Relford v. Commonwealth, 2017-SC-000634-MR
| Decision Date | 29 August 2019 |
| Docket Number | 2017-SC-000634-MR |
| Parties | TREY A. RELFORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED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 FAYETTE CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
Appellant, Trey A. Relford, entered a conditional guilty plea in Fayette Circuit Court to murder, first-degree robbery, and tampering with physical evidence. Following the Commonwealth's recommendation, the trial court sentenced Appellant to thirty-one years' imprisonment. Appellant now appeals raising multiple issues involving (1) a motion in limine to exclude hearsay statements and (2) a motion to suppress filed by Appellant to exclude evidence from a cell phone seized by the police. For the following reasons, we affirm.
Salahuddin Jitmoud, a twenty-two-year-old Pizza Hut delivery driver, was stabbed and killed while attempting to make a pizza delivery to an apartment complex in Lexington, Kentucky. The insulated warming bag, food, and Jitmond's wallet containing ninety dollars were all missing. Jitmoud died at the scene.
One resident at the building, who initially said she saw nothing, eventually told police she saw Antonio Lewis standing over the victim's body. She also saw another person she believed to be Cameron McClellan but stated she did not see his face. Police subsequently interviewed both Lewis and McClellan.
During McClellan's interview at the police station, he first stated he was not at the apartment complex on the day of the crime. However, once the police told McClellan that Lewis implicated him (which was untrue, as police had yet to interview Lewis), McClellan admitted some involvement in the murder as a possible lookout. In his statement, McClellan told police he saw Lewis kill the victim. However, along with his statement about the murder, he also provided some incorrect details (such as telling police the pizza was left behind). After McClellan's confession, he recanted and told police his original story: that he was not present during the crime. As the questioning continued, McClellan told police yet another version of events.
After McClellan's interview, police interviewed Lewis. Lewis maintained his innocence and adamantly denied involvement in the crimes, even after police informed him of McClellan's statements. Lewis told police about personal conflicts he had with people in the apartment complex. After obtaining McClellan's and Lewis's statements, police arrested both for Jitmoud's robbery and murder.
During their investigation, police determined the telephone number used to place the order for delivery at Pizza Hut was not assigned to a mobiletelephone or landline account. After several search warrants, officers discovered the number had been altered by a phone application called Hushed. Using Hushed, an individual can mask his phone number and have it appear as if the call were placed from another number. Eventually, police tracked the phone call to an AT&T phone number owned by Appellant and identified the particular type of phone, a Samsung SGH-I337 with its IMEI number (a fourteen-digit identifying number).
With evidence pointing to Appellant's phone placing the call to Pizza Hut, the police went to interview Appellant at his residence. When the officers arrived, they posed as domestic violence detectives and used a ruse to speak with Appellant. The police talked with him about several previous domestic violence incidents. While the officers spoke with Appellant, Appellant answered a phone call. At that point, detectives recognized his phone as the same type which had made the pizza delivery phone call.
Police told Appellant they could use information in his text messages to help him. Under those pretenses, Appellant voluntarily surrendered his phone and gave police permission to search his messages. Once they left, the officers removed the phone's rear cover, obtained the IMEI number, and had a search warrant signed within the hour for the phone. The police then downloaded the contents of Appellant's phone pursuant to the search warrant.
Appellant was interviewed twice after the seizure and download of his phone. The second time, Appellant admitted involvement in the murder and robbery of Jitmoud and implicated another individual with assisting him.Appellant admitted to placing the calls through the Hushed application and provided correct details, such as him calling Pizza Hut a second time to change the address of the delivery. He also provided detectives with the specific type of pizza ordered and told them about Jitmoud's wallet, another detail not publicly released. Appellant told police he did not know Lewis or McClellan.
The Commonwealth brought its cases against Appellant, Lewis, and McClellan before a Fayette County Grand Jury on the same day. The Grand Jury indicted Appellant and did not indict Lewis or McClellan.
Prior to trial, the trial court found McClellan's statements to police were inadmissible hearsay and denied Appellant's motion to suppress the evidence from his Samsung phone. Appellant entered conditional guilty pleas to complicity to murder, complicity to first-degree robbery, and criminal attempt to tampering with physical evidence. The trial court sentenced Appellant to 31 years' imprisonment. This appeal followed.
While we acknowledge neither party raised this argument on appeal, we address it at the outset. After thoroughly reviewing the record in this case, including the trial court motions and orders related to the hearsay issues and hearings on the motion in limine, we note Appellant did not preserve this issue for our review.
The Commonwealth filed a motion in limine to exclude McClellan's statements to police. Appellant filed a response and included arguments for its admissibility, arguing both that it should be admitted as a statement against interest and as an alternative perpetrator theory. However, in spite of the written response, at the hearing on the motion, Appellant's counsel conceded the statements should not be admissible at trial. As such, it is inappropriate for Appellant to now argue the trial court erred in determining the statements were inadmissible.
Henderson v. Commonwealth, 438 S.W.3d 335, 343-44 (Ky. 2014) (citing Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011)).
As noted, in response to the Commonwealth's motion in limine, Appellant argued the hearsay statements should be admissible under KRE 804(b)(3) (statement against interest) and as an alternative perpetrator theory; however, during the hearing on the motion, Appellant's counsel contradicted her position numerous times and conceded the statements should not be allowed.Appellant's counsel voluntarily informed the trial court, "I would not try to say what [McClellan] said as far as his admission or anything like that." Eventually, the trial court asked for clarification in the following exchange:
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