RENDERED : MARCH 18, 2010
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ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLET17, JUDGE NOS. 2004-CR-002521 & 2006-CR-002892
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT AFFIRMING IN PART, REVERSING I N_PART, AND REMANDING Appellant Glenn Odom appeals to this Court as a matter of right from a judgment of the Jefferson Circuit Court. We affirm Appellant's convictions for murder, second-degree assault, and second-degree criminal mischief. However, due to a violation of Appellant's rights under the Confrontation Clause of the Sixth Amendment, we reverse Appellant's convictions for two counts of intimidating a participant in the legal process, and remand for retrial on those two charges only . During the evening and early morning of July 20-21, 2004, a number of people were using and selling drugs at a crack house in Louisville . Present at the house that night were Eddie Sickles, Yolanda Cooper, Amy Mott, Kenneth
Williams, and Appellant . ) According to witnesses, Ben Smith came and went from the house throughout the day, purchasing drugs from Appellant . Witnesses stated that Appellant was at the house to sell crack, and that he had been taking pills throughout the day . At some point in the early morning hours, Appellant dozed off. When he awoke, Appellant found that he was missing either drugs or cash . Appellant became angry, and told Eddie Sickles and Ben Smith to come outside with him ; both men complied . An argument ensued, and Appellant accused Smith of stealing his drugs . Barry Ritchie, who was riding his bicycle to his girlfriend's house after eating at a nearby restaurant, passed by the scene . Ritchie knew Appellant and Sickles from the neighborhood, and was good friends with Smith . Ritchie testified that, when he saw the argument, he tried to calm Appellant . However, just moments later, Ritchie witnessed Appellant shoot Ben Smith once in the stomach . Ritchie quickly jumped on his bike and rode off after the first shot . As Ritchie rode away, he heard one or two additional gunshots . Sickles testified that he witnessed Appellant shoot Smith twice, killing him . Yolanda Cooper heard the shots from inside the house, and rushed to the window, thinking that Appellant had been shot . She then heard Appellant ask Sickles to help him move the body . Cooper testified that Appellant came 1 Sickles and Cooper testified at trial . Though Amy Mott had participated in the prosecution at an earlier stage, she could not be located for trial . Kenneth Williams also could not be located .
into the house a short time later and said, "I just shot that nigger in the back . Ya'll better not say nothin' ." According to Cooper, everyone at the house scattered, and she and Mott made their way to another crack house . Cooper testified that when Appellant arrived, he pistol-whipped Amy Mott . The Commonwealth introduced photographs depicting Mott's injuries . Esther McWhorter, Eddie Sickles' mother, testified that, at approximately 4 :30 the same morning, Appellant came to her house in a "fit of rage ." McWhorter testified that Appellant threw a brick through her bathroom window, completely shattering it, and that he threw a rock through her front room window, damaging it . McWhorter also testified that Appellant threw a flower stand through the window of her car . Detective Mike Hableib was the lead detective investigating Smith's murder . According to Detective Hableib, Appellant quickly became the prime suspect . A Jefferson County grand jury indicted Appellant on charges of murder (Ben Smith), second-degree assault (Amy Mott), and second-degree criminal mischief (Esther McWhorter's vehicle and other property) . 2 Despite a public search by the Louisville Metro Police, Hableib testified that police were unable to locate Appellant . Six weeks after Smith's murder, Appellant was arrested in St . Joseph County, Indiana on unrelated robbery charges . After Appellant was tried and convicted in Indiana for robbery, the Commonwealth sought temporary custody 2 The trial court granted a directed verdict on a second charge of criminal mischief.
under the Interstate Agreement on Detainers (IAD), and obtained custody of Appellant on January 6, 2006 . Pursuant to the speedy trial requirements of the IAD, the circuit court held a trial beginning on April 25, 2006 . In the course of that trial, Amy Mott and Yolanda Cooper, who were both in custody, were in a holding area with Appellant at the courthouse . According to Cooper, Appellant attempted to speak with Cooper and Mott, telling them "you know I didn't do it" and "keep ya'll's mouth shut ." Cooper and Mott each gave a statement to Detective Hableib . This incident resulted in a grand jury indicting Appellant on two counts of intimidating a participant in the legal process . Ultimately, these counts were tried together with the counts in Appellant's first indictment . In addition, though not fully developed in the record, Appellant was also charged with attempted escape while in custody . During Appellant's April 2006 trial, he expressed frequent dissatisfaction with his appointed public defenders, stating that he disagreed with many of their decisions, and accusing them of working with the Commonwealth to obtain a conviction . This led to the circuit court declaring a mistrial, and an attempt by Appellant to obtain private counsel . However, Appellant was unable to do so, and the Louisville Metro Public Defender reappointed Appellant's original attorneys . Further conflicts with the public defender's office arose, and outside counsel eventually agreed to represent Appellant . Appellant remained unsatisfied with his new counsel, repeating many of the complaints he had
with his former attorneys . This resulted in a hybrid counsel arrangement, whereby Appellant's attorney would conduct voir dire and make objections, while Appellant would deliver the opening statement and closing argument, cross-examine the Commonwealth's witnesses, and testify in a narrative fashion during the defense's case-in-chief. Appellant's second trial commenced on December 12, 2007 . As part of the Commonwealth's case-in-chief, the jury heard testimony from the medical examiner, Ben Smith's mother, Barry Ritchie, Eddie Sickles, Esther McWhorter, Yolanda Cooper, and Detective Hableib . Appellant testified in a narrative fashion . He admitted to becoming angry and vandalizing Ms . McWhorter's house . However, he denied all involvement in Ben Smith's murder, and stated he was not present when Smith was killed . Appellant suggested that Eddie Sickles had killed Smith . The jury returned guilty verdicts on charges of murder, second-degree assault, second-degree criminal mischief, and two counts of intimidating a participant in the legal process . The jury recommended a sentence of life imprisonment for Appellant's murder conviction, which the circuit court imposed . The court ordered all of Appellant's other sentences to run concurrently with the life sentence . This appeal followed . We now address each of Appellant's arguments, and develop additional facts as necessary . I . VICTIM UNAVAILABLE TO TESTIFY Appellant was convicted of second-degree assault against Amy Mott, as
well as two counts of intimidating a participant. i n the legal process (Amy Mott and Yolanda Cooper) . At the time of Appellant's second trial, Amy Mott could not be located, and Appellant raises two arguments related to her absence . A. Use of Amy Mott's Out-of-Court Statement Appellant argues that the use of'Amy Mott's out-of-court statement violated the Confrontation Clause of the Sixth Amendment . On April 19, 2006, shortly before Appellant's first trial, Amy Mott spoke to an investigator with the public defender's office . In that statement, Mott stated that she did not know who had assaulted her the night of Ben Smith's murder, because she was on drugs at the time . The public defender's office transcribed Mott's statement, and Appellant had access to the transcript during his second trial . On April 27, 2006, after the incident that led to the charges against Appellant for intimidating a participant in the legal process, Amy Mott gave a statement to Detective Hableib . The interview between Mott and Hableib was transcribed, and that transcript was provided to Appellant through the discovery process . As part of his hybrid representation, Appellant personally crossexamined Detective Hableib . Appellant asked Hableib about his interviews with Amy Mott and Yolanda Cooper regarding witness intimidation, and asked Hablieb if he was aware that Cooper's and Mott's statements were different . The Commonwealth objected, and the court sustained the objection . When Appellant continued to make references to what Mott had said in
her statement, the Commonwealth objected, and the parties approached the bench . The court explained to Appellant that he had the advantage of Mott's statement not being before the jury . When asked if he wanted Mott's statement read to the jury, Appellant responded that he did not . Appellant then moved on to a new line of questioning . Later in Appellant's cross-examination of Detective Hableib, Appellant asked Hableib questions about Amy Mott's other statement . Appellant : Hableib : Appellant : Hableib : Appellant : You stated that I assaulted Amy Mott because she stole some cocaine and some money from me? Yes Who bad told you that? I don't remember . . . through some of the interviews . Do you . . . remember she didn't say nothin' at all?
At this point, the Commonwealth objected . The court overruled the objection and permitted Appellant to ask his question . The following occurred immediately after the court overruled the objection . Appellant : You're not aware that she never said I did anything?
Prosecutor : Okay, I'm gonna ask that Amy Mott's statement be admitted . He's been warned before about this . During the course of the discussion at the bench, it became clear that Appellant was improperly using Amy Mott's statement to the public defender investigator regarding the assault as the basis for his questions . 3 Despite this 3 The trial court denied Appellant's request to admit Mott's statement to the public defender investigator into evidence . The defense then offered it as an avowal exhibit .
fact, the court permitted the entirety of Amy Mott's statement to Detective Hableib regarding the intimidation charge to be read to the jury . Detective Hableib read his portions of the interview, while a prosecutor read Mott's statements . Hableib : Okay . We're here to discuss an incident that occurred earlier today before you went to court or . . . en route to court . Can you describe to me from the minute you left your cell floor and taken over to the hold, can you describe to me who you went with as far as sheriffs, anybody else in the jail and where you were and what happened? Okay . We were taken down to the holdover in the basement, I guess it's where it's at, the first place they take us to a holdover . Okay And there were several other girls, Yolanda Cooper being one of them . . . . We were down there for a little while and when they brought us out to pat us down I noticed down the hall they brought some men out and I seen Glenn Odom and [he] seen me . He didn't say nothing then . And when they walked past us he was going to the cell next to us and of course, he was there and met me and Yolanda and everything and when we got next door he started beating on the wall and he hollered "Princess" that's what they call Yolanda . And he said, "Ya'11 better watch what you say" and that's all he said really down there was "watch what you say" and then when we were taken upstairs . . . .
Hableib : Mott :
When we went upstairs he was already there in the holdover . Again, we were put in the one next to him . This time he was already there when we were going in and . . . that's when he done it . He put his finger to his mouth and . . . and again he said "watch what you say", . . .
Hableib : Mott :
Did he say those exact words or did he say . . . Yeah that's what he said, be careful . . . it was either "watch what you say" or "be careful what you say ." Something to that effect . . . .
Crawford v . Washington, 541 U .S . 36 (2004), "held that the Sixth
Amendment prohibits the admission of the testimonial statement of a declarant who does not appear at trial, unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination ." Rankins v .
Commonwealth, 237 S .W .3d 128, 130 (Ky . 2007) (emphasis in original) .
Amy Mott's statement to Detective Ha.bleib was clearly testimonial . There was no "ongoing emergency," and "the primary purpose of the interrogation" was "to establish or prove past events potentially relevant to later criminal prosecution ." Davis v . Washington, 547 U .S . 813, 822 (2006) . In addition, "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate ." Rankins, 237 S .W .3d at 131 (quoting Davis, 547 U.S . at 822 n .1) . Mott's statements
provided information about a past crime . There is also no indication that Appellant had a prior opportunity for cross-examination . The Commonwealth asserts that Mott's statement is admissible under the rule of completeness . 4 Without expressing an opinion as to whether Crawford applies to the rule of completeness, we note that Appellant did not "open the door" to the admission of Mott's statement to Detective Hableib in the 4 KRE 106 .
manner the Commonwealth suggests . Appellant had earlier asked Detective Hableib about Mott's intimidation statement . However, when warned by the court that this could lead to the entire statement being read to the jury, Appellant moved on to a new line of questioning . The court admitted Mott's intimidation statement after Appellant asked Detective Hableib about a different statement by Mott (the statement to the public defender investigator) about a different charge (assault) . While Appellant improperly asked Hableib about the assault statement, he in no way opened the door to the admission of Mott's intimidation statement . The admission of that statement is a clear Crawford violation . Mott's statement dealt with Appellant's intimidation of both her and Yolanda Cooper . Therefore, with regard to both of Appellant's convictions for intimidating a participant in the legal process, we cannot say that the error was harmless beyond a reasonable doubt (the harmless error standard for constitutional errors) . Chapman v. California, 386 U .S . 18 (1967) ; Winstead v .
Commonwealth, 283 S .W .3d 678, 689 n .1 (Ky . 2009) . Therefore, Appellant's
two convictions for intimidating a participant in the legal process must be reversed . 5 S. Denial of a Directed Verdict on Charge of Assaulting Amy Mott Appellant also argues that that circuit court erred in failing to grant a directed verdict on the charge of second-degree assault of Amy Mott . Yolanda 5 We note that, during Appellant's cross-examination of Detective Hableib, the trial judge performed exceptionally well under very difficult circumstances . The Crawford error appears to have resulted from confusion by all parties . 10
Cooper testified that Appellant hit Mott twice with a gun . The Commonwealth introduced photos depicting Mott's injuries . Cooper also testified that she slapped Mott, and Appellant uses this as the basis for his argument that Cooper's testimony was self-serving, and that Cooper herself inflicted the injuries on Mott . We cannot say that it was clearly unreasonable for a jury to find Appellant guilty of second-degree assault . Commonwealth v . Benham, 816 S .W .2d 186, 187 (1991) . The circuit court properly reserved the issue of Cooper's credibility for the jury, and drawing all fair and reasonable inferences in favor of the Commonwealth, a reasonable juror could have found Appellant guilty of assaulting Amy Mott . Id . The circuit court did not err in denying the motion for a directed verdict . II . DENIAL OF MOTION FOR A COMPETENCY EVALUATION Appellant argues that the circuit court erred in denying his motion for a competency evaluation pursuant to KRS 504 . 100 . Appellant's attorney filed a motion for a competency evaluation based on behavior he observed while representing Appellant, and based on the fact that Appellant had been charged with additional crimes while in custody . In response to the motion for a competency evaluation, at an October l, 2007 hearing, the court questioned Appellant to determine whether reasonable grounds existed for ordering an evaluation . The court asked Appellant if he understood what he was charged with, and Appellant was able to recite the
charges against him . In response to questioning by the court, Appellant also stated he understood the range of penalties, and that murder was the most serious charge against him . Appellant also told the court that he had the physical and mental abilities to speak with his attorney about his rights and options, and that he understood the presumption of innocence and his constitutional right to a jury trial . Appellant also stated that he understood his right to negotiate a settlement with the Commonwealth, and that the burden of proof is on the Commonwealth . In response to questioning by the trial court, Appellant also stated that he had no mental disorders requiring treatment, but that he had taken Ritalin as a juvenile for about six years starting at the age of eight . Appellant stated that it would be "a waste of the state's money" to order a competency evaluation, and that he would refuse to participate . The circuit court found that there were no reasonable grounds to believe that Appellant was "anything other than competent to stand trial ." The motion for a competency evaluation was denied . A trial court must order a competency evaluation if there are reasonable grounds to believe that a defendant lacks the capacity to appreciate the nature and consequences of the proceedings, or to participate rationally in his defense . RCr 8 .06 ; KRS 504 . 100 . On appeal, our standard of review is "[w]hether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with
respect to competency to stand trial ." Mills v . Commonwealth, 996 S .W .2d 473,
486 (Ky . 1999) (quoting Williams v. Bordenkircher, 696 F .2d 464, 467 (6th Cir .
1983)) . Upon review, we cannot say that a reasonable judge would have expressed doubt about Appellant's competency to stand trial . Appellant behaved rationally during the October 1, 2007 hearing, and understood the nature and seriousness of the charges against him . Although Appellant frequently expressed dissatisfaction with his attorneys, and accused them of working with the Commonwealth, he also participated rationally in his own defense at all stages of the trial . While Appellant's decision to partially represent himself at trial may have been unwise, it does not create doubt as to his competency as Appellant suggests . The circuit court did not err in overruling Appellant's motion for a competency evaluation . III . LIFE PHOTOGRAPH OF THE VICTIM
Appellant argues that he was prejudiced by a photo of the victim, Ben Smith . The photo, taken when Smith was 17 years old, was used by the prosecutor in his opening statement, and was introduced into evidence during the testimony of Smith's mother . The photo is well within the bounds of the type of humanizing evidence approved by this Court to show "the jury that the victim was once a living person and not just a statistic ." Love v .
Commonwealth, 55 S .W . 3d 816, 827 (Ky . 2001) (quoting Templeman v . Commonwealth, 785 S .W .2d 259, 261 (Ky . 1990)) .
Instead, Appellant first argues that the photo was not a fair and accurate depiction of Smith, because the photo was taken when Smith was 17 years old, and Smith was 23 at the time of his death . However, we do not believe that this gap in time is sufficient to render the photograph inadmissible as humanizing evidence . In addition, Appellant argues that the Commonwealth violated the circuit court's ruling by continuing to display Smith's photo on the exhibit table, facing the jury . 6 If there was error in allowing this photo to continue to sit on the exhibit table facing the jury, it was harmless error . Given that the photo had been properly admitted into evidence, and therefore would have been available to the jury during its deliberations, we can "say with fair assurance that the judgment was not substantially swayed by the error" and find any error to be harmless . Winstead v . Commonwealth, 283 S .W .3d 678, 689 (citing
Kotteakos v. United States, 328 U .S . 750 (1946)) .
Of greater concern is what occurred just before Appellant testified . At the close of the Commonwealth's case-in-chief, the court took a break that lasted approximately one hour . Just before the break, the video record shows Smith's photo on the exhibit table, as it had been for most of the trial . When the video resumes one hour later, Smith's photo can be clearly seen sitting on
6 The video record is unclear as to whether Appellant's attorney objected to the continued display of the life photo of Smith, or to one of the medical photos taken of Smith after his death . Whatever photo was objected to, the trial court responded by asking the prosecutor, "We can take that down?" to which the prosecutor responded, "Sure ." However, the life photo of Smith remained on the exhibit table for most of the trial .
the Commonwealth's table, facing the jury . It should be noted that the Commonwealth's table was much closer to the jury than the exhibit table . We have no way of knowing what occurred during the break to determine whether Smith's picture was intentionally placed closer to the jury before Appellant testified . And while we find this possibility troubling, we must nevertheless conclude that any error was harmless for the same reason stated previously . The photo was properly admitted into evidence, and the jury therefore had access to it . As a result, we can say with fair assurance that the judgment was not substantially swayed by the error and find the error to be harmless . Id . No reversible error occurred with regard to the photo of Ben Smith . IV . ALLEGED BATSON VIOLATION
Appellant, an African-American, argues that the Commonwealth used peremptory challenges to exclude African-American jurors on the basis of their race, in violation of Batson v . Kentucky, 476 U .S . 79 (1986) . During voir dire, the Commonwealth approached the bench and asked the court to observe Juror # 198740, an African-American . The prosecutor stated that the juror had been unresponsive, in that he had not nodded his head or indicated any response to the prosecutor's questions, and that he had dozed off several times . The court stated that it had not noticed, but would watch the juror . At the conclusion of voir dire, the Commonwealth moved to dismiss three jurors for cause : Juror # 198740 (the African-American juror, whom the
Commonwealth had previously brought to the court's attention), Juror # 193875 (an African-American juror), and Juror #200866 (a white juror) . The Commonwealth's grounds for dismissing all three was the same : that they had been sleeping or were otherwise inattentive during voir dire . In response, the court stated that, after the Commonwealth had pointed out Juror # 198740, the court had watched him closely, and that, while he appeared to be a "subdued" person, the court could not say that he was any less attentive than any other juror . The court also stated that, with regard to the other two jurors, the court could not say that they had been less attentive . On this basis, the court denied all three motions to dismiss the jurors for cause . The Commonwealth exercised five of its nine peremptory challenges, striking the three jurors it had challenged for cause (two of whom were AfricanAmerican), as well as two additional jurors (one of whom was AfricanAmerican) . 7 Appellant then challenged these peremptory strikes under Batson . The court proceeded through the three-part inquiry outlined in
Commonwealth v. Snodgrass, 831 S.W .2d 176 (Ky . 1992) . First, the court
found that Appellant had made a prima facie showing that the Commonwealth had exercised a peremptory challenge on the basis of race, based on the fact that three of the Commonwealth's five peremptory challenges were directed at African-Americans . 7 This third African-American juror was also struck by defense counsel, using a peremptory challenge .
Second, the court asked the Commonwealth to articulate a race-neutral reason for striking the three African-American jurors . The Commonwealth stated that it struck Jurors # 198740 and # 193875 as part of the "three juror block" it had moved to dismiss for cause, based on their inattentiveness . The Commonwealth pointed out that it had also exercised a peremptory challenge to dismiss Juror #200866, the white member of that "three juror block ." With regard to the third African-American juror (whom Appellant also struck), the Commonwealth stated that the juror had served on a jury that had acquitted a defendant the previous week . Third, the court concluded that Appellant had not carried the burden of proving purposeful discrimination . The court stated that the Commonwealth's race-neutral reasons for striking the jurors were "legitimate from a tactical standpoint, and consistent with the arguments that [the prosecutor] has made ." We have explained, [a] three-prong inquiry aids in determining whether a prosecutor's use of peremptory strikes violated the equal protection clause . Initially, discrimination may be inferred from the totality of the relevant facts associated with a prosecutor's conduct during a defendant's trial . The second prong requires a prosecutor to offer a neutral explanation for challenging those jurors in the protected class . Finally, the trial court must assess the plausibility of the prosecutor's explanations in light of all relevant evidence and determine whether the proffered reasons are legitimate or simply pretextual for discrimination against the targeted class .
Rodgers v. Commonwealth, 285 S .W .3d 740, 757 (Ky . 2009) (quoting McPherson v . Commonwealth, 171 S .W .3d 1, 3 (Ky . 2005)) . A trial court's Batson finding is
akin to a finding of fact, and is granted appropriate deference . Rodgers, 285 S .W .3d at 757 . In light of all relevant evidence, we conclude that the trial court did not abuse its discretion in concluding that the Commonwealth's proffered reasons were legitimate . The Commonwealth struck two African-American jurors for inattentiveness, one of whom the Commonwealth had previously brought to the attention of the trial court . In addition, these two jurors were struck along with, and for the same reason as, a white juror . In light of all relevant evidence, it is reasonable to conclude that the Commonwealth did in fact strike these two jurors due to their inattentiveness . It is also reasonable to conclude that the Commonwealth struck the third African-American juror because he had acquitted a defendant the previous week . For these reasons, Appellant's
Batson challenge was properly denied .
V. EVIDENCE OF FLIGHT AND OTHER CRIMES Appellant argues that the trial court erred in admitting various evidence of Appellant's flight to Indiana after the murder . During the Commonwealth's opening statement, the prosecutor outlined the evidence of flight that the Commonwealth intended to prove . After discussing Appellant's flight to Indiana, the prosecutor went on to state : "You will hear that his evidence of flight and attempted flight did not stop there . You will hear evidence that he
has picked up escape charges since being arrested .»H During Appellant's opening statement, he told the jury that he did not flee to Indiana, but was born and raised in South Bend, Indiana, and had returned there to visit family . Yolanda Cooper testified that she last saw Appellant the night of Ben Smith's murder, and that she did not see him again after that night . Cooper testified that she was aware that the police were actively seeking Appellant's arrest. When asked by the prosecutor whether Appellant was "anywhere to be found," Cooper replied that he was not . Detective Hableib testified that police conducted a neighborhood canvass to search for Appellant . Hableib stated that he sent out a "BOLO," ("Be on the Lookout"), which is a flyer distributed via email to all Louisville Metro Police officers to make them aware of wanted suspects . Over Appellant's objection, the BOLO was admitted as a Commonwealth's exhibit . Hableib testified that, while homicides are a higher priority, no officers were able to find and arrest Appellant . The BOLO is a one-page color flyer . It is titled "Wanted For Murder" in red letters at the top of the page . The BOLO includes a picture of Appellant and information such as his date of birth, social security number, height, and weight . At the bottom of the page, highlighted in red, the BOLO states, "Subject may be armed and should be Considered EXTREMELY DANGEROUS!" (emphasis in original) . 8 Appellant was apparently charged with attempted escape after removing a brick from his jail cell . 19
Hableib also testified that Appellant was featured on Louisville's Most
Wanted . The court admitted into evidence a cover sheet describing Louisville's Most Wanted as a program "shown in conjunction with [the television program] America's Most Wanted" that "shows a 30 second public service announcement
of two persons currently wanted by the Louisville Metro Police ." Hableib testified that police often receive tips about persons featured on Louisville's
Most Wanted, and that, when a suspect is featured, there is a "good chance the
suspects know they're being wanted ." Hableib went on to testify that Appellant was eventually arrested in St . Joseph County, Indiana on robbery charges . 9 Hableib testified that Appellant was convicted of robbery in Indiana, and that he was subsequently transported to Kentucky . The judge explained to the jury that Appellant's robbery conviction was "not related to this case in any way, shape or form ." After a bench conference, the court further admonished the jury : "You have just heard testimony of Mr . Odom's Indiana felony arrest and conviction . It is not to be considered by you in your determination of his guilt or not guilt in this case other than as showing evidence of his flight from arrest or prosecution on these charges ." At the close of the Commonwealth's case-in-chief, Appellant moved for a mistrial, because the Commonwealth had failed to produce any evidence of Appellant's escape since his arrest . The Commonwealth argued that it would "be in a much different position" after Appellant testified . The court then 9 South Bend, Indiana is located in St . Joseph County . 20
denied the motion . During the Commonwealth's cross-examination of Appellant, the Commonwealth was permitted, over Appellant's objection, to elicit that Appellant had "picked up escape charges" since his arrest . Appellant admitted that this was true . "It has long been held that proof of flight to elude capture or to prevent discovery is admissible because `flight is always some evidence of a sense of guilt .'" Rodriguez v . Commonwealth, 107 S .W .3d 215, 218 (Ky . 2003) (quoting
Hord v. Commonwealth, 227 Ky . 439, 13 S .W .2d 244, 246 (1928)) . In Rodriguez, we held that this rule survived the adoption of the Kentucky Rules
of Evidence . 107 S .W .3d at 219 . We must now evaluate the evidence of flight introduced in this case under several provisions of the Rules of Evidence . Under KRE 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence ."
Rodriguez held that evidence of flight is relevant evidence under KRE 401,
because it has a tendency to make the existence of the defendant's guilt more probable . 107 S .W .3d at 219 . However, in the vast majority of cases where evidence of flight has been allowed, unlike the present case, the flight has been "spatially and temporally close to the crime charged ." Id . For example, in Rodriguez, the defendant stole a truck one block away from the convenience store he had robbed, and this occurred only thirty minutes after the robbery . Id . But
[i]mmediacy is generally only relevant, however, where the defendant does not know, or his knowledge is doubtful, about the charges and accusations made against him at the time of his flight . . . . Where it is clear the defendant is aware of the charges against him, the immediacy factor is not required to show consciousness of guilt . Jackson v . Commonwealth, 199 S .W .3d 763, 764-65 (Ky . App . 2006) (quoting United States v . Oliver, 397 F .3d 369, 376-77 (6th Cir .2005)) (quotation marks omitted) (punctuation in original) . Next, evidence of flight must be admissible under KRE 404(b), which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith ." This evidence is, however, admissible "[i]f offered for some other purpose ." KRE 404(b)(1) . An expression of a sense of guilt is "some other purpose" under KRE 404(b)(1), thus making evidence of flight admissible . Rodriguez, 107 S .W .3d at 219-20 . Finally, any evidence of flight must survive the KRE 403 balancing test, which allows relevant evidence to be excluded "if its probative value is substantially outweighed by the danger of undue prejudice" or by other issues such as "needless presentation of cumulative evidence ." As always, we review a trial court's rulings regarding the admission or exclusion of evidence for an abuse of discretion, i .e . "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles ." Goodyear Tire and Rubber Co . v . Thompson, 11 S .W .3d 575, 581 (Ky . 2000) ; Commonwealth v .
English, 993 S .W .2d 941, 945 (Ky . 1999) . A. BOLO and Louisville's Most Wanted Appellant essentially concedes that the BOLO and Louisville's Most Wanted evidence was relevant evidence of flight, and therefore admissible under KRE 401 and 404(b) . However, Appellant contends that this evidence was unduly prejudicial, inflammatory, and cumulative, and thus inadmissible under KRE 403 . While certainly prejudicial to Appellant, we cannot say that the circuit court abused its discretion in admitting this evidence . The BOLO flyer and Louisville's Most Wanted cover sheet served to establish that the Louisville Metro Police conducted an extensive search for Appellant, and yet were unable to find him . 11 is thus admissible as evidence of flight, and its probative value is not substantially outweighed by the danger of undue prejudice . Nor is the evidence unnecessarily cumulative . The circuit court did not abuse its discretion . B. Escape Charges After Arrest With regard to the evidence of escape charges, Appellant first argues that a mistrial should have been granted, because the Commonwealth referred to the charges during its opening statement, but did not introduce evidence until cross-examining Appellant . A prosecutor may refer in an opening statement to all facts and circumstances which he or she believes in good faith will be developed by the evidence . Freeman v . Commonwealth, 425 S .W .2d 575, 578
(Ky . 1967) . Contrary to Appellant's contention, a prosecutor does not act in bad faith by failing to develop the evidence during the case-in-chief, so long as the prosecutor believes in good faith that the evidence will be developed upon cross-examination . Therefore, a mistrial was not warranted . Appellant's escape charges were relevant evidence under KRE 401 . Although the escape attempt was not spatially or temporally close to the events of the charged crimes, Appellant was well aware of the charges against him at the time of the attempted escape, given that he was then in custody . Therefore, immediacy is not required to show consciousness of guilt . Jackson, 199 S .W .3d at 764-65 . As evidence of flight, Appellant's escape charges are admissible "for `some other purpose,' i .e . an expression of a sense of guilt[ .]"
Rodriguez, 107 S .W .3d at 219-20 (quoting KRE 404(b)) .
While Appellant's escape charges are prejudicial, they are not unduly prejudicial . They are probative of some degree of consciousness of guilt, and admissible under KRE 403 . Therefore, the circuit court did not abuse its discretion in permitting the prosecutor to ask Appellant about the escape charges . C. Indiana Robbery Conviction as Evidence of Flight For the reasons stated previously, the mere fact that Appellant was found in Indiana is admissible as evidence of flight . While Appellant was found in Indiana six weeks after Ben Smith's murder, immediacy is only relevant where "the defendant does not know, or his knowledge is doubtful, about the charges
and accusations made against him ." Jackson 199 S .W .3d at 765 . There was no direct evidence that Appellant was aware of the charges against him . However, the BOLO and Louisville's Most Wanted evidence showed that the Louisville Metro Police conducted a very public search for Appellant . In addition, Yolanda Cooper's testimony demonstrated that it was generally known that the police were looking for Appellant . Under these circumstances, we conclude that the circuit court did not abuse its discretion in finding Appellant's flight to Indiana to be relevant and admissible under KRE 401 . Therefore, as evidence of fight, the evidence also satisfied the requirements of KRE 404(b) . In addition, the mere fact that Appellant was present in Indiana is not unduly prejudicial under KRE 403 . The mention of Appellant's arrest and conviction for robbery, however, . presents more difficult questions . The fact that Appellant was arrested, tried for, and convicted of robbery is not evidence of flight . It is not probative of an expression of a sense of guilt in the instant case, but is instead other bad act evidence, which should have been excluded under KRE 404(b) . Nor is it relevant under KRE 401 . However, while the mention of Appellant's robbery conviction was error, we believe the error to be harmless under the circumstances . The court provided a proper admonition to the jury, explaining the limited purpose for which the evidence should be used, and other evidence of flight was properly admitted . There was also a great deal of other evidence of Appellant's guilt .
This included the testimony of two eyewitnesses and an admission of guilt to Yolanda Cooper regarding Ben Smith's murder, the eyewitness testimony of Yolanda Cooper regarding the assault on Amy Mott, and the eyewitness testimony of Esther McWhorter and Appellant's own admission of guilt regarding the charge of criminal mischief. Under these circumstances we can "say with fair assurance that the judgment was not substantially swayed by the error" and find the error to be harmless . Winstead, 283 S .W .3d at 689 .
VI . RIGHT TO A SPEEDY TRIAL
Finally, Appellant argues that his constitutional and statutory rights to a speedy trial were violated . In January 2006, while serving his sentence for robbery in Indiana, Appellant was transferred to Kentucky pursuant to the Interstate Agreement on Detainers (IAD) .l 0 Appellant's first trial began on April 24, 2006 . During the first trial, the following exchange occurred . The Court : Mr . Odom, I understand that you would like to talk to me about our going forward in the case today Appellant : Yes sir . I'm not satisfied with my representation . I would like to waive my rights and hire my own attorney .
The Court : Okay . When you say waive your rights, you're talking about the speedy right trial [sic] and the deadlines under the Interstate Detainer Agreement? Appellant : Yes, sir .
The Court : Okay . Commonwealth's position? Prosecutor : No objection . KRS 440 .450 .
The Court : I'll permit you to do that . Prosecutor : May I release my witnesses? The Court : You may . I will prepare an order releasing these attorneys and the public defender's office . What I will do is set another pretrial conference date in the future, hopefully in about 30 days which should, will that be enough time for you to hire private counsel? Appellant : Uh, I don't know . I haven't talked to my family yet, and they're not aware of my decision, so . . .
The Court : Alright . If you make this decision to let these lawyers go we're not going back on that . You understand that once I let these guys out of this case neither they nor anybody in their office is going to pick this case back up . You're telling me that you're going to stop this trial in its tracks today because you're going to hire private counsel . Not thinking about it, not wanting to do it, you're going to hire private counsel . Appellant : I'm really not for sure, Your Honor . Since you put it that way then I guess I have to go on then, go on with the trial then .
The Court : Well, let me ask defense counsel what they feel about this . Thirty seconds ago you were being fired, now you're being retained . Defense : Well, I mean Mr . Odom has expressed himself now as being not sure whether he can hire private counsel . I mean, it sounds like his attitude about his representation by us hasn't changed . It's simply his ambiguity about whether he will have the ability to hire a private attorney that's forcing him to continue on with the trial even though he has expressed his dissatisfaction about present counsel and his desire to have other counsel .
Appellant : Your Honor, I did not waive my rights for a fast speedy trial . Since you put it that way, as far as me having an
attorney within 30 days or whatever set time was, I was not 100% positively waiving my rights so for the Commonwealth to think that . . . is incorrect and right now we are discussing this issue, so I mean, there is nothing has been set, Your Honor . We are still discussing this . For him to assume I have waived my rights on the [IAD], that is incorrect . The Court : Mr . Odom, you did waive your rights on [IAD], and you did it directly to me . I asked you the specific question and you waived it . Prosecutor : I asked the Court if I could release my witnesses and Ms . White has begun that process . Defense counsel then informed the court that, because additional charges were now pending against Appellant for intimidating a participant in the legal process, they would need a continuance in any event . The court then released Appellant's attorneys, and declared a mistrial . Approximately two months later, on June 20, 2006, Appellant appeared without counsel for a pretrial conference . Appellant stated that he had not been able to obtain private counsel, and asked the court to postpone trial until late September . The trial court refused, ordered counsel to be reappointed, and scheduled a pretrial conference to set a trial date . The public defender's office then reappointed Appellant's original counsel . On July 20, 2006, the parties appeared for another pretrial conference, and the court tentatively set trial for November 21, 2006 . The parties next appeared in court on September 27, 2006 . At this hearing, the Commonwealth pointed out that the court had inadvertently set
trial for the Thanksgiving holiday . The prosecutor stated that he was booked through the remainder of 2006 . Defense counsel stated that he could not try the case before early March . After further discussion, defense counsel suggested early April . The Commonwealth suggested April 17, at which point defense counsel stated that he had a capital murder trial scheduled at that time . The court then suggested May 8, 2007 . In the interim, Appellant again objected to his attorneys and asked that they be removed from his case . As a result, the public defender's office gave the court notice that it was attempting to place the case with outside counsel ." Eventually, the public defender was able to place the case with outside counsel, requiring the case to be further continued to October 23, 2007 . The court then continued the trial one week, to October 30, 2007, because one of the Commonwealth's prosecutors was scheduled to be out of town on business the week of October 23 . At some point, confusion arose as to whether trial had been set for October 23 or October 30, and the parties were not prepared to go to trial on October 30 . Trial was then rescheduled, and held on December 12, 2007 . Appellant first argues that these delays violated his statutory right to a speedy trial under KRS 500 .110, which provides, Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in any 1 During this time, on June 12, 2007, Appellant filed a pro se motion for a speedy trial .
jurisdiction of this state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered written notice of . . . his request for a final disposition . . . . (emphasis added) . Appellant, however, had not entered upon a term of imprisonment in Kentucky . Appellant was serving a prison sentence in Indiana, and was temporarily in the custody of Louisville Metro Corrections under the IAD . Therefore, the IAD's speedy trial requirements are the only statutory authority upon which Appellant could rely . 12 Appellant also argues that the various delays violated his constitutional right to a speedy trial . In evaluating this claim, we must balance four factors : (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant .
Barker v . TiVingo, 407 U .S . 514, 530 (1972) ; Miller v . Commonwealth, 283
S .W .3d 690, 699-700 (Ky . 2009) . The length of the delay from Appellant arriving in Kentucky from Indiana to Appellant's trial was nearly two years . We consider this a sufficient delay to be "presumptively prejudicial" to trigger a Barker analysis . Barker, 407 U .S . at 530 ; Miller, 283 S .W .3d at 700 . The reasons for the delay, however, weigh against Appellant . All delays can be attributed at least partially to Appellant or his counsel except for two :
In addition to Appellant's waiver of his IAD right to a speedy trial prior to a mistrial being declared, Appellant's trial counsel acknowledged that Appellant had waived his IAD right to a speedy trial . Appellant has not asserted this right on appeal . 30
the continuance granted after trial was inadvertently scheduled for the Thanksgiving holiday, and a one-week continuance at the request of the Commonwealth . Appellant's conflicts with his appointed counsel resulted in a mistrial so that Appellant could attempt to hire a private attorney . Even if the circuit court had not declared a mistrial, Appellant's conflicts with his appointed counsel would have necessitated additional delays . And, at least initially, Appellant stated that he was waiving his right to a speedy trial . Further delays were necessary to accommodate the schedules of both defense counsel and prosecutors . Appellant reasserted his right to a speedy trial on several occasions after waiving it . However, most delays can be attributed at least partially to Appellant or Appellant's counsel . Most importantly, Appellant suffered very little prejudice from these delays . Barker identified three areas of possible prejudice : oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the defense will be impaired . 407 U.S . at 532 . Of these, only Appellant's anxiety and concern weighs in favor of prejudice . At the time of Appellant's trial, he was serving a lengthy sentence in Indiana for robbery . Had Appellant been tried quickly and acquitted, he would have been returned to custody in Indiana . Further, there is no indication that Appellant's defense was impaired by the delay . In fact, several continuances were granted to give defense counsel more time to prepare . The delays in Appellant's trial did not violate his constitutional right to a speedy trial .
CONCLUSION Appellant's convictions for murder, second-degree assault, and seconddegree criminal mischief are hereby affirmed . However, Appellant's convictions for two counts of intimidating a participant in the legal process are hereby reversed, and the case is remanded to Jefferson Circuit Court for retrial on those two charges only . All sitting . All concur.
COUNSEL FOR APPELLANT : Shannon Renee Dupree Assistant Public Advocate Department of Public Advocacy Suite 302, 100 Fair Oaks Lane Frankfort, KY 40601 COUNSEL FOR APPELLEE : Jack Conway Attorney General Gregory C. Fuchs Assistant Attorney General Office of Attorney General Office of Criminal Appeals 1024 Capital Center Drive Frankfort, KY 40601-8204