Christopher Boyd Johnson appeals, as a matter of right,
Johnson checked his brother, Tony Johnson, into a Louisville motel, paying around $200 in cash for Tony to stay there for a week. On the day Tony was supposed to check out of the motel, motel employees heard a gunshot and discovered Tony's body lying on the bed in his room. Tony died from a single gunshot wound. There were no signs of a forced entry and no defensive wounds on Tony. Recovered at the scene were a "Federal 40 S&W" cartridge case; three Doral cigarette butts bearing DNA traces that matched Tony's DNA profile; and floating in the toilet in Tony's room one Kool cigarette butt, bearing DNA residue that did not match Tony's DNA profile. Motel surveillance footage showed Johnson entering Tony's motel room at around 2:00 p.m. and leaving the room about 15 minutes later, a fact Johnson admitted. He admitted visiting Tony in his motel room on the day of his murder in order to give Tony $20, but Johnson denied murdering his brother.
A grand jury indicted Johnson for Tony's murder, for tampering with physical evidence, and with being a PFO 2. A circuit court jury found him guilty of all three charges and recommended a 34-year prison sentence. The trial court sentenced Johnson in accordance with the jury's recommendation.
At trial, Aric Dickerson, who was Johnson's friend, testified that on the evening of Tony's murder, he, Johnson, and Johnson's girlfriend at the time, Channell Kennedy, drove to Cox's Park. Johnson and Kennedy went for a walk while Dickerson stayed in the car. Dickerson testified that he saw Johnson walk down to the river at one point.
Kennedy testified that she did not go to the motel with Johnson on the day of the murder.
Kennedy further testified that she owned a .40-caliber Smith & Wesson gun and that the gun was at Johnson's house on the day of the murder. A police dive team recovered Kennedy's .40-caliber gun from the Ohio River at the location in Cox's Park identified by Dickerson and Kennedy. At trial, a firearm and tool-mark examiner with the Kentucky State Police confirmed that the cartridge case found at the murder scene was fired from the gun found in the Ohio River.
Johnson contends that the trial court's exclusion of certain evidence denied him his right to present a defense. Before trial, Johnson moved to introduce (1) Tony's criminal record regarding drug-related crimes, (2) the presence of cocaine in Tony's urine at the time of death, and (3) the presence of drug paraphernalia in the motel room where Tony was murdered. He attempted to introduce these items as evidence that Tony was involved in a drug culture and that his murder was a result of a failed drug deal. Johnson argued to the trial court that he should be allowed to introduce this evidence because individuals involved in the drug culture often find themselves involved in risky, life-threatening situations.
The trial court excluded Tony's criminal record and evidence of his drug use because it was highly prejudicial and had questionable probative value. The trial court ruled that the speculative nature of Johnson's alternative-perpetrator theory lessened the probative value of Johnson's proposed evidence, and the prejudicial effect of this proposed evidence greatly outweighed its probative value because of the risk that the jury would misinterpret and misuse the evidence.
On appeal, Johnson asserts that the trial court's ruling prevented him from presenting his theory that (1) Tony was attempting to buy more drugs from someone, but the transaction soured and (2) the drug dealer was the one who deposited the Kool cigarette butt into the toilet, had access to the gun that Tony possessed, and stole the $20 Johnson gave Tony on the day of the murder.
Under the United States Constitution and the Kentucky Constitution, an accused has a right to present a complete and meaningful defense.
Evidence must be relevant under Kentucky Rules of Evidence (KRE) 401 and pass the balancing test under KRE 403 to be admissible at trial. "In making a KRE 403 ruling, a trial court must consider three factors: the probative worth of the evidence, the probability that the evidence will cause undue prejudice, and whether the harmful effects substantially outweigh the probative worth."
Alternative-perpetrator evidence should be admitted when a defendant can show both motive and opportunity of a specific person who may have committed the crime.
The trial court did not abuse its discretion by excluding, under KRE 403, the evidence that Johnson sought to admit because Johnson's alternative-perpetrator theory is speculative. Johnson was allowed to argue to the jury that someone else killed Tony based upon the circumstantial evidence that someone else was in the room with Tony. But the theory that this alternative perpetrator was Tony's drug dealer and that the murder occurred in a drug deal gone awry is nothing more than speculation. "The mere fact that a murder victim may have used drugs, does not, without more, permit a reasonable inference that [his] murder was drug-related."
Johnson's alternative-perpetrator theory is also speculative because he fails to identify any specific individual as Tony's alleged murderer. "[I]n cases where this Court or its predecessor have addressed the [alternative-perpetrator] issue, the defendant has always been able to identify a specific person who may have committed the crime."
Johnson claims his case differs from Harris because a specific, tangible connection existed between the victim's drug habit and Johnson's alternative-perpetrator theory. We disagree. Although evidence exists that some person other than Tony was in his hotel room, it is too speculative to infer that this person was some unknown drug dealer who committed the murder simply because Tony used drugs and drug paraphernalia was found at the crime scene.
The trial court did not abuse its discretion by excluding the evidence under KRE 403 as highly prejudicial in light of its minimal probative value. Given the speculative nature of Johnson's alternative-perpetrator theory and its potential to distract and confuse the jury, its exclusion "did not amount to either an arbitrary or a disproportionate application of the relevance rules."
Johnson moved for a directed verdict on the murder and tampering with physical evidence charges at the close of the Commonwealth's case and renewed the motion at the conclusion of all the evidence. On appeal, Johnson argues that the trial court erroneously denied his motion because it was clearly unreasonable for the jury to find him guilty of the charges. Johnson claims that (1) the evidence produced at trial failed to exclude the possibility that someone else killed the victim, (2) the police did not conduct a thorough investigation, and (3) Dickerson's and Kennedy's testimony was unreliable. We hold that the trial court properly denied Johnson's motion for a directed verdict.
When ruling on a directed verdict, the trial court must view the evidence in favor of the Commonwealth.
Considering the circumstantial evidence in this case, it is not clearly unreasonable for a jury to find Johnson guilty of murder
We also reject Johnson's argument that he is entitled to a directed verdict because the Commonwealth failed to eliminate the possibility that someone else killed Tony. "It is not required, in order to sustain a conviction based on circumstantial evidence, that the evidence be such as to exclude every possibility of the defendant['s] innocence; it is sufficient if all of the circumstances, when considered together, point unerringly to the defendant['s] guilt."
The motel surveillance video shows Johnson enter Tony's room at approximately 2:00 p.m. on the day of the murder. Around 15 minutes later, the video shows Johnson leaving Tony's room at the same time that a motel employee emerges from a room on the floor above Tony's room. This motel employee testified that he heard a loud noise while he was working in a room on the second floor of the motel. When the employee heard the noise, he stepped out onto a landing and saw a heavy-set, black person exit the room where Tony's body was found.
An anonymous caller informed a detective working the investigation that the murder weapon was thrown into the Ohio River at Cox's Park and advised the detective to talk to Dickerson for more information. Dickerson testified that on the night of the murder, Johnson picked him up; and the two of them, along with Kennedy, went to Cox's Park. At one point, Dickerson saw Johnson walk to the river.
Kennedy also testified that she went with Johnson and Dickerson to Cox's Park on the evening of Tony's death. She testified that she stayed in the car while Johnson and Dickerson walked around outside and she saw one of the men approach the water. On separate occasions, Dickerson and Kennedy both took the police to the location in Cox's Park that they visited with Johnson. At this location, a police dive team discovered a gun in the Ohio River. This gun belonged to Kennedy, who testified that she brought the gun to Johnson's house on the day of Tony's murder.
In light of the evidence presented at trial, it would not be clearly unreasonable for a jury to find Johnson guilty of murder and tampering with physical evidence. We hold that Johnson was not entitled to a directed verdict.
Johnson argues he was denied his right to a fair trial when the trial court allowed the Commonwealth to introduce into evidence his mug shot. Although the Commonwealth raises a preservation issue, we will treat this claim as preserved. We find no error in the admission of Johnson's mug shot under these circumstances. And even if error occurred, it was harmless.
During the Commonwealth's case-in-chief, a detective testified that he obtained a photograph of Johnson from police headquarters to compare it to the person seen entering and exiting Tony's room on the motel surveillance footage. Johnson objected and moved for a mistrial because the detective's comment implied that Johnson had a criminal record.
Use of a mug shot can have a damaging effect on the accused's case because the jury can infer that the accused has been involved "in the toils of the law in some manner."
Under the three-prong test, the probative value of Johnson's mug shot outweighed the prejudicial effect. First, the Commonwealth demonstrated a need to introduce the photograph. The detective testified that Johnson looked different when he interviewed him in 2008 than he did at the time of trial. Johnson's appearance at the time of Tony's murder was pertinent because the detective identified Johnson as the individual seen on the motel surveillance video. Admittedly, the Commonwealth's need to introduce the photograph was limited. Johnson admitted that he is the person shown on the surveillance footage, and it does not appear that Johnson's appearance drastically changed from the time of the crime to the trial. But the Commonwealth was attempting to establish why the detective, in conducting the investigation, believed Johnson was the person in the surveillance video.
Second, the photograph did not imply that Johnson had a criminal record. It is not apparent from the face of the photograph that it is Johnson's mug shot. Third, the Commonwealth did not draw attention to the source of the photograph or imply that it is Johnson's mug shot. The detective's reference to obtaining a picture of Johnson from police headquarters occurred thirty minutes before the introduction of this picture. And it is not clear that the photograph introduced into evidence is the same one the detective retrieved from police headquarters.
Even if error occurred, it was harmless. The detective's comment that the photograph came from police headquarters was innocuous and did not necessarily mean that it was a mug shot. This comment occurred approximately thirty minutes before the photograph was introduced. And it is not clear whether the photograph the detective retrieved from police headquarters is the same photograph introduced at trial. We can "say with fair assurance that the judgment was not substantially swayed by the error[,]" making the error harmless.
For the foregoing reasons, we affirm the judgment of the trial court.
Minton, C.J.; Abramson, Cunningham, Noble, Scott, and Venters, JJ., sitting. All concur. Schroder, J., not sitting.
