James Robert Girton v. Commonwealth of Kentucky

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 RENDERED : FEBRUARY 19, 2009
NOT TO BE PUBLISHED

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2007-SC-000289-MR

JAMES ROBERT GIRTON

ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE F. KENNETH CONLIFFE, JUDGE
NO . 06-CR-000778

COMMONWEALTH OF KENTUCKY APPELLEE

AND 2007-SC-000293-MR

DRASHAWN BARTLETT APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE F. KENNETH CONLIFFE, JUDGE
NO. 06-CR-000054

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

At approximately 7:00 pm on November 9, 2005, Adolfo Jimenez was

shot and killed at his home in the Arcadia Apartments in the 1500 block of

Oleanda Avenue in Louisville . The Commonwealth accused Drashawn Bartlett

and James Girton of Jimenez's murder and sought the death penalty against

Bartlett . Girton, a minor at the time of the offense, was ineligible for capital
 punishment . Following a two week trial in January and February 2007, a

Jefferson County jury convicted both defendants of first-degree robbery and

second-degree manslaughter. By judgments entered March 26, 2007, the

Jefferson Circuit Court sentenced Bartlett to consecutive terms of

imprisonment totaling twenty-eight years and Girton, who was also convicted

of possession of a handgun by a minor and of tampering with physical

evidence, to a total sentence of twenty-five years . Bartlett and Girton appeal

from those judgments as ;a matter of right.

Given the common underlying facts and overlapping legal issues, we

shall address the two appeals in this single opinion . Each appellant contends

that the jury should have been given the option of finding him guilty of merely

facilitating the other's crimes . Each also contends that statements he gave to

investigating officers should have been suppressed as fruits of an invalid

search warrant. In addition, Bartlett challenges the admission of numerous
his
items of evidence, claims that robbery conviction was based on insufficient

evidence, and maintains that the second of his custodial statements to the

investigators was improperly induced. Girton contends that he was denied his

right to participate in the individual voir dire . Finding no reversible error, we

affirm both judgments.

RELEVANT FACTS

At trial, all four of the defendants' taped custodial statements, two by

Bartlett and two by Girton, were played for the jury . Bartlett and Girton each

testified, moreover, with the result that the jury was presented with six
 versions of the shooting most of them differing in significant respects .

Additionally, two witnesses who had been outside Jimenez's apartment at the

time of the shooting described what they saw just before and after the shooting,

and two of the appellants' friends and Bartlett's grandmother testified to events

before and/or after the crime. Although these accounts differed in many

particulars, the following general outline of events emerged.

The day of the shooting, November 9, 2005, was a Wednesday . The

previous weekend, or perhaps a few days before, Harrison Morgan, a mutual

friend of both twenty-three year old Bartlett and seventeen year old Girton, had

moved into an apartment in the Iroquois Housing Project in Louisville, had

introduced Bartlett and Girton to each other, and had invited them to move in

with him, at least temporarily. The following Wednesday, Bartlett and Girton

wanted to move stereo equipment and Bartlett's television to the new

apartment and so enlisted the help of Girton's girlfriend, Tanise Harris, whose

1990 Lexus provided them with transportation. They finished moving those

items by mid-afternoon and then spent the rest of the afternoon listening to

music; playing video games; and, according to Girton, smoking marijuana .

Bartlett had been living with his grandmother, and at approximately 6 :00

that evening, according to her testimony and Bartlett's, she called him and

offered to bring him some clothes he had left at her home . They arranged to

meet at a convenience store in the Iroquois neighborhood . Rather than walk to

the store, Bartlett asked Girton if he could borrow Harris's car, and Harris gave

Girton permission to use it . According to both appellants, they first drove to
 the store, but thinking that with the car they could drive to 'Bartlett's

grandmother's house before she left, they left the store and drove to her home,

which is in the Arcadia neighborhood about a block from Jimenez's apartment .

Bartlett's grandmother was not home when the two men arrived . The events

which happened next are the subject of dispute.

According to Bartlett's initial statement to the police investigators, the

pair decided to ride through the Arcadia neighborhood while they waited for

Bartlett's grandmother to return, and because Girton did not have a license

Bartlett was driving. They parked in front of Jimenez's building in hopes of

meeting a couple of Bartlett's friends. They had not been there long when

Girton suddenly told Bartlett to "hold on," and without explaining what he was

doing exited the vehicle, hurried across the street, and entered the building.

Bartlett was listening to the radio, but looked up a moment later and through a

window in the apartment's door saw Girton "tussling" with another man . He

pulled the Lexus forward to get a better view, and as he did so a shot rang out.

Immediately, Girton came running from the building and jumped into the car,

exclaiming that the other man had tried to stab him . Bartlett claimed that he

panicked at that point and drove off, back to the Iroquois apartment.

Girton's initial statement was similar. He too claimed that Bartlett was

driving and that Bartlett could not have known why he, Girton, suddenly got

out of the car . He asserted that some two or three weeks earlier Jimenez had

robbed him at knife point, behind the Arcadia apartments, and that when he

caught sight of his assailant entering the apartment that night he had
 suddenly decided to retaliate. Girton claimed that when he confronted Jimenez

in the foyer of his building, Jimenez reached as though for a weapon,

whereupon Girton shot him in the leg and ran away.

The investigators were not satisfied with these statements . Jimenez's

relatives had reported that Jimenez, a native of Mexico, had been in the United

States for only ten days, which did not jibe with Gorton's account of a prior

robbery. Girton stated that he had thrown the gun out the car window during

the drive back to Morgan's apartment, but Bartlett claimed that he had not

seen the gun and did not know what happened to it. One of the witnesses

outside Jimenez's apartment, furthermore, reported that a young man had

emerged from the passenger side of the Lexus, stood along the street for couple

of minutes, reentered the Lexus, and then, when Jimenez had finished. a phone

conversation on the porch outside the building and gone inside, had hurried to

the building and fired a shot into Jimenez's apartment. According to the

witness, the shooter ran back to the street, where the Lexus had pulled up to

meet him . He hopped into the waiting car, which then sped off.

The officers confronted both Bartlett and Girton with their suspicions

that more was involved than retaliation, and in second statements each young

man admitted that the other, at least, had had robbery in mind. Bartlett

claimed that while they were driving through Arcadia, Girton had said that he

"felt like robbing somebody." Thinking that Girton was just bragging, however,

and trying to make himself feel tough, Bartlett had not taken him seriously.

Just a few minutes later, Girton told Bartlett to stop the car, ran into the
 building, struggled with Jimenez, and shot him. But even then, according to

Bartlett, he "didn't know what was going on" until Girton got back to the car.

In Girton's second statement, he claimed that robbery was Bartlett's

idea, an idea suggested by the fact that Girton had a gun . At first, Girton said,

he had not felt "up to" a robbery, but when he saw his former assailant he

decided to go through with it. His intention, he said, was to rob Jimenez and

to scare him, but when he thought that Jimenez was reaching for a weapon he

shot him and fled.

Jimenez was shot in the left hip area and bled to death before

paramedics arrived . The police found no evidence that he had been armed .

After the shooting, one of Jimenez's relatives, who had been sitting in her

car outside the apartment, followed the fleeing Lexus and got the license

number . The next day that led the police to Tanise Harris, who informed them

that Girton and Bartlett had borrowed her car for about an hour the previous

evening and had returned with it to Morgan's Iroquois apartment. Based in

part on her statement and the positive identification of the vehicle at the scene

of the crime, officers obtained a search warrant for Morgan's apartment, which

they executed at approximately 6 :00 p.m. the day after the shooting. In

addition to arresting Bartlett, Girton, and Morgan at Morgan's apartment, the

police seized a nine-millimeter handgun and ammunition for it, various articles

of clothing, a small amount of marijuana, and 2 .14 grams of crack cocaine.

In January 2006, a Jefferson County Grand Jury indicted Bartlett for

murder, two counts of first-degree robbery, first-degree possession of a
 controlled substance (cocaine), tampering with physical evidence, and unlawful

transaction with a minor. One of the robbery counts related to a separate

incident and was severed from the other charges for trial. In March 2006,

following his transfer to circuit court pursuant to KRS 635 .020(4), Girton was

indicted for murder, first-degree robbery, first-degree possession of a controlled

substance (cocaine), tampering with physical evidence, and possession of a

handgun by a minor. The two cases were tried jointly in late January and early

February 2007.

As noted above, both defendants testified at trial. Bartlett essentially

reiterated his second statement to the police. He again admitted that Girton

had mentioned wanting to rob someone, but claimed that he responded by

informing Girton in no uncertain terms that he wanted no part of a robbery.

Girton seemed to accept that decision, Bartlett testified, and so when they

parked and Girton suddenly left the car and hurried to Jimenez's building,

Bartlett had no idea what Girton was doing and assumed that he knew

someone inside.

Girton, however, told an utterly different story at trial. He claimed that

he was the driver that evening, not Bartlett, and that when they could not get

into Bartlett's grandmother's house, Bartlett had directed him to the Arcadia

Apartments, ostensibly to get a key to the grandmother's house from one of

Bartlett's cousins . Girton had parked the Lexus, and Bartlett, after looking

around for a minute and saying that he would be right back, had walked

across the street to the building where his cousin was supposed to live . Girton
 claimed that he was listening to the car's radio and rolling a joint when he was

startled by the gun shot. Looking up, he saw Bartlett running from the

building, so he pulled the car out of the parking space and in response to

Bartlett's frantic, "Go, man, go!" had panicked and sped off back to Morgan's

apartment. The pair realized that they had been followed and that their license

number had probably been recorded . They agreed, therefore, that when the

police came Girton, the minor, would "take the case," i. e., would take

responsibility for the shooting. His punishment, they hoped, would be much

less severe than Bartlett's punishment as an adult. In fact, however, Girton's

case was transferred to circuit court and he too was tried as an adult and faced

the possibility of a life sentence . That was a risk, Girton testified, that he was

not willing to accept for something he had not done .

Unfortunately, neither of the witnesses at the scene could positively

identify the shooter, and their descriptions of him were inconclusive . They

remembered him as thin and as wearing a blue bandana, which perhaps

suggested Bartlett, but they also remembered him as wearing black or dark

clothing, which seemed to point to Girton . The Commonwealth argued that it

did not really matter which of the two had pulled the trigger, because, as their

second, less rehearsed statements to the investigators indicated, both

defendants planned and participated in an armed robbery that turned into a

wanton murder . The jury was instructed on that theory and was instructed as

well on the lesser offenses of second-degree manslaughter and reckless

homicide . As noted, the jury found both defendants guilty of robbery and
 second-degree manslaughter. We shall begin our analysis with the defendants'

claims that the jury should also have been instructed on facilitation.

ANALYSIS

I. The Trial Court Did Not Err By Refusing The Defendants' Requests For
Facilitation Instructions.

As the parties correctly note, facilitation is a lesser included offense of

complicity . Under the facilitation statute, KRS 506 .080,

[a] person is guilty of criminal facilitation when, acting
with knowledge that another person is committing or
intends to commit a crime, he engages in conduct
which knowingly provides such person with means or
opportunity for the commission of the crime and which
in fact aids such person to commit the crime.

A person is guilty of an offense committed by another person, on the other

hand-complicity-when

[ 1 ] with the intention of promoting or facilitating the
commission of the offense, he :
(a) Solicits, commands, or engages in a conspiracy
with such other person to commit the offense ; or
(b) Aids, counsels, or attempts to aid such person in
planning or committing the offense; . . . .
(2) When causing a particular result is an element of
an offense, a person who acts with the kind of
culpability with respect to the result that is sufficient
for the commission of the offense is guilty of that
offense when he:
(a) Solicits or engages in a conspiracy with another
person to engage in the conduct causing such result;
or
(b) Aids, counsels, or attempts to aid another person in
planning, or engaging in the conduct causing such
result.

KRS 502 .020. The primary difference between the two offenses is the

defendant's state of mind . Whereas complicity requires the same mens rea as
 the principal offense-intent for complicity to robbery, for example, and

wantonness for complicity to second-degree manslaughter-facilitation applies

where the defendant knows of and lends assistance to the wrongdoing but

without sharing the criminal purpose or otherwise entering into the wrongful

conduct, where he remains, in essence, "a knowing, cooperative bystander with

no stake in the crime." Monroe v . Commonwealth, 244 S .W.3d 69, 75 (Ky.

2008) . See also Chumbler v. Commonwealth, 905 S.W .2d 488 (Ky. 1995) ;

Webb v . Commonwealth , 904 S .W.2d 226 (Ky. 1995) . A facilitation instruction

is authorized if, but only if, the evidence would support a finding of this

knowing but "indifferent" assistance . White v. Commonwealth , 178 S .W .3d

470, 490 (Ky. 2005) .

In this case, the trial court refused to instruct on facilitation because in

its view the evidence tended to show either that both defendants fully

participated in the offenses or that one of them was innocent, but not that

either of them provided merely knowing aid and cooperation. We agree . The

defendants argue that the jury could have believed that the driver knew of but

did not share the other's intent to rob, but absent testimony to that effect there

must be some other substantial evidence tending to prove the driver's mere

cooperation, and we agree with the trial court that there was none. As noted,

the defendants' statements and testimony indicated only that they were both

involved (Girton's second statement to the investigators), or that the driver "had

no idea" what the other was up to.
 Their testimony distinguishes this case from Webb v. Commonwealth,

su ra, on which both defendants rely. In Webb , the defendant was accused of

being complicit in his girlfriend's drug trafficking . He testified that in the

course of giving the girlfriend a ride he learned that a drug transaction was

afoot and that although he then knowingly helped her complete the

transaction, he did so without having any stake in it or intending it to occur .

The other circumstances of the case lent enough plausibility to this testimony,

we held, to raise a jury question concerning facilitation .

Here, however, aside from Girton's initial inculpatory statements, both

defendants disavowed any knowledge that a crime was taking place, and none

of the other circumstances lend support to their claims that the driver knew of

but did not intend to further his companion's plan to rob Jimenez with a

deadly weapon . On the contrary, the witnesses at the scene described a driver

who behaved like a get-away driver, not like an indifferent bystander. It is

true, of course, as the defendants argue that the jury was not obliged to accept

their testimonies at face value and was free to make its own credibility

determinations, but that fact does not authorize the trial court to instruct on

"imaginary scenarios" with no evidentiary support. White v. Commonwealth,

178 S.W.3d at 491 (citation and internal quotation marks omitted) . The

facilitation scenario in this case lacked evidentiary support, and the trial court

therefore correctly refused to give facilitation instructions.
 II. The Search Warrant Was Adequately Supported By Probable Cause.

Prior to trial, the defendants moved to suppress their custodial

statements on the ground that they derived from an illegal search of Morgan's

apartment. The search was illegal, they maintained, because the warrant

authorizing it was based on an inadequate showing of probable cause . Both

defendants contend that the trial court erred when it denied their motions to

suppress .

In addition to identifying Morgan's apartment as the place to be searched

and naming the three expected occupants, the requesting officer's warrant

affidavit stated that she had learned on November 10, 2005 at 12 :10 that the

police had responded to a shooting death at Jimenez's apartment and that a

witness had reported seeing a subject leave the building immediately after the

shooting, place a gun in his waistband, and enter the passenger side of a

waiting car with a certain Kentucky license number. The affidavit explained

that the license number led to the registered owner, Tanise Harris, and

concluded with the statement obtained from Harris that

she was at 1523 Oneida [Morgan's apartment] last
night and [m]et her friend, "J .R .," also known as
James Girton . She stated that James moved into the
listed address which is leased to Harrison Morgan.
Ms. Harris stated that Mr. Girton and his friend, a
black male who goes by "Polo," left in her car to go to
the store between 1810 and 1840 hours and they
returned at approximately 1910 hours .

The defendants contend that because the affidavit fails to state explicitly

the date and time of the shooting, it alleges what must be deemed a stale

crime, evidence of which was not likely to be found at Morgan's apartment .

12
 They also contend that the affidavit fails to establish Harris's reliability and

thus that her statement does not lend support to a finding of probable cause .

As the defendants correctly note, a search warrant should not be issued

unless the issuing magistrate makes

a practical, common-sense decision [that], given all the
circumstances set forth in the affidavit before him . . .
there is a fair probability that contraband or evidence
of a crime will be found in a particular place .

Ragland v . Commonwealth , 191 S .W.3d 569, 583 (Ky. 2006) (citing and quoting

from Illinois v. Gates, 462 U .S . 213 (1983)) . Because probable cause

deteriorates over time, one of the factors that must enter into the magistrate's

decision is the age of the officer's information . Judged in light of such other

circumstances as the type of crime and the permanence of the evidence being

sought, information that is too stale to suggest a fair probability that evidence

will presently be found does not justify a warrant, however probative the

information may have been when it was fresh . Id. A warrant affidavit that fails

to include enough temporal information to permit the magistrate to assess its

staleness is inadequate as a matter of law. United States v. Hython, 443 F.3d

480 (6th Cir. 2006) (affidavit that gave "no clue" when the alleged crime

occurred was insufficient) .

The defendants contend that the officer's affidavit here was insufficient

because it did not state when the shooting took place . It is true that in her

description of the crime the requesting officer omitted the date, a detail that

should have been included . Warrant applications are often prepared in haste,

however, and, as noted above, are to be assessed not according to rigid

13
 technicalities but in a practical, common-sense manner taking into account the

application as a whole. Here, although the officer did not state explicitly the

date of the shooting, the affidavit itself was dated November 10, 2005 and

indicated that Harris had loaned her car to the defendants "last night." "Last

night," by clear implication, was also when Harris's car had been seen speeding

away from the scene of the crime. Although not a model of clarity, perhaps, the

affidavit adequately conveyed to the issuing judge when the crime occurred and

permitted him to determine that the officer's information was not stale .

Seeking to undermine this conclusion, the defendants also contend that

the issuing judge should not have relied on the statement Harris gave to the

investigators because the affidavit does not include facts establishing Harris's

reliability as an informant. Unlike the anonymous informant in Illinois v .

Gates , 462 U.S . 213 (1983), however, the case upon which the appellants rely,

the officers knew Harris's identity and questioned her in person, circumstances

favoring reliance on her statement . Florida v. J .L . , 529 U.S . 266 (2000) .

Contrary to the appellants' assertions, moreover, Harris's statement that she

had loaned her car to Girton and Bartlett was corroborated, for probable cause

purposes, by the crime scene witnesses who had positively identified Harris's

vehicle in the possession of two young men. The issuing judge did not err,

therefore, by taking Harris's statement into account or by issuing the warrant

to search Morgan's apartment .
 III. Bartlett Is Not Otherwise Entitled To Relief.

A. There Was Sufficient Evidence To Find Bartlett Guilty Of Robbery.

We turn next to the issues each appellant has raised individually,

beginning with Bartlett's . He contends, first, that his robbery conviction

cannot stand because the Commonwealth failed to prove that the shooting

occurred in the course of a theft or attempted theft. As he correctly notes, the

first-degree robbery statute, KRS 515.020, provides in pertinent part that

(1) A person is guilty of robbery in the first degree
when, in the course of committing theft, he uses or
threatens the immediate use of physical force upon
another person with intent to accomplish the theft and
when he :
(a) Causes physical injury to any person who is not a
participant in the crime; or
(b) Is armed with a deadly weapon .

The Commonwealth was obliged to prove, then, an assault with the intent to

accomplish a theft accompanied either by a physical injury to a non-participant

or by the assailant's being armed with a deadly weapon .

Bartlett concedes that the evidence establishes an assault and both an

injury and a deadly weapon, but he maintains that there was insufficient

evidence of a theft or an attempted theft, i.e., there was no evidence that the

shooter took any property from Jimenez, nor did any of the witnesses at the

scene describe even an attempt to do so . We have previously explained,

however, that robbery is primarily an offense against the person and that the

theft element is satisfied if the assault is perpetrated with the intent to obtain

property "`whether any . . . property is actually taken or not.'" Commonwealth

v. Smith, 5 S .W. 3d 126, 129 (Ky. 1999) (quoting from Lamb v. Commonwealth,

15
 599 S.W.2d 462 (Ky . App . 1979)) . A rational juror in this case could have been

convinced by Girton's second statement to the olice and by the pair's

coordinated getaway from the scene that Bartlett and Girton rode through the

Arcadia apartments looking for someone to rob and that in furtherance of their

plan Girton assaulted Jimenez intending to steal from him. This evidence

satisfies the theft element of first-degree robbery, and thus Bartlett is not

entitled to relief from his robbery conviction . Commonwealth v. Benham, 816

S .W .2d 186 (Ky. 1991) (noting the standard of review for sufficiency-of-the-

evidence challenges) .

B. Bartlett's Unredacted Jailhouse Notes To Girton Were Properly
Admitted Into Evidence .

Bartlett next contends that the trial court erred by permitting the

introduction of certain items of evidence. He complains first that two notes he

wrote to Girton during their incarceration pending trial should have been

excluded because they refer to a collateral robbery and to Bartlett's plea

negotiations with the Commonwealth . He also complains that various items

seized from Morgan's apartment were irrelevant to the Commonwealth's case

and should not have been mentioned . Although we agree to some extent with

this latter contention, we are convinced that the error was harmless and so not

a ground for relief.

As noted above, at trial each defendant pointed the finger at the other

and claimed that the shooting took him totally by surprise . Girton attempted

to explain away his inculpatory statements to the police by testifying that after

the shooting Bartlett talked him into "taking the case ." As part of this defense,

16
 Girton's counsel asked Bartlett on cross-examination if that was not what

happened, and when Bartlett denied urging Girton to take responsibility,

counsel had him read to the jury two notes he had written to Girton while they

awaited trial . The first note, written in two parts on the front and back of a

sheet of paper, stated,

What's up brah, They bout to offer me some stupid ass
deal like 20/85 but if I get it broke down I could get
less . If I can get this other robbery off me I'm str8 a lil
bit that's where the x-tra 10 yrs iz comin from. They
trien to give me the death penalty but you cant get it
plus they said you can get less time than me . Just
stay to your word and I'm gonna have to testify for you
or someethin cuz I gotta get the robbery off of you . My
momma wanted to talk to you cuz she has some advice
for you . A lot of shit they done to us they cant do but
we just gotta fight.

Then on the reverse side :

I got Sharisha bout to bring some money up here
hopefully I can get some this week . My mama just got
out the hospital she aint been working cuz she got a
blood clot in her leg. But I'm sorry to hear bout your
moma. Is she str8? Plus the only reason I aint said
nuttin to you is cuz you aint said nottin to me and I b
tryin hard to get the g.e .d . shit str8 feel me. Holla
back lil Brah . Hunnit.

After Bartlett read this note to the jury, Girton's counsel asked him if he had

not been urging Girton to stick with the story they had fabricated after the

shooting because he, Bartlett, was facing additional and more serious charges .

When Bartlett denied urging Girton to tell anything but the truth, Girton's

counsel had him read this second statement to the jury:

We need to get our story together. I got my side. You
just need to write me yours but jus say you just was
going to ask [the] dude why he robbed you. He

17
 reached and you didn't want that to happen again but
you never intended to kill him .

Bartlett maintains that the admission of these notes was improper because of

the references in the first one to a plea offer and to "this other robbery."

The first reference, he contends, violates KRE 410, which prohibits

admission of any statements "made in the course of plea discussions with an

attorney for the prosecuting authority which do not result in a plea of guilty or

which result in a plea of guilty later withdrawn." As the Commonwealth

correctly points out, however, this rule applies only to statements made to the

prosecuting authority, not to statements, such as this one, made to a third

party. Bratcher v . Commonwealth, 151 S.W.3d 332 (Ky. 2004) . Nor does KRE

408 come to Bartlett's aid, for that rule, which addresses evidence of

compromise negotiations, expressly allows use of compromise evidence for

such purposes "as proving bias or prejudice of a witness ." KRE 408(2) . The

trial court did not err, therefore, by admitting Bartlett's reference to the

Commonwealth's plea offer.

Nor did the court err by admitting Bartlett's reference to "this other

robbery." Bartlett contends that that reference should have been excluded

pursuant to KRE 404(b), which provides in part that evidence of other crimes is

not admissible "to prove the character of a person in order to show action in

conformity therewith ." Again, however, such evidence is admissible to impeach

a witness's credibility, Foley v . Commonwealth , 942 S .W .2d 876 (Ky . 1996),

provided that it is relevant and probative for that purpose and that its

probative value outweighs its prejudicial tendency . Anderson v.

18
 Commonwealth , 231 S .W .3d 117 (Ky. 2007) . Here, there is no dispute that

Bartlett faced an additional robbery charge, so his reference to that charge was

probative, and the additional charge was relevant to the impeachment of

Bartlett because it added to his reasons for urging Girton to "take the case," as

Girton alleged and Bartlett denied. Finally, against the obvious prejudice to

Bartlett of being associated with an additional robbery was to be weighed

Girton's constitutionally protected interest in presenting a full defense . We

cannot say that the trial court abused its discretion by ruling that the

probative value to Girton of Bartlett's "other robbery" reference outweighed its

prejudicial effect on Bartlett . The trial court did not err, in sum, by admitting

Bartlett's notes in their entirety.

C. Although Mention of Irrelevant Items Seized At Morgan's
Apartment Should Not Have Been Allowed, The Error Was Harmless

In addition to arresting Bartlett and Girton, the police officers who

executed the search warrant for Morgan's apartment seized, among other

things, a nine-millimeter handgun, nine-millimeter and shot-gun ammunition,

a small quantity of marijuana, a scale, and 2 .14 grams of crack cocaine .

Ballistics testing established that the seized gun was not the one used to shoot

Jimenez, and though the defendants were both charged with possessing the

cocaine, neither was charged with marijuana or paraphernalia offenses.

Bartlett moved in limine to exclude any mention of these items as irrelevant to

the alleged robbery and killing and as suggestive merely of criminal disposition

in violation KRE 404(b) . The trial court permitted the arresting officers to

itemize during their testimony what was seized as part of the description of the

19
 arrest, but it did not allow the Commonwealth to discuss further or to

introduce photographs of the ammunition, the marijuana, or the scale. The

trial court also admonished the jury that the seized gun was not the gun used

to shoot Jimenez. In addition, Harrison Morgan testified that the gun and the

cocaine were his and his alone. Bartlett maintains that notwithstanding the

limitations imposed by the trial court, the court erred by allowing any mention

of the seized gun, the ammunition, the marijuana, and the scale, and by

allowing into evidence photographs of the seized cocaine .

With respect to the cocaine evidence, both defendants were charged with

possessing the cocaine, so clearly the cocaine evidence was admissible .

Evidence of the uninvolved gun, the ammunition, the marijuana and the scale,

however, should have been excluded. Although "KRE 404(b)(2) is intended to

be flexible enough to permit the prosecution to present a complete, un-

fragmented, un-artificial picture of the crime committed by the defendant,

including necessary context, background and perspective," Major v .

Commonwealth, 177 S .W .3d 700, 708 (Ky. 2005) (citation and internal

quotation marks omitted), contextual evidence does not extend to "weapons

which have no relation to the crime ." Brewer v. Commonwealth, 206 S .W .3d

313, 324 (Ky. 2006) (citation and internal quotation marks omitted) . Likewise

the Commonwealth was not prepared to link either the marijuana or the scale

to either defendant, and evidence concerning the marijuana and scale was not

necessary to an adequate understanding of the context of the charged offenses.

We agree with Bartlett, therefore, that the trial court erred by admitting even

20
 limited evidence concerning the uninvolved gun, the ammunition, the

marijuana and the scale.

Bartlett is not entitled to relief, however, notwithstanding the error,

because we are convinced that the error was harmless . RCr 9 .24 . An

evidentiary error will be deemed harmless, we have held, if there is no

"reasonable possibility that the evidence complained of might have contributed

to the conviction ." Anderson v . Commonwealth, 231. S .W.3d at 122 (citations

and internal quotation marks omitted) . Here both defendants were acquitted of

the cocaine charge, so the improper cocaine evidence was harmless in that

respect . Otherwise, the evidence was conclusive that a firearm was used in the

attack upon Jimenez, and Tenise Harris testified that she had seen Girton in

possession of handgun just three or four days prior to the shooting . The

improper evidence had no bearing whatsoever, therefore, on the jury's

determination that a firearm was involved. The principal issues in this case,

rather, were whether that shooting was part of a robbery and whether the

driver was complicit in the offenses . Those issues were addressed primarily by

the defendants' custodial statements, their testimonies, and by the testimonies

of the witnesses at t he scene. Again, because a gun clearly was involved and

drugs were not, there is simply no possibility, reasonable or otherwise, that the

improperly admitted evidence tipped the scales on those issues . Nor, given the

fact that the jury acquitted the defendants of murder and opted for one of the

lesser included offenses instead, is there a reasonable possibility that the
 improper evidence contributed to an unduly harsh penalty. The evidentiary

error was harmless, in sum, and so does not entitle Bartlett to relief.

D. The Investigator Did Not Improperly Induce Bartlett's Second
Custodial Statement.

Finally, Bartlett contends that his second statement to the investigators

should have been suppressed because it was induced by an improper promise

of leniency. The second statement was the one in which Bartlett admitted that

Girton had spoken of wanting to rob someone, but Bartlett claimed that he did

not take seriously what he regarded as a mere boast. Toward the end of that

statement Bartlett explains that he decided to amend his first statement "just

to be truthful, just to be truthful and, uh, [so] that you would help me as best

as you can." The interview then continued as follows :

Detective : [So] that I would tell the prosecutor that
you cooperated and that you told the truth?
Bartlett: Yeah.

Detective : I told you that, uh, that the prosecution
aspect was out of my hands . Is that correct?
Bartlett : Yeah .
Detective : That I have nothing to do with who gets how
much time or anything like that . . is that correct?
Bartlett: Yeah.

Bartlett maintains that the detective's promise of help improperly induced his

statement . It is clear from the portion of the statement just quoted, however,

that the detective promised Bartlett nothing but to tell the prosecutor that he

had cooperated . In Peak v. Commonwealth , 197 S .W.3d 536, 542 (Ky . 2006),

we held that such a promise "does not render the confession involuntary."

Bartlett, therefore, was not entitled to the suppression of his second statement .

22
IV. The Trial Court Did Not Improperly Limit Girton's Right To
Participate In Voir Dire.

Girton, finally, contends that the trial court erred by not allowing him to

participate in the individual voir dire portion of jury examination . We disagree .

As noted above, the Commonwealth sought the death penalty against

Bartlett, but because Girton was a minor at the time of the offense he was not

subject to capital punishment . In a capital case, the jury selection process

includes questioning concerning the prospective jurors' ability to consider the

entire range of authorized sentences, including death, and those members of

the venire whose beliefs or attitudes would prevent or substantially impair the

performance of their duty to follow the law may be excused. In Kentucky, of

course, the same jury considers both the guilt and sentencing phases of a

defendant's trial. The United States Supreme Court has held that in a joint

trial with both capital and non-capital defendants, this "death qualification" of

the jury that will consider both guilt and sentencing does not violate the non-

capital defendant's right to an unbiased jury. Buchanan v. Kentucky , 483 U .S .

402 (1987) .

Under our jury selection procedures,

[w]hen the Commonwealth seeks the death penalty,
individual voir dire out of the presence of other
prospective jurors is required if questions regarding
capital punishment, race or pretrial publicity are
propounded . Further, upon request, the Court shall
permit the attorney for the defendant and the
Commonwealth to conduct the examination on these
issues .
 RCr 9 .38. In this case, because the Commonwealth was not seeking the death

penalty against Girton, the trial court did not allow his counsel to propound

questions during individual voir dire. Girton appears to maintain that because

his counsel was thus prevented from arguing against the removal of certain

members of the panel, he was denied his right under the rule to participate

fully in jury selection . He also asserts in a conclusory manner that he was

denied his constitutional rights to an unbiased jury and to due process, but

without more developed arguments explaining how those rights may have been

compromised, we decline to address the constitutional issues except to note

that they appear to be foreclosed by the Supreme Court's decision in

Buchanan .

With respect to RCr 9 .38, we agree with the trial court that inasmuch as

a non-capital defendant has no interest in the "death qualification" of the jury,

the rule does not give him a right to propound questions regarding capital

punishment. See United States v. Sanchez, 75 F.3d 603 (loth Cir. 1996)

(holding that a non-capital codefendant could be denied participation in the

"death qualification" portion of voir dire) . On the other hand, a non-capital

defendant has an interest in and a right to explore the jury's attitudes toward

race and its exposure to pretrial publicity. The rule does not prevent the trial

court from permitting a non-capital defendant to participate in individual voir

dire on those topics, and if individual voir dire is not allowed, the non-capital

defendant must be permitted to pursue them during general voir dire.
 Girton does not complain, however, that he was denied an opportunity to

examine the venire regarding race or pretrial publicity . He complains, rather,

that during individual voir dire the trial court excused three jurors for

hardships-a sick child, a hearing impairment, and a mental disability-

without according him (or any of the other parties) an opportunity to object .

Hardship excusals, however, "are within the discretion of the trial judge . . . .

and are not required to be decided in open court or in the presence of or in

consultation with any parties or their counsel ." Soto v. Commonwealth, 139

S.W.3d 827, 852 (Ky. 2004) (citing Admin . Proc., Part II, § 12(1)) . Because

these excusals do not implicate RCr 9 .38, and because Girton has failed to

demonstrate how they might have compromised his constitutional rights, he is

not entitled to relief on this ground .

CONCLUSION
In sum, the jury found that the defendants undertook to rob Adolfo

Jimenez and that in the course of doing so they wantonly shot and killed him.

Both defendants admitted being present at the shooting, and both

acknowledged that shortly before the shooting the subject of robbery had been

broached . Girton, of course, acknowledged much more than that. In his

second statement to the police, Girton maintained that the pair jointly intended

to rob Jimenez and that he was shot as Girton attempted to carry out that

intent. The surrounding circumstances were consistent with that scenario,

and accordingly the trial court correctly gave jury instructions charging both

defendants with robbery and the different degrees of homicide . Because no

25
 evidence suggested that either defendant knowingly assisted the other to

commit the crimes without intending to further them, the trial court correctly

declined to give facilitation instructions . The court also correctly declined to

suppress the defendants' custodial statements. The affidavit which preceded

the search warrant was sufficient to dispel any notion that the information was

stale and permitted a meaningful probable cause determination . Bartlett's

second statement, moreover, was not tainted by the officer's promise to tell the

prosecutor that Bartlett had cooperated, a legally permissible promise that

does not render the statement involuntary. Although the trial court should not

have permitted mention at trial of a gun, ammunition, marijuana and a scale

with no connection to the charged crimes, these errors are utterly unlikely to

have had any bearing on the outcome, and so do not justify relief. Finally,

Girton was not entitled under RCr 9.38 to participate in the "death

qualification" portion of voir dire, and he has not shown that otherwise his

inability to object to three hardship excusals violated in any way his right to an

unbiased jury or to the due process of law . Accordingly, in both 2007-SC-

000289-MR (Girton) and 2007-SC-000293-MR (Bartlett), we affirm the March

26, 2007 Judgments of the Jefferson Circuit Court.

All sitting. All concur.
COUNSEL FOR APPELLANT,
JAMES ROBERT GIRTON :

Francis William Heft, Jr.
200 Theatre Building
629 Fourth Avenue
Louisville, KY 40202

Elizabeth B . McMahon
Assistant Public Defender
Office of the Jefferson District
Public Defender
200 Advocacy Plaza
717-719 West Jefferson Street
Louisville, KY 40202

COUNSEL FOR APPELLANT,
DRASHAWN BARTLETT:

Kathleen Kallaher Schmidt
Appeals Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601-1109

COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601