Opinion
NO. 2015-CA-000580-MR
02-03-2017
DARRIONTA WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy A. Durham Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HON. JOHN R. GRISE, JUDGE
INDICTMENT NO. 14-CR-00006-005 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND VANMETER, JUDGES. JONES, JUDGE: Darrionta Williams appeals from the Warren Circuit Court's Judgment and Sentence entered April 15, 2015, after being found guilty of four counts of First Degree Robbery and one count of First Degree Burglary in a jury trial held March 17 through March 19, 2015. For the reasons set forth below, we affirm the Judgment and Sentence of the Warren Circuit Court.
Judge Laurance B. VanMeter concurred in this opinion prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
I. Background
On or about November 22, 2013, the Appellant, Darrionta Williams, and his roommate, Jhanti Gold, concocted a scheme to steal marijuana from a fellow Western Kentucky University (WKU) student named Erik Tyler Simcoe. Williams and Simcoe were acquainted, as Williams had been to parties at Simcoe's house on various occasions. Williams and Gold eventually decided upon a home invasion at Simcoe's house to steal the marijuana. To that end, they enlisted three others: Khai Kennebrew, Kyle Lebroi, and Jacquese Stevenson. The five men collaborated on the scheme at the apartment of Kennebrew's unsuspecting girlfriend, Kiara Cureton. Williams and Stevenson then left for a Walmart retail store, where they stole ski masks, a BB gun, and gloves, before returning to Cureton's residence.
Later that evening, the five men left Cureton's apartment for the Simcoe residence. Williams, Stevenson, and Lebroi donned ski masks while waiting outside, and at least two of them carried weapons - the black BB gun stolen from Walmart, and a silver pistol that was an actual firearm. Multiple witnesses later testified that Williams carried the silver pistol, although Williams claimed afterward in an interview with police that he carried the BB gun, which he dropped after leaving the Simcoe residence. The two unmasked conspirators, Kennebrew and Gold, entered Simcoe's home as guests. Simcoe was acquainted with Kennebrew, and thought that Kennebrew and Gold had come to his house to smoke marijuana and record music with him in his home studio. The true purpose behind the visit, however, was for Kennebrew and Gold to telephone the masked men outside and inform them as to how many people were present in Simcoe's home. Besides Simcoe and the two members of the conspiracy masquerading as guests, Robert Shumake, Rhys Foster, Krista Nenni, and Kelci Speer were inside the residence.
Kelci Speer noticed something amiss with Kennebrew and Gold, as they seemed to be overly concerned with their cellphones, claiming that they were talking to their "baby mamas." Speer noted, however, that the men used the terms "bro" and "bruh" while talking on their cellphones. Since those are slang terms of address typically reserved for male acquaintances, the situation struck her as "weird." While Speer was discussing the odd situation with Shumake and Foster, the three masked members of the conspiracy entered the home with weapons drawn and demanded that they get on the ground. They also demanded to know the location of the marijuana. Despite the mask, Speer immediately knew that the one brandishing the silver pistol was appellant Williams, because she was in a Public Speaking class with Williams at WKU that semester and recognized his voice. Simcoe also recognized the masked man with the pistol as Williams based on his voice. The masked men took cellphones from Shumake and Foster, Nenni's purse, and a laptop, disc drive, and marijuana belonging to Simcoe. Speer did not have any items on her person, and so nothing of hers was taken. The five men left the house with their spoils, with Williams stating on the way out, "Have a Happy Thanksgiving and a Merry Christmas, [expletive]."
After leaving the Simcoe residence, the men drove back to Cureton's apartment, where they divided the marijuana and hid most of the items related to the robbery in Cureton's bedroom. Williams later contacted another unwitting friend, Morgan Smith, and asked her to hold on to "his" laptop at her apartment, and that he would be back for it later. Morgan Smith testified that the request was not unusual, as several friends had asked her to hold their laptops due to a rash of thefts in the WKU dorm rooms. Williams did not return for the laptop, but eventually the Bowling Green Police Department called Smith and asked her to bring the laptop to them. The laptop was identified as the one belonging to Simcoe.
Meanwhile, Simcoe had telephoned 9-1-1 and reported the robbery. The police arrived and Speer provided them with a description of the armed assailants. Later, the police escorted Speer and Simcoe to a parking lot on WKU's campus, where Williams, Kennebrew, and Stevenson were being held. Speer testified that the police gave her a driver's license photograph of Williams on the way to the parking lot, asking her if that was the man she described. Once Speer and Simcoe got to the parking lot, they confirmed the identity of Williams, Kennebrew, and Stevenson as the robbers.
The Warren County Grand Jury returned an indictment charging Williams with four counts of first degree robbery, one count of first degree burglary, and one count of engaging in organized crime - criminal syndicate. The organized crime charge was later dropped by motion of the Commonwealth. After a three-day trial concluding on March 19, 2015, the jury found Williams guilty of four counts of first degree robbery and one count of first degree burglary and sentenced him to the minimum concurrent term of ten years' imprisonment on all charges. The circuit court sentenced Williams in accord with the jury's recommendation, in an order entered April 15, 2015. This appeal follows.
II. Analysis
Williams presents two issues on appeal, the first of which is that the circuit court erred in denying an instruction that would permit the jury to find Williams guilty of facilitation as a lesser included charge to the counts of first degree robbery. First degree robbery is defined in KRS 515.020(2) as a Class B felony, subject to a term of ten to twenty years' imprisonment. The trial court allowed an instruction on first degree robbery by complicity, but declined to offer an instruction on facilitation, which would have permitted the jury to sentence Williams as a Class D offender to a term of one to five years in prison.
Kentucky Revised Statutes.
KRS 506.080. --------
"[A] trial court's decision on whether to instruct on a specific claim will be reviewed for abuse of discretion." Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015). "[A] trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. at 203 (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). Williams argued for a facilitation instruction to the circuit court, stating that he was not inside the Simcoe residence, but stood in the doorway and abandoned the enterprise before the crime was completed. In denying Williams's proffered instruction, the circuit court based its reasoning on the fact that, even under Williams's own account of the incident, he was present at the scene. The court stated that this may be consistent with complicity but not facilitation, as facilitation requires a mental state that is wholly indifferent to the outcome of the criminal enterprise.
Our Supreme Court has provided us with an excellent summary of the mental states required for complicity and facilitation instructions:
Both statutes at issue require knowledge that "the principal actor is committing or intends to commit a crime." But to prove criminal facilitation, evidence must be shown that the accused only "provided the means or opportunity to commit a crime" and is designed to convict an individual "who is 'wholly indifferent' to the actual completion of the crime." On the other hand, complicity requires the accused to "intend that the crime be committed" and engage in "solicitation, conspiracy, or some form of assistance."Murray v. Commonwealth, 399 S.W.3d 398, 411 (Ky. 2013) (footnotes omitted). While it is true that facilitation is a lesser included offense of complicity, Id. at 410 n.45, it is also true that "[a]n instruction on a lesser included offense requiring a different mental state from the primary offense is unwarranted unless there is evidence supporting the existence of both mental states." Id. at 410 (quoting Taylor v. Commonwealth, 995 S.W.2d 355, 362 (Ky.1999)).
From the evidence presented in this case, it is clear that Williams did not have the level of disinterest in the outcome required for a facilitation instruction. Aside from being masked and present at the scene of the crime, he was identified by multiple witnesses at trial, including his erstwhile co-conspirators, as being armed with the silver pistol. He was also identified by Simcoe and Speer as one of the masked intruders issuing demands. Furthermore, a witness at trial who was not present at the robbery, Morgan Smith, testified that Williams asked her to hold on to a laptop later identified by police as the one stolen from Simcoe. There is no evidence indicating anything but that Williams was an active participant in the crime. We hold that the circuit court did not abuse its discretion in finding that Williams was not entitled to an instruction on facilitation. Therefore, we affirm the decision of the circuit court on this issue.
Williams's next claim is that police implemented an improperly suggestive identification procedure by showing Williams's driver's license photograph to Speer and Simcoe prior to escorting them to where Williams, Kennebrew and Stevenson were being held at in the WKU parking lot. Specifically, Williams argues that this should have been grounds for a mistrial, as there was no chance to perform a suppression hearing on the issue prior to this fact being revealed at trial. The circuit court agreed with the Commonwealth that this was not like that of a stranger's identification of someone in a lineup, since Speer and Simcoe were already acquainted with Williams.
The Supreme Court of Kentucky has found that there is nothing improper about a single photo identification used to confirm a previous observation or recollection:
There'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. People v. Jordan, 2003 WL 21277267 (Cal.Ct.App. Jun. 03, 2003) (finding that showing a witness a single photo of the defendant to confirm the witness's previous identification was not unduly suggestive); State v. Marsh, 187 N.C.App. 235, 652 S.E.2d 744, 747-48 (2007) (overruled on other grounds by State v. Tanner, 364 N.C. 229, 695 S.E.2d 97 (2010)) (holding that no due process violation occurred where single photo identification was based upon identifier's own observations and recollection and was requested only to confirm defendant's identity).Barnes v. Commonwealth, 410 S.W.3d 584, 587-88 (Ky. 2013). This reasoning supports the circuit court's determination that the driver's license photograph was merely "confirmatory, not suggestive." Speer's testimony was that, even before the police showed her the driver's license photograph, she recognized Williams as one of the masked assailants at the scene because she recognized his voice from class. The identification procedure in this case was not unduly suggestive.
Even if the identification procedure were deemed suggestive, an identification may still be admissible if found to be otherwise reliable under a totality of the circumstances. King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004). The five-factor analysis to assess the reliability of identifications comes from Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972): "[O]pportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Id.
Based on these factors, Speer's identification of Williams was undoubtedly reliable. She had a full opportunity to view and hear the masked assailants, and she was certainly paying attention to them as she was being given commands at gunpoint. Speer knew Williams's voice from class, and testified that she recognized it at the scene. She was absolutely positive in her identification, and her identification of Williams happened that same evening. We agree with the circuit court that the identification procedure was not unduly suggestive, being primarily in the nature of a confirmation procedure. Even if it were suggestive, however, the identification satisfies enough of the factors under Biggers to be considered otherwise reliable under a totality of the circumstances. Thus, we find no error.
III. Conclusion
For the foregoing reasons, the April 15, 2015, Judgment and Sentence of the Warren Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Roy A. Durham
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky