Mullins v. Commonwealth of Ky.

Citation350 S.W.3d 434
Decision Date22 September 2011
Docket NumberNo. 2010–SC–000263–MR.,2010–SC–000263–MR.
PartiesJames Demetrius MULLINS, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court (Kentucky)

OPINION TEXT STARTS HERE

Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.Jack Conway, Attorney General, William Bryan Jones, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice NOBLE.

Appellant, James Demetrius Mullins, was convicted of murder, tampering with physical evidence and persistent felony offender in the first degree. Appellant was sentenced to 35 years in prison. Appellant's conviction for murder is affirmed and his conviction for tampering with physical evidence is reversed.

I. Background

On the day of Dominic Faulkner's death, he and T.J. Cayson were dropped off near Whitney Avenue in Lexington by Faulkner's girlfriend so they could buy marijuana. Afterwards, he and Cayson got a ride from an unknown man in a white van and pulled up to 742 Whitney Avenue. Several men were in the yard: Appellant, George Waide, Antwuan Clark, Quincino Wade, and Anderson Porter.

Porter testified that Faulkner got out of the white van and walked over to him where the two talked. Shortly thereafter, Porter heard a gunshot and saw Faulkner's face freeze and his body jerk back. Porter realized Faulkner had been shot and ran to his car. As he got inside, Appellant jumped in the car with him and said “I'm sorry. Drive.” Porter testified that Appellant had a shiny object in his hand, but he could not say for certain whether it was a gun. Porter drove to the corner where Appellant jumped out of the car. This version of events was corroborated by T.J. Cayson, who testified that he saw Appellant shoot Faulkner with a black revolver and then jump into a black Chevy Cobalt with Anderson “Ace” Porter, who drove away. Ashley White testified that, while smoking crack cocaine on Whitney Avenue, she saw Appellant shoot Faulkner in the back three times. She left the scene and did not call the police. White testified that, two days later, she saw Appellant and he told her that he shot Faulkner. White stated that Appellant had shot Faulkner because he had stolen $10,000 from Appellant.

According to Shawn Ogden, he and Appellant had arranged to meet near Whitney Avenue in the early afternoon on the day of the shooting, but as Ogden was driving to meet Appellant, he heard sirens. He called Appellant and they agreed to meet at Jacobsen Park instead. There, Ogden purchased and smoked crack cocaine with Appellant. Appellant told him that he would be leaving town and might be gone for awhile. Appellant said, “I'm tired of niggers thinking they can get over on me. I'm not gonna let people eat for free.” Ogden further testified that he saw Appellant at Jacobsen Park again a couple of days later and asked him about Faulkner. Appellant allegedly responded, “I told you I'm not gonna let these people get over on me. I'm tired of ‘em. Fuck it. I would've put two more in him if I could've,” Over Appellant's objections, Ogden was asked at trial if he had ever seen Appellant with a gun. Ogden claimed that he saw a large silver revolver, either a .357 or a .44, in the passenger seat of Appellant's car in the week prior to the shooting.

Dr. Greg Davis, the medical examiner, confirmed that the cause of death was multiple gunshot wounds. The bullets he extracted were characterized as “medium caliber,” meaning greater than .25 caliber, but less than .50 caliber.

Lawrence Piltcher, a forensic science specialist with the Kentucky State Police, testified that all three bullets were fired from the same gun and that they were .44 caliber, hollow-point bullets. No gun was submitted for analysis in this case, because the police never found one. Piltcher testified the bullets could possibly have been fired from either Smith & Wesson or Taurus revolvers, but could not say conclusively. Detective Tim Ballinger of the Lexington Police Department Forensic Services testified that no shell casings or gun were noted at the scene.

Kim Brown testified that, prior to the shooting, she saw Appellant pass by in a car and make a gesture with his hand and finger like a gun toward Faulkner, although there was a crowd of people around and she could not say the gesture was specifically at Faulkner. She testified that Faulkner and Appellant were both at her house days or weeks before the shooting and had words with each other.

Appellant chose not to testify at trial, but the prosecution played a taped interrogation conducted on June 17, 2008. In his interview, Appellant admitted being on the porch of the house at 742 Whitney Avenue at the time of the shooting, but denied any involvement. He also denied there was any bad blood between him and Faulkner. According to Appellant, he was sitting on the porch, smoking marijuana when a white minivan pulled up and Faulkner hopped out. Faulkner was standing in the street talking when a maroon Lincoln pulled up and shots rang out. Appellant then ran from the scene. When told by detectives that eyewitnesses were implicating him as the shooter, Appellant replied, “That's not possible.” During this same interview, Appellant stated that it was not his job to turn himself in and said “I don't know what happened. I was getting high.”

The jury convicted Appellant of murder and tampering with physical evidence. After the penalty phase, wherein the jury found Appellant to be a persistent felony offender in the first degree, the jury recommended a sentence of twenty-five years for the murder conviction, and five years enhanced to ten years for the tampering with physical evidence conviction. The jury further recommended that the sentences be served consecutively for a total of thirty-five years. Consistent with the jury's recommendation, Appellant was sentenced to thirty-five years.

Appellant appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

II. Analysis

Appellant James D. Mullins was convicted in the Fayette Circuit Court of murder and tampering with physical evidence. The jury found Appellant to be a persistent felony offender in the first degree. On appeal, Appellant raises four issues. First, he argues that the trial court denied him due process by improperly instructing the jury on the lesser included offense of first-degree manslaughter under the theory of intent to cause serious physical injury rather than under the theory of extreme emotional disturbance. Second, he argues that the prosecutor committed misconduct by materially misquoting Appellant's statements to detectives in her closing arguments and by characterizing his behavior as “uncontrollable.” Third, he argues that the trial court denied him due process by allowing testimony regarding a handgun seen in Appellant's car several days prior to the shooting. Last, he argues that the trial court denied him due process by failing to direct a verdict of acquittal on the charge of tampering with physical evidence. For the reasons set forth below, Appellant's conviction for murder is affirmed and his conviction for tampering with physical evidence is reversed.

A. Absence of Extreme Emotional Disturbance Instruction

The jury in this case was instructed on manslaughter in the first degree under a theory of intent to cause serious physical injury. Appellant argues that this instruction was not supported by the evidence and that the jury should have been instructed on manslaughter in the first degree under a theory of extreme emotional disturbance instead.

Following the close of the Commonwealth's case, there was a lengthy discussion regarding jury instructions. When asked by the trial judge whether a first-degree manslaughter instruction was warranted, the Commonwealth responded that they wanted the instruction included. Appellant's counsel stated that Appellant did not want any lesser-included offenses in the instruction. Appellant's counsel stated that he disagreed with Appellant on this, but that because Appellant did not want them, he would not ask for any. Appellant's counsel further stated that, due to his position on the matter and to protect the record, he would not object to the Commonwealth's request for the first-degree manslaughter instruction. The trial judge then stated that there was sufficient proof for the manslaughter charge due to evidence that Appellant had been “ripped off” by Faulkner. The trial judge acknowledged that Appellant did not want the instruction, but that it would be included at the Commonwealth's request.

There was then discussion regarding what language the first-degree manslaughter instruction would include. At this point, Appellant's counsel stated, “There hasn't been any evidence of the EED.” The trial judge then clarified everyone's understanding of the instructions and asked if anyone had comments. Neither the Commonwealth nor Appellant's counsel responded. The trial judge then discussed the definitions that would be included in the instructions. At this time, Appellant's counsel clearly stated, “EED is out.” After discussing the remaining definitions, Appellant's counsel stated he had no objection to the instructions.

This Court finds that this issue was not preserved by Appellant at trial. Appellant has requested review for palpable error under RCr 10.26. However, a review for palpable error is not appropriate because Appellant waived his claim to cite this particular issue as error. The circumstances surrounding the failure to give the EED instruction in this case are similar to those in the recently decided case, Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky.2011). Quisenberry contended that the evidence at his trial failed to support a conviction for facilitation. Id. at 37. However, Quisenberry himself had requested the facilitation instruction. Id. The Court found that Quisenberry had waived his claim for appeal on the basis of his express...

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    ...say that an essential prong of Barnes is satisfied here, as proof of Goncalves's guilt was indeed overwhelming. See Mullins v. Commonwealth, 350 S.W.3d 434 (Ky.2011) (evidence that appellant's guilt was overwhelming bars reversal under Barnes ). Finally, we do not agree that the trial court......
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    ...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 scen......
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    ...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 sce......
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    ...scene with evidence. If this amounted to a charge of tampering, the result would be an impermissible “piling on.”Mullins v. Commonwealth, 350 S.W.3d 434, 442–43 (Ky.2011). In another weapons case, the court suggested that the juvenile defendant's act of tossing a gun over a privacy fence du......
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