Opinion
NO. 2015-CA-000213-MR
04-01-2016
JOSHUA LEE TEVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Russell J. Baldani Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
ACTION NO. 13-CR-01280 OPINION
AFFIRMING BEFORE: DIXON, D. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: On December 11, 2014, a Fayette Circuit Court jury convicted Appellant, Joshua Tevis, of reckless homicide and being a persistent felony offender (PFO) in the first degree. The jury set Tevis's sentence at five-years' imprisonment, enhanced to fifteen years due to his status as a PFO.
On appeal, Tevis argues that the trial court erred in permitting the prosecutor to make repeated references to Tevis's silence. He also argues that the trial court impermissibly allowed the jury to view excluded evidence over his objection. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
BACKGROUND
At approximately 2:30 a.m. on September 22, 2013, Tevis exited the Diva's Gentleman's Club in Lexington and walked to his vehicle. At the same time, Johntel Crocker and others were attempting to separate two women who were fighting near Tevis's vehicle. As Tevis approached his vehicle, he observed Crocker step on the rear bumper of his vehicle. Tevis took exception to this and exchanged words with Crocker as they crossed paths. Crocker paused, turned, and shoved Tevis against a wall. Almost immediately, Tevis pulled a gun and shot Crocker in the chest. Crocker ran, but collapsed moments later. Tevis fled the scene on foot, leaving his vehicle behind. When police arrived moments later, they found Crocker unresponsive. Officers and paramedics rendered first-aid; however, Crocker was pronounced dead upon arrival at the hospital.
During their investigation, police obtained the surveillance video of the Diva's parking lot and eventually determined that Tevis was the individual who shot and killed Crocker. Soon afterward, Tevis turned himself in to the Lexington Police Department, and authorities charged him with Crocker's murder.
On November 25, 2013, a Fayette County Grand Jury indicted Tevis for murder, being a convicted felon in possession of a handgun, and being a PFO in the first degree. The case proceeded to trial on December 9, 2014. At trial, Tevis's theory of the case was that he shot Crocker in self-defense. At the conclusion of a three-day trial, the jury returned a verdict of not guilty on the charge of murder. However, the jury convicted Tevis of reckless homicide, and found him to be a persistent felony offender in the first degree. The trial court imposed the recommended sentence of five years for the reckless homicide, enhanced to fifteen years by virtue of Tevis's conviction as a persistent felony offender. It is from this judgment of conviction and sentence that Tevis now appeals. Additional facts will be developed as necessary.
The trial court later severed the possession of a handgun charge from the other charges.
ANALYSIS
Tevis first argues that the Commonwealth's closing argument contained improper references to Tevis's election not to testify in his own defense. "In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create a presumption against him." KRS 421.225. Comments, direct or indirect, violating a defendant's privilege against self-incrimination can be grounds for reversing a sentence. Williams v. Commonwealth, 154 S.W.2d 728, 729 (Ky. 1941). However, "a comment violates a defendant's constitutional privilege against compulsory self-incrimination only when it was manifestly intended to be, or was of such character that the jury would necessarily take it to be, a comment upon the defendant's failure to testify." Ragland v. Commonwealth, 191 S.W.3d 569, 589-90 (Ky. 2006), citing Butler v. Rose, 686 F.2d 1163, 1170 (6th Cir. 1982); see also Byrd v. Commonwealth, 825 S.W.2d 272, 275 (Ky. 1992); Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). Overall, "prosecutorial comment must be examined in context, and, if there is another, equally plausible explanation for a statement, malice will not be presumed and the statement will not be construed as comment on the defendant's failure to testify." Ragland v. Commonwealth, 191 S.W.3d 569, 590 (Ky. 2006) (internal citations omitted).
Kentucky Revised Statutes.
During closing arguments, the Commonwealth argued that Tevis could not possibly have acted in self-defense. The Commonwealth stated, in part, "there has been no evidence from any witness that you heard that the defendant feared for his life. There has been no evidence that he shot because he couldn't, he had nowhere else to go." Tevis's counsel immediately objected to this statement. At the ensuing bench conference, his counsel argued that the statement was an indirect comment on his right to remain silent because he was the only witness who could testify as to his state of mind. The trial court overruled the objection, finding that the statement was a permissible comment on the evidence presented. Moments later, the Commonwealth again reminded the jury that it had "heard no witness say that the defendant feared for his life." Tevis objected again, and the trial court again overruled him. The Commonwealth continued to argue that the jury could not assume that Tevis shot Crocker because he feared for his life, stating, "[y]ou can't do that. You are confined to the evidence before you." The trial court later provided an instruction to the jury which stated: "The Defendant is not compelled to testify, and the fact that the Defendant does not testify is not an inference of guilt and shall not prejudice the Defendant in any way."
Tevis insists that the Commonwealth's statements in its closing argument were an indirect comment on his failure to testify in his own defense because he was the only person who could have provided information about what he felt and believed when he used deadly force. We disagree.
In Commonwealth v. Robertson, 431 S.W.3d 430 (Ky. App. 2014), a sexual abuse case, we construed the Commonwealth's repeated statements regarding the victims' "unrefuted" testimony as a cumulative and inadmissible comment on Robertson's silence at trial. More specifically, the Commonwealth stated, "this defendant cannot give you any reason why these children would make this up." Id. at 433. The facts in this case do not contain such egregious and direct references.
The Commonwealth's comments in the present case were not manifestly intended to reflect on Tevis's failure to testify. There were several witnesses to the events leading up to Tevis's shooting of Crocker. Taken in context, the Commonwealth's statements merely alluded to the fact that the jury heard no testimony from any witness that would support Tevis's claim that he feared for his life. This was permissible. See Stopher v. Commonwealth, 57 S.W.3d 787, 806 (Ky. 2001), quoting Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987) ("A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of the defense position.").
Tevis's second argument is that the trial court erred when it allowed the jury to access excluded evidence. During trial, the Commonwealth sought to introduce surveillance video footage from the night of the shooting. Tevis objected to the introduction of the entire sixty-minute video and asked the court that the Commonwealth only be allowed to show a select portion of the video instead. The Commonwealth agreed and only introduced approximately twelve minutes of the footage. However, the disc tendered to the court and assessable to the jury during deliberations contained the full sixty-minute video.
It is "a fundamental principle that the state must establish guilt solely on the basis of evidence produced in the courtroom under safeguards assuring a fair trial." Smith v. Commonwealth, 645 S.W.2d 707, 710 (Ky. 1983).
Although Kentucky Rules of Criminal Procedure (RCr) 9.72 permits the trial court to exercise discretion over the evidence the jury may take with it to deliberations, the court abuses that discretion when it permits the jury to take testimonial witness statements to the jury room. See McAtee v. Commonwealth., 413 S.W.3d 608, 622 (Ky. 2013) and RCr 9.74. In Commonwealth v. Wright, 467 S.W.3d 238 (Ky. 2015), the Supreme Court held that a recording of a controlled drug buy was an exhibit, and not testimonial. Thus the trial court may properly allow the jury to review the recording in the deliberation room, and the mere possibility that the jury could have access to excluded evidence was not sufficient to show reversible error. Id. at 243-44.
The current case is comparable. While the surveillance video qualified as an exhibit under RCr 9.72, it included video which had been excluded. Therefore, the trial court's decision to allow the jury access to the portions of the video that were not introduced into evidence may have been ill-advised; but the court, by admonishing the jury to view only the twelve-minute relevant portion of the video, took steps to prevent the jury's actually viewing of the excluded portions. The jury is presumed to have followed this admonition; and, unless the defendant can rebut this presumption, the admonition cures any error. See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
Our Supreme Court has recognized that there are two ways for a defendant to overcome the presumptive efficacy of an admonition: (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. See Johnson at 441 (internal quotations and citations omitted).
Tevis's claim that the jury "clearly" viewed the excluded portions of the video and that it impacted the jury's verdict is unsupported in the record. During a bench conference, the court informed both parties that while the jury was in deliberations after the guilt phase, it requested the time stamp for the beginning of the relevant portion of the surveillance video. This strongly suggests that the jury followed the court's admonishment and only viewed the surveillance video's relevant portion. Tevis has failed to overcome the presumptive efficacy of the trial court's admonition to the jury.
CONCLUSION
The trial court's Judgment of Conviction and Sentence is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Russell J. Baldani
Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky