IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JANUARY 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0195-MR
WILLIAM HARRIS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HON. ANGELA MCCORMICK BISIG, JUDGE NOS. 19-CR-002071-001 & 22-CR-000317
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal comes before the Court as a matter of right 1 from the
Jefferson Circuit Court, where Harris was convicted of murder, felon in
possession of a handgun, and being a persistent felony offender in the first
degree. He was sentenced to thirty-five years in prison. The only issue
presented is whether the Commonwealth violated discovery rules by failing to
provide Harris with enhanced or magnified surveillance video used at trial,
when the original unenhanced or unmagnified video was disclosed. Finding no
abuse of discretion, we affirm the convictions.
I. Facts
On July 11, 2019, Harris and a friend drove to the St. Williams
Apartments in Louisville. A woman, Kiara Graves, recognized the red Dodge
Charger Harris and his friend were in. She walked up to converse with them.
1 Ky. Const. § 110(2)(b). Jermaine Thompson was also near the car. Graves heard Thompson and Harris
argue about whether Thompson had killed a man identified as “Reece.” The
argument escalated, and Harris told Graves to move, at which point he began
shooting Thompson. Thompson retreated to a nearby alley. Graves testified
Harris followed him into the alley, and although she did not see it, she heard
several more shots fired. Thompson died at the scene. Harris and his friend
drove off in the red Charger.
Graves did not immediately inform police about her knowledge of the
shooting. It was not until a few weeks afterward that she came forward. Graves
identified Harris as the shooter, and he was arrested on July 29, 2019.
At trial, the Commonwealth introduced video surveillance footage from a
nearby complex that shows the red Charger in the upper left corner of the video
and a group of people gathered around it. The Commonwealth concedes that
the footage is out-of-focus, and it is not possible to identify any persons from
the video. Later, the Commonwealth stated its intent to introduce an enhanced
or magnified portion of the video showing the red Charger. Defense counsel
objected, arguing the video had been manipulated because there was a change
in the pixelation. The trial court overruled the objection, concluding the
enhanced video simply magnified a portion of the original video that had been
disclosed and no substantive change to the content of the video had occurred.
In other words, to quote the trial court, “this is just basically a zoom-in. And I
think a zoom-in of a video that is already in the record is not a changed or
different exhibit.”
2 Important to our conclusion is that the enhanced video was not admitted
into evidence. In fact, the jury sought to review the enhanced video during
deliberation, but the trial court refused and only allowed them to view the
unmagnified video that had been admitted into evidence without objection.
Another important fact to note is the Commonwealth’s concession that “the
focus on the magnified footage has not been sharpened and it is still not
possible to identify anyone by their facial features.”
II. Analysis
Evidentiary rulings of a trial court are subject to an abuse of discretion
standard of review. Mason v. Commonwealth, 559 S.W.3d 337, 342 (Ky. 2018).
The Rules of Criminal Procedure provide a trial court may order “the
Commonwealth to permit the defendant to inspect and copy or photograph
books, papers, documents, data and data compilations or tangible objects or
copies or portions thereof, that are in the possession, custody or control of the
Commonwealth . . . .” RCr 7.24(2).
Harris relies on Brady v. Maryland, 373 U.S. 83 (1963) and cases based
on Brady for his argument. Brady stands for the rule that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. We
reject its application to this context. There is no evidence that has been
suppressed by the Commonwealth. Indeed, we have held that “Brady only
applies to ‘the discovery, after trial, of information which had been known to
3 the prosecution but unknown to the defense.’” Bowling v. Commonwealth, 80
S.W.3d 405, 410 (Ky. 2002) (quoting United States v. Agurs, 427 U.S. 97, 103
(1976)). There is nothing about the enhanced video that constitutes information
known to the Commonwealth but unknown to the defendant, nor did this
discovery occur after trial. We have also stated that Brady “turns on fair
disclosure and does not create the right to discovery in a criminal trial.” Taylor
v. Commonwealth, 611 S.W.3d 730, 738 (Ky. 2020) (citing Bowling, 80 S.W.3d
at 410). Finally, we are reluctant to characterize this evidence as “favorable to
the accused,” United States v. Bagley, 473 U.S. 667, 675 (1985), since the video
does not enable personal identification of any persons recorded. It is certainly
not exculpatory, and it is difficult to say that it constitutes “impeachment
evidence” of a Commonwealth witness. Id. That observation aside, the fact that
the video in dispute is merely a magnified portion of a video that had already
been disclosed to Harris means that Brady is inapplicable. Bowling, 80 S.W.3d
at 410.
Since Brady does not apply the only question is whether the trial court
abused its discretion in allowing the video to be shown at trial. Crucial to that
analysis is that the enhanced video was not admitted into evidence, and it was
refused to the jury during their deliberations. The trial court explicitly stated it
was a demonstrative exhibit only. After review of the cited portions of the
record, we agree with the Commonwealth that the enhanced video was only
4 shown during the Commonwealth’s closing arguments. 2 That being the case,
we simply cannot conclude that the trial court’s actions were arbitrary or
unsupported by sound legal principles.
Demonstrative exhibits shown to the jury but not admitted into evidence
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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, RAP 40(D), 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: JANUARY 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0195-MR
WILLIAM HARRIS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HON. ANGELA MCCORMICK BISIG, JUDGE NOS. 19-CR-002071-001 & 22-CR-000317
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal comes before the Court as a matter of right 1 from the
Jefferson Circuit Court, where Harris was convicted of murder, felon in
possession of a handgun, and being a persistent felony offender in the first
degree. He was sentenced to thirty-five years in prison. The only issue
presented is whether the Commonwealth violated discovery rules by failing to
provide Harris with enhanced or magnified surveillance video used at trial,
when the original unenhanced or unmagnified video was disclosed. Finding no
abuse of discretion, we affirm the convictions.
I. Facts
On July 11, 2019, Harris and a friend drove to the St. Williams
Apartments in Louisville. A woman, Kiara Graves, recognized the red Dodge
Charger Harris and his friend were in. She walked up to converse with them.
1 Ky. Const. § 110(2)(b). Jermaine Thompson was also near the car. Graves heard Thompson and Harris
argue about whether Thompson had killed a man identified as “Reece.” The
argument escalated, and Harris told Graves to move, at which point he began
shooting Thompson. Thompson retreated to a nearby alley. Graves testified
Harris followed him into the alley, and although she did not see it, she heard
several more shots fired. Thompson died at the scene. Harris and his friend
drove off in the red Charger.
Graves did not immediately inform police about her knowledge of the
shooting. It was not until a few weeks afterward that she came forward. Graves
identified Harris as the shooter, and he was arrested on July 29, 2019.
At trial, the Commonwealth introduced video surveillance footage from a
nearby complex that shows the red Charger in the upper left corner of the video
and a group of people gathered around it. The Commonwealth concedes that
the footage is out-of-focus, and it is not possible to identify any persons from
the video. Later, the Commonwealth stated its intent to introduce an enhanced
or magnified portion of the video showing the red Charger. Defense counsel
objected, arguing the video had been manipulated because there was a change
in the pixelation. The trial court overruled the objection, concluding the
enhanced video simply magnified a portion of the original video that had been
disclosed and no substantive change to the content of the video had occurred.
In other words, to quote the trial court, “this is just basically a zoom-in. And I
think a zoom-in of a video that is already in the record is not a changed or
different exhibit.”
2 Important to our conclusion is that the enhanced video was not admitted
into evidence. In fact, the jury sought to review the enhanced video during
deliberation, but the trial court refused and only allowed them to view the
unmagnified video that had been admitted into evidence without objection.
Another important fact to note is the Commonwealth’s concession that “the
focus on the magnified footage has not been sharpened and it is still not
possible to identify anyone by their facial features.”
II. Analysis
Evidentiary rulings of a trial court are subject to an abuse of discretion
standard of review. Mason v. Commonwealth, 559 S.W.3d 337, 342 (Ky. 2018).
The Rules of Criminal Procedure provide a trial court may order “the
Commonwealth to permit the defendant to inspect and copy or photograph
books, papers, documents, data and data compilations or tangible objects or
copies or portions thereof, that are in the possession, custody or control of the
Commonwealth . . . .” RCr 7.24(2).
Harris relies on Brady v. Maryland, 373 U.S. 83 (1963) and cases based
on Brady for his argument. Brady stands for the rule that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. We
reject its application to this context. There is no evidence that has been
suppressed by the Commonwealth. Indeed, we have held that “Brady only
applies to ‘the discovery, after trial, of information which had been known to
3 the prosecution but unknown to the defense.’” Bowling v. Commonwealth, 80
S.W.3d 405, 410 (Ky. 2002) (quoting United States v. Agurs, 427 U.S. 97, 103
(1976)). There is nothing about the enhanced video that constitutes information
known to the Commonwealth but unknown to the defendant, nor did this
discovery occur after trial. We have also stated that Brady “turns on fair
disclosure and does not create the right to discovery in a criminal trial.” Taylor
v. Commonwealth, 611 S.W.3d 730, 738 (Ky. 2020) (citing Bowling, 80 S.W.3d
at 410). Finally, we are reluctant to characterize this evidence as “favorable to
the accused,” United States v. Bagley, 473 U.S. 667, 675 (1985), since the video
does not enable personal identification of any persons recorded. It is certainly
not exculpatory, and it is difficult to say that it constitutes “impeachment
evidence” of a Commonwealth witness. Id. That observation aside, the fact that
the video in dispute is merely a magnified portion of a video that had already
been disclosed to Harris means that Brady is inapplicable. Bowling, 80 S.W.3d
at 410.
Since Brady does not apply the only question is whether the trial court
abused its discretion in allowing the video to be shown at trial. Crucial to that
analysis is that the enhanced video was not admitted into evidence, and it was
refused to the jury during their deliberations. The trial court explicitly stated it
was a demonstrative exhibit only. After review of the cited portions of the
record, we agree with the Commonwealth that the enhanced video was only
4 shown during the Commonwealth’s closing arguments. 2 That being the case,
we simply cannot conclude that the trial court’s actions were arbitrary or
unsupported by sound legal principles.
Demonstrative exhibits shown to the jury but not admitted into evidence
are only subject to basic rules of relevance under KRE 3 403. But this specific
exhibit was merely a magnified part of a video that had been admitted into
evidence. There is no argument that the original video was irrelevant or more
prejudicial than probative. Critically, the enhanced portion did not make
personal identification possible, therefore, we cannot say its portrayal as an
exhibit during closing arguments was more prejudicial than probative; nor that
the Commonwealth’s failure to disclose the video prior to trial violated RCr
7.24(2) since the original video was disclosed to Harris.
Harris’ convictions are affirmed.
VanMeter, C.J.; Conley, Keller, Lambert, Nickell and Thompson, JJ.,
sitting. All concur. Bisig, J., not sitting.
2 Harris alleges that the enhanced video was shown three times throughout trial
but gives only one citation to the video record for that statement. After review, the cited portion of the record only pertains to an issue where apparently the jury had asked if they could get closer to the screen to review the evidence. The correct portion of the record—which we were under no obligation to find, Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011)—reveals defense counsel at trial conceding that the enhanced video was only shown during closing statements. In another portion of the brief, it is averred the enhanced video was played “during police testimony,” but there is no citation to the record for support. We ignore statements unsupported by the record. National Life & Acc. Ins. Co. v. Bond, 351 S.W.2d 55, 56 (Ky. 1961). 3 Kentucky Rules of Evidence.
5 COUNSEL FOR APPELLANT:
Adam Meyer Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General