Willis v. Commonwealth
| Decision Date | 27 April 2023 |
| Docket Number | 2021-SC-0538-MR |
| Parties | SHAKKORY WILLIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
Shakkory Willis appeals as a matter of right[1] from the Christian Circuit Court judgment sentencing him to thirty-three (33) years' imprisonment for his convictions of first-degree robbery first-degree burglary, and second-degree unlawful transaction with a minor. On appeal, Willis alleges certain errors during his trial warrant reversing his conviction. For the following reasons, we affirm.
Willis's convictions stem from a coordinated break-in and looting that resulted in injuries to Dylan Stewart and the death of Coryvon Thomas.
Evidence presented at trial showed that a criminal plan was hatched between Willis, Jimmy Yates, and Lane Carter, with the help of three juveniles: Tia Ochs, Madison Wilson, and Korey Zivotin. The plan was to "hit a lick" (i.e., rob a person or house) at a Hopkinsville residence, where Stewart and Thomas lived and sold marijuana. Ochs and Wilson were directed to go in the house first to buy a little marijuana and scope the place out to see if anything was worth stealing.
On the night of January 23, 2019, Carter drove Ochs and Wilson to the victims' house, with Willis, Yates and Zivotin also in the car. Upon entering the house, Ochs and Wilson went to the back room with the victims to talk, smoke weed, and listen to music. About an hour later, Willis, Yates and Zivotin entered the house. Willis barged into the back room, kicking open the door, and began fighting with Thomas, hitting him with a pistol. Yates was beating up Stewart in the hallway. Ochs and Wilson fled to the car, where Carter was waiting. Yates followed, with shots being fired as he was running to the car. Stewart was shot in the leg and Thomas was killed. Stewart survived his wounds but subsequently died in an unrelated incident prior to trial.
After the shots were fired, Willis and Zivotin ran out of the house and jumped in Carter's car. Carter drove everyone back to Yates's house. Willis then fled to Tennessee, but later surrendered himself to the police after learning that they were looking for him. At the crime scene, police discovered shell casings from two handguns: a .45 caliber and a 9mm. The police questioned Ochs and Wilson, who outlined their participation and provided names of others involved. They identified "Ceno" which is Willis's nickname.
At trial, Detective Robert Flick with the Hopkinsville Police Department and the Drug Enforcement Administration ("DEA") task force testified about the cellphone records he downloaded from Yates's phone which showed that on January 23 and 24, Yates had multiple calls to and from a contact saved as "Ceno." Detective Randall Greene of the Hopkinsville Police Department testified about his interview with Willis, who acknowledged his nickname was "Ceno" and about the cell-tower data retrieved from Willis's cellphone which showed it pinging in Hopkinsville the night of the crime.
All those implicated in the crime entered into a plea agreement with the Commonwealth and testified at trial except Zivotin, who refused to testify (but who was in jail). The Commonwealth's case against Willis revolved primarily around the testimony of these witnesses, with some corroborating evidence from Yates's and Willis's cellphones. No forensic or DNA evidence connected Willis, or anyone else, to the crime. At the conclusion of the trial, the jury was hung on to the murder charge, but convicted Willis of first-degree robbery, first-degree burglary, and second-degree unlawful transaction with a minor. The trial court imposed the jury's recommended sentence of 33 years. Willis now appeals.
Willis alleges numerous errors in the trial court's handling of his case, most of them unpreserved. We will address each in turn, under the applicable standard of review.
Willis claims that error resulted from Det. Flick's testimony about Yates's cellphone records showing calls to and from "Ceno" the day of, and after, the crime and Det. Greene's testimony about cell-tower data that showed Willis's phone pinging in Hopkinsville on the night of the crime. He presents numerous, overlapping reasons in arguing that these detectives should not have been allowed to testify as they did, none of which are preserved. As a result, we review his claims for palpable error only.
"To discover manifest injustice, a reviewing court must plumb the depths of the proceeding . . . to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). In other words, the defect must be "so egregious that it jumps off the page . . . and cries out for relief." Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citation omitted).
Det. Flick testified that he was trained to download information from cellphones and had downloaded Yates's cellphone data in this case. The data he extracted showed multiple phone calls to and from "Ceno" on January 23 and 24. From the report generated by the download, Det. Flick read the dates, times, and duration of seven calls on Yates's phone to and from "Ceno" on January 23 and 24. Det. Flick's entire testimony, including cross examination, lasted four minutes. He did not testify that he had connected the phone number of "Ceno" as belonging to anyone, including Willis, nor did he testify about the content or substance of any phone call.
Willis challenges Det. Flick's testimony on numerous grounds. He argues that (1) the cellphone records were not properly authenticated under KRE[3] 901, (2) Det. Flick was never qualified as an expert under KRE 702, (3) Det. Flick's testimony was hearsay under KRE 802, (4) insufficient corroborating evidence connected the calls to Willis, and (5) Det. Flick's testimony violated the best evidence rule under KRE 1001(1).
Authentication is "a condition precedent to admissibility" and is "satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." KRE 901(a). A piece of evidence can be authenticated with the "testimony of witness with knowledge." KRE 901(b). Generally, "the foundational authenticity of a writing can be laid simply by the testimony of someone personally familiar with the writing or by the contents and characteristics of the writing itself." Brafman v. Commonwealth, 612 S.W.3d 850, 866 (Ky. 2020). "The burden on the proponent of authentication is slight; only a prima facie showing of authenticity is required." Hall v. Commonwealth, 468 S.W.3d 814, 831 (Ky. 2015) (quoting Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky. 2010)).
In this case, the Commonwealth did not seek to have either Det. Flick or Det. Greene qualified to testify as an expert witness pursuant to KRE 702. For the admission of non-expert, lay witness testimony, KRE 602 requires that a witness have "personal knowledge of the matter" being testified to. This requirement has been interpreted generously: "testimony should not be excluded for lack of personal knowledge unless no reasonable juror could believe that the witness had the ability and opportunity to perceive the event that he testifies about." United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990) (). As such, the "threshold of Rule 602 is low." Id.
A non-expert witness may make opinions or inferences that are "(a) Rationally based on the perception of the witness; (b) Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and (c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." KRE 701.
Willis does not argue that Yates's cellphone records were not what they purported to be; instead, he challenges Det. Flick's credentials to authenticate them. However, Det. Flick testified about his employment as a Narcotics Detective with the Hopkinsville Police Department and as a task force officer with the DEA. He stated that he was trained to download data from a cellphone, and that he downloaded that data from Yates's cellphone in this case, which generated a report of the phone's call history, including the dates, times, and duration of calls on January 23 and 24. Det. Flick did not testify as to the content or substance of any phone call or text message.
In arguing that Det. Flick did not properly authenticate the cellphone records, Willis cites to Baker v Commonwealth in support, but in Baker the Court held that the call logs police obtained from a cellphone carrier in response to a subpoena were not certified by the custodian of the record (the cellphone provider) as required by KRE 902(11) and therefore were not selfauthenticating and constituted inadmissible hearsay. 545 S.W.3d 267, 275 (Ky. 2018). Unlike the police in Baker, Det....
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