RENDERED: FEBRUARY 19, 2015
TO BE PUBLISHED
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2014-SC-000073-MR U,
WILLIAM SMITH APPELLANT-'
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE CHARLES LOUIS CUNNINGHAM, JR., JUDGE
NO. 11-CR-002547-02
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING
On the evening of August 14, 2011, Appellant, William B. Smith III, and
Quentin L. Wilson fired a barrage of gunshots into a crowd of people gathered
at Shawnee Park in Louisville. Antonio Lamont Anderson died as a result and
two others were seriously injured. Several vehicles were also damaged by the
shooting. A bullet lodged in the trunk of one nearby vehicle, narrowly missing
Mr. Anderson's four-year-old daughter who was asleep in the backseat.
Anderson's pregnant fiancée was also in the car.
Louisville Metro Police Officer Chad Johnson was present during the
shooting. Officer Johnson testified that after hearing gunshots, he witnessed
Wilson standing with, his arm outstretched, firing a handgun into the crowd.
Johnson also testified that he saw several other muzzle flashes near Wilson.
Wilson, Smith, and another individual involved in the shooting fled the scene
on foot and Officer Johnson followed. They were eventually apprehended and
arrested. Police officers re-traced the path along which Smith and his
confederates fled and discovered four handguns, three of which were found
together underneath a broken tree branch. A ballistics expert determined that
several of the projectiles and casings recovered from the crime scene were fired
from the recovered handguns.
Smith and Wilson were indicted and jointly tried. The other individual
involved in the shooting was a juvenile. A Jefferson Circuit Court jury
convicted Smith of complicity to murder, two counts of criminal attempt to
commit murder, two counts of first-degree wanton endangerment, and one
count of tampering with physical evidence.
The jury recommended a sentence of 20 years' imprisonment for the
murder conviction, 10 years for each attempted murder conviction, four years
for each wanton endangerment count, and three years for the tampering
conviction. The jury further recommended that the murder and attempted
murder sentences run concurrently with each other and that the wanton
endangerment and tampering sentences also run concurrently with each other.
These two sets of sentences were to be served consecutively for a total sentence
of 24 years' imprisonment. The trial court sentenced Smith in accord with the
jury's recommendation. Smith now appeals his judgment and sentence as a
matter of right pursuant to § 110(2)(b) of the Kentucky Constitution. Two
issues are raised and addressed as follows.
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Gang Expert Testimony
Smith argues that the trial court committed reversible error when it
admitted the testimony of Louisville Metro Detective Gary Huffman. Although
Smith asserts that this was improper expert testimony, his primary contention
is that the detective's testimony was irrelevant and unduly prejudicial.
At trial, Detective Huffman provided information concerning the general
nature of gang operations and networks throughout the country. Huffman also
identified and discussed local gangs operating in the Louisville Metro area
including Cecil N Greenwood ("CNG") and Victory Park. According to Huffman,
the two are rivals. The former is a local sub-set of the infamous "Bloods," while
the latter is a sub-set of the equally infamous "Cripps." The detective also
testified that the two gangs are known by alternate names, but are commonly
identified as CNG and Victory Park respectively.
Detective Huffman identified Smith as being present in multiple
photographs introduced as exhibits for the Commonwealth. Based on these
photos, he testified that the color of Smith's clothing was identified with CNG.
In at least one photo, Smith was wearing a white t-shirt imprinted with the
letters CNG in red. Huffman further acknowledged that the photos identified
other individuals known to have been affiliated with CNG, and that they and
Smith were demonstrating hand signs that denoted CNG affiliation.
Detective Huffman also discussed one of Wilson's tattoos that referenced
Darryl Head, a slain member of CNG. Huffman opined that ever since Mr.
Head was killed by Victory Park affiliates several years earlier, there had been
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ongoing retaliatory issues between the two gangs. He further testified that
victims of the shooting of August 14, Norman Bradley Williams and Lewis
Jones, were suspected members of Victory Park. Huffman concluded that the
potential motive for the shootings in the present case may have been gang
related.
KRE 702
KRE 702 permits opinion testimony of "a witness qualified as an expert
by knowledge, skill, experience, training, or education[,]" if that testimony "will
assist the trier of fact to understand the evidence or to determine a fact in
issue . . . ." We review a trial court's determination whether a witness is
qualified to give expert testimony for an abuse of discretion. Brown v.
Commonwealth, 416 S.W.3d 302, 309 (Ky. 2013). In the present case, the trial
court permitted Detective Huffman to testify as a gang expert after engaging in
two Daubert style hearings on the issue. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Although Smith broadly asserts that the introduction of Detective
Huffman's testimony was improper expert evidence, he does not contest
Huffman's qualifications. It is clear that Detective Huffman possessed the
requisite knowledge and experience in the area of gangs and gang related
activity to qualify him as an expert. Huffman had been a law enforcement
officer for 15 years. His tenure with the Louisville Metro Police Department
("LMPD") involved extensive experience with gangs, including his former
position as LMPD's Gang Coordinator. See, e.g., State v. Torrez, 210 P.3d 228,
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234-36 (N.M. 2009) (holding that detective was qualified to testify as expert on
the subjects of gangs); People v. Bynum, 852 N.W.2d 570, 630 (Mich. 2014).
Furthermore, Smith offers no specific evidence impugning the reliability
of Huffman's testimony. See United States v. Hankey, 203 F.3d 1160, 1168-70
(9th Cir. 2000) (noting that peer review, publication, and potential error rate,
"are not applicable to this kind of testimony whose reliability depends heavily
on the knowledge and experience of the expert, rather than the methodology or
theory behind it"). As previously noted, Detective Huffman's knowledge and
experience in this field are unquestioned. Accordingly, the trial court did not
abuse its discretion in allowing Huffman to testify as an expert on gangs and
gang related activities.
KRE 401 and 402
Evidence is relevant if it has "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. This test
requires "only a slight increase in probability . . . ." Harris v. Commonwealth,
134 S.W.3d 603, 607 (Ky. 2004). A trial court's determination with respect to
relevancy of evidence is reviewed under an abuse of `discretion standard. Love
v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001).
In its order denying Smith's motion in limine, the trial court held as
follows:
[T]he proposed testimony relating to the victim's gang affiliation
and the existence of between the two subject gangs as a
result of an earlier killing would be helpful to the jurors weighing
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the evidence. The Commonwealth has presented a compelling
argument regarding their need to present this evidence to show
potential motive for shootings which otherwise would seem
completely random.
We agree that Detective Huffman's testimony assisted the jury in
understanding the circumstances surrounding the murder and offered a
possible motive for what would otherwise appear to be an inexplicable
massacre. Although motive was not a necessary element of proof, murder is
"not a crime in which motive is no consequence." Rackley v. Commonwealth,
674 S.W.2d 512, 514 (Ky. 1984) overruled on other grounds by Bedell v.
Commonwealth, 870 S.W.2d 779 (Ky. 1993). The following evidence introduced
at trial further demonstrates the relevance and probative value of Detective
Huffman's testimony.
Officer Johnson provided detailed testimony that he observed a group of
individuals at Shawnee Park travelling together and whom he recognized as
having been from the neighborhood surrounding Cecil and Greenwood streets
in Louisville. He specifically identified Wilson as being amongst the suspect
troop. This initial identification was based on Officer Johnson's previous
encounters with Wilson in the Cecil and Greenwood neighborhood. Johnson
•
later observed Wilson firing into the crowd of individuals. Officer Johnson also
testified that he recognized Smith from his previous experiences working in the
Cecil and Greenwood neighborhood. However, Johnson did not identify Smith
until after he was apprehended and arrested.
Evidence was also introduced that some of the victims were reluctant to
speak with the police following the shooting due to the possibility of being
6
identified as a "snitch." Norman Bradley Williams was one of the victims who
testified at trial. He identified Smith and Wilson as the shooters and stated
that he did not originally want to speak with the police because he would be
labeled a snitch. Williams admitted to being a member of the Victory
"brotherhood" and that he believed that he was the true target of the shooting.
Williams also testified that he believed the shooting was motivated by what
happened "on the streets."
Our leading case on the admissibility of gang expert testimony is
Hudson v. Commonwealth, 385 S.W.3d 411 (Ky. 2012). In that case, Hudson
and two accomplices, all of whom were members of the same gang, murdered
Shyara Olavarria as retribution for her snitching to the police. Id. at 413-414.
Evidence was introduced that Hudson's accomplices also murdered a member
of a rival gang shortly after Olavarria's murder. Both murders occurred on the
same day and involved the same murder weapon. Id. We held that "[t]he
evidence of gang activity was relevant to explain the context of and motive for
Olavarria's murder [and was] highly probative of motive and intent." Id. at 419.
Hudson also involved the contested testimony of a police officer who
testified as an expert in gangs and gang activity. Id. The officer specifically
explained the meaning of various gang terms such as "snitching." Id. at 419-
20. We held that the officer's testimony was relevant because it provided
general and specific information concerning gang terminology. Id. Similar to
Hudson, Detective Huffman's testimony in the present case was relevant and
probative in providing: 1) a general context for the shooting and surrounding
7
circumstances; 2) a context for witness testimony and Williams' testimony in
particular; and 3) a possible motive for the crimes. See, e.g., State v. Torres,
874 A.2d 1084, 1093-95 (N.J. 2005) (listing cases admitting expert testimony
on gang issues to prove the defendants' motive).
KRE 403
Relevant evidence may be excluded, however, "if its probative value is
substantially outweighed by the danger of undue prejudice . . . ." KRE 403.
"[A]ll evidence demonstrating that a defendant is guilty beyond a reasonable
doubt prejudices the defendant. KRE 403 requires something more." Mayse v.
Commonwealth, 422 S.W.3d 223, 228 (Ky. 2013).
In the present case, the prejudice was minimal. Detective Huffman's
testimony did not discuss any specific criminal activity of CNG or maintain that
Smith was involved in any crimes or prior bad acts, including any specific acts
affiliated with CNG. Detective Huffman was expressly precluded by the trial
court from commenting about the possession of handguns by gang members.
Huffman's testimony, like that in Hudson, was neither inflammatory nor
excessive. Hudson, 385 S.W.3d at 419-20. Accordingly, the probative value of
Detective Huffman's testimony was not substantially outweighed by the danger
of undue prejudice. The trial court did not abuse its discretion in admitting
that testimony.
Sentencing
Smith further alleges that the jury was improperly instructed on the law
governing the case. He specifically argues that the trial court failed to comply
8
with the "Truth in Sentencing" statute and also failed to inform the jury that its
sentence for murder could not be altered by the judge. Smith requests
palpable error review.
Post-incarceration Supervision
Pursuant to KRS 532.055(2)(a), the Commonwealth introduced testimony
concerning sentencing ranges, parole eligibility and sentencing credits. The
Commonwealth's witness did not inform the jury that KRS 532.400 imposes a
one year term of post-conviction supervision for persons convicted of a capital
offense. However, KRS 532.055(2)(a) does not require that the Commonwealth
do so; rather, it provides evidence that "may be offered by the Commonwealth."
(Emphasis added). There was no error here. Also, to the extent that Smith's
argument is interpreted as a failure to instruct the jury on post-conviction
supervision, appellate review is barred due to improper preservation. See RCr
9.54(2); Martin v. Commonwealth, 409 S.W.3d 340, 346-47 (Ky. 2013).
Judicial Modification
Smith contends that trial judges have no statutory authority to modify
sentences in non-aggravated capital cases, and that it was error not to "advise"
the jury that its sentence for murder could not be altered by the judge.
However, he fails to assert the appropriate manner in which the court should
have "advised" the jury. If we interpret Smith's argument as a failure to
instruct the jury, our review is barred due to improper preservation. See RCr
9.54(2); Martin, 409 S.W.3d at 346-47. In any event, Smith's argument is
misguided.
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KRS 532.070 provides in part that "[w]hen a sentence of imprisonment
for a felony is fixed by a jury pursuant to KRS 532.060 . . . the court may
modify that sentence and fix a maximum term within the limits provided in
KRS 532.060 . . . ." KRS 532.060 governs sentencing in felony cases where the
death penalty is not authorized. In contrast, KRS 532.025 governs sentencing
in capital cases where the death penalty is authorized. All murders are
classified as capital offenses. KRS 507.020(2). Furthermore, "jslubsection 3
provides that at least one statutory aggravator must be
established beyond a reasonable doubt before the death penalty may be
imposed." Dunlap v. Commonwealth 435 S.W.3d 537, 566 (Ky. 2013) (citing
KRS 532.025(3)). The death penalty was not authorized in the present case
because there were no aggravating factors.
Smith contends that a person convicted of a non-aggravated capital
offense cannot be sentenced under either KRS 532.025 or KRS 532.060 and,
therefore, cannot have his sentence "fixed" or "modified" by the trial judge
pursuant to KRS 532.025(1)(b) or KRS 532.070. Indeed, there is no specific
statute governing sentencing for non-aggravated capital offenses. However,
KRS 532.010 classifies capital offenses as felonies for sentencing purposes.
Accordingly, sentencing in non-aggravated capital cases is governed in part by
KRS 532.060 and is, therefore, subject to modification by the trial court
pursuant to KRS 532.070. An instruction that the sentence could not be
modified by the judge would have been incorrect. There was no error here.
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Conclusion
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
hereby affirmed.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. All concur, except Noble, J., concurs in result only.
COUNSEL FOR APPELLANT:
Annie O'Connell
O'Connell Law Office
COUNSEL FOR APPELLEE
Jack Conway
Attorney General of Kentucky
Dorislee J. Gilbert
Special Assistant Attorney General