JACKSON (DAVID) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 8, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001450-MR
DAVID JACKSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 08-CR-002889
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
LAMBERT, JUDGE: David Jackson appeals from a judgment imposing a twelveyear sentence for a conviction of first-degree rape, first-degree wanton
endangerment, and illegal possession of drug paraphernalia. After careful review,
we affirm.
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Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
On September 22, 2008, S.N., the victim in this case, was in
Louisville, Kentucky, enjoying a social outing with some friends. S.N. and her
friends decided to go to Phoenix Hill Tavern on Bardstown Road; however, the
establishment was closed. Instead, S.N. and her friends decided to stop at a bar
called O’Shea’s. S.N. drove her truck to O’Shea’s and parked it on a side street off
Bardstown Road. S.N. stayed at the bar for a short time and drank part of a beer.
S.N. described the atmosphere in the courtyard of O’Shea’s as friendly, with
people discussing how their day had gone. S.N. recalled casually talking with a
black man she later identified as the appellant, who was seated at one of the
courtyard tables. After a short time, S.N. decided to leave because she had to work
in the morning. She later testified that she left O’Shea’s between 12:30 a.m. and
1:00 a.m. to look for her truck.
As she was trying to find her truck, S.N. became confused and ended
up going back to O’Shea’s to see if any of her friends could help her find it. The
appellant (hereinafter Jackson) asked if she needed help looking for her truck and
stated that he lived in the area and could help her. S.N. accepted Jackson’s help,
and they walked around for a bit searching for her truck. As Jackson and S.N.
were looking down one side street, Jackson asked her if she wanted any crack
cocaine, to which she responded “no.” After reaching Broadway and walking
down Baxter Avenue, Jackson told S.N. that he needed to put something away or
drop off his backpack. Then she heard Jackson say, “hey, hey!” When S.N. turned
in his direction, Jackson hit her so hard in the side of the head that she lost
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consciousness. When she regained consciousness, she was being shoved down in
the dirt on a mattress under a viaduct.
Jackson then apparently ripped off her clothes and stood on her while
he took off his clothes. Jackson got on top of S.N. and put his penis inside her
vagina. According to S.N., Jackson then asked her if she liked it and said
something about how all white women liked being with black men. S.N. later told
police that Jackson did not wear a condom, but she thought from the sounds he
made that he ejaculated. Meanwhile, while he was raping her, Jackson was beating
her in the face and on the sides of her head with his fists.
At one point, S.N. heard a female voice and tried to call out for help,
but Jackson covered her mouth. S.N. testified that she felt like she slipped in and
out of consciousness several times due to Jackson’s hitting her repeatedly in the
face and head. At one point, Jackson told her to get her “white whore ass off his
bed” and leave. The last time she regained consciousness, she grabbed her clothes
and ran screaming from the area. At that point, S.N. saw a man on the street that
helped her to a nearby gas station, where she called 911.
Louisville Metro Police Officer Jim Johnson responded to the 911 call
at 3:50 a.m. Officer Johnson found S.N. with a black man near a pay phone. The
man told Officer Johnson that he saw S.N. walking down the street, needing help,
and he helped her to a pay phone. Officer Johnson noticed that S.N.’s face looked
as if it had been used as a “punching bag” and that her eyes were swollen and
bloody, and she had a bloody nose. S.N. told him what happened and gave a
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description of the place where the attack occurred. She also gave Officer Johnson
a description of the man who raped her. Officer Johnson radioed for a sex crimes
detective to come to the site, and S.N. was taken to University Hospital in an
ambulance.
After S.N. left in the ambulance, Officer Johnson made a quick trip to
the area she had described, which was the area between the 1000 and 1100 blocks
of Broadway under the viaduct. Officer Johnson had been there several times
looking for people. While Officer Johnson did not locate anyone matching
Jackson’s description, he did observe a mattress as well as a table next to the
mattress that contained crack pipes, Brillo pads, and residue. Officer Johnson then
traveled to the hospital, met with his beat partner, Officer Kenneth Drury, and
stayed with S.N. until Detective John Grissom arrived at approximately 5:40 a.m.
At the hospital, Officer Johnson gave Officer Drury a description of
the suspect and the area where the rape allegedly occurred. Officer Drury went to
the viaduct and saw Jackson sleeping on the mattress. Both Jackson and the
location matched the description given by S.N. Officer Johnson and Detective
Grissom then came to the area of Broadway and the viaduct. Detective Grissom
spoke with Jackson, and then Officer Johnson placed him under arrest for
possession of drug paraphernalia. Jackson was arrested because he had three crack
pipes with fresh residue lying directly behind him and on a glass table next to him,
and there was a fresh Brillo pad and cocaine residue in the vicinity.
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Detective Grissom went back to the office to assemble a photo pack
for S.N. to review. He obtained a photograph of Jackson taken when he was
arrested, which was included in the photo pack. S.N. immediately identified
Jackson as the man who raped her, shoved the photo pack away, and broke down
crying.
DNA was obtained from Jackson while he was in custody. Testing
performed on S.N.’s sexual assault kit revealed blood but no semen on her internal
and external vaginal/genital swabs, blood but no semen on the fabric of her skirt,
and no semen on her skirt. Only Jackson’s DNA was found on his penile swab. A
mixture of Jackson’s and S.N.’s DNA was consistent with the blood on the skirt
fabric.
At trial, the jury found Jackson guilty on one count of first-degree
rape, one count of first-degree wanton endangerment, and of possession of drug
paraphernalia. Prior to the sentencing phase of trial, Jackson entered a guilty plea,
agreeing to a total sentence of twelve-years’ imprisonment. Jackson timely filed a
notice of appeal, and this appeal now follows.
As his first assignment of error on appeal, Jackson argues that the trial
court abused its discretion by allowing hearsay in the form of Officer Johnson’s
testimony recapping S.N.’s description of the incident, in violation of his federal
and state constitutional rights to confrontation. At trial, Jackson objected to the
introduction of Officer Johnson’s testimony in this regard. The trial court
overruled the objection and ruled that the testimony was admissible under
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Kentucky Rules of Evidence (KRE) 803(1), the present sense impression
exception, because S.N. was under the immediate influence of the act when she
made the statements to Officer Johnson. However, when Jackson again objected,
the trial court corrected itself, overruling the objection and allowing the testimony
pursuant to KRE 803(2), the excited utterance exception.
Both the Commonwealth and Jackson correctly point out that the
standard of review for a trial court’s evidentiary rulings is for an abuse of
discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.
2000). An evidentiary ruling will only be overturned by this Court where “the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Id. at 581.
The “excited utterance” hearsay objection under KRE 803(2) is defined as
“[a] statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or the condition.” In Noel
v. Commonwealth, 76 S.W.3d 923, 926 (Ky. 2002), the Kentucky Supreme Court
articulated the following analysis for the excited utterance exception:
The premise for the exception is that statements
made under the stress of the excitement caused by a
startling occurrence are more likely the product of that
excitement and, thus, more trustworthy than statements
made after the declarant has had an opportunity to reflect
on events and to fabricate. Morgan v. Foretich, 846 F.2d
941, 946 (4th Cir. 1988); Mounce v. Commonwealth, 795
S.W.2d 375, 379 (Ky. 1990); Robert G. Lawson, The
Kentucky Evidence Law Handbook § 8.60, at 454–56 (3d
ed. Michie 1993). For an out-of-court statement to
qualify for admission under KRE 803(2), “it must appear
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that the declarant's condition at the time was such that the
statement was spontaneous, excited, or impulsive rather
than the product of reflection and deliberation.” United
States v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980)
(gathering cases), cert. denied, 450 U.S. 1001, 101 S.Ct.
1709, 68 L.Ed.2d 203 (1981). We have identified the
following factors as relevant to a determination of
whether an out-of-court statement is admissible under
KRE 803(2):
(i) lapse of time between the main act and the
declaration, (ii) the opportunity or likelihood of
fabrication, (iii) the inducement to fabrication, (iv)
the actual excitement of the declarant, (v) the place
of the declaration, (vi) the presence there of visible
results of the act or occurrence to which the
utterance relates, (vii) whether the utterance was
made in response to a question, and (viii) whether
the declaration was against interest or self-serving.
Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky.
1998) (quoting the pre-code case of Souder v.
Commonwealth, 719 S.W.2d 730, 733 (Ky. 1986)). We
have also clarified that these factors do not pose a truefalse test for admissibility but, rather, are guidelines to be
considered in determining admissibility. Jarvis, supra, at
470 (citing the pre-code case of Smith v. Commonwealth,
788 S.W.2d 266, 268 (Ky. 1990), cert. denied, 498 U.S.
852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990)). Finally,
we have held that, in a close case, “the trial court's
decision to admit or exclude the evidence is entitled to
deference.” Souder, supra, at 733.
Jackson argues that S.N.’s statements to Officer Johnson are inadmissible
hearsay because they were not made during the encounter or immediately
thereafter and that too much time had passed between the alleged rape and S.N.’s
statements to Officer Johnson. Further, Jackson argues that because Officer
Johnson was the second person S.N. encountered after the rape, under the
Kentucky Supreme Court’s analysis in Young v. Commonwealth, 50 S.W.3d 148,
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(Ky. 2001), her statement does not qualify as an excited utterance or a present
sense impression.
In Young, the Court held inadmissible as a present sense impression or an
excited utterance a waitress’s statement to the responding officer, which was made
seven minutes after she witnessed a shooting. Id. at 165-167. The Court noted that
the statements made by the waitress were not made contemporaneously with the
event she was describing or immediately thereafter, and thus did not qualify as a
present sense impression. Id. at 166. Furthermore, the waitress’s statement was
not an excited utterance because the officer deliberately interviewed her because
she was not as excited as the other witnesses, and her statement about the killer
was not spontaneous, but instead was in response to direct questioning from police.
Id. at 167.
The Commonwealth counters that when the Noel factors are applied to the
case at bar, S.N.’s statements to Officer Johnson qualify as excited utterances. The
Commonwealth argues that the lapse of time between the main act and the
declaration to Officer Johnson was short. It argues that S.N. testified that she
began looking for her truck at approximately 12:30 a.m. and that Officer Johnson
was called out to the Chevron Station at 3:50 a.m., and thus the rape took place
sometime between 12:30 a.m. and 3:50 a.m. It is unclear how long the rape lasted,
because S.N. was beaten unconscious during the attack. However, at her first
opportunity, S.N. fled the scene, contacted authorities, and immediately gave her
description of the accident.
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Further, the Commonwealth contends that S.N. had no opportunity to
fabricate her statements because she immediately ran for help and gave a statement
to the police, which was supported by the physical evidence of an assault to her
head and face. The Commonwealth also points out that S.N. was extremely upset
and was having a hard time getting any words out or forming complete sentences
when she gave her statement to Officer Johnson. Therefore, it contends that her
demeanor was very excited and upset, mirroring that of an excited utterance. The
Commonwealth also argues that the declaration was made at the Chevron Station,
which was very close to where the rape allegedly occurred.
Finally, the Commonwealth argues that S.N.’s face looked as if it had been
used as a punching bag, which was visible evidence supporting her statements to
Officer Johnson. Her statements were not self-serving since she had no reason to
fabricate that she had been raped or brutally beaten. Taking all these factors into
consideration, the Commonwealth argues, S.N.’s statements to Officer Johnson
qualify as excited utterances pursuant to KRE 803(2).
After careful review of the applicable caselaw above and the factors as set
forth by the Commonwealth, we agree that the trial court did not abuse its
discretion in admitting Officer Johnson’s testimony as admissible hearsay under
KRE 803(2). S.N.’s statements were given immediately after the attack and the
physical evidence supported the details she had provided to the police. Further, the
statements were given in close proximity to where the attack occurred, and there
was little to no time for S.N. to fabricate any story. Finally, S.N. was clearly
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excited and upset when she gave her statement to Officer Johnson, perhaps the
most convincing argument that her statements were in fact excited utterances.
Accordingly, we find no error in the trial court’s evidentiary rulings admitting
Officer Johnson’s testimony about S.N.’s statement as acceptable hearsay pursuant
to KRE 803(2).
Jackson next argues that he was improperly arrested without a warrant and
that his state and federal constitutional rights against search and seizure were
denied. He also argues that his illegal arrest tainted the victim’s identification of
him as the perpetrator. Jackson concedes that this argument was not preserved for
appellate review, but urges this Court to review for palpable error under Kentucky
Rules of Criminal Procedure (RCr) 10.26. In Martin v. Commonwealth, 207
S.W.3d 1, 3-4 (Ky. 2006), the Kentucky Supreme Court further explained what is
required in conducting review under RCr 10.26. Under this rule, an error is
reversible only if a manifest injustice has resulted from the error. That means that
if, upon consideration of the whole case, a substantial possibility does not exist that
the result would have been different, the error will be deemed nonprejudicial.
Graves v. Commonwealth¸17 S.W.3d 858, 864 (Ky. 2000) (internal quotation
omitted). The Commonwealth strongly urges us not to conduct such review under
RCr 10.26, because Jackson did not file a motion to suppress S.N.’s identification
of him as the perpetrator.
Under RCr 9.78, when a defendant moves to suppress a witness
identification, the trial court must conduct an evidentiary hearing and enter
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findings resolving the essential issues of fact. If supported by substantial evidence,
the factual findings of the court are conclusive. According to the Commonwealth,
review of this issue by this Court to determine if there was palpable error would
undermine the fact-finding by the trial court set out in RCr 9.78. Further, the
Commonwealth argues that proceeding to a palpable error review without a
suppression motion or evidentiary hearing would also undermine the deference
given to factual findings made by the trial court.
We agree with the Commonwealth that because no such motion to suppress
Jackson’s identification was made, the trial court necessarily did not conduct the
requisite evidentiary hearing or enter any findings of fact. Accordingly, there is
nothing that we can review for palpable error. However, even were we to review
Jackson’s claims for palpable error, the record indicates that Jackson’s arrest was
proper and that no manifest injustice occurred.
Jackson was arrested without a warrant for illegal possession of drug
paraphernalia, a misdemeanor. A warrantless arrest of an individual in a public
place for a felony, or a misdemeanor committed in the officer’s presence, is
consistent with the Fourth Amendment if the arrest is supported by probable cause.
Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003). See
also KRS 431.005(1)(d). Jackson argues that the facts herein do not support the
commission of a misdemeanor in Officer Johnson’s presence and, thus, that there
was not probable cause for his arrest. “To determine whether an officer had
probable cause to make an arrest, a court must examine the events leading up to the
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arrest, and then decide ‘whether these historical facts, viewed from the standpoint
of an objectively reasonable police officer, amount to’ probable cause.” Maryland
v. Pringle, 540 U.S. 366, 124 S. Ct. 795 at 797, quoting Ornelas v. United States,
517 U.S. 690, 696, 116 S. Ct. 1657, 1661-1662, 134 L. Ed. 2d 911 (1996).
In support of his argument that the facts do not support the commission of a
misdemeanor in Officer Johnson’s presence, Jackson makes an attenuated
argument that the arresting officers did not see him and the drugs at the same time
and, thus, that the officers did not observe that the drugs were within his control.
However, a careful review of the testimony at trial indicates that Officer Johnson
specifically testified that Jackson was arrested for possession of drug paraphernalia
because there were three crack pipes lying directly behind him on the rocks of the
viaduct, and on the glass table there was a fresh Brillo pad and cocaine residue.
Officer Johnson further testified that Jackson was lying on the mattress and the
paraphernalia was directly behind and beside him. The three pipes had fresh
residue on them. We agree with the Commonwealth that these facts provided
Officer Johnson with probable cause to arrest Jackson for possession of drug
paraphernalia. Accordingly, because Jackson’s arrest was not illegal, the victim’s
identification was not tainted, and there was no possibility that the result of his trial
would have been different.
Finally, Jackson argues that he was denied his right to a unanimous jury
verdict because the instruction on possession of drug paraphernalia permitted the
jury to convict him on a theory not supported by the evidence. Again, Jackson
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concedes that this issue is not preserved for our review and urges us to consider his
arguments under RCr 10.26.
We initially note that during the discussion on jury instructions, the trial
court specifically inquired as to whether Jackson had any problems with the
possession instruction, and Jackson indicated that he had no problems with the
instructions. However, we will proceed with a palpable error review.
The jury in this case was provided with the following instruction:
You will find the defendant, DAVID JACKSON,
guilty of Illegal Possession of Drug Paraphernalia under
this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt, all of the following:
A: That in Jefferson County on or about the 23rd day of
September, 2008, the defendant possessed crack pipes
and/or foil;
AND
B: That he did so with intent to smoke crack cocaine.
Jackson specifically takes issue with the language “and/or foil,” arguing that
language allowed the jury to convict on a theory unsupported by the evidence,
since there was no evidence of foil present when Jackson was arrested.
In In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), the
U. S. Supreme Court made clear that the state is required to prove beyond a
reasonable doubt every fact necessary to constitute a crime with which a defendant
is charged. In Burnett v. Commonwealth, 31 S.W.3d 878 (Ky. 2000), the Kentucky
Supreme Court concluded that a theory of guilt set forth in the instructions was not
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supported by the evidence and the appellant was denied a unanimous verdict. The
court further held that the denial of a unanimous verdict, where the error was
properly preserved, was not subject to a harmless error analysis. Id. at 883.
However, in Travis v. Commonwealth, 327 S.W.3d 456, 463 (Ky. 2010), the
Kentucky Supreme Court stepped back from their position in Burnett, supra,
concluding that if there was no reasonable possibility that the jury actually relied
on the erroneous theory, in particular, where there was no evidence of the theory
that could mislead the jury, then there was no unanimity problem. The court held
that even if there was an error in the instructions, namely the inclusion of surplus
language, the error was simply harmless because there is no reason to think the
jury was misled. Id.
Regarding the instant case, in KRS 218A.500(2), the legislature set out the
following:
It is unlawful for any person to use, or to possess with
intent to use, drug paraphernalia for the purpose of
planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing,
repacking, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the
human body a controlled substance in violation of this
chapter.
The evidence established, and the jury concluded, that Jackson was guilty of
possession of drug paraphernalia because three crack pipes with fresh residue were
lying right behind him and a fresh Brillo pad and residue were found on a table
next to him. The language of the jury instruction in question did not contain
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alternate theories of guilt and the inclusion of the language “and/or foil” in the
instruction was not an alternative theory of guilt. The jury concluded that the crack
pipe was paraphernalia. Finally, because there was no evidence that Jackson
possessed any foil, the language was merely superfluous and any error was
harmless based upon the Kentucky Supreme Court’s holding in Travis. We find no
palpable error in the inclusion of this jury instruction.
Discerning no reversible error on appeal, we affirm Jackson’s conviction in
its entirety.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Cicely J. Lambert
Assistant Appellate Defender
Office of the Louisville
Metro Public Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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