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Smoot v. Commonwealth

Court of Appeals of Kentucky

July 27, 2018



          BRIEFS FOR APPELLANTS Gene Lewter Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky Jeffrey A. Lawson Covington, Kentucky

          BRIEF FOR APPELLEE Andy Beshear Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky J. Todd Henning Assistant Attorney General Frankfort, Kentucky



          ACREE, JUDGE

         This is a consolidated appeal from separate judgments of the Kenton Circuit Court convicting brothers Kevin and Kenneth Smoot of one count each of complicity to first-degree robbery. On appeal, the Smoots contend the trial court abused its discretion when, in violation of KRE[1] 404, it permitted the Commonwealth to present evidence that the Smoots and their friends referred to themselves collectively as "Love and Loyalty." Kenneth further contends the trial court erred when it: (1) excluded prior bad act, "reverse 404(b)" evidence[2] offered against a Commonwealth witness; (2) improperly limited impeachment of the same witness; and (3) failed to suppress statements Kenneth made to police after he requested counsel. After careful review, we affirm the convictions in both appeals.


         Late in the evening of September 30, 2013, Daniel Gebremedhin was walking toward his vehicle to go home for the night. He had just finished some paperwork after closing his Covington neighborhood corner store, known as the Garrard Market.[3] As he approached his van, parked across the street from the market, three men who had covered their faces with shirts suddenly approached him. One was brandishing a handgun. Frightened, Gebremedhin ran. The assailants took chase and caught him when he fell attempting to jump a fence. The man with the gun held it to Gebremedhin's head while the other two removed his shoes and pants. The assailants took his wallet, cell phone, and a satchel he was carrying, and disappeared down a nearby alley.

         Covington police arrived shortly thereafter and interviewed Gebremedhin. He explained what happened but could not identify the men because they had covered their faces. He informed the officers that his stolen wallet contained cash and credit cards, and that his satchel contained his cell phone, cash from the store register, business papers, and winning lottery tickets.

         A few days later, Detective Bryan Kane received a call from officials at the Kentucky Lottery Corporation notifying him that someone was attempting to cash two lottery tickets stolen in the robbery. That someone was Anthony Wallace; Officer Kane apprehended Wallace while he was still trying to cash the tickets at a convenience store. Based on information Wallace provided, Detective Kane obtained a search warrant for a residence across the street from Garrard Market. Twin brothers Robert and Bobby Turner lived there.

         Officers executed the search warrant and found Gebremedhin's wallet, satchel, ID card, credit cards, social security card, cell phone, and business papers. Police also found a .38 caliber revolver matching the description of the handgun used in the robbery. The gun belonged to Wallace. Robert and Bobby Turner were arrested and then questioned by police. During their interviews, both Turners implicated Kevin and Kenneth Smoot and Zla Holder as the robbers.

         Kevin and Kenneth were arrested. Two detectives, including Detective Kane, interviewed the brothers separately. Kevin initially denied being involved. However, he soon confessed to complicity in the robbery with Kenneth and Holder. He said all three were part of a group of friends who associated as "Love and Loyalty," a name for the group he referred to as the "gang."

         In his separate interview, Kenneth claimed no involvement with the robbery, but also stated he was "not denying it." Both Smoots were indicted for complicity to commit first-degree robbery and they proceeded to separate trials.

         At Kevin's trial, in addition to the victim and Detective Kane, Kiyah Humphrey testified. She was a frequent visitor at the Turner house and girlfriend of Bobby Turner. Over Kevin's objection, Humphrey testified that she too was affiliated with "Love and Loyalty." She demonstrated the group's hand-sign in the shape of an "L" and said she considered the group her "family." She was at the Turner house on the night of the robbery but left before the robbery occurred. She confirmed that the Turners, Wallace, and the Smoots were still there when she left. Afterward, she saw both Smoots in possession of the stolen items. She testified that the Smoots said things that made her believe they were involved in the robbery and repeated those statements for the jury.

         At Kenneth's trial, Detective Kane, Humphrey, and Robert and Bobby Turner testified. Detective Kane and Humphrey testified consistently with their testimony at Kevin's trial. Bobby Turner testified that after the robbery, four individuals rushed into his room - the two Smoot brothers, Holder, and his brother Robert. Robert testified that the Smoots and Holder robbed the victim while he stayed back and watched from the window of his house.

         Both Smoot brothers were convicted on the respective charges against them. Kevin was sentenced to fifteen years' imprisonment, and Kenneth was sentenced to ten years' imprisonment. The Smoots now appeal as a matter of right. Additional facts will be developed as necessary.


         When reviewing "the trial court's . . . on-the-spot rulings on the admissibility of evidence, we may reverse a trial court's decision to admit evidence only if that decision represents an abuse of discretion [meaning] that the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citation and internal quotation marks omitted). "When reviewing a trial court's denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law." Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006). "Because the determination of whether a purported invocation of the right to counsel involves an application of law to facts, our review is de novo." Bradley v. Commonwealth, 327 S.W.3d 512, 516 (Ky. 2010).


         A. Admission of evidence about "Love and Loyalty" affiliation was not abuse of discretion.

         Kevin and Kenneth contend the trial court erred by admitting evidence in their respective cases of an affiliation with "Love and Loyalty." Prior to trial in both cases, the Commonwealth filed notice that it intended to introduce evidence of the affiliation, claiming it fit within the exceptions to KRE 404(b).[4]

         Under this rule, evidence is not admissible "to prove the character of a person in order to show action in conformity therewith." KRE 404(b). However, it may be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

KRE 404(b)(1)-(2). In both cases, the Commonwealth generally argued that all the exceptions contained in KRE 404(b)(1) and (2) applied, but offered more narrowly focused, similar reasons in each case.

         In Kevin Smoot's case, the Commonwealth said the evidence would show Kevin's "ties to the Turner house where the physical evidence from the robbery was located . . . [and] proves the identity of the participants of the store robbery as well as motive. It also provides context of how this robbery took place, i.e. opportunity." (R. 71-72 (2015-CA-001893)).

         In Kenneth's case, the Commonwealth argued that: "1) the evidence provides a general context for the robbery and surrounding circumstances; 2) the evidence will provide a general context for . . . witness testimony and the victim's testimony; 3) the evidence provides a possible motive for the crimes." (R. 77 (2015-CA-001944)).

         In addition to arguing that proper application of KRE 404(b) prohibited the evidence of the Smoots' affiliation with "Love and Loyalty," the Smoots argued in their separate cases that this evidence was irrelevant or, alternatively, any probative value of the evidence was substantially outweighed by its prejudicial effect. These arguments are based on KRE 401 through KRE 403.

          The issue first arose in Kevin's case where the Commonwealth gave timely notice of its intent to offer the evidence. The trial court did not enter a written order on the question but engaged in a lengthy bench conference immediately before trial, after which the court allowed certain evidence related to "Love and Loyalty." Specifically, after Kiyah Humphrey authenticated cellphone videos taken around the time of the robbery, she was allowed, consistent with KRE 404(b)(1) exceptions and other rules of evidence, [5] to testify to the meaning of the "L"-shaped hand gesture each person in those videos displayed, to explain that the gesture indicated affiliation with "Love and Loyalty," and that, to her, "Love and Loyalty" meant "family."[6]

         In Kenneth's case, there is a written order. (R. 103 (2015-CA-001944)). That order, in pertinent part, states:

The Commonwealth will seek to introduce a video through the owner of the phone. This video shows the defendant [Kenneth Smoot] and others sitting in chairs and a couch situated around a table. Located on the table are a gun, marijuana, and money. The individuals in the tape including the co-defendants make an L sign. The owner of the phone has testified in a prior trial as to the identity of the individuals, the date of the video and she will call this group of individuals "family." A statement of the defendant will call this group a "gang." The court has disallowed the use of the word "gang" by the prosecutor in describing this group of individuals. However, statements of the defendant can be used for many purposes[, ] the most important of which is to present the defendant's view on his relationship to these individuals. . . . The affiliation of these individuals through the testimony of those with personal knowledge and the video is relevant to the criminal activity[, ] not just that these individuals were in a "gang." As the Commonwealth has authentication and multiple indicia of aff[ilia]tion, the defendant's motion to preclude the videotape to show the relationship and "family" affiliation is OVER-RULED.

(R. 104-05 (2015-CA-1944)).[7]

         After reviewing both cases, we find no error or abuse of discretion in the trial court's admission of evidence that the Smoots were affiliated with their co-defendants and with the witnesses who testified against them. The evidence was not offered to prove their character but rather, as the Commonwealth stated, to demonstrate that the relationship among this group - defendants and witnesses alike - was "more than casual." We agree that the Smoots' affiliation with "Love and Loyalty" explained, in a way other evidence did not, that the plan to rob was conceived in the Turner's house, how the gun used in the robbery came from the Turner's house which is also where the Smoots stashed the stolen property, and why the Smoots' ill-gotten gains were shared with Wallace (lottery tickets) and Humphrey (victim's credit card). All are proper reasons for admitting evidence of the Smoots' affiliation in "Love and Loyalty" consistent with KRE 404(b)(1) and (2). This affiliation tends to prove the motive for conspiring to rob the victim, it shows the Turner house presented an opportunity to plan and launch the robbery and a place to hole up afterward, and it identifies the separate defendants as a group in complicity with one another. It is also inextricably intertwined with other evidence essential to the case, including the various videos depicting the defendants before and after the robbery.

         Furthermore, we find no error or abuse in the ruling that the evidence was relevant, nor in the implicit ruling that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The trial court carefully tailored its ruling to limit the prejudicial effect of the evidence. Obviously, "all relevant evidence is prejudicial to the party against whom it is offered." Robert G. Lawson, Kentucky Evidence Law Handbook, § 2.10(4)(b) at 89 (4th ed. 2003). However, evidence that is unduly prejudicial "appeals to the jury's sympathies . . .or otherwise may cause a jury to base its decision on something other than the established propositions in the case." Id. (quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980)). The Commonwealth complied with the trial court's tailored ruling assuring that undue prejudice did not occur. We cannot say the trial court's decision on relevance and prejudice was an abuse of discretion. See Smith v. Commonwealth, 454 S.W.3d 283, 288 (Ky. 2015) (evidence of gang affiliation "was neither inflammatory nor excessive [and, therefore, ] probative value of [evidence] was not substantially outweighed by the danger of undue prejudice."); Hudson v. Commonwealth, 385 S.W.3d 411, 419 (Ky. 2012) (same). Although the Supreme Court was referring to full-fledged criminal gang affiliation in the case of Hudson v. Commonwealth, the rationale from that case is valid and applicable here:

evidence of gang activity was relevant to explain the context of and the motive for [the crime;] evidence of gang activity and gang affiliation presented at trial was not excessive and was highly probative of motive and intent. While jurors may have negative associations with gang activity, we do not believe the evidence was unfairly prejudicial under the circumstances of this case.

Hudson, 385 S.W.3d at 419.

         We cannot say the trial court erred or abused its discretion, in either case, by allowing the contested evidence. This is Kevin's only claimed ground for reversal. The remaining arguments are presented only by Kenneth.

         B. Excluding evidence of a witness's prior crime was not an abuse of discretion.

         In the first twelve seconds of cross-examining a Commonwealth witness, Robert Turner, Kenneth's counsel elicited testimony that, in the summer of 2013, Robert robbed the Garrard Market while wearing a mask and holding a gun on the clerk. When the Commonwealth objected, the trial court excused the jury and conducted a hearing of more than two hours to address the preliminary question of the admissibility of Kenneth's proffered reverse KRE 404(b) evidence. Kenneth's counsel called this evidence "the core of [his] defense."[8] He claimed the evidence was proof that Robert was the actual perpetrator, or "aaltperp."[9] At the conclusion of the hearing, the trial court sustained the objection and excluded this alternate perpetrator evidence. Kenneth challenges that evidentiary ruling.

         Kenneth told the trial court, and now this Court, that the evidence would show Robert's prior robbery was so unique and so similar to the charged crime that the same person had to have committed both. He said, "It was a robbery not only with a gun, but the same firearm, and putting a mask over his face, and he [Robert] robbed the same store."[10] As we discuss below, even this short sentence is an overstatement of similarities between the two crimes. Furthermore, calling the circumstances of either crime "unique" is an exaggeration.

         The rules of evidence govern cases, like this one, in which a defendant seeks "to introduce evidence that another person committed the offense with which he is charged." Beaty v. Commonwealth, 125 S.W.3d 196, 207 (Ky. 2003)[11](citation and internal quotation marks omitted). Consequently, before a jury gets to hear and see evidence of an alternate perpetrator, that evidence must be relevant, KRE 401; it must not be excluded by any law or rule of evidence, KRE 402; and its probative value must be such that it is not "substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." KRE 403.

         Kenneth had no direct evidence to contradict Robert's testimony that Kenneth was participating directly in the robbery and Robert was in his house across the street watching. Despite the trial court's suggestion, Kenneth declined to ask Robert if he did more than watch. Instead, Kenneth believed it permissible to launch directly into leading questions about the prior robbery Robert committed.

         Kenneth asserted that the Commonwealth already presented evidence establishing that Robert had a motive for committing the robbery (to obtain money) and the opportunity to do so (he lived across the street and was home at the time). That, he argued, provided sufficient basis for presenting the reverse 404(b) evidence to demonstrate the crime was committed consistent with Robert Turner's modus operandi, [12] and such evidence was proof of the real perpetrator's identity, and proof of identity is an exception to KRE 404(b)'s exclusion of evidence. (Appellant's brief, p. 12).

         For the reasons that follow, we are not persuaded by this argument. We agree with the trial court's ultimate conclusion that the evidence of Robert's prior crime is too dissimilar from the charged crime to qualify as an exception to KRE 404(b)(1), and that even if it would qualify under that rule as proof of identity, its probative value is substantially outweighed under KRE 403 by the danger of undue prejudice and confusing or misleading the jury. See Futrell v. Commonwealth, 471 S.W.3d 258, 286 (Ky. 2015) ("undue prejudice, i.e., a risk that the evidence will induce the jury to base its decision on emotion or some other improper ground" (emphasis in original)). We reach agreement on these points by methodically applying the evidentiary rules to the proffered evidence.

         First, we will consider that proffer.

         1. Evidence of Robert's participation in a prior robbery

         By avowal, Kenneth presented evidence that a little more than three months before the charged robbery, Jordan Green, Jeremy Bowling, and Robert Turner robbed the clerk inside the Garrard Market. Although Robert was a juvenile at the time, this evidence was a public record, having been presented at Jordan Green's trial - a trial conducted by the same trial judge who now presides in Kenneth's case. Green v. Commonwealth, 2014-SC-000652-MR, 2016 WL 3370912 (Ky. June 16, 2016). The facts of that prior robbery are set forth in the Supreme Court's review of Green's trial. As it pertains to Kenneth's contention that the facts of both crimes were strikingly similar and unique, the opinion states as follows:

During the evening of June 10, 2013, Jordan Green gathered with some friends at the home of Robert and Bobby Turner. Among those in attendance were Robert and Bobby Turner, Jeremy Bowling, and Anthony Wallace. During the evening, Green suggested to the group that they rob the Garrard Market, a nearby convenience store. There was only a short distance between the Garrard Market and the Turner residence; the residence was across the street and offset from the south side of the market. Subsequently, Green devised a plan to carry out the robbery.
It was agreed that Bowling and Robert Turner would commit the robbery. Wallace would provide the pair with a .45 caliber Hi-Point handgun. Green advised that Robert Turner should be armed with the handgun, given that he was a juvenile. Additionally, Bobby Turner and Green would serve as lookouts inside the store. Green instructed the group that he would appear to be acting as an innocent bystander during the robbery.
At 10:00 p.m. that same evening, Goitom Teklhymnot was working at the Garrard Market filing the daily balance sheets as part of the process to close the store for the day. After the sole remaining customer in the store left, Green and Bobby entered. However, before Green entered he stared off in the direction of the Turner residence. This was a signal to Bowling and Robert Turner to prepare for the robbery.
. . . Bowling and Robert Turner entered. Next, Robert Turner drew the handgun and pointed it at Teklhymnot. In response, Green backed away from the counter and walked slowly to the door of the store, stopping there to watch the robbery.
Bowling then went behind the counter and struck Teklhymnot on the head knocking him to the door. Thereafter, Bowling opened a cash drawer and seized cash. After watching Bowling obtain the money, Green departed. Moments later, Bowling and Robert Turner also left, following Green. The three men split up shortly thereafter, with Bowling and Robert Turner going to the residence of their friend Logan Bowman.

Id. at *1.

         The Green opinion makes no direct mention of masks; however, if during the robbery Robert was wearing a mask, it failed to conceal his identity. The investigating officer, Detective Warner, narrated the surveillance tape for the jury and "was properly permitted . . . to identify the individuals present during the robbery." Id. at *5. Notwithstanding Green's claim that Detective Warner "misidentified [twins] Bobby and Robert Turner[, ]" the Supreme Court concluded that "Detective Warner correctly identified the Turners in his trial testimony." Id. at *3 n.1. However, in the case now before us, Robert testified by avowal, notwithstanding Green, that he did wear a mask during the June 10, 2013 robbery.[13] Consequently, for this review, we will presume Robert wore a mask, although we also note that wearing a mask and covering one's face with a shirt are not the same.

         There are also discrepancies regarding the weapons used. Kenneth argues the same gun was used in both robberies, but that appears not to be so. In Green, the gun used was a .45 caliber handgun. The gun used in the subject robbery was a .38 caliber handgun. Unlike his testimony regarding masks, Robert's avowal testimony about the gun was equivocal. He could not say whether the same handgun was used in both robberies; he created even more confusion regarding the weapon when he said he was carrying a .22 caliber handgun when he was apprehended for the first robbery. When Kenneth's counsel asked Robert if the same gun was used in both robberies, Robert said only, "I believe so."[14] On redirect, the Commonwealth asked him whether he was sure the same gun was used, and he responded, "Not really."[15] The evidence does not support a finding that the same gun was used in both robberies. Therefore, we can acknowledge only that a handgun was used in both armed robberies, a fact we fail to find unique.

         Furthermore, the trial court, while seeking confirmation for Kenneth's modus operandi theory, examined statements by Kevin Smoot and Zla Holder to see if either said Robert was carrying the .38 caliber weapon when Mr. Gebremedhin was robbed, as he was carrying the .45 caliber weapon when Mr. Teklhymnot was robbed. That similarity was eliminated when the trial court saw Kevin Smoot's admission that he was the gunman in the second robbery.[16]

         So, what facts are common to both robberies? We start at the beginning. Both robberies were conceived at the Turners' home. However, the first robbery was Green's idea. Robert admitted that the idea for the second robbery originated with him when, in answer to Zla Holder's question about where to get some money, Robert suggested the market.

         Aside from Robert, the robberies were committed by mutually exclusive groups. The perpetrators of the first robbery were Bobby Turner, Green, and Bowling. Nothing implicates any of these three in the second crime.

         The plans for and execution of the separate robberies (some would say the modi operandi) were quite different. The first robbery was committed inside Garrard Market while it was still open for business, with Bobby Turner and Green pretending to be innocent bystanders while Robert and Bowling assaulted the clerk and secured money from the cash register and stole store merchandise. The second robbery occurred outside the store, ambush style, well after closing when the perpetrators took cash and personal property from the victim such as a cell phone, credit cards, and lottery tickets.

         We have assumed the perpetrators of the first robbery wore masks, whereas the second set of robbers covered their faces with their shirts. The weapon used in the first robbery was a .45 caliber handgun. The only weapon associated with the second robbery is Anthony Wallace's .38 caliber handgun and Kevin Smoot wielded it, not Robert.

         Kenneth says the victim of both robberies was Garrard Market. Not so. Each "robbery is an offense against a person . . . ." Stark v. Commonwealth, 828 S.W.2d 603, 607 (Ky. 1991), overruled on other grounds by Thomas v. Commonwealth, 931 S.W.2d 446 (Ky. 1996). The victim of the first robbery was Mr. Teklhymnot as he worked inside the market; the victim of the second robbery was Mr. Gebremedhin as he approached his van on his way home.

         When the perpetrators fled the separate scenes of their respective crimes, they sought refuge in different places. After the first robbery, "Bowling and Robert Turner [went] to the residence of their friend Logan Bowman." Green, 2016 WL 3370912, at *1. After the second robbery, the perpetrators returned directly to the Turner residence.

         Revisiting Kenneth's claim of the similarity and uniqueness of the two crimes demonstrates its exaggeration. He said, "It was a robbery not only with a gun, but the same firearm, and putting a mask over his face, and he [Robert] robbed the same store." This does not accurately describe the second crime. True, each crime was a theft and the perpetrators of each crime used a deadly weapon; however, these two facts are nothing more than elements of the crime under KRS[17]515.020(1)(b), robbery in the first degree. In Clark v. Commonwealth, the Supreme Court "stress[ed] the fundamental principle that conduct that serves to satisfy the statutory elements of an offense will not suffice to meet the modus operandi exception" of KRE 404(b)). 223 S.W.3d 90, 98 (Ky. 2007). Both crimes were committed by multiple individuals (another element of the complicity charge under KRS 502.020), but no one took part in both robberies, unless we infer from Kenneth's evidence of the prior crime that Robert did. And while the perpetrators of both crimes may have hidden their faces, they did so in different ways. Lacking any specific commonality, there is nothing more to say except "it is not unusual for a bank robber to attempt to conceal his identity by using a hood, bandana or ski mask . . . ." United States v. Woods, 613 F.2d 629, 640-41 (6th Cir. 1980) (Merritt, J., concurring). The elements shared by these two robberies are either elements of the crime that cannot support a modus operandi claim, or they are so common they can be found in multitudes of armed robberies. Every element Kenneth claims as unique is, in fact, entirely commonplace.[18]

         Now we must apply the evidentiary rules to this proffered evidence.

         2.KRE ...

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