Date: 02-19-2016

Case Style: EDWIN RUSSELL III V. COMMONWEALTH OF KENTUCKY

Case Number: 2013-SC-000811

Judge: Lisabeth T. Hughes

Court: Kentucky Supreme Court

Plaintiff's Attorney: Andy Beshear, Jeffrey Allan Cross

Defendant's Attorney: Roy Alyette Durham II

Description: The. Appellant, Edwin Russell III, was convicted of complicity to murder,
attempted murder, and two counts each of first-degree robbery, first-degree
burglary, and first-degree wanton endangerment, for which he was sentenced
to a total of twenty-five years in prison. He raises three claims of error in this
matter-of-right appeal: (1) that he was entitled to directed verdicts on the
wanton-endangerment charges; (2) that a recording of the deceased victim's
interview with police was erroneously admitted; and (3) that the
Commonwealth was erroneously allowed to impeach its own witness with a
prior recorded statement. This Court concludes that there was insufficient
evidence to sustain one of the wanton-endangerment convictions and that
Russell was entitled to a directed verdict of acquittal on that charge. Because
the sentences for each conviction were all run concurrently, the reversal of the
wanton-endangerment conviction's one-year sentence has no effect on the total
sentence. And finding no other grounds for reversal, Russell's other convictions
and total sentence are affirmed.
I. Background
Edwin Russell and Amanda Jett previously dated and lived together for
nearly two years. During their relationship, Russell visited Amanda's parents'
home on numerous occasions. Russell also purchased a car for Amanda in his
name and made the payments while they remained a couple. Amanda moved in
with her parents (Richard and Sharon Jett) after the relationship ended in
2006, and she was supposed to make the payments on the car, which was
eventually repossessed after she failed to do so. She also reportedly continued
using Russell's personal debit card. Russell threatened Amanda with legal
action to recover the amount owed on the repossessed car and the money she
spent from his checking account. After Amanda complained to the county
attorney about Russell's persistent calls demanding the money he believed she
owed him, however, local law enforcement became involved and sent Russell a
series of cease-and-desist letters. Russell ceased all contact with Amanda. His
feelings of entitlement to repayment by Amanda, however, apparently remained
a frequent topic of conversation with his friends and others.
In mid-November 2011, while Russell was working in his pool hall and
bar in Hopkinsville, Kentucky, he overheard a man, Richard Phipps,
complaining to others about his wife's attempts to take all his money. Russell
interjected with his own tale of a girl from Mayfield (i.e., Amanda) who owed
him money. Phipps suggested that Russell should do something to get his
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money back. Russell replied that the girl was broke but that he knew her
parents, Richard and Sharon, kept thousands of dollars in cash at their house
under their bed, along with many weapons. According to Phipps, in the weeks
that followed, Russell reportedly mentioned, without naming, the Mayfield girl's
family numerous times and eventually proposed robbing them.
On February 15, 2012, Russell exchanged text messages with Phipps
regarding their plan to rob the Jetts. Later that evening, Russell picked up
Phipps and his cousin, James Kirby, and drove them to Mayfield. Surveillance
footage confirmed that along the way, the trio stopped at several convenience
stores, where they acquired pantyhose, gloves, tape, and mace. Phipps testified
that Russell supplied him with a gun.
When they arrived in Mayfield, Russell drove them to the Jetts' house,
where Phipps and Kirby got out of the vehicle armed with the gun and mace.
According to the robbers, Russell had agreed to wait for them and be their
getaway driver, but he drove away once they exited his truck.
A few minutes past midnight, February 16, nearly all the members of the
Jett family, including Amanda, her 23-month-old son, and her mother, were
asleep at their home. The patriarch, Richard Jett, was still awake when Phipps
and Kirby knocked on the door, and he grabbed his gun before opening the
door. Phipps and Kirby then invaded the home, struggled with Richard,
sprayed him with mace, took his gun, and shot him in the torso.
Upon hearing the disturbance in the living room, Amanda jumped out of
bed and ran to her bedroom door. She opened the door, looked down the
hallway in the direction of the living room, and saw Phipps pointing a gun at
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her father. As she turned to shut the door, a bullet hit the firearms case near
her at the end of the hall, shattering its glass. Amanda then moved back into
her bedroom, huddled with her son who had also been asleep in her bed, and
called 911.
Diagonally across the hall from Amanda's room, her mother, Sharon, lay
in bed, listening to the commotion outside her bedroom door. She heard
Richard yell for her to grab her gun, and she complied. Phipps and Kirby then
moved into Sharon's room where a shootout ensued. During the exchange,
Sharon shot Phipps in the arm, while she was shot multiple times in her legs.
After emptying the magazine of her own gun, Sharon lay on the mattress with
her eyes open, pretending to be dead. Apparently believing her to be dead,
Phipps and Kirby ignored her and searched under the bed, retrieving a metal
lockbox. They took the lockbox and fled the scene without further searching
the bedroom or anywhere else in the house.
After being shot, Richard escaped through the front door and went next
door, where his neighbors called 911. During the break-in, a bullet also struck
an exterior wall of the next-door neighbors' house without penetrating into the
interior.
Emergency personnel soon arrived and transported Richard and Sh .aron
to the hospital. Although Sharon survived her multiple gunshot wounds,
Richard died of complications from his injuries a few days later.
When fleeing the scene with Kirby, Phipps dropped his gun in the grass
outside the Jetts' house; according to Phipps, Russell had given him the gun to
use in the robbery. Phipps and Kirby hitchhiked out of town, but police
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apprehended them the following morning. When police found the gun Phipps
dropped at the scene, they determined it had previously been reported by
Russell as stolen during a break-in at his Todd County house weeks earlier.
And once Phipps and Kirby were apprehended, they informed detectives of
Russell's involvement, leading to Russell's arrest.
About an hour after leaving Phipps and Kirby at the Jetts' residence,
Russell sent one of his bar employees, Brian Dossett, a text message that read,
"If any one ask tell them i stayed the night with u from 7-8pm till lam."
Dossett did not see the text until the following morning, and when he asked
Russell about it, Russell told him that he had driven to Mayfield and dropped
Phipps off at the house but that he left when he heard shots fired. Dossett told
Russell he did not want to have any involvement in the matter and refused to
be an alibi witness.
Upon being taken into custody, Russell initially denied any involvement
in the robbery. Eventually, he admitted driving Phipps and Kirby to the Jetts'
home but claimed Phipps forced him to do so by holding him at gunpoint. He
denied plotting with the men to rob the Jetts and denied giving Phipps the gun.
Both Phipps and Kirby testified for the Commonwealth at Russell's trial
consistent with the facts as recited above.
Russell was charged with complicity to the murder of Richard Jett,
attempted murder of Sharon Jett, first-degree wanton endangerment of
Amanda Jett and her son and the couple next door whose house was struck by
a bullet (four counts), first-degree robbery (two counts), and first-degree
burglary (two counts). He was acquitted of the two counts of complicity to first-
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degree wanton endangerment related to the neighbors but was found guilty on
all other counts. The jury recommended concurrent prison sentences of
twenty-five years for murder, ten years for attempted murder and for each
robbery and burglary conviction, and one year for each wanton-endangerment
conviction. The trial judge sentenced Russell in accordance with the jury's
recommendations for a total of twenty-five years' imprisonment.
He now appeals as a matter of right. See Ky. Const. § 110(2)(b).
Additional facts will be developed as needed in the discussion below.
II. Analysis
A. Russell was entitled to a directed verdict for one of the complicity-to-wanton-endangerment charges.
Russell argues that he was entitled to directed verdicts on the two
charges of complicity to first-degree wanton endangerment relating to Amanda
Jett and her son. This claim was partially preserved by Russell's motion for a
directed verdict for the charge related to the child. But, as he concedes, he did
not move for a directed verdict as to Amanda and thus requests palpable error
review of that portion of his claim. See RCr 10.26.
When faced with a motion for a directed verdict, a trial court "must draw
all fair and reasonable inferences from the evidence in favor of the
Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
The court must "assume that the evidence for the Commonwealth is true, but
reserv[e] to the jury questions as to the credibility and weight to be given such
testimony." Id. It should not grant a directed verdict "[i]f the evidence is
sufficient to induce a reasonable juror to believe beyond a reasonable doubt
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that the defendant is guilty." Id. And on appeal, a defendant will be entitled to a
directed verdict of acquittal only if the reviewing court determines "under the
evidence as a whole, it would be clearly unreasonable for a jury to find
guilt." Id.
A person is guilty of first-degree wanton endangerment "when, under
circumstances manifesting extreme indifference to the value of human life, he
wantonly engages in conduct which creates a substantial danger of death or
serious physical injury to another person." KRS 508.060(1). Of course, Russell
was charged with and convicted of being complicit in these offenses, the actual
commission of which was perpetrated by Phipps and Kirby. See
KRS 502.020(2) ("When causing a particular result is an element of an offense,
a person who acts with the kind of culpability with respect to the result that is
sufficient for the commission of the offense is guilty of that offense when he: (a)
Solicits or engages in a conspiracy with another person to engage in the
conduct causing such result; or (b) Aids, counsels, or attempts to aid another
person in planning, or engaging in the conduct causing such result ...."). So we
must consider the principals' actions and surrounding circumstances in
analyzing the sufficiency of the evidence of the alleged wanton endangerment.
In claiming that he was entitled to directed verdicts on the wanton
endangerment charges, Russell argues only that the evidence did not show that
his actions—or again, more accurately, the actions of the principal actors,
Phipps and Kirby—created a sufficient danger to Amanda and her son to
constitute the offense under the statute. That is, he contends that the wanton
conduct (the break-in and shooting) did not subject Amanda and her son to a
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substantial danger of death or serious physical injury because they were in a
different room in the house when the wanton conduct occurred. And for
support, he cites Swan v. Commonwealth, 384 S.W.3d 77, 103-04 (Ky. 2012),
in which this Court held that a co-defendant was entitled to a directed verdict
on a charge of first-degree wanton endangerment where the alleged victim had
been hiding in the back bedroom of a house when the wanton conduct
(brandishing and firing a handgun) occurred at the front of the house.
First, it is easy to dispense with Russell's claim as to Amanda Jett. A
bullet being fired down a hallway in the direction of a person standing in a
doorway at the end of that hallway undoubtedly creates a substantial danger of
killing or seriously injuring that person. Therefore, Russell would not have
been entitled to a directed verdict on the wanton-endangerment charge related
to Amanda had he asked for it. Because the evidence was sufficient to sustain
that conviction, there is no error and certainly no palpable error.
However, whether the evidence was sufficient to sustain the wanton
endangerment conviction with respect to the child is a closer question and one
we answer in the negative. The circumstances surrounding the alleged
endangerment to the child here are not dissimilar to those in Swan. As was the
case in Swan, the alleged victim here was in the back bedroom of the house
throughout the entire episode while the shooter—whose wanton acts of firing
down the hallway into the gun case and shooting Sharon Jett in her bedroom
served as the bases for the charge—was located on the other side of the house.
Several interior walls separated them. Indeed, another bedroom and a closet
were between Phipps and the child when he fired down the hallway at Amanda,
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and at least two interior walls were between them when he shot Sharon. And
none of the bullets—neither the one shot straight down the hallway and into
the gun cabinet nor those shot at Sharon in her bedroom—were fired in the
direction of the child.
Even viewing the aforementioned circumstances in the light most
favorable to the Commonwealth, we simply cannot say that the child was
subjected to a substantial danger of death or serious physical injury. To do so
would require assuming a fantastical flight path of the bullet, with a highly
unlikely combination of ricochets and passing through walls and other
intermediary materials.
Simply put, the child was never in substantial danger from the shots
fired. Of course, this Court has previously recognized the possibility that a
bullet might ricochet or pass through a wall, see Hunt v. Commonwealth, 304
S.W.3d 15, 38 (Ky. 2009), but "th[at] danger ... is not endless," Swan, 384
S.W.3d at 103. So, consistent with the limited danger of bullets ricocheting or
passing through walls and the need to "draw the line somewhere," id., we
conclude that the child was not subjected to a substantial danger of death or
serious physical injury. The proof in this case falls on the same side of that line
as the proof in Swan. The crime of wanton endangerment must be understood
to have actual danger as its gravamen—not possible or fantastical danger.
Therefore, this Court must conclude that no reasonable jury could have
found that Amanda Jett's child was exposed to the requisite level of danger to
constitute first-degree wanton endangerment. Russell was thus entitled to a
directed verdict of acquittal on that charge, and his conviction and one-year
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sentence on that count is reversed accordingly. This reversal has no effect on
his overall sentence of twenty-five years, however, because the trial court
ordered his sentences be run concurrently.
B. Admission of deceased victim's recorded interview with police violated Russell's confrontation rights but was harmless beyond a reasonable doubt.
The trial court allowed the Commonwealth to introduce, over defense
objection, an audio recording of police questioning Richard Jett about the
robbery and shootout that was taken, on the night of the incident while he was
in the hospital awaiting surgery. The court overruled Russell's hearsay
objection to the recording, finding that it fell within either the "dying
declaration" exception to the rule against hearsay, see KRE 804(b)(2), 1 or the
excited-utterance exception, see KRE 803(2).2 Russell argues that this was
error and that the admission of the recording violated his rights under the
Sixth Amendment's Confrontation Clause.
While the parties devote the majority of their arguments in the briefs to
whether Jett's recorded statement was a dying declaration or excited utterance
and thus exempt from the rule against hearsay, whether the recording satisfied
one of the hearsay exceptions is immaterial because the Confrontation Clause
should have barred its admission even if the hearsay rule would not. In this
1 KRE 804(b)(2) provides that "a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be his impending death" is not excluded by the hearsay rule if the declarant is unavailable to testify.
2 KRE 803(2) provides that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule irrespective of the availability of the declarant as a witness.
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regard, Russell makes the mistake of arguing that because the recording does
not fit under any of the hearsay exceptions, its admission violated his
confrontation rights. This is incorrect because a Confrontation Clause violation
occurs by the admission of a particular out-of-court statement irrespective of
what the rules of evidence might say about that statement's admissibility.
The United States Supreme Court's watershed case, Crawford v.
Washington, 541 U.S. 36 (2004), redefined the admissibility of out-of-court
testimonial statements in criminal prosecutions. Since that decision, whether
there has been a constitutional violation turns not on whether the statement
might otherwise be allowed under the rules of evidence. See id. at 61 ("Where
testimonial statements are involved, we do not think the Framers meant to
leave the Sixth Amendment's protection to the vagaries of the rules of evidence
...."). Instead, whether the Confrontation Clause is violated turns on whether
the defendant had an opportunity for cross-examination. See id. at 68-69. As
we have previously recognized, "the Confrontation Clause of the Sixth
Amendment forbids admission of all testimonial hearsay statements against a
defendant at a criminal trial, unless the witness is unavailable and the
defendant has had a prior opportunity for cross-examination." Bray v.
Commonwealth, 177 S.W.3d 741, 743 (Ky. 2005) (citing Crawford, 541 U.S. at
68), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336
(Ky. 2010). And the lynchpin in determining whether hearsay statements
implicate a defendant's confrontation rights is whether the statements are
"testimonial."
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Although determining whether a particular out-of-court statement is
testimonial or non-testimonial can often times prove difficult, that is not the
case here. Even though the Crawford Court "le[ft] for another day any effort to
spell out a comprehensive definition of 'testimonial,'" 541 U.S. at 68, it did not
hesitate to note that the term "applies at a minimum ... to police
interrogations," id. When the Supreme Court later narrowed that broad
assertion by holding that statements made to police are non-testimonial when
the primary purpose of the interrogation is to respond to an ongoing
emergency, it nevertheless made clear that such statements "are testimonial
when the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution." Davis v.
Washington, 547 U.S. 813, 822 (2006).
With that in mind, it is clear that the primary purpose of Jett's police
interrogation, which took place hours after the shooting and robbery when he
was in the relative safety of a hospital, was to acquire information about the
past events and circumstances in the hopes of prosecuting the perpetrators of
those crimes, rather than to enable police to meet an ongoing emergency. Cf.
Michigan v. Bryant, 562 U.S. 344, 374-78 (2011) (holding that declarant's
dying-declaration statements to police, minutes after being shot, identifying his
assailant were non-testimonial because the primary purpose of questioning
was to assist police in responding to an ongoing emergency posed by the
fleeing, armed assailant). Thus, we have no difficulty in concluding that the
recorded statements here were testimonial hearsay. And since there was no
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opportunity for cross-examination, the Sixth Amendment should have barred
the recording's admission under Crawford.
Because admitting the recording violated Russell's rights under the Sixth
Amendment's Confrontation Clause, we apply the harmless-constitutional
error standard laid out in Chapman v. California, 386 U.S. 18 (1967), to
determine whether that violation requires reversal. Thus, the bar for finding
harmlessness here is much higher than for non-constitutional errors. That is,
"before a federal constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable doubt." Id. at
24. The reviewing court must be convinced "beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained." Id. And
"[t]he State bears the burden of proving that an error passes muster under this
standard." Brecht v. Abrahamson, 507 U.S. 619, 630 (1993).
This Court is convinced that this is one of those rare cases in which that
high burden is easily satisfied. Richard Jett's out-of-court statements related
solely to his recollection of the events of the night of the robbery. Significantly,
Jett never mentioned Russell or any facts remotely relevant to his alleged
complicity in the robbery plot. At the time of Jett's interview, police had not yet
suspected Russell of any involvement in the crime, nor were they yet aware of
his connection to the Jett family vis-à-vis his prior relationship with Amanda.
So it comes as no surprise that Jett's recorded statements to police have
nothing to do with Russell whatsoever. Instead, in response to police
questioning, Jett did no more than describe the immediate circumstances
surrounding the break-in and recall the burglars' actions and his own in
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defending against their intrusion. Although the recording tended to prove that
the principal crimes occurred, a wealth of other properly admitted evidence did
the same thing. Substantially all of the facts and circumstances mentioned by
Jett on the recording were proved by other evidence, including the testimony
from the principal actors, Phipps and Kirby, admitting the crimes.
In light of the large amount and nature of the other evidence proving the
commission of the charged crimes, and that the recording did nothing to
establish Russell's complicity in those crimes, this Court is convinced beyond a
reasonable doubt that the testimonial hearsay statements did not contribute to
the jury's guilty verdict. We have no doubt that Jett's recorded statements
played no part in the jury's decision to find Russell guilty of being complicit in
the robbery plot and the actions taken by Phipps and Kirby in furtherance of
that plot. Thus, the error was harmless beyond a reasonable doubt.
C. Admission of witness's prior inconsistent statement was not reversible error.
During the direct examination of Richard Phipps, the Commonwealth
was permitted to introduce a portion of Phipps's recorded statement to police,
over Russell's objection. Russell argues this was error because the
Commonwealth failed to establish that the prior statement was inconsistent
with Phipps's testimony to allow it to be used for impeachment under
KRE 801A(a)(1) and failed to lay the foundation required under KRE 613.
The Commonwealth asked Phipps several questions about whether
Russell had told him and Kirby what to expect when they arrived at the Jetts'
residence. While initially responding in the negative, Phipps eventually
14
answered: "[Russell] said [the Jetts] might not just give [the money] up or
whatever." The . Commonwealth moved to introduce a portion of Phipps's
recorded interview with police where he stated that Russell had advised them
that the Jetts had guns and that they might have to kill them to get the money.
Defense counsel objected, arguing that Phipps had not made an inconsistent
statement but had only not remembered the prior statement. The trial court
found the statement was inconsistent and allowed it to be played for the jury.
After the recording was played in court, the judge called another bench
conference to ascertain whether the recording was being played for
impeachment purposes or to refresh the witness's recollection. When the
parties advised it was for impeachment, the judge questioned whether a proper
foundation had been laid. To answer the trial court's concerns, the
Commonwealth asked Phipps whether he remembered making the statement,
when he made it, and who was present when he made it. After answering those
questions, Phipps testified, consistent with his recorded statements, that
Russell had told him and Kirby that the Jetts were stubborn and might not
easily give up the money and that they might need to shoot them.
While Russell continues to maintain that impeachment was improper
because Phipps's prior statement was not inconsistent with his trial testimony,
he does not actually advance any argument specifying how Phipps's trial
testimony described above was not inconsistent with the recorded statements
to police about how Russell warned them that they may need to shoot the
Jetts. Instead, he merely contends that the Commonwealth never established
any inconsistency because it never asked him if he made the prior statement
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and did not comply with the requirements for laying a foundation in KRE 613
before playing the recording. He argues that because the procedures required
to impeach a witness with a prior statement as laid out in KRE 613 were not
strictly complied with, Phipps was not properly impeached. And this improper
impeachment, according to Russell, requires reversal. We disagree.
Russell is correct that the Commonwealth did not lay a foundation before
it introduced the recording to impeach Phipps. KRE 801A(a)(1) allows a
testifying witness's prior statement to be admitted if it is inconsistent with his
testimony at a trial or hearing provided the witness "is examined concerning
the statement, with a foundation laid as required by KRE 613." Thus, "before
other evidence can be offered of the witness having made at another time a
different statement, he must be inquired of concerning it, with the
circumstances of time, place, and persons present, as correctly as the
examining party can present them." KRE 613. There is no dispute that the
Commonwealth failed to lay such a foundation before offering Phipps's prior
recorded statement.
But Russell failed to raise this to the trial court below. Instead, as noted
above, the trial court itself raised this concern after the recording had been
played and, as a result, the Commonwealth ultimately did satisfy the
foundation-laying requirements of KRE 613, albeit belatedly so. Thus, we have
difficulty surmising any error in the introduction of the recording other than
perhaps a technical one in laying the proper foundation out of order.
In any event, even if we could find error in the admission of the
recording, Russell has failed to demonstrate how it prejudiced him in any way.
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Not only did Phipps eventually testify to the accuracy of the statements after
the Commonwealth cured its failure to lay a foundation, but Kirby also testified
to Russell having made those statements to him and Phipps in the lead-up to
the robbery. And to be sure, because he testified for the Commonwealth
against Russell, any pall cast on the credibility of Phipps's testimony by the
alleged improper impeachment would have been to the Commonwealth's
detriment rather than Russell's. So in that regard at least, the complained-of
impeachment is more likely to have benefitted rather than prejudiced him.
Thus, this Court has no trouble concluding that, whether error or not, the
admission of the recorded statement was harmless and certainly does not
warrant reversal.

Outcome: Because the evidence was insufficient to support the conviction of first
degree wanton endangerment of Amanda Jett's son, that conviction is reversed,
which does not affect Russell's total sentence because its one-year sentence
was run concurrently with the longer sentences on the other convictions. The
remaining convictions and total sentence of twenty-five years' imprisonment
are affirmed, and this matter is remanded to the circuit court for entry of a new
judgment consistent with this opinion.

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