[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
John Gerhart Landon, Molly Mattingly, Assistant Public Advocate, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Assistant Attorney General, Counsel for Appellee.
A Kenton Circuit Court jury found Appellant, Alvin McDaniel, guilty of two counts of first-degree assault and of being a second-degree persistent felony offender (PFO). As a result, Appellant was sentenced to twenty-five years' imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), asserting that (1) the trial court erred in failing to strike three prospective jurors for cause, (2) the trial court erred in failing to provide limiting instructions to witness testimony, (3) the trial court erred in allowing the expert opinions of a witness not identified as an expert, (4) the Commonwealth improperly admitted evidence of other crimes, and (5) his right to due process was violated when he was convicted of first-degree assault after the Commonwealth failed to prove one of his victims suffered a " serious physical injury." For the following reasons, we affirm one of Appellant's convictions for first-degree assault, reverse the other, and remand the case to the trial court for further proceedings in accordance with this Opinion.
Appellant's convictions arose from an altercation in which he shot Boysie Washington and Tanya Henderson. On the day in question, Washington and Henderson's twelve-year-old daughter, Jane, got into a fight at school with Sally, the thirteen-year-old daughter of Iris Jennings (Appellant's girlfriend). Following the fight, Sally went to her grandmother's house to watch television. After Washington and Henderson learned Jane had been in a fight at school, they went out in search of Sally. This led them to knock on Sally's grandmother's door, which Sally answered. Washington then induced Sally into the street to fight Jane again in order to settle the girls' rift from school. Washington, Henderson, and several other neighborhood spectators watched the fight in the street.
When Appellant learned of the street fight, he was angered by Washington's provocation of the altercation and drove the streets looking for Washington. Upon locating Washington, Appellant exited his vehicle and approached him with a pistol. After a heated exchange, Appellant fired multiple shots, hitting Washington in the torso, thigh, and arm, and striking Henderson in the wrist.
Following the shooting, Appellant was indicted by a Kenton County Grand Jury for first-degree assault of Washington, first-degree assault of Henderson, and second-degree PFO. The case proceeded to a jury trial, and the jury returned a verdict finding Appellant guilty of intentional first-degree assault of Washington and wanton first-degree assault of Henderson. The jury initially sentenced Appellant to twenty years' imprisonment for first-degree assault of Washington and ten years' imprisonment for first-degree assault of Henderson. After the Commonwealth presented evidence establishing Appellant's prior convictions, the jury also found Appellant to be a second-degree PFO and recommended that his sentence be enhanced to twenty years for each assault to be served consecutively for a total of forty years' imprisonment. At final sentencing, the trial court departed from the jury's recommendation, reducing the total sentence to twenty-five years.
A. The Trial Court Did Not Commit Reversible Error by Failing to Strike Three Prospective Jurors for Cause
Appellant first argues that the trial court committed reversible error when it failed to strike three prospective jurors for cause. Specifically, Appellant asserts that the trial court's error forced him to unnecessarily expend three peremptory strikes on jurors who should have been struck for cause, and that this forfeiture of peremptory strikes amounted to a violation of his right to be tried by a fair and impartial jury.
Appellant concedes that he failed to properly preserve the issue but requests our review for palpable error under RCr 10.26; KRE 103. Under the palpable error standard, an unpreserved error may be noticed on appeal only if the error is " palpable" and " affects the substantial rights of a party," and even then relief is appropriate only " upon a determination that manifest injustice has resulted from the error." RCr 10.26. " [W]hat a palpable error analysis ‘ boils down to’ is whether the reviewing court believes there is a ‘ substantial possibility’ that the result in the case would have been different without the error." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006) (citations omitted).
Appellant alleges that the trial court should have excluded jurors 63, 94, and 120 because each of them indicated in voir dire that they would give greater weight to a police officer's testimony than a layperson's. A thorough examination of the alleged biases of the three prospective jurors is unnecessary because each juror was eventually peremptorily struck by Appellant; therefore, there is not a " substantial possibility" that these particular jurors' biases affected the result in the case as is required for a finding of palpable error. Id. The erroneous deprivation of a peremptory challenge can only affect the result of a case if another juror the defendant would have used a peremptory strike on is impaneled to the jury. See Gabbard, 297 S.W.3d at 854 (citing King v. Commonwealth, 276 S.W.3d 270, 279 (Ky.2009)) (explaining that a trial court's erroneous failure to grant a strike for cause is non-prejudicial if no other juror the defendant would have used a strike on actually sits on the jury). If Appellant does not both exhaust his peremptory strikes and assert that he would have used one of his forfeited peremptory strikes on another prospective juror who actually sat on the jury, " there can be no reversible error because the ‘ Appellant received the jury he wanted,’ and any error [was] ‘ effectively cured.’ " Id. Because Appellant has failed to assert that he would have peremptorily
struck another prospective juror, this issue was not preserved; and because none of the challenged jurors sat on the jury there is no basis for a finding of palpable error.
B. The Trial Court Did Not Commit Reversible Error by Failing to Provide Limiting Instructions
Appellant next argues that the trial court committed reversible error by failing to instruct the jury that certain portions of testimony could only be considered for a limited purpose. Specifically, Appellant claims the trial court should have instructed the jury that portions of Washington's and Detective Corey Warner's testimony referencing retaliation could only be considered for the limited purpose of explaining Washington's prior inconsistent statements.
1. Testimony of Washington
During direct examination by the Commonwealth, Washington identified Appellant as the person who shot him. The assuredness of Washington's identification of Appellant contrasted with his previously expressed lack of certainty at a photographic lineup conducted just a few days after the shooting. In order to defuse Appellant's anticipated impeachment of Washington based on the uncertainty of his earlier identification, the Commonwealth, while still on direct, questioned Washington about his prior inconsistent statements during the lineup. Washington admitted that his statements during the lineup were inconsistent with his more assured identification of Appellant at trial. The Commonwealth then attempted to anticipatorily rehabilitate Washington's credibility by eliciting testimony from him that the uncertainty expressed during the photographic lineup was rooted in a fear of retaliation:
Washington: At the time, I told him I was sixty-five to seventy percent sure, not one hundred percent. My reason of that was because I didn't want to be in this position that I'm in right now, sitting up here.
Commonwealth: Boysie, why did you not want to be in the position of being a witness against somebody that shot you? Why is that?
Washington: I've been to prison. I've been dealing the streets. It ain't safe out here doing this.
Appellant claims that the trial court's admission of this testimony without an admonition to the jury that the testimony could only be considered for the limited purpose of explaining Washington's prior inconsistent statements constitutes reversible error. However, admonitions restricting the scope of admissible evidence are available only " upon request." KRE 105(a);  Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky.2005). Appellant failed to request such an admonition, and thus, the trial court did not commit reversible error by not providing one. Id. at 760. Nonetheless, when Appellant requests palpable error review under RCr 10.26, KRE 105(a) dictates that we still must review the admission of the underlying evidence for palpable error. See id.
Ordinarily, a witness's statement that he fears retaliation for testifying is improper.
See Parker v. Commonwealth, 291 S.W.3d 647, 658 (Ky.2009) (" Jury verdicts must be based upon admissible evidence, not juror's fear of the allegedly vengeful nature of a defendant." ). However, in this instance, the trial judge determined that Washington's comments were admissible because they helped explain his prior inconsistent statements as to the level of certainty of his identification of Appellant.
The only portion of Washington's testimony that arguably references retaliation is his comment, " [i]t ain't safe out here doing this." As previously mentioned, in Parker, this Court held that threat evidence is improper when it invites the jury to render a verdict based on the vengeful nature of the defendant rather than the established arguments and facts of the case. Parker, 291 S.W.3d at 658. Essentially, the rule of Parker is that evidence of threats is not admissible to prove a violent or vengeful propensity. Parker 's holding tracks KRE 404(b)'s prohibition against evidence of other crimes when offered to " prove the character of a person in order to show action in conformity therewith." However, Parker is distinguishable from the present case because, in Parker, the Commonwealth did not argue that the retaliation-referencing testimony was admissible for any other valid purpose. Id. Here, the Commonwealth points us to the trial judge's explanation that Washington's testimony was admissible to explain his prior inconsistent statements.
Although we have never specifically considered whether threat evidence may be admissible if offered for a purpose other than proving a vengeful propensity, other courts have found that it is admissible if relevant to explain a witness's inconsistent statements. See, e.g., United States v. Thadsamany, 305 Fed.Appx. 942, 944 (4th Cir.1997) (citation omitted); United States v. Thomas, 86 F.3d 647, 654 (7th Cir.1996), cert. denied, 519 U.S. 967, 117 S.Ct. 392, 136 L.Ed.2d 307 (1996); Brown v. United States, 952 A.2d 942, 947 (D.C.2008) (citation omitted); State v. Mayhorn, 720 N.W.2d 776, 783 (Minn.2006) (citation omitted); see also United States v. Qamar, 671 F.2d 732, 734-36 (2d Cir.1982) (explaining that threat evidence is admissible when it aids in determining the credibility of witnesses). Today we join these courts in holding that threat evidence may be admitted if it serves to aid the jury in resolving a witness credibility issue.
The central issue when threat evidence is sought to be introduced is the balance of probativeness and prejudice required by KRE 403. As our holding in Parker acknowledges, the potential prejudice from threat evidence may be great. However, in this case, the possibility of prejudice was lessened by the non-specific nature of Washington's fear of retaliation. Washington never implicated the Appellant as the source of his fear of retaliation, rather he stated that this fear was born of his past experiences and time spent in prison. Because the possibility of prejudice from Washington's testimony was negligible, we conclude that the admission of the testimony did not rise to the level of palpable error. RCr 10.26.
2. Testimony of Detective Warner
Similar to his argument against the admissibility of the testimony of Washington, Appellant asserts that the trial court committed reversible error by failing to admonish the jury that Detective Warner's testimony could only be considered for the purpose of explaining Washington's prior inconsistent statements. Furthermore,
Appellant asserts that Warner's testimony was inadmissible hearsay and that it improperly bolstered Washington's testimony. This issue was not properly preserved; however, Appellant has requested review under RCr 10.26, so we will review the admission of Warner's testimony under the palpable error standard. RCr 10.26; KRE 103.
Appellant takes issue with the following colloquy between the prosecutor and Warner:
Commonwealth: Now, tell the members of the jury, how his identification went.
Warner: Mr. Washington, Boysie Washington, identified number five, however, he stated he could not be one hundred percent. He gave a numeric of sixty-five to seventy percent. He feared retaliation is what he said in the interview.
Commonwealth: Did you have doubts about that?
Warner: Doubts about what sir?
Commonwealth: About his assuredness of the ...