ALLEN WILEY, III V. COMMONWEALTH OF KENTUCKY
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ALLEN WILEY, III
V.
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
NO . 08-CR-001280
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING IN PART AND REVERSING IN PART
Appellant, Allen Wiley, III, was convicted by a Jefferson Circuit Court
jury of two counts of first-degree robbery and one count of second-degree
robbery. Appellant received a sentence totaling forty-five years for the crimes .
He now appeals as a matter of right . Icy. Const. ยง 110(2)(b) .
I. Background
On April 5, 2008, a man wearing a hooded sweatshirt, later identified as
Appellant, entered U .S . Bank and told the teller he wanted to make a
withdrawal . When Appellant could not remember his account number, he gave
the teller his Social Security .number . After the teller advised him he did not
have an account with the bank, Appellant told the teller he was "robbing [him],
do what I say or I'll kill you ." The teller gave Appellant all the money in his
teller drawer. This teller, however, could not identify Appellant and was the
only witness as to this robbery.
Three days later, a man entered the Westport Road Speedway, drew a
silver and black firearm and demanded that the clerk, Tonya Brown, give him
the money from the cash register ; she complied . Brown identified Appellant as
the robber.
On the following day, a man wearing a hooded sweatshirt and a hat
entered River City Bank. After a brief conversation with bank teller Megan
Walker, the man pulled out a black gun and demanded money; Walker
complied . Walker identified Appellant as the person who robbed the bank at
gunpoint .
Two other River City Bank employees also witnessed the robbery. One,
Josh Lightle, identified Appellant as the robber, and the other, Alisa Wilkins,
testified that she was 98% sure that Appellant was the robber. She further
testified that the robber wielded a silver, semi-automatic pistol.
As noted, the jury found Appellant guilty of two counts of first-degree
robbery and one count of second-degree robbery. He now raises seven
allegations of error: 1) the trial court erred by assessing court costs against
him despite finding him to be indigent; 2) the trial court violated his due
process rights when it failed to sign and enter the restitution order; 3) the
amount of restitution ordered is not supported by the evidence; 4) the evidence
was insufficient to support his conviction for first- degree robbery because
there was no evidence that he possessed an operable deadly weapon ; 5) the
trial court abused its discretion in allowing the Commonwealth to introduce
hearsay testimony concerning the discovery, in his clothing, of the bait bills'
from the River City Bank robbery; 6) the trial court abused its discretion in
allowing the Commonwealth to introduce hearsay in the form of Detective Mark
Hickman's testimony linking the Social Security number used in the U.S . Bank
robbery to Appellant; and 7) the trial court abused its discretion, and thus
violated his due process rights, when it allowed the Commonwealth to
introduce prejudicial evidence of prior bad acts and other crimes .
For reasons that follow, we now affirm Appellant's convictions and
sentence therefor, but vacate that portion of the sentence that assessed court
costs against Appellant, as well as the part of the sentence that ordered
Appellant's payment of restitution .
II. Analysis
A. Assessment of Court Costs on an Indigent Defendant
Appellant contends that the trial court erred when it imposed court costs
of $130.00, despite finding him indigent . Appellant, however, admits he failed
to preserve this error and asks for "palpable error" review . The Commonwealth
does not contest Appellant's assertion that he was a "poor person" under the
statutory definition or that the trial court assessed court costs against him.
KRS 23A .205(2) .
1 Appellant's brief defines bait bills as "bills with recorded serial numbers."
We review unpreserved issues under the palpable error standard of RCr
10 .26 . Potts v. Commonwealth, 172 S.W.3d 345 (Ky. 2005) . Under that rule,
an unpreserved error may be noticed on appeal only if the error is "palpable"
and "affects the substantial rights of a party," and even then relief is
appropriate only "upon a determination that manifest injustice has resulted
from the error." RCr 10.26 . In general, a palpable error "affects the
substantial rights of a party" only if "it is more likely than ordinary error to
have affected the judgment ." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.
2005) . An unpreserved error that is both palpable and prejudicial still does not
justify relief unless the reviewing court further determines that it has resulted
in a manifest injustice, unless the error so seriously affected the fairness,
integrity, or public reputation of the proceeding as to be "shocking or
jurisprudentially intolerable." Martin v. Commonwealth, 207 S .W .3d 1, 4 (Ky.
2006) .
Here, we find the error to be palpable. Under KRS 23A.205(2), a trial
court shall impose court costs on a defendant unless it finds that the defendant
is a "poor person." In this regard, we have previously found it to be "manifestly
unjust" to impose court costs on an indigent defendant. Jackson v.
Commonwealth, Nos . 2008-SC-000216-MR, 2008-SC-000264-MR, 2009 WL
3526653, at * 10 (Ky. Oct. 15, 2009) ; see also Edmonson v. Commonwealth, 725
S .W.2d 595 (Ky. 1987) (finding that the wavier of all costs for indigent
defendants language of KRS 31 .110(1) (b) controlled over KRS 23A.205(2),
which provides the trial court discretion in imposing court costs) . As we see no
reason to depart from the reasoning in Jackson, we now reverse and vacate the
trial court's imposition of court costs against Appellant.
B. The Trial Court's Restitution Order
Appellant next contends that the trial court violated his due process
rights when it ordered him to pay restitution in the amount of $5,770 .
Specifically, he alleges that the court arbitrarily selected the amount without
allowing him an opportunity to contest that figure. Appellant also takes issue
with the form of the restitution schedule, noting it lacked the trial court's
signature and the clerk's "entered" stamp. As a result of the improper,
assessment and temporal delay, Appellant contends that, pursuant to IRS
532.032, 532 .033, and 431 .200, the trial court can no longer enter a
restitution order.
The Commonwealth acknowledges that the record contains no discussion
of restitution; however, it contends that Appellant waived his challenge to the
appropriateness of the restitution order by failing to move the trial court to
vacate or amend the order within the time allowed. The Commonwealth alleges
that this failure deprived the trial court of any opportunity to correct the
claimed errors, and consequently, this Court cannot properly consider
Appellant's contentions. Alternatively, the Commonwealth asserts that if we
should find merit in Appellant's argument, the appropriate remedy is to
remand the matter to the trial court so that it may fully consider Appellant's
contentions . We disagree and also vacate the restitution award.
Initially, we note that Appellant failed to preserve this issue for appeal,
thus we evaluate it under the palpable error standard. RCr 10 .26. As detailed
above, we grant relief under this standard only "upon a determination that
manifest injustice has resulted from the error." Id.
When ordering restitution, a trial court must base an award on reliable
facts . United States v. Silverman, 976 F.2d 1502, 1504 (6th Cir. 1992) . Our
Court of Appeals considered a situation similar to the present case, wherein
the defendant contested the amount of restitution, yet the trial court denied
him a chance to controvert the Commonwealth's evidence . Fields v.
Commonwealth, 123 S .W.3d 914, 915-16 (Ky. App. 2003) . The court held that
the trial court had deprived the defendant of an opportunity to be heard and
adopted the due process standard articulated by the Sixth Circuit in Silverman :
although a lower standard of due process applies at sentencing, the facts relied
on by the court must "have some minimal indicium of reliability beyond mere
allegation." Id. at 917 (citing Silverman, 976 F.2d at 1504) . The Fields court
thus determined that in order to satisfy this standard, the defendant must
have some meaningful opportunity to be heard and the record must establish a
factual predicate for the restitution order. Fields, 123 S .W .3d at 918.
Here, the sentencing record contains no mention of restitution, nor does
the record reveal any evidence that Appellant was informed of a forthcoming
hearing on the matter. As a result, Appellant had no knowledge, nor
meaningful opportunity to be heard. Additionally, the ." Restitution"
document-filed in the record behind the judgment of conviction and sentence,
but not a part of it-does not establish a factual predicate for the amounts
ordered . The document contains no judge's signature and lists three different
amounts without explanation. We are not advised as to how, or by whom, it
was filed . Consequently, we cannot find that the "Restitution" ordered is
supported by evidence meeting the "minimal indicium of reliability" standard
articulated by the Sixth Circuit. Silver-man, 976 F.2d at 1504 .
In addition to reliability issues, the document contains several facial
irregularities . The trial court orally sentenced Appellant on September 17,
2009 . The formal "Judgment of Conviction and Sentence," however, was not
entered until September 21, 2009 . Yet, the subject document, titled
"Restitution," was not printed until September 29, 2009 . 2 Moreover, it lacks
the trial judge's signature as well as the "entered" stamp normally affixed to a
Judgment of Conviction and Sentence . RCr 11 .04(3) (stating that a judgment
shall be signed and entered by the clerk) .
From these facts, we find it manifestly unjust to deprive an individual of
due process (notice), and then order him to pay an unsubstantiated amount set
out in a document entirely disconnected from his formal sentencing order. As
2 The "Restitution" document is dramatically different in appearance and font from
the Judgment of Conviction and Sentence .
a result of these irregularities, we find palpable error and, therefore, reverse
and vacate the restitution order.3
C. Operability of the Firearm
Appellant next argues that the Commonwealth failed to present evidence
that he was armed with an operable deadly weapon ; thus, the court should
have directed a verdict on both first-degree robbery charges. Appellant notes
that robbery in the first degree requires that the defendant was "armed with a
deadly weapon ." KRS 515 .020(1)(b) . "Deadly weapon" is statutorily defined as,
"any weapon from which a shot, readily capable of producing death or other
serious physical injury, may be discharged ." KRS 500 .080(4)(b) . Appellant
alleges that the Commonwealth failed to prove that he possessed a deadly
weapon when he robbed Speedway and River City Bank, by neglecting to
introduce evidence of the operability of the weapon . Consequently, Appellant
asserts that the Commonwealth failed to prove every element of robbery in the
first-degree beyond a reasonable doubt, a violation of his due process rights.
Jackson v. Virginia, 443 U.S. 307, 316 (1979) . We disagree.
When evaluating a motion for directed verdict on appeal, "the test of a
directed verdict is, if under the evidence as a whole, it would be clearly
3 Appellant correctly observes that the Jefferson Circuit Court no longer has
jurisdiction over him to enter anew restitution award. Under the standard
restitution statute, KRS 532 .032, 532.033, a trial court has ten days to alter,
amend, or vacate its judgment . Silverburg v. Commonwealth, 587 S .W.2d 241, 244
(Ky. 1979) . Additionally, the trial court cannot grant restitution under the postjudgment restitution provisions of KRS 431 .200 . Under KRS 431 .200, a court may
order restitution for property crimes if applied for by verified petition within ninety
days of the pronouncement of the sentence . Here, the temporal period has expired
and the record contains no verified petition .
unreasonable for a jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal." Commonwealth v. Benham, 816 S .W.2d 186, 188
(1991). With that standard in mind, we turn to Appellant's argument .
For decades, this Court has grappled with the statutory language relating
to the operability of a deadly weapon . Although the operability requirement is
currently somewhat in flux, we have never held that the firearm must be
operable at the time of the robbery in order for the firearm to satisfy the deadly
weapon requirement. Most recently, this Court splintered in Wilburn v.
Commonwealth, with the plurality holding that the Commonwealth satisfies the
"deadly weapon" language of IRS 500 .080(4)(b) by showing that the weapon
used in the robbery was in the class of weapons "which may discharge a shot
that is readily capable of producing death or serious physical injury." 312
S .W.3d 321, 329 (KY . 2010) . Furthermore, the plurality noted that the victim's
description of the item will ordinarily provide sufficient evidence to permit the
jury to decide whether it was among the items the legislature defined as a
"deadly weapon." Id. However, the plurality cautioned that an unseen and
unknown item or an item the witness clearly recognizes as a toy, does not
qualify as a "deadly weapon." Id.
With this view in mind, our review of the record reveals that the
Commonwealth produced sufficient evidence to prove Appellant was armed
with a deadly weapon when he robbed Speedway and River City Bank. As
stated in Wilburn, victim testimony describing the object used by the defendant
ordinarily provides sufficient evidence to allow the jury to decide whether the
object falls within the class of objects the legislature characterizes as "deadly
weapons." Id. Here, the Commonwealth presented the testimony of four
victims, each of whom was either robbed at gun point by Appellant or situated
closely thereto .
Tonya Brown, the clerk at Speedway, testified that Appellant approached
the checkout counter to pay for a soft drink. Before Appellant left, he drew a
"real" silver and black firearm and demanded money from the cash register, all
while holding the gun two inches from Brown's face . This testimony
established that Brown saw the gun, recognized it as "real," and described it as
such. Therefore, we find that the Commonwealth introduced sufficient
evidence to permit the jury to decide whether Appellant possessed a deadly
weapon in connection with the Speedway robbery.
Megan Walker, a teller at River City Bank, testified that Appellant
entered the bank, requested change for $100, and inquired about opening an
account . Appellant turned as if to leave, but suddenly spun, drew a firearm,
and ordered Walker to hand over the money . Walker testified that Appellant
possessed a black gun . Two other River City Bank employees also witnessed
this armed robbery. Josh Lightle testified that Appellant entered the bank and
discussed opening an account, drew a gun from his person, and demanded
money from the teller . Alisa Wilkins testified that she observed Appellant
approach Walker's window and after some discussion, draw a "real" silver
semi-automatic pistol. We find that the testimony of these three witnesses,
describing Appellant's possession of a "real" silver or black, semi-automatic
handgun, provided sufficient evidence for the jury to decide whether the
Appellant was armed with a deadly weapon when he robbed River City Bank.
Consequently, we hold that the trial court did not err by denying
Appellant's motion for a directed verdict, as we are unable to find that "under
the evidence as a whole, it [was] clearly unreasonable for [the] jury to find
guilt." Benham, 816 S .W.2d at 187 .
D. Admission of Hearsay
Appellant next contends that the trial court abused its discretion when it
allowed a police officer to repeat another officer's hearsay statement. During
Appellant's arrest, Detective Banta found part of the robbery proceeds,
including several bait bills, in Appellant's pocket. Banta removed the money
and laid it on the passenger seat of the truck. Due to a later, serious car
accident, Banta was unable at trial to remember and testify about anything
after stopping Appellant's vehicle . However, Sergeant Black testified that upon
arriving on the scene, he noticed some bills lying on the front seat. Black
testified that Detective Banta stated that he found that money in Appellant's
pocket. The trial court admitted Sergeant Black's testimony as a prior
consistent statement over Appellant's hearsay objection. Appellant alleges this
testimony prejudiced him as it was the only evidence linking him to the stolen
currency.
The Commonwealth argues that the statement was admissible as a prior
inconsistent statement because Banta stated to Black that he removed the
currency from Appellant's pocket, and then, when asked at trial, testified he
could not remember. In support of this position, the Commonwealth cites
Brock v. Commonwealth wherein we declared, "[a] statement is inconsistent for
purposes of KRE 801A(a) (1) whether the witness presently contradicts or denies
the prior statement, or whether he claims to be unable to remember it." 947
S .W.2d 24, 28 (Ky. 1997) (emphasis added) (citing Wise v. Commonwealth, 600
S.W.2d 470 (Ky. App. 1978)) . While the Commonwealth is theoretically correct,
it fails to recognize a crucial distinction between the present case and those it
cites: the appearance of witness hostility.
Thus, we take this opportunity to clarify the use of the prior inconsistent
statement hearsay exception in the context of a "forgetful" witness . In Wise,
two witnesses gave statements to the police, but at trial, responded "I don't
remember," to all the prosecution's questions . Wise, 600 S .W.2d at 472 . As a
result, the trial court admitted the witnesses' prior statements given to the
police as prior inconsistent statements. Id. The Court of Appeals affirmed the
admission of the statements under the prior inconsistent statement hearsay
exception, finding the witnesses "obviously hostile" in their attempt to defeat
the prosecution . Id. Importantly, the court stated, "No person should have the
power to obstruct the truth-finding process of a trial and defeat a prosecution
by saying, `I don't remember."' Id. ; see also Jett v. Commonwealth, 436 S .W.2d
788 (Ky . 1969) .
In a similar case, this Court utilized the Wise framework to evaluate
whether the trial court correctly admitted, as prior inconsistent statements, a
witness's statements to the police after she later claimed not remembering
what she said . Manning v. Commonwealth, 23 S .W.3d 610 (2000) . In Manning,
the defendant confessed the details of a brutal murder to his common law wife.
Id. at 612 . The wife subsequently conveyed the full story to police detectives,
who videotaped her statement; however, at trial she claimed she did not
remember the statement. Id. The trial court allowed the Commonwealth to
introduce the wife's videotaped statement as a prior inconsistent statement.4
Id. Relying heavily on Wise, we affirmed the trial court's admission of the wife's
videotaped statement as a prior inconsistent statement. Id. at 613 .
Therefore, the relevant inquiry in determining if a lack of memory is (or
should be treated as) a prior inconsistent statement, is whether, within the
context of the case, there is an appearance of hostility of the witness which is
the driving force behind the witness's claim that he is unable to remember the
statement. As the above cases demonstrate, the claimed lack of memory of the
witness appeared to be a purposeful attempt to frustrate the search for the
4 The defendant was convicted of first-degree manslaughter on the strength of that
statement and circumstantial evidence from shell casings.
truth . Within that context, a witness's claimed inability to remember a
statement does amount to an inconsistent statement under KRE 801A(a)(1) .
Thus, in the present case, we find that Detective Banta's statement was
not admissible as either a prior inconsistent or consistent statement. The
statement was not inconsistent as Banta, a law enforcement officer, was not
hostile or unwilling to cooperate with the prosecution; rather, his lack of
memory resulted from an unrelated physical injury; there was no appearance
of, or even an argument for, any hostility on his part. Moreover, Banta's
statement was not a consistent statement, as it is inconceivable that a
statement from a police officer on direct examination by the Commonwealth,
who cannot remember an event due to head trauma, is admissible as
"consistent with the declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence
or motive."
KRE 801A(a)(2) . Consequently, we find that the trial court erred
in admitting Sergeant Black's testimony; however, the error was harmless .
We evaluate harmless error under one of two standards, depending on
whether the error implicates a constitutional right. Winstead v.
Commonwealth, 283 S.W.3d 678, 688-689 (Ky. 2009) . Appellant contends that
the admission of this evidence violated his constitutional due process rights.
However, we generally evaluate evidentiary errors under the non . constitutional
5 See also
49 Ca1.4th 846, No . 5053228, 2010 WL
2773398, *40 (Cal ., July 15, 2010) (holding that a witness's prior statements are
admissible under the prior inconsistent statements if the court finds that the lack
of memory is due to an unwillingness to cooperate) .
People v. Alexander, --P.3d--,
"substantial influence" standard .6 Id. Under this standard we must determine
whether the error had "substantial influence" upon Appellant's trial such that
it "substantially swayed" his conviction . Id. ; see also RCr 9 .24 .
In the present case, we have no difficulty finding that the admission of
the hearsay testimony did not "substantially sway" the outcome of the case.
Sergeant Black testified only to the currency and bait bills found on Appellant's
person at the time of his arrest. In a vacuum, admission of this hearsay
testimony could have substantial influence . However, in the present case, a
plethora of evidence linked Appellant to the robberies and the money and
satisfied all elements of the offense . KRS 515 .020(b) .
To briefly recite, Brown, the Speedway cashier, and Walker, the River
City Bank teller, testified that Appellant entered each respective establishment,
pointed a gun at each of them, demanded money, and both victims complied by
handing over the currency. Furthermore, both victims positively identified
Appellant as the robber due to their close proximity to Appellant during the
robberies .? Consequently, the Commonwealth presented evidence that
satisfied all elements of robbery in the first degree . KRS 515 .020(b) .
Appellant incorrectly argues that the prejudice from Sergeant Black's
testimony is obvious, as no other testimony placed the money in his
possession. However, possession of stolen goods is not an element of robbery
The error in this case would be harmless even if we agreed with Appellant's
contention and analyzed it under the standard applicable to constitutional errors,
as there is no reasonable possibility that it contributed to his conviction . Id.
7 Two additional River City Bank employees identified Appellant as the perpetrator :
one was positive, and the other 98% positive .
6
in the first degree . As stated. above, both Brown. and Walkers testified that they
gave him hundreds of dollars in currency out of fear for their safety . This
testimony explicitly placed the stolen money in Appellant's possession .
Accordingly, we hold that the trial court's erroneous admission of Sergeant
Black's testimony was harmless error.
E. Detective Hickman's Testimony Connecting the
Social Security Number with Appellant
Appellant next contends that the trial court erred in allowing Detective
Hickman to testify that the Social Security number the robber gave to the bank
teller was Appellant's . Appellant claims that this constituted hearsay, as
Hickman lacked personal knowledge of this fact (Hickman acquired this
knowledge from the National Crime Information Center (NCIC) and "other
sources"). Moreover, no business records were introduced to support the
testimony, thus nullifying the public records hearsay exception. KRE 803(8) .
The Commonwealth responds by pointing out the trial court sustained
Appellant's hearsay objection to Hickman's reference to the NCIC as one of his
sources, yet overruled a later objection relating to improper foundation for
Hickman's conclusion based on unnamed "other sources ." Accordingly, the
Commonwealth asserts that if Appellant is contending that Hickman
disregarded the court's order and gave hearsay testimony, it was incumbent
upon Appellant to request a mistrial or admonition, and thus Appellant waived
the error. We disagree.
8 Wilkins, the River City Bank loan processor, also testified that she observed
Walker give Appellant the money from the teller drawer .
We review the admission of evidence for an abuse of discretion . See
Commonwealth v. King, 950 S.W .2d 807, 809 (Ky. 1997) ("It is a well-settled
principle of Kentucky law that a trial court ruling with respect to the admission
of evidence will not be reversed absent an abuse of discretion.") . An abuse of
discretion arises when the court's decision is arbitrary, unreasonable, unfair,
or unsupported by sound legal principles. Kuprion v. Fitzgerald, 888 S.W.2d
679, 684 (Ky . 1994) .
Here, the trial court abused its discretion when it admitted Hickman's
testimony regarding the Social Security number, as it was hearsay. The
hearsay was the assertion "by unnamed sources" consulted by Hickman that
the Social Security number belonged to Appellant. Furthermore, the statement
was introduced for the truth of the matter asserted, i.e., the Social Security
number belonged to Appellant. As a result we find that Hickman's testimony
concerning information he received from these unnamed sources was hearsay.
The assertion that the information was "gleaned" from "other sources,"
assumedly online databases, does not exclude it from being a statement for the
purposes of the hearsay rule. 9 KRE 801(a) .
It is axiomatic that hearsay is inadmissible unless it fits within an
exception . KRE 802 . Consequently, we find that the trial court abused its
discretion when it allowed Hickman to testify that unnamed sources provided
9 Several other means exist to prove one's Social Security number in conformance
with the hearsay rule . KRE 803(8).
him with the information needed to associate the Social Security number used
during the U .S. Bank robbery with Appellant.
Finally, we must evaluate whether erroneously admitted testimony was
harmless error. As previously noted, evidentiary errors are evaluated under the
non-constitutional "substantial influence" standard, wherein we determine
whether the error had "substantial influence" upon Appellant's trial such that
it "substantially swayed" his conviction . Winstead, 283 S .W.3d at 688-689;
See also RCr 9 .24 .
In this case, the victim could not make a positive
identification, thus the Social Security number was the only "linchpin"
evidence linking Appellant to the robbery. Consequently, we have no difficulty
finding that the erroneous admission of Hickman's testimony "substantially
influenced" Appellant's trial in a manner that "substantially swayed" his
conviction. As such, we reverse Appellant's second-degree robbery conviction,
vacate that portion of his sentence, and remand for a new trial on this charge .
F. Detective Banta's Reference to Appellant's
Prior Contacts with Metro Police
In Appellant's final point, he claims the trial court erred when it
overruled his objection to Banta's testimony, which alluded to Appellant's
criminal past. Appellant argues that Banta's testimony was evidence of other
crimes, wrongs, or acts, and was inadmissible under KRE 404(b) . The
Commonwealth responds by contending that no error occurred as Banta did
not testify about any specific prior crimes or acts. We agree with Appellant's
claim: Banta's testimony was inadmissible evidence of prior bad acts; however,
its admission was harmless error .
On direct examination, Banta testified that he knew Appellant before
their contact in connection with the current charges . Banta further testified
that, on the day of the robberies, he observed Appellant acting suspiciously.
Over Appellant's objection, the trial court permitted Banta to testify that while
he was investigating an unrelated incident, he observed Appellant walk past
his car. Banta thought Appellant recognized his car and changed course to
walk in a different direction. Banta stated that "being familiar with Mr. Wiley I
went back to our division to kind of check for his status, maybe being wanted
or anything like that."
We find that the quoted part of Banta's testimony was a thinly-veiled
reference to Appellant's criminal history and was not offered for another
purpose. KRE 404(b)(1) . While the Commonwealth is technically correct in
contending that Banta did not specifically testify about Appellant's prior
wrongs, the inference drawn by Banta's testimony is inescapable . Banta
testified that he knew Appellant and as a result of his "familiar[ity] with Mr.
Wiley, [he] went back [the police station]" to perform a status check to see if
Appellant was "wanted or anything like that." This testimony directs the jury's
attention to the fact that Appellant had prior criminal encounters with law
enforcement and thus is inadmissible prior bad acts evidence . Allowing a
witness to make suggestive references to the defendant's prior crimes, wrongs,
or bad acts circumvents KRE 404(b)'s prohibition of evidence of other crimes .
See Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (finding a
statement calling the jury's attention to the defendant's prior incarceration
inadmissible . The witness stated, "When I moved here, we didn't know [the
defendant] . [Defendant] hadn't been out of prison that long."). As a result, we
hold that Banta's suggestive statements violated KRE 404(b) and the trial court
erred when it overruled Appellant's objection to those statements.
Although we find that the trial court erred, we find such error harmless .
As stated above, evidentiary errors are evaluated under the non-constitutional
"substantial influence" standard, wherein we determine whether the error had
"substantial influence" upon Appellant's trial such that it "substantially
swayed" his conviction . Winstead, 283 S .W.3d at 688-689 ; see also RCr 9.24 .
With the above framework in mind, we determine that the erroneous part
of Banta's testimony did not have substantial influence due to the great weight
of admissible evidence identifying Appellant as the perpetrator. Hill v. Brigano,
199 F .3d 833, 847 (6th Cir. 1999) (finding the erroneous admission of hearsay
to be harmless error because, in light of the great weight of evidence against
the defendant, the introduction of limited statements did not have any
significant influence on the jury's decision-making process) . We find Anderson
n
v. Commonwealth, instructive due to the (frequent) similarities to the present
case . 231 S .W .3d 117, 122 (Ky. 2007) .
In Anderson, the trial court allowed a. deputy to testify that the defendant
responded to his questions regarding his involvement in a robbery by stating,
"Do you think I'm stupid, I just got out of prison for the same thing. I'm not
saying anything, I'm going to ride this one out." Id. at 119 . We found this
testimony inadmissible, as its sole purpose was to inform the jury of
appellant's previous incarceration for similar criminal activity . Id. at 120 .
However, we found this error trivial, considering that three eyewitnesses
testified against appellant as well as the Commonwealth's introduction of
ample circumstantial evidence . Id. at 122
The evidence in the present case is comparable to that in Anderson:
multiple witnesses identified Appellant as the bank robber and gunman . As in
Anderson, when considering the vast evidence in this case, given by multiple
witnesses, we cannot conclude that Banta's suggestive testimony had
substantial influence upon Appellant's trial such that it substantially swayed
his conviction . Consequently, we find this error harmless .
III. Conclusion
For the foregoing reasons, we reverse and vacate Appellant's sentence
insofar as the requirements to pay court costs, restitution, and his nine-year
sentence for the second-degree robbery conviction, but otherwise affirm his
conviction and sentence.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel T. Goyette, Louisville Metro Public Defender
Cicely Jaracz Lambert, Assistant Appellate Defender
Office of the Louisville Metro Public Defender
Public Defender Advocacy Plaza
717-719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capitol Center Drive
Frankfort, KY 40601-8204
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