JACKSON (COREY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 06-CR-01700
COMMONWEALTH OF KENTUCKY
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BEFORE: ACREE, KELLER AND WINE, JUDGES.
WINE, JUDGE: On October 24, 2006, at approximately 7:15 a.m., Rebekah
Kirkland was robbed at gunpoint in downtown Lexington. As Kirkland exited her
automobile, a man put a gun to her stomach and demanded that she get back into
the car. Kirkland refused and grabbed the gun. The two struggled and Kirkland’s
purse fell to the ground. The man grabbed the purse and ran toward St. James
Apartments. Kirkland’s purse contained a five dollar bill, credit cards, a wallet, a
checkbook, bank statements, keys, and a cellular phone.
Kirkland ran to Auto Tech, her place of employment, and informed
her co-workers that she had been robbed. A co-worker called 911, and the police
arrived at the business at approximately 7:26 a.m. Kirkland described the robber to
the police as a black male, six feet tall, two hundred pounds, wearing a wallet
chain on his pants, and wearing a hunter colored coat with a hood and fur. She
also told police that he ran toward St. James Apartments.
Rebekah Kirkland’s husband, Jeff Kirkland, was also an employee of
Auto Tech. Mr. Kirkland told police that, several weeks earlier, he had seen
someone matching the description of the robber across the street watching the
people at Auto Tech. Mr. Kirkland gave a similar description to the one given by
Mrs. Kirkland but added that the person he saw had “big hair.”
Police began searching the area for an individual matching the
description provided by Mrs. Kirkland. Less than an hour after the robbery, police
located and detained a suspect, Corey Jackson. At the time of his arrest, Jackson
wore a wallet chain and a coat similar to the one described by Mrs. Kirkland. A
search of Jackson revealed that he only had a twenty dollar bill on his person. The
five dollar bill taken from Mrs. Kirkland was never recovered. Police took
Rebekah Kirkland to the scene where Jackson was arrested and asked whether she
could identify Jackson as the man who robbed her. Jackson, a black male, was
surrounded by police. Jackson’s hands were handcuffed behind his back. Mrs.
Kirkland identified him as the man who robbed her. Mr. Kirkland also identified
Jackson as the man he saw standing outside Auto Tech. The Kirklands were kept
separate at the time they were asked to make an indentification.
On December 6, 2006, the Fayette County grand jury indicted Jackson
on the charge of first-degree robbery. On July 17, 2007, a jury found Jackson
guilty of first-degree robbery. On August 31, 2007, Jackson was sentenced to
thirteen years’ imprisonment. No suppression hearing was conducted in this case.
I. Directed Verdict
First, Jackson argues that the trial court erred in denying his motion
for directed verdict. Jackson claims that a directed verdict should have been
granted because the Kirklands’ out-of-court identifications were unreliable and
unduly suggestive because he was handcuffed and surrounded by police when the
We must examine a trial court’s decision on a motion for directed
verdict by asking whether, under the entire body of evidence, “it would be clearly
unreasonable for a jury to find guilt . . . .” Benham v. Commonwealth, 816 SW.2d
186, 187 (Ky. 1991). The defendant is only entitled to a directed verdict if the
examination indicates a verdict of guilt would be unreasonable. Id.
Further, the evidence must be examined in a light most favorable to
the Commonwealth. Sawhill v. Commonwealth, 660 S.W.2d 3, 4 (Ky. 1983). The
Kentucky Supreme Court, in Sawhill, provided:
The trial court must draw all fair and reasonable
inferences from the evidence in favor of the party
opposing the motion, and a directed verdict should
not be given unless the evidence is insufficient to
sustain a conviction. The evidence presented must
be accepted as true. The credibility and the weight to
be given the testimony are questions for the
(Emphasis added). In our review of the record, evaluating the evidence in the light
most favorable to the Commonwealth, we cannot conclude that a guilty verdict was
clearly unreasonable. The Commonwealth presented Mrs. Kirkland’s testimony
which included her identification of Jackson as the man who robbed her. The
Commonwealth also presented testimony from Mr. Kirkland who identified
Jackson as the man who he had previously observed watching people at Auto
Tech. The identifications, coupled with Jackson’s clothing presented as exhibits
and the location of his arrest, show that a verdict of guilty is not clearly
Jackson’s defense counsel, however, did not argue that the evidence
presented rendered a guilty verdict unreasonable. Instead, defense counsel argued
that the Kirklands’ identifications of Jackson were unreliable and suggestive.
These types of identifications, called “show-up identifications,” are suggestive in
nature. Savage v. Commonwealth, 920 S.W.2d 512 (Ky. 1995). However, showup identifications are not necessarily unreliable and/or unduly suggestive.
“[S]how-ups are nonetheless necessary in some instances because they occur
immediately after the commission of the crime and aid the police in either
establishing probable cause or clearing a possible suspect . . . .” Id. at 513.
The question of whether a show-up identification was unduly
suggestive is not at issue during a motion for directed verdict. As previously
stated, the Kentucky Supreme Court in Sawhill stated that the credibility and
weight of the evidence was to be decided by a jury rather than a judge. The trial
court properly allowed the jury to weigh the evidence and consider whether the
Kirklands’ out-of-court identifications were reliable.
Aside from his argument that a directed verdict was improperly
denied, Jackson also argues his case must be remanded for a new trial because the
identifications were improperly admitted. A review of the record indicates that no
motion to suppress the out-of-court identifications was filed. Also, during the trial,
defense counsel failed to object to testimony concerning the identifications.
Because counsel failed to preserve the identification issue for appeal, we must
determine whether this claim rises to the level of a palpable error. Under the
Kentucky Rules of Criminal Procedure (RCr) 10.26:
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
“Manifest injustice” means that “a substantial possibility exists that
the result of the trial would have been different.” Brock v. Commonwealth, 947
S.W.2d 24, 28 (Ky. 1997). “[I]f upon a consideration of the whole case [the] court
does not believe there is a substantial possibility that the result would have been
any different, the irregularity will be held nonprejudicial.” Schoenbachler v.
Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) (internal quotation marks and
citation omitted). “An error must seriously affect the fairness, integrity, or public
reputation of a judicial proceeding in order to be considered palpable under RCr
10.26.” Page v. Commonwealth, 149 S.W.3d 416, 422 (Ky. 2004) (internal
quotation marks and citation omitted).
The jury was fully informed that Mrs. Kirkland based her
identification on Jackson’s coat and wallet chain. A review of the trial indicates
that both identification witnesses were subjected to thorough cross-examinations
concerning weaknesses in their statements and recognition. The jury had ample
information from which to weigh the evidence and determine credibility.
Therefore, we do not consider the admission of testimony concerning the
identifications to constitute manifest injustice.
II. Juror Bias
During the trial, Juror 489 submitted a written question to the judge.
The juror asked whether Ms. Carr, Jackson’s mother and a defense witness, was
present in the courtroom when other witnesses testified. Defense counsel argued
that the juror should be dismissed because the juror had already formed an opinion
that Ms. Carr listened to the testimonies of other witnesses giving her testimony an
unfair advantage. The prosecutor argued, and the trial court agreed, that the
question was not indicative of bias. The trial court answered the question by
explaining that the court did not see Ms. Carr in the courtroom.
Jackson argues that the trial court erred in refusing to dismiss Juror
489 and that the court’s answer to the question did not cure the juror’s bias. Both
Section 11 of the Kentucky Constitution and the Sixth Amendment to the United
States Constitution guarantee the right to a speedy and public trial “by an impartial
jury.” In Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994), the Kentucky
Supreme Court stated, “The test is whether, after having heard all of the evidence,
the prospective juror can conform his views to the requirements of the law and
render a fair and impartial verdict.”
Nothing about the juror’s question indicated that the juror could not
render a fair and impartial verdict once the question was answered. Any bias
against Ms. Carr and the possibility of an unfair advantage should have been cured
by the trial court’s answer to the question.
III. Mug Shot
In his third argument, Jackson argues that the trial court erred in
allowing the Commonwealth to introduce Jackson’s mug shot in rebuttal to show
the jury what hairstyle Jackson had at the time of his arrest. Jackson argued that
the introduction of his mug shot was unduly prejudicial and negated his indicia of
Kentucky Courts have adopted the three-prong test from
United States v. Harrington, 490 F.2d 487 (2nd Cir. 1973), for the use of booking
photographs. The test requires that:
(1) the prosecution must have a demonstrable need
to introduce the photographs; (2) the photos themselves, if
shown to the jury, must not imply that the defendant
had a criminal record; and (3) the manner of their
introduction at trial must be such that it does not
draw particular attention to the source or implications
of the photographs.
Williams v. Commonwealth, 810 S.W.2d 511, 513 (Ky. 1991), quoting Redd v.
Commonwealth, 591 S.W.2d 704, 708 (Ky. App. 1979).
We believe that the introduction of the mug shot was not prejudicial,
and that the above test has been satisfied. The mug shot was not introduced to
show that Jackson was arrested but to demonstrate Jackson’s hairstyle on the day
of arrest, chin-length dreadlocks piled on top of his head, and to rebut the
testimony of a defense witness, Jerry Seabolt, the GED counselor, who testified he
had seen Jackson the day before, wearing dreadlocks. The mug shot, taken at the
booking for the current charge, in no way indicated that he had a previous criminal
record. Further, neither party dwelled on the fact that the mug shot was an arrest
photograph. Finally, the jury was clearly aware Jackson had been arrested on the
morning of the robbery. The purpose of introduction was clearly to prove that
Jackson had his hair stacked up on top of his head when arrested.
IV. Irrelevant Cross-Examination
Finally, Jackson argues that the Commonwealth improperly
questioned a defense witness, Victor Edwards, about the amount of money he paid
in rent to Ms. Carr, Jackson’s mother. Jackson claims that Edwards’ rent is a
collateral fact that is irrelevant to the Commonwealth’s case-in-chief and is an
impermissible subject for cross-examination. We disagree.
It is well established that the right to cross-examine a witness
concerning credibility issues, such as bias, is fundamental to a fair trial. Williams
v. Commonwealth, 569 S.W.2d 139, 145 (Ky. 1978), citing Davis v. Alaska, 415
U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). “Witness credibility is always
at issue and relevant evidence which affects credibility should not be excluded.”
Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997), citing Parsley v.
Commonwealth, 306 S.W.2d 284 (Ky. 1957). “So long as a reasonably complete
picture of the witness’ veracity, bias and motivation is developed, the judge enjoys
power and discretion to set appropriate boundaries.” Id.
Edwards’ answer indicated that he did not pay rent to Ms. Carr and
freely lived in her home. Edwards’ testimony was intended to provide an alibi for
Jackson. The Commonwealth used the Edwards’ rent amount as the basis to
impeach him for bias. We find that the trial court was within its discretion to allow
this line of cross-examination.
Accordingly, for the reasons stated herein, we affirm the judgment of
the Fayette Circuit Court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Assistant Public Advocate
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General