Baker v. Com. of Ky., 2016-SC-000234-MR

• Decision Date: 26 April 2018
• Docket Number: 2016-SC-000234-MR
• Citation: 545 S.W.3d 267
• Parties: Eugene BAKER, Appellant v. COMMONWEALTH of Kentucky Appellee
• Court: United States State Supreme Court — District of Kentucky

545 S.W.3d 267

Eugene BAKER, Appellant

v.COMMONWEALTH of Kentucky Appellee

2016-SC-000234-MR

Supreme Court of Kentucky.

APRIL 26, 2018

COUNSEL FOR APPELLANT: Daniel T. Goyette, Louisville Metro Public Defender, Cicely Jaracz Lambert, Chief Appellate Defender, Louisville Metro Public Defender.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Jason Bradley Moore, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE WRIGHT

Appellant, Eugene Baker, was convicted by a Jefferson Circuit Court jury of murder, first-degree robbery, tampering with physical evidence, and possession of a handgun by a convicted felon. For these crimes, the jury recommended sentences of thirty years' imprisonment for murder and ten years' imprisonment for robbery, to be run consecutively. The jury also recommended a one-year sentence on the tampering with physical evidence conviction and a five-year sentence for the possession of a handgun by a convicted felon conviction, to be served concurrently with the murder and robbery sentences. The trial court sentenced Baker to forty years' imprisonment in accordance with the jury’s recommendation. Appellant now appeals to this Court as a matter of right, Ky. Const. § 110 (2)(b), and asserts five grounds for reversal of his convictions: (1) the trial court abused its discretion when it did not allow defense counsel to argue in closing that the Commonwealth did not produce any evidence of motive; (2) the trial court abused its discretion when it allowed the Commonwealth to introduce unauthenticated call logs, and when it allowed the Commonwealth to recall a witness to testify as to a phone number appearing in the call logs; (3) the trial court erred in. failing to grant a directed verdict on the tampering with physical evidence and possession of a handgun by a convicted felon charges; (4) the trial court erred in refusing to instruct on facilitation to murder and first-degree robbery; and (5) Baker is entitled to reversal of his conviction and a new trial due to cumulative error. We will address each claimed error in turn.

I. BACKGROUND

In 2012, Baker and co-defendant Duzuan Lester were indicted as complicitors in the 2007 murder and robbery of Dominic Hudson. Baker and Lester’s trial ended with Lester acquitted of all charges and with the jury unable to agree upon a verdict as to Baker. This appeal concerns Baker’s retrial.

On retrial, several witnesses testified regarding events surrounding the crime at issue herein. We will outline their testimony in order to give a full picture of the evening of Hudson’s murder. Witnesses testified that Hudson sold both marijuana and "bootlegged" DVDs. Hudson kept two cell phones—one for personal use, and the other for "business."

Kristie Hart testified she was in Hudson’s apartment on the evening of his murder.

She said two men came to the apartment and she opened the door for them, as she was expecting her cousin Teresa to stop by. Hart did not know the men, but said one of them wore a red baseball cap with a flat bill. Teresa eventually arrived at Hudson’s apartment, and she and Hart left around 7:00. The two men Hart did not know remained in the apartment with Hudson. Hart later picked Baker’s picture out of a photographic line-up as being one of the men who was in Hudson’s apartment on the night in question.

Two other witnesses, Yvonne Wolf and Alvin Servin (who happened to be neighbors) testified that they were each going to Hudson’s apartment on the evening of his murder and did not know the other would be there. Wolf was there to pick up DVDs Hudson had made her, and talked to Hudson to let him know she was on her way. She could hear people in the background during the phone call, and Hudson told her he had to take care of something. She arrived at Hudson’s apartment seven minutes later, and ran into Servin in the parking lot (he testified he was going to the apartment to buy marijuana from Hudson). The two approached the apartment together and knocked, but Hudson did not answer the door. They noticed the door was ajar, and Wolf knew Hudson typically kept his door locked. The two called out, but got no response. They walked in the door, rounded a corner, and saw Hudson’s lifeless body lying in the hallway. They testified "weed" was everywhere. An autopsy would later determine Hudson died as the result of a gunshot wound to the back of his head.

Charles Evans, Jr., who lived in the same apartment complex as Hudson, also testified at trial. He said on the night of Hudson’s murder, just before 7:00, he saw two men running out the complex. One of the men held a t-shirt, which he appeared to be using to conceal something. While the description Evans provided matched Baker’s description, he neither identified Baker nor saw a handgun.

Jasmine Williams testified she was dating Baker at the time of Hudson’s murder. She said she knew Hudson, but had never called him; she stated it was possible Baker had used her phone to call Hudson. It turned out her number had called Hudson about an hour before his death. Williams testified that Lester and his girlfriend picked her up on the evening in question, along with her baby and Baker. They traveled to Hudson’s apartment, where Baker said he needed to go to get his cell phone. Williams testified that when Baker and Lester returned to the car, they were running down the street, dropping money and marijuana as they ran. Williams testified the two men were very upset when they returned to the car and said, "Go, go, go!" when they re-entered the vehicle. They drove to Baker’s cousin Ebony’s house, where Lester and his girlfriend dropped off Baker, Williams, and her baby. Baker was throwing up and visibly shaken when they arrived at Ebony’s house.

Williams testified that when she asked Baker what was wrong, he told her he had killed Hudson by shooting him in the back of the head. Baker said he was in the kitchen when he shot Hudson (and this is, in fact, where Hudson’s body was found). Williams did not see the gun, but thought Baker’s cousin Gary had come the next day and gotten the weapon.

Williams was friends with Nikkia Sullivan, who had a relationship with Hudson. Williams told Sullivan what had happened with Hudson and the two stopped talking after Williams’s revelation. Williams became upset with Sullivan when Sullivan told police what Williams told her regarding Hudson and asked Williams to help her "cop a deal."

Williams was a convicted felon, but testified she did not receive any deals in exchange for her testimony.

Sullivan was serving a sentence for manslaughter and aggravated robbery at the time of Hudson’s trial—and was almost eight years into her sentence. Sullivan testified she used to hang out with Baker, Williams, and Hudson. Hudson may have been the father of Sullivan’s daughter, though paternity was never established. Sullivan was not aware of any animosity between Hudson and Baker, and had never met Lester.

Sullivan was supposed to go to the fair with Hudson on the night of his murder. Hudson told her he had some things to do. At some point that evening, Hudson stopped answering her phone calls. Sullivan called Williams, because she thought Baker may know where Hudson was. She could not recall at trial if anyone answered her call. However, in a 2012 statement to police, Sullivan said Williams did answer her call. When she asked where Hudson was, Sullivan said Baker got on the phone and told her she was not going to see Hudson again. The next time Sullivan called Williams, she said Baker answered the phone, told her he had killed Hudson, and hung up. Sullivan did not initially call the police to report this information.

In early 2008, Sullivan said she did call Crime Stoppers after speaking with Williams. Williams had sent Sullivan a message saying she wanted to talk about Hudson. Sullivan testified Williams told her she had been driving the get-away car on the night of Hudson’s murder. She said Baker and another male were passengers. Sullivan testified that Williams told her she heard gunshots, and the man with Baker jumped back in the car and vomited. When Baker made it back to the car, he looked like a ghost. Sullivan testified Williams told her she and the two men then drove to Williams’s apartment.¹ Sullivan was unable to identify Baker from a photo pack five years after Hudson’s murder. She said she could not remember what Baker looked like.

Another witness, Susan Copass-Cheng had a child with Baker. Baker called Copass-Cheng and asked her to bring their daughter to see him. She testified he told her he had done something and if anyone ever found out, he may not be able to see her or their child again. Copass-Cheng testified she did not know Williams, but had spoken with her on the phone. She testified that Williams had called her only once, but that Baker called her from Williams’s phone numerous times. On recall, Copass-Cheng identified Williams’s number (the same number which appeared in call logs as having called Hudson approximately an hour before his death) as the number from which Baker called her.

Marquez Turner also testified at trial. He said he and Baker were friends and had bought marijuana from Hudson. Turner said he was supposed to meet Hudson on the night of his murder to pay him some money. When Turner went to Hudson’s apartment that night, police were there and he did not approach the apartment. However, Turner spoke with police in 2009 and 2012 and told police, in taped statements, that Baker had confessed to killing Hudson. However, at trial, Turner claimed he lied to police and that these statements were untrue.

A red baseball cap was found lying in the kitchen floor, just two feet away from Hudson’s body. DNA found on the cap matched both Baker and Lester. Lead Detective Keith Roberts testified marijuana was on Hudson’s body, the floor, and the counter. He also testified money was found in Hudson’s back pocket. Detective...