Lead Opinion
Opinion of the Court by
This appeal arises out of the Appellant’s conviction for the murder of Andrea Tiller in Lexington, Kentucky, for which Appellant was sentenced to forty-five years in prison. Tiller arrived in the parking area of the Arbor Grove housing project after arranging a drug purchase with Bobby Faulkner. The Appellant, Faulkner, and Octavious Eggerson approached Tiller’s car. Eggerson remained on the sidewalk while Faulkner and the Appellant walked up to the car. The Appellant leaned into the open driver’s side window while Faulkner stood to his left. The Appellant attempted to sell the crack to Tiller, but became angry when Tiller insisted on making the purchase from her contact, Faulkner. The Appellant then shot Tiller six times, killing her.
The Appellant argues several errors on appeal. First, he argues that the trial court erred by excluding two statements made by witnesses called by the Commonwealth. Both statements were excluded on the ground that the Appellant failed to provide the statements to the Commonwealth prior to trial in violation of reciprocal discovery. He further argues that the trial court erred (1) in refusing to continue the penalty phase until the next morning; (2) in allowing the attorney for the Commonwealth to make improper and prejudicial comments that denied him due process and a fair trial; (3) in allowing the Commonwealth to use a peremptory strike to improperly strike a prospective African-American juror violating the Appellant’s right to equal protection under the law; (4) by denying him due process when it failed to grant a mistrial due to the admission of prior bad acts; and (5) in overruling Appellant’s motion for a directed verdict on the murder charge.
I. RECIPROCAL DISCOVERY AGREEMENT
Appellant’s first claim of error arises from the trial court’s exclusion of a written statement by Octavious Eggerson and an audiotaped statement of Rose Crutcher, a resident in the neighborhood where Tiller
At the bench conference, Appellant apprised the trial judge and opposing counsel of the substance of the written and taped statements. He later tendered the tape and statements to the trial court for avowal purposes after the conclusion of his jury trial, just before the final sentencing by agreement with the Commonwealth.
While we find that counsel did not technically preserve the matter for appellate review by avowal, as argued by the Commonwealth, the issue was nevertheless preserved for appeal by the Agreed Order wherein the Commonwealth “agreed that the written statements ... and an audio tape of a statemenf/conversation ... be allowed as an avowal to be part of the Defendant’s record on appeal.” This, in addition to the fact that counsel also proffered the substance of the excluded statements to the trial court and opposing counsel during the bench conferences, adequately preserved the issue for review and satisfies the purposes for making the offer of proof. Since the Appellee agreed to allow the statements to be filed as an avowal, albeit late, it thus waived any objections on appeal as to the preservation of this issue. Accordingly, we find the issue preserved.
Having found the issue adequately preserved for review, we must determine whether or not the trial court abused its discretion in excluding the written statements and audio tape of a statement/conversation. In doing so, we will look at each instance where the evidence was excluded.
A. Exclusion of Rose Crutcher’s Au-diotaped Statements.
Notwithstanding Appellant’s offer of proof for preservation of the issue for review, we find that Appellant has nonetheless waived his right to complain of any error allegedly committed by the trial court in excluding the audiotaped statements of Rose Crutcher.
During Crutcher’s testimony at trial, Appellant’s defense counsel attempted to introduce audiotaped statements that defense counsel and an investigator recorded in an interview they had with Crutcher in which she stated that she thought someone other than Appellant may have held the murder weapon in her apartment immediately after Andrea Tiller was shot and killed. Prom the record, it appears Appellant was attempting to impeach Crutcher’s testimony with these prior inconsistent statements when the Commonwealth objected on the grounds that this evidence was never disclosed to the prosecution pursuant to the reciprocal discovery agreement between the parties.
Upon sustaining the Commonwealth’s objection, the trial judge reminded defense counsel that he could ask the witness if she remembered making certain statements to him which may have implicated someone other than Appellant as the person holding the murder weapon. If the witness could not remember, the trial judge instructed
The reciprocal discovery agreement between the parties stated, in pertinent part, that the Appellant agreed to provide reciprocal discovery pursuant to RCr 7.24(3) (A) (i). This rule, however, only requires the defendant to “permit the Commonwealth to inspect, copy, or photograph any results or reports of scientific tests or experiments made in connection with the particular case.” RCr 7.24(3)(A)(i) (emphasis added). As such, the rule would not apply in this instance to the audiotaped statements.
Of course, failure to provide the necessary discovery mandated by RCr 7.24 may result in a number of consequences, one of which is that the trial court may “prohibit the party from introducing in evidence the material not disclosed.” RCr 7.24(9). Here, the trial court prohibited the introduction of the audiotaped statements because it found that Appellant failed to disclose Rose Crutcher’s taped statements as provided for by the reciprocal discovery agreement.
Despite finding the trial court erred in excluding this evidence, we find the error to be harmless. Defense counsel’s failure to ask Crutcher whether she remembered making prior statements to him effectively waived any argument on appeal that the trial court’s exclusion of the evidence constitutes reversible error. Furthermore, by foregoing the opportunity to ask Crutcher about her prior statements and thus laying the proper foundation for introduction of her prior statements, Appellant cannot now complain that the trial court erred. In this vein, the trial court’s exclusion was proper, as Appellant failed to provide the proper basis for Crutcher’s prior statements to be admissible. KRE 801A; KRE 613. However, as we have already expounded, the trial court could not properly exclude these statements on the basis of a violation of the reciprocal discovery agreement as the agreement did not require Appellant to disclose the audiotaped statements, al
This situation presents circumstances akin to those where an appellant has “invited error.” See, e.g., Wright v. Jackson,
In this case, Appellant was given the opportunity to question Crutcher about whether or not she had made previous statements concerning the alleged shooter on the day Tiller was killed. Essentially, the trial court gave him the chance to get into evidence by way of Crutcher’s admission that which otherwise would have been excluded based on the trial court’s erroneous finding of a reciprocal discovery agreement violation. If she had denied making such a statement, Appellant would have been left only with her answer. Had this set of circumstances actually been realized, Appellant’s argument that the audiotaped statements were improperly excluded becomes less tenuous. The actual circumstances in this case, however, differ greatly, and as such, any error in the exclusion of the audiotaped statements was waived, but nevertheless harmless for the reasons aforementioned.
B. Exclusion of Octavious Eggerson’s Written Statements.
In the second instance, the trial court prohibited Appellant from introducing written statements of another witness, Oc-tavious Eggerson (Eggerson). From the record, it appears that Eggerson’s written statements, one six months after the murder and another two months before trial, bolstered his testimony rather than impeaching it. Again, because the trial court found Appellant’s failure to disclose this evidence to be a violation of the reciprocal discovery rules, the evidence was excluded. Appellant now argues that the written statements should have been admissible under the hearsay exception for prior inconsistent statements or prior consistent statements. We do not agree.
Initially, we note that the trial court’s exclusion was indeed correct, but find that the basis for such an exclusion was improper. As already stated, Appellant’s obligation under the reciprocal discovery agreement referred to RCr 7.24(3)(A)(i), which applies only to results or reports of scientific tests or experiments. Thus exclusion for violating the reciprocal discovery agreement was erroneous, though any error in the exclusion of Eggerson’s prior statements was harmless as the statements were otherwise inadmissible.
KRE 801A(a)(l) allows admission of prior inconsistent statements of wit
Since Eggerson’s testimony at trial was nearly identical to his written statements, the evidence was not admissible as prior inconsistent statements. Thus, this argument fails.
Appellant also argues that the written statements were admissible as pri- or consistent statements. There is no merit to this argument, as there is no rule which would allow defense counsel in this case to introduce Eggerson’s prior statements. Prior consistent statements are admissible provided the proper foundation is laid pursuant to KRE 613 and the statements are “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” KRE 801A(a)(2). None of the conditions required for the admission of prior consistent statements were apparent in this case. Moreover, because prior consistent statements can have a rehabilitative effect on a witness’s credibility,
Again, although the trial court erred in excluding the written statements on the basis of an alleged violation of the reciprocal discovery agreement, any error in doing so was harmless as the evidence was otherwise properly excluded for the reasons set forth herein.
II. DENIAL OF CONTINUANCE
The Appellant’s second claim of error is the trial court’s denial of his motion to continue the penalty phase of his trial. The jury returned its guilty verdict at approximately 5:54 p.m. on the fourth day of trial. Just prior to the jury’s return, Appellant’s counsel approached the bench and asked the judge if the penalty phase “absolutely [had] to be done today?” He informed the court that he was not prepared to proceed and that he would need character witnesses for the penalty phase. The Commonwealth objected to any continuances. Ultimately, the trial court denied the continuance as the jury had been told that the case would conclude that day and the following day was the trial court’s motion day and could not be rescheduled.
Shortly thereafter, the court began the penalty phase. The Appellant then called his aunt, Dora Gray, as a character witness. She testified the Appellant got mixed up with the wrong crowd and asked
The Appellant argues that the trial court abused its discretion by denying the continuance. RCr 9.04 directly addresses motions for continuances:
The Court, upon motion and sufficient cause shown by either party, may grant a postponement of the hearing or trial. A motion by the defendant for a postponement on account of the absence of evidence may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it. If the motion is based on the absence of a witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant believes them to be true. If the attorney for the Commonwealth consents to the reading of the affidavit on the hearing or trial as the deposition of the absent witness, the hearing or trial shall not be postponed on account of the witness’s absence. If the Commonwealth does not consent to the reading of the affidavit, the granting of a continuance is in the sound discretion of the trial judge.
RCr 9.04 (emphasis added).
The Appellant’s argument in support of a finding of error is based predominantly on the factors delineated in Snodgrass v. Commonwealth,
In Eldred v. Commonwealth,
More specifically, in Cornwell v. Commonwealth,
The Appellant’s trial counsel addressed the court stating his unpreparedness for the penalty phase in that his character witness was not present. At no point did counsel make a proper motion for continuance as required by RCr 9.04. The trial counsel failed to show upon affidavit what the witness would say. He failed to establish that the witness would give substantial favorable evidence. Thus, the trial court properly denied counsel’s request that the penalty phase be continued. Simply put, there was no abuse of discretion.
III. COMMONWEALTH’S VOIR DIRE COMMENTS
The Appellant’s third claim of error is that the trial court erred by failing to admonish the jury that the prosecutor represented the state, not the victim, after the attorney for the Commonwealth asked the jury if they believed the victim also deserved a fair trial and a “day in court.” The Appellant argues the questions constituted prosecutorial misconduct which effectively denied him a fair trial.
Upon this questioning by the Commonwealth, counsel for the Appellant lodged an objection. The judge stated that she was troubled by the questioning and the Commonwealth should move on but stated she would not give an admonition. The questioning resumed, along other lines, without any further objections or requests for relief by the Appellant.
It is not necessary, however, for the Commonwealth to exclude mention of the victim of a crime or for the victim to be dehumanized in order to ensure the defendant gets a fair trial. The Commonwealth is the representative of the “people” and represent their interests, including the interests of the victims. A fair trial for one, is a fair trial for all. These are not two different standards—they are the same.
In Bowling v. Commonwealth,
Because we have long held as a cornerstone of our jurisprudence that the prosecution “represents all of the people of the Commonwealth,” Goff v. Commonwealth,
IV. PEREMPTORY STRIKE OF JUROR 764
The Appellant’s fourth claim of error arises from the Commonwealth’s peremptory strike of Juror 764. The Appellant argues the Commonwealth struck the juror for discriminatory purposes in violation of Batson v. Kentucky,
The trial court, sua sponte, required both the Commonwealth and trial counsel for the Appellant to disclose any jurors selected for peremptory strikes who were African-American (and female) and to explain their reasoning for the strikes. Regarding his strike of Juror 764, the attorney for the Commonwealth stated that the juror lived in a high-crime area and that her participation in the trial would put her in a “tight spot.” Appellant objected, stating that the prosecutor did not offer a nondiscriminatory reason. The trial judge accepted the prosecutor’s explanation as race-neutral and overruled the objection.
Ordinarily, the Appellant would bear the initial responsibility under Batson to make a prima facie showing of purposeful discrimination by the Commonwealth in the exercise of its peremptory strikes. This Appellant’s duty, however, was rendered moot by the trial court’s request for explanation and ruling on the strike and so we need not tarry on this issue. Commonwealth v. Snodgrass,
Once the prima facie showing was made, or as in this case, the trial court made a request for explanation, the Commonwealth, according to Batson, then bore the burden of offering its “race-neutral” reason for striking Juror 764 (i.e., Juror 764 lived in a high-crime area). Batson,
“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral.” Hernandez v. New York,
Although the dissent takes issue with both the reason proffered by the Commonwealth as well as the trial court’s acceptance of living in a high crime area as being race-neutral, we note that the Commonwealth’s attorney in this ease peremptorily struck a total of nine jurors. Of those nine, four were African-American. The Commonwealth offered as justification for the other three jurors struck that two of them were “church friends” of defense counsel, and the third had been represented by defense counsel on a prior occasion. In short, the Commonwealth found it necessary to strike only one African-American juror on the basis of where that juror lived. While we make no finding as to the veracity of the reason proffered, we do note that three African-American jurors were left in the remaining juror pool, and of those three, two actually served on the jury, which found Appellant guilty as charged. Under these circumstances, we cannot find error in the trial court’s decision.
V. PRIOR BAD ACTS
During the trial testimony of Detective Williams, the Commonwealth played Appellant’s taped statement wherein he mentioned being in jail and on probation. Despite the Commonwealth’s agreement to turn down the volume during specific references to his criminal history, the jury inadvertently heard additional references to the Appellant’s criminal past (jail and probation). The Appellant moved for a mistrial. Though the motion was overruled, the trial court offered a curative admonition which was accepted and given. The Appellant now claims the trial court erred in denying his motion for mistrial. We disagree.
Though evidence of “prior bad acts” is generally inadmissible, KRE 404(b), this Court has long held that an admonition is usually sufficient to cure an erroneous admission of evidence and there is a presumption that the jury will heed such an admonition. Matthews v. Commonwealth,
In this case, the trial court determined that the “harmful” references did not rise to the level that could only be
Because the Appellant has not provided any grounds to suggest that the reference to the Appellant’s criminal past was not cured by the court’s admonition
VI. DIRECTED VERDICT
As his final claim of error, the Appellant argues that, under the evidence presented, it was clearly unreasonable for the jury to convict him of murder. Appellant argues that the Commonwealth’s evidence was so contradictory that no reasonable juror could convict him of the murder of Andrea Tiller. We disagree.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
Commonwealth v. Benham
The Appellant argues that the inconsistencies in the testimonies of the Commonwealth’s witnesses entitle him to a directed verdict. The inconsistencies in the testimonies, however, were introduced by the Commonwealth as prior inconsistent statements and are admissible at trial pursuant to KRE 801A(a)(l).
In applying the standard set forth in Benham and its progeny, the trial court properly overruled the Appellant’s motion for directed verdict, leaving the question of weight and credibility to the jury. E.g. Commonwealth v. Smith,
For the foregoing reasons, we affirm the judgment of the Fayette Circuit Court.
Notes
. The trial court premised its exclusion of the statements on the language of RCr 7.24(3)(A)(ii). The operative part of RCr 7.24(3)(A)(ii) requires the defendant to disclose to the Commonwealth materials, including tangible objects and documents, "which the defendant intends to introduce into evidence.” Here, the Appellant attempted to introduce the audiotaped statements, arguing that they supported impeachment of Crutch-er's live testimony. Appellant argues on appeal that RCr 7.24(3)(A)(ii) requires the defendant to disclose written statements only if he intends to introduce them into evidence. Whether an attorney can "intend” to introduce impeachment evidence before trial has even begun and before he or she even knows what witnesses may need to be impeached, may be a matter of great debate. However, because the reciprocal discovery agreement only couched Appellant's obligation under the terms of RCr 7.24(3)(A)(i), we decline to address whether or not impeachment evidence may be evidence which one "intends to introduce into evidence."
. We are cognizant that "[a]s a general rule, a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony.” Eubank v. Commonwealth,
. "[T]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Miller v. Eldridge,
. The victim is the central reason for the trial.
. See Graves v. Commonwealth,
Concurrence Opinion
I concur with the majority’s conclusion that Gray’s conviction should be affirmed. But I write separately because I view Gray’s argument regarding the reciprocal discovery agreement differently and because I share many of the concerns expressed in the dissent.
A. The Discovery Violation.
I disagree with the majority’s conclusion that the pretrial discovery agreement only
I believe the pretrial discovery agreement was broad in scope, as evidenced by the fact that it states that “the Defendant [Gray] agrees to provide reciprocal discovery[.]” So, unlike the majority, I believe that the trial court correctly found that Gray breached the agreement when he failed to share the taped statements with the Commonwealth. And I believe that the trial court had broad authority to fashion the appropriate remedy for this breach, regardless of whether the taped statements fit nicely into any specific subsection of our criminal rules. Under RCr 7.24(9), a trial court has the inherent discretion to fashion a remedy when a discovery rule has been violated. Under our settled jurisprudence, we may only disturb a trial court’s remedy if that remedy represents an abuse of discretion.
The parties clearly envisioned reciprocal discovery. And there is no indication that the Commonwealth failed to abide by that agreement. Additionally, the trial court, which was surely in the best position to judge the parties’ intent, also must have believed that the parties intended to provide broad reciprocal discovery because the trial court did not engage in the RCr 7.24 analysis undertaken by the majority.
I conclude that the trial court did not abuse its discretion by prohibiting Gray from introducing evidence that he had not disclosed to the Commonwealth. The trial court’s ruling merely held Gray to the terms of his voluntary agreement.
I also respectfully suggest that the majority’s discussion of harmless error and invited error is unnecessary. When the trial court ruled that Gray could not impeach Crutcher or Eggerson with a specific inquiry into their prior statements, it concurrently allowed Gray to ask Crutcher or Eggerson whether they recalled making those statements. But Gray’s counsel did not accept the trial court’s invitation to ask either Crutcher or Eggerson whether they recalled making the statements at issue. So the propriety of the exclusion of those statements is not preserved for our review.
I support Justice McAnulty’s contention that residents of high crime areas may have as much, if not more, interest in serving as jurors in criminal cases than do residents of so-called “safe” neighborhoods. And I am troubled by the paternalistic thinking reflected in the Commonwealth’s invocation of Juror 764’s residence in a high crime area as possibly putting her in a “tight spot” as its reason for striking her. She, unlike others in the venire, did not respond to the Commonwealth’s voir dire question asking if any of them were afraid to sit on the case. My concern is deepened by the fact that the Commonwealth made no discernible effort to link Juror 764 in any way to the facts of the case. But despite my concerns, I must ultimately disagree with Justice McAnulty’s conclusion that reversible error occurred here.
Whether Gray made the requisite prima facie showing under Batson v. Kentucky
Although the Commonwealth’s proffered race-neutral reason for striking Juror 764 was not specifically related to the charges against Gray, as required by Batson, that factor, standing alone, does not require reversal. Rather, a lack of a relationship between the residence of the prospective juror and the facts of the case to be tried is one factor that a trial court can take into account in determining if the prosecution’s stated reason for the strike is race-neutral.
Having found that the Commonwealth’s proffered reason was, on its face, race-neutral, the final step was for the trial court to determine if the Commonwealth’s race-neutral reason was actually a pretext for racial discrimination. Although he now argues that pretext is inherent in the Commonwealth’s proffered reason, Gray does not show where he made that argument before the trial court.
The trial court made its ruling facing a situation in which the Commonwealth’s proffered reason for striking a juror was facially race-neutral and the defense did not challenge the Commonwealth’s assertion by offering to present historical or anecdotal proof.
. See, e.g., St. Clair v. Commonwealth,
. See, e.g., Hicks v. Commonwealth,
. Commonwealth v. Ferrell,
.
. Commonwealth v. Snodgrass,
. Hernandez v. New York,
. See, e.g., Taitano v. Commonwealth,
. Boyde v. Brown,
. Indeed, Gray’s brief does not show how many total peremptory challenges the Commonwealth used to remove African-Americans or how many African-Americans actually sat on the jury. A review of the record,
. Stanford v. Commonwealth,
. "It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly[.]” Theodore Roosevelt, "Citizenship in a Republic,” Speech at the Sorbonne, Paris, April 23, 1910 (as noted at http://www.theodoreroosevelt.org/life/guotes. htm).
. Hernandez,
. Thomas v. Commonwealth,
Concurrence Opinion
Opinion Concurring in Part, and Dissenting in Part.
While I concur in the other parts of the majority opinion, I respectfully dissent as to the peremptory strike of Juror 764. While we are to afford trial courts deference in their determination of the issue of discriminatory intent, I believe the trial court did not effectively weigh whether the reason offered was pretextual. In the third phase of the Batson v. Kentucky analysis,
In this case the trial court informed counsel that they needed to discuss their strikes. The Commonwealth Attorney’s gave as his reason for striking Juror 764: “She lives on Ward Drive. Our experience is that’s a high crime area. Whether she said she was fearful or not, I think that this puts her in a tight spot, so I struck her. Thought it would affect her.” The Commonwealth’s Attorney finished detailing his peremptory strikes, and informed
I would find the trial court’s determination clearly erroneous. I believe courts need to pay substantially greater attention to whether the mere claim that a person lives in a high crime area is being used as a pretext for discrimination against blacks in jury selection. I take issue with that justification as race-neutral in this case because it was unconvincing in three ways.
First, the prosecutor in this case offered no justification for why living in a high crime area should have any bearing on serving as a juror. Citizens who live in high crime areas can have just as much, if not more, interest in sitting on panels in criminal cases as jurors who experience no crime in their neighborhoods. It is stereotypical to assume that those who live in high crime areas are more likely to condone bad acts. Particularly is this true when attitudes can be explored in voir dire rather than assumed.
If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently.
J.E.B. v. Alabama ex rel. T.B.,
Second, there is the inference that the prosecutor’s strike is beneficial to the juror because she needed protection from possible retaliation because of living in a high crime area. The majority cites United States v. Uwaezhoke,
Third, merely accepting high-crime neighborhood as a race-neutral reason for a strike ignores African-American housing patterns, particularly in our Commonwealth’s largest cities. This creates the opportunity for the mere assertion that the juror lives in a high crime area to draw more black juror candidates into an effective exclusion from juries. The prosecutor must present a comprehensible reason in the second step of the Batson inquiry, and that explanation need not be “persuasive, or even plausible” so long as the reason is not inherently discriminatory. Purkett v. Elem,
LAMBERT, C.J., joins in this opinion.