ALLEN GREY V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
RENDERED : MAY 24, 2007
NOT TO BE PUBLISHED
M
`$uyrrmr Caurf of
2005-SC-000590-MR
ALLEN GREY
V.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
NO. 03-CR-00469
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Allen Grey, was convicted by a Fayette Circuit Court jury in May
2005 of wanton murder, three counts of assault in the fourth degree, and
tampering with physical evidence . For these convictions, Grey was sentenced to
a total of 35 years in prison . Grey now appeals to this Court as a matter of right.
Ky. Const. ยง110(2)(b). He asserts three arguments in his appeal : 1) that the trial
court erred when it failed to grant a mistrial when potential evidence had not
been provided to Grey in discovery and was destroyed by the Commonwealth ; 2)
that the trial court erred in not directing a verdict on the three assault charges ;
and 3) that the trial court erred in instructing the jury on the wanton murder
charge . For the reasons set forth herein, we affirm Grey's convictions .
On or about the evening of February 7, 2003, Grey was involved in an
altercation outside of a club in Lexington, Kentucky. During the dispute,
someone fired several shots - most likely into the air. Upon hearing the shots
being fired, Grey fired his gun into a crowd of people, killing William Henderson,
and wounding Robert Richard, Anthony Edwards, and Maurice Walker. After the
shooting, Grey threw his gun into a local reservoir.
l. A mistrial was not warranted despite potential evidence not being turned
over to Grey in discovery and the evidence having been subsequently
destroyed .
At the close of evidence on the last day of the trial, the Commonwealth
notified Grey, and the trial court, that a small caliber bullet had been found a few
days after the shooting on top of a three-story building near the crime scene.
The building was located directly behind where Grey testified he stood during the
altercation . The bullet had been turned into the property room at the Lexington
Police Department under another case number and was subsequently destroyed.
After a bench conference, where both Officer Florence and Detective Matt
Brotherton of the Lexington Police testified about the finding and destruction of
the bullet, Grey prompted his counsel to make a motion for a mistrial. The trial
court overruled the motion, finding that there was nothing exculpatory about the
missing bullet because both Grey and the Commonwealth freely admitted
another person fired a gun at the scene and that the Commonwealth did not act
in bad faith. Grey's counsel argued that had it known about the bullet earlier it
would have performed a different cross-examination on several of the
Commonwealth's witnesses .
In this case, we find that the trial court did not err in overruling the motion
for a mistrial. In order for lost or destroyed evidence to be a violation of due
process "the evidence must either be intentionally destroyed, or destroyed
inadvertently outside normal practices ." Tamme v. Commonwealth, 759 S.W.2d
51, 54 (Ky. 1988) . In addition, the lost evidence must "possess an exculpatory
value that was apparent before it was destroyed." Id. (citin
California v.
Trombetta , 467 U .S. 479, 489,104 S.Ct. 2528, 2534, 81 L.Ed .2d 413 (1984)) .
Here, Grey presents no concrete evidence that the misplacing of the bullet, or its
destruction, was intentional or destroyed inadvertently outside of normal
practices . The evidence indicates that the destruction of the bullet was nothing
"but an unforeseen accident which occurred in the normal course of the police
department's business ." Tamme, 759 S.W.2d at 54. In fact, Grey's defense
counsel conceded at trial that there was no indication of bad faith on the part of
the Commonwealth. Further, Grey has not presented any evidence other than
mere speculation, that the bullet had any potential exculpatory value . At trial,
Grey's defense counsel even agreed that the missing bullet best supported the
Commonwealth's theory of the case - that the first shooter fired a bullet up into
the air and not directly at Grey. Thus, the trial court committed no error in
overruling the mistrial motion .
In the alternative, Grey argues that he should have at least received a
missing evidence instruction on the bullet . However, as previously discussed,
Grey advances no credible theory that the bullet was destroyed in bad faith. See
Esteg v. Commonwealth , 64 S .W.3d 805, 810 (Ky. 2002) (stating that absent
some degree of bad faith a defendant is not entitled to an instruction that the jury
may draw an adverse inference from the failure to preserve or collect any
evidence) .
11. Appellant was not entitled to a directed verdict on the three assault
charges.
Grey's next allegation of error is that the trial court failed to grant a
directed verdict motion on the three assault charges. He argues that a directed
verdict should have been granted because the bullets which hit the three victims
were never recovered. Since the bullets were never recovered, and hence not
linked directly to his gun, Grey argues that a third unidentified shooter could have
been the person who assaulted the victims.
"On appellate review, the test for a directed verdict is, if under the
evidence as a whole, it would be clearly unreasonable for a jury to find guilt."
Commonwealth v. Benham, 816 S.W.2d 186,187 (Ky. 1991). The trial court is
authorized to direct a verdict in favor of the defendant "if the prosecution
produces no more than a mere scintilla of evidence." Benham, 816 S .W .2d at
187.
In this case, the trial court was correct to deny the motion for a directed
verdict . The prosecution presented more than sufficient evidence against Grey.
Such evidence included Grey's own statement that he fired a gun in the direction
of the victims, testimony from numerous witnesses indicating that Grey was the
shooter, testimony from other witnesses stating that the shots were fired from
Grey's general location and that only two guns were fired that night, testimony
from a man whom indicated that Grey asked him not to testify at trial because
Grey was going to try to put the blame on his nephew, and the fact that Grey
dumped his gun in a local reservoir after the shooting . Based on the above
evidence, a reasonable juror could find that it was Grey who shot each of the
victims . The trial court did not commit error in denying the motion for directed
verdict.
111. The jury instructions were proper.
Grey's final allegation is that the trial court erred in instructing the jury on
wanton murder.' Grey admits that this issue is not preserved for appellate
review. Therefore this alleged error will be reviewed under the palpable error
standard . RCr 10 .26. Palpable error occurs only if the alleged error created
manifest injustice . Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997) .
Grey argues that the wanton murder instruction was error because he was firing
his gun in self-defense at the shooter who was firing his gun into the air. Grey
argues that since he had fear and a subjective need to defend himself, he could
not have acted with extreme indifference to the value of human life, a
requirement for wanton murder.
Upon review, we find adequate evidence for a jury to reasonably
determine that Grey was guilty of wanton murder. Having a subjective belief that
' In Grey's brief, he refers to this allegation of error as the trial court failing to
direct a verdict on the charge of wanton murder. However, in reading his brief it
is obvious that he really alleges error in the trial court's instructing the jury on the
charge of wanton murder.
one is acting in self-defense does not negate otherwise wanton conduct . See
KRS 503.120 (stating that a defendant cannot claim self-defense if his actions
were wanton or reckless) . In addition, the jury was instructed on the crimes of
manslaughter in the second degree and reckless homicide and could have found
Grey guilty of those acts instead of wanton murder if they believed he did not act
with extreme indifference to the value of human life. There was no manifest
injustice caused by the instruction on wanton murder.
For the reasons set forth herein, the judgment and sentence of the Fayette
Circuit Court is affirmed .
All sitting . All concur .
ATTORNEY FOR APPELLANT
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133
ATTORNEY FOR APPELLEE
Gregory D. Stumbo
Attorney General
William Robert Long, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.