Parker v. Commonwealth

Chatman cannot fault the trial court for him-

failing pretext to find Chatman attempting mute

self stood instead of alleged pretext underlying

show the facially

Commonwealth’s neutral reasons exercising peremptory

for strike on Ju- argument

ror C. Chatman’s would have

the trial court serve as advocate for either defense,

the Commonwealth or the rather serving judge’s

than true role: a

neutral, magistrate. detached This is not duty judge, reject of the trial and we argument.

Chatman’s

III. CONCLUSION. reasons, foregoing

For Jermaine

Chatman’s convictions and sentence im-

posed by Simpson Circuit Court are

affirmed. sitting.

All All concur. PARKER, Appellant

Deshawn Kentucky,

COMMONWEALTH of

Appellee.

No. 2005-SC-000343-MR.

Supreme Kentucky. Court of

Dec. 2007. error.). objection only deny plain view the trial court’s decision to Batson Wells, Wells, & Lex- Trevor W. Miller KY, ington, Appellant. Counsel for Stumbo, General, Attorney Gregory D. George Seelig, Attorney Assistant Gen- G. General, eral, Attorney Office Frankfort, KY, Appellee. Counsel by Justice Opinion of Court NOBLE. Parker, was con-

Appellant, DeShawn murder, one count of two counts victed of murder, commit sec- attempt of criminal ond-degree tampering assault evidence, and was sentenced to an physical year term of im- aggregate, concurrent 25 that his appeal he claims prisonment. On speedy to a trial were rights constitutional violated; trial court abused its denying a motion for a mistri- discretion rap following playing al statement Commonwealth admitted; was later not which vehicle, and then erroneously permitted lard toward the other Commonwealth prejudicial McCurley to introduce evidence of shot six away. drove notice; activity proper pretrial without pas- Another times and died as result. trial court that the allowed Common- Bloods’ vehicle was shot but senger erroneously unsworn wealth to introduce survived. statements of witness Shame- out-of-court Appellant presented proof, At trial no erro- Wright;

kia that the trial court failed and the trial resulted the convictions neously jury the on the lesser to instruct subject appeal. that are the of this second-degree man- included offense slaughter; and that the trial court errone- Rap Opening II. CD in Use ously Appellant’s denied motion for a di- Statement tampering physical on rected verdict with Because the trial evidence. court erred trial, police Before Louisville officers the allowing playing rap the CD possession rap allegedly came into of a CD statement, by opening commentary with Kenneth, by Appellant, made his brother the when the CD could Taylor. and “Two Tom” The three admitted, properly not later be and the charged an officer dollars for the CD. five admonition, by error could be cured we the to be The trial court allowed CD reverse and remand for a trial. Fur- new played during open- the Commonwealth’s ther, case, under the Appel- facts of this ing objection Appel- statement over the lant an was entitled to instruction on sec- lant, but warned the Commonwealth that ond-degree manslaughter, and the murder during was not admitted trial that conviction could on be reversed Appellant would be entitled to a mistri- ground alone. Other claims of error will Attorney al. asserted The Commonwealth by be rectified retrial. “good a faith belief’ that statements on the “adoptive CD would constitute admissions” Background I. by during opening, com- Appellant, and Laknogony McCurley was shot to death Crips rapped mented that 31, during early morning July hours of 31, July they violent act committed on 2000, during an ongoing feud between two CD, playing 2000. After the Common- rival West End gangs. Ap- Louisville The lyrics wealth commented further that the Parker, pellant, DeShawn who was indict- range” said the bitch at close “shot codefendants, ed with five other was a “remember the 31st.” gang “Victory member of the Park Crips,” during Later the trial when the Com- sometimes also known as the “Rat Pace.” monwealth offered the CD into The rival was known as the “South- court excluded it it could the trial because wick Bloods.” and two others properly not be authenticated construed riding were in a vehicle driven Marcus adoptive admissions. moved Stallard, allegedly way kill their two mistrial, reminding for a the trial court victim, McCurley, Bloods. that it had said a mistrial would be war- Bloods, girlfriend of one of the proved ranted if the CD inadmissible when vehicle of the Bloods at the time of the objected being played in he had to the CD drive-by Testimony indicated shooting. Instead, the trial opening statement. alongside vehicle pulled Stallard his jury court elected to admonish the to total- and that the Bloods’ vehicle However, this ly disregard the CD. passengers opened the two fire at the oth- car, way: done in a somewhat unorthodox Appellant firing er across Stal- 808 they they try may at the of one are to understand given

admonition was close day again beginning bearing at the of the next. of the evidence to be intro- admonition, Combs, duced.”); the trial court After first Co-De Coal Co. v. (“An jurors respond openly as to (Ky.1959) allowed the S.W.2d they disregard could the CD. All whether prefatory statement of counsel is intro- day, The next nodded that could. ducing purpose evidence. Its or function telling it understood after merely judge to inform the and the respond truthfully in how difficult it was to in general way of the nature of the case jurors, the trial court front of the other involved, particularly and the issues to out- private instructed the to make a writ- attorney’s expects line what the client each could response ten as to whether that, charts, In prove.”). photo- aid of disregard again they the All said CD. graphs and other demonstrative materials admonitions, In the making could. these explain proposed are used to the testimo- CD, repeatedly trial court referenced the using vari- ny. problem The obvious obviously trying valiantly to ensure that opening in the statement is ous materials jury the understood it should not be con- they properly that have not been admitted sidered as evidence. The motion for mis- Thus, point. into evidence at that use of trial was then denied. opening evidence in statements must be and use of evidence like generally, limited disfavored, a mistrial is

While in simply this case is allowed. See the trial court retains broad discretion to (“While Fields, 12 S.W.3d at 281 we have necessary is determine whether a mistrial display to prosecutors allowed admissible appropriate. Gosser v. Common jury during items of real evidence to the wealth, 897, (Ky.2000). 31 906 S.W.3d statement, we have never sanc- opening Nevertheless, granted one should be playing prerecord- tioned the of a witness’s there a serious error such that a where is statement, testimony during opening ed necessity. urgent mistrial is a manifest or prerecorded much less a witness’s unsworn Scott, Id.; 12 Commonwealth S.W.3d omitted)). (citations The same statement.” (Ky.2000). 682 commentary made is true about counsel regarding presents This case two issues supported by later is not CD, pre- use of the both of which are If the materials admitted into the record. First, Appellant objected to the served. commentary go beyond explana- or a brief during the the Commonwealth’s use of tion, great that a mistrial risk is created Second, objected statement. he opening there is may necessary. become While any admissibility to of the CD the Com- certainly temptation the to advance one’s monwealth’s case chief. Based on the beginning of the trial so argument at the record, it was error to use the CD either only jury understands not what that the instance. be, the testimony expected is but years, Over the last several well, this theory of the case as proponent’s during opening made scope of statements statement, and opening is not the intent of considerably. expanded remarks has in error such pushing envelope results is to outline purpose opening statement here. as occurred jury proponent expects for the what during open playing In the CD proof his to be. Fields v. (“The telling and in what ing statement (Ky.2000) 12 S.W.3d say, the Commonwealth purported state it legitimate purpose opening of an unauthenticated evidence before explain placed the issue ment is so to favored, strongly are jury. As the trial it admonitions developed became rative apparent the Commonwealth could enunciated the nec- the Court Johnson words, meaning not establish the essary exceptions, as this case demon- were, witnesses, through even what strates. nor could the prove Commonwealth who today of stopping This Court is short CD, made the or whether may or materials be saying that no aids actually short,

was connected to it. In However, it used in statement. Commonwealth was able tell the necessary evidentiary that when materials the CD referred to the used, they are must at least be authenti- having committed the he murder of which admissibility be- cated or their determined accused, bragging and that he was Likewise, commentary fore their use. (which through recording the CD should be linked to that which can be clearly prejudicial) though even supported by the evidence ex- sufficiently CD could not be authenticated Otherwise, pected be a mis- admitted. to be admitted into Obviously evidence. may trial is invited when an admonition ability had no to cross-exam- not be able to cure the error. The trial regarding ine this information or to other- court for the gatekeeper prop- must be properly wise against By using defend it. yet er use of materials not admitted into unauthenticated materials in opening in evidence statement. To fail unfairly statement the Commonwealth ex- discretion, to do so is an abuse of jury posed inflammatory to informa- requires this case reversal remand for tion a of such nature that no admonition a new trial. could be believed to it. cure This case squarely pa- falls within the Second-Degree Manslaughter III. rameters of Johnson v. Instruction Johnson, (Ky.2003). 105 S.W.3d 430 In this Court found that presumptive “the trial, At Appellant tendered an instruc- efficacy of an admonition when falters second-degree manslaughter tion on which there is an overwhelming probability that jury. give court declined to to the jury a cannot follow the admonition” about jury The trial court instructed the that it defendant, evidence devastating to the or could find the Appellant guilty of either when the evidence is a factual without intentional or wanton Intentional murder. inflammatory highly preju- basis and is or murder was defined under instruction A rap song bragging dicial. about commit- number and wanton defined murder was ting a violent murder that is ascribed to a jury under instruction 1 A. number defendant, along with the inferential fears found the defendant of wanton mur- activity, clearly inflammato- 1 Appellant der under instruction A. now ry certainly prejudicial becomes if it argues that it was reversible error to fail properly cannot be linked that defen- give second-degree in- manslaughter dant. the trial court some While went to struction as lesser-included offense. length here to obtain statements from the agrees. This Court jury they that each disregard would what CD, responsibility The trial court has the had heard on and about the the in- determining appro- which instructions are flammatory improper nature of the evi- that, priate present jury. dence is the best Inherent such even with world, analyzing evidence intentions cannot be task is what the expected truly disregard every possible it. cu- will from support, While viewed both, the court should instruct as in evidentiary that has an basis. It then

outcome Instructions, Cooper’s § which 3.21 of jury that the instructions apply is the must these elements to the instruction.2 adds them to be. to the facts as believe event, In the court would then also be into that The trial court must not enter second-degree instruct on required to realm, if it can be that under determined manslaughter if a wanton state of mind any construction of the facts dif- possible indicated or reckless homicide if a were could In cer- ferent results be obtained. indicated, state of mind were reckless circumstances, may tain a trial court be find both could either under that, law, as a matter of able to determine facts, as lesser-included offenses. If given of the facts could interpretation one supported only wanton by any jury. For be reached reasonable mind, the trial state of then court must example, supports if all the evidence an murder, only on as set instruct wanton act, intentional and the defendant does not Instructions.3 § Cooper’s forth 3.23 an alibi de- present presents a defense or required to also but would be instruct fense, only properly then the court could the lesser-included offenses second-de- murder, present- instruct on intentional as manslaughter and reckless gree homicide Cooper ed in and Donald P. William S. (if evidence could be interpreted as Juries, Cetrulo, Kentucky Instructions to showing a wanton or reckless state either (5th ed.2007) § Criminal [hereinafter 3.20 mind). j.1" Cooper’s Instructions As the Commen- notes, there are no tary to that section However, the evidence could be in this circum- lesser-included offenses demonstrating interpreted by a stance, be wanton, so no further instructions can possibly or or either an intentional mind, given. If there is evidence of extreme state of then the combina- reckless § disturbance, tion murder instruction set forth at 3.24 justification, or emotional acting under the influence of extreme emo- Cooper's on intentional 1. Justice instruction disturbance;] tional murder reads: [AND] guilty Mur- You will find the Defendant doing, privileged That in so he was not [C. if, if, only you der under this Instruction (Or ap- self-protection. insert other to act in beyond a reason- believe from the evidence defense.) propriate justification ] county on or able doubt that in this _ (date) finding and before the Cooper's murder instruction 3.Justice wanton herein, intentionally killed Indictment ._. he reads: (victim) by_(method). guilty will the Defendant of Mur- You find Cooper’s 2. Justice instruction on intentional if, if, only you der under this Instruction justi- murder with the additional EED and/or beyond a reason- believe from the evidence fication elements reads: following: all of the able doubt about_ county on or A. That in the Defendant of Mur- You will find (date) finding of the Indict- if, if, and before the you Instruction der under this _ herein, (victim) by killed ment he beyond a reason- believe from the evidence _(method); following: able doubt all of the about_ AND county That in this on or A. wantonly doing, he was en- (date) B. That in so finding of the Indict- and before _ grave herein, (victim) gaging risk in conduct which created he killed ment ___ thereby (method); another and caused of death to of_(victim) circumstances under death AND manifesting indifference to human doing, death extreme he caused the B. That in so of_(victim) intentionally not while life. [and have ty. possible is It is It is would Cooper’s required.4 Instructions however, it clearly anyway; murder not to be used when the evidence found wanton supports finding one state of mind but not the for a of lesser possible is also behavior, subject though unlikely. other. the evidence is When wanton even interpretations by jury, even point question different The is that this was might trial court it un- though jury, believe not the trial court. likely requisite that the could find the in- general reliance on form Given offense, state of mind for a lesser included structions, is that a understandable required it is nonetheless to instruct on reading court could confused be the lesser-included offense if such an inter- § § Cooper’s 3.20 and 3.23 of Instructions

pretation possible. is However, if supports evidence either. instance, only a instruction combined

Here, gave separate the trial court § such as that in 3.24 is correct. instructions on both intentional and wan proper ton murder. This is not if the Because was entitled to a sec- other, supports only one or the or ond-degree manslaughter instruction he if interpretation the evidence allows for an get, did not he would be entitled to The of either. facts of this case indicate charge reversal on the murder alone that a in could have believed either reversing generally Court were not on oth- murder, tentional or wanton and it was grounds. er Should the evidence on retri- both, to instruct on correct but not as same, al be the he will be entitled to the separate in instructions. A combination instruction in the future. §

struction similar to that set forth 3.24 Remaining of Error IV. Claims Cooper’s mandatory un Instructions der these facts. With instruction raises four other claims should come instructions on lesser-includ or can be are error rectified offenses, notably ed here an instruction on retrial. second-degree manslaughter. Speedy Rights A. Trial

Having found both states of mind supported were in the trial Appellant right the claims that his to a usurped court in speedy approxi role of the deter- trial was violated mining that the support mately delay evidence did not 30 month between indictment manslaughter degree second instruction. and trial. trial claims are evaluat Speedy factors; though Even balancing did find a wanton ed under a test with four delay, state of mind under given, “Length delay, the instructions of the reason for the given opportunity right, were not of his the defendant’s assertion eulpabili- prejudice consider a state of to the defendant.” Barker v. lesser wanton Cooper's doing: 4. Justice combined instruction B. That in so _ (victim) (1) reads: He caused the death of intentionally acting under the You will find the Defendant of Mur- and not while if, if, disturbance; you der under Instruction this influence of extreme emotional beyond believe from the evidence a reason- OR following: able doubt all of the (2) wantonly engaging in conduct He was about_ county A. That in this on or grave created a of death to an- which risk (date) finding and before the of the Indict- thereby the death of other and caused _ herein, (victim) by ment he killed _(victim) under circumstances mani- _(method); festing extreme indifference to human life. AND 812 2182, case, 514, 530, Appellant’s plete 407 92 S.Ct. 33 context

Wingo, U.S. (1972); v. not speedy right L.Ed.2d 101 see also McDonald violated. 134, (Ky. 569 S.W.2d 136 1978) test). (applying the Barker Gang Activity Evidence B. About in Though the crime this case was Li- Appellant pretrial filed a Motion in requiring complex a serious one more arguing mine that the Commonwealth had crime, ordinary preparation than street 404(c) provided proper not KRE notice delay presumptively in this case planned that it to introduce evidence re- prejudicial. See Bratcher Common area, in garding gang activity specifi- wealth, 332, (Ky.2004) 151 344 S.W.3d in cally Appellant’s involvement such. The (holding delay presumptively an 18 month mandatory, and fail- requirement notice case). prejudicial preju in a murder That give proper ure to notice can result in the dice, however, dispositive is not alone being excluded under KRE evidence other factors. against must be balanced 404(c). However, since the verdict States, 647, Doggett See v. United U.S. grounds, on other being case is reversed 2686, 1, 112 652 n. S.Ct. 120 L.Ed.2d 520 problem be a on retrial. notice will not (1992) (“ ‘[Presumptive prejudice’ does not the trial complains also necessarily probability a statistical indicate 404(b) KRE court to whom misunderstood prejudice; simply point marks the at applies, since the court allowed evidence delay which courts deem the unreasonable up July gang-related leading events enquiry.”). the Barker enough trigger long as those events shooting any wrongdoing on behalf did not indicate Here, has made no 404(b) Clearly KRE does Appellant. delay resulted in the una claim that this crimes, permit evidence of other evi vailability physical of witnesses or of a wrongs, prove or acts to the character fact, at trial. proof dence. In he offered no he acted in con- person order show any is unable to demonstrate extent, formity. To that the rule is refer- in this prejudice ability proceed his Yet this does events, encing specific individual. version of presenting case his requirement not remove the notice his though frequently even he did assert crimes, wrongs, or subject the evidence of other right speedy to a trial. Given the than the de- matter, inducing acts refers to someone other gathering evidence and be- against apparently other fendant. The trial court witnesses to come forward pros gang-related members makes the lieved that because Appel- though rather than about the investigation, general ecution’s done with was provision lant notice possible diligence, go slowly. specifically, all Since this 404(c) the rule apply. a of defendants KRE did not While crime involved number requirement it was rea with its notice is overwhelm- alleged acting together, to be commit- ingly applied to to crimes or bad acts attempt prosecute sonable to to them defendant, by a criminal it is also try prosecute key person to a ted gether, or to crimi- to other than the bargaining applicable persons in plea first which often results Lawson, Robert G. everyone nal defendant. See expedites matters Handbook, Kentucky Evidence Law improves judicial economy. There were ed.2003). (4th 2.25[3][a], § Re- 125-26 also some unusual twists added regard- despite potential issues delay, gardless, and transfers of the such as recusals court, ing relevance or other rules of the case between divisions certainly adequate has no- in the com- were not frivolous. Viewed to tary, an admonition was not sufficient might tice that this evidence be offered Consequently, cure the error. again on retrial. amounted to was allowed to hear what Wright’s C. Shamekia Out- testimony improper that was and which of-Court Statements could not cross- examine. Nor could the be reason- Appellant complains that the Common- it. ably expected completely disregard to attempted impeach Wright’s wealth to trial reasons, For these this verdict must be unsworn, her testimony with out-of-court and remanded for a new trial. reversed acknowledges He that KRE statements. Additionally, is entitled to an examination of at permits 801A the witness all appropriate instruction on lesser-inelud- if prior trial her statements are inconsis- offenses, including on ed an instruction her testimony, provided tent with manslaughter second-degree the evi- KRE proper pursuant foundation is laid substantially dence is the same or similar remand, 613. On the Commonwealth will on retrial. Other claims of error can be opportunity lay proper have the foun- appropriately addressed on retrial. dation, and the trial court will have opportunity to determine the of- whether CUNNINGHAM, LAMBERT, C.J.; testimony proper impeachment. fered is SCHRODER, JJ., MINTON and concur. Tampering Physical D. Evidence SCOTT, J., part concurs in and dissents Appellant’s Motion for Directed Verdict ABRAMSON, in part by separate opinion. on by this issue was denied the trial court. J., sitting. He claims that there was insufficient evi- SCOTT, Opinion concurring Justice dence to warrant instructing part dissenting in part. trial,

this offense. On the record scant, while the evidence is there at majority regarding I concur with the least inferential evidence that Appellant opinion Parts II and but write IV acquiesced to the destruction of some III —I separately to dissent on Part do not weapons, although clearly it was not estab- believe that Parker was entitled to an in weapon lished that the murder among second-degree manslaughter. struction on them. As this case is being reversed on “An instruction on a lesser included of grounds, other the trial court will have required fense is not unless the evidence is ample opportunity weigh sufficiency juror that a could doubt such reasonable relating of the evidence to this offense on guilty of the crime that the defendant is retrial. yet charged but conclude he is lesser included offense.” Combs

IV. Conclusion (Ky. 652 S.W.2d 1983). matter, juror In this no reasonable rap played Because the CD that was in this case could conclude that Parker was statement, the Commonwealth’s guilty of a lesser included offense. gave and about which the Commonwealth commentary language the actual

meaning song played, prop-

erly admitted into error to during open-

allow the to hear it extremely in-

ing statement. Due to the

flammatory nature of the and commen-

Case Details

Case Name: Parker v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Dec 20, 2007

Citation: 241 S.W.3d 805

Docket Number: 2005-SC-000343-MR

Court Abbreviation: Ky.