GRANT HATFIELD, JR. V. COMMONWEALTH OF KENTUCKY
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RENDERED : JANUARY 24, 2008
TO BE PUBLISHED
"Suprem$ Claud of
2006-SC-000333-MR
V.
ON APPEAL FROM CLAY CIRCUIT COURT
HONORABLE CLETUS MARICLE, JUDGE
NO . 05-CR-000063-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING IN PART AND REVERSI NG IN PART
Appellant, Grant Hatfield, was convicted by a Clay Circuit Court jury, with codefendants, Eddie Joe Cobb and Brian Collins, of attempted murder, kidnapping,
and intimidating a witness . Appellant was sentenced to twenty (20) years
imprisonment . He now appeals as a matter of right. Ky. Const. § 110(2)(b) .
Appellant raises four claims of error: 1) that he was denied a fair trial because a
critical witness was allowed to remain in the courtroom throughout the course of
the trial; 2) that there was insufficient evidence to support a finding of guilt; 3) that
a directed verdict should have been granted as to the kidnapping charge
because of the kidnapping exemption statute ; and 4) that the lineup presented to
the victim was unduly suggestive . Based upon our finding that the kidnapping
exemption is applicable, we affirm in part and reverse in part.
1.
BACKGROUND
On the evening of April 6, 2005, near dusk, Natisha Saylor was picked up in
an automobile driven by Eugene "Corky" Price while walking home from a
convenience store in Clay County, Kentucky. The two individuals drove around
the Horse Creek area for some time, picking up and dropping off acquaintances,
and making various stops. By all accounts, Saylor and Price were high on
cocaine and/or pills. While Saylor was riding with Price, their automobile was
followed by a black Monte Carlo occupied by Joe Cobb, Brian Collins, and
another woman. At some point, Price stopped, pulled over, and went to talk with
the occupants of the Monte Carlo. Price would later testify that he had been
offered $1000 to take Saylor somewhere so that she could be "taken care of."
Price and Saylor continued on to the Horse Creek Baptist Church, where they
stopped .
As Saylor stood in the parking lot of the church talking with Price she noticed
the Monte Carlo pull into the lot, park, and Cobb and Collins get out. Appellant
arrived at the church shortly thereafter driving a white van . Roy Jarvis, who lived
next to the church, testified that he saw "a small white van" along with a dark car
in the church lot on the night of April 6, 2005 .
Saylor claimed that she was first stuck near the front side of the church, and
was forced to go between the church buildings by Appellant, Cobb, and Collins.
She claimed that she did not know where Price was as this was transpiring .
Saylor stated that she was beaten, cut with a knife, and left for dead by
Appellant, Cobb, and Collins. Saylor was subsequently found the following
morning by Nadine Jarvis in the garage area behind the church . When
paramedics arrived on the scene, they found Saylor alive but in critical condition .
She had been severely beaten and cut four or five times about the head and
neck leaving her windpipe exposed. She had facial fractures, a cut on her
forehead that went to the bone, a collapsed left lung, and broken ribs .
Saylor spent the next thirty-nine days at the University of Kentucky Medical
Center and Cardinal Hill Rehabilitation Center receiving treatment for her injuries
and brain trauma . The extent to which her brain was injured, the ensuing
cognitive defects, and their subsequent effects on Saylor's memory and ability to
correctly recall the events of April 6, 2005, served as points of contention during
the resulting trial. Saylor offered a number of conflicting identifications as to her
attackers throughout the timeline of her recovery . Her identifications were often
inconsistent, and the lead officer investigating the case characterized her
testimony as having little value . Ultimately, Appellant, Cobb, and Collins were
charged with first-degree assault, criminal attempt to commit murder, kidnapping,
and intimidating a witness.
Complicating this matter was the connection between Saylor, Appellant, and
the co-defendants, with the murder of Steve Collins in October 2004. Steve
Collins was allegedly murdered by Appellant's and co-defendants' uncle . Saylor
was present at this murder along with another woman named Crystal Hicks .
Hicks was subsequently murdered in November 2004 .
During trial Appellant was found guilty of all charges, except the first-degree
assault charge, which was treated as a lesser-included offense of the attempted
murder charge .
11.
ANALYSIS
A. Appellant was not denied a fair trial or due process of law because
victim's grandfather was allowed to remain present in the court room
after the prosecutor had invoked the rule on exclusion of witnesses .
Appellant asserts that his constitutional rights were denied when Saylor's
grandfather, Charles Marcum, who was the Clay County Jailor, was permitted to
remain in the court room after the prosecution had invoked the rule on exclusion
of witnesses. We disagree .
Prior to the commencement of opening statements, the prosecution invoked
the rule on exclusion of witnesses. At this time, prosecution requested that
Marcum be allowed to remain at the prosecution's table as the victim's family
representative . In tandem with this request, the prosecution indicated that
Marcum would also be a witness for the Commonwealth . Defense counsel then
timely raised an objection, which the trial court overruled .
It is true that until recently there has existed some ambiguity in Kentucky law
as to the nature of a judge's discretion in allowing or disallowing partial
separation of witnesses at trial . Prior to January 1, 2005, there was a
contradiction between the Kentucky Criminal Rules and the Kentucky Rules of
Evidence . Under the old RCr 9.48 there existed permissive language which
indicated that upon the request of one of the parties, the judge "may exclude"
any witness of an adverse party . However, simultaneously, KRE 615 left no
room for discernment to the trial judge upon a request for separation, stipulating
mandatory exclusion upon a timely request. See Mills v. Commonwealth , 95
S.W.3d 838, 841 (Ky. 2003). To alleviate this ambiguity, this Court rescinded
RCr 9.48 and supplanted KRE 615 as the controlling rule governing separation
of witnesses .
KRE 615 states :
At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses and it
may make the order on its own motion . This rule does not authorize
exclusion of:
(1) A party who is a natural person ;
(2) An officer or employee of a party which is not a natural person
designated as its representative by its attorney ; or
(3) A person whose presence is shown by a party to be essential to
the presentation of the party's cause .
The thrust of KRE 615 is to ensure that witnesses do not alter their own
testimony based on what they hear from otherwitnesses . Smith v. Miller , 127
S.W.3d 644, 646 (Ky. 2004). While KRE 615 mandates the separation of
witnesses upon the timely request of a party, it creates three exceptions to the
separation requirement . Thus, under KRE 615, witness separation is mandatory
"in the absence of one of the enumerated exceptions ." Mills , 95 S.W.3d at 841 .
Pertinent to this matter is the third exception to KRE 615 and its treatment
within the boundaries of a trial judge's discretion as to partial separation . The
third exception operates to codify the discretionary authority of a trial judge under
previous case law and RCr 9 .48. See Robert C . Lawson, The Kentucky
Evidence Law Handbook § 11 .30[3] (4th ed. 2003). "Preexisting case law
allowed trial judges to order partial separation upon a determination that the
presence of a witness was necessary to assist counsel during trial ." Id. Clearly,
the impetus of KRE 615(3) is to validate the longstanding and fundamental
practice of separation of witnesses, while upholding the authority of a trial judge
to tailor that obligation under her discretion in situations that she deems of merit.
Thus, those situations of merit will ultimately be circumstances wherein a witness
is essential to effectively further a party's cause .
However, there must be a showing that the witness is essential to furthering a
party's cause . Whether a witness is essential, is and will remain under the
discretion of Kentucky's trial judges . This Court will not attempt to supplant its
judgment therein and abdicate a time honored judicial tradition of allowing a trial
judge to be the arbiter of the decisions placed before it.
But, that is not to say that a trial court's discretion runs unfettered . In
determining whether the trial court has abused its discretion, the following factors
may be considered : 1) the relative importance of the violating witness's
testimony; 2) the effect on potential testimony by what a potential witness has
heard ; 3) the reasonableness of a litigant's failure to anticipate the need for
separation ; and 4) the contribution of a party to rendering a violation . See
Lawson, supra §11 .30[5], at 893 .
Here, Appellant claims that KRE 615 was violated at his trial as the victim's
grandfather was allowed to remain at the prosecution's table. KRE 615(3)
requires a showing that the witness be essential to a party's cause in order to
allow partial separation . The trial court deemed that requirement met, finding no
basis for the objection . While Charles Marcum may have met this criterion, there
was never any showing as required by KRE 615(3) . Consequently, the trial court
erred in allowing Marcum to remain in the courtroom throughout the trial .
This Court has recognized, however, that failure to separate witnesses may
be harmless error under the particular circumstances of the case . See Justice v.
Commonwealth, 987 S.W .2d 306, 315 (Ky. 1999) (rule designed to prevent
witnesses from altering their testimony in light of evidence adduced at trial was
not violated where there was no valid argument that particular witness had
altered his testimony) .
Appellant attempts to rely on Mills in support of his position . In Mills, this
Court found that the trial court erred in allowing a robbery witness to remain at
the prosecution's table and hear other testimony during the course of the trial.
Id . However, Appellant's reliance is misguided. In Mills , the circumstances were
such that the witness in question was permitted to remain at the prosecution's
table alongside an additional representative, the lead investigator of the case.
Id. at 841 . Moreover, the witness in Mills was the only witness to the robbery
and his credibility was of key importance to the outcome . Id. That the lone
witness to the robbery was allowed to shore up his testimony by hearing the
testimony of all the other witnesses amounted to prejudicial error.
Contrast the above with Marcum, the victim's grandfather and disputed
witness in the present case . Here, Marcum was the singular representative
selected to confer with the prosecution during the course of the trial . Such
practice has been supported throughout Kentucky jurisprudence . See Greer v.
Commonwealth , 27 Ky. L. Rptr. 354, 85 S.W. 166, 167 (Ky. 1905) (excepting one
of the victims of a crime from a separation order and permitting him to remain in
the courtroom to aid the prosecuting attorney); see also Druin v. Commonwealth,
124 S .W . 856, 858 (Ky. 1910) (separation order not applicable to father of
prosecutrix in a statutory rape case) ; Speshiots v. Coclanes, 311, Ky. 547, 224
S.W.2d 653, 655 (1949) (daughter/witness of plaintiff who was not fluent in
English allowed to sit with counsel despite separation order) .
Here, Marcum's testimony was largely duplicative of other witness testimony
and not of an indispensable nature to the outcome of the trial. In the present
instance, Marcum was the last of the Commonwealth's eleven witnesses.
Marcum's testimony sought to explain Saylor's mental progress throughout her
recovery, to suggest her veracity, and attempted to draw a nexus between the
families of Appellant, the co-defendants, and the death of Steve Collins .
Appellant expresses concerns that Marcum, by remaining present in the
courtroom, had the opportunity to tailor his testimony to correlate with prior
witnesses. The mere threat or speculation that a witness could tailor testimony
is not persuasive of its own accord to warrant prejudicial error . See United
States v . Pulley , 922 F.2d 1283 (6th Cir. 1991) (holding district court's error
harmless in allowing the government to have two witness representatives remain
in the courtroom despite the separation order and despite the possibility that
witness testimony could be tailored) . Like Pulley , we find that the "overlap" in
Marcum's testimony with the testimony of other witnesses was "inconsequential ."
Id . at 1287 . Furthermore, given the cumulative nature of the evidence before the
jury, it is unlikely that Marcum's testimony `° undermined the integrity of the fact
finding process."' Id. at 1286 (quoting United States v. Kosko, 870 F.2d 162 (4th
Cir. 1989)) . It is the job of the jury to evaluate the credibility of witnesses and
8
lend to that evaluation the relative weight they deem fit. E.a. . Gray v.
Commonwealth , 203 S .W.3d 679, 692 (Ky. 2006) .
The error of failing to make an appropriate finding that Marcum's presence
was essential to presenting the Commonwealth's case is harmless . Given that
Marcum's testimony was largely duplicative and non-essential to the outcome of
the trial, of such a nature that it was unlikely to be greatly tainted by the
testimony of other witnesses, and that the judge was in the purview of his
discretion in allowing Marcum to remain in the courtroom, Appellant's right to a
fair trial was not violated .
While failure to require the showing mandated by KRE 615(3) produced no
harm in this trial, it is incumbent upon all parties and the trial court to recognize
that the rule does not grant an unfettered right to exempt one witness from the
longstanding rule of separation of witnesses. When KRE 615(3) is invoked and
the party is required to make the necessary showing, the trial court will have an
adequate opportunity to consider whether allowing the person to remain in the
courtroom would produce a situation similar to that found unacceptable in Mills .
B. Evidence presented at trial was sufficient to reasonably support a
finding of guilt as to the charges of attempted murder and
intimidating a witness .
Appellant argues that the evidence presented at trial was insufficient to
support his conviction of criminal attempt to commit murder, KRS 506 .010, and
intimidating a witness in a legal process, KRS 524.040, and therefore his motion
for directed verdict should have been granted . We disagree .
The test for this Court on review of directed verdict is "if under the evidence
as a whole, it would be clearly unreasonable for a jury to find guilt, only then the
9
defendant is entitled to a directed verdict of acquittal ." Commonwealth v.
Benham, 816 S .W.2d 186,187 (restating the rule as indicated in Commonwealth
v. Sawhill, 660 S .W .2d 3 (Ky. 1983)) . In determining whether a directed verdict is
proper a "trial court must draw all fair and reasonable inferences from the
evidence in favor of the Commonwealth ." Id. Moreover, the trial court "must
assume that the evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such testimony." Id.
`°The court acting as an appellate court cannot . . . substitute its judgment as to
credibility of a witness for that of the trial court and jury."' Brewer v.
Commonwealth , 206 S.W.3d 313, 319 (Ky. 2006) (quoting Commonwealth v.
Jones , 880 S.W.2d 544, 545 (Ky. 1994)) .
Appellant asserts that the evidence presented at trial does not support his
conviction for criminal attempt to commit murder or intimidating a witness in a
legal process . However, the evidence supports both . Criminal attempt under
Chapter 506 of the Kentucky Penal Code is defined as follows .
(1) A person is guilty of criminal attempt to commit a crime when,
acting with the kind of culpability otherwise required for commission
of the crime, he :
(a) intentionally engages in conduct which would constitute the crime
if the attendant circumstances were as he believes them to be; or
(b) Intentionally does or omits to do anything which, under the
circumstances as he believes them to be, is a substantial step in a
course of conduct planned to culminate in his commission of the
crime .
(2) Conduct shall not be held to constitute a substantial step under
subsection (1)(b) unless it is an act or omission which leaves no
reasonable doubt as to the defendant's intention to commit the
crime which he is charged with attempting .
(3) A person is guilty of criminal attempt to commit a crime when he
engages in conduct intended to aid another person to commit that
10
crime, although the crime is not committed or attempted by the
other person, provided that his conduct would establish complicity
under KRS 502.020 if the crime were committed by the other
person .
(4) A criminal attempt is a:
(a) Class C felony when the crime attempted is a violation of KRS
521 .020 or 521 .050 ;
(b) Class B felony when the crime attempted is a Class A felony or
capital offense ;
(c) Class C felony when the crime attempted is a Class B felony;
(d) Class A misdemeanor when the crime attempted is a Class C or
D felony ;
(e) Class B misdemeanor when the crime attempted is a
misdemeanor.
KRS 506 .010 .
Intimidating a witness in a legal process is defined under Chapter 524 as:
(1) A person is guilty of intimidating a participant in the legal process
when, by use of physical force or a threat directed to a person he
believes to be a participant in the legal process, he or she:
(a) Influences, or attempts to influence, the testimony, vote, decision,
or opinion of that person;
(b) Induces, or attempts to induce, that person to avoid legal process
summoning him or her to testify ;
(c) Induces, or attempts to induce, that person to absent himself or
herself from an official proceeding to which he has been legally
summoned;
(d) Induces, or attempts to induce, that person to withhold a record,
document, or other object from an official proceeding;
(e) Induces, or attempts to induce, that person to alter, destroy,
mutilate, or conceal an object with intent to impair the object's
integrity or availability for use in an official proceeding ; or
(f) Hinders, delays, or prevents the communication to a law
enforcement officer or judge of information relating to the possible
commission of an offense or a violation of conditions of probation,
parole or release pending judicial proceedings.
(2) For purposes of this section :
(a) An official proceeding need not be pending or about to be
instituted at the time of the offense ; and
(b) The testimony, record, document, or other object need not be
admissible in evidence or free of a claim of privilege .
(3) Intimidating a participant in the legal process is a Class D felony.
(4) In order for a person to be convicted of a violation of this section,
the act against a participant in the legal process or the immediate
family of a participant in the legal process shall be related to the
performance of a duty or role played by the participant in the legal
process .
KRS 524.040.
Saylor testified at trial that she was taken to the Horse Creek Baptist Church
by Corky Price, and that while she was there Appellant and two co-defendants
beat her, cut her, and left her for dead. Corky Price testified that he had been
offered $1000 to drop Saylor off somewhere and that Appellant's co-defendants
were following Price and Saylor in the car behind them on the night of the
assault . Further witness testimony offered by the Commonwealth placed the
automobiles of Appellant, Price, and co-defendants at the scene of the crime on
the night in question .
The Commonwealth also proffered testimony providing a nexus between
Appellant, the victim, and the 2004 homicide of Steve Collins . Victim Saylor
testified that she and Crystal Hicks were present at the murder of Steve Collins .
Saylor testified that she had been questioned by the police concerning the
shooting of Steve Collins and that she had been threatened to keep quiet about
the matter. Testimony was presented that Crystal Hicks had been murdered in
2004. Appellant is the nephew of one of the alleged murderers of Steve Collins .
Further, Charles Marcum, Clay County Jailer and Saylor's grandfather, offered
testimony that he had seen Appellant's family visiting the alleged killer of Steve
Collins in jail.
12
Upon this evidence, a jury could reasonably infer that Appellant attempted to
murder Saylor and that his attack on Saylor was a means of intimidating her as a
witness to the 2004 murder of Steve Collins . While Appellant asserts that the
evidence presented at trial was not believable due to inconsistencies in the
testimony presented, it is not the function of this Court to examine the credibility
of the witnesses presented at trial . Viewing the testimony put forth in the light
most favorable to the Commonwealth, which we are bound to do, and leaving
such evaluations of credibility to the purview of the jury, Benham , the trial court
properly denied Appellant's motion for a directed verdict .
C. Appellant should have been granted a directed verdict as to the
kidnapping charge by virtue of his qualifying for the Kidnapping
Exemption statute KRS 509.050.
Appellant contends that he should have been granted a directed verdict as to
the kidnapping charge because of the applicability of the kidnapping exemption
statute, KRS 509 .050 . Specifically, he argues that any interference with Saylor's
liberty was incidental to and occurred contemporaneously with the underlying
crime of attempted murder. We agree .
Kentucky law dictates that "[a] person is guilty of kidnapping when he
unlawfully restrains another person and when his intent is . ..to accomplish or to
advance the commission of a felony ; or to inflict bodily injury or to terrorize the
victim or another . . ." KRS 509 .040(1)(b)(c) . However, in certain qualified
instances within KRS 509 .050, kidnapping charges will become inapplicable .
KRS 509.050 states :
A person may not be convicted of unlawful imprisonment in the first
degree, unlawful imprisonment in the second degree, or kidnapping
13
when his criminal purpose is the commission of an offense defined
outside this chapter and his interference with the victim's liberty
occurs immediately with and incidental to the commission of that
offense, unless the interference exceeds that which is ordinarily
incident to commission of the offense which is the objective of his
criminal purpose. The exemption provided by this section is not
applicable to a charge of kidnapping that arises from an
interference with another's liberty that occurs incidental to the
commission of a criminal escape.
In the commentary to KRS 509.050, the drafters pointed to the policy
considerations behind the kidnapping exemption statute .
The provision seeks to express a policy against the use of
kidnapping to impose sanctions upon conduct which involves a
movement or confinement (of another person) that has no
criminological significance to the evil toward which kidnapping is
directed . It then provides a flexible standard by which courts are to
enforce that policy. Before criminal behavior that is directed toward
the completion of robbery, rape, or some other offense can
constitute kidnapping, there must be an interference with liberty in
excess of that which ordinarily accompanies that offense .
KRS 509 .050 (Drafters Commentary 1974) .
Thus, the drafters expressed a willingness to alleviate the problem of
overzealous prosecution, by tacking on kidnapping charges to certain crimes
through a hypertechnical application of the statutory language . Seergenerally
Wood v. Commonwealth , 178 S.W.3d 500 (Ky . 2005). The commentary noted
that restriction of another's liberty is often an essential or incidental element to
the commission of certain violent crimes. KRS 509.050 (Drafters Commentary
1974).
This Court has applied a three-prong test in determining the applicability of
the exemption statute . See Wood, 178 S.W.3d at 515 (citing Griffin v.
Commonwealth , 576 S.W.2d 514 (Ky . 1978)) . Wood outlines the three-pronged
approach as follows:
14
First, the underlying criminal purpose must be the commission of a
crime defined outside of KRS 509 . Second, the interference with
the victim's liberty must have occurred immediately with or
incidental to the commission of the underlying intended crime .
Third, the interference with the victim's liberty must not exceed that
which is ordinarily incident to the commission of the underlying
crime . All three prongs must be satisfied in order for the exemption
to apply
Id . We will examine each prong in turn.
Firstly, in conjunction with the kidnapping charge, Appellant was charged
with attempted murder. Criminal attempt to commit murder is outside of the
statute . See KRS 506.010; KRS 507.020 . Therefore, Appellant satisfies prong
one.
Secondly, to satisfy prong two, the interference with victim's liberty must have
been concomitant to the commission of the underlying crime . In Timmons v.
Commonwealth , 555 S.W.2d 234 (Ky. 1977), this Court grappled with the
boundaries of the exemption statute .
[I]f the victim of a crime is going to be restrained of his liberty in
order to facilitate its commission, the restraint will have to be close
in distance and brief in time in order for the exemption to apply. If
the victim is restrained and transported any substantial distance to
or from the place at which the crime is committed or to be
committed, the offender will be guilty of an unlawful imprisonment
offense as well.
Id . at 241 . Here, the restraint of Saylor was committed incidental to and
contemporaneously with the attempt to take her life . Saylor was not restrained to
achieve any separate objective. The restraint and interference with Saylor's
liberty occurred as the victim was dragged from the front of the church in the
parking lot around to the area behind the church as the assault continued,
presumably so that the physical attack on Saylor could be perpetrated in a more
15
clandestine manner. The record indicates no evidence that this movement was
for any purpose other than to continue the attempt to take Saylor's life, not to
detain or hold the victim . Appellant satisfies prong two of the test.
Thirdly, the interference with the victim's liberty must not go beyond that which
would normally be incidental to the commission of the underlying crime . The
third prong of this test presents a more nebulous consideration, as it is difficult to
pin down precisely what is the "appropriate" amount of restraint one would
normally use to attempt to take one's life . However, it would appear that the
drafters of KRS 509.050 envisioned for prong three to be read in conjunction with
prong two of the test. When read together it seems evident that the intent of the
latter two prongs is to ensure that the means of restraint effectuated in
committing the underlying crime are of such a nature that they are a part of, or
incident to, the act of committing the crime itself and, as such, temporally
coincide with the commission of the crime . If the deprivation of liberty segues
into a more pronounced, prolonged, or excessive detainment, then such restraint
should no longer be within the confines of the exemption statute and the accused
should be held separately accountable for those actions . See Murphy v.
Commonwealth , 50 S.W.3d 173 (Ky. 2001) (restraint of 10 hours exceeded that
necessary for defendants to commit burglary) ; see, e .g., Griffin v.
Commonwealth, 576 S .W.2d 514 (Ky. 1978) (restraint of victim one and a half
hours after victim dragged from vehicle exceeded what was ordinarily incident to
commit sodomy) .
The evidence indicates that Saylor was restrained incident to the attempt to
take her life and as the assault was committed on her. Saylor was first attacked
16
at the front of the church and was then dragged behind the church where the
attack continued. While it is difficult from a moral perspective to quantify such
behavior as being appropriate in terms of restraint and interference with liberty,
the law demands that justice separate raw emotion from reason. The movement
and restraint of Natisha Saylor occurred in order to attempt to take her life, and
did not go beyond the scope of attempting to achieve that objective . Appellant
satisfies prong three of the test and thus qualifies for the kidnapping exemption
under KRS 509 .050 .
Given that Appellant qualified for the exemption, it was unreasonable for the
charge to have been placed before the jury . Appellant's motion for a directed
verdict on the charge of kidnapping should have been granted, and thus we
reverse that conviction.
D. Appellant's argument that photo lineup was unduly suggestive is
unpreserved .
Appellant asserts that the photographic lineup presented to Saylor was
unduly suggestive, as the photograph of Appellant had a black arrow pointing to
his head. However, this Court will not address this issue as the record does not
contain the photographs and the record is absent any motion to suppress.
Appellant has a responsibility to present
a "complete record" before the Court
on appeal. Steel Technologies, Inc . v. Congleton , 234 S.W.3d 920, 926 (Ky.
2007) . "Matters not disclosed by the record cannot be considered on appeal."
Montgomery v. Koch, 251 S .W.2d 235, 237 (Ky. 1952); see also Wolgert v .
Louisville Gas & Elec . Co. , 451 S.W.2d 848 (Ky. 1970) (holding that our
predecessor court could not review contentions of prejudice before the jury when
17
the only basis for the argument was the Appellant's brief, because review is
confined to the record). Appellant may not raise allegations of error on appeal
"based entirely on . a silent record ." Commonwealth v. Thomgson , 697 S.W.2d
143,144 (Ky. 1985). Further, "[i]t has long been held that, when the complete
record is not before the appellate court, that court must assume that the omitted
record supports the decision of the trial court." Id . at 145.
At trial, Appellant failed to file a motion to suppress the lineup photographs .
While a motion was filed and addressed by the court as to the lineup for one of
Appellant's co-defendants, Appellant never officially joined in the motion. There
was no formal acknowledgement by the court that the motion filed for one
defendant was applicable to Appellant . As such, the record is void of objection .
Therefore, this Court will not consider Appellant's argument .
III.
CONCLUSION
For the preceding reasons Appellant's convictions for attempted murder and
intimidating a witness are affirmed . However, Appellant's conviction for
kidnapping is reversed . Thus, we remand this matter back to the Clay Circuit
Court for resentencing .
All sitting. All concur.
COUNSEL FOR APPELLANT :
Julia K. Pearson
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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