Opinion
2016-SC-000034-MR
04-27-2017
ERIK A. TUCKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Emily Holt Rhorer Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. NOT TO BE PUBLISHED ON APPEAL FROM KENTON CIRCUIT COURT
HONORABLE KATHY LAPE, JUDGE
NO. 2014-CR-00886-002
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A jury in Kenton County convicted Erik Tucker of one count of murder and three counts of first-degree wanton endangerment. Consistent with the jury's sentencing recommendations, the trial court fixed his sentence at confinement for forty years.
Tucker now appeals as a matter of right, Kentucky Constitution § 110(2)(b), arguing that the trial court erred by: (1) failing to suppress his statement to police; (2) denying his motion for a continuance; (3) denying him the opportunity on cross-examination to explore the victim's criminal history; (4) denying his motions for directed verdict on two of the wanton endangerment charges; and (5) permitting a detective to "interpret" for the jury a statement Tucker gave to the police, and allowing that same detective to make improper comments about Tucker. For the reasons set forth below, we affirm.
I. BACKGROUND
On August 25, 2014, at approximately 12:30pm, Donchele Rice, Orlando Williams, Terry Jones, and Randolph Hughes, were standing on the sidewalk on East 13th Street in Covington, Kentucky. A blue car that was unfamiliar to the group passed by once and circled the block. While passing the group a second time, the car slowed and gunshots erupted from the passenger window. The group attempted to get out of the way; however, Hughes was struck in the torso and died of his injuries.
Also referred to as Donshell Rice.
Tucker and Reginald Ealy were arrested at Tucker's Florence, Kentucky apartment complex within forty-five minutes of the shooting. A search of Tucker's vehicle yielded a spent bullet shell. The search also yielded a handgun, which matched both the shell found in the vehicle and three shells found at the crime scene. Tucker later confessed to driving the vehicle used in the shooting and to knowing that his passenger, Ealy, intended to shoot Hughes.
As noted above, a Kenton County jury convicted Tucker, and this appeal followed. We set forth additional facts as necessary below.
II. STANDARD OF REVIEW
Because the issues presented require us to apply different standards of review, we set forth the appropriate standard as necessary when addressing each issue.
III. ANALYSIS
A. The trial court did not err by denying Tucker's motion to suppress his statement to police.
A trial court's ruling on a motion to suppress is reviewed in two steps: the court's factual findings are reviewed under a clearly erroneous standard; and the court's application of law to those facts is reviewed de novo. Brown v. Commonwealth, 416 S.W.3d 302, 307-08 (Ky. 2013). Here, the facts are not in dispute; thus, we review the trial court's application of Miranda and its progeny de novo. See id.
1. Request for counsel
Following Tucker's arrest, he was transported to the Florence Police Department. While there, Tucker was held in an interrogation room, where he was interviewed by Detective Brian Kane. Before beginning the interview, Detective Kane read Tucker his Miranda rights and, after briefly interviewing Tucker, Detective Kane left the room. In Detective Kane's absence, video equipment continued to record Tucker, who yelled, "I want to call my lawyer." During the hearing to suppress Tucker's statement, Detective Kane testified that he was never aware that Tucker had asked for a lawyer and no officer outside the interrogation room informed him that Tucker had made such a request.
Miranda v. Arizona, 384 U.S. 436 (1996).
The trial court found that Tucker "made a remark (to no one) concerning a lawyer," but it did not find that Tucker had, in fact, requested a lawyer. --------
In the trial court's order denying Tucker's motion to suppress, the court found that "Tucker did knowingly and voluntarily waive his right to counsel and silence. The verbal [Miranda warning] was sufficient and the evidence shows Tucker understood those rights. The remark Tucker made in an empty room was not a clear and unambiguous invocation of his right to counsel." We agree.
As this Court noted in Brown,
Once the accused makes an unequivocal request for counsel, questioning must cease. Edwards v. Arizona, 451 U.S. 477 [ ] (1981). However, "not every use of the word lawyer or attorney by a suspect is an invocation of the right to counsel." Bradley v. Commonwealth, 327 S.W.3d 512, 55 (Ky. 2010) (citing State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009)) (emphasis in original). The test is whether the accused "articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459 [ ] (1994).Brown, 416 S.W.3d at 308.
We note that our review of the record reveals that Tucker was moved from the interrogation room to a holding cell after "acting up, screaming, kicking and cussing." During this time Tucker made the subject-request for an attorney. This Court is troubled that officers could hear Tucker "scream" loud enough to warrant removing him from the interrogation room but, at the same time, the officers neither heard his request for an attorney nor inquired into why Tucker was screaming. Nonetheless, aside from Detective Kane's testimony that he did not hear Tucker's request and the video recording evidencing Tucker's request, the record is devoid of explanation as to whether other officers in the Florence Police station heard Tucker.
Tucker's statement—"I want to call my lawyer"—was a clear articulation of his desire to speak with counsel. However, that articulation must have been such that a reasonable police officer would understand it. See id. Here, Tucker presented no evidence that anyone in the Florence Police Department heard his request for a lawyer, let alone understood that request. This situation begs the question: "When an accused requests a lawyer and no one is there to hear it, has the accused adequately invoked his right to counsel?" We hold that he has not, because an officer cannot be deemed to have understood what he has not heard; therefore, the trial court's ruling was not an abuse of discretion.
2. Denial of counsel
After Detective Kane interviewed Tucker, Tucker was transported to the Covington Police Department. Once there, the police informed Tucker that a handgun was found in his vehicle. At that point, Tucker indicated he wanted to speak with Detective Kane again. When Detective Kane resumed the interview, Tucker confessed to being the driver during the shooting and to knowing that Ealy intended to shoot Hughes.
During the time Tucker was held at the Florence and Covington police departments, both Ealy and Tucker's roommate, Tracy Williams, were also being held. Upon being detained by the Florence police, Williams contacted attorney Nick Summe, who had represented Williams in the past. Williams asked Summe to represent him, and told Summe that his two friends also needed representation. Summe then called the Covington Police Department and attempted to assert each individual's right to remain silent. When his efforts were fruitless, Summe located two Department of Public Advocacy (DPA) attorneys, and the three attorneys traveled to the Florence Police Department. At the police department, the attorneys attempted to speak with the three individuals being held. However, their efforts were thwarted by an Assistant Commonwealth Attorney, who informed the attorneys that none of the individuals had requested an attorney; therefore, the attorneys would not be permitted to speak with them.
Tucker argued that prohibiting the DPA attorneys from talking to him and Ealy violated Rule of Criminal Procedure (RCr) 2.14(2), which provides: "Any attorney at law entitled to practice in the courts of this Commonwealth shall be permitted, at the request of the person in custody or of some one [sic] acting in that person's behalf, to visit the person in custody." Tucker also argued that Williams, by asking Summe to help him and Ealy, acted in his behalf. Tucker continues this argument on appeal.
Following the suppression hearing, the trial court issued an order denying Tucker's motion to suppress. The trial court found that Williams was not acting in Tucker's behalf because "Williams was being investigated as a possible co-defendant. Williams did not seek out attorneys for Tucker and Ealy as a benevolent third party. Williams'[s] interests were in opposition to Tucker's and Ealy's." The court continued:
[T]his Court does not believe that RCr 2.14(2) was intended to open the doors to require the police to stop interrogations when attorneys find out someone is being questioned about a crime and arrive at the police station demanding to see whoever is being questioned. It was not intended to allow attorneys to round up public defenders and show up at the police station[']s doors to stop interrogations of potential co-defendants.We agree. We note that one of the DPA attorneys, Ameer Mabjish, testified at the suppression hearing that neither of the two DPA attorneys knew the names of Tucker or Ealy when the attorneys arrived at the police station. Furthermore, Williams never specifically asked the DPA attorneys to represent Tucker or Ealy. There was neither a relationship between Williams and the DPA attorneys, nor a relationship between the DPA attorneys and Tucker and Ealy. The only relationship that existed was between Summe and the DPA attorneys, and that relationship was far enough removed from Tucker and Ealy that it failed to satisfy RCr 2.14(2)'s "acting in behalf of the person in custody" language; therefore, we hold that the trial court did not abuse its discretion in denying Tucker's motion to suppress.
B. The trial court did not abuse its discretion by denying Tucker's motion for a continuance.
Twelve days before the start of trial, the Commonwealth informed Tucker and the court that it would indict Tucker on three new counts of first-degree wanton endangerment. At the same time, the Commonwealth moved for a continuance based on conflicts with its attorneys' schedules. Tucker opposed that motion, noting his right to a speedy trial. The court denied the Commonwealth's motion.
One day before trial, Tucker filed a motion to continue the trial date for three reasons: only three days before, he had received the body camera footage of Tucker's arrest and the firearm expert's case notes from the Commonwealth; the Commonwealth had failed to submit proposed jury instructions by the court's deadline; and the addition of the three wanton endangerment charges. Tucker noted that the prejudice caused by not granting the continuance outweighed his need for a speedy trial.
The court overruled Tucker's motion, finding the jury instructions that the court required the Commonwealth to submit were only proposed jury instructions; the instructions could change over the course of the trial; and Tucker would have occasions in the future to object if he was not satisfied with the court's instructions.
The court ruled that, if the police body camera footage or the expert's case notes were unduly prejudicial to Tucker, it would consider suppressing the evidence. In so ruling, the court heard from the Commonwealth that it had also just received both pieces of complained-of evidence and that, upon receipt, the Commonwealth immediately forwarded copies thereof to Tucker's counsel. The court also heard that the firearm expert's case notes were merely explanations of the protocols used by the expert to reach his conclusions and both parties had received the expert's report months before, which included his conclusions. Finally, the court heard that Tucker had received the body camera footage three days prior to filing his motion and being heard, but had not yet reviewed said footage at the time of the hearing.
The court stated that it had already made its determination as to the additional indictments when it ruled on a similar motion to continue in Ealy's case, finding there were no additional facts or victims that the parties were unaware of prior to the indictment. This ruling was consistent with the court's ruling on Ealy's motion for a continuance.
The decision to grant a continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Montgomery v. Commonwealth, 320 SW.3d 28, 47 (Ky. 2010). We discern no error in the trial court's decision to deny Tucker's motion for a continuance because Tucker has never specified how he was prejudiced by the delay in obtaining discovery, the Commonwealth's delay in filing jury instructions, or the additional indictments. Therefore, we hold that the trial court did not abuse its discretion by denying Tucker's motion for a continuance.
C. The trial court did not abuse its discretion by refusing to allow Tucker to explore Hughes's criminal history on cross-examination.
During the Commonwealth's direct examination, Detective Kane stated that there had been "big questions and gaps" in his investigation. When Tucker inquired into these questions and gaps on cross-examination, Detective Kane stated that one question he had was, "Why [Hughes]? The man's never been violent in his life, he's done a lot of stupid things, sold drugs, run from the police, never been violent."
Later in Tucker's cross-examination of Detective Kane, Tucker's counsel posed to Detective Kane: "You said that Hughes didn't have a violent past?" Detective Kane responded that he had known Hughes and, while he had fought and resisted arrest before, Detective Kane had never known him to use guns at all. The Commonwealth then objected on the grounds that Tucker was trying to elicit information about Hughes's prior conviction. At the subsequent bench conference, Tucker's counsel argued that she could not let the statement regarding Hughes's non-violence "hang out there" if he had just been released on a "weapons charge." We note that no evidence was presented of Hughes being convicted on "weapons charges." The court ultimately sustained the Commonwealth's objection, finding that Hughes's past had nothing to do with the case.
A trial court's evidentiary rulings are reviewed on appeal for 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).
On appeal, Tucker argues that the Commonwealth "opened the door" to this line of questioning. However, he does not specify what the Commonwealth did to open that door as all testimony about Hughes's propensity for non-violence was elicited by Tucker—not the Commonwealth. It appears Tucker argues that, by calling Detective Kane to the stand, the Commonwealth opened the door to anything to which he might testify. This is an incorrect understanding of the doctrine of curative admissibility, which allows one party to introduce typically-inadmissible evidence to counterbalance harmful and inadmissible evidence elicited by the other party. See Norris v. Commonwealth, 89 S.W.3d 411, 414-15 (Ky. 2002). It does not allow a party to introduce inadmissible evidence to "counterbalance" the inadmissible evidence that same party introduced.
Furthermore, "[e]vidence which is not relevant is not admissible." Kentucky Rule of Evidence (KRE) 402. Evidence is relevant if it has "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. Here, as the trial court noted, Hughes's propensity for violence had no tendency to make Tucker's actions in the crime more or less probable. There was no dispute as to who shot Hughes, who was driving the car from which Hughes was shot, or that the shooting was not an act of self-defense. Therefore, we hold that the trial court did not abuse its discretion in denying Tucker the ability to explore Hughes's criminal past.
D. The trial court did not err by denying Tucker's motions for directed verdict on two of the wanton endangerment charges.
Tucker was charged with three counts of first-degree wanton endangerment. Although both Tucker and the Commonwealth obtained statements from Orlando Williams, Jones, and Rice, only Rice testified at trial. While moving for a directed verdict at the close of all evidence, Tucker summarily stated the directed verdict standard before arguing that the Commonwealth had failed to prove the essential elements of wanton endangerment. Tucker's counsel noted she found it strange that two of the victims of the subject-wanton endangerment did not testify at trial, but she did not explain her argument further.
On appeal, Tucker argues that the Commonwealth did not prove the essential elements of wanton endangerment because only one victim, Ms. Rice, testified, and her testimony constituted inadmissible hearsay. Tucker argues that, because the "Sixth Amendment prohibits the admission of a testimonial statement of a declarant who does not appear at trial[,]" Rice's testimony regarding Orlando Williams and Jones was a violation of the Confrontation Clause. See Roach v. Commonwealth, 313 S.W.3d 101, 111 (Ky. 2010).
"On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth." Id. We note that Kentucky Civil Rule of Procedure (CR) 50.01 requires that "[a] motion for a directed verdict shall state the specific grounds therefor." "We have consistently applied this rule in criminal cases, holding that the failure to state a specific ground for directed verdict 'will foreclose appellate review of the trial court's denial of the directed verdict motion.'" Johnson v. Commonwealth, 292 S.W.3d 889, 898 (Ky. 2009) (quoting Pate v. Commonwealth, 134 S.W.3d 593, 597-8 (Ky. 2004)).
Tucker's statement that the Commonwealth failed to prove the elements of wanton endangerment did not rise to the level of specificity required under CR 50.01. Thus, the trial court properly denied his motion. Furthermore, Tucker did not make the hearsay argument to the trial court that he makes now. A litigant may not offer one argument to the trial court and another to the appellate court. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976). However, even if he had made his hearsay argument to the trial court, the court would have been correct in denying his motion for a directed verdict. Tucker argues on appeal that "Ms. Rice's testimony that Mr. Williams and Mr. Jones were with her at the time of the shooting was blatant hearsay, without means of affording Mr. Tucker the opportunity to cross-examine these alleged victims." This argument evidences a fatal misunderstanding of what constitutes hearsay.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." KRE 801. Rice testified that she was standing with Orlando Williams, Jones, and Hughes; a blue car she did not recognize drove past the group; she saw gunfire come out of the blue car's passenger side when it returned a second time; and she heard the bullets go by her head and into the building behind the group. At no time did Rice testify to any out-of-court statement; thus, plainly, her testimony did not contain hearsay.
In addition to Rice's testimony, Tucker himself admitted to seeing a group of individuals on the street and seeing them move to get out of the way of the bullets once Ealy fired. Therefore, even if Tucker was correct that Rice's testimony was inadmissible hearsay, his own admission constituted sufficient evidence to support denial of his motion. Thus, we discern no error in the trial court's decision.
B. The trial court did not commit palpable error by permitting Tucker to explain portions of his interview with Detective Kane or by permitting Detective Kane's comments about Tucker.
During the Commonwealth's case-in-chief, it questioned Detective Kane regarding his interview with Tucker, in which Tucker confessed. The Commonwealth first questioned him without referencing the recording of the interview. Tucker objected, stating: "I think under the best evidence rule, this is—the best line of presenting what he actually said is just to play the tape." In addition, the Commonwealth played excerpts of Tucker's confession, stopping periodically to ask Detective Kane to explain Tucker's non-verbal responses, as well as to clarify what Tucker had said.
On appeal, Tucker complains that the technique the Commonwealth used to elicit Detective Kane's testimony was improper under our holding in Gordon v. Commonwealth, 916 S.W.2d 176, 180 (Ky. 1995). In Gordon, this Court held that "[w]hile a witness may proffer narrative testimony within the permissible confines of the rules of evidence, . . . he may not 'interpret' audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence." Id.
At the outset, we note that Tucker's challenge was not properly preserved. Tucker's objection was based on the best evidence rule found in KRE 1002, which provides that "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, in other rules adopted by the Kentucky Supreme Court, or by statute." Tucker's argument at the trial level is incongruous with his argument on appeal and, as previously noted, a party is not permitted to make one argument to the trial court and another to the appellate court. See Kennedy, 544 S.W.2d at 222. As such, this issue is unpreserved.
Tucker also challenges the following statement made by Detective Kane during the Commonwealth's direct examination: "I've done a lot of interrogations and . . . I've never seen this level of just callousness, just absolute disregard for life." Tucker admits that this issue is unpreserved.
This Court reviews unpreserved errors for palpable error. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). In order to prevail under palpable error review, one must show that the alleged error resulted in "manifest injustice" as stated in RCr 10.26. Id. RCr 10.26 provides:
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.Upon consideration of the case as a whole, reversal is only warranted if there is a substantial possibility that the result would have been different had the error not occurred. Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)
In the instant matter, the trial court did not commit palpable error under either challenge. Tucker is correct that, as we stated in Gordon, "[t]he court should refrain . . . from permitting the witness to interpret what is on the tape. It is for the jury to determine as best it can what is revealed in the tape recording without embellishment or interpretation by a witness." Gordon, 916 S.W.2d 176 at 180. However, in Gordon, we also stated that "[a]s with any participant in a conversation, the [ ] witness, was entitled to testify as to his recollection of what was said." Id. Prior to the jury hearing the recording of Tucker's interview, Detective Kane had already testified to his recollection of that interview, including that Tucker confessed to being the driver of the car, that Ealy had shot Hughes, and that he knew Ealy intended to kill Hughes. For this reason, any error by the trial court in permitting the Commonwealth's witness to interpret Tucker's interview did not result in manifest injustice. The jury had sufficient evidence to find Tucker guilty of murder: testimony that the license plate on the vehicle driven in the drive-by shooting was traced to Tucker; evidence that a 9mm pistol was found in the back of Tucker's vehicle; evidence that a bullet shell found in the backseat of Tucker's vehicle matched those found at the scene; evidence that the shells found both in the vehicle and at the scene were fired from the 9mm pistol found in Tucker's vehicle; and Detective Kane's testimony about Tucker's confession. We discern no substantial possibility that the result in Tucker's trial would have been different had Detective Kane not been permitted to "interpret" Tucker's interview. The preceding notwithstanding, we caution the Commonwealth that this tactic is imprudent where, as was the case here, the audio of the interview without Detective Kane's embellishment and interpretation was more than sufficient to convey to the jury Tucker's guilt.
Finally, we discern no palpable error in Detective Kane's statement about Tucker. While the statement was improper, we agree with the Commonwealth that, by that point in the trial, the jury had already heard evidence which could lead it to determine for itself that Tucker's statements evidenced a "callousness" and an "absolute disregard for life." The jury heard that it didn't matter to Tucker why Hughes was shot; that, if Ealy had not shot Hughes, Tucker would have done so; and that he and Ealy drove to Covington with the intent to kill Hughes. As such, Detective Kane's comment, while improper, did not result in manifest injustice.
IV. CONCLUSION
For the foregoing reasons, the judgment of the Kenton Circuit Court in this matter is affirmed.
All sitting. All concur. COUNSEL FOR APPELLANT: Emily Holt Rhorer
Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Susan Roncarti Lenz
Assistant Attorney General