Martice N. McRae v. Commonwealth of Kentucky ( 2021 )

RENDERED: OCTOBER 28, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0114-MR
MARTICE N. MCRAE APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE BRIAN C. EDWARDS, JUDGE
NO. 17-CR-003781
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Appellant Martice McRae was tried and convicted by a Jefferson County
jury for the murder of Justin Hague. He claims that the trial court erred by: 1)
granting a partial Fifth Amendment privilege to a witness, 2) overruling
McRae’s objection to the Commonwealth’s closing argument, 3) allowing a
detective to narrate videos about which he had no personal knowledge, and 4)
denying McRae the opportunity to recross-examine the same detective
regarding testimony first provided during his redirect examination. Upon
review, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Justin Hague was found late in the evening on July 25, 2017, lying face
down in a pool of blood alongside the road on Carolyn Way. He died shortly
thereafter at an area hospital from a single gunshot wound to the head. A few
months later, Martice McRae became a suspect in the murder. Testimonial
and video evidence established a timeline of Hague’s interaction with others,
including McRae, on the night of his murder. The Commonwealth presented
proof that McRae drove Hague from his home on Norene Lane to Carolyn Way,
where McRae shot Hague while he was in the front passenger seat of a stolen
blue Chevy Sonic. McRae then pushed Hague out of the car and drove away.
Hague, who lived in his parents’ basement and struggled with drug
addiction, was at home about 7:30 p.m. that night. Around dusk, Hague and
his friend, Doug, walked about a block away to Ryan’s apartment, also on
Norene Lane. When they left there, Hague told Ryan they would come back
later. Hague and Doug then walked a short distance to Laundry Connection on
Poplar Level Road where Hague spoke with a person who worked there. During
that time, Doug left and returned driving his girlfriend’s car. A video of the
Laundry Connection visit was played for the jury.
Eventually, Hague and Doug both left the laundromat and Hague walked
back to Ryan’s apartment. Doug, driving to Hague’s house, passed Ryan’s
apartment and saw Hague, two white men, and a black man standing outside.
Doug waited at Hague’s house.
About the time Hague returned to Ryan’s apartment, Ryan was on the
front porch with a neighbor, when a black man, who was unknown to Ryan at
the time, walked up. The man, later identified as McRae, discussed buying
drugs. Ryan noticed that McRae had a gun, which he thought was a .40
caliber. When Hague joined the three he asked Ryan to take him to Jeff’s, who
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lived on the same street. Ryan declined to do so at that time, but McRae
offered to give him a ride. Ryan described the apartment video surveillance
showing the group’s interaction in front of his apartment. According to Ryan,
Hague left with McRae in a small dark-colored car.
Late that evening was the last time Michael Hague, Hague’s father, saw
him alive. The garbage can in front of their house was hit and knocked over by
a small dark-colored sedan. Michael last saw Hague picking up trash and
putting it back in the can and then leaving in the dark-colored sedan.
Investigators were unsuccessful at that time in identifying the man Hague left
with that night.
A few months later, the investigators received a lead from Deonta Thorn
which led to the arrest of McRae for killing Hague. During a police interview,
Thorn provided details about a conversation with McRae in which McRae
admitted killing a white guy. Thorn stated that he saw and spoke with McRae
the day after the murder. McRae told Thorn that the white guy had tried to rob
him, and then McRae shot him in the head and pushed him out of the car they
were in. On the way to taking McRae to clean that car, Thorn drove by the
shooting scene on Carolyn Way where he saw blood on the ground. Later, he
saw blood in the car McRae and the victim had occupied.
Thorn also made statements during the interview about possessing a gun
that he transferred to McRae, statements that incriminated Thorn since he was
a convicted felon. Thorn told police he provided a .40 caliber Smith and
Wesson to McRae, the same gun McRae used to shoot the victim. As discussed
3
below, when Thorn’s counsel later claimed that this testimony would
incriminate Thorn, the trial court ruled that Thorn could not be asked
questions about his personal possession of guns, protecting his Fifth
Amendment right against self-incrimination.
At trial, the Commonwealth questioned Thorn about the interview where
he provided information about a murder McRae committed in the summer of
2017. Because Thorn was non-responsive to the questioning, the trial court
allowed the Commonwealth to treat him as a hostile witness. The specific
statements which Thorn claimed he did not recall making included: he knew
from a conversation with McRae that McRae shot a white guy in the head; that
he, Thorn, had seen the place where the victim was shot and pushed out of the
car; that he went with McRae to see the car the victim was shot in; that the car
had blood on the window, the windshield, and on and all around the passenger
seat; that he thought the car was a stolen gold Camry; that he knew what kind
of gun McRae used to shoot the white guy, a .40 caliber, black and silver,
Smith and Wesson; and that he knew the man to whom McRae later sold the
gun. In keeping with the trial court’s ruling, the Commonwealth did not ask
Thorn about his prior personal possession of the gun. Given Thorn’s lack of
cooperation and failure to recall his prior statements to the detectives, the
Commonwealth was allowed to impeach him by playing his videotaped police
interview during the trial testimony of one of the detectives. The
Commonwealth and defense reviewed the video prior to playing it for the jury
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and removed Thorn’s incriminating statements about his prior possession of
the gun.
The jury also heard testimony from William Morrell and Juvon Foster.
Morrell testified that he was incarcerated with McRae and during that time
McRae told Morrell that he had committed Hague’s murder. Foster’s
videotaped police interview was played for the jury. During that interview
Foster said that he purchased a black and silver .40 caliber gun from McRae
and he identified McRae as the black man in a still photo taken from the
Norene Lane apartment surveillance video. Additionally, a blue Chevy Sonic
with a vanity plate, reported stolen from a Circle K not far from the Norene
Lane apartments on the night of the murder, was recovered during the
investigation. The apartment video viewed by the jury showed McRae driving a
Chevy Sonic with a vanity plate on the front. Trial testimony established that
the DNA from blood found on the passenger’s seat cushion of the Chevy Sonic
matched Hague’s blood.
McRae did not testify at trial but in a statement to police at the time of
his arrest, McRae said that Hague got into his car on Norene Lane, he gave
Hague a ride because he wanted to buy some drugs, and he dropped Hague off
on Carolyn Way and then left. After a six-day trial, the jury convicted McRae of
Hague’s murder and recommended a sentence of fifty years in prison. The trial
judge sentenced him accordingly and this appeal followed.
Other facts pertinent to McRae’s arguments are presented below.
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ANALYSIS
I. The Trial Court Did Not Err by Granting a Partial Fifth
Amendment Privilege to Witness Deonta Thorn.
When Deonta Thorn, a convicted felon, was arrested on charges
unrelated to this case, he sought to benefit himself by sharing information
about Hague’s murder. Along with providing other information incriminating
McRae in Hague’s murder, Thorn told police that he had provided a .40 caliber
Smith and Wesson to McRae and that McRae later told Thorn he had used the
gun to shoot a white guy in the head and then push him out of the car. The
Commonwealth called Thorn as a witness to testify at McRae’s trial but Thorn’s
counsel expressed concern that Thorn could incriminate himself.1 The
Commonwealth stated it would not be asking questions implicating Thorn’s
Fifth Amendment right, while McRae suggested his questions on cross-
examination could implicate Thorn’s Fifth Amendment right. After a “dry run”
hearing of the Commonwealth’s and McRae’s questions and Thorn’s answers,
the trial court ruled that the parties were not to question Thorn about his
personal possession of firearms. McRae objected, stating the ruling violated his
Sixth Amendment right to confront Thorn with the fact he personally possessed
1 Thorn’s earlier incriminating statements at the police station were not a bar to
his invocation of the Fifth Amendment at trial. Kentucky has long recognized that
even where a witness has made incriminating statements regarding a particular
subject at an earlier place and time, the witness can still invoke the Fifth Amendment
privilege when asked about those same matters under oath at trial. See, e.g.,
Commonwealth v. Phoenix Hotel, 162 S.W. 823, 826 (Ky. 1914); Galloway v.
Commonwealth, 374 S.W.2d 835, 836 (Ky. 1964).
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the firearm at issue in this case and thus impaired McRae’s ability to present
his theory that Thorn was involved somehow in Hague’s murder.
When Thorn testified at trial about the interview with police, he stated
that a lot, if not all, of his statements were false and then, when asked about
specific statements describing his knowledge of the crime and incriminating
McRae, he repeatedly claimed that he could not remember making the
statements in his interview with the detectives. The Commonwealth was
allowed to play the video recording of Thorn’s police interview for the jury
during Detective Speaks’ testimony.
McRae argues the trial court erred by granting Thorn a partial Fifth
Amendment privilege because McRae was prohibited from confronting Thorn
with the fact that he could identify the firearm due to his own prior possession
of the gun.2 The Commonwealth asserts that the trial court did not err, but if
it did any error was harmless. We consider whether the trial court abused its
discretion by compelling Thorn to testify to his knowledge of the crime, while
prohibiting potentially incriminating questions about his gun possession.
Combs v. Commonwealth, 74 S.W.3d 738, 745 (Ky. 2002).
2 McRae complains that another unfair impact of this ruling was that it allowed
the Commonwealth to impeach Thorn with his earlier statement to police that he
could identify the gun used in the shooting. The record reveals that because Thorn
repeatedly claimed he did not recall making statements during his interview with
detectives, the Commonwealth moved to impeach him with the videotaped statements.
McRae unsuccessfully argued that that the Commonwealth had not established a
basis for the impeachment. While the issue may have been properly preserved, this
argument is not adequately raised and addressed on appeal.
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The Fifth Amendment provides that no person “shall be compelled in any
criminal case to be a witness against himself.” Plainly, pronouncing a right
against self-incrimination, the Fifth Amendment does not protect someone from
incriminating others. However, if a defendant’s cross-examination is restricted
by the Fifth Amendment privilege of a witness, it may be necessary to strike or
preclude the direct testimony of that witness. Id. at 743. While there may be
circumstances in which a witness may properly invoke the Fifth Amendment
against all questions material to another person’s prosecution, this Court’s
jurisprudence includes cases for which an all-or-nothing approach to the
invocation of the Fifth Amendment privilege does not apply. Combs
distinguished Clayton v. Commonwealth, 786 S.W.2d 866 (Ky. 1990), and
Commonwealth v. Brown, 619 S.W.2d 699, 703 (Ky. 1981), cases in which the
witness indicated he would invoke the privilege as to all testimony. 74 S.W.3d
at 742.
Combs, citing federal cases,3 explains that under certain circumstances,
including when the prosecution’s “witness invokes the privilege as to one or
3 In particular, Combs, 74 S.W.3d at 742 n.7, cites:
See “Annotation: Propriety of Court’s Failure or Refusal to Strike
Direct Testimony of Government Witness Who Refuses, On Grounds of
Self–Incrimination, to Answer Questions on Cross–Examination,” 55
A.L.R. Fed. 742 (2001); United States v. Curry, 993 F.2d 43 (4th Cir.
1993); United States v. Berrio–Londono, 946 F.2d 158 (1st Cir. 1991);
United States v. Zapata, 871 F.2d 616 (7th Cir.1989); United States v.
Humphrey, 696 F.2d 72 (8th Cir. 1982), cert. denied 459 U.S. 1222, 103
S. Ct. 1230, 75 L.Ed.2d 463 (1983); United States v. Nunez, 668 F.2d
1116 (10th Cir. 1981); United States v. Seifert, 648 F.2d 557 (9th Cir.
1980); United States v. Williams, 626 F.2d 697 (9th Cir. 1980); United
States v. Demchak, 545 F.2d 1029 (5th Cir. 1977); Fountain v. United
States, 384 F.2d 624 (5th Cir. 1967), cert. denied 390 U.S. 1005, 88 S.
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more of the defense’s cross-examination questions (implicating the defendant’s
Sixth Amendment confrontation rights)” the witness need not be precluded
from testifying. Id. The purpose of cross-examination is to test the accuracy
and truthfulness, and thus the credibility, of testimony given by a witness on
direct examination. See Trigg v. Commonwealth, 460 S.W.3d 322, 327 (Ky.
2015); Combs, 74 S.W.3d at 743 nn.10, 13 & 17 (citing Lawson v. Murray, 837
F.2d 653 (4th Cir. 1988)). As such, when the privilege is invoked by either a
witness for the defense or the prosecution, the principle as to testimony
preclusion is consistent. Lawson, 837 F.2d at 656 (citations omitted).
Preclusion of the witness’s testimony may be necessary “when refusal to
answer the questions of the cross-examiner frustrates the purpose of the
process [i.e., arriving at the truth],” Combs, 74 S.W.3d at 743 (quoting Lawson,
837 F.2d at 656), or stated another way, “frustrates cross-examination on
issues material to the witness’s testimony,” id. at 744 (citing United States v.
Gary, 74 F.3d 304, 310 (1st Cir. 1996)). The question then is whether the
defendant’s inability to examine the witness on certain matters prevents the
defendant from testing the truth of the witness’s direct testimony.
McRae contends that Thorn asserted his privilege against self-
incrimination, seeking to avoid answering all questions like the witnesses in
Clayton and Brown, and therefore, the trial court should not have allowed
Thorn to be called as a witness. McRae views Thorn’s assertion of his privilege
Ct. 1246, 20 L.Ed.2d 105 (1968); United States v. Cardillo, 316 F.2d 606(2nd Cir. 1963), cert. denied 375 U.S. 822, 84 S. Ct. 60, 11 L.Ed.2d 55(1963).
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against self-incrimination as frustrating his cross-examination on issues
material to Thorn’s testimony, i.e., Thorn’s prior possession of the alleged
murder weapon.
Almost twenty years ago, in Combs, this Court held that when a witness
invokes his Fifth Amendment privilege, the trial court should decide through a
“dry run” outside the presence of the jury whether the questions planned for
the witness would result in an answer which may incriminate the witness. Id.
at 745. The trial court in this case followed Combs’ guidance but unlike in
Combs, the trial court in its discretion determined Thorn could testify,
concluding that Thorn’s Fifth Amendment privilege was limited to questions
about his personal possession of firearms.
McRae suggests that limiting the scope of his cross-examination of Thorn
prejudiced his ability to test the truth of Thorn’s testimony and, while the
record indicates otherwise, that he was not able to attack Thorn’s credibility
regarding the benefit he sought in exchange for his testimony against McRae.
Notably, Thorn never invoked his Fifth Amendment privilege while testifying
before the jury and McRae fails to describe how being prohibited from asking
Thorn about his prior possession of the alleged murder weapon otherwise
impaired McRae’s cross-examination of Thorn or kept him from exploring the
alleged untruthfulness of Thorn’s testimony implicating McRae in Hague’s
murder. As such, we conclude the trial court did not abuse it discretion by not
precluding the entirety of Thorn’s testimony.
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II. If Error, the Trial Court’s Overruling McRae’s Objection
to the Commonwealth’s Closing Argument Was Harmless.
Next, McRae claims that during the Commonwealth’s closing argument
another error occurred stemming from the trial judge’s ruling that Thorn could
not be asked about his prior possession of the alleged murder weapon. In
particular, when the Commonwealth was describing Thorn’s interview with the
detective and his description of the gun McRae used, the Commonwealth
stated, “How would [Thorn] have known the exact make, model, color of the
weapon unless the killer told him?” McRae objected to this portrayal of the
evidence, viewing it as taking advantage of his inability to cross-examine Thorn
about his prior possession of the gun. The trial court overruled the objection.
McRae argues on appeal that he did not receive a fair trial because he
was denied the opportunity to expose that Thorn knew the weapon’s details
from his own earlier possession of the gun rather than from the description
provided by McRae. The Commonwealth views the prosecutor’s comment as a
reasonable interpretation of the evidence, but argues that if error occurred, it
was harmless.
“The longstanding rule is that counsel may comment on the evidence and
make all legitimate inferences that can be reasonably drawn therefrom.”
Padgett v. Commonwealth, 312 S.W.3d 336, 350 (Ky. 2010) (citing East v.
Commonwealth, 60 S.W.2d 137, 139 (Ky. 1933)). The Commonwealth’s preface
to the comment objected to was that Thorn told the police, “He knows what gun
McRae shot the victim with. It was a .40 caliber, Smith and Wesson, silver,
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with a black handle.” Upon McRae’s objection, the Commonwealth pointed to
the context of the challenged comment, namely how would Thorn have known
what gun was used to shoot the victim.
In light of our conclusion that the trial court properly ruled that Thorn
could testify, with all questions regarding his illegal gun possession to be
avoided, we find the Commonwealth’s comment falls within the bounds of
proper argument. While Thorn may not have known the gun’s details so well
had he not previously possessed it himself, Thorn’s police interview statements
played for the jury revealed that McRae told him many details of the crime.
But more importantly, McRae fails to advance an argument to show how the
omission of this fact—Thorn’s prior possession of the gun—rendered his trial
unfair, particularly given the other proof of his guilt. See Duncan v.
Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010) (“If 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 . . . .”). Based upon the evidence
presented to the jury, we agree with the Commonwealth that if error occurred,
it was harmless and under Kentucky Rule of Criminal Procedure (RCr) 9.244
the comment does not provide a basis for setting aside the jury’s verdict.
4 RCr 9.24 states:
No error in either the admission or the exclusion of evidence and no error
or defect in any ruling or order, or in anything done or omitted by the
court or by any of the parties, is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying or otherwise disturbing
a judgment or order unless it appears to the court that the denial of such
relief would be inconsistent with substantial justice. The court at every
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III. The Trial Court Did Not Commit Palpable Error by Allowing the
Detective to Answer the Commonwealth’s Questions about
Surveillance Videos.
McRae’s next claim is that the trial court committed palpable error by
allowing Detective Snider, who had no personal knowledge of the events, to
narrate the surveillance videos from the Laundry Connection and the
apartments on Norene Lane. Under RCr 10.26,5 if an unpreserved error is
found to be palpable and if it affects the substantial rights of the defendant, the
appellate court may grant appropriate relief if manifest injustice has resulted
from the error. An error is palpable when it is “easily perceptible, plain,
obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343,
349 (Ky. 2006). The error must be “so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Martin v.
Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
In this case, based upon conversations with friends and neighbors who
interacted with Hague the night of his murder, Detective Snider collected
relevant videos from the Laundry Connection and the Norene Lane apartments.
He obtained the videos within a few days of Hague’s murder. The
stage of the proceeding must disregard any error or defect in the
proceeding that does not affect the substantial rights of the parties.
5 RCr 10.26 states:
A palpable error which affects the substantial rights of a party may be
considered by the court on motion for a new trial or by an appellate court
on appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest
injustice has resulted from the error.
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Commonwealth played portions of the videos during Doug’s and Ryan’s
testimony which preceded Detective Snider’s testimony. Doug identified Hague
in the video from the Laundry Connection, noting the type of shirt he was
wearing. Ryan identified Hague in the video from the apartment complex,
describing the point when Hague asked him for a ride.6 Ryan also testified that
Hague got into the dark-colored, small car, parked behind his back door, with
the black man and left and that he never saw him again. When Detective
Snider testified, the Commonwealth, commenting at times about the blurriness
of the videos,7 asked him questions about the videos and their content. The
videos, along with other testimony including that of Ryan and Doug,
established a timeline of events which occurred the night Hague was killed,
including Hague and Doug walking to Ryan’s apartment; Hague and Doug
entering the laundromat, talking with the attendant, and leaving; Hague
returning to Ryan’s apartment; Ryan talking with Hague and McRae and
McRae dropping a handgun; and finally Hague leaving Ryan’s apartment with
McRae.
The prosecution played video clips for the jury as Detective Snider was
questioned. Prior testimony indicated that at least some of the video
timestamps were erroneous, and Detective Snider provided testimony about the
actual time of the events the jury viewed. When the Commonwealth asked why
6 Ryan also indicated in his testimony that the video was not the best quality,
stating at one point, “I believe that’s me.”
7 Detective Snider made similar comments.
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the Norene Lane apartment video (which was actually video from multiple
cameras) was collected, Detective Snider explained that the Laundry
Connection video showed that Hague came in with Doug (Detective Snider
noted that the jury had already heard from Doug about the visit to the
laundromat), and that it was about 10-10:30 p.m. when Hague appeared to be
leaving the Laundry Connection and talked with Doug who was in the car. At
one point in the video presentation, the Commonwealth asked Detective Snider,
“Who are the two individuals standing out here?” and he identified one as Doug
and the other as Hague.
When the focus was shifting from the Laundry Connection video to the
Norene Lane apartment video, upon the Commonwealth’s request, Detective
Snider described the roads in the area and the cut-through to the Laundry
Connection and pointed out Hague’s “heading off in this direction,” which was
toward the apartment complex. As requested by the Commonwealth, Detective
Snider particularly described the roads around the Norene Lane apartments.
Responding to the Commonwealth’s instruction to “point to us anything of
notice,” Detective Snider noted that Hague can be seen coming into the frame,
running, slowing down, and stopping at the apartment. The Commonwealth
again had Detective Snider compare the timestamps on the Laundry
Connection and Norene Lane apartment videos.
Soon thereafter, the Commonwealth asked Detective Snider if the video
reflected anything of note other than Hague. Detective Snider noted the arrival
of a car and responded “yes” to the Commonwealth’s question whether the
15
individual in the white shorts, now known to be McRae, came out of the car
which was just seen parked on video from another apartment complex camera.
Afterward, when answering the Commonwealth’s questions, Detective Snider,
referencing the videos, described being unsuccessful in locating Donnie who
was at the apartment and interacted with McRae. The detective also described
the relevant information that Ryan provided to him during his interview, again
referring to the black man in the videos as McRae. McRae did not object to the
questions the Commonwealth asked and does not argue now that the questions
themselves were improper.
Before this Court, McRae complains generally about Detective Snider
“narrating and interpreting” the videos and complains specifically that
Detective Snider was allowed to identify the individuals in the videos, including
Hague and McRae. He also contends that Detective Snider’s narration and
identifications were not verified by other witnesses with personal knowledge of
the events. The Commonwealth responds that palpable error did not occur and
also points out that other witnesses identified McRae in still photos from
surveillance video and Hague in the video footage from the Laundry Connection
and the Norene Lane apartments.
McRae cites Boyd v. Commonwealth, 439 S.W.3d 126 (Ky. 2014), in
support of his argument that Detective Snider should not have been permitted
to narrate and interpret the videos. In Boyd, Faulkner’s security camera
captured his assault and the burglary of his home by two assailants.
Richardson, also in the home at the time, ran and hid when the assailants
16
entered the home. During trial, both Faulkner and Richardson narrated the
footage for the jury. Richardson identified the two assailants and narrated the
events she witnessed in real time, and those that took place after she had run
for cover. Faulkner narrated footage from before he was aware of the intruders
and after he had been knocked unconscious. As to the portions of the video
representing events that Faulkner and Richardson did not perceive in real time,
this Court found those parts of the narration violated Kentucky Rules of
Evidence (KRE) 602 and 701 because the testimony exceeded the witnesses’
personal knowledge of the events. However, we also determined the error was
harmless because the jurors were watching the video and were in a position to
interpret the security footage independently from the witnesses’ testimony.
439 S.W.3d at 129-32.
Generally, the testimony of a lay witness is limited to matters or facts
about which he has personal knowledge. See KRE 602; KRE 701; Toler v. Sud-
Chemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014); Martin v. Commonwealth, 13
S.W.3d 232, 235 (Ky. 1999). However, a lay witness is permitted to give
opinion testimony, i.e., what he believed, thought, or suspected, about a matter
when the witness’s opinion is based on knowledge not available to the jury and
would be helpful to the jury in reaching its own opinion. See KRE 701;
Gabbard v. Commonwealth, 297 S.W.3d 844, 855 (Ky. 2009). While generally
the jury must decide what is depicted in a video, a detective may explain the
relationship of different items of evidence in the context of his investigation,
17
particularly when, as here, multiple video recordings are presented from
different locations and different viewpoints within those locations.
We begin with McRae’s general complaint that Detective Snider narrated
and interpreted the videos. Upon review, we believe Detective Snider’s
testimony may be viewed as narrative in the sense that it provided the jury
with information about the differential between the video timestamps and the
actual time of the day, and like Doug’s and Ryan’s testimony, the sequence of
Hague’s actions in the latter part of the day on July 25, 2017 leading up to the
point when he crossed paths with the man later identified as McRae. Detective
Snider’s testimony, however, was not narrative in the sense that his testimony
was responsive to the Commonwealth’s questions. Cuzick v. Commonwealth,
276 S.W.3d 260, 266 (Ky. 2009). Furthermore, “[n]arrative testimony is not
necessarily interpretive testimony.” Id. To the extent Detective Snider testified
about events he was not personally familiar with, he did not testify to anything
that was not captured in the recordings. In short, Detective Snider’s testimony
did not progress improperly into the realm of offering opinions.
In regard to McRae’s complaint that Detective Snider was allowed to
identify Hague and McRae, as noted above, prior to Detective Snider’s
testimony, other witnesses had already testified, identifying Hague and McRae
without objection. Hague was identified in both the laundromat and apartment
videos. When Detective Snider later testified as to Hague leaving the
laundromat’s video footage and then entering the apartment’s video footage, it
appears Hague’s identity was an uncontested fact, further evidenced by the
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absence of any objection from the defense. As to the identification of McRae,
that came through the Commonwealth with its question whether the individual
in the white shorts, “who we have learned is McRae,” came out of the car just
seen parked on another camera. Detective Snider then maintained his
reference to the black man in the video as McRae. Even if Detective Snider’s
identification of McRae were an explicit identification, it would follow, for the
same reasons as Hague’s identification, that no obvious plain error occurred.
Also, as pointed out by the Commonwealth, McRae’s guilt was dependent on
factors other than Hague’s prior visits with others and the videos Detective
Snider discussed did not depict who shot the victim. Given the testimony
preceding Detective Snider’s testimony, if error occurred, it certainly was not
palpable and so fundamental that it threatened the integrity of the judicial
process. Brewer, 206 S.W.3d at 349; Martin, 207 S.W.3d at 5.
IV. The Trial Court Did Not Err by Denying McRae’s Request to
Recross-examine the Detective.
McRae sought to recross-examine Detective Snider on two topics. As
described on appeal, those topics were the forensic testing of a phone retrieved
from the search of McRae’s house and Detective Snider’s decision not to use a
photo pack when interviewing Juvon Foster, who identified McRae in the still
photo from the Norene Lane apartment surveillance video. After hearing
several hours of testimony from the detective, the trial court ruled that
Detective Snider’s examination was complete, with the detective having been
cross-examined by McRae for over two hours. McRae objected and now argues
that the trial court abused its discretion by denying him the opportunity to
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recross-examine Detective Snider and impeach him on the new topics of
testimony first raised on redirect examination. We review Detective Snider’s
testimony on those two topics.
In Thorn’s interview with the detectives, he stated that McRae and Hague
had communicated through Facebook. During Detective Snider’s cross-
examination, he testified that a telephone was recovered from a search of
McRae’s home, and that LMPD8 ran a forensic test on the phone. He agreed
with defense counsel that no Facebook messages between McRae and Hague
were found on the phone. He stated that “There was pretty much nothing on
that phone.” When the Commonwealth questioned Detective Snider on
redirect, he explained the process of testing the phone through downloading
the data and based upon the download, reiterated that the phone appeared not
to really have been used: it reflected no calls or messages and nothing of
substance.
In Thorn’s police interview, Thorn stated that McRae had sold the gun he
used to shoot Hague to Juvon Foster. When Detective Snider interviewed
Foster, Foster admitted that McRae sold him a gun. Detective Snider then
presented a still photo from the Norene Lane apartment surveillance video and
asked Foster if he could identify anyone. Foster identified the black man in the
photo as McRae. During Detective Snider’s cross-examination, he agreed that
he did not present a photo pack to Foster for McRae’s identification but
8 Louisville Metro Police Department.
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explained that was because McRae was not a stranger to Foster and he was
confirming that the person in the photo was the same Martice McRae that
Foster knew. Upon redirect, the Commonwealth asked Detective Snider to
explain a photo array for the jury. In addition to explaining the different
methods of presenting photos when trying to identify a suspect, he testified
that he normally does not use a photo array when a witness already knows the
suspect.
McRae identifies the foregoing testimony on redirect examination as
Detective Snider testifying for the first time that he did not have McRae’s phone
forensically examined and Detective Snider offering for the first time his excuse
for failing to present a photo pack to Foster. Upon review, we cannot agree
with McRae that Detective Snider’s testimony on redirect presented new
information for which recross-examination was warranted. As noted above,
Detective Snider testified during his cross-examination that the phone was
forensically tested and then he explained that testing during his testimony on
redirect. Detective Snider’s description of the testing procedure and his
reiteration of his statement that the phone lacked content did not raise any
new matter on redirect. As to the photo pack argument, Detective Snider
explained on cross-examination how and when he normally uses a photo pack
in his investigations.
The trial court has great latitude in imposing reasonable limitations on
cross-examinations and acts within its purview in limiting examinations that
are harassing, confusing, repetitive, or only marginally relevant. Davenport v.
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Commonwealth, 177 S.W.3d 763, 768 (Ky. 2005) (citing Delaware v. Van
Arsdall, 475 U.S. 673, 679, 683 (1986)); see KRE 611(a), (b). Here, Detective
Snider had been examined and cross-examined, and subsequently recalled by
the Commonwealth, testifying to matters which he had already addressed
during his cross-examination. A trial court does not abuse its discretion in
denying a request for recross-examination when the redirect testimony does
not involve new matter and is only an amplification of previous testimony
elicited during cross-examination.
CONCLUSION
For the foregoing reasons, the Jefferson Circuit Court’s judgment is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Michael Lawrence Goodwin
Ashlea Nicole Hellmann
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Perry Thomas Ryan
Assistant Attorney General
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