ISAIAH TYLER V. COMMONWEALTH OF KENTUCKY

At around 4:40 a.m. on the morning of December 4, 2013, Erin Floyd,

manager of the EZ Shop in Henderson, was training an employee, LaStar

McGuire, when three black men wearing hooded sweatshirts and masks

entered the store. One of the assailants was armed with a hatchet, and the

other two were armed with knives.

The women were ordered to lie on the floor. Floyd was then grabbed by

her hair and escorted to one of the store's safes by two of the robbers,

including the hatchet-wielding man. The robbers demanded that Floyd open

the safe, threatening her with the hatchet, and she complied. The robbers then

ordered her to lie on floor, removed the safe's contents, and fled the store,

taking Floyd's keys with them. McGuire was unable to observe their car or any

other identifying information.

Neither Floyd nor McGuire recognized the three robbers or were able to

identify them by sight. Floyd, however, believed she recognized the voice of one

of the assailants as belonging to Jeremy Raggs, who was the boyfriend of

Monica Green, a former employee of the EZ Shop who had recently been

terminated. And Floyd indicated that the robbers had exhibited knowledge

about the store, such as the location of its two safes, that would not have been

known to the general public.

Thus suspecting Raggs and Green of involvement in the robbery, police

located them at Green's apartment as the two were getting into Green's tan

Cadillac. Green drove off with Raggs as her passenger, fleeing the officer when

he attempted to stop them. The officer pursued the couple in his squad car,

and both were eventually arrested after Raggs jumped from Green's car and

attempted to escape on foot.

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Once in custody, Raggs admitted his involvement in the crime. He

explained that Green had provided to him information about the EZ Shop and

that he had recruited the Appellant, Isaiah Tyler, and Tyler's half-brother, Josh

Ervin, to help pull off the robbery. Raggs told police that he had driven the

three of them to the EZ Shop in Green's Cadillac and, after completing the

robbery, to the house Tyler and Ervin had shared (which had belonged to their

recently deceased mother), where they split the proceeds of their crime.

Based on this information, police obtained and executed search warrants

at Green's apartment and Tyler's and Ervin's house.

In Green's apartment, police found the $200 Raggs admitted receiving

from the robbery. They also found Floyd's keys in Green's car.

Tyler was home alone when the police executed the warrant at the

brothers' house. In the front bedroom of the house, police discovered coins and

paper money, coin wrappers, a coin box, bank bags labeled "EZ Shop No. 3,"

and a piece of a cut-up black shirt. Also in that bedroom, police reportedly

found a photo identification card. (For some unknown reason, the actual card

was not preserved as physical evidence and there was conflicting evidence

whether it belonged to Tyler or Ervin.) Police also discovered elsewhere in the

house a knife, brass knuckles, a hatchet, hooded sweatshirts and sweatpants,

and additional pieces of the cut-up black shirt.

Later, while in jail, Raggs prepared a notarized statement indicating that

he had falsely implicated Tyler in the robbery in his statements to police. But

he retracted that statement in his testimony at Tyler's trial, explaining that he

had only written it because he felt bad and at fault for Tyler's arrest. (Tyler also 3

reportedly paid him for writing the statement, although Raggs testified that he

was going to write it anyway and that Tyler had only offered to pay him after he

had already decided to do so.) Instead, Raggs testified that his initial

statements about the robbery and Tyler's involvement were true and that he

had accepted a plea offer from the Commonwealth contingent upon his

testifying at Tyler's trial.

Ultimately, Tyler was convicted of complicity to first-degree robbery and

of being a second-degree persistent felony offender (PFO). The jury

recommended a prison sentence of forty years, and he was sentenced

accordingly.

Tyler now appeals to this Court as a matter of right. See Ky. Const.

§ 110(2)(b). Additional facts will be developed as needed below.

II. Analysis

A. The trial court did not abuse its discretion in barring crossexamination of co-defendant on specific length of recommended sentence under plea agreement.

Tyler first argues that the trial court erred and denied him the right to

present a defense by limiting the scope of his cross-examination of co

defendant Raggs—specifically, by prohibiting questioning on the actual length

of the sentence agreed to by the Commonwealth in its plea deal with Raggs.

Like Tyler, Raggs was initially charged with first-degree robbery and

being a persistent felony offender. If convicted of both counts, as Tyler points

out, Raggs's punishment would have been set within a sentencing range of

twenty to fifty years or life in prison. See KRS 515.020(2); 532.060(2)(a);

532.080(5), (6). Instead, in exchange for his pleading guilty to the robbery 4

charge and testifying during Tyler's trial, the Commonwealth agreed to drop the

PFO charge and recommend a sentence of twelve years in prison for the

robbery conviction.

It was these specific terms of the Commonwealth's plea agreement with

Raggs that Tyler claims he was erroneously barred from introducing to the jury

through cross-examination. He argues that by being prohibited from providing

the jury with the specifics of the favorable deal, he was precluded from fully

showing the extent of Raggs's bias and motive for testifying against him, thus

preventing him from presenting a full and complete defense.

Our review of the trial court's ruling below, however, belies this

argument. In ruling on the admissibility of the exact terms of the plea deal, the

trial court first correctly noted that the fact of Raggs's having entered into a

favorable plea deal was relevant but that the court had some discretion to limit

the scope of cross-examination to prevent jury confusion, among other things.

Finding that the actual length of the sentence under the plea agreement was

not particularly relevant, the trial court ruled that defense counsel was

permitted to get the "gist" of the deal before the jury—by eliciting, for example,

whether he got a favorable deal, whether any charges were dropped, whether

the recommended sentence was less than the maximum, etc.—without the

specific number of years coming in. The court explained that defense counsel

had at his disposal "various ways that [he] could get to the end result without it

being years-specific." In other words, the trial court's ruling barred Tyler from

cross-examining Raggs only as to the actual number of years (twelve) of the

sentence under the plea agreement; everything else was fair game. 5

It has long been the rule that "[t]he presentation of evidence as well as

the scope and duration of cross-examination rests in the sound discretion of

the trial judge." Moore v. Commonwealth, 771 S.W.2d 34, 38 (Ky. 1988). That

being said, "[w]henever limitations on the right of cross-examination are

analyzed, it should be remembered that the right implicated is a fundamental

constitutional right and that such limitations should be cautiously applied."

Commonwealth v. Maddox, 955 S.W.2d 718, 720 (Ky. 1997). Taking that into

account, then, this Court has made clear that, while the credibility of witnesses

and the motives or biases underlying their testimony are always at issue, "[s]o

long as a reasonably complete picture of the witness'[s] veracity, bias and

motivation is developed, the judge enjoys power and discretion to set

appropriate boundaries." Id. at 721 (quoting United States v. Boylan, 898 F.2d

230, 245 (1st Cir. 1990)).

As noted above, the judge here exercised her discretion to set boundaries

on Tyler's cross-examination of Raggs, namely, limiting questioning on the

actual number of years of the sentence he would receive in exchange for his

testimony at trial. Tyler was free to conduct a thorough cross-examination of

Raggs in all other respects, so the trial court's limitation did not prevent him

from developing a reasonably complete picture of the witness's credibility, bias,

and motive for testifying. This Court cannot say the trial court's limit was

inappropriate. Thus, the trial court did not abuse its discretion.

B. The trial court did not err in refusing to grant a new trial.

Next, Tyler claims that the trial court erred in overruling his post-

judgment motion for a new trial. After the trial, Tyler moved for a new trial 6

under Criminal Rule 10.02, 1 raising two grounds: first, that the trial court's

limitation on his cross-examination of Raggs about his plea agreement

prevented him from having a fair trial; and second, that allegedly defective

testimony by the lead investigator in his case, Detective Preston Herndon

denied him a fair trial, where the detective allegedly misstated facts and

contradicted his own prior sworn testimony.

First, having already concluded in the preceding discussion that the trial

court did not abuse its discretion in limiting Tyler's cross-examination of Raggs

about his plea deal, this Court can similarly dispose of his claim that he was

entitled to new trial on the same ground. Since the limitation on cross

examination was not error, it also was not error to deny the request for a new

trial on that basis.

As to the second basis for requesting a new trial, the detective's

testimony that Tyler complains about involved the photo identification card

apparently found by police in one of the bedrooms of the brothers' house. 2

During a preliminary hearing, Detective Herndon testified that police had

discovered an identification card belonging to Ervin located in the front

bedroom where some of the evidence of the robbery was discovered. As the

Commonwealth points out, the testimony at issue involved the detective

1 Criminal Rule 10.02 provides, in part: "Upon motion of a defendant, the court may grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice." RCr 10.02(1).

2 As noted in the Background section above, the photo identification card was not preserved as physical evidence. Police took a picture of the card, however, although it was apparently of poor quality and the name on the card seems to have been largely illegible.

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reading from a report completed by another officer who had executed the

search warrant; it does not appear Detective Herndon testified that he,

personally, saw the identification card.

At Tyler's trial, however, when defense counsel asked, "Were any items

located that would indicate someone else other than Mr. Tyler was living

there?" Detective Herndon replied, "Nothing that I know of." During further

questioning, the detective denied seeing anything containing Ervin's name and

added, "To be clear, I'm not saying that there wasn't anything in the home that

didn't have [Ervin's] name on it; I just didn't see it."

Tyler claims that Detective Herndon thus misstated material facts at trial

in contradiction with his prior testimony at the preliminary hearing and that

this false testimony highly prejudiced his defense theory that only his brother,

Ervin, had been involved in the robbery and had left the incriminating evidence

at their house.

In overruling Tyler's motion for a new trial, the trial court, citing

Commonwealth v. Spaulding, 991 S.W.2d 651, 657 (Ky. 1999), noted that

perjured or false testimony can support a motion for a new trial provided there

is a "reasonable certainty" that the conviction would not have occurred absent

the false testimony. The trial court then found that Tyler's claim failed under

that standard because Detective Herndon's testimony at trial was not in fact

contrary to his prior testimony at the preliminary hearing and, even if it was

contrary, that there was no reasonable certainty that the inconsistency affected

the guilty verdict. The court also noted that the defense would have had access

to the record of the preliminary hearing at the time of trial and there was no 8

reason why that record could not have been used to impeach the detective's

trial testimony.

Whether to grdnt a new trial under Criminal Rule 10.02 lies within the

trial court's discretion. E.g., Collins v. Commonwealth, 951 S.W.2d 569, 576

(Ky. 1997). Even assuming the detective's trial testimony was actually

inconsistent with his prior testimony, we agree with the trial court that this

testimony did not constitute sufficient grounds for a new trial because

Detective Herndon could have been cross-examined on any inconsistency at

trial. Indeed, the record reveals that defense counsel conducted a fairly

extensive cross-examination of the detective that at least alluded to the prior

testimony in attempting to have the detective admit that Ervin's identification

card, and not Tyler's, had been found in the bedroom containing evidence of

the robbery. That defense counsel's cross-examination was unsuccessful in

this regard is not a sufficient ground to require a new trial, especially when the

video recording of the preliminary hearing at which the detective gave the

allegedly inconsistent testimony was available to impeach the witness at trial.

Therefore, the trial court did not abuse its discretion in refusing to grant a new

trial based on the detective's allegedly false testimony.

C. Tyler's forty-year prison sentence does not violate the Eighth Amendment.

Tyler's last claim is that his PFO-enhanced prison sentence of forty years

for complicity to first-degree robbery is "grossly disproportionate" in violation of

the Eighth Amendment's prohibition against cruel and unusual punishments.

He admits that this claim of error is unpreserved and asks for palpable-error

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review. See RCr 10.26; Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)

("[T]he required showing [of 'manifest injustice'] is probability of a different

result or error so fundamental as to threaten a defendant's entitlement to due

process of law.").

As this Court has recognized, the Eighth Amendment "prohibits not only

barbaric punishments such as torture, but also punishments disproportionate

to the crime." Turpin v. Commonwealth, 350 S.W.3d 444, 447 (Ky. 2011) (citing

Graham v. Florida, 130 S. Ct. 2011 (2010)). However, "[t]his 'proportionality

principle' ... is narrow and 'does not require strict proportionality between the

crime and sentence but rather forbids only extreme sentences that are grossly

disproportionate to the crime."' Id. (internal quotation marks omitted) (quoting

Graham, 130 S. Ct. at 2021). So, in determining whether a particular sentence

has breached this principle, "a court must begin by comparing the gravity of

the offense and the severity of the sentence." Graham, 130 S. Ct. at 2022. And

the Supreme Court has further explained:

"[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality" the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis "validate[s] an initial judgment that [the] sentence is grossly disproportionate," the sentence is cruel and unusual.

Id. (alterations in original) (citation omitted) (quoting Harmelin v. Michigan, 501

U.S. 957, 1005 (1991)). That being said, "[r]eviewing courts, of course, should

grant substantial deference to the broad authority that legislatures necessarily

possess in determining the types and limits of punishments for crimes, as well

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as to the discretion that trial courts possess in sentencing convicted criminals."

Solem v. Helm, 463 U.S. 277, 290 (1983). Indeed, "if the punishment is within

the maximum prescribed by the statute violated, courts generally will not

disturb the sentence." Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky.

2003). And it has been observed that "proportionality review has never (or

hardly ever) been used to strike down a mere prison sentence." Hampton v.

Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984) (citing Rummel v. Estelle, 445

U.S. 263, 271 (1980)).

In applying these principles, we conclude that Tyler's enhanced prison

sentence of forty years for complicity to first-degree robbery and being a

second-degree persistent felony offender is not so extreme a sentence to

amount to cruel and unusual punishment. First-degree robbery is a grave

offense indeed, and a forty-year sentence for the conduct involved in the

commission of that offense, when coupled with Tyler's prior felony

convictions—including felony possession of marijuana, trafficking of

marijuana, and being a convicted felon in possession of a handgun—does not

lead to an inference of gross disproportionality or invoke any sense of

fundamental unfairness. His sentence is nothing more than a PFO sentence

similar to countless others that have been rendered under the PFO statute or

prior habitual-offender statutes, which have long been held to be

constitutional. See, e.g., Barber v. Thomas, 355 S.W.2d 682, 682-83 (Ky. 1962);

see also Riley v. Commonwealth, 120 S.W.3d 622, 633-34 (Ky. 2003) ("[A] State

is justified in punishing a recidivist more severely than it punishes a first

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offender." (alteration in original) (quoting Solem v. Helm, 463 U.S. 277, 296

(1983))).

For the reasons set forth above, the judgment of conviction and sentence

of the Henderson Circuit Court is affirmed.

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