Opinion
NO. 2017-CA-000659-MR
07-13-2018
FABIAN THOMAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Samuel N. Potter Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 16-CR-00301 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND D. LAMBERT, JUDGES. JONES, JUDGE: The Appellant, Fabian Thomas, was tried before a jury in McCracken Circuit Court. The jury found Thomas guilty of one count of being a convicted felon in possession of a firearm. The jury recommended, and the circuit court imposed, a five-year sentence. Thomas now appeals his conviction and sentence.
Thomas requests us to vacate his conviction and remand his case to the circuit court. Thomas argues that we should do so because the circuit court erred when it allowed the prosecution to introduce evidence that: (1) he had been the victim of a burglary and assault three months prior to the date of the alleged offense; and (2) that he was involved in a dispute with the Shumpert family at a local mall and allegedly fired a gun outside the home of Sheila Shumpert on the same day as the offense. Having reviewed the record in conjunction with applicable legal authority, we AFFIRM.
I. BACKGROUND
Thomas was indicted on two counts: (1) possession of a firearm by a convicted felon; and (2) for the offense of first-degree wanton endangerment. These charges stemmed from Thomas's alleged conduct on May 6, 2016. On that date, Thomas reportedly pointed a handgun at Sheila Shumpert and her family as he drove by their house, and then fired the gun into the air near the end of their street.
Thomas was arrested on May 19, 2016. On May 24, 2016, the circuit court issued a search warrant for a forensic examination of the white iPhone seized from Thomas following his arrest. The forensic examination revealed images of a gun and a vehicle matching the description of the one that drove by Sheila's residence on the evening in question.
Thomas pled not guilty to the charges. A jury trial was scheduled to begin on December 20, 2016. On that morning, the Commonwealth moved to dismiss the wanton endangerment charge with prejudice. Ultimately, the circuit court granted the motion. This left only the felon in possession of a firearm charge to be tried by a jury. Thomas's trial lasted approximately two days.
Detective Bennie Kaufman testified first for the Commonwealth. He testified that he was dispatched to investigate a burglary complaint at Thomas's residence on February 16, 2016. Kaufman testified that Thomas suffered a cut to his head during the alleged burglary, which required Thomas to receive several staples; however, no charges were filed because of Thomas's refusal to cooperate with prosecutors. Later testimony indicated that Thomas had identified members of the Shumpert family as the perpetrators of the break-in and assault.
Next, Patrolman John Smith testified for the Commonwealth. He testified that he was dispatched to investigate a fight at the Kentucky Oaks Mall on May 6, 2016. He testified that he arrived on the scene about 7:25 p.m., but did not see any unusual activity at the mall. Other testimony indicated that Thomas was shopping at the mall that day with his girlfriend, Tonya Laird, when members of the Shumpert family came up behind him and punched him in the face. Mall security and bystanders broke up the fight.
Next, Michelle Meinders, who lives near Sheila Shumpert's residence, testified that she was at her residence on May 6, 2016. She testified that she had just sat down to watch a movie when she heard what she believed was gunfire outside her home. Meinders recalled hearing the gunfire between 7:30 p.m. and 8:00 p.m. Meinders called 911 to report the gunfire.
Officer Bryant testified that he was dispatched to investigate possible gunfire heard outside Sheila Shumpert's residence on the evening of May 6, 2016. He arrived on the scene about 7:45 p.m. whereupon he talked to Sheila, her friend and guest that evening, Rashon Cheryl, and another neighbor, Michael Abbage. Officer Bryant testified that several officers looked for shell casings, but that none were found.
He also described to the jury the video taken from his body camera that night, which was played in court.
Sheila testified that she was standing in her front yard, along with some of her kids and grandkids, when a short, tan car drove by her residence. Sheila testified that she saw two people in the car—a white girl with blonde-looking hair, whom she identified as Tonya Laird, and a black male, whom she did not identify. Sheila also testified that she saw a gun and that, when the car was at the end of the street, she heard one or two gunshots.
Rashon Cheryl, who was standing outside with Sheila, testified that she was outside of Sheila's residence when she saw a black gun out the window of a car. Cheryl testified that she immediately got down on the ground; then, she went over to her car to get a view of the license plate number on the car that drove by, but she was unable to see the number.
Michael Abbage lives a few houses down from Sheila. He testified that his cousin was attempting to pull out of Abbage's driveway, when a car coming down the road almost hit his cousin. Abbage could not remember if he identified Thomas as the driver that night and denied that he identified Thomas to Detective Montgomery before the trial.
Next, Detective Montgomery testified about his investigation into the incident at the Shumpert residence. Detective Montgomery testified that he interviewed Sheila at her residence on two occasions, during which Sheila said Thomas was driving the car that had driven by her residence—a gold Ford Taurus. Detective Montgomery also testified that he talked to Cheryl on May 9, 2016, over the phone and that Cheryl said Thomas was driving the gold Ford Taurus; on May 11, 2016, Cheryl identified Thomas from a picture Detective Montgomery showed her. Detective Montgomery testified that he talked to Abbage on May 17, 2016, and December 19, 2016, and that on both occasions Abbage said Thomas was driving the Ford Taurus. Detective Montgomery also identified a picture at trial which came from the cell phone taken from Thomas. This picture showed Tonya Laird standing by a gold Ford Taurus. Detective Montgomery testified that Thomas admitted to him during an interview: (1) he had been involved in an altercation with the Shumperts on May 6, 2016, while shopping at the Kentucky Oaks Mall; (2) he was driving a gold Ford Taurus on the that day; (3) several members of the Shumpert family had broken into his home in February and pistol whipped him; and (4) later in the evening on May 6, 2016, someone from the Shumpert family called him and asked him why he did what he did that evening. Even so, Thomas denied that he was the individual responsible for brandishing and firing the gun outside Sheila's residence. In fact, he denied even owning a gun, stating to Detective Montgomery that he was afraid of guns.
The last witness for the Commonwealth was Detective William Hodges, who performed the forensic examination of Thomas's phone. Detective Hodges testified that his examination of Thomas's phone revealed images of a firearm and a gold Ford Taurus as well as several text messages regarding guns and ammunition.
Thomas presented two witnesses: his mother and his sister. Through these two witnesses, Thomas attempted to prove an alibi. Both witnesses testified that they saw Thomas on May 6, 2016. They described his appearance as being consistent with someone who had been in a fight earlier. Thomas's mother could not remember the exact time she saw Thomas, but indicated that it was still daylight. Thomas's sister testified that when Thomas arrived outside her residence, it was still daylight. She testified that Thomas accompanied her inside her residence and stayed for about an hour.
The jury found Thomas guilty of possession of a firearm by a convicted felon and recommended the maximum sentence of five years. The circuit court accepted the jury's verdict and recommendation. A final judgment was entered on April 10, 2017. This appeal followed.
II. ANALYSIS
On appeal, Thomas asserts that the introduction of evidence regarding the burglary complaint was irrelevant. He asserts that, when the Commonwealth dismissed the wanton endangerment charge, the evidence regarding both the incident at the mall and the gunfire outside Sheila's residence became irrelevant. Thomas preserved the first alleged error by objecting to the admission of testimony regarding the burglary at trial; however, he did not preserve the second issue regarding evidence of the altercation at the mall and ensuing gunfire. Accordingly, we must review the alleged errors using different standards of review.
A. Evidence that Thomas was Previously Burglarized
On the afternoon before trial, the Commonwealth indicated that it intended to call Detective Bennie Kaufman to testify about his investigation of the alleged burglary at Thomas's residence in February. Thomas's counsel objected that the burglary investigation was irrelevant and more prejudicial than probative because it created the impression that Thomas "was a drug dealer and a thug." The circuit court overruled the objection.
"The standard of review on evidentiary issues is abuse of discretion." Lewis v. Commonwealth, 475 S.W.3d 26, 31 (Ky. 2015). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
On appeal, Thomas asserts that the circuit court abused its discretion when it allowed evidence related to the February 16, 2016, burglary complaint and investigation to be admitted. Thomas maintains the burglary complaint has nothing to do with the charge that he was unlawfully in possession of a firearm almost three months later. Thomas further argues that even if the burglary complaint was relevant to prove a motive with respect to the wanton endangerment charge, that charge was dismissed with prejudice prior to the beginning of Thomas's trial.
The Commonwealth disclaims that proving Thomas's motive was its primary intention. Instead, the Commonwealth asserts that this evidence was necessary for the jury to get an accurate picture of the dynamics between the various individuals who testified and Thomas. The Commonwealth explains this was necessary because, prior to trial, three of its witnesses (Sheila, Cheryl, and Abbage) identified Thomas as the individual who was seen with the gun on May 6, 2016, but when testifying at trial, expressed a lack of recollection or inability to identify Thomas or his car. The Commonwealth believed it was necessary to introduce testimony regarding the break-in at Thomas's house and ensuing altercation to explain why the witnesses would have recanted their first statements identifying Thomas.
"Evidence which is not relevant is not admissible." KRE 402. "'Relevant evidence' means 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." KRE 401. On the whole, we agree that the evidence was relevant. It placed the relationship between Thomas and the Shumperts in context and provided an explanation regarding why Thomas might have been seen with a gun outside the Shumpert residence. See Southworth v. Commonwealth, 435 S.W.3d 32, 57-58 (Ky. 2014) (holding that evidence of discord in a relationship was relevant as evidence of motive).
Kentucky Rules of Evidence.
However, not all relevant evidence is admissible. Pursuant to KRE 403, even 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." KRE 403. In this case, Thomas was the victim of a break-in and assault. The Commonwealth did not attempt to paint the break-in as being drug related or otherwise taint Thomas's character by portraying the break-in as being a product of Thomas's drug activity. Therefore, the trial court correctly concluded that the evidence was not being introduced to show Thomas's bad character.
While the jury may have wondered why Thomas's residence was targeted for a break-in, we believe the any resulting prejudice was quite small and certainly outweighed by its probative nature. The evidence regarding the burglary complaint gave context to the relationship between Thomas and members of the Shumpert family. Therefore, it was relevant to show that Thomas had motive to possess a gun and was likely the individual observed with a gun on the Shumpert's street that evening. Moreover, we note that the Commonwealth was not able to recover the gun or any shell casings from the scene. Accordingly, any evidence regarding a possible motive for Thomas to be seen with a gun outside the Shumpert residence on the night of the incident is relevant to the charge of a felon in possession of a firearm. We hold, therefore, that the circuit court did not abuse its discretion in allowing the Commonwealth to introduce this evidence.
B. Altercation at Mall and Gunfire Outside of Shumpert Residence
Thomas's second and last argument on appeal is that the shooting outside Sheila's home and the incident at the mall earlier in the day became irrelevant when the Commonwealth dismissed the wanton endangerment charge. Thomas asserts that the evidence at trial should have been limited to the following: Sheila's testimony that she saw a gun, Cheryl's testimony that she saw a black gun, Detective Hodges's forensic examination of Thomas's phone, and the portion of Detective Montgomery's testimony related to Thomas's identity and whether he possessed a gun. Thomas claims that any evidence related to the incident at the mall and the gunfire outside Sheila's residence was unrelated to Thomas possessing a firearm.
According to Thomas, even though the Commonwealth dismissed the wanton endangerment charge with prejudice, it spent a majority of the trial proving that charge. Thomas asserts that evidence related to the incident at the mall and his firing the gun were not intertwined with the possession of a firearm charge to such a degree that it was necessary for the Commonwealth to introduce that evidence. He argues that proving a charge that has just been dismissed with prejudice is so jurisprudentially intolerable that reversal for palpable error is required.
We disagree. Thomas concedes this issue was not preserved by contemporaneous objection before the circuit court. "A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." RCr 10.26. For an error to be palpable, "it must be 'easily perceptible, plain, obvious and readily noticeable.'" Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (citing BLACK'S LAW DICTIONARY (6th ed. 1995)). "Generally, a palpable error affects the substantial rights of the party only if it is more likely than ordinary error to have affected the judgment." Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotation and citation omitted). "[W]hat a palpable error analysis 'boils down to' is whether the reviewing court believes there is a 'substantial possibility' that the result in the case would have been different without the error." Brewer, 206 S.W.3d at 349 (quoting Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)).
Kentucky Rules of Criminal Procedure. --------
Our Supreme Court has held that a felon in possession charge should generally be tried separately from any other crimes charged due to the prejudice that might result from learning that the defendant was previously convicted of a felony, an essential element of a felon in possession charge. See Hubbard v. Commonwealth, 633 S.W.2d 67, 68 (Ky. 1982). There was not a violation of Hubbard in this case because Thomas was only tried on the felon in possession charge.
In Wallace v. Commonwealth, 478 S.W.3d 291 (Ky. 2015), the Kentucky Supreme Court acknowledged that a reverse/reciprocal Hubbard scenario could be prejudicial in some situations where there is no connection between the felon in possession charge and the use or discovery of the gun. The Court provided the following example:
For instance, consider a man who has been convicted of a felony who moves in with his mother following his release from jail and thereafter resides in her home. Assume investigations by law enforcement later uncover evidence that the convicted felon has been downloading and selling child pornography, and law enforcement officers obtain a proper warrant to arrest the man and search his (i.e., his mother's) residence for evidence of child pornography. During the search, the officers find tapes and CDs of child pornography and a handgun in a duffle bag under the convicted felon's bed. As a result, the man is indicted on several charges of possessing child pornography as well as one count of possessing a firearm while being a convicted felon.
In this scenario, severance of the handgun charge is required to avoid the prejudice that would result from the jury having knowledge of his previous felony conviction during the guilt phase of the child pornography trial. And bifurcation of the guilt phase in this situation would be inadequate to protect against the prejudice of trying these unrelated crimes to the same jury because the defendant would also be highly prejudiced by the jury's awareness of the child pornography offenses when considering the defendant's guilt or innocence on the firearm charge.
This example presents the prototypical severance situation involving unrelated offenses where evidence of the separate offenses would clearly be mutually inadmissible at separate trials, thus making joinder inappropriate. See Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky. 2002). Because the taint of prejudicial, irrelevant evidence flows both ways, full severance of the handgun charge for a separate trial in front of a different jury would be required.Id. at 304.
Thomas contends that Wallace cannot be relied upon to justify what occurred in his case because it was unnecessary to prove that he fired the handgun to prove the possession element. Strictly speaking, it was not necessary for the Commonwealth to prove that Thomas fired the weapon. However, the facts in this case are interwoven. The Commonwealth was never able to recover a gun. Its case relied on the witnesses' testimony concerning seeing Thomas with the gun as well as the images on his cell phone. Without knowing the background information, the jury would have been left to speculate what drew the witnesses' attention to Thomas's car driving down Sheila's street that evening, and why the police were called to investigate.
On the balance, we do not believe there was any error in allowing this testimony. If there was an error in this regard, it was certainly not plain and obvious. Moreover, given the nature of the proof, Thomas has failed to demonstrate a substantial possibility that the jury would have acquitted him of the possession charge had they not heard testimony that he fired that gun. Therefore, we conclude that Thomas has failed to demonstrate a palpable error resulting in manifest injustice.
III. CONCLUSION
For the reasons set forth above, we affirm the McCracken Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Samuel N. Potter
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky