Tunstull v. Commonwealth of Ky.

• Decision Date: 21 April 2011
• Docket Number: No. 2009–SC–000170–MR.,2009–SC–000170–MR.
• Citation: 337 S.W.3d 576
• Parties: Troy Anthony TUNSTULL, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

337 S.W.3d 576

Troy Anthony TUNSTULL, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000170–MR.

Supreme Court of Kentucky.

April 21, 2011.

Daniel T. Goyette, Louisville Metro Public Defender, Elizabeth B. McMahon, Assistant Public Defender, Office of the Louisville Metro Public Defender, Louisville, KY, for appellant.Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, for appellee.Opinion of the Court by Justice SCHRODER.

Troy Anthony Tunstull appeals as a matter of right from his conviction of four counts of second-degree robbery and being a first-degree persistent felony offender, for which he was sentenced to a total of twenty years' imprisonment. Appellant raises as error the trial court's 1) denying his motion for directed verdict as to second-degree robbery; 2) failing to give instructions on theft by unlawful taking and facilitation to robbery; 3) ruling that he failed to make a prima facie showing of purposeful discrimination in the Commonwealth's use of a peremptory challenge; 4) failing to strike three jurors for cause; 5) denying his motion for funds to hire an expert; 6) permitting the Commonwealth to introduce evidence of out-of-court identifications where he was not provided the opportunity to cross-examine the witnesses; and 7) refusing to grant a mistrial when a detective's testimony revealed he had a prior criminal record. We affirm.

In a jury trial which commenced on September 29, 2008, Appellant was tried on five counts of first-degree robbery in connection with five bank robberies which occurred in the Louisville area between April 2006 and October 2006. ¹ The first incident occurred on April 17, 2006, at the PNC Bank at 3343 Newburg Road. Bank tellers Stephanie Lafon and Donna Magee testified that a man wearing a ski mask and “covered from head to toe” ran into the bank and jumped up on the counter with a blue pillow case in his hand. Lafon testified that the man said, “You all know what time it is.” Magee recalled the man saying, “You know what I'm here for. You know what I want.” The man grabbed Lafon's hand and had her hold open the pillow case and put money in it. When the man turned, Magee placed bait money in the bag. The man then left out the front door. Lafon had seen the man arrive in a four-door silver car and get out of the passenger side.

The second incident took place on May 1, 2006, at the Fifth Third Bank at 5393 New Cut Road. Four witnesses (two bank tellers, the branch manager, and a customer) testified as to the event. According to these witnesses, two men rushed into the bank, disguised with wigs, baggy clothes, sunglasses, and gloves, and announced, “You know what time it is.” One of the men jumped over the counter, and took money out of the tellers' drawers and put it in a bag. The other man stood near the door with his hand in his pocket and repeatedly yelled “Time!”, in an effort to encourage the other man to hurry. The men left the building quickly with the bag of money.

The third incident took place on June 29, 2006, at Central Bank, located at 4640 Taylorsville Road. Bank tellers Lauren Armstrong and Daniel Spencer testified as follows. Shortly after 10:00 a.m., a dark red or maroon, four-door, older model car without a license plate backed up to the bank. Armstrong testified that a man exited the car on the passenger side and pulled a mask over his face. The man ran into the bank yelling, “Give it up! Give it up!” Spencer testified the man was wearing a solid white t-shirt, black baggy pants, and a black hat, and had a black and white bandana tied around his face. Armstrong threw money on the counter, and the man grabbed it. The man then ran out and got into the passenger side of the car. Spencer believed it was the same man he had seen running across the parking lot approximately twenty minutes earlier. Spencer told police that the man resembled a bank customer named Robert Harp. Spencer later identified a Chevy Caprice in a nearby apartment complex parking lot as the car he had seen at the bank. The Louisville Metro Police Department determined that the car belonged to a Laverne Westin.²

The fourth incident occurred on August 11, 2006, at the National City Bank at 5610 South Third Street. The Commonwealth presented testimony from seven witnesses (four bank tellers, the bank manager, and two customers). According to these witnesses, an African–American man entered the bank, pointed a gun at the tellers behind the counter, and demanded money. The man was wearing sunglasses, a black baseball cap, a long-sleeve jacket, black shorts, and tennis shoes. As the tellers placed the money on the counter, the man put it in a bag and then ran out the side door.

The fifth incident took place at the same branch of National City Bank on October 23, 2006. The same four tellers and bank manager who had been present during the August 11, 2006 robbery were again present. These five witnesses, along with an additional bank teller and a customer, testified as to what occurred. According to these witnesses, an African–American man entered the bank through the side door and demanded money in a loud, aggressive voice. The bank employees/witnesses who had witnessed the August robbery believed he sounded like the same man that had committed that robbery. However, this time, no one saw a gun. The man wore dark clothing, a black baseball cap, and white gloves, and had an unshaven face. The tellers handed the man money, which he put in a bag. When the man left, one teller followed and saw a red Chevrolet Cobalt, with the man inside, driving off quickly. The bank manager was able to read the license plate number, which was given to the police.

Police learned that the Cobalt had been leased by Enterprise Rent–A–Car to Sharonda Sloss. The car was located that night in the parking lot of the Fern Creek Wal–Mart, where Sloss was employed. Police followed Sloss when she left work that evening and pulled her over. Sloss was taken to the police station for questioning, and her car was processed for evidence. Fingerprints matching Demond Tunstull, Appellant's cousin, were found on the car. None of the fingerprints matched Appellant's. At the police station, Sloss allegedly told Detective Larry Duncan that Appellant and Demond had taken the car around 1:00 p.m. while she was at a healthcare clinic, and had used it to commit the robbery.³ Sloss was in a relationship with Appellant at the time, whom she knew by the name Naim Abdul Jalil. Sloss also allegedly identified Appellant in still photographs made from the National City Bank surveillance video.

A search warrant was executed at Sloss's apartment on October 24, 2006. Police retrieved a Kentucky driver's license for Naim Abdul Jalil, a Halloween mask, packaging from two Halloween masks, a black hooded jacket, and a black nylon insulated bag. No cash or guns were found in the apartment.

FBI agents arrested Appellant at Sloss's apartment on February 12, 2007, and transported him to the United States Marshal's Office for questioning. Appellant initially denied any knowledge of the robberies, but, after being shown the bank surveillance photos and told that Sloss's car had been used in a robbery, subsequently admitted to them all. This initial interrogation, which lasted a little over two hours, was not recorded. Appellant was then transported to the Louisville Metro Police Department (LMPD) headquarters where a taped statement was taken. Therein, Appellant admitted that he had committed the crimes at issue. This taped confession was played for the jury at trial.

Appellant testified in his own defense and denied committing the robberies. He testified that he falsely confessed to the crimes to satisfy the police, in order to protect his family. Appellant testified that he suspected that his cousin Demond Tunstull was involved after he (Appellant) was arrested and the police informed him that Sloss's car had been used in a robbery. Appellant testified that he had loaned the car to Demond on October 23, 2006, and that Demond had acted nervous when he returned the car and had advised Appellant not to use it because it was “hot”. Appellant testified that he felt that he should protect Demond, with whom he had been raised and whom he loved like a brother. Appellant testified that people would often mistake them for brothers and call them twins because they looked so much alike.⁴ Appellant testified that the law enforcement officials who conducted his interrogation told him that they would arrest Demond, Sloss (his girlfriend), his mother, and his brother, if he did not claim responsibility for the robberies. Appellant explained that in his confession he was repeating and agreeing with details the police gave him about the robberies, and, in order to protect his family, that he added in his own details to convince the police that he had done the robberies. Appellant testified that he was now telling the truth, because, although he still loved Demond, he felt like Demond had abandoned him and left him in the lurch.

The trial court granted Appellant's motion for directed verdict as to first-degree robbery for four of the five counts (the exception being the August 11, 2006, National City robbery where a gun was shown), finding the evidence insufficient to establish first-degree robbery, but sufficient to support second-degree robbery. The trial court rejected Appellant's request for theft by unlawful taking instructions on all the counts, and rejected Appellant's request for facilitation instructions, with the exception of one count. The jury was ultimately instructed on second-degree robbery/complicity as to the April 17, 2006 (PNC Bank), May 1, 2006 (Fifth–Third Bank), and June 29, 2006 (Central Bank) incidents; first- and second-degree robbery as to the August 11, 2006 (National City Bank) incident; and second-degree...