Dawan Q. Mulazim v. Commonwealth of Kentucky

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RENDERED: APRIL 29, 2021
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Supreme Court of Kentucky
2020-SC-0087-MR
DAWAN Q. MULAZIM APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE JULIE MUTH GOODMAN, JUDGE
NO. 15-CR-00592-003
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Duwan Q. Mulazim appeals his convictions arising out of two 2014
criminal events as to which a jury convicted him of murder, robbery in the first
degree, complicity to commit robbery in the first degree, two counts of receiving
stolen property under $500, assault in the second degree, and persistent felony
offender (PFO) in the first degree, for which he received sentences of life without
possibility of parole plus terms of years totaling seventy-six years, consecutive.
Mulazim appeals as a matter of right, Ky. Const. § 110(2)(b), raising various
claims of error. After careful review, we affirm the Fayette Circuit Court’s
judgment as to all issues arising from the guilt phase of the trial, but reverse
and remand with respect to the sentence and restitution in the final judgment.1
I. Factual and Procedural Background
In 2015, Mulazim and Quincinio Canada were indicted on multiple
counts arising out of three separate incidents occurring in June and July
2014: robbery at the Quality Inn, June 15; robbery and murder at the Austin
City Saloon, June 20; robbery on Second Street, July 16-17. The crimes and
investigations all occurred in Lexington. In Mulazim v. Commonwealth, 600
S.W.3d 183 (Ky. 2020), we set out the facts relating to the first two events:
On June 15, 2014, Shane Hansford and Mitchell Smith
travelled to Lexington, Kentucky, to help set up a booth for a gun
show. The two had a room at the Quality Inn near New Circle
Road. Hansford's girlfriend, Jessica Rutherford, met them for
dinner later that evening, and afterwards the three stopped by a
liquor store before returning to the Quality Inn.
Sometime around 3:00 a.m., Rutherford stepped outside the
hotel room to make a phone call, and Hansford followed her
outside to smoke. Hansford left the door to the room partially open
and joined Rutherford in an area that was well lit by surrounding
lights from the pool and parking lot. While the couple were
outside, two men appeared from around the corner and
approached them. The men pointed their weapons at Hansford
and Rutherford, demanded everything they had and forced them
into their hotel room. Smith heard the commotion and retrieved
Hansford's handgun, a .45 caliber Springfield XDS, from the
nightstand as he prepared to confront the intruders. One of the
men saw the gun and took it from Smith.
1 As a point of information, we note that the original presiding trial judge was
Hon. Pamela Goodwine, who was elected to the Court of Appeals in November 2018.
Judge Goodwine was replaced by the Hon. John E. Reynolds, who was appointed by
Governor Matthew G. Bevin on March 25, 2019. Exec. Order 2019-222. Judge
Reynolds presided over the October 2019 trial in this matter. Judge Reynolds was
replaced by the Hon. Julie Muth Goodman following the November 2019 election.
2
The man later identified as Mulazim instructed the three
victims to lie face down on the beds while his accomplice, Canada,
searched the drawers, Hansford's backpack, and under a mattress.
At trial, Hansford testified that prior to leaving the hotel room one
of the men looked at the other and said, “come on nephew.” When
asked which man made that statement, Hansford pointed at
Mulazim. He also identified Mulazim as the man that held him at
gunpoint, stating there was no doubt in his mind. Prior to trial
Hansford identified Mulazim as one of the robbers from a photo
lineup. Rutherford could not identify either of the robbers pre-trial,
and Smith could not identify Mulazim but made an equivocal
identification of Canada, choosing him and another person from
the photo lineup.
The men stole Hansford's and Smith's wallets, a phone, the
handgun, and a can of tobacco. Both Hansford and Rutherford
called 911 separately to report the robbery. Meanwhile, Smith
retrieved another handgun that was stored in their hotel room and
pursued Mulazim and Canada but could not catch them. Police
responded to the hotel where all three victims were visibly shaken.
The victims provided descriptions of the suspects that included
clothing type and color, hairstyle, and descriptions of the guns
they used. The police later met with the victims to obtain spent
casings from the stolen handgun and to present photo lineups.
At trial, the Commonwealth presented the testimony of a
police detective who obtained Mulazim's and Canada's cell phone
records and forensically examined Mulazim's phone. The phones
contained text messages in which Mulazim referred to Canada as
“nephew” and Canada referred to Mulazim as “unc.” The police
investigation also revealed that Canada's phone communicated
through a cell tower approximately 1700 feet from the Quality Inn
minutes before the 911 calls regarding the robbery.
On June 20, 2014, five days after the Quality Inn robbery,
Megan Price was celebrating her birthday with her husband,
Jonathan Price. The couple and a group of their friends met at
Austin City Saloon in Lexington. Megan and Jonathan went
outside a little after midnight to wait for their ride and two men
approached them. Megan described one of the men as having
dreadlocks and the other man as being shorter with short hair and
a dark shirt. One of the men held a gun to Jonathan's head and
told him to hand over his money, while the other man tugged at
Megan's purse as she tried to hand it over. Megan heard a
gunshot and fell, realizing she was shot in the leg. As Megan
handed the man with dreadlocks her purse, Jonathan punched the
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other robber and told Megan to run. Jonathan was also shot, and
the man with dreadlocks took his wallet as he fell to the ground.
Megan required surgery for her gunshot wound and survived, but
Jonathan died from his injuries. A surveillance camera from an
adjacent business captured the incident, although the quality of
the video played at trial was poor. Megan provided a description of
the robbers to the police.
Detective Tim Upchurch was assigned to investigate the
Quality Inn robbery and he entered the serial number of
Hansford's stolen Springfield .45 XDS handgun into a national
database for stolen weapons. The Bureau of Alcohol, Tobacco and
Firearms later recovered Hansford's stolen handgun during a
controlled street transaction with a man named Anthony Frye
approximately two and a half months after Jonathan Price's
murder. Detective Upchurch learned that police believed the same
kind of gun stolen at the Quality Inn may have been used in the
Austin City Saloon shooting based on the shell casings from the
murder scene. Those casings were later compared with casings
fired from the recovered handgun. Based on information received,
Mulazim and Canada were developed as suspects for the crimes at
both the Quality Inn and the Austin City Saloon.
600 S.W.3d at 187–88.2
On July 16, around midnight, Christopher Kemker and Rob Marques
had closed premises on Second Street when they were approached by two
African American men. One, with dreadlocks, was wearing a blue shirt and
hat; the other had short hair and was wearing a yellow shirt and a baseball
cap. At gunpoint, Kemker and Marques were forced face down on the ground,
although Marques was able to get a good look at one of the robbers.
Ultimately, the perpetrators fled on foot with Kemker’s and Marques’ wallets,
keys, an iPad, cellphone and a GPS system.
2 Much of this same evidence was developed in Mulazim’s October 2019 retrial
which is the subject of this appeal.
4
As noted, Det. Upchurch testified that shell casings from the Quality Inn
were consistent with the gun used at the Austin City Saloon. Detectives were
able to find surveillance footage from a liquor store close to the Austin City
Saloon in which Mulazim, wearing a New York Yankees cap, was identified in a
silver Chevrolet Malibu. The license plate on the car, as seen in the video, was
used to confirm the car belonged to Canada’s girlfriend.
Detective Robert Wilson investigated the Second Street robbery. From
another detective, he learned that Mulazim and Canada fit descriptions given
by Kemker and Marques. Det. Wilson presented photo lineups to Marques who
identified Canada as one of the perpetrators. Neither Kemker nor Marques
were able to identify Mulazim from a photo lineup.
After the Second Street robbery, the property manager at Mulazim’s
apartment complex observed Mulazim’s wife tossing bags into a dumpster.
Because the manager thought this an odd occurrence, she had the bags
retrieved and found wallets, keys, ID’s and credit cards. After the police were
called, Sergeant Matthew Silver responded and found personal items belonging
to Kemker and Marques. After learning that these two had been victims of a
robbery, Sgt. Silver searched other dumpsters at the complex and found a dark
navy baseball cap with a Yankees emblem and 9 mm. bullets. Mulazim’s DNA
was found on the cap.
In June 2015, Mulazim was indicted for Price’s murder and eight counts
of robbery in the first degree, one count of assault in the second degree,
tampering with physical evidence, and PFO in the first degree. Judge
5
Goodwine severed the Second Street incident from the first two. As a result, in
his first trial, Mulazim was convicted of three counts of robbery in the first
degree, those at the Quality Inn, the tampering count and PFO in the first
degree. The trial court imposed the jury’s recommended sentence of 60 years.
We affirmed. 600 S.W.3d at 203. The jury was unable to reach a verdict on
the counts occurring at the Austin City Saloon as to Mulazim.3
While Mulazim’s prior appeal was pending, the Commonwealth
proceeded to retry Mulazim on the Austin City Saloon counts, and also the
Second Street counts. Although Judge Goodwine had severed the two events,
Judge Reynolds granted the Commonwealth’s motion to rejoin and try them
together. As noted, Mulazim was convicted and Judge Goodman imposed the
jury’s recommended sentence. Mulazim appeals. Further facts as necessary
for our analysis will be presented below.
II. Analysis
Mulazim raises ten issues in this appeal. We address each in turn.
A. Rejoinder of the Second Street Robbery.
Mulazim’s first argument is that the trial court erred in rejoining the
Second Street robbery with the retrial of the Austin City Saloon crimes.
Mulazim claims not only was joinder improper but doing so created unfair
prejudice. This issue is preserved. We review a trial court’s decision to join, or
3 Canada was acquitted of all charges related to the events at Austin City
Saloon, but the jury found him guilty of three counts of first-degree robbery at the
Quality Inn and of being a first-degree PFO. He received a sentence of fifty years on
each count to run concurrently. Mulazim, 600 S.W.3d at 188–89.
6
conversely to sever, offenses for an abuse of discretion. Peacher v.
Commonwealth, 391 S.W.3d 821, 834 (Ky. 2013).
RCr4 6.18 provides for joinder of offenses in an indictment “if the offenses
are of the same or similar character or are based on the same acts or
transactions connected together or constituting parts of a common scheme or
plan.” RCr 8.31, however, requires separate trial if a defendant “is or will be
prejudiced” by joinder for trial.
In Peacher, we addressed the interplay between the two rules, focusing
on the similar nature of certain crimes, whether they appeared to be a part of a
common scheme or plan, and the specific proof involved, but also the prejudice
to a defendant inherent in joinder. 391 S.W.3d at 836–37. We also noted the
advantage of a joint trial in terms of cost and burden savings to courts, parties,
witnesses and victims, “especially [] when the evidence for the separate counts
will overlap to a considerable extent.” Id. at 836. Particularly apt to the
instant case is our statement concerning the inherent waste in requiring “the
Commonwealth to put on the same proof multiple times, to require witnesses
to attend and give the same testimony at different trials, and to require
separate juries to consider substantially identical evidence.” Id.
In Peacher, the focus for proper joinder was ultimately the proof
presented and whether a nexus between the crimes was shown. Citing several
4 Kentucky Rules of Criminal Procedure.
7
cases, such as Parker v. Commonwealth, 291 S.W.3d 647 (Ky. 2009), and
Debruler v. Commonwealth, 231 S.W.3d 752 (Ky. 2007), we held,
the required nexus does not arise simply from the proximity of the
alleged crimes in time and space, although proximity is certainly
relevant, but rather from a “logical” relationship between them,
some indication that they arose one from the other or otherwise in
the course of a single act or transaction, or that they both arose as
parts of a common scheme or plan.
391 S.W.3d at 837.
In this case, the crimes involved demonstrate that they arose as part of a
common plan: two men on foot approach victims late at night, or in the wee
hours of the morning, in public outdoor locations, and at gunpoint rob the
victims. Severance is required only if joinder would result in “undue
prejudice.” 391 S.W.3d at 838; see also Elam v. Commonwealth, 500 S.W.3d
818, 822 (Ky. 2016) (severance required if joinder would be so prejudicial as to
be unfair or unnecessarily or unreasonably hurtful). “[I]n assessing whether
joinder resulted in undue prejudice, we have asked, with KRE[5] 404(b)
particularly in mind, whether evidence necessary to prove each offense would
have been admissible in a separate trial of the other.” Peacher, 391 S.W.3d at
838 (internal quotations and citations omitted). “If so, then the evidentiary
objections to joinder, at least, have been deemed answered.” Id.
Here, the Commonwealth presented proof against Mulazim developed as
a result of investigations into the Quality Inn robbery. Mulazim and Canada
were positively identified by the Quality Inn victims. Shell casings from the
5 Kentucky Rules of Evidence.
8
gun stolen by Mulazim, a .45 caliber Springfield XDS, matched a shell casing
recovered at the Austin City Saloon. Mulazim, wearing a Yankees cap, was
positively identified in surveillance video taken minutes before the Austin City
Saloon shootings. Megan Price, the survivor from that crime, provided a
general description of the perpetrators that matched that given by the victims
of the other two events. Most importantly, the evidence recovered from
Mulazim’s apartment complex dumpster, which Mulazim’s wife threw out,
indisputably tied Mulazim to the Second Street robbery (Kemker’s and
Marques’ personal effects) and also linked him to the Austin City Saloon
shootings (Yankees cap). Just as evidence of the Quality Inn crimes was
properly admissible in the trial of the Austin City Saloon shootings, so too was
the evidence of the Second Street crime. Thus, the trial court did not abuse its
discretion by joinder of the Second Street offenses.
B. Failure to Instruct on Lesser-Included Offenses.
Mulazim argues that the trial court erred in failing to instruct on second-
degree manslaughter as a lesser-included offense of wanton murder. This
issue was preserved by a verbal and written request for the instruction.
We review a trial court’s decision not to give a jury instruction for abuse
of discretion. Williams v. Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005).
Abuse of discretion occurs when a trial court’s decision is arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted).
9
Under RCr 9.54, a trial court has a duty to instruct the jury on the whole
law of the case, including “instructions applicable to every state of the case
deducible from or supported to any extent by the testimony.” Hudson v.
Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012) (quoting Thomas v.
Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005)). A trial court generally must
instruct the jury on lesser-included offenses when requested and justified by
the evidence. Wombles v. Commonwealth, 831 S.W.3d 172, 175 (Ky. 1992). No
duty exists to instruct on a theory without evidentiary support. Hudson, 385
S.W.3d at 416.
In the indictment, Mulazim and Canada were charged with murder. KRS
507.020. Specifically, it charged these two “committed the offense of Murder
when with the intention of promoting or facilitating the commission of the
offense, they, acting together, engaged in a conspiracy to commit the offense, or
aided, counseled or engaged the other in conduct that led to the death of
[Jonathan Price] by shooting him under aggravating circumstances.” The trial
court provided the jury with appropriate definitions as to “complicity,”
“intentionally,” and “wantonly.” It then provided the jury with six possibilities
as to murder: Intentional Murder, Complicity to Intentional Murder, Intentional
Murder Principal or Complicitor, Wanton Murder, Complicity to Wanton
Murder, and Wanton Murder Principal or Complicitor. The instruction for
Intentional Murder Principal or Complicitor stated,
If you believe from the evidence beyond a reasonable doubt
that the Defendant, Dawan Qaadir Mulazim, is guilty of Intentional
Murder under Instruction No. 2 or Complicity to Intentional Murder
10
under Instruction No. 3, but you are unable to determine from the
evidence whether the defendant committed this crime as Principal
under Instruction No. 2 or Complicitor under Instruction No. 3, then
you will find him guilty of Murder, Principal or Complicitor, under
this instruction and so state in your verdict.
The jury found Mulazim guilty under this instruction. Our review of the record
is that the trial court properly instructed the jury on the permutations of
complicity. As noted in Neal v. Commonwealth,
Conspiracy, as envisioned by the statute governing complicity,
does not necessarily require detailed planning and a concomitant
lengthy passage of time. All that is required is that the defendants
agreed to act in concert to achieve a particular objective and that at
least one of them committed that objective. Commonwealth v.
Wolford, Ky., 4 S.W.3d 534 (1999). There was sufficient evidence of
a conspiracy which would lead to a reasonable interpretation that
Neal and Strong shot the victim so they could rob him. The
instructions were not prejudicial and Neal received a unanimous
verdict.
95 S.W.3d 843, 850 (Ky. 2003). Mulazim does not argue that the trial court
improperly instructed on complicity, only that he was entitled to the lesser-
included instruction on manslaughter in the second degree.
Wanton murder includes as an element that the defendant “wantonly[6]
engages in conduct which creates a grave risk of death to another person and
6KRS 501.020 defines mental states for application in the Kentucky Penal
Code. “Wantonly” is defined as follows:
A person acts wantonly with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and
consciously disregards a substantial and unjustifiable risk that the result
will occur or that the circumstance exists. The risk must be of such nature
and degree that disregard thereof constitutes a gross deviation from the
standard of conduct that a reasonable person would observe in the
situation. . . .
KRS 501.020(3).
11
thereby causes the death of another person.” KRS 507.020(1)(b). By contrast,
manslaughter in the second degree occurs when a person “wantonly causes the
death of another person[.]” KRS 507.040.
The Commonwealth argues that an armed perpetrator approaching a
victim with the intent to rob manifests extreme indifference to the value of
human life. It cites Crane v. Commonwealth, in which this Court held that the
defendant was not entitled to the lesser-included instruction of second-degree
manslaughter. 833 S.W.2d 813 (Ky. 1992). In the Court’s view, the evidence, a
gunshot to the back of a store clerk’s head, could only support an inference
that the shot was fired intentionally or under circumstances indicating extreme
indifference to the value of human life. Id. at 817. The Court believed the
physical evidence belied the defendant’s statement to police that he had just
fired his gun in the air.
More recent caselaw interpreting the interplay of KRS 507.020(1)(b) and
507.040, admittedly, supports a requirement that the charge of wanton murder
generally requires the lesser-included instruction of manslaughter second-
degree. See Wolford, 4 S.W.3d at 539–40 (reiterating longstanding rule that
with a claim of alibi or circumstantial evidence of the defendant’s state of mind
when he killed the victim, the trial court appropriately is to “instruct on all
degrees of homicide and leave it to the jury to sort out the facts and determine
what inferences and conclusions to draw from the evidence[]”); Brown v.
Commonwealth, 975 S.W.2d 922, 924 (Ky. 1998) (stating “whether wanton
conduct demonstrates extreme indifference to human life is a question to be
12
decided by the trier of fact[]”); see also Rogers v. Commonwealth, 86 S.W.3d 29,
44–45 (Ky. 2002) (defendant was entitled to lesser-included criminal homicide
instructions, including second-degree manslaughter, since defendant’s
statements permitted reasonable doubts as to his state of mind). The fact-
finder, the jury, thus, is to make the determination, based on evidence
presented, as to whether the circumstances manifested an extreme indifference
to human life. See Robert G. Lawson & William H. Fortune, Kentucky Criminal
Law § 8-2(d)(2), at 328–30 (1998) (noting Kentucky Penal Code abolished
concept of felony murder, and that participation in a felony which results in a
death is a relative rather than a determinative factor).
In Wolford, however, this Court also noted that all the cases rejecting
entitlement to a manslaughter second-degree instruction involved “either an
admission by the defendant or uncontradicted testimony by an eyewitness
with respect to who killed the victim, how and why.” 4 S.W.3d at 538
(emphasis added). The Court further explained, “when the evidence is entirely
circumstantial and only establishes the corpus delicti and other circumstances
from which the defendant’s connection with the crime might be inferred, the
jury should be instructed on all degrees of homicide[.]” Id. at 539.
Mulazim argues that Megan Price did not see her husband being shot,
and, therefore, who shot him and why was purely circumstantial. Our review
of her testimony discloses otherwise. On the Commonwealth’s direct
examination, Ms. Price testified, as follows:
13
CW: Alright. After, I guess, the man with the dreads took the
purse off of you, and then what did you see Jonathan and
the other person doing?
MP: Physically fighting.
CW: OK. Could you tell how that started?
MP: No.
CW: OK. And when they were physically fighting, where are they?
MP: They were closer to this truck here. Kind of, you know,
beside it . . . in this, . . . in that parking space there [pointing
to a parking space in a photograph].
CW: And then when you say “physically fighting,” you can have a
seat. When you say “physically fighting,” what are they
doing?
MP: I, . . . I had seen Jonathan get shoved into that truck there.
CW: Into . . .?
MP: That one.
CW: This truck here?
MP: Yes. Into the side of it.
CW: OK. You said you saw him . . . get shoved into it by the
other man?
MP: Yes.
CW: Alright. And when you say “shoved,” what did you see?
MP: Hit.
CW: Hit? Sorry.
MP: Hit.
CW: Hit?
MP: Yes.
CW: Like punched?
MP: Yes.
CW: Punched by the other person?
MP: Yes.
CW: OK. And then punched, and what then did Jonathan do?
MP: He had fallen, he was hit into the side of . . . he fell into the
side of the truck and then fell to the ground.
14
CW: And then what happened?
MP: During this time there were two gunshots. It was all very
fast. While the purse was being torn off of my body, was the
first gunshot, and as he was pushed into this truck was a
second gunshot.
CW: Do you know . . . Do you know who . . . who got shot?
MP: Both of us.
CW: Both of us. Do you know where you got shot?
MP: In my left femur. My left leg.
CW: And do you know where Jonathan got shot?
MP: No.
CW: How did you . . . did you know at that point, when you talk
about hearing the gunshots, did you know at that point he
had been shot?
MP: No.
CW: Do you know who shot you?
MP: Yes.
CW: Who shot you?
MP: The man with the dreadlocks.
CW: And then you said there was a second shot, you didn’t
realize Jonathan had been shot. But, do you know who fired
the second shot?
MP: Yes.
CW: Who was that?
MP: The man with the short hair and the dark shirt.
CW: OK. And how do you know that.
MP: Because . . . It’s hard to explain. I was down on the ground
and saw it happen.
CW: Saw the shooting happen?
MP: Mm-hmm [affirmative].
CW: Where was Jonathan when the other man shot?
MP: Lying face down.
Her testimony was NOT that she did not see her husband get shot. Her
testimony was that she did not realize initially that he had been shot, but she
15
saw the man with short hair wearing the dark shirt shoot the second shot. As
stated in Wolford, this testimony provides the evidence of “who killed the
victim, how and why.” 4 S.W.3d at 538. On cross-examination, Ms. Price
conceded that at an earlier time, she told police that she did not know who
shot Jonathan. This may be the reason the jury found Mulazim guilty of
Murder, Principal or Complicitor, under Instruction No. 4.
As a result, the trial court’s ruling in refusing to give an instruction on
the lesser-included offense of manslaughter in the second degree was not an
abuse of discretion.
C. Failure to Strike Certain Jurors.
Mulazim’s third claim relates to the death penalty qualification of six
jurors as to whom the trial court denied a motion to strike for cause and whom
Mulazim subsequently struck by peremptory challenges.
As an initial matter, we question whether these challenges are preserved
for appellate review. In Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020),
we held that in order to preserve the alleged error that the trial court failed to
strike a juror for cause, the defendant must (1) move to strike the juror and be
denied; (2) exercise a peremptory strike on that juror and identify a different
juror upon which he would have otherwise used that peremptory strike;
(3) use all his peremptory strikes; and (4) the juror he would have otherwise
used a peremptory strike on must sit on the jury. Id. at 891–92 (emphasis
added) (citing Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009)).
While Mulazim moved to strike six jurors for cause, nos. 5213, 5302, 5326,
16
5414, 5448, and 5464, and used his peremptory strikes on them, he only
generally listed six different jurors he would have peremptorily struck, nos.
5243, 5389, 5257, 5514, 5313, and 5494 (listed in order by Mulazim). He
failed to specify or link one of these different jurors with the juror not struck
for cause. Mulazim thereby failed to comply with second preservation
requirement listed.
The wisdom of this rule is shown by the fact that of the different jurors,
the second list, only three, nos. 5389, 5257 and 5494, sat on the case, found
Mulazim guilty and recommended his penalty.7 Another consideration, as we
noted in the first appeal of this case, Mulazim, 600 S.W.3d at 195–97, is that
Mulazim was granted more peremptory strikes than he was entitled under RCr
9.40. Under this rule, he was entitled to nine peremptory challenges; yet, in
this proceeding, the trial court granted the parties twelve peremptory strikes,
three more than required. Mulazim, thus, received more benefit than the rule
allows.
While the foregoing disposes of Mulazim’s voir dire claims, we will briefly
discuss the six jurors Mulazim argues should have been struck for cause.
RCr 9.36(1) requires the trial court to dismiss a juror for cause “[w]hen there is
reasonable ground to believe that prospective juror cannot render a fair and
impartial verdict on the evidence[.]” Determining whether a prospective juror
7 Juror nos. 5243 and 5514 were peremptorily struck by the Commonwealth,
and juror no. 5313 was eventually selected as one of the alternates and did not
deliberate.
17
must be excluded “lies within the sound discretion of the trial court, and
unless the action of the trial court is an abuse of discretion or is clearly
erroneous, an appellate court will not reverse[.]” Fugett v. Commonwealth, 250
S.W.3d 604, 613 (Ky. 2008) (citing Pendleton v. Commonwealth, 83 S.W.3d 522,
527 (Ky. 2002)).
As noted, Mulazim argues that the trial court committed reversible error
by failing to strike six jurors for cause. As to juror nos. 5213, 5302,8 5326,
5414 and 5464, Mulazim contends they each expressed opinions which
indicated an unwillingness to consider the lower range of penalties for his
crimes, or to consider mitigating evidence. While these jurors admittedly
present a “close call,” after taking into consideration the “totality of the
circumstances” surrounding voir dire, we disagree with Mulazim. See Fugett,
250 S.W.3d at 613. In coming to our conclusion, we note that each juror
initially expressed no reservations about considering the entire gamut of
penalties. Only after being presented with a stark and dire hypothetical
regarding a charge for murder and an aggravating circumstance did the jurors
display hesitation about the sufficiency of lesser penalties, and the possible
impact of relevant mitigating factors. Crucially, when the jurors were given
8 Mulazim also contends that juror no. 5302’s friendship with several police
officers is grounds for her dismissal. However, as we stated in Brown v.
Commonwealth, “a close relationship to a police officer does not, standing alone, give
rise to a presumptive bias.” 313 S.W.3d 577, 597 (Ky. 2010). Since Mulazim provides
no other indicators of bias, the claim fails.
18
clarifying information, or asked follow-up questions, each recommitted to their
original position.
Our conclusion comports with the decision this Court reached in Harris
v. Commonwealth, 313 S.W.3d 40 (Ky. 2010). In a factually similar scenario,
the Harris court reasoned that jurors are not immediately disqualified simply
because they favor “severe penalties, so long as he or she can consider the full
range of penalties.” Id. at 46 (citing Soto v. Commonwealth, 139 S.W.3d 827,
849 (Ky. 2004)). With regards to mitigating factors, the Harris court explained
that a defendant is not entitled to individual jurors who, “at the outset . . . view
particular mitigating factors as having a mitigating effect.” Id. at 47.
Consequently, when the jurors in Harris expressed hesitancy about specific
mitigating factors, such as low IQ or abusive childhood, they were not
incapable of rendering an impartial verdict when the challenged jurors
indicated that their “penalty decision would be based not only on the crime but
on its circumstances as well.” Id. at 48. The key in Harris, as in this case, is
not simply the jurors’ predispositions, but their willingness to reserve judgment
until all the evidence has been presented and to comport their decision with
the law given.
As to juror no. 5448, Mulazim argues she should have been struck for
cause because she evaded his counsel’s questions regarding a Facebook post
she made about football players kneeling during the national anthem.
Specifically, he contends that the combination of her post and the subsequent
exchange at voir dire indicated a reasonable potential for racial bias against
19
him. Mulazim’s argument is not supported by the evidence. As an initial
matter, whether the post existed is unclear. Regardless, the exchange between
this juror and counsel was simply not substantive enough to establish an
inference of bias. When asked if she followed football, juror no. 5448 expressed
a greater interest in baseball, and when asked if there was a legitimate reason
for players to kneel she simply stated that she was unsure. Given the
circuitous questions and ambiguous answers we cannot conclude that the trial
court abused its discretion by retaining juror 5448.
D. Striking Two Jurors for Cause.
Mulazim next argues that the trial court erred in granting the
Commonwealth’s motion to strike two jurors, nos. 5023 and 5294, for cause.
As with all jury selection determinations, we review the trial court for “abuse of
discretion, or [] clearly erroneous” decisions. Fugett, 250 S.W.3d at 613
(internal citation and quotation omitted). When determining whether a
prospective juror’s views on capital punishment merit dismissal, the proper
test is “whether the juror’s views would ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and
his oath.’” Hunt v. Commonwealth, 304 S.W.3d 15, 45 (Ky. 2009) (quoting
Wainwright v. Witt, 469 U.S. 412, 424 (1985)).
Both jurors meet the threshold for dismissal set out in Hunt. By stating
that they would either ask to be excused from their duty or otherwise dismiss
the death penalty out of hand, neither juror exhibited that they would be
“willing to consider all of the penalties provided by state law[.]” 304 S.W.3d at
20
45 (quoting Witherspoon v. Illinois, 391 U.S. 510, 522 (1968)). During voir dire
both juror nos. 5023 and 5294 explicitly voiced uncertainty about their duties
to consider the death penalty. Juror no. 5023 went so far as to indicate that
she would ask to be excused during deliberation if she could not convince her
prospective fellow jurors to set aside the death penalty. And juror no. 5294
stated that he would only agree to consider the death penalty if he could still
say no, before reading a self-prepared list of qualities he believed qualified him
for jury duty. Based, in part, on these responses, the trial court properly
dismissed both jurors for cause.
E. Admission of KRE 404(b) Evidence.
Mulazim’s next claim relates to the trial court’s admission of KRE 404(b)
evidence about the Quality Inn robbery and the tampering with physical
evidence charge. This issue is preserved and, similarly to issues regarding jury
instructions, we review issues as to the admissibility of evidence under an
abuse of discretion standard. English, 993 S.W.2d at 945.
KRE 404(b) states, as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to
the case that separation of the two (2) could not be accomplished
without serious adverse effect on the offering party.
21
To some extent, this issue has already been addressed in connection
with Mulazim’s argument as to improper joinder of the Second Street robbery.
We agree with the Commonwealth that the evidence from the Quality Inn and
the apartment complex dumpster were interrelated: the .45 caliber Springfield
XDS stolen from the Quality Inn matched the shell casing at Austin City
Saloon. The video surveillance showed Mulazim wearing a Yankees cap
minutes before the Austin City Saloon murder/robbery. A Yankees cap with
Mulazim’s DNA was recovered from the dumpster. These pieces of evidence
establish plan and identity (Mulazim specifically) and are inextricably
intertwined with other evidence essential to the case within the meaning of
KRE 404(b). Mulazim seems to claim that this evidence merely established
that two black men committed these crimes. To the contrary, the
Commonwealth’s evidence was to establish that Mulazim committed the
crimes.
Evidence admitted under KRE 404(b) is still subject to analysis under
KRE 401, 402 and 403 for relevance, probative value and prejudice. Bell v.
Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). Relevant evidence is defined
as “evidence having any tendency to make the existence of any fact . . . of
consequence . . .” more or less probable. KRE 401. Further, KRE 402 provides
that “[a]ll relevant evidence is admissible . . .” unless excluded by constitution,
statute or other rules, and irrelevant evidence is inadmissible. And, relevant
evidence “may be excluded if its probative value is substantially outweighed by
the danger of undue prejudice[.]” KRE 403. As noted in Hall v.
22
Commonwealth, the bar set by KRE 401 and 402 is a low one, since “any
evidence that tends to make a fact in consequence more or less probable, even
if minimally so[,]” is presumptively admissible. 468 S.W.3d 814, 832 (Ky.
2015). Moreover, “[t]he probative value of evidence is measured by the strength
of its tendency to prove one side or the other of a material issue in the case.”
Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 717 (Ky. 2009).
As for the prejudice determination, prejudicial evidence is not prohibited
because all evidence is to some extent prejudicial, in the sense of being
detrimental to one party’s case. Webb v. Commonwealth, 387 S.W.3d 319, 328
(Ky. 2012). The proper measurement is whether the evidence’s “probative value
is substantially outweighed by the danger of undue prejudice[.]” KRE 403.
This Court has stated the test another way: is the defendant “unduly
prejudiced, i.e., whether the prejudice to him was unnecessary and
unreasonable.” Price v. Commonwealth, 31 S.W.3d 885, 888 (Ky. 2000).
We agree with the Commonwealth that the fact that the gun taken from
the Quality Inn, where Mulazim was identified as a perpetrator, was used in
the Austin City Saloon murder, less than a week later, made it more probable
that Mulazim was present at Austin City. The Quality Inn crimes were
therefore highly relevant. The tampering charges, indicating a guilty state of
mind, and which were discovered and reported by the apartment complex
manager, uncovered both the Yankees cap, also linking Mulazim to Austin City,
and Kemker’s and Marques’ wallets and personal property, linking Mulazim to
23
the Second Street robbery. The Quality Inn robberies were highly probative of
the Austin City Saloon perpetrators.
The trial court did not abuse its discretion in the introduction of all the
evidence.
F. Impeachment of Joy Birch by Telephone Call with Mulazim.
Mulazim’s sixth issue involves his claim that the Commonwealth violated
RCr 7.24(1) by failing to disclose, pre-trial, Mulazim’s telephone call with Joy
Birch. Mulazim’s argument is that the trial court’s allowing the
Commonwealth to play a recording of the call was an abuse of discretion. This
issue was preserved by contemporaneous objection at trial. We review the trial
court’s evidentiary rulings for an abuse of discretion. English, 993 S.W.2d at
945.
Birch was Mulazim’s alibi witness and claimed she was with Mulazim
when he was shown in the surveillance video at the liquor store drive-thru
window and stayed with him until approximately 2:00 a.m. On direct
examination, Birch denied speaking with Mulazim after that night. On cross-
examination, she again denied speaking to Mulazim since that night, and
denied speaking with him on September 29, 2019, a little less than a month
before trial. The Commonwealth then offered to play an audio recording of a
telephone call on that date between Mulazim and Birch. Mulazim objected as
the call constituted impeachment evidence the Commonwealth was required to
24
disclose and turn over to the defense.9 The trial court overruled the objection
and the recording was played.
RCr 7.24(1) requires the Commonwealth, upon written request by the
defense, to disclose “any oral incriminating statement known by the attorney
for the Commonwealth to have been made by a defendant to any witness,
and to permit the defendant to inspect and copy or photograph any relevant (a)
written or recorded statements or confessions made by the defendant[.]”
(emphasis added). Mulazim, however, does not argue that the contents of the
call incriminated him. His argument is that the call was used to impeach
Birch’s testimony and to eviscerate her credibility. To the extent Mulazim
claims the Commonwealth violated RCr 7.24(1) because the telephone call
constituted an incriminating statement, that claim is simply untenable.
Arguably, the Commonwealth had an obligation to disclose this
telephone call under RCr 7.24(1)(a) as a recorded statement made by Mulazim
albeit one which was not incriminating as to him. Mulazim had filed a Motion
for Discovery on July 24, 2015, which covered both “[a]ny and all statements . .
. or words spoken by Mr. Mulazim” and “[a]ny . . . audio tapes which . . . are
possibly relevant to the impeachment of any witness.” On September 30, 2015,
the Commonwealth filed its Discovery Compliance Notice, which included
multiple items, stating “Discovery is available until the resolution of this case
at https://portal.lexingtonprosecutor.com. The Notice also provided “the
9 Mulazim’s brief and reply brief refer to Birch’s testimony from the first trial
when the jury failed to reach a verdict. Obviously, the first trial occurred in 2018 and
this phone call was made in September 2019.
25
Commonwealth states that the provided discovery will be supplemented with
any and all discoverable and/or exculpatory information that may come into its
possession, custody or control prior to any plea or trial in this matter.” In
Dixon v. Commonwealth, 519 S.W.3d 396 (Ky. App. 2017), the Court of Appeals
correctly noted “our law indicates that non-exculpatory discovery is a vehicle
driven by the defense.” Id. at 400 (footnote omitted). As a result, Mulazim has
the burden of showing that he took advantage of the Commonwealth’s portal
and that the complained of recording was unavailable. This he fails to allege.
The trial court did not abuse its discretion in permitting it to be played.
Mulazim’s claim as to the Birch telephone call fails.
G. Exclusion of Canada’s Acquittal from the First Trial.
Mulazim’s seventh argument is that the trial court erred in its exclusion
of Canada’s acquittal from the first trial. This issue is preserved. We review a
trial court’s decisions on the admission or exclusion of evidence for abuse of
discretion. Muncy v. Commonwealth, 132 S.W.3d 845, 847 (Ky. 2004).
Mulazim’s argument is that proof of Canada’s acquittal was essential to
Mulazim’s defense due to the Commonwealth’s theory of the case that Mulazim
and Canada participated in the three robberies together - Quality Inn, Austin
City Saloon and Second Street. His defense is that since Canada was acquitted
in the prior trial, that calls into question the Commonwealth’s theory.
The Commonwealth counters that case law supports that introduction of
evidence that a co-indictee has already been convicted or acquitted under the
indictment is improper. Norris v. Commonwealth, 89 S.W.3d 411, 414 (Ky.
26
2002) (citing Tipton v. Commonwealth, 640 S.W.2d 818, 820 (Ky. 1982)); Martin
v. Commonwealth, 477 S.W.2d 506, 508 (Ky. 1972)). We agree with the
Commonwealth.
In Norris, this court recited the rationale for the rule as being “whether
the defendant committed a specific crime is not aided in the slightest by the
admission of evidence of the fact that another jury concluded that another
defendant had or had not committed the same crime.” 89 S.W.3d at 414 (citing
Commonwealth v. Meredith, 493 Pa. 1, 425 A.2d 334, 337–38 (1981)) (internal
quotation and citation omitted).
Mulazim counters by citing Norris to support admission of Canada’s
acquittal as a “curative admission.” 89 S.W.3d at 414-15. In Norris, the
defendant, Ronnie Norris, Sr., was charged with incest against his daughter.
Id. at 412. His wife had been tried and acquitted of incest against the couple’s
son. Id. During Norris’s trial, the Commonwealth had introduced evidence
without objection of the charge against the wife. Id. at 413. The trial court
then denied Norris’s proffer of evidence that the wife had been acquitted. Id.
This Court held that the general rule concerning inadmissibility of conviction or
acquittal of a co-indictee’s charges did not apply since Norris and his wife had
not been indicted on the same charges. Id. at 414. We held, however, that
because the wife’s charges constituted impermissible character evidence,
Norris was then entitled to rebut that evidence by proof of her acquittal. Id. at
415.
27
 Simply put, the concept of “curative admission” is inapplicable to this
case. No error in the tender or admission of evidence has occurred which
would require “cure.” The trial court did not err by excluding evidence of
Canada’s acquittal.
H. Length of Mulazim’s Sentence.
Mulazim claims that his sentence exceeds the statutorily permitted
sentence, since he received a life sentence without possibility of parole and a
term of seventy-six years to run consecutively. While this issue is not
preserved, we review sentencing errors on appeal irrespective of preservation.
RCr 10.26; Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2006). The
Commonwealth concedes the error.
We have interpreted KRS 532.110(1)(c) to prohibit running a sentence for
a term of years consecutive with a life sentence. Winstead v. Commonwealth,
327 S.W.3d 386, 409 n.56 (Ky. 2010); Bedell v. Commonwealth, 870 S.W.2d
779, 783 (Ky. 1993). In addition, that same statute caps consecutive aggregate
terms at 70 years. As a result, this matter is remanded to the Fayette Circuit
Court for the entry of an amended judgment correcting Mulazim’s sentence.
I. Entitlement to Restitution Hearing.
Mulazim’s next contention is that he was entitled to a restitution hearing.
The trial court ordered restitution in the amount of $15,242.74. This issue
was preserved. The Commonwealth concedes the error. We, therefore, reverse
so much of the trial court’s final judgment as ordered restitution. On remand,
28
the trial court shall conduct a restitution hearing, as set forth in Jones v.
Commonwealth, 382 S.W.3d 22, 32 (Ky. 2011).
J. Cumulative Error.
The final argument advanced is that the errors in this case are not
harmless and require reversal, if not individually then cumulatively. See
Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Cumulative error
occurs when multiple errors occur, which are harmless on their own, but
cumulatively render the trial fundamentally unfair and require reversal. Elery
v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012). We have “found cumulative
error only where the individual errors themselves were substantial, bordering
at least on the prejudicial.” Id. None of the alleged guilt phase errors meet the
requirements of cumulative error.
III. Conclusion.
For the reasons stated, the Fayette Circuit Court’s judgment is affirmed
in part and reversed in part. This matter is remanded to that court for further
proceedings consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kayla Danielle Deatherage
Robert Chung-Hua Yang
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
29
Attorney General of Kentucky
Kristin Leigh Conder
Assistant Attorney General
30