Olando Kennedy v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00220-CR
OLANDO KENNEDY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. 32900-CR
MEMORANDUM OPINION
A grand jury charged Olando Kennedy with two counts of aggravated robbery
(of Jeremiah Blair and Michael Solomon, respectively) with a deadly weapon. The
robbery occurred at an apartment complex near Navarro College in Corsicana, and Blair
was shot multiple times. In a jury trial, Kennedy was found guilty and assessed
sentences of forty and fifteen years, to be served concurrently, and a $10,000 fine on
each count. The trial court entered a judgment on each count. Kennedy appeals,
raising four issues. We will affirm.
The Evidence
Jeremiah Blair: Blair testified that on the evening of October 20, 2009, he and his
friend Michael Solomon went to Atavia Armstrong’s apartment in Blair’s van after
Armstrong had called him numerous times asking him to come over and hang out at
her apartment, which was in the West Park Row apartment complex and was an
upstairs unit. Also there was Darrick Bailey, who had a gun. Armstrong’s roommate
Antia Jones was there as well but was asleep in a bedroom. Bailey left soon after Blair
and Solomon’s arrival. Blair and Solomon were smoking marijuana and drinking. Two
black men wearing ski masks entered the apartment; at least one of them had a gun,
and they demanded Blair’s keys. Blair’s next memory of events was waking up in the
hospital with multiple gunshot wounds and being paralyzed from the chest down.
Michael Solomon: Solomon testified, like Blair, that they went to Armstrong’s
apartment in Blair’s van around 5:00 or 6:00 p.m. Solomon said that four other black
men were there, one of whom was Bailey. One of the other three was wearing a grill,
and those three left when Blair and Solomon arrived, while Bailey went back to a
bedroom with a gun that had been out on the table. Bailey then left about five minutes
later. Solomon said that he was smoking marijuana and watching television with Blair
and Armstrong. About twenty minutes later, Bailey returned to the apartment and
went into a bedroom. Two or three minutes later, three black men wearing ski masks
entered the apartment, and each of them had a gun. One of the gunmen was the man
who had been there earlier and had the grill, according to Solomon. When the gunmen
entered, Armstrong went into a bedroom.
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While pointing guns at Blair and Solomon, the gunmen demanded their money.
Solomon said that he gave them $200 and that Blair gave them $400. The gunman with
the grill demanded Blair’s keys and told the other two gunmen to go outside. Blair’s
keys were on the floor, and when Blair went for them, Solomon heard two shots. The
man with the grill shot Blair twice, and he fled the apartment. Blair went after the
shooter down the stairs, and Solomon heard eight more shots. While the robbery and
shooting were going on, Armstrong and Bailey never came out of the bedroom.
Solomon identified Olando Kennedy in the courtroom and said that he knew
Kennedy from high school football in Terrell. Solomon testified that Kennedy was one
of the three gunmen in the robbery, but Kennedy was not the one with the grill who
had shot Blair. Solomon said that although Kennedy was wearing a mask, he was able
to identify Kennedy because he remembered Kennedy’s body shape from high school
football.
Cameron Morris: Morris testified that he went to Navarro College and that he
knew Bailey, Kennedy, and Sherrod Bell; Bailey went to college with Morris. At the end
of the day after school, Morris said that he gave Bailey a ride to the nearby Park Row
apartments, where students would hang out after school. On the ride over, Bailey, who
was busy texting on his phone, told Morris that he was going to “get a lick” on a van at
the apartments. When they parked at the apartments, Kennedy and Bell got in Morris’s
backseat and they began talking about how they were going to get in Blair’s van,
including busting out a van window with the butt of a gun. They talked and made
gestures as if they had guns, but Morris did not see a gun on the three men.
Kennedy v. State Page 3
Morris told Bailey, Kennedy, and Bell that he would go up to his friend
Lewisha’s apartment and ask for a screwdriver for them, but Lewisha was not there and
he did not ask for a screwdriver from the person who had answered the door. He
returned to his car and told Bailey, Kennedy, and Bell that they did not have a
screwdriver and suggested that they get out of his car. Morris then went into the
apartment of his friend Darryl Welch, who lived directly below Armstrong’s apartment,
and Morris and Welch began to get ready to play a video game. Bailey followed Morris
briefly into Welch’s apartment but then went up to Armstrong’s apartment.
Just after hearing Bailey go up the stairs, he heard a bunch of footsteps and a
door being pushed in. He next heard a lot of commotion upstairs, including a girl
screaming, a man’s voice telling everyone to get on the floor, and then several gunshots.
After the commotion stopped, Welch cracked open his front door, looked out, and told
Morris they should leave through the back door. When they left, Welch told Morris
that Blair had been hit. Morris said he saw a lot of people running everywhere, but he
could not see their faces. Morris denied knowing about, planning, or being involved in
the robbery in which Blair was shot.
Darrick Bailey: Bailey first testified that he had been charged with aggravated
robbery and was being offered a plea deal of five years’ deferred adjudication in
exchange for his truthful testimony. He said that he was staying at Armstrong’s
apartment at the time of the offense and was going to Navarro College. He knew Bell, a
tattoo artist, and he had met Kennedy through Bell; Kennedy and Bell were roommates.
About a month before the offense, he had gotten into a fight with Blair over a girl.
Kennedy v. State Page 4
On the day of the offense, Bailey went to Kennedy and Bell’s apartment to
borrow a gun for protection because Armstrong’s cousin’s father was coming to get her
cousin and the cousin’s father was known to carry a gun. All three of them went to
Wal-Mart where Kennedy bought bullets. They returned to the apartment; Kennedy
and Bell each had guns. Bailey went to Armstrong’s apartment with the borrowed gun
and was sleeping on the couch when Blair and Solomon arrived. Armstrong woke
Bailey and told him to go sleep in the bedroom. Bailey went to the bedroom with the
gun, put on his shoes and shirt, and then left Armstrong’s apartment for the college. As
Bailey was leaving, Armstrong stepped outside and told him that Blair had some
“bricks” (cocaine bricks) in his van and to call Kennedy and Bell and tell them. Bailey
thought that Kennedy and Bell would steal the bricks from Blair’s van. Bailey then put
the borrowed gun in Bell’s cousin’s car at the college, and Bailey asked Morris for a ride
back to Armstrong’s apartment.
During the ride to the apartment, Bailey told Morris that Kennedy and Bell
“were about to hit a lick,” which Bailey thought meant they were going to steal the
cocaine bricks from Blair’s van. When they parked at the apartment, Kennedy and Bell
got in the back seat of Morris’s car; they had arrived in the car that Bailey had put Bell’s
gun in. Bell and Kennedy both had masks; Bell had a camouflage hunting mask, and
Kennedy had a clear mask with a string on the back, similar to a Halloween mask.
Bailey and Morris got out of the car, and they stopped by Welch’s apartment; Welch
was holding a black ski mask. Morris went in Welch’s apartment, and Bailey went
upstairs to Armstrong’s apartment, while Kennedy and Bell stayed in Morris’s car.
Kennedy v. State Page 5
Bailey went into Armstrong’s apartment and found Armstrong and Blair talking
to each other. Armstrong gave him a look that Bailey interpreted to mean that she
wanted to know if Kennedy and Bell were still outside. Bailey nodded that they were
and went outside to find Kennedy and Bell at the top of the stairs just outside the
apartment, and Kennedy was wearing the black ski mask. Kennedy pushed Bailey into
the apartment, and Armstrong went into a bedroom. Kennedy and Bell, with guns
drawn, told everyone, including Bailey, to empty their pockets, which they did. Blair’s
keys were on the floor, and Kennedy gave the keys to Bell and told him to go start the
van. Bell left, and Blair then wrestled with Kennedy over the gun and the gun went off.
When Kennedy slipped, Blair ran out of the apartment, and Kennedy ran after him and
shot at him. After waiting in the apartment a few minutes, Bailey ran to a friend’s
nearby apartment; he saw Blair on the ground as he ran away.
A friend drove Bailey to Ennis, where his mother picked him up. Bailey told his
mother what had happened, and she called police and told them of his involvement.
Bailey then met with police and gave them two statements. Bailey said that his role was
only to be a lookout while Kennedy and Bell stole the cocaine bricks from Blair’s van
and that he did not know they were going to commit robbery. Bailey testified that
Morris was wearing a grill that evening, but Morris was recalled as a witness and said
that while he did have a grill, he was not wearing it that evening.
Terrence Brown: Brown lived next door to Welch in a downstairs apartment and
said that he saw several men hanging out in the parking lot. He then saw Bailey at the
top of the stairs and Welch at the bottom by his door. Welch asked to borrow a
Kennedy v. State Page 6
screwdriver, and Brown loaned him one. Brown went back into his apartment and
soon heard a bunch of footsteps and commotion upstairs, including a man asking for
money, dope, and keys to a van. He next heard several shots come from the upstairs
apartment and then a couple more shots outside of the apartment, along with more
footsteps coming down the stairs. He opened the door and found Blair on the floor
with gunshot wounds. A woman in Brown’s apartment called 9-1-1. After that
evening, Brown found a gun clip on the ground in the area next to the apartments, and
he called police and gave it to them.1
Atavia Armstrong: Armstrong testified that she knew Kennedy and Bell, and the
day before the incident they told her they were going to buy bullets at Wal-Mart and to
shop for a clip. Regarding the day in question, she testified similarly to Solomon and
Bailey that Bailey was at her apartment with a gun and that he left soon after Blair and
Solomon arrived. They watched television and then went outside and talked while
Blair smoked a cigar, after which they returned to the apartment and were talking.
Bailey called Armstrong to ask if Blair and Solomon were still there and indicated that
he wanted to return to the apartment. He told Armstrong not to let Blair leave and
asked if Blair’s van was unlocked, to which Armstrong said she did not know. Bailey
then said that he was on his way over with Bell.
A couple of minutes later, Bailey came into the apartment, and when Blair
1
Two gun-shop employees identified Kennedy as being involved in the purchase of a 9mm clip three
days before the crime. The clip that Brown found was consistent with the one bought at the gun shop,
and it was found along the route taken by Kennedy from the apartment to the college after the shooting.
Also, a college coach who knew Kennedy testified that, around the time of the shooting, there was a
shooter-on-campus alert and that he saw Kennedy near the college’s intramural fields at that time.
Kennedy v. State Page 7
started to leave, Bailey got in front of him at the door. Two men wearing masks and
carrying guns then came up the stairs and were behind Bailey. Armstrong said that one
of the masked men was Bell because she recognized his voice and a tattoo near his eye,
and she admitted that she told police that the other masked gunman was Kennedy.
When she saw the guns, she ran to her bedroom. Bailey came into her bedroom, as did
Kennedy to ask who was in there, and Armstrong recognized Kennedy’s voice. After
Kennedy left her room, she looked through her cracked-open bedroom door and saw
Kennedy and Blair fighting with Kennedy holding a gun near Blair’s head, and a shot
went off in the air. Blair pushed Kennedy to the floor and ran toward the front door,
and Armstrong then saw Kennedy shooting at Blair and heard a lot of gunshots. Bell
had already left the apartment when the shooting began.
Armstrong then went outside to check on Bailey and found Blair wounded at the
bottom of the stairs. She met with police several times and gave several written
statements. She spoke with Kennedy after the incident and after she had first met with
police, and she said that Kennedy told her that he had tried to shoot Blair in the head
but he had run out of bullets. He also told her that he threw the gun in a lake or pond.
On cross, Armstrong admitted to giving inconsistent written statements to police
and to Kennedy’s attorney and investigators, to whom she admitted lying, but
Armstrong claimed that her trial testimony was the truth.
Accomplice-Witness Issues
The court’s charge instructed the jury that Bailey was an accomplice and gave an
accomplice-witness instruction for Bailey’s testimony. A person who participated in the
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same crime and who was later convicted of the offense under a plea agreement for his
participation is an accomplice as a matter of law. Brown v. State, 270 S.W.3d 564, 567
(Tex. Crim. App. 2008).
In his first two issues, Kennedy asserts that the evidence is insufficient to support
Kennedy’s convictions because the accomplice-witness testimony was not corroborated
and that the trial court erred in failing to instruct the jury that Morris and Armstrong
were also accomplices (Kennedy did not request an accomplice-witness instruction for
either Morris or Armstrong). Kennedy’s third issue asserts that he received ineffective
assistance of counsel because his trial counsel failed to request an accomplice-witness
instruction for either Morris or Armstrong.
More specifically, Kennedy’s first issue asserts that Morris and Armstrong were
accomplices as a matter of law or as a matter of fact, that their testimony could not be
used to corroborate Bailey’s testimony, and that the testimony of all three accomplices
was not corroborated.
Texas law requires that, before a conviction may rest upon an
accomplice witness’s testimony, that testimony must be corroborated by
independent evidence tending to connect the accused with the crime. This
accomplice witness rule creates a statutorily imposed review and is not
derived from federal or state constitutional principles that define the legal
and factual sufficiency standards. An accomplice is someone who
participates with the defendant before, during, or after the commission of
a crime and acts with the required culpable mental state. To be
considered an accomplice witness, the witness’s participation with the
defendant must have involved some affirmative act that promotes the
commission of the offense with which the defendant is charged. A
witness is not an accomplice witness merely because he or she knew of the
offense and did not disclose it, or even if he or she concealed it. In
addition, the witness’s mere presence at the scene of the crime does not
render that witness an accomplice witness. And complicity with an
Kennedy v. State Page 9
accused in the commission of another offense apart from the charged
offense does not make that witness’s testimony that of an accomplice
witness. In short, if the witness cannot be prosecuted for the offense with
which the defendant is charged, or a lesser-included offense of that
charge, the witness is not an accomplice witness as a matter of law.
A trial judge, therefore, has no duty to instruct the jury that a
witness is an accomplice witness as a matter of law unless there exists no
doubt that the witness is an accomplice. For instance, the instruction is
appropriate when the witness is charged with the same offense as the
defendant or a lesser-included offense or when the evidence clearly shows
that the witness could have been so charged. If the evidence presented by
the parties is conflicting and it remains unclear whether the witness is an
accomplice, the trial judge should allow the jury to decide whether the
inculpatory witness is an accomplice witness as a matter of fact under
instructions defining the term “accomplice.” However, as with an
accomplice as a matter of law, there must still be some evidence of an
affirmative act on the part of the witness to assist in the commission of the
charged offense before such an instruction is required.
Druery v. State, 225 S.W.3d 491, 498-99 (Tex. Crim. App. 2007) (citations omitted).
Here, neither Morris nor Armstrong was an accomplice to aggravated robbery as a
matter of law or as a matter of fact. See id. at 498 (“To be considered an accomplice
witness, the witness’s participation with the defendant must have involved some
affirmative act that promotes the commission of the offense with which the defendant is
charged.”) (emphasis added). The evidence does not show that either Morris or
Armstrong “performed any affirmative act in the commission of” aggravated robbery
or a lesser-included offense of aggravated robbery. See id. at 499-500. At best, the
evidence shows only that Armstrong was complicit and that Morris may have been
complicit in the offense of burglary of a vehicle (Blair’s van).2
2Kennedy does not assert that burglary of a vehicle is a lesser-included offense of aggravated robbery,
and the State demonstrates that it is not.
Kennedy v. State Page 10
Because Morris and Armstrong were not accomplices to aggravated robbery or
to a lesser-included offense of aggravated robbery as a matter of law or as a matter of
fact, their testimony could be used to corroborate Bailey’s accomplice-witness testimony
and was sufficient to do so. Moreover, Solomon’s identification of Kennedy as one of
the gunmen in the robbery corroborated Bailey’s testimony. We overrule issue one.
And because Morris and Armstrong were not accomplices, the trial court did not err in
failing to so instruct the jury, and his trial counsel was not ineffective in failing to
request an accomplice-witness instruction for them. Issues two and three are overruled.
Cross-Examination
In his fourth issue, Kennedy asserts that the trial court erred in barring him from
cross-examining Bailey and Armstrong about Bailey’s alleged sexual relationship with
Armstrong’s minor cousin. Kennedy’s basis for this line of cross-examination was to
establish that Kennedy had either disclosed or threatened to disclose to the minor’s
father the relationship between Bailey and the minor, thus showing Bailey’s bias against
Kennedy and giving Bailey a motive to lie about Kennedy’s involvement in the robbery.
Kennedy further theorizes that, because Bailey and Armstrong were close friends
(Bailey was “like a brother”) at the time, Armstrong was loyal to Bailey and her
testimony against Kennedy was in retaliation for Kennedy’s actual or threatened
disclosure of the relationship.
During Bailey’s testimony, the trial court disallowed Kennedy from asking him
about his relationship with the minor. Outside the presence of the jury, Kennedy
attempted to make an offer of proof on this subject, and Bailey refused to answer
Kennedy v. State Page 11
several questions about the relationship by asserting his Fifth Amendment right against
self-incrimination. See generally Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App.
1986) (stating that individual’s constitutional privilege against self-incrimination
overrides constitutional right to compulsory process); Trenor v. State, 333 S.W.3d 799,
805 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (same). In his brief, Kennedy appears
to concede that Bailey’s invocation of his Fifth Amendment right did not result in error:
“While Bailey asserted his 5th amendment rights, Armstrong had no such right in the
situation.” And because Kennedy does not raise an issue about the propriety of Bailey’s
exercise of his Fifth Amendment right, we overrule issue four as to Kennedy’s
complaint about the trial court’s refusal to allow Kennedy to question Bailey about the
relationship.
Kennedy also argues that he should have been allowed to cross-examine
Armstrong about Bailey’s alleged sexual relationship with Armstrong’s minor cousin
and that the trial court abused its discretion in disallowing that cross-examination.
Kennedy asserts on appeal a Confrontation Clause (Sixth Amendment) violation, but at
trial, when Kennedy attempted to question Armstrong about the relationship, his only
argument to the trial court was that Armstrong could be asked about it as a prior
inconsistent statement that Armstrong had made to Kennedy’s lawyer and investigator.
Kennedy cannot raise his Confrontation Clause argument as to Armstrong for the first
time on appeal. See TEX. R. APP. P. 33.1(a); Paredes v. State, 129 S.W.3d 530, 535 (Tex.
Crim. App. 2004) (objection on hearsay grounds failed to preserve error on
Confrontation Clause grounds). We thus overrule issue four as to Kennedy’s complaint
Kennedy v. State Page 12
about the trial court’s refusal to allow Kennedy to question Armstrong about the
relationship.
Having overruled all of Kennedy’s issues, we affirm the trial court’s judgments.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 28, 2013
Do not publish
[CRPM]
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