Damondre Williams v. Commonwealth of Kentucky ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: FEBRUARY 20, 2020
NOT TO BE PUBLISHED
2018-SC-000574-MR
DAMONDRE WILLIAMS
ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE GREGORY M. BARTLETT, JUDGE
NO. 17-CR-00940
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Damondre Williams (“Williams”), as a matter of right pursuant to § 110 of
the Kentucky Constitution, appeals his convictions of one count of first-degree
manslaughter and one count of attempted murder. Williams was sentenced to
thirty-five years’ imprisonment. For the reasons set forth herein, we affirm the
judgment of the Kenton Circuit Court.
I. BACKGROUND
On August 1, 2017, Marcus Broadus (“Broadus”), one of the victims,
went to East 13th Street in Covington, Kentucky. Broadus was accompanied by
Lavonta Chaney (“Chaney”), who had a gun on his person. Broadus and
Chaney walked up to the 300 block around 7:30 p.m. and saw a group of
people hanging out. Among the group was Damondre Williams. Testimony
revealed that Broadus and Williams had had a disagreement in the past. Right
after Broadus arrived at 7:27 p.m., he attempted to call his son, Antonio Bandy
(“Bandy”). When Bandy did not answer, Broadus texted Bandy to “Get to 13th
ASAP.” Then Broadus called Wakeem Pouncey (“Pouncey”) but also got no
answer. Broadus proceeded to send a text to Pouncey and told him to get to
“get his ass down there” as well.
Bandy and Pouncey arrived shortly after Broadus’ texts. Pouncey
stopped the car in the middle of the street and got out leaving the door of the
vehicle open. Pouncey brandished a firearm as he exited the vehicle. Bandy
exited the passenger side then approached his father, Broadus, and asked
what was wrong. Broadus told Bandy that Williams was there, and that
Williams owed Broadus money.
At this point, Broadus and Williams had a conversation about Williams
owing him money. The two began yelling, however, Broadus testified he did not
threaten Williams. Williams testified that during the argument he claimed he
did not owe Broadus any money, at which point Broadus threw a bottle he had
in his hand and gestured as if he had a gun. Williams testified he had known
Broadus to carry a gun, and he believed Broadus had a gun on his person.
However, Broadus did not have a gun on him that day.
The dispute escalated, and Broadus testified he told Pouncey to put his
gun down. Williams testified that Broadus told Pouncey to give the gun to
Bandy, and upon receiving the gun Bandy cocked the weapon, a 9 mm Baretta
with an extended clip, and put it in his waistband. At some point Bandy
turned his back to Williams, and Broadus testified that he saw Williams go up
behind Bandy and shoot him in the back of the head. Williams then chased
2
Broadus and shot him five times in the right shoulder, right arm, left shoulder
and then stood over Broadus and shot him a final time in the face.
Williams fled the scene after the shooting. Officer John Denny (“Ofc.
Denny”), Covington Police, was dispatched to East 13th Street where he found
Broadus lying in the middle of 13th Street with multiple gunshot wounds. Ofc.
Denny started first aid on Broadus and put a tourniquet around Broadus’ right
arm until the ambulance arrived. Ofc. Denny also saw Bandy, unresponsive,
between two residences on East 13th Street with a gunshot wound to his head.
Ofc. Denny testified that upon investigating the scene he discovered a gun in
Bandy’s waistband, however he testified it was not apparent or visible because
it was covered by Bandy’s shirt. Bandy’s cause of death was the single
gunshot wound to the head.
Upon Broadus arrival at the emergency room, Dr. Jason Schrager was
the initial tending physician. Broadus had multiple gunshot wounds to his
face and upper extremities. Dr. Schrager put in a breathing tube to protect
Broadus’ airway. Dr. Schrager’s main concern was to protect Broadus’ airway
and control the hemorrhaging. Dr. Schrager testified that Broadus’ gunshot
wounds would have been fatal without treatment.
Covington Police recovered two different videos of the actual shooting.
Captain Brian Valenti recovered security video from cameras located at 339
East 13th Street that were directed at the area of the shooting. Officer David
Hoyle retrieved additional video footage of the shooting from a surveillance
3
camera maintained by the FBI. Still shots and video clips were introduced into
evidence and viewed by the jury.
Detective Eric Higgins interviewed Williams at the Cincinnati Police
Homicide Unit. Williams denied that he was in Covington on the day of the
shooting. Detective Higgins told him he knew Williams was there and Williams
still denied being there and being involved in the shooting. However, Williams
eventually admitted he was present and that he had shot Broadus and Bandy.
Williams was convicted on one count of first-degree manslaughter and
one count of attempted murder. The judge followed the jury’s sentencing
recommendation of twenty years on manslaughter first-degree and fifteen years
on attempted murder, to run consecutively for a total of thirty-five years’
imprisonment.
II. ANALYSIS
A. THE TRIAL COURT PROPERLY DENIED THE REQUEST TO INSTRUCT
THE JURY AS TO “NO DUTY TO RETREAT” AND EXTREME
EMOTIONAL DISTURBANCE
Williams argues that the trial court abused its discretion in failing to
instruct the jury on “no duty to retreat” and extreme emotional disturbance.
The issue is preserved by Williams’ specific requests for inclusion of
instructions on “no duty to retreat” and extreme emotional disturbance.
“When the question is whether a trial court erred by: (1) giving an
instruction that was not supported by the evidence; or (2) not giving an
instruction that was required by the evidence; the appropriate standard for
4
appellate review is whether the trial court abused its discretion.”1 We recognize
that the trial court’s discretion arises from their “superior view” of the evidence
and they are situated to more accurately assess nuances.2 “[I]n evaluating the
refusal to give an instruction we must ask ourselves, construing the evidence
favorably to the proponent of the instruction, whether the evidence would
permit a reasonable juror to make the finding the instruction authorizes.”3
a. WILLIAMS WAS NOT ENTITLED TO A “NO DUTY TO RETREAT”
INSTRUCTION
Williams contends that the trial court abused its discretion by refusing to
give a “no duty to retreat” instruction to the jury.
Pursuant to Kentucky Revised Statutes (KRS) 503.055(5):
A person who is not engaged in an unlawful activity
and who is attacked in any other place where he or
she has a right to be has no duty to retreat and has
the right to stand his or her ground and meet force
with force, including deadly force, if he or she
reasonably believes it is necessary to do so to prevent
death or great bodily harm to himself or herself or
another or to prevent the commission of a felony
involving the use of force.
In Commonwealth v. Hasch, this Court acknowledged the distinct
standards of the statutory justification of self-defense and “no duty to retreat.”4
The Court held that self-defense is based on the subjective standard, that force
1 Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015).
2 Id.3 Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013).4
421 S.W.3d 349, 362 (Ky. 2013).
5
is justifiable if the defendant, correctly or incorrectly, believes force is
necessary.5 In contrast, the “no duty to retreat” statute is based on an
objective standard, in determining when a defendant has the right to stand his
ground and meet “force with force.”6
Furthermore, the Hasch Court explicitly stated:
[I]n light of the enactment of KRS 503.055 and KRS
503.050(4), we now agree that when presented with
circumstances in which the provisions of those
statutes are applicable, and upon request of one of
the parties, the trial court must include among the
jury instructions, a “no duty to retreat” instruction[.]7
However, in this case the trial court refused to instruct the jury on “no duty to
retreat” because there was insufficient evidence presented to show Williams
was attacked. There is no duty to instruct the jury on a theory unsupported by
the facts of the case.8
In the present case, the trial court’s decision was fully supported by the
evidence of the case. Williams testified that he came up behind Antonio Bandy
and shot him in the back of the head when Bandy was turned away from
Williams. Broadus testified that before things escalated, he requested Pouncey
to put his gun away. Williams somewhat corroborated this, by testifying that
Broadus requested Pouncey give his gun to Bandy. Williams admitted that
upon receiving the gun, Bandy tucked it in his waistband. Williams further
5 Id.6 Id.7 Id. at 364. (emphasis added).
8 Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983).
6
testified that after shooting Bandy he chased down Broadus, who was
unarmed, and shot him multiple times until he fell to the ground. And rather
than end the assault on Broadus after he had fallen, Williams proceeded to
stand over Broadus and shoot him in the face. The evidence presented at trial
does not establish Williams was attacked, and it unquestionably does not
establish Williams’ right to stand his ground pursuant to KRS 503.055(5).
Thus, as Williams’ own testimony clearly establishes that he was not
entitled to a “no duty to retreat” instruction, the trial court did not abuse its
discretion in refusing to instruct the jury as to “no duty to retreat.”
b. THE EVIDENCE DID NOT SUPPORT AN INSTRUCTION ON EXTREME
EMOTIONAL DISTURBANCE
Williams argues that there was adequate provocation to establish
Williams suffered from Extreme Emotional Disturbance (“EED”) at the time of
the shooting. In contrast to the “no duty to retreat” defense, the
reasonableness of Williams’ EED claim is subjective and based upon the
circumstances as Williams believed them to be.
Williams claims that he had been the victim of a robbery a year prior, at
which time he was shot. Williams claimed that his June 2016 shooting was
highly traumatic, resulting in him acting uncontrollably. Williams’ testimony
at trial intimated that Broadus was involved in the first shooting and robbery.
However, Williams testified that the robbery was committed by two males, and
that he was unsure of any detail about their appearance, including ethnicity,
because it was dark when the events occurred.
7
Extreme emotional disturbance has been defined as:
A temporary state of mind so enraged, inflamed,
or disturbed as to overcome one’s judgment, and to
cause one to act uncontrollably from the impelling
force of the extreme emotional disturbance rather than
from evil or malicious purposes.9
Williams’ testimony showed that immediately before the shooting Williams
heard Broadus tell Bandy to get his money. Upon hearing Broadus’ comment,
Williams made the conscious decision to shoot Bandy in the back of the head.
Williams’ testimony showed he was not acting under EED, but rather made the
decision to shoot before he believed he would be shot. The trial determined
that the evidence in its entirety did not warrant an instruction for EED.
An EED defense requires “adequate provocation” for the action - or a
“triggering event” that caused the action.10 We refuse to hold that an unrelated
event (Williams having been shot by unidentified shooters) from over a year
prior constitutes a “triggering event” here for EED or could be included in a
“cumulative effect of this series of events.”11 Also, from our review of the
record, there was no abuse of discretion by the trial court in its finding that the
evidence was insufficient to form a basis for an EED instruction.
9 McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986).
10 Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky. 2003).
11 Id. at 808.
8
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN INSTRUCTING
THE JURY ON FIRST-DEGREE MANSLAUGHTER
Williams argues that the trial court abused its discretion by giving the
jury an instruction as to first-degree manslaughter regarding his shooting of
Bandy. Williams claims that a jury could not reasonably doubt his intent to
cause death to Bandy when he shot him in the head and that it was not
reasonable for a juror to believe he only intended to cause serious physical
injury under the circumstances.
The trial court instruction on first degree manslaughter was as follows:
If you do not find the Defendant guilty of Murder
under Instruction No. 5, you will find the Defendant,
DAMONDRE WILLIAMS, guilty of First Degree
Manslaughter under this Instruction and under the
Indictment if, and only if, you believe from the
evidence beyond a reasonable doubt all of the
following:
A. That in Kenton County on or about August 1, 2017,
and before the finding of the Indictment herein, the
Defendant killed Antonio Bandy by shooting him with
a deadly weapon;
AND
B. The Defendant did not intend to kill Antonio Bandy
but did intend to cause serious physical injury;
AND
C. That in so doing, the Defendant was not privileged to
act in self-protection as explained in Instruction No. 9.
On July 19, 2018, the second day of trial, Williams proposed instructions
which included Murder, Second-Degree Manslaughter, Reckless Homicide and
Murder under Extreme Emotional Disturbance. Williams proposed
instructions did not include an instruction for first-degree manslaughter.
9
However, during a conference without the jury present, on the morning of July
20, 2018, the third day of trial, Williams’ counsel asked the judge if first-degree
manslaughter would be read as a “stand alone instruction.” The trial judge
stated in the affirmative and went through the proposed instruction for first-
degree manslaughter. Defense counsel made no objections. After reviewing all
the instructions to be given with Count I, Williams’ counsel stated that he
thought under Count I it should be “Murder, Man I, Man II, Reckless.” The
trial judge proceeded to go through each of the instructions, including
“Instruction VI” first-degree manslaughter, again without objection by defense
counsel. Williams counsel’s only response was that they agreed that the
instructions for Count I as the judge had just reviewed them were correct as
counsel had them. When the conference had ended, but before the jury
entered, the judge asked, “Anything you would like to put on the record
regarding instructions?” Williams counsel only replied, “We stand on our
requested instructions.” As to the death of Bandy, the trial court instructed
the jury on murder, manslaughter, and reckless homicide with self-defense and
imperfect self-defense instructions.
Pursuant to Kentucky Rules of Criminal Procedure (RCr) 9.54(2):
No party may assign as error the giving or failure to
give an instruction unless the party’s position has
been fairly and adequately presented 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.
(emphasis added).
10
In Martin v. Commonwealth, this Court held that under RCr 9.54(2) the
burden is on the parties to make their instructional preferences known.12
Specifically, this Court stated:
RCr 9.54 imposes upon the party the duty to
inform the trial court of its preferences regarding
“the giving or failure to give” a specific jury
instruction. Therefore, when the allegation of
instructional error is that a particular instruction
should have been given but was not or that it should
not have been given but was given, RCr operates as a
bar to appellate review unless the issue was fairly and
adequately presented to the trial court for its initial
consideration.13
Because the issue is that the first-degree manslaughter instruction
should not have been given, but defense counsel failed to make specific
objection, appellate review is thus barred pursuant to RCr 9.54 and Martin.
We therefore decline to review the matter further.
C. THE COMMONWEALTH’S OPENING STATEMENT DID NOT WARRANT A
MISTRIAL
Williams argues that the Commonwealth’s opening statement which
commented on Williams not being blocked was in error and that a mistrial
should have been granted. The issue is preserved as Williams made a timely
objection and moved for a mistrial.
During opening statements, the Commonwealth made the following
comment, “He (Williams) was not trapped. In fact, no one in that group of men
12 409 S.W.3d 340, 346 (Ky. 2013).
13 Id. (emphasis added).
11
in the 300 block of East 13th Street was further west than Damondre Williams.
He had a choice. He could have walked away.” Defense counsel objected, and
a bench conference occurred in which Williams argued against the statement,
pursuant to Commonwealth v. Hasch, 421 S.W.3d 349 (Ky. 2013). Williams
argued that the Commonwealth may not encourage the jury to draw inference
that, just because an avenue was available for Williams, that his use of force in
self-defense was unnecessary.14 During the bench conference the
Commonwealth argued that their point was not about Williams’ avenue to
leave, but rather that Williams chose to advance his ground. Following the
bench conference, the Commonwealth continued their opening statement and
clarified the issue surrounding an available avenue to retreat. At the close of
opening statements defense counsel made a motion for a mistrial, which was
overruled. Defense counsel then asked that the jury be admonished. The trial
court did admonish the jury.
When reviewing a trial judge’s decision on a motion for a mistrial we
review for abuse of discretion. “A trial court has discretion in deciding whether
to declare a mistrial, and its decision should not be disturbed absent an abuse
of discretion.”15 In reviewing an argument of prosecutorial misconduct we
must first decide “if the misconduct is flagrant or if each of the following three
conditions is satisfied: (1) proof of defendant’s guilt is not overwhelming; (2)
14 Id. at 363.
15 Clay v. Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993).
12
defense counsel objected; and (3) the trial court failed to cure the error with a
sufficient admonishment to the jury.”16
“A mistrial is appropriate only where the record reveals ‘a manifest
necessity for such an action or an urgent or real necessity.”’17 Here, there was
no manifest necessity for a mistrial as the judge properly admonished the jury,
and the Commonwealth clarified their statement. This Court has previously
held that juries are presumed to follow a trial court’s admonition.18 Further,
Williams was able to testify on direct examination that he could not walk away
as he feared he would be shot in the back. Therefore, we determine the trial
court did not abuse its discretion denying a motion for mistrial.
This Court may reverse only if the misconduct is deemed so improper,
prejudicial, and egregious that it undermined the entirety of the proceedings.19
After in-depth review we cannot say that the prosecutor’s statement went
beyond advocacy into flagrant misconduct that would prejudice the outcome.
The trial court properly admonished the jury following defense counsel’s
objection, and the evidence against Mr. Williams was overwhelming.
16 Bowling v. Commonwealth, 553 S.W.3d 231, 242 (Ky. 2018).
17 Clay, 867 S.W.2d at 204 (quoting Skaggs v. Commonwealth, 694 S.W.2d 672,
678 (Ky. 1985)).
18 Martin v. Commonwealth, 170 S.W.3d 374, 381 (Ky. 2005).
19 Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
13
D. THE TRIAL COURT PROPERLY DENIED WILLIAMS’ MOTION TO
EXCLUDE DR. SCHRAGER’S TESTIMONY
Williams argues that Dr. Jason Schrager’s testimony should have been
excluded due to a discovery violation. The issue is preserved for appellate
review.
On June 18, 2018, one month before trial, the Commonwealth gave
notice that they intended to call two expert witnesses, the first being the
coroner and the second being Dr. Schrager. This notice specifically stated that
Dr. Schrager would “testify in conformity with the medical records, which were
previously tendered to the Defendant.” Despite repeated requests by the
defense counsel for discovery, on July 9, 2018, the defense informed the court
that they had not received any medical records as the notice had stated. The
Commonwealth informed the court that they were not in possession of Dr.
Schrager’s medical records, and that they were not sure why the notice stated
that they had sent them to defense counsel. The Commonwealth said it would
have the report summary of Dr. Schrager to the defense by Friday, July 13,
2018.
On Thursday, July 12, 2018, the defense performed an open file review
and discovered none of Dr. Schrager’s medical records were in the file. The
prosecutor met with Dr. Schrager on Friday but was unable to provide the
summary report to defense by the court ordered discovery deadline. Instead,
the Commonwealth sent the summary of Dr. Schrager’s findings the next day.
The Commonwealth argued that the defense received the summary less than
twenty-four hours after it was due, and that defense counsel still had several
14
days to review and prepare prior to trial. Dr. Schrager’s testimony was
important as his opinion that the gunshot wounds suffered by Broadus were
potentially fatal without medical treatment and were proof to establish “serious
physical injury” on the charge of first-degree assault.
On Monday, July 16, 2018, the day before the trial was to commence,
the parties appeared in open court and Williams moved to exclude Dr.
Schrager’s testimony at trial on grounds that the Commonwealth failed to meet
the discovery deadline for providing a summary of Dr. Schrager’s report
regarding the treatment of Broadus on July 13, 2018. The Commonwealth
argued that there was no prejudice because Williams knew about Broadus’
injuries and the existence of Dr. Schrager. When the judge asked defense if
they knew what Dr. Schrager would say, defense counsel was unresponsive
only claiming that it was a matter of principle. The court offered defense
counsel a continuance, but the defense declined. The court overruled Williams’
motion to exclude Dr. Schrager’s testimony and determined that the court
would limit the extent to which the doctor could describe the injuries.
On Tuesday, July 17, 2018, the issue of the discovery violation was again
raised as defense counsel informed the trial court that the Commonwealth had
only turned over the 700 pages of medical records the day before. The
Commonwealth maintained that it was unaware that they had the records in
their possession until they discovered the records on an employee’s hard drive.
The court again offered Williams a continuance so that counsel could review
the summary and all of Broadus’ medical records, but again defense counsel
15
declined the continuance, stating it would be a punishment to Williams if the
trial were continued.
During trial, Dr. Schrager testified that Broadus arrived at the hospital
with multiple gunshot wounds to his arms, body, and face. Broadus had a
tourniquet around his right arm. Dr. Schrager was worried that Broadus could
get blood in his airway, so he was intubated. Broadus was in the ICU for nine
days following the shooting. Dr. Schrager testified that it was his expert
opinion that the gunshot wounds would have proved fatal to Broadus absent
medical treatment. The defense chose not to cross-examine Dr. Schrager.
In matters dealing with discoveiy, pursuant to RCr 7.24(11) it is
determined that:
If at any time during the course of the proceedings it is
brought to the attention of the court that a party has
failed to comply with this rule or an order issued
pursuant thereto, the court may direct such party to
permit the discovery or inspection of materials not
previously disclosed, grant a continuance, or prohibit
the party from introducing in evidence the material not
disclosed, or it may enter such other order as may be
just under the circumstances, (emphasis added).
This Court has addressed similar matters dealing with discoveiy,
determining that it is within the discretion of the trial court to permit the
discoveiy or inspection of materials not previously disclosed, including granting
a continuance.20 This Court found in Berry, a case analogous to the case
before us, that the trial judge had offered the defense a continuance that was
20 Berry u. Commonwealth, 782 S.W.2d 625, 627 (Ky. 1990).
16
declined because the defendant did not want to prolong his time in jail awaiting
discovery.21 Ultimately, the Court held that upon rejecting the offered
continuance the party cannot then complain about its decision.22
In the present case, the Commonwealth was less than twenty-four hours
late in providing the summary of Dr. Schrager’s report regarding the specific
medical intervention he performed on Broadus. The Commonwealth argues
that defense counsel was well aware of Broadus’ injuries, that Broadus was
shot multiple times including in the face and that Dr. Schrager had treated
Broadus. Here, the trial court offered a continuance on multiple occasions to
defense counsel so they could review the summary and counsel declined this
remedy. Williams, after rejecting the continuance, cannot complain about the
decision that was made. Therefore, the trial judge did not err in allowing Dr.
Schrager’s testimony.
E. THE TRIAL COURT PROPERLY LIMITED WILLIAMS* ATTEMPTS TO
INTRODUCE INADMISSIBLE EVIDENCE
We review a trial court’s evidentiary ruling for an abuse of discretion.23
“Under this standard, a trial court’s evidentiary ruling will not be disturbed
unless its ruling was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.”24 Additionally, if an evidentiary error was committed,
21 Id. at 628.
22 Id.
23 Walker v. Commonwealth, 288 S.W.3d 729, 739 (Ky. 2009).
24 Id. *
17
harmless error may have occurred if “with fair assurance that the judgment
was not substantially swayed by the error.”25
Williams first argues that the trial court erred in limiting Arliss Parker’s
testimony as to what he heard Broadus say to Bandy right before Williams shot
Bandy. Arliss Parker was present the day of the incident and was standing
beside Williams prior to the shooting. During Parker’s testimony defense
counsel asked what Broadus and Bandy were doing immediately before the
shooting occurred. Parker testified that he was standing next to Williams, who
he testified was focused specifically on Bandy because he had a gun in his
waistband. Parker said that Broadus and Bandy had leaned into one another
and were talking loudly enough for Parker to hear. When the defense counsel
attempted to ask Parker what he heard them say, the Commonwealth objected,
and the trial court sustained the objection.
Williams now argues that the testimony regarding the conversation
should have been admitted as nonhearsay to prove Williams so feared Broadus
and Bandy that he believed it necessary to use deadly physical force in self-
protection. In Saylor v. Commonwealth, this Court addressed an exception to
when a victim’s prior acts of violence, threats, and even hearsay evidence of
such threats may be offered to prove defendant feared the victim.26 The
exception provides that if the defendant believed it was necessary to use deadly
physical force in self-protection, “provided that the defendant knew of such
25 Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009).
26 144 S.W.3d 812, 815 (Ky. 2004).
18
acts, threats, or statements at the time of the encounter.”27 The evidence
is offered to prove the defendant’s state of mind at the time he acted in self-
defense.28
In reviewing the trial court’s decision for abuse of discretion, we hold
there was no error in limiting Parker’s testimony. Williams was allowed to
testify as to what he heard Broadus say to Bandy just prior to the shooting.
Parker’s testimony could not be used to prove fear of Broadus or Bandy by
Williams because Williams would have to prove his knowledge of threats or
statements.29 Parker’s testimony, therefore, would have added nothing to what
Williams recalled in order to establish Williams’ state of mind when he acted in
claimed self-defense.
Williams second argument is that the trial court erred in limiting Robert
Bright’s testimony that Broadus was known to carry guns. Bright was present
at the time of the shooting and was standing next to Williams when Broadus
initially approached Williams. Defense counsel established that Bright saw
that Chaney, who arrived with Broadus, had a firearm. Defense counsel then
tried to establish that Broadus was known to carry a firearm. Bright was able
to answer in the affirmative, however the Commonwealth immediately objected,
and the trial judge sustained the objection. The trial court would not allow the
defense to establish Bright’s knowledge of Broadus reputation for carrying a
27 Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.20 at 112 (5th
ed. 2013) (emphasis added).
28 Saylor, 144 S.W.3d at 816.
29 Lawson, supra, footnote 27.
19
firearm. The trial court found that Bright would have needed to communicate
to Williams that he had observed Broadus carrying a firearm. The defense
argued that Bright’s testimony would have assisted in establishing Williams’
state of mind and fear of the victim.
On appeal Williams argues that the testimony should have been
admitted pursuant to Kentucky Rules of Evidence (“KRE”) 406, which states,
Evidence of habit of a person or of the routine
practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person or
organization on a particular occasion was in
conformity with the habit or routine practice.30
Defense counsel wanted Bright to testify that Broadus was known to carry a
gun. After the initial objection regarding Bright’s testimony was sustained,
defense counsel attempted to ask Bright “When you and Damondre (Williams)
were around Marcus (Broadus) did you ever see him with guns?” At that time
the Commonwealth again objected, and the judge asked both counsel to
approach. At the bench conference the Commonwealth stated, “This is the
exact same thing.” To which the defense counsel responded, “It is absolutely
relevant, because it goes to Damondre’s subjective belief. And any other violent
or aggressive acts of the victim is admissible for the purpose of establishing
that.” The trial judge sustained the objection and determined that Williams
would be allowed to testify to his personal knowledge of Broadus carrying a
firearm or any other prior bad acts known to him.
30 Kentucky Rules of Evidence 406.
20
Consequently, our review indicates that defense counsel failed to argue
KRE 406 and the habit testimony avenue was not brought to the attention of
the trial court. This Court has held that an appellate court is “without
authority to review issues not raised in or decided by the trial court.”31 Thus,
there is no basis for this Court to review the issue of habit evidence as it was
not raised before the trial court.
Here, Williams was able to testify to the reputation of Broadus that he
was known to carry firearms, that Broadus had shown Williams a Smith 8s
Wesson firearm he was carrying on a separate occasion, and that Williams
believed Broadus to be armed at the time of the altercation. Additionally, the
jury was able to hear Bright state affirmatively that Broadus was known to
carry a firearm before the Commonwealth could object. Therefore, in the
context of this trial, the exclusion of Bright’s testimony was not an abuse of
discretion by the trial judge.
III. CONCLUSION
For the foregoing reasons, we affirm the Kenton Circuit Court.
All sitting. Minton, C.J.; Lambert, Nickell, VanMeter and Wright, J.J.,
concur. Hughes and Keller, J.J.; concur in result only.
31 Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (citing
Matthews v. Ward, 350 S.W.2d 500, 501 (Ky. 1961)).
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COUNSEL FOR APPELLANT:
SHANNON RENEE DUPREE
Assistant Public Advocate
COUNSEL FOR APPELLEE:
DANIEL JAY CAMERON
Attorney General of Kentucky
COURTNEY J. HIGHTOWER
Assistant Attorney General
22