RONNIE LEE COKER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 28, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED: NOVEMBER 10, 2005; 10:00 A.M.
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
2004-CA-000398-MR
AND
2004-CA-000428-MR
RONNIE LEE COKER
v.
APPELLANT
APPEALS FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
INDICTMENT NOS. 03-CR-00142 & 03-CR-00157
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; HUDDLESTON, SENIOR JUDGE. 1
HUDDLESTON, SENIOR JUDGE:
For the past thirty years, Martin
Twist, an entrepreneur, has owned and operated numerous
businesses specializing in drilling for natural gas.
Since
Twist’s businesses have historically been capital intensive, he
has been required over the years to solicit large sums of money
from numerous individuals.
According to Twist, he has always
kept investor information confidential.
Twist has employed
agents to call and solicit money from potential investors.
1
Two
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
of Twist’s solicitors were Ronnie Lee Coker and Forrest Hammond.
In early 2003, Twist fired both employees.
After being fired, Hammond and Coker devised a scheme
to extort money from Twist.
Knowing Twist’s concerns about
investor confidentiality, Hammond, in June 2003, sent an
anonymous letter to Twist demanding that Twist place a gym bag
containing $150,000.00 at mile-marker 59 on Interstate Highway
64 in Franklin County.
If Twist failed to comply, then letters
would be sent to each of his investors revealing confidential
information; moreover, each letter would include a list of
regulatory agencies along with a recommendation urging investors
to report Twist to those agencies.
After Twist received the extortion letter, he
contacted the Kentucky State Police. 2
In an attempt to catch the
unknown blackmailers, the KSP placed $301.00 in a gym bag and,
in the early morning hours of June 20th, left it at mile-marker
59.
Despite the fact that several state troopers were hidden
nearby, Hammond and Coker managed to retrieve the money and
escape unnoticed.
Having only received $301.00, Hammond and Coker sent
three more anonymous letters to Twist demanding a total of
$200,000.00.
On July 19, 2003, the KSP placed another gym bag
2
Twist gave the Kentucky State Police a list of the former employees that he
felt may have been responsible for the extortion letter. Twist initially
suspected Alexander White since White owed $125,000.00 in restitution.
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containing an additional $301.00 at mile-marker 59.
This time,
however, several additional police officers were hidden at the
scene.
When Coker tried to retrieve the money, he and Hammond
were arrested.
Once in custody, both confessed.
Hammond admitted to
participating in the extortion scheme and admitted that he had
sent the letters to Twist.
But he initially insisted that
someone else had anonymously sent the letters to him along with
instructions to forward them to Twist and to collect any
blackmail money.
According to Hammond, once he and Coker had
retrieved the money, they were to await further instructions.
In contrast, Coker admitted that he had actively participated in
the extortion scheme, although he insisted that Hammond had
written and sent the letters to Twist.
Coker also acknowledged
that he participated in the extortion scheme to gain revenge for
being fired by Twist.
Both Coker and Hammond were charged in an indictment
with two counts of theft by extortion over $300.00.
In
addition, Coker was charged with being a second-degree
persistent felony offender.
Hammond pled guilty and agreed to
testify against his cohort, Coker.
At Coker’s trial, Hammond
testified that he had written the letters and had sent them to
Twist.
-3-
The statute defining theft by extortion, Kentucky
Revised Statutes (KRS) 514.080, as it applies to Coker, provides
that
(1) A person is guilty of theft by extortion
when he intentionally obtains property of
another by threatening to:
* * *
(c) Expose any secret tending to subject any
person to hatred, contempt, or ridicule, or
to impair his . . . business repute[.] 3
At trial, Coker tried to cast doubt on the secrecy of
the investor information by attempting to show that Twist’s
investors had ready access to the information.
In addition, he
attempted to cast doubt on Twist’s business reputation.
Coker
referred to Twist’s business activities as a “confidence game”
and as a “pyramid scheme,” and he strongly implied that Twist
was a “con artist” who duped innocent people out of their life’s
savings.
Thus, Coker reasoned that even if the investor
information was secret, its exposure could not have impaired
Twist’s business reputation since Twist was, in his estimation,
nothing more than a crook.
Despite his efforts, Coker was
convicted of one count of the theft by extortion over $300.00
and of being a persistent felony offender in the second degree.
3
Emphasis supplied.
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Coker was sentenced to imprisonment for a total of seven years.
He appeals to this Court seeking relief from his conviction. 4
BATSON VIOLATION
During voir dire, Coker asked the members of the
venire if they could name some of the rights found in the Bill
of Rights, and a potential juror named Hanley, one of two
African-American veniremen, answered, “Due process.”
Later,
Coker’s attorneys asked what verdict must the jury return if the
Commonwealth failed to prove beyond a reasonable doubt every
element of the offense.
guilty.”
Hanley answered again and said, “Not
The Commonwealth then used one of its peremptory
challenges to strike Hanley. 5
After Hanley was struck, Coker challenged the strike
pursuant to Batson v. Kentucky. 6
As grounds for the Batson
challenge, Coker’s attorneys alleged that the prosecutor
admitted that he had struck both black veniremen, alleged that
Hanley did not give a response that justified his being struck,
and they pointed out that the prosecutor had a history of Batson
4
Coker was charged in indictment number 03-CR-00142-001 with two counts of
felony theft by extortion and was charged in indictment number 03-CR-00157
with being a persistent felony offender in the second degree. While there
were two indictments, there was only one Judgment and Sentence on a Plea of
Not Guilty. But Coker filed two notices of appeal for each indictment which
resulted in two separate appeals, 2004-CA-000428-MR and 2004-CA-000398-MR,
from the same judgment. This Court has consolidated the two appeals.
5
Previously, the Commonwealth had struck the only other African-American
member of the venire for cause.
6
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
-5-
violations.
The prosecutor argued that he struck Hanley because
he had answered Coker’s constitutional questions, and claimed
that he struck three other members of the venire for the same
reason.
The prosecutor also insisted that since Hanley had
voluntarily answered the defense’s questions, he had clearly
aligned himself with the defense.
Coker points out that when a criminal defendant
alleges that a prosecutor has struck a member of the venire
solely on the basis of race, he needs to establish a prima facie
case of discrimination. 7
Coker insists that he did.
Once a
prima facie case for discrimination has been established, the
prosecutor must then provide a race-neutral explanation for the
strike. 8
Coker insists that the prosecutor’s explanation was not
satisfactorily race-neutral.
Finally, Coker argues that the
trial court must inquire into the prosecutor’s intent and assess
his credibility. 9
According to Coker, since the trial court
never questioned the prosecutor, it neither determined his
intent nor assessed his credibility.
So, Coker reasons, his due
process rights were violated.
7
Commonwealth v. Snodgrass, 831 S.W.2d 176, 179 (Ky. 1992).
8
Washington v. Commonwealth, 34 S.W.3d 376 (Ky. 2000).
9
Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834
(1995), and U.S. v Hill, 146 F.3d 337, 342 (6th Cir. 1998).
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In Batson v. Kentucky, 10 the United States Supreme
Court held that a prosecutor cannot use peremptory challenges to
strike members of the venire from serving on a jury solely on
the basis of race.
To evaluate Batson challenges, the Supreme
Court set forth a three-step process:
First, the defendant must make a prima facie
showing that the prosecutor has exercised
peremptory challenges on the basis of race.
Second, if the requisite showing has been
made, the burden shifts to the prosecutor to
articulate a race-neutral explanation for
striking the jurors in question. Finally,
the trial court must determine whether the
defendant has carried his burden of proving
purposeful discrimination. 11
On appellate review, a trial court’s denial of a
Batson challenge will not be reversed unless clearly erroneous. 12
As the United States Supreme Court noted in Hernandez v. New
York, when dealing with a Batson challenge, the decisive
question is whether the prosecutor’s race-neutral explanation is
believable. 13
And, as the United States Court of Appeals for the
Sixth Circuit has said, “[t]he issue of whether the prosecutor
met his . . . burden [of providing a race-neutral explanation]
10
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
11
Commonwealth v. Snodgrass, supra, note 7, at 178 (citations omitted).
12
Hernandez v. New York, 500 U.S. 352, 369, 11 S. Ct. 1859, 114 L. Ed. 2d
395 (1991).
13
Id at 365.
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needs an articulated explanation by the [trial] court.” 14
That
Court went further and stated that a trial court has the
responsibility to assess a prosecutor’s credibility under the
totality of the circumstances. 15
In United States v. Hill, the
Court lamented that the record gave no indication nor insight
into the trial court’s thought process regarding the
prosecutor’s credibility. 16
Due to this, the Hill court held
that it could not meaningfully review the trial court’s
decision; thus, the Court reversed and remanded. 17
In this case, as in Hill, the record gives no insight
into the trial court’s thought process since the trial court did
not ask the prosecutor any questions nor assess the prosecutor’s
credibility.
Neither did it explain why it found the
Commonwealth’s explanation sufficiently race-neutral.
Furthermore, the record does not support the prosecutor’s
explanation.
The record reveals that Hanley answered only two
of the many questions posed by defense counsel.
In fact, Hanley
only spoke a total of four words during voir dire, and he did so
quietly and with apparent reluctance.
The prosecutor’s
explanation, that Hanley’s answers clearly showed that he, like
14
United States v. Hill, 146 F.3d 337, 342 (6th Cir. 1998).
15
Id.
16
Id.
17
Id. at 343.
-8-
other jurors who answered similarly, favored the defense, is a
non sequitur.
Hanley’s answers revealed nothing more than a
basic knowledge of constitutional law.
Since it is unknown
whether the trial court considered the totality of the
circumstances surrounding the alleged violation, we conclude
that the court erred when it denied Coker’s Batson challenge.
Therefore, we reverse and remand for a new trial.
DISCOVERY VIOLATIONS
On appeal, Coker avers that although he had requested
from the Commonwealth information regarding Twist’s former
employees, the Commonwealth failed to produce this information,
and the trial court refused to compel its production.
Coker
argues that if the court had compelled discovery, this
information may have revealed that other former employees were
involved in the extortion plot.
Thus, Coker says, he was denied
the opportunity to present a full defense.
The Commonwealth’s discovery obligations to a criminal
defendant are set forth in Kentucky Rules of Criminal Procedure
(RCr) 7.24.
When a criminal defendant makes a written request,
the Commonwealth is obligated to provide the defendant with any
and all incriminating statements, known to the Commonwealth,
which the defendant made orally to any witness. 18
Moreover, the
Commonwealth is obligated to provide the defendant with any and
18
Ky. R. Crim. Proc. (RCr) 7.24(1).
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all written or recorded statements or confessions made by the
defendant that are in the Commonwealth’s possession. 19
And, upon
court order, the Commonwealth must give the defendant access to
books, papers, documents or any other tangible objects in the
Commonwealth’s possession so the defendant may inspect and copy
such items if the defendant needs the items to prepare his
defense, provided, of course, the defendant’s request is
reasonable. 20
If the Commonwealth has violated a trial court’s
discovery order, then such a violation will justify setting
aside a criminal conviction if there exists a reasonable
probability that had the requested evidence been produced the
result at trial would have been different. 21
In this case, the trial court did not err when it
refused to compel the Commonwealth to produce information
regarding Twist’s former employees.
The Commonwealth was not
obligated under RCr 7.24 to produce this information.
First,
the record does not reveal that the information was in the
Commonwealth’s possession.
Second, the record suggests that
such information would not have lead to exculpatory evidence.
Coker contends that the information may possibly have revealed
19
Id.
20
RCr 7.24(2).
21
Weaver v. Commonwealth, 955 S.W.2d 722, 725 (Ky. 1997).
-10-
that other former employees were involved in the extortion
scheme.
However, the record refutes that contention since both
Coker and Hammond confessed and implicated each other.
If
others were involved, then Coker would have been in a better
position than the Commonwealth to know the identity of his unindicted co-conspirators.
And even if such individuals did
exist without Coker’s knowledge, their existence would not
negate Coker’s guilt since he confessed that he willingly
participated in the extortion scheme to gain revenge for being
fired by Twist. 22
Coker also argues that the trial court abused its
discretion by not compelling the Commonwealth to produce
information regarding Twist’s other businesses.
According to
Coker, this information may have helped him cast doubt on
Twist’s business reputation.
The Commonwealth should have produced this information
once it had been ordered to do so if it possessed the
information.
However, the record does not indicate that the
Commonwealth possessed any information regarding Twist’s other
businesses, and, given that this was a criminal case, there was
no reason for the Commonwealth to have such information.
Furthermore, the record reveals that Coker’s defense attorneys
22
Coker does not assert that the Commonwealth withheld exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963).
-11-
had extensive information about Twist’s other companies and used
this information to skillfully attack both Twist’s business
reputation and his credibility.
To put it simply, Coker has
failed to show a reasonable probability that disclosure of such
information would have lead to a different result at trial.
CONCLUSION
In view of our ruling on the Batson issue, we need not
address the other issues Coker has raised on appeal.
The judgment is reversed and this case is remanded to
Franklin Circuit Court with directions to grant Coker a new
trial.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
GUIDUGLI, JUDGE, CONCURS IN PART, DISSENTS IN PART,
AND FILES SEPARATE OPINION.
GUIDUGLI, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
I respectfully concur in part and dissent in part.
I
believe the Commonwealth Attorney provided a race-neutral basis
for striking Mr. Hanley, an African-American juror.
The
Commonwealth stated that it had excused all prospective jurors
who had responded to defense counsel’s questions, believing they
may be biased for the defense.
In that the Commonwealth removed
all jurors who verbally responded to defendant’s voir dire
questions, I believe the prosecutor articulated a race-neutral
explanation for striking the juror in question.
-12-
Thus, I would
affirm Coker’s conviction.
I should add that although the
majority does not address all appellate issues raised by Coker
(since it reversed on the Batson issue), I have reviewed those
issues and perceive no reversible error in this matter.
Therefore, I would affirm the Judgment and Sentence entered by
the Franklin Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shannon Dupree
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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