590 S.W.3d 229
Ky.2019Background:
- On August 27, 2014, a series of shootings in the St. Louis/Market Street area left Destin "Blair" Lindsay shot earlier that day and, later, 16‑month‑old Ne'Riah Miller fatally wounded; several bystanders (including Cierra Twyman) were injured.
- William McLemore was implicated by eyewitnesses (Cedric Weaver, Michael Dunn, Damion Thompson) in the retaliatory shooting; witness accounts contained inconsistencies and conflicting identifications.
- Co‑defendant Demarkus Tramber had been shot three months earlier; the Commonwealth introduced that prior shooting to show motive/res gestae of an ongoing inter‑neighborhood "beef."
- Dujuan "Budda" Simonton was identified as a person of interest; defense sought to call him to impeach Weaver, but Simonton (through counsel) invoked the Fifth Amendment and was held unavailable.
- McLemore was indicted September 11, 2014, tried February 21, 2017, convicted of murder, first‑degree assault, and wanton endangerment, and sentenced to 35 years; he appealed raising three issues (evidentiary admission, exclusion of impeachment witness, and speedy‑trial violation).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of evidence that co‑defendant Tramber had been shot months earlier | McLemore: evidence was irrelevant or its probative value was substantially outweighed by unfair prejudice under KRE 403 | Commonwealth: prior shooting showed motive/res gestae and provided necessary context for retaliatory conduct | Admitted — court held evidence probative of motive/res gestae, not unduly prejudicial; no abuse of discretion |
| Exclusion of proposed impeachment witness Dujuan "Budda" Simonton | McLemore: excluding Simonton deprived him of compulsory‑process and due‑process rights; Simonton would have impeached Weaver | Commonwealth: Simonton (through counsel) invoked Fifth Amendment and was unavailable; cross would likely elicit incriminating answers | Exclusion upheld — trial court properly found a valid Fifth Amendment assertion through counsel; no abuse of discretion |
| Speedy‑trial claim (29‑month delay) | McLemore: delay (indictment to trial ~29 months) violated Sixth Amendment right to speedy trial; prejudice resulted from oppressive incarceration and improved Commonwealth case | Commonwealth: delays were largely neutral or attributable to complexity, discovery, co‑defendant continuances; McLemore acquiesced to some scheduling | Denied — delay was presumptively prejudicial but majority of delay not solely the Commonwealth's fault, McLemore acquiesced to delays, and he failed to show actual prejudice; Barker factors do not require relief |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (speedy‑trial balancing test of four factors)
- Doggett v. United States, 505 U.S. 647 (presumptive prejudice from excessive delay triggers inquiry)
- Combs v. Commonwealth, 74 S.W.3d 738 (Ky. 2002) (defense witness privilege — "dry run" to assess selective invocation)
- Clayton v. Commonwealth, 786 S.W.2d 866 (Ky. 1990) (witness who will invoke Fifth may be excluded)
- Barnett v. Commonwealth, 979 S.W.2d 98 (Ky. 1998) (KRE 403 balancing: probative worth vs. undue prejudice)
- Webb v. Commonwealth, 387 S.W.3d 319 (Ky. 2012) (admission of res gestae to present full, unfragmented story)
- Robey v. Commonwealth, 943 S.W.2d 616 (Ky. 1997) (prior acts "not too remote" inquiry for probative value)
- Major v. Commonwealth, 177 S.W.3d 700 (Ky. 2005) (evidence rules allow context/background for crime)
- Bratcher v. Commonwealth, 151 S.W.3d 332 (Ky. 2004) (complex murder case delay precedent on presumptive prejudice)
- Smith v. Commonwealth, 361 S.W.3d 908 (Ky. 2012) (application of Sixth Amendment speedy‑trial analysis in Kentucky)