James Franklin Woods v. Commonwealth of Kentucky ( 2016 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: FEBRUARY 18, 2016
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JAMES FRANKLIN WOODS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE MITCH PERRY, JUDGE
NO. 11-CR--002882
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On the morning of January 4, 1993, Appellant, James Franklin Woods,
unlawfully entered the apartment of Patricia and raped her.' He did so by
entering through the back door of the apartment, which Patricia had left
unlocked because she was expecting her daughter to arrive soon. Patricia
observed that Appellant was wearing a mask and gloves, and that he said he
had a knife. Appellant held Patricia down and removed her clothes. He told
her to turn over. He then initiated anal sex and achieved slight penetration
before Patricia stated that she had diarrhea. Appellant stopped and then
commenced vaginal intercourse. He also requested oral sex but Patricia
refused. When he was finished, Appellant covered Patricia's head with pillows
Pseudonyms are being used to protect the anonymity of the victim.
and told her not to move. After waiting several minutes, Patricia got up and
called her husband who then called the police.
Officers questioned Patricia at the crime scene. She stated that she had
not seen the man's face, but gave a general description of his height and build.
She also stated that she believed the man was African American. She based
this on his voice and the fact that she saw his penis. After speaking with
officers, Patricia was taken to the hospital where a sexual assault exam was
administered. Several items were retrieved from the scene including numerous
articles of Patricia's bedding, her underwear, and a wash cloth. These items
were subsequently subjected to forensic testing.
This case was investigated for a year but ultimately went cold. It
remained so until August of 2011, when the Louisville Metro Police Department
("LMPD") received notice of a DNA match from the Kentucky State Police
("KSP'). Based on this information, Appellant, was indicted by the Jefferson
County Grand Jury on the following charges: 1) first-degree rape; 2) first-degree
sodomy; 3) first-degree burglary; and 4) being a first-degree persistent felony
offender ("PFO"). The PFO charge was later dismissed.
After his arrest, Appellant, who is African American, informed detectives
that he had been living at the same apartment complex as Patricia around the
time of the incident. As the case progressed, a current DNA sample was
obtained from Appellant and compared with the other evidence retrieved from
the crime scene and from the sexual assault kit. A forensic analyst testified at
trial that Appellant's DNA profile matched the DNA profile on Patricia's
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underwear at 14 of 15 different testing locations and was inconclusive at the
remaining location, and that the estimated frequency of such a match was one
in four quintillion people. The analyst also testified that the test results
matched Appellant's DNA with the DNA retrieved from the vaginal swabs, and a
hair that was discovered in Patricia's bedding. The estimated frequency of
these matches was one in 190 million and one in 620 billion people
respectively.
The jury convicted Appellant of first-degree rape, first-degree sodomy,
and first-degree burglary. The jury recommended a sentence of 20 years'
imprisonment for each, to be served consecutively for a total sentence of 60
years. The trial court sentenced Appellant in accordance with the jury's
recommendation. Appellant now appeals his conviction and sentence as a
matter of right pursuant to § 110(2)(b) of the Kentucky Constitution. Four
issues are raised and addressed as follows.
Juror Disqualification
Appellant first argues that the trial court erred by allowing Juror
1184360 to remain as an alternate through the end of trial. Appellant did not
raise this objection at trial. Therefore, we will review for palpable error. RCr
10.26; 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.").
On the morning of the third day of trial, the court questioned the jurors
whether they read a newspaper article about the pending case, which had been
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published that same morning. Juror 1184360 indicated that he had read the
article but that it did not impact his determination concerning Appellant's
guilt. After discussing the issue with counsel, the judge stated that it was
"highly likely" that he would designate Juror 1184360 as an alternate juror.
Later that day, the judge reviewed the article and again stated that it was
"highly likely" that he would designate Juror 1184360 as an alternate juror.
Defense counsel was also given the opportunity to review the article and
declined to move for a mistrial or request any additional relief. Juror 1184360
remained on the jury until after closing arguments. At that time, he was
selected as the alternate and was removed from the rest of the jury prior to
deliberations.
"[T]he law is clear that a trial court may remove a juror for cause at the
conclusion of the evidence as an alternate juror without violating the rule [of
randomness]." Lester v. Commonwealth, 132 S.W.3d 857, 863 (Ky. 2004)
(citing Hubbard v. Commonwealth, 932 S.W.2d 381, 382 (Ky. App. 1996)); see
also CR 47.02. Appellant has provided no evidence that Juror 1184360
discussed the article or its contents with the other jurors at any time prior to
his removal. The trial court also repeatedly admonished the jury not to discuss
the case. Appellant has failed to demonstrate that the Juror ignored that
admonishment. There was no palpable error here.
Motion for a New Trial
Appellant argues that the court erred in denying his pro se motion for a
new trial. He raises two issues from that motion on appeal. He claims a
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violation of Brady v. Maryland, 373 U.S. 83 (1963), and KRE 404(b). Neither of
these issues was raised during trial. We review a trial court's denial of a
motion for a new trial for an abuse of discretion. Brown v. Commonwealth, 174
S.W.3d 421, 428 (Ky. 2005).
The alleged Brady violation arises from evidence discovered by Dawn
Katz, a former KSP forensic biologist. Ms. Katz testified at trial that she
examined one "Negroid hair" that was discovered in Patricia's bedding. Ms.
Katz had noted the hair in her report. Ms. Katz also testified that Caucasian
hairs were discovered in the bedding. These Caucasian hairs were not
subjected to DNA analysis and were not mentioned in Ms. Katz's report,
although she did document the Caucasian hairs in her notes. Ms. Katz
testified that she did not test these hairs because Patricia was "allegedly
attacked by an unknown black male," which was consistent with the
description provided to Ms. Katz by the police.
Appellant argues that Ms. Katz's decision not to disclose evidence was
improper. Appellant also cites a federal civil case where Ms. Katz was sued for
allegedly violating a criminal defendant's constitutional rights by withholding
evidence. Gregory v. City of Louisville, 444 F.3d 725, 732 (6th Cir. 2006).
Appellant's argument here fails for several reasons.
First, Brady "only applies to the discovery, after trial, of information
which had been known to the prosecution but unknown to the defense."'
Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002) (citation omitted).
The Caucasian hairs at issue here were clearly discovered prior to trial and
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were documented in Katz's notes. Therefore, this is not a Brady issue.
Second, Appellant does not claim that the Commonwealth failed to provide Ms.
Katz's report during discovery, or the notes that were attached to the report.
Thus, there is no indication that Appellant's counsel was unaware of the
existence of the Caucasian hairs prior to trial. Lastly, Gregory is irrelevant
here. Therefore, we cannot determine that the trial court abused its discretion
in denying Appellant's pro se motion for a new trial on this issue.
The alleged KRE 404(b) violation also arose from Ms. Katz's testimony
wherein she discussed the Combined DNA Index System ("CODIS") database
from which Appellant's DNA was discovered. That database is comprised of
DNA of individuals who are convicted felons. Appellant argues that Ms. Katz's
testimony concerning the CODIS database and its function constitutes an
impermissible reference to Appellant's previous criminal history. Here is the
portion of Ms. Katz's testimony with which Appellant takes issue:
So, we do have a database that has suspects in it that have been
convicted of other crimes. And, then you can also just take that
profile and compare it to other cases if you don't have a suspect as
well. So, you don't have to have a suspect to compare the profile
that we get from an item. But, if you want to identify whose DNA
is coming from the item then you do have to have a suspect and
they either have to have a standard from someone who they think
is involved or they would be in the CODIS database as a convicted
felon.
As previously discussed, Appellant's counsel did not object to this testimony.
Having reviewed the relevant portion of Ms. Katz's testimony, we determine that
any error here was not palpable. Even if the jury inferred from this testimony
that Appellant was a convicted felon, the forensic evidence in this case
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unequivocally indicates Appellant's guilt. It is inconceivable that the jury
would have reached a different result absent this contested testimony. Thus,
the trial court did not abuse its discretion in denying Appellant's .pro se motion
for a new trial on this issue.
Directed Verdict
Appellant contends that the trial court erred in denying his two motions
for a directed verdict arguing that the Commonwealth failed to establish a
proper chain of custody of the evidence. The evidence at issue is: 1)
Commonwealth's Exhibit 58—Patricia's washcloth and underwear; 2)
Commonwealth's Exhibit 59— Patricia's clothing; and 3) the Commonwealth's
Exhibit 60— Patricia's bedding.
We will reverse the trial court's denial of a motion for directed verdict "if
under the evidence as a whole, it would be clearly unreasonable for a jury to
find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). When
ruling on a directed verdict motion, the trial court must assume that the
Commonwealth's evidence is true. Benham, 816 S.W.2d at 187.
Appellant presents several instances concerning the alleged failure to
establish a proper chain of custody of the evidence. In Hunt v. Commonwealth,
we stated:
it is unnecessary to establish a perfect chain of custody or
eliminate all possibility of tampering or misidentification, so long
as there is persuasive evidence that the reasonable probability is
that the evidence has not been altered in any material respect . . . .
304 S.W.3d 15, 29 (Ky. 2009) (citation omitted).
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Having considered Appellant's argument and the evidence cited in support
thereof, there is no reasonable probability that the evidence was altered.
However, it is unnecessary to discuss each alleged inference of tampering or
misidentification because, "the issue is not whether the Appellant would have
been entitled to a directed verdict of acquittal absent the improperly admitted
evidence, but whether the evidence that was, in fact, admitted was sufficient to
take the case to the jury." Osborne v. Commonwealth, 43 S.W.3d 234, 245 (Ky.
2001) (citation omitted). The evidence that was admitted was more than
sufficient to take the case to the jury. Therefore, the trial court did not err in
denying Appellant's motions for a directed verdict.
Impermissible Testimony
For his final argument, Appellant contends that the testimony of
Patricia's daughter, Sara Gant, constituted impermissible "bolstering" and the
"piling on" of testimony. Ms. Gant testified as a witness for the Commonwealth
during the guilt stage of trial concerning her mother's general demeanor after
she was raped. This issue is unpreserved. Therefore, we will review for
palpable error. RCr 10.26.
Ms. Gant specifically testified that, after the rape, her mother was "afraid
to leave the apartment, return to work, or resume life," and that she was
"absolutely different." Her testimony was brief and echoed Patricia's testimony.
These were visual observations of the victim's behavior which are consistent
with someone who has experienced the emotional devastation of rape. This
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corroborating evidence was both probative and admissible. There was no error
here.
Conclusion
For the foregoing reasons, we hereby affirm the judgment of the Jefferson
Circuit Court.
All sitting. Minton, C.J.; Cunningham, Hughes, Venters, and Wright,
JJ., concur. Keller and Noble, JJ., concur in result only.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
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