NEFCHEVIOUS MATHEWS V. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 25, 1999
AS MODIFIED: AUGUST 26, 1999
TO BE PUBLISHED
!7-SC-000053-MR
NEFCHEVIOUS
MATHEWS
APPEALED FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
INDICTMENT NO. 95-CR-074901
V.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
AFFIRMING
Appellant,
Nefchevious
Mathews, was convicted in the Warren
Circuit Court of intentional murder and sentenced to life
imprisonment.
He appeals to this Court as a matter of right.
After hearing oral arguments and reviewing the record, we affirm.
On October 25,
1995, Appellant and Dalton Morrow engaged in
an argument which escalated to the point that there was an
exchange
of
gunfire.
Appellant's
gunfire
missed
Morrow,
but
fatally struck an innocent bystander who was standing some
distance
away.
A Warren County jury found that Appellant fired
first with the intent to kill Morrow, and convicted him of
intentional
murder.
Appellant's first claim of error is the trial court's
refusal
to
suppress
his
statement
to
the
arresting
officer.
He
argues that the prosecution withheld this statement in violation
of a discovery order.
Appellant
claims
that
the
court's
refusal
to suppress this statement precluded his testifying and thereby
denied him due process and a fair trial.
At the close of its case-in-chief, the Commonwealth called
Darlene
Lackey, a detective with the homicide unit of the
Cincinnati
Police
Department.
Defense
counsel
objected
and
claimed surprise because there was no motion to secure the
attendance of Detective Lackey and there was not a returned
subpoena in the file.
At sidebar,
defense counsel was informed
that Detective Lackey was prepared to testify not only as to the
date and location of Appellant's arrest, but also to Appellant's
oral statement given after signing a waiver of his constitutional
rights.
Appellant told Detective Lackey that he did not shoot
the victim, but that a third party fired the fatal shot.
to Detective Lackey being called, Appellant
apparently
Prior
planned
to
_ claim self-defense.
The trial court ruled Detective Lackey could testify during
the Commonwealth's case-in-chief only as to when and where she
arrested
Appellant, because the testimony was relevant to show
flight; however the trial court further ruled that if Appellant
chose to testify, and
claimed
self-defense,
the
Commonwealth
could introduce the statement during rebuttal to show a prior
inconsistent
him
from
statement.
testifying,
Appellant
thereby
argues
"gutting"
defense.
2
this
his
ruling
prevented
self-protection
Appellant contends he was entitled under RCr
7.24(l) to have
the Commonwealth provide in pretrial discovery the substance of
his own alleged statement.
Appellant also cites the
Commonwealth's constitutional duty to provide an accused with any
exculpatory
694,
evidence.
701 (1995).
S.W.2d
Eldred v. Commonwealth, KY.,
Citing McGinnis v. Commonwealth,
518, 521 (1994),
Commonwealth,
906 S.W.2d
KY.,
overruled on other srounds,
976 S.W.2d
416 (19981,
875
Elliott v.
Appellant argues a
defendant's own testimony is essential to the presentation of a
self-protection
7.24 (9),
Additionally,
Appellant points to RCr
which allows a trial court to direct a party to permit
grant a continuance, prohibit the introduction of
discovery,
undisclosed
under
defense.
the
evidence,
or "enter such other order as may be just
circumstances."
The Commonwealth responds that Appellant, on the advice of
counsel,
made a strategic decision, based upon the facts and
circumstances as they existed at the time, not to testify and
risk
impeachment.
The
Commonwealth
further
contends
that
Appellant could have chosen to testify by avowal under RCr 9.52
and,
since no record was made of what Appellant actually would
have testified to, this Court has no way to determine whether
Appellant's testimony would have been inconsistent with his prior
oral
statement.
We agree.
RCr 7.24(l) states in relevant part:
Upon written request by the defense, the
attorney for the Commonwealth shall disclose
the substance of any oral incriminating
3
statement known by the attorney for the
Commonwealth to have been made by a defendant
to any witness, and to permit the defendant
to inspect and copy or photograph any
relevant . . . written or recorded statements
or confessions made by the defendant, or
copies thereof, that are known by the
attorney for the Commonwealth to be in the
possession, custody, or control of the
Commonwealth . . . .
(Emphasis added).
In Anderson v. Commonwealth, KY.,
864 S.W.2d
909, 914 (1993),
we
held the oral statement of one defendant which was recorded in a
social worker's notes was clearly discoverable under RCr
However,
S.W.2d
7.24.
this Court stated in Berw v. Commonwealth, KY.,
625, 627 (1990),
recorded
statements."
782
"RCr 7.24 applies only to written or
This portion of Berry dealt with the
defendant's claim of a discovery violation where the prosecution
had not provided prior to trial a witness's statement identifying
the
defendant.
At best, this would have been a claim of
violation of RCr 7.24(2), which deals with statements made by
witnesses,
defendant.
219,
224
not 7.24(l), which deals with statements made by the
However,
(19961,
in Partin v. Commonwealth,
Ky.,
918 S.W.2d
we upheld I
Berrv in a RCr 7.24(l) context.
n
Partin, a police detective revealed for the first time at trial
that the defendant had said, "Oh, well," when he was informed of
the state in which his estranged paramour's corpse was found.
Id.
This Court found no harm in the admission of this statement
and, despite paraphrasing the relevant portions of RCr
7.24(l),
found the above quoted sentence from Berrv applicable so that no
4
error
occurred.
Id.
Concerning the nature of Appellant's statement, there is a
distinction between the cited case law and the facts at hand.
Clearly,
claiming that another was responsible for the shooting
does not constitute an incriminating statement so as to fall
under the guise of RCr 7.24(l).
Further,
although
Appellant's
statement could be considered exculpatory, he was aware that he,
in fact, made such an assertion to Detective Lackey.
Appellant's
failing to reveal the statement to his counsel can only be viewed
as a strategic decision.
An additional consideration is the fact that defense counsel
chose to reserve opening statement and Appellant ultimately did
not testify.
protection
As such, although Appellant had alluded to a self-
defense, we have no way of knowing what Appellant's
testimony would have actually been.
469 U.S. 38, 105 S.Ct.
In Lute v. United
460, 83 L.Ed.2d
443 (19841,
States,
defendant Lute
moved the trial court to preclude the prosecution from using a
prior conviction to impeach him if he testified.
denied the motion and Lute did not testify.
The trial court
On appeal, he argued
that the trial court's ruling effectively precluded him from
testifying.
Disagreeing
with Lute's
position, the United States
Supreme Court ruled that (1) in order for an appellate court to
review the error, Lute had to testify so the court could
determine whether there was any prejudicial effect; (2) any
possible harm from the trial court's decision was wholly
speculative since Lute did not testify; (3) because Lute's
5
decision whether to testify did not likely turn on one single
factor, the appellate court could not assume the adverse ruling
motivated his decision not to testify; and (4) to raise and
preserve for review a claim of improper impeachment of the
defendant,
the defendant must testify.
Id. at 39-43, 105 S.Ct.
at 461-469.
Kentucky has a procedure enabling a criminal defendant to
testify by avowal in the event he believes it necessary to place
his testimony into the record out of the presence of the jury.
RCr 9.52.
Appellant did not avail himself of this remedy. In
the absence of anything in the record to indicate the substance
of
Appellant's
testimony, had he chosen to testify, this Court is
unable to review such testimony to determine whether it would
have been consistent or inconsistent with the prior statement.
Appellant simply has failed to demonstrate that the trial court's
ruling
precluded
his
testifying.
A defendant does not have the
right to present testimony free from the legitimate demands of
the
adversarial
system.
Appellant next claims that the trial court committed
palpable error in the sentencing phase when the trial court
erroneously instructed the jury to consider imposing a penalty of
life without probation or parole for twenty-five years when such
a penalty was not authorized due to the lack of any aggravating
circumstances.
KRS 532.025(3).
However,
after
deliberating
an
hour and a half, the jury recommended a sentence of life
imprisonment.
Appellant claims the error in the sentencing phase
6
instruction "skewed
verdict."
what
was
clearly
a
compromise
sentencing
Appellant argues the jury sought to impose the
penultimate
penalty
which, under
the
correct
instructions,
have been imprisonment for a term of years, not life.
would
Therefore,
the sentence would not have been the same had the error not been
Appellant
committed.
cites RCr
9.54(l) for the proposition that
the court must instruct the jury only on the law of the case.
This claim of error is unpreserved.
Appellant,
therefore,
seeks
review under RCr 10.26.
The
Commonwealth
responds
that
RCr
9.54(2)
precludes
this
Court from reviewing this error on appeal because the error in
the instruction was not properly presented to the trial judge,
thus affording him the opportunity to remedy the situation.
The Commonwealth further asserts the error here does not reach
the level of palpable error under RCr 10.26 and argues any error
was harmless in light of the fact that the jury sentenced
Appellant to a permissible term of years for a capital offense
committed
without
an
aggravating
circumstance.
The
Commonwealth
urges that the error was not so obvious that it was easily
recognized
or
that
it
undermined
Appellant's
constitutional
right
to a fair trial to a degree which would call into serious
question the
Commonwealth
reliability
contends
of
the
judgment.
there
was
no
manifest
Finally,
the
injustice
because
there is not a substantial possibility the sentence would have
differed if not for the error where the jury did not clearly rely
upon
the
erroneous
instruction.
7
Case law does set forth a procedure for dealing with errors
in
penalty
instructions.
If the trial judge instructs the jury
as to an improperly high maximum penalty, but
the defendant to the minimum penalty,
"no
the
error
jury
sentences
prejudicial
to
the accused is committed for irrespective of what, under the law
or the instructions, he might have received, he got only the
least
punishment
prescribed
by
the
statute."
Durham v.
Commonwealth, Ky., 241 Ky. 612, 615, 44 S.W.2d
see also Runvon v. Commonwealth, KY.,
215 Ky. 689, 694-95, 286
S.W. 1076 (1926); Dunn v. Commonwealth, KY.,
237 S.W. 1072 (1922).
557, 558 (1931);
193 Ky. 842, 845-46,
When the trial judge instructs the jury as
to an improperly low minimum penalty and the jury sentences the
defendant to the improper minimum penalty, "the accused is not
prejudiced."
Durham, sunra, 241 Ky. at 615 (citing Moblev v.
Commonwealth, Ky., 190 Ky. 424, 426, 227 S.W. 584, 585 (1921)).
Where the trial judge instructs the jury as to an improperly high
minimum
penalty, but the jury sentences the defendant to a
penalty
greater
than
the
error has been committed.
KYKY-,
improper
minimum
Middleton
v.
penalty,
no
Commonwealth,
prejudicial
Ky.,
197
422, 425, 247 S.W. 40, 42 (1923); Sebree v. Commonwealth,
200 Ky. 534, 540-41, 255 S.W. 142, .144-45 (1923).
However,
when the trial judge instructs the jury as to an improperly high
minimum
penalty, and the jury sentences the defendant to the
minimum
penalty
a reversal.1'
S.W.2d
as
instructed,
"[tlhis
error
Collier v. Commonwealth, KY.,
773, 775 (1943).
Finally,
8
where
the
alone
would
justify
295 Ky. 486, 490, 174
trial
judge
instructs
the jury as to an improperly high minimum and maximum penalty,
and the jury sentences the defendant to a penalty which would
have been the maximum under proper instruction, "the court
committed a fatal error in so instructing the jury."
Commonwealth, KY.,
Short v.
291 Ky. 604, 609, 165 S.W.2d 177, 179 (1942);
see also, Durham, sunra.
In this case, the judge instructed the jury as to an
improperly high maximum penalty; however, the jury returned a
sentence
murder
V.
within
the
committed
statutory
without
Commonwealth,
Ky.
an
range
of
sentences
aggravating
App., 720 S.W.2d
for
intentional
circumstance.
347 (1986),
In Russell
the Court of
Appeals refused to consider an argument that the trial court
over-instructed
convicted
of
a
a
lesser-included
offense
jury
when
the
lesser-included
offense
harmless
offense.
renders
error."
defendant
the
was
ultimately
"[Clonviction
instruction
Id. at 347.
on
of a
the
greater
(Citations omitted) .
Appellant has failed to demonstrate how he was prejudiced by
an instruction upon which the jury did not rely.
Nor has he
substantiated his claim of a “compromised verdict."
Since
Appellant
palpable
error
received
occurred.
Finally,
a
statutorily
valid
sentence,
no
RCr 10.26
Appellant
argues
that
the
trial
court
erroneously
permitted the Commonwealth to "glorify" the victim by reiterating
that the victim was an innocent bystander and Appellant had no
reason to defend himself.
Appellant
further
takes
issue
with
prosecutor's reference to the victim's “mama and baby boy."
the
Appellant
claims
that
these
statements
were
irrelevant
and
highly
prejudicial because the decedent's conduct and state of mind were
not at issue.
Again, we note that this error is unpreserved in that any
objections Appellant did raise at trial differ from those
presented
on
appeal.
Nonetheless,
the law has always permitted
the prosecutor to present the human side of a victim.
Commonwealth,
KY.,
Commonwealth's
statements
victim.
No
error
942 S.W.2d 293 (1997).
constituted
Bowlina v.
We do not believe the
"glorification"
of
the
occurred.
The judgment and sentence of the Warren Circuit Court is
affirmed.
Cooper,
Graves,
Stephens,
Johnstone,
and
Wintersheimer,
J.J.,
concur.
J., dissents by separate opinion in which Lambert,
C.J., and Stumbo, J., join.
10
COUNSEL
FOR
APPELLANT:
David T. Eucker
Department of Public
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601
COUNSEL
FOR
Advocacy
APPELLEE:
A.B. Chandler III
Attorney General
Perry T. Ryan
Assistant Attorney
Office of Attorney
Criminal Appellate
1024 Capital Center
Frankfort, KY 40601
General
General
Division
Drive
Christopher
Hancock
Assistant
Commonwealth's
Second Floor
400 East Main Street
Bowling Green, KY 42101
Attorney
11
RENDERED:
March
TO BE PUBLISHED
25,
1999
97-SC-53-MR
NEFCHEVIOUS
MATHEWS
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS LEWIS, JUDGE
(95-CR-749-1)
V.
COMMONWEALTH
OF
KENTUCKY
DISSENTING
Respectfully,
Appellant,
imprisonment
I
APPELLEE
OPINION
a
JUSTICE
STEPHENS
dissent.
Nefchevious
as
BY
result
of
Mathews,
his
was
conviction
sentenced to
for
intentional
life
murder.
As a result of a gross violation of the rules of criminal procedure
at his trial, I cannot agree with the majority's conclusion that no
reversible
error
occurred.
DuringtheCommonwealth's
Detective
notes,
Darlene
Lackey
case-in-chief the Commonwealth called
to
testify, based on eight to ten pages of
as to statements made by Mathews when she arrested him.
This was the first time that appellant was made aware of the
existence of these notes or the intent to call Lackey to the stand.
Appellant
an
made
impermissible
a
timely
violation
objection.
of
his
Appellant claims that this is
rights.
I agree.
The statement in question dealt with the issue of who fired
the shot which lead to the death of the victim. Detective Lackey
was ready to testify that appellant told her that someone else had
Appellant's
fired the fatal shot when she arrested him.
position
at trial was that he had fired the shot, but it had been in selfdefense.
Appellant forwards three arguments as to why Lackey's testimony
should
have
been
disclosed
to
RCR 7.24(1)(a) mandates
the
defense
prior
to
trial.
First,
that the Commonwealth disclose
the
substance of any oral incriminating statement made by a defendant
to any witness.
be
permitted
whether
Second,
access
to
incriminating
906 S.W.2d
RCr
any
or
7.24(l)(a)
relevant
not.
mandates
written
Third,
that
or
Eldred
the
recorded
v.
defendant
statements,
Commonwealth,
Ky.,
requires that all exculpatory evidence be
694 (1995),
provided to a defendant.
Depending on the perspective taken, it
can certainly be argued that appellant's statement falls into all
IA ree
categories.
RCr
7.24(l)(a) requires that:
[T]he attorney for the Commonwealth shall disclose the
substance of any oral incriminating statement known by
the attorney for the Commonwealth to have been made by a
defendant to any witness, and to permit the defendant to
inspect and copy or photograph any relevant written or
recorded statements.
(emphasis
added).
The
first
requires
any
oral
witness."
defendant
There are two clear parts to RCr
that
incriminating
the
Commonwealth
statement
.
.
"disclose
the
7.24(l)(a).
substance
of
. made by a defendant to any
The second mandates that the Commonwealth give the
access
to
"any
relevant
-2-
written
or
recorded
statements."
The reason that it is clear there are two separate parts to RCr
7.24(1)(a) is that the conjunction "and" is employed in the middle
of the rule.
Accordingly,
there are two separate burdens imposed
by RCr 7.24(1)(a).
' RCr 7.24(1)(a)
statement."
demands
disclosure
of
"any
incriminating
This is not a vague or complex concept.
Basically
anything that the defendant has said to a witness which in any way
incriminates himself or herself must be disclosed to the defense.
This part of the rule does not require that the statement even be
recorded,
simply that the Commonwealth know of the statement. In
this case, there can be no real question that the Commonwealth knew
of the statement, thus the only unresolved issue is whether such a
statement was in any way incriminating.
Appellant admitted to Lackey that he was present in the
vehicle from which one person fired a weapon at another person.
Obviously he did not incriminate himself as to being the shooter,
but certainly he incriminates himself by admitting to being present
in the vehicle from which the shots were fired.
There are other
types of criminal liability such as facilitation, conspiracy or
complicity in which it is not necessary to perform the actual
crime, but merely assist in some fashion.
So for the majority to
assert that appellant did not incriminate himself in the shooting
does not deal with the issue of the other crimes for which he might
have incriminated himself.
The second part of RCr 7.24(l)(a) requires that the defense be
given access to any relevant written or recorded statement.
This
is a much broader requirement than the first portion of the rule in
-3-
that the standard is not incrimination, but rather relevance. In
this
case
I cannot believe that a serious argument against
relevance can even be entertained since it was the Commonwealth who
wanted
this
evidence
Accordingly,
admitted.
the
statement
is
relevant.
The majority asserts that since appellant did not write the
statement
in
question
out
in
longhand,
it
"written" within the meaning of RCr 7.24(l).
cannot
be
considered
Written is defined as
"to draw or form by or as if by scoring or incising a surface."
Webster's
Even
Third
New
accepting
Int'l
Dictionary
arguendo,
2640 (3rd
ed.
unabridged
1993).
how can the majority conclude that
Detective Lackey's reduction of the statement to writing is not
"recorded" within the meaning of RCr
7.24(l)?
Recorded is defined
as ‘to make an objective lasting indication of in some mechanical
or automatic way." Id. at 1898.
or
recorded
within
the
meaning
Either
of
this
RCr
statement
7.24(l).
was
written
Accordingly, it
should have been admitted as being a relevant written or recorded
statement.
In this case the Commonwealth made a deliberate choice to not
follow RCr 7.24(l).
This
misconduct
must
longer
permit "trial
by
surprise" in
the
When
party
a
enters
the
not
be
permitted.
Commonwealth
of
We no
Kentucky.
courthouse, he or she has a right to expect
that all members of the bar shall follow the rules.
majority wishes to rewrite RCr
If the
7.24(l)(a), then it certainly has
the legal authority to do so; however, this revision should take
place
in
the
normal
process
of
rule
-4-
changes.
,
It is beyond question that the Commonwealth possesses a duty
to provide an accused with any exculpatory evidence.
Commonwealth,
Ritchie,
57
694 (1995)(citinq
v.
Pennsylvania v.
480 U.S. 39, 55-56, 107 S. Ct. 989, 1000, 94 L. Ed.2d
(1987).
RCr
906 S.W.2d
KY.,
Eldred
7.24(l)
Since
the
majority
has
incorrectly
taken
the
40,
view
that
does not apply because the statement in question was
that someone other than appellant fired the fatal shot, logically
this statement must be viewed as exculpatory.
However,
the
majority simply states that if the statement was exculpatory then
no violation of Eldred occurred because the appellant 'Lwas
that he, in fact, made
Slip Op. at 5.
of
any
any
such
an
assertion
to
Detective
I do not agree with this conclusion.
exception
information
which,
that
permits
it
the
thinks
prosecution
the
defense
to
aware
Lackey."
I am unaware
fail
to
possesses.
produce
I have
researched the applicable state and federal cases and I am unable
to find any such “defendant
Eldred
requires
over to the defense.
that
The
is
aware
all
of
the
exculpatory
reason
for
this
statement"
exception.
information
is
be
fundamental
turned
fairness.
Brady v. Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 1196, 10
Ed.2d
215
fundamentally
the
state.
(1963)(due
fair).
process
requires
that
a
be
The driving force behind any prosecution is
To be able to defend against the charges against him,
a defendant must know what evidence the state possesses.
the result is trial by ambush.
Accordingly,
the
this
Commonwealth
significance.
trial
L.
The
possessed
Commonwealth
still
-5-
whether
Otherwise
appellant
statement is of no
had
a
duty
to
produce
knew
legal
it.
However,
knowledge
Eldred,
since
by
a
the
majority
defendant
vitiates
has taken the stance that
the
need
for
I will proceed along those lines.
compliance
with
In this case
First,
there is no evidence that the prosecution made any effort to
discern whether appellant was aware that the statement was
possessed
by
prosecution.
December of 1995.
suggest
one
that
year
whether
earlier
Second,
Police
was
arrested
by
Lackey
in
Appellant was tried in December of 1996. To
appellant
appellant
Appellant
should
is
department.
assumed
ridiculous.
knew
Detective
be
it
was
remember
The
possessed
Lackey
to
a
prosecution
the
what
statement.
member
of
the
had
happened
no
idea
Cincinnati,
Ohio
Perhaps appellant believed that since Lackey
worked for the law enforcement agency of another state that the
statement
he
gave
Commonwealth.
to Lackey would not be passed on to the
This would be a foolish assumption, but then again
the entire issue of appellant's state of mind as to whether the
prosecution
existed
is
possessed
far
beyond
statement or even if the statement
his
foolish.
It is a fundamental precept that a prosecutor must
conduct himself with “due regard to the proprieties of
his office and to see that the legal rights of the
accused, as well as those of the Commonwealth, are
protected."
(citations omitted).
Moore
v.
Commonwealth,
Ky.,
634 S.W.2d
426,
437-38
(1982).
Unfortunately,
in the instant case the Commonwealth has come up far
short
standard
of
this
I do not suggest
nefarious
activity
for
of
conduct.
that the Commonwealth engaged in this
some
mischievous
purpose.
But rather I
suggest that the failure of the Commonwealth to comply with the
-6-
dictates
of
Nefchevious
dissent
RCr
7.24(l)
Mathews.
For
and would reverse
Lambert,
C.J.,
and
and
Eldred
the
prejudiced
reasons
and remand
Stumbo,
opinion.
-7-
I
have
the
stated
rights
above,
of
I
for a new trial.
J.,
join
in
this
dissenting
97-SC-0053-MR
NEFCHEVIOUS
MATHEWS
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
95-CR-74901
V.
COMMONWEALTH
OF
KENTUCKY
ORDER
AND
DENYING
GRANTING
Appellant's
APPELLEE
APPELLANT'S PETITION FOR REHEARING
AND
MODIFICATION
APPELLEE'S PETITION FOR MODIFICATION
petition
for
rehearing
and
modification
is
denied.
Appellee's
petition for modification is granted.
The opinion of the court rendered herein on March 25, 1999,
is modified by the substitution of new pages one, and seven
through
eleven, attached
hereto, in lieu of pages one, and seven
through ten as originally rendered.
Said modification is made to
clarify the facts of this case and does not affect the holding of
the case, or the dissenting opinion.
All concur.
ENTERED:
August 26, 1999.
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