NICKELL, Judge.
A jury in Jefferson County, Kentucky, convicted Donte Lamont Jones and Robert Anthony Carter
On January 6 and 7, 2010, two home invasions occurred in Louisville, Kentucky, resulting in multiple armed robberies. Victims at both locations said two men—one white and the other black, both brandishing handguns—committed the crimes. None of the victims indicated they knew either robber.
At the first home, 1913 Beech Street, four adults were robbed of a cell phone, credit cards, money and a gun. Both intruders were masked, but the scarf worn by the white man slipped several times revealing his full face. Of the four victims, only two, Alvin McDowell and Stacey Young, thought they would be able to identify the robbers. McDowell said the robbers fled the scene in a red pickup truck. McDowell and Young viewed photo packs on January 21, 2010, but recognized no one.
At the second home, 4506 Dumesnil Street, Jermaine Keltee and his fifteen-year-old daughter, Jailah Keltee, were robbed. Both were at home recuperating from injuries and had only limited mobility—Jermaine was in a wheelchair; Jailah was on crutches. Items taken from their home included a television set, a white laptop computer, a telephone, a Wii, cameras, an iPod and about $1,000.00 in cash. Jailah recognized neither man, but said they fled the scene in a loud vehicle, perhaps a truck. Jailah told police she could not identify either man and was never asked to do so during the investigation. The white man did not wear a mask during the Dumesnil robberies, but initially wore a ball cap
As police continued pursuing and discarding leads, Stephanie Carver became suspicious of her cousin—Carter, a white male—and his acquaintance— Jones, a black male—both of whom she knew through her ex-husband. Jones's girlfriend at the time, Ebony Powell, was living in Carver's home and Jones had moved into Carver's home with Powell. Carter, who occasionally drove a red pickup truck, had visited Jones in Carver's home. One of the items Jones had brought into Carver's home was a white laptop computer. After about a week, Carver directed Jones and Powell to vacate her home.
Carver had learned details of the Dumesnil robberies from a friend, Dyamond Taylor. A cousin of Jermaine Keltee's wife, Taylor was familiar with the robberies of Jermaine and his daughter. Taylor had also reported a break-in of her own home to police on January 3, 2010, in which her home was ransacked and a television and desktop computer were taken. Taylor is Powell's best friend. Powell was acquainted with victims at both Beech and Dumesnil Streets.
Carver and Taylor took Carter's photo to the Keltee home. Carver showed the photo to Jermaine, but he did not recognize him as the white man who had robbed him. On January 25, 2010, Carver and Taylor went to the police to share with them Carver's suspicion that Carter and Jones were robbing homes targeted by Powell. After Carver spoke to police, Jones followed her; pointed a gun at her; told her, "You're a dead bitch"; tried to hit her with his car; and, repeatedly drove by her home. As a result of these actions, Jones was charged with intimidating a participant in the legal process and possessing a handgun as a convicted felon—two charges of which he was acquitted.
Based on Carver's tip, police assembled two new photo packs—one containing a photo of Carter and five white males; the other containing a photo of Jones and five black males. When Jermaine viewed the new photo pack of white men, he picked Carter's photo as someone closely resembling the white man who had robbed him, stating he was "about 70%" certain he was correct. When viewing the photo pack of black men on January 26, 2010, he was unable to pick anyone.
When Young viewed the new photo packs, he selected no one. That same day, January 26, 2010, McDowell also viewed the new photo packs. He immediately picked Carter as the white robber, and eventually selected Jones as closely resembling the black robber, noting on the photo pack identification form he was eighty percent
As a result of the photo pack identifications, Jones and Carter were arrested. When Jones was arrested on January 27, 2010, he had in his possession a white laptop computer with a serial number matching that of the laptop taken from the Keltees. A search of Jones's car revealed several live rounds of 9mm ammunition.
When Carter was arrested on January 28, 2010, he had in his possession a television set that had been taken from the Keltee residence. The red pickup truck in which McDowell had stated the robbers fled the scene was located at Carter's residence.
After being indicted February 10, 2010, Carter and Jones— represented by different attorneys—filed numerous pretrial motions. They did not allege antagonistic defenses and several of their motions mirrored one another.
Arguing prejudice from the cumulative nature of the evidence would outweigh any probative value, Jones moved the trial court to try him separately from Carter, and to try the Beech Street robberies separately from the Dumesnil Street robberies. Responding that joinder of counts was proper under RCr
Arguing joinder of defendants was proper under RCr 6.20, the Commonwealth emphasized four points: joint trials are preferred; trial courts are vested with broad discretion; the robbers fled both scenes in one vehicle; and, if separate trials were ordered, the testimony would be repetitive. The Commonwealth did agree, however, the handgun charges should be severed. In an opinion and order entered September 29, 2010,
Jones also moved to suppress out-of-court identifications made by Carver and McDowell and to prevent anyone from making a courtroom identification. Defense counsel argued no one—not McDowell, Young, Jermaine, nor anyone else—had ever positively identified Jones from a photo pack. Counsel argued Jones was not arrested until Carver had persuaded police to focus on Jones and may have talked victims into believing Jones was involved in the robberies. Defense counsel argued the photo pack identifications were unreliable and would taint any subsequent in-court identification that might occur.
At a suppression hearing on July 1, 2010, defense counsel clarified she was not seeking to suppress the photo packs because neither Young nor Jermaine had identified her client, and McDowell had debated between two photos —Jones and another man—before finally settling on Jones. Counsel's goal was to prevent a witness from taking the stand and identifying Jones, sitting at defense table, as the black robber when the prior identification process had been so unreliable. The Commonwealth argued there had been no showing of an impermissibly suggestive identification procedure, and specifically, there had been no proof police action had tainted the viewing of the photo packs, making suppression inappropriate.
Detective Crouch was the only witness to testify at the hearing. Jones questioned him about an investigative report in which he had written, "all victims identified Carter and Jones." Such a statement contradicted the fact that neither Young nor Jermaine had identified Jones and McDowell had said he was just eighty percent certain Jones was the black robber. Counsel did not inquire about testimony Detective Crouch may have given to the grand jury, but a few days later, on July 7, 2010, moved for a reduction in bond because "Jones was never identified by a single witness in this matter, and that there were at least two (2) other suspects prior to Mr. Jones becoming a suspect." Counsel argued the only link between Jones and the crimes was the white laptop Jones had in his possession when he was arrested. When counsel filed the bond reduction motion, the laptop's serial number had not been confirmed as matching that of the laptop taken from the Keltee home, but a serial number match was subsequently confirmed.
During argument on the bond reduction motion on July 28, 2010, defense counsel stated the uniform citation, grand jury testimony and investigative report indicated all victims had identified Jones as one of the robbers when in reality, no victim had ever positively identified him as such. When the Commonwealth argued McDowell had said he was about eighty percent certain Jones was involved, Jones maintained Detective Crouch had urged McDowell to estimate his certainty, and while he did state a percentage, he really wasn't sure when he gave the eighty percent figure. Counsel also stated the victims and defendants knew one another, had talked with one another, and had "beefs" with one another. After reviewing the taped suppression hearing, the trial court issued an opinion and order on August 6, 2010, leaving bond as set because alleged irregularities in pretrial identification procedures have no bearing on the criteria for setting bond.
In an order entered September 21, 2010, the trial court viewed Jones's request for suppression as a motion in limine to exclude in-court identifications.
Trial began October 26, 2010, and concluded November 1, 2010. Jones asked the trial court to revisit the identification issue. The Commonwealth renewed its argument that the strength of the confrontations was a topic for cross-examination, but not suppression. The trial court denied the request.
At trial, McDowell revealed for the first time the black man's mask had slipped during a "tussle" exposing his eyes, nose and mouth. At trial, McDowell positively identified Carter and Jones as the two men who robbed him in the Beech Street home. Young did not testify at trial.
Jailah Keltee testified two men, both unknown to her, burst into her home when she answered a knock at the door. Both had handguns; the white man wore a ball cap, but no mask; a mask revealed only half of the black man's face; both men spoke to her, and the black man threatened her. Under cross-examination by Carter's attorney, Jailah stated she had told Detective Crouch she did not get a good enough look at the men to identify either one and she was never asked to view photos. Under questioning by Jones's attorney, Jailah testified she could see only the black man's eyes, but she remembered his mouth and nose. She admitted she was identifying Jones from her memory of having seen the black man's eyes and nose.
Jermaine testified a mask covered the black man's face from the nose down. The white man wore no mask. Jermaine recognized neither man and heard neither call the other by name. When Carver showed him a photo of a white man, he did not recognize the subject in the photo. Later, when Detective Crouch showed him a photo pack of six white males, he narrowed his selection to two pictures and ultimately settled on #5 which happened to be Carter—Jermaine stated he was only about seventy percent certain
McDowell testified he opened the door to his home around 11:00 p.m., intending to go to his car to retrieve a movie. As soon as he opened the door, two masked men put guns in his face. He stated he saw the white man "right off" and saw the black man's eyes, nose and mouth during a "tussle." He stated when he looked at the photo pack on January 26, 2010, he picked Carter immediately. Identifying Jones was more difficult. McDowell testified he was seventy percent certain Jones was the black robber, but knew he was right when he focused on the lower portion of the subject's face. Under cross-examination by Jones's counsel, McDowell testified Detective Crouch had told him to take his time in reviewing the photos. McDowell stated he was torn between two photos—one subject's weight was a better fit, but Jones's eyes were the best fit. When McDowell commented on facial hair, Detective Crouch cautioned him a man's beard may change daily. On redirect, McDowell identified both Carter and Jones in the courtroom as the robbers. On recross, McDowell testified, "I didn't tell [Detective] Crouch I was 100% sure, but I was."
When Detective Crouch testified at trial, Jones inquired about his statement to the grand jury, "all victims identified both suspects," and the statement in his investigative report, "[a]ll victims identified Carter and Jones." When questioned about the inaccuracy of these statements, Detective Crouch said it was a "typo." The grand jury testimony was never placed into the record, but the investigative report dated June 14, 2010, is part of the record.
Judgment was entered November 5, 2010. That same day, Jones moved for a new trial. Final judgment, denying the motion for a new trial and imposing concurrent twelve-year sentences on each robbery and concurrent seven-year sentences on the handgun charges, was entered December 17, 2010.
On January 14, 2011, a notice of appeal was filed. A second notice of appeal was filed by different counsel on January 18, 2011. On November 10, 2011, appellate counsel moved the circuit court to supplement the record with Detective Crouch's grand jury testimony. The Commonwealth filed a written objection, arguing the desired grand jury proceedings were never placed before the trial court and could not be added to the trial court record after the fact. On December 22, 2011, the trial court entered an opinion and order denying the motion because,
Thereafter, appellate counsel filed a notice of appeal contesting denial of the motion to supplement the record. These two appeals followed.
The direct appeal challenges the reliability of eyewitness identifications made early in the investigation from photo packs and at trial, whether the grand jury proceeding was so tainted by perjury it denied Jones due process of law, and whether the trial court erred in joining all the robbery charges against both defendants. We begin, however, with the second appeal which focuses on the trial court's denial of a motion to supplement the record with Detective Crouch's grand jury testimony—testimony Jones maintains was perjured and is essential to our complete understanding of the claim, but the Commonwealth argues was never considered by the trial court and therefore, cannot be considered by us.
Detective Crouch apparently testified before the grand jury that all witnesses identified Jones and Carter as the robbers. We say "apparently" because the testimony was never made part of the trial court record and therefore, is unavailable for our review. A similar statement, "All victims identified Carter and Jones," appears in Detective Crouch's investigative report which is part of the record. A quick review of the photo pack results shows the written statement and alleged testimony to be false—a flaw defense counsel exploited during suppression and bond reduction hearings, and emphasized to jurors during opening statement, cross-examination of Detective Crouch, and again in summation. Thus, it appears defense counsel had at least five opportunities to place the grand jury testimony into the trial court record, but did not.
Because Detective Crouch's grand jury testimony was never heard by the trial court, appellate counsel's post-conviction motion to supplement the record with the desired testimony prompted an objection from the Commonwealth. After a brief hearing, the trial court denied the motion to supplement stating it had no authority to grant the requested relief under CR 75.08 because there was no indication the testimony had been lost, destroyed or omitted by error or accident.
We agree. A trial court's authority to correct a record is limited to fixing omissions and misstatements. CR 75.08. Here, there was neither. Trial counsel did not seize the opportunity to place the desired testimony into the record at the appropriate time. Appellate counsel
Because the grand jury testimony about which Jones complains was not placed before the trial court during pretrial proceedings or trial, the trial court properly recognized it could not include those items in the record after judgment had been entered. Therefore, no error occurred and the trial court's ruling is affirmed.
We now turn our focus to the direct appeal and begin with the severance issue. Citing RCr 9.16, Jones claims he was denied due process by the trial court's decision to join all the robbery counts together rather than divide them by day and location. For RCr 9.16 to apply, however, it must appear a party "is or will be prejudiced by a joinder of offenses." Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993). Citing the common scheme or design language of KRE
We do not write on a clean slate. The Supreme Court found no error in Carter's direct appeal on this issue. We reach the same result on Jones's direct appeal. SCR
2013 WL 658121 *5 (footnotes omitted). Against that backdrop, the Supreme Court determined much of the evidence would overlap.
Id. (footnotes omitted). Just as Carter failed to demonstrate unreasonable prejudice and abuse of discretion, so too does Jones. The denial of severance is affirmed.
We move now to Jones's claim that the trial court erred in allowing two witnesses, Jailah and McDowell, to identify him in court. We begin with Jailah, whom Jones argues should not have been permitted to identify him as the black robber in court because throughout the investigation she maintained she could not identify anyone and was never shown a photo pack. Then, at trial, she "miraculously" pointed at Jones and Carter and proclaimed them to be the two men who burst into her home and robbed her and her father at gunpoint.
This issue presents a conundrum. Jones did not contemporaneously object to Jailah's testimony which generally means the alleged error is waived. To avoid waiving an error, a party must lodge a proper objection and seek a ruling on the objection. Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002); see also RCr 9.22. Jones claims he preserved the issue by filing a pretrial suppression motion that was argued on July 1, 2010. That motion stated in part:
Detective Crouch was the only witness to testify at the suppression hearing. In great detail he explained his investigation, concentrating mostly on the photo pack confrontations of Young, McDowell and Jermaine. Because Jailah was never shown a photo pack, she was not a focus of the motion or the hearing. Thus, we cannot say the motion or hearing sufficiently preserved this claim as to Jailah's testimony. Fischer, 348 S.W.3d at 588.
Were we to consider the claim we would deem it harmless error. RCr 9.24. We see merit in the Commonwealth's argument that the prosecutor did not ask Jailah to identify Jones in the courtroom—it just happened. A few minutes into Jailah's testimony, the following exchange occurred:
Jurors had much information to process in evaluating Jailah's nod toward the defense table and her words, "Them two." On direct examination she stated: she had never seen the men before that night; the white man wore no mask, but entered the home wearing a ball cap; the black man's face was partially obscured by a mask; the black robber threatened to beat her if they were not given money; she laid on the hallway floor about five minutes before being allowed to join her father in the bedroom; she could see what was happening as she laid on the floor; the white robber realized Jermaine could see his face; and, she did not see the men leave, but she heard a loud vehicle, probably a truck.
Under cross-examination by two defense attorneys, she testified: she did not know either man; because of the black man's mask, she saw only his eyes, but she remembered his mouth and nose; she did not get a good enough look at the men to identify them; she told Detective Crouch she could not identify anyone; she was never asked to view pictures of anyone; and, she identified Jones in court based on her memory of having seen his eyes and nose. In the absence of an objection or request for an admonition in the wake of Jailah's testimony, we simply cannot fault the trial court for not sua sponte taking corrective action.
Moreover, Jones bases his allegation of error on Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380 (1972), holding that upon review of the totality of the circumstances, jurors may still consider a reliable in-court identification that flows from a suggestive out-of-court confrontation. Neil is inapplicable to Jailah's testimony because she was never asked to view any photos before trial—thus, she was never subjected to an out-of-court confrontation—unduly suggestive or otherwise.
Jurors heard multiple times Jailah had not seen either robber before January 7, 2010; she did not get a good enough look at the robbers to be able to identify them; and, she viewed no photo packs. In contrast, for one fleeting moment, they heard Jailah say, "Them two," and nod toward the defendants. "Deciding whose version to believe and weighing witness credibility is entirely within the jury's discretion." Robinson v. Commonwealth, 325 S.W.3d 368, 370 (Ky. 2010). Having heard the full story, jurors still chose to convict and we have no reason to upset their verdict. Therefore, we discern no error and affirm.
Jones also argues it was error to allow McDowell to identify him at trial because when viewing the photo pack of six black males, he vacillated between a photo of Jones and a photo of another man, finally saying he could not positively identify anyone, but Jones's photo "closely resembles"
Just as Jones did not object to Jailah's in-court comment about Jones being one of the robbers, neither did he object to McDowell's in-court identification. However, the pretrial suppression motion adequately raised the issue to the trial court and preserved the issue for our review. Fischer.
Still, we agree with the trial court and conclude McDowell's identification of Jones was sufficiently tested by cross-examination. Detective Crouch testified he conducted all three photo pack confrontations. When McDowell viewed the first photo pack of six white males on January 21, 2010, he picked no one—an indication he was not trying to please police. He even stated at trial he did not pick anyone from the first pack of white males "because he wasn't in there."
When viewing the photo packs that included Carter and Jones on January 26, 2010, McDowell immediately selected Carter's photo, and estimated his certainty in choosing Jones's photo at eighty percent. At trial in late October 2010, McDowell revealed for the first time he had seen Jones's entire face when his mask slipped during a "tussle" and stated he was seventy percent certain he was right in picking Jones's photo based on the lower half of Jones's face. On cross-examination, McDowell admitted he initially debated between Jones and another man, but ultimately chose Jones based on his eyes. Jones alleges McDowell was inattentive or focusing on the handgun and did not get a good enough look at him to identify him. We disagree. It appears McDowell was sizing up the black male during the robbery and then compared his memory of the robber's body weight to the pictures in the photo array. Also, he was looking at Jones at the precise moment his mask slipped and revealed his entire face.
After hearing a tape recording of the photo pack confrontation, McDowell testified he was "eighty" percent certain Jones was the black man that had robbed him. This statement contradicted his prior testimony that he was "seventy" percent certain, but echoed the photo pack identification form he had signed on January 26, 2010, on which he had written the number "80" beside his initials. On redirect, McDowell positively identified both defendants by their clothing and location in the courtroom. On recross, McDowell testified, "I didn't tell Crouch I was 100% sure, but I was."
Grady v. Commonwealth, 325 S.W.3d 333, 353 (Ky. 2010). To determine if an independent basis of reliability exists, the court must consider, under the totality of the circumstances, five factors outlined by the United States Supreme Court in Neil 409 U.S. at 199-200, 93 S.Ct. at 382; see also King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004). "The five factors are: 1) 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 his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and confrontation." Id.
Here, the trial court found the use of the photo packs was not unduly suggestive, and we agree. First, there was no suggestion the photos included in the packs were themselves so disparate they suggested the target photo. Second, Detective Crouch told McDowell to take his time in viewing the photo packs and he did just that. Third, in considering all six subjects, some attributes drew McDowell's focus more than others. Eventually, he focused on eyes, facial hair and weight, and ultimately picked a photo of Jones. It matters not that he did not verbalize those attributes to Detective Crouch—he apparently knew the characteristics for which he was searching. Fourth, Jones argues Detective Crouch guided McDowell to select his photo. We disagree. In our view of the evidence, Detective Crouch did not tell McDowell which photo to pick nor how to gauge his certainty. Fifth, we do not find error in McDowell's certainty strengthening over time. "[A] witness's prior inability to identify a defendant goes to the credibility of the in-court identification and not to its admissibility, and thus raises a proper question of fact for the jury to determine." United States v. Briggs, 700 F.2d 408, 413 (7th Cir. 1983). Although trial occurred more than nine months after the robbery, McDowell was confident in identifying Jones as the black robber. Based on the totality of the circumstances, we conclude his in-court identification was reliable and the trial court did not abuse its discretion in denying the pretrial suppression motion.
Finally, Jones argues the trial court erred by not dismissing the indictment due to Detective Crouch giving perjured testimony to the grand jury— he allegedly stated all victims identified Jones and Carter as the robbers. While alleging error by the trial court, Jones admits he never sought dismissal of the indictment and seeks palpable error review under RCr 10.26.
Generally, a court will not go behind an indictment to scrutinize the quality or sufficiency of the evidence presented to the grand jury. Jackson v. Commonwealth, 20 S.W.3d 906, 908 (Ky. 2000); Commonwealth v. Baker, 11 S.W.3d 585, 588 (Ky. App. 2000). A court may only utilize its supervisory power to dismiss an indictment where a prosecutor knowingly or intentionally presents false, misleading or perjured testimony to the grand jury resulting in actual prejudice to the defendant. Id. (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988)). Jones has not demonstrated such a flagrant abuse of the grand jury process. See id. There is no proof the prosecutor deliberately presented false testimony to the grand jury.
Jones was indicted February 10, 2010. The Commonwealth provided a discovery packet to defense counsel on or about June 21, 2010. Included in that packet was an investigative report prepared by Detective Crouch with a date of June 14, 2010. That report stated in relevant part:
(Emphasis added). Counsel for Jones began questioning Detective Crouch about the inaccuracy in his grand jury testimony and the investigative report during a suppression hearing on July 1, 2010. The inaccuracy was also the basis for a bond reduction motion filed on July 7, 2010. Jones had ample time and multiple opportunities to seek dismissal of the indictment, but did not.
Trial counsel never alleged Detective Crouch had committed perjury and trial commenced. In opening statement, defense counsel stated Detective Crouch had told the grand jury all witnesses had identified Jones, followed by a comment that she was unsure if Detective Crouch was "confused or forgot." When cross-examined about it, Detective Crouch characterized it as a "typo." In summation, defense counsel quoted Detective Crouch as saying, "All victims identified both suspects." Thereafter, counsel said this would have been a "tremendous typing mistake," but it "wasn't a typo" and it "was not a slip of the keyboard." Counsel then stated she did not believe Detective Crouch had a "certain vengeance" for Carter and Jones, but to twice say everyone had identified Jones as the robber when no one had done so was a "huge mistake."
Based upon the foregoing facts, and defense counsel's characterization of the misstatement as a mistake rather than perjury, we conclude Jones acquiesced and allowed the indictment to go forward. Jurors were fully aware of the error and still voted to convict. The United States Supreme Court has held a petit jury's subsequent guilty verdict rendered harmless a violation of the rules governing operation of the grand jury. United States v. Mechanik, 475 U.S. 66, 73, 106 S.Ct. 938, 943 (1986). Despite knowing for several months the grand jury had received inaccurate information before indicting him, Jones took no steps to correct the mistake. We deem that acquiescence, discern no palpable error, and will not reverse. McGuire v. Commonwealth, 368 S.W.3d 100, 115 (Ky. 2012).
For the foregoing reasons, the judgment of conviction entered by the Jefferson Circuit Court, as well as its denial of a post-judgment motion to supplement the trial court record are affirmed.
ALL CONCUR.
