APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A. C. MCKAY
CHAUVIN, JUDGE NO. 15-CR-001328
COUNSEL FOR APPELLANT WILLIAM MCLEMORE: Daniel T. Goyette
Louisville Metro Public Defender's Office Joshua Michael
Reho Louisville Metro Public Defender's Office
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Gregory C. Fuchs Assistant Attorney General
William McLemore appeals as a matter of right, Ky. Const.
§ 110(2)(b), from a judgment of the Jefferson Circuit
Court convicting him of murder, first-degree assault, and
first-degree wanton endangerment. He was sentenced to
thirty-five years for these crimes. On appeal, McLemore
argues the trial court erred in: (1) allowing the
Commonwealth to present evidence that one of his
co-defendants had been shot in the months leading up to the
murder; (2) ruling that McLemore could not call a particular
impeachment witness, as it found the witness had a Fifth
Amendment right not to testify; and (3) denying
McLemore's right to a speedy trial. For the following
reasons, we affirm the trial court.
August 27, 2014, Destin "Blair" Lindsay was shot on
Saint Louis Avenue. McLemore later told Sergeant Scott Beatty
of the Louisville Metro Police that he had been "up the
street" on Saint Louis at the time of the shooting.
According to Michael Dunn, an acquaintance of Lindsay and
McLemore, an ongoing "beer between Saint Louis and
Market Street led to Lindsay's shooting.
are many varying accounts of the events which took place
after Lindsay's shooting. Dunn said he met up with
McLemore and three other men at the park on Saint Louis and
the five men decided to retaliate for Lindsay's shooting.
He said McLemore and two of the other men said they knew who
had shot Lindsay. Dunn said they walked to 37th Street and
approached a house and the other four opened fire. According
to Dunn, he pulled the trigger on his own gun several times,
but it did not fire.
Anderson, one of the other men Dunn said he met up with in
the park, provided a different version of events. According
to Anderson, when he arrived at the Saint Louis Park after
Lindsay had been shot, Dunn was already there. He said he did
not see either McLemore or Demarkus Tramber (one of the other
men identified by Dunn). Anderson said he drove down 37th
Street with Dunn and Duwan Mason (another of the men
identified by Dunn) and parked. A second car parked behind
him. Anderson said he remained with the vehicles while the
others got out. According to Anderson, he did not know the
identity of the individuals in the other car. Dunn and Mason
returned to Anderson's car shortly after he heard
gunshots. Anderson said he knew McLemore, but he did not name
him as one of the individuals involved in the shooting.
to Cierra Twyman, she was sitting on the porch with her
boyfriend, the couple's daughter, Ne'Riah, and her
boyfriend's brothers when she saw a group of men
approach. She heard them talking to one another and then
heard gunshots. Twyman was shot, as was her sixteen-month-old
daughter, Ne'Riah. Ne'Riah did not survive the
gunshot wound to the torso she sustained.
Thompson, Twyman's cousin, testified he saw McLemore,
Anderson, and a third man get out of a car on the corner of
Market Street and 37th Street. He indicated that McLemore
told him he was "ready to go handle something and shoot
back out." Thompson heard gunshots around thirty seconds
later. Thompson identified McLemore and Anderson by
photograph and then later identified McLemore in court,
though he said he did not personally know the two, but had
seen them a few times in the past.
September 6 Cedric Weaver was cited for trafficking. During
his discussion with police, Weaver said he had seen the
shooting that led to Ne'Riah Miller's death on August
27. He said that on the day of Ne'Riah's shooting, he
had been sitting on a porch with Dujuan "Budda"
Simonton. He said he saw a group of people walk down Market
Street and ask people if they were "from Market."
When someone responded in the affirmative, the men pulled out
their guns and started shooting. According to Weaver, he saw
both McLemore and Tramber shooting at people "a couple
houses down from NaT'hiah's home". Weaver
claimed Simonton was in the house when the shots were fired.
would later deny any recollection of where he was on the day
of the shooting, and deny seeing Weaver on that day.
September 11, 2014, McLemore was jointly indicted with
Tramber for one count of murder, one count of first-degree
assault, ten counts of attempted murder, and nine counts of
first-degree wanton endangerment. Both McLemore and Tramber
were then jointly re-indicted for the same offenses along
with Anderson, Dunn, and Mason in a superseding indictment.
and Dunn both entered plea agreements with the Commonwealth
that required them to "testify truthfully in any
proceeding related to his co-defendants." McLemore,
Mason, and Tramber all proceeded to trial and all three were
convicted of murder, first-degree assault, and four counts of
first-degree wanton endangerment. Tramber waived his right to
directly appeal and was sentenced separately. McLemore and
Mason were each sentenced to thirty-five years'
imprisonment. This case involves McLemore's appeal from
first asserts that the trial court erred in allowing the
admission of evidence that Tramber, one of his co-defendants,
had been shot three months prior to the date of the shooting
herein. He argues that the evidence was not relevant; or, in
the alternative, that its probative value was outweighed by
its undue prejudice.
begin our analysis of this issue by examining this
Court's evidentiary rules. Kentucky Rules of Evidence
(KRE) 401 defines relevant evidence as "evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the evidence."
Further, KRE 402 provides that
All relevant evidence is admissible, except as otherwise
provided by the Constitutions of the United States and the
Commonwealth of Kentucky, by Acts of the General Assembly of
the Commonwealth of Kentucky, by these rules, or by other
rules adopted by the Supreme Court of Kentucky. Evidence
which is not relevant is not admissible.
KRE 403 deals with the exclusion of relevant evidence, and
reads, "[a]lthough relevant, evidence may be excluded if
its probative value is 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."
for evidence to meet to be considered relevant is low.
Blair v. Commonwealth, 144 S.W.3d 801, 808
(Ky. 2004) ("To show that evidence is relevant, only a
slight increase in probability must be shown.").
Therefore, McLemore's argument that the trial court erred
in admitting evidence that Tramber had been shot is based on
his assertion that the evidence fails the KRE 403 balancing
test. He insists the probative value of the evidence was
substantially outweighed by the danger of undue prejudice.
A proper balancing under KRE 403 requires that a trial court
consider three factors: the probative worth of the evidence,
the probability that the evidence will cause undue prejudice,
and whether the harmful effects substantially outweigh the
probative worth. Barnett v. Commonwealth, 979 S.W.2d
98, 100 (Ky.l998). Thus, if the possibility of undue
prejudice outweighs the probative worth of the evidence
presented, it should be excluded.
Yates v. Commonwealth, 430 S.W.3d 883, 897 (Ky.
What is contemplated as "unfairly" or
"unduly" prejudicial is evidence that is harmful
beyond its natural probative force: "Evidence is
unfairly prejudicial only if... it 'appeals to the
jury's sympathies, arouses its sense of horror, provokes
its instinct to punish,' or otherwise 'may cause a
jury to base its decision on something other than the
established propositions in the case.'"
G. Lawson, The Kentucky Evidence Law Handbook,
§ 2.10[b] (4th ed. 2003) (internal citations
appellate review, we will not overturn a trial court's
evidentiary rulings absent an abuse of discretion.
Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "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). Further,
"in reviewing the trial judge's balancing under KRE
403, the appellate court must view the evidence in the light
most favorable to its proponent, giving the evidence its
maximum reasonable probative force and its minimum reasonable
prejudicial value." Major v.
Commonwealth, 177 S.W.3d 700, 707 (Ky. 2005).
with this precedent, we examine the probative value of the
evidence taken in a light most favorable to the Commonwealth.
"The 'probative value' or 'probative
worth' of evidence is a measure of how much the evidence
tends to make the fact it is introduced to prove more or less
probable." Hall v. Commonwealth, 468 S.W.3d
814, 823 (Ky. 2015). The evidence in question concerned the
shooting of Tramber (one of MeLemore's co-defendants)
three months prior to the shooting in the present case. In
admitting the evidence, the trial court found that "the
res gestae of this particular case may stretch back to
[Tramber's shooting] because that's where the . . .
bad blood if you believe the Commonwealth's version of
events may have first. . . gone bad and the roots of whatever
happened [in this case] . . .can be traced back to"
Tramber's shooting. The trial court also indicated that
"[i]t also goes to motive. . . . It's highly
probative for sure."
Commonwealth sought to prove that the motive for McLemore and
his co-defendants to perpetrate the charged crimes was to get
revenge for another shooting that happened that day-and that
the two shootings on August 27 were not an isolated incident.
The Commonwealth called Louisville Metro Police Detective
Chad Johnson to the stand. Johnson testified that he had
investigated Tramber's shooting on May 29. Tramber told
Johnson that the shooters were "a group of black
males" he believed to be from Market Street. The
Commonwealth's case centered on its belief that the
shootings were related to bad blood between the St. Louis and
Market Street neighborhoods. The trial court found that
Tramber's shooting in May provided evidence of res gestae
held "where evidence is needed to provide a full
presentation of the offense, or to complete the story of the
crime . . . there is no reason to fragment the event by
suppressing parts of the res gestae." Webb v.
Commonwealth,387 S.W.3d 319, 326 (Ky. 2012) (internal
citation omitted). Further, we have stated that the Kentucky
Rules of Evidence are "intended to be flexible enough to
permit the prosecution to present a complete, un-fragmented,
un-artificial picture of the crime committed by the
defendant, including necessary context, background and
perspective." Major, 177 S.W.3d at 708. Because
"proof of motive and opportunity is certainly probative
enough for admission under KRE 403," Gray v.
Commonwealth,480 S.W.3d 253, 267 (Ky. 2016), we ...