Opinion
NO. 2015-CA-000969-MR
06-16-2017
KENDRICK WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky John Gerhart Landon Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 11-CR-01058 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: This appeal comes before this Court for our review of a judgment of conviction entered by the Fayette Circuit Court against Kendrick Williams following a jury trial. Williams argues that an error in the jury instructions, where the law on self-defense against multiple assailants was not correctly presented, and a comment by a Commonwealth witness noting that Williams was on parole during the guilt phase merit reversal of his conviction. Having reviewed the record and the arguments presented by the parties, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Williams stands convicted, by virtue of a jury verdict of guilt, of Manslaughter in the Second Degree in connection with the shooting death of Tommisha Taylor, and Assault in the Fourth Degree against Stefon Johnson. The jury recommended, and the trial court imposed, the maximum sentence of ten years to serve.
On the night of May 29, 2011, Williams, then 17 years old, waited on the front porch of his Lexington home for his girlfriend. By chance, Vandino Walker, the boyfriend of the best friend of Williams' girlfriend, walked past and saw Williams. The two sat together on the porch of Williams' home, and smoked some synthetic marijuana together.
Sometime later, a car occupied by Travon Williams (hereinafter "Travon"), Tommisha Taylor, and two friends of Tommisha, stopped in the street in front of Williams' house. An unknown occupant of the vehicle yelled for someone known as "T-Mac." Not recognizing any of the occupants and knowing that "T-Mac" was in jail, Williams and Walker approached the car. Travon exited the vehicle carrying an "assault style" .22 caliber rifle, which he proceeded to load and aim at Williams. In that instant, Williams retreated into his home, and peered out the window.
The Appellant and Travon Williams are not related.
Counsel for Appellant used this phrase without detailing or defining it by the capabilities of such a weapon. --------
Williams testified that Travon appeared to be under the influence, while Walker continued to talk to him. Walker and Travon exchanged phone numbers and Travon left.
Walker left and obtained some marijuana to sell, and returned, insisting that Williams come with him as he rode around town with some acquaintances (referred to as "junkies" in trial testimony) and distributed his illicit wares. Walker testified during the guilt phase of trial that Williams attempted to decline because Williams was on parole.
Meanwhile, Taylor's friends dropped her and Travon off at the apartment of Taylor's mother. Stefon Johnson, the boyfriend of Taylor's mother, was also present, lying on the couch near the apartment door. At approximately 4:00 A.M., Walker called Travon, and arranged a drug transaction. The parties did not want to conduct their business outside due to the street cameras, and the building had a security system, so Taylor waited near the entrance to apartment complex to allow Walker and Williams entry. Williams testified that he was hesitant to go inside, but Taylor insisted. Walker testified that he was slightly delayed by needing to retrieve his forgotten scales, but was close behind Williams.
Upon entering the apartment Taylor went into a bedroom to get her purse, Williams followed her, seeing Travon lying on the bed. Williams testified that Travon suddenly sat up without warning, and readied a gun to fire at him.
Williams grabbed the gun from Travon and in that instant saw Taylor patting the bed as if searching for a second weapon. Travon lunged at Williams, prompting Williams to flee the room, while firing the weapon. Taylor was struck by three rounds and died at the scene, while Travon was struck in the back of the neck. Johnson testified that he tried to grab the gun from Williams as Williams fled the apartment, but Williams struck him with the gun after it misfired. Williams denied striking Johnson in his testimony.
Williams testified that he ran back to the "junkies" in the car and they took him home. Upon arrival, he hid the gun behind a shed at his house.
Taylor's mother called 911. EMTs immediately began working on Taylor, but upon realizing she had already died, began working on Travon. They transported him to a local hospital, and he survived his injuries. Police responding to the call found Taylor and Travon's phones, checked the call logs and located Walker, who identified Williams as the shooter. Williams was subsequently located and arrested. Darrion Williams, the brother of Travon, located the gun after he received an anonymous tip that an unknown individual was trying to sell it, and turned it over to his parents, who turned it over to police.
Williams was then adjudged to be a Youthful Offender and his case transferred from Fayette District to Fayette Circuit Court. The Fayette County Grand Jury indicted Williams on five counts. Count I of the indictment was the murder of Tommisha Taylor. Count II was Assault in the First Degree on Travon Williams. Count III was Assault in the Second Degree on Stefon Johnson. Count IV was misdemeanor Possession of a Defaced Firearm. Count V was misdemeanor Possession of Drug Paraphernalia.
Williams took the stand in his own defense, offering testimony that he was defending himself when he fired the injurious shots. The jury ultimately convicted him of Manslaughter in the Second Degree and of Assault in the Fourth Degree (for the charge of assaulting Johnson). The jury acquitted Williams of assaulting Travon, and by virtue of the guilty verdict on lesser-included charges, also acquitted him of the murder and the second-degree assault charges. The misdemeanor charges were dismissed prior to trial.
The trial court imposed the jury's recommended sentence of ten years to serve. This appeal followed, wherein Williams challenges the propriety of the jury instructions and the trial court's denial of his motion for mistrial following Walker's testimony.
II. ANALYSIS
A. THE TRIAL COURT DID NOT COMMIT PALPABLE ERROR IN
INSTRUCTING THE JURY
Williams' primary argument, that the trial court gave the jury conflicting instructions, was not properly preserved for our review, and as a consequence, he requests palpable error review pursuant to Rule 10.26 of the Kentucky Criminal Rules ("RCr"). Rule 10.26 allows this Court to reverse when an error is "palpable" in that it "affects the substantial rights of a party" further, only when it would work a "manifest injustice" if allowed to stand. "An error is 'palpable,' we have explained, only if it is clear or plain under current law," and it affects the substantial rights of a party when "it is more likely than ordinary error to have affected the judgment." Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), Ernst v. Commonwealth, 160 S.W.3d 744 (Ky. 2005)).
The Kentucky Supreme Court held in Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008) (citation omitted), that presumption of prejudice exists when jury instructions misstate the law, but also noted that this presumption "can be successfully rebutted by showing that the error 'did not affect the verdict or judgment.'" The inquiry must therefore begin with an analysis of whether the challenged instruction actually misstates the law.
The parties agree that the trial court's instruction to the jury outlining the affirmative defense of self-protection against multiple assailants accurately stated the law. That instruction provided:
If at the time the Defendant used physical force upon another person, he believed that that person, or another person acting in concert with him/her was then and there about to use physical force upon him, he is privileged to use such physical force against that person, and another acting in concert with him/her, as he believed to be necessary in order to protect himself against it, but including the right to use deadly physical force in order to protect himself from death or serious physical injury at the hands of that person or another acting in concert with him/her.The problem, according to Williams, arises when reading that instruction in conjunction with the instruction on imperfect self-defense relating to the lesser- included offense of Manslaughter in the Second Degree. The challenged instruction stated:
Though otherwise privileged to act in self-protection, the Defendant was mistaken in his belief that it was necessary to use physical force against Tommisha Taylor in self-protection, or in his belief in the degree of force necessary to protect himself and that when he killed Tommisha Taylor, he was aware of and consciously disregarded a substantial and unjustifiable risk that he was mistaken in that belief, and that his disregard of that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation.
Williams contends that these two instructions contradict each other. The first, undisputedly accurate, instruction tells the jury that if both Taylor and Travon acted together, then Williams had the right to defend himself against both of them equally. However, the second instruction enables the jury to convict on the lesser-included charge of manslaughter if Williams mistakenly believed he needed to use force against only Taylor, effectively eliminating the multiple assailant theory of the self-protection defense.
Williams suggests that insertion of an additional subparagraph into the imperfect self-protection jury instructions specifically addressing the possibility that two or more assailants acted in concert.
The Commonwealth counters that the instructions as issued already accurately stated the law. In Ordway v. Commonwealth, 391 S.W.3d 762 (Ky. 2013), the Supreme Court noted that "[t]he multiple assailants self-defense instruction serves an important function when there is an uncertain situation in which a person, authorized to act in self-defense, finds it difficult to ascertain exactly who among a number of threatening adversaries poses the immediate threat to his life." Id. at 794. However, the Court also noted that "the conventional self-defense instruction" sufficed because "Appellant's defense was that he believed both [assailants] had deadly weapons which they attempted to use against him." Id.
Here, Williams testified as to his belief that Taylor was attempting to locate a deadly weapon to immediately use against him. Much like Ordway, the conventional self-protection instruction would suffice. We must therefore conclude that under these facts, the instruction given, which included the conventional imperfect self-protection instruction, did accurately state the law as it related to the facts in evidence.
Because we do not find any error occurred, it logically follows that we cannot find an error that more than likely affected the judgment. We need not look further into whether the alleged error affected the verdict. This allegation does not present palpable error.
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
REFUSING TO GRANT A MISTRIAL
Williams argues that Walker's comment during his testimony regarding Williams' parole status impermissibly tainted and prejudiced the jury so much that it prevented a fair trial, and that the trial court erred in denying his motion for mistrial. The Commonwealth contends that the comment was made in such circumstances that the jury might not have even heard it.
In order to properly grant a mistrial, the record must demonstrate manifest necessity for such extraordinary relief. Maxie v. Commonwealth, 82 S.W.3d 860 (Ky. 2002). Appellate courts have gone so far as to call a mistrial an "extreme remedy" reserved for those situations presenting "an urgent or real necessity." Cardine v. Commonwealth, 283 S.W.3d 641, 647 (Ky. 2009) (citation omitted). When a party alleges a trial court improperly granted or denied a mistrial, appellate courts look for abuse of discretion. Maxie at 864.
Indeed, such information is generally not appropriate for admission during the guilt phase of trial. See Garrison v. Commonwealth, 338 S.W.3d 257, 261 (Ky. 2011) ("[D]uring the sentencing phase, unlike the guilt phase, admission of prior acts is the norm rather than the exception.") However, in this case, Williams asserted a self-protection defense, which for all practical purposes required him to testify on his own behalf. Williams did so, and exposed himself to cross-examination, including questions regarding his prior felony conviction. Thus, any harmful effects of Walker's suggestion that Williams had a prior felony conviction completely evaporated when the jury heard the same directly from Williams.
We cannot conclude that the trial court's denial of the mistrial motion amounted to an unfair, arbitrary, or unreasonable, ruling, or that it stemmed from an application of unsound legal principles. Manus, Inc. v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App. 2006) (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000)).
Given the facts of the trial, we conclude that even assuming an error occurred, such error could not have contributed to the outcome of the trial beyond a reasonable doubt. Stewart v. Commonwealth, 306 S.W.3d 502, 508 (Ky. 2010) (quoting Neder v. U.S., 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Any such error in denying the mistrial motion would have been harmless.
III. CONCLUSION
Having reviewed the record, we must conclude that the trial court did not commit palpable error in giving the challenged jury instruction, nor did the trial court commit an abuse of discretion in denying the defense motion for a mistrial. Having so concluded, we hereby affirm the judgment and sentence imposed by the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Frankfort, Kentucky John Gerhart Landon
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky