DERRICK LANE V. COMMONWEALTH OF KENTUCKY
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2002-SC-0585-MR
DERRICK LANE
V.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D . PAYNE, JUDGE
2002-CR-0014
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Derrick Lane, was convicted of first-degree burglary and fourth-degree
assault by the Fayette Circuit Court .. He received concurrent sentences of twenty years'
imprisonment for burglary and twelve months for assault. His appeal comes before this
Court as a matter of right . Ky. Const. ยง110(2)(b). Appellant asserts the following trial
errors: 1) the improper admission of prior bad acts and "investigative hearsay," 2) the
improper admission of hearsay testimony from other witnesses, 3) the improper
admission of unduly prejudicial statements made by the interviewing detective, 4) the
failure to instruct the jury on the right to enter a dwelling, 5) the failure to order a
competency hearing, and 6) the failure to enter a directed verdict . We affirm.
Facts
In the early morning hours of October 28, 2001, Appellant, a maintenance man
at the Surfside Apartment complex, entered the victim's apartment purportedly to
investigate a fire. No other witness reported any indication of smoke or fire at the time
in question . The victim testified that a loud noise awoke her from bed, so she threw on
her clothes and grabbed her cell phone . At first, she could only perceive a shadowy
figure, but Appellant then lunged at her and she recognized him as the apartment
complex's maintenance man . A struggle ensued. The victim attempted to dial 911, but
Appellant knocked the phone away. According to the victim, Appellant grabbed at her
clothing and she feared that he was going to take advantage of her. She received cuts
and bruises on her chest, neck, and hands while defending herself . When Appellant
covered her mouth to prevent her from screaming, she bit down on his finger until blood
dripped from her mouth onto the wall and the carpet . Eventually, Appellant agreed to
leave if she would release his finger. As Appellant lay on the floor, she offered him a
bandage in the hope that he might leave . When Appellant did not leave, she brought
him a glass of water to appease him and to create an opportunity to escape. But
because she had on no shoes, she decided against this plan and undertook instead to
calm Appellant until he would voluntarily leave . Finally, he left, warning her not to call
the police or anyone else . She then began to lock the doors and windows and, in doing
so, noticed Appellant pacing beneath her kitchen window. She called Gary Slone, the
apartment manager . There was no answer so she left a message and waited in her
apartment until morning when Slone arrived with the police . The victim identified
Appellant as the assailant. Slone directed police to Appellant's sleeping quarters where
he was immediately arrested .
Appellant was tried before a Fayette Circuit Court jury and found guilty of
burglary in the first degree and assault in the fourth degree. He was sentenced to
twenty years' imprisonment on the burglary charge, and twelve months' imprisonment
on the assault charge . Additional facts will be developed as necessary.
Detective Roper's Testimony
Appellant contends the trial court erred to his substantial prejudice by admitting
certain portions of the testimony of Detective Roper, the investigating officer . Appellant
first complains of Detective Roper's statement that other charges against Appellant had
been contemplated, though not brought. According to Appellant, these statements
constituted improper character evidence . Next, Appellant directs our attention to
Detective Roper's testimony regarding a possible criminal investigation of Ike Lawrence,
owner of the apartment complex and the sole defense witness . Appellant asserts that
such testimony is inadmissible hearsay .
Appellant's first claim of error, regarding Detective Roper's testimony that other
charges against Appellant had been contemplated, is not preserved for review. At trial,
the Commonwealth asked Detective Roper, "Did you contemplate any other charges in
this case?" Defense counsel objected before the detective responded, and a
conference at the bench followed . The Commonwealth explained that it sought to lay a
foundation on this issue prior to the admission of Appellant's taped interview with
Detective Roper. During the interview, Detective Sweeney informs Appellant that he is
facing attempted rape charges . At the point of Detective Sweeney's in-court testimony,
however, the trial court had not yet ruled on the admissibility of the taped interview.
Following a brief discussion, the trial court explained that a general question regarding
other charges against Appellant - without reference to the specific attempted rape
charge - would be permitted . The Commonwealth verbally agreed to this limitation,
and defense counsel replied, "okay, okay." Defense counsel did not make any further
objections as the Commonwealth proceeded with the limited direct examination on this
issue, and therefore the issue is not preserved for appellate review . RCr 9.22 .
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Furthermore, it is axiomatic that defense counsel may not agree to a proposed remedy
at trial, then appeal the trial court's decision to follow that very recommendation .
Appellant also argues that Detective Roper improperly testified concerning a
criminal investigation of Ike Lawrence, arising from the same set of events. Apparently,
as the criminal investigation of Appellant progressed, the officers encountered
allegations that Mr. Lawrence had approached witnesses about altering their testimony
and were conducting an investigation into that matter . The Commonwealth sought to
question Detective Roper concerning this investigation in order to lay a foundation as to
why he was compelled to re-interview certain witnesses. Prior to commencing this
portion of the testimony, the prosecutor approached the bench and explained her intent
to the court and opposing counsel . Defense counsel objected, arguing that the
testimony was hearsay, that it amounted to improper bolstering of the prosecution
witnesses, and that it was an impeachment in advance of Mr. Lawrence. The trial judge
overruled the objection, though he did limit the Commonwealth to certain questions that
would not elicit any hearsay from Detective Roper. The testimony proceeded as
follows:
COMM:
Are you aware of whether or not Mr. Lawrence is currently
under any criminal investigation?
ROPER:
Yes, I am.
COMM:
Does this have to do with the witnesses in this case and
their testimony?
ROPER:
Yes, it does.
On appeal, Appellant again argues that these statements constituted impermissible
"investigative hearsay" that bolstered the Commonwealth's witnesses while improperly
impeaching the defense witness, Mr. Lawrence.
We find Appellant's assertions to be without merit. "Hearsay is a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted ." KRE 801(c) . Officer Roper's
testimony does not constitute hearsay because it did not involve any out-of-court
statements, and was entirely based on information within his personal knowledge as the
lead investigator of the case. Cf. Slaven v. Commonwealth , 962 S.W.2d 845 (Ky.
1997).
Considering the perfunctory nature of the testimony, we likewise cannot agree
with Appellant that Detective Roper's statements improperly bolstered the prosecution
witnesses or impeached Mr. Lawrence in advance . Detective Roper did not elaborate
whatsoever on the allegations underlying the investigation of Mr. Lawrence, nor did he
specifically name any witnesses inculpated by the investigation . Moreover, Detective
Roper only stated that the investigation concerned the witnesses' testimony ; he did not
reveal the underlying allegation that certain witnesses had changed their statements
during the course of the investigation into Appellant . Common sense dictates that it is
not possible to bolster the testimony of a witness without identifying the witness in any
way. Furthermore, without any details or additional information revealed as to the
underlying allegations, it is difficult to discern how Detective Roper's testimony served
to impeach Ike Lawrence in advance of his testimony . We find no error.
Additional Allegations of Hearsay
Appellant next argues that the trial court erred in admitting the hearsay testimony
of Sue Quiggins . Sue Quiggins was staying with Gary Slone on the night of the
incident, and was present when Slone received the distressed message from the victim.
In response to questioning about why the two called 911 and then went to the victim's
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apartment, Quiggins relayed that Slone stated, "I think a woman has been raped."
Defense counsel objected . On appeal, Appellant maintains that this testimony
constituted inadmissible hearsay resulting in extreme prejudice .
Upon review of the testimony, we agree with the trial court's determination that
Quiggins' statements do not amount to hearsay. Again, hearsay is an out-of-court
statement offered for the truth of the matter asserted . KRE 801 . Quiggins did not relay
Slone's statements in order to prove that the victim was in fact raped ; rather the
testimony was offered to explain why Slone and Quiggins hurriedly rushed to her
apartment. Furthermore, even assuming arguendo that Appellant was prejudiced by
Quiggins' testimony, it is rendered harmless as Slone later testified himself that he went
to the victim's apartment on the belief that she had been raped . There was no error.
Unduly Prejudicial Statements
Appellant argues that the trial court erred in admitting an unedited recording of
an interrogation session conducted by Detective Sweeney. Detective Sweeney
questioned Appellant at the police station the same day that he was arrested .
Specifically, Appellant objects to two portions of the taped interrogation : (1) Detective
Sweeney's comment that Appellant's statements were a "lot of crap" and a "line of bull";
and (2) Detective Sweeney's comment that Appellant "looks familiar' after which he
asked Appellant if he had ever seen him before . Defense counsel objected to these
statements, arguing that they were unduly prejudicial . The objection was overruled,
and the taped interrogation was played before the jury. We find no error.
We examine first Detective Sweeney's comments that Appellant's statements
were a "lot of crap" and a "line of bull." Recently, in Commonwealth v. Lanham , we
addressed the issue of permissible interrogation techniques.
S.W.3d
(Ky.
2005). In that case, the jury heard an unedited recording of Lanham's confession,
during which the interrogating officer repeatedly accused him of lying . We rejected the
argument that the KRE 608(a) limitations on character-based attacks of a witness's
credibility apply to non-testimonial statements made by a police officer . We concluded
that such comments are not aimed at impeaching a witness nor are they an attempt to
convince the jury that the defendant is, in fact, lying ; rather, they are "part of an
interrogation technique aimed at showing the defendant that the officer recognizes the
holes and contradictions in the defendant's story." We also warned, however, that such
comments create the possibility that the jury will misunderstand the purpose of the
recorded statement and give the officer's comments undue weight. For this reason, we
determined that the court should give a limiting admonition before playing the recording
when there is the potential for adverse inferences to be drawn . We finally noted that
reversible error may result when such an admonition is requested and denied .
Here, as in Lanham , Appellant objected to the admission of the recorded
interrogation, but did not request an admonition once that objection had been overruled .
Where an admonishment is sufficient to cure an error and the defendant fails to ask for
the admonishment, we will not review the error. Graves v. Commonwealth , 17 S .W.3d
858, 865 (Ky. 2000). Therefore, reversal is not warranted .
Appellant also objects to the admission of Detective Sweeney's comment that
Appellant "looks familiar" and subsequent inquiry, "Haven't I seen you before?"
Appellant argues that these comments created a prejudicial inference about his
character. We first note that the remarks made by Detective Sweeney were brief and
very ambiguous . He did not elaborate on his comment, or explain why he thought
Appellant looked familiar or where he might have seen Appellant in the past. For this
reason, it is very difficult to discern in what way Appellant might have been prejudiced
by the detective's comments . Nonetheless, even assuming for argument's sake that
the jury might have drawn an improper inference about Appellant's character as a result
of Detective Sweeney's remarks, any resulting error is harmless . The weight of the
evidence against Appellant was overwhelming . He presented no evidence to contradict
the victim's incriminating testimony other than his own self-serving testimony . And
Appellant's testimony was highly suspect : his statements to the police and other
witnesses were inconsistent in numerous respects ; no evidence or testimony
corroborated his version of events ; and nearly every material portion of his testimony
was directly challenged by the victim's testimony . When there is no substantial
possibility that the result would have been different absent an alleged error, the
supposed irregularity is non-prejudicial . Scott v . Commonwealth , 495 S.W.2d 800, 802
(Ky. 1972). Therefore, reversal is not required . See also Henson v. Commonwealth ,
20 S .W.3d 466 (Ky. 1999).
Admission of Audiotape of Slone's Call to 911
Appellant also argues that it was error to play the audiotape of Gary Slone's call
to 911 for the jury, as it failed to meet the present sense impression hearsay exception
requirements of KRE 803(1) . However, this alleged error was not properly preserved
for appellate review. Prior to the tape being played, a bench conference was held
during which the Commonwealth asked defense counsel if he had any objections to
admission of the taped 911 call . Defense counsel replied that he had no objection at
that time, even commenting that he believed the taped call complied with the present
sense impression rule, though counsel did reserve the right to "jump up and object."
However, counsel made no objection during the entirety of the tape . "One claiming
error may not rely on a broad ruling and thereafter fail to object specifically to the matter
complained of." Tucker v. Commonwealth , 916 S .W .2d 181, 183 (Ky. 1996) . Thus, the
claimed error is unpreserved for further review . RCr 9.22 .
Jury Instructions
Appellant argues that the trial court's failure to specifically instruct the jury on his
right to enter the dwelling as the landlord's agent substantially prejudiced his ability to
present a complete defense. Because he claimed that he entered the victim's
apartment because he believed there was a fire, Appellant complains that the trial
court's instruction was not specific enough to allow the jury to fully comprehend his
defense theory that he was authorized to enter in the event of an emergency. At trial,
defense counsel requested that provisions of the Uniform Residential Landlord and
Tenant Act, as well as principles of agency, be inserted in the instructions . The trial
court denied the request, and delivered the following instruction on First-Degree
Burglary:
You will find the Defendant guilty of First-Degree Burglary under this
Instruction if, and only if, you believe from the evidence beyond a
reasonable doubt all of the following :
A.
That in this county on or about the 28th day of October 2001, and
before the finding of the Indictment herein, he entered or remained in a
building occupied by [the victim] .
B.
That in so doing, he knew that he did not have permission from [the
victim], or any other authority;
C.
That he did so with the intention of committing a crime therein ;
AND
D.
That while in the building he caused physical injury to [the victim]
who was not a participant in the crime .
The general rule is that the trial court is required to instruct on every theory of the
case that is reasonably deducible from the evidence . Ragland v. Commonwealth , 421
S .W .2d 79, 81 (Ky. 1967) . And, a defendant is entitled to have his theory of the case
submitted to the jury for consideration . Davis v. Commonwealth , 252 S.W.2d, 9, 10
(Ky. 1952). However, a special instruction on a defendant's theory of the case is not
required "if the instruction which submits the Commonwealth's theory is couched in
such language that the ordinary layman who sits upon the jury can easily understand
and its negative completely covers the defense of the accused ." Blevins v.
Commonwealth , 258 S.W.2d 501, 502-03 (Ky. 1953) . By contrast, a defendant is
entitled to a specific instruction on his theory of the case when the defendant has
admitted to conduct that constitutes the essential elements of an offense, but relies on
circumstances amounting to an avoidance of the actual crime or circumstances that
might have the ultimate effect of excusing criminal intent . Haves v. Commonwealth ,
870 S .W.2d 786, 788 (Ky. 1993).
Here, we find that language included in subsection B of the trial court's
instruction adequately encompassed Appellant's theory of the case : "he knew that he
did not have permission from [the victim], or any other authority " (emphasis added) . As
set forth in Blevins, the negative included in this instruction ("did not have permission
from . . . any other authority") completely covers Appellant's defense that he was
authorized to enter the apartment for emergency purposes . As determined by the trial
court, a specific instruction including Appellant's proposed language would have
unreasonably complicated the case and confused the jury. Furthermore, a specific
instruction was not warranted because Appellant did not admit to any of the essential
elements of first-degree burglary . Instead, he merely asserted that he was lawfully
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present in the apartment. Because all of the essential elements were still at issue, (i .e .
whether Appellant knowingly entered or remained unlawfully in a building with the intent
to commit a crime), Appellant is not relying on mere circumstances to exculpate himself
and thus is not entitled to a specific instruction . Therefore, the trial court did not err in
denying Appellant's request for a specific instruction on his alleged right to enter the
victim's apartment.
Competency Hearing
Appellant asserts that the trial court's failure to conduct a competency hearing
pursuant to KRS 504.100 was error. According to Appellant, the trial court had
reasonable grounds to believe that he was incompetent to stand trial and the failure to
conduct an evidentiary hearing on the matter results in reversible error. We disagree .
In support of his assertion that the trial court had reasonable grounds upon
which to question his competency, Appellant points first to his decision to testify on his
own behalf despite the repeated advice of his counsel to remain silent . Appellant relies
more heavily, however, on the trial court's statements during a conference that occurred
on the first day of trial. Following the victim's testimony, and outside the presence of
the jury, the trial court initiated a discussion between counsel, the court, and Appellant
regarding plea offers that had previously been made by the Commonwealth . At the
outset, the trial court announced that he was going to continue the trial until the
following day in order to give defense counsel an opportunity to further discuss the plea
offer with his client. In light of the strength and persuasiveness of the victim's
testimony, it is clear that the court was concerned that Appellant would choose to
proceed towards a likely guilty verdict that would carry a minimum of a ten-year
sentence, when a plea agreement of four years was available. In fact, the trial court
plainly stated to both defense counsel and Appellant, "I don't know how else to put this,
except . . . you're in trouble ." The trial court then proceeded to question Appellant as to
whether he fully understood the plea agreement offered by the Commonwealth, the
strength of the Commonwealth's case, and that the minimum sentence he could receive
from the jury would be ten years' imprisonment . Appellant responded that he did
understand the purpose and consequences of the trial, and correctly identified the three
charges against him. As the conversation came to an end, the trial court again
expressed disbelief that Appellant would reject a plea agreement in the face of an
almost certain guilty verdict. In response, Appellant noted that no one had yet heard
"his side" of the case, and that he thought he could "beat" the charges. Finally, after
defense counsel raised the issue of competency, the trial court stated in no uncertain
terms that he did not believe there was any issue as to Appellant's competency to stand
trial.
KRS 504.100 states that if "the court has reasonable grounds to believe the
defendant is incompetent to stand trial, the court shall appoint at least one (1)
psychologist or psychiatrist to examine, treat and report on the defendant's mental
condition ." On appeal, the standard of review in this situation is "[w]hether a
reasonable judge, situated as was the trial court judge whose failure to conduct an
evidentiary hearing is being reviewed, should have experienced doubt with respect to
competency to stand trial." Thompson v. Commonwealth , 56 S .W .3d 406, 408 (Ky.
2001) . It is within the trial court's discretion to determine whether or not reasonable
grounds exist as to a defendant's competency to stand trial . Bishop v. Caudill , 118
S .W .3d 159, 161 (Ky. 2003). Appellant demonstrated that he possessed a substantial
capacity to understand the nature and consequences of the proceedings, and to
- 1 2-
participate rationally in his defense . That he rejected an attractive plea agreement in
the hope of an acquittal is not an indication of mental incapacity . Nor can we say that
Appellant's disregard for his attorney's advice not to testify constituted an inability to
participate rationally in his defense. We find no abuse of discretion in the trial court's
determination that reasonable grounds did not exist as to Appellant's competency to
stand trial.
Directed Verdict
Finally, Appellant asserts that he was entitled to a directed verdict on the firstdegree burglary charge. He argues that the Commonwealth failed to produce any
evidence that Appellant knowingly entered or remained unlawfully in the victim's
apartment with the requisite intent to commit a crime . This contention is without merit.
When presented with a motion for a directed verdict, the trial court "must draw all
fair and reasonable inferences from the evidence in favor of the Commonwealth . If the
evidence is sufficient to induce a reasonable juror to believe beyond a reasonable
doubt that the defendant is guilty, a directed verdict. should not be given ."
Commonwealth v. Benham , 816 S .W .2d 186,187 (Ky. 1991). "On appellate review,
the test of a directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is entitled to a directed
verdict of acquittal ." Id .
Here, the Commonwealth presented sufficient evidence that
Appellant entered the victim's apartment unlawfully with the intent to commit a crime .
The victim testified that she never heard Appellant knock on her door or otherwise
announce himself. Appellant claimed that he entered the apartment through the front
door with a manager's key, but the victim testified that he admitted to her that he had
entered via a kitchen window. She also testified that the front door was locked when
- 1 3-
Appellant finally left, and that her kitchen window was in fact open . Appellant's claim
that he suspected a fire was highly suspect : no other person detected any smoke, nor
did Appellant alert the police or any other party to the supposed fire. The victim further
testified that, as she peered out her bedroom door to investigate a loud thud, Appellant
immediately lunged at her and slapped a phone out of her hand as she tried to dial 911 .
The victim's testimony alone was a sufficient basis upon which a rational juror could
conclude that Appellant did not attempt to enter her apartment to investigate a fire, but
entered with the intent to attack her, which is precisely what transpired . We find no
error.
Conclusion
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Lisa Bridges Clare
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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