Opinion
NO. 2013-CA-001064-MR
06-05-2015
DEANDRE FOULKS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 12-CR-00494
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND VANMETER, JUDGES. VANMETER, JUDGE: DeAndre Foulks appeals his Robbery First Degree conviction from the McCracken Circuit Court, raising a number of claims of error. Finding no error, we affirm his conviction and sentence.
I. Facts and Procedure
A Kentucky Fried Chicken restaurant ("KFC") in Paducah, Kentucky, was robbed in August 2012. The restaurant staff working at the time included Bobby Doyle, Diedre Harris, Larry Quarles and Cindy Watkins. The robbery was perpetrated by two young black men who were masked by what appeared to be a cut up sock on their faces. A few minutes before the two entered the store, a customer entered the store and asked Watkins for a glass of water. When the two perpetrators entered the store, Harris was working the drive-thru window and was preparing to give a customer, Amanda Montavalo, her order. One of the perpetrators told Harris and Watkins to get down on the ground. Montavalo saw Harris suddenly disappear, saying to Montavalo "help me we're being robbed." Montalavo then saw a man with a gun about three feet from Harris. Montalavo drove away and proceeded to call 911, giving a description to the officers of the gunman as "tall, about 6 feet."
Watkins identified one of the perpetrators as the individual who had minutes before entered the store and requested a glass of water, based on his clothes, height and build. Fingerprints collected from a promotional mat on the counter matched Carlitas Shumpert's prints. A Paducah police officer responding to the robbery call noticed a distinctive 2000 gold Lincoln Navigator which he identified as frequently parked at the Shumpert residence. In addition, video recordings confirmed this distinctive car in the area of the KFC at the time of the robbery.
Harris identified the gunman as Foulks immediately and unequivocally upon seeing and hearing him tell her "give me your money" while holding a gun to her. Harris stated that Foulks had been friends with her cousin and was always over at her Aunt Felicia's house playing basketball and hanging out. Harris stated that they were well enough acquainted that if they were to see each other out on the street, they would stop and say hello.
After the perpetrators left the restaurant, Harris told Quarles she had recognized Foulks as the man with the gun. When the first officer arrived on the scene, Harris immediately identified Foulks as one of the perpetrators of the robbery to the officer without any prompting. Harris stated she knew it was him not only by his voice, but also by his height, weight, and skin color. Harris never second guessed her identification or questioned whether Foulks was one of the perpetrators.
Immediately following the robbery, the police asked Harris whether she could identify an individual that the police had apprehended close to the KFC. An officer drove Harris by the man twice; upon her second viewing, she identified the man as Foulks with the qualifications that she was not wearing her glasses and that "he must have changed clothes." That man was not Foulks, but a random individual not involved in the crime. However, Harris viewed him from a distance, in a moving car, at night, and, as noted, she was not wearing her glasses for correcting near-sightedness. The following day, Detective Matt Smith showed Harris a photograph of Foulks, without identifying information, in order for the police to confirm they had the correct person whom Harris was identifying. Harris identified the photograph as Foulks.
Foulks and Shumpert were each charged with Robbery in the First Degree and tried jointly. Additional evidence implicating Foulks was a pre-trial statement from Foulks' girlfriend, which she attempted to recant at trial. The jurors had difficulty during deliberations. At one point, the trial judge called them back into the courtroom to ask if they were making progress or if they were deadlocked. Upon advising the judge that they were deadlocked, the judge read them an Allen charge in conformity with RCr 9.57(1). The jury then returned to deliberate for an additional two hours, asking for help regarding the different instructions for Foulks and Shumpert and for the definition of "facilitation." Ultimately, the jury returned a verdict finding Foulks guilty of Robbery in the First Degree and Shumpert guilty of Robbery in the Second Degree. Foulks received a sentence of 14 years, which he now appeals.
In Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896), the Court held that a trial court may inform the jurors of their duty to decide the case, if they can do so without offending each other's conscience or sacrificing their own true beliefs.
Kentucky Rules of Criminal Procedure.
II. Analysis
Foulks raises three issues on appeal: 1) the trial court erred by failing to suppress the identification evidence provided by Harris both in and out of court; 2) the trial court erred by allowing a joint trial of Foulks and Shumpert; and 3) the trial court erred by soliciting the jury about the status of deliberations in violation of RCr 9.57. We address these issues in turn.
A. Failure to suppress identification evidence.
The oft-stated standard of review with respect to denial of a suppression motion involves a two-step process. "We review the trial court's factual findings for clear error, and deem conclusive the trial court's factual findings if supported by substantial evidence. The trial court's application of the law to the facts we review de novo." Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011) (internal footnotes and citations omitted); see also Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010); Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002).
The trial court made findings of fact regarding Harris' identification of Foulks, specifically that "Harris knew Foulks personally and was certain just by hearing his voice that Foulks was the man who robbed KFC." The trial court further found:
4. . . . There is no substantial likelihood of misidentification, Harris personally knew Foulks, she was able to recognize his voice before even turning around and once she did turn around it only confirmed what she already thought. Harris had been around Foulks probably 1,000 times at her aunt's house previously. Harris told police who it was that she believed robbed her, his name and that she was certain it was him, right after the crime occurred.
5. Harris did make a misidentification during the "show up" when Officer Davie drove her by the apprehended suspect shortly after the crime occurred.
However, it was dark at night, Harris did not have her glasses, and the police cruiser never actually stopped so that Harris could get a good look at the apprehended suspect. But Harris knew who she believed robbed her and the next day when shown a picture and asked if this was Foulks she confirmed that the picture was Foulks. The fact that she misidentified a man at night while driving by in a car without her glasses as Foulks does not make her later identification unreliable.Based on the record, we hold that the trial court's findings of fact are supported by substantial evidence.
6. Further, Foulks argues that it is highly suggestive that Harris was only shown one photo that next day. However, the Court does not find that it was suggestive because Harris had already identified the man who robbed her as Foulks. Detective Smith was just confirming that they were talking about the same Deandre Foulks when he showed her the picture. Harris knew who Foulks was and stated she could have picked him out without the photograph as the man she believed robbed KFC.
When dealing with eyewitness identification, standards have been put in place in order to safeguard defendants from misidentification and wrongful conviction. Recently, the Kentucky Supreme Court addressed pre-trial identifications, stating
pretrial identification should be excluded if it arose from an unnecessarily suggestive identification procedure and if the circumstances in their totality suggest that the identification is unreliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Ledbetter v. Edwards, 35 F.3d 1062 (6th Cir.1994). . . . As the Supreme Court has noted, in these circumstances, i.e., short of a showing that suggestive
identification procedures have created a substantial likelihood of irreparable misidentification,Malone v. Commonwealth, 364 S.W.3d 121, 129-30 (Ky. 2012).
[the identification] evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.
Manson v. Brathwaite, 432 U.S. at 116, 97 S.Ct. 2243. The trial court did not err here by leaving to the jury the assessment of the evidence identifying [the perpetrator].
Foulks was not initially identified through a confrontation situation setup by government agents. Harris identified Foulks from the robbery through her own personal knowledge of him. The photograph identification arranged by Detective Smith was merely to confirm the police had the same person in mind that Harris was identifying. In Barnes v. Commonwealth, 410 S.W.3d 584 (Ky. 2013), the Kentucky Supreme Court upheld a conviction based, in part, on an out-of court identification in which a witness was asked to confirm her identification of the defendant based upon a single photograph. The Court stated, "[t]here's certainly nothing wrong with a witness being allowed to reaffirm the accuracy of her previous identification as long as that previous identification has not been impermissibly suggestive or tainted." Id. at 587-88. The fact that Harris misidentified a man who was not Foulks, in our view and as noted in Manson, goes to the weight of the identification testimony that has some questionable feature. 432 U.S. at 116, 97 S.Ct. at 2254. The trial court did not err in denying Foulks' motion to suppress.
B. Motion for a Separate Trial
Foulks moved for a separate trial from Shumpert, initially arguing to the trial court that severance was necessitated by a Bruton issue. However, on appeal, Foulks alleges the need for separate trials was due to the antagonistic defenses between the defendants and the introduction of certain evidence against Shumpert was unduly prejudicial to Foulks. Because Foulks alleges a reason not properly presented to the trial court for consideration, he requests palpable error review under RCr 10.26.
In Bruton v. United States, 391 U.S. 123, 125, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476 (1968), the Supreme Court held that in a joint trial of codefendants, an extrajudicial statement of one codefendant inculpating the other was inadmissible as violating the right of cross-examination secured by the Confrontation Clause. See also Commonwealth v. Stone, 291 S.W.3d 696 (Ky. 2009).
In Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009), the Kentucky Supreme Court discussed the palpable error rule of RCr 10.26, and stated,
an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is "palpable," we have explained, only if it is clear or plain under current law, Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006), and in general a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.2005). But see United States v. Olano, 507 U.S. at 735, 113 S.Ct. 1770 (discussing the
federal "plain error" standard and noting, without deciding, that there may be forfeited errors so fundamental that they "can be corrected regardless of their effect on the outcome."). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006).283 S.W.3d at 668.
Under the clear holding of Jones, palpable error relief is not available unless three conditions are present. The error must have (1) been clear or plain under existing law, (2) been more likely than ordinary error to have affected the judgment, and (3) so seriously affected the fairness, integrity or public reputation of the proceeding to have been jurisdictionally intolerable.
Jointly-indicted defendants are not entitled to automatic severance upon request. Commonwealth v. Rogers, 698 S.W.2d 839, 840 (Ky. 1985). Under RCr 8.31, separate trials may be granted only on a showing of prejudice. A defendant must prove that joinder would be so prejudicial as to be "unfair" or "unnecessarily or unreasonably hurtful." 698 S.W.2d at 840; Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977); Ware v. Commonwealth, 547 S.W.2d 174, 176 (Ky. 1976). In Hoskins v. Commonwealth, 374 S.W.2d 839 (1964), the court provided guidance as to what a defendant must prove for severance to be granted:
[T]he mere fact that evidence competent as to one defendant but incompetent as to the other may be
introduced is not alone sufficient to establish such prejudice as to require the granting of separate trials. Ordinarily, there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other, e.g., one defendant's admissions directly implicate the other.Id. at 842.
Foulks alleges that the evidence indicating Shumpert's involvement was stronger than the evidence supporting his own involvement. Regardless of the strength of the evidence against either defendant, the evidence was admissible at their joint trial and would have been admissible at both trials had they been tried separately. Neither defendant took the stand nor made inculpatory statements about the other. Foulks was not unduly prejudiced by any evidence introduced on behalf of Shumpert because the Commonwealth's theory was that they acted together, the same theory which would have been presented had they been tried separately. No error, let alone palpable error, occurred.
C. Trial Court's Allen Charge to the Jury.
Foulks final issue concerns the jury's deliberations and whether the trial court erred by reading an Allen charge pursuant to RCr 9.57. Foulks claims the trial court's decision to ask the jurors about the status of their deliberations and to read the RCr 9.57 instruction resulted in improper coercion. Foulks failed to object in the trial court but has requested that we review this matter for palpable error.
RCr 9.57 Deadlocked jury; instruction; polling:
(1) If a jury reports to a court that it is unable to reach a verdict and the court determines further deliberations may be useful, the court shall not give any instruction regarding the desirability of reaching a verdict other than one which contains only the following elements:
(a) in order to return a verdict, each juror must agree to that verdict;
(b) jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(c) each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors;
(d) in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced it is erroneous; and
(e) no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.
(2) The Court shall not poll the jury before a verdict is returned.
When analyzing whether a trial court has coerced a jury verdict, the "ultimate test of coercion is whether the instruction actually forces an agreement on a verdict or whether it merely forces deliberation which results in an agreement." Bell v. Commonwealth, 245 S.W.3d 738, 742 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008). The analysis focuses on the totality of the circumstances. Bell, 245 S.W.3d at 742. Time lapse between comment or instruction and verdict is instructive, but not decisive. Commonwealth v. Mitchell, 943 S.W.2d 625, 628 (Ky. 1997). An important consideration is that "the words and acts of a presiding judge have great weight with juries, and for that reason . . . [the judge] should at all times be cautious in what he [or she] says or does in the presence of the jury." Bell, 245 S.W.3d at 742 (internal quotation and citation omitted). However, "statements which merely impress upon the jury the propriety and importance of coming to an agreement do not rise to the level of reversible error." Mitchell, 943 S.W.2d at 628.
After five hours of deliberation, the trial judge called the jurors to inquire as to whether a verdict was going to be possible or if they were deadlocked. The jury communicated to the judge that they were deadlocked, which is a prerequisite for an RCr 9.57 instruction to be read. The judge then read the standard instruction for a deadlocked jury, not going outside of the parameters described by RCr 9.57. No part of this instruction was coercive or threatening to the jury. It did not demand a verdict or pressure any single juror to agree to a verdict.
Again, the ultimate test is whether the instruction forces deliberation or forces a verdict. Bell, 245 S.W.3d at 742; Abbott v. Commonwealth, 352 S.W.2d 552, 554 (Ky. 1961). Foulks' jurors returned to deliberate for two additional hours after receiving the RCr 9.57 instruction. In those two hours, they asked for help with an instruction and a definition, indicating they were having a serious debate as to what each defendant should be convicted of, not just agreeing to reach a verdict. As noted above, the time lapse is instructive. In this instance, two hours is a reasonable amount of time to allow for jurors to finish genuine deliberation, especially after five hours of prior deliberation.
We acknowledge that in Bell, the court reversed a conviction for palpable error when the trial court had read the RCr 9.57 instruction without the jury announcing deadlock. In Bell, however, the trial court had also called in the jury foreperson twice and the entire jury once during its initial six-hour deliberation, and the jury reached a verdict less than twenty minutes after the final summons. In summarizing the circumstances, the court stated,
This being the trial court's third contact with the jury during its deliberations, any reasonable juror, placed in such a situation, would have received the clear and distinct impression that the trial court was concerned or surprised that deliberations had continued for as long as they had. A reasonable juror would have gotten the clear message from the judge that it was "time for a verdict." The character of the foreperson's responses and his repeated apologies made it equally apparent that he had received such a message.Bell, 245 S.W.3d at 742. The only similarity between the instant case and Bell was the trial judge's calling in the jury and reading the Allen charge prior to the jury advising the court that it was deadlocked. The trial court in no other way interfered in the jury's deliberations, and the jury took an additional two hours to reach a verdict following the court's instruction. While the trial court erred by reading the Allen charge prior to the jury's announcement of deadlock, we do not believe the error was more likely than ordinary error to have affected the judgment, or that the error so seriously affected the fairness, integrity or public reputation of the proceeding as to be jurisdictionally intolerable. Jones, 283 S.W.3d at 668. Foulks, thus, has not shown a palpable error.
III. Conclusion
For the above stated reasons, the McCracken Circuit Court's judgment is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Molly Mattingly
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky