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RENDERED: DECEMBER 17, 2015
NOT TO BE PUBLISHED
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2014-SC-000369-MR u u u
O'NEAL DEMETRIUS SWINT APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE ANGELA MCCORMICK BISIG, JUDGE
NO. 12-CR-0003
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On the evening of December 18, 2011, Anthony Jackson, also known as
Anthony Banks, was at the Peppermint Lounge in Louisville, Kentucky. Also
present at the lounge that night were Ahmed Mohamed ("Ahmed"), Hadrawie
Mohamed ("Hadrawie"), and Qasin Ahmed ("Qasin"). Ahmed had been
previously acquainted with Hadrawie and Qasin prior to the night of December
18th. All three men were Somali immigrants. Ahmed and Hadrawie hailed
from the same Somali clan and had been associated with each other for several
years. Ahmed and Qasin had been friends for nearly eight years.
Jackson approached Ahmed and Qasin and said that he had a friend
who was looking for Xanax. The friend to whom he was referring was
Appellant, O'Neal Demetrius Swint. Jackson left the lounge and later returned
with Appellant. The three Somali men and Appellant departed the lounge
together in a car driven by Hadrawie. Ahmed sat behind Hadrawie, Qasin sat
in the front passenger seat, and Appellant sat behind Qasin.
The vehicle eventually stopped at a residential neighborhood in order for
Appellant to purchase Xanax. There is some disagreement about how the
transaction occurred, specifically who provided the drugs to Appellant, and
whether Appellant and Ahmed left the car in order to procure the pills. After
completing the transaction, Appellant and the three Somali men drove back
toward the Peppermint Lounge.
According to Ahmed's testimony, Appellant purchased fewer pills than
Qasin originally anticipated. This irritated Qasin. At some point during the
trip, Qasin demanded gas money from Appellant and Appellant refused. Upon
further request, Appellant gave Qasin one of the pills he had just purchased.
The car eventually stopped at another residential neighborhood prior to
arriving at the Peppermint Lounge.
As Appellant was exiting the car, he shot Qasin in the back of the head
with a revolver, killing him. Appellant then turned his gun toward Ahmed.
Ahmed grabbed Appellant's wrist, but Appellant fired another shot. As the car
drove away, Appellant fired additional shots at the vehicle. Hadrawie was shot
in the arm.
Appellant fled to his girlfriend Angela Carter's house where Jackson was
also present. Carter testified at trial that Appellant had a revolver with him
when he arrived. Carter also testified that she overheard a conversation
between Appellant and Jackson wherein Appellant admitted that an altercation
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took place and that he shot the passenger in the head. He also admitted
shooting the driver and at the car.
Thereafter, Appellant temporarily resided with a friend, Angela Morgan.
Ms. Morgan testified at trial that she heard Appellant speak to someone on the
telephone that he needed to dispose of a .38 Smith and Wesson. Jackson died
prior to trial and the revolver used during the shooting was never recovered.
The police also received several tips that identified Appellant as the
perpetrator. One of the tips came from Angela Carter.
Appellant was eventually apprehended by U.S. Marshals and charged
with murder, first-degree assault, and wanton endangerment. A Jefferson
Circuit Court jury convicted him on all counts and recommended sentences
totaling sixty-three years' imprisonment. The trial court accepted the jury's
recommendation and sentenced Appellant accordingly. Appellant now appeals
his judgment and sentence as a matter of right pursuant to § 110(2)(b) of the
Kentucky Constitution. Five issues are raised and addressed as follows.
Juror Selection
Appellant argues that the trial court erred by failing to excuse
prospective jurors 882883, 1050096, 1019349, and 1084790 for cause, and
that reversal of his conviction is required. We disagree.
Defense counsel exercised four peremptory challenges to excuse these
prospective jurors. This exhausted all of Appellant's peremptory strikes. Prior
to jury selection, defense counsel, verbally and in writing, informed the court
that she would have used peremptory strikes on four other prospective jurors,
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three of whom participated in rendering the verdict in this case. The other
juror was later designated as an alternate, but did not participate in rendering
the verdict. Thus, Appellant properly preserved this issue. Sluss v.
Commonwealth, 450 S.W.3d 279, 284-85 (Ky. 2014).
We review the trial court's decision not to strike the four prospective
jurors for cause under an abuse of discretion standard. Id. at 282. In Sluss,
we summarized our considerations as follows:
Kentucky Criminal Rule ("RCr") 9.36 states clearly that 'when there
is reasonable ground to believe that a prospective juror cannot
render a fair and impartial verdict on the evidence, that juror shall
be excused as not qualified.' We must also adhere to the long
standing principle 'that objective bias renders a juror legally
partial, despite his claim of impartiality.' Montgomery v.
Commonwealth, 819 S.W.2d 713, 718 (Ky.1991) (emphasis added).
Id.
While questioning the members of the venire panel, Swint's attorney
asked the prospective jurors to vote by a show of hands whether Swint was
guilty or not guilty. Most raised their hands indicating that they believed Swint
was not guilty. No one raised their hand indicating that Swint was guilty. In
response to defense counsel's follow-up questioning as to why some jurors did
not raise their hands at all, Juror 882883 explained that at the current time,
she was "neutral" as to whether Mr. Swint was not guilty or guilty. Jurors
1050096, 1019349, and 1084790 did not indicate that they believed Swint was
guilty, but did make statements indicating that there.must be some evidence
against Swint or a "reason why they were there."
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Contemporaneous with his contested statements, Juror 1050096, also
acknowledged that he was supposed to consider that Swint was innocent.
Similarly, Juror 1084790 indicated that the Commonwealth "still needed to
prove beyond a reasonable doubt." Jurors 882883 and 1019349 indicated that
they could not decide guilt at that time. The trial judge acknowledged these
responses when stating her reasons for denying Swint's motion to strike.
The court specifically noted that, in response to follow-up questioning by
defense counsel, these jurors "all articulated that a person was innocent until
proven guilty, they just didn't feel right voting yet in any way having heard
nothing . . . ." We addressed a similar issue in Tamme v. Commonwealth, 973
S.W.2d 13, 25 (Ky. 1998). In that case, we affirmed the trial court's denial of a
motion to strike a prospective juror for cause who "refused to tell defense
counsel how he would vote, because he had not yet heard any evidence, but
stated that he would presume Appellant to be innocent." Id. at 25. See also
Smith v. Commonwealth, No. 2002-SC-0988-TG, 2004 WL 102495, at *5 (Ky.
Jan. 22, 2004) (affirming trial court's denial of motion to strike prospective
juror for cause who stated during voir dire that he could not find the defendant
not guilty without first hearing evidence, and that the defendant "is here for
some reason.").
Forcing each prospective juror to make an affirmation that the defendant
is not guilty stretches the bounds of proper voir dire questioning. As we stated
in Mabe v. Commonwealth, "[t]he test is not whether a juror agrees with the law
when it is presented in the most extreme manner." 884 S.W.2d 668, 671 (Ky.
5
1994). Rather, the question here is "whether, after having heard all of the
evidence, the prospective juror can conform his views to the requirements of
the law and render a fair and impartial verdict." Id. Considering that standard
and having reviewed the entirety of the jurors' responses to this line of
questioning posed by defense counsel, it is clear that there was no error here.
Therefore, the court did not abuse its discretion in denying the motion to
strike.
Expert Deposition
Appellant argues that the trial court violated his rights under the
Confrontation Clause of the Sixth Amendment when it permitted the
Commonwealth to introduce the deposition testimony of Dr. Tracy Corey at
trial. Dr. Corey conducted the autopsy of Qasin Ahmed. Although it appears
that Appellant did not renew his objection to this evidence at trial, he did object
at the pretrial hearing on the Commonwealth's motion to schedule Dr. Corey's
deposition. Therefore, this issue is properly preserved.
"[T]he Sixth Amendment prohibits the admission of the testimonial
statement of a declarant who does not appear at trial, unless the declarant is
unavailable to testify and the defendant had a prior opportunity for cross-
examination." Rankins v. Commonwealth, 237 S.W.3d 128, 130 (Ky. 2007)
(citing Crawford v. Washington, 541 U.S. 36 (2004)). "[A] witness is not
`unavailable' for purposes of the foregoing exception to the confrontation
requirement unless the prosecutorial authorities have made a good-faith effort
to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 724-25 (1968).
6
A trial court's decision to order the deposition of a potentially unavailable
witness, and whether the trial court properly determined that the witness is
"unavailable" for trial, are reviewed under an abuse of discretion standard.
Lovett v. Commonwealth, 103 S.W.3d 72, 82-84 (Ky. 2003).
It appears Dr. Corey's office received a subpoena requiring her to testify
at trial. However, the Commonwealth concedes that Dr. Corey was not
formally served with that subpoena. In any event, Dr. Corey was present at a
pretrial video deposition that took place in a courtroom setting and was
subjected to cross-examination by defense counsel. Although the
Commonwealth failed to establish the reasons for Dr. Corey's unavailability at
trial, we find no reversible error here because the admission of her deposition
testimony at trial was harmless beyond a reasonable doubt. Parson v.
Commonwealth, 144 S.W.3d 775, 785 (Ky. 2001) (citing Chapman v. California,
386 U.S. 18, 22 (1967)).
Appellant's primary contention of error is that "because this deposition
occurred one week before trial, all of defense counsel's questions were asked in
a vacuum before Hadrawie Mohamed or Ahmed Mohamed—the
Commonwealth's two eye witnesses—testified." In support, Appellant contends
that Hadrawie and Ahmed's trial testimony was inconsistent with their initial
police interviews. Appellant also takes issue with the portions of Dr. Corey's
testimony concerning the distance from which the decedent, Qasin, was shot.
However, Appellant fails to describe how defense counsel would have
cross-examined Dr. Corey any differently had counsel first heard Hadrawie and
7
Ahmed's trial testimony. Appellant also fails to demonstrate why the distance
from which Qasin was shot is relevant to his charges or defense. Moreover,
counsel effectively cross-examined Dr. Corey during her prerecorded deposition
as follows:
Defense Counsel: Your basic legal conclusion is Mr. [Qasin]
Ahmed died from a gunshot wound to the head. Correct?
Dr. Corey: Yes, there's no doubt on that.
Defense Counsel: That's really the only evidence you—you are
submitting. The distance of the gun; who fired it; where he was
located—you don't have that information. Correct?
Dr. Corey: Correct.
The fact that Qasin died from a gunshot wound to the head is
undisputed. Nevertheless, Appellant also cites to Dr. Corey's testimony
wherein she indicated that she could have testified concerning the bullets'
paths had she been provided the position of the gun or the position of the
decedent. Yet, Appellant again fails to describe what specific questions would
have been posed to Dr. Corey had counsel first heard Hadrawie and Ahmed's
trial testimony, or how any such questions would have been relevant to the
Appellant's charges or defense. Thus, any error here in properly securing Dr.
Corey as a live trial witness was harmless beyond a reasonable doubt.
Jail Phone Calls
Appellant further argues that the trial court erred in permitting the
Commonwealth to introduce recordings of unauthenticated jail phone calls at
trial which included inadmissible hearsay. This issue is not preserved. We will
review for palpable error. RCr 10.26.
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We have defined palpable error as the "probability of a different result or
error so fundamental as to threaten a defendant's entitlement to due process of
law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). We have also
described such errors as those that are "shocking or jurisprudentially
intolerable." Id. at 4. See also McCleery v. Commonwealth, 410 S.W.3d 597,
606 (Ky. 2013) (we will not reverse unless "it can be determined that manifest
injustice, i.e., a repugnant and intolerable outcome, resulted from that error.").
The Commonwealth introduced eight recordings of jail phone calls placed
by Appellant to five different people. Appellant asserts that these phone calls
indicate that Appellant "was attempting to influence witnesses; that he was
communicating with people who were attempting to influence witnesses, and
that he was speaking with people who carry guns." Appellant also argues that
two of these recordings indicated that Appellant had simultaneous romantic
interests with multiple women.
Prior to introducing these recordings, the Commonwealth questioned
Louisville Metro Police Detective Kristen Downs. Detective Downs stated that
she had reviewed the phone calls, that she was able to identify some of the
people with whom Appellant was speaking, and that some of the calls were
related to the shooting.
KRE 901(b) (5) and (b) (6) provide non-exclusive methods for
authenticating telephone conversations. However, 141 that is necessary in
authenticating a phone call is that the proponent offer 'sufficient
authentication to make a prima facie case that would allow the issue of identity
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to be decided by the jury."' Robert G. Lawson, The Kentucky Evidence Law
Handbook § 7.51[1][d], at 512 (5th ed., 2013) (quoting First State Bank of
Denton v. Maryland Cas. Co., 918 F.2d 38, 41 (5th Cir. 1990)). As previously
discussed, Detective Downs provided an appropriate foundation for introducing
the recordings. Following the playing of each recording, the Commonwealth
asked Detective Downs who was the recipient of the call. Each time, she
responded with a name. Therefore, this evidence was sufficiently
authenticated.
Moreover, it is undisputed that the Appellant made the phone calls.
Appellant also fails to indicate any recipient of Appellant's phone calls who was
erroneously identified by Detective Downs at trial. Even if the recipients'
statements were admitted to prove the truth of the matter asserted, and did not
otherwise constitute an exception to the hearsay rule, we cannot conclude that
any error here was "shocking or jurisprudentially intolerable." Martin, 207
S.W.3d at 4. Therefore, there was no palpable error.
Impermissible Interpretation
Appellant also alleges that the trial court erred in permitting Detective
Downs to interpret a recorded phone call between Appellant and a family
member named "Fresh." He objected to the introduction of this testimony at
trial and essentially argued that it violated the best evidence rule. KRE 1002.
Although the Commonwealth concedes that KRE 1002 required the recording
to be introduced, it argues that the error here was harmless. We agree.
10
At trial, Detective Downs read from notes she had prepared concerning
the contents of the phone call. Her testimony was brief, consisted of several
direct quotes she had transcribed in her notes from the recording, and was
subjected to cross-examination by the defense. Critically, Appellant does not
cite a specific portion of Detective Downs' testimony that constituted an
impermissible or otherwise misleading "interpretation" of the phone call. While
it would have been best to have introduced the recording itself at trial, any
error here was harmless.
Reverse Bad Acts Evidence
For his final assignment of error, Appellant claims that the trial court
erred in granting the Commonwealth's motion to prohibit defense counsel from
informing the jury that Qasin and another man named Yasmani Rivera Amoros
were suspects in several armed robberies that were committed weeks before the
shooting at issue here. We review the trial court's evidentiary rulings for an
abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 120 (Ky.
2007).
Evidence of prior crimes or bad acts must be relevant "for some purpose
other than to prove the criminal disposition of the accused . . . ." Meece v.
Commonwealth, 348 S.W.3d 627, 662 (Ky. 2011). When offered by the
defendant, this type of evidence is referred to as "reverse 404(b) evidence."
Montgomery v. Commonwealth, 320 S.W.3d 28, 46 (Ky. 2010). Evidence
admissible under KRE 404(b) must also be relevant, probative, and not unduly
prejudicial. Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994).
11
Appellant told detectives during his interview that on the night of the
shooting, a dark skinned man approached the car in which he and the three
Somali men were traveling. According to Appellant, this perpetrator attempted
to enter the car and pulled out a revolver. Appellant claimed that he grabbed
the man's gun, a struggle ensued, and shots were fired inside the vehicle.
Appellant also claimed that shots were fired at him as he was fleeing the car. A
recording of this interview was played for the jury.
Yasmani Rivera Amoros was identified as a gunman in several unrelated
armed robberies that occurred on December 5, 2011. Appellant argues that
Amoros matches the description of the fifth man allegedly involved in the
shooting that occurred in the present case. Qasin was also suspected of being
a passenger in a vehicle that was involved in the December 5th robberies.
Appellant claims that it was error to deny introduction of evidence identifying
Amoros' and Qasin's involvement in those robberies. He specifically argues
that this evidence was "relevant to [Appellant's] defense that the people inside
the vehicle attempted to rob him and it demonstrated that the police
investigated other individuals as the possible fifth person to enter the car that
night."
Assuming that this purported bad acts evidence concerning Qasin is
relevant, it cannot be considered probative. Evidence is probative if "the jury
could reasonably infer that the prior bad acts occurred and that [the
individual] committed such acts." Parker v. Commonwealth, 952 S.W.2d 209,
214 (Ky. 1997); see also Davis v. Commonwealth, 147 S.W.3d 709, 724-25 (Ky.
12
2004). Upon further investigation of this matter, Detective Downs was
informed by the detective investigating the December 5th robberies that he
"had no knowledge that Qasin B. Ahmed played an active role in the robberies."
The detective also stated that neither Hadrawie nor Ahmed's names came up
during his investigation. Therefore, the evidence concerning Qasin's active
involvement in the December 5th robberies has little, if any, probative value.
Appellant's allegations identifying Amoros as the "fifth man" involved in
the shooting at issue here were not presented to the trial court. In any event,
Amoros' connection to the present case is premised primarily upon his alleged
association with Qasin during the December 5th robberies. Based on this
tenuous connection, and having concluded that the evidence concerning
Qasin's involvement in the December 5th robberies was not probative, any
evidence of Amoros' involvement in the December 5th robberies is irrelevant
here. Therefore, the trial court did not abuse its discretion in refusing to allow
the introduction of this reverse bad acts evidence at trial.
Conclusion
For the foregoing reasons, we hereby affirm the judgment of the Jefferson
Circuit Court.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. Minton, C.J.; Cunningham, Keller, Noble, and Venters, JJ., concur.
Abramson, J., concurs in result only. Wright, J., not sitting.
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COUNSEL FOR APPELLANT:
Daniel T. Goyette
Louisville Metro Public Defender
Joshua Michael Reho
Assistant Appellate Public Defender
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney General
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