FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NOS. 14-CR-00051-003, 14-CR-00051-002
FOR APPELLANTS Gene Lewter Assistant Public Advocate
Department of Public Advocacy Frankfort, Kentucky Jeffrey A.
Lawson Covington, Kentucky
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, JONES AND KRAMER, JUDGES.
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 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 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.
AND PROCEDURAL HISTORY
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. 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.
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.
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.
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.
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."
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.
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.
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.
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.
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).
Admission of evidence about "Love and
Loyalty" affiliation was not abuse of
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).
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
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.
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
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)).
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.
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,
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"
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
(R. 104-05 (2015-CA-1944)).
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.
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.
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.
Excluding evidence of a witness's prior crime was
not an abuse of discretion.
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." He claimed the
evidence was proof that Robert was the actual perpetrator, or
"aaltperp." At the conclusion of the hearing, the
trial court sustained the objection and excluded this
alternate perpetrator evidence. Kenneth challenges that
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." 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.
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)(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.
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.
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,
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,
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
we will consider that proffer.
Evidence of Robert's participation in a prior
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
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
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.
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. 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.
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." On redirect, the Commonwealth asked him
whether he was sure the same gun was used, and he responded,
"Not really." 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.
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.
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.
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.
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.
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.
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.
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.
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
KRS515.020(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
must apply the evidentiary rules to this proffered evidence.