Cherry v. Commonwealth
2015 Ky. LEXIS 2
| Ky. | 2015Background
- Defendant John David Cherry, Jr. fatally shot taxi driver Amine Lemghaili in the early morning hours after a prolonged period of heavy drug and alcohol use; Cherry was arrested later that morning at a Wal‑Mart after buying ammunition and brandishing a gun.
- After the murder, Cherry engaged in a series of intervening acts over roughly five hours: returning to a friend’s apartment, exchanging firearms, shooting in his girlfriend’s apartment, chasing her from a gas station and forcing a bystander (Thomas) to drive him to Wal‑Mart.
- Cherry’s post‑arrest jail calls and detectives’ forensic testing tied him to the scene (victim’s DNA on his clothing/gloves); Cherry gave recorded statements claiming blackout, later admitting remorse and at times admitting the killing.
- At trial Cherry advanced voluntary intoxication as his primary defense to negate murder intent and sought severance of the murder charge from the later, unrelated offenses.
- A jury convicted Cherry of murder and related offenses; he was sentenced to life and appealed, raising joinder/severance, evidentiary, and cumulative‑error claims.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Cherry) | Held |
|---|---|---|---|
| Joinder/Severance: Whether charges spanning the five‑hour period could be tried together | Joinder proper because offenses flowed in a continuous course of conduct and post‑murder acts showed flight and were admissible to show guilt | Joinder prejudicial and improper: crimes were dissimilar, not part of same acts/transaction or common scheme, so severance required | Affirmed: joinder proper under RCr 6.18 given nexus/continuous course of conduct; no undue prejudice shown |
| Admission of prior bad‑acts evidence on rebuttal (Maudlin testimony about prior reckless gunfire) | Rebuttal to defense‑opened character/demeanor issues warranted | Evidence was KRE 404(b) other‑acts propensity evidence and admission was error and prejudicial | Error to admit that specific prior gunfire but harmless because defendant’s own testimony and other evidence made murder intent clear |
| Detective’s opinion on defendant’s truthfulness during interview | Reply that defense opened door by asking about honesty, so detective could say defendant was not honest | Impermissible—witness opinion about another’s truthfulness is improper (jury decides credibility) | Admission was error but harmless in light of defendant’s admissions and overall evidence |
| Crime‑scene photograph showing fatal head wound | Photo was relevant and probative to show wound location and support murder theory | Photo was inflammatory and cumulative because witnesses testified; prejudicial | Photo admissible: probative value outweighed prejudicial effect; trial court did not abuse discretion |
Key Cases Cited
- Fields v. Commonwealth, 274 S.W.3d 375 (Ky. 2008) (voluntary intoxication can reduce intentional murder to wanton homicide)
- Peacher v. Commonwealth, 391 S.W.3d 821 (Ky. 2013) (joinder requires sufficient nexus or logical relationship between offenses)
- Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky. 2006) (defendant must show joinder would be unfairly prejudicial to obtain severance)
- Doneghy v. Commonwealth, 410 S.W.3d 95 (Ky. 2013) (flight or evasion is admissible to show consciousness of guilt)
- Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) (harmless‑error standard for non‑constitutional evidentiary errors)
- Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997) (witness opinion on another witness’s truthfulness is impermissible)
- Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992) (gruesomeness alone does not render a photo inadmissible)
- Ernst v. Commonwealth, 160 S.W.3d 744 (Ky. 2005) (photographs of a corpse are relevant to show nature and placement of injuries)