Mathews v. Commonwealth

• Decision Date: 25 March 1999
• Docket Number: 97-SC-000053-MR
• Citation: 997 S.W.2d 449
• Parties: NEFCHEVIOUS MATHEWS, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE
• Court: Supreme Court of Kentucky

[1]

997 S.W.2d 449

[2]

NEFCHEVIOUS MATHEWS, APPELLANT

v.

COMMONWEALTH OF KENTUCKY, APPELLEE

[3]

97-SC-000053-MR

[4]

Kentucky Supreme Court

[5]

APPEALED FROM WARREN CIRCUIT COURT HONORABLE THOMAS R. LEWIS, JUDGE INDICTMENTNO. 95-CR-074901

[6]

March 25, 1999

[7]	Counsel For Appellant David T. Eucker Department of Public Advocacy 100 Fair Oaks Lane Suite 302 Frankfort, KY 40601 Counsel For Appellee A.B. Chandler III Attorney General Perry T. Ryan Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, KY 40601 Christopher Hancock Assistant Commonwealth's Attorney Second Floor 400 East Main Street Bowling Green, KY 42101
[8]	The opinion of the court was delivered by: Justice Graves
[9]	MODIFIED: AUGUST 26, 1999
[10]	TO BE PUBLISHED
[11]	AFFIRMING
[12]	Appellant, Nefchevious Mathews, was convicted in the Warren Circuit Court of intentional murder and sentenced to life imprisonment. He appeals to this Court as a matter of right. After hearing oral arguments and reviewing the record, we affirm.
[13]	On October 25, 1995, Appellant and Dalton Morrow engaged in an argument which escalated to the point that there was an exchange of gunfire. Appellant's gunfire missed Morrow, but fatally struck an innocent bystander who was standing some distance away. A Warren County jury found that Appellant fired first with the intent to kill Morrow, and convicted him of intentional murder.
[14]	Appellant's first claim of error is the trial court's refusal to suppress his statement to the arresting officer. He argues that the prosecution withheld this statement in violation of a discovery order. Appellant claims that the court's refusal to suppress this statement precluded his testifying and thereby denied him due process and a fair trial.
[15]	At the close of its case-in-chief, the Commonwealth called Darlene Lackey, a detective with the homicide unit of the Cincinnati Police Department. Defense counsel objected and claimed surprise because there was no motion to secure the attendance of Detective Lackey and there was not a returned subpoena in the file. At sidebar, defense counsel was informed that Detective Lackey was prepared to testify not only as to the date and location of Appellant's arrest, but also to Appellant's oral statement given after signing a waiver of his constitutional rights. Appellant told Detective Lackey that he did not shoot the victim, but that a third party fired the fatal shot. Prior to Detective Lackey being called, Appellant apparently planned to claim self-defense.
[16]	The trial court ruled Detective Lackey could testify during the Commonwealth's case-in-chief only as to when and where she arrested Appellant, because the testimony was relevant to show flight; however the trial court further ruled that if Appellant chose to testify, and claimed self-defense, the Commonwealth could introduce the statement during rebuttal to show a prior inconsistent statement. Appellant argues this ruling prevented him from testifying, thereby "gutting" his self-protection defense.
[17]	Appellant contends he was entitled under RCr 7.24(l) to have the Commonwealth provide in pretrial discovery the substance of his own alleged statement. Appellant also cites the Commonwealth's constitutional duty to provide an accused with any exculpatory evidence. Eldred v. Commonwealth, KY., 906 S.W.2d 694, 701 (1995). Citing McGinnis v. Commonwealth, KY., 875 S.W.2d 518, 521 (1994), overruled on other srounds, Elliott v. Commonwealth, 976 S.W.2d 416 (19981, Appellant argues a defendant's own testimony is essential to the presentation of a self-protection defense. Additionally, Appellant points to RCr 7.24 (9), which allows a trial court to direct a party to permit discovery, grant a continuance, prohibit the introduction of undisclosed evidence, or "enter such other order as may be just under the circumstances."
[18]	The Commonwealth responds that Appellant, on the advice of counsel, made a strategic decision, based upon the facts and circumstances as they existed at the time, not to testify and risk impeachment. The Commonwealth further contends that Appellant could have chosen to testify by avowal under RCr 9.52 and, since no record was made of what Appellant actually would have testified to, this Court has no way to determine whether Appellant's testimony would have been inconsistent with his prior oral statement. We agree.
[19]	RCr 7.24(l) states in relevant part:
[20]	Upon written request by the defense, the attorney for the Commonwealth shall disclose the substance of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness, and to permit the defendant to inspect and copy or photograph any relevant . . . written or recorded statements or confessions made by the defendant, or copies thereof, that are known by the attorney for the Commonwealth to be in the possession, custody, or control of the Commonwealth . . . . (Emphasis added).
[21]	In Anderson v. Commonwealth, KY., 864 S.W.2d 909, 914 (1993), we held the oral statement of one defendant which was recorded in a social worker's notes was clearly discoverable under RCr 7.24. However, this Court stated in Berw v. Commonwealth, KY., 782 S.W.2d 625, 627 (1990), "RCr 7.24 applies only to written or recorded statements." This portion of Berry dealt with the defendant's claim of a discovery violation where the prosecution had not provided prior to trial a witness's statement identifying the defendant. At best, this would have been a claim of violation of RCr 7.24(2), which deals with statements made by witnesses, not 7.24(l), which deals with statements made by the defendant. However, in Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (19961, we upheld Berrv in a RCr 7.24(l) context. In Partin, a police detective revealed for the first time at trial that the defendant had said, "Oh, well," when he was informed of the state in which his estranged paramour's corpse was found. Id. This Court found no harm in the admission of this statement and, despite paraphrasing the relevant portions of RCr 7.24(l), found the above quoted sentence from Berrv applicable so that no error occurred. Id.
[22]	Concerning the nature of Appellant's statement, there is a distinction between the cited case law and the facts at hand. Clearly, claiming that another was responsible for the shooting does not constitute an incriminating statement so as to fall under the guise of RCr 7.24(l). Further, although Appellant's statement could be considered exculpatory, he was aware that he, in fact, made such an assertion to Detective Lackey. Appellant's failing to reveal the statement to his counsel can only be viewed as a strategic decision.
[23]	An additional consideration is the fact that defense counsel chose to reserve opening statement and Appellant ultimately did not testify. As such, although Appellant had alluded to a self-protection defense, we have no way of knowing what Appellant's testimony would have actually been. In Lute v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443

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