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Date: 11-07-2017

Case Style:

PERCY ISAAC AIKENS V. COMMONWEALTH OF KENTUCKY

Case Number: 2016-SC-000306-MR

Judge: MEMORANDUM OPINION OF THE COURT

Court: Supreme Court of Kentucky

Plaintiff's Attorney: Andy Beshear
Attorney General of Kentucky

Margaret Gigandet
Assistant Commonwealth Attorney

Defendant's Attorney: Robert Chung-Hua Yang
Assistant Public Advocate

Description: Appellant was inqicted for committing fourteen crimes: eight counts of
first-degree robbery, one count of first-degree burglary, and five counts of
second-degree burglary. These crimes were alleged to have occurred at eight
different locations in Hopkinsville, Kentucky, over a seven-month period,
including twice at one residence. A jury found Appellant guilty of one count
first-degree robbery, one count first-degree burglary, and four counts second
degree burglary. His claims of error stem from his convictions for the June
2003 first-degree robbery and first-degree burglary at the Allen residence, the
October 2003 second-degree burglary at the same Allen residence, the second
degree burglary at the Moss residence, and the second-degree burglary at the
Deasy residence·.
In June 2003, Karla Allen was at her home in Hopkinsville with her one
year-old daughter when she heard a knock at the door. She opened the door to
see a man standing before her with a semi-automatic firearm. She tried to ·
shut the door, but he forced his way inside. Allen complied with the intruder's
demand for cash; he left the residence with approximately $262.00 of Allen's
money.
In October 2003, while the Allens were away, their home was burglarized
a second time. They returned home to find the back door kicked in,
possessions strewn about, and the refrigerator open. Several items were
2
missin~, including a number of video games and game players, a video camera,
and other electronic entertainment devices.
In August 2003, the Mosses returned to their home· in Hopkinsville and
heard someone in their bedroom. When Mr. Moss tried to open the door, it was
locked. He then heard someone leaving through the bedroom window, but was
unable to see the intruder. The bedroom window was broken, and the screen
was cut and bent. Furniture was damaged from the rock that was thrown
inside. Cash was missing from the room ..
In October 2003, the Deasys returned home to find the outside door
leading into the master bedroom kicked in. The bedroom was in disarray. Mr.
Deasy's watch and Mrs. Deasy's ring and prescription medicine were missing.
Appellant admitted to police that he broke into these residences. He
made a recorded statement as he accompanied police to the scenes of his
crimes. He identified the Allens' apartment as a place he "got" twice, the first
time taking a PlayStation 2 and a Gameboy. He identified the Mosses' home as
the place from which he took about $600.00. He identified the Deasys'
residence as the place he. kicked in the back door and took a pair of earrings
~ and a watch. This recording was played for the jury.
All of Appellant's claims of trial er:ror were preserved for appellate review.
He argues that even if the individual errors do not support his claim for
reversal of his convictions, their cumulative effect resulted in reversible error.·
Each claim is addressed in turn.
3.
II. ANALYSIS
A. Admission of victim impact testimony during the guilt phase was harmless error. · ·
KRS 532.055(2)(a)7 permits the Commonwealth to present in the
sentencing phase of the trial evidence of the crime's impact upon the victim,
including the nature and· extent of any physical, psychological, or financial
harm suffered by the victim. However, in the guilt phase of Appellant's trial,
the Commonwealth posed this question to a teary-eyed victim-witness, Ms.
Allen: "[T]his is hard on you to relive this Eµld go through this, isn't it?" The
trial court overruled Appellant's request to strike her affirmative response.
Appellant contends that this amounted to the improper use of victim impact
evidence during the guilt phase, which by arousing the jury's sympathy for the
victim, resulted in an unfair trial.
We agree that the prosecutor's question attributed Allen's apparent
anxiety on the witness stand to the emotional or psychological impact of
"reliving" the crime, and was, therefore, improper during the guilt phase.2
Nevertheless, we are constrained to regard Allen's response as harmless error.
Allen was obviously having some discomfort in her role as a witness in court;
this very brief pause in an otherwise relevant description of events was not
unduly sympathetic. Moreover, Appellant had admitted that he twice
~ burglarized Allen's residence, so it is inconceivable that sympathy for Allen had
a prejudicial impact on Appellant.
2 The inquiry was also an improper leading question.
4
' '
Under the harmless error rule, RCr 9.24, we disregard evidentiary errors
that do not affect the· substantial rights of the parties. We can say with fair
assurance that the jury's verdict that Appellant was guilty of robbing Allen and
burglarizing her home was not substantially swayed by hearing Allen
acknowledge her distress at having to "relive" the crimes as she explained them
to the court and jury. Winstead v. Commonwealth, 283 S.W.3d- 678, 688-689
(Ky. 2009).
B. The trial court did not abuse its discretion by not allowing entry of aaltperp evidence.
Another burglary victim, Mr. Moss, testified that the day after the
burglary of his home, while at his place of business, he saw "some kids or
somebody" running down the nearby railroad tracks and getting into a small
red car that was moving slowly along the tracks. The persons he observed
seemed to be excited. The situation made him feel "uneasy" and he thought it
may have so.me connection to the recent burglary of his home, which lay along
the same railroad tracks. He reported his concern to police.
The bi.al court found that evidence to be irrelevant and sustained the
Commonwealth's objection to it, which on appeal, Appellant complains was an
abuse of discretion. He contends that Moss's observation was relevant to show
that someone other than himself, an aaltperp, was acting suspiciously and had
access to the railroad tracks which not only connected Moss's home and
business, but also went by the Allen and Deasy residences. An abuse of
discretion occurs when the trial judge's decision is arbitrary, unreasonable,
5
unfair, or unsupported by sound legal principles. Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
When deciding whether to admit aaltperp evidence, the trial court must
assess its relevancy under KRE 401 and determine whether the proffered
evidence.has probative value that substantially outweighs its risk of undue
prejudice, confusion of the issues, or misleading the jury under KRE 403.
Gray v. Commonwealth, 480 S.W.3d 253, 267 (Ky. 2016). To pass this
b~ancing test, there must be "some logical, ·qualifying information to enhance
the proffered evidence beyond speculative, farfetched theories that may
potentially confuse the issues or mislead the jury." Id. at 268. Moss's
observation does not contain any logical, qualifying information to lift
Appellan_t's aaltperp theory beyond the level of rank speculation that the
persons associated with the red car may have.had a connection to the
burglaries. Other than his own speculative assertion, Appellant has identified
no other evidence that even slightly links, directly or circumstantially, the
crimes he was charged with to other persons who may have perpetrated those
crimes, including those associated with the red car. The trial court did not
abuse its discretion in sustaining the Commonwealth's objection 'to Appellant's
aaltperp line of questioning.
C. The trial court properly denied Appellant's motion for a directed verdict on the Deasy burglary.
The_. trial court denied Appellant's motion for a directed verdict on the
second-degree burglary charge pertaining to the Deasy residence. To survive
Appellant's motion for a directed verdict on that charge, the Commonwealth
6
must produce evidence to establish that 1) with the intent to commit a crime . . '
2) Appellant knowingly entered or remained unlawfully in the Deasy residence.3
The trial court's denial of a directed verdict will be upheld upon review "if
under the evidence as a whole, it would be clearly unreasonable for a jury to
find guilt" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)
(citation omitted).
Mr. Deasy testified that someone broke into his home by kickirig in a
door. Appellant admitted to police detectives that he broke into the Deasy
residence by kicking in a door.
Deasy testified that a watch was stolen during the burglary of the
home, as was his wife's engagement ring and prescription drugs. Appellant ·
admitted to police that he stole a watch and a set of earrings from the Deasy
residence. None of the items were recovered. Appellant relies upon the
discrepancy between what he admits stealing (a. watch and earrings) and
what Deasy testified was stolen (a watch, a ring, and some pills) as an
evidentiary flaw fatal to the ·Commonwealth's case.
Far from being insufficient, the evidence is overwhelming. Appellant
admitted that he unlawfully entered Deasy's home and committed the crime
of theft therein. Deasy's testimony confirmed that his home was unlawfully
a KRS 511.030(1): "A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dvvelling." ·
7
entered and that property had been stolen. Nothing m,ore is needed. Under
"the evidence as a whole" it was not unreasonable for a jury to find guilt.
Indeed, it would be clearly unreasonable for the jury to find otherwise. The .
trial court did not err by denying Appellant's motion for a directed verdict.
D. Relief is not warranted under the cumulative error doctrine.
Appellant argues that even if his individual claims of error are not
reversible, he did not receive a fair trial based upon the cumulative effect of the
errors. The only error we find is the harmless error of the victim impact
testimony; there is no other error from which a prejudicial effect could
accumulate. The cumulative error doctrine is not implicated Appellant was inqicted for committing fourteen crimes: eight counts of
first-degree robbery, one count of first-degree burglary, and five counts of
second-degree burglary. These crimes were alleged to have occurred at eight
different locations in Hopkinsville, Kentucky, over a seven-month period,
including twice at one residence. A jury found Appellant guilty of one count
first-degree robbery, one count first-degree burglary, and four counts second
degree burglary. His claims of error stem from his convictions for the June
2003 first-degree robbery and first-degree burglary at the Allen residence, the
October 2003 second-degree burglary at the same Allen residence, the second
degree burglary at the Moss residence, and the second-degree burglary at the
Deasy residence·.
In June 2003, Karla Allen was at her home in Hopkinsville with her one
year-old daughter when she heard a knock at the door. She opened the door to
see a man standing before her with a semi-automatic firearm. She tried to ·
shut the door, but he forced his way inside. Allen complied with the intruder's
demand for cash; he left the residence with approximately $262.00 of Allen's
money.
In October 2003, while the Allens were away, their home was burglarized
a second time. They returned home to find the back door kicked in,
possessions strewn about, and the refrigerator open. Several items were
2
missin~, including a number of video games and game players, a video camera,
and other electronic entertainment devices.
In August 2003, the Mosses returned to their home· in Hopkinsville and
heard someone in their bedroom. When Mr. Moss tried to open the door, it was
locked. He then heard someone leaving through the bedroom window, but was
unable to see the intruder. The bedroom window was broken, and the screen
was cut and bent. Furniture was damaged from the rock that was thrown
inside. Cash was missing from the room ..
In October 2003, the Deasys returned home to find the outside door
leading into the master bedroom kicked in. The bedroom was in disarray. Mr.
Deasy's watch and Mrs. Deasy's ring and prescription medicine were missing.
Appellant admitted to police that he broke into these residences. He
made a recorded statement as he accompanied police to the scenes of his
crimes. He identified the Allens' apartment as a place he "got" twice, the first
time taking a PlayStation 2 and a Gameboy. He identified the Mosses' home as
the place from which he took about $600.00. He identified the Deasys'
residence as the place he. kicked in the back door and took a pair of earrings
~ and a watch. This recording was played for the jury.
All of Appellant's claims of trial er:ror were preserved for appellate review.
He argues that even if the individual errors do not support his claim for
reversal of his convictions, their cumulative effect resulted in reversible error.·
Each claim is addressed in turn.
3.
II. ANALYSIS
A. Admission of victim impact testimony during the guilt phase was harmless error. · ·
KRS 532.055(2)(a)7 permits the Commonwealth to present in the
sentencing phase of the trial evidence of the crime's impact upon the victim,
including the nature and· extent of any physical, psychological, or financial
harm suffered by the victim. However, in the guilt phase of Appellant's trial,
the Commonwealth posed this question to a teary-eyed victim-witness, Ms.
Allen: "[T]his is hard on you to relive this Eµld go through this, isn't it?" The
trial court overruled Appellant's request to strike her affirmative response.
Appellant contends that this amounted to the improper use of victim impact
evidence during the guilt phase, which by arousing the jury's sympathy for the
victim, resulted in an unfair trial.
We agree that the prosecutor's question attributed Allen's apparent
anxiety on the witness stand to the emotional or psychological impact of
"reliving" the crime, and was, therefore, improper during the guilt phase.2
Nevertheless, we are constrained to regard Allen's response as harmless error.
Allen was obviously having some discomfort in her role as a witness in court;
this very brief pause in an otherwise relevant description of events was not
unduly sympathetic. Moreover, Appellant had admitted that he twice
~ burglarized Allen's residence, so it is inconceivable that sympathy for Allen had
a prejudicial impact on Appellant.
2 The inquiry was also an improper leading question.
4
' '
Under the harmless error rule, RCr 9.24, we disregard evidentiary errors
that do not affect the· substantial rights of the parties. We can say with fair
assurance that the jury's verdict that Appellant was guilty of robbing Allen and
burglarizing her home was not substantially swayed by hearing Allen
acknowledge her distress at having to "relive" the crimes as she explained them
to the court and jury. Winstead v. Commonwealth, 283 S.W.3d- 678, 688-689
(Ky. 2009).
B. The trial court did not abuse its discretion by not allowing entry of aaltperp evidence.
Another burglary victim, Mr. Moss, testified that the day after the
burglary of his home, while at his place of business, he saw "some kids or
somebody" running down the nearby railroad tracks and getting into a small
red car that was moving slowly along the tracks. The persons he observed
seemed to be excited. The situation made him feel "uneasy" and he thought it
may have so.me connection to the recent burglary of his home, which lay along
the same railroad tracks. He reported his concern to police.
The bi.al court found that evidence to be irrelevant and sustained the
Commonwealth's objection to it, which on appeal, Appellant complains was an
abuse of discretion. He contends that Moss's observation was relevant to show
that someone other than himself, an aaltperp, was acting suspiciously and had
access to the railroad tracks which not only connected Moss's home and
business, but also went by the Allen and Deasy residences. An abuse of
discretion occurs when the trial judge's decision is arbitrary, unreasonable,
5
unfair, or unsupported by sound legal principles. Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
When deciding whether to admit aaltperp evidence, the trial court must
assess its relevancy under KRE 401 and determine whether the proffered
evidence.has probative value that substantially outweighs its risk of undue
prejudice, confusion of the issues, or misleading the jury under KRE 403.
Gray v. Commonwealth, 480 S.W.3d 253, 267 (Ky. 2016). To pass this
b~ancing test, there must be "some logical, ·qualifying information to enhance
the proffered evidence beyond speculative, farfetched theories that may
potentially confuse the issues or mislead the jury." Id. at 268. Moss's
observation does not contain any logical, qualifying information to lift
Appellan_t's aaltperp theory beyond the level of rank speculation that the
persons associated with the red car may have.had a connection to the
burglaries. Other than his own speculative assertion, Appellant has identified
no other evidence that even slightly links, directly or circumstantially, the
crimes he was charged with to other persons who may have perpetrated those
crimes, including those associated with the red car. The trial court did not
abuse its discretion in sustaining the Commonwealth's objection 'to Appellant's
aaltperp line of questioning.
C. The trial court properly denied Appellant's motion for a directed verdict on the Deasy burglary.
The_. trial court denied Appellant's motion for a directed verdict on the
second-degree burglary charge pertaining to the Deasy residence. To survive
Appellant's motion for a directed verdict on that charge, the Commonwealth
6
must produce evidence to establish that 1) with the intent to commit a crime . . '
2) Appellant knowingly entered or remained unlawfully in the Deasy residence.3
The trial court's denial of a directed verdict will be upheld upon review "if
under the evidence as a whole, it would be clearly unreasonable for a jury to
find guilt" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)
(citation omitted).
Mr. Deasy testified that someone broke into his home by kickirig in a
door. Appellant admitted to police detectives that he broke into the Deasy
residence by kicking in a door.
Deasy testified that a watch was stolen during the burglary of the
home, as was his wife's engagement ring and prescription drugs. Appellant ·
admitted to police that he stole a watch and a set of earrings from the Deasy
residence. None of the items were recovered. Appellant relies upon the
discrepancy between what he admits stealing (a. watch and earrings) and
what Deasy testified was stolen (a watch, a ring, and some pills) as an
evidentiary flaw fatal to the ·Commonwealth's case.
Far from being insufficient, the evidence is overwhelming. Appellant
admitted that he unlawfully entered Deasy's home and committed the crime
of theft therein. Deasy's testimony confirmed that his home was unlawfully
a KRS 511.030(1): "A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dvvelling." ·
7
entered and that property had been stolen. Nothing m,ore is needed. Under
"the evidence as a whole" it was not unreasonable for a jury to find guilt.
Indeed, it would be clearly unreasonable for the jury to find otherwise. The .
trial court did not err by denying Appellant's motion for a directed verdict.
D. Relief is not warranted under the cumulative error doctrine.
Appellant argues that even if his individual claims of error are not
reversible, he did not receive a fair trial based upon the cumulative effect of the
errors. The only error we find is the harmless error of the victim impact
testimony; there is no other error from which a prejudicial effect could
accumulate. The cumulative error doctrine is not implicated here.

Outcome: For the foregoing reasons, we affirm the judgment of the Christian
Circuit Court.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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