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Date: 06-15-2020
Case Style:
COREY COMMODORE V. COMMONWEALTH OF KENTUCKY
Case Number: 2018-SC-000617-MR
Judge: John D. Minton Jr
Court: Supreme Court of Kentucky
Plaintiff's Attorney: Daniel Jay Cameron
Attorney General of Kentucky
Micah Brandon Roberts
Assistant Attorney General
Defendant's Attorney:
Need help finding a lawyer for representation for of one count of first-degree assault, two counts of first-degree robbery, and one count of being a Persistent Felony Offender in the First Degree (PFO I). in Kentucky?
Call 918-582-6422. It's Free
Description:
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Tommy’s Place, a neighborhood shop in Louisville selling cigarettes,
produce, and flowers, and then owned by Tommy Smith, was the scene of a
robbery on April 13, 2017. The business’s surveillance camera recorded the
robbery. At the time the robber, now known to be Commodore, entered the
store, Smith’s wife, Freda, and Douglas Jeffries, a cashier, were in the store
behind the counter. Smith was outside.
When Jeffries left the counter to offer help, Commodore pushed Jeffries
back behind the counter and demanded that Jeffries open the cash register.
Jeffries believed Commodore was holding a gun to his back. Freda beat on a
window to alert Smith that there was a problem. When Smith arrived inside,
Freda screamed, “Guy’s robbing us!” Smith ran at Commodore as Commodore
was heading toward the door, at which point Commodore stabbed Smith in the
neck. Smith pursued Commodore outside the store. Commodore put the knife
to Smith’s stomach and told him to back off. Smith did so, and Commodore
left.
Jeffries called 911. Officer Chenault responded to the scene and his
body camera recorded Smith sitting in a chair, wearing a bloody shirt, and
holding his neck to control the bleeding. EMS arrived shortly afterward, and
Smith was transported to the University of Louisville Hospital trauma unit.
3
Tommy’s Place surveillance video captured images of the robber. Still
photos were made of a black male, who had a tattoo on his neck and a tattoo
sleeve on his left arm. The robber was wearing a black ball hat with a sticker
on top of the bill and a t-shirt that read “My Kicks Get Chicks.”
Using the surveillance video from Tommy’s Place and the neighboring
store, the police identified a vehicle suspected of transporting Commodore to
and from the scene. A police unit spotted the truck the next day. Armond
Stafford, the driver, was taken into custody. He admitted taking Commodore,
known to him as “C,” to Tommy’s Place on the day of the robbery, initially
picking him up at an apartment complex in the 1000 block of 29th Street.
Stafford thought Commodore intended to buy cigarettes. Stafford waited in the
truck and Commodore returned in about ten minutes, behaving in a normal
manner. Stafford drove Commodore back to the apartment complex and
dropped him off.
The police searched 1020 South 29th Street, Apartment #1, on April 14,
2017, and found evidence incriminating Commodore, including a “My Kicks
Get Chicks” t-shirt and documents with his name on them. The facts
surrounding the search are discussed in more detail below. Also, the police
interviewed Commodore on April 19, 2017. During the interview Commodore
admitted to robbing Tommy’s Place and stabbing Smith.
A Jefferson County Grand Jury indicted Commodore, charging him with
one count of attempted murder, one count of first-degree assault, and three
4
counts of first-degree robbery. The grand jury returned a separate indictment
later, charging Commodore with one count of being a PFO I.
At trial, the jury found Commodore guilty of one count of first-degree
assault, two counts of first-degree robbery, and one count of being a PFO I.
The jury recommended enhanced prison sentences of forty years on the firstdegree assault conviction, thirty years on one of the first-degree robbery
convictions, and twenty years on the other first-degree robbery conviction. The
jury recommended the sentences run concurrently for a combined sentence of
forty years in prison. The trial court entered its final judgment, sentencing
Commodore as recommended by the jury.
Commodore now brings this appeal, alleging the trial court committed
five errors. Additional facts are presented infra as necessary to address these
claims.
ANALYSIS
I. Commodore was entitled to a directed verdict on the first-degree
assault charge.
The trial evidence established the following. Smith was stabbed in the
neck and Smith’s shirt was bloody from the stabbing; pictures of the bloody
shirt were entered into evidence. When the responding officer arrived at the
scene, Smith was sitting in a chair, holding his neck, and applying pressure.
When the EMS arrived shortly afterward, the officer informed the responder
that he thought the bleeding was controlled. The EMS responder testified that
the cut was near Smith’s left external jugular vein and because internal
damage and bleeding cannot be seen, the EMS transported Smith to the
5
hospital for treatment of the laceration, a potentially life-threatening injury.
Smith’s neck wound was treated and closed at bedside.
According to medical records, Smith had no active bleeding on arrival at
the emergency room; Smith did not suffer a vascular or esophageal injury;
Smith’s wound was a supple, trachea midline, 2 cm penetrating wound;
Smith’s wound was a superficial stab wound;1 and Smith was kept at the
hospital overnight for further care and close monitoring. The medical records
contain the following entry:
75 yo gentlemen s/p stab to L neck while being robbed. Pt
denies any hoarseness, trouble swallowing & doesn’t have an
expanding hematoma. [N]o active bleeding from wound. [O]nly
real medical problem is diabetes, not on a blood thinner. [N]o
other problems or stab wounds.
Smith testified that he thought he was hospitalized for several days after the
stabbing. Smith suffered pain from the wound, and his neck is scarred.
Commodore moved for a directed verdict on the assault in the firstdegree charge, emphasizing that Smith’s injury did not create a substantial
risk of death because the bleeding was controlled. The trial court denied the
motion.
In order for a defendant to be found guilty of first-degree assault, the
Commonwealth must prove 1) the defendant “intentionally cause[d] serious
physical injury to another person by means of a deadly weapon or a dangerous
instrument;” or 2) “[u]nder circumstances manifesting extreme indifference to
1 Smith’s medical discharge records read: “Primary final diagnosis: Superficial
stab wound to the left neck.”
6
the value of human life [the defendant] wantonly engage[d] in conduct which
creates a grave risk of death to another and thereby cause[d] serious physical
injury to another person.” KRS2 508.010(1) (emphasis added). “Serious
physical injury” “means physical injury which creates a substantial risk of
death, or which causes serious and prolonged disfigurement, prolonged
impairment of health, or prolonged loss or impairment of the function of any
bodily organ.” KRS 500.080(15).
On appeal, Commodore claims that the evidence at trial failed to
establish that he created a substantial risk of death for Smith or that he
created a serious and prolonged disfigurement of Smith, and therefore, the trial
court erred by denying his motion for a directed verdict on the first-degree
assault charge for stabbing Smith in the neck.3 When reviewing a motion for a
directed verdict,
the trial court must draw all fair and reasonable inferences from
the evidence in favor of the Commonwealth. If the evidence is
sufficient to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed verdict
should not be given. For the purpose of ruling on the motion, the
trial court must assume that the evidence for the Commonwealth
is true, but reserving to the jury questions as to the credibility and
weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
2 Kentucky Revised Statute
3 Commodore also argues that he did not create a physical injury which caused
a prolonged impairment of health or prolonged loss or impairment of the function of
any bodily organ. The Commonwealth concedes this point, limiting the question to
whether evidence was sufficient to prove that when Commodore injured Smith, he
created a substantial risk of death or a serious and prolonged disfigurement.
7
Commodore cites Anderson v. Commonwealth, 352 S.W.3d 577, 583 (Ky.
2011), for the premise that when considering Smith’s injuries, “the question is
not what could have happened, but rather what did happen.” In Anderson, this
Court found the proof insufficient to show that the victim’s bleeding, one-inch
deep razor cut to his jaw line was a serious physical injury. At the hospital,
the victim’s elevated heart rate, attributed to adrenaline, was treated with IV
medication, his cut was sutured, and he was sent home. Id. at 582. Afterward
the victim was off work for a while and occasionally he had sharp neck pains.
Id. There was no proof of any subsequent medical treatment related to the
laceration. Id. Furthermore, the existence of a scar from the laceration, while
a disfigurement, was not a serious and prolonged disfigurement. Id.
Commodore points out that at the time of the stabbing and emergency
treatment, the severity of the stabbing and exact injury were unknown, but the
medical records dispelled the notion that the stabbing caused serious blood
loss or other internal damage creating a substantial risk of death. Commodore
further argues that Smith’s resulting scar, like in Anderson, is not a serious
and prolonged disfigurement.
The Commonwealth views this case more like Brooks v. Commonwealth,
114 S.W.3d 818 (Ky. 2003), in which this Court upheld a circuit court’s finding
of serious physical injury. In Brooks, the victim suffered serious physical
injury from two long crossing slashes on his neck, stab wounds on the right
side of his face and neck, and multiple defensive wounds on both upper
extremities. Id. at 824. The Commonwealth emphasizes that like in this case,
8
the Brooks victim suffered the loss of a large amount of blood and the victim
was kept overnight in a hospital for close observation, and that was sufficient
evidence to establish a substantial risk of death. Id. Furthermore, the inflicted
neck wounds caused serious and prolonged disfigurement. Id.
The dissent views Cooper v. Commonwealth’s, 569 S.W.2d 668 (Ky.
1978), and Mullins v. Commonwealth’s, 2011-SC-000634-MR, 2012 WL
6649199, at *2 (Ky. Dec. 20, 2012) (quoting Cooper), analysis as persuasive
that under all the circumstances in this case, it would not be clearly
unreasonable for the jury to find that the neck wound created a substantial
risk of death for Smith. While Cooper’s principle that the determination of
substantial risk of death must be based upon the totality of the evidence is not
in dispute, the victim’s circumstances in Cooper and Mullins are
distinguishable from the current case, the Cooper and Mullins victims having
underlying conditions which factored into the risk of death. In Cooper, a
physician testified that the fear/psychological response of the seventy-fouryear-old rape victim with heart trouble and chronic lung disease was sufficient
to cause a risk of death. 569 S.W.2d at 670. In Mullins, unpublished, an
eight-month pregnant woman was stabbed in the left thigh three times and as
compared to other assault scenes, a detective characterized the assault scene
as having “more [blood] than normal.” 2012 WL 6649199, at *1-2.
Bell v. Commonwealth also reminds us,
Whether a defendant’s act . . . creates “a substantial risk of
death or serious physical injury” will, of course, “turn [ ] on the
unique circumstances of an individual case.” 30 [Cooper v.
9
Commonwealth, 569 S.W.2d 668, 671 (Ky. 1978)]. Generally
speaking, however, we would observe that a substantial risk is a
risk that is “[a]mple,” “[c]onsiderable in . . . degree . . . or extent,”
and “[t]rue or real; not imaginary.” Accordingly, it is clear that not
all risks are substantial—hence the phrase “low risk”—and not
every hypothetical scenario of “what might have happened”
represents a substantial risk. In any trial, the issue of whether a
defendant’s conduct creates a substantial risk of death or serious
physical injury “depends upon proof” and reasonable inferences
that can be drawn from the evidence.
122 S.W.3d 490, 497 (Ky. 2003) (other internal citations omitted).
The dissent carefully reviews the medical treatment that Smith received,
including numerous tests and diagnostic procedures, however, in the final
analysis, he suffered no life-threatening injury. He had a superficial stab
wound to his neck but no vascular or esophageal injury, no damage to any vital
organ and had no active bleeding on arrival at the hospital. The first-degree
assault statute does not contemplate “close calls” or “what could have
happened” but rather “serious physical injury” creating a “substantial risk of
death.”
Thus, we agree with Commodore that like in Anderson, the evidence
presented in his case was not sufficient to show he caused a serious physical
injury. Although Smith’s shirt served as evidence of a degree of blood loss
which could cause concern, unlike in Brooks, there was no evidence from the
scene or medical treatment that the blood loss or the associated non-vascular
injury created a substantial risk of death. In Brooks, the severity of blood loss
was the victim’s most immediate risk; the victim was found with a large
amount of blood in his lap and before he bled to death. 114 S.W.3d at 824.
10
The evidence presented, viewed in the light most favorable to the
Commonwealth, fails to reflect that Smith did in fact sustain a serious physical
injury from the stabbing, either in terms of creating a substantial risk of death
or causing serious and prolonged disfigurement. Consequently, we conclude
the trial court erred by not granting a directed verdict, and the first-degree
assault conviction must be reversed. Because the jury was instructed on the
lesser-included offense of second-degree assault, this case is remanded for
retrial on the charge of second-degree assault. Yates v. Commonwealth, 430
S.W.3d 883, 895 (Ky. 2014).
II. The admission of the detective’s opinion testimony was harmless
error.
During the investigation of the robbery and assault, Detective Mason
viewed the surveillance footage from Tommy’s Place and created still photos of
the robber. During trial, the detective compared the arrest photos of
Commodore showing his left sleeve tattoo and a tattoo on his neck to still
images taken from the surveillance video showing the assailant’s tattoos. The
photo exhibits for the sleeve and neck tattoos were arranged so that the still
video photos were easily compared to the arrest photos showing the tattoos.
Prior to examining the detective about the photos, at the Commonwealth’s
request, Commodore stood in front of the jury and displayed the sleeve tattoo
on his left forearm and the tattoo on his right neck.
11
When initially describing the exhibits showing the photos, the detective
stated:4
[The sleeve tattoo exhibit,] it’s three photos. The two on top
are photos from the Tommy Place surveillance video, the stills that
I had created showing the sleeve, the distinctive sleeve, with the
distinctive kind of mark right here at the forearm. The picture
below it is the sleeve tattoos of Mr. Commodore at the time of his
arrest which also show a distinctive tattoo at the elbow.
[The neck tattoo exhibit,] it’s a series of four photographs.
The first one on the left is from a surveillance video showing the
right side of Mr., of the suspect’s neck. There does appear to be
some kind of loop tattoo on the right side of his neck. The day of
his arrest we were able to photograph Mr. Commodore who had the
loop tattoo, what appeared to be the same loop tattoo on the side of
his right neck.
The trial court admitted the photos and granted publication to the jury
without objection. When the neck tattoo exhibit was displayed on the
projection screen, the detective described it again, stating: “On here, this is
faded a little bit, right here, it’s pretty distinctive that you can see a loop on the
right side of the defendant’s neck that is consistent with the loop on the right
side of the defendant’s neck.”
Defense counsel objected at this point, arguing the detective effectively
testified that the tattoo matched, which was a question to be decided by the
jury. The trial court overruled the objection, concluding that the term
“consistent” was properly used by the detective to compare the photos. The
4 Pause fillers such as “uh” are removed from the transcription of the detective’s
testimony.
12
detective then again described the surveillance photo depicting the loop tattoo
on the neck as being consistent with the post-arrest photo.
When describing the sleeve tattoo exhibit published on the screen, the
detective stated:
This is the surveillance video at Tommy Place. Pretty
distinctive, obviously sleeve tattoo, but that we mentioned
yesterday. Pretty distinctive tattoo right here at the forearm, at the
bend of the forearm. And then moving down to, this is the postarrest, this is consistent, similar looking tattoo on the left forearm.
Commodore now argues that under KRE5 701 and KRE 602, the trial
judge erred by allowing the detective to opine, based upon photographs, that
certain features of Commodore’s tattoos were consistent with the tattoos of the
person who robbed Tommy’s Place. A trial court’ s evidentiary ruling is
reviewed for an abuse of discretion. Ward v. Commonwealth, 587 S.W.3d 312,
332 (Ky. 2019).
Generally, a lay witness testifies only to the facts because it is the jury’s
province to draw the appropriate inferences arising from the facts. See KRE
701; Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014); Martin v.
Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999). However, a lay witness is
permitted to give opinion testimony about a matter when the witness’s opinion
is based on knowledge not available to the jury and would be helpful to the jury
in reaching its own opinion. See KRE 701; KRE 602; Gabbard v.
Commonwealth, 297 S.W.3d 844, 855 (Ky. 2009).
KRE 701 states:
5 Kentucky Rule of Evidence
13
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 702.6
KRE 602 limits KRE 701 opinion testimony. Cuzick v. Commonwealth,
276 S.W.3d 260, 265 (Ky. 2009). Pursuant to KRE 602, “[a] witness may not
testify to a matter unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.”
Both Commodore and the Commonwealth view Morgan v.
Commonwealth, 421 S.W.3d 388 (Ky. 2014), and Boyd v. Commonwealth, 439
S.W.3d 126 (Ky. 2014), as guidance which should result in a decision in their
favor here. In Morgan, the defendant claimed the trial court improperly allowed
three witnesses, who were not at the robbery, to opine that the defendant was
the person on the store surveillance video and in the still photos. 421 S.W.3d
6 KRE 701, although not verbatim, is like Federal Rule of Evidence (FRE) 701.
FRE 701 states:
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
14
at 391. This Court concluded that there was no error because the testimony of
the three witnesses, acquaintances of the defendant familiar with his
appearance at the time of the robbery, was rationally based on their personal
knowledge from prior exposure to the defendant’s physical appearance. Id. at
391-92.
In Boyd, the defendant complained that the trial court impermissibly
allowed a witness to identify him as the assailant on home security video
footage. The witness, Boyd’s ex-girlfriend, hid in the home while the victim was
assaulted. Having personal knowledge of Boyd, the witness identified him
because of the way he stood and by the jacket he was wearing. 439 S.W.3d at
132. This Court concluded that the trial court did not err by allowing the
testimony because the witness was in a unique position to identify Boyd,
having knowledge of the defendant which the jurors did not have. Id.
Commodore argues that there are key differences between the detective
and the witnesses in Morgan and Boyd who had personal knowledge of the
defendant. Here, the detective did not personally observe the robbery, did not
have prior exposure to Commodore, and did not have personal knowledge of
Commodore that placed the detective in a better position than the jury to draw
any conclusions from the surveillance video. Commodore further contends
that the jury was just as capable as the detective of examining the video and
Commodore’s photo and drawing its own conclusion as to whether features of
Commodore’s tattoos were consistent with the robber’s tattoos. The
Commonwealth on the other hand, argues that under Morgan and Boyd, the
15
detective had personal knowledge of Commodore’s tattoos because he was
present when the crime scene unit photographed Commodore’s tattoos, and the
detective’s testimony relating his perception of the consistency in Commodore’s
tattoos and the robber’s tattoos was helpful to the jury by calling attention to
particular details of the tattoos.
Although Commodore argues that the detective’s testimony meets neither
the first nor second requirement of KRE 701, we address the second
requirement first, whether the testimony was helpful to the jury. “Lay opinion
testimony that aids in the identification of suspects ‘is particularly valuable
where . . . the lay witnesses are able to make the challenged identifications
based on their familiarity with characteristics of the defendant not immediately
observable by the jury at trial.’” United States v. Fulton, 837 F.3d 281, 297 (3d
Cir. 2016) (quoting United States v. Langford, 802 F.2d 1176, 1179 (9th Cir.
1986)). However, because KRE 701 requires that the testimony be helpful to
the jury, even when a witness is familiar with a defendant, the witness’s
testimony is not admissible if the jury would not be aided by the witness in
making the identification.
In Boyd and Morgan, we found the rule reaffirmed in United States v.
White, 639 F.3d 331, 336 (7th Cir. 2011), instructive. That rule states:
“Generally, a lay witness may testify regarding the identity of a person depicted
in a surveillance photograph ‘if there is some basis for concluding that the
witness is more likely to correctly identify the defendant from the photograph
than is the jury.’” Id. at 336 (quoting United States v. Towns, 913 F.2d 434,
16
445 (7th Cir. 1990), and United States v. Farnsworth, 729 F.2d 1158, 1160 (8th
Cir. 1984)). Under this rule then “when the witness possesses sufficiently
relevant familiarity with the defendant that the jury cannot also possess, and
when the photographs are not either so unmistakably clear or so hopelessly
obscure that the witness is no better-suited than the jury to make the
identification,” lay witness testimony is admissible. United States v. Jackman,
48 F.3d 1, 4–5 (1st Cir. 1995) (citing Farnsworth). Thus, when surveillance
videos, still photos, or other visual or photographic images before the jury are
not particularly clear, e.g., the images are of poor quality and the subject is not
clearly presented, the witness’s familiarity with the defendant may be helpful to
the jury.
Here, the focus was on one aspect of Commodore’s physical appearance,
his tattoos, aiding in the identification of him as the assailant. Although
tattoos age and fade over time, it was only a matter of days between the
robber’s image being recorded on the surveillance video and Commodore’s
arrest photo being taken, and there was no evidence that the appearance of
Commodore’s tattoos changed prior to trial. With the appearance of the tattoos
not changing, the ability of the jury to compare the still surveillance photos to
the arrest photo and decide if Commodore was the robber was dependent on
the quality of the photos presented. The Commonwealth does not assert that
the detective’s opinion testimony was necessary because the photographs
17
lacked clarity.7 Thus, while we do not foreclose the possibility that an officer’s
familiarity with a suspect’s tattoos may help the jury in identifying the
perpetrator, the circumstances in this case are such that the officer’s opinion
testimony was not warranted. Nothing suggests that the detective was in a
better position than the jurors, or that the jury would be any less able than the
detective, to determine whether the tattoos depicted in the photos and on
Commodore were consistent.
While we agree with Commodore that the trial court erred in admitting
the detective’s testimony regarding the comparative appearance of the robber’s
tattoos on the surveillance footage and Commodore’s tattoos post-arrest, we
agree with the Commonwealth that the error was harmless. The jury heard (1)
Commodore admit that he robbed and stabbed Smith; (2) Smith identify
Commodore as the person who robbed and stabbed him; (3) Stafford identify
Commodore as the person to whom he gave a ride; and (4) that the police
discovered clothing in an apartment closet that fit the description of the
robber’s attire, items found with papers that had Commodore’s name on them.
In light of this, we “can say with fair assurance that the judgment was not
substantially swayed by the error.” Winstead v. Commonwealth, 283 S.W.3d
678, 689 (Ky. 2009) (citing Kotteakos v. United States, 328 U.S. 750 (1946)); see
also RCr8 9.24.
7 Upon review, it appears that the detective once refers to a degraded image.
That occurred when the neck tattoo was presented on the projection screen and he
described it a second time stating, “this is faded a little bit.”
8 Kentucky Rule of Criminal Procedure.
18
III. The admission of the detective’s testimony regarding
Commodore’s lack of remorse was harmless error.
Detectives Mason and Smith jointly interviewed Commodore after his
arrest and part of the recorded interview was played for the jury. During the
interview, after Detective Mason stated that Smith was lucky given the brutality
of the attack, Commodore responded that he really did not put anything into it,
he was just trying to back Smith up, he was not trying to kill him, and he was
trying to scare him. When Detective Mason described the eventuality of
Commodore meeting Smith face-to-face and asked Commodore what he would
say to the victim if he were in front him, Commodore stated he did not know
what he would say; he was apologetic; if he could take it back he would; he
thanked God Smith made it through; and he reiterated that he could not
rehearse an apology.
Detectives Smith and Mason both testified at trial, with Smith testifying
first. The Commonwealth questioned Detective Smith about the interrogation
strategy used in that part of the interview, and he described giving Commodore
a chance to apologize, and stated, “but I don’t think Mr. Commodore felt any
remorse at all.” Defense counsel objected, arguing the testimony regarding
Commodore’s remorse was irrelevant to his guilt and was likely to inflame the
jury. The Commonwealth countered that the detective could provide lay
opinion testimony as to whether someone displays emotion.
The trial court ruled the detective could testify to his observations of
Commodore but could not testify as to what Commodore was feeling. Detective
Smith then testified he did not observe any remorse at all. Detective Mason
19
also testified later that he did not observe any remorse from Commodore during
Commodore’s statement. Defense counsel did not object to Detective Mason’s
testimony. Commodore requests RCr 10.26 palpable error review of Detective
Mason’s testimony if the error was not properly preserved by his previous
objection, during Detective Smith’s testimony.
Commodore argues that the trial court erred by allowing the detectives’
testimony because it did not comply with KRE 402; it was not relevant to
proving Commodore’s guilt as to any of the charges related to Smith (attempted
murder, first-degree assault, first-degree robbery) or Jeffries (first-degree
robbery). Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” KRE
401. Although not fully presented at trial as grounds for allowing the
detectives’ testimony, the Commonwealth argues, citing Garland v.
Commonwealth, 127 S.W.3d 529, 542 (Ky. 2003), overruled on other grounds by
Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005), that Commodore’s
demeanor during the interview was relevant to show that for the charged
“intent” crimes, his use of physical force was intentional, rather than
accidental. The Commonwealth suggests that since Commodore admitted to
harming Smith but failed to show remorse, the jury could infer he intended to
harm Smith.
In Garland, the defendant was convicted of three murders. The detective
who interviewed Garland shortly after the bodies were discovered testified that
20
he “‘was very calm and collective [sic]. Didn’t seem to be worried about
anything.’ When the prosecutor then asked if Garland showed any emotion,
the detective said, ‘No, he didn’t.’” 127 S.W.3d at 542. Garland claimed the
trial court erred by admitting improper demeanor evidence. This Court stated,
“It is settled law in Kentucky that evidence regarding the accused’s demeanor,
appearance, and behavior during the period of time that he committed the
crime and shortly thereafter is relevant evidence in the determination of guilt.”
Id. Accordingly, the Commonwealth asserts Detective Smith’s testimony was
probative of Commodore’s demeanor as the detective directly observed
Commodore during the interview and close in time to the criminal act.
“[A] person is presumed to intend the logical and probable consequences
of his conduct and ‘a person’s state of mind may be inferred from actions
preceding and following the charged offense.’” Parker v. Commonwealth, 952
S.W.2d 209, 212 (Ky. 1997).
In assessing evidence as to sufficient proof of intent in
criminal cases, the requisite intent may be determined from
surrounding circumstances. All elements of a crime, including
intent, can be proven by circumstantial evidence. Hardly is the
Commonwealth ever fortunate enough to present direct proof as to
the thought process in a defendant’s mind.
Commonwealth v. O’Conner, 372 S.W.3d 855, 857 (Ky. 2012) (internal citations
omitted).
Dealing with a KRE 701 challenge, Garland explains circumstances
relevant to intent may include a defendant’s demeanor, appearance, and
behavior, but they are limited to the time of the crime and shortly afterward.
21
Demeanor, appearance, and behavior indicative of remorse, defined as “a
gnawing distress arising from a sense of guilt for past wrongs,”
9 may be
relevant to inferring intent, just as words used may be relevant, but we need
not decide whether they are in this case.10 The Commonwealth’s focus on
Commodore’s demeanor is limited to pointing out conduct at the scene of the
crime that demonstrates lack of remorse and that may properly be considered
as circumstances of the crime. Garland, 127 S.W.3d at 542. Here, the
detectives’ interview with Commodore occurred six days after the crime. The
detectives were questioned whether they observed demeanor indicative of
Commodore’s remorse at the time of the police interview, not at the time of the
crime nor shortly thereafter. Because the detectives’ “lack of remorse”
testimony was based on Commodore’s demeanor at an irrelevant time, we must
conclude the trial court abused its discretion by allowing the detectives to
testify about their observations.
We assume the error in admitting Detective Mason’s testimony was
preserved and conclude the errors in admitting both Detectives Smith’s and
Mason’s testimony were harmless. Like with the improper identification
testimony, because the jury heard Commodore admit that he robbed the store
and stabbed Smith, heard Smith identify Commodore as the person who
robbed the store and stabbed him, and furthermore heard Commodore’s
9 Merriam-Webster, https://www.merriam-webster.com/dictionary/remorse.
10 Undoubtedly, remorse may be shown for intentional acts of harm, just as it
may be shown for harm resulting from reckless, negligent, or unintentional behavior.
22
statement of remorse during the recorded interrogation interview, we can say
with fair assurance that the judgment was not substantially swayed by the
errors. Winstead, 283 S.W.3d at 689.
IV. The trial court did not err by denying a continuance of the
penalty phase.
The jury began deliberating Commodore’s guilt mid-morning on the third
day of trial. While the jury deliberated, the parties discussed penalty phase
issues with the trial court. Defense counsel stated he wished to call
Commodore’s mother to testify in mitigation, but that he believed she would
not be available to do so that afternoon because of unexpected family medical
issues. Defense counsel did not submit an affidavit with his request to delay
the penalty phase. The trial court ruled that it would not delay the trial for the
witness. When the jury returned with its verdict in the early afternoon, defense
counsel proffered what he expected Commodore’s mother’s testimony might be.
Commodore argues that the trial court abused its discretion when it
refused to continue the penalty phase for one day in order for his mother to
appear and testify on his behalf. He presents the factors delineated in
Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on
other grounds by Lawson v. Commonwealth, 53 S.W.3d 534, 542 (Ky. 2001), to
guide a trial court’s decision to grant or deny a continuance and contends an
analysis of these factors weighed in favor of granting defense counsel’s request
for a continuance. However, the trial court may not weigh these factors unless
23
an RCr 9.04 motion is properly brought. See Jeter v. Commonwealth, 531
S.W.3d 488, 495-97 (Ky. 2017).
RCr 9.04 pertinently states:
The court, upon motion and sufficient cause shown by either
party, may grant a postponement of the hearing or trial. A motion
by the defendant for a postponement on account of the absence of
evidence may be made only upon affidavit showing the materiality
of the evidence expected to be obtained, and that due diligence has
been used to obtain it. If the motion is based on the absence of a
witness, the affidavit must show what facts the affiant believes the
witness will prove, and not merely the effect of such facts in
evidence, and that the affiant believes them to be true.
(Emphasis added.)
Although Commodore believes that his proffer and argument provided
the trial court with the information necessary to consider and conclude the
requested continuance was merited, Jeter makes clear that when trial
postponement is based on the absence of evidence, a trial court may not grant
a continuance without an RCr 9.04 compliant affidavit.
The affidavit rule serves to assure the court and the
Commonwealth that the continuance rule’s substantive
requirements—delay only for the sake of material evidence that
due diligence could not have obtained sooner—are being respected
and are evident from facts that defense counsel is able and willing
formally to declare in writing.
Jeter, 531 S.W.3d at 497.
In Jeter, we concluded the trial court did not abuse its discretion when
denying a continuance when the affidavit accompanying the signed motion was
not formally executed, being neither signed by the affiant nor certified by an
authorized person. Id. Here, defense counsel also did not comply with RCr
24
9.04’s requirements. Consequently, we must conclude the trial court did not
abuse its discretion when denying Commodore’s motion.
V. The trial court did not err by denying the motion to suppress.
Commodore was suspected of committing the assault and robberies at
Tommy’s Place by the following day. A search of the apartment in which he
had been staying led to inculpatory evidence: a black baseball cap with a
sticker on it, a t-shirt that read “My Kicks Get Chicks,” and documents bearing
Commodore’s name. Commodore moved to have the evidence suppressed, but
the trial court denied the motion after conducting an evidentiary hearing.
Detective Smith testified regarding the search.
Law enforcement’s investigation led them to an apartment where
neighbors indicated Commodore had been staying. Detectives Smith and
Rhudy went to the apartment and met Keith Gill. Gill told the officers he lived
in the apartment with his partner,
11 that he knew Commodore, and that he
called him “C.” Gill confirmed Commodore had been staying in the apartment,
but it was only a temporary stay. Gill indicated he was the lessee of the
apartment and told Detective Smith he had been living there for a couple of
years. Detective Smith did not review a copy of the lease and Gill did not
present any identification or documentation that he lived there. Detective
Smith did not recall speaking to Gill’s partner, who mainly stayed in the front
room. Detective Smith had no doubt that Gill had control and dominion over
11 Detective Smith could not recall whether the co-habitant was Gill’s wife or
girlfriend.
25
the apartment. Gill signed the consent to search form and pointed out the
room containing some of Commodore’s belongings. The officers found evidence
incriminating Commodore in that room.
Commodore’s counsel argued that Gill’s consent to search was invalid
because the detectives had not confirmed that the person who consented to the
search was Keith Gill and that he was the person in authority or in control of
that home. Based upon the evidence presented, the trial court concluded the
detectives had a good faith reason to believe Gill controlled the apartment. The
trial court’s last statement when ruling on the motion was: “There was no
indication that Mr. Gill did not have, that [he] was not the lessee of this
apartment, nor did, is there an indication that he didn’t have authority to give
consent, so the motion to suppress is denied based on a failure of proof in that
regard.”12 Based on this statement, Commodore now argues that the trial
court’s ruling erroneously placed the burden on him to demonstrate that the
police had not conducted a valid consent search. The court’s factual findings
are not in dispute and we discern no clear error in those facts. Given that, our
next task is to perform a de novo review of the trial court’s conclusions of law.
Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016).
Indisputably, the Commonwealth carries the burden of demonstrating
that a warrantless search falls within an exception to the warrant requirement.
Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky. 2003). Although
12 Pause fillers removed.
26
Commodore complains that the trial court misplaced the burden of proof,13 the
question for our review is whether when applying the laws to the facts, the trial
court’s decision to deny the motion to suppress was proper. Buster v.
Commonwealth, 364 S.W.3d 157, 162 (Ky. 2012). In this case, the particular
question is whether detectives had a good faith reason, i.e., was it objectively
reasonable, to believe Gill controlled the apartment, thus rendering Gill’s
consent and the subsequent search valid.
Under the Fourth Amendment, searches conducted without a warrant
are unreasonable, unless they fall within a “few specifically established and
well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). One exception to the warrant requirement is a search conducted
pursuant to proper consent. Id. With regard to premises, permission to search
may be obtained from one “who possesse[s] common authority over or other
sufficient relationship to the premises . . . .” United States v. Matlock, 415 U.S.
164, 171 (1974).
The authority which justifies the third-party consent does not rest
upon the law of property, . . . but rests rather on mutual use of the
property by persons generally having joint access or control for
most purposes, so that it is reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own
right . . . .
13 We consider the argument as presented, but also note that it is possible to
understand the trial court’s statement as making the point that there was no evidence,
no matter the source, which indicated Gill was something other than the
occupant/lessee who had authority to give consent.
27
Id. n.7. With the Fourth Amendment basis being reasonableness, the test for
determining whether one has authority to consent to the search of a residence
has become: based on the facts available to the officers at the time of the
search, was it objectively reasonable for the officers to believe that the person
giving consent had common authority over the residence. Commonwealth v.
Nourse, 177 S.W.3d 691, 696, 697, 698 (Ky. 2005); see also Illinois v.
Rodriguez, 497 U.S. 177, 185-86 (1990).
Here, the trial court concluded that in addition to Gill’s affirmative
statements, considering Gill’s ability to access the property, his girlfriend being
present, and information obtained from the neighbors indicating Gill lived in
the apartment, the officers acted on good faith reliance regarding Gill’s control
of the apartment. Upon review, we agree that the trial court’s findings of fact
support the conclusion that it was objectively reasonable for the officers to
believe Gill had common authority over the apartment. Consequently, Gill’s
consent rendered the subsequent search valid. The trial court did not err by
denying Commodore’s motion to suppress.
Outcome: For the foregoing reasons, we affirm Commodore’s robbery and PFO I
convictions, but reverse the first-degree assault conviction. This case is
remanded for further proceedings consistent with this Opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: