Kevin Franklin v. Commonwealth of Kentucky

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. NOT TO BE PUBLISHED OPINION

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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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 RENDERED: NOVEMBER 2·, 2017
NOT TO BE PUBLISHED

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2016-SC-000330-MR

KEVIN FRANKLIN APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT ,
v. HONORABLE FREDERIC J. COWAN, JUDGE
NO. 14-CR-001318

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Jefferson County jury found Kevin Franklin guilty of Murder and

Tampering with Physical Evidence. On June 8, 2016, the Jefferson Circuit

Court sentenced· Franklin to thirty years to serve, pursuant to the jury's

· recommendation. Franklin now appeals his conviction as a matter of right to

this Court. For the reasons discussed herein', we affirm his conviction.

I. BACKGROUND

On the evening of May 10, 2014, Franklin was at· his grandfather Buck's

home. His great uncle, Edward Jumper, saw him that evening. Franklin came

out of Buck's home and walked over to the home of Miss Nini, Buck's neighbor,

where Jumper was visiting. Jumper was at Miss Nini's garage with two other
 men: Sammy Wright and Walter Bald. Jumper testified that, at some point

that evening, Franklin saw· someone in the area and said, "That's the man I got

to get." He walked out of sight and Jumper heard gunshots. According to

Jumper, Franklin returned to the garage and gave Bald a gun, which Bald then

took into his own home; Bald disputes this statement and states that Franklin

· never gave him a gun. Bald's involvement was largely contested as his

recorded interview was wholly inconsistent with his testimony at trial.

Jumper also testified that Franklin's mother, Tracy Howard, pulled up in

her vehicle some time later. Franklin got into the trunk and Howard drove

away. Jumper left the scene without talking to police.

Another man in the area, Thomas Edelen, also hear:d the gunshots. He

found a man, later identified as Nick Baker, lying near death after having been

shot muitiple times. Baker had been dating Franklin's first cousin, Jasmine

Howard. Baker ultimately died from his injuries.

Bald led detectives to a firearin in a tree stump near Miss Nini's home.

Forensic evidence determined that it was the same gun that fired shell casings

found at the scene and the bullet found in Baker's body.

II. ANALYSIS

On his appeal, Franklin claims four distinct errors: (1).the evidence.

seized from his cell phone pursuant to a Warrant should have been excluded;
.;1

(2) the. trial court should have granted a mistrial due to juror misconduct; (3)

the trial court improperly limited the defense cross-examination of Edward

Jumper; and (4) the Commonwealth improperly admitted Walter.Bald's prio.r

2
inconsistent statement without laying a proper foundation for it. Due· to the

reasons discussed herein, we find no error and affirm Franklin's conviction and

sentence.

A. The officers properly relied upon the search warrant in searching
Franklin's phone.

Police arrested Franklin on May 13, 2014. At the time of his arrest, he

was in possession of a white Apple iPhone. According to officers, they saw

Franklin using the cell phone prior to his arrest. The phone was seized and

Detective Miracle executed an affidavit for a search warrant of the phone on

May 21, 2015. A judge signed the warrant and it was executed the next day.

In relevant part, the affidavit stated:

[Witnesses] observed Kevin Franklin's mother :.. drove [sic] up to
1300 Hazel Road shortly after the shooting occurred and conceal
Kevin in the trunk of her vehicle and drive him out of the area ...
On 5/ 13/2014, the Fugitive Viper Unit made contact with Kevin
Franklin at 11619 Tazwell Drive. Franklin was located inside the
address texting on a white Apple iPhone . . . Based on my
investigative experience suspects frequently use communication
devices before, during and after a crime is committed[.]

Franklin filed a motion to suppress the evidence, based on a claim that

the affidavit was deficient of probable cause for the search. The motion was

denied and several pieces of evidence from the phone's forensic examination

were admitted at trial.

At the outset, we recognize that "we utilize a clear error standard of

review for factual findings and a de nova standard of review for conclusions of
.
law" in reviewing a trial court's denial of a suppression motion. Jackson v.

Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006). The first step entails a

3
determination "if the facts found by the trial judge are supported by substantial

evidence[.]" Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010). Then, an

appellate court must determine if the trial judge had a "suostantial basis" for

finding "that probable cause existed." Id. (quoting Rlinois v. Gates, 462 U.S.

213, 236 (1983)).

"Whether probable cause exists -is determined by examining the totality

of the circumstances." Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky.

2005) (quoting United States v. Hammond, 351 F.3d 765 (6th Cir. 2003)).

"[T]he test for probable cause is whether there is a fair probability that

contraband or evidence of a crime will be found in a particular place." Moore,

159 S.W.3d at 329 (citing United States v. Miller, 314 F.3d 265 (6th Cir. 2002)).

"Probable cause does not require certainty that a crime has been committed or

that evidence will be present in the _place to be searched." Moore, 159 S:W.3d

at 329 (citing United States v. Hall, 8 Fed.Appx. 529 (5th Cir. 2001), cert.

denied, 536 U.S. 961 (2002)).

Looking to the totality of the circumstances, we hold that probable cause

was sufficiently established in the search warrant at issue here. The officer

listed the facts of the case tying Franklin to the crime, connecting Franklin to

the phone seized, and linking Franklin's use of the phone to his arrest and

potential communications about the crime. The trial judge's findings were

· supported by substantial evidence and the judge had a substantial basis in

finding the existence ·of probable cause.

4
 -Franklin correctly cites to the Supreme Court's decision in Riley v.

California as recqgnizing the distinction of the privacy inherent in cell phones

in our modern world. See Riley v. CaZ.ifomia, _. U.S._, 134 S.Ct. 2473, 2488-

91 (2014). However, the decision in Riley referred to a warrantless search of a

cell phone incident to arrest. And the Cburt offered a simple solution to avoid

these issues of unco~stitutional searches: "Our answer to the question of what

police must do before searching a cell phone seized incident to an arrest is

accordingly simple-get a warrant." Id. at 2495 .

. Detective Miracle did just as the Supreme Court instructed. He obtained

a warrant. Franklin has not alleged that Detective Miracle lied or

misrepresented vital information in the application for the warrant; he only

claims that the affidavit on its face was insufficient to establish probable cause

to obtain the warrant. This reason is exactly why our Courts have adopted the

good. faith exception for deficient warrants upon which officers rely: to

encourage officers to continue to. obtain warrants and conduct themselves in a

good faith manner. "[A] technically defective search warrant obtained in good

faith after proper application to a judicial officer is preferable to an

unsupervised and potentially fraudulent warrantless search." Crayton v.

.Commonwealth, 846 S.W.2d 684, 688-89 (Ky. 1992).

This Court has held "that application of a good faith exception to the

warrant requirement" is proper under our Constitution. Id. at 689 (citing

United States v. Leon, 468 U.S. 897 (1984)). "In the absence of an allegation

that the magistrate abandoned his detached and .neutral role, suppression is

5
appropriate only if the officers were dishonest or reckless in preparing their

affidavit or could not have harbored an objectively reasonable belief in the

existence of probable cause." Leon, 468 U.S. at 926. This· situation presents a

clear application of the good faith exception. Franklin has not alleged that the

magistrate abandoned his neutral role nor has he alleged that Detective Miracle

acted dishonestly or recklessly. As such, even if we found that the warrant was

issued upon a deficient finding of probable cause, the good faith exception

would provide protection to the evidence seized. The trial court correctly

denied the motion to suppress.

B. The trial court did not abuse its discretion in denying defendant's
motion for mistrial.

At issue in this case is a motion for mistrial after juror misconduct came

to the court's attention. One of the jurors failed to disclose her involvement

with the prosecutor's office. Her son was killed in a vehicular homicide and his
case was prosecuted by the Office of the Commonwealth's Attorney involved in .

this case. She met.with the prosecutor on her son's case multiple ti~e~, along

with the Victim's Advocate. Ultimately, the Victim's Advocate recognized her by

appearance and searched the ·n~mes of the jurors to determine that she was in

fact the victim in a prio.r case. Once this was confirmed, the Commonwealth

informed the defense and the court about the conflict. All parties conceded

that her presence on the jury was improper and she should be struck. The

judge denied the motion for mistrial but dismissed the juror in question and

proceeded .with the remaining twelve jurors.

6
 "It is well established that the decision to grant a mistrial is within the

trial court's discretion, and such a ruling will not be disturbed absen.t a

showing of an abuse of that discretion." Woodard v. Commonwealth, 14 7

S.W.3d 63, 68 (Ky. 2004). Additionally, "a mistrial is an extreme_ remedy and

should be resorted to only when there is a fundamental defect in the

proceedings and there is a 'manifest necessity for such an action.'" Id.

(emphasis added). The cause of the need for mistrial "must be of such·

character and magnitude that a litigant will be denied a fair and impartial trial

and the prejudicial effect can be removed in no other way." Id. (emphasis

added).

ln Gould v. _Charlton Co., Inc., this Court held that a trial judge's denial of

a mistrial after juror. misconduct was an appropriate use of discretion. 929

S.W.2d 734, 740 (1996). After being apprised of ajuror gaining extrajudicial

information, the court informed the parties, questioned the jurors individually,

polled the jury, dismissed one juror, and admonished the remaining jury

members of their duty. Id. at 735-36. This Court held that "[t]he trial judge

made a thoughtful determination that a fair and impartial jury was in place

prior to commencement of deliberations and that a mistrial was not

necessitated."
/

In contrast, this Court held that the conduct in Deemer v. Finger was

sufficient to undermine the fairness and impartiality of the jury. 817 S.W.2d

435, 437 (Ky. 1990). A juror told the judge, outside of the presence of counsel,

that she had spoken with her husband about the case, against the admonition

7
of the court. Id. at 436. The court did not advise the parties, poll the jury,

question the juror in the presence of counsel, or undergo any action to ensure

the impartiality of the proceedings. Id. This Court held that it would "not

presume that this juror's independent knowledge failed ~o affect her decision in

this case" and we held "that the cause was not tried by a fair and impartial

jury, and that the appellant suffered manifest injustice and [was] entitled to a

new trial." Id. at 43 7.

This case lies somewhere between these two extremes. The court was

apprised of the potential for juror miscondu.ct promptl,y by the Commonwealth.

The Commonwealth notified the defense of the issue when it came to their

attention. The parties discussed the potential issue with the court. The court

did conduct questioning of the juror in question, who admitted that she failed

to disclose material· information. However, the court failed to ask the juror

whether she had discussed her experiences with any other jury members or

conduct any polling or admonishment of the jury,

Although we would encourage courts to do everything they can to ensure

the impartiality of our juries through polling and appropriate voir dire when

there are potential issues, we cannot say that the judge here abused his

discretion in denying the motion for mistrial. A mistrial is only necessary when

a prejudicial effect cannot be removed in any other way. Here, the judge

properly dismissed the juror and proceeded with a constitutionally sufficient

jury. Defense counsel, without any actual proof of prejudice, claimed that a

mistrial was.the only possible recourse. However, the court had no actual

8
ev:idence of any prejudice that occurred. The judge corrected the prejudice

from the juror's failure to report her prior experiences by dismissing her. We

cannot say that a mistrial was a manifest necessity here and thus deem no

abuse of discretion in the judge's conduct.

C. There was no error in the limitation of Edward Jumper's cross-
examination.

"[A] criminal defe~dant states a violation of the Confrontation Clause by

showing that he was prohibited from engaging in otherwise appropriate cross-

examination designed to show a prototypical form of bias on the part of the

witness, and thereby 'to expose to the jury the facts from which jurors ... could

appropriately draw inferences relating to the reliability of the witness. m Olden

v. Kentucky, 488 U.S. 227, 231 (1988) (quoting Delaware v. VanArsdall, 475

U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974))).

However·, "a trial court may, of course, impose reasonable limits on defense

counsel's inquiry into the potential bias of a prosecution witness, to take

account of such factors as 'harassment, prejudice, confusion of the issues, the

witness' safety, or interrogation that [would be] repetitive or only marginally

relevant[.]m Olden, 488 U.S. at 232 (quoting VanArsdall, 475 U.S. at 679).

This Court has acknowledged the trial court's discretion in limiting

cross-examination. "Defendants cannot run rough-shod, doing precisely as

they please, simply because cross-examination is underway. So long as a

reasonably complete picture of the witness' veracity, bias and motivation is
. .
developed, the judge enjoys power and discretion to set appropriate

9
boundaries." Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997)

(quoting U.S. v. Boylan, 898 F.2d 230, 254 (1st Cir. 1990)). "The presentation

of evidence as well as the scope and duration of cross-examination rests in the

.sound discretion of the trial judge." Maddox, 955 S.W.2d at 721 (quoting

,Moore v. Commonwealth, 771S.W.2d34, 38 (Ky. 1988)). ·

Edward Jumper provided an eye-witness account to Franklin's

whereabouts the night of Baker's murder. Jumper testified that he and several

others were at the home of Nini Bald (a.k.a. Miss Nini), smoking and drinking.

He saw Franklin come over, walk back to his house, and come back over again.

Franklin saw someone and said "That's the man I got to get." He went in the

direction of the man and Jumper heard several gunshots. Franklin came back

and Bald asked him, "Did you hit him?" Franklin responded, "He's on the

ground, ain't he?" Franklin gave Bald a gun, which Bald took inside the home.

Franklin left in the trunk of his mother's vehicle.

On direct examination, Jumper admitted that he did not tell police

anything that evening. He spoke to Detective Miracle later. Defense counsel

began cross-examination by asking if Jumper had met with the prosecution in

preparation for his testimony. Jumper admitted to meeting with the prosecutor

multiple times over the past several weeks and reviewing his testimony.

Defense counsel attempted to ask whether the prosecution had helped Jumper

remember anything, implying improper coaching on the part of the

prosecution. The Commonwealth objected on the ground that there was no

basis for the question; the court sustained and· provided an admonition to the

10
jury not to take into consideration any implication of impropriety on the part of

the prosecution in preparing the witness for trial.· Defense counsel moved on in

his cross. Jumper admitted to: drinking alcohc_:>l the day of the murder;

consuming Lortab, an opiate, three times a day for a significant period of time

for back pain, including the day of the murder; having a prior cocaine

addiction; having no memory of the exact date of the shooting; and memory

issues due to his age.

The defense's argument here must fail. As long as there is a "reasonably

complete picture of the witness' veracity, bias and motivation," the court can

properly exercise its discretion to limit cross-examination. Defense counsel

provid~d a robust and expansive cross-examination, undermining several key

components of Jumper's testimony. Considering the full breadth of the cross-

examination, we cannot say the judge abused his discretion in not allowing this

·one small portion of defense's cross-examination.

Even were we to find error in the trial court's limitation, our review would

be subject to a harmless-error analysis. See Olden, 488 U._S. at 232. Under

this analysis,. we would
.
still conclude that the restriction was harmless beyond

a reasonable doubt. Franklin had expansive opportunity to cross-examine
Jumper.

D. There was no error in the admission of Walter Bald's recorded
statement.

Franklin lastly claims error in the· admission of Walter Bald's prior

inconsistent statement without proper authentication pursuant to KRE 613(a).
. . .
To be clear, the prior statement was admitted under KRE 801A by the trial
11
judge but that rule requires that the prior statement only be admitted after "a

foundation [is] laid as required by KRE 613." KRE 613 requires that the

witness, whose prior statement is being proffered, "must be inquired of

concerning [the statement], with the circumstances of time, place, and persons

present, as correctly as the examining party can present them[.]" We hold that

the Commonwealth laid sufficient foundation under KRE 613 and the prior

inconsistent statement w~s properly admitted.
. -
Walter Bald was summoned to testify by both the Commonwealth and

defense. He failed to appear pursuant to subpoena. He was arrested and was

being held pursuant to that arrest when he testified at trial. Upon questioning

of the Commonwealth, Bald repeatedly stated that he could not recall any of

the events of the day of murder, that he did not make statements to the police

or did not remember any statements to the police, and would not be able to

remember any of the statements he made. The prosecutor offered Bald

multiple opportunities to review his interview with Detective Miracle in order to

refresh his memory but Bald repeatedly stated that it would not change his

testimony and would not make him remember anything. At tri8.I, ·the following

exchange occurred on direct examination:·

Commonwealth: Would you like to take a break and listen to your
statement?

Bald:· No, I don't.

Commonwealth: You don't want to?

Bald: It's not necessary.

12
 Commonwealth: Okay you're not going to be able to remember it
if you listen to it?

Bald: Probably not ..

This kind of exchange occurred multiple times on direct. Bald continued to

refuse an opportunity to review his statement, commenting, "If I don't·

remember, I don't remember" and, "You can't make me remember if I don't

remember." The prosecutor ended his direct by once again offering Bald an

opportunity to revi~w this statement and was again refused.

Upon cross examination, Bald had a "brilliant memory,":as the trial judge

described. He suddenly remembered the exact day of the murder, who was

present, what he and the others were doing, the circumstances surrounding.

Detective Miracle's visit, why he made certain statements to Detective Miracle,

and what generally happened when he spoke with Detective Miracle. Upon

redirect, his memory loss seemed to recur and he w~s once again unable to

recall the answers to questions from the Commonwealth.

A trial judge's evidentiary decisions will not be overturned absent an

abuse of discretion. Anderson v. Commonwealth, 231S.W.3d117, 119 (Ky.

2007) (citing Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004)). However,

Franklin concedes that this issue was unpreserved by contemporaneous

objection and must be reviewed under our palpable error standard. 1 Under

i The Commonwealth claims that Franklin is estopped from asserting this error
as he invited the error. However, because we find there was no error in the
Commonwealth's conduct, we proceed in assessing this claim of error substantively.
It should also be noted, however, that defense counsel, while not objecting to
the statement being admitted-generally, said they may have objections to particular
sections of the statement being played to the jury. The record stops for the judge to
13
this standard, decisions of the trial court will be reversed only upon a showing

that a "manifest injustice has resulted from the error." RCr 10.26. See also

Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013).

Under KRE 801A, an inconsistent. prior statement of a witness is

admissible, even if the witness is available, if that witness testifies at a trial or

hearing, is "examined concerning the statement," and the foundation

requirements of KRE 613 are met. See also Yates v. Commonwealth, 430

S.W.3d 883, 900 (Ky. 2014). In Wiley v. Commonwealth, this Court revisited

the admission of inconsistent statements from "forgetful" witnesses. 348

S.W.3d 570, 578 (Ky. 2010). We reiterated the Court of Appeals statement that

"No person should have the power to obstruct the truth-finding process of a

trial and defeat a prosecution by saying, 'I don't remember."' Id. (quoting Wise

v. Commonwealth, 600 S.W.2d 470, 472 (Ky. App. 1978)). Thus, we determined

that "the relevant inquiry in determining if a lack of memory is (or should be

treated as) a prior inconsistent statement, is whether, within the .context of the

case, there is an appearance of hostility of the witness which is the driving

force behind the witness's claim that he is unable to remember the statement."

Wiley, 348 S.W.3d at 578.

The parties do not dispute that the statement was properly admitted

through KRE 801A. However, Frankl.in argues that the Commonwealth failed

to strictly comply with KRE 613. Franklin correctly asserts that this court has

review Bald's testimony to determine admissibility and returns when the jury reenters
the room. Any such specific objections are not available in the trial court record for
our review.
14
"consistently required strict compliance with the foundation requirements of ...

KRE 613(a)." Noei v. Commonwealth, 76 S.W.3d 923, 930 (Ky. 2002) (citations

omitted). The reasoning behind such compliance is that·"[t]he object of the

question is to contradict [the witness], and it is but fair to the witness to

refresh his recollection as to the declaration or words used and proposed to be

proved ... " Id. (quoting Cole v. State, 65 Tenn. 239, 241 (1873)).

Franklin claims that the Commonwealth failed to specifically identify the

statements descnbed and read or play those. statements for Bald to review.

However, the Commonwealth did recite numerous specific statements to Bald,

asking if he remembered making those statements or d~nied making those

statements. The Commoriwealth repeatedly read from the transcript of Bald's

interview with Detective Miracle. The Commonwealth repeatedly gave Bald an

opportunity to review his statement. Bald flatly refused this opportunity

multiple times. ~o hold that the Commonwe~th failed to strictly comply with

KRE 613 when it attempted at every tum to do so but was frustrated by a

hostile witness would be to contravene the logic behind our prior case law: to

allow witnesses an opportunity to review arid refute prior statements. Here,

that opportunity was given and refused.

The Commonwealth cannot force Bald to listen to his statement and,

even if they had, Bald stated his memory would not change. KRE 613 requires

an examination of the witness regarding the circumstances of the statement

"as correctly as the examining party can present them." The Commonwealth

complied with these requirements.

15
 Franklin claims this decision is starkly contrast from Manning v.

Commonwealth, 23 S.W;3d 610 (Ky. 2000). In Manning, the defendant's

common-law wife denied any memory of the defendant confessing to her or

giving a statement to police about that confession. Id .. at 612. At a hearing,

the Commonwealth played her recorded statement to her after she denied any

memory and she stated it did not refresh her memory. Id. At trial, she

repeated her denial. "After the Commonwealth laid a foundation pursuant to

KRE 613, the video of her statement to the detective was admitted at trial as a

prior inconsistent statement." Id. (citing United States v. Owens; 484 U.S. 554

(1988)). This Court found the admission proper. Manning, 23 S.W.3d at 613.

This case is very similar to Manning. The witness was given the

opportunity to hear particular statements, listen to the statement, and review

.what the Commonwealth alleged _he sai~. The difference here is simply that the

witness showed further hostility on the stand by refusing to even review h1s

statement to refresh his memory. We cannot hold that the Commonwealth or
I .

the trial court erred after a witness's refusal under these circumstances to take

the opportunities granted him by the law before evidence can be admitted.

Additionally, we must reiterate that KRE 613 requires this examination

in order to allow a witness an opportunlty to refute the statement before him.

See Noel, 76 S..W.3d at 930. Bald_remembered Detective Miracle questioning

him during his cross-examination. He explained in detail why.he gave

particular statements because he feared criminal repercussions from the

officer. He explained that the officers were at his mother's home to search
16
pursuant to a warrant and he feared that his mother's house would be

ransacked if he failed to cooperate. Thus, in this context, we cannot hold that

the witness was not given the opportunity to refute these inconsistent

statements. The recorded statement was properly admitted.

III. CONCLUSION

As to Franklin's claims against the trial court's judgment, we discern no

error in any of the described decisions. As such; we affirm the judgment of the

Jefferson Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

David S. Mejia

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Micah Brandon Roberts
Assistant Attorney General

17