COLLINS (KENDALL EUGENE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
KENDALL EUGENE COLLINS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 06-CR-000876
COMMONWEALTH OF KENTUCKY
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BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Kendall Eugene Collins appeals from a judgment of
conviction from the Jefferson Circuit Court. For the reasons set forth herein, we
On January 29, 2006, Collins pointed a handgun at Renaldo Childress,
seized Childress’ vehicle, and then drove away, eventually abandoning the vehicle
in an alley. Childress went to the Louisville Metro Police Department where he
reported the incident to Officer Kalisa McWhorter. The following day, Detective
James Scott telephoned Childress who then relayed the same version of the facts to
Scott as he had to McWhorter.
During Collins’ jury trial, Childress testified that he did not remember
the events of January 29, 2006. Further, he testified that he did not remember
telling the two law enforcement officers that he was robbed by Collins. The
Commonwealth then called the two officers to the stand, and they both testified
that Childress had informed them that Collins had robbed him at gunpoint. Audio
recordings of conversations between Collins and some of his family members were
then played for the jury. The audio recordings depicted several family members
that were intent on getting Childress to discontinue his cooperation with police.
At the conclusion of the trial, the jury was instructed on first-degree
robbery and theft by unlawful taking of property valued over $300. Collins’
request to instruct the jury on the unauthorized use of an automobile and theft by
unlawful taking of property valued under $300 was denied. Subsequently, the jury
found Collins guilty of first-degree robbery, and he was sentenced to ten-years’
imprisonment in accordance with the jury’s recommendation. This appeal
Collins contends that he was denied a fair trial because two police
officers were improperly permitted to give hearsay testimony. Specifically,
because the prosecutor did not question Childress regarding the circumstances of
the crime, Collins contends that a proper foundation was not laid and the officers’
subsequent testimony, regarding Childress’ prior inconsistent statements, was
improper. We disagree.
Kentucky Rules of Evidence (KRE) 613(a) permits the introduction of
a witness’ prior out-of-court statement, for the purpose of impeachment, when the
witness’ in-court testimony is inconsistent with his prior out of court statement.
Before out-of-court statements can be introduced, the witness must be questioned
regarding the prior statement in a manner sufficient to permit the witness to
recollect the prior statement, including the circumstances of time, place, and
persons present at the time the prior statement was made. Id. Compliance with
this rule provides a proper foundation because it provides a witness with a “proper
and timely opportunity” to explain his prior statement. Jett v. Commonwealth, 436
S.W.2d 788, 792 (Ky. 1969).
Although Collins contends that the prosecution failed to ask Childress
to recite what happened at the time of the crime and, thus, failed to lay a proper
foundation to permit his impeachment, KRE 613(a) relates back to a witness’ prior
inconsistent statement rather than to the events that gave rise to the substance of
the prior statement. Porter v. Commonwealth, 892 S.W.2d 594, 596-97 (Ky.
1995). More specifically, a witness need only be asked about the circumstances
surrounding his prior statement, not the circumstances surrounding the subject
matter of his statement. Id.
During the trial, Childress and the two officers, who received the prior
inconsistent statements, testified and were subject to cross-examination. The
foundation for the admission of Childress’ inconsistent prior statement was laid
when he was asked about the statements that he made to the two officers. Once
Childress indicated that he did not remember making these prior statements, the
officers’ testimony could be properly admitted to impeach Childress and as
substantive evidence of the robbery. Wise v. Commonwealth, 600 S.W.2d 470, 472
(Ky.App. 1978). Thus, the admission of the officers’ testimony was proper.
Collins next contends that the prosecution deprived him of his right to
a fair trial when it notified the trial court that it was seeking the indictment of
Calvin Collins, Collins’ father. Citing Hillard v. Commonwealth, 158 S.W.3d 758,
765 (Ky. 2005), Collins contends that the prosecutor’s indictment revelation
constituted impermissible intimidation because it caused his father to decline to
testify on his behalf. We disagree.
During the defense’s case in chief, shortly after Calvin took the stand
and identified himself, the prosecutor approached the bench and informed the trial
court that Calvin was going to be charged with felony handgun possession and,
possibly, witness tampering. The trial court discussed the matter with Calvin,
advised him of his right not to testify, and appointed him counsel to consult with
during the overnight recess. The following day, Calvin’s counsel informed the
trial court of his advice to Calvin to invoke his Fifth Amendment rights and that
the defense no longer sought him as a witness.
Throughout this process, the jury was not informed of the
circumstances of Calvin’s decision. The trial court only told them that Calvin was
no longer a witness in the case and that they should not consider why he was no
longer a defense witness. Based on these facts, despite Collins’ contention, the
prosecution did not improperly conduct itself but conducted itself in conformity to
proper procedure. The prosecution properly notified the trial court, and then the
trial court informed Calvin of his constitutional rights. Therefore, unlike the
situation mentioned in Hillard, Collins’ constitutional right to a fair trial was not
violated. Id. at 766.
Collins next contends that the prosecutor’s reference to his
incarceration prejudiced his case by permitting the jury to form a negative opinion
of him. Specifically, during his closing argument, when referencing the recorded
telephone conversations between Collins and his family members, the prosecutor
stated that these conversations were jail calls. However, the trial court had issued a
pre-trial order that these telephone calls were not to be related to Collins’
incarceration. Based on the prosecutor’s characterization of these calls, Collins
contends that the trial court should have granted his motion for a mistrial. We
When reviewing allegations of error in a closing argument, an
appellate court must examine the overall fairness of the trial and not the culpability
of the prosecutor. Berry v. Commonwealth, 84 S.W.3d 82, 90 (Ky.App. 2001).
Reversing a conviction for prosecutorial misconduct is reserved for circumstances
so egregious as to render the trial fundamentally unfair. Id. Additionally, an
admonition to the jury to disregard improper statements cures an error unless the
statement was so prejudicial that an admonition could not cure it. Price v.
Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001).
The prosecutor’s statements regarding the jail phone calls were
inappropriate but did not rise to a level sufficient to deprive Collins of his
constitutional right to a fundamentally fair trial. First, the statements were isolated
and did not appear to have been calculated to inflame the jury. Second, and
perhaps more importantly, the trial court admonished the jury that it was to
disregard the prosecutor’s reference to the jail phone calls. Further, the trial court
asked the jury if they could follow his admonition, and they all answered in the
affirmative. Under the circumstances of this case, the prosecutor’s statements were
not so egregious that Collins’ trial was rendered fundamentally unfair.
Collins next contends the prosecution used one of its peremptory
strikes in violation of his equal protection rights under the Fourteenth Amendment.
Specifically, Collins contends the prosecution struck Juror No. 143530, the lone
African-American juror in the venire panel, based on his race. The prosecutor
explained that the juror stated that he had problems with sentencing someone to
ten-years’ imprisonment for a robbery and that he had bad experiences with police.
Collins’ defense counsel argued that another venireman stated that he
would have a problem imposing a ten-year sentence for the crime and other
veniremen indicated that they had experienced problems with police in the past.
Thus, he argued that race must have been the prosecutor’s motivation to strike
Juror No. 143530, because the prosecutor did not strike the other similarly situated
white veniremen. Following these arguments, the trial court ruled that the
prosecution had offered a race-neutral reason for striking the juror and overruled
Collins’ Batson challenge. We agree with the trial court.
The United States Supreme Court, in Batson v. Kentucky, 476 U.S. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), established a three-step process to
determine if a prosecutor’s use of peremptory challenges violated a defendant’s
constitutional rights. In Chestnut v. Commonwealth, 250 S.W.3d 288, 300-01 (Ky.
2008), in restating the Batson requirements, our Supreme Court wrote the
A defendant first has the burden of making a prima facie
showing that a peremptory challenge has been exercised
on the basis of race; second, if this showing is made, then
the burden shifts to the prosecutor to articulate a raceneutral reason for striking the juror in question; and third,
the trial court must then determine whether the burden of
proving purposeful discrimination has been met.
In reviewing the trial court’s ruling, an appellate court must provide great
deference to the trial court’s decision. Chatman v. Commonwealth, 241 S.W.3d
799, 804 (Ky. 2007).
After reviewing the record, we conclude that the trial court properly
ruled that the prosecution offered a sufficient race-neutral justification for striking
the African-American venireman. Although he echoed sentiments regarding
punishment and police relations that were similar to other veniremen, Juror No.
143530 was unique in that he was the only prospective juror who shared both
sentiments. This uniqueness was sufficient to provide a race-neutral justification
for the peremptory strike.
Collins next contends that the trial court erred when it failed to
instruct the jury on the lesser-included offense of unauthorized use of a motor
vehicle. Specifically, Collins contends that the evidence permitted a reasonable
jury to find him not guilty of robbery and of theft by unlawful taking of property
over $300 but guilty of the unauthorized use of Childress’ motor vehicle.
Consequently, he contends that his conviction must be reversed because he was
denied the right to receive a lighter sentence based on a conviction for a lesserincluded offense. We disagree.
At the conclusion of a criminal trial, the trial court is required to give
every instruction supported to any extent by the testimony, including giving
instructions for lesser-included offenses. Taylor v. Commonwealth, 995 S.W.2d
355, 360-62 (Ky. 1999). However, a defendant is only entitled to an instruction on
a lesser-included offense if “a reasonable juror could entertain a reasonable doubt
as to the defendant's guilt of the greater offense, but believe beyond a reasonable
doubt that the defendant is guilty of the lesser offense.” Id. at 362.
KRS 514.100 provides that “[a] person is guilty of the unauthorized
use of an automobile or other propelled vehicle when he knowingly operates,
exercises control over, or otherwise uses such vehicle without consent of the owner
or person having legal possession thereof.” On the other hand, KKS 514.030(1)(a)
provides that “a person is guilty of theft by unlawful taking or disposition when he
unlawfully [t]akes or exercises control over movable property of another with
intent to deprive him thereof.”
Providing additional explanation of the statute, in Lawson v.
Commonwealth, 85 S.W.3d 571 (Ky. 2002), our Supreme Court wrote that “[t]he
Penal Code Commentary to KRS 514.100 explains that the offense of
Unauthorized Use of an Automobile provides criminal sanctions for conduct that
does not rise to the level of the Kentucky Penal Code theft offenses: This section is
directed primarily against ‘joy riding’ generally committed by youngsters.” Id. at
577. Further, “[i]t is necessary because it covers conduct not amounting to theft
under other sections of this chapter. There is no intention to deprive the owner of
his property or to appropriate property.” Id. Thus, a defendant can only be
convicted of the unauthorized use of an automobile when he takes the vehicle and
intends to return the vehicle to its rightful owner. Id. at 578.
In the instant case, there was no evidence that Collins intended to
return the vehicle to Childress. After taking Childress’ vehicle, he drove it to a
different location and abandoned it. While he may contend that his father’s jail
call offer to give Childress sufficient funds to obtain the car’s release from an
impound lot, the jail call conversations in this case were heavily centered around
convincing Childress to discontinue cooperating with police. Based on the facts of
this case, there was no evidence sufficient to permit a jury to find upon a
reasonable basis that Collins intended to return the vehicle to Childress, its proper
owner. Thus, no lesser-included instruction was warranted.
For the foregoing reasons, the Jefferson Circuit Court’s judgment of
conviction is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Chief Appellate Defender
Office of the Louisville Metro Public
Attorney General of Kentucky
Jason D. Moore
Assistant Attorney General