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Fairley v. Commonwealth

Supreme Court of Kentucky

October 19, 2017



          COUNSEL FOR APPELLANT: John Gerhart Landon Assistant Public Advocate Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry Thomas Ryan Assistant Attorney General



         John Fairley III appeals as a matter of right from a judgment of the Christian Circuit Court sentencing him to twenty years' imprisonment for first-degree robbery, receiving stolen property (firearm), first-degree possession of a controlled substance (while armed), and possession of marijuana (while armed). Fairley alleges that the trial court erred by permitting the victim to make an in-court identification and by refusing to give an instruction for the lesser-included offense of facilitation to first-degree robbery. Fairley also raises two unpreserved errors: 1) that his conviction for receiving stolen property based on a stolen handgun was manifestly unjust and 2) that the Commonwealth's -Attorney improperly questioned him about a prior assault. For the following reasons, we affirm the judgment and sentence.


         On September 2, 2014, Charles "Bird Dog" Page left his home to visit his brother, Earl, in Hopkinsville, Kentucky. While walking to Earl's residence, Page observed a maroon colored vehicle, which for some unspecified reason he found suspicious. Page watched the vehicle pull into a parking lot and he continued on his way to his brother's home. Upon reaching Earl's residence, Page realized that he had forgotten his key. As Page left to meet his brother to get a key to the house, he once again saw the maroon car.

         Concerned about the maroon car's reappearance, Page hitched a ride with two African-American men in a blue car. After driving for some time, the driver turned down an alley. Subsequently, the passenger in the front seat (later identified by Page as Fairley) pointed a handgun at Page and commanded "Give me your money." Page fled the vehicle and ran towards a law office. Fairley gave chase and struck Page in the back of the head with his pistol. Page then began to yell for help.

         Hearing the disturbance, Lucius Hawes, exited his law office and saw both men. Hawes observed an African-American man with dreadlocks, dressed in dark clothing, and carrying a large semi-automatic pistol, fleeing the scene headed in the direction of Clay Street. Subsequently, Hawes provided aid to Page, whose head wound was bleeding profusely.

         Emergency services were contacted and shortly thereafter an ambulance arrived to treat Page. While receiving medical treatment, Page informed Emergency Technician Nicholas Marlow that two African-American men had assaulted him with a pistol. Page was initially treated at a local hospital, but was later medically evacuated by helicopter to a hospital in Tennessee. Page's injuries included a severe laceration and a broken nose. Later, when interviewed by the police, Page explained that the person who struck him had also stolen money from him.

         During the resulting police investigation, investigators received tips which suggested Fairley's involvement in the robbery. Police also learned that at the time of the robbery Fairley had been wearing a GPS ankle monitor as part of a court-ordered home incarceration. According to the monitoring company, Fairley's monitoring device was registered as being near Hawes's office and moving away from that location towards Clay Street at the time of the robbery.

         The police interviewed Fairley on September 3, 2014, at which time he claimed to have been driving a red car on the day of the robbery. He, noted that he was away from his home that day as he was submitting an employment application. The following day, September 4, 2014, police using GPS tracking located Fairley sitting alone in the back seat of a white vehicle parked in a vacant lot. On top of the transmission tunnel in the rear of the vehicle, approximately a foot away from Fairley, was a firearm which police later learned had previously been reported stolen. Also in the vacant lot was a blue Malibu vehicle which was registered to Fairley's mother.

         After Fairley's arrest[1] he was again interviewed by the police about the Page robbery. In his second interview, Fairley initially claimed that he had been at his home during the time of the robbery. However, later in the interview, he stated that he had witnessed someone attacking Page and he gave that person a ride away from the area.

         A later search of the blue Malibu pursuant to a warrant led to the recovery of quantities of cocaine and marijuana. Additionally, during a search of Fairley's home, police recovered a pair of socks which appeared to have blood stains on them. Subsequent forensic testing established the presence of blood on the passenger's side door handle of the blue Malibu, the firearm, and the socks. The DNA profile for those blood stains was a match for Page at all loci, with an estimated frequency of one in ninety-nine quintillion based on the relevant United States population.

         In September 2015, Fairley was tried by the Christian Circuit Court and found guilty of first-degree robbery, receiving stolen property (firearm), first-degree possession of a controlled substance (while armed), and possession of marijuana (while armed). The jury recommended the maximum penalty for each offense, but recommended that those sentences be served concurrently for a total sentence of twenty years' imprisonment. The trial court sentenced Fairley in conformance with the jury's recommendation.

         I. The Trial Court Properly Permitted the Victim to Make an In-Court Identification of Fairley.

         Fairley argues that the trial court erred by permitting Page to make an in-court identification. Specifically, Fairley contends that as Page was unable to identify him in a photographic lineup, that he should have been barred from making an in-court identification.[2] Alternatively, Fairley requests that the Court remand this case for a hearing to assess whether the in-court identification satisfies the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972). We reject both arguments.

         After Fairley was apprehended, Detective Green showed Page a photographic lineup, but he was unable to identify Fairley as the perpetrator. However, prior to trial, Page informed the prosecutor that he would be able to identify Fairley. At a pretrial conference held in September 2015, the prosecutor informed the trial court and Fairley of Page's statement. Fairley, who at that time was functioning as his own counsel, responded by saying "[t]o me, I feel like that shouldn't be allowed because if he couldn't do it then, how all of a sudden you can do it now?" The trial court explained that it would not bar Page from making an in-court identification and that Fairley could cross-examine him on this issue. During the trial, Page identified Fairley as the man who robbed him. Page explained that he initially was fearful of identifying Fairley. Further, Page was concerned that identifying Fairley would lead to the revelation that the stolen money had been acquired through, illegal gambling. Notably, Fairley did not object to Page's in-court identification, but did question him about the identification as discussed below.

         While Fairley did not object to Page's in-court identification at trial, we conclude that his objection prior to trial was sufficient to preserve this issue for appellate review. Admittedly, this is a close call, but we choose to construe Fairley's pretrial complaint as an objection to Page's in-court identification, recognizing that pro se litigants should be afforded a degree of latitude in making their arguments. See Commonwealth v. Miller, 416 S.W.2d 358, 360 (Ky. 1967) (explaining that pro se litigants are afforded a different standard than that applied to those with legal counsel). Accordingly, we review the trial court's decision to admit evidence under an abuse of discretion standard. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citing Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006)). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) [citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

         We reject Fairley's first argument that Page's inability to identify him in a photographic lineup should bar him from making an in-court identification. As we have previously explained "the failure of a witness to identify a suspect from a photographic line-up does not prevent that witness from later identifying a suspect in court." Thompson v. Commonwealth, 2003-SC-0252- MR, 2004 WL 2624165, 6 (Ky. 2004) (citing United States v. Dobson, 512 F.2d 615, 616 (6th Cir. 1975));. United States v. Briggs, 700 F.2d 408, 413 (7th Cir. 1983)).[3] As the United States Court of Appeals for the Sixth Circuit observed:

The fact that eye witnesses to an occurrence cannot make a positive identification of an individual from an examination of photographs of a number of persons, does not necessarily detract from the validity of their in-court identification where they see the individual in person. The weight to be ...

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