JERRY BERNARD WINSTEAD, JR. V. COMMONWEALTH OF KENTUCKY
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RENDERED : MAY 21, 2009
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2007-SC-000425-MR
JERRY BERNARD WINSTEAD, JR.
V.
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AP ELLAN
ON APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O . CASTLEN, JUDGE
NO . 05-CR-00120
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
Jerry Winstead appeals from a May 21, 2007 Judgment of the Daviess
Circuit Court convicting him of murder and of first-degree robbery and
sentencing him to concurrent prison terms, respectively, of life without the
benefit of parole and of twenty years. The Commonwealth alleged, and at his
March 2007 trial the jury found, that on January 22, 2005, Winstead shot and
killed Richard Roberts in the course of stealing a substantial amount of cash
from a small safe in Roberts's bedroom. On appeal Winstead contends (1) that
he was denied his right to represent himself at trial; (2) that he was denied his
right to an adequate voir dire; (3) that the trial court erred when it refused to
strike one of the venire members for cause ; and (4) that the trial court erred
when it permitted one of the Commonwealth's witnesses to bolster her own
testimony. Finding no reversible error, we affirm .
RELEVANT FACTS
Roberts's sister Samantha discovered Roberts's body lying on his
bedroom floor near his opened safe at approximately 1 :00 pm on January 22,
2005. She had talked to him on the phone about an hour before . He had been
shot one time in the neck and was pronounced dead at the scene . The police
investigation soon focused on Winstead . He and Roberts both lived on
Crittenden Street in Owensboro, near each other, and the police learned that
the nineteen year-old Roberts had engaged in selling street-level amounts of
marijuana and that Winstead had been one of his regular customers .
Winstead was aware that Roberts kept the proceeds of his drug dealing in the
bedroom safe and had remarked to several acquaintances that he knew of a
near-by drug dealer who would be easy to rob. Just prior to the shooting,
Roberts had amassed in excess of $3,000 .00 . The police also learned that
Winstead had been unemployed for several weeks before the crime, that just
before the crime he faced imminent eviction from the residence he shared with
his half-sister and step-father, and that immediately after the crime he had
paid cash for a new apartment and had gone on a cash-financed shopping
spree amounting to at least $2,000 .00. Following Winstead's arrest, the police
searched his residence and found an old suitcase containing a pair ofjeans
and a pair of gym shoes . On the jeans and on one of the shoes were spots of
blood, which DNA analysis established was consistent with Roberts's DNA.
The police also seized a .357 magnum caliber handgun that belonged to
Winstead's step-father and to which Winstead had had access . The gun also
bore a spot of Roberts's blood, and ballistics testing showed that bullet
fragments removed from Roberts's body and discovered at the scene could have
been fired from that gun .
Winstead was arrested on January 27, 2005 and was interrogated that
evening . He denied any involvement in the shooting or the theft until
detectives confronted him with their discovery of the apparently bloodied
clothing. When Winstead denied knowing how the clothes had gotten into the
suitcase, the detectives threatened to arrest his half-sister as the only other
person who could have put them there. Winstead then claimed to have been
visiting at Roberts's apartment the day of shooting when a person he did not
recognize arrived and went with Roberts to the bedroom. A short time later he
heard a gunshot and ran to the bedroom, where he nearly tripped over
Roberts's prone body and found the stranger taking money from the safe .
When the stranger threatened to shoot him, too, Winstead punched him so
hard that the stranger fell and was knocked unconscious when his head hit the
safe. Winstead then grabbed a portion of the money-about $1,300 .00 he
claimed-and ran home, where it was he who put the blood spattered clothes
into the suitcase. The video recording of Winstead's interrogation was played
at trial . The Commonwealth argued that while much of Winstead's statement
was obviously untrue, it did place Winstead at the scene and in possession of
the bloodied clothes and that together with the evidence summarized above it
proved that Winstead had killed Roberts in the course of robbing him.
Winstead testified on his own behalf and denied having had anything to
do with the killing or the theft . He claimed that he was with his half-sister at
the time of the shooting. The money for his new apartment and for his
shopping spree had come from his own drug dealing, he asserted, and his
statement to the police in which he placed himself at the scene and admitted
concealing the blood-spotted clothes, was a pure fabrication meant only to
remove suspicion from his half-sister and to prevent her arrest. In fact, he
claimed, he did not know how the clothes had gotten into the suitcase, but
noted that his step-father had also had access to the suitcase and the gun. His
half-sister corroborated his claims that they had been together when the crime
occurred and that they had raised money for their new apartment by selling
crack cocaine.
As noted above, the jury found Winstead guilty of both murder and
robbery, whereupon the Commonwealth argued that because Winstead's crime
was an aggravated killing-a killing in furtherance of a robbery-it warranted
the death penalty. The jury recommended instead, however, that Winstead be
sentenced to life without parole, and that, as noted, is the sentence the trial
court imposed .
ANALYSIS
I. Winstead Was Not Denied His Right To Represent Himself.
The first claim Winstead makes on appeal is that he was denied his right
to represent himself. Winstead was indicted on March 8, 2005 and was
arraigned on March 24th of that year, prior to which time, apparently, public
advocates had been appointed to represent him. Assistant Public Advocate
Joseph Bennett entered his appearance to assist with the case on March 31St.
At the end of September 2005, Winstead filed three pro se motions seeking
discovery from the Commonwealth, and on October
3rd
he filed a fourth motion
complaining that the discovery provided to him to date had excluded several
items he believed he was entitled to. The trial court forwarded the motions to
counsel for both sides, and at a hearing on October 7, 2005, Winstead stated
that he had asked counsel (apparently Bennett) to file the motions on his
behalf, and that when counsel had refused, he (Winstead) had decided to take
the matter into his own hands. The court informed Winstead that as long as
he had counsel of record the court would not entertain pro se motions .
Motions Winstead filed himself would be forwarded to counsel to be handled as
counsel saw fit. Winstead complained that he found it difficult to work with
counsel (again, apparently Bennett), but the court informed him that although
he was entitled to an attorney, he was not entitled to the attorney of his choice,
and in the court's estimate the team representing Winstead was highly
competent.
There the matter stood, apparently, until November 21, 2005, when
Winstead filed another pro se motion, this one seeking dismissal of the
indictment for lack of evidence and monetary compensation for what Winstead
characterized as his unlawful incarceration. He accompanied the motion with
a letter to the court in which he again complained of counsel's unavailability
and his failure to share with Winstead several items of discovery. The letter
includes the following passage regarding Winstead's relationship with counsel :
I can not [sic] help my attorney build a proper defense
if evidence is withheld from me. I have tried reasoning
with him, but it has done no good . He has basicly [sic]
told me he felt I was guilty and there is overwhelming
evidence stacking up against me . I have failed to see
his point or the evidence . Unless there is evidence
being held from me. [sic] I honestly feel my attorney is
not working with and or for me in this case. In fact, I
feel as if he is working on the behalf of the
Commonwealth . I honestly feel I have a better chance
of defending myself. I am not completly [sic] intelagent
[sic] on all legal matters. I feel the O .P.D . is trying to
frame me . I would be able to prove it if my attorney
would work with me, but he refuses to do so . I have
been trying to settle this matter for the last ten
months, but have not been able to do so .
At a hearing the next day, the court again told Winstead that he was "wasting
his time" filing pro se motions, as they would only be forwarded to counsel . In
June 2006, Sheila Kyle-Reno replaced Bennett on Winstead's defense team,
and it was she and Robert Sexton who represented Winstead at trial. Winstead
now contends that with his pro se motions and the November 21, 2005 letter to
the court he invoked his right to represent himself, and that the court
subsequently erred by failing to conduct the hearing mandated under Faretta
v. California , 422 U .S . 806 (1975) and Hill v. Commonwealth , 125 S .W .3d 221
(Ky. 2004) . Because Winstead's complaints about counsel did not amount to
an invocation of his right to proceed pro se, the trial court did not err .
The Sixth Amendment to the United States Constitution and Section
Eleven of our Kentucky Constitution grant criminal defendants both the right
to be represented by counsel and, conversely, the right to waive counsel and to
conduct their own defense . Faretta, supra; Hill , supra . Because the assistance
of counsel is generally regarded as a crucial component of a fair trial, the right
to that assistance has been characterized as a fundamental constitutional
right. Hill , 125 S .W .3d at 225 (citing Jenkins v. Commonwealth , 491 S .W.2d
636 (Ky. 1973)) . For the same reason, courts indulge "every reasonable
presumption against a waiver of counsel ." Buhl v. Cooksey, 233 F.3d 783, 790
(3rd Cir. 2000) . To overcome that presumption and conduct his own defense, a
defendant must clearly and unequivocally seek to represent himself. Deno v.
Commonwealth , 177 S .W .3d 753 (Ky. 2005) . It is not enough to express
dissatisfaction with counsel or to request different counsel; the defendant,
rather, must unequivocally ask to proceed pro se. Id.; Faretta, supra. If a
defendant unequivocally invokes his right to defend himself, the trial court is
then obliged to conduct a hearing to ensure that the defendant's waiver of the
right to counsel is both knowing and voluntary . Hill, supra. The court's
obligation does not arise, however, unless and until the defendant clearly
invokes his pro se right . Because that right does not implicate constitutional
fair-trial considerations, moreover, the trial court has no sua sponte duty to
inform the defendant of his right to proceed pro se. Munkus v. Furlong, 170
F.3d 980 (10th Cir. 1999) .
We are not persuaded that Winstead's pro se motions and his letter to
the trial court overcame his presumed reliance on counsel. The motions and
the letter appear to be an attempt to enlist the trial court's aid in compelling
counsel to provide discovery, or even perhaps a request to replace counsel with
someone less insistent on the realities of Winstead's serious predicament.
Those documents stop short, however, of seeking to dispense with counsel, in
whole or in part, and to proceed pro se. Although Winstead asserted that, "I
have a better chance of defending myself," this was not so much a request to
do so as it was a way of underscoring what he perceived as counsel's lack of
effort, an assertion that his counsel's efforts had been no better than a
layman's . That Winstead did not, in fact, seek to represent himself is clear
from his following statements that he was not schooled in the law and that
with an attorney "who would work with me" he could mount a defense . This
conclusion is confirmed by the fact that Winstead lodged no further complaints
about his representation after Bennett was replaced . Because the trial court
did not disregard an unequivocal request for self-representation and had no
duty otherwise to advise Winstead of his right to proceed pro se, Winstead is
not entitled to relief on this ground .
II. Winstead's Jury Was Fairly Selected .
Winstead next contends that he was denied his right to fair jury selection
procedures . He complains that he was denied an adequate opportunity to
canvas the venire regarding racial prejudice and also that the trial court erred
when it refused to strike for cause a panel member who indicated that he
would not consider mitigating circumstances. We review the trial court's
conduct of voir dire under the abuse of discretion standard . Thompson v.
Commonwealth , 147 S .W .3d 22 (Ky. 2004) (scope of voir dire) ; Sherroan v.
Commonwealth , 142 S.W .3d 7 (Ky. 2004) (strikes for cause) .
A. Winstead Was Not Denied Meaningful Voir Dire.
This was a capital case in which the defendant was African-American
and the victim Caucasian . Winstead had also been involved in romantic
relationships with Caucasian women. Under these circumstances, as Winstead
correctly notes, both the Fourteenth Amendment to the United States
Constitution and RCr 9 .38 gave him the right to question potential jurors
regarding racial prejudice. Turner v. Murray, 476 U .S. 28 (1986) . At the
beginning of individual voir dire, Winstead asked one of the panel members
whether she agreed that in this State's history racial prejudice had been, and
that it continued to be, a serious social problem. He also asked how she would
react to an interracial romantic relationship in her own family. The
Commonwealth objected to these questions as straying from the issues in the
case . Defense counsel argued that because panel members were apt to be
reluctant to admit racial bias or even to be unaware of their bias, he should be
allowed questions somewhat more likely to elicit racial attitudes than direct
questions about prejudice . The court agreed with the Commonwealth,
however, and essentially limited voir dire on race to the following questions:
Does the fact that the defendant is an AfricanAmerican have any bearing on your judgment in this
case?
Would the fact that individuals in this case were
involved in interracial relationships have any bearing
on your judgment?
Would the fact that the defendant is African-American
and the victim Caucasian have any bearing on your
judgment?
Winstead contends that the court unduly restricted the voir dire and thus
denied him his right to an impartial jury. We disagree.
Although, as noted, Winstead had a constitutional right to canvas the
panel concerning race (or at least to have the panel canvassed), the Supreme
Court has made clear that as long as the subject of race is raised and the panel
members put upon their oath, the manner of the canvassing lies within the
trial court's very broad discretion : "T]he trial judge retains discretion as to the
form and number of questions on the subject, including the decision whether
to question the venire individually or collectively ." Turner, 476 U .S. at 37 . For
voir dire questions to be constitutionally compelled, the Court has explained, "it
is not enough that such questions might be helpful . Rather, the trial court's
failure to ask these questions must render the defendant's trial fundamentally
unfair ." Mu'Min v. Virginia, 500 U.S . 415, 425-26 (1991) .
Winstead's proposed questions aimed at probing the panel members'
racial attitudes do not meet this standard . Even if Winstead's counsel deemed
them helpful, we cannot say that Winstead's trial was rendered fundamentally
unfair or that the trial court abused its discretion when it focused voir dire on
the particular racial facts confronting the jurors in this case . The questions
allowed by the court gave it and the parties an opportunity to assess not only
the panel members' verbal responses to the racial aspects of the case, but their
demeanor as well, and thus provided an adequate basis both for challenges for
cause and for peremptory strikes.
The result is no different under RCr 9 .38 . It is certainly true, as
Winstead notes, that "[t]here can be no question that an adequate voir dire
examination is essential to the seating of a fair and impartial jury." Woodall v .
Commonwealth , 63 S .W . 3d 104, 116 (Ky. 2001). Under our rule, however, as
under the federal Constitution, "[t]he extent of direct questioning by counsel
during voir dire is a matter within the discretion of the trial court." Fields v .
Commonwealth , 274 S .W.3d 375, 392 (Ky. 2008) (citation and internal
quotation marks omitted) . For the reasons discussed above, we are not
persuaded that the trial court abused its discretion in this case .
B. The Trial Court Did Not Abuse Its Discretion When It Refused To Strike
A Potential Juror For Cause.
Nor did the trial court abuse its discretion when it refused to strike juror
29 for cause . At the outset of voir dire, the trial court informed the potential
jurors that if they found the defendant guilty they would be asked to decide
upon one of five authorized penalties . The jurors were shown a list of these
penalties, ranging from twenty years to death . The court informed them that in
fixing a penalty they would also be asked to consider any aggravating or
mitigating circumstances and explained the meaning of those terms. During
individual voir dire, each potential juror was asked if he or she could consider
the full range of penalties and whether he or she would consider mitigating
evidence . In the course of his examination, Juror 29 stated that he would
consider the death penalty but would not automatically vote to impose it, that
he could imagine circumstances in which imprisonment for twenty years would
be an appropriate punishment for murder and robbery, and that he would
consider evidence offered in mitigation of the offense . When defense counsel
asked if he would take the facts of the defendant's life into consideration, Juror
29 said that he probably would, but he could not be sure until he knew the
facts of the case . Defense counsel then asked if the defendant's poverty and
family history would bear on his decision, and Juror 29 replied that they would
not . The court made sure that Juror 29 understood that the question was not
whether those factors would bear on the defendant's guilt but whether they
would bear on his punishment, and Juror 29 reiterated that poverty and family
background would not affect his sentencing decision. At that point defense
counsel moved to have Juror 29 struck for cause. Counsel argued that Juror
29's expressed attitude toward poverty and family background amounted to a
disqualifying bias against mitigation. The court took the motion under
advisement and ultimately denied it. At the conclusion of voir dire, Winstead
used a preemptory strike to remove Juror 29 and preserved his objection to the
trial court's ruling by otherwise exhausting his preemptory challenges. Shane
v. Commonwealth , 243 S .W .3d 336 (Ky. 2008) . He contends on appeal that the
trial court's refusal to strike Juror 29 for cause infringed his constitutional
right to a jury able to consider mitigating circumstances . We disagree .
The United States Supreme Court has held that under the Eighth and
Fourteenth Amendments to the United States Constitution a capital defendant
is entitled to an individualized sentencing by a jury allowed to consider and
give effect to any mitigating evidence that the defendant can produce. Penr rev.
Johnson, 532 U .S. 782 (2001) ; Eddings v. Oklahoma, 455 U.S. 104 (1982) . In
furtherance of that right, the Court has also held that such a defendant is
entitled to have removed for cause any potential juror so biased in favor of the
death penalty that he would automatically vote for that penalty regardless of
any mitigating evidence . Such a juror, the court explained,
will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the
instructions require him to do. Indeed, because such
a juror has already formed an opinion on the merits,
the presence or absence of either aggravating or
mitigating circumstances is entirely irrelevant to such
a juror. Therefore, based on the requirement of
impartiality embodied in the Due Process Clause of the
Fourteenth Amendment, a capital defendant may
challenge for cause any prospective juror who
maintains such views.
Morgan v. Illinois , 544 U.S . 719, 729 (1992) . A potential juror should be
disqualified, therefore, who would automatically impose the death penalty and
give no consideration to mitigating circumstances .
Winstead would expand this rule to disqualify a potential juror who, like
Juror 29, would give no weight to a particular mitigating factor. That is not
what the Supreme Court has held, however, and in Sherroan , 142 S.W .3d at
14, we rejected a similar invitation to expand upon the Supreme Court's
rulings . In that case we rejected a claim that voir dire into particular mitigating
factors was constitutionally mandated and explained that a capital defendant's
right to individualized sentencing "does not entitle [him] to jurors who are
bound to weigh mitigating evidence in his favor." Because Juror 29 indicated
that he would not automatically impose the death penalty but could conceive of
mitigating circumstances that would justify the minimum penalty and that he
would consider mitigating evidence, the trial court did not abuse its discretion
in ruling that he was not disqualified under Morgan and related Supreme
Court precedent . The fact that Juror 29 was disinclined to see poverty and a
difficult family life as factors mitigating murder and robbery did not betray an
attitude so closed to all mitigation as to suggest a prejudgment on the merits
and so does not undermine the trial court's decision.
Again, the result is no different under our rules. RCr 9 .36 provides that
"[w]hen there is reasonable ground to believe that a prospective juror cannot
render a fair and impartial verdict on the evidence, that juror shall be excused
as not qualified ." In Sherroan , supra, we noted that a disqualifying bias need
not be imputed to the fact that "a juror may favor harsher penalties." Id. at 16.
Similarly, Juror 29's unwillingness to say that he would find mitigating the
defendant's poverty and family background did not indicate that he was
incapable of rendering a fair verdict on the evidence. He was not obliged, after
all, to weigh that particular evidence in Winstead's favor, and otherwise he
indicated that he would consider the full range of penalties and would consider
as well the facts of Winstead's life . The trial court did not abuse its discretion
under the rule when it declined to strike Juror 29 for cause .
III. A Witness's Self-Bolstering Testimony Did Not Render Winstead's
Trial Unfair.
Finally, Winstead contends that his trial was rendered unfair when one
of the Commonwealth's witnesses was permitted to bolster her own testimony.
Kayla Richter, who was fifteen-years-old at the time of the crime, was
acquainted with the victim, Roberts, through Roberts's sister Samantha, with
whom Richter was friends. Richter, along with another young friend,
accompanied Samantha to Roberts's apartment on the day Roberts was killed,
and at trial she described the discovery of Roberts's body. She testified that
Samantha had gone into the apartment by herself to drop off a couple of DVDs
and to invite Roberts to go with them for something to eat and that moments
later she had come running out crying hysterically that her brother had been
injured. The two friends then accompanied Samantha back into Roberts's
apartment where the three of them witnessed the body and realized that
Roberts had been killed . Richter remembered the other friend crying out,
"Shut the safe! Shut the safe!" but she could not remember whether they shut
the safe or not. Otherwise, she testified, they had not touched anything, had
not removed any money from the safe or the apartment, had not seen anyone
else in the apartment, and had not seen a gun. Samantha called 911 on her
cell-phone, and the three of them waited on the apartment's front porch for the
police . Officers arrived within a very few minutes and eventually took the three
girls to police headquarters for questioning . Richter testified that she gave a
statement to the police that day, that it was essentially the same as her
testimony, and that it had been truthful. The prosecutor then completed his
questioning of Richter by asking whether the police officers had tested her for
gunshot residue, whether she had seen anyone with a gun, and whether she
had seen any money in Roberts's apartment .
Before defense counsel commenced her cross-examination, she moved to
have Richter's testimony struck on the ground that Richter's police statement
had not been provided in discovery. The Commonwealth explained that
Richter's statement had not been recorded, apparently because she was a
minor at the time, but that otherwise the discovery materials had duly noted
her interview. Winstead then renewed his motion to strike on the ground that
as there was no way to explore the alleged prior statement, reference to it was
improper and also on the ground that Richter should not have been permitted
to characterize the prior statement as truthful. The trial court denied the
motion.
On appeal, Winstead contends that Richter's testimony about her prior
statement amounted to improper self-bolstering and entitles him to a new trial .
Although we agree with Winstead that Richter's testimony about her prior
statement was improper, the impropriety does not necessitate relief.
Kentucky Rule of Evidence 801A(a)(2) provides that a witness's out-ofcourt prior consistent statement is not admissible unless "offered to rebut an
express or implied charge against the declarant of recent fabrication or
improper influence or motive ." Under this rule and KRE 802 (the rule against
hearsay), a witness's out-of-court prior consistent statement is not admissible
merely to corroborate the witness's in-court testimony. Moreover, as we
explained in Dickerson v. Commonwealth, 174 S .W.3d 451 (Ky. 2005),
[w]e perceive no conceptual distinction between
testimony that repeats the witness's prior consistent
statement verbatim and testimony that the witness
previously made statements that were consistent with
her trial testimony. Either way, the evidence is offered
to prove that the declarant's trial testimony is truthful
because it is consistent with her prior statements.
Id. at 472 (citing Smith v. Commonwealth, 920 S .W .2d 514 (Ky . 1995)) .
Richter's testimony about her prior statement to the police was improper under
these rules, and the impropriety was compounded in this case when Richter
was asked to characterize her prior statement as truthful.
Winstead is not entitled to relief, however, for a couple of reasons. First,
counsel did not properly preserve this matter for review. KRE 103 and RCr
9 .22 require that objections to the admission of evidence be both timely and
specific . As Professor Lawson notes, the general rule is that an objection is not
timely unless it is made "as soon as the basis for objection becomes apparent ."
Lawson, The Kentucky Evidence Law Handbook (Fourth Edition), p . 36 (2003)
(citing Sallee v. Ashlock, 438 S.W.2d 538 (Ky. 1969) and Williams v .
Commonwealth , 602 S .W .2d 148 (Ky. 1980)) . See also, Wright and Graham,
Federal Practice and Procedure: Evidence 2d, ยง 5037 .1 (2005) (noting that under
the very similar federal rule, to be timely the objection must be raised as soon
as the basis for the objection is, or reasonably could be, known to the
objector.) . If requested by the trial court, moreover, the objector must also
specify the ground for the objection, and a different ground will not be deemed
preserved for appellate review . Fairrow v . Commonwealth, 175 S .W .3d 601 (Ky.
2005) . Although these rules permit some leeway to allow for the demands on
counsel in the heat of trial, Wilson v. Commonwealth, 403 S .W.2d 705, 707
(Ky. 1966) (an objection "two questions late" deemed timely), compliance is
generally required both in fairness to the party offering the evidence and to give
the trial court the opportunity to remedy any errors in the proceedings. Olden
v . Commonwealth , 203 S .W .3d 672 (Ky. 2006) .
Here, Winstead's objection to Richter's testimony about her prior
statement was neither timely nor specific . Counsel did not object until after
Richter had been asked several additional questions about the gunshot residue
test and about whether she had seen either a gun or money at Roberts's
apartment . By that point it was certainly within the trial court's discretion to
deem the objection untimely . Counsel's objection, moreover, was primarily
based on the alleged discovery violation, not on the rules limiting the
admissibility of prior consistent statements . Even counsel's "bolstering"
argument did not focus on the prior statement itself as inadmissible, but rather
on Richter's characterization of that statement as truthful . The objection, in
other words, did not direct the trial court's attention to the ground of objection
advanced on appeal.
Even if the matter was deemed preserved, moreover, Winstead would not
be entitled to relief because the purported error was harmless . RCr 9 .24 . A
non-constitutional evidentiary error may be deemed harmless, the United
States Supreme Court has explained, if the reviewing court can say with fair
assurance that the judgment was not substantially swayed by the error .
Kotteakos v. United States, 328 U.S . 750 (1946) . The inquiry is not simply
"whether there was enough [evidence] to support the result, apart from the
phase affected by the error . It is rather, even so, whether the error itself had
substantial influence . If so, or if one is left in grave doubt, the conviction
cannot stand ." Id. at 765. 1 Winstead contends that the error should not be
deemed harmless because Richter's testimony bore significantly on the
question of whether Samantha, who was involved in her brother's marijuana
dealing and knew that he had amassed a large amount of cash, had committed
the robbery . Aside from Richter's improper reference to her police statement,
however, the evidence included her and Samantha's testimonies that upon the
discovery of Roberts's body all three girls went into shock and did little more
than call the police and wait for them to arrive . They had not seen the cash or
removed it. There was no evidence of antipathy between Samantha and her
brother and no evidence that after the crime any of the girls had had more
money than usual . On the other hand, as noted above, there was proof that
Winstead knew about Roberts's cash supply, was in dire financial
circumstances, had several times remarked that he knew of a careless drug
dealer who would be easy to rob, and that immediately after the crime had
made a series of cash purchases far in excess of his usual income. In
conjunction with the DNA evidence conclusively linking Roberts's blood with
the clothes concealed in Winstead's apartment, the evidence was overwhelming
that Winstead robbed as well as shot Roberts . There is simply no substantial
In several recent cases involving non-constitutional errors, Anderson v.
Commonwealth , 231 S.W.3d 117, 122 (Ky. 2007) has been cited for the proposition
that the error would not be deemed harmless unless "there is no reasonable
possibility that it contributed to the conviction ." Id. at 122 . In Talbott v.
Commonwealth , 968 S.W.2d 76 (Ky. 1998), however, we explained that the "no
reasonable possibility" test is the harmless-error standard applicable to
constitutional errors and is the equivalent of the "harmless beyond a reasonable
doubt" standard announced by the United States Supreme Court in Chapman v.
California , 386 U.S . 18 (1967) . The Kotteakos standard is the appropriate standard
for non-constitutional errors.
possibility in this case that the verdict was swayed by the improper bolstering
of Richter's testimony. The admission of that testimony was therefore
harmless .
CONCLUSION
In sum, Winstead has not adduced grounds for appellate relief. He was
not denied his uninvoked right to conduct his own defense; he was accorded an
adequate opportunity to question potential jurors about the case's racial
circumstances; the trial court did not abuse its discretion by refusing to strike
for cause a potential juror who stated that poverty and family background
would not affect his sentencing decision; and, although Kayla Richter should
not have been asked whether she made a prior consistent statement to the
police, Winstead did not properly object to that testimony, and in any event its
admission was harmless . Accordingly, we affirm the May 21, 2007 Judgment
of the Daviess Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
James Coleman Shackelford
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort KY 40601
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