McAtee v. Commonwealth, 2011-SC-000259-MR

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSCOTT
Docket Number2011-SC-000259-MR
Decision Date26 September 2013



Supreme Court of Kentucky

RENDERED: September 26, 2013


NO. 09-CR-002646



A Jefferson Circuit Court jury found Appellant, Derrick K. McAtee, guilty of murder and tampering with physical evidence. For these crimes, Appellant was sentenced to twenty-five years in prison. He now appeals as a matter of right, Ky. Const. § 110(2)(b), arguing that (1) he was entitled to a directed verdict of acquittal on the tampering charge, (2) the trial court erroneously permitted the introduction of out-of-court testimony, (3) the trial court erroneously permitted the jury to review a videotaped witness statement in the deliberation room, (4) the trial court erroneously prohibited him from introducing his entire statement to police, (5) the prosecutor's closing argument was misleading and denied him his right to a fair trial, and (6) the trial court improperly coerced a verdict from a hung jury.

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For the reasons that follow, we reverse Appellant's conviction for tampering with physical evidence and vacate his sentence for that conviction, but affirm his murder conviction and corresponding sentence.


On July 9, 2009, Rodney Haskins was murdered in front of Pamela Beals's Louisville home. Four days later, Detective Kevin Trees interviewed Beals over the telephone. Beals told Detective Trees that she "saw the whole thing." Beals was on her front porch with her daughter and their neighbor, Gregory Kilgore, when they witnessed an altercation between Haskins and another man. The altercation ended when the other man shot Haskins multiple times. Beals identified the shooter as "YG," a young man she knew from the neighborhood.

Detective Trees interviewed Kilgore in September 2009. Kilgore confirmed that he was standing on the porch with Beals and her daughter when the argument between "YG" and the victim began. Kilgore told the detective that when the argument escalated he left Beals's porch to return home (two houses away). As he was walking home he heard shots. Later in the interview, when asked if he could identify "YG" from a photopack identification lineup, Kilgore identified Appellant's photograph. Detective Trees then asked: "Is that the guy who shot Rodney Haskins that evening?" Kilgore admitted it was.

A Jefferson County Grand Jury indicted Appellant for murder and tampering with physical evidence. At trial, the Commonwealth called both

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Beals and Kilgore to testify, but both alleged to have no memory of the events in question. Beals testified that the first time she saw Haskins he was lying in front of her house. She denied all of the following: seeing Haskins in an altercation prior to the shooting, seeing him get shot, knowing Gregory Kilgore, and knowing anyone named "YG." She also denied having any recollection of speaking with Detective Trees.

Likewise, Kilgore testified at trial that he did not remember the night of the murder. Moreover, although he remembered meeting with Detective Trees in September 2009, he did not recall anything that they talked about during the interview. Nor did he remember identifying Appellant in the photopack lineup as the individual who murdered Haskins.

The trial court, however, permitted the Commonwealth to impeach Beals and Kilgore with their prior statements to Detective Trees: Beals with notes contained in Detective Trees's investigative letter and Kilgore with the transcript of his videotaped interview. Additionally, the trial court permitted the Commonwealth to introduce the videotaped recording of Kilgore's interview with Detective Trees, which was played for the jury in open court. During deliberations, the jury requested and was again permitted to review Kilgore's recorded interview in the deliberation room.

Ultimately, the jury found Appellant guilty of murder and tampering with physical evidence. However, while deliberating Appellant's sentence the jury sent the trial court a note asking: "What degree of agreement is required of the

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jury?" The trial court informed the parties of the inquiry and prepared a one-word memo in response: "Unanimous."

Less than an hour later, the jury sent the following note to the trial court: "We are not going to be able to come to a unanimous decision on the sentence." The court then brought the jury back to the courtroom, determined that further deliberations might be useful, and, pursuant to RCr 9.57, sent the jury back for further deliberations. Two hours later, the jury returned with a unanimous recommendation of twenty-five years' imprisonment for the murder charge and five years' imprisonment for the tampering charge, to be served concurrently. The trial court adopted the recommended sentence and this appeal followed.

Additional facts will be developed where required for our analysis.


A. Tampering with physical evidence and motion for directed verdict

Appellant argues that he was entitled to a directed verdict of acquittal on the tampering with physical evidence charge, citing insufficient evidence to support a conviction thereon.1 "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of

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acquittal." Commonwealth v. Benham, 816 S.W.25d 186, 187 (Ky. 1991) (citation omitted).

"A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he . . . [d]estroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding . . . ." KRS 524.100(l)(a). The Commonwealth contends that when drawing all fair and reasonable inferences in its favor, Benham, 816 S.W.2d at 187, it would not clearly be unreasonable for a jury to find guilt under this statute. Specifically, the Commonwealth argues that the evidence reflected that: (1) Appellant shot Haskins; (2) he either walked away or ran away from the scene; and (3) the gun was not found at the scene. It further argues that Appellant should have known that a murder would trigger an official proceeding, and alleges that the jury could therefore have reasonably inferred that Appellant removed the gun "with intent to impair its verity or availability in the official proceeding." KRS 524.100(l)(a).

In Mullins v. Commonwealth, this Court held that "walking away from the scene with the gun is not enough to support a tampering charge without evidence of some additional act demonstrating an intent to conceal." 350 S.W.3d 434, 442 (Ky. 2011). In Mullins, the evidence reflected that (1) the appellant shot the victim, (2) he immediately entered a vehicle which left the scene, (3) he brought the murder weapon with him into the vehicle, and (4) no shell casings or gun were found at the murder scene. Id. We rejected the

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Commonwealth's argument that this was sufficient evidence from which a reasonable juror could have found the appellant guilty of tampering. Id. at 444. Instead, we noted that when it is a murder suspect who is fleeing the murder scene with the murder weapon, "it is reasonable to infer that the primary intent . . . is to get himself away from the scene and that carrying away evidence that is on his person is not necessarily an additional step, or an active attempt to impair the availability of evidence." Id. at 443. Thus, although it was reasonable to infer that the appellant in Mullins was holding the gun when he shot the victim, and that the appellant was "[c]learly . . . attempting to flee the scene[,]" id., "[t]he fact he carried the gun away from the scene with him was merely tangential to the continuation of that crime." Id.

Having determined that merely leaving the scene of a crime with evidence used to commit the crime was insufficient by itself to support a tampering charge, we turned our attention to whether the tampering charge was supported "where the gun was ultimately found or based on evidence of an additional act." Id. We first noted that "there was no evidence of an intentional act of concealment, or even of flight from the police." Id. at 444. Additionally, the fact that the gun was never found did not "mean it was placed in an unconventional location." Id. Rather, we noted that the gun could have been placed in a conventional location (e.g., the vehicle in which he was seen leaving the murder scene, his home), but that the record did not indicate that the police searched either of these places. Id. The police had inexplicably only searched for the murder weapon at the scene of the crime five months after the

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murder took place. Id. The gun's absence from that location at that late date was insufficient evidence to support a tampering charge. Id.

The facts of the case before us are remarkably analogous to those in Mullins. The Commonwealth argues that Mullins "ignores very pertinent facts which supported the tampering charge in this case. The appellant did not keep the gun and wait for the police to arrive, lay the gun down for the police to find or deliver the gun to the police. The appellant either walked away or ran away with the gun." However, this is the precise argument we rejected in Mullins:

If a defendant walks away from the scene in possession of evidence, this does not necessarily lead to a violation of the statute. When a crime takes place, it will almost always be the case that the perpetrator leaves the scene with evidence. If this amounted to a charge of tampering, the result would be an impermissible "piling on."

Id. at 443. Thus, we conclude that merely leaving the scene with the murder weapon was...

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