Taynandree D. Reed v. Commonwealth of Kentucky ( 2023 )

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RENDERED: AUGUST 24, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0152-MR
TAYNANDREE D. REED APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT
V. HONORABLE KELLY MARK EASTON, JUDGE
NO. 20-CR-00434
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Hardin County jury convicted Taynandree Reed of two counts of
murder and one count of assault in the first degree. Reed was sentenced to
seventy (70) years in prison, consistent with the jury’s recommendation. This
appeal followed as a matter of right. See KY. CONST. § 110(2)(b). Having
reviewed the record and the arguments of the parties, we affirm the Hardin
Circuit Court.
I. BACKGROUND
On May 13, 2020, Shawn Fox (Shawn), his girlfriend Kenia Thomas
(Kenia), and his friend Michael Buckner Thomas (Michael) drove from
Henderson, Kentucky to Elizabethtown, Kentucky to meet with Taynandree
Reed (Reed) who was coming to Elizabethtown from Lexington, Kentucky.1
Shawn had set up this meeting with Reed in order to look at and potentially
purchase a used car from Reed. During the drive to Elizabethtown, Michael
became nervous, and Kenia gave him her gun, in an attempt to, she said,
provide him with some peace of mind. When Shawn, Kenia, and Michael
arrived at the Green Hill Apartment complex, the previously agreed-upon
meeting location, Reed was already there. Unbeknownst to the threesome but
as evidenced by cell phone location data, as well as surveillance video from the
apartment complex and area businesses, Reed had been in the area for over
forty-five minutes, both walking around and driving his mother’s car. Prior to
meeting with the three, Reed parked his mother’s car approximately a block
away from the apartment complex.
Upon arriving at the apartment complex, Shawn exited the car and spoke
to Reed. The topic of this conversation is unknown. Shawn and Reed then both
got into the car. At this point, Kenia was in the front driver’s seat; Shawn was
in the front passenger seat; Michael was in the back seat on the driver’s side;
and Reed was in the back seat on the passenger side. Reed told the others that
they needed to wait for his girlfriend to get there because she had the car they
were interested in purchasing.
1 We use first names to identify Shawn Fox, Kenia Thomas, and Michael
Buckner Thomas to avoid confusion because of the similarity of the last names of
Kenia Thomas and Michael Buckner Thomas.
2
After approximately thirty to forty minutes, Shawn left the car to use the
restroom. Upon his return, Kenia began to complain that she was hungry and
tired of waiting. About fifteen minutes after Shawn returned and as Shawn and
Kenia discussed where to get food, Reed stated that he needed to use the
restroom as well. He exited the car and was gone for a couple of minutes. When
Reed returned to the car, he opened the back passenger side door. He
immediately shot Michael in the head. He then shot Shawn twice—once in the
neck and once in the head. As he turned to shoot Kenia, Kenia “scrunched up”
her shoulders, causing the bullet to strike her shoulder before ricocheting up,
going through her ear, and hitting her head. Kenia was rendered unconscious.
Reed remained at the car for several minutes and eventually fled with Kenia’s
purse and cell phone and one of Shawn’s two cell phones.
When Kenia awakened, she was unable to move her legs. She looked
around the car but could not find her phone to call for help. She then used her
hands to pick up her legs, placing one on the brake pedal and one on the
accelerator. She began driving and honking her horn until she found a
driveway that she thought would provide safety. She pulled into that driveway,
continuing to honk her horn. The resident of that house went outside,
immediately saw blood and knew something was wrong. His wife called 911.
The first responder on the scene was a police officer who could not detect any
signs of life on either Shawn or Michael. He rendered aid to Kenia until medical
personnel arrived. While moving Kenia’s hair to attempt to find the wound
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causing her to bleed, a bullet fell from her head. Kenia was brought to the
hospital and released the next day.
Police immediately began investigating the shooting. They found a bag
with $9000 in cash in the front passenger floorboard near Shawn’s feet, which
had apparently fallen out of his pants when Kenia drove over a curb after the
shooting. They also found Kenia’s gun on the back driver’s side floorboard.
Police obtained surveillance video from the Green Hill Apartment complex and
identified the person they believed was the suspect. Police then ran a still photo
of that person from the surveillance video through facial recognition software.
They received three potential matches, one of which was Reed. By this time,
they had already received Shawn’s cell phone records. Thereafter, they
determined that Reed was the last person that Shawn had contacted on his cell
phone.
The police then obtained location data for the cell phones belonging to
Kenia, Shawn, and Reed. This location data showed that the three phones were
together in the area of the Green Hill Apartments at the time of the shooting.
Shortly thereafter, they travelled together along the Bluegrass Parkway towards
Lexington. Kenia’s phone stopped pinging cell towers around mile marker 7 on
the Bluegrass Parkway. Shawn’s phone stopped pinging around mile marker
19, and Reed’s phone continued to Lexington. Kenia’s and Shawn’s phones
were never recovered. Kenia’s purse, however, was found with blood on it, a
short distance from the Green Hill Apartments.
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Just over a week later, Reed was arrested at a Kroger in Versailles,
Kentucky. After being placed in handcuffs, he attempted to flee but was quickly
apprehended. He was eventually indicted on two counts of murder and one
count of assault in the first degree. A Hardin County jury convicted Reed on all
counts, and he was sentenced to seventy (70) years in prison. This appeal
followed.
II. ANALYSIS
Reed asserts three claims of error in this appeal. First, he argues that the
Commonwealth’s Attorney committed prosecutorial misconduct when he
repeated allegations of robbery, a crime on which Reed was not indicted,
throughout his opening statement and closing argument. Next, he argues that
he was entitled to a jury instruction on self-defense. Finally, he argues that the
trial court erred in admitting re-call testimony from a Commonwealth’s expert
witness, as it was confusing and prejudicial. We will address each of these
alleged errors in turn.
A. Commonwealth’s Opening Statement and Closing Argument
Reed first argues that the Commonwealth’s Attorney committed
prosecutorial misconduct when, during both his opening statement and his
closing argument, he repeatedly alleged Reed committed a robbery, a crime
with which Reed was not charged. Reed acknowledges that this allegation of
error is not preserved and requests palpable error review pursuant to Kentucky
Rule of Criminal Procedure (RCr) 10.26.
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During its opening statement, the Commonwealth alleged that the crimes
were committed for the purpose of committing a robbery. For example, the
Commonwealth stated, “[T]o [Reed] this wasn’t a drug deal. To him this was
about money. It was about robbery.” During its closing argument, the
Commonwealth referenced the alleged robbery multiple times including by
making statements such as, “[Reed] knew he was going to set up a robbery,”
and “[Reed]’s setting this robbery up. It’s going to be on his terms. Whether it’s
a car or whether it’s drugs, it’s on his terms where they are meeting, his turf.”
Reed, however, was not charged with the offense of robbery. Because he was
not charged with that offense, Reed argues that the Commonwealth’s repeated
references to his commission of a robbery were misleading and inherently
prejudicial. He asserts that the Commonwealth’s Attorney committed
prosecutorial misconduct by making these statements.
“Prosecutorial misconduct is ‘a prosecutor’s improper or illegal act
involving an attempt to persuade the jury to wrongly convict a defendant or
assess an unjustified punishment.’” Commonwealth v. McGorman, 489 S.W.3d
731, 741–42 (Ky. 2016) (emphasis added) (quoting Noakes v. Commonwealth,
354 S.W.3d 116, 121 (Ky. 2011)). Any allegation of misconduct must be viewed
in the context of the overall fairness of the trial. Id. at 742 (citing St. Clair v.
Commonwealth, 451 S.W.3d 597, 640 (Ky. 2014)). To justify reversal, the
Commonwealth’s misconduct “must be so serious as to render the entire trial
fundamentally unfair.” Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)
(quoting Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001)).
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In determining if the Commonwealth’s Attorney acted improperly or
illegally in the case at bar, we are mindful that “[o]pening and closing
statements are not evidence and wide latitude is allowed in both. . . . Counsel
may draw reasonable inferences from the evidence and propound their
explanations of the evidence and why the evidence supports their particular
theory of the case.” Wheeler v. Commonwealth, 121 S.W.3d 173, 180–81 (Ky.
2003) (citations omitted). “[T]he fundamental issue is whether the ‘statement is
reasonably supported by the evidence.’” Murphy v. Commonwealth, 509 S.W.3d
34, 54 (Ky. 2017) (quoting Padgett v. Commonwealth, 312 S.W.3d 336, 353 (Ky.
2010)).
In this case, the Commonwealth’s statements that Reed committed a
robbery were reasonably supported by the evidence. Under Kentucky Revised
Statute (KRS) 515.020(1),
[a] person is guilty of robbery in the first degree when, in the
course of committing theft, he or she uses or threatens the
immediate use of physical force upon another person with intent to
accomplish the theft and when he or she:
(a) Causes physical injury to any person who is not a participant in
the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument
upon any person who is not a participant in the crime.
Evidence at trial along with reasonable inferences that could be drawn from
that evidence showed that Reed was armed with a .380 handgun. It showed
that he shot Kenia, Shawn, and Michael with that handgun. It further showed
that, as a result of the shooting, Shawn and Michael died and Kenia was
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injured. It showed that after the shooting, Reed looked around and inside of the
car for approximately six minutes. Finally, evidence showed that when Reed
fled the scene, he took with him Shawn’s cell phone and Kenia’s cell phone and
purse. Based on that evidence, it was certainly reasonable for the
Commonwealth’s Attorney to infer that Reed committed a robbery.
We next must determine whether evidence of the alleged robbery was
both relevant and not unduly prejudicial. The Commonwealth asserted
throughout trial that Reed’s motive for committing the shooting was to
accomplish a robbery. “We have long held that while motive is rarely an actual
element of a crime, it is often relevant to show criminal intent.” White v.
Commonwealth, 178 S.W.3d 470, 478 (Ky. 2005) (citing Jillson v.
Commonwealth, 461 S.W.2d 542, 544 (Ky. 1970)). Further, we do not require
direct testimony of a witness to establish motive. Id. at 476. Instead, “we
require only that there be a direct connection between the other crimes and the
charged crime. This is true even if that connection is the product of a
reasonable inference.” Id. Robbery as the alleged motive for the shooting was
relevant in this case to establish that Reed acted intentionally in shooting
Kenia, Shawn, and Michael.
Finally, although evidence of an alleged robbery was prejudicial to Reed’s
case, it was not unduly prejudicial. Evidence is unduly prejudicial if it carries
with it a “risk of an emotional response that inflames passions, generates
sympathy, or arouses hostility” or a “risk that the evidence will be used for an
improper purpose.” Dixon v. Commonwealth, 149 S.W.3d 426, 431 (Ky. 2004)
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(citation omitted). The evidence in this case did not carry either of these risks
to such an extent that it outweighed the high probative value of the evidence.
See KRE 403.
Because the Commonwealth’s Attorney’s allegation that Reed committed
a robbery, made both during opening statement and closing argument, was
supported by the evidence and because that allegation was both relevant and
not unduly prejudicial, we hold that the Commonwealth’s Attorney did not
commit prosecutorial misconduct.
B. Self-defense Jury Instruction
Reed next argues that he was entitled to a jury instruction on self-
defense. He asserts that he preserved this issue for appellate review by orally
requesting an instruction on self-defense. The Commonwealth disagrees and
argues that the issue was not preserved and therefore cannot be reviewed.
RCr 9.54(2) states,
No party may assign as error the giving or the failure to give an
instruction unless the party’s position has been fairly and
adequately presented to the trial judge by an offered instruction or
by motion, or unless the party makes objection before the court
instructs the jury, stating specifically the matter to which the party
objects and the ground or grounds of the objection.
Reed acknowledges that he did not tender an instruction on self-defense but
asserts that he orally requested the instruction. During the discussion about
jury instructions, the trial court noted that although Reed’s indictment
included both intentional and wanton theories of murder, there was no
evidence admitted to allow for the court to include wanton murder in the
instructions. In relevant part, the trial court stated,
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The shooting of an individual in the manner that has been shown
in this evidence, could not be wanton. It had to be an intentional
act or no act at all . . . . [N]o juror could look at that and say that’s
wanton. . . . It has to be intentional. Who it is that fired the shots
is the question.
Defense counsel then responded, “Well, that takes away his self-defense
argument.” The following exchange between the trial court and defense counsel
then occurred.
Trial Court (TC): Self-defense argument? And what argument is
that?
Counsel: Well, that could be the motive of the shooter, that it’s
self-defense.
TC: But your theory is “that’s not him.”
Counsel: Beg your pardon?
TC: But your theory of defense is “that’s not him,” right?
Counsel: Yeah. I think I’m entitled to the complicity argument or at
least to argue that there was another person there. And there’s a
difference between whether or not the first shot was intentional or
wanton and the next one was intentional. There’s that divide.
The trial court then explained again that it did not believe there was any
evidence from which a jury could find wanton murder and mentioned that the
same was true about self-defense. The Commonwealth then stated that self-
defense would not apply because the shooting occurred during the commission
of a criminal offense. The trial court then again stated that there was no
evidence to support self-defense. Finally, defense counsel, resigned to the trial
court’s ruling, said, “Thankfully, Your Honor, I may comment on the evidence,
hopefully without being stopped too many times.”
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By its plain language, RCr 9.52 places the burden of ensuring his
position is “fairly and adequately presented to the trial judge” on the party
requesting a particular jury instruction. See Martin v. Commonwealth, 409
S.W.3d 340, 345 (Ky. 2013). In this case, Reed’s counsel complained that the
lack of an instruction on wanton murder eliminated his self-defense argument.
He never specifically requested a self-defense instruction or even implied that
he wanted the jury to be instructed on self-defense. Because of this, his
position was not “fairly and adequately presented to the trial judge,” and this
issue is not preserved. Therefore, we decline to review it. Id. (“RCr 9.54(2) bars
palpable error review for unpreserved claims that the trial court erred in the
giving or the failure to give a specific instruction.”).
C. Re-call Testimony of Lawrence Pilcher
Finally, Reed argues that the trial court erred in allowing the
Commonwealth to re-call Lawrence Pilcher, a firearms and tool marks
identification expert from the Kentucky State Police Laboratory, to testify. Reed
asserts that Pilcher’s testimony on re-call was so confusing that it was unduly
prejudicial. Reed preserved this issue by his objection to allowing Pilcher to be
re-called.
During the trial, the Commonwealth presented evidence that police had
recovered four .380 caliber projectiles that were involved in the shooting. The
police also recovered a .380 caliber Taurus handgun from Reed’s mother’s
residence. They also found a photo of a .380 caliber Walther handgun on
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Reed’s phone, but never recovered this gun. Pilcher identified the model of the
Walther handgun depicted in the photograph as being from the PK series.
Pilcher examined the recovered projectiles in an attempt to identify the
gun from which they were shot. When he was called to testify the first time,
Pilcher testified that he was able to determine that the projectiles were not fired
from the Taurus handgun found at Reed’s mother’s residence. He went on to
explain that when he receives projectiles but does not have a gun to which he
can compare the projectiles, he can enter information about the quantity and
measurements of the lanes and grooves found on the projectile into the General
Rifling Characteristics Database. This database will then give him a list of
manufacturers and models of firearms from which the projectiles could have
been fired. He acknowledged that the database is not all-inclusive, in that it
does not include all models of firearms. He further acknowledged that there are
“a few errors” in the database.
Pilcher then testified that the particular model of Walther handgun
shown in the picture on Reed’s phone was not on the list of firearms returned
from the database. He qualified this answer by again explaining that not every
model of firearm is included in the database. He explained that Walther makes
a PK series and a PPK series, and that two other Walther firearms from the P
series were on the list. He further explained that manufacturers will often use
the exact same rifling specifications on multiple models of guns.
After cross-examination, Pilcher was excused and released from his
subpoena. The trial court then took a lunch break. Following the lunch break,
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the Commonwealth moved to re-call Pilcher to clarify his original testimony.
The Commonwealth explained that it mistakenly asked Pilcher if the model of
firearm shown in the photo was included on the list returned by the database
when it meant to ask him if the manufacturer was included on the list. The
trial court granted the Commonwealth’s motion, over Reed’s objection, because
it was concerned the jury would be confused without further clarifying
testimony.
During his re-call testimony, Pilcher testified that the manufacturer of
the gun shown in the photo found on Reed’s phone was included on the list of
firearms that could have fired the projectiles at issue in the case. He then again
explained that not every model of firearm is included in the database and that
some models which are not included may have the same rifling characteristics
as models that are included. On cross-examination, Pilcher testified that he
was not changing any of the answers that he gave during his original
testimony.
To begin, we note that the trial “court has a wide discretion in allowing a
witness to be recalled.” McQueen v. Commonwealth, 88 S.W. 1047, 1048 (Ky.
1905). Trial courts are required to “exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to . . .
[m]ake the interrogation and presentation effective for the ascertainment of the
truth.” KRE 611(a)(1). We review a trial court’s exercise of that control for
abuse of discretion. Burke v. Commonwealth, 506 S.W.3d 307, 321 (Ky. 2016)
(citation omitted). We also review a trial court’s decision on the admission of
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evidence for an abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95
(Ky. 2007) (citation omitted). “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d
575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999)).
Reed’s only argument regarding why the trial court erred in allowing
Pilcher to be re-called to testify is that Pilcher’s testimony on re-call was so
confusing that it was unduly prejudicial. Under KRE 402, “[a]ll relevant
evidence is admissible,” unless it is prohibited by constitution, statute, or our
rules. KRE 403 allows relevant evidence to “be excluded if its probative value is
substantially outweighed by the danger of undue prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” As explained above, evidence is unduly
prejudicial if it carries with it a “risk of an emotional response that inflames
passions, generates sympathy, or arouses hostility” or a “risk that the evidence
will be used for an improper purpose.” Dixon, 149 S.W.3d at 431 (citation
omitted).
In this case, we see no such risks in Pilcher’s re-call testimony. The trial
court allowed Pilcher to be re-called in order to clarify his earlier testimony. He
did just that, and he explicitly stated that his answers had not changed from
his earlier testimony. The trial court did not abuse its discretion in permitting
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Pilcher to be re-called to testify and did not abuse its discretion in admitting
his testimony on re-call.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Hardin Circuit
Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Kayla Danielle Deatherage
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
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