Snell v. Commonwealth
| Decision Date | 26 March 2020 |
| Docket Number | 2018-SC-000219-MR |
| Parties | CURTIS SNELL 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED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 KENTON CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
Curtis Snell ("Snell"), was convicted by the Kenton Circuit Court of assault in the first-degree, and four counts of wanton endangerment in the first-degree. Snell was also found guilty of being a persistent felony offender in the first-degree. The jury recommended Snell serve 50 years for the assault charge and 10 years for each of the wanton endangerment charges, to run consecutively for a total of 90 years. Ultimately, the trial court reduced the sentence to the statutory maximum of 70 years. For the reasons set forth herein, we affirm the court below.
Linsey Kidwell ("Kidwell") and her boyfriend Lamar Mills ("Mills") had arrived at Muggbees bar in Florence, Kentucky around 11:00 P.M. on May 18, 2016. Curtis Snell and his girlfriend Jennifer Konkright ("Konkright") went to Muggbees in the early morning hours of May 19, 2016. At some point, Kidwell and Mills encountered Konkright and Snell. They were all familiar with each other because Konkright and Snell had visited Kidwell's apartment once before, which resulted in Snell and Konkright being asked to leave by Kidwell.
Near the end of the evening at Muggbees, Konkright and Kidwell got into an altercation. Snell and other individuals also got involved. Snell testified that he was attempting to intervene, when he was attacked by four members of a motorcycle gang known as "Bad to the Bone." The individuals involved from the motorcycle gang included Mills and his fellow members Robert Smith, Willie Washington and Jonathan Griffin. Bouncers broke up the fight and all parties were thrown out of the establishment.
Kidwell claimed that Snell then approached her in the parking lot. She testified that Snell told her he was going to shoot them and that he knew where she lived. Konkright and Snell then got into their vehicle and left. Kidwell and Mills then left in another vehicle and were followed by Mills' fellow motorcycle gang members in a separate vehicle. Throughout the night, Konkright sent multiple angry and threatening messages to Kidwell via Facebook Messenger.
Because of Snell's earlier threats, Kidwell, Mills, and the other vehicle proceeded to Kidwell's apartment in Park Hills. Kidwell's son and mother were at her apartment and Kidwell wanted to make sure they were ok. Kidwell and Mills parked at the foot of the hill near Kidwell's apartment. Kidwell and Mills eventually saw Konkright's vehicle, with Snell in the passenger seat, turn onto Kidwell's street. Kidwell turned her vehicle around and followed Konkright up the hill. Konkright's vehicle began to turn around once it reached Kidwell's apartment. Seeing that Konkright was turning around, Kidwell and the motorcycle gang turned their vehicles around in front of Konkright's vehicle and then turned right onto Dixie Highway. Konkright's vehicle followed as Kidwell was attempting to locate a police officer who often sat in a nearby parking lot late at night. On this particular night the officer was not there, and while Kidwell drove on Dixie Highway Konkright's vehicle pulled alongside Kidwell's.
Within seconds, Kidwell and Mills saw the barrel of a gun emerge from the passenger side window of Konkright's vehicle. Shots were then fired at Kidwell's vehicle and at the motorcycle gang member's vehicle. Kidwell testified she saw a flash, heard glass break, and felt her car shift. She also testified that she felt her insides shift, and soon after realized she had been shot. Kidwell was hit in the thigh and abdomen and stopped her vehicle in the middle of the road. The vehicle with the motorcycle gang members sped off and struck a curb further down the block, but no one in that vehicle was injured.
Police officers responded to the scene and Kidwell was taken to the hospital. Officers then interviewed the motorcycle gang members. Not all of them were able to identify the shooter but several of them indicated it was the person with whom they had gotten into a fight earlier at Muggbees.
Park Hills officer Lieutenant Richard Webster (Lt. Webster) investigated the shooting and interviewed Kidwell and Mills. Both Kidwell and Mills were unsure of Snell's full name, but they did know him as "Gucci Black," "Black," or "Curtis" and that he was from Mississippi. Kidwell claimed she was "one million percent" sure that it was the same person from the bar.
Lt. Webster was able to locate the person whom he believed to be the defendant through Facebook and confirm that he was involved in the bar altercation through surveillance footage from Muggbees bar. Webster showed Kidwell Snell's mugshot pulled from the Kenton County jail's website, and she confirmed that was the person who shot her. Separately, Webster showed the same photo to Mills who also confirmed that was the individual from the fight that evening and who shot Kidwell.
Konkright was then contacted through Facebook by a police detective asking her to help in apprehending and prosecuting Snell. After receiving the message Konkright turned herself in and assisted police in locating and apprehending Snell. Snell was subsequently located in Cincinnati, Ohio and arrested.
Konkright testified against Snell at trial in exchange for a lesser sentence. Konright testified that after they left Mugbees she drove Snell to Covington, where he changed clothes and obtained a firearm. She further testified that Snell came up with an alibi to deny involvement in the shooting, and that she and Snell discussed taking a trip to Mississippi following the shooting. According to Konkright's testimony, the plan was for her to take responsibility for the shooting and claim that she had dropped Snell off before the shooting. The Commonwealth introduced evidence of jail phone calls and letters, believed to be from Snell, which discussed this plan and the case against Snell.
After a three day trial, Snell was convicted of all charges. This appeal followed.
On August 22, 2016, defense counsel filed a "Motion for Discovery and To Review Bond." Specifically, defense counsel requested, "(7) ... All evidence known to the Commonwealth, or which may become known, or which through the exercise of due diligence may be learned from investigating officers[.]" The Commonwealth filed an initial response, four days later, on August 26, 2016. The August 26th discovery response the Commonwealth provided to Snell did not contain a recording of a 911 call or the dispatch log.
On June 2, 2017, in preparation for trial, defense counsel made a request for the audio from the 911 call and dispatch log, noting they were not provided by the Commonwealth in the earlier discovery. On June 14, 2017, thirteen months after the shooting, the Commonwealth provided, via email, the dispatch log from Kenton County emergency management. This email indicated that the Commonwealth requested the audio and call log and they were informed that the 911 recording was no longer available as it was over a year old. On June 30, 2017, the defense moved to dismiss the indictment because the Commonwealth failed to timely turn over the now destroyed 911 audio. The trial court denied the motion to dismiss and reserved the right to rule on the missing evidence instruction at trial. Snell now argues that the trial court erred in failing to give a missing evidence instruction regarding the 911 recording.
A missing evidence instruction is only required when failure to collect or preserve evidence was intentional and the nature of the evidence was apparent.1 This Court shall review a trial court's denial of a missing evidence instruction for abuse of discretion.2
This Court has held that the standard for a missing evidence instruction is the following:
First, the purpose of a "missing evidence" instruction is to cure any Due Process violation attributable to the loss or destruction of exculpatory evidence by a less onerous remedy than dismissal or the suppression of relevant evidence. Thus, there is no basis for an instruction permitting the jury to infer that missing evidence, if available, would be adverse to the defendant and favorable to the Commonwealth. See South Carolina v. Katzenbach, 383 U.S. 301, 323-24, (1966) ... Second, the Due Process Clause is implicated only when the failure to preserve or collect the missing evidence was intentional and the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed. None of the above precludes a defendant from exploring, commenting on, or arguing inferences from the Commonwealth's failure to collect or preserve any evidence. It just means that absent some degree of "bad faith," the defendant is not entitled to an instruction that the jury may draw an adverse inference from that failure.3
Snell asserts that exculpatory information would be found within the 911 recordings. He argues that any evidence identifying the shooter on the 911 call would be material. Kidwell and Mills testified that...
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