IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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RENDERED: NOVEMBER'2, 2017-
NOT TO BE PUBLISHED
2016-SC-000183-MR
JARROD WEISS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
NOS. 14-CR-002387-01 and 14-CR-002531 ·
COMMONWEAL1'H OF KENTUCKY APPELLEE
MEMORANDUM·OPINION OF THE COURT
AFFIRMING
On the afternoon of April 27, 2011, in Louisville, Kentucky, Tanner
Browning was spending time with 'friends in his apartment. Around the time
·Tanner's guests were departing, Appellant, Jarrod Michael Weiss, who lived in
. .
the same apartment complex, parked his vehicle in front of Tanner's
apartment. At that time, Appellant displayed his new stereo system for Tanner
and his friends. Eventually, Tanner's friends left, while Tanner and Appellant
remained together in the parking lot. What occurred thereafter is unknown.
However; later that evening, Isaac Clark, a neighbor and friend of Tfinner's,
observed Tanner's patio door ajar. Clark grew concerned and decided to enter
·the apartment to check on Tanner. Clark discovered Tanner's lifeless body
lying inside his apartment bedroom. Tanner died from a fatal gunshot wound.
The Saint Matthews Police Department quickly focused on Appellant as
the culprit .. Countless witnesses confirmed that Appellant was the last
individual seen with Tanner. Police also uncovered that Appellant had
purchased a stolen gun from Tanner's roommate. Yet, law enforcement had
virtually no physical evidence tying Appellant to the crime, so no arrest was
made for several years. Eventually, Appellant's wife, Lavonna Blount, .her
brother, Gerald Blount, and her sister-in-law, Ashley Blount, came forward and
told detectives that Appellant had confessed to murdering Tanner. All three
witnesses indicated that Tanner owed Appellant money for marijuana and that
Appellant went to Tanner's to retrieve the money. When Tanner ·could not
produce the money, Appellant closed his eyes and shot Tanner. Appellant then
returned to his apartment where he cut up his pants and attempted to flush
the cuttings down the toilet. Appellant also disposed of the gun.
On September 15, 2015, a Jefferson County Grand Jury indicted
Appellant for one count each of murder and tampering with physical evidence.
A two-week trial commenced on January4, 2016, during which thirty-seven
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witnesses testified. Ultimately, the Jefferson Circuit Court Jury found
Appellant guilty on both charges, in addition to being ' a persistent felony
offender in the second degree. The trial court sentenced Appellant in
conformity with the jury's recommended sentence of thirty years'
2
imprisonment. Appellant now appeals his convktion and sentence as a matter
of right pursuant to § 110(2)(b) of the Kentucky Constitution.
Davis' Testimony
Appellant's first assignment of error concerns the testimony of Donovan
Davis. Prior testimony revealed that John Deverea~ burglarized Davis' vehicle
and recovered a .45 Glock. Devereaux then sold the stolen gun to Appellant.
The Commonwealth theorized that the stolen .45 Glock was the murder
weapon. However, the stolen Glock was never recovered. Thusly, evidence was
presented during the trial that both supported and contradicted· the ·
Commonwealth's murder weapon theory. In support, evidence showed that the
bullets loaded into the stolen gun were the sai:ne type recovered from the crime
scene. More specifically, Davis testified that he had loaded Remington Golden
Saber, 185-grain, hollow-point bullets into the gun prior to its theft. KSP
. .
ballistics expert, Leah Collier, testified that a Remington hollow-point bullet
and casing were recoyered frqm the crime scene.
'The Commonwealth's murder weapon theory, however, had a significant
'
flaw. According to Davis, the Glock manufacturer had shipped him the gun
along with two shell casings that were test fired at the point of assembly.
Essentially, the Glock manufacturer provides the buyer with two casings fired
from the purchased gun. Davis provided law enforcement with the test-fired
casings in order for them to be compared to the shell casing recovered from the
crime scene~ Ms. Collier was unable to make a conclusive match between the
test-fired casings and the one recovered from Tanner's
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apartment. Two
3
independent ballistics experts also testified that the test-fired casings did rtot
match the casing found at the scene.
·The Commonwealth attempted to reconcile the inconsistencies in its
theory by disclosing-to the jury an off-the-record remark made by one expert,
Kelly Fite. He stated that Glock manufacturers are notorious for not properly
matching the test-fired casings with the correct gun. In other words, the test-
fired casings that Davis provided may have been fired from a different Glock,
not the actual Glock he purchased. This would explain why experts cb~ld not
. .
match the test-fired casings with the murder weapon.
With this information in mind, we turn to Appell~nt's.first argument
regarding Davis' testimony. Appellant takes aim at the trial court's allowance
of Davis' statements that Appellant claims were improperly presented to the
jury as expert opinions. More precisely, Davis testified that the .45 Remington
hollow,-point bullets he loaded into the Glock prior to its theft were rare
ammunition not easily accessible to the public. When prompted by the
Commonwealth to discuss the ammunition's availability, Appellant objected on
the grounds that the answer would be inadmissible expert testimony from a lay
witness. The trial court overruled Appellant's objection, explaining that Davis'
testimony was factual and not an expert opirtion. The Commonwealth
continued its questioning by asking Davis, in his personal experience
purchasing ammunition, how many types of .45 caliber ammunition and bullet
weights were availa_ble to purchase and which type of bullet was the most
common. Davis' answers demonstrated that in his extensive.history of
4
purchasing ammunition, the bullets he had loaded into his gun prior to its
theft we~e the least common forms of ammunition for his particular . .45 Glock.
·In order to determine the _admissibility of Davis' testimony, we look to
Kentucky Rules of Evidence ("KRE") 701 .. This rule limits opinion testimony by
a lay witness to that which is, inter alia, "[r]ationally based on the perception of
the witness ... [and] [n]ot based on scientific, technical, or other specialized
knowledge within the scope of Rule [KRE] 702." This is not to say that lay
witnesses can never provide testimony on a subject that is technical in nature, ·
so long as their opinions are based on sufficient life experiences. Mondie v.
Commonwealth, 158 S.W.3d 203, 212 (Ky. 2005) ("The degree to which a
witness may give an opinion, of course, is predicated in part upon whether and
the extent to which the witness has sufficient life experiences that would
permit making a judgment as to the matter involved."). In the case before us,
Davis had corresponding life experience buying and utilizing ·am.munition. His
testimony indicated. that he was a firearms instructor who had purchased guns·
and ammunition since his. teenage years. · Furthermore, his testimony was
focused·entirely on his personal experience buying.ammunition for his own
gun. See Huntv. Commonwealth, 304 S.W.3d 15 (Ky. 2009). Accordingly, we
cannot find that the trial court abused its discretion, as Davis' testimony was
not based on scientific, technical, or specialized knowledge, rather his own
personal experiences.
Appellant also argues that Davis' testimony was inadmissible pursuant
to KRE 403. At the close of the Commonwealth's· case-iri-chief, .Appellant
5
moved for a mistrial on the grounds that Davis' testimony regarding the stolen
Glock and test casings was more prejudicial than probative. The crux of
Appellant's argument to the trial court was that there was no connection
between Davis' stolen gun and the murder weapon. Consequently, Davis'
testimony concerning the Glock warranted a new trial.
KRE 403 requires a trial court to exclude evidence when its probative
value is substantially outweighed by the danger of undue prejudice. To begin
our analysis, we find that Davis' testjmony had substantial probative worth.
While the Commonwealth was unable to prove an exact match o.f the test-fired
casings and the crime scene casing, it provided sufficient proof connecting
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Davis' stolen gun to the crime. For instance, Appellant had purchased Davis'
stolen gun from Deveraux, and the bullet and casing found at the crime scene .
was the same type of bullet Davis had loaded into his gun prior to ~ts theft. In
addition, Davis' testimony regarding the stolen Glock did not cause Appellant
·to suffer undue prejudice. This Court discussed. the meaning of undue or
unfair prejudice in Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 716 (Ky.
2009), wherein we stated the following:
Evidence is unfairly prejudicial only if ... it appeals to the jury's
sympathies, arouses its sense of horror, provokes its instinct to
punish, or otherwise may cause a jury to base its decision on
something other than the established propositions in the case.
(internal quotations and citations omitted).. We do not believe Davis' testimony
led the jury to decide the merits of the case on anything other than the
·evidence presented. Accordingly, we cannot say that the trial court abused its
discretion in allowing Davis' testimony ..
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. Fite's Off-the-record Statement
We now turn back to the off-the-record statements made by Kelly Fite.
Appellant claims such statements constituted inadmissible hearsay. We agree .
. After KSP ballistics testing was ub.able to match the crime scene casing
with the test-fired casings, they were sent to Fite, a Georgia based ballistics
expert. Fite submitted a one-page report confirming that the casing from the
crime scene wds not fired from the same firearm that shot the casings from the
test weapon-the stolen Glock. Fite was not subpoenaed to testify at trial.
Instead, his report was introduced without objection to the jury through
Detective Napier's testimony. During his testimony, the Commonwealth asked
Detective Napier whether Fite had expressed any concerns that the test-fired
casings were actually :fired from a different Glock than the orie shipped to
Davis. Detective Napier revealed that he had "an off-the-record" conversation
with Fite, during which Fite .stated that the Glock manufacturers often fail to
provide the correct test-fired ca_sings. Since that statement by Fite was not in
the written report, Appellant objected to Fite's off-the-record statements on the
grounds of hearsay. The trial court overruled the objection without specifying
its reasoning.
. Without doubt, Detective Napier's stateme:i;its recounting his off-the-
"
record conversation with Fite constituted hearsay within meaning of KRE 801,
and qualified for no exception. More importantly, and as t~e Commonwealth .
concedes, allowing Detective Napier to recount the off-the-record conversation
violated Appellant's right to confrontation under the Sixth Amend:r:nent to the
7
United States Constitution and Section 11 of ouF Kentucky Constitution. See
Crawford v. Washington, 541 U.S. ,36 (2004) (U.S. Supreme Court declared that
out-of-court testimonial statements where the declarant is unavailable are
·catego~ically barred from admission under the Constitution unless the
defendant had a prior opportunity to cross-exa~ine the. witness). Our focus,
then, is whether this constitutional violation was harmless beyond a
reasonable doubt. Whittle v. Commonwealth, 352 S.W.3d 898, 905-06 (Ky.
2011) (citing Chapman v. California, 386 U.S. 18, 22, 24 (1967)). Accordingly,
, the Court must determine "whether the improper evidence was of a weight, was.·
. .
of a striking enough nature, or played a prominent enough role in the
Commonwealth's case to raise a reasonable possibility that it contributed to
the conviction." Staples v. Commonwealth, 454 S.W.3d 803, 827 (Ky. 2014).
In reviewing the evidence as a whole, we believe there was substantial
proof of Appellant's guilt presented to the jury. Nl,lmerous witnesses testified
that Appellant was the last individual with Tanner, as close as thirty minutes
preceding his death. · Three witnesses testified that Appellant confessed to
murdering Tanner. All three witnesses' accounts of Appellant's confessions
were corroborated by other evidence .. This included the fact that Tanner owed
Appellant money for drugs, Appellant had a loaded gun, and Appellant tried to
flush his cut-up pants down the toilet-the latter corroborated by the property
manager having to fix the plumbing.· Moreover, Detective Napier's statement
concerning the off-the-record conversation was brief and added little insight
into wp.ether the casings were fired from the same gun. We believe most logical
1
8
jurors would have considered the possibility that the Glock manufacturer
mismatched the test-fired casings with the purchased gun, even absent Fite's
statement~ Therefore, absent Detective Napier's inadmissible statements, our
evaluation of the remaining evidence reveals, beyond a r~asonable. doubt, that
a conviction would have ensued.
Detective Ball's Testimony
Appellant complains that the trial court committed r~versible error when
it allowed Detective Ball, the lead investigator, to express inadmissible opinion
testimony and hearsay, in violation of KRE 701. Appellant takes aim at the
Corri:rponwealth's questioning which induced Detective Ball to inform the jury
that Appellant was the exclusive suspect in his investigation. As· his testimony
unfolded, the Commonwealth asked Detective Ball if he told Appellant, "I think
you're my shooter." When Detective Ball answered in the affirmative, the
Commonwealth inquired as to his·reasoning. As Detective Ball recounted, he
intervi~wed a bevy of witnesses which revealed no additional suspects.
Appellant objected to the testimony on the grounds that Detective Ball was
providing improper opinion testimony that Appellant was guilty of murder.
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Moreover, Appellant claimed that Officer Ball's conclusion was based llowing statement to the jury: "If you're
sitting there in your mind thinking, I know he did it ... that's what proof
beyond a reasonable doubt [inaudible]· ...." After Appellant's objection, the
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prosecutor revised his statement, saying "it is upon you to deicide, beyond a
reasonable doubt, what that means."
In determining whether a prosecutor's conduct rises to the level of
prosecutorial misconduct, we must decide whether the conduct was of such an
"egregious" nature that it denied the defendant his constitutional right ofdue
process of law. Slaughterv. Commonwealth, 744 S.W.2d 407, 411-12 (Ky.
1987) (citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974). We have
consistently emphasized that "[g]reat leeway is allowed to both counsel in a
closing argument." Slaughter, 744 S.W.2d at 412. (emphasis in original).
Moreover, "[i]f the misconduct is objected to, we will reverse on that ground if
proof of the_ defendant's guilt was not such as to render the misconduct
harmless, and if the trial court failed to cure the misconduct with a sufficient
admonition to the jury." Murphy v. Common.wealth, 509 S.W.3d 34, 49 (Ky.
2017) (quoting Duncan v. Commonwealth, 322 S.W . 3d 81; 87 (Ky. 2010)).
. . .
As to the Commonwealth's statement that Tanner's family deserves
justice, there is certainly concern that it aroused sympathy for the victim's
family. See Sanborn, 754 S.W.2d at 542-43. In addition, we find it apparent.
that the_ Commonwealth's statement concerning reasonable doubt teetered on
the line of impermissibly defining the term. See Commonwealth v. Callahan,
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675 S.W.2d 391, 393 (Ky. ~984) (in closing argume~ts, counsel should "refrain
from any expression of the meaning or d.efinitioh of the phrase 'reasonable
doubt."'). Nevertheless, we do not believe either statement crossed the line of
reversible error, as they did not render Appellant's trial fundamentally unfair.
As we have already outlined, proof of Appellant's guilt was substantial. In ligh~
. of the evidence against him, we have no doubt that the Commonwealth's
fleeting statements, ~ssuming they evoked prejudice, did not contribute to the
ultimate verdict of guilt.
RCr 7.26
Appellant's eighth assignment of error is th~t the trial court violated RCr
7.26 when fr allowed fate notice of a witness's inculpatory statements. This
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issue arose on the fifth day of trial.
Witness, Travis Leseman, claimed that he was smoking a cigarette in his
car in front of the victim's home late in the evening on the night in questiQn.
Per his earlier written statement, which had been produced to the defense
counsel, the Commonwealth expected Leseman to only testify that he ·
·witnessed Clark enter Tanner's apartment and leave shortly thereafter in an
obvious state of panic. This was intended to buttress Clark's account that he·
went to Tariner's apartment and saw him dead. Howev~r, on the morning that
Leseman was scheduled to testify, he informed the Commonwealth that he had
also witnessed Appellant leaving Tanner's apartment. Leseman claimecl that ~e
did not disclose this information during his previous interview because he did
not realize its significance until later.
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At that time, the Commonwealth immediately informed the trial court
and defense counsel of Leseman's additional expected testimony. The
.
Commonwealth asserted that it had no prior knowledge that Leseman observed
.
Appellant leaving Tanner's apartment that night. Appellant objected to .
Leseman being able to provide the inculpatory testimony. Yet, the trial court
held that it would allow Leseman's testimony since the Commonwealth had
<:fisclosed the ~ubstance of his new ·statements at the earliest opportunity. The
trial court provideq Appellant with a two-hour continuance. Leseman was
. I
vigorously cross-examined by Appellant regarding his failure tc:> come forivard
with the information earlier.
RCr 7.26(1) provides that "[e]xcept for good cau.se shown, not later than
forty-eight (48) hours prior to trial, the attorney for the Commonwealth shall
produce all sta.tements of any witness. in the form of a document or recording in
its possession which relates to the subject matter of the witness's testimony ..
. ." (Emphasis added). In Yates v. Commonwealth, 958 S.W.2d 306, 308 (Ky.
1997); we explained that under RCr 7.26(1), only written witness's statements
must be provided to defense counsel prior to trial. Thusly, since Mr. Leseman's
new-found claims were made shortly befor~ trial and were unrecorded, RCr
7.26(1) has no applicability. Furthermore, the Court made clear in Y~tes that a
witne~s's additional testimony concerning details not made within the "four
corners" of the written statement do not implicate RCr 7.26(1).
Even assuming, arguendo, that there was an RCr 7 .26 violation, reversal
would be unwarranted considering Appellant was not prejudiced. Roach v.
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Commonwealth, 507 S.W.2d 154 (Ky. 1974) (RCr 7.26 requires reversal only if
defendant suffered·prejudi~e). Appellant had time to review the witness's new
statements before he testified and was able to effectuate a robust cross-
examination, repeatedly highlighting the inconsistencies of the incriminating
testirriony. We find no error .1
Marital Privilege
Lastly, Appellant argues that reversible error occurred when the trial
court allowed his wife, Lavol}na, to testify against him. Appellant claims that
KRE 504 prohibited Lavonna from testifying against his wishes. The trial court
ruled tha_t the exception set forth in KRE 504(c)(l) permitted the testimony. We
agree. KRE 504(c)(l) provides that there is no marital privilege "[i]n any
criminal proceeding "in which the court determines that the spouses conspired
or acted jointly in the commission of the crime charged." In the case before us,
. both Appellant and Lavonna were indicted jointly fqr tampering with physical
evidence stemming from Appellant's attempt to dispose of evidence. Lavonna
agreed to plead guilty to the charge in exchange for her testimony against
Appellant. Appellant has failed to provide any reason to support his contention
that the KRE 504(c)(l) exceptiori'to marital privilege is inapplicable·.
!Appellant asserts a minor sub-issue within his argument concerning ~.seman's testimony.
Appellant complains of the trial court's ruling that he could' not introduce a certified copy of a
September 2011 petition to evict Leserrian from his apartment. Appellant believes this evidence
would have somehow impeached Leseman's claims that he moved back to Minnesota
immediately following Tanner's murder. The Court fails to see how this evidence would have
impeached Leseman. In fact, the petition for forcible entry and detainer demonstrates that
Appellant stopped paying his r~nt on the apartment, thereby supporting his contention that he
moved back to Minnesota.
20
/
For the foregoing
.
reasons,. the judgment of the Jefferson Circuit Court is
hereby affirmed.
All sitting. Minton, C.J.; Cunningham, Hughes, Keller, VanMeter, and
Venters, JJ., concur. Wright, J., dissents by separate opinion.
WRIGHT, J;, DISSENTING: I dissent from the majority opinion, as I do
disagree as to the weight of the evidence. Specifically, I do not believe the
confrontation clause violation that occurred when Detective Napier improperly
testified regarding the ballistic experfs off-the-record statement concerning
Glock's propensity to match the proper shell casings with the gun was
harmless beyond a reasonable doubt. "[B]efore a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24); e.g. Heard v.
Commonwealth, 217 S.W.3d 240, 244 (Ky. 2007).
In Staples v. Commonwealth, this court stated, "[h]armless error analysis
appl~ed to a constitutional error, such as the Confrontation Clause violation ..
. involves considering the improper evidence in the context of the entire trial
and asking whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction." Staples v.
Commonwealth, 454 S.W.3d 803, 826-27 (Ky. 2014) (internal quotations
omitted). Put differently, we have also stated that an error may not be deemed
harmless beyond a reasonable doubt unless "there is no reasonable possibility
· that it contributed to the conviction." Winstead v. Commonwealth, 283 S.W.3d
678, 689 (Ky. 2009). Thus, we must determine whether there is a reasonable
21
possibility Detective Napier's testimony might have contributed to Appellant's
conviction-if there is a reasoriable possibility that it contributed to the
conviction, we cannot find that the error was harmless beyond a reasonable
·doubt. The majority holds that there is no such reasonable possibility. I
disagree.·
·The majority calls the proof against Appellant "substantial." This proof
consisted of witnesses who testified Appellant was the last individual they saw
with Tann~r, testimony that Tanner owed Appellant money for drugs, the fact
that Appellant owned a loaded gun, the fact that he cut up and attempted to
flush his pants, and the testimony of three witnesses who testified Appellant
. .
had confessed to the murder. First of all, the facts that Appellant was the last
person seen with the Tanner, that Tanner owed him money for drugs, and the
fact that Appellant. owned a loaded gun carry little weight. While bizarre, there
is no assertion that the cut-up pants contain any evidence linking Appellant to
the crime apart from their very existence. Finally, the three witnesses who
testified that Appellant had confessed to the murder did not constitute
evidence strong enough to render the erroneously admitted evidence harmless
J:>eyond a reasonable doubt.
The three witnesses were Appellant's estranged wife, Lavonna Blount,
and Lavonna's brother and his wife, Gerald and Ashley Deem. During the
testimony, it was r~vealed that Lavonna and Appellant w~re estranged and that
. she was mad at Appellant for cheating on her. Gerald also admitted to
harboring animosity.against Appellant. The witnesses' stories differed in the
22
. details of the murder and none of them came forward until after Lavonna and
Appellant separated. Police had the previously-mentioned circumstantial
evidence, but did not arrest Appellant until after Lavonna, Gerald, and Ashley .
came forward.
Given the lack of physical evidence linking Appellant to the crime,
Detective Napier's improper
.
testimony concerning
.
the ballistics expert's off-the.:.
record statement was not harmless beyond a reasonable doubt. In this case,
the spent casings which were included in the gun Appellant purchased did not
match those found at tht'. crime scene. This could have easily created
reasonable doubt in the minds of the jury. However, Detective Napier
improperly testified that the ballistics expert stated that Glock manufacturers
often fail to provide the correct test-fired casings. The majority is correct in its
holding that this testimony violated Appellant's right_s under the confrontation
clause .. However, for the aforementioned reasons, I disagree that this error was
harmless beyond a reasonable doubt.
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate·
COUNSEL FOR APPELLEE:
· Andy Beshear
Attorney General of Kentucky
Emily Lucas
Assistant Attorney General
23