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McLemore v. Commonwealth

Supreme Court of Kentucky

December 19, 2019



          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


          WRIGHT, JUSTICE.

         Appellant, 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.

         I. BACKGROUND

         On 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.

         There 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.

         Trey 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.

         According 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.

         Damion 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.

         On 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.

         Simonton would later deny any recollection of where he was on the day of the shooting, and deny seeing Weaver on that day.

         On 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.

         Anderson 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 those convictions.

         II. ANALYSIS

         A. Tramber's shooting

         McClemore 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.

         We 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.

         Finally, 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."

         The bar 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.

         We have held:

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. 2014). Furthermore:

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.'"

         Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.10[4][b] (4th ed. 2003) (internal citations omitted).

         On 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).

         In line 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."

         The 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 and motive.

         We have 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 ...

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