Jerard Garrett v. Commonwealth of Kentucky

RENDERED: DECEMBER 14, 2017
TO BE PUBLISHED
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2016-SC-000263-MR
JERARD GARRETT APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JAMES M. SHAKE, JUDGE
NOS. 13-CR-000246 AND 13-CR-000744
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING
Jerard Garrett appeals as a matter of right from a judgment of the
Jefferson Circuit Court sentencing him to life in prison without the possibility
of parole for twenty-five years for two counts of murder, two counts of first-
degree robbery, one count of first-degree wanton endangerment, and one count
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of terroristic threatening. For the fol~owing reasons, we affirm the judgment
and sentence.
I. BACKGROUND.
In one indictment, a ·Jefferson County grand jury charged Garrett and
his co-defendant, Billy Richardson, with one count each of murder, first-degree
robbery, first-degree wanton endangerment, third-degree· terroristic
threatening, and being a first-degree ·persistent felony offender ("PFO l"), arising
from the murder of Jamie Young on December 29, 2012. In a separate
indictment, the grand jury charged Garrett and Richardson with one cpunt
each of murder and first-degree robbery, arising from the murder of Kenny
Forbes on December 23, 2012. Over Garrett's objection, the trial court·
consolidated the charges in the two indictments for trial. Pursuant to RCr 1
6.18, the trial court found that the defend?D-ts'·practice of scheduling meetings
through a known intermediary to conduct a drug transaction, then. robbing the
victim, was sufficiently unique to warrant joinder of the charges and
·consolidation of the indictments. Garrett now challenges this decision of the
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trial court, as well as several of its other decisions. We do not find any of
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Garrett's challenges to have merit.
II. ANALYSIS.
a. The Trial Court Did Not Abuse Its Discretion by Admitting the
Commonwealth's Ballistics Evidence.
Garrett suggests, as a general matter, that an opinion from a firearm and
toolmark examiner that a particular bullet was fired from a particular gun
should no longer be admissible in criminal trials in Kentucky. We note that
ballistics testimony has been allowed by this Court since at least 1948. Morris
v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948). Still, Garrett argues
that the methodology and reliability of the Commonwealth's ballistic examiner's
testimony that bullets found at both murder scenes were fired from the same
1 Kentucky Rules of Criminal Procedure.
2
weapon did not meet the criteria set forth in KRE2 702 for admissibility, and
. .
therefore should not have been admitted. After conducting Daubert3 hearings
on the admissibility of testimony from the Commonwealth's Kentucky State
Police ("KSP") firearms expert, Leah Collier, and Garrett's expert, William Tobin,
a forensic metallurgist materials scientist who worked for the FBI for 27 years,
the trial court concluded that both experts' testimony would be admissible.
This Court reviews a trial court's ruling on the admissibility of expert
t~stimony for an abuse of discretion unless the challenge is to the trial court's
findings of fact regarding the Daubert factors, which we review for clear error.
Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004). Because Garrett challenges
the trial court's preliminary factual determination as to the reliability of
ballistic evidence under Daubert, we review for clear error.
Daubert assigns the trial court the role of "gatekeeper" charged with
preventing the admission of unreliable, pseudoscientific evidence:
[T]he trial judge must ¢etermine at the outset ...
whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact
to understarid or determine a fact in issue. This (entails
. a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.
Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 (footnote omitted); KRE 702.
2 Kentucky Rules of Evidence.
3 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed. 2d 469 (1993). ,
3
)
The trial court may consider the following factors in assessing the ~
reliability of expert testimony:
(1) whether a theory or technique can be and has been
tested; (2) whether the theory or technique has ·been
subjected to peer review and publication; (3) whether,
with respect to a particular technique, there is a high
kno'Yn or potential rate of error and whether there are
standards controlling the technique's operation; and
(4) whether the theory or technique enjoys general
acceptance within the relevant scientific, technical, or
other specializec1. community.
Goodyear Tire & Rubber Co. v. Thompson., 11 S.W.3d 575, 578-79 (Ky. 2000)
(citing Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-9_7). "In addition to
being reliable; the proposed testimony.must assist the trier of fact to
understand the evidence or to determine a fact in issue. This condition goes
primarily to relevance." Miller, 146 S.W.3d at 914 (internal quotations and
citation omitted).
Garrett maintains that the scientific community has attacked and
refuted the reliability of the premises and methods of specific source
attribution in ballistics' analysis, thus rendering Collier's testimony
incompetent. In support of his position, Garrett primarily relies on a 2009
National Research Council's report titled Strengthening Forensic Sciencein the
United States: A Path Forward ("NRC Report"), which calls into question the
validity of the assumptions about toolmarks that underlie firearms
identification. However, the Association of Firearm and Toolmark Examiners
("AFTE") theory of identification, which Collier testified she utilized and which
the federal courts have recently held satisfies Daubert, permits a conclusion
4
that two or more bullets are of common origin."when the microscopic surface
contours of the toolmarks are ih suffieient agreement." United States v. Otero,
849·F.Supp.2d 425 (D.N.J. 2012), aff'd 557 Fed. Appx. 146 (3rd Cir. 2014).
In Otero, the defendants sought to exclude the testimony of the
government's firearms examiner that a bullet was discharged by a specific
weapon. 849 F. Supp. 2d at 427. The Otero court recognized that the AFTE
theory of identification innately contains a subjective component in
determining "sufficient agreement" which "must necessarily be based on the ·
examiner's training and experience." Id. at 432. In assessing the admissibility
of the firearm examiner's testimony, the Otero court meticulously analyzed the
Daubert factors and found the proffered testimony satisfied each one. Id. at
431-435.
Specifically, the Otero court found that "the AFTE theory is testable and
has been tested." Id. at 432. The court acknowledged the same NRC Report,
upon which Garrett relies, and found that while the toolmark identification
procedures "do indeed involve some degree of subjective analysis and reliance
upon the expertise and experience of the examiner'' the methodology is reliable.
Id. at 438. Garrett points to the Otero court recognition that "claims for
absolute certainty as to identifications made by practitioners in this area may
well be overblown" to argue that Collier's identification of the bullets improperly
amounted to absolute certainty, as opposed to a reasonable degree of certainty.
Id. However, our review of the record shows that Collier testified that she
examined the two bullets. from this case visually and microscopically and
5
"made the determination that they were fired from the same firearm." Collier
went on to testify that bullet condition can vary. She stated that while bullet
. I
condition runs the full range, everi completely mutilated, the bullets in this
case were in very good condition. Assessing Collier's conclusion that the
I
bullets were fired from the same gun in the context of her entire testimony,
which reflects the varying condition of bullets and her subjective experience
analyzing them, we do not believe her testimony amounted to "absolute
certainty'' so as to require exclusion. Rather, we believe the Jury was charged
with assessing the reliability and credibility of her opinion, given all the
evidence presented.
We agree with the Otero coµrt's application of the Daubert factors to
/ .
ballistics .testimony such as that at hand, and with the trial court's analysis o(
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the Daubert factors and ultimate deCision to admit Collier's testimony. The
proper avenue for Garrett to address his concerns about the methodology and
. reliability of ·collier's te~timony was through cross-examination, as well as
c
through the testimony of his own expert. In this· way, the jury was presented
with both parties' positions, and with any limitations to the testimony, and
charged with weighing all tl~e evidence presented.
J
b. The Trial Court Did Not Abuse Its Discretion by Joining the ·offenses
for Trial.
Garrett argues that the trial court abused "its discretion by joining the
Forbes and Young murder charges together for a single trial because the
murders were not sufficiently similar in character, and therefore did not meet
the common scheme and plan rubric of RCr 6.18 .
.6
The interaction of RCr 9.12 and RCr 6.18 allows
the charges brought in separate indictments to be
joined for trial only when the offenses are "of the same
or similar character'' or are "based on the same acts or
transactions connected together or constituting p~ts
of a common scheme or plan." When the conditions
set forth in RCr 6.18 and RCr 9.12 are present, the
trial judge has broad discretion to allow the joinder of
offenses charged in separate indictments. We review
such decisions for abuse of discretion. Nevertheless,
to be reversible,an erroneous joinder of offenses must
be accompanied by "a showing of prejudice" to. the
defendant. This showing of prejudice cannot be based
on mere speculation, but must be supported by the
record.
***
[A] significant factor in identifying prejudice from
joining offenses for a single trial is the extent to which
evidence of one offense would be inadmissible in the
trial of the other offense. ·
·Hammond v. Commonwealth, 366 S.W.3d 425, 428-29 (Ky. 2012) (internal
citations and footnote omitted).
Because a defendant is prejudiced simply by being tried at all, a
defendant is required to show prior to trial that he would be "unfairly
prejudiced" by ajoinder. Parker v. Commonwealth, 291S.W.3d647, 656-57
(Ky. 2009).
Offenses closely related in character, circumstance[,]
and time need not be severed. If evidence from one of
the offenses joined in the indictment would be
admissible in a separate trial of the other offenses, the
joinder of offenses generally will not be prejudicial.
Additionaily, considerations ·of judicial economy and
the efficiency .of avoiding multiple trials are reasons for
joint trials ..
7
Cohron v. Commonwealth, 306 S.W.3d 489, 493-94 (Ky. 2010) (footnote
omitted); see also Peacher v. Commonwealth, 391 S.W.3d 821, 836 (Ky. 2013)
(discussing the liberal joinder of offenses considering the advantages of joint
trials).
Garrett emphasizes the differences between the crimes: the murders
occurred six days apart, in different parts of the city; no connection existed
between the victims; one murder occurred inside a car in a parking lot in the
· middle of th~ afternoon; the other murder took place in a residence during the
evening; and no common witnesses to the two murders were identified. Thus,
Garrett asserts that joinder was improper since no nexus or relationship exists
between the two murders, nor a common ·plan or scheme.
The trial court found that the two murders and robberies were part of a
common scheme: in both case~, the same two co-defendants were charged with
murder and robbery after they arranged with the victims to purchase drugs;
both victims were shot during the drug transactions; ballistics examination
concluded that the bullets from both murders were fired from the sanie gun;
and both sets of offenses occurred within six days of each other in the same
city. Accordingly, the trial court concluded that the crimes committed were
closely related in character, circumstance, and time, and were sufficiently
similar to permitjoinder under RCr 6.18. Under these circumstances, we do
not believe the trial court abused its discretion qy joining the offenses for trial,
or that Garrett has identified "unfair prejudice'~ conneeted with the joinder
sufficient to require a new trial.
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c. The Trial Court Properly Permitted a Witness to Make an In-Court
Identification of Garrett.
Garrett asserts that the trial court abused its discretion by overruling his
objection to witness Jamie Quisenberry making an in-court identification of
him as the one who shot Young. He argues that because Quisenberry was
unable to identify him in a photographic lineup five days after the shpoting,
Quisenberry should not have been allowed to make an in-court identification
under application of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d
401 (1972).
We review a trial ·court's evidentiary rulings for an abuse of discretion.
Goodyear, 11 S.W.3d at 577. An abuse of discretion occurs if the trial court's
ruling is "arbitrary, unreasonable, unfair, or unsupported by sound legal
principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Garrett's argument is not well taken. After appellate briefs were
submitted in this case, ·this Court issued an Opinion in Fairley v.
Commonwealth, 527 S.W.3d 792 (Ky. 2017), rejecting the ve·ry claim Garrett
now presents. .In Fairley, we held that the witness's inability to identify the
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defendant in a photographic lirieup did not bar him from making an in-court
identification:
[T]he proper course is to permit the witness to attempt
to id.entify the suspect in court and, if an identification
is made, allow the defense to thoroughly cross-
examl.ne the witness concerning his failure to make a
prior identification. The jury is fully capable of
determining what weight to assign to the in-court
identification .... Accordingly the trial court did not
9
abuse its discretion in permitting the introduction of
this evidence. "'
Id. at 797.
· In Fairley, we also rejected the defendant's assertion that the witness's
in-court identification should have been analyzed by the trial court under the
factors set forth in Biggers before allowing the witness to testify. Id. at 798.
"In Biggers, the Supreme Court set forth a. two-prong due process test for
considering an identification by a witness following impermissible suggestive
pretrial. procedures such as a photo array or line-up." Id. at 797-98. We
expressly declined to extend Biggers to in-court identifications when no unduly
suggestive pretrial behavior has been alleged; "'a primary aim of the Biggers
line of cases was deterrence of law enforcement's use of improper lineups,
showups, and photo arrays,. a factor clearly not present in the case before us."'
Id. at 799 (citation omitted).
Garrett has not suggested that the photographic line':ip presented to
Quisenberry was unduly suggestive, or alleged any other improper pretrial
procedures; rather, Garrett argues that the in-court identification by a witness
who did not make an identification :previously is unduly suggestive. This
reasoning does not trigger application of Biggers, and is unsupported by
Kentucky case law. The trial court followed the proper course of action by
allowing Quisenberry to make an in-court identification, allowing Garrett the
opportunity to cross-examine him, and letting the jury assess Quisenberry's
credibility and weigh the evidence presented.
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d. Detective Guffy Did Not Improperly Bolster His Own Credibility by
Answering Questions from Co-Defendant's Counsel on Cross-
Examination.
Garrett alleges that the trial court improperly allowed Det. Guffy to ·
bolster his credibilitY during co-defendant Richardson's cross-examination of
him, over Garrett's objection. We review the trial court's ruling for an abuse of
dis.cretion. Goodyear, 11 S.W.3d at 577.
During Garrett's cross-examination of Det. Guffy, Garrett's counsel
questioned him vigorously regarding the phone call Det. Duffy testified he
received from Garrett's older brother, Jermaine Garrett, after the murders, in
which Jerm.aine informed Det. Guffy that the last phone number Forbes called
before his death, 419-262-5824 ("the 419 number"}, belonged to Garrett.
..
Garrett's counsel implied that Det. Guffy was not being truthful about receiving
the phone call from Jerniaine because he· did not swiftly record it in an
investigative letter. Det. Guffy testified that three months after his
conversation with Jermaine, he recorded in an investigative letter, "I spoke with
a person later identified as a family member of Jerard Garrett, from phone
number 502-471-8873. This conversation assisted in the,verification of
number 419-262-5824 as being the number associated with Jerard." Det.
Guffy further testified that no police policy mandates that investigative letters
be recorded within a specified time frame, or contain specified inf~rmation.
During co-defendant Richardson's cross-examination of Det. Guffy,
Richardson's counsel followed up on the line of questioning regarding Det.
Guffy's truthfulness, to which Det. Guffy responded that he did his work as
11
diligently, as honestly as he could, and that he found any suggestion he was
dishonest to be distasteful. At this point, Garrett's counsel objected, arguing
that Det. Guffy's testimony constituted improper self-bolstering.
i I
The law is well established that "[a] witness is not permitted to-bolster
her own testimony unless and until her credibility has been attacked." Tackett
v. Commonwealth, 445 S.W.3d 20, 32 (Ky. 2014). As the Commonwealth points
out, though, Garrett plainly attacked Det. Guffy's credibility during his cross-
examination of him, insinuating that he was lying and committing perjury.
Garrett put Det. G~ffy's credibility squarely at issue, thus allowing it to be
bolstered by Richardson's counsel during his cross-examination of Det. Guffy.
Accordingly, the trial court did not abuse its discretion by overruling Garrett's
objection to Det. Guffy's testimony.
e. The Commonwealth's Use of the CourtNet Information Was Not
Improper.
Garrett contends that he should be granted a new trial because the
Commonwealth's use of a CourtNet printout to impeach Jermaine prejudiced
Garrett and denied him the right to a fair triru, Whether Jermaine lived at 426
South 12th Street in 2012 was relevant because a call was placed from ~he
number associated with that address, 502-4 71-8873 ("the 502 number''), to
Det. Guffy after the murders, during which Det. Guffy testified that Jermaine
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identified the 419 number as 'belonging to Garrett. Det. Guffy had left a
voicemail at the 502 number after_ obtaining Forbes' cellphone records and
discovering that the last two calls Forbes placed before his death were to the
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419 number. Det. Guffy obtained the call log for the 419 number and left
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voicemails with the most recent numbers called, including the 502 number.
He testified that he received a call back from the 502 number, and that the
caller identified hims~lf as Jermaine, who said the 419 number belonged to
Garrett.
At trial, the Commonwealth ·sought to link Jermaine with the 502
number, and the phone call made to Det. Guffy, by showing that he resided at
426 South 12th Street around the time of the murders. Jermaine testified that
he did not remember his phone number from 2012, denied having spoken with
Det. Guffy after the murders, denied telling Det. Guffy that the 419 number
belonged to Garrett, and said he never lived at 426 South 12.th Street. The ·
Commonwealth then presented him with a CourtNet printout of a district court
misdemeanor showing Jermaine's listed address as 426 South 12th Street in
2012. Over Garrett's objection that the CourtNet document was unreliable, the
trial court permitted the'Commonwealth to show it to Jermaine and ask if the
address listed on the CourtNet document, 426 South 12th Street, was his
address in 2012. The document was not admitted into evidence or otherwise
shown to the jury. We review the trial court's ruling for an abuse of discretion.
Goodyear, 11 S.W.3d at 577.
CourtNet is a product that is compiled by the
Administrative Office of the Courts (AOC) that is
generally u.seful for investigation into a person'·s
background, but it is not intended as an official record
of that background. In fact, CourtNet's user
agreement states that the AOC "CANNOT GUARANTEE
the accuracy of information obtained via CourtNet."
Criminal Justice Agency, CourtNet Individual User
Agreement, http:// courtnet.kycourts.
net/ courtnet/ manuals/ CourtN etCJindividual. pdf; It
13
further states that "[d]ata obtained from this system is
not an official court record" and that "[i]nformation ·
received from CourtNet ... may not at any particular
moment reflect the true status of court cases." Id.
Finnell v. Commonwealth, 295 S.W.3d 829, 834 (Ky. 2009).
In Finnell, this Court disapproved of the use of a CourtNet document to
prove a defendant's prior convictions during ~e sentencing phase of trial. Id.
In that case, the Commonwealth introduced into evidence, and spent over eight
(
minutes reading from, ten pages of a CourtNet printout listing Finnell's 14
prior ID:isdemeanor convictions, including one felony that it had already
introduced by testimony. from a certified copy of the judgment. Id. at 834. We
reverse<;i and remanded for a new sentencing phase on the following grounds:
CourtNet is not an appropriate document to use to
influence a jury's decision on fixing a penalty. It lacks
the requisite indicia ·of reliability necessary to reliably
prove a defendant's prior convictions. To do that, the
evidence of prior coµvictions ·must come from the
official court record, or certified copies thereof.
However, other elements of proof, such as proving a
defendant's parole status or age, may be introduced
through other appropriate records. · .
Id. at 835.
Relying on an unpublished decision from the Court of Appeals,
Merriweather v. Commonwealth, No. 201 l-CA-001398-MR, 2012 WL 6651882
(Ky. App. Dec. 21, 2012), Garrett argues that CourtNet documents should not
be used to impeach a \vitness. In Merriweather, prior to the sentencing pha;e,
the parties discussed introduction of the defendant's prfor felony convictions
for purposes of the PFO charge; the Commonwealth had certified documents
relating to.three prior felonies of th~ defendant, but only a CourtNet printout of
14
a fourth 1995 felony conviction. Id. at *3. The trial court determined that the
CourtNet document was not reliable enough to be used for purposes of
establishing a PFO charge and the parties agreed to remove the 1995 felony
conviction from the PFO instructions. Id.
In Merriweather, on cross-examination of the defendant, the
.Commonwealth inquired into whether he had a 1995 felony conviction; defense
counsel objected, arguing that the conviction was not to be mentioned. Id. at
*4. The trial court overruled the objection and allowed the Commonwealth to
ask the question; the defendant replied that he did not recall whether he had a
felony conviction from 1995. Id. On appeal, the Court of.Appeals held that no
error occurred:
In the case at hand,· the Commonwealth sought to
elicit testimony from Merriweather about his 1995
conviction for truth-in-sentencing purposes, not
persistent felony offender purposes. The
Commonwealth did not introduce the CourtNet
document showing the 1995 conviction into evidence,
it only used it as a basis to inquire from Merriweather
as to whether the conviction existed. Had the
Commonwealth sought to use the CourtNet document
to impeach Merriweather, or tried to introduce it when
Merriweather stated he did not remember a 1995
conviction, then that would have been improper.
Unlike in Finnell, the Commonwealth in this case did
not introduce the CourtNet document ~.nd its contents
into evidence; therefore, there is no error.
Id. at *5.
Notwithstanding that Merriweather is not binding on this Court,_ or any
other court since unpublished, we briefly note that the situation at bar is
distinguishable in that the Commonwealth used the CourtNet document not to
15
prove Jermaine's criminal history or the status of a court case, but rather to
confirm with Jermaine background information contained thereon: his name,
date of birth, and address. Jermaine confirmed his name and date of birth as
listed, but disputed the 426 South 12th Street address. Based on these facts,
we believe the Commonwealth's use of the CourtNet printout did not run afoui
of our holding in Finnell, or of the stated purpose of CourtNet identified in that
case.
Further, even without use of the CourtNet printout linking Jermaine to
that address and consequently to the 502 number associated therewith,
Garrett was connected to the 419 number through the testimony of Det. Guffy,
who stated that he received a call from Jermaine informing him that the 419
number belonged to Garrett. The jury was charged with assessing the
credibility of the witnesses, and to weigh the evidence accordingly. Thus, even
if we accepted Garrett's argument that error occurred, such error did not have
substantial influence so as to require reversal under the harmless error
standard. See RCr 19:26; Winstead v. Commonwealth, 283 S.W.3d 678, 688-
89 (Ky. 2009)[(the inquiry into whether a non-constitutional evidentiary error
may be deemed harmless "is not simply whether there was enough [evidence] to
·support the result, apart from the phase affected by the error. It is rather, even
so, whether the error itself had substantial influence. If so, or if one is left in
grave doubt, the conviction cannot stand.") (internal quotations and citations
omitted)].
16
f. No Cumulative Error Exists.
Garrett argues that he is entitled to relief on the basis of cumulative
error, "the doctrine under which multiple errors, although harmless
individually, inay be deemed reversible if their cumulative effect is to render the
trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631
(Ky. 2010). Since none of Garrett's alleged errors merit relief individually, they
do not become meritorious when considered cumulatively.
III. CONCLUSION.
For the foregoing reasons, the judgment and sentence of the Jefferson
Circuit Court is affirmed. ·
All sitting. Minton, C.J., Cunningham, Hughes, Keller, VanMeter, and
Wright, J.J., concur. Venters, J., concurs in result only.
COUNSEL FOR APPELLANT:
Samuel N. Potter
·Robert Chung-Hua Yang
Assistant Public Advocate
Department of Public Advocacy .
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Jason Bradley Moore
Assistant Attorney General
17