Welch v. Com.
| Decision Date | 01 November 2007 |
| Docket Number | No. 2005-SC-000806-MR.,No. 2005-SC-000279-MR.,2005-SC-000279-MR.,2005-SC-000806-MR. |
| Citation | 235 S.W.3d 555 |
| Parties | Robert Keith WELCH, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
On Appeal from Fayette Circuit Court, No. 03-CR-00398-002; Gary D. Payne, Judge.
Euva D. May, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
Robert Keith Welch appeals his convictions for first-degree manslaughter, first-degree robbery, and tampering with physical evidence. We vacate and remand because the trial court inexplicably engaged in improper ex parte communication with the deliberating jury.
Welch and his friend, Willie Allen, produced rap CDs. To raise money to further their rap music venture, they decided to buy $5,000 worth of marijuana and sell it for a profit. The events leading up to the drug deal are disputed, but Allen and Welch ultimately drove to a White Castle restaurant to consummate the marijuana purchase. But while they were there, the person from whom they planned to buy the marijuana was shot and killed. And Allen and Welch drove away from the White Castle together, after which Allen allegedly hid at least one gun.
The grand jury indicted Welch, Allen, and another friend, Stanley King, for murder, first-degree robbery, and tampering with physical evidence. Allen and King entered guilty pleas, but Welch's case proceeded to a jury trial. The jury convicted Welch of first-degree manslaughter, first-degree robbery, and tampering with physical evidence. As the jury recommended, Welch was sentenced to twenty years' imprisonment for manslaughter, eighteen years' imprisonment for robbery, and one year of imprisonment for tampering with physical evidence. All three sentences were ordered to be served concurrently. Welch appeals to this Court as a matter of right.1
Welch raises five issues on appeal. He contends that his convictions must be reversed because the trial court (1) answered written questions posed by the deliberating jury without consulting counsel and Welch, (2) improperly admitted evidence of prior bad acts, (3) improperly allowed evidence about the title of a particular rap song, (4) erred by giving the jury an initial aggressor instruction, and (5) erred by denying his motion for a new trial without conducting an evidentiary hearing.
We find no error in the trial court's rulings regarding the prior bad acts and rap song evidence. But we agree with Welch that the trial court's ex parte contact with the jury requires Welch's convictions to be vacated and the case to be remanded. Because his convictions are being vacated, Welch's argument regarding the propriety of the trial court's failure to hold a hearing before denying his motion for a new trial is moot. And although we find problematic the giving of the initial aggressor jury instruction, we decline to rule definitively on that issue because the evidence on retrial may be different.
After retiring to the jury room for deliberations, the jury sent the trial court a cryptic note that said, "Willie Allen's testimony regarding their activity when they left White Castle." The trial judge's written ex parte response was The jury then wrote, "Was Rob Welch in the car when Willie Allen hid the guns the first time?" And the trial judge's written ex parte response sent back to the jury room was
Without doubt, the trial court's final ex parte note was improper. Kentucky Rules of Criminal Procedure (RCr) 9.74 provides that "[n]o information requested by the jury or any juror after the jury has retired for deliberation shall be given except in open court in the presence of the defendant . . . and the entire jury, and in the presence of or after reasonable notice to counsel for the parties." Despite the requirements of RCr 9.74, the trial judge in this case inexplicably engaged in a written conversation with the jury to the point of providing substantive information to the jury without involving counsel and the defendant. This is error. And we must determine whether this can be deemed harmless error.2
We have not dealt with a similar violation of RCr 9.74 in any reported decision. We have condemned violations of RCr 9.74 (and its predecessor) even if the violation appears to be less egregious than that found in this case.3 For example, our predecessor court found reversible error when a court reporter read back portions of trial testimony for the benefit of the jury outside the presence of the defendant's counsel.4 Without endorsing either practice, we deem the trial judge's ex parte involvement in the jury's deliberation to be more serious and potentially more prejudicial than the jury's hearing a read-back of trial testimony in the defendant's absence.
Expected in the course of a jury trial are numerous opportunities for ex parte conversations between the trial judge and individual jurors.5 Most of these ex parte contacts are innocuous because they do not concern issues central to the case, and they are harmless because the contact does not impugn the fundamental fairness of an otherwise constitutionally acceptable trial.6 But this case clearly does not involve an innocuous contact. Instead, the jury's question—whether Welch was in the car when Allen hid the guns—went to the heart of the tampering with physical evidence charge against Welch.7 Yet, instead of declining to answer the questions without summoning counsel for both Welch and the Commonwealth for consultation, the trial judge simply answered, "Yes — he was in the car." That answer, though supported by evidence in the record, constitutes a judicial finding on an issue integral to at least one of the charges against Welch. Although some ex parte judge-jury contact is unavoidable and harmless, the ex parte contact in this case is error that cannot be deemed harmless because the contact involved the jury's deliberation concerning a central issue in the case.
Whether there was evidence to support the answer given by the trial judge is irrelevant under these circumstances because it is the sole province of the jury to decide which witness(es) to believe and which to disbelieve. So because the trial court failed to observe the requirements of RCr 9.74 and because Welch's "substantial rights"8 were violated by the trial judge's ex parte contact with the jury concerning substantive issues in this case, the error committed by the trial court cannot be deemed so trifling as to be harmless. As Judge Cardozo eloquently stated, "[a] criminal, however shocking his crime, is not to answer for it with forfeiture of life or liberty till tried and convicted in conformity [with the] law."9 Because Robert Welch's liberty was forfeited in a trial that was not conducted in conformity with the law, his convictions must be vacated.
A detective testified that Allen had told her in an interview that the transaction with the drug dealer was intended to be Allen and Welch's "last lick." The detective testified that "hit a lick" referred to a robbery. Welch contends that the trial court erred in not declaring a mistrial because the "lick"-related testimony was inadmissible prior bad act evidence under Kentucky Rules of Evidence (KRE) 404(b).10 In other words, Welch argues that the reference to a "last lick" left the jury to speculate about how many previous robberies or drug deals Welch had committed. Welch also argues that the evidence was improperly admitted because the Commonwealth failed to comply with the notice requirement contained in KRE 404(c).11 We disagree.
Allen testified before the detective testified. During Allen's testimony, the Commonwealth asked Allen if he remembered telling the police that he and Welch had talked about this planned drug deal/robbery being the "last lick." Allen answered that he did not remember using the term "last lick" but that he had talked about it being the "last one." Welch did not object to this testimony. And there was other testimony referring to the slang terms "lick" and "last lick."
Obviously, any issue regarding the Commonwealth's failure to provide reasonable notice under KRE 404(c) of its intent to introduce evidence of prior bad acts is moot since this case is being remanded for further proceedings. And the admission of this evidence did not necessitate a mistrial. A mistrial is an extraordinary remedy that should only be used in those situations where an error of such import has been committed that a litigant's right to a fair and impartial jury would be violated if a new trial were not held.12 We may reverse a trial court's decision to deny a motion for a mistrial only if the trial court's decision represents an abuse of discretion.13
The evidence relating to "licks" was certainly not so egregious as to have necessitated a mistrial. Welch's contention that the evidence constituted improper impeachment on a collateral matter is unavailing because the evidence could have been admissible as rebuttal to impeach Allen in that his testimony at trial differed from his statements to the police.14 In any event, even if we assume, for the sake of argument, that the testimony relating to "licks" was improperly admitted, the admission of that evidence was not so egregious as to cause us to hold that the trial court abused its discretion in denying Welch's motion for a mistrial.
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...inquiry outside of Appellant's and defense counsel's presence—there is no authority from this Court directly on point. However, in Welch v. Commonwealth, we deemed a communication similar to the one in the case before us to be harmful error. 235 S.W.3d 555, 558–59 (Ky.2007). In that case, [......
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