Ronnie Drane v. Commonwealth of Kentucky ( 2010 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED : AUGUST 26, 2010
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2008-SC-000933-MR
RONNIE DRANE
ON APPEAL FROM FRANKLIN CIRCUIT COURT
V. HONORABLE THOMAS D. WINGATE, JUDGE
NO . 06-CR-00037
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMI NG_ IN PART, REVERSING IN PART, AND _REMANDING
A Franklin County jury convicted Appellant Ronnie Drane of murder,
attempted murder, and two counts of first-degree wanton endangerment . He
was sentenced to life in prison and multiple terms that accumulated to thirty
years to be served consecutively to the life sentence . Appellant takes issue
with two evidentiary decisions made at trial and the consecutive structuring of
his sentences. Finding no evidentiary errors at trial, we affirm Appellant's
convictions. However, because the consecutive terms of sentencing are
impermissible, we reverse Appellant's sentence .
I. Background
The offenses Appellant was convicted of occurred on March 7, 2003 in
Frankfort, Kentucky. They were the culmination of a series of violent episodes
in Gary, Indiana and Louisville, Kentucky, in which Appellant initially
assaulted and then tried to kidnap and murder Herman Buchanan. Though
Appellant was not convicted of offenses for the prior episodes of violence, they
must nevertheless be discussed first because they are relevant to the
background and evidentiary issues of this case.
The first of these episodes occurred in October 2002 in Gary, Indiana .
Herman Buchanan and a friend, Simeon Bradley, were staying at the home of
Buchanan's mother, Dolores Buchanan, where she lived with her friend Larry
Peaches . Herman Buchanan, Bradley, and Peaches were at the house when
Appellant came by to purchase cocaine . Dolores Buchanan arrived home soon
thereafter . When Appellant arrived, Bradley hid because he was wanted on
federal drug charges and was thus attempting to conceal his whereabouts from
people he did not know or trust. While hiding, Bradley observed Appellant
shoot Herman Buchanan in the face and then shoot Peaches in the back. As
Bradley fled the scene, he also heard screams from Dolores Buchanan, followed
by more gunshots . Bradley learned later that Herman Buchanan had survived
the incident, but that Dolores Buchanan and Larry Peaches had been killed .
By 2003, Herman Buchanan had moved from Indiana to Kentucky. One
night in February, he went to a Louisville strip club, where the second incident
occurred.
Appellant also found his way to Louisville that night. He met with his
father, Ricky Drane, and another man from Indiana, Claude Fisher, at a local
motel . According to Fisher, at that meeting they devised a plan to kill someone
who witnessed the Gary, Indiana murders. Fisher was unaware at the time of
that witness's name, but he has since identified him as Herman Buchanan.
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The plan was for Fisher to help kidnap Herman from the club and drive him to
a dark area down the street, where he would be killed. Fisher claimed that he
reluctantly participated in the scheme because he feared for his own life if he
were to refuse to cooperate.
When Herman came out of the club, Fisher and Ricky Drane approached
him. Upon recognizing the two men, Herman screamed and turned to run
back into the strip club. Fisher fired a shot into the ground. Ricky Drane
attempted to fire at Herman, but his gun malfunctioned . Unsuccessful in their
attempt to capture and kill Herman Buchanan, Appellant picked them up in
his car and drove back to the hotel.
The final encounter between Appellant and Herman Buchanan occurred
on March 7, 2003 . Simeon Bradley was once again staying with Herman, this
time at his residence in Frankfort. Herman had gone out for the night and
around 2 :00 a.m. called Bradley, telling him he was on his way home and
asking him to open the door. When Bradley saw Herman pull up to the
apartment, he went downstairs, opened the door, and found Herman talking to
Appellant. Herman held his hands in front of him, saying, "You don't have to
do this." Appellant was pointing a gun at Herman . When Appellant noticed
Bradley, he started firing at both Bradley and Herman . Bradley "fell back" into
the apartment without getting hit, but Herman was shot as he ran to the door.
Based on an autopsy, Herman likely died minutes after being shot. After
Bradley managed to lock the door, he heard a car pull up, a door close, and the
car drive off.
The police soon arrived to investigate the crime . In response to
questioning, Bradley falsified his identity (due to his outstanding charges),
claiming to be "Brian Buchanan." He also claimed ignorance as to Herman's
murder.
In their search of the crime scene, the police observed a bullet hole in
Herman's dining room wall through to the adjacent apartment. Upon further
investigation, the police discovered that the bullet travelled into the bedroom of
the adjacent apartment, two feet above the bed, where two neighbors-Tamara
and Landon Stivers-were asleep at the time of the shooting.
Police received help in their investigation of the crime from Herman's
brother, Tyree Buchanan, who informed them about the incident in Gary,
Indiana. Claude Fisher also came forward and described the event that took
place by the strip club in Louisville . Finally, after eventually being arrested on
federal drug charges, Bradley cooperated with police, admitting that he was
present during the incident in Gary and also that he saw Appellant murder
Herman Buchanan in Frankfort.
Appellant was indicted and found guilty of one count of murder, one
count of attempted murder (for shooting at Bradley), and two counts of wanton
endangerment (one each for endangering the two neighbors in the adjacent
apartment) . The jury recommended life for the murder, twenty years for the
attempted murder, and five years for each of the wanton endangerments, all
sentences to run consecutively, for an aggregate sentence of life plus 30 years.
The court sentenced Appellant in accordance with the jury's recommendations .
Appellant appeals to this Court as a matter of right. Ky. Const.
§ 110(2)(b) .
II. Analysis
Appellant takes issue with both his convictions and the sentence
imposed. As to the convictions, he raises three claims of error, all relating to
evidence admitted at trial . He claims that the trial court (1) impermissibly
constrained his cross-examinations of Fisher and Bradley by excluding the
specifics of their own crimes and sentences and also Bradley's actual plea
agreement; (2) erroneously admitted evidence of Appellant's prior attempt to kill
Herman Buchanan in Louisville ; and (3) erred in failing to issue a limiting
admonition in regards to Appellant's prior bad acts . Finally, assuming his
convictions are upheld, Appellant claims the court improperly sentenced him to
30 additional years to run consecutively to his life sentence.
A. Plea Agreements
Bradley and Fisher were two of the Commonwealth's key witnesses in
Appellant's prosecution. Bradley in particular was especially critical because
he was the lone eyewitness to the murder. Fisher also supplied valuable
evidence of guilt: a prior scheme by Appellant to kill Herman Buchanan .
Both witnesses had also been charged with crimes unrelated to this case.
Appellant wanted to undermine their testimony by demonstrating that they had
received plea deals to get them to cooperate in this case and were therefore
biased in the prosecution's favor. The court permitted Appellant to ask the
witnesses if they had received any such deals, but instructed Appellant not to
ask about anything too specific . Appellant contends that his cross-
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examination of Bradley and Fisher as to their plea agreements was
impermissibly constrained in two ways .
First, Appellant argues that he should have been able to introduce
Bradley's plea agreement itself into evidence, during cross-examination.
Bradley's plea agreement provided, among other things, that in exchange for
cooperating in any federal or state prosecutions, he would have certain charges
dropped, a recommendation of minimum sentencing on other charges to which
he would plead guilty, and a possible recommendation for a downward
departure from the federal sentencing guidelines at the discretion of the U .S.
Attorney's office.
Before cross-examining Bradley about his plea agreement, Appellant's
counsel approached the bench and engaged in an important dialogue with
Judge Wingate . Appellant asked to introduce the plea agreement directly into
evidence . After some questioning from the judge, it became apparent that
counsel's primary concern was demonstrating how 'good the deal was by
showing that Bradley had faced up to a life sentence on the original charges
but ultimately received only fourteen years (or, as questioning later showed,
only seven years) . Judge Wingate was reluctant to admit the actual agreement
(most likely because it is long and apt to confuse the jury) and suggested that
Appellant simply cross-examine Bradley about whether he had a deal to
cooperate and the nature of the deal . Appellant responded that questioning
alone would prove unsatisfactory because Bradley would just lie about the plea
agreement. Judge Wingate replied that, in that case, Appellant would then be
able to use the plea agreement to impeach Bradley and show his bias .
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Judge Wingate provided an effective solution to Appellant's concerns and
defense counsel was apparently content with it. Assuming Bradley was honest,
Appellant would be able to elicit the same evidence through questioning
Bradley about what type of deal he had received as he would by introducing the
plea agreement itself-and do so without the potential confusion and
extraneous information of the actual plea agreement. If, on the other hand,
Bradley were to "lie" about the plea deal, Appellant would then be able to use it
to undermine Bradley's veracity on the stand and to show it as a source of
bias .
The cross-examination occurred as follows:
Defense : Did you receive any consideration for cooperation in this
case for any case in Indiana . . . for your testimony? I'm
not saying it's a great deal, I'm just saying did the U .S.
Attorney's office dismiss some charges or give you a
certain term of years and as a condition of that, that
you'd cooperate and testify?
Bradley: What they said was they may take that into consideration
in my sentencing .
Defense : What we're talking about really is that you had these
federal drug counts, you were looking at ten to a
possibility of life in prison in the federal system. Is that
right?
Bradley : Right .
Defense : There were some charges dismissed and you received a
recommendation, or at least a possible recommendation
of fourteen years . Is that correct?
Bradley: I pleaded out to three of the counts I was charged with.
Defense : Part of the plea agreement was that they would consider
that and do a memorandum to the court relating to your
testimony and it was gonna be up to them to decide
whether that was worth anything or not. Is that correct?
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Bradley : Yes .
Defense : You ended up getting fourteen years is that correct.
Bradley: I received seven years .
Defense: Seven years. I thought I saw fourteen in another
document, but that's seven when you were looking at ten
to life, is that right?
Bradley: The only way I would have received ten to life is if I took
the conspiracy charge .
If Appellant believed that Bradley had incorrectly described the terms of the
plea agreement, he was free to then use it to show Bradley did in fact receive a
favorable deal. However, it appears that Bradley reflected what was in the
agreement relatively accurately . Though his answers may not have made it
satisfactorily clear to the jury exactly what his plea agreement covered, any
failure to clarify at that point was up to Appellant to rectify through his
counsel's questions .
It was only on re-direct that Bradley made statements that were arguably
inaccurate about his plea deal:
Commonwealth : You got a seven year sentence . What
were you hoping to get?
Bradley: I had no clue what I would get.
Commonwealth : Did you get anything at all for any
cooperation you've ever given
anybody?
Bradley: In the fed system, I was facing a fourteen
year max. When you accept responsibility in
a federal court, you get a three point
reduction . I was a first time offender so I
qualified for another two point reduction
because of that so that took me down five
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points . In the feds, you dealing with a
number chart, they've got a number chart
they've got, they've got a guideline they've got
to sentence you by. So wherever I was on
the guideline, I got knocked down five points
off of accepting responsibility and being a
first time offender. They sentenced me to
seven years .
Commonwealth : Based on the guideline and chart?
Bradley: Yes .
Commonwealth : So it doesn't sound like you got
anything for cooperating.
Bradley: No . There was nothing in writing. I never
received any downward departure or
anything.
It is unclear what exactly Bradley meant by saying he did not get anything for
cooperating and that there was nothing in writing. Arguably, he was referring
only to benefits he might have received after the entry of his guilty plea . His
answers tend to show that he understood the question about receiving any
benefit to mean any such benefit after (and in addition to) what happened at
the time he entered his guilty plea . Specifically, this would encompass the
"memorandum" that Appellant's counsel mentioned, whereby the federal
prosecutor, subsequent to the guilty plea, would ask the judge to depart
downward from the federal sentencing guidelines . Yet, it appears from
Bradley's other answers, that his sentence was only affected by the dismissal of
several charges and his being a first-time offender, meaning that no such
memorandum was filed. No one, not even Appellant's counsel, suggested that
the federal prosecutor had indeed requested a departure from the federal
guidelines .
However, it is also possible that Bradley was lying about the nature of his
plea agreement and what he received for his cooperation . Additionally, his
claim that there was nothing in writing could be construed as a claim that
there was no written plea agreement, which would clearly have been false. If
Appellant's counsel thought this was what he meant, he could have sought re-
cross-examination to clarify and, if necessary, further impeach Bradley,
perhaps by then going so far as to introduce the plea agreement itself. He did
not attempt to do so, however, choosing instead to simply introduce it through
avowal, under the assumption that he had already established an error. Thus,
Appellant cannot claim error in this regard . He failed to establish whether
Bradley was in fact lying about the content of his plea agreement and his
consideration for cooperating because questioning ceased at that point.
Appellant also argues that the court should have allowed more specific
questioning about the crimes that Bradley and Fisher had committed.
Appellant wanted to draw the jury's attention to the seriousness of those
crimes and their sentences . This claim overlaps substantially with that
discussed above . Appellant claims that revealing their severity would highlight
the witnesses' bias in cooperating with the prosecution so as to receive
favorable punishments . Appellant is not entirely clear in his brief about what
questions about their crimes he should have been permitted to ask, but for the
purposes of this appeal, we will assume that his claim focuses on the questions
asked of each witness by avowal.
Appellant's examination ofBradley through avowal consisted of five
questions, aside from his introduction of the plea agreement and questions
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about its contents, which were addressed above . To paraphrase, the five
questions asked on avowal were: (1) Were you charged with conspiracy? (2)
Was the conspiracy charge for transporting cocaine into the country? (3) Did
you take responsibility for committing the crime? (4) What quantity of cocaine
were you charged with transporting? and (5) What amount of time did you
expect to receive?
Questions (1), (2), and (4) all pertain to the underlying activity for which
Bradley was charged. Such specific evidence of the identity of the crime is
generally inadmissible at trial if offered solely to undermine the general
credibility of the witness "unless the witness has denied the existence of the
conviction ." KRE 609(a). The specifics of a witness's crime are not necessarily
barred under KRE 609, however, if offered for some other legitimate purpose
besides showing the witness's bad character. In particular, they are always
admissible if relevant to show bias. See Miller v. Marymount Med. Ctr., 125
S.W.3d 274, 281-82 (Ky. 2004); Robert G. Lawson, The Kentucky Evidence Law
Handbook. § 4 .10[2] at 279-80 (4th ed. 2003) ("The plea bargaining strategies of
prosecutors and other characteristics of the criminal law and its processes
encourage participants in crime to trade testimony for favored treatment.") .
Appellant claims that revealing the specifics of Bradley's drug charges
would have demonstrated his bias in favor of the prosecution . But more detail
would not have been helpful, since Bradley admitted in his testimony that he
originally faced a conspiracy charge. Moreover, there is no connection of these
questions to bias . The only way Bradley's bias is implicated by the fact that his
charges were for drugs is in how his punishment was lessened in exchange for
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cooperating. Thus, the specifics of what Bradley actually did, or was charged
with doing, are irrelevant to any potential bias. Instead, the amount of time
that he faced based on his original charges compared to his eventual sentence
was the relevant metric to demonstrate the benefit he received from any deal,
and such testimony was introduced . The trial court was thus correct that
these types of questions were improper on cross-examination.
Appellant cannot claim error with regard to questions (3) (whether
Bradley took responsibility for the crime) and (5) (what amount of time he
expected to receive), because Bradley actually answered them during re-direct.
Bradley addressed whether he took responsibility for the crime when he stated,
"For accepting responsibility, I got a three point reduction." Also on re-direct
the Commonwealth essentially asked question (3), inquiring, "You got a seven
year sentence . What were you hoping to get?" Bradley responded, "I had no
clue what I would get." To the extent that question (5) was an attempt to ask
Bradley what the maximum time he faced was, he also answered this, on cross,
by admitting that he could have faced life if the conspiracy charge had stood .
Thus all five questions Appellant sought to have Bradley answer on
avowal were either irrelevant or actually answered anyway . That the
permissible questions were not answered in a level of detail satisfactory to
Appellant is not error. Follow-up or clarifying questions could have solved any
problem in this regard .
Appellant attempted to elicit similar information from Fisher by avowal.
However, in Fisher's case, Appellant had no evidence-testimony or otherwise-
that Fisher had any sort of plea agreement to cooperate with the prosecution .
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In fact, his attorney did not even allege at a bench conference that he had such
information . On the contrary, Fisher repeatedly denied any sort of cooperation
with authorities. Without any prima facie showing that Fisher had a deal to ,
begin with, Appellant had not laid any foundation to make the specifics of the
charges against Fisher relevant to show bias. Appellant's counsel's questions
were, instead, a shot in the dark. At best then, the only purpose in admitting
evidence of Fisher's charges would be to undermine his character through
evidence of his bad acts. Again, KRE 609 prevents the specifics of a witness's
crime from being admitted for this purpose .
We therefore find no error in the trial court's handling of Bradley and
Fisher's plea agreements and related matters .
B. Prior Bad Acts
Appellant next argues that his conviction should be reversed because
evidence of his prior attempt to murder Herman Buchanan in Louisville the
previous month was improperly included at trial . Appellant objected to this
evidence at trial as he does here, claiming it is barred by KRE 404(b) .
Evidence of prior bad acts, including attempted murders, is inadmissible
to prove conformity with that behavior . KRE 404(b) . In other words, it would
be improper for the Commonwealth to have introduced Appellant's prior
attempted murder in order to prove that he tends to attempt murder and thus,
must have done so in this case as well. Just because the Appellant attempted
murder once is no reason to think he must have done so again .
Of course, in this case, the prior bad act admitted into evidence does not
solely function to illustrate a disposition to attempt murder . On the contrary,
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the evidence of Appellant's previous attempt----one of two prior attempts-to kill
the murder victim in this actual case shows drastically more than a possible
violent disposition. Evidence of prior bad acts is admissible "[i]f offered for
some other purpose, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident." KRE 404(b)(1) .
The evidence of Appellant's prior attempt is clearly relevant, among other
possible reasons, to prove his intent to kill Herman Buchanan .
Appellant's intent to kill Herman Buchanan is relevant in at least two
ways: as circumstantial evidence and as direct evidence . Appellant's prior
attempted murder has circumstantial value in that it makes it more likely that
Appellant is the person who murdered Herman Buchanan. Since Appellant
apparently wanted Herman Buchanan dead in February, it makes it more likely
that he is the person who killed him in March. In this way, the evidence has
the same sort of relevance a threat to kill the victim would have: both reveal
intent to kill the victim. Just as a prior threat would be admissible here, the
prior attempted murder is as well . See Scruggs v. Commonwealth, 566 S .W .2d
405, 408-09 (Ky. 1978); Rose v. Commonwealth, 885 S .W . 2d 202, 204 (Ky .
1964) .
Additionally, Appellant's intent to kill Herman Buchanan has direct
evidentiary value . Intent is one of the elements of murder, which Appellant
was charged with and convicted of. KRS 507.020(1) (a) ("A person is guilty of
murder when . . . [w]ith intent to cause the death of another person, he causes
the death of such person. . . .") . Evidence of Appellant's prior attempt to kill
14
Herman Buchanan was relevant to prove that Appellant had the necessary
mens rea to satisfy this element of the crime .
The probative value of this evidence obviously outweighs any unfair
prejudice toward Appellant. The introduction of a prior bad act virtually
always carries with it some unfair prejudice. See Bell v. Commonwealth, 875
S .W .2d 882, 890 (Ky. 1994) . The question is whether the act's probative value
outweighs the prejudice . See Billings v. Commonwealth, 843 S . W.2d 890, 892
(Ky. 1992) . One is hard pressed to imagine a prior bad act with more probative
value than the one in question. Appellant's prior attempt involved the same
crime against the same victim within one month of the crime for which he was
tried. It demonstrates intent to kill Herman Buchanan and a willingness to
follow through . Where there is such a "direct connection between the other
crime[] and the charged crime" the evidence of the other crime surely passes
this balancing test. White v. Commonwealth, 178 S .W .3d 470, 476-78 (Ky.
2005) .
Appellant urges that even if this prior act was admissible, that both of
his prior attempts to murder Herman Buchanan should have been subject to
limiting admonitions to the jury that they not be used to infer mere conformity .
Appellant requested an admonition but not until the discussion of jury
instructions, after the close of all the evidence. The admonition was denied.
According to KRE 105(a), "When evidence which is admissible as to one
(1) party or for one (1) purpose but not admissible as to another party or for
another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and admonish the jury accordingly." However,
15
Appellant did not request the admonition at the time the evidence was
presented, and therefore waived it.
This Court has previously stated that this type ofjury admonition must
be requested at the time the evidence is presented at trial . "[W]e interpret the
first word of KRE 105(a), i .e ., ``when,' to mean that the request for a ``limited
purpose' admonition must be made at the time that the evidence in question is
admitted and no later than after the direct examination at which the evidence
is introduced ." St. Clair v. Commonwealth, 140 S .W.3d 510, 559 (Ky. 2004) .
Appellant did not seek an admonition either when the evidence was introduced
or at the close of the direct examinations of the pertinent witnesses. Instead,
he requested the admonition during the discussion ofjury instructions, after
both the Commonwealth and defense had rested. Thus, "the trial court
appropriately denied Appellant's belated request for an instruction ." Id.
In his reply brief, in light of St. Clair v. Commonwealth, Appellant urges
that the trial court should have issued an admonition sua sponte and that its
failure to do so should therefore be reviewed for palpable error. However, "[t]he
failure to give an unrequested limiting admonition is not palpable error." Ernst
v. Commonwealth, 160 S.W.3d 744, 759 (Ky. 2005) .
Here, the admission, even without admonition, of evidence of Appellant's
prior attempts to murder Herman Buchanan was not error as set forth above .
C. Consecutive Sentences
The jury recommended the maximum sentence for each of Appellant's
offenses: life for murder, twenty years for attempted murder, and five years for
each of two counts of wanton endangerment . The jury also recommended that
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these terms all run consecutively. The court sentenced Appellant in
accordance with the jury's recommendation, thus imposing a sentence of life
plus thirty years, to run consecutively.
Appellant complains, and the Commonwealth concedes, that a term of
years cannot run consecutively to a life sentence . Both sides are correct that
"no sentence can be ordered to run consecutively with such a life sentence in
any case." Bedell v. Commonwealth, 870 S .W .2d 779, 783 (Ky. 1993) . "The
aggregate of consecutive indeterminate terms shall not exceed in maximum
length the longest extended term which would be authorized by KRS 532,080
for the highest class of crime for which any of the sentences is imposed . In no
event shall the aggregate of consecutive indeterminate terms exceed seventy
(70) years." KRS 532 .110. Since the longest extended term ever authorized by
KRS 532 .080, or any other statute for that matter, is a life sentence, an
aggregate sentence can never be greater than life imprisonment . As a result,
the trial court should have ordered the 30 years to run concurrently with
Appellant's life sentence . The trial court's order to run the sentences
consecutively is, therefore, reversed .
III. Conclusion
For the foregoing reasons, Appellant's convictions are affirmed .
Appellant's consecutive sentencing is reversed . The sentencing portion of the
judgment is vacated and this matter is remanded to Franklin Circuit Court for
sentencing in accordance with this opinion .
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
David Bryan Abner
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601