SMITH (WILLIAM JAMES) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
WILLIAM JAMES SMITH, II
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 06-CR-00381
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: William James Smith, II (“Smith”) appeals a conviction in the
Hardin Circuit Court for first-degree possession of cocaine (subsequent offense),
possession of drug paraphernalia (subsequent offense), third-degree possession of
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
hydrocodone, and being a first-degree persistent felony offender. Smith was
sentenced to twelve years’ imprisonment. Finding no error, we affirm.
On May 24, 2006, Lindsay Brown (“Brown”) phoned the
Elizabethtown Police Department (“EPD”) claiming that her boyfriend, Smith, had
threatened her at her apartment with a gun. Police were met at Brown’s apartment
by Smith’s friend, Reginald Haire, who opened the door. Officer Matt Hodge
immediately detained Smith who was standing in the living room of the small onebedroom apartment. With his permission, police searched Smith and found
$932.00 and two cell phones on his person.
A few minutes later, Sgt. Jamie Land of the EPD arrived and told the
other officers present that he had permission for a search of the apartment from
Brown, the apartment’s lease-holder. Following the search of the apartment, the
officers recovered: a pipe with white residue and rolling papers from a small
couch in the living room; rolling papers under the same couch; a police scanner
with an index card containing the public service agency frequencies in the county;
two plastic baggies on top of the mirror in the bathroom that contained cocaine;
two sets of scales, three boxes of plastic baggies, and a white tray with white
powder on it in a kitchen cabinet; and a white powdery residue beneath the cabinet
that field-tested positive for cocaine.
In addition, the officers found a surveillance system that monitored
the back door of the apartment and a bag belonging to Smith containing cologne,
boxer shorts, deodorant, CDs, a butane torch, a blue pill, a red memo book with
names and numbers on the front page, four nonfunctioning cell phones, and fifty
small zip-lock baggies. Another search of Smith at the police station produced a
small switch-blade knife and a white pill identified as hydrocodone.
At trial, Smith denied that any of the drugs and drug-related items
seized in Brown’s apartment that night belonged to him. He testified that while he
and Brown did have an argument that night, he never threatened her in any way.
Smith stated that he was on his way out of the apartment when police arrived and
he did not run away or resist the officers.
On appeal, Smith first argues that the Commonwealth failed to
disclose the plea deal which it made with Brown, his co-defendant, in violation of
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 106 L. Ed. 2d 215 (1963).
Specifically, Smith asserts that defense counsel’s ability to adequately impeach the
credibility of Brown was significantly impaired because of the nondisclosure.
Upon learning of the plea deal with Brown, defense counsel preserved this issue by
moving for a mistrial.
Under Brady, the prosecution’s intentional or unintentional nondisclosure of evidence favorable to a defendant violates his procedural due process
rights where the evidence is material to guilt or punishment. Undisclosed evidence
is material if “there is a ‘reasonable probability’ that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A
reasonable probability is the probability sufficient to undermine the confidence in
the outcome.” Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002),
quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L.
Ed. 2d 481, 494 (1985). We review whether a Brady violation has occurred de
novo. Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky. 2007).
On the morning of trial, defense counsel learned that Brown was
going to testify for the Commonwealth. Defense counsel then asked whether the
Commonwealth and Brown had any plea agreement concerning her testimony in
this case. The prosecutor responded that they did not.
Smith’s counsel then requested Brown’s pre-sentence investigation
report for Indictment No. 06-CR-00677, a separate case against Brown involving
charges of criminal possession of a forged instrument. In that case, the
Commonwealth agreed to recommend that Brown receive pre-trial diversion with a
referral to drug court on the condition that she testify truthfully and consistently
with her prior statements in the present case against Smith. Additionally, the
Commonwealth agreed to recommend a reduction in Brown’s bond so that she
could enter drug court if accepted.
The trial court found that the Commonwealth should have disclosed
the agreement, but concluded that dismissal was not appropriate because discovery
of the agreement occurred before Brown testified. We agree. Smith learned of the
plea agreement by the morning of the second day of trial. The court was adjourned
by 11:55 a.m. Defense counsel was able to cross-examine Brown the following
day. If additional time was necessary to prepare for cross-examination, Smith
could have asked the court for a continuance. Thus, we do not think a mistrial was
appropriate. In the absence of any showing of prejudice, any Brady violation was
at most harmless error.
Smith next argues the court erred in allowing the prosecution to define
reasonable doubt for the jury during voir dire. In the case sub judice, the
The Commonwealth is required to show that a person is
guilty beyond a reasonable doubt. I can’t define that for
you, but I can say it is not beyond any doubt. Can we all
agree that we will not require the Commonwealth to
prove beyond all doubt?
Defense counsel objected but the trial court overruled the objection. Smith argues
that the prosecutor attempted to define reasonable doubt for the jury, as prohibited
by Commonwealth v. Callahan, 675 S.W.2d 391 (Ky. 1984). We disagree.
In Callahan, the Kentucky Supreme Court emphasized that “trial
courts shall prohibit counsel from any definition of reasonable doubt at any point
in the trial, and any cases in this jurisdiction to the contrary are specifically
overruled.” Id. at 393. Nevertheless, the Court in Callahan found that the
prosecutor had not attempted to define reasonable doubt by making the following
argument to the jury:
Now I submit to you that [defense counsel’s definition] is
not reasonable doubt. Now, the judge has instructed you
in the instructions on what reasonable doubt is. There is
a little doubt about whether we are even here today.
When I went to college I had some teachers that could
practically prove to you that we weren’t even here today.
But that’s not what reasonable doubt is. The judge has
instructed you in the instructions as to what reasonable
doubt is and you read that and follow it.
Id. at 392 (emphasis added). The Court concluded that the prosecutor did not
attempt to define reasonable doubt through this statement, but was merely
attempting to address an argument by defense counsel concerning what constitutes
reasonable doubt. Id. at 392-93. As in Callahan, the prosecutor in this case
submitted that he could not define reasonable doubt but only stated that proof
beyond a reasonable doubt was not proof beyond any doubt. Thus, we find no
Next, Smith argues prosecutorial misconduct occurred when the
Commonwealth failed to comply with the agreed order of discovery. The agreed
order of discovery required the Commonwealth to provide copies of requested
discovery within twenty (20) days of receiving the request. However, the agreed
order also provided that the ultimate deadline for discovery was November 10,
2006. The Commonwealth provided discovery to Smith on August 15, 2006.
Smith filed for additional discovery on September 1, 2006. On November 1, 2006,
Smith filed a motion to dismiss based on the Commonwealth’s failure to provide
the additional discovery within the twenty days. The Commonwealth provided the
additional requested discovery two days later on November 3, 2006. Following a
hearing on the motion to dismiss, the trial court concluded that dismissal was not
appropriate as the Commonwealth provided the additional discovery by the
ultimate deadline of November 10, 2006. In addition, the trial court noted that the
trial date was not scheduled until March 12, 2007, and the amount of discovery
was not so voluminous as to prevent a fair opportunity for Smith to research it
We review matters involving a trial court’s rulings on evidentiary
issues and discovery disputes under the abuse of discretion standard. Sexton v.
Bates, 41 S.W.3d 452 (Ky. App. 2001). The test for abuse of discretion is whether
the trial court’s decision was arbitrary, unreasonable, unfair, or unsupported by
legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581
(Ky. 2000). As the Commonwealth provided the discovery prior to November 10,
2006, pursuant to the agreed order, we find no abuse of discretion.
Smith next argues that the jury pool was not representative of a crosssection of Hardin County. Specifically, Smith contends that African-Americans
were underrepresented in the jury pool because the jury selection method in KRS
29A.040 discriminates against the poor and African-Americans make up a greater
percentage of poor people. Smith points out that there were three persons of
minority groups in the venire pool on the day of Smith’s trial. Only one such
person was empanelled, and that juror was later removed by the Commonwealth.
As such, Smith contends his constitutional rights were violated and reversal is
warranted because the minority population in Hardin County was underrepresented
in the jury pool. We disagree that this evidence was sufficient to show a prima
facie violation of the Sixth Amendment’s requirement that juries in criminal cases
be drawn from a fair cross-section of the community.
The criteria necessary to establish a prima facie violation of the fair
cross-section requirement was set forth by the Supreme Court in Duren v.
Missouri, 439 U.S. 357, 99 S. Ct. 664, 665, 58 L. Ed. 2d 579 (1979). The
defendant must show: “(1) that the group alleged to be excluded is a ‘distinctive’
group in the community; (2) that the group’s representation in the source from
which juries are selected is not fair and reasonable in relation to the number of
such persons in the community; and (3) that this underrepresentation results from
systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S.
at 357, 99 S. Ct. at 665. Smith has failed to meet any of these elements.
Smith contends that the method of drawing potential jurors for a
county from licensed drivers, voters, and filers of income tax returns is inherently
discriminatory because, according to Smith, poor people and African-Americans
are less likely to drive, vote, and file income tax returns. However, Smith supports
this argument based on statistics which are not included as part of the trial record.
Consequently, we cannot consider such evidence. Moreover, Smith fails to
demonstrate that this method of drawing potential jurors was unreasonable, or that
any alleged exclusion of a distinctive group was systematic. Therefore, we can
find no violation of Smith’s Sixth Amendment rights.
Smith next argues the Commonwealth used one of its peremptory
strikes in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.
2d 69 (1986). Specifically, Smith contends the Commonwealth struck Juror 588,
the only African-American juror in the panel, based on his race. The juror had
been charged with armed robbery but the charge was later dismissed. The
Commonwealth expressed concern about the juror’s prior criminal history, which
might make him partial. The trial judge held this to be a race-neutral reason for
striking the juror and overruled Smith’s Batson challenge.
The standard we use when we review a trial judge’s decisions in a
Batson challenge is whether those decisions were clearly erroneous. Hernandez v.
New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). The reason
articulated by the prosecutor, that he was uncomfortable with the juror’s prior
criminal history, is not a characteristic of a particular racial group. Moreover, we
can find nothing in the record to support an argument that the prospective juror
was removed for discriminatory reasons. The court’s decision was not clearly
erroneous. We do not find any error.
Next, Smith argues that the trial court erred when it denied his
motions to strike two jurors for cause. First, Juror 566 knew an owner of
apartments on the same road on which Brown’s apartment was located. The
owner, who was not Brown’s landlord, told the juror that he had a drug problem in
the apartments he owned. However, the juror stated that she did not know which
of the apartments on the street the landlord owned. The court asked Juror 566 if
this knowledge would have any effect on her impartiality and she replied, “I don’t
believe it would have any effect. I know what the judicial process is and each case
is individual and you have to look at the evidence in each case.” The trial court
overruled Smith’s motion to strike this juror but the court’s reason is unintelligible
on the video recording.
Smith also motioned the court to strike Juror 595. This juror told the
court that her husband had been involved in drugs while in the military and
eventually died from using them. She indicated that her husband attempted to
introduce her to drugs but that she did not currently use drugs. She also noted that
she had brothers that did drugs and a daughter who had recovered from a drug
problem, became a nurse and then assisted addicts. Defense counsel asked her if
her family history would play a role in her being able to hear the evidence. Juror
595 replied no and indicated that she could be fair. The trial court also overruled
Smith’s motion to strike this juror.
Whether or not a juror should be stricken for cause is within the sound
discretion of the trial court, and an appellate court will not reverse the trial court’s
decision absent an abuse of that discretion. Maxie v. Commonwealth, 82 S.W.3d
860 (Ky. 2002). Once a close relationship, either familial, financial, or situational,
with any of the parties is established, the court should sustain a challenge for cause
regardless of protestations of lack of bias. Ward v. Commonwealth, 695 S.W.2d
404 (Ky. 1985). However, a prospective juror is not automatically disqualified
merely because he is acquainted with one of the parties. Maxie, 82 S.W.3d at 862.
So long as reasonable grounds exist to believe the juror can render a fair and
impartial verdict based solely on the evidence, the juror is qualified to sit on a case.
Id. Juror bias “does not encompass a mere social acquaintanceship in the absence
of other indicia of a relationship so close as to indicate the probability of
partiality.” Sholler v. Commonwealth, 969 S.W.2d 706, 709 (Ky. 1998). In
Sanders v. Commonwealth, 801 S.W.2d 665, 670 (Ky. 1990), cert. denied, 502
U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76 (1991), it was held that a casual
business relationship between the prospective juror and one of the victims did not
compel a presumption of bias.
In the instant case, it was established that the landlord Juror 566 knew
was not Brown’s landlord, nor did the juror even know which apartments were
referred to when they spoke. Likewise, while Juror 595 previously used drugs and
had family members who had used drugs, there was no showing that her
experiences had any bearing on the current case. Moreover, the test to be applied
is whether the prospective juror, after having heard all the evidence, can conform
her views to the requirements of the law and render a fair and impartial verdict.
Bowling v. Commonwealth, 942 S.W.2d 293, 299 (Ky. 1997). Both jurors
indicated that they could be fair and impartial in Smith’s case. Therefore, we do
not believe the trial court abused its discretion in not striking Juror 566 or Juror
595 for cause.
Smith next argues that the trial court committed reversible error when
the trial court allowed evidence of Smith’s prior bad acts, in violation of Kentucky
Rules of Evidence (“KRE”) 404(b). Smith made a motion in limine to exclude
KRE 404(b) evidence regarding the reason the police came to Brown’s apartment.
The trial court denied the motion, ruling that the Commonwealth should be able to
explain why the police arrived. The court further indicated that the gun was
inextricably intertwined and that Brown could be cross-examined on this point.
Officer Matt Hodge testified that the police arrived at Brown’s apartment because
Brown had told them that Smith had threatened her with a gun. The trial court
immediately gave the jury an admonishment that the statement was only allowed to
explain why the officer immediately arrested Smith upon entering the apartment
and that the information could not be used for any other purpose. On crossexamination, Officer Hodge told the jury that no gun was found in the apartment.
During Brown’s testimony, she too testified that while Smith had threatened to
“blow her brains out” with a pistol, she never saw a gun in her apartment.
The second piece of evidence was introduced during Brown’s
testimony. The Commonwealth showed Brown a photograph and asked her to
identify items she recognized. She identified a plate and scales and testified that
they belonged to Smith. The Commonwealth showed Brown another photograph
to which she pointed at one of the items in the picture and said, “That’s what we
used to get high off of.” Defense counsel immediately objected and asked for a
mistrial. The trial court overruled the motion but admonished the jury that they
were to disregard the witness’s last statement and any inferences from it with
respect to actions before May 24, 2006. After the admonition from the court, the
Commonwealth moved to another line of questioning.
Smith argues these two pieces of evidence had nothing to do with
whether Smith sold or possessed cocaine or committed any of the other indicted
offenses. Thus, Smith contends both pieces of evidence unfairly prejudiced the
jury against him. We disagree.
As the parties correctly note, evidence of a defendant’s “other crimes,
wrongs, or bad acts” is not admissible as proof of the defendant’s character or of
his propensity to break the law. KRE 404(b), however, permits the introduction of
(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence
essential to the case that separation of the two (2) could
not be accomplished without serious adverse effect on
the offering party.
This rule is to be applied cautiously, the Kentucky Supreme Court explained, in
accord with its fundamental purpose of “prohibit[ing] unfair inferences against a
defendant.” Anderson v. Commonwealth, 231 S.W.3d 117, 120 (Ky. 2007).
To be admissible under the rule, the evidence of other criminal or wrongful acts
must be (1) relevant for some purpose other than to prove criminal predisposition,
(2) sufficiently probative to warrant introduction, and (3) sufficiently probative so
that its probative value outweighs its potential for prejudice to the accused. Id.;
Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994). In other words, the alleged
prior wrong must be relevant to a contested element of the charged crime, and the
prior bad act evidence must be probative in two senses. First, it must be probative
that the prior wrong did in fact occur. This requirement is satisfied “if the jury
could reasonably conclude that the act occurred and that the defendant was the
actor.” Davis v. Commonwealth, 147 S.W.3d 709, 724-25 (Ky. 2004). Second, the
evidence must also be sufficiently probative of an element of the charged crime to
withstand the KRE 403 balancing test between probative value and prejudicial
effect, with the assumption, moreover, that prior bad act evidence is inherently
prejudicial and should be excluded absent a sufficiently strong countervailing need
for it. Anderson v. Commonwealth, supra. The trial court’s application of this
balancing test should be reviewed under the abuse of discretion standard. Davis v.
We find no abuse of discretion in this case. The evidence that Smith
allegedly had a gun was admissible to show why the police came to Brown’s
apartment and immediately restrained Smith once allowed into the apartment. The
fact that no gun was found in the apartment and that defense counsel was able to
cross-examine Brown as to this issue diminishes any prejudice that could have
occurred from the testimony. Moreover, we find that the trial court’s admonition
to the jury regarding Brown’s testimony that she and Smith used to get high was
sufficient to remove any prejudice posed by the improperly introduced evidence.
“A jury is presumed to follow an admonition to disregard evidence and the
admonition thus cures any error.” Johnson v. Commonwealth, 105 S.W.3d 430,
441 (Ky. 2003).
Next Smith argues the trial court erred when it failed to instruct the
jury on mere presence and mere association. This issue was preserved as Smith
tendered proposed instructions to the trial court on mere presence and mere
association, but the court rejected them.
Errors alleged regarding jury instructions are considered questions of
law and are to be reviewed on appeal under a de novo standard of review.
Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).
Kentucky’s standard for jury instructions originated with Cox v. Cooper, 510
S.W.2d 530, 535 (Ky. 1974), in which our Supreme Court held, “[o]ur approach to
instructions is that they should provide only the bare bones, which can be fleshed
out by counsel in their closing arguments if they so desire.” As the Court more
recently discussed, this standard “is buttressed by a long line of Kentucky cases
which call for a substantially similar approach.” Bayless v. Boyer, 180 S.W.3d
439, 450 (Ky. 2005). Smith’s theory of defense throughout the trial was that the
drugs were not his. Smith was able to argue mere presence and mere association in
his closing argument. He emphasized that the apartment where the drugs were
found was not his apartment. He further noted to the jury that he had only moved
into the apartment one day prior to his arrest. The jury rejected these arguments
and found him guilty. Even so, we cannot say that Smith was deprived a fair trial
because the court did not instruct the jury on mere presence or mere association as
the two are not essential to the jury’s finding of guilt for any of the offenses
charged against Smith.
It is apparent that the jury instructions included all of the elements
necessary to prove the charges filed against Smith. Mere presence and mere
association are legitimate arguments Smith put forth for the jury to consider.
However, mere presence and mere association are not essential as to be part of the
“bare bones” of the instructions. We find no error.
Finally, Smith argues the aforementioned trial errors resulted in
cumulative error violating his constitutional right to a fair trial. Having found no
error, we likewise find no cumulative error justifying relief.
Accordingly, the judgment of conviction by the Hardin Circuit Court
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Assistant Public Advocate
Attorney General of Kentucky
David B. Abner
Assistant Attorney General