Andre Tompkins v. Commonwealth of Kentucky ( 2022 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED: OCTOBER 20, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0076-MR
ANDRE TOMPKINS APPELLANT
ON APPEAL FROM MCCRACKEN CIRCUIT COURT
V. HONORABLE TIMOTHY KALTENBACH, JUDGE
NO. 19-CR-00727
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Andre Tompkins (Tompkins) was convicted of one count of first-degree
rape; two counts of first-degree sodomy; one count of incest, victim under
eighteen; one count of criminal attempt to commit second-degree rape; two
counts of second-degree sodomy; and one count of first-degree sexual abuse.
Receiving a sentence of thirty-one years, he now appeals his convictions to this
Court as a matter of right.1 After review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The only issue raised by Tompkins that merits review concerns alleged
juror misconduct. We therefore need not discuss the underlying facts
supporting his convictions, but for context some background information is
1 Ky. Const. § 110.
required. Tompkins’ sole victim was his biological daughter, Alice,2 who was
thirteen at the time of the offenses and fifteen at the time of trial. Alice’s
biological mother passed away due to a mitral valve prolapse when Alice was
eighteen months old. Alice was therefore raised by her maternal grandmother
(S.A.). S.A. was a witness for the Commonwealth during Tompkins’ trial.
During voir dire, the trial court, the Commonwealth, and defense counsel
each questioned the venire. Going first, the trial court asked the
Commonwealth to list the witnesses it intended to call, which included S.A.
The court asked if anyone knew any of the Commonwealth’s witnesses, and no
one responded that they knew S.A. Later, the Commonwealth also inquired
whether anyone knew S.A., but again no one in the venire responded
affirmatively. Finally, the defense asked if anyone knew Alice’s deceased
mother; no one responded that they did.
After a two-day trial, the jury was released to deliberate at 10:02 a.m.
On the same day at 4:32 p.m., while the jury was deliberating, defense counsel
brought an issue to the court’s attention. Counsel stated:
Ms. Belinda Lawrence has just alerted me to something. She’s
from here and she’s really plugged in in the community and knows
a lot of people that I just don’t know because I’m not from here.
But one of our jurors, Fernandez Hill, the African American male
on the jury, Belinda, who’s in the back ready to give some
testimony, Belinda Lawrence drove him on the school bus when he
was a child in school. Belinda has told me that it’s her belief that
Fernandez Hill knows [Alice’s deceased mother]. So, basically what
I’m saying is, we believe that when there was some voir dire
2 This Court will utilize pseudonyms and initials to protect the child’s
anonymity.
2
concerning whether any of the potential jurors knew any of the
potential parties that perhaps Mr. Fernandez Hill might not have
disclosed that he might know the victim’s deceased mother. And if
he does know that and he didn’t disclose it he could have shared
some outside information with the jury concerning [Alice’s
mother’s] death from a drug overdose and some of the surrounding
rumors that [Tompkins] was responsible for that death. We’d like
to take some testimony from [Belinda].
The trial court denied defense counsel’s request to take Belinda’s testimony by
avowal, but noted that counsel was “entitled to file motions.” Later, after the
jury had announced that it had reached a verdict but before the verdict was
read, defense counsel made a second request as follows:
Your honor I move for a mistrial based on juror misconduct. I first
made the argument before, but I actually neglected to make the
mistrial motion which I’m making now. I’d further buttress my
argument by stating that I’ve also found out that Fernandez Hill
may have some relatives who are married to, I think, [S.A.’s] sister
and [S.A.] testified twice in this trial. So, in addition to knowing
[Tompkin’s] deceased significant other, the mother of the victim,
Mr. Hill may have some family members who are married to [S.A.’s]
relatives, I think [S.A.’s] sister. And that’s why I wanted to get
some testimony earlier from [Belinda] just so I could question that
on the record.
The trial court denied the motion for a mistrial.
Following Tompkins’ conviction, his defense counsel did not file a motion
for a new trial under RCr3 10.024 based on Juror Hill’s alleged mendacity, nor
did counsel take Belinda’s testimony via an affidavit to be included in the
record on appeal.
3 Kentucky Rule of Criminal Procedure.
4 RCr 10.02(1) (“Upon motion of a defendant, the court may grant a new trial for
any cause which prevented the defendant from having a fair trial, or if required in the
interest of justice.”).
3
Additional facts are discussed below as necessary.
II. ANALYSIS
Tompkins’ primary arguments on appeal are that the trial court erred
when it failed to elicit testimony from Belinda, and that reversible error
occurred due to Juror Hill’s failure to truthfully answer questions during voir
dire. Addressing the former argument will be dispositive.
Procedurally, this case is a bit of an oddity. As the Commonwealth
points out, allegations of juror misconduct are typically addressed post-trial
during a hearing on a motion for a new trial.5 Tompkins argues in response
that he “was not obligated to file a motion for a new trial as the issue was
brought to the trial court during trial.” That may be so for the purposes of
preserving the issue, but as a practical matter it greatly diminishes the facts
that would have otherwise been available to this Court to address this appeal.
Had a hearing occurred, the trial court could have taken testimony and made
findings regarding whether Juror Hill knew Alice’s deceased mother or had a
relative who was married to S.A.’s sister. But, without such a hearing to
review, our focus is necessarily narrowed to the following question: did the trial
court err by declining to inquire further into the matter based on the
allegations made by counsel? We hold that it did not.
5 See, e.g., Gullett v. Commonwealth, 514 S.W.3d 518, 522 (Ky. 2017); Sluss v.
Commonwealth, 381 S.W.3d 215, 220-21 (Ky. 2012); Anderson v. Commonwealth, 864
S.W.2d 909, 911 (Ky. 1993); Paenitz v. Commonwealth, 820 S.W.2d 480, 481 (Ky.
1991). See also Jackson v. Commonwealth, 567 S.W.3d 615, 623 (Ky. App. 2019) (“It
is well-established that evidentiary hearings are critical to resolving juror misconduct
cases.”).
4
To begin, Belinda was not a witness for either party and was seemingly
there solely to observe the trial. The trial court therefore had no way to
establish her credibility or to know what her motivations were for bringing
these allegations to the attention of Tompkins’ defense counsel. Further, the
only asserted bases for her beliefs were that she was “plugged in” to the
community, and drove Tompkins on the school bus when he was a child.6 It is
notable that Belinda did not allege that she also drove Alice’s deceased mother
on the school bus.
In addition to this shaky foundation, counsel’s allegations were
exceptionally vague. Counsel stated that it was Belinda’s “belief” that Juror
Hill knew Alice’s mother; that “perhaps Juror Hill might not have disclosed that
he might know the victim’s deceased mother”; that he “may have some family
members who are married to [S.A.’s] relatives”; and that Juror Hill “could have
shared some outside information with the jury concerning [Alice’s mother’s]
death from a drug overdose and some of the surrounding rumors that
[Tompkins] was responsible for that death,” even though it was stated several
times that Alice’s mother died due to a heart condition.7
The trial court declined to hear testimony from Belinda while the jury
was deliberating, but told defense counsel he was “entitled to file motions.”
The trial court undoubtedly anticipated that defense counsel would file a
6 Tompkins was thirty-two years old at the time of the trial.
7 (Emphasis added).
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motion for a new trial based on this information, as is the typical practice, and
that the issue could thereby be addressed more fully. Based on the foregoing,
we cannot say that the trial court erred by declining to take testimony from
Belinda.
Moreover, we hold that these bare assertions to not entitle Tompkins to
remand and an evidentiary hearing under Sluss v. Commonwealth.8 In Sluss,
the defense filed a post-trial motion for a new trial on the basis of juror
misconduct.9 The motion alleged that during voir dire two individuals that
were later selected as jurors stated that they did not know the victim, her
family, or the circumstances surrounding the case.10 One of those jurors also
stated that she did not use Facebook.11 With the defense’s motion for a new
trial, it filed screenshots of the victim’s mother’s Facebook friends, which
included two individuals with the same names as the two jurors in addition to
screenshots from the victim’s mother’s Facebook page discussing information
about her child’s death.12 The Sluss Court held that, while the appellant had
not shown that his conviction was tainted, he had “included in the record
sufficient evidence that one of the jurors appears to have lied explicitly (about
having a Facebook account) during individual voir dire and that both jurors
8 381 S.W.3d 215 (Ky. 2012).
9 Id. at 220-21.
10 Id. 221.
11 Id.
12 Id.
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may have lied by omission[.]”13 The Court accordingly remanded for a hearing
to further flesh out the allegations of juror mendacity.14
Here, because Tompkins’ counsel did not elect to take part in a hearing
on a motion for a new trial or to take Belinda’s affidavit for inclusion in the
record on appeal, we have no such evidence. Instead, there are only vague,
second-hand assertions that Juror Hill might have known Alice’s deceased
mother and might be related to S.A. through marriage. We therefore hold that
Tompkins has not presented sufficient evidence that Juror Hill was dishonest
during voir dire, and he is not entitled to remand and a hearing under Sluss.
Tompkins also alleges that the trial court erred by denying his motion for
directed verdict. However, the Commonwealth argues, and we agree, that this
issue was not properly preserved for our review.
At the close of the Commonwealth’s evidence, the defense made the
following motion: “I’d make a motion for directed verdict on all counts. Our
position is that the Commonwealth carries the burden of persuasion and they
simply have not proven each and every element of each and every offense. No
further additional argument.” Later, at the close of all the evidence, the
defense renewed its motion for directed verdict as follows:
I’d make a motion for directed verdict on all counts. It’s our
position that the Commonwealth simply has not proven its case at
all. The only evidence they really presented is an allegation from a
child and some medical results that don’t identify where the source
of injury came from. So, the proof they put on has just been
insufficient, so we ask for a directed verdict on all counts.
13 Id. at 229 (emphasis added).
14 Id.
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As this Court has held numerous times, in order to preserve the argument that
a trial court erred by denying a criminal defendant’s motion for directed
verdict, the defendant must:
(1) move for a directed verdict at the close of the Commonwealth's
evidence; (2) renew the same directed verdict motion at the close of
all the evidence, unless the defendant does not present any
evidence; and identify the particular charge the Commonwealth
failed to prove, and must identify the particular elements of
that charge the Commonwealth failed to prove.15
“Insufficiently specific motions, such as moving summarily for a directed
verdict or making a general assertion of insufficient evidence, are not enough to
satisfy the specificity requirement.”16
Here, Tompkins’ counsel did not identify which charges the
Commonwealth failed to prove or which of the particular elements of those
charges the Commonwealth failed to prove. This issue was therefore not
properly preserved for our review. Tompkins did not request review for
palpable error review under RCr 10.26.17 “Absent extreme circumstances
amounting to a substantial miscarriage of justice, an appellate court will not
engage in palpable error review pursuant to RCr 10.26 unless such a request is
15 Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky. 2020) (emphasis added).
16 Early v. Commonwealth, 470 S.W.3d 729, 733 (Ky. 2015).
17 RCr 10.26 (“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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made and briefed by the appellant.”18 Consequently, we decline to review this
allegation of error.
III. CONCLUSION
Based on the foregoing, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Roy Alyette Durham II
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Kenneth Wayne Riggs
Assistant Attorney General
18 Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).
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