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Davidson v. Commonwealth

Supreme Court of Kentucky

June 14, 2018

THOMAS EDWARD DAVIDSON APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE NO. 13-CR-3242

          COUNSEL FOR APPELLANT: Daniel T. Goyette Cicely Jaracz Lambert Joshua Michael Reho Louisville Metro Public Defender of Counsel

          COUNSEL FOR APPELLEE:, Andy Beshear Attorney General of Kentucky Joseph Todd Henning Lexington-Fayette Urban County Government Department of Law

          OPINION OF THE COURT BY JUSTICE VENTERS

         Appellant, Thomas Edward Davidson, along with co-defendant Kevin Boyd, was indicted for thirty-one counts of first-degree robbery, one count for each individual victim present at fourteen different restaurant robberies that v occurred in Louisville between October 24, 2013, and December 2, 2013. Appellant was also charged with being a first-degree persistent felony offender. These counts were tried together in the Jefferson County Circuit Court.[1] The jury convicted Appellant on fourteen counts of first-degree robbery and for being a first-degree persistent felony offender. He received a total sentence of thirty years' imprisonment.

         On appeal, Appellant asserts three instances of trial error as support for -his claim that he should have a new trial. He contends the trial court erred by: 1) failing to sever some of the thirty-one counts of robbery; 2) permitting three police officers to testify that the robberies were all related to each other; and 3) informing the jury that it had ruled that both defendants should be tried together on all charges.

         I. THE TRIAL COURT DID NOT ERR IN FAILING TO SEVER THE ROBBERY OFFENSES

         Prior to trial, Appellant moved to sever the robbery counts for separate trials so he would not be required to simultaneously defend against thirty-one counts of first-degree robbery. He argues on appeal that the trial court's refusal to do so was an abuse of discretion. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Our review involves a two-step process: first, we consider whether the offenses were properly joined in a single indictment pursuant to RCr 6.18; and second, we consider whether RCr 8.31 required separate trials.

         RCr 6.18 permits the joining of separate crimes in a single indictment if "the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan." As the Commonwealth correctly notes, we have consistently upheld ") the joinder of multiple robberies when the offenses were "closely related in character, circumstance, and time." See Cardine v. Commonwealth, 623 S.W.2d 895, 897 (Ky. 1981); Davis v. Commonwealth, 899 S.W.2d 487, 488-89 (Ky. 1995), overruled on other grounds, Merriweather v. Commonwealth, 99 S.W.3d 448 (Ky. 2003).

         All of the robberies, involving thirty-one victims, occurred within a brief span of six weeks and each occurred under similar circumstances. Each robbery occurred at a restaurant and involved two men armed with a revolver using a white Honda Accord for transportation. Witnesses at different robberies consistently described the robbers' physical appearance and clothing, including a red, white, and green hat referred to as a "granny hat." Police discovered such a hat after Appellant attempted to have his girlfriend dispose of his clothing. The crimes all occurred near Appellant's and Boyd's residences. The similarities between these offenses are striking. They are very clearly offenses "of the same or similar character" properly joined under RCr 6.18.

         RCr 8.31 permits properly joined offenses to be severed for separate trials when a party has satisfied the burden of showing that he would be "unfairly prejudiced" by the joint trial. Parker v. Commonwealth, 291 S.W.3d 647, 657 (Ky. 2009). Trial judges are vested with great discretion in determining whether to join or sever offenses. Brown v. Commonwealth, 458 S.W.2d 444, 447 (Ky. 1970). We have "consistently declined to disturb that discretion absent a showing of clear abuse and actual prejudice." Cherry v. Commonwealth, 458 S.W.3d 787, 793 (Ky. 2015) (citation omitted).

         Rather than demonstrating actual prejudice, Appellant suggests that the prejudice inherent in the "monumental task" of defending against thirty-one charges is self-evident. He contends that he faced "simply too many counts with too many prosecuting witnesses to not be prejudicial." We decline to adopt that presumption by fixing a maximum number of charges that may be joined, for trial. We are not persuaded that Appellant was unfairly prejudiced. The trial court did not abuse its discretion in denying Appellant's motion to sever.

         II. THE ADMISSION OF THE POLICE OFFICERS'OPINION TESTIMONY WAS HARMLESS ERROR

         Appellant next claims the trial court erred by allowing three police detectives to express their belief that the specific robberies they investigated were related. Appellant also argues that the trial court erred by permitting the lead detective to testify that all the robberies charged in the indictment were "connected, " thus implying that if Appellant was guilty of one of the robberies, he was guilty of them all. Over Appellant's objections, the trial court accepted the Commonwealth's argument that the officers' opinions were admissible under KRE 701 because each was rationally based upon the ...


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