Malone v. Commonwealth, No. 2010–SC–000491–MR.

• Decision Date: 26 April 2012
• Docket Number: No. 2010–SC–000491–MR.
• Parties: Kenneth MALONE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

364 S.W.3d 121

Kenneth MALONE, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000491–MR.

Supreme Court of Kentucky.

April 26, 2012.

Julia Karol Pearson, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney, General Office of Criminal Appeals Attorney General's Office, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Kenneth Malone appeals as of right from a June 24, 2010 Judgment of the Jefferson Circuit Court convicting him of murder (KRS 507.020) and sentencing him, in accord with the jury's recommendation, to thirty-two years in prison. Malone was found guilty of the November 22, 2008 handgun slaying of Montez Stewart in Louisville. He raises four issues on appeal: (1) that he was denied his right to present a complete defense; (2) that the trial court erred by denying his motion for a directed verdict; (3) that the trial court erred by instructing the jury on alternative theories of murder; and (4) that he was denied his right to be present when the court responded to the deliberating jury's requests for additional information. Finding no reversible error, we affirm.

RELEVANT FACTS

Moritez Stewart was killed at about 7:30 pm on November 22, 2008 at the home of Stephon Murphy on Louisville's Boling Avenue. Murphy testified that he and Stewart had been good friends in the past and had recently renewed their friendship. Murphy had converted one of his home's front rooms into a sort of recording studio where he and his acquaintances composed and recorded the background music—the “beats”—for rap songs as well as the rap lyrics. It was not unusual for several people to gather at Murphy's home either to participate in rapping or to listen as others did so. According to Murphy and to the Commonwealth's other principal witness, Deonte Hudson, who testified that he and Stewart had been close friends since childhood, Malone was in Murphy's studio on the evening of November 22 working on or listening to a rap beat when Stewart and Hudson arrived there to visit with Murphy and to hear the music. Almost immediately upon arriving, according to the two witnesses, Stewart began rapping to Malone's beat, and something about his performance seemed to upset Malone. Malone abruptly left the house and when he returned just a minute or two later he approached Stewart until their faces were only inches apart. Stewart, according to Hudson, responded by rapping more loudly, whereupon Malone pulled out a gun and shot Stewart several times. Hudson testified that at first he thought that one of the sound system's speakers had “blown,” but after the second shot Stewart dropped to his hands and knees, and he, Hudson, saw the gun in Malone's hand. Malone fired a third shot as Hudson was attempting to come to Stewart's aid. At that point Malone waved the gun at Hudson and said, “Get him out of here.” Before Hudson could do anything, however, Malone fired two more shots at Stewart and then ran from the house.

Stewart, meanwhile, had been crawling toward the door. Bleeding profusely, he managed to crawl outside onto the front porch, where he collapsed. That is where police officers and paramedics found him. He was taken by ambulance to the University of Louisville Hospital and died there shortly after his arrival. According to the medical examiner, Stewart was shot five times, twice in the chest, once in the abdomen, and twice in the thigh. The three upper body shots and one of the thigh shots all caused severe bleeding. The medical examiner concluded that Stewart died as a result of injuries sustained from multiple gun shots.

At trial, although their testimonies differed in a number of particulars, Murphy and Hudson both positively identified Malone as Stewart's assailant. Hudson testified that he saw Malone fire the fatal shots, and Murphy testified that while he did not actually see the gun in Malone's hand, he did see Malone standing above Stewart immediately after he heard the shots, and he then saw Malone run from the scene. The statements Murphy and Hudson initially gave to the police, however, were not quite so definite.

Both men had been with Stewart when the police arrived and both were interviewed later that evening. Because a car registered to Malone was parked in front of Murphy's house, detectives suspected Malone's involvement and so prepared a photo pack that included a picture of him. Hudson, who did not know Malone, initially told the detective that the shooter was wearing a hood and that he had not gotten a good look at his face. He picked Malone's picture from the photo pack, but told the officer that he was not sure that was the shooter. At trial, Hudson testified that he had not been completely honest with the detective. He had pretended, he said, to be less certain than he was that Malone was the shooter, because he hoped that Malone would not be arrested but would be subjected to “street justice” instead.

Murphy, who knew Malone, Malone being his girlfriend's cousin, initially told the detective that the shooter was a person named, “Bill,” and he picked from the photo pack a picture other than Malone's. A short time later, however, when shown the photo pack again, Murphy admitted that his earlier identification had been false. The second time he picked out the picture of Malone. At trial, Murphy explained that he had lied to the detective initially because he did not want to be involved.

Malone's defense was primarily an attempt to discredit Hudson's and Murphy's accounts of the shooting and their in-court identifications of him as the killer. In addition to underscoring their initial police statements doubting or denying Malone's involvement, Malone presented the testimony of Perry McDonald. McDonald is Malone's uncle and the uncle of Murphy's girlfriend. In November 2008 he was living with his niece and Murphy at Murphy's house. He testified that during the evening of November 22, he had come upstairs from his basement quarters and was in a hallway outside Murphy's studio when he heard what he first thought was two people rapping. The rapping, however, turned into arguing, followed shortly by gunshots. He looked into the studio and saw a tall man with a goatee, who, he assumed, was the shooter. According to McDonald, Malone was not present. Frightened by the situation, he went downstairs to his room. A short time later, McDonald testified, Murphy came down and told him to tell the police that Malone was the shooter.

On the night of the shooting McDonald had given the police a very different account of the incident, and when, during cross-examination, he had trouble recalling that statement, a recording of it was played for the jury. In that statement, McDonald told a detective that he had witnessed Malone and Stewart in Murphy's studio seemingly trying to out-rap each other and soon thereafter had heard shots. He claimed at first not to have seen the shooting, but admitted later that he had seen Malone holding a gun and pointing it at Stewart. When shown the photo pack, he had picked out Malone's picture as that of the shooter. Having listened to the recording of his statement, McDonald testified that he fabricated much of it because Murphy had asked him to do so.

As noted, the jury rejected Malone's defense, and Malone now claims that the development of that defense was unfairly limited by the exclusion of evidence bearing on Hudson's and Murphy's credibility and on their possible involvement as perpetrators. We begin our analysis with a consideration of this assertion of error.

ANALYSIS

I. Malone Was Not Denied an Opportunity to Present a Defense.

Prior to trial, the Commonwealth moved to exclude evidence concerning Stewart's criminal history and his blood-alcohol content at or near the time of his death. Malone objected and argued that such evidence could prove relevant as bearing on someone else's motive for killing Stewart. The trial court acknowledged Malone's concern and granted the Commonwealth's motion only to the extent of ruling that before such evidence was elicited the parties were to approach the bench and discuss whether the evidence had become relevant. At no point during the trial did Malone seek to introduce such evidence, although he did, without objection, elicit from Hudson testimony to the effect that he and Stewart spent virtually the entire day prior to the shooting drinking beer and visiting.

During his cross-examination of Murphy, Malone established that at the time of the shooting Perry McDonald resided at Murphy's house and then asked whether McDonald was a “drinker.” The Commonwealth objected on the ground that impeachment of McDonald was inappropriate since McDonald was not to be one of the Commonwealth's witnesses and that otherwise McDonald's being a drinker was irrelevant. Malone countered by arguing that “what went on in the house” such as drinking, smoking, and parrying was relevant. Sustaining the objection, the trial court ruled that while Malone could perhaps pursue more general questions concerning the “atmosphere in the house,” the particular question about McDonald was not to be admitted. Rather than asking Murphy more general questions about his house and what went on there, however, Malone moved on to a new topic. Later, when Malone called McDonald as a defense witness, McDonald testified, without objection, that he drank every day and spent much of the day of the shooting in his basement room drinking gin.

Malone contends that these rulings by the trial court—the ruling requiring a showing of relevance before evidence of the victim's criminal history and blood alcohol content could be elicited and the ruling excluding Murphy's answer to the question about McDonald's drinking—somehow denied him a fair opportunity to establish the context of the crime and to show that Hudson and Murphy were unworthy of belief and...