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RENDERED : JANUARY 22, 2009
NOT TO BE PUBLISHED
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2007-SC-000298-MR
TERRANCE MILES
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE JUDITH E . MCDONALD-BURKMAN, JUDGE
NO. 05-CR-000740
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This is an appeal from a judgment convicting Appellant of murder,
wanton endangerment, tampering with physical evidence, and being a
persistent felony offender in the second degree (PFO II) stemming from the
shooting death of a bouncer outside a Louisville nightclub . Appellant argues
that he was denied a speedy trial, that there was misleading and false
testimony presented to the grand jury, that defense counsel's cross-
examination of a jailhouse witness was improperly limited, and that a number
of unpreserved errors cumulatively amounted to palpable error. Upon review of
the record, we adjudge that the claimed errors were either not error or did not
rise the level of reversible or palpable error. Thus, we affirm.
On the night of February 27, 2005, Michael Teasley, a bouncer at Club
502, was shot and killed outside the club as he attempted to clear the parking
lot after the club had closed . Earlier that same evening, after another bouncer
had removed Terrance Miles from the club for smoking marijuana, Miles and
Teasley got into a fight . Teasley's wife, Crystal, who also worked at the club,
testified that after the fight, Miles grinned and said to her husband, "you might
have whipped my ass, but I'm going to get you ."
Officer Frank Hill of the Louisville Metro Police Department, who was
working extra security for the club while off duty, observed the fight between
Teasley and Miles. While Hill did not witness the actual shooting, he heard the
gunshots and then looked in the direction of the gunshots and saw a male
running across the parking lot dressed in all dark clothing and wearing a
toboggan hat. Officer Hill testified that the man he observed running across
the parking lot was the same man who had been fighting with Teasley earlier in
the night. Hill gave chase in his patrol car with the assistance of another
bouncer and at one point located the suspect behind a dumpster in back of the
club . However, Hill eventually lost sight of the suspect.
A number of items were collected from the crime scene, including a black
toboggan hat and a cell phone . The number of the cell phone matched the
number Miles gave to Enterprise Rent-a-Car when he switched his rental
vehicle the day after the murder. The hat was ultimately sent by the
Commonwealth to the Kentucky State Police forensic lab for DNA testing to see
if trace evidence on the hat matched Miles' DNA. The results of the testing
were ultimately determined to be negative for Miles' DNA.
On March 5, 2005, Miles was indicted for the murder of Teasley, as well
as other charges related to the shooting. After a series of continuances related
to the testing of the toboggan hat, a jury trial was held on December 12, 2006.
The jury found Miles guilty of murder, first-degree wanton endangerment,
tampering with physical evidence and PFO 11, and recommended a sentence of
fifty (50) years in prison . From the amended judgment of April 5, 2007,
accepting the jury's recommendations, Miles now appeals as a matter of right.
SPEEDY TRIAL
Miles alleges that the twenty-one (21) month time period between his
indictment and trial violated his Sixth Amendment right to a speedy trial.
During the twenty-one (21) month period, the Commonwealth requested and
was granted three continuances . The stated reason for each motion for
continuance was that they were awaiting the DNA test results on the black
toboggan hat. The hat was sent to the lab for testing on November 7, 2005 .
On November 25, 2005, Miles pro se asserted his right to speedy trial in
a letter to the court, which was followed by a formal motion for speedy trial
filed on December 13, 2005 by defense counsel . However, defense counsel
stated no objection to the continuance at the December 5, 2005 hearing prior
to the first proposed trial date, wherein the prosecutor maintained that the hat
was a vital piece of evidence which could prove to be either inculpatory or
exculpatory.
At a subsequent pre-trial hearing on March 3, 2006, the prosecution
informed the court that when he called to check on the progress of the DNA
testing on the hat, he was told that the lab had not even started testing the
hat. During this hearing, Miles' counsel agreed that the toboggan hat was a
"crucial piece of evidence" in the case. At the April 11 and September 26, 2006
hearings, however, Miles' counsel objected to the unnecessary delay in the case
and announced ready for trial even though testing was not complete on the
hat.
A defendant's right to a speedy trial under both the United States and
Kentucky Constitution is analyzed under the four-prong balancing test set
forth in Barker v. Wingo , 407 U .S . 514 (1972) . Dunaway v . Commonwealth , 60
S .W .3d 563, 569 (Ky. 2001) . The four factors to be considered are: 1) length of
the delay; 2) reason for the delay; 3) defendant's assertion of his right to a
speedy trial; and 4) prejudice to the defendant. Barker, 407 U .S . at 530 .
Regarding the first factor, we deem the twenty-one (21) month delay in
this case to be presumptively prejudicial . See Bratcher v. Commonwealth, 151
S .W.3d 332, 344 (Ky. 2004) (holding an eighteen (18) month delay in a murder
case to be presumptively prejudicial) . "That prejudice, however, is not alone
dispositive and must be balanced against the other factors." Parker v .
Commonwealth, 241 S .W .3d 805, 812 (Ky. 2007) (citation omitted) .
As for reason for the delay, the Commonwealth argued that the toboggan
hat was vital evidence in the case and that they could not go forward with the
trial without the DNA testing being completed. Nevertheless, after the testing
came back negative, the Commonwealth still proceeded with the trial and
obtained a conviction against Miles . In fact, at trial the prosecutor elicited
testimony from the lead investigator on the case, Detective Chris Ashby, that
the hat had no relevance in the case and argued such in his closing argument .
Miles asserts that this demonstrates that the testing on the hat was not a
legitimate reason for the delay in this case and that the prosecutor
intentionally misled the court as to the importance of the hat to the case .
The black toboggan hat in question was found and collected by the police
as potential evidence at the scene . Officer Hill and two other witnesses testified
at trial that the man who shot Teasley was wearing a toboggan hat. Simply
because the testing came back negative on the hat and the prosecution
subsequently argued at trial that the hat was not significant to the case, does
not mean that the Commonwealth acted in bad faith in seeking DNA testing on
the hat . After the hat tested negative for Miles' DNA, the Commonwealth had
no choice but to minimize the evidentiary value of the hat at trial. In reviewing
the record, there is no indication that the Commonwealth acted in bad faith .
At the pre-trial hearings wherein the status of the testing on the hat was
discussed, the prosecutor reported that he was regularly calling the lab to
inquire about the status of the testing . Defense counsel admitted that the hat
was crucial evidence and stated no objection to having the hat tested, although
he sought to have their own expert present for testing.
Miles did assert his right to a speedy trial, both pro se and through
counsel. However, as noted above, defense counsel did not initially object to
the motions for continuance based on the testing of the hat not being
completed.
As for prejudice to Miles as a result of the delay, Miles alleges that he lost
a key witness for trial, Steven Edwards, who died on June 25, 2006 in a
motorcycle accident. Upon review of the record, the only references to Edwards
were in a March 2007 motion to dismiss indictment for speedy trial violation
and as an alias for Miles. According to the record, no subpoenas were issued
for Edwards' appearance at either of the two trial dates prior to Edwards'
death. Further, Miles does not allege what Edwards' testimony would have
been and why he was so crucial to his case.
Finally, although Miles was convicted, the negative test results on the
hat were favorable to Miles' case at trial . The negative DNA results on the hat
were a large part of Miles' defense and were repeatedly referred to by defense
counsel at trial as proof that Miles was not the shooter.
Upon consideration of all of the above factors in Barker, we adjudge that
Miles was not denied his right to a speedy trial in this case .
With respect to Miles' claim that his right to a speedy trial under KRS
500 .110 was violated, it has been held that said statute only applies when a
defendant is incarcerated for one offense and a detainer has been lodged
against him for another offense . Gabow v. Commonwealth , 34 S .W.3d 63 (Ky.
2000) overruled in art on other grounds by Crawford v. Washington, 541 U.S .
36, 60-61 (2004) . From our review of the record, no detainer was lodged
against Miles in this case . Hence, KRS 500 .110 is not implicated here.
GRAND JURY TESTIMONY
Miles argues that the Commonwealth's witness Sergeant Teddy Laun
presented false and misleading testimony to the grand jury when he testified
that Officer Hill and Reggie Burney had witnessed the shooting of Teasley . The
grand jury testimony is not in the record before us . However, in Miles' motion
to dismiss the indictment for misleading the grand jury, Miles refers to the
following testimony of Sergeant Laun before the grand jury: "We prepared a
photo pack which was shown to two of the witnesses, um, they were at the
scene of the altercation and at the scene of the shooting." At trial, Officer Hill's
testimony was that, while he did not see the actual shooting, he was nearby
and saw the defendant running from the scene . Burney did not testify at trial.
We do not see that said Hill's testimony and the evidence adduced at trial was
in conflict with the purported grand jury testimony of Sergeant Laun . The
grand jury testimony was that Hill and Burney were at the scene of the
altercation and shooting and were able to identify the defendant, not that they
actually saw the shooting. Accordingly, this argument is without merit.
CROSS-EXAMINATION OF BRYCE BONNER
Prior to trial, the Commonwealth made a motion in limine to limit the
cross-examination of its jailhouse witness, Bryce Bonner, regarding the nature
of his conviction and whether he sought a deal from the prosecutor in
exchange for his testimony in this case. The Commonwealth argued that
because Bonner had already been convicted and sentenced as of the time of
Miles' trial and did not receive a deal or in any way benefit from testifying for
the Commonwealth, any potential bias would have been eliminated . The
Commonwealth maintained, therefore, that the defense should not be able to
inquire into whether Bonner sought a deal in exchange for his testimony.
Defense counsel argued that Bonner's initial motive in approaching the
Commonwealth and seeking a deal in exchange for his testimony was relevant
and could be inquired into by the defense. The court granted the
Commonwealth's motion and ruled that the defense could not ask Bonner if he
had initially sought a deal from the Commonwealth in exchange for his
testimony . Miles argues that his Sixth Amendment right to cross-examine
witnesses was violated when the trial court would not allow this evidence of
Bonner's bias to be admitted .
An essential aspect of the Sixth Amendment
Confrontation Clause is the right to cross-examine
witnesses. Douglas v. Alabama, 380 U .S . 415, 418, 85
S .Ct. 1074, 1076, 13 L.Ed .2d 934, 937 (1965) .
Additionally, "the exposure of a witness' motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination."
Davis v. Alaska, 415 U.S . 308, 316, 94 S .Ct. 1105,
1110, 39 L.Ed.2d 347, 354 (1974) . However, it is
equally well established that the right to cross-
examination is not absolute and the trial court retains
the discretion to set limitations on the scope and
subject: "[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to
whatever extent, the defense might wish ." Delaware v .
Van Arsdall, 475 U.S . 673, 679, 106 S.Ct. 1431, 1435,
89 L.Ed.2d 674, 683 (1986) (emphasis in original) . . . .
In defining reasonable limitations on cross-
examination, this Court has cautioned : "a connection
must be established between the cross-examination
proposed to be undertaken and the facts in evidence."
Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky.
1997) .
Davenport v. Commonwealth , 177 S.W.3d 763, 767-68 (Ky. 2005) .
As for limitations on cross-examination on a witness' bias, "this Court
has explained: `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 boundaries ."' Id . at 768 (quoting Commonwealth
v. Maddox) 955 S .W.2d at 721) . The test espoused by the Van Arsdall Court
was whether a "reasonable jury might have received a significantly different
impression of [the witness'] credibility had [defense] counsel been permitted to
pursue his proposed line of cross-examination ." 475 U .S . at 680 .
A trial court's rulings concerning limits on cross-examination are
reviewed for abuse of discretion . Nunn v. Commonwealth, 896 S .W .2d 911,
914 (Ky .1995) . In Davenport , we adjudged that the trial court did not abuse its
discretion in prohibiting the defense from cross-examining the witness about
his probation status or his pending misdemeanor charges where the
Commonwealth had made no offer of leniency in exchange for the witness'
testimony. 177 S .W.3d at 771 . Likewise, in the instant case, Bonner had not
been offered a deal for his testimony and had already been convicted and
sentenced as of Miles' trial. He admitted to being a convicted felon at trial.
Thus, at the time of Miles' trial, Bonner had nothing to gain in testifying
against Miles, which presumably explains why he ended up being a hostile
witness for the Commonwealth and his testimony was not helpful to the
Commonwealth . Apparently Bonner recanted at trial, denying that he
previously stated to the prosecutor that Miles' demeanor was arrogant when
Miles told Bonner that he could not be convicted. Bonner testified only that
Miles told him the Commonwealth did not have the evidence to convict him and
that he was angry because he was being accused of crimes he did not commit.
From our review of Bonner's testimony, we do not see that the jury would
have received a significantly different impression of Bonner had they heard
evidence that he sought a deal with the Commonwealth in exchange for
testimony against Miles. The jury knew that Bonner was a convicted felon and
was in jail at the time he had the conversation at issue with Miles . And even if
there was error, the defense was not prejudiced by Bonner's testimony. Thus,
it would have been harmless error. RCr 9 .24 .
CUMULATIVE EFFECT OF UNPRESERVED ERRORS
Miles argues that the aggregate of several other errors, which were
admittedly unpreserved, constituted palpable error under RCr 10 .26 . A
reviewing court may grant relief of an unpreserved error only when manifest
injustice has resulted from the error. RCr 10 .26. "To discover manifest
injustice, a reviewing court must plumb the depths of the proceeding . . . to
determine whether the defect in the proceeding was shocking or jurisdictionally
intolerable ." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky . 2006). Upon
review of the entire record, we cannot say that the alleged errors below, either
alone or cumulatively, rise to the level of palpable error.
Miles first assigns as error the improper questioning of Bonner by the
prosecutor on direct when he asked him if he remembered the conversation he
had with him the previous day, thereby placing the prosecutor's credibility
before the jury . As discussed earlier, the testimony of Bonner was not harmful
to Miles' case. If anything, it was helpful to the defense . Accordingly, the
error, if any, could not constitute palpable error.
Miles next alleges prosecutorial misconduct when the Commonwealth
made comments during its closing argument that the defendant and defense
witnesses were lying. Responding to the accusation in the defense closing
argument that the Commonwealth's witness, Crystal Teasley was lying, the
prosecutor argued that Miles and his two witnesses were lying . In so doing, the
prosecution pointed to the inconsistencies between the defense testimony and
defense theory of the case and the established facts in the case . However,
Miles did not testify in the case. According to the Sixth Circuit:
If a defendant testifies as here, a prosecutor may
attack his credibility to the same extent as any other
witness . See Raffel v. United States, 271 U.S . 494,
497, 46 S .Ct. 566, 70 L.Ed. 1054 (1926), see also
Fitzpatrick v. United States, 178 U .S . 304, 315, 20
S.Ct. 944, 44 L.Ed. 1078 (1900) . This Court has held
that a prosecutor may assert that a defendant is lying
during her closing argument when emphasizing
discrepancies between the evidence and that
defendant's testimony. See United States v. Veal, 23
F.3d 985, 989 (6th Cir.1994) . To avoid impropriety,
however, such comments must "reflect reasonable
inferences from the evidence adduced at trial." See id .
(quoting United States v . Goodapple, 958 F .2d 1402,
1409-10 (7th Cir.1992)) . Again, misconduct occurs
when a jury could reasonably believe that the
prosecutor was, instead, expressing a personal opinion
as to the witness's credibility. Taylor, 985 F.2d at 846
(citing United States v . Causey, 834 F .2d 1277, 1283
(6th Cir.1987), cert. denied, 486 U .S. 1034, 108 S.Ct.
2019, 100 L .Ed.2d 606 (1988)) .
United States v. Francis, 170 F .3d 546, 551 (6th Cir . 1999) .
As for the prosecution's assertion in closing argument that the defense
witnesses were lying, because the prosecution backed up such claims with
specific discrepancies between their testimony and the evidence, there was no
prosecutorial misconduct . As to the prosecution's argument that the
defendant was lying, because Miles was not a witness in the case, the comment
amounted to prosecutorial misconduct . Nevertheless, we adjudge that in this
case such misconduct was neither flagrant nor of such an egregious nature to
deny Miles his constitutional right to due process of law, especially given the
absence of a contemporaneous objection to the comment. See Barnes v .
Commonwealth , 91 S .W.3d 564, 568 (Ky. 2002) (following the Sixth Circuit
Court of Appeals in United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir .
1994) and United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979)) and
Slaughter v. Commonwealth , 744 S .W .2d 407, 411-412 (Ky. 1987) . In light of
the overwhelming evidence adduced against Miles in this case, we likewise
cannot say that manifest injustice resulted from said error. Hence, there was
no palpable error.
Miles also assigns as palpable error the prosecution's leading of its
witnesses, Detective Ashby and Bryce Bonner, in violation of KRE 611 . As
noted above, Bryce Bonner turned out to be a hostile witness for the
Commonwealth. Leading questions of a hostile witness are expressly permitted
12
by KRE 611(c) . And the question asked of Detective Ashby regarding the
testing of the toboggan hat, if leading at all, would not amount to palpable
error.
The last three alleged palpable errors are summarily raised in Appellant's
brief without any citation to the record, citation to authority, and without any
explanation as to why they constitute error. See CR 76.12 (4)(c) (v) . Those
arguments were not properly presented to this Court and thus will not be
addressed .
For the reasons stated above, the judgment of the Jefferson Circuit Court
is affirmed .
All sitting . All concur .
COUNSEL FOR APPELLANT:
Aubrey Williams
Williams 8s Associates
421 Starks Building
455 Fourth Avenue
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Henry Albert Flores, Jr.
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601