Dennis Michael Ritchie v. Kentucky Bar Association ( 2015 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: APRIL 2, 2015
NOT TO BE PUBLISHED
oi5uprrtur (Court of 71,,firttfuritv
2014-SC-000020-MR
MARZUQ LABIB NASIR-AL-DIN APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT
V. HONORABLE JOSEPH W. CASTLEN, III, JUDGE
NO. 13-CR-00386
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Daviess County Circuit Court jury convicted Marzuq Nasir-Al-Din of:
assault in the second-degree; tampering with physical evidence; and of being a
second-degree persistent felony offender (PFO), enhancing his sentence to
twenty-years' imprisonment. Nasir-Al-Din appeals his conviction as a matter of
right under Ky. Const. § 110(2)(b). Before this Court, Nasir-Al-Din argues the
trial court committed reversible error: (1) by threatening a witness with
contempt in front of the jury; and (2) by allowing the Commonwealth to play a
prior statement of a witness without requiring proper foundation. Having
reviewed the record and the parties' arguments, we affirm.
I. BACKGROUND.
On May 15, 2013, William Dixon was shot in the arm outside of his
residence on Plum Street in Owensboro, Kentucky. Dixon went to the hospital
and was treated for a gunshot wound to the arm. Police responded to a report
of a shooting in the area and spoke to George Smith, who was outside when the
shooting occurred. After speaking with Smith, the police went to a nearby
apartment which belonged to Nasir-Al-Din's girlfriend, Ashley Reynolds, to look
for Nasir-Al-Din. The police found Nasir-Al-Din inside Reynolds's apartment,
took him into custody, obtained a warrant; and searched Reynolds's
apartment. In the apartment, police found a handgun hidden in the bathroom,
which they later identified as the gun used to shoot Dixon.
At trial, Nasir-Al-Din testified that he knew Dixon and, although they
were not friends, they hung around in the same area. On May 15, 2013, Nasir-
Al-Din heard Dixon making derogatory comments regarding his religion, Islam.
Although he initially ignored the comments, Nasir-Al-Din eventually became
angry, asked Dixon why he was being so disrespectful, and told Dixon to stop.
However, Nasir-Al-Din testified that he was not angry enough to shoot Dixon,
had not threatened to kill Dixon, and had left the area before the shooting
occurred.
Nasir-Al-Din stated that, as he was walking away, he heard shots and
then saw a car speeding down a nearby alley. Although he was not sure who
had been shooting or who had been shot, Nasir-Al-Din feared someone might
be coming after him so he went into the alley. In the alley, Nasir-Al-Din found
a handgun lying on the ground, which he testified he picked up so that he
could protect himself.
Ultimately, the jury did not believe Nasir-Al-Din's story that he was not
present when Dixon was shot and found him guilty of assault in the second-
2
degree, tampering with physical evidence for hiding the gun in Reynolds's
apartment, and of being a second degree PFO. We address additional facts
below as necessary.
II. ANALYSIS.
A. The Trial Court's Warning to Dixon that He Risked Contempt, Made
in the Presence of the Jury, Was Not Error.
At trial, the Commonwealth called Dixon to testify regarding the
shooting. Dixon testified he remembered that he had been shot in the arm and
that he had been treated at the hospital for a gunshot wound. However,
despite repeated questions by the Commonwealth, Dixon denied having any
other memories regarding the shooting. Because of Dixon's reluctance to
answer questions, the Commonwealth asked for "permission to lead," which
the trial court granted. The Commonwealth then continued to question Dixon
about who shot him, and, after repeatedly skirting the Commonwealth's
questions, Dixon stated, "I plead the Fifth. I don't have nothing else to say."
The Commonwealth and Nasir-Al-Din's counsel then approached the
bench to discuss Dixon's assertion of his right not to testify. The
Commonwealth advised the court that, as the victim, Dixon had not been
charged with any crime. Furthermore, the Commonwealth stated that there
were no charges pending against Dixon; therefore, Dixon had no basis for
asserting his right not to testify, and the Commonwealth asked the court to
admonish Dixon accordingly. Nasir-Al-Din's counsel argued that Dixon was
entitled to assert his right not to testify because he was fearful of future
3
criminal charges, and the Commonwealth simply did not like the answers
Dixon gave.
Following the bench conference, the trial court directed Dixon to respond
to the questions posed to him by the Commonwealth and by Nasir-Al-Din's
defense counsel, stating: "Mr. Dixon, the court is going to direct that you
respond to the questions posed to you [by the Commonwealth] and later those
which will be pozsed to you by [defense counsel]. The court has been provided
no basis whatsoever to show any reason why you could invoke any immunity
from testimony . . . and by a failure to respond, you are subjecting yourself to
contempt." Dixon asked how long his punishment might be for such contempt,
and the trial court responded that it could "go on for quite some time."
The Commonwealth then asked Dixon if he had argued with Nasir-Al-
Din, which Dixon denied. When the Commonwealth again asked Dixon if
Nasir-Al-Din had shot him, Dixon responded that he did not know who shot
him and concluded his testimony by stating that, even if he knew who shot
him, he would not say. Nasir-Al-Din argues that the trial court unduly
prejudiced him and committed reversible error when, in the presence of the
jury, it threatened to hold Dixon in contempt if he did not answer the questions
he was asked. The Commonwealth argues that this issue is unpreserved, and
that Nasir-Al-Din's argument relies on an inadequate and misleading narrative
of the events precipitating the contempt warning by the trial court.
As to the issue of preservation, the Commonwealth is correct that
objections must be made contemporaneously and appropriately. Kentucky
4
Rule of Criminal Procedure (RCr) 9.22. At trial, Nasir-Al-Din's counsel argued
that Dixon should have been permitted to assert his right not to testify.
However, Nasir-Al-Din's counsel did not object to the trial court's admonition,
an issue he raises for the first time on appeal. Therefore, the issue is
unpreserved and we review it for palpable error under RCr 10.26. A palpable
error "affects the substantial rights of a party . . . and appropriate relief may be
granted upon a determination that manifest injustice has resulted from the
error." RCr 10.26. "A reviewing court must plumb the depths of the
proceeding . . . to determine whether the defect in the proceeding was shocking
or jurisprudentially intolerable" to the point of causing manifest injustice.
Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006), as modified (May 23,
2006).
Nasir-Al-Din now argues that the trial court's admonition to Dixon, in
the presence of the jury, violated the judge's duty to remain impartial and
perform his or her duties in a manner that does not show bias or prejudice.
SCR 4.300(5). The Supreme Court of the United States has held that a judge
"may analyze and dissect the evidence, but he may not either distort it or add
to it" and must "use great care that an expression of opinion upon the evidence
`should be so given as not to mislead, and especially that it should not be one-
sided'; that 'deductions and theories not warranted by the evidence should be
studiously avoided."' Quercia v. United States, 289 U.S. 466, 470-71 (1933)
citing. Starr v. United States, 153 U.S. 614, 626 (1894). We echoed this
sentiment holding that a trial judge "cannot by the form of his question or his
5
manner indicate to the jury his opinion as to the credibility of the witness being
interrogated or the guilt or innocence of the accused." Terry v. Commonwealth,
153 S.W.3d 794, 802-03 (Ky. 2005) citing Caudill v. Commonwealth, 170
S.W.2d 9, 10 (Ky. 1943).
These cases and others cited by Nasir-Al-Din are instructive as to a
judge's duty to be impartial. However, we have reviewed the proceedings and
nothing about the judge's admonition showed bias, prejudice, or a violation of
the duty to remain impartial. The judge simply directed Dixon, a subpoenaed
witness, to respond to the questions posed by the attorneys, something the law
requires every witness to do. The judge did not comment on the credibility of
Dixon's testimony or on Nasir-Al-Din's guilt or innocence. Thus, Nasir-Al-Din
has failed to establish that any error, let alone error causing manifest injustice,
occurred or that the result would have been different absent the admonition.
Finally on this issue, we note that Nasir-Al-Din cites the following
passage from Kentucky's criminal practice treatise, as support for his
argument that the court should have addressed Dixon outside the presence of
the jury. The author of the treatise states that:
Before a sanction other than censure is imposed for contempt which
occurs during a trial, however, the court should give the offending person
notice of the conduct expected and a clear warning of the consequences
of further misconduct. If the conduct persists, the court should give the
offending person prompt notice of its intention to consider contempt
sanctions. However, to avoid the risk of influencing the deliberations of
the jury, the actual contempt proceedings should normally be deferred
until the conclusion of the trial. For the same reason, whatever action
the court takes should ordinarily be out of the presence of the jury.
6
§ 24:25.Contempt—Procedure, 9 Ky. Prac. Crim. Prac. & Proc. § 24:25 (5th ed.)
(emphasis added and footnote omitted).
The preceding, while persuasive, is not binding. Furthermore, as the
author of the treatise recommends, the judge did tell Dixon what conduct he
expected and gave Dixon fair warning what the consequences for his failure to
comply would be. However, the judge did not hold any contempt proceedings,
and, although we agree with the author's recommendation that contempt
proceedings should be held outside the presence of the jury, there simply were
no contempt proceedings. Therefore, Nasir-Al-Din's reliance on the preceding
is misplaced.
For the foregoing reasons, we discern no error, palpable or otherwise, in
the manner in which the court addressed Dixon's behavior.
B. The Trial Court Did Not Commit Reversible Error When it Allowed
the Commonwealth to Play a Witness's Prior Statement.
The Commonwealth called Smith, a witness to the shooting, to testify
about what he saw. Smith testified he was sitting under a tree with Nasir-Al-
Din when Dixon and Nasir-Al-Din began "having words." Smith stated that
Nasir-Al-Din then left but returned after a short period of time and someone
fired a gun. However, Smith testified that the shot came from behind and,
although Nasir-Al-Din was the only person in that area, Smith stated that he
did not know who fired the shot. This testimony apparently varied from what
the Commonwealth anticipated it would be so the Commonwealth then sought
and received leave to treat Smith as a hostile witness. The Commonwealth
then asked Smith if he had given a statement to police and if that statement
7
differed from his testimony. Smith stated that he did not remember giving a
statement to the police. When the Commonwealth asked him if hearing the
statement might refresh his recollection, Smith admitted it might and stated
that he would like to hear it.
Nasir-Al-Din's counsel objected arguing that the court should not have
permitted the Commonwealth to treat Smith as a hostile witness and that
Smith's status as a hostile witness was not sufficient grounds to permit the
Commonwealth's playing of Smith's statement. The court disagreed finding
that, because Smith was a hostile witness, the Commonwealth was entitled to
play his prior inconsistent statement.
Following a short recess, the Commonwealth played the statement, in
which Smith identified Nasir-Al-Din as the shooter. When asked about the
statement, Smith admitted that the voice on the recording was his; however, he
continued to maintain that he did not remember making the statement.
On appeal, Nasir-Al-Din argues that the court should not have permitted
the Commonwealth to play Smith's statement or enter it into the record
because the Commonwealth had not laid a proper foundation. The
Commonwealth argues that this issue is not preserved because, while Nasir-Al-
Din' s counsel objected to the playing of the statement, she did so for different
reasons. In the alternative, the Commonwealth argues that the court did not
abuse its discretion.
"This Court is one of review which by definition presupposes prior
consideration by the trial court. If such has not been done, there accordingly
8
can be no review by this Court." Todd v. Commonwaelth, 716 S.W.2d 242, 251
(Ky. 1986) (emphasis added). "When a party states grounds for an objection at
trial, that party cannot assert a different basis for the objection on appeal."
Fain-ow v. Commonwealth, 175 S.W.3d 601, 607 (Ky. 2005). "The critical point
in preservation of an issue remains: was the question fairly brought to the
attention of the trial court." MV Transp., Inc. v. Allgeier, 433 S.W.3d-324, 331
(Ky. 2014). Because lack of a proper foundation was not raised at the trial
court level, the issue is unpreserved. However, as we noted earlier, an
unpreserved error in the application of the Kentucky Rules of Evidence (KRE)
may be reviewed for palpable error using the standard set forth in RCr 10.26.
KRE 103(e). Thus, we must determine if permitting the Commonwealth to play
Smith's recorded statement resulted in manifest injustice. Id.
In regard to the admission of a prior inconsistent statement, KRE 801A(a)
states:
A statement is not excluded by the hearsay rule, even though the
declarant is available as a witness, if the declarant testifies at the trial or
hearing and is examined concerning the statement, with a foundation
laid as required by KRE 613, and the statement is:
(1) Inconsistent with the declarant's testimony[.]
KRE 613, which sets forth the foundational basis necessary for
admission of a prior inconsistent statement, states:
Before other evidence can be offered of the witness having made at
another time a different statement, he must be inquired of concerning it,
with the circumstances of time, place, and persons present, as correctly
as the examining party can present them; and, if it be in writing, it must
be shown to the witness, with opportunity to explain it. The court may
allow such evidence to be introduced when it is impossible to comply
with this rule because of the absence at the trial or hearing of the
9
witness sought to be contradicted, and when the court finds that the
impeaching party has acted in good faith.
Nasir-Al-Din argues that the Commonwealth failed to lay a proper
foundation because it failed to ask Smith about the circumstances of time,
place, and persons present when he made the statement to the police; it failed
to show the statement would refresh Smith's memory; and it failed to show that
the statement actually refreshed Smith's memory. The Commonwealth
argues that a proper foundation was laid and thus no error occurred.
From our review of the record, Nasir-Al-Din's foundational arguments are
flawed for two reasons. First, they depend, in part, on his mischaracterization
of the evidence. The Commonwealth asked Smith questions regarding the
shooting and then asked Smith if he remembered making other statements to
police, specifically to Police Officer Bryan Velotta on the day of the shooting.
While Smith testified he did not specifically remember speaking with Officer
Velotta, he did remember speaking to various police officers that day regarding
the shooting. Thus, the Commonwealth did inquire about "the circumstances
of time, place, and persons present, as correctly as [it could] present them"
meeting the foundational requirements of KRE 613 to admit Smith's prior
inconsistent statement under KRE 801A(a)(1).
Second, Nasir-Al-Din's argument that the Commonwealth did not
establish that hearing the statement would refresh Smith's memory or that it
did refresh his memory are not foundational elements in KRE 613. They are
foundational elements for the use of a writing or recording to refresh a
witness's recollection under KRE 612. The Commonwealth sought to introduce
10
Smith's statement as a prior inconsistent statement under KRE 801A(a)(1), not
to refresh Smith's memory under KRE 612; therefore, the foundational
requirements of KRE 612 are not applicable.
Furthermore, as we held in Shepherd v. Commonwealth, 251 S.W.3d 309,
321-322 (Ky. 2008), as modified on denial of reh'g (May 22, 2008) admission of
a prior recorded statement is not error if the statement has been properly
authenticated and the defendant had the opportunity to cross-examine the
witness. The officer who interviewed Smith properly authenticated that
statement and Nasir-Al-Din had the opportunity to cross-examine Smith.
Therefore, we discern no error in the court's admission of Smith's statement
under either KRE 801A(a)(1) or Shepherd.
Finally, we note that Nasir-Al-Din makes a one-sentence argument that
"there is no exception to the hearsay rule allowing the entire recorded
statement to be entered into evidence." However, he has not pointed us to any
law to support this "argument;" therefore, we do not address it.
IV. CONCLUSION.
For the foregoing reasons, we affirm Nasir-Al-Din's conviction and
sentence.
All sitting. All concur.
11
COUNSEL FOR APPELLANT:
Linda Roberts Horsman
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Taylor Allen Payne
Assistant Attorney General
12