Dillard v. Com.

• Citation: 995 S.W.2d 366
• Decision Date: 17 June 1999
• Docket Number: No. 95-SC-843-MR.,95-SC-843-MR.
• Parties: Nakia Corneal DILLARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

995 S.W.2d 366

Nakia Corneal DILLARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 95-SC-843-MR.

Supreme Court of Kentucky.

June 17, 1999.

COPYRIGHT MATERIAL OMITTED

Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.

A.B. Chandler, III, Attorney General, Frankfort, KY, Kent T. Young, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

COOPER, Justice.

Appellant, Nakia Corneal Dillard, was convicted in the Christian Circuit Court of the kidnapping, robbery, and attempted murder of Steve Marquess, and of the kidnapping of Tracey Geordan. The jury deadlocked on whether he was also guilty of the attempted rape and murder of Geordan. Appellant was sentenced to twenty years imprisonment for each of his convictions of the offenses committed against Marquess. The sentences were ordered to be served consecutively for a total of sixty years. Sentencing for the conviction of kidnapping Geordan was reserved until a retrial of Appellant's indictments for attempted rape and murder. Appellant appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting seven claims of error: (1) failure to excuse three jurors for cause; (2) failure to hold a hearing with respect to an alleged Batson violation, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (3) introduction of inflammatory photographs; (4) failure to grant funds for an expert to assist in preparation of his defense; (5) impairment of his right to present a complete defense; (6) failure to grant a mistrial after comment was made on his failure to testify; and (7) failure to impose a sentence for his conviction of kidnapping Tracey Geordan. The facts are these:

On the evening of July 11, 1994, Marquess and Geordan were cleaning the parking lot of the Brickyard Plaza Shopping Center in Hopkinsville. Marquess had changed clothes in a nearby tool shed, where he had left a pair of pants in which he had placed his wallet and his watch. Sometime after 10:30 p.m., Marquess and Geordan were approached by Appellant and Ernest Amaze Rogers. Appellant admitted in a subsequent videotaped confession that he was desperate for money to pay off debts, and that he and Rogers had agreed that Appellant would rob Marquess and that Rogers would remove Geordan from the scene so that she would not be a witness. Appellant pointed a .380 Lugar handgun at Marquess and demanded his money. Marquess replied that his money was in the pocket of his pants which were in the shed. When Appellant entered the shed to get the money, Marquess ran from the scene. Appellant fired three shots at Marquess and two more into the air. Marquess, however, escaped.

Meanwhile, Rogers had led Geordan away from the scene. Appellant claimed in his videotaped confession that when he emerged from the shed with Marquess's pants and wallet, he heard Geordan scream, then heard two shots, the first of which "sort of echoed," but the second of which "just went `pap.'" Geordan died of a contact gunshot wound to the head. When her body was found, her shirt and brassiere were pulled up, exposing her breasts, and her shorts and underwear were pulled down toward her knees. Marquess's pants were found on Geordan's body and his wallet was found nearby. Appellant explained that he had removed thirty dollars from Marquess's wallet and was fleeing the scene when he stumbled over Geordan's dead body. Startled, he dropped Marquess's pants and wallet and continued to run. According to Appellant, Rogers later admitted to him that he killed Geordan because she was trying to escape and demanded to know why Appellant had not killed Marquess. Neither Appellant nor Rogers testified at their joint trial. However, Appellant's videotaped confession was played to the jury in redacted form.

I. CHALLENGES FOR CAUSE.

Appellant asserts error in the failure to excuse three jurors for cause. Two of the three jurors expressed bias only against Rogers. Since Appellant and Rogers had antagonistic defenses (each claimed the other murdered Geordan), the failure to strike these two jurors could not have prejudiced Appellant.

The third juror was a fireman; and the victim, Marquess, was a captain at the same fire department. However, the two worked different shifts and the juror claimed to have never discussed the case with Marquess. The juror also knew some of the police officers who testified at trial, but denied ever discussing the case with any of them. He asserted that he had formed no opinions with respect to the guilt or innocence of either defendant and could be fair to both sides. In Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), cert. denied, 502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991), no implied bias was attributed to a juror who had a passing acquaintance with the victim and a passing familiarity with the reported circumstances of the case. In Copley v. Commonwealth, Ky., 854 S.W.2d 748, 750 (1993), we found no implied bias in a juror who was a fellow employee of the victim. The trial judge did not err in refusing to excuse these three jurors for cause.

II. PEREMPTORY STRIKES.

Appellant asserts error in the trial judge's refusal to hold a Batson hearing, Batson v. Kentucky, supra, when the Commonwealth used its peremptory strikes to excuse seven African-Americans from the jury. Appellant and Rogers are African-Americans. Marquess is Caucasian, as was Geordan.

Jury selection was completed and the jury was sworn on the afternoon of July 19, 1995. The remainder of the panel was then discharged. Appellant did not raise his Batson objection until the next day. A Batson objection which is not raised before the swearing of the jury and the discharge of the remainder of the panel is untimely. Simmons v. Commonwealth, Ky., 746 S.W.2d 393 (1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596 (1989); cf. Commonwealth v.. Snodgrass, Ky., 831 S.W.2d 176 (1992). Thus, the issue was not preserved and no hearing was required.

III. PHOTOGRAPHS.

The Commonwealth introduced two photographs of Geordan's body. The first depicted the body as it was discovered by police with Marquess's pants covering her exposed breasts and his wallet on the ground nearby. The second photograph was taken after the pants and wallet were removed. Appellant asserts that the second photograph was inflammatory and should not have been admitted, because it did not accurately reflect the crime scene and the condition of Geordan's body at the time it was discovered by the police. However, if the jury believed Appellant's version of how the pants and wallet came to be at the same location as Geordan's body, the second photograph accurately depicted the crime scene as it existed when Appellant stumbled over the body and deposited Marquess's pants and wallet at the scene. Both photographs were probative and admissible. Sanders v. Commonwealth, supra, at 676; Wager v. Commonwealth, Ky., 751 S.W.2d 28, 31 (1988); Harper v. Commonwealth, Ky., 694 S.W.2d 665, 670 (1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986); Gall v. Commonwealth, Ky., 607 S.W.2d 97, 106-07 (1980), overruled on other grounds, Payne v. Commonwealth, Ky., 623 S.W.2d 867, 870 (1981).

IV. REQUEST FOR FUNDS.

This issue usually arises pursuant to a pretrial motion for funds to hire an expert witness to assist in the presentation of the defense. E.g., Binion v. Commonwealth, Ky., 891 S.W.2d 383 (1995); Sommers v. Commonwealth, Ky., 843 S.W.2d 879 (1992). In this case, the issue arose when Melissa Vaughn testified on the last day of the prosecution's case, July 25, 1995, that on the night of Geordan's murder, she was in a car with Rogers and Rogers's mother; that they parked near a rock quarry; that Rogers disappeared in the direction of the quarry for fifteen or twenty minutes; and that when he returned, he was wearing different clothes.

Vaughn's evidence was offered as a possible explanation of why (1) the murder weapon was never found and (2) when Rogers was arrested, no hair or other evidence of physical contact with Geordan was found on his clothing. The police learned of Vaughn's evidence as a result of an anonymous tip received just two days before the trial began. They immediately searched the area around the rock quarry without success. Later, on July 23, 1995, they returned to the quarry with expert divers brought in from out of town. The divers conducted a brief and unsuccessful underwater search for the missing gun, which was aborted because of an approaching storm. Another attempted search could not be scheduled prior to the close of the Commonwealth's case. On July 27, 1995, two days after receipt of this information, Appellant requested a continuance of the trial and funding to hire his own divers to search the quarry for the missing weapon. He posits that Rogers's gun was the murder weapon, thus, proof of its existence would inculpate Rogers as the murderer and thereby exculpate him. The trial judge took these motions under advisement, but never issued a ruling.

It is the duty of one who moves the trial court for relief to insist upon a ruling, and a failure to do so is regarded as a waiver. Brown v. Commonwealth, Ky., 890 S.W.2d 286, 290 (1994) (motion to suppress post-arrest statements to police); Wilkey v. Commonwealth, Ky., 452 S.W.2d 420, 422 (1970) (motion for a copy of grand jury testimony). But even if the trial court had denied Appellant's motion, such would not have been reversible error. Vaughn did not testify that Rogers had a gun when he left the automobile. It is only speculation that Rogers might have thrown a gun into the rock quarry, or that any gun which might be found in the quarry could be proven to be the murder weapon. The police attempted an underwater search, which, though admittedly abbreviated, was unsuccessful. While we hesitate to refer to this particular request...