TIMONTE DESHAW HARRIS V COMMONWEALTH OF KENTUCKY
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TIMONTE DESHAW HARRIS
V
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
01-CR-1202
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Following a trial by jury in the Fayette Circuit Court, Appellant, Timonte Deshaw
Harris, was convicted of wanton murder, KRS 507 .020(1)(b), and sentenced to thirty
years in prison . He appeals to this Court as a matter of right, Ky. Const. ยง 110(2)(b),
asserting that (1) he was erroneously denied a directed verdict of acquittal due to the
insufficiency of the evidence against him; (2) irrelevant and prejudicial evidence of a
prior shooting of the victim by another person should have been excluded ; (3) he was
denied his constitutional right to prove that another person may have been the killer ; (4)
in response to a jury request that the testimony of a prosecution witness be replayed
during deliberations, the trial judge erroneously denied Appellant's motion to replay the
entire testimony of the witness ; (5) the trial judge erroneously overruled his motion to
strike a potential juror for cause; and (6) the prosecutor used peremptory strikes to
excuse three potential African-American jurors in violation of Batson v. Kentucky, 476
U .S. 79, 106 S .Ct. 1712, 90 L.Ed .2d 69 (1986). For the reasons explained in this
opinion, we affirm.
I. SUFFICIENCY OF THE EVIDENCE .
At approximately 8:30 p.m. on September 15, 2001, Jeffrey ("Eenie") Reed was
shot to death while driving a white Oldsmobile Achieva belonging to the mother of his
cousin, Tyson Fee . Fee was riding as a passenger in the vehicle when the shooting
occurred . Fee testified that another vehicle pulled behind them as they drove down
Merino Street in Lexington and that someone in that vehicle began shooting at them .
Fee attempted to return fire with his .357 magnum Smith & Wesson revolver, but was
unsuccessful because there was no cartridge in the chamber. Reed was shot in the
back but was able to stop and exit the vehicle before collapsing in the street. Fee drove
to 710 Pine Street, the home of another cousin, and hid his revolver and car keys under
a mattress . He then directed his cousin to call the police to report Reed's death.
Because of darkness, Fee was unable to identify the vehicle from which the shots were
fired or to recognize anyone in the vehicle . Two eyewitnesses testified that the shots
came from a black vehicle chasing a white vehicle and that there appeared to be three
people in the black vehicle. Appellant had access to a black Honda belonging to his
mother .
The Commonwealth's theory was that Appellant shot Reed as part of a cycle of
revenge and retaliation between Reed and Fee on one side and Appellant and Dewan
Mulazim on the other. Mulazim once described Appellant to the police as his "buddy"
One of the eyewitness, however, described the black vehicle as a two-door car with
gold rims whereas other evidence indicated that the black Honda owned by Appellant's
mother was a four-door car without gold rims.
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and "partner ." In support of its theory, the Commonwealth first proved that on August
15, 2001, Reed and Mulazim were involved in an argument during which Reed knocked
Mulazim to the ground and Mulazim retaliated by shooting Reed in the leg. Reed's
girlfriend testified that on the night of September 14, 2001, Reed and Fee were at her
apartment when they spotted Mulazim and Appellant in the neighborhood . She heard
someone say, "Go get a gun," following which Reed and Fee left her residence . Shortly
thereafter, she heard gunshots in the vicinity. Fee testified that on September 15th, he
and Reed were parked in the white Oldsmobile when Appellant approached them on
foot. Appellant accused Reed of shooting at him the previous evening . When Appellant
reached in his pants as if to draw a gun, Reed started the vehicle, and he and Fee sped
away.
Reed's cousin, Jeremiah Sullivan, testified that he encountered Appellant on the
night of the shooting and that Appellant was waving a .9mm Glock pistol, saying, "I just
got one of 'em!" Appellant told Sullivan that "I rode on 'em . . . Eenie and Tyson, chased
'em down," explaining that they had shot at him the previous night because he was with
Mulazim, who had previously shot Reed . Appellant continued to exclaim, "Well, man, I
got 'em, dog, I got 'em . I know I done hit one of them . They tried to kill me ." Appellant
described how he had driven up behind their vehicle while holding his gun in front of the
windshield and shooting .
When police interviewed Mulazim on September 17, 2001, he denied being with
Appellant on either the night of the 14th or the night of the 15th but revealed that a man
nicknamed "Mal Viddy," whom he identified as a brother of Brian Brown, was driving the
vehicle from which the shots that killed Reed were fired . The jury could have
reasonably concluded that the three people the eyewitnesses observed in the black car
were Appellant, Mulazim, and Horace ("Mal Viddy") Brown (who testified that he was
not with Appellant when Reed was killed). At trial, Mulazim testified that he had "made
up" the story about "Mal Viddy," but admitted that he had shot Reed on August 15th and
that someone had shot at him and Appellant on the night of September 14th .
The police found three bullet holes in Fee's white Oldsmobile . The fatal bullet
passed through the license plate holder, the trunk, the rear seat, the driver's seat, and
Reed's body. The bullet was not found, but the police discovered six .9mm shell
casings at the crime scene. Neither was the murder weapon found, but a ballistics
expert testified that all six casings were fired from the same Glock .9mm pistol . The
medical examiner who performed the autopsy testified that the entrance wound of the
bullet into Reed's body was consistent with a wound caused by a medium-sized bullet,
such as a .9mm bullet .
Thus, the Commonwealth proved motive, opportunity, and an admission of guilt,
substantiated by physical evidence . This evidence was sufficient for a reasonable jury
to find beyond a reasonable doubt that Appellant fired the shot that killed Jeffrey Reed .
Commonwealth v. Benham , Ky., 816 S .W.2d 186,187 (1991).
II. PRIOR SHOOTING.
Appellant asserts that evidence of the August 15, 2001, confrontation between
Reed and Mulazim should have been excluded as irrelevant. We disagree . 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 ." KRE 401 . Relevant evidence in a criminal case is any evidence
that tends to prove or disprove an element of the offense . Commonwealth v. Mattingly,
Ky. App., 98 S .W .3d 865, 869 (2003) (citations omitted) . To satisfy the test of
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relevance, only a slight increase in probability must be shown. Springer v.
Commonwealth, Ky., 998 S .W.2d 439, 449 (1999). Furthermore :
An item of evidence, being but a single link in the chain of proof, need not
prove conclusively the proposition for which it is offered . It need not even
make that proposition appear more probable than not. . . . It is enough if
the item could reasonably show that a fact is slightly more probable than it
would appear without that evidence . Even after the probative force of the
evidence is spent, the proposition for which it is offered still can seem
quite improbable .
Turner v. Commonwealth , Ky., 914 S .W.2d 343, 346 (1996) (citations omitted) . The
evidence that Mulazim shot Reed on August 15th provided the motive for Reed and Fee
to shoot at Mulazim and Appellant on September 14th, which provided the motive for
Appellant to shoot and kill Reed on September 15th .
Appellant also claims that KRE 404(b) somehow required suppression of this
evidence. However, that rule applies only to evidence of prior misconduct by the person
against whom the evidence is offered for the purpose of showing that person's
subsequent action in conformity therewith . Appellant did not commit the August 15th
shooting of Reed . Thus, there is no need for a KRE 404(b) analysis . Springer v.
Commonwealth , supra, at 449 n .1 (contention that introduction of sibling's bad acts
violates KRE 404(b) implausible) .
III. ALTERNATIVE PERPETRATOR EVIDENCE.
Reed had previously been convicted of one count of trafficking in a controlled
substance in the first degree . Although the post mortem examination revealed no drugs
in his system, a small amount of marijuana was found during the search of the white
Oldsmobile (which, of course, belonged to Fee's mother, not Reed). Additionally, drug
paraphernalia such as plastic bags, scales, and crack pipes, along with some stolen
property, were found at 710 Pine Street (where Fee had fled after the shooting) . The
Commonwealth filed two motions in limine to exclude this evidence for lack of probative
value . The trial court sustained both motions . Appellant contends that the exclusion of
this evidence interfered with his right to present a defense by denying him the
opportunity to assert that someone else killed Reed . He claims that it is common
knowledge that the drug underworld is dangerous, and if Reed were involved in the drug
trade, many people may have had a motive to kill him.
The Due Process Clause affords a criminal defendant the fundamental right to a
fair opportunity to present a defense. Crane v. Kentucky, 476 U .S. 683, 690-91, 106 S .
Ct. 2142, 2146-47, 90 L .Ed .2d 636 (1986); Chambers v. Mississippi , 410 U .S. 284, 294,
93 S .Ct. 1038, 1045, 35 L.Ed .2d 297 (1973) ; Beaty v. Commonwealth , Ky., 125 S.W.3d
196, 206 (2003). The exclusion of evidence violates that constitutional right when it
"significantly undermine[s] fundamental elements of the defendant's defense ." United
States v. Scheffer , 523 U .S . 303, 315, 118 S .Ct. 1261, 1267-68, 140 L.Ed.2d 413
(1998). This includes the right to introduce evidence that someone other than the
accused, i.e. , an alleged alternative perpetrator ("aaltperp") committed the crime .
Beaty, supra , at 207; Harvey v. Commonwealth , 266 Ky. 789, 100 S .W .2d 829, 830
(1937). However, in cases where this Court or its predecessor have addressed the
issue, the defendant has always been able to identify a specific person who may have
committed the crime . Beats, supra , at 208 (evidence that another person had both
motive and opportunity to commit crime) ; Eldred v. Commonwealth , Ky., 906 S .W .2d
694, 705 (1994) (evidence of intimidation of a witness by aaltperp's boyfriend to prove
that aaltperp committed the crime), abrogated on other grounds by Commonwealth v.
Barroso , Ky., 122 S .W .3d 554, 564 (2003) . See also Harvey , supra, at 830 (evidence
that brother-in-law of the deceased actually fired the fatal shot); Franklin v.
Commonwealth, 105 Ky. 237, 48 S.W. 986, 989 (1899) (evidence that someone else
had the same motive as accused to kill victim) .
In this case, Appellant does not identify any s ecific person who had a motive to
kill Reed . He only asserts that if Reed were involved in the drug trade, many other
people may have wanted to kill him . Nor can Appellant identify a specific motive as to
why someone else would want to kill Reed other than the general statement that the
drug trade frequently involves violence . Other states that have considered similar
arguments have held that a direct connection must exist between the aaltperp and the
offense charged in order for the evidence to be admissible . People v. Jackson , 1 Cal
Rptr. 3d 561, 565 (Cal . Ct. App. 2003) ("[E]vidence of mere motive or opportunity to
commit the crime in another person, without more, will not suffice to raise a reasonable
doubt about a defendant's guilt : there must be direct or circumstantial evidence linking
the third person to the actual perpetration of the crime ."); State v. Ortiz, 747 A .2d 487,
509 (Conn . 2000) ("[U]nless that direct connection exists it is within the sound discretion
of the trial court to refuse to admit such evidence when it simply affords a possible
ground of suspicion against another person." (citations omitted)).
Thus, in People v. Edelbacher, 766 P .2d 1, 21 (Cal. 1989), evidence that the
victim had sold drugs and had friends who were "Hell's Angel-type people" was properly
excluded as too remote to show a reasonable possibility that a third person committed
the crime . As here, it was argued that "people who are dealing in narcotics frequently
end up injured or shot." Id. The court held :
[The] proposed evidence did not identify a possible suspect other than
defendant or link any third person to the commission of the crime . . . .
[E]vidence of a third party's motive, without more, is inadmissible . A
fortiori, evidence showing only a third party's possible motive is not
capable of raising a reasonable doubt of a defendant's guilt and is thus
inadmissible .
Id . See also United States v. DeNoyer, 811 F.2d 436, 440 (8th Cir. 1987) (evidence
that other deviate sex offenders were operating in the community properly excluded as
remote, speculative, and "pure red herring"); State v. Giguere, 439 A.2d 1040, 1042-43
(Conn. 1981) (evidence of several other assaults against women in the same
neighborhood during the same time period properly excluded as merely implying
possible suspicion against another person) ; People v. Kent, 404 N .W .2d 668, 674
(Mich. Ct. App. 1987) (evidence that three other fires occurred at approximately same
time as principal fire, without any facts suggesting that someone else set the other fires,
properly excluded as raising mere suspicion that someone other than defendant set the
principal fire); State v. Koedatich, 548 A.2d 939, 979 (N.J. 1988) (evidence of obscene
phone calls made to pay phone outside cheerleaders' locker room and that murder
victim was a cheerleader properly excluded as only raising suspicion) ; State v. Denny,
357 N.W.2d 12, 17-18 (Wis. Ct . App. 1984) (evidence that murder victim may have
gotten into trouble with major drug dealer, that victim owed another person $130 .00,
that victim may have had an enemy, that person gave victim a shotgun in exchange for
drugs, and that the victim sold the shotgun, all properly excluded for failure to show
motive, opportunity, or a direct connection with the crime).
As Appellant was unable to establish a direct connection between the crime and
any specific person with a motive to kill Reed, the exclusion of the proffered evidence of
Reed's involvement with drugs did not deprive Appellant of his constitutional right to
present a defense.
IV. REPLAY OF TESTIMONY DURING DELIBERATIONS .
In relating the statements made to him by Appellant, Jeremiah Sullivan testified
that Appellant told him that he had fired "seven to nine" shots at the Reed vehicle, but
admitted on cross-examination that he told the police that Appellant claimed to have
fired "six to eight" shots. Sullivan also testified that he had not talked to Fee prior to
being interviewed by the police on September 17, 2001 . However, he later returned to
the witness stand and admitted that, in fact, he had spoken with Fee prior to his police
interview. On this occasion, he testified on direct examination that Fee had only told
him that Reed was driving the car, and gave him no other details about the shooting .
On cross-examination, however, defense counsel impeached Sullivan by reading back
the portion of his written statement where he stated that Fee told him, "Man, they just
came out of nowhere . Starting riding on us, chasing us. And then that's when they
started firing." Nothing was said during Sullivan's second appearance on the witness
stand about anything Appellant had told him or how many shots had been fired.
During deliberations, the jury sent a note to the trial judge asking : "Did Jeremiah
(on the 17th police statement) say that Tamonte [sic] said he had fired 6-7 shots? Or
was this just said on the witness stand?" The trial judge responded that he could not tell
them the answer to the question, but that he could replay Sullivan's testimony for them .
He informed them that they would need to watch both the direct and cross-examination
if they chose that option . The jury opted to listen to the testimony and viewed the
entirety of the testimony given by Sullivan on his first appearance as a witness;
however, the judge overruled Appellant's motion to replay Sullivan's testimony from his
second appearance. Appellant asserts that Sullivan and Fee may have conspired to
"frame" him before Sullivan went to the police; thus, it was reversible error not to replay
the testimony in which Sullivan admitted to talking to Fee before going to the police.
(The jury did not request a replay of that testimony .)
The decision with respect to how much testimony to read or replay to the jury is
within the sound discretion of the trial court and will not be overturned absent a clear
abuse of discretion. Baze v . Commonwealth , Ky., 965 S.W.2d 817, 825 (1997) . In
exercising that discretion, the judge must balance the risk of emphasizing particular
testimony against the need to obviate juror confusion . Bellamy v. Pathak , Ky. App ., 869
S .W.2d 45, 47 (1993) (citing Smith v. Wright, Ky., 512 S .W.2d 943, 947 (1974)) . A trial
judge is only required to provide the jury with the requested portion of the testimony and
has a duty to ensure that the trial is not unnecessarily prolonged. Jarvis v.
Commonwealth , 245 Ky. 790, 54 S.W.2d 307, 310 (1932). A judge need not replay
cross-examination when the answer to the jury's question lies in testimony given during
direct examination . Johnson v. Commonwealth , Ky., 497 S .W.2d 699, 700 (1973). In
fact, if portions that the jury have not requested are read back, it may prejudice the
appellee's interests, as it would unduly emphasize that testimony . Humana, Inc. v.
Fairchild , Ky. App., 603 S.W .2d 918, 921 (1980). Here, the trial judge replayed only the
portion of the testimony that the jurors requested, i.e. , the portion that contained the
answer to their question . We perceive no abuse of discretion .
V. FAILURE TO EXCUSE JUROR FOR CAUSE.
During voir dire, Juror 194 advised that her husband is a police officer and that
he was a friend of the officer who was the lead investigator on this case. She said that
she did not know the officer personally, and was not familiar with the case because she
and her husband were out of town when the shooting occurred . She also said that she
and her husband do not discuss his work and that she believed she could be impartial .
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Appellant's counsel moved to strike Juror 194 for cause based on these facts and
asserts as error on appeal the trial judge's denial of his motion.
This is a non-issue . Juror 194 did not sit as a juror on this case, and Appellant
did not use a peremptory strike to excuse her. Thomas v. Commonwealth , Ky., 864
S .W .2d 252, 259 (1993). The record indicates that, after voir dire of the initial panel, the
panel was reduced to thirty-three potential jurors by random selection, and that Juror
194 was one of those jurors excused by that process . Therefore, no prejudice resulted
from the failure to strike her for cause.
VI. BATSON ISSUE .
The Commonwealth removed three of the five African-American members of the
jury panel by peremptory strikes . Appellant's counsel claimed a so-called "Batson
violation ." Batson v. Kentucky , 476 U .S . at 79, 106 S .Ct. at 1712. The trial judge asked
the prosecutor to explain why the Commonwealth had peremptorily excused the three
African-American jurors . The prosecutor replied that she struck Juror 164 because he
had stated that he had strong feelings about people carrying unlicensed firearms . One
of the Commonwealth's key witnesses, Fee, was carrying an unlicensed firearm when
Reed was killed, and the prosecutor feared that Juror 164 might be prejudiced against
him . Next, the prosecutor explained that she struck Juror 221 because she had served
the previous week as a juror on another criminal case in which the defendant had been
acquitted, and that she had also struck several Caucasian jurors from this jury for the
same reason. Appellant does not complain on appeal about the removal of Jurors 164
and 221 .
However, Appellant does challenge the removal of Juror 141 . When asked if
anyone was familiar with the case, Juror 141 stated that she had grown up on the side
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of town where the shooting occurred and that her husband had driven near the area on
September 15, 2001 . When he arrived at home and informed her that a shooting had
occurred on Merino Street, they decided to return to the scene to look around and
"meddle." However, the crime scene had been cleared by the time they arrived, and
they did not talk to anyone there about the shooting . Juror 164 also recognized the
name of one of the eyewitnesses because her son-in-law has a garage in the witness's
neighborhood and she had observed the witness sitting outside on her porch . However,
she had never spoken to the witness and had never had any problems with her. She
believed that she could remain impartial and consider the evidence from both sides.
The prosecutor explained that she struck Juror 164 because she found her personal
desire to investigate the scene of the crime to be "curious" and "odd ." The trial judge
accepted this explanation as "race-neutral ." Appellant asserts that the prosecutor
excused this juror for a discriminatory purpose and that the purported reason given for
the strike was a pretext.
Batson established a three-part test to determine whether the prosecution has
removed potential jurors solely on the basis of race. First, the defendant must make a
prima facie showing of purposeful discrimination . Id . a t 96-97, 106 S .Ct. at 1723.
Generally, numbers alone are insufficient to satisfy this step, but if the prosecution
offers a race-neutral reason and the trial judge rules on the issue, the issue of whether a
prima facie showing was made is, as here, mooted . Commonwealth v. Snodgrass . Ky.,
831 S .W.2d 176, 179 (1992) (citing Hernandez v. New York, 500 U .S . 352, 359, 111 S.
Ct . 1859, 1866, 114 L .Ed .2d 395 (1991)) .
The second step requires the prosecutor to provide a race-neutral reason for the
strike . Batson . supra , at 97, 106 S . Ct . a t 1723. The explanation given during the
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second step need not be persuasive, or even plausible, nor does it need to rise to the
level of a challenge for cause. It must simply be facially valid . "Unless a discriminatory
intent is inherent in the prosecutor's explanation, the reason offered will be deemed race
neutral ." Purkett v. Elem, 514 U.S . 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed.2d 834
(1995) (per curiam) (citing Hernandez , supra , at 374, 111 S. Ct. at 1874). Here, the
Commonwealth offered facially valid reasons for all three peremptory strikes ; thus, this
aspect of the test was satisfied .
The third step requires the trial judge to determine whether the defendant has
met the burden of showing intentional discrimination . Batson , supra , at 98, 106 S. Ct. at
1724. During this step, the trial judge must evaluate the reasons offered by the
prosecutor to determine if they are valid and neutral and not simply a pretext for
discrimination . Gamble v. Commonwealth , Ky., 68 S.W .3d 367, 371 (2002). The trial
judge's decision is accorded great deference on this issue because the judge is in the
best position to evaluate the credibility and demeanor of the prosecutor. Hernandez ,
supra, at 365, 111 S.Ct. at 1869 . This decision will not be overturned unless it is clearly
erroneous. Stanford v. Commonwealth , Ky., 793 S.W.2d 112, 114 (1990).
Appellant contends that the trial judge made no findings to meet the
requirements of the third step. This is incorrect . The trial judge stated that while he did
not believe that the Commonwealth's reason for striking Juror 141 would be grounds to
excuse the juror for cause, it was a sufficient reason to exercise a peremptory strike .
We are unable to say that the trial judge was clearly erroneous in this finding . The fact
that Juror 141 was sufficiently curious about the shooting to visit the crime scene may
have reasonably led the prosecutor to question her ability to impartially consider the
2 The trial judge was correct. See Derossett v . Commonwealth , Ky., 867 S .W.2d 195,
197 (1993) (juror having driven past the scene not grounds to strike for cause).
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evidence . Nothing indicates that this reason was a pretext for discrimination, and the
trial judge was entitled to believe the prosecutor's explanation based on his evaluation
of the prosecutor's credibility and demeanor . Hernandez , supra, at 365, 111 S .Ct. at
1869 .
Accordingly, the judgment of conviction and the sentence imposed by the Fayette
Circuit Court are AFFIRMED.
All concur.
COUNSEL FOR APPELLANT :
Emily Holt
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Samuel J . Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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