Walker v. Com., 2007-SC-000568-MR.

• Citation: 288 S.W.3d 729
• Decision Date: 25 June 2009
• Docket Number: No. 2007-SC-000568-MR.,2007-SC-000568-MR.
• Parties: Christian Omar WALKER, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

288 S.W.3d 729

Christian Omar WALKER, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000568-MR.

Supreme Court of Kentucky.

June 25, 2009.

Erin Hoffman Yang, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Susan Roncarti Lenz, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

On June 5, 2007, Appellant, Christian Walker, was found guilty by a Jefferson Circuit Court jury and convicted of complicity to murder, complicity to robbery in the first-degree, complicity to assault in the second-degree, and complicity to tampering with physical evidence. For these crimes, Appellant was sentenced to fifty (50) years imprisonment. Appellant now appeals his conviction as a matter of right. Ky. Const. § 110(2)(b).

I. Background

On December 8, 2004, Phillip Thomas was living with his mother, Shirley Thomas, and his wife, Jutta Whitlow, on Camden Avenue in Jefferson County. Jutta was a freshman in college at the time and had just finished her last day of school for the semester. Earlier in the evening, Phillip had taken her out for dinner and dropped her off at the house by herself. Phillip had recently started his own entertainment company and, at approximately 9:00 pm that night, left his home for a business meeting in Shively (an apartment complex), near Ramser Court. Shirley Thomas had been at a church meeting and choir practice that evening and did not arrive home until later that night.

Jamilah McNeely lived in an apartment complex in Ramser Court. Jamilah had known Tywan Beaumont for three to four years and she and Beaumont had a child together. She had known the Appellant, Christian Walker, for about the same amount of time that she had known Beaumont. On the evening of December 8, Beaumont and Appellant picked her up from work at about 8:00 pm. Appellant, driving Beaumont's car, dropped Jamilah and Beaumont off at her apartment and left.¹ Not long after Beaumont went inside, Appellant returned and Beaumont left with him.²

Meanwhile, Phillip's business meeting ended and he returned home to Camden Avenue between 9:30 and 9:45 pm, just a few minutes after his mother, Shirley, had returned from choir practice. Arriving at his house, Phillip backed his car into the backyard. Upon exiting his car, Phillip noticed a person "flash" by in his rearview mirror. The man, armed with a handgun and wearing a ski mask, jumped over the trunk of Phillip's car and pointed the gun at Phillip's face.³ Phillip then noticed another man pacing back and forth on the side of the house, also armed with a handgun and wearing a ski mask.⁴ Both men began yelling at Phillip and demanding that he give them his money and any drugs he had. The first gunman threatened to kill Phillip if he did not comply. Phillip had only $4.00, which prompted the gunmen to rifle through his pockets.

At this point, Jutta, inside the house, heard Phillip turn off his car. Though he did not sound panicked, he called her name twice. Jutta looked out the window and saw Phillip outside the car with someone standing behind him.⁵ Jutta then went to look out the kitchen door. As she did so, the taller man standing behind Phillip immediately turned and shot her, hitting her in the upper left groin.

After shooting Jutta, the taller man ran around the side of the house toward the front yard and was followed shortly thereafter by the shorter gunman. Meanwhile, Jutta, now injured, made her way to the front of the house where she met Shirley between the kitchen and the living room. In an effort to escape without further injury, Shirley held Jutta's arm and, together, the two ran towards the front door.

Adam McMillan lived two houses down from the Thomas house and, on that night, heard shouting from the alley. As he walked towards the door, he heard a gunshot. He saw two men in black jackets standing on the driver's side of the car yelling for money. Adam could hear one of the gunman say, "Give me the fucking money!" In response, he heard someone else say, "Calm down, I'm giving you the money." Adam then ran through the house and out the front door to get his pistol from his truck.⁶

While Adam was at his truck in front of his house, he saw an African American man in a dark jacket running towards him. The man, who Adam estimated to be about 6'3", jumped in a parked car, backed it down Camden Avenue, and drove away. Then, as Adam was putting a shell in his gun, he heard two gunshots. Adam looked toward the Thomas house and saw a shorter gunman running at him. Believing that the man was raising a weapon, Adam shot twice at the man, hitting him in the shoulder.

Wounded, the shorter gunman ran into the backyard, firing his gun at Phillip before fleeing down an ally. The bullet missed, however, hitting a tire on Phillip's car. Phillip then ran to the front of the house where he saw his mother lying down and discovered that she had been shot in the chest. He held her head in his lap while Adam attempted CPR without success.⁷

Jutta recalled that as she and Shirley were running out the front of the house and down the porch steps, the shorter gunman began shooting at them.⁸ As the gunman turned to shoot, Shirley screamed and pushed Jutta back into the doorway. When Jutta realized that Shirley had been shot, she crawled into the house, grabbed a phone (to call 911), and hid in a closet.

Jamilah was across the hall at a friend's apartment when Beaumont returned. She testified that Beaumont arrived crying and shaking and that he had driven back to her apartment alone. Beaumont told Jamilah that he and Appellant were in a backyard robbing a man when he might have shot a woman who had come to the back door of the home. At about this time, Appellant called Beaumont's cell phone and the two began to argue. Jamilah heard Appellant say that he had been shot and that Beaumont left him at the scene, asking Beaumont why he shot "that lady."⁹ With a gunshot wound in his right shoulder, Appellant later visited Jamilah's apartment where the two men continued to argue.

The police came to Jamilah's apartment the next evening. Jamilah, initially, refused them entry because she had three outstanding bench warrants. However, when one of Jamilah's neighbors called and said that homicide detectives were outside and that they were looking for a wounded person, Jamilah relented and the police handcuffed and arrested Beaumont.¹⁰ During their search of the premises, the police found a .38 caliber bullet in one of Beaumont's jacket pockets. Among other items, the police also recovered a garbage bag containing a bloodstained shirt with a bullet hole in its right shoulder, as well as a black ski mask.¹¹ Via DNA analysis, the shirt was traced to Appellant and the ski mask to Beaumont.

Appellant's testimony differed significantly in some respects from the Commonwealth's theory of the case. Appellant stated that on the evening of December 8, 2004, he, along with Beaumont, had picked up Jamilah and her girlfriend in Beaumont's car. Appellant testified that it was, in fact, Beaumont, and not he, that drove everyone to Jamilah's apartment. At some point later, Beaumont called Appellant at Jamilah's apartment and told Appellant to come outside because he was going to take Appellant to help him "repo" a car for one of Beaumont's friends.¹² Beaumont drove to Camden Avenue and Appellant claimed he did not know where they were going.

Upon arriving at the Thomas house, Appellant stated that the two put on their ski masks and that Beaumont gave him a semi-automatic, 9-millimeter handgun, telling him to stay on the side of the house. During the robbery, Appellant claimed that he stood on the side of the house and nervously paced back and forth there before Beaumont shot a woman through the back door. At this point, Appellant stated that Beaumont ran toward the front yard and toward his car. Appellant, still behind the house, then heard Beaumont fire his gun and did not leave the backyard until he heard several more gunshots. When he ran to the front yard, Appellant saw someone pointing a gun at him and, after being shot, he fled by foot. Appellant explained that he never meant for anyone to be shot and that he did not know that Beaumont was going to shoot others.

At the conclusion of the trial, Appellant was convicted on all counts of the indictment. In conjunction with Appellant's murder conviction, the jury found its commission during the first-degree robbery to be an aggravating circumstance and fixed Appellant's prison sentence at fifty (50) years. The jury further fixed sentences of seventeen (17) years, ten (10) years, and two (2) years, respectively, on the other charges, recommending they run consecutively with each other for a total of twenty-nine (29) years, but concurrently with the prior sentence of fifty (50) years, for a total sentence of fifty (50) years imprisonment.¹³ On appeal, Appellant raises three principal allegations of error: 1) that the trial court abused its discretion when it failed to strike a juror for cause; 2) that the trial court abused its discretion in excluding certain statements made by Beaumont; and 3) that the trial court subjected him to double jeopardy by reinstating a charge against him. For the reasons that follow, we affirm Appellant's convictions in part and reverse in part.

II. Analysis

A. The Trial Court Did Not Abuse Its Discretion When It Failed To Strike A Prospective Juror For Cause Because There Was No Showing Of Bias.

Appellant argues that his conviction should be reversed because the trial court forced him to use all of his peremptory challenges when it failed to strike an allegedly biased juror for cause. Consequently, Appellant claims that he was denied his right to a fair and impartial jury in violation of Sixth and Fourteenth Amendments of the...