Terry O'Bannon v. Commonwealth of Kentucky
2016 SC 000133
| Ky. | Dec 12, 2017Background
- Terry O'Bannon got into a verbal and then physical altercation with Herbert Yates at a gas station; Terry inflicted a deep arm laceration on Yates with a knife.
- Witness accounts conflicted about who was the initial aggressor and whether Yates had a firearm; Terry and his son claimed they believed Yates had a gun.
- Whitney Smith initially told police she saw Terry throw a knife out the car window as they left; at trial she said she saw Terry throw a bloody shirt and assumed the knife was inside.
- Police searched twice but did not recover the knife; Terry later testified and introduced a similar knife as evidence, but admitted on cross that Tyson had recently purchased a similar knife to replace one he had "lost."
- At trial a jury convicted Terry of first-degree assault, tampering with physical evidence, and being a first-degree persistent felony offender; the jury recommended a 20-year sentence, which the court imposed.
- On appeal Terry challenged denial of directed verdicts on (1) assault (self-defense/defense of others), (2) tampering with evidence (discarding the knife), and (3) persistent felony offender (court allowed Commonwealth to reopen proof on parole/probation timing).
Issues
| Issue | Plaintiff's Argument (Terry) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether directed verdict on first-degree assault should have been granted (self-defense/defense of others) | Terry contends jury should have found he acted in justified self-defense or to protect another | Commonwealth presented testimony that Terry was initial aggressor and escalated the fight with a knife | Denied — jury reasonably rejected self-defense; conflicting witness testimony made jury credibility determinations reasonable |
| Whether directed verdict on tampering with physical evidence should have been granted (knife discarded) | Terry argues insufficient proof he discarded the knife and police never found it | Commonwealth relied on Smith's prior statement that Terry threw the knife and Terry's admission about a similar lost knife to show intent to impair evidence | Denied — jury reasonably inferred Terry threw the knife and intended to impair availability; failure to recover the knife did not preclude conviction |
| Whether trial court abused discretion in reopening evidence and whether directed verdict on persistent felony offender should have been granted | Terry argues reopening was improper and Commonwealth failed to prove parole/probation timing; thus directed verdict should be granted | Commonwealth requested to reopen to elicit parole/probation timing from clerk; clerk testified Terry was on supervised release within required 5-year window | Reopening not an abuse of discretion; directed verdict denied because Commonwealth established required elements and jury could find Terry a persistent felony offender |
Key Cases Cited
- Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (standard for appellate review of directed verdict)
- Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (precedent on directed verdict review)
- Trowel v. Commonwealth, 550 S.W.2d 530 (Ky. 1977) (directed verdict authority)
- Potts v. Commonwealth, 172 S.W.3d 349 (Ky. 2005) (jury credibility and fact-finding role)
- Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011) (limits on tampering charge where evidence-search was inadequate; tampering requires proof of active attempt to impair availability)
- Commonwealth v. Nourse, 177 S.W.3d 691 (Ky. 2005) (tampering conviction where defendant discarded physical evidence)
- Marshall v. Commonwealth, 625 S.W.2d 581 (Ky. 1981) (trial court discretion to reopen to present evidence-in-chief in persistent-felon context)
- Haynes v. Commonwealth, 625 S.W.2d 575 (Ky. 1981) (same)
- Davis v. Commonwealth, 795 S.W.2d 942 (Ky. 1990) (discussing limits on admitting evidence-in-chief after close; bad-faith concerns)