Beard v. Commonwealth, 2017-SC-000633-MR

• Citation: 581 S.W.3d 537
• Decision Date: 29 August 2019
• Docket Number: 2017-SC-000633-MR
• Parties: Anthony L. BEARD, Jr., Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court (Kentucky)

581 S.W.3d 537

Anthony L. BEARD, Jr., Appellant

v.COMMONWEALTH of Kentucky, Appellee

2017-SC-000633-MR

Supreme Court of Kentucky.

AUGUST 29, 2019

COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Thomas Allen Van De Rostyne, Assistant Attorney General, Office of the Attorney General.

OPINION OF THE COURT BY JUSTICE HUGHES

Anthony Lamont Beard, Jr. appeals from a judgment of the Fayette Circuit Court convicting him of first-degree burglary, second-degree assault, and second-degree wanton endangerment, and sentencing him to thirty years in prison. Beard contends the trial court erred by 1) allowing inadmissible hearsay testimony into evidence; 2) denying his requested instructions on second-degree burglary and first-degree criminal trespass; 3) providing instructions to the jury during deliberation; 4) not correcting the Commonwealth’s misstatement of his parole eligibility on the first-degree burglary charge; and 5) improperly limiting his testimony during the penalty phase. For the reasons set forth below, we affirm Beard’s convictions, but reverse and remand for a new penalty phase.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2016, Beard visited the home of Fayola Chenault. While there, Beard confronted Grm'yko Chenault, Fayola’s grandson and Beard’s cousin, and used coarse language threatening to sodomize him. According to Desha Chenault, Grm'yko’s mother, there were rumors that Grm'yko touched Beard’s daughter, but the investigation conducted by the police, social services, the school, and the children’s advocate did not result in charges against Grm'yko. Fayola told Beard to leave.

Beard returned to the house the next morning, but Fayola did not let him in and told him to go home. He came back about three hours later and Fayola encountered him outside of her home. When Beard stated he was going in the house, Fayola told him not to. While her attention was diverted, Beard entered the house.

When Fayola went inside, Grm'yko and Desha were sitting on the couch. According to Fayola, she was standing in front of the two when Beard came from the direction of the hallway, stood beside her, and shot Grm'yko multiple times. Fearing Beard would shoot her, Fayola went outside. Beard came out afterward, remarked "That’s what you get for my daughter," and got on his bicycle and left. James Chenault, Fayola’s son who also lived there and was in the back of the home, came into the living room when he heard the shots.

Desha testified that after Beard entered the house, he fumbled in the hallway and then came over and shot Grm'yko. After shooting Grm'yko, Beard put the gun to her head and she heard the gun clicking. Beard said, "Bitch, this is for my daughter." Beard then left.

The jury found Beard guilty of first-degree burglary, second-degree assault, and second-degree wanton endangerment and recommended a thirty-year sentence. The trial judge sentenced Beard in accordance with the jury’s recommendation and this appeal followed.

Additional facts pertinent to Beard’s claims of error are set forth below.

ANALYSIS

Beard claims the trial court committed errors during both the guilt and penalty phases of his trial. He specifically claims the trial court erred by 1) admitting inadmissible hearsay testimony into evidence; 2) denying his requested instructions on lesser-included offenses; 3) providing instructions to the jury during deliberation; 4) not correcting the Commonwealth’s misstatement of his parole eligibility; and 5) improperly limiting his testimony during the penalty phase. These claims are addressed in turn.

I. Introduction of Non-testifying Witness’s Statement Does Not Warrant Palpable Error Relief.

At trial, the Commonwealth played Beard’s videotaped interview with the police. During that interview, the detective told Beard multiple times that (1) four people identified him as the individual who shot the victim and (2) those four individuals would testify against Beard. According to the detective, each of those four individuals identified Beard as the victim’s shooter by signing the back of a photo depicting Beard. The detective showed and read aloud to Beard the four signatures. The four signatures included Grm'yko, Desha, and Fayola, who testified at trial, and James Chenault, who did not testify. Beard did not object to the Commonwealth playing the specific recorded statements regarding the four witnesses,¹ nor did he request a limiting instruction. He now requests palpable error review pursuant to Kentucky Rule of Criminal Procedure (RCr) 10.26.

Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Beard argues that admission of testimonial hearsay — that James Chenault identified him as the assailant — through the detective’s videotaped interview violated his rights to confront accuser Chenault under the Sixth and Fourteenth Amendments to the United States Constitution and Section Eleven of the Kentucky Constitution. Crawford holds that when an out-of-court "testimonial" hearsay statement of a declarant who is unavailable for cross-examination is introduced into evidence, a defendant’s Sixth Amendment right to confront witnesses against him is violated. Beard asserts that this Court recognized in Staples v. Commonwealth, 454 S.W.3d 803, 826 (Ky. 2014), that admitting a police interrogation that references another’s statements regarding the defendant violates Crawford, but unlike the error in Staples, the error in this case should result in reversal. Beard contends that Chenault’s eyewitness identification of him as the shooter is not simply harmless cumulative evidence.

The Commonwealth responds that Beard’s constitutional rights are not implicated because the detective’s statements made during the interview were not being offered to prove the truth of the matter asserted. Rather, like the police interrogation admitted and upheld in Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005), the statements provided context for the interview in that the detective’s statements were made in an attempt to get Beard to speak by confronting him with the potential evidence against him. We do not find the Commonwealth’s argument persuasive.

Although the United States Supreme Court’s guidance for distinguishing between "testimonial" and "nontestimonial" statements is currently limited, the Crawford Court explained that "[s]tatements taken by police officers in the course of interrogations are ... testimonial under even a narrow standard." 541 U.S. at 52, 124 S.Ct. 1354. Furthermore, in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Court explained that statements "are testimonial when the circumstances objectively indicate that [the statements were not made in the course of a police interrogation primarily conducted to meet an ongoing emergency, but rather] the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

These standards support Beard’s argument that the four witness identifications of him as the shooter, information provided to the detective during his investigation of the crime, are testimonial. Nevertheless, we conclude palpable error relief is not warranted.

RCr 10.26 provides:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

Under RCr 10.26, relief may be granted when the error is easily perceptible, plain, obvious and readily noticeable, and the reviewing court believes there is a substantial possibility that the result in the case would have been different without the error, or the error is so fundamental as to threaten a defendant’s entitlement to due process of law. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citations and quotation marks omitted); Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). In context with all the evidence, which includes three other witnesses testifying Beard shot the victim, we cannot conclude that references to Chenault’s statement during the detective’s interrogation of Beard caused the prejudice necessary for RCr 10.26 relief. Beard argues that Chenault’s eyewitness identification of him can never be simply cumulative evidence, but we disagree given the circumstances of this case. No palpable error occurred.

II. The Trial Court Did Not Err by Refusing to Instruct The Jury on Lesser-Included Offenses.

As noted, Beard was convicted of first-degree burglary. The trial court denied Beard’s request to instruct the jury on the offenses of second-degree burglary and first-degree criminal trespass as lesser-included offenses of first-degree burglary. Beard claims this denial was error.

"Each party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it." Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015) (citation omitted). "When the prosecution adduces evidence warranting an inference of a finding of a lesser degree of the charged offense, the court should instruct on the lesser degree...." Trimble v. Commonwealth, 447 S.W.2d 348, 350 (Ky. 1969). "An instruction on a lesser included offense is appropriate if, and only if, on the given evidence a reasonable juror could entertain a reasonable doubt of the defendant’s guilt on the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense." Osborne v. Commonwealth, 43 S.W.3d 234, 244 (Ky. 2001) (citations omitted).

Upon review, we likewise consider whether the trial court erred by refusing to give a lesser-included offense instruction under the "reasonable juror standard." Springfield v. Commonwealth, 410 S.W.3d...