THOMAS EDWARD DAVIDSON V. COMMONWEALTH OF KENTUCKY

Prior to trial, Appellant moved to sever .the robbery counts for separate

trials so he would not be required to simultaneously defend against thirty-one

counts of first-degree robbery. He argues on appeal that the trial court's

refusal to do so was an abuse of discretion. "The test for abuse of discretion is

whether the trial judge's decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999). Our review involves a two-step process: first, we consider

whether the offenses were properly joined in a single indictment pursuant to

RCr 6.18; and second, we consider whether RCr 8.31 required separate trials.

RCr 6.18 permits the joining of separate crimes in a single indidment if

"the offenses are of the same or similar character or are based on the same acts

or transactions connected together or constituting parts of a common scheme

or_ plan." As the Commonwealth correctly notes, we have consistently upheld . I . )

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the joinder of multipfe robberies when the· offenses were "closely related in , .

character, circumstance, and time." See Cardine v. Commonwealth, 623

S.W.2d 895, 897 (Ky. 1981); Davis v. Commonwealth, 899 S.W.2d 487, 488-89

(Ky. 1995), overruled on other grounds, Merriweather v. Commonwealth, 99

S.W.3d 448 (Ky. 2003).

All of the robberies, involving thirty-one victims, occurred within a brief

span of six weeks and each occurred under ~imilar circumstances. Each

robbery occurred at a restaurant and involved two men armed with a revolver . "

using a white Honda Accord for transportation. Witnesses at different

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robberies consiStently described the robbers' physical appearance and clothing,

· inclu'ding a red, white, and green hat referred to as a "granny hat." Police

discovered such a hat after Appellant attempted to have his girlfriend dispose

of his clothing. The crimes all occurred near Appellant's and Boyd's

residences. The similarities between these offenses are striking. They are very

clearly offenses "of the same or similar character" properly joined under RCr

6.18.

RCr 8.31 permits properly joined offenses to be ,severed for separate trials

when a party has satisfied the burden ·of showing that he would be "unfairly

prejudiced" by the joint trial. Parker v. Commonwealth, 291 S.W.3d 647, 657

(Ky. 2009). Trial judges are vested with great discretion in determining

whether !O join or sever offenses. Brown v. Commonwealth, 458 S.W.2d 444,

447 (Ky. 1970). We have "consistently declined to disturb that discretion

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absent a showing of clear abuse and actual prejudice." Cherry v~·

Commonwealth, 458 S.W.3d 787, 793 (Ky. 2015) (citatjon omitted). ·

Rather than demonstrating actual prejudice, Appellant ·suggests that·the

.prejudice inherent in the "monumental task" of defending against thirty-one

charges is self-evident. He contends that he faced "simply too many counts

. . with too many p~osecl.:1ting witnesses to not be prejudicial." We decline to

adopt that presumption by fixing a maximum number of charges that may be

joined. for trial. . We are not persuaded that Appellant was unfairly prejudiced.

The trial court did not abuse its discretion in denying Appellant's motion to

sever.

Il. THE ADMISSION OF THE POLICE OFFICERS' OPINION TESTIMONY WAS HARMLESS ERROR . \ . . . . . Appellant next claims the. trial court erred by allowing three police

detectives to expre_s~. their belief that the specific robberies they investigated

, were related .. Appellant al~o argues that the trial court erred by permitting the lead detective to testify~ that all the robberies charged in the indictment were . . . . "conne~ted," thus implying that if Appellant was guilty of one of the robberies,

he was guilty of them all. Over Appellant's objections, the trial court accepted

the Commonwealth's argument that the officers' opinions were admissible

under KRE 701 because each was rationally based upon the testifying officer~s

perception and would be helpful to the jury. Upori review, we are satisfied that

the trial court .misinterpreted and misapplied KRE 701.

Kl~.E 701 provides as follows:·

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If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are: · (a) Rationally based on the perception of the witness; (b) Helpful to a clear understanding of the witness' testimony or the · determination of a fact in issue; and (c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

The Commonwealth's argument and the trial court's ruling miss the most

fundamental requirement of KRE 701: "A witness must have personal

knowledge in order to qualify for lay opinion testimony under KRE 701 [. ]"

Robert G. Lawson, Kentucky Evidence Law Handbook§ 6.05[2][c], 417 (5th ed. 2013). KRE 701(a) requires the opinion to be based upon the witness'~ own ·

perception rather ~ban an opinion synthesized from information perceived by

others and later conveyed to the w.itne~s .. Under KRE 701 "lay opinion [is

limited] to situations involving the 'the perception of the witness."' Id. at§

6.05[2][a], 415. None of the officers witnessed the robberies or saw the

perpetrators. Their opinions are based upon the perceptions of those who

witnessed the crimes and then related their observations to the investigating

officers'. 2

We further conclude that the opinions do not meet the rule's

"helpfulness" threshold. Lay witness opinion testimony under KRE 701 (b)

must be "helpfur' to'thejury and not a waste of time. Id. at§ 6.05[4][b], 420;

2 We disagree with the dissent's characterization of this ruling. Our . interpretation of KRE 701 in ne way suggests that witnesses cannot testify to opinions based upon what they perceive in a video recording or photograph ..

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see also McKinney v. Commonwealth, 60 S.W.3d 499, 503-04 (Ky. 2001). As ·

Wigmore notes with respect to opinion testimony "whenever inferences and .

conclusions· can be drawn by the jury as well as by the witness, the witness {s

superfluous.''· 7 John Henry Wigmore, Evidence in Trials at Common Law§

1917 (4th ed. 1978). After hearing the testimony of the eye witnesses t~ each

robbery, the.jurors were as capable as the officers of comparing the similarities

and connecting the dots to form their own opinions. The opinions of the

officers contributed nothing helpful to "a clear understanding of [their]

testimony or the determination of a fact in i.ssue."3 ·

In the broad. sense,.however, the opinio.n evidence expre.ssed here by the

officers is not the kind of opinion testimony addressed by KRE 701. KRE 701

serves a rather·mundane and undramatic·purpose·which we might be more

likely to notice if the rule did not exist. Much of our spoken communic8:tion irt

the English language is expressed in the form of opinions instinctively and

automatically d~awn almost subconsciously from perceptions and observations

in the course of everyday life. It is often difficult for an individual to articulate

the specific perceptions that generate the opinion.

3 In this vein, we note that the Commonwealth emphasizes the· officers' training and experience in criminal investigation as giving weight to their opinions, but the Commonwealth does not offer KRE 702 as an alternative theory for introducing the · opinions. KRE 702 does not apply here because the particular opinions expressed by the officers require no expertise. KRE 702 "permit[s] opinion evidence from experts providing 'scientific, technical, or other specialized knowledge' if it will 'assist the trier of fact' in understanding the evidence or determining a fact in issue." Gray v. Commonwealth; 480 S.W.3d 253, 269 (Ky. 2016). Ordinary lay jurors would require no expert _assistance to connect the evideptiary dots between the separate robberies, and gauge for themselves the significance c:if the similarities and differences of the · individual robberies to reach their own conclusions.

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For example, a person may say, "When I called your.house, a small child

answered the phone;" _or "Friday was a very hot day." To be precise, those are

opinions of non-experts. The speaker's opinion is that a small child answered .the phone bec~use the voice resonated softly, the ton~ was timid, and the .

. . vocabulary was limited .. The speaker knows Friday was hot because she felt

the. sweat on.her brow, sh_e was exhausted from exerting herself, .and she ;:;aw

the sun melting the tar up on the roof. In everyday speech, we do not

. . encumber our conversations with the minute perceptions that lead to such

opinions; instead, we simply correlate the pe~ceptions into the opinion and

state it as a fact-. Friday was hot; a small child answered the phone. In each·

·instartce·, the relevant information is.difficult or cumbersome to express

without resorting to an opinion.

. . Professor Lawson describes lay opinion. testimony admissible under KRE.

701 as "little more than a shorthand.rendition of facts that the witness

personally perceived .. " Kentucky Evidence Law Handbook§ 6;05[2][a], 416

(quoting 4 McLaughlin, Weinstein's Feder"al Evidence§ 701.03[1] (2d ed. 20~3)L

. . . KRE 701 is a modern corollary of the common law "collective facts rule,"

which "permits a lay witness to ~esort to a conclusion or' an opinion to describe

an observed phenomenon where there exists no other feasible alternative by

which to communicate that observation to the trier of fact.". Clifford v •

. Commonwealth, 7 S.W.3d 371, 374 (Ky. 1999). The Ninth Circuit Court of

Appeals provided a good description of the rule?s purpose in. United States v.

Skeei:

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If it is impossible or difficult to reproduce the data observed by the witnesses, or the facts are difficult of explanation, or complex, or are of a combination of circumstances and appearances which cannot be adequately described and presented with the force and clearness as they appeared to the witness, the witness may state his impressions and opinions based upon what he observed. It is a means of conveying to the jury what the witness has seen or heard. . . . Because it is sometimes difficult to describe the mental or physical condition of a person, his character or reputation,· the emotions manifest by his acts; speed of a moving object or other things that arise in a day to day observation of lay witnesses; things that are of common occurrence and observation, such as size, heights, odors, flavors, color, heat, and so on; witnesses may relate their opinions or conclusions of what they observed.

665 F.2d 983, 985 (9th Cir. 1982).

Lawson cites classic examples of KRE 701 lay opinion testimony: "a lay

witness may be allowed to testify to the speed.of a vehicle in motion on the

basic observation of the vehicle" and "a lay witness may be allowed to testify to

the insanity c:>f an accused on the basis of personal observation." Kentucky

Evidence Law Handbook§ 6.05[2][a], 415. Without KRE 701, trial testimony

could become mired in debate ~bout the countless minute perceptions by

which ordinary people form the routine o'pinions that guide their lives.

Because of KRE 701, those aspects of trial testimony can proceed like everyday

conversation.

Nevertheless, this error in the application of KRE 701 was harmless. The

jury was obviously not swayed by the officers' opinions that the crimes were

connected. Of the fourteen separate robbery events with a total of thirty-one

alleged victims resulting in thirty-one separate charges, Appellant was

convicted of only seven events totaling fourteen victims; he was acquitted of

seven events involving sev.enteen victims. The jury clearly distinguished the

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guilt of Appellant from the guilt of his co-defendant. On five of the separate

events involving ten victims, the jury convicted Appellant but acquitted his co

defendant, and on four of the separate events involving nine victims, the jury

acquitted Appellant but convicted his co-defendant. On four events involving

eight victims, the jury acquitted both Appellant and his co-defendant. The jury

convicted both Appellant and his co-defendant on only two of the fourteen ·

events involving a total of five victims.

Consequently, we are satisfied that the error was harmless. Winstead v.

Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) ("A non-constitutional

evidentiary error may be deemed harmless ... if the reviewing court can say

with fair assurance that the judgment was not substantially swayed by the

error.").

III. THE TRIAL COURT'S COMMENT ON THE JOINDER WAS NOT PALPABLE ERROR .

Finally, Appellant contends that th~ trial judge erred during voir dire

when, in response to a juror's question, he explained that Appellant and Boyd

were being tried together "because the Commonwealth has the right to have

them indicted together and I have ruled as a matter of law that it's proper to try ·

them together." Appellant did not object and so he asks that we review the

comment for palpable error under RCr 10~26.

Appellant specifically argues that the judge's comment violated RCr 8.31,

which states in part that "[n]o reference to the motion [to sever] shall be made

during the trial." While the comment may imply that a motion to sever had

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been made, the reference is fairly~obscure. He argues that the trial court's

comment would be interpreted.as the judge's learned opinion that Appellant . '

and Boyd acted together and therefore would be tried together. We do not

agree that the comment carded that meaning.

Palpable error relief is.available under RCr 10.26 only upon a

determ~natiori that manifest injustice has resulted from the error. "Manifest . . · injustice" is ."error [th~t] so seriously affect[s] .the fairness, integrity, or)publie

·reputation of the proceeding as to be 'shocking or jurisprud_entlally ) . . . . intolerable."' Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (quo·t~·ng

. . Martin v. Commonwealth, 207 S.W.3d 1, 4· (Ky. 2006)). We are satisfied that.

the comment did not result in manifest injustice.

For the foregoing reasons, we here~y affirm the judgment .of the Jefferson

·Circuit Court .