APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN C.
EDWARDS, JUDGE NO. 12-CR-003691-001
COUNSEL FOR APPELLANT: Daniel T. Goyette Louisville Metro
Public Defender Cicely Jaracz Lambert Chief Appellate
Defender Louisville Metro Public Defender
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Susan Roncarti Lenz Assistant Attorney General Jason
Bradley Moore Assistant Attorney General
Eugene Baker, was convicted by a Jefferson Circuit Court jury
of murder, first-degree robbery, tampering with physical
evidence, and possession of a handgun by a convicted felon.
For these crimes, the jury recommended sentences of thirty
years' imprisonment for murder and ten years'
imprisonment for robbery, to be run consecutively. The jury
also recommended a one-year sentence on the tampering with
physical evidence conviction and a five-year sentence for the
possession of a handgun by a convicted felon conviction, to
be served concurrently with the murder and robbery sentences.
The trial court sentenced Baker to forty years'
imprisonment in accordance with the jury's
recommendation. Appellant now appeals to this Court as a
matter of right, Ky. Const. § 110(2)(b), and asserts
five grounds for reversal of his convictions: (1) the trial
court abused its discretion when it did not allow defense
counsel to argue in closing that the Commonwealth did not
produce any evidence of motive; (2) the trial court abused
its discretion when it allowed the Commonwealth to introduce
unauthenticated call logs, and when it allowed the
Commonwealth to recall a ) witness to
testify as to a phone number appearing in the call logs; (3)
the trial court erred in. failing to grant a directed verdict
on the tampering with physical evidence and possession of a
handgun by a convicted felon charges; (4) the trial court
erred in refusing to instruct on facilitation to murder and
first-degree robbery; and (5) Baker is entitled to reversal
of his conviction and a new trial due to cumulative error. We
will address each claimed error in turn.
2012, Baker and co-defendant Duzuan Lester were indicted as
complicitors in the 2007 murder and robbery of Dominic
Hudson. Baker and Lester's trial ended with Lester
acquitted of all charges and with the jury unable to agree
upon a verdict as to Baker. This appeal concerns Baker's
retrial, several witnesses testified regarding events
surrounding the crime at issue herein. We will outline their
testimony in order to give a full picture of the evening of
Hudson's murder. Witnesses testified that Hudson sold
both marijuana and "bootlegged" DVDs. Hudson kept
two cell phones- one for personal use, and the other for
Hart testified she was in Hudson's apartment on the
evening of his murder. She said two men came to the apartment
and she opened the door for them, as she was expecting her
cousin Teresa to stop by. Hart did not know the men, but said
one of them wore a red baseball cap with a flat bill. Teresa
eventually arrived at Hudson's apartment, and she and
Hart left around 7:00. The two men Hart did not know remained
in the apartment with Hudson. Hart later picked Baker's
picture out of a photographic line-up as being one of the men
who was in Hudson's apartment on the night in question.
other witnesses, Yvonne Wolf and Alvin Servin (who happened
to be neighbors) testified that they were each going to
Hudson's apartment on the evening of his murder and did
not know the other would be there. Wolf was there to pick up
DVDs Hudson had made her, and talked to Hudson to let him
know she was on her way. She could hear people in the
background during the phone call, and Hudson told her he had
to take care of something. She arrived at Hudson's
apartment seven minutes later, and ran into Servin in the
parking lot (he testified he was going to the apartment to
buy marijuana from Hudson). The two approached the apartment
together and knocked, but Hudson did not answer the door.
They noticed the door was ajar, arid Wolf, knew Hudson
typically kept his door locked. The two called out, but got
no response. They walked in the door, rounded a corner, and
saw Hudson's lifeless body lying in the hallway. They
testified "weed" was everywhere. An autopsy would
later determine Hudson died as the result of a gunshot wound
to the back of his head.
Evans, Jr., who lived in the same apartment complex as
Hudson, also testified at trial. He said on the night of
Hudson's murder, just before 7:00, he saw two men running
out the complex. One of the men held a t-shirt, which he
appeared to be using to conceal something. While the
description Evans provided matched Baker's description,
he neither identified Baker nor saw a handgun.
Williams testified she was dating Baker at the time of
Hudson's murder. She said she knew Hudson, but had never
called him; she stated it was possible Baker had used her
phone to call Hudson. It turned out her number had called
Hudson about an hour before his death. Williams testified
that Lester and his girlfriend picked her up on the evening
in question, along with her baby and Baker. They traveled to
Hudson's apartment, where Baker -said he needed to go to
get his cell phone. Williams testified that when Baker and
Lester returned to the car, they were running down the
street, dropping money and marijuana as they ran. Williams
testified the two men were very upset when they returned to
the car and said, "Go, go, go!" when they
re-entered the vehicle. They drove to Baker's cousin
Ebony's house, where Lester and his girlfriend dropped
off Baker, Williams, and her baby. Baker was throwing up and
visibly shaken when they arrived at Ebony's house.
testified that when she asked Baker what was wrong, he told
her he had killed Hudson by shooting him in the back of the
head. Baker said he was in the kitchen when he shot Hudson
(and this is, in fact, where Hudson's body was found).
Williams did not see the gun, but thought Baker's cousin
Gary had come the next day and gotten the weapon.
was friends with Nikkia Sullivan, who had a relationship with
Hudson. Williams told Sullivan what had happened with Hudson
and the two stopped talking after Williams's revelation.
Williams became upset with Sullivan when Sullivan told police
what Williams told her regarding Hudson and asked Williams to
help her "cop a deal."
was a convicted felon, but testified she did not receive any
deals in exchange for her testimony.
was serving a sentence for manslaughter and aggravated
robbery at the time of Hudson's trial-and was almost
eight years into her sentence. Sullivan testified she used to
hang out with Baker, Williams, and Hudson. Hudson may have
been the father of Sullivan's daughter, though paternity
was never established. Sullivan was not aware of any
animosity between Hudson and Baker, and had never met Lester.
was supposed to go to the fair with Hudson on the night of
his murder. Hudson told her he had some things to do. At some
point that evening, Hudson stopped answering her phone calls.
Sullivan called Williams, because she thought Baker may know
where Hudson was. She could not recall at trial if anyone
answered her call. However, in a 2012 statement to police,
Sullivan said Williams did answer her call. When she asked
where Hudson was, Sullivan said Baker got on the phone and
told her she was not going to see Hudson again. The next time
Sullivan called Williams, she said Baker answered the phone,
told her he had killed Hudson, and hung up. Sullivan did not
initially call the police to report this information.
early 2008, Sullivan said she did call Crime Stoppers after
speaking with Williams. Williams had sent Sullivan a message
saying she wanted to talk about Hudson. Sullivan testified
Williams told her she had been driving the get-away car on
the night of Hudson's murder. She said Baker and another
male were passengers. Sullivan testified that Williams told
her she heard gunshots, and the man with Baker jumped back in
the car and vomited. When Baker made it back to the car, he
looked like a ghost. Sullivan testified Williams told her she
and the two men then drove to Williams's
apartment.Sullivan was unable to identify Baker from
a photo pack five years after Hudson's murder. She said
she could not remember what Baker looked like.
witness, Susan Copass-Cheng had a child with Baker. Baker
called Copass-Cheng and asked her to bring their daughter to
see him. She testified he told her he had done something and
if anyone ever found out, he may not be able to see her or
their child again. Copass-Cheng testified she did not know
Williams, but had spoken with her on the phone. She testified
that Williams had called her only once, but that Baker called
her from Williams's phone numerous times. On recall,
Copass-Cheng identified Williams's number (the same
number which appeared in call logs as having called Hudson
approximately an hour before his death) as the number from
which Baker called her.
Turner also testified at trial. He said he and Baker were
friends and had bought marijuana from Hudson. Turner said he
was supposed to meet Hudson on the night of his murder to pay
him some money. When Turner went to Hudson's apartment
that nighty police were there and he did not approach the
apartment. However, Turner spoke with police in 2009 and 2012
and told police, in taped statements, that Baker had
confessed to killing Hudson. However, at trial, Turner
claimed he lied to police and that these statements were
baseball cap was found lying in the kitchen floor, just two
feet away from Hudson's body. DNA found on the cap
matched both Baker and Lester. Lead Detective Keith Roberts
testified marijuana was on Hudson's body, the floor, and
the counter. He also testified money was found in
Hudson's back pocket. Detective Roberts interviewed Baker
in 2007. Baker admitted he knew Hudson and had bought
marijuana from him. Baker said he did not know what the
detective was talking about when Detective Roberts asked
Baker if he had anything to do with Hudson's murder.
trial, Baker called two witnesses: Ebony, at whose house
Williams testified they went on the night of Hudson's
murder, and his former co-defendant, Lester. Ebony denied
knowing Williams and denied Williams and Baker had come to
her house on the night of Hudson's murder. Lester
testified that he and Baker were friends. He denied ever
having been to Hudson's apartment complex and denied
being present during Hudson's murder. He told the jury
that he had also been tried for Hudson's murder, but
found not guilty on all counts.
closing argument, defense counsel argued that the
Commonwealth had taken eight years to "cobble" its
case together. He referred to the Commonwealth's
witnesses as drug addicts and felons, and said their
testimony was inconsistent.
closing, the Commonwealth pointed out that a witness had
picked Baker's photograph out of a line up as being one
of the two men in Hudson's apartment just minutes before
his murder; that Evans described two men running from the
scene, and that description was consistent with Baker;
Williams testified as to key details Baker told her
concerning information that had not been released to the
public (such as that Hudson had been shot in the back of the
head in his kitchen); Sullivan testified that Baker had told
her on the phone that he killed Hudson; and Copass-Cheng
testified that shortly after Hudson's murder, Baker told
her he did something and that if anyone found out, he may not
be able to see her and their child. The Commonwealth also
discussed Turner's statement that Baker had confessed to
Hudson's murder, even though Turner denied its truth at
the time of trial. Finally, the Commonwealth pointed to the
baseball cap found feet away from Hudson's body matching
jury ultimately found Baker guilty of murder, first-degree
robbery, tampering with physical evidence, and possession of
a handgun by a convicted felon and recommended he be
sentenced to serve a total of forty years' imprisonment.
The trial court sentenced Baker accordingly and this appeal
followed as a matter of right. Ky. Const. § 110(2)(b).