Julius Tackett v. Commonwealth of Kentucky ( 2016 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!'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),
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CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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RENDERED: DECEMBER 17, 2015
NOT TO BE PUBLISHED
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JULIUS TACKETT
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APPELLANT
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ON APPEAL FROM PIKE CIRCUIT COURT
V. HONORABLE STEVEN D. COMBS, JUDGE
NO. 13-CR-00176-001
COMMONWEALTH OF KENTUCKY APPELLEE
' MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Julius Tackett, appeals from a judgment of the Pike Circuit
Court convicting him of third-degree burglary; theft by unlawful taking over
$500.00; first-degree criminal mischief; and being a first-degree persistent
felony offender. As a result of these convictions, Appellant was sentenced to
twenty years in prison. He appeals as a matter of right.
For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Joanne Mayhorn and her husband own a landscaping supply store in
Pikeville. They live in an apartment above the business. One night, about an
hour after midnight, Joanne, alone in the apartment, was awakened by noises
coming from the downstairs business. She looked out a window and saw
someone running toward the back of the building. She also saw another
person driving the store's front-end loader toward the back of the building.
Shortly thereafter, she heard cracking and popping sounds from inside the
store that sounded like wood breaking.
Joanne called the police. She stayed inside the apartment but from that
vantage point she saw the perpetrators using the front-end loader to put the
store's office safe into the Mayhorns' SUV. A neighbor, Crystal Hamilton, saw
and heard the commotion from her home across the street from the Mayhorns'
store. She, too, called police. Hamilton testified that she saw three people
inside the store "tearing things up in there . . . moving stuff around [and]
destroying it."
The police responded quickly and when police sergeant John Michael
Gabbard arrived, he saw two subjects fleeing from the scene on foot. He lost
sight of the fleeing suspects, but after following in the direction of their flight,
he came upon Appellant lying face down in a deep ditch or creek not far from
the Mayhorns' store. Appellant appeared intoxicated and was described by
officers as being "disorderly and aggressive" towards them. Gabbard
discovered in Appellant's pants pocket a pair of metal-cutting snips or shears.
Appellant claimed that he was fishing for crawdads, but he had no equipment
that might be associated with that activity.
Soon after finding Appellant, Gabbard found Appellant's brother, Jacob
Tackett, lying under a bush nearby. Jacob also claimed to have been fishing,
and although he had a folding box cutter knife in his pocket, no fishing gear
was found. Jacob, too, appeared to be intoxicated and claimed to have walked
to the area from his home in Floyd County several miles away.
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After apprehending the Tackett brothers, officers on the scene heard a
car alarm sounding nearby. When Trooper William Petry went to investigate
the alarm, he heard a vehicle start up and speed away. Petry pursued the
vehicle, a purple van, as it left Pike County and drove into Floyd County. Petry
lost sight of the van, but he eventually found it abandoned at the end of a dirt
road in Floyd County. The van was registered in the name of Shirley Tackett.
Apparently, no further investigation was done to locate Shirley Tackett, or to
determine if she was connected to Appellant Julius Tackett and his brother,
Jacob Tackett.
Appellant and Jacob were tried jointly. Following the presentation of the
evidence the jury returned a verdict convicting Appellant of third-degree
burglary; theft by unlawful taking over $500.00; first-degree criminal mischief;
and of being a first-degree persistent felony offender. Appellant was sentenced
to twenty years in prison. This appeal followed.
Appellant argues that the trial court erred: (1) by denying his motion to
dismiss the charges based upon the Commonwealth's loss of potentially
exculpatory evidence; (2) by denying his request for a facilitation instruction on
each of the charges; and (3) by failing to admonish the jury after the
Commonwealth engaged in prosecutorial misconduct during its closing
arguments. These arguments are addressed in turn.
II. MISSING EVIDENCE
The defendant first contends that the trial court erred by failing to
dismiss the charges after the Commonwealth lost evidence which Appellant
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claims was potentially exculpatory evidence; specifically, a plastic tag or fob
found on a key ring at the scene (key tag). 1
From their inspection of the scene, police determined that the
perpetrators had pried open the front doors of the business. Several wires
running to different parts of the building had been cut. Police surmised that
once inside the building, the perpetrators found the keys needed to operate the
front-end loader and the SUV.
During the course of his investigation at the scene outside the building,
Detective Jimmy Anderson collected a number of items that might have
evidentiary value, including a pair of gloves and a key ring belonging to the
Mayhorns. On the key ring were two keys, which Anderson returned to the
Mayhorns, and a key tag. Anderson initially thought that the key tag may have
been handled by one of the burglars, and if so, it could have some DNA on it.
The key tag, however, was never submitted for DNA testing and was ultimately
lost.
Appellant and the Commonwealth first learned about the key tag and its
disappearance on the morning of the trial. Appellant moved for a continuance
and for dismissal of the charges because of this lost "evidence." The trial court
denied the requested continuance but agreed that a mistrial might be required
if the missing key tag had exculpatory value. At a hearing held to resolve that
issue, Detective Anderson testified that he rejected the idea of testing the key
1 The item was referred to in a variety of ways including "key tag" and "little
rubber tab."
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tag for DNA because he determined that the gloves found at the scene would
provide a better DNA test. He explained that his ability to have items tested for
DNA was limited and he believed that testing the gloves would be more likely to
provide a useful result. Although his written report indicated that the key tag
had been sent to the state police lab for testing, Anderson testified that his
report was incorrect in that respect. He described the mistake as an
administrative error. He was unable to determine what happened to the key
tag. The trial court denied Appellant's motion to dismiss. In connection with
this ruling, the trial court found that Detective Anderson had not acted in bad
faith in losing the key tag.
The loss of potentially exculpatory evidence in the hands of the police
has possible due process implications. In McPherson v. Commonwealth, 360
S.W.3d 207 (Ky. 2012), we identified three elements that must be proven to
establish a due process violation with respect to missing evidence, which if
preserved and subjected to testing, might have produced results that
exonerated the defendant. First, it must be shown that the state acted in bad
faith in failing to preserve the evidence. 2 Second, it must be shown that the
evidence's exculpatory potential was apparent while it was still in the hands of
the police, i.e., before it was lost. And third, it must be shown that the lost
2 Bad faith must be shown when the issue involves lost or missing evidence, but
not where it is alleged that the state suppressed or failed to disclose material evidence
with a known or readily apparent exculpatory quality. In those cases, the good or bad
faith of the prosecution is irrelevant: a due process violation occurs whenever such
evidence is withheld. Illinois v. Fisher, 540 U.S. 544, 547-548 (2004) (citing Brady v.
Maryland, 373 U.S. 83 (1963)).
evidence was to some extent irreplaceable. Id. at 217 (citing Illinois v. Fisher,
540 U.S. 544 (2004) and California v. Trombetta, 467 U.S. 479 (1984)).
Appellant's proof falls short of the standard required by McPherson.
First, he has not demonstrated any degree of bad faith to overcome Detective
Anderson's cogent and logical explanation for his decision not to send the key
tag to a laboratory for DNA testing: his ability to test items for DNA was limited
and the gloves were more likely to provide a meaningful result. No evidence
suggested that the unexplained loss of the key tag was anything other than an
inadvertence, especially since it was shown the testing lab never received it.
The trial court's finding that the loss of the key tag was not a product of bad
faith is supported by substantial evidence, is therefore not clearly erroneous,
and is thus binding upon our review. CR 52.01.
Further, Appellant has failed to show that the exculpatory potential of
the evidence was apparent before it was lost. Indeed, the exculpatory potential
of the key tag is not apparent at all. It is not clear from the evidence that the
item was even likely to contain identifiable DNA. And, while a test indicating
the presence of DNA from Appellant or his brother would be highly indicative of
guilt, a test showing the absence of their DNA or the presence of DNA from
other individuals would have little or no exculpatory value since it is entirely
possible that the perpetrators never handled the key tag or that they did so
wearing the gloves that were also found at the scene . '
Without evidence of bad faith on the part of the police and with 'no
apparent exculpatory value, the third element of the McPherson test — whether
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the lost evidence is irreplaceable — is insignificant. Accordingly, we are
satisfied that Appellant's due process rights were not compromised by the
failure of the police to preserve the key tag. The trial court did not err by
denying Appellant's motion to dismiss the charges as a result of the missing
key tag.
III. FACILITATION INSTRUCTIONS
Appellant next contends that the trial court erred by failing to instruct
the jury on the crime of facilitation as a lesser included offense to each of the
principal charges. The trial court instructed the jury upon the theory of guilt
by complicity, but declined Appellant's request for an instruction on the lesser
offenses of facilitation.
"It is the trial court's duty to instruct the jury 'on the whole law of the
case[.]"' Darcy v. Commonwealth, 441 S.W.3d 77, 86 (Ky. 2014) (quoting
Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)). "This duty
includes presenting the jury with instructions encompassing lesser-included
offenses that are supported by evidence of record." Id. (citing Swain v.
Commonwealth, 887 S.W.2d 346, 348 (Ky. 1994)). We review a trial court's
decision on whether to give a requested instruction for abuse of discretion.
Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).
In Darcy, we noted the difference between complicity under KRS
502.020(1) and facilitation under KRS 506.080(1). A defendant is complicit in
the commission of a criminal offense when, with knowledge that another
person is committing or intends to commit the crime, he aids or assists that
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person with the intent that the crime will be committed. Facilitation, however,
occurs when the defendant, although aware of the principal's criminal actions
or intentions, provides the means or opportunity for him to commit that offense
but nevertheless, lacks the intention or is "wholly indifferent to" the
commission of that offense. 441 S.W.3d at 86 (citing Thompkins v.
Commonwealth, 54 S.W.3d 147, 150-151 (Ky. 2001)).
As relevant here, the jury in Appellant's case was instructed on the
offenses of third-degree burglary, theft by unlawful taking over $500.00, and
first-degree criminal mischief, by "acting alone or in complicity with others." To
be entitled to facilitation instructions on these charges, Appellant must show
that the jury could have reasonably concluded from the evidence that he knew
1) that the actual perpetrators intended to burglarize the Mayhorns' building
and to unlawfully take and damage their property, 2) that he assisted the
principal actors by providing them with a means or opportunity to commit the
crimes, but 3) that he remained "wholly indifferent" about the completion of the
crime. Appellant has not met this burden.
The evidence disclosed that all three persons seen by witnesses were
active participants in breaking into the store, carrying out the safe, attempting
to load it into the vehicle, and destroying the business premises. The evidence
strongly pointed to Appellant and his brother as two of those three. Their flight
from the scene and apparent attempt to hide from the police, and the
implausible explanation for their presence in the area of the crime, all evince a
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consciousness of guilt and a culpable state of mind much greater than simple
indifference about the commission of the crime.
Moreover, there is no evidence at all from which a jury could reasonably
infer that Appellant had merely provided the actual perpetrators with a means
or opportunity to commit the crimes. A facilitation verdict on any of the
charges could result only from sheer speculation. The trial court did not abuse
its discretion by denying Appellant's request for facilitation instructions.
IV. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS
Appellant's final argument is that the trial court erred in failing to
admonish the jury to disregard the prosecutor's closing argument associating
Appellant and his co-defendant, Jacob Tackett, with the purple Nissan van
seen speeding away from the scene of the burglary.
As previously noted, the evidence established that the registered owner of
the van was a person named Shirley Tackett. During his closing argument, the
prosecutor implied Appellant's connection to the van with this remark:
Yes, there was a third person. Ms. Mayhorn told you there was.
Crystal Hamilton told you there was. And that purple van. That's
why they are charged in complicity with each other or others. And
let's not forget that the purple van was registered to Shirley Tackett.
Appellant contends that this statement was prosecutorial misconduct
because there was no evidence connecting the purple van to the burglary, and
more significantly, no evidence to show that Shirley Tackett was in any way
associated with Appellant Julius Tackett or his brother and co-defendant Jacob
Tackett. Appellant claims that by calling attention to the fact that the owner of
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the van had the same last name as the two defendants, the prosecutor invited
the jury to speculate about an incriminating connection.
"[A] prosecutor is permitted wide latitude during closing arguments and
is entitled to draw reasonable inferences from the evidence." Driver v.
Commonwealth, 361 S.W.3d 877, 889 (2012) (citation omitted). "While the
prosecutor has a duty to confine his or her argument to the facts in evidence,
the prosecutor is entitled to draw reasonable inferences from the evidence,
make reasonable comment upon the evidence and make a reasonable
argument in response to matters brought up by the defendant." Childers v.
Commonwealth, 332 S.W.3d 64, 73 (Ky. 2010) (citations omitted), overruled on
other grounds by Allen v. Commonwealth, 395 S.W.3d 451 (Ky. 2013).
The Commonwealth's reference to the purple van and its potential
connection with the crime falls easily within the wide latitude accorded to
prosecutors in closing arguments. Given the suspicious nature of the van's
rapid departure from the area, it is reasonable to infer that the driver of the van
was a likely participant in the crime and that Appellant and his brother had
acted in concert with that driver. The additional factor identified by the
prosecutor, that the van was owned by a person with the same surname as
Appellant, was also fair comment.
Certainly, no presumption of a relationship arises from the mere fact that
Appellant and the van owner have the same last name, but the jury is not
required to ignore the coincidence. Appellant complains that the
Commonwealth should have obtained proof to dispel any question about
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Appellant's connection to Shirley Tackett, and hence to the suspicious van. We
agree that resolving that question may have been helpful. However, we also
recognize that the name of the van owner was relevant evidence, and whatever
probative weight that simple fact may have is not negated by the
Commonwealth's failure to conduct a more thorough investigation to tie down
any evidentiary "loose ends" associated with it.
The reference to Shirley Tackett in the closing argument was just a
routine summation of the evidence that had been presented to the jury. We
find no error in it. The trial court correctly overruled Appellant's objection and
properly declined to admonish the jury to disregard it.
V. CONCLUSION
For the foregoing reasons, the judgment of the Pike Circuit Court is
affirmed.
Minton, C.J.; Abramson, Cunningham, Noble, Keller, and Venters, JJ.,
sitting. All concur. Wright, J., not sitting.
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COUNSEL FOR APPELLANT:
V. Gene Lewter
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
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