KENNETH WAYNE PARKER V. COMMONWEALTH OF KENTUCKY
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RENDERED : MAY 21, 2009
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2006-SC-000102-MR
KENNETH WAYNE PARKER
V.
_
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
NO . 02-CR-001558-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING, IN PART, AND
REVERSING AND REMANDING, IN PART
I. INTRODUCTION .
After a jury trial, Kenneth Parker was sentenced to, along with lesser
sentences, two terms of imprisonment for life without the possibility of parole
for twenty-five years. Parker, the alleged leader of the Victory Park Crips gang
in Louisville, also known as the Rat Pacc, appeals the judgment as a matter of
right,' raising numerous issues . We affirm, in part, and reverse, in part.
II . FACTUAL AND PROCEDURAL HISTORY.
The facts underlying Parker's conviction are long, sordid, and difficult to
recite chronologically . The indictment against Parker is twenty-eight pages
long. So we will outline here only the most basic facts underlying Parker's
Ky. Const . § 110(2)(b) .
convictions and present more detailed facts where necessary in our analysis of
Parker's individual issues .
A . The Levolia Baker Shooting.
In 1998, Parker and fellow gang members or acquaintances Dominique
Coffey and JaJuan Stephenson went looking for Parker's missing sister, who
allegedly had been spending time with Levolia "Squirrel" Baker. When Parker
and his companions saw Baker, they shot him . Stephenson was charged with
the shooting. But Stephenson taped conversations, allegedly with Parker, in
which Parker implicated himself in the Baker shooting. Stephenson was
acquitted by a jury, and Parker was indicted for the Baker shooting.
B . The Laknogony McCurley Murder.
In July 2000, at an intersection near Jewish Hospital in Louisville, a car
carrying four African-American males pulled next to Laknogony McCurley's car.
Three members of the Bloods gang, a rival gang to the Victory Park Crips, were
in McCurley's car. Gunfire broke out, and McCurley's car was riddled with
bullets. McCurley died; one of her passengers, Chicoby Moore, was injured;
two other passengers, Kerry Williams and DeLeon "Keoni" Burks, were
uninjured. Parker was eventually indicted for McCurley's murder, the
attempted murder of Williams and Burks, assault in the second degree as to
Moore, and tampering with physical evidence for allegedly disposing of the
guns used in the shooting.
C. The Tao Parker Shooting.
Tao Parker is Kenneth Parker's cousin. According to Coffey, Kenneth
had an argument with Tao in March 2001 over the fact that Tao owed Kenneth
money for drugs . Tao was shot ; and, as a result, Kenneth was charged with
assault in the first degree and attempted murder .
D . Murder of JaJuan Stephenson .
In April 2001, a masked gunman killed JaJuan Stephenson in broad
daylight. According to Dominique Coffey, he lent Parker a gun and a thousand
dollars; and Parker gave the gun and the money to Clifford Warfield to kill
Stephenson, who had implicated Parker in the Levolia Baker shooting. A
witness, Sheldon Wright, identified Warfleld as someone he saw fleeing the
murder scene . Parker, along with Warfield and Coffey, was ultimately charged
with Stephenson's murder.
E. Murder of William Barnes .
In March 2002, a deal had been set up between Coffey and his
acquaintance, Rommell Taylor, in which Coffey was to buy cocaine from Taylor .
When the deal was to be commenced, Taylor was accompanied by William
Barnes. Shots rang out as those three men (Coffey, Taylor, and Barnes),
accompanied by a fourth man, walked down an alley. Coffey shot and
wounded Taylor; Barnes was shot and killed . Taylor contended that Parker was
the fourth man present. Parker, Warfield, and Coffey were charged with
murdering and robbing Barnes, and attempting to murder Taylor.
F. Procedural Historv.
In July 2002, the grand jury issued a twenty-five count indictment
against Parker and others named and un-named. The charges against Parker
proceeded to a jury trial. The jury convicted Parker of (1) assault in the first
degree of Baker, (2) the attempted murder of Burks, (3) the attempted murder
of Williams, (4) assault in the second degree of Moore, (5) tampering with
physical evidence, (6) the attempted murder of Taylor, (7) robbery in the first
degree, (8) conspiracy to traffic in a controlled substance, (9) criminal
syndication, (10) the murder of Barnes, and (11) the murder of McCurley .
The trial court ultimately sentenced Parker in accordance with the jury's
recommendations. The trial court's judgment imposed (1) ten years for
assaulting Baker, (2) twenty years each for the attempted murders of Burks
and Williams, (3) five years for the assault of Moore, (4) five years for tampering
with physical evidence, (5) fifteen years for the attempted murder of Taylor,
(6) ten years for the robbery of Barnes, (7) twenty years for conspiracy to traffic
in a controlled substance, and (8) twenty years for criminal syndication. The
trial court ordered all those sentences to be served concurrently, except the
robbery sentence, which the trial court ordered to be served consecutively to
the other offenses. In total, the effective sentence was for thirty years'
imprisonment . Also, the trial court accepted the jury's recommendation and
sentenced Parker to life imprisonment without the possibility of parole for
twenty-five years each for the murders of Barnes and McCurley .
III . ANALYSIS .
Parker raises a host of issues in this appeal . We shall address each
separately, although not in the order he argued them in his brief.
A. The Criminal Syndication Count of the Indictment
Did Sufficiently__ State an Offense.
Parker contends the criminal syndication count of the indictment fails to
state an offense. We disagree .
The criminal syndication charge is contained in count one of the
indictment. Count one reads in its entirety as follows:
That between the 1st day of January, 1996, and the 17th day of
July, 2002, in Jefferson County, Kentucky, the above named
defendants, Kenneth Parker, DeShawn Parker, Wilbert Bethel,
Marcus Stallard, Clifford Warfield and Dominique Coffey, and
others known and unknown, committed the offense of Criminal
Syndication by doing one or more of the following: (a) organizing or
participating in organizing a criminal syndicate ; (b) providing
material aid to a criminal syndicate ; (c) managing, supervising or
directing any of the activities of a criminal syndicate; (d) conspiring
or attempting to commit, or acting as an accomplice in the
commission of a .criminal syndicate; (e) conspiring or attempting to
commit or act as an accomplice in the commission of[) any offense
of violence .
According to Kentucky Revised Statutes (KRS) 506 .120(1), there are seven
actions a person may take to commit criminal syndication. Specifically,
KRS 506.120(1) provides that:
(1) A person, with the purpose to establish or maintain a criminal
syndicate or to facilitate any of its activities, shall not do any of
the following:
(a) Organize or participate in organizing a criminal syndicate or
any of its activities ;
(b) Provide material aid to a criminal syndicate or any of its
activities, whether such aid is in the form of money or other
property, or credit;
(c) Manage, supervise, or direct any of the activities of a
criminal syndicate, at any level of responsibility ;
(d) Knowingly furnish legal, accounting, or other managerial
services to a criminal syndicate;
(e) Commit, or conspire or attempt to commit, or act as an
accomplice in the commission of, any offense of a type in
which a criminal syndicate engages on a continuing basis ;
(fl Commit, or conspire or attempt to commit or act as an
accomplice in the commission of, any offense of violence; or
(g) Commit, or conspire or attempt to commit, or act as an
accomplice in the commission of bribery in violation of
KRS Chapters 518 or 521, or KRS 119 .205, 121 .025,
121 .055, 524 .070, 156 .465, 45A.340, 63 .090, 6 .080,
18A.145, or 244 .600.
Similarly, a criminal
syndicate
is defined in KRS 506.120(3) as :
(3) As used in this section "criminal syndicate" means five (5) or
more persons collaborating to promote or engage in any of the
following on a continuing basis:
(a) Extortion or coercion in violation of KRS 514 .080 or
521 .020;
(b) Engaging in, promoting, or permitting prostitution or human
trafficking in violation of KRS Chapter 529 ;
(c) Any theft offense as defined in KRS Chapter 514;
(d) Any gambling offense as defined in KRS 411 .090,
KRS Chapter 528, or Section 226 of the Constitution ;
(e) Illegal trafficking in controlled substances as prohibited by
KRS Chapter 218A, in intoxicating or spirituous liquor as
defined in KRS Chapters 242 or 244, or in destructive
devices or booby traps as defined in KRS Chapter 237 ; or
(fl Lending at usurious interest, and enforcing repayment by
illegal means in violation of KRS Chapter 360.
Parker acknowledges that our precedent holds that all that is necessary
for an indictment properly to charge an offense "is to name the offense."2 And
the indictment at issue sufficiently names the offense of criminal syndication.
But Parker contends that we should adopt a specificity requirement for
criminal syndication charges . Toward that end, Parker contends that a
criminal syndication indictment must allege at least one of the seven methods
of committing the crime set forth in KRS 506 .120(1) and one of the six
forbidden activities set forth in KRS 506.120(3) . We disagree.
Parker has not cited any specific authority that would move us to except
criminal syndication from our general pronouncement that an indictment
sufficiently charges an offense simply by naming the offense. Holding in
Parker's favor on this issue would be a de facto return to the old Code of
Criminal Practice, which our predecessor Court stated "requir[ed] an
indictment to contain every essential element of the crime charged."3
In sum, we reiterate our commitment to the principle that an indictment
properly states an offense merely by naming the offense charged. In other
words, a criminal syndication indictment is not infirm and subject to dismissal
solely because it lacks a detailed recitation of the underlying facts. The
protocol for a defendant who desires more information is to serve a motion for a
Thomas v. Commonwealth , 931 S .W.2d 446, 449 (Ky. 1996) .
Fitzgerald v. Commonwealth , 403 S.W.2d 21, 23 (Ky. 1966) .
bill of particulars.4 The indictment in the case at hand closely tracked
KRS 506.120(1) . Nothing else was required.
B . Trying All of the Charges Against Parker
in One Trial was Permissible .
Parker contends that the trial court erred by permitting all of the charges
to be tried together because trying all of the charges together constituted an
improper "piling on ." We disagree.
RCr 6 .18 provides, in relevant part, that "[t]wo (2) or more offenses . . .
may be charged in the same indictment . . . in a separate count for each
offense, if the offenses are of the same or similar character or are based on the
same acts or transactions connected together or constituting parts of a
common scheme or plan ." Even after offenses have been joined in an
indictment, a trial court may order the offenses to be tried separately if a joint
trial would prejudice either the Commonwealth or the defendant. 5 Because a
defendant is prejudiced simply by virtue of being tried at all, we require a
defendant to show that he would be "unfairly prejudiced" by a joinder.6 Since a
trial court has "broad discretion with respect to joinder[,]" we may only reverse
Kentucky Rules of Criminal Procedure (RCr) 6.22. See also Fitzgerald, 403 S.W.2d at 23
("Furthermore, RCr 6.22 entitles the defendant in a criminal proceeding to have a bill of
particulars if he entertains a doubt as to the nature of the crime. charged.") . In fact,
although not mentioned in the briefs, Parker did file a motion for a bill of particulars, to
which the Commonwealth submitted a multi-page response .
RCr 9.16 ("If it appears that a defendant or the Commonwealth is or will be prejudiced by a
joinder of offenses or of defendants in an indictment, information, complaint or uniform
citation or by joinder for trial, the court shall order separate trials of counts, grant separate
trials of defendants or provide whatever other relief justice requires .") .
Ware v. Commonwealth, 537 S.W.2d 174, 176 (Ky. 1976) ("A good deal of tripe has grown
up around the question of what sort of prejudice should entitle a defendant to a separate
trial. Perhaps the rule itself is not sufficiently explicit . `Prejudiced' means unfairly
prejudiced . A defendant is prejudiced, of course, by being tried at all.").
a trial court's joinder decision upon "a showing of prejudice and clear abuse of
discretion."7
The very nature of the offense of criminal syndication, as set forth in
KRS 506 .120, requires proof of underlying crimes. So severing the underlying
crimes from the syndication charge would seem to defeat the entire purpose of
the charge of criminal syndication and would not promote justice or efficiency.
In other words, the criminal syndication charge serves to link the other charges
together. Even the charges that do not specifically underlie the syndication
charge helped present the jury with a more complete picture of the alleged
activities of Parker and the Victory Park Crips . And aside from his speculation
that a jury was more likely to convict him due to the multitude of charges,
Parker has pointed to no concrete prejudice (for example, having to present
completely antagonistic defenses to various charges or having to admit guilt on
a lesser offense in an attempt to avoid conviction on a higher offense) . So we
conclude that the trial court did not clearly abuse its wide discretion by
denying Parker's severance motion .
C . The Trial Court Did Not Err_in Refusing to Grant a Mistrial .
At trial, Sheldon Wright, who was a reluctant witness, testified that he
did not recall telling the authorities he saw Warfield running from the scene of
Stephenson's murder . Instead, Wright contended he had no personal
knowledge of the matter and had merely repeated back to the police what he
had heard being discussed in the neighborhood . In response to a question
Jackson v. Commonwealth , 20 S .W.3d 906, 908 (Ky. 2000) .
from the Commonwealth, Wright testified that he did recall telling a detective
he (Wright) might be hurt if he testified in court. No objection was made to
that exchange . On cross-examination, Parker's counsel asked if Wright had
been hiding in fear of retribution. In a rambling answer, Wright stated, without
objection, that he had wondered if he was going to be a target.
Later, the Commonwealth asked Wright on re-direct if he recalled telling
a detective that he (Wright) would be killed if he showed up for court. Wright
stated that he did not remember making that statement but added that he felt
like he could have been in danger . The Commonwealth then asked Wright
whether he felt like he could be in danger, to which Wright responded, "Right."
The trial court then interjected, "Let's move on ." Only then did defense counsel
move for a mistrial. During the colloquy at the bench, defense counsel stated
that the trial court could "certainly" admonish the jury to disregard the last
question and answer. The trial court found the testimony to be improper but
denied the mistrial and admonished the jury to disregard the last question and
answer. Parker claims the trial court's refusal to grant a mistrial was an error.
We disagree .
A court should grant a mistrial only if it is manifestly necessary to do
so.8 Since a mistrial is an "extreme remedy[,]" it "should be resorted to only
when there is a fundamental defect in the proceedings . . . ."9 We use the
See, e.g., Shabazz v. Commonwealth , 153 S.W.3d 806, 810 (Ky. 2005).
Woodard v. Commonwealth , 147 S.W.3d 63, 68 (Ky. 2004).
10
abuse of discretion standard when reviewing a trial court's decision to deny a
mistrial. t o
We agree with Parker that Wright's statement about fearing that he
would be harmed for testifying against Parker was improper . Jury verdicts
must be based upon admissible evidence, not jurors' fear of the allegedly
vengeful nature of a defendant. And the Commonwealth does not argue in its
brief that Wright's statements were proper. But we disagree with Parker's
contention that a mistrial was necessary.
"A jury is presumed to follow an admonition to disregard evidence[,]" and
an admonition is presumed sufficient to cure errors.' 1 The only two
circumstances in which an admonition is deemed an insufficient curative
measure are:
(1) when there is an overwhelming probability that the jury will be
unable to follow the court's admonition and there is a strong
likelihood that the effect of the inadmissible evidence would be
devastating to the defendant, or (2) when the question was asked
without a factual basis and was inflammatory or highly
prejudicial. 12
But this case does not fall within those exceptions because the improper
testimony was relatively brief in nature given the lengthy trial . And defense
counsel did not object when Wright first mentioned fearing retribution and, in
fact, raised that issue himself during cross-examination. Also, although not
mentioned by the parties, the record reflects that at one point, Coffey testified
without objection that he did not want to "turn against" Parker because he
Campbell v. Commonwealth , 260 S .W.3d 792, 799 (Ky. 2008) .
Johnson v. Commonwealth , 105 S.W.3d 430, 441 (Ky. 2003) .
Id. (citation and quotation marks omitted) .
feared for his safety. In short, we believe the trial court's admonition was a
sufficient curative measure, rendering a mistrial unnecessary .
D. Parker's Prosecutorial Misconduct Argument Fails.
Parker raises three separate arguments under the umbrella of
prosecutorial misconduct. He contends reversible error occurred (1) when the
Commonwealth repeatedly referred to Parker as the leader of the Crips;
(2) because the Commonwealth made repeated references to an allegedly
incriminating rap CD, which was not introduced into evidence; and (3) because
the Commonwealth committed discovery violations . We reject Parker's
arguments that reversible error occurred.
1 . Standard of Review.
Counsel is allowed "broad latitude" in presenting a case to a jury . 13 So
mere improper remarks, standing alone, are not sufficient for reversal. 14
Rather, a reviewing court must determine whether the complained-of
prosecutorial misconduct "was of such an `egregious' nature as to deny the
accused his constitutional right of due process of law." 15 Our review focuses
on whether the trial as a whole was fair, not solely upon the culpability of the
prosecutor . 16 Reversal is proper only if the prosecutorial misconduct "is so
serious as to render the trial fundamentally unfair." 17
13
14
15
16
17
Dean v. Commonwealth , 844 S.W.2d 417, 421 (Ky. 1992).
Summitt v. Bordenkircher, 608 F.2d 247, 253 (6th Cir. 1979).
Slaughter v. Commonwealth , 744 S.W.2d 407, 411 (Ky. 1987) .
Id. at 411-12 .
St. Clair v. Commonwealth , 140 S .W .3d 510, 554 (Ky. 2004) .
12
2 . References to Parker as Gang Leader Not Reversible Error.
During both opening statement and closing argument, the
Commonwealth repeatedly referred to Parker as the leader of the Crips . Parker
contends those references constitute prosecutorial misconduct because they
lacked an evidentiary basis .
Our review of the record shows that the Commonwealth repeatedly
referred to Parker as the leader of the Crips . But despite Parker's contention to
the contrary, we have not been directed to a place in the record where Parker
lodged a contemporaneous objection to that characterization . 18 So we deem
this issue unpreserved for appellate review, meaning that we may reverse only
if the misconduct was a palpable error that resulted in manifest injustice .19
The comments at issue were not so egregious as to have undermined the
basic integrity and fairness of Parker's trial. As the Commonwealth noted in its
response to Parker's motion for a new trial, the jury could reasonably have
inferred that Parker was the leader of the Victory Park Crips by virtue of the
fact that he seemed to be the person who made the ultimate decisions to
commit the acts in question . After all, Coffey testified, without objection, that
Parker had named the gang the Rat Pacc and that he and Parker were above
the other gang members in the drug-dealing hierarchy. The fact that no
witness specifically identified Parker as the leader of the gang does not
18
19
Many of the references in Parker's brief to where this issue was allegedly preserved contain
no discussion of Parker's status as a gang leader. Other citations refer to post-trial motions
and hearings . Obviously, an objection after the conclusion of a trial is insufficient to
preserve an issue for appellate review.
RCr 10.26. However, our conclusion would be the same if this issue had been properly
preserved.
13
necessitate reversal . An attorney is permitted to make reasonable comments
on the evidence and urge the jury to draw reasonable inferences from the
evidence.20 For example, it was not improper for the Commonwealth to
contend in closing argument that Coffey's testimony showed that he lacked
sufficient intelligence to have planned and executed the crimes allegedly
committed by the Crips. In sum, having considered the comments, we do not
believe they are so egregious as to have undermined the fairness and integrity
of the proceedings .
3. References to Rap CD Not Reversible Error .
Parker contends that the Commonwealth engaged in reversible error
when it repeatedly referred to a rap CD, which allegedly contains a rap in
which Parker and other Crips rapped about a violent act they committed in
July 2000 (i.e., the McCurley murder) . Although the CD was mentioned several
times, the CD apparently was never admitted into evidence .
The Commonwealth called as a witness a person who helped produce the
CD. The Commonwealth also called as a witness a police officer who
purchased the CD, in Parker's presence, from another member of the Crips .
The Commonwealth also questioned Coffey about the CD . The direct testimony
linking Parker to the CD was Coffey's assertion that Parker had acknowledged
that he participated in performing the rap recorded on the CD .
This is not the first time we have confronted this same CD. In a separate
trial, the Commonwealth played the CD during opening statements in the trial
ao
See, e.g., Commonwealth v. Mitchell , 165 S.W.3d 129, 132 (Ky. 2005); Woodall v.
Commonwealth , 63 S.W.3d 104, 125 (Ky. 2001) ("Clearly, the prosecutor can give his
opinion of the evidence.") .
14
of Kenneth Parker's brother, DeShawn Parker. 21 But the Commonwealth was
unable later to persuade the trial court to admit the CD into evidence because,
like in the case at hand, the CD could not be properly authenticated . 22 We
held in DeShawn Parker's case that it was error to play the CD during opening
statements and to refer to it during the trial.23 We held that the trial court
erred in not granting a mistrial because :
the Commonwealth was able to tell the jury that the CD referred to
the Appellant having committed the murder of which he was
accused, and that he was bragging about it through the CD
recording (which was clearly prejudicial) even though the CD could
not be sufficiently authenticated to be admitted into evidence . . . .
By using unauthenticated materials in opening statement the
Commonwealth unfairly exposed the jury to inflammatory
information of such a nature that no admonition could reasonably
be believed to cure it .24
But the question before us in the case at hand is not the same question that
was before us in DeShawn Parker's case. Kenneth is not alleging that the trial
court erred by not granting his request for a mistrial. Actually, Kenneth has
not argued that he even requested a mistrial . Instead, Kenneth argues that the
Commonwealth engaged in prosecutorial misconduct by referring to an
inadmissible item of evidence (the CD) . The Commonwealth's terse response
only generically argues that the trial court did not abuse its discretion.
We are somewhat at a disadvantage because none of the parties have
pointed to any specific point in the record where the trial court actually denied
a motion by the Commonwealth to admit the CD into evidence; and we shall
21
22
23
24
Parker v. Commonwealth , 241 S.W.3d 805, 807 (Ky. 2007) .
Id.
Id. at 808 .
Id. at 809 .
15
not search the voluminous record in this case to try to pinpoint that event, if it
occurred . 25 Regardless, the question is whether it was proper for the trial court
to permit the Commonwealth to refer to a CD that, apparently, was never
introduced into evidence. To ask that question is to answer it because a jury's
verdict must be based on the evidence actually admitted into evidence, which
the CD was not.26 So the trial court erred by permitting the Commonwealth to
refer repeatedly to damning material that was not admitted into evidence. The
question then becomes whether the Commonwealth's referral to the CD was so
egregious as to constitute reversible prosecutorial misconduct .
The references to the CD were neither fleeting nor brief. The CD was
discussed by at least three witnesses for the Commonwealth . But a crucial
distinction between the case at hand and DeShawn Parker's case is that the
CD was apparently never played for the jury in the case at hand . So, unlike
DeShawn Parker's case, the jury in the present case was not given the
impossible task of attempting to disregard the damning contents of the CD. So
the error in the case at hand was not nearly as egregious as in DeShawn
Parker's case. We conclude that the references to the CD in the case at hand
were not so far beyond the bounds of ethical propriety as to undermine the
basic fairness and integrity of the trial.
25
26
See, e.g., Robbins v. Robbins, 849 S .W.2d 571, 572 (Ky.App. 1993) . We point out that the
vast record in this case consists of 1,691 pages of written materials and twenty-one
videotapes . We do not even know with certainty whether the Commonwealth ever formally
sought admission of the CD into evidence .
This basic premise is encompassed in, for example, former Justice Cooper's model jury
instruction regarding the presumption of innocence . 1 COOPER KENTUCKY INSTRUCTIONS TO
JURIES (CRIMINAL) § 2.02 (5th ed. 2006) ("You shall find the Defendant not guilty unless you
are satisfied from the evidence alone and beyond a reasonable doubt that he is guilty .")
(emphasis added) .
16
4 . Alleged Discovery Violations Do Not Constitute Reversible Error.
Although he makes passing reference to other alleged discovery
violations, Parker's only substantive claim is that the Commonwealth failed to
meet its obligation to provide an alleged oral statement by Levolia Baker. When
Parker called Baker as a witness, Baker testified that Parker did not shoot him.
That testimony apparently was consistent with Baker's testimony in the trial of
JaJuan Stephenson . In rebuttal, the Commonwealth called Detective Harvey
Hunt, who testified that Baker had told Hunt after Stephenson's trial that
Parker had shot Baker. Parker contends the Commonwealth's failure to
provide Baker's statement to Hunt in discovery was a violation mandating
reversal. We disagree .
Although not mentioned in the briefs, our review of the videotape of
Baker's testimony reveals that the Commonwealth asked Baker whether he had
told Hunt after Stephenson's trial that Parker was the person who shot him
(Baker) . Baker responded that he had not. Immediately after that exchange, a
bench conference occurred in which Parker's counsel stated that he did not
receive any such statement by Baker in discovery . The Commonwealth
responded that there was no written statement and that it planned to call Hunt
later to testify concerning his conversation with Baker. The trial court then
stated simply that the issue would be addressed at the time Hunt was called in
rebuttal.
Two days later, the Commonwealth called Detective Hunt in rebuttal .
Before Hunt testified, Parker objected to Hunt's testimony on the grounds that
it was a reopening of the Commonwealth's case-in-chief, not impeachment .
Importantly, that objection contained no reference to Baker's alleged statement
to Hunt not being provided to Parker during discovery. The trial court
permitted the questioning because Baker had testified that he did not make a
statement to Hunt that Parker had shot him (Baker) . Hunt then testified that
he had a conversation with Baker after Stephenson's trial, during which Baker
told Hunt that he (Baker) was scared to say that Parker had shot him. Parker
then called the prosecutor from Stephenson's trial, Joseph Gutmann.
Gutmann testified that Baker had identified Stephenson as the shooter.
Gutmann further testified that Detective Hunt never told him that Baker had
testified falsely out of fear of Parker.
We question whether this alleged discovery violation is properly
preserved since Parker's counsel seemingly abandoned the discovery argument
when Hunt testified . But even if we assume solely for the purposes of ,
argument that the issue is preserved, Parker is not entitled to relief. Baker
testified that he did not make an incriminating statement regarding Parker to
Hunt. And Prosecutor Gutmann testified that he was not told by Hunt that
Baker had identified Parker as the shooter. So instead of being caught
unawares, Parker was able to blunt most, if not all, of the force of Hunt's
testimony.
Even if we assume the Commonwealth failed to meet its discovery
obligation by timely failing to turn Baker's statement over to Parker, 27 there
has not been a showing of prejudice sufficient to constitute reversible
prosecutorial misconduct. In other words, any discovery error by the
Commonwealth regarding Baker's statement was not so egregious as to have
undermined the basic fairness and integrity of the trial.28
E. Trial Court Did Not Abuse its Discretion in Admitting
Rommell Tavlor's Identification of Parker.
Parker contends that his identification by Rommell Taylor should have
been suppressed as being unduly suggestive . We disagree .
As mentioned before, Taylor had set up a drug transaction with Coffey.
Others were present at the transaction, including Barnes. Barnes was shot
and killed, and Taylor was wounded. At a suppression hearing, an officer
testified that Coffey had told the officer, before the officer's discussion with
Taylor, that Parker was present when Barnes was killed and Taylor was
wounded . The officer testified that he showed Taylor a large photograph
(actually, a fake "wanted" poster) containing six members of the Crips; and
Taylor picked Parker from that photograph as having been present during the
shootings, although he stated that the person he chose (Parker) usually wore
27
28
In a departure from our prior precedent, we recently ruled that the Commonwealth is
obligated to provide in discovery all oral incriminating statements made by a defendant of
which the Commonwealth is aware. Chestnut v. Commonwealth , 250 S.W.3d 288, 295-96
(Ky. 2008) . That ruling is distinguishable from the case at hand, however, because the
alleged incriminating oral statement in the case at hand was not made by the defendant
himself. Also, the issue in the case at hand is brought to us only in the guise of alleged
prosecutorial misconduct, not whether the admission of Hunt's testimony was a reversible
error.
Cf. Weaver v. Commonwealth , 955 S .W.2d 722, 725 (Ky. 1997) (holding that a discovery
violation only mandates reversal if there is a reasonable probability that the timely
disclosure of the evidence in question would have changed the result of the trial) .
19
glasses . The officer did state that Taylor had said he could not be certain
Parker was the person present at the shootings . Taylor later identified Parker
from a lineup . The trial court stated on the record that the fact the poster said,
"Wanted, U. S. Marshal, $1,000,000," was suggestive . So the trial court
continued the hearing so that Taylor could testify. When the hearing resumed
about two weeks later, Taylor also testified that he had seen the fourth
individual (Parker) before and had picked Parker out of a lineup . Taylor
testified all four men were face-to-face before the shootings . But Taylor also
testified he was not completely sure if Parker was the man present during the
shootings .
When a defendant challenges an identification procedure, "the primary
evil to be avoided is a very substantial likelihood of irreparable
misidentification."29 We utilize a two-step process to determine if a very
substantial likelihood of an irreparable misidentification has occurred. First,
we determine if the circumstances leading to the identification were "unduly
suggestive ."3o Only if the circumstances were unduly suggestive do we move
on to the next step where we determine if the identification was, nevertheless,
reliable . 31 In that second step, we consider the following five factors:
the opportunity of the witness to view the criminal at the time of
the crime, (2) the witness' degree of attention, (3) the accuracy of
the witness' prior description of the criminal, (4) the level of
certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation . 32
(1)
29
30
31
32
Neil v. Biggers, 409 U.S. 188, 198 (1972) (quotation marks omitted) .
Dillingham v. Commonwealth , 995 S .W.2d 377, 383 (Ky. 1999).
Id.
Riley v. Commonwealth , 620 S .W.2d 316, 318 (Ky. 1981), citing Neil, 409 U .S. at 199-200 .
20
Since Taylor's initial identification of Parker was based upon his
depiction in a fake wanted poster, we accept, for the purposes of
argument, the trial court's conclusion that Taylor's identification of
Parker was suggestive. So we move on to consider the five factors set
forth in Neil v. Biggers, using the abuse of discretion standard . 33
1 . Taylor's Opportunity to View the Criminal
at the Time of the Crime.
Taylor testified that all four men involved in the drug deal were face-toface for about five minutes and that the lighting was sufficient for him to see
the others . We disagree with Parker's baseless conclusion that five minutes is
an insufficient time for valid eyewitness identification . The relatively brief
period of time in which Taylor viewed Parker and Taylor's testimony that he
was not focused upon Parker during that time more properly fall within the
next factor under Neil. So this factor weighs in favor of the Commonwealth .
2 . Taylor's Degree of Attention .
Neither the Commonwealth nor the trial court analyzed this factor . 34
But, by his own admission, Taylor did not pay a great deal of attention to
Parker since he (Taylor) was more focused upon Coffey. So we must conclude
that this factor weighs somewhat in Parker's favor.
33
34
King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004) . We recognize that the majority
opinion in King was joined in full by only three members of this Court (one member of the
Court concurred in result) . However, we have recently cited Kin at least twice for the
principle that a trial court's ultimate decision regarding the admissibility of a witness's
identification is reviewed under the abuse of discretion standard. Burrell v.
Commonwealth , No. 2006-SC-000547-MR, 2008 WL 3890049 at *7 (Ky. Aug. 21, 2008) ;
Jones v. Commonwealth , No . 2007-SC-000147-MR, 2008 WL 4601237 at *7 (Ky. Sep. 18,
2008) .
The Commonwealth spends much of its brief focusing upon the fact that Parker's counsel
was present during the lineup . But the presence of counsel is not among the factors that
we must consider.
21
3 . The Accuracy-of Ta lor's Prior Identification of Parker.
Taylor apparently did not give the police a prior description of the fourth
man present at the drug deal. So we agree with the trial court that this factor
is irrelevant to this case.
4 . Taylor's Level of Certainty.
At the suppression hearing, Taylor repeatedly testified that he was not
certain Parker was the fourth man present at the drug deal. So this factor
weighs in Parker's favor.
5. Length of Time Between the Crime and Taylor's
Identification of Parker.
Taylor picked Parker from the fake wanted poster only two days after the
shooting. And Taylor picked Parker from the lineup only a few days later. So
we agree with the trial court that this factor weighs in favor of the
Commonwealth .
Our analysis reveals that two factors weigh in favor of Parker and two
factors weigh in favor of the Commonwealth . So the decision as to whether to
admit Taylor's identification of Parker was a close call . Since reasonable minds
could have differed over the admissibility of that identification, we cannot say
that the trial court's decision to admit Taylor's identification was so "arbitrary,
unreasonable, unfair, or unsupported by sound legal principles" 35 to constitute
an abuse of discretion . So we must affirm.
35
Commonwealth v. English, 993 S .W.2d 941, 945 (Ky. 1999) ("The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.") .
22
F. Trial Court Did Not Abuse its Discretion
By Admitting Prior Testimony or Taped
Conversations of JaJuan Stephenson .
As stated before, Stephenson was originally charged with shooting Baker.
But Stephenson was acquitted of that charge, after which Parker was charged
with shooting Baker . Parker was also charged with killing Stephenson . In an
effort to prove those charges, the Commonwealth was permitted to play taped
recordings for the jury of two incriminating conversations ostensibly between
Stephenson and Parker. And the Commonwealth was permitted to play for the
jury portions of the testimony given by Stephenson at his own trial. Parker
contends the introduction of this evidence was reversible error. We disagree .
1 . The Taped Conversations.
Attorney Scott Drabenstadt (who represented Coffey), testified that he
recognized Parker's voice on the taped conversations. According to
Drabenstadt, he had spoken with Parker in person between twelve and twenty
four times, and he had also spoken with Parker on the telephone an additional
twelve to twenty-four times . Drabenstadt testified there was no doubt in his
mind that the voice he heard on the tapes was Parker's. The next witness,
Rocky Farmer, a former investigator for the public defender's office-through
whom the tapes were admitted-testified that he was present when the two
taped conversations occurred and that he had contemporaneously listened to
Stephenson's side of the conversation . Farmer also testified that he listened to
the taped conversations with Stephenson. But Farmer also testified he did not
know for sure that Stephenson had actually called Parker because he was not
familiar with Parker's voice and had no record of the phone number
Stephenson called. And Farmer could not say with certainty that the person
Stephenson called in the second taped conversation was the same person
Stephenson had spoken to in the first taped conversation.
In the first taped conversation, Stephenson feigned amazement at
reading the medical report, which showed that Baker was shot four times, and
asked the other person in the conversation how many shots he "squeeze[d]
off[,]" to which the other person (ostensibly Parker), answered "I think it was
four." In the other conversation, Stephenson asked the other person in the
conversation (ostensibly Parker) whether when "you" shot "him" (presumably
meaning when Parker shot Baker) was "he" (Baker) facing "you" (Parker) or was
"his" (Baker's) back turned, to which the other person responded that the
person shot was "like sideways" and didn't know what was happening. 36
Obviously, the taped conversations are incriminating. But the question
before us is whether the trial court abused its discretion by permitting the
Commonwealth to play them for the jury. 37
a. Authentication .
We must first address Parker's contention that the Commonwealth failed
adequately to authenticate the tapes.38 Authentication of these tapes was
36
37
Our review of these conversations is hampered by the fact that some portions of the
conversations are unintelligible, and others are filled with expletives .
See, e.g., Brewer v. Commonwealth , 206 S .W.3d 313, 320 (Ky. 2006) ("An appellate court's
standard of review for admission of evidence is whether the trial court abused its
discretion .") .
24
complicated because the Commonwealth could not compel either alleged
participant in the two conversations to testify since one participant was dead
and the other had a constitutional right to refuse to testify. Nevertheless, the
Commonwealth contends that the combined testimony of Drabenstadt and
Farmer was sufficient to authenticate the tapes. We agree.
Although it surprisingly was not discussed by the parties, Parker's voice
could be authenticated under Kentucky Rules of Evidence (KRE) 901(b) (5),
which provides that a voice can be properly identified (i.e., authenticated) if the
proponent of the evidence offers the witness's "opinion based upon hearing the
voice at any time under circumstances connecting it with the alleged speaker"
regardless of whether the witness had previously heard the voice in question
"firsthand or through mechanical or electronic transmission or recording . . . ."
Drabenstadt testified he had spoken in person and on the phone with
Parker many times . So Drabenstadt clearly had heard Parker's voice "at any
time under circumstances connecting it with the alleged speaker." So, under
the express language of KRE 901(b) (5), Drabenstadt was qualified to express
his opinion that the voice on the tapes was Parker's voice ; and it was up to the
jury to determine what weight to give Drabenstadt's testimony. 39 We reject
38
39
Of course, merely finding that the tapes were properly authenticated does not necessarily
end our inquiry. Matthews v. Commonwealth , 163 S.W .3d 11, 23 (Ky. 2005) ("the
establishment of authenticity of a document does not necessarily mean that the document
is admissible because there may be other barriers, e.g., hearsay, to its admission.") .
Accord Brown v. City of Hialeah, 30 F.3d 1433, 1437 (1 lth Cir. 1994) ("Once a witness
establishes familiarity with an identified voice, it is up to the jury to determine the weight to
place on the witness's voice identification.") .
So Parker's argument that Drabenstadt, a Caucasian, may not have been able adequately
to distinguish African-American voices (such as Stephenson's and Parker's) was a factor
that goes to the weight to be given Drabenstadt's identification of Parker's voice, not its
admissibility.
25
Parker's contention that Drabenstadt was offering expert or scientific testimony
that necessitated a Daubert40 hearing. Instead, we conclude Drabenstadt was
merely offering lay opinion testimony that the voice on the tapes was
Parker's. 41
We also reject Parker's argument that the Commonwealth committed
reversible error by not providing Parker during discovery with notice that
Drabenstadt would testify that he recognized Parker's voice on the tapes.
Tellingly, Parker has not cited to any authority that would require the
Commonwealth to provide in discovery notice of which witness would identify a
voice on a tape recording. And Parker has not pointed to any discovery order
by the trial court that would have compelled the Commonwealth to disclose
Drabenstadt's planned testimony.
This case is markedly different from cases cited by Parker involving
identification of a defendant via a lineup for which counsel was not present.42
40
41
42
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) (setting forth
parameters for admissibility of scientific testimony) .
See, e.g., State v. Smith, 415 S.E .2d 409, 415 (S.C.App. 1992) ("For some time, a witness'
testimony of identification of a person by having heard his voice has been regarded as
legitimate and competent evidence to establish identity in criminal cases. We are aware of
no authority in this state that requires a witness either to be an expert or have training in
voice identification before so testifying .") (citation omitted) ; State v. Burnison , 795 P.2d 32,
40 (Kan. 1990) ("A witness need not be an expert in voice identification to testify as to the
identity of a defendant's voice. . . . The general rule is that a witness' testimony that she
recognized the accused's voice is admissible, provided the witness has some basis for
comparison of the accused's voice with the voice identified as the accused's.") (citation
omitted) .
See, e.g., United States v. Wade , 388 U.S. 218, 236-37 (1967) ("Since it appears that there
is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be
capable of reconstruction at trial, and since presence of counsel itself can often avert
prejudice and assure a meaningful confrontation at trial, there can be little doubt that for
Wade the postindictment lineup was a critical stage of the prosecution at which he was as
much entitled to such aid (of counsel) . . . as at the trial itself. Thus both Wade and his
counsel should have been notified of the impending lineup, and counsel's presence should
have been a requisite to conduct of the lineup, absent an intelligent waiver.") (footnote,
citation, and quotation marks omitted) .
26
In the case at hand, Parker was not required to go anywhere or do anything to
further Drabenstadt's voice identification ; therefore, the constitutional
concerns inherent in a post-indictment visual lineup were not present. 43
Indeed, Parker's attorney conceded that he was on notice that the
Commonwealth planned on calling Drabenstadt as a witness . So Parker's
counsel had the opportunity to investigate the planned parameters of
Drabenstadt's testimony. Additionally, Parker did not seek a continuance in
order to have additional time to prepare for his cross-examination of
Drabenstadt.
Moreover, the Commonwealth played snippets of the two taped
conversations for Drabenstadt; and Drabenstadt stated he had heard those
tapes before and that he had no doubt the second voice on the tape was
Parker's . Additionally, Farmer testified that he was present when the two
taped conversations occurred, that he had listened to the tapes with
Stephenson close in time to when the conversations occurred, and that the
taped conversations played for the jury were the same conversations he helped
Stephenson record . Finally, we note that the second person on the tape
answered to the name "Wee Wee," which was one of Parker's nicknames . 44 In
43
44
Cf. White v . State, 502 A.2d 1084, 1088-89) (Md. 1986) ("A majority of other states and the
federal courts have held that a criminal defendant has no right to have counsel present at a
voice line-up procedure. The issue presented to us here is not the right to counsel at the
`live' voice line-up, but rather at the taped replay . The `live' voice line-up situation is
arguably analogous to a `live' visual line-up. The taped replay of the voice line-up, however,
is more analogous to a photo-array identification . As in photo-array cases, the defendant is
not present, so confrontation is not a problem, and the procedure is capable of exact
repetition, so that defense counsel can later review it.") (footnote and citation omitted) .
At the beginning of the conversations, Stephenson asks the other person, "What's up, Wee
Wee?"
27
sum, the Commonwealth presented sufficient evidence to authenticate the
taped conversations .
b . Admissibility.
Although we have concluded that the Commonwealth adequately
authenticated the taped conversations, we must also address Parker's
argument that the admission into evidence of those tapes violated his Sixth
Amendment right to confront the witnesses against him. More specifically,
Parker contends the statements on the tapes were testimonial, causing their
admission to run afoul of the United States Supreme Court's decision in
Crawford v. Washington . 45 The Commonwealth contends that admission of the
taped conversations did not run afoul of the Sixth Amendment or Crawford
because Parker, himself, was responsible for Stephenson's being unavailable as
a witness . And, therefore, the statements fall within the hearsay exception set
forth at KRE 804(b)(5), which provides that the hearsay rule does not apply to
"[a] statement offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness ."
We begin with the conclusion that the taped conversations are
hearsay.46 Even though they were not obtained as a result of any
interrogation by the police, we begin by assuming, for argument's sake,
45
46
541 U.S. 36, 68 (2004) ("Where testimonial evidence is at issue . . . the Sixth Amendment
demands what the common law required : unavailability [of the declarant] and a prior
opportunity for cross-examination .") .
See KRE 801 (c) (defining hearsay as "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the proof of the matter
asserted .").
28
that the statements on the tapes were testimonial . 47 Since Parker had
no prior opportunity to cross-examine Stephenson on the matter, the
statements would normally be excluded. But both Crawford and its
progeny recognize the principle inherent in KRE 804(b)(5) : a criminal
defendant should not profit from ensuring that the declarant is
unavailable to testify. As stated by the United States Supreme Court:
when defendants seek to undermine the judicial process by
procuring or coercing silence from witnesses and victims, the Sixth
Amendment does not require courts to acquiesce. While
defendants have no duty to assist the State in proving their guilt,
they do have the duty to refrain from acting in ways that destroy
the integrity of the criminal-trial system . We reiterate what we
said in Craw ord: that "the rule of forfeiture by wrongdoing . . .
extinguishes confrontation claims on essentially equitable
grounds." That is, one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to confrontation . 48
The Commonwealth argues that since Parker killed Stephenson, thereby
rendering him unavailable as a witness, Parker cannot complain that
Stephenson's statements were inadmissible hearsay. Parker's response is that
the Commonwealth failed to introduce sufficient proof to show that he killed
Stephenson, as borne out by the jury's inability to reach a verdict on that
charge .49
47
48
49
Davis v. Indiana, 547 U.S. 813, 822 (2006) ("Statements are nontestimonial when made in
the course of police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that there is
no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.") .
Id. at 833 (citation omitted) .
But Parker was convicted of assaulting Baker, the charge to which the taped conversations
were directed at proving. So this issue is not moot.
29
The United States Supreme Court recently issued Giles v. California, 50
which narrows the limits of the forfeiture-by-wrongdoing exception . Under
Giles , it is no longer sufficient under KRE 804(b)(5) simply to show that a
defendant caused the declarant's absence; rather, the forfeiture-by-wrongdoing
exception to the confrontation clause is applicable "only when the defendant
engaged in conduct designed to prevent the witness from testifying ."51 Or, as
Giles has been interpreted by the Illinois Supreme Court, "[t]he doctrine of
forfeiture by wrongdoing may not be employed to deny an accused his
confrontation right absent evidence that, when committing the crime or other
wrongdoing, the accused was motivated by the desire to prevent the witness
from testifying against him at trial."52 Under Giles , we must determine not
only whether there was sufficient evidence that Parker caused Stephenson's
unavailability ; but we must further determine whether there was sufficient
evidence to show that Parker's motivation in causing Stephenson's absence
was to prevent Stephenson from testifying. Unfortunately, the Giles opinion
does not provide clear guidance in how to approach these thorny issues .
Although we have not yet had occasion in a published opinion to address
what impact, if any, Crawford and its progeny, as well as Giles, had on
KRE 804(b)(5), we have addressed Crawford 's relationship to KRE 804(b)(5) in
50
51
52
U.S.
, 128 S.Ct. 2678 (2008) . Giles was issued after the submission of the briefs in
this case and, consequently, was not discussed by Parker or the Commonwealth. Our
research reveals that neither this Court nor the Kentucky Court of Appeals has cited Giles
in any opinion, published or unpublished.
Id. at 128 S .Ct. 2683., Because Giles is based upon on a federal constitutional principle
(i.e., the Confrontation Clause), we must follow it.
In re Rolandis G. , 902 N.E .2d 600, 616 (Ill. 2008) .
30
the unpublished case of Buckman v. Commonwealth . 53 In Buckman, we held
that Crawford and Davis were essentially in accord with KRE 804(b)(5) . 54 We
held the proper procedure was for the proponent of the hearsay evidence in
question (a tape of an unavailable witness's statement in Buckman) to show
"good reason to believe that the defendant has intentionally procured the
absence of the witness," after which "the burden then shifts to the opposing
party to offer credible evidence to the contrary." We emphasized in Buckman
that the proponent of the evidence need only prove by a preponderance of the
evidence that the defendant engaged or acquiesced in wrongdoing that made
the declarant unavailable.55 We also held that we may only disturb a trial
court's decision on this type of question if that decision is clearly erroneous . 56
We believe our decision in Buckman, although unpublished; was sound and
contains the proper procedural framework for analyzing these types of issues . 57
Furthermore, we conclude that the procedure used in Buckman is consistent
with Giles .
Giles left open the proper procedure for trial courts to use when facing a
forfeiture-by-wrongdoing claim . A plurality of the United States Supreme Court
53
54
55
56
57
No. 2005-SC-000148-MR, 2007 WL 858815 at *2-3 (Ky . Mar. 22, 2007) .
Id. Our usage of the preponderance of the evidence standard in Buckman is apparently in
accord with the standard used in other courts . Davis, 547 U.S. at 833 ("We take no
position on the standards necessary to demonstrate such forfeiture (of the right to
confrontation), but federal courts using Federal Rule of Evidence 804(b)(6), which codifies
the forfeiture doctrine, have generally held the Government to the preponderance-of-theevidence standard . . . . State courts tend to follow the same practice . . . .") (citation
omitted) .
Buckman, 2007 WL 858815 at *3 .
Kentucky Rules of Civil Procedure (CR) 76 .28(4)(c) permits the citation of unpublished
opinions of the appellate courts of this Commonwealth rendered after January 1, 2003, if
there is no published opinion that adequately addresses the issue before the court.
31
in Giles opined that it was "repugnant to our constitutional system of trial by
jury" for evidence such as that at issue to be introduced against "those murder
defendants whom the judge considers guilty (after less than a full trial, mind
you, and of course before the jury has pronounced guilt) . . .
."58
Yet the
plurality then opined that a trial judge could "be allowed to inquire into guilt of
the charged offense in order to make a preliminary evidentiary ruling . . . when,
for example, the defendant is on trial for murdering a witness in order to
prevent his testimony."59
Evidence must be admissible before it can be admitted. Stated
differently, a trial courtas the gatekeeper of evidence-may decline to permit
a party's presenting evidence, including evidence of forfeiture by wrongdoing, if
the trial court finds that evidence to be inadmissible . From a purely
procedural standpoint, we believe a trial court promotes justice and judicial
economy by engaging any forfeiture-by-wrongdoing issues before trial begins so
that the parties and the court can be fully cognizant of the evidence that likely
will be presented to the jury. Otherwise, the trial judge and the parties will
face a recess in mid-trial to conduct an evidentiary hearing outside the jury's
presence on whether the requirements of KRE 804(b)(5) and Giles have been
met., 60 with neither party knowing beforehand what evidence it must be
prepared either to offer or rebut .
58
Giles,
U.S . at
, 128 S. Ct. at 2691 .
59
Id. at n.6.
60
See, e.g., United States v. Taylor , 2008 WL 4186934 (E.D . Tenn . Sept. 5, 2008) (court held
a Giles-related hearing mid-trial) .
32
Regardless of when the trial court addresses the forfeiture-by-wrongdoing
issue, we agree with the California Court of Appeals that a trial court must
hold an evidentiary hearing before ruling on the admissibility of the proposed
hearsay. 6 1 In this evidentiary hearing, the proponent of the hearsay must first
introduce evidence establishing good reason to believe that the defendant
intentionally procured the absence of the declarant, then the burden of going
forward shifts to the party opposing introduction of the hearsay to offer credible
evidence to the contrary. And as we quoted in Buckman concerning the degree
of deference accorded the trial court's ultimate ruling on this admissibility
issue,
`[w]hen the determination [of admissibility] depends upon the
resolution of a preliminary question of fact, the resolution is
determined by the trial judge under KRE 104(a) on the basis of
preponderance of the evidence and the resolution will not be
overturned unless clearly erroneous. . . .' Youngv
.
Commonwealth , 50 S .W.3d 148,. 167 (Ky. 2001) .62
Turning again to the case at hand, we must first determine whether the
Commonwealth met its burden of establishing by a preponderance of the
evidence that Parker either engaged in-or at least acquiesced in-wrongdoing
designed to prevent Stephenson from testifying. We find the Commonwealth
met its burden. As mentioned before, Coffey testified that he loaned Parker
money and lent him a gun and that Parker gave the money and gun to Warfield
61
62
See People v. Osorio , 165 Ca1.App .4th 603, 611 (Cal.Ct.App. 2008) ("Although the [Giles]
court did not expressly specify any particular procedure or level of proof required for
determining whether the doctrine applies, it recognized that where the defendant is on trial
for the witness's murder, the trial court must conduct an evidentiary hearing before
admitting the witness's statement if the defendant objects to its admission.") .
Buckman, 2007 WL 858815 at *3 .
33
to kill Stephenson. Wright also testified that he saw Warfield fleeing the area of
Stephenson's murder .
We conclude that Giles was satisfied because, although it did not have to
do so, the trial courtand later the jury-could certainly have reasonably
inferred from all of the unique facts and circumstances of this case that Parker
was motivated to kill Stephenson in order to prevent him from testifying that
Parker shot Baker .63 The dual motive of revenge and prevention of future
testimony was the central point of the Commonwealth's theory of the case .
We next must consider whether Parker has offered credible evidence to
the contrary. Parker has not pointed us to any place in the record where he
offered such evidence.64 Instead, Parker merely incorrectly contends that the
Commonwealth did not offer evidence sufficient to shift the burden to him. So
we conclude that the taped conversations did not violate the Confrontation
Clause under Crawford and Giles , meaning that the trial court's decision to
admit those taped conversations was neither clearly erroneous nor an abuse of
discretion .
63
64
Since the Commonwealth needed only to satisfy the preponderance of the evidence
standard in order for the evidence to be admissible, the jury's inability to find Parker guilty
beyond a reasonable doubt of killing Stephenson does not alter our analysis, especially in
light of the fact that the jury convicted Parker of assaulting Baker.
Parker's reference to at least one juror not voting guilty on the charge of murdering
Stephenson is inapposite . First, the Commonwealth's burden regarding introducing the
statements under KRE 804(b)(5) was based on a preponderance of the evidence standard,
not the beyond a reasonable doubt standard needed for a criminal conviction . Second,
Parker was under an obligation to offer credible proof to rebut the Commonwealth's proof
that tended to show that Parker had a role in Stephenson's unavailability . Merely pointing
to a jury's verdict, or inability to reach a verdict, is not sufficient to meet that burden .
34
2 . Stephenson's Prior Testimony.
The propriety of admitting Stephenson's prior testimony, in which he
implicates Parker in the shooting of Baker, involves many of the same
concerns . But Parker does not offer any argument regarding the
authentication of the tapes.65 Rather, Parker only objects to the introduction of
the prior testimony on Crawford grounds.
Again, we accept Parker's contentions that Stephenson's prior testimony
was both testimonial and hearsay. But we conclude that the testimony did not
violate the Confrontation Clause under Crawford and Giles . Again, the
Commonwealth presented evidence from Coffey and Wright that tended to show
by a preponderance of the evidence that Parker was responsible for (or at least
acquiesced in) Stephenson's inability to be present to testify and that Parker's
intent was to kill Stephenson so that Stephenson would be unavailable to
testify in Parker's trial. The burden then shifted to Parker to show credible
evidence to the contrary. Parker has, again, not satisfied that burden because
he has not pointed us to any specific credible evidence. So we conclude the
trial court's decision to permit the playing of Stephenson's prior testimony was
neither clearly erroneous nor an abuse of discretion .
6s
The tapes were authenticated and then played for the jury via the testimony of a bench
clerk who kept court records and was employed by the Jefferson Circuit Clerk.
35
G.
No Reversible Error Stemming from
Shameka Wright's Testimony.
In August 2000, Shameka Wright66 told the police she had information
about the gang war between the Crips and the Bloods . Shameka also told the
police that on the night McCurley was murdered, she (Shameka) was at a
skating rink where McCurley, Burks, Williams, and Moore were present.
Shameka said she called Parker to buy marijuana ; and Parker asked, using a
racial slur, if Burks and Williams were present with her.67 When Shameka
tried to deny their presence, Parker said he already knew they were there; and
"it" (presumably meaning the gang feud) would end that night. Shameka told
Burks her fear that he (Burks) would be killed by Parker. Burks, Williams,
McCurley, and Moore left the skating rink ; and Shameka did not see the
shootings in which McCurley was killed and Moore was injured .
According to Shameka, she called Burks's grandmother later that night
out of concern for Burks's welfare. Burks's grandmother told Shameka that
Burks and Williams were okay, but McCurley was dead. Shameka then called
Parker, who asked whether Burks and Williams had been shot. Shameka told
Parker no, that he had killed an "innocent" person. Parker uttered an expletive
and hung up.
In response to Parker's contention that Shameka should only be able to
testify as to the events surrounding the McCurley murder, the trial court
cautioned Shameka in the presence of the jury that she could testify only as to
66
67
We will refer to Shameka Wright simply as Shameka to, hopefully, avoid confusion with the
aforementioned Sheldon Wright .
At trial, Shameka admitted calling Parker's cell phone number but testified that she was
not sure if the person she spoke to was actually Parker .
36
conversations she had with Parker, not about what someone else had told her.
Shameka proved to be an extremely difficult witness for the Commonwealth,
displaying a belligerent attitude and repeatedly stating that she could not
remember the contents of her statements to the police . In fact, Parker's
counsel stated at the bench that he had no objections to the Commonwealth
asking Shameka leading questions or using a transcript of her statements to
try to refresh her recollection . The trial court then instructed the
Commonwealth to "[d]o whatever you need to do ."
The Commonwealth then placed a copy of the transcript of Shameka's
August 3, 2000,6$ statement to the police at the witness stand and repeatedly
referred to it during questioning. Soon the Commonwealth's questioning
largely consisted of reading from transcripts of Shameka's statement to the
police and asking Shameka if the Commonwealth's recitation was consistent
with the transcripts . At many points, Shameka admitted the Commonwealth's
statements were consistent with the transcripts but denied the transcripts'
accuracy, at one point even referring to a transcript as "crap ." Over the
defense's objection, the Commonwealth also played for the jury an
approximately thirty-minute audio tape of one of Shameka's statements to the
police. Much of that taped statement contained statements by Shameka
regarding the violent history of the feud between the Crips and the Bloods
(including Williams and Burks) . But, on the tape, Shameka repeatedly referred
68 The McCurley murder occurred during the early morning hours of July 31, 2000 .
37
to what she had heard ; and Shameka testified at trial that she had no personal
knowledge of the feud's history.
On appeal, Parker contends that much of Shameka's testimony was
hearsay because she only had first-hand knowledge of what occurred at the
skating rink . So Parker objects on hearsay grounds to the trial court's
permitting the Commonwealth to play to the jury the entirety of Shameka's
taped statement.
As stated before, hearsay is inadmissible .69 And the Commonwealth in
its brief does not refute Parker's contention that many of the statements on the
taped statement are hearsay. The Commonwealth contends that Shameka's
testimony was admissible because it "only documented the running feud that
existed between the Bloods and the Crips and did not implicate the appellant's
[Parker's] involvement in any way ." As Parker points out in his reply brief,
however, the Commonwealth's argument is actually an acknowledgement that
the challenged portions of Shameka's taped statement are irrelevant . And
irrelevant evidence is inadmissible . 7 0 So the fact that much of Shameka's
taped statement did not directly implicate Parker is an additional reason to
exclude the evidence, not a reason to admit it.
The Commonwealth also argues that Shameka's taped statement was
admissible to show that Shameka "was coherent and cooperative during her
August 9 statement . . . ." But we agree with Parker that whether Shameka
was cooperative during her interactions with the police had no direct bearing
69
70
KRE 802.
See KRE 402 ("Evidence which is not relevant is not admissible .").
38
on Parker's guilt. At most, evidence of Shameka's cooperative attitude could
have been used to impeach her claim that the transcripts did not accurately
reflect the entirety of her interactions with the police. There was no pressing
need for the Commonwealth to play the entire taped conversation in order to
convey Shameka's attitude to the jury.
We recognize that Shameka's recalcitrance and defiant attitude made the
situation difficult and frustrating for the Commonwealth, the trial court, and
Parker. But the mere fact that a witness is openly hostile is not a license for
the admission of hearsay. We conclude that the trial court abused its
discretion by permitting the Commonwealth to play to the jury the hearsay
portions of Shameka's taped statement. 71 The question before us is whether
the admission of Shameka's hearsay was a harmless error. 72 We conclude it
was harmless .
Having determined the trial court erred by permitting the Commonwealth
to play the entire taped statement to the jury we, nevertheless, conclude that
the error was harmless . The inadmissible statements did not appear to
implicate Parker. So Parker's argument to the contrary notwithstanding, the
71
72
Brewer, 206 S.W.3d at 320 ("An appellate court's standard of review for admission of
evidence is whether the trial court abused its discretion .").
RCr 9.24 ("No error in . . . the admission . . . of evidence . . . is ground for granting a new
trial or for setting aside a verdict . . . unless it appears to the court that the denial of such
relief would be inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding that does not affect the
substantial rights of the parties .").
We have sometimes expressed different harmless error standards, variously holding that an
error is harmless if "there is not a substantial possibility that the result would have been
any different," McIntire v. Commonwealth , 192 S.W .3d 690, 698 (Ky. 2006), or that an error
is harmless "if there is no reasonable possibility that it contributed to the conviction ."
Anderson v. Commonwealth, 231 S.W.3d 117, 122 (Ky. 2008). Regardless of which precise
standard is used, the error in this case is harmless .
39
introduction of the inadmissible statements, which comprised only a small
fraction of this lengthy trial, was a harmless error.
H . Parker Was Not Entitled to a Directed Verdict.
Parker contends he was entitled to a directed verdict on the conspiracy to
traffic in a controlled substance charge and the criminal syndication charge .
We disagree with Parker's contention as to the conspiracy to traffic in a
controlled substance charge, but we agree that he should have been granted a
directed verdict on the criminal syndication charge.
1 . Standard of Review.
The familiar standard for ruling on a motion for directed verdict is :
On motion for 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 . For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony.
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 . 73
2 . Conspiracy to Traffic in a Controlled Substance Charge .
The jury was instructed that to find Parker guilty of conspiracy to traffic
in a controlled substance, it must find beyond a reasonable doubt three main
elements : (1) Parker entered into an agreement with Warfield and Coffey to
73
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) .
40
traffic in cocaine; and (2) in furtherance of that agreement Parker stole cocaine
from Barnes with intent to distribute, transfer, or sell the cocaine ; and (3) one
or more of the conspirators was armed with a firearm during the conspiracy .
Parker argues that he was entitled to a directed verdict because Coffey testified
that he did not agree to sell drugs with Warfield and Parker .
Coffey did testify that he did not have an agreement with either Parker or
Warfield to sell drugs, memorably declaring to Parker's attorney, "We never
agreed to nothing, sir." But Coffey's testimony was inconsistent because he
also stated that he "had arranged a drug deal" with Taylor . Coffey also testified
that Barnes had showed him a block of cocaine Barnes had hidden in his coat.
Coffey also testified that he was armed with a gun given to him by Parker and
that Parker also was armed during the drug deal . In addition, Coffey testified
that it was Parker's idea to rob Barnes and Taylor . Finally, Coffey testified that
he unsuccessfully tried to obtain his share of the cocaine from Parker after the
killing of Barnes.
Based on Coffey's testimony, the Commonwealth introduced sufficient
evidence to show that at least one of the conspirators was armed. The question
becomes whether the Commonwealth presented enough proof that there was
an agreement to traffic in cocaine and that the cocaine was stolen with the
intent to distribute, transfer, or sell it.
We conclude that the large amount of cocaine Coffey testified to having
seen hidden in Barnes' coat74 permitted-but did not require-the jury to infer
74
Coffey testified that the cocaine shown him by Barnes looked like a "block" and that the
deal was for the purchase of three kilograms of cocaine. Taylor testified that he had agreed
41
that Parker, Coffey, and Warfield intended to steal the cocaine from Barnes in
order to distribute, sell, or otherwise transfer it. 75 Likewise, Coffey's testimony
that he tried unsuccessfully to get his share of the cocaine from Parker later
that night would permit the inference that Parker stole the cocaine from
Barnes, even though Parker allegedly told Coffey that he (Parker) had not taken
the cocaine. So drawing all reasonable inferences in favor of the
Commonwealth, it was not unreasonable for the jury to have found Parker
guilty beyond a reasonable doubt of conspiracy to traffic in a controlled
substance.
75
to sell Coffey three kilograms of cocaine and that he had shown Coffey a kilogram of
cocaine earlier on the day Barnes was killed . So it is reasonable to infer, drawing all
reasonable inferences in favor of the Commonwealth, that Barnes possessed a large
amount of cocaine at the time he was killed . Since no cocaine was recovered, it may be
inferred that the cocaine was stolen .
See, e.g., State v. McCleod, 186 S.W.3d 439, 447 (Mo.Ct.App . 2006) (holding that although
possession of seven and one-half ounces of marijuana was insufficient to infer an intent to
deliver the marijuana, "[c]ertainly, at some point, the amount of a controlled substance in a
defendant's possession can establish, beyond a reasonable doubt, that the defendant
intended to deliver or distribute that substance to others ."); United States v. Payne ,
805 F .2d 1062, 1066 (D .C . Cir. 1986) ("evidence of a significant quantity of drugs is highly
suggestive of intent to distribute . . . .") ; Commonwealth v. Rugaber, 343 N.E .2d 865, 868
(Mass. 1976) ("Intent to distribute a drug may be inferred from possession of large
quantities of that drug .") ; 28A C.J.S . Drugs and Narcotics 3 384 (2008) ("An intent to
distribute, deliver, or sell controlled substances may be inferred from the possession of a
large quantity of a controlled substance. A reasonable inference of intent to deliver a
controlled substance is permitted when the amount possessed cannot be viewed as
intended for personal consumption. Thus, a jury is permitted, but not required, to infer
intent to distribute when a person possesses an amount of a controlled substance that is
too large to be used by the possessor alone.") (footnotes omitted) .
Better practice,, of course, would have been for the Commonwealth to have presented
evidence from a qualified witness that the amount of cocaine Parker and his cohorts
intended to steal from Barnes was inconsistent with personal use. But the fact that the
Commonwealth has not pointed us to anywhere in the record where it presented such proof
is not fatal because common sense dictates that three kilograms of cocaine is sufficient to
raise an inference that the cocaine was not meant for personal use . Cantrell v. Kentucky
Unemployment Insurance Commission, 450 S.W.2d 235, 237 (Ky. 1970) ("When all else is
said and done, common sense must not be a stranger in the house of the law.") .
42
3. Criminal Syndication Charge.
Although KRS 506 .120 contains many methods for committing criminal
syndication, according to the essential parts of the instruction the trial court
issued to the jury, the jury could convict Parker only if it found beyond a
reasonable doubt that Parker "committed, conspired or attempted to commit or
act as an accomplice in the commission of any offense of violence" and that
when he did so, Parker had the "intent to establish, maintain, or facilitate any
of the activities of an organization consisting of five or more persons
collaborating to promote or engage in Trafficking in a Controlled Substance on
a continuing basis." 76 Parker contends the Commonwealth failed to show that
he collaborated with others to traffic in a controlled substance . This argument
is without merit since we have previously explained that the Commonwealth
did present enough proof to withstand Parker's motion for a directed verdict on
the conspiracy to traffic in a controlled substance charge .
But the offense of criminal syndication requires the collaboration of five
or more persons . 77 By contrast, the trafficking charge at hand only involved
three persons-Parker, Coffey, and Warfield . "The collaboration in the statute
means simply collaborating in the scheme, and it is not necessary for the
Commonwealth to show that each participant collaborating in the scheme
collaborated with or even was aware of the collaboration of the other
participants ."7s And criminal syndication requires the illegal conduct (in this
76
77
78
Parker has not argued the trial court's instruction was erroneous.
KRS 506.120(3).
Commonwealth v. Phillips , 655 S.W.2d 6, 9 (Ky. 1983) .
43
case, trafficking in a controlled substance) to occur on a "continuing basis[,]" 79
as opposed to the singular drug deal that resulted in Barnes' death. In order to
prove the activity occurred on a continuing basis, "[t]he Commonwealth is not
held to proving any specific number of incidents or any element of time, but
must show by the proof what the jury could infer from the evidence as intent to
collaborate on a continuing basis ."$0
We must determine whether the Commonwealth adduced proof that at
least two others joined Parker, Coffey, and Warfield in collaborating to promote
or engage in trafficking in a controlled substance and that the collaboration
occurred on a continuing basis.
Our efforts are greatly hampered by the unfortunate dearth of
information in the Commonwealth's brief. After quoting KRS 506.120, the
Commonwealth's brief merely generically provides that:
While the gang consisted of nine to twelve active members,
the appellant would act individually or with small groups in
activities related to the furtherance of the Crips [sic] authority
retaliating against the Bloods, securing drug turf, securing drug for
re-sale, and maintaining the integrity of the business by shooting
people who were behind in their payments (even if the victim is a
relative) . It was not clearly unreasonable to submit the charge of
criminal syndication to the jury because appellant's actions and
the actions of other members of the Crips were designed to
facilitate the syndicate's activities as required by the statute.
Noticeably lacking from the Commonwealth's brief is a single citation to
precedent or other authority or to the record to support its contention
that the trial court did not err in denying Parker's motion for a directed
79
80
KRS 506.120(3).
Phillips , 655 S.W .2d at 9 .
44
verdict . Indeed, the Commonwealth does not name the four or more
additional persons who allegedly assisted Parker in the Crips's drug
trafficking efforts, nor does the Commonwealth point to anything specific
in the record to show that Parker and the Crips collaboratively trafficked
in drugs on a continuing basis . 81 It is well-settled that an appellate court
will not sift through a voluminous record to try to ascertain facts when a
party has failed to comply with its obligation under Kentucky Rules of
Civil Procedure (CR) 76.12(4)(d)(iv)82 (in the case of an Appellee's briefl to
provide specific references to the record. 83 So we will not undertake in
the task of reviewing the approximately twenty videotapes that Parker's
trial record consumes to determine if the Commonwealth introduced
sufficient evidence to withstand Parker's motion for a directed verdict on
the criminal syndication charge.
In reviewing the record for the other arguments raised in this
appeal, we viewed Coffey testifying in such a manner as to leave no doubt
that there were at least five members of the Crips. But we have not been
81
82
83
The Commonwealth's passing reference in this section of its brief to another section dealing
with the propriety ofjoining all charges for trial is similarly unhelpful because the other
section does not provide the necessary information.
RCr 12.02 expressly provides that CR 76 is applicable to criminal cases.
See, e.g., Sharp v. Sharp, 491 S.W.2d 639, 644 (Ky. 1973) ("We will not search the thirteen
volumes of testimony to find the evidence, therefore this contention is rejected .") ; Robbins,
849 S.W.2d at 572 (Ky.App . 1993) ("Video tape recordings require significantly more time to
review than written transcripts and, given the fact that our courts have consistently refused
to search written records in cases in which the briefs have failed to make reference to the
record, we likewise decline to do so here."); Wagers v. Commonwealth , 475 S.W.2d 635,
635-36 (Ky. 1972) ("Counsel fails either to relate the testimony of which complaint is made
or refer us to where that testimony may be found. We will not consider this contention .") .
Although much of the precedent on this issue involves an Appellant's failure to refer to the
record with specificity, CR 76.12(4)(d)(iv) imposes the same requirement of referring to the
record with specificity upon an Appellee .
45
directed to any testimony that would show that at least five Crips
collaborated on a continuing basis to traffic in drugs. In fact, Coffey
testified to the contrary when he stated that the Crips made their own
deals and sold their own drugs. Although Coffey testified that all of the
Crips sold drugs to earn money, Coffey also memorably testified that
"every man did their own thing." And the only drug-related offense was
the conspiracy to traffic in narcotics charge, for which only three
individuals were named as conspirators . Additionally, that charge
involved only a one-time drug deal or robbery, not a continuing
collaboration to sell narcotics. It is simply beyond question that one
incident involving only three individuals is not sufficient to prove the
existence of an ongoing (collaboration involving at least five individuals.
In short, the Commonwealth has not pointed to any evidence to
show that it presented proof that Parker and at least four other persons
collaborated to traffic in narcotics on a continuing basis. So we must
conclude the trial court erred by failing to grant Parker's motion for a
directed verdict on the criminal syndication charge . 84 Parker's criminal
syndication conviction is reversed for that reason.
84
The fact that the Commonwealth did not ultimately adduce proof sufficient to convict
Parker of criminal syndication does not alter our conclusion that the trial court did not err
by trying the criminal syndication charge with the other charges . After all, it is impossible
to know with precision at the beginning of trial, the time when such joinder decisions
necessarily must be made, what evidence will be presented during the trial . Likewise, the
fact that the Commonwealth did not prove Parker's guilt regarding the criminal syndication
charge beyond a reasonable doubt does not render infirm the indictment on that charge .
46
I.
McCurley Murder Properly Subject
to an Aggravated Penalty.
McCurley was murdered in 2000, and Barnes was murdered in
2002. Parker contends he should not have been subjected to an
aggravated penalty for the McCurley murder based upon his having
caused multiple deaths.85 We disagree .
Parker's argument runs contrary to our settled precedent . In
Simmons v. Commonwealth, we held that it was permissible to use
multiple deaths as an aggravator even though the defendant caused the
three deaths one at a time and on different dates . 86 The defendant in
Simmons argued that the multiple death aggravator found in
KRS 532 .025 could be used only if a defendant caused more than one
death simultaneously. We disagreed, concluding that "[w]ith respect to
the vicious propensities of a defendant which are indicative of his danger
to society, it is certainly no less compelling that on three different
occasions he had committed a murder than if he had killed three people
at one time." 87 So we construed the statute's reference to "the act or acts
of killing which result in multiple deaths to mean the deaths of more
than one person, whether simultaneously or not."88 More simply, we
later held that "[o]nce the jury determined that two of [Appellant's] acts of
85
86
87
88
KRS 532 .025(2)(a)(6) provides that a jury or trial court may consider as an aggravating
factor that "[t]he offender's act or acts of killing were intentional and resulted in multiple
deaths . . . ."
746 S.W.2d 393, 398-99 (Ky. 1988) .
Id. at 399.
Id.
47
killing were intentional and resulted in multiple deaths, the multiple
murder aggravating factor applied." 89 The jury in this case found, in
writing, that Parker's acts of killing McCurley and Barnes were
intentional and resulted in multiple deaths.
We reject Parker's contention that our holding in Simmons should
not apply to this case because there were other statutory aggravators
present in Simmons . The jury need find only one statutory aggravator
for a defendant to be subjected to an aggravated penalty;90 and the fact
that other aggravators were present in Simmons does not detract at all
from our conclusion that the multiple death aggravator properly applies
when a defendant causes multiple deaths, regardless of whether those
multiple deaths occur on the same day or over a longer course of time.
Likewise, we reject Parker's argument that Simmons should not
apply to him because the murders in Simmons were so identical as to be
so-called signature crimes. But the murders of Barnes and McCurley
lack such commonality. Although it is true that the murders in
Simmons had many common characteristics, our decision on when the
multiple murder aggravator may apply was based upon the number of
murders, not their commonality.
89
90
Bowling v. Commonwealth , 873 S.W.2d 175, 181 (Ky. 1993). We recognize that the
murders in Bowling apparently occurred close in time. However, that fact does not negate
the applicability to this case of our simple exposition in Bowling of when the multiple
murder aggravator may apply.
Id. ("Only one aggravating factor need be shown beyond a reasonable doubt to sustain a
death sentence .") .
48
Finally, we reject Parker's contention that our holding in Simmons
was erroneous and should be overturned or modified. To the contrary,
we believe Simmons remains an accurate interpretation of KRS 532 .025.
J . No Cumulative Error Sufficient for Reversal .
We disagree with Parker's contention that the cumulative effect of
otherwise harmless errors necessitates reversal of his convictions. To the
contrary, our examination of the record reveals that Parker's trial was
fundamentally fair. Nothing more is required . 91
K.
No Error in Denying Request for Additional
Pages_ in Parker's Brief.
Parker unsuccessfully filed a motion asking us to allow him to file
a brief in excess of the fifty-page limit set by CR 76.12(4) (b) (ii) . Parker's
counsel contends that our refusal to expand the fifty-page limit caused
her to abandon issues .
We are cognizant that this is a complex case, as demonstrated by
the length of this opinion. But we are convinced that use of concise
language and careful editing enabled Parker's able counsel in the space
of fifty pages to present adequately all potentially meritorious issues . So
we conclude that Parker is not entitled to relief. 92
91
92
Bowling v. Commonwealth , 942 S .W .2d 293, 308 (Ky. 1997) ("In addition to the foregoing,
the appellant asserts that cumulative errors mandate reversal of his conviction . Our review
of the entire case reveals that the appellant received a fundamentally fair trial, and that
there is no cumulative effect or error that would mandate reversal .") .
Cf. Bowling v. Commonwealth, 981 S.W.2d 545, 553 (Ky. 1998) ("contrary to Appellant's
argument, a page limit is simply not a due process violation.").
49
IV. CONCLUSION.
For the foregoing reasons, Kenneth Parker's conviction for criminal
syndication is reversed and remanded to the Jefferson Circuit Court for
proceedings consistent with this opinion. All of Parker's other
convictions and sentences are affirmed.
All sitting. Abramson, Cunningham, Noble, Schroder, and Scott, JJ.,
concur . Venters, J., concurs in result only by separate opinion .
VENTERS, JUSTICE, CONCURRING IN RESULT ONLY: I concur with the
majority on all points but one . The majority holds that an indictment is
sufficiently specific if it simply "names the offense ." I disagree and respectfully
submit that RCr 6 .10(2), which was promulgated by this Court, requires that
the indictment contain a statement of "the essential facts constituting the
offense," which is something more than simply naming the offense. I concur in
result because the indictment in this case complies with RCr 6 .10(2) .
COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Todd Dryden Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
George G. Seelig
144 West Main Street
Lebanon, Kentucky 40033
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