Rodgers v. Com.

• Decision Date: 25 June 2009
• Docket Number: No. 2007-SC-000040-MR.,2007-SC-000040-MR.
• Citation: 285 S.W.3d 740
• Parties: Frank RODGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

285 S.W.3d 740

Frank RODGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000040-MR.

Supreme Court of Kentucky.

June 25, 2009.

Daniel T. Goyette, Louisville Metro Public Defender, Bruce P. Hackett, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.

Jack Conway, Attorney General, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Frank Rodgers appeals as a matter of right from a November 22, 2006 Judgment of the Jefferson Circuit Court convicting him of first-degree manslaughter and sentencing him as a second-degree persistent felon to twenty years in prison. The Commonwealth alleged that shortly after midnight on August 22, 2004, Rodgers and his co-defendant, Deshawn Eddings, shot and killed Dewhon McAfee in the course of an altercation that erupted in the backyard of McAfee's home on South 28th Street in Louisville. Two eyewitnesses identified Rodgers and Eddings as McAfee's assailants, and Rodgers himself, in his post-arrest statement to Louisville Metro Police Detective Leigh Whelan, admitted having shot at McAfee, but claimed that he did so in self-defense and without intending to kill. On appeal, Rodgers contends (1) that he was entitled to be tried separately from Eddings; (2) that the trial court misapplied the law of self-defense; (3) that one of the Commonwealth's peremptory juror strikes violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (4) that the petit jury was not chosen from a fair cross section of the community; and (5) that the jury instructions understated the Commonwealth's burden of proof and commented on Rodgers's silence. Finding no reversible error, we affirm.

RELEVANT FACTS

The Commonwealth's case rested largely on the testimonies of two of McAfee's friends, Myrna Palmore and Tamara Eubanks. They testified that on the evening of August 21, 2004, they joined McAfee for a barbeque in his backyard and that later in the evening Eubanks, who was familiar with Rodgers and Eddings, invited them to join the get-together. Rodgers and Eddings who claimed not to know McAfee, arrived at McAfee's house at some time between approximately 10:30 and 12:00. At first, according to the women, everything seemed fine. Rodgers and Eddings may have had some food and some beer, and they smoked some marijuana with the two women while everyone talked and listened to music.

Not long after midnight, however, according to Palmore, Eubanks went into the house briefly and while she was gone McAfee suddenly stood up and angrily asked Rodgers, "What did you say to me?" A heated argument ensued between the two men. Palmore testified that McAfee threatened to "whup" Rodgers, at which point she got between them and urged McAfee to calm down. Eubanks testified that she returned to the backyard to find McAfee and Rodgers arguing and that she joined Palmore, who was standing between the men, urging Rodgers to leave. During the argument Rodgers apparently backed out of the backyard and along the side of the house toward the front. When he had nearly reached the front yard, both men shoved the women aside and, according to Palmore and Eubanks, Rodgers produced a gun and fired several shots at McAfee. Palmore remembered four to eight shots; Eubanks remembered five. A neighbor who overheard the arguing testified that she heard three shots in rapid succession. Eubanks testified that McAfee fell to the ground and that Eddings, who had remained toward the back of the house during the argument, then came forward, pulled out a gun, and fired two additional shots at the prone McAfee. Palmore testified, however, that McAfee remained standing until Eddings produced a gun and shot at him from behind. According to the women, Rodgers and Eddings then both drove away in Rodgers's car. McAfee died at the hospital later that morning.

The medical examiner testified that McAfee had been shot three times, twice superficially—in the lip and in the shoulder—and once fatally. The fatal shot entered McAfee's lower left side, punctured his stomach and diaphragm, and exited his right side. The examiner recovered one of the bullets, which, according to ballistics experts, matched either of the two 9 mm shell casings found at the scene.

The Commonwealth also introduced portions of the statements Eddings and Rodgers gave to Detective Whelan upon their arrest. Prior to trial the statements were redacted in an attempt to comply with the dictates of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). With respect to both defendants, Detective Whelan quoted or paraphrased from the redacted versions. During Eddings's police interview, he admitted being present at the time of the shooting, admitted that Rodgers and McAfee argued, and admitted that he heard gunfire and saw flashes from the barrel of a gun. He denied, however, firing any shots himself, claimed not to know whether Rodgers had used a gun, denied that either he or Rodgers had had a gun, and denied leaving with Rodgers after the shooting, claiming that he ran from the scene on foot. Based on Eddings's redacted statement, Detective Whelan testified simply that Eddings told her he had been present, had heard an argument, and had heard and seen gunfire. On cross-examination by Eddings, she admitted that Eddings had denied firing any shots.

During Rodgers's interview, he admitted being present, admitted arguing with McAfee, and admitted shooting at McAfee, but he claimed that McAfee was the aggressor and that he did not know what had sparked McAfee's anger. He further claimed that at the height of the argument McAfee had produced a gun that they had wrestled over it, that he had succeeded in wresting the gun away from McAfee, that the gun had gone off once by accident and that he had then fired at McAfee's legs in an attempt to deter McAfee's assault. He and Eddings had then fled the scene in Rodgers's car, and he (Rodgers) had disposed of the gun in an alley. During her direct examination, Detective Whelan limited her testimony to Rodgers's admissions without his self-defense qualifications, but on cross-examination Rodgers was permitted to elicit his description of the struggle for the gun and his claim that he shot only once at McAfee's legs.

Neither Rodgers nor Eddings testified, but in closing argument Rodgers argued that he shot at McAfee in self-defense and under extreme emotional disturbance. Eddings argued that he had not shot at all. The jury instructions reflected those defenses. As noted, the jury found Rodgers guilty of first-degree manslaughter. It could not reach a verdict as to Eddings. In exchange for Rodgers's agreement to testify at Eddings's retrial, the thirty-year enhanced sentence recommended by the jury was reduced to twenty years.

ANALYSIS

I. The Trial Court Did Not Abuse Its Discretion by Joining Rodgers's and Eddings's Trials.

Rodgers's first contention on appeal is that he was entitled to be tried separately from Eddings and that their joint trial was rendered unfair by the use of their redacted statements. The use of Eddings's statement, he maintains, deprived him of his right to cross-examine adverse testimony, and the use of his own statement deprived him of his right to present a defense. The use of neither statement entitles Rodgers to relief.

Rule of Criminal Procedure (RCr) 6.20 permits the joinder for trial of two or more defendants if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Joint trials are a mainstay of our system, as they give the jury the best perspective on all the evidence and thus increase the likelihood of proper verdicts and avoid the possibility of inconsistent ones. Conflicting versions of what happened, we have thus noted, "is a reason for rather than against a joint trial." Shepherd v. Commonwealth, 251 S.W.3d 309, 313 (Ky.2008) (quoting from Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003)). RCr 9.16, on the other hand, requires that trials be severed "if it appears that a defendant or the Commonwealth is or will be prejudiced" by the joinder. We review a trial court's denial of a motion to sever under the abuse of discretion standard. Shepherd, supra.

A. The Introduction of Eddings's Redacted Admissions Did Not Require Severance or Deprive Rodgers of a Fair Trial.

As noted, Rodgers sought severance on two grounds. He argued first that the Commonwealth's use of Eddings's statement to Detective Whelan would violate his (Rodgers's) Confrontation Clause right to cross-examine adverse testimony. He correctly observed that in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that an unavailable declarant's out-of-court testimonial statement offered against a defendant is admissible only if the defendant has had a prior opportunity to cross-examine the declarant. In the context of a joint trial, therefore, "the pretrial confession of one [defendant] cannot be admitted against the other unless the confessing defendant takes the stand." Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Indeed, the pretrial confession may not even be introduced against the confessor, the Supreme Court held in Bruton, supra, if on its face it implicates another defendant being jointly tried with the confessor.

If, however, the confession is redacted so as to remove all reference to the co-defendant(s), including obvious inferential references, then the confession may be admitted against the confessor. Richardson, supra; Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). Thus Richardson concluded that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's...