KELLER, JUDGE:
A jury convicted Kieshon Renea Hawkins (Hawkins) of complicity to commit first-degree criminal possession of a forged instrument, complicity to commit theft by unlawful taking under $300, and being a second-degree persistent felony offender. The jury recommended a sentence of ten years and a fine of $67. The trial court entered a judgment and sentence consistent with the jury's recommendation, and Hawkins appeals that judgment. For the following reasons, we affirm.
On August 13, 2008, Nicole Villalon (Villalon) drove to Danny's Tobacco Barn (the Tobacco Barn) in Elizabethtown, Kentucky. Hawkins was a passenger in the front seat of the car and Frankie Barnett (Barnett) was a passenger in the backseat. At the same time, Ronald Phillips (Phillips) arrived at the Tobacco Barn in a separate vehicle with another man known only as "Taz".
Villalon, Hawkins, Barnett, and Phillips entered the Tobacco Barn. Once inside, Villalon purchased a $200 money order using six
Officer Fegett also viewed the store's surveillance footage and recognized Barnett. Officer Fegett then proceeded to the nearby residence of Ted Evans (Evans) to investigate. Barnett and Villalon were both at Evans's residence, and Officer Fegett interviewed them. Barnett was not charged; however, Villalon was arrested. Hawkins was arrested later that day and Phillips was arrested five days later.
On October 1, 2008, Hawkins was indicted for seven counts of complicity to commit first-degree criminal possession of a forged instrument, one count of complicity to commit theft by unlawful taking under $300, and being a persistent felony offender in the second degree. Hawkins was arraigned and entered a plea of not guilty. Villalon and Phillips were also indicted; however, both pled guilty prior to trial. As part of their plea agreements, Villalon and Phillips agreed to testify at Hawkins's trial. On June 22, 2009, Hawkins's case proceeded to trial. The pertinent testimony is summarized below.
At trial, Villalon testified to the following. On August 3, 2008, Villalon was at Evans's residence. Several people were also at Evans's residence, but Villalon only knew Evans. While at Evans's, Villalon decided she "wanted to go get some drugs." Hawkins, who was also at Evans's residence, told Villalon that she could assist Villalon with getting drugs. Hawkins then asked Villalon if she could have a ride to the store because she needed to get a money order. Villalon agreed because Hawkins agreed to help her get the drugs she wanted.
Villalon then drove Hawkins and Barnett to the Tobacco Barn. Villalon further testified that Hawkins gave her $200 to purchase the money order before they exited the vehicle. Upon arriving at the Tobacco Barn, Phillips and another man, who was also at Evans's residence, arrived at the Tobacco Barn in a separate vehicle. Once inside, Villalon went to the counter to purchase the money order with the $200 Hawkins gave her. When the store clerk said she needed additional money to cover the money order fee, Villalon turned to Phillips and said she needed "a little extra change for this money order you all need." Phillips then handed Villalon another $20 bill. Villalon received the money order and change, and then handed both to Phillips. Villalon then drove back to Evans's residence.
Phillips testified to the following. Phillips was also at Evans's residence on August 13, 2008. Phillips lived in Louisville and went to Evans's residence with a man named Taz whom he had met two weeks earlier. Phillips acknowledged that he may have touched the bills used in the transaction by Villalon. Phillips further noted that at one point he saw money passed between Taz and Hawkins, but he could not remember if it was before or after they went to the Tobacco Barn.
Phillips went to the Tobacco Barn with Taz at the same time as Villalon, Hawkins, and Barnett. Taz was driving Phillips's car and did not enter the Tobacco Barn with everyone else. Phillips testified that he had been drinking that day and was unable to recall much of what happed at the Tobacco Barn. However, he denied giving Villalon a $20 bill, and denied receiving the money order or change in the store from Villalon. However, Phillips testified that he did eventually receive the money order and cashed it at a liquor store on his way back to Louisville. He spent approximately fifteen dollars of the money order on beer and gave the change to Taz because "it was his money order."
On cross-examination, Hawkins's counsel asked Officer Fegett the following question: "During the course of your investigation . . . did Kieshon Hawkins ever buy any crack or anything for Nicole Villalon?" Officer Fegett answered, "I didn't get a chance to talk to Ms. Hawkins. She invoked her right to an attorney." After Officer Fegett made this statement, Hawkins's counsel asked to approach the bench and made a motion for a mistrial. The trial court denied the motion and then admonished the jury to not make any inference of guilt or innocence from the fact that Hawkins exercised a constitutional right to remain silent.
Hawkins's counsel continued to cross-examine Officer Fegett. Upon being questioned, Officer Fegett testified that Phillips had given him a possible address for Taz in Louisville. When asked why the information was not in his report, he stated the following:
Hawkins's counsel subsequently moved for a mistrial arguing that the address for Taz was exculpatory evidence, and that he would have conducted a further investigation had the address been provided in discovery. The trial court denied the motion and noted that the defense had the same information as the Commonwealth, which was that a man named "Taz" in Jefferson County came to Hardin County with Phillips, and could not be located.
At the close of the Commonwealth's case, Hawkins's counsel moved for a continuance of trial on the basis that Gilbert Humphrey (Humphrey), a witness for the defense, was hospitalized and was unable to testify. The trial court denied the motion finding that Humphrey's testimony was cumulative to other evidence that had been presented.
Barnett was the sole witness for the defense. Barnett testified that he was also at Evans's residence on August 13, 2008, and he did not see Hawkins give or receive any money at Evans's residence. He further testified that he went to the Tobacco Barn with Villalon and Hawkins and was a passenger in the back seat of the vehicle. Additionally, he testified that he did not see Hawkins give Villalon any money.
At the conclusion of the evidence, the trial court consolidated the seven counts of complicity to commit first-degree criminal possession of a forged instrument into a single count. The jury convicted Hawkins of complicity to commit first-degree criminal possession of a forged instrument, complicity to commit theft by unlawful taking under $300, and being a second-degree persistent felony offender. The jury recommended a sentence of ten years and a fine of $67. On August 11, 2009, the trial court sentenced Hawkins in accordance with the jury's recommendation. This appeal followed.
The issues raised by Hawkins have different standards of review. Therefore, we will set forth the appropriate standard of review as we address each issue.
On appeal, Hawkins makes three arguments. First, she argues that the trial court committed reversible error by denying her mistrial motion following Officer Fegett's comment that she had exercised her right to remain silent. Next, Hawkins argues that the trial court erred when it denied her motion for a mistrial because Officer Fegett's failure to include a possible address for Taz in his police report constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963). Finally, Hawkins argues that the trial court erred when it denied her motion for a continuance in order for Gilbert Humphrey to testify. We address each issue in turn.
On appeal, Hawkins first contends that the trial court committed reversible error by denying her mistrial motion following Officer Fegett's reference to Hawkins's exercise of her right to remain silent. "The standard for reviewing the denial of a mistrial is abuse of discretion." Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002).
As stated before, during cross-examination, Hawkins's counsel asked Officer Fegett the following question: "During the course of your investigation . . . did Kieshon Hawkins ever buy any crack or anything for Nicole Villalon?" Officer Fegett answered, "I didn't get a chance to talk to Ms. Hawkins. She invoked her right to an attorney." Hawkins's counsel moved for a mistrial. The trial court denied the mistrial motion and admonished the jury. Specifically, the trial court stated the following:
It is well-recognized that "evidence that a defendant exercised his right to remain silent should not be admitted at trial." Vincent v. Commonwealth, 281 S.W.3d 785, 790 (Ky. 2009) (citing Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L. Ed. 2d 91 (1976)). Yet, not every reference to an accused's invocation of his right to silence or to counsel is improper or reversible error. Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky. 1983). In this case, Officer Fegett's reference to Hawkins's invocation of her right to silence was improper. However, as noted by the Supreme Court of Kentucky in Vincent, admonitions are presumed to cure these types of errors unless one of two exceptions has been met:
281 S.W.3d at 790 (quoting Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003)).
We find Vincent to be instructive in determining whether one of these two exceptions applies. In Vincent, the Commonwealth asked the investigating officer if he had taken any further steps after interviewing the alleged victims in the case. In response, the officer replied, "I was unable to interview Mr. Vincent; he chose not to speak to me in reference to this, and that's the only other steps that were taken." Vincent moved for a mistrial. The court denied Vincent's motion and offered to admonish the jury. Vincent declined the admonition because he did not want to draw any more attention to the officer's comment. Id. at 789-90.
The Court concluded that neither exception to the presumption that an admonition would have cured any error applied. Specifically, the Court noted that the reference to Vincent exercising his right to remain silent was isolated and brief. Further the Court noted that the comment was not intentionally elicited by the prosecution. Thus, the Court concluded that the trial court did not abuse its discretion in denying the mistrial motion. Id. at 790.
Upon review, we note that Officer Fegett is an experienced law enforcement officer who was advised by the Commonwealth not to mention Hawkins's invocation of the right to remain silent.
Hawkins next argues that the trial court erred when it denied her motion for a mistrial because Officer Fegett's failure to include a possible address for Taz in his police report constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963). Hawkins further contends that the failure to provide this exculpatory evidence undermined her capacity to present a defense. Again, "the standard for reviewing the denial of a mistrial is abuse of discretion." Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002).
In Brady, the United States Supreme Court ruled that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S. Ct. at 1196-97. "Implicit in Brady's requirement of materiality is a concern that the suppressed evidence affected the outcome of the trial." Benjamin v. Commonwealth, 266 S.W.3d 775, 780 (Ky. 2008). "[E]vidence is considered material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the trial would have been different." Id. (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985)). With this said, the U.S. Supreme Court has clarified this position by holding that ultimately, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995).
Hawkins contends that, based on Phillips's testimony, Taz was implicated in the involvement of the counterfeit money. Thus, had she known that Officer Fegett had a possible address for Taz, she would have conducted a further investigation because it could have possibly led to the discovery of exculpatory evidence. Therefore, Hawkins argues that the Commonwealth committed a Brady violation by not disclosing the potential address for Taz. We disagree.
As stated in United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L. Ed. 2d 342 (1976), "[t]he mere possibility that an item of undisclosed evidence might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." Because Hawkins merely speculates that she could possibly have uncovered some exculpatory evidence if given the potential address for Taz, we conclude that she has not shown that the result would have been different. Thus, we reject Hawkins's Brady claim.
Furthermore, Hawkins was not deprived of her right to present her defense that someone else committed the crime. In fact, the record reflects that she did present her theory of Taz's involvement to the jury. During closing argument, Hawkins's counsel noted Phillips's testimony that Taz received the change after Phillips cashed the money order. Additionally, Hawkins's counsel argued that it was the "mysterious Mr. Taz" who was the "moneyman," not Hawkins. Thus, we concluded that Hawkins was not denied the right to present an alternative perpetrator defense. Accordingly, the trial court did not abuse its discretion in denying Hawkins's motion for a mistrial.
Hawkins's final argument is that the trial court erred in denying her motion for a continuance in order for Humphrey, an alleged material witness, to testify. We disagree.
On the second day of trial, Hawkins's counsel informed the trial court that a witness for the defense, Humphrey, was hospitalized. Hawkins's counsel stated that Humphrey was not going to be released any time soon, and was therefore an unavailable material witness. According to defense counsel, Humphrey would testify that he performed auto repairs for Phillips and Phillips gave him a counterfeit $100 bill on or around August 13, 2008, which is the date at issue in this case. The trial court indicated it would be in a better position to gauge whether Humphrey was a material witness after hearing Phillips's testimony.
At the close of the Commonwealth's case, Hawkins's counsel tendered an affidavit stating that Humphrey's testimony would be that Phillips "gave him a counterfeit $100.00 bill in payment for auto repair service performed for Phillips by Gilbert [Humphrey]. This occurred near 8-13-08." Hawkins's counsel argued that Humphrey's testimony supported Hawkins's defense that it was Phillips and not she that had the counterfeit money. The Commonwealth responded arguing that the testimony would be irrelevant or cumulative because Phillips testified that he possibly handled the counterfeit money and pled guilty to complicity to commit criminal possession of a forged instrument.
Hawkins's counsel moved for a continuance to allow Humphrey to testify, which the trial court denied. In denying the motion, the trial court noted that Humphrey's testimony, that Phillips possessed counterfeit money, was already admitted and acknowledged by Phillips during his testimony. Thus, the trial court concluded that Humphrey's testimony would be cumulative.
RCr 9.04 states that a continuance may be granted upon "sufficient cause shown . . . ." As stated in Fredline v. Commonwealth, 241 S.W.3d 793, 796 (Ky. 2007):
(Internal citations omitted).
We can see how the trial court characterized Humphrey's proposed testimony that Phillips possessed counterfeit money on or around August 13, 2008, as cumulative because Phillips testified that he pled guilty to complicity to commit criminal possession of a forged instrument as a result of the counterfeit money used at the Tobacco Barn. However, having reviewed Humphrey's testimony, we also note that while Humphrey pled guilty to the charge, he also testified that he did not have any counterfeit money, that he could have possibly had counterfeit money, or that he could not remember. In fact, Phillips could not remember most of the events surrounding the incident at the Tobacco Barn. Thus, we believe that Phillips's testimony lacked credibility and that it had little, if any, probative value. Therefore, based on Phillips's entire testimony, we cannot say that Humphrey's testimony that Phillips possessed counterfeit money on or around the time of the incident was cumulative.
However, Villalon testified that Phillips handed her a $20 bill in the Tobacco Barn to pay for the money order. Officer Fegett testified that all of the bills used by Villalon to pay for the money order were counterfeit. Therefore, based on the testimony of Villalon and Officer Fegett, Hawkins's defense that Phillips had counterfeit money was not completely hampered by Humphrey's absence. See Estep v. Commonwealth, 663 S.W.2d 213, 216 (Ky. 1983) (concluding that expected testimony from an absent witness as set forth in affidavit would be cumulative, thus no prejudice). Thus, under all the circumstances, the denial of the continuance was nonprejudicial and the trial court did not abuse its discretion.
For the foregoing reasons, the judgment of the Hardin Circuit Court is affirmed.
ALL CONCUR.
