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Terry v. Commonwealth

Court of Appeals of Kentucky

December 8, 2017

THOMAS TERRY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON BELATED APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE ACTION NO. 15-CR-001322

          BRIEFS FOR APPELLANT: Michael L. Goodwin Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

          BEFORE: COMBS, J. LAMBERT, AND NICKELL, JUDGES.

          OPINION

          LAMBERT, J., JUDGE.

         Thomas Terry has directly appealed from the judgment of the Jefferson Circuit Court, entered following a jury trial and convicting him of complicity to first-degree assault, complicity to first-degree burglary, and to intimidating a participant in the legal process. The court sentenced Terry to eleven years' imprisonment. We affirm the judgment of conviction.

         In May 2015, the Jefferson County grand jury indicted Terry on multiple counts related to a home invasion almost four years earlier on July 5, 2011, at the Kingswood Way residence of Constance and John Anderson.[1] John also sustained injuries from being shot during the crime. Blood collected from the scene was identified as being a mixture of John's and Terry's blood, and John's stolen credit card was used shortly thereafter in Georgia, where Terry reported he was visiting. As a result, Terry was charged with two counts of complicity to first-degree robbery pursuant to Kentucky Revised Statutes (KRS) 515.020 and KRS 502.020 (as to both Constance and John), and one count each of complicity to first-degree assault pursuant to KRS 508.010 (as to John), complicity to first-degree burglary pursuant to KRS 511.020 (as to John), complicity to first-degree wanton endangerment pursuant to KRS 508.060 (as to Constance), and complicity to intimidating a participant in the legal process pursuant to KRS 524.040 (as to Constance).

         Terry entered a not guilty plea at his arraignment that month, and the court ordered counsel for both sides to comply with the Rules of Criminal Procedure and the timeframes set forth in the Rules of Practice for Jefferson Circuit Court with respect to discovery. A trial was scheduled for June 1, 2015, but it was later rescheduled for December of that year. Terry's theory of the case was that another person was responsible for the crime because that person's cell phone was found under the Andersons' bed. In addition, he asserted that the blood evidence had been corrupted.

         On August 3, 2015, the Commonwealth filed a supplemental response to the court's pretrial discovery order, which consisted of "additional discoverable materials" that had recently come into its possession. This additional material was an investigative letter dated July 21, 2015, from Sergeant Josh Myers, and it read as follows:

When preparing for trial in the beginning of June 2015, I noticed that my case file did not include any documentation of the statements made by Terry Thomas when he was served with the search warrant in Hardin County on September 26, 2012. This letter is to serve as documentation for those statements.
Myself, along with Sgt. Emery Frye and Deputy C. Browder, Hardin County Sheriff's Office met with Mr. Terry in Hardin County on September 26, 2012[. He] was presented with his copy of the signed search warrant authorizing the collection of his buccal standards. Mr. Terry asked what the warrant was in reference to. I advised that we were investigating a home invasion and shooting where his DNA in the form of blood was potentially present at the scene. I told Mr. Terry that the buccal standard was needed for the lab to conduct a comparison to the possible match.
Mr. Terry then asked when and where the offense occurred. I informed Mr. Terry that the incident took place on July 5, 2011 at an address on Kingswood Way in Shively. Mr. Terry responded to this by saying "it couldn't have been me because I was in Atlanta on that day". Mr. Terry went on to say that he spends a lot of time in the Atlanta area.
During this exchange, Mr. Terry became increasingly agitated. At first, Mr. Terry refused to comply with the order to collect his buccal standard. Only after a lengthy conversation, and convincing Mr. Terry that he had to comply did he final [sic] allow the collection. No questioning took place at this time.

         Prior to the trial, Terry filed a motion in limine to exclude any references to a DNA database match and moved to suppress and exclude any oral incriminating statements and evidence related to the buccal sample collection detailed in the letter above.[2] The Commonwealth, in turn, filed a motion in limine pursuant to Kentucky Rules of Evidence (KRE) 402, 403, 608, and 611 to preclude Terry from impeaching retired Kentucky State Police Lab Technician Dawn Katz related to her work in another criminal case and a civil suit filed in federal court. Ms. Katz had performed testing to determine whether samples collected from the crime scene were blood and, if so, human blood. The Commonwealth stated that Terry's counsel had sought to impeach Ms. Katz in several other cases regarding her testimony in a 1993 rape case where she testified about her visual analysis of hair samples. She testified that the hair samples matched the defendant's hair, but mitochondrial DNA testing performed years later excluded the defendant as the source of the hairs. In other words, her testimony was proven to be inaccurate, causing the defendant to be wrongfully convicted. The Commonwealth argued that because Ms. Katz would be testifying as "little more than a chain of custody witness, whose testimony would last all of ten minutes" and that another lab technician would also be testifying that the samples were human blood, Terry should not be permitted to impeach her based upon her testimony in the 1993 case. Terry's response to the motion, which the court mentioned had been filed in its opinion and order ruling on the motions, is also not in the record on appeal.

         The court held an evidentiary hearing on December 11, 2015, where the court permitted the parties to argue their respective positions. Terry argued that the inculpatory statement identified in the July 21, 2015, investigative letter had been known to the Commonwealth, but had not been turned over for several years, and the Commonwealth argued that while there was some level of miscommunication due to transfers in the case, Terry failed to show that he was prejudiced as he had had the information for several months. The Commonwealth also argued that Sgt. Myers was not attempting to elicit information from Terry. The parties went on to discuss the Commonwealth's motion in limine regarding Ms. Katz's impeachment. The Commonwealth said Ms. Katz was little more than a chain of evidence witness and that she had run tests to determine whether the samples from the crime scene were human blood before sending it to the Frankfort lab for DNA analysis, which was the issue in this case. The Commonwealth also pointed out that the hair analysis upon which the credibility issue was based happened more than twenty years ago.

         Sgt. Myers of the Shively Police Department testified for the Commonwealth at the hearing. He had obtained a search warrant for Terry's buccal swab in Hardin County, where he was in jail on unrelated charges. After Sgt. Myers told him the date of the home invasion, Terry said, "This couldn't have been me because I was in Atlanta." Terry asked him three questions regarding Sgt. Myers' investigation. The conversation then turned to whether Terry would submit to the test, and Sgt. Myers said Terry was reluctant to allow him to perform it.

         Sgt. Myers went on to explain that Terry had originally been indicted in October 2012, and Sgt. Myers had worked with the original prosecutor on discovery matters. Sgt. Myers believed Terry's statement about being in Atlanta was an important piece of the case "puzzle" that was discussed with the prior prosecutor, but the statement was not put into written form until July 2015. On cross-examination, Sgt. Myers admitted that he had not informed Terry of his Miranda rights during the September 2012 collection of the buccal swab pursuant to the warrant, even after telling Terry that his suspected blood had been found at the Andersons' residence. On redirect examination, Sgt. Myers said that his answers to Terry's questions were not meant to elicit a response from Terry. The court orally granted Terry a continuing trial objection to any DNA testimony and indicated an order on the remaining issues would be forthcoming.

         The court entered a written opinion and order on December 14, 2015 (the first day of the trial), ruling on the pre-trial motions. The court explained that Terry was attempting to suppress any reference to a database match as well as his statement that "it couldn't have been me. I was in Atlanta." The court denied Terry's motion related to the database match, stating that it and "counsel may take steps to avoid prejudice to the Defendant with proper instructions." It also granted Terry's motion related to testimony that he was reluctant to provide a buccal sample. However, the trial court denied Terry's motion related to a Miranda violation, finding that from Terry's perspective, there was "no indication that [he] believed that a response to Detective Myers was required. In short, the brief exchange described in Detective Myers testimony is not the 'functional equivalent' of interrogation anticipated in [Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)], see Watkins v. Commonwealth, 105 S.W.3d 449 (Ky. 2003)."

         In addition, the court denied Terry's motion related to the discovery violation, although it noted that the nearly three-year delay in disclosing this statement was "disturbing." The court set forth the procedural timeline as follows:[3]

The Court entered its Order of Arraignment and Discovery on November 5, 2012. The Commonwealth made its first disclosure in response to that Order on December 14, 2012. That Response stated that the Commonwealth "is currently unaware of any oral incriminating statements which may be included in the tendered discovery. Should any statements or reports become known, they shall promptly be provided." On May 24, 2013, the Defendant filed his Motion for Specific Exculpatory or Otherwise Discoverable Evidence Concerning DNA and/or Forensic Testing. Present defense counsel entered his appearance on February 13, 2014 and the current Assistant Commonwealth's Attorney entered the case on November 17, 2014. On August 3, 2015, detective Myers' Investigative Record was disclosed.

         The court reasoned that while Kentucky Rules of Criminal Procedure (RCr) 7.24 provides that the Commonwealth, upon written request, must disclose any known oral, incriminating statement a defendant has made, suppression is not mandatory. The court opted to deny this part of the motion.

         Finally, the court considered the Commonwealth's motion in limine related to Terry's ability to impeach Ms. Katz. The Commonwealth reported that the blood samples had been retested once they reached the KSP lab. After setting forth the applicable rules of evidence, the trial court ruled as follows:

[Counsel] for the Defendant emphasizes the fact that cross-examination should not be unduly constrained, specifically as it pertains to credibility. The Court, however, notes that it may limit such cross-examination as regards matters that were not the subject of direct examination. Based on the statements of the Commonwealth, it may not be necessary to examine Ms. Katz as to the tests she performed, limiting her testimony only to her possession and control of the samples and their transmission to KSP. However, it is impossible to know, on a pretrial basis, what Ms. Katz's testimony on this issue will be. Therefore, the Court will reserve ruling on this matter pending her trial testimony.

         By separate order, the court granted Terry a continuing objection to the admission of all DNA evidence in the case.

         A jury trial was held over four days beginning on December 14, 2015. At the conclusion of the trial, the jury returned verdicts finding Terry guilty of two counts of complicity to first-degree robbery as to both John and Constance, of complicity to first-degree assault, of complicity to first-degree burglary, and of complicity to intimidating a participant in the legal process. Following the penalty phase, the jury recommend sentences of eleven years for the robbery, assault, and burglary convictions and of one year for the intimidation conviction, all to be served concurrently. The court entered an order on February 3, 2016, setting forth the jury's decision and stating that the wanton endangerment charge had been dismissed. The matter was scheduled for formal sentencing in March 2016. The court entered a judgment of conviction on April 5, 2016, and this belated appeal now follows.

         On appeal, Terry raises arguments related to whether his oral statement should have been suppressed, whether his cross-examination of Ms. Katz was impermissibly limited, whether the lead detective was improperly allowed to testify as to his opinion about the shooting victims' ability to accurately describe their assailants, whether the circuit court improperly removed a juror by designating her as an alternate, and whether the circuit court ...


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