RENDERED: FEBRUARY 18, 2016
0,Suprrtur (gaud of
2014-SC-000228-MR
DAT 1E3-to-Ita
DARRYL PARKER APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE BRIAN C. EDWARDS, JUDGE
NO. 12-CR-0065-003
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Darryl Parker appeals as a matter of right from a Jefferson Circuit Court
Judgment convicting him of four crimes, including two counts of first-degree
robbery, and sentencing him as a second-degree persistent felony offender to
concurrent prison terms totaling twenty-five years. The jury found Parker
guilty of the November 16, 2011 robbery of a Chase Bank in the Fern Creek
area of Jefferson County, of the December 30, 2011 robbery of a south
Louisville motel, of tampering with physical evidence of the motel robbery by
trying to conceal a handgun used in that robbery, and of being a convicted
felon in possession of that same handgun. In this appeal, Parker contends that
the denial of his pretrial motion for a continuance and unfair questioning
during the Commonwealth's cross-examination of him tainted the guilt phase
of his trial and each error requires reversal of his convictions. He also
contends that the penalty phase of his trial was tainted by evidence improperly
detailing his prior offenses and that that error requires remand for a new
penalty phase. Convinced that Parker is not entitled to any of the relief he
seeks, we affirm the circuit court's Judgment in its entirety.
RELEVANT FACTS
An assistant manager of the Chase Bank testified that during the late
afternoon of November 16, 2011, she was working as a teller when an African-
American male wearing sunglasses; a grey, billed cap; and a plaid jacket
approached the glass doors of the bank with his hands in his jacket pockets.
Once inside the bank, the man pulled out a black handgun, held it over his
head, and announced, "This is a robbery; give me all of your money." He
proceeded to bang the gun on the counter in front of the assistant manager
and the other teller then on duty and demanded "big bills," and "no dye packs."
The assistant manager testified that the man had tattoos on his neck. As the
tellers placed money on the counter, the man grabbed approximately $300 and
ran back out the front door. According to the assistant manager, the entire
incident probably lasted less than a minute.
Within a few minutes a number of police officers (as many as fifteen
according to one policeman) responded to the report of a bank robbery and
began searching the surrounding area for the robber. According to one of the
detectives who joined the search, he heard over his radio that a man had been
seen running from the bank toward a nearby apartment complex, so he began
his search at the complex. Lying in a roadway along the back of the complex,
which was toward the bank, the detective came across a dark grey toboggan-
2
type ski mask/hat with a cap bill together with a pair of sunglasses. He
reported his find and secured the area until an evidence technician
photographed and collected the mask/hat and glasses. Not far from that spot
another officer came across a $10 bill lying on the ground. It too was
photographed, although it was not taken into evidence. Eventually, samples
were taken from the hat and glasses and sent to the state forensics lab in
Frankfort for DNA analysis, but in the immediate aftermath of the robbery
neither the witnesses at the bank, nor anyone who had observed the robber's
flight, nor anyone seeing bank surveillance images on television news reports of
the robbery could (or would) identify the robber.
A long-time maintenance/security employee of what was known in 2011
as the Jameson Inn, a motel off of Fern Valley Road near 1-65 in south
Louisville, testified that at about 5:00 p.m. on December 30, 2011, he was
seated in the motel's front lobby watching television when two people entered
through the main entrance and proceeded directly down a short hallway
toward the public restrooms. He paid them little attention, because guests
came and went from the motel regularly. About two minutes later, he testified,
the same two people accosted him from behind where he sat. Both were
African-American (as was the motel employee/witness), one larger and one
smaller. Both were dressed in black, though the smaller person's black top
had a contrasting design on the back. Both wore black ski masks pulled down
to cover their faces. The larger person, whose voice confirmed that he was
3
male, held a black handgun to the motel employee's head and demanded to be
taken to the motel's safe.
The employee, one of only two people on duty at the time, accordingly led
the pair to the door to the motel's office, unlocked the door, and let the pair
inside. The other employee on duty at the time, a manager in charge of the
front desk, was working in the office, and she explained to the robbers that
neither she nor the maintenance employee had a key to the motel's safe. The
robbers then proceeded, according to both employees, to take from the
manager's purse, among other items, cash (about $400) and a notebook-type
computer. They also demanded access to the front desk's cash drawer, and the
manager responded by going to the front desk and placing the cash drawer on
the counter. The smaller robber, who, both employees testified, was female,
then took from the drawer several paper-clipped bundles of cash. Her actions
were captured on the motel's surveillance video, and that video was later
shOwn to the jury. According to the maintenance employee, the robbers then
left the motel through the rear exit, where there was a path to a neighboring
Wendy's restaurant. The manager called the police.
A few doors east of the Wendy's on Fern Valley Road was another
restaurant, an Indi's. One of the several police officers who responded within
minutes to the report of the motel robbery was a detective who testified that the
robbers' descriptions had been broadcast on police radio, and as he drove east
on Fern Valley Road away from the Jameson Inn he saw a male and a female
who matched the descriptions and who appeared to have just exited that Indi's.
4
The two people walked east from the restaurant toward the motel next door—at
that time a Days Inn. The female noticed his marked car, the detective
testified, and several times as she walked looked back over her shoulder at it,
which the detective thought suspicious. When the pair entered the Days Inn,
the detective promptly parked his car and, with another officer who had just
arrived, followed them inside. Before he reached the entrance, the detective
saw through the Days Inn's front window the two individuals darting about in
the front lobby, but as soon as he entered the lobby the two abruptly found
chairs. Almost immediately, the second officer arrived in the lobby and noticed
cash, what proved to be $291, tucked beneath one of the lobby beverage
machines. Upon further inspection the detective saw that some of that cash
was in paper-clipped bundles. The Days Inn's surveillance video and an inn
employee later confirmed that upon entering the lobby, the female suspect had
hurriedly tried to stuff cash beneath the machine.
The two individuals, Darryl Parker and Jodeci Chadwick, were eventually
arrested and searched. The search yielded an additional $45 in the possession
of Chadwick and $293 in the possession of Parker. Thus, the amount—$668-
allegedly taken from the Jameson Inn ($268) and its manager (about $400) was
closely approximated by the amount—$629—found a short time after the
robbery in the possession of Chadwick ($336) and Parker ($293).
Chadwick and Parker having possibly visited the Indi's, investigators
checked there, too. On the Indi's surveillance video the two were recorded
entering the hallway leading to the restrooms. In the trash receptacle in the
5
men's room, an officer found a black semi-automatic handgun loaded with five
(or six) live 9 mm bullets, one of which was in the chamber ready to be fired.'
Meanwhile, another officer investigated the Wendy's parking lot a short
distance from the back door through which the robbers had exited the
Jameson Inn and there he found a 2002 Mercury Sable automobile and its
owner, Rodericka Bryant. The officer could see in the Mercury a notebook
computer like the one allegedly stolen from the Jameson Inn's manager's purse
as well as items of clothing—for example, black ski masks, a black sweatshirt,
a black jacket with contrasting stripes—like the clothing allegedly worn by the
robbers. Bryant was therefore arrested in addition to Chadwick and Parker,
and all three were taken to police headquarters for questioning.
Although their accounts of the Jameson Inn robbery evolved
considerably in the course of their interviews, Bryant and Chadwick eventually
gave statements and later testified at trial to the effect that in December 2011
they had been in a close relationship with each other and that both were
friends with Parker. Needing money for a New Year's celebration, the three
friends had met at Chadwick's brother's residence in hopes of crossing paths
with one of Chadwick's cousins who had recently promised Chadwick to repay
a loan. When the cousin failed to appear, Parker had suggested that they "hit a
lick,"—commit a robbery—instead. The women were reluctant, so to sell them
on the idea Parker, they claimed, showed them, by means of his phone's
1 We are unsure from the testimony whether the chambered round was in
addition to five other rounds "in the magazine," or was one of the five.
6
internet browser, a surveillance image of the Chase Bank robber and asserted
that he was that robber—thus proving that one could get away with that sort of
robbery. Duly impressed, the women agreed to join Parker in a similar
venture.
With Bryant driving and Parker giving directions, the threesome first had
thoughts of robbing another bank. Parker and Chadwick were to do the actual
robbing with Bryant serving as get-away driver. The plan got as far as Parker
and Chadwick's approaching the entrance of a Fifth-Third Bank in the
Louisville suburb of St. Matthews, Parker armed with a black handgun and
both equipped with mask and/or sunglasses for the sake of disguise. But,
according to Chadwick, they were spooked by a man who was opening the door
for customers, and so before even reaching the entrance agreed to abandon the
attempt and return to the car. Ominously, Bryant had trouble starting her car,
but after a few tries it finally turned over, and the would-be robbers headed
toward a different part of town.
Chadwick testified that as they drove she expressed frustration at the
fact that they had just consumed most of their gasoline for nothing, and she
complained to her friends that now they needed robbery money more than ever.
Parker then gave directions to the Jameson Inn, a motel he said he was
familiar with, according to Bryant, and one they could rob. Bryant testified
that she first parked at a Shoney's restaurant not far from the motel, and that
when Chadwick and Parker exited the vehicle they were dressed mainly in
black over-clothes. She remembered both with masks, but Chadwick testified
7
that while Parker may have used a mask, she tied the arms of her sweatshirt
around her face. Chadwick denied that Parker pointed a gun at the
maintenance employee, but she admitted that Parker was armed with the black
handgun and that he flourished it later when he demanded access to the front-
desk cash drawer. She claimed that they both took cash from the cash drawer
but took no cash from the manager, and she admitted that she was the one
who took the manager's computer.
Bryant testified that as soon as Chadwick and Parker walked off toward
the Jameson Inn she began to feel conspicuous in the only car parked in the
Shoney's lot. A Wendy's restaurant was near the Shoney's, and its lot had
more traffic, so Bryant drove her car to that lot, backed into a space, and
waited for her accomplices. She said it felt as though she waited "forever," but
it was probably no more than a couple of minutes before she saw Parker and
Chadwick running toward the car from the direction of the motel, Chadwick
literally with cash falling out of her pockets. Urging Bryant to "go, go, go," the
robbers jumped into the car and began removing their outer clothing, throwing
most of it into the back seat, where Chadwick had put the stolen computer.
Bryant tried to "go," she testified, but once again her car was reluctant to start.
When it failed to turn over for the third or fourth time, Chadwick and Parker
decided to make a run for it. They got out of the car and hurried off down Fern
Valley Road away from the Jameson Inn. Bryant testified that she did not run
because she wanted to appear uninvolved in any wrongdoing, but she was so
nervous that she threw her car keys onto a patch of lawn outside the Wendy's,
8
asked one of the several employees who happened to be outside just then on a
smoking break and who saw her do that not to tell the police, and then went in
to the Wendy's for a cup of ice. It was there, apparently, that a police officer
found her.
According to Chadwick, she and Parker stopped briefly in the Indi's
restaurant to consider their options. They decided to get a motel room where
they could lie low for a while and try to call a friend for a ride, but as they were
on their way to the Days Inn next door, they were spotted by a police officer.
Chadwick admitted that she tried to hide most of the robbery cash in her
possession under a beverage machine in the Days Inn lobby.
In addition to the testimony of Chadwick and Bryant, the Commonwealth
presented expert testimony by Melissa Brown, a forensic scientist at the state
crime lab in Frankfort. Ms. Brown performed DNA analysis on the samples
taken from the mask and sunglasses recovered after the Chase Bank robbery,
and, with respect to the Jameson Inn robbery, on samples taken from the
black handgun, from both pairs of sunglasses found in Bryant's car, from a
knit mask found in the car, from a knit cap found there, and from a bandana
found there. The lead detective in both cases explained that the state crime lab
limits the number of items it will test in any particular case, and that
accordingly she had chosen for analysis items that seemed likeliest to have
come into significant contact with the user's skin.
Ms. Brown testified that both Chase Bank items, the gun, one of the
pairs of Jameson Inn sunglasses, and the Jameson Inn knit mask all contained
9
DNA mixtures to which it was likely (highly likely with respect to the gun and
both the Chase and Jameson Inn sunglasses 2) that Parker had contributed.
Chadwick was a highly likely contributor to the DNA mixture recovered from
the other pair of Jameson Inn sunglasses. And both Chadwick and Bryant
were likely contributors to the bandana mixture.
The Commonwealth's proof against Parker in the Chase Bank case,
therefore, included his confession to Chadwick and Bryant and the presence of
what was very likely his DNA on the cap and sunglasses likely used as the
disguise in that case. The proof against Parker in the Jameson Inn case
included Chadwick's and Bryant's testimonies, Parker's possession of some of
the stolen property in the immediate aftermath of the robbery, and the highly
corroborating DNA evidence that firmly, if not conclusively, linked the black
handgun to Parker.
Parker testified at trial, however, that despite these seemingly damning
appearances he was not involved in either crime. He claimed that his presence
with Chadwick at the Days Inn following the Jameson Inn robbery was an
unfortunate case of being in the wrong place at the wrong time. At Chadwick's
request, Parker testified, he had come to the Indi's restaurant minutes before
2 With respect to these items, Ms. Brown testified that the odds of choosing a
potential contributor at random from the relevant population was on the order of one
chance in millions—hundreds of millions with respect to the gun. That is not the
same, of course, as saying what the odds are that Parker was a contributor, but, in
conjunction with all the other evidence of Parker's involvement in these crimes, the
random match probability can reasonably be thought highly probative "source"
evidence. McDaniel v. Brown, 558 U.S. 120 (2010) (discussing ways in which DNA
evidence can be misinterpreted, but noting that the probative value of that evidence
need not be assessed in isolation).
10
he was arrested to meet Chadwick and to lend her some money, and had found
himself suddenly caught up in the robbery she had just committed. He denied
having had anything to do with that robbery or the Chase Bank robbery.
Chadwick and Bryant were pinning those crimes on him, he claimed, both to
protect the real culprit—possibly Chadwick's cousin—and to curry favor with
the Commonwealth, which had entered plea bargains with both women in
exchange for their testimonies. He dismissed the DNA evidence as merely
statistical, as not ruling out the possibility that someone other than he was the
contributor to the various DNA mixtures. He also offered testimony by his own
DNA expert who analyzed samples taken from two of the shirts found in
Bryant's car—items the Commonwealth had not had tested—and found that
those samples were inconclusive, showing neither that Parker could have been
nor that he could not have been a contributor to the DNA mixtures recovered
from the shirts.
Parker did not ask the Commonwealth's witness what bearing, if any,
that finding had on the Commonwealth's proof that Parker was a potential and
likely contributor to the DNA mixtures found on other items, and his own
expert did not address the issue. Plainly, that silence limited the probative
value of Parker's expert's testimony, since it left the Commonwealth's proof
intact, and just as plainly, the jury ultimately found the Commonwealth's proof
more persuasive than Parker's. Parker's first contention on appeal is that he
was denied a fair opportunity to develop the probative value of his expert's
evidence when the trial court refused to postpone the trial in order to give his
11
expert more time to assess, in light of her own testing, the Commonwealth's
expert's methods and results. We agree with the Commonwealth, however,
that Parker's eleventh-hour motion for a continuance was both untimely and
speculative, and that the trial court did not, on the eve of trial, abuse its
discretion by denying such a motion.
ANALYSIS
I. The Trial Court Was Within its Discretion When it Denied Parker's
Belated Motion For a Continuance.
As the United States Supreme Court has observed, "[t}he matter of
continuance is traditionally within the discretion of the trial judge." Ungar v.
Sarafite, 376 U.S. 575, 589 (1964). Lest it be rendered "an empty formality,"
however, a criminal defendant's right "to defend with counsel," will sometimes
justify delay, and when that is the case a trial court's "myopic insistence upon
expeditiousness" can give rise to a due process violation. Id. "There are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as
to violate due process," the Supreme Court has explained. "The answer must
be found in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is denied." Ungar,
376 U.S. at 589 (citations omitted). See also, Morris v. Slappy, 461 U.S. 1, 11-
12 (1983) (noting that "[t}rial judges necessarily require a great deal of latitude
in scheduling trials. Not the least of their problems is that of assembling the
witnesses, lawyers, and jurors at the same place at the same time, and this
burden counsels against continuances except for compelling reasons.
Consequently, broad discretion must be granted trial courts on matters of
12
continuances, only an unreasoning and arbitrary 'insistence upon
expeditiousness in the face of a justifiable request for delay' violates the right to
the assistance of counsel.") (quoting Ungar, 376 U.S. at 589); Taylor v.
Commonwealth, 545 S.W.2d 76, 77 (Ky. 1976) (noting that "[i]nherent in the
concept of right to counsel is a reasonable time and opportunity for counsel to
prepare. . . . Nevertheless, the granting of a continuance is within the sound
discretion of the trial court and a conviction will not be reversed for failure to
grant a continuance unless that discretion has been plainly abused and
manifest injustice has resulted.") (citations omitted).
This need for trial courts to balance the public interest in the efficient
administration of justice against a criminal defendant's interest in an adequate
opportunity to prepare and present a defense is reflected in Kentucky Rule of
Criminal Procedure (RCr) 9.04, which provides in part that "The court, upon
motion and sufficient cause shown by either party, may grant a postponement
of the hearing or trial." 3 In Snodgrass v. Commonwealth, 814 S.W.2d 579, 581
3 The Rule further provides in part that "[al 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." Although technically this affidavit provision applies to the presentation of a
defense in situations where the defendant seeks postponement on the ground that
evidence (or a witness) he or she knew about and anticipated being able to introduce is
absent at the time of the hearing or trial, Gray v. Commonwealth, 203 S.W.3d 679 (Ky.
2006), the idea that a continuance need not be granted as a remedy for the movant's
own lack of diligence applies to continuance motions generally, including motions
based on claims that the preparation of a defense requires further investigation.
Bartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013) (citing Hudson v.
Commonwealth, 202 S.W.3d 17 (Ky. 2006)).
13
(Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d
534 (Ky. 2001), this Court observed that under the Rule the propriety of a
continuance in any given case is addressed to the sound discretion of the trial
court and depends upon "the unique facts and circumstances of that case."
The Court noted that the length of the delay being sought; previous
continuances; inconvenience to parties, witnesses, counsel, and court; the
complexity of the case; the availability of other competent counsel; whether the
movant sought delay for its own sake or caused the need for it; and whether
denying the continuance would lead to identifiable prejudice are factors the
trial court ought in particular to consider. Id. Identifiable prejudice is
especially important. Morgan v. Commonwealth, 421 S.W.3d 388 (Ky. 2014)
(citing Bartley, 400 S.W.3d at 733); Taylor v. Commonwealth, 545 S.W.2d at 77
(holding that in the face of a defense motion for a continuance the trial court
abused its discretion by trying a rape case two days after arraignment, but
denying relief because the defendant failed to identify how the trial court's error
had prejudiced him).
While the trial court's discretion under RCr 9.04 is necessarily broad, we
have found abuses of that discretion a number of times in cases where the
defendant's ability to prepare a defense has been undermined, or at least
significantly hampered, by last minute changes in the prosecution's case, 4 or
4See Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1994) (holding that the
defendant in a capital murder prosecution scheduled to begin on Monday morning
should have been granted a sixty-day continuance when a co-defendant pled guilty
(and thus became, potentially, a prosecution witness) late the preceding Friday
afternoon, in part, at least to permit inquiry into "articulable evidence" calling into
14
by the Commonwealth's failure to disclose potentially exculpatory evidence (the
defendant must be able to articulate specifically the exculpatory potential) far
enough in advance of trial to give the defense a reasonable opportunity to
investigate. 5
On the other hand, however, we have upheld the denial of last-minute
requests for extra preparation time where there was no suggestion that the
Commonwealth delayed disclosure of exculpatory evidence, 6 where the
exculpatory potential of the late-sought investigation is speculative and not
question the co-defendant's mental health)); Bush v. Commonwealth, 839 S.W.2d 550
(Ky. 1992) (holding that the defendant in a wanton murder case should have been
granted a continuance to reassess his defense when, immediately after defense
counsel's opening statement, in which he told the jury that the defendant's girlfriend
would testify that she, not the defendant, had been driving at the time of the fatal
accident, the prosecutor and a police officer induced the girlfriend to invoke her Fifth
Amendment right not to testify by threatening her with a perjury prosecution).
5 Anderson v. Commonwealth, 63 S.W.3d 135 (Ky. 2001) (holding that the
defendant in a rape case should have been granted a continuance to investigate
potentially exculpatory evidence (a doctor's report and a statement by the alleged
victim) disclosed by the prosecutor only four days prior to trial); Grimes v.
Commonwealth, 2006 WL 1045459 (April 2006) (holding (in a homicide case) that the
defendant, who was allowed funds "for expert assistance in the evaluation of the DNA
testing performed by the Commonwealth," was entitled to a continuance to carry out
that evaluation when the Commonwealth's DNA results were not disclosed until about
two weeks prior to trial).
6 Bartley v. Commonwealth, 400 S.W.3d at 734 (distinguishing Anderson v.
Commonwealth, in which Commonwealth engaged in "questionable" discovery
practice); Rowe v. Commonwealth, 2007 WL 1532334 (Ky. 2007) (upholding denial of
continuance sought shortly before murder trial where defendant's claim that he
needed an expert assessment of the reliability of the Commonwealth's DNA evidence
was not based on articulable evidence calling the reliability of the Commonwealth's
evidence into question, where the Commonwealth's DNA results were disclosed
months before trial, and where otherwise the defense was able to raise the reliability
issue through cross-examination of the Commonwealth's expert).
15
specifically "articulable," 7 and where the change in circumstances ostensibly
calling for additional preparation does not undermine an anticipated defense. 8
This case is clearly more akin to those in which we have upheld the trial
court's decision not to postpone an imminent trial than to those in which we
have found an abuse of discretion. For one thing, the request for a
postponement was not made in response to a late breaking disclosure by the
Commonwealth. On the contrary, Parker was indicted for the November 2011
bank robbery and December 2011 motel robbery in January 2012. The DNA
testing requested by the Commonwealth resulted in a lab report dated July 26,
2012. That report implicated Parker in both robberies, and hence the
reliability of its results was immediately an important issue.
Parker did not, however, seek expert assistance either to evaluate the
Commonwealth's evidence or to perform DNA testing of his own. He instead
announced that he was ready to proceed when the matter first came to trial in
March 2013. That initial attempt to try the case ended in a mistrial soon after
the jury was sworn when one of the jurors failed to return after an overnight
7 Bartley, 400 S.W.3d at 734 (holding that Commonwealth's eve-of-trial
production of victim's nursing-home records did not necessitate a continuance where
Commonwealth agreed not to rely on the records, where there was no suggestion that
they contained any evidence favorable to the defense, and where the defense had
known for months that the records might be pertinent but had not investigated);
Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006) (upholding denial of continuance
sought less than two weeks before trial where defendant made only conclusory claims
that further investigation was needed); Williams v. Commonwealth, 644 S.W.2d 335
(Ky. 1982) (upholding denial of continuance where alleged last-minute need to
investigate the complaining witness's competence did not have adequate evidentiary
basis).
8 Morgan, 421 S.W.3d 388 (anticipated alibi witness's change of heart at trial
did not necessitate a continuance because alibi defense was still possible on the basis
of the witness's prior inconsistent statements).
16
recess. Only then, in the wake of the mistrial some eight months after he
learned of the Commonwealth's DNA evidence, did Parker seek funds for
independent DNA analysis. Even then the analysis he sought did not include
an expert assessment of the reliability of the Commonwealth's evidence, but
was limited to the testing of previously untested items from the backseat of
Bryant's car, apparently in hopes of implicating someone else.
That strategy failed to pan out in December 2013, when the lab report
Parker commissioned not only did not implicate anyone else, but did not even
exclude Parker as a possible contributor to the DNA mixture recovered from the
items tested at his behest. Only then, a year-and-a-half after learning of the
Commonwealth's lab results and barely two weeks before the second attempt to
try the case was to commence, did Parker finally ask for time for expert
scrutiny of the Commonwealth's testing. The trial court was well within its
discretion at that point to decide against further delay, delay occasioned for the
most part by Parker's own lack of diligence, and delay certainly inconvenient
and possibly prejudicial to the Commonwealth. While the Commonwealth's
case was not unduly complicated, it did require keeping track of and
coordinating a large number of witnesses.
Nor was Parker's belated request for a continuance supported, as was
the request in Anderson, by the late appearance of evidence with a significant—
an "articulable"—exculpatory potential, evidence bearing more than
speculatively on the defendant's right to present a defense. Parker strains to
find that kind of exculpatory implication in his DNA expert's inconclusive
17
analysis of the two shirts she tested, but we agree with the Commonwealth that
those results imply nothing about the results the Commonwealth obtained
from its expert's DNA analysis of different items. In particular, we reject, in the
absence of some expert explanation, Parker's innuendo that because his expert
obtained inconclusive results, the Commonwealth's expert, had she employed
proper techniques, would have obtained inconclusive results on the items she
tested as well. Were there anything to that claim but Parker's own speculation,
we trust that his expert would have said so during her testimony, or at the very
least that Parker's brief would explain the connection, but Parker did not ask
his expert to relate her testing to the Commonwealth's testing in any way, and
his brief does not offer any support for that possibility, a silence that seems
eloquent.
In sum, the trial court did not abuse its discretion by denying Parker's
January 2014 request for a continuance to assess the reliability of the
Commonwealth's DNA testing. Parker's on-the-verge-of-trial request was
untimely, and its untimeliness was not the result of late disclosure by the
Commonwealth; it was the result of Parker's own lack of diligence. Parker's
request, moreover, was not necessitated by the late discovery of evidence with
"articulable" exculpatory potential, and thus the denial of that request was not
prejudicial. Under these circumstances, the trial court did not abuse its
discretion and Parker is not entitled to relief.
18
II. The Prosecutor's Alleged Moss Violation Did Not Amount to a Palpable
Error.
Parker also contends that the guilt phase of his trial was rendered unfair
when, on cross-examination, the prosecutor asked him to characterize the
truthfulness of another witness's testimony. Parker concedes that he did not
preserve this issue for ordinary review by objecting to the prosecutor's
question, but he claims that the prosecutor's misconduct was blatant and
prejudicial enough to merit relief under RCr 10.26, the palpable error rule, and
Kentucky Rule of Evidence (KRE) 103(e), both of which authorize a reviewing
court to grant relief on account of unpreserved errors when the failure to do so
would result in a manifest injustice. Parker's claim, we are convinced, does not
meet that standard.
As noted above, Parker testified at trial and admitted that he was with
Jodeci Chadwick at the Indi's restaurant on Fern Valley Road just minutes
after the Jameson Inn robbery in December 2011. He asserted, however, that
he had nothing to do with the robbery and met Chadwick at the restaurant in
accordance with a promise he had made earlier that day to lend her some
money. During the Commonwealth's cross-examination, Parker reiterated that
he had not been in the Jameson Inn that day, and at that point the prosecutor
continued as follows:
Commonwealth: And did you have any contact with Rodericka
[Bryant] that night?
Parker: No.
Commonwealth: All right. And Rodericka was, when she
testified up here, she was mistaken by saying that you were the
19
person that was with her and Jodeci in carrying out this
robbery? She was mistaken?
Parker: No, she wasn't mistaken, she was lying.
Commonwealth: All right. And do you have some .. .
I mean . . . if you and her had some conflict or some reasons
why she would put you in this serious crime?
Parker: Not that I can, like, think of . . . conflicts .. .
Parker contends that by asking him to characterize Bryant's testimony as
"mistaken," the prosecutor engaged in essentially the same misconduct as that
condemned in Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997). In Moss, a
testifying defendant was "badgered" during cross-examination "into stating that
Officer Wiley, a leading witness for the Commonwealth, was lying." Id. at 583.
"[W]e believe such a line of questioning to be improper," the Court declared. "A
witness should not be required to characterize the testimony of another
witness, particularly a well-respected police officer, as lying. Such a
characterization places the witness in such an unflattering light as to
potentially undermine his entire testimony." Id.
Here, of course, Parker was not asked to characterize Bryant's testimony
as dishonest, and he certainly was not "badgered" into such a characterization.
He was asked, rather, whether Bryant's testimony to the effect that Parker
participated in the motel robbery was "mistaken." We have a couple of times
noted that other courts have distinguished between the "lie" question and the
"mistake" question, see, e.g., St. Clair v. Commonwealth, 451 S.W.3d 597, 638
(Ky. 2014) (citing United States v. Gaind, 31 F.3d 73 (2nd Cir. 1994)), but we
20
have thus far not had occasion to address the propriety of that distinction
under Moss. Parker contends that, in this case at least, the distinction makes
no difference since no one, the prosecutor included, had any reason to think
that Bryant was mistaken in thinking another person had participated with her
and Chadwick in the robbery.
Once again, however, we need not address whether Moss applies to
situations in which a witness is asked whether a contrary witness was
mistaken, as opposed to lying 9 because once again even if the "mistake"
question amounted to a Moss violation, the violation certainly did not amount
to a palpable error. See Luna v. Commonwealth, 460 S.W.3d 851 (Ky. 2015)
(noting that, beginning with Moss itself, this Court has never found a Moss
violation to rise to palpable error under RCr 10.26). This is so because, unlike
Moss, where the prosecutor "badgered" the testifying defendant into
characterizing a highly respected police officer's testimony as "lying," and in
that way forced the defendant into a position the jury was apt to dislike, here
Parker's own theory of the case, made abundantly clear during his cross-
examinations of Chadwick and Bryant, was that the two co-indictees were
9 Parker suggests that Moss precludes ever, in any manner, confronting a
witness with any sort of contrary evidence. He suggests that it was improper for the
prosecutor to ask Parker if he could account for the seemingly inculpatory DNA
evidence or whether he could verify in any way his testimony that the cash in his
possession at the time of his arrest was money from a car accident settlement. Even if
these questions were improper—and we definitely do not mean to suggest that they
were—Parker did not object to them at trial, and they are so far removed factually from
Moss that their asserted impropriety under that case cannot be deemed "palpable" for
the purposes of RCr 10.26. Bums v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (noting
that, at least as a general rule, palpable errors for the purposes of RCr 10.26 will be
"palpable" in the sense of being "easily perceptible" or "obvious").
21
falsely accusing him (i.e., lying), in furtherance of their own plea bargains. As
noted above, Parker readily reiterated that theory when the prosecutor's
"mistake" question gave him an opening to do so. Since the prosecutor's
"mistake" question, even if it was improper under Moss, thus did nothing more
than reframe Parker's own implicit accusations that other witnesses had
testified falsely, we fail to see how the question can be thought to have
prejudiced him, much less how it rendered his trial manifestly unjust.
We reached the same conclusion in Newman v. Commonwealth, 366
S.W.3d 435 (Ky. 2012), a sex-abuse case in which the defendant, whose
defense was that the allegations against him had been fabricated, was asked
during cross-examination whether the two alleged victims were lying. The
question violated Moss, we allowed, but, we held, "the mere verbalization of the
defense theory by the prosecutor, although improper, did not rise to the level of
palpable error." 366 S.W.3d at 442. Whether there was a Moss violation in the
first place is not as clear in this case as it was in Newman, but even if there
was, it too amounted to no more than a "mere verbalization of the defense
theory," and did not amount to palpable error.
III. Parker's Sentencing Was Not Tainted By Improper Prior Offense
Evidence.
Finally, Parker contends that his sentence must be reversed and
remanded because during the penalty phase the jury was (or at least might
have been) exposed to criminal history data in excess of that allowed under
KRS 532.080, the Persistent Felony Offender statute, and KRS 532.055, the
22
Truth in Sentencing statute. Again, Parker concedes that the error he is
alleging was not preserved for ordinary appellate review by an appropriate
objection during trial. He maintains he is entitled to relief nevertheless under
the palpable error provisions of RCr 10.26. Convinced that Parker's nearly
minimum PFO-enhanced sentence for two armed robberies cannot be deemed
manifestly unjust, we disagree.
As Parker correctly notes, and as the Commonwealth acknowledges, KRS
532.080 and KRS 532.055 permit the introduction, during the penalty phase of
a criminal trial, of the defendant's prior convictions and limited evidence of the
nature of the prior offenses. The statutes do not allow evidence of prior
charges that were amended or dismissed, Martin v. Commonwealth, 409 S.W.3d
340, 348 (Ky. 2013) (citing Chavies v. Commonwealth, 354 S.W.3d 103 (Ky.
2011)), and they do not allow evidence of more than the elements of prior
offenses, precluding admission of the names of prior victims or other
identifying details. Webb v. Commonwealth, 387 S.W.3d 319, 329-330 (Ky.
2012) (citing Mullikan v. Commonwealth, 341 S.W.3d 99 (Ky. 2011)). This
cautious construction of KRS 532.055's criminal history provisions was first
articulated in Robinson v. Commonwealth, 926 S.W.2d 853, 855 (Ky. 1996)
(holding that "all that is admissible as to the nature of a prior conviction is a
general description of the crime"), and, as the cited cases show, remains our
reading of the statute.
During the penalty phase of this case, the prosecutor's paralegal testified
concerning Parker's criminal history by reading from certified copies of his five
23
prior felony convictions. As was also the case in Martin, the witness "testified
only to the actual charges for which a conviction was adjudged." 409 S.W.3d
at 348. She did not mention dismissed or amended charges, and beyond
specifying the dates of offense and conviction and naming the type of prior
offense (e.g. "In 2005 he was convicted of robbery in the second degree."), she
did not refer to any of the prior offenses' details. The prosecutor, likewise, in
her questions, comments, and argument, confined herself to the fact of prior
convictions and steered well clear of any but the most general reference to the
nature of Parker's prior offenses.
The prosecutor did, however, as in Martin, move to introduce into
evidence the certified documents that underlay the paralegal's testimony.
Those documents, as Parker details at considerable length, include references
to, or other evidence of, a number of amended charges, plea agreements, and
prior offense details (such as the names of victims) which the cases cited above
make clear should not have been admitted. The trial record does not make
clear that the certified documents were, in fact, admitted into evidence. And
even if they were introduced, the record further does not establish that the jury
actually had access to them.lo Nevertheless, as in Martin, 409 S.W.3d at 348,
we may presume that the unredacted certified records were erroneously
provided to the jury when it retired to deliberate.
10 At the end of its proof, the Commonwealth moved to introduce the "certified
records" of Parker's prior convictions, but the trial court declined to rule until Parker's
counsel had had a chance to examine them. The ruling, if ultimately there was one,
took place off the record, and likewise the record does not show whether the
documents were included among the exhibits provided to the jury during its
deliberation.
24
That presumption does not end the analysis, because as Martin explains,
to be entitled to RCr 10.26 relief for a Robinson error, the defendant must be
able to show not only that an error occurred, but also that he or she was
substantially prejudiced by the error or otherwise was subjected as a result of
it to manifest injustice. The mere possibility of prejudice, we held, is not
enough. The defendant must show, rather, a likelihood—"a reasonable
possibility"—that, but for the error, a different sentence would have been
imposed. 409 S.W.3d at 349. In Martin, we held that the defendant had failed
to show a reasonable possibility of prejudice although, as in this case, certified
records of prior convictions had been introduced and those records included
information—prior charges that had been dismissed or amended—which
should not have been admitted. The prosecutor in Martin did not rely on or
refer to the improper evidence, and the circumstances of Martin's current
offense together with the properly admitted evidence of his prior offenses (six of
them in that case) strongly suggested that Martin's sentence—the maximum
allowable for his current offense—was not the result of "the jury's awareness of
the dismissed or amended charges underlying his criminal past." 409 S.W.3d
at 349. Despite the Robinson error, accordingly, we denied RCr 10.26 relief.
In this case, too, even if the jury was given access to the certified records
documenting Parker's prior offenses and thus was exposed to improper
evidence of amended charges and the details of those offenses, there was no
reference to the improper evidence in either testimony or closing argument.
Moreover, Parker's sentence—not only not the maximum allowable, as was the
25
case in Martin, but only five years more than the minimum allowable, i.e.,
twenty-five years instead of life in prison—is readily and reasonably accounted
for by properly admitted evidence. He was convicted of two armed robberies (in
one of which Parker put a loaded gun to the victim's head), both Class B crimes
punishable as Class A crimes (twenty to fifty years or life) because of Parker's
PFO status. Additionally, the admissible criminal-history evidence consisted of
five prior felonies, including a prior robbery, and showed that the current
offenses marked the second time Parker had reoffended while on probation.
We are convinced that in these circumstances there is no reasonable possibility
that Parker was prejudiced by the Robinson error he alleges, and thus, even
presuming that the error occurred, he is not entitled on that ground to RCr
10.26 relief.
CONCLUSION
In sum, Parker was fairly tried and sentenced. The trial court did not
abuse its discretion when it refused, on the eve of trial, to continue a case that
had been pending for nearly two years and had already been mis-tried once.
Parker's belated motion was premised solely on an alleged need to review the
Commonwealth's DNA evidence, evidence that Parker had received nearly a
year-and-a-half earlier, and evidence he proffered (and proffers) no real reason
to think unreliable. Nor was Parker's trial rendered manifestly unjust when he
was asked during cross-examination whether a co-indictee's testimony
identifying him as a participant in the Jameson Inn robbery was "mistaken."
Even if that question is contrary to the spirit of Moss v. Commonwealth, the
26
unobjected-to error did not prejudice a defense based precisely on a claim that
the co-indictee had falsely accused him.
Parker's sentencing was also fundamentally fair. In particular, his very
nearly minimum sentence as a second-degree persistent felon (a status the
evidence leaves no room to doubt) cannot reasonably be deemed an improper
result of inadmissible prior-offense information that perhaps was included
among the exhibits sent to the jury room, but certainly never referred to by the
prosecutor. Parker's current crimes and his criminal history (including
multiple offenses committed while on probation) strongly and adequately
suggest that Parker's sentence was not at all tainted by the unpreserved
Robinson error he alleges.
Neither Parker's conviction nor his sentence was marred by reversible
error. Accordingly, we hereby affirm the Judgment of the Jefferson Circuit
Court.
All sitting. All concur.
27
COUNSEL FOR APPELLANT:
Daniel T. Goyette
Louisville Metro Public Defender
Office of the Louisville Metro Public Defender
Cicely Jaracz Lambert
Assistant Appellate Defender
Office of the Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Andy Beshear, Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Office of the Attorney General
David Bryan Abner
Assistant Attorney General
Office of the Attorney General
28