Released for Publication May 14, 2015.
ON APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE PAMELA GOODWINE, JUDGE. NO. 11-CR-00631.
COUNSEL FOR APPELLANT: Linda Roberts Horsman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General; Bryan Darwin Morrow, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky.
Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. Minton, C.J.; Abramson, Cunningham and Keller, JJ., concur. Venters, J., dissents by separate opinion.
The Appellant, John David Cherry, Jr., was convicted of murder, first-degree wanton endangerment, second-degree unlawful imprisonment, carrying a concealed deadly weapon, third-degree trafficking in a controlled substance, trafficking in marijuana less than eight ounces, and possession of a controlled substance not in its original container. He was sentenced to life in prison. On appeal, he challenges his convictions on several grounds as set forth below. Finding no reversible error, this Court affirms.
Cherry testified that the events in this case arose while he was in the midst of a multiple-day " bender" that took place from Friday, March 18, 2011, to early Sunday, March 20, 2011. He testified that he did not sleep from the time he awoke on Friday morning until he was booked into jail after his arrest Sunday morning and that
he had used copious amounts of drugs during this period.
As part of the bender, Cherry spent Saturday evening and early Sunday morning ingesting a variety of intoxicating substances with friends. He began the night with his friend, Mike Maudlin, with whom he went to a bar in Lexington. At around 2:00 a.m., another friend, Richie Perez, picked them up from the bar and drove them to Maudlin's home. Throughout the night, Cherry and his friends drank alcohol, smoked marijuana, used cocaine, and took prescription pills, including Klonopin.
Shortly after arriving at Maudlin's, Cherry called his cocaine dealer, who lived in a Hedgewood Court apartment in the Woodhill subdivision. Cherry tried to get Maudlin or Maudlin's roommate to drive him to Hedgewood Court, but both declined. And Maudlin took a Klonopin and fell asleep shortly thereafter. Cherry then called for a taxi from Yellow Cab of Lexington. Amine Lemghaili was dispatched and arrived at Maudlin's residence to pick up Cherry at 3:09 a.m.
At 3:19 a.m., Lemghaili's taxi pulled into the Hedgewood Court parking lot. Due to inconsistencies between Cherry's statements to police and testimony at trial, what happened next is unclear, but it is undisputed that Cherry killed Lemghaili by shooting him in the back of the head with a .38-caliber revolver that belonged to Maudlin. Around 3:20 a.m., a resident of Hedgewood Court heard a gunshot followed by an engine accelerating. Surveillance footage showed Cherry walking from Hedgewood Court across some basketball courts toward Osage Court at 3:21 a.m.
Cherry's flight from the scene first led him to a friend's house nearby. The friend was unhappy with Cherry for coming to his house and knocking on his door at that hour, and Cherry was forced to leave shortly after arriving.
At 3:40 a.m., Cherry called Perez, who also lived nearby on Osage Court, but Perez did not answer. Sometime After making this call, Cherry met up with another friend, " AK." Because Cherry could not get in touch with Perez, he asked AK to walk to Perez's house and tell Perez to come pick him up and drive him back to Maudlin's apartment.
Shortly thereafter, Perez picked up Cherry and drove him back to Maudlin's residence. During the drive, Cherry acted shaken and scared. He told Perez that he could not believe what he had done but would not tell him what had happened.
Cherry placed a call to his girlfriend, Delania Bates, at 4:11 a.m., and asked her to come get him at Maudlin's house and drive him to her apartment.
It is unclear at what time Cherry arrived at Maudlin's apartment, but when they arrived, he and Perez smoked marijuana. Then Perez drove home. Also while at Maudlin's, Cherry retrieved his .45-caliber pistol and returned Maudlin's .38-caliber revolver.
Around 5:00 a.m., Bates arrived at Maudlin's to pick up Cherry, at which time she saw him snorting cocaine. They then drove to her apartment.
An argument between Cherry and Bates ensued during the car ride, and once inside Bates's apartment, Cherry fired a shot in
her vicinity. The bullet traveled through the wall and became lodged in a kitchen cabinet in the adjacent apartment. They then left Bates's apartment for fear of the police coming and initially drove to Cherry's grandmother's house. She was not home, so they headed to Cherry's mother's house, which was " out in the country" some distance away. During this time, they continued to argue.
On the way to his mother's house, Bates told Cherry she needed gas, so they pulled into a Marathon gas station at around 7:45 a.m. When Cherry got out of the vehicle, Bates shut the doors and drove off. Cherry chased after her, pulling his gun and pointing it at the fleeing vehicle.
A bystander, John Thomas, had been getting gas at the Marathon station and witnessed what occurred. Still holding his handgun, Cherry approached and had Thomas drive him to Wal-Mart. Once Cherry left his vehicle, Thomas called the police.
At 8:15 a.m., Cherry entered Wal-Mart and proceeded toward the sporting goods department. He spoke on the phone with his mother while walking through the store, and an employee overheard him say, " I love her. She left me. I'm gonna kill her." Before the employee could call and warn the employee in sporting goods of her concerns, Cherry arrived at the sporting goods desk and purchased .45-caliber ammunition. He then pulled his handgun from behind his back and began loading it. The employee at the sporting goods register told Cherry he could not load the gun inside the store, so Cherry tucked the gun back into his waistband and exited the store. Employees at Wal-Mart also called police.
Outside Wal-Mart, Cherry walked to an adjacent McDonald's parking lot, at which time he was spotted by Officer Matthew Smith, who confirmed Cherry matched the description provided by dispatch. Officer Smith exited his squad car, drew his weapon, and ordered Cherry to the ground. Ignoring Officer Smith's commands, Cherry dropped the Wal-Mart bag containing the recently purchased ammunition and reached for his gun. The officer took cover behind his vehicle and continued giving Cherry verbal commands, which were ignored. Cherry eventually dropped his weapon, and Officer Smith handcuffed him.
Shortly thereafter, Officer Jerry Parsons arrived on the scene and placed Cherry in the backseat of his cruiser. A search incident to arrest uncovered various drugs and cash in Cherry's pockets. Officer Parsons transported Cherry to the jail and interviewed him regarding the pills, Bates, Thomas, and Wal-Mart.
That Morning, Lemghaili's body was discovered in his taxi at Hedgewood Court. Officer B.J. Blank was the first to arrive on the scene, and he noticed that the front wheels of the taxi van had jumped the parking curb. The taxi was in park with the ignition turned off. Officer Blank found Lemghaili's body slumped over in the driver's seat with the seat belt fastened and a gunshot wound to the back of the head. Through information gleaned from the GPS device in Lemghaili's taxi and his cell phone, the police discovered that Lemghaili's last phone conversation had been with Cherry and that his last
route driven had been from Maudlin's home to Hedgewood Court.
Cherry spoke with his mother on the phone several times while he was in jail, and these conversations were recorded. On March 21, 2011, Cherry told his mother he had been trying to shoot Bates in the head when he shot at her, but he had missed because she ducked. He also asked his mother if she had seen the City-Region Section of that day's Lexington Herald-Leader newspaper. She had, and Cherry said, " That was me." The top story in the City-Region Section was about Lemghaili's murder. Later, he stated, " I didn't think I had it in me. I blacked out."
After listening to this recorded conversation, detectives seized Cherry's personal effects--his clothing and cell phone--from the detention center. Blood was observed on Cherry's clothing. A forensic biologist later confirmed the presence of Lemghaili's DNA on Cherry's gloves and jacket.
Cherry called his mother again on March 24, telling her that he was in " so much more trouble now." He told her that the police had seized his cell phone, had found the bullet in the neighbor's apartment, and had spoken with Maudlin. He 'stated that he had " screwed up real, real bad" ; had thrown away his life; and would be old and have gray hair when he got out of jail.
On March 25, after listening to the jail phone calls, Detectives Rob Wilson and Matt Brotherton decided to question Cherry about the Lemghaili shooting. Cherry stated that he had been very intoxicated on drugs and alcohol on Saturday night and claimed not to remember what had happened. He admitted to having gotten into an argument with Bates and shooting his gun in her apartment. Eventually, Cherry began crying and stated, " I seen his face on the news. I don't remember. I woke up, and I was in jail." One of the detectives then asked, " What are we talking about?" and Cherry responded, " Talking about murder."
Cherry maintained throughout the interview that he did not know or remember what had happened that night. At one point, he stated, " I think I tried to walk away without paying for the cab." Later he said, " Because you don't believe me when I tell you stuff that I don't remember, I'm guilty. You're recording. I'm guilty. I swear to god I'm sorry. [inaudible] I deserve whatever happens to me." Several minutes later, after more statements of remorse and complaining that he only had occasional, brief flashes of what had happened that night, Cherry stated, " I would like to even say it was self-defense, but I would be lying and I don't know. I'm telling you now what I know."
At the end of the interview, Cherry was charged with Lemghaili's murder.
At trial, Cherry's primary defense was voluntary intoxication under KRS 501.080(1), which would have reduced his murder conviction to second-degree manslaughter, see Fields v. Commonwealth, 274 S.W.3d 375, 414 (Ky. 2008) (" [V]oluntary intoxication is not an absolute defense, but rather reduces an intentional crime to one requiring a culpable mental state of wantonness." ), overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010).
He claimed that at the time of the shooting, he had not slept for two days; had consumed vast quantities of alcohol and various drugs, including marijuana, pills, and cocaine; and had been so intoxicated that he had not understood what was happening in the taxi cab and had not intended to shoot and kill Lemghaili. He testified that he had passed out in Lemghaili's taxi during the ride and that when awakened
by the driver yelling at him, he had believed some of his money was missing and accused the driver of stealing from him. Cherry testified that while they were yelling at each other--Cherry demanding, " Give me my money," and Lemghaili yelling, " Get out" --Lemghaili turned toward the front of the taxi and appeared to reach for something between his legs, at which time Cherry fired a shot toward the front of the vehicle. ...