Morris v. Commonwealth

Decision Date25 March 2021
Docket Number2019-SC-0606-MR
PartiesBRADLEY TYSON MORRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
CourtUnited States State Supreme Court — District of Kentucky

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM GRAVES CIRCUIT COURT

HONORABLE TIMOTHY C. STARK, JUDGE

NO. 18-CR-00058

MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

Bradley Morris appeals as a matter of right1 from his convictions of assault in the first degree, burglary in the first degree, felon in possession of a handgun, tampering with physical evidence and being a persistent felony offender ("PFO") in the second degree. The Graves Circuit Court sentenced Morris to seventy years of imprisonment. Following a careful review of the record and the applicable law, we affirm the trial court, except that we reverse Morris's conviction for tampering with physical evidence.

I. FACTUAL AND PROCEDURAL BACKGROUND.

In December 2017, Kathy Bouland was shot three times. When Officer Kimbro arrived at the scene, he asked Bouland if she knew the identity of her assailant. Bouland responded that the shooter was her ex-boyfriend, Bradley Morris. Morris turned himself in to police custody that same afternoon, claiming he had heard there was a warrant out for his arrest, but admitting no wrongdoing. A grand jury indicted Morris for assault in the first degree, burglary in the first degree, felon in possession of a handgun, tampering with physical evidence; and for being a PFO in the first degree.

During voir dire, Morris objected when the Commonwealth listed his cousin, Donnie Morris ("Donnie"), as a witness, claiming Donnie's inclusion violated the forty-eight-hour rule in RCr2 7.26. The court noted the objection but reserved ruling until Donnie was called at trial.

At trial, the Commonwealth presented testimony that on the day of the incident, Morris had been searching for Bouland and threatened her friend for her whereabouts, once he recognized Bouland's vehicle in an apartment parking lot. Bouland testified that when she stepped out of the apartment, Morris exited the back of a vehicle, immediately firing at and striking her in the calf. Bouland stated that she retreated to the apartment, trailed by Morris, who was still shooting at her. As she entered the apartment, one of the bullets struck her arm. Bouland testified that she sought refuge in the bathroom, where another bullet struck her knee. Bouland testified that the rain of bulletscontinued until she heard a "click" as if from an empty magazine. Bouland's and other eye-witness testimony established that Morris immediately fled the scene after running out of ammunition.3

On the second day of trial, the Commonwealth called Donnie to testify, to which Morris again objected, but was overruled by the trial court. Donnie testified that on the day Bouland was shot, he received a phone call from a number he did not recognize. The caller asked Donnie if he was at work. Donnie responded affirmatively, and the caller hung up. Although Donnie and Morris spoke almost daily, Donnie testified that he was unsure who had called him in part because the conversation was brief, and the caller did not identify himself.

Thereafter, the Commonwealth called Charles Kirk to testify. Kirk worked as the maintenance employee for the apartment complex where Bouland was shot. Morris objected to his testimony on the grounds that the prosecution failed to identify him as a witness prior to trial. The record reflects that Kirk was never on a witness list, and his subpoena was returned only a day before trial. The trial court overruled Morris's objection and he was allowed to testify. His sole testimony confirmed that the apartment complex lacked surveillance equipment where the attack occurred.

The jury convicted Morris of all counts, and sentenced him to more than seventy years of imprisonment. The trial court reduced Morris's sentence to the statutory maximum of 70 years. This appeal followed. Additional facts will be discussed as necessary to resolve issues raised.

II. ANALYSIS.
A. RCr 7.26.

During voir dire and the Commonwealth's case-in-chief, Morris objected to the testimony of Donnie and Kirk, both of whom ultimately testified. With regards to Donnie's testimony, Morris stated that while he had received a subpoena notice the previous week, Donnie was not on the Commonwealth's witness list, and that Donnie's testimony was not provided to Morris in compliance with RCr 7.26(1) as well as being untimely under the forty-eight-hour component of the rule. Morris additionally asserts on appeal that the Commonwealth violated RCr 7.24(2). Morris, however, did not rely on or argue RCr 7.24 to the trial court, thereby failing to preserve the challenge. See Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) (stating "[a] new theory of error cannot be raised for the first time on appeal[]"). We decline to review the challenge on the basis of RCr 7.24. Additionally, Morris seems to assert that the Commonwealth failed to disclose that Donnie or Kirk would testify and the substance of their respective testimony. Our criminal rules do not require disclosure of witness lists or the type of discovery Morris suggests was lacking. See Porter v. Commonwealth, 394 S.W.3d 382, 387 (Ky. 2011) (holding that "the defendant does not have a right to all information possessedby the prosecutor. Nor is a defendant generally entitled to a list of witnesses from the opposing party[]") (citations omitted).

RCr 7.26(1) provides:

[N]ot later than forty-eight[] hours prior to trial, the attorney for the Commonwealth shall produce all statements of any witness in the form of a document or recording in its possession which relates to the subject matter of the witness's testimony and which (a) has been signed or initialed by the witness or (b) is or purports to be a substantially verbatim statement made by the witness. Such statement shall be made available for examination and use by the defendant.

Morris's reliance on RCr 7.26(1) misinterprets the rule's scope and intended application. RCr 7.26(1) does not create an affirmative duty on the Commonwealth or its investigatory teams to create evidence for the defense. Instead, the rule only becomes operative when such evidence exists. Robinson v. Commonwealth, 490 S.W.2d 481, 482 (Ky. 1973). Relying on the plain language of RCr 7.26(1), the Commonwealth was obliged to provide Morris copies of witness statements "in its possession" which were memorialized in a "document or recording" and which related to the "subject matter of the witness's testimony[.]"

As with all discovery rulings, the trial court's decision is treated as a finding of fact and therefore is entitled to an abuse of discretion standard of review on appeal. Brown v. Commonwealth, 416 S.W.3d 302, 308 (Ky. 2013). Consequently, we will not disturb the trial court's decision unless the ruling was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). Even when a discovery violation is discovered, reversal is onlyappropriate when "a 'reasonable probability' [exists] that had the evidence been disclosed the result at trial would have been different." Weaver v. Commonwealth, 955 S.W.2d 722, 726 (Ky. 1997) (quoting Wood v. Bartholomew, 516 U.S. 1, 6 (1995)); see also RCr 9.24 (setting forth harmless error rule and stating that the "court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties[]"); Baumia v. Commonwealth, 402 S.W.3d 530, 545-46 (Ky. 2013) (affirming conviction due to overwhelming evidence against defendant, notwithstanding Commonwealth's failure to disclose prior misdemeanor theft conviction introduced during penalty phase); Grant v. Commonwealth, 244 S.W.3d 39, 44 (Ky. 2008) (reversing conviction due to Commonwealth's concealment of defendant's incriminating phone call introduced in rebuttal following defendant's testimony).

1. Donnie Morris's Testimony.

Morris's objection to Donnie's testimony is without merit because he received all the information which the Commonwealth possessed, the two bodycam videos which recorded Officer Brian Adams' conversation with Donnie.4 Officer Adams called Donnie during the early minutes of the manhunt for Morris. The conversation between Adams and Donnie solelyfocused on whether Donnie could provide the police with information to help them apprehend Morris. The phone call was short and culminated in Donnie relaying a phone number which the officers "pinged" in an attempt to locate Morris.

By its terms, RCr 7.26(1) is inapplicable. First, a recording, obviously, is not a document subject to signing. RCr 7.26(1)(a). Secondly, the recording was not or "purport[] to be a substantially verbatim statement made by" Donnie. RCr 7.26(1)(b). The Commonwealth is not required to create evidence in a form the defense might wish to have. See Yates v. Commonwealth, 958 S.W.2d 306, 308 (Ky. 1997) (holding RCr 7.26(1) only requires production of statements; no requirement limits testimony to the four corners of a document). No discovery violation occurred as to Donnie's testimony.

2. Charles Kirk's Testimony.

Kirk...

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