversary, or by both.” Cain v. Abramson, 220 S.W.3d 276, 280 (Ky.
2007) (internal quotations and citations omitted). In Cain, we held that “the
psychiatric evaluation, ordered by the court upon notice by Cain of his intent
to assert mental illness as a defense to the crimes he is charged with
committing, is not a ‘critical stage’ in the procedural system giving rise to a
constitutional necessity for the presence of counsel.” Id. at 281. We reasoned
that our holding “balance[ed] the constitutional rights of the accused to have
counsel present at ‘critical stages’ of the procedural system and to be free from
compulsion to incriminate himself with the right of the public to refute
disingenuous or inadequate claims of mental disease.” Id. at 282.
Here, the trial court’s in-chambers hearing failed to include the person
most affected by the issues raised — Downs — who was on trial for murder.
Whether Downs had a fit attorney representing him at trial is of utmost
importance to the fairness of his trial. While Downs himself was not placed in
an adversarial situation without counsel, he was excluded from participating in
the procedural system during a fact-based inquiry that bore directly on his
counsel’s physical and mental ability to represent him competently and
effectively. At the very least, Downs should have been informed of the
12 allegations against McLeod and given the opportunity to retain independent
counsel to advocate his interests.
Put simply, Downs’s right to conflict-free counsel outweighed McLeod’s
desire to keep his attorney-client relationship intact and outweighed any
potential inconveniences suffered by delaying the trial to conduct a proper
hearing on the issues raised. While we commend the trial court’s effort to
investigate the Commonwealth’s concerns in a confidential and professional
manner, the court’s decision not to inform Downs of the Commonwealth’s
allegations against McLeod and not offer him the opportunity to retain
independent counsel to represent his interests was error of constitutional
magnitude and mandates reversal.
We will now address any remaining claims of error that may arise again
on remand.
b. First-Degree Manslaughter Instruction.
Downs asserts that the first-degree manslaughter instruction
erroneously required the jury to find that he was acting under extreme
emotional disturbance (EED). As this claim of error is unpreserved, it is
subject to palpable error review only pursuant to RCr 10.26:
A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
“Palpable error relief is available under RCr 10.26 only upon a determination
that manifest injustice has resulted from the error. ‘Manifest injustice’ is ‘error
13 [that] so seriously affect[s] the fairness, integrity, or public reputation of the
proceeding as to be ‘shocking or jurisprudentially intolerable.’” Davidson v.
Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v.
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).
The trial court instructed the jury on first-degree manslaughter as
follows:
Manslaughter in the First Degree
If you did not find the Defendant guilty under Instruction 1 [Murder], you will find the Defendant, Terrence Downs, guilty of Manslaughter in the First Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
(A) That in Jefferson County on or about December 10, 2016, he killed Reed by shooting him; AND
(B) That in so doing:
(1) He intended to cause the death of Ronnie Reed while acting under the influence of an extreme emotional disturbance as defined in Instruction No. 6; OR
(2) He did not intend to kill Ronnie Reed but intended to cause serious physical injury to Ronnie Reed; AND
(C) That he was not privileged to act in self-protection, as set out in Instruction 1A.
The Commonwealth concedes that this instruction should not have
required a finding that Downs acted under EED, but argues the error was not
palpable. As we are reversing and remanding on other grounds, we need not
address whether the error was palpable, but do direct the trial court on remand
not to include EED as a requisite finding under this instruction unless the
evidence supports such an instruction. 14 c. Provocation and Initial Aggressor Qualifying Instructions.
Downs argues that the trial court erred by providing the provocation and
initial aggressor qualifying instructions as they were not supported by the
evidence. Downs objected to the inclusion of these instructions that the
Commonwealth tendered during trial. The trial court noted his objection and
said it would make a final ruling once all the proof was submitted. However,
Downs did not renew his objection the next day and the trial court included
these qualifying instructions that rendered the defense of self-protection
unavailable if Downs provoked Reed or if Downs was the initial aggressor.
We review the trial court’s decision to provide a jury instruction under an
abuse of discretion standard:
Under the familiar standard prescribed in Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), a trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. A decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom. Because such decisions are necessarily based upon the evidence presented at the trial, the trial judge’s superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard.
Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015) (internal quotations and
citations omitted).
The provocation and initial aggressor instructions immediately followed
the self-protection instruction and read:
Provocation Qualification
15 Provided, however, that if you believe from the evidence beyond a reasonable doubt that Terrence Downs provoked Ronnie Reed to use or attempt to use physical force upon him, then the defense of self-protection is not available to him.
Initial Aggressor Qualification
Provided, however, that if you believe from the evidence beyond a reasonable doubt that Terrence Downs was the initial aggressor, the defense of self-protection is not available to him unless:
(a) He did not initially intend to cause death or serious physical injury to Ronnie Reed and his initial physical force was not such that he thereby created and knew he was creating a substantial risk of death or serious physical injury to Ronnie Reed; AND
(b) The force returned or threatened by Ronnie Reed was such that Terrence Downs believed himself to be in imminent danger of death or serious physical injury.
The language in the trial court’s initial aggressor instruction follows the
wording of KRS5 503.060, which in relevant part sets out exceptions to self-
defense:
(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury
In applying KRS 503.060 to jury instructions concerning the right to use
deadly physical force, we have made clear that there must be sufficient
evidence in the record to substantiate the instruction:
The criterion is whether movant, in good faith, believed it was necessary to exercise extreme force in saving his own life. It is not every assertion of such belief that is adequate to support a plea of
5 Kentucky Revised Statutes. 16 self-defense. It is the whole circumstances which surround the incident that must be considered by the trial judge in deciding whether an instruction on self-defense is proper or whether an instruction on self-defense with limitations is proper. We have held that before such qualifying instructions are proper there must of course be evidence to justify it. In other words, the trial judge must find as a matter of law that there is sufficient evidence to justify such limitations before instructing the jury.
Stepp v. Commonwealth, 608 S.W.2d 371, 374 (Ky. 1980).
Downs argues that his initial request for Reed to come talk to him was
insufficient to warrant the qualifying instructions and that Reed bringing a gun
to the conversation was a “show of force” that precluded a finding that Downs
provoked Reed or was the initial aggressor. However, Downs’s and Reed’s
interaction was not limited to the parking lot; they also interacted in the
apartment afterwards. Notably, the witnesses’ testimony at trial was
conflicting as to whether Reed brandished his gun when he entered Brandy’s
apartment, waving it around and pointing it at Downs, or whether he set the
gun on the counter without making any threats and turned his back to it when
Downs hit him from behind.
This evidence, while conflicting, supported the trial court’s decision to
instruct the jury on provocation and initial aggressor. The jury was charged
with weighing conflicting evidence, assessing the credibility of the witnesses,
and drawing a conclusion in the form of a verdict. Clark v. Commonwealth,
567 S.W.3d 565, 569–70 (Ky. 2019). The jury could have reasonably
determined that Downs provoked Reed, or was the initial aggressor, when he
picked up the gun and pistol-whipped Reed while Reed had his back to him.
17 Therefore, the trial court did not abuse its discretion by instructing the jury on
provocation and initial aggressor qualifications to self-defense.
d. Language of Provocation Instruction.
Regarding the wording of the provocation instruction, Downs admits he
did not preserve this issue for review and thus argues that the trial court
committed palpable error by instructing the jury on provocation without
including intent, a necessary element of the instruction. The Commonwealth
acknowledges that the instruction was erroneous in that “it lack[ed] the
statutory element requiring the defendant to provoke the victim with the intent
to cause death or serious physical injury to him.” Barker v. Commonwealth, 341
S.W.3d 112, 114 (Ky. 2011); see also 1 Cooper & Cetrulo, Kentucky Instructions
to Juries, § 11.12 (2018) (includes statutory element of intent to cause death or
serious physical injury).
Whether jury instructions accurately state the law is a question of law,
which we review de novo. Maupin v. Tankersley, 540 S.W.3d 357, 359 (Ky.
2018); Sargent v. Shaffer, 467 S.W.3d at 204. Erroneous instructions are
presumed to be prejudicial. McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997).
KRS 503.060(2), which addresses improper use of force in self-
protection, provides in part: “Notwithstanding the provisions of KRS 503.050,6
the use of physical force by a defendant upon another person is not justifiable
when: (2) The defendant, with the intention of causing death or serious
6 KRS 503.050 provides for self-defense: “Use of physical force in self-
protection.” 18 physical injury to the other person, provokes the use of physical force by
such other person[.]” (emphasis added). Downs claims that the jury should
have been instructed to find that he intended to cause the death or serious
physical injury to Reed when he provoked Reed to use force against him.
Downs is correct and on remand, the trial court shall include the necessary
element of intent if the evidence supports an instruction on provocation.
e. Downs Waived His Right to Appeal the Tampering with Physical Evidence Conviction.
Downs argues that the evidence was insufficient to support the
tampering with physical evidence conviction. After the jury convicted him of
first-degree manslaughter and tampering with physical evidence, Downs pled
guilty to possession of a handgun by a convicted felon, PFO2, and tampering
with physical evidence. Pursuant to the plea agreement, Downs reserved his
right to appeal only the first-degree manslaughter conviction. Because he
waived the right to appeal his conviction for tampering with physical evidence,
we decline to review this claim of error. See Commonwealth v. Reed, 374
S.W.3d 298, 300 (Ky. 2012) (“[a]n unconditional guilty plea waives the right to
appeal . . . a finding of guilt on the sufficiency of the evidence”).
f. Jordyn Hinkle’s Prior Inconsistent Statement.
Downs asserts that the trial court improperly allowed the Commonwealth
to introduce a recorded phone call that occurred between Brandy and Jordyn
nine days after the murder through the testimony of Brandy, rather than
Jordyn. Because Downs did not present an evidentiary rule or basis for his
objection below, just that “it’s wrong, it’s not allowed,” the Commonwealth 19 argues that this issue is unpreserved and should be reviewed for palpable error
only.
KRE7 103(a)(1) provides for an appeal on admission of evidence only if a
timely objection was made at trial, and only when such objection “state[s] the
specific ground for objection, if the specific ground was not apparent from the
context[.]” (emphasis added). While Downs timely objected to the recording
coming in through Brandy, the record is void of any specific ground for his
objection. That said, because the ground for objection was apparent from the
context of counsel’s discussion at the bench (that the recorded phone call
should have been played when Jordyn denied it took place), we will consider
the issue preserved and review whether the trial court abused its discretion by
admitting the recording through Brandy. Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 577 (Ky. 2000) (an appellate court reviews a trial
court’s evidentiary rulings for an abuse of discretion).
The record shows that the Commonwealth questioned Jordyn about
whether she spoke on the phone with Brandy nine days after the murder, on
December 19, 2016. Jordyn denied the phone conversation occurred and said,
“if it was recorded, I’d like to hear it.” Later, the Commonwealth recalled
Brandy who testified that she had recorded the phone call with Jordyn on that
day at a detective’s request and that the recording was an accurate
representation of their conversation. The recording was played for the jury.
During the recording, two female voices (Brandy and Jordyn) discuss threats
7 Kentucky Rules of Evidence. 20 being made against them because of Reed’s murder. The female voice
identified as Jordyn stated that Downs and Reed had “squashed it in the
parking lot” and that when Reed and Downs came up to the apartment, Reed
was being nice to her when, suddenly, Downs shot him — and that it was
Downs’s fault.
The Commonwealth maintains that it properly recalled Brandy for the
sole purpose of introducing a prior inconsistent statement of Jordyn, since
Jordyn testified inconsistent with that recording by denying ever speaking to
Brandy on the phone on December 19, 2016. The Commonwealth points out
that the recorded phone call was in discovery so Downs was aware of its
content.
Downs directs this Court to KRE 613 in support of his assertion that the
Commonwealth should have played the recording after Jordyn testified — “if it
was recorded, I’d like to hear it” — and allowed Jordyn the opportunity to
refresh her recollection and explain herself. KRE 613 provides:
Examining witness concerning prior statement. Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it. The court may allow such evidence to be introduced when it is impossible to comply with this rule because of the absence at the trial or hearing of the witness sought to be contradicted, and when the court finds that the impeaching party has acted in good faith.
KRE 613(a).
21 The Commonwealth contends that Downs conflates KRE 613(a)’s
foundation requirement for introduction of a prior inconsistent statement with
memory refreshment under KRE 612 and with the KRE 803(a) hearsay
exception for introduction of a recorded recollection concerning a matter about
which the witness once had knowledge. Under KRE 801A(a)(1), relating to
prior statements of witnesses, “[a] statement is not excluded by the hearsay
rule, even though the declarant is available as a witness, if the declarant
testifies at the trial or hearing and is examined concerning the statement, with
a foundation laid as required by KRE 613, and the statement is . . .
[i]nconsistent with the declarant’s testimony[.]” An inconsistent statement for
purposes of KRE 801A(a)(1) includes a witness’s claimed inability to recall
making the statement. McAtee v. Commonwealth, 413 S.W.3d 608, 618 (Ky.
2013). And under Kentucky law, “prior inconsistent statements may be
introduced as an impeachment device and as substantive evidence.” Id.
Here, the Commonwealth established a foundation through Jordyn’s
testimony, then applied KRE 801A(a)(1) and KRE 613 in introducing her prior
statements by way of playing the recorded phone call. The recorded phone call
was sufficiently authenticated for its introduction into evidence by Brandy’s
identification of it as a phone call between her and Jordyn on December 19,
2016 and representation that the recording was an accurate reproduction of
their conversation. Because Brandy authenticated the recording, it was
properly admitted as a prior inconsistent statement of Jordyn pursuant to KRE
801A(a)(1). The Commonwealth need not have refreshed Jordyn’s recollection
22 with it first. See King v. Commonwealth, 554 S.W.3d 343, 360 (Ky. 2018) (“KRE
613 requires a written statement be shown to the witness; it does not address a
recorded statement[]”). Thus, the trial court did not abuse its discretion by
allowing the Commonwealth to introduce the recorded phone call through
Brandy. That said, given that Jordyn now knows of the recorded phone call,
we doubt this issue will arise again on remand.
III. CONCLUSION.
Because Downs was deprived of his right to counsel at a critical stage of
the proceedings, we reverse his judgment of conviction and corresponding
sentence and remand this case to the trial court for further proceedings
consistent with this Opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky
James Daryl Havey Assistant Attorney General
Todd Dryden Ferguson Assistant Attorney General