Derrick K. McATEE, Appellant
COMMONWEALTH of Kentucky, Appellee.
Rehearing Denied Dec. 19, 2013.
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Bruce P. Hackett, Chief Appellate Defender, Daniel T. Goyette, Louisville, Ashley Ruth Edwards, for Appellant.
Jack Conway, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, for Appellee.
A Jefferson Circuit Court jury found Appellant, Derrick K. McAtee, guilty of murder and tampering with physical evidence. For these crimes, Appellant was sentenced to twenty-five years in prison. He now appeals as a matter of right, Ky. Const. § 110(2)(b), arguing that (1) he was entitled to a directed verdict of acquittal on the tampering charge, (2) the trial court erroneously permitted the introduction of out-of-court testimony, (3) the trial court erroneously permitted the jury to review a videotaped witness statement in the deliberation room, (4) the trial court erroneously prohibited him from introducing his entire statement to police, (5) the prosecutor's closing argument was misleading and denied him his right to a fair trial, and (6) the trial court improperly coerced a verdict from a hung jury.
For the reasons that follow, we reverse Appellant's conviction for tampering with physical evidence and vacate his sentence for that conviction, but affirm his murder conviction and corresponding sentence.
On July 9, 2009, Rodney Haskins was murdered in front of Pamela Beals's Louisville home. Four days later, Detective Kevin Trees interviewed Beals over the telephone. Beals told Detective Trees that she " saw the whole thing." Beals was on her front porch with her daughter and their neighbor, Gregory Kilgore, when they witnessed an altercation between Haskins and another man. The altercation ended when the other man shot Haskins multiple times. Beals identified the shooter as " YG," a young man she knew from the neighborhood.
Detective Trees interviewed Kilgore in September 2009. Kilgore confirmed that he was standing on the porch with Beals and her daughter when the argument between " YG" and the victim began. Kilgore told the detective that when the argument escalated he left Beals's porch to return home (two houses away). As he was walking home he heard shots. Later in the interview, when asked if he could identify " YG" from a photopack identification lineup, Kilgore identified Appellant's photograph. Detective Trees then asked: " Is that the guy who shot Rodney Haskins that evening?" Kilgore admitted it was.
A Jefferson County Grand Jury indicted Appellant for murder and tampering with physical evidence. At trial, the Commonwealth called both Beals and Kilgore to testify, but both alleged to have no memory of the events in question. Beals testified that the first time she saw Haskins he was lying in front of her house. She denied all of the following: seeing Haskins in an altercation prior to the shooting, seeing him get shot, knowing Gregory Kilgore, and knowing anyone named " YG." She also denied having any recollection of speaking with Detective Trees.
Likewise, Kilgore testified at trial that he did not remember the night of the murder. Moreover, although he remembered meeting with Detective Trees in September 2009, he did not recall anything that they talked about during the interview. Nor did he remember identifying Appellant in the photopack lineup as the individual who murdered Haskins.
The trial court, however, permitted the Commonwealth to impeach Beals and Kilgore with their prior statements to Detective Trees: Beals with notes contained in Detective Trees's investigative letter and Kilgore with the transcript of his videotaped interview. Additionally, the trial court permitted the Commonwealth to introduce the videotaped recording of Kilgore's interview with Detective Trees, which was played for the jury in open court. During deliberations, the jury requested and was again permitted to review Kilgore's recorded interview in the deliberation room.
Ultimately, the jury found Appellant guilty of murder and tampering with physical evidence. However, while deliberating Appellant's sentence the jury sent the trial court a note asking: " What degree of agreement is required of the jury?" The trial court informed the parties of the inquiry and prepared a one-word memo in response: " Unanimous."
Less than an hour later, the jury sent the following note to the trial court: " We are not going to be able to come to a unanimous decision on the sentence." The court then brought the jury back to the courtroom, determined that further deliberations might be useful, and, pursuant to RCr 9.57, sent the jury back for further deliberations. Two hours later, the jury returned with a unanimous recommendation of twenty-five years' imprisonment for the murder charge and five years' imprisonment for the tampering charge, to be served concurrently. The trial court adopted the recommended sentence and this appeal followed.
Additional facts will be developed where required for our analysis.
A. Tampering with physical evidence and motion for directed verdict
Appellant argues that he was entitled to a directed verdict of acquittal on the tampering with physical evidence charge, citing insufficient evidence to support a conviction thereon. " 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, 816 S.W.2d 186, 187 (Ky.1991) (citation omitted).
" A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he ... [d]estroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding...." KRS 524.100(1)(a). The Commonwealth contends that when drawing all fair and reasonable inferences in its favor, Benham, 816 S.W.2d at 187, it would not clearly be unreasonable for a jury to find guilt under this statute. Specifically, the Commonwealth argues that the evidence reflected that: (1) Appellant shot Haskins; (2) he either walked away or ran away from the scene; and (3) the gun was not found at the scene. It further argues that Appellant should have known that a murder would trigger an official proceeding, and alleges that the jury could therefore have reasonably inferred that Appellant removed the gun " with intent to impair its verity or availability in the official proceeding." KRS 524.100(1)(a).
In Mullins v. Commonwealth, this Court held that " walking away from the scene with the gun is not enough to support a tampering charge without evidence of some additional act demonstrating an intent to conceal." 350 S.W.3d 434, 442 (Ky.2011). In Mullins, the evidence reflected that (1) the appellant shot the victim, (2) he immediately entered a vehicle which left the scene, (3) he brought the murder weapon with him into the vehicle, and (4) no shell casings or gun were found at the murder scene. Id. We rejected the Commonwealth's argument that this was sufficient evidence from which a reasonable juror could have found the appellant guilty of tampering. Id. at 444. Instead, we noted that when it is a murder suspect who is fleeing the murder scene with the murder weapon, " it is reasonable to infer that the primary intent ... is to get himself away from the scene and that carrying away evidence that is on his person is not necessarily an additional step, or an active attempt to impair the availability of evidence." Id. at 443. Thus, although it was reasonable to infer that the appellant in Mullins was holding the gun when he shot the victim, and that the appellant was " [c]learly ... attempting to flee the scene[,]" id., " [t]he fact he carried the gun away from the scene with him was merely tangential to the continuation of that crime." Id.
Having determined that merely leaving the scene of a crime with evidence used to commit the crime was insufficient by itself to support a tampering charge, we turned our attention to whether the tampering charge was supported " where the gun was ultimately found or based on evidence of an additional act." Id. We first noted that " there was no evidence of an intentional act of concealment, or even of flight from the police." Id. at 444. Additionally, the fact that the gun was never found did not " mean it was placed in an unconventional location." Id. Rather, we noted that the gun could have been placed in a conventional location (e.g., the vehicle in which he was seen leaving the murder scene, his home), but that the record did not indicate that the police searched either of these places. Id. The police had inexplicably only searched for the murder weapon at the scene of the crime five months after the murder took place. Id. The gun's absence from that location at that late date was insufficient evidence to support a tampering charge. Id.
The facts of the case before us are remarkably analogous to those in Mullins . The Commonwealth argues that Mullins
" ignores very pertinent facts which supported the tampering charge in this case. The appellant did not keep the gun and wait for the police to arrive, lay the gun down for the police to find or deliver the gun to the police. The appellant either walked away or ran away with the gun." However, this is the precise argument we rejected in Mullins :
If a defendant walks away from the scene in possession of evidence, this does not necessarily lead to a violation of the statute. When a crime takes place, it will almost always be the case that the perpetrator leaves the scene with evidence. If this amounted to a charge of tampering, the result would be an impermissible " piling on."
Id. at 443. Thus, we conclude that merely leaving the scene with the murder weapon was insufficient evidence from which a reasonable jury could fairly find Appellant guilty of tampering with physical evidence.
The second part of the analysis is whether the gun was ultimately found in a location which would support a guilty verdict or whether there is evidence of an " additional act" that would support intent to conceal (or otherwise " tamper" ). We are unable to deduce any such evidence, and the Commonwealth points us to none.
There was testimony that (1) Appellant was at his girlfriend's home the night of the murder, (2) he was arrested at his girlfriend's home on September 3, 2009, and (3) the police knew Appellant's home address. However, there was no testimony that police searched for the gun at his home or his girlfriend's home (or anywhere else), or that the police discovered that the gun had been disposed of, concealed, destroyed or altered in any way. Without such evidence, it was Unreasonable for the jury to find Appellant guilty of tampering with physical evidence. See id. A directed verdict of acquittal should therefore have been entered on the tampering charge. See Benham, 816 S.W.2d at 187. Accordingly, we reverse Appellant's conviction for tampering with physical evidence, and vacate his sentence for that conviction.
B. Introduction of Out-of-Court Testimonial Statements
Appellant next argues that the trial court erroneously permitted the Commonwealth to introduce the statements Pamela Beals and Gregory Kilgore gave to Detective Trees in 2009. Specifically, he contends that admitting unsworn, out-of-court testimonial statements as substantive evidence violates his Sixth Amendment right " to be confronted with the witnesses against him," U.S. Const. amend. VI, as interpreted by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Appellant therefore asks us to reexamine our predecessor court's decision in Jett v. Commonwealth which allows a witness's prior inconsistent statement to be introduced not only to impeach his credibility, but as substantive evidence. 436 S.W.2d 788 (Ky.1969).
In this instance, the trial court permitted the Commonwealth to introduce Beals's and Kilgore's statements to Detective Trees under the " prior inconsistent statements" exception to the hearsay rule. See KRE 613; KRE 801A(a)(1). " A statement is inconsistent for purposes of KRE 801A(a)(1) whether the witness presently contradicts or denies the prior statement, or whether he claims to be unable to remember it. " Brock v. Commonwealth, 947 S.W.2d 24, 27 (Ky.1997) (emphasis added). Under Kentucky law, prior inconsistent statements may be introduced as an impeachment device and as substantive evidence. Jett, 436 S.W.2d at 792; KRE 801A(a)(1). Appellant contends that this rule violates the Confrontation Clause when the witness whose prior inconsistent statements are introduced testifies at trial that he or she does not remember making them. We disagree.
In Crawford, the Supreme Court held that testimonial statements of a witness who does not appear at trial are inadmissible, regardless of hearsay rules, unless he is (1) unavailable to testify and (2) his statements were previously subject to cross-examination. 541 U.S. at 53-54, 68, 124 S.Ct. 1354. Both Beals's and Kilgore's statements to Detective Trees qualify as " testimonial" statements. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (" Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." ). Thus, the question becomes whether, despite his memory loss, an amnesic witness " appears at trial" to the satisfaction of the Confrontation Clause. See McIntosh v. Commonwealth, No. 2006-SC-000421-MR, 2008 WL 2167894, at *3-4 (Ky. May 22, 2008). We once again hold that a testifying witness alleging memory loss " appears at trial" for purposes of cross-examination, and does not implicate a Sixth Amendment violation. Id. at *4.
In McIntosh, a testifying witness, who had previously pleaded guilty to being involved in a bank robbery with the appellant, " denied having any recollection of the bank robbery whatsoever." Id. at *2. Pursuant to KRE 801A(a)(1), the Commonwealth, having laid the proper foundation, was permitted to admit the video recordings of the prior police interrogations where the witness had implicated the appellant. On appeal, the appellant argued that " although [the witness] was present at trial he did not truly ‘ appear for cross-examination’ because his evasiveness rendered meaningful cross-examination impossible." Id. We disagreed, first noting that Crawford itself explains that the Confrontation Clause is not implicated when a witness appears on the witness stand and is subject to cross-examination. See id. To wit:
[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.
Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (citation omitted).
Next, we noted that, in United States v. Owens, the U.S. Supreme Court held that a witness's memory loss does not deprive the defendant of a constitutionally
adequate opportunity for cross-examination. 484 U.S. 554, 559, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). " [T]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. (internal quotation marks and some citations omitted) ( quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) ( quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985))). " The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee." Id. Thus, Owens supported our conclusion that " a witness's inability or refusal to recall the events recorded in a prior statement or the events surrounding the making of the statement does not implicate the Confrontation Clause." McIntosh, 2008 WL 2167894, at *4.
Finally, while we noted in McIntosh that Crawford does " not discuss what it means for a witness to ‘ appear for cross-examination,’ " 2008 WL 2167894, at *4, we acknowledged that " Crawford did not overrule Owens, [] and several courts have held that under Owens a witness ‘ appears for cross-examination’ if he willingly takes the stand, answers questions in whatever manner, and exposes his demeanor to the jury, thus giving the defense an opportunity to address the witness's prior testimonial statements," id. ( citing United States v. Ghilarducci, 480 F.3d 542 (7th Cir.2007); Connecticut v. Pierre, 277 Conn. 42, 890 A.2d 474 (2006); Arizona v. Real, 214 Ariz. 232, 150 P.3d 805 (Ariz.App.2007)).
Consistent with McIntosh, we hold that the Confrontation Clause is not implicated by a witness claiming memory loss if he or she takes the stand at trial and is subject to cross-examination. See McIntosh, 2008 WL 2167894, at *4; Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354; Owens, 484 U.S. at 559, 108 S.Ct. 838. Thus, when a hearsay declarant appears on the witness stand at trial, he may be impeached with a prior inconsistent statement. Additionally, we reaffirm, as consistent with Crawford, the rule in Jett that " an out-of-court statement made by any person who appears as a witness, which statement is material and relevant to the issues of the case, may be received as substantive evidence through the testimony of another witness, and need not be limited to impeachment purposes," 436 S.W.2d at 792. See Brown v. Commonwealth, 313 S.W.3d 577, 623 (Ky.2010) (reaffirming Jett post- Crawford ).
As such, we conclude that the trial court committed no error in permitting the Commonwealth to introduce the statements Beals and Kilgore gave to Detective Trees.
C. Jury's Deliberation-Room Review of Kilgore's Recorded Statement
During its deliberations, the jury wished to review Gregory Kilgore's videotaped statement to Detective Trees and sent the trial court  a note with the following request: " Can we get video equipment to watch one of the videos[?]" Without contacting either party, the trial court provided the jury a DVD player. Shortly thereafter,
however, the jury sent the court another note indicating that the DVD player would not read the disc on which Kilgore's statement was recorded. At that point, the trial court called the Commonwealth and asked it to provide a " clean" computer on which the jury could review Kilgore's recorded statement. After providing the computer, the prosecutor contacted defense counsel to inform her of the jury's request and that the Commonwealth had provided the computer on which to watch the video. The court next reconvened when the jury returned its verdict.
Appellant argues that the trial court improperly communicated information to the jury in violation of RCr 9.74 when it permitted the jury to review Kilgore's videotaped statement to Detective Trees in the deliberation room. He further alleges that permitting the jury to review the videotaped statement privately violated RCr 8.28 and his Constitutional right to a public trial. In response, the Commonwealth contends that no error occurred because RCr 9.72 permitted the jury to review the recorded statement in the jury room. We hold that this was error, yet such error was harmless.
1. RCr 9.72
RCr 9.72 addresses evidence in the jury room and provides, in pertinent part: " Upon retiring for deliberation the jury may take all papers and other things received as evidence in the case." Although RCr 9.72 uses permissive language and invests the trial court with the discretion to send (or not send) certain items of evidence to the jury room, in practice, some testimonial exhibits such as expert opinion letters or summaries, depositions, recorded witness statements, and the like may be marked and admitted for preservation purposes but not given to the jury because doing so would be akin to sending a witness back to the jury room. See Berrier v. Bizer, 57 S.W.3d 271, ...