Quisenberry v. Commonwealth of Ky.
| Decision Date | 24 March 2011 |
| Docket Number | 2009–SC–000418–MR.,Nos. 2009–SC–000302–MR,s. 2009–SC–000302–MR |
| Citation | 336 S.W.3d 19 |
| Parties | James QUISENBERRY, Appellant,v.COMMONWEALTH of Kentucky, Appellee.andKenneth Williams, Appellant,v.Commonwealth of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
OPINION TEXT STARTS HERE
V. Gene Lewter, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant, Quisenberry.Daniel T. Goyette, Louisville Metro Public Defender, Cicely Jaracz Lambert, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant, Williams.John Conway, Attorney General, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice ABRAMSON.
Kenneth Williams and James Quisenberry appeal as of right from Judgments of the Jefferson Circuit Court sentencing them, respectively, to life and to forty-five years in prison for their roles in the robbery and murder of Earon Harper and the shooting of Harper's two-year-old daughter, Erica. The two men were tried jointly. At the conclusion of the two-week trial, the jury found both of them guilty of robbery and, as to Earon Harper's death, found Williams guilty of murder and Quisenberry guilty of second-degree manslaughter. The jury further found Williams guilty of assaulting and attempting to murder Erica, Quisenberry guilty of facilitating those offenses and both defendants guilty of tampering with physical evidence. Finally, the jury found Quisenberry guilty of being a second-degree persistent felon, but declined to enhance his sentence recommendation on that ground. Because of the joint trial and the common underlying facts, we have consolidated the two appeals for consideration in a single opinion. Williams contends that the trial court erred (1) by refusing to order separate trials; (2) by failing to instruct the jury concerning the proper use of statements the defendants gave to police; and (3) by refusing to suppress Williams's own statement, allegedly obtained in violation of Miranda. Quisenberry contends that the trial court erred (1) by denying his motion for a directed verdict of acquittal on all charges and (2) by imposing cumulative punishments for the facilitation of assault and facilitation of attempted murder offenses. Finding no reversible error, we affirm in both appeals.
Construing the evidence in the light most favorable to the Commonwealth, on the afternoon of May 18, 2006, Earon Harper's landlord stopped by Harper's rental home, on Wilson Avenue in south Louisville, found an open, empty purse lying on the walk leading to her door, and found the door ajar. When Harper did not respond to his knock, he entered the home and discovered Harper's body lying on the floor between the front room and a bedroom. In the bedroom, he found two-year-old Erica lying on the bed, badly wounded and moaning in pain. The landlord called 911, and the first officers to respond immediately transported the child to the hospital.
The medical examiner testified that both victims had been shot at least two times. Harper was shot once in the right thigh and once from just a few inches away, near the left ear. The examiner could not determine the order of the shots, but he testified that the shot to the head would have been instantly incapacitating. Erica was also shot once in the thigh, a piercing shot that entered and exited the thigh, and shot again in the left forehead. As with Harper, the examiner could not determine the order of the shots. The shot to the head was from within two feet, and the bullet appeared to have passed downward through the child's head, out her jaw, into her chest, and out her right flank. The chest-to-flank injury, however, could have been the result of a third shot. Somehow Erica survived those injuries, but she was left blind in one eye.
Louisville Metro Police Department (LMPD) investigators recovered bullets and shell casings from the scene, and ballistics testing determined that all of them had been fired from a 9mm firearm, with the bullets from the same gun and the casings from the same gun. Investigators also found cigarette butts and soda cans in the bedroom. DNA analysis determined that a DNA sample recovered from one of the cigarettes matched a sample taken from Quisenberry, and a sample recovered from one of the soda cans matched a sample taken from Williams. The investigators found empty prescription bottles in Harper's name strewn about the bedroom floor and, in the bedroom closet, they found a small safe which had been opened, with its main compartment empty.
Phone records showed that shortly after midnight on May 18, 2006, hours before Harper's body was discovered, Harper received two brief calls from a number registered to Quisenberry. Those records led investigators to interview Quisenberry on June 6, 2006. At that interview Quisenberry admitted that the phone number was his, that he and Harper had known each other for several years, and that their relationship included the exchange of prescription medications. He did not tell the investigators that he had been in Harper's house later that morning of May 18th.
Through testimony by a pharmacist and excerpts from the surveillance video at the Walgreens pharmacy where he worked, the Commonwealth established that during the evening of May 17, 2006 two persons resembling Quisenberry and Williams came to the pharmacy's prescription window. Although the men were unsuccessful in their attempt to obtain prescription medicine, the jury did not hear this, only that the men were at the pharmacy window. Soon thereafter the pharmacist discovered that the owner's manual, registration, and insurance certificate had been stolen from his car. A few days later, in response to a citizen's report, a police investigator found those items belonging to the pharmacist in a catch basin not far from Harper's home along with Harper's driver's license, various bank and shopping cards issued in Harper's name, and empty prescription bottles also bearing Harper's name.
Key to the Commonwealth's case was the testimony of Rashon Turner, a long-time acquaintance of both Quisenberry and Williams. Facing unrelated murder charges of his own, in July 2007 Turner agreed to testify against his former friends in exchange for a favorable plea bargain. Turner told investigators, and later testified at trial, that early one morning “a couple of weeks after the Derby” in 2006, he was on the porch of Williams's mother's house visiting with Williams's brother, when he received a phone call from Williams, who claimed to have just “hit a lick,” i.e., committed a robbery. A short time later Quisenberry dropped Williams off at the house, and Williams told Turner that he and Quisenberry had gone to the home of a woman Quisenberry knew on Wilson Avenue to get some pills. According to Turner, Williams, in the course of taking the woman's purse away from her grasp, had shot her two times and then had shot another person. Williams showed Turner some pills and a black, semi-automatic, 9mm handgun. He also stated that he had discarded some papers and other items while he and Quisenberry were still in south Louisville. Turner believed that Williams later sold the gun.
Armed with this information, on August 29, 2007, LMPD investigators interviewed Williams and reinterviewed Quisenberry. Both initially denied having been at Harper's house the morning Harper was killed, but eventually, convinced that the police had proof of their presence, each admitted having been there; having seen a black, 9mm gun; and having heard gunshots. Quisenberry acknowledged having been present when Harper was shot in the leg, and he recalled at least three or four shots. Williams recalled that Harper was on the ground when she was shot, and he also remembered hearing Erica crying from the bed. Their statements, paraphrased by the testifying police detective so as to exclude any reference to each other, were admitted at trial. The detective was also permitted to testify on cross-examination that both defendants denied having shot either Harper or her daughter, Erica.
Neither defendant testified at trial, but Williams attempted to discredit Turner's testimony by calling his, Williams's, younger brother, who denied having had the alleged post-Derby conversation with Turner on his mother's porch. Otherwise, each defendant's defense was essentially designed to establish that he was not the one who fired the shots. The jury instructions reflected those defenses through complicity and facilitation charges. As noted, the jury attributed the major role to Williams, finding him guilty of murdering Harper and of assaulting and attempting to murder Erica while finding Quisenberry guilty of second-degree manslaughter and of facilitating the crimes against the child.
Williams's first contention on appeal is that he was entitled to be tried separately from Quisenberry and that the joint trial was rendered unfair by the use of their paraphrased statements to police. The detective's paraphrase of Quisenberry's statement, Williams maintains, directly implicates him, Williams, in the crimes, and because Quisenberry did not testify and so could not be cross-examined, the use of the incriminating statement deprived him of his right under the Fifth Amendment to the United States Constitution to confront the witnesses against him. Williams also maintains that the trial court erred by not sua sponte instructing the jury to limit its consideration of Quisenberry's statement to its determination of Quisenberry's guilt or innocence.
I. The Introduction At Trial Of Portions of Both Defendants' Pretrial Statements To Police Did Not Result In Prejudice Such That The Trials Should Have Been Severed.A. The Defendants' Statements Were Adequately Redacted.
As we recently reiterated in Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky.2009):
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