                                                        RENDERED: MAY 5, 2016
                                                                   U

                  ,Sularrntr Court of TA
                                   2014-SC-000249-MR


STEPHEN W. WILLIAMS
                                                       DATE          S~Xeriec Euvik Q.,oz"YrNA7Pg. -
                                                                        APPEETTANta".


                    ON APPEAL FROM RUSSELL CIRCUIT COURT
V.                  HONORABLE VERNON MINIARD, JR., JUDGE
                       NO. 10-CR-00013-001 & 11-CR-00001


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



              OPINION OF THE COURT BY CHIEF JUSTICE MINTON

                                      AFFIRMING

      Stephen D. Williams shot and killed Paul Montgomery in an apparent

dispute over betrayal and drugs. A circuit court jury found Williams guilty of

murder, first-degree burglary, and tampering with physical evidence. Williams

was sentenced to life in prison with possibility of parole after 25 years.

Williams appeals the resulting judgment as a matter of right. 1 We affirm the

judgment.


                   I. FACTUAL AND PROCEDURAL BACKGROUND.
      Paul Montgomery died from a wound suffered from a single shotgun blast

to the chest, and a neighbor discovered his body the following day. Suspects

did not emerge until nearly two years later when one of the murder

participants, Danny Hill, came forward to police.



      1   Ky.Const. § 110(2)(b).
      Based upon Hill's narrative and information from various other

witnesses, Stephen Williams also became a suspect. Montgomery and Williams

were both involved in the area drug trade. Montgomery became a police

informant and testified against Williams in a criminal prosecution. Williams,

according to his friends, pledged to get revenge for this perceived betrayal.

      Hill and Williams had been drinking late into the evening. In Hill's mind,

the time had come to kill Montgomery, and he told Williams as much.

Eventually, Williams retrieved his shotgun, a handful of shells, and a change of

clothes; and the two set out for Montgomery's house in Williams's automobile.

      The duo arrived in Montgomery's driveway around 3:00 A.M. They found

Montgomery was home, and, unknown to Williams and Hill, Barbara Aarons

was also there. She had stopped by to give Montgomery some cigarettes and

obtain cocaine from him. They knocked at the door. Montgomery recognized

Hill and Williams and let them inside. Williams angrily paced the room while

Montgomery and Hill sat on opposite ends of the couch. Williams accused

Montgomery of snitching on him and confronted Montgomery about an alleged

debt he owed Williams. An argument ensued as Montgomery professed to have

no money to give and denied Williams's assertion that he was entitled to take

whatever property he wanted from Montgomery. Montgomery ordered Williams

and Hill out of his house. Williams then grabbed the shotgun from beside the

couch and shot Montgomery in the chest. Williams and Hill then left the

house. Aarons, hiding in an adjacent bedroom during the entire altercation,

left through a side door.

      Williams was indicted for murder, tampering with physical evidence, and

first-degree burglary. A circuit-court jury found him guilty of all charges and
                                          2
recommended a sentence of life in prison without the possibility of parole for 25

years, and the trial court entered judgment accordingly. 2


                                       II. ANALYSIS.

   A. Williams was not Entitled to a Directed Verdict on his Burglary
      Charge.

       Williams claims the trial court erroneously denied his motion for directed

verdict on the burglary charge. In support of this allegation, he argues that the

Commonwealth failed to meet its burden—specifically with regard to proving

Williams entered or remained unlawfully on Montgomery's premises. William's

argument is wide of the mark.

       When reviewing a trial court's denial of directed verdict, our standard is

straightforward: under the evidence as a whole, would it be clearly

unreasonable for a jury to find guilt? 3 The evidence is reviewed in a light most

favorable to the Commonwealth. 4

       An individual may be convicted of first-degree burglary when, "with the

intent to commit a crime, he knowingly enters or remains unlawfully in a

building, and when in effecting entry or while in the building or in the

immediate flight therefrom," 5 he is armed with a deadly weapon, causes

physical injury to a person, or uses or threatens the use of a dangerous

instrument against a person. Williams argues the Commonwealth failed to



        2 In the interest of thoroughness, Williams was also sentenced to five years' and
fifteen years' imprisonment for the tampering and burglary convictions, respectively.
The sentences were ordered to run concurrently.
       3   See Commonwealth v. Fletcher, 59 S.W.3d 920, 921 (Ky. 2001).
    4 See Commonwealth v. Jones, 238 S.W.3d 665, 668 (Ky. 2009); see also
Commonwealth v. Sawhill, 660 S.W.3d 3, 4 (Ky. 1983).
       5   Kentucky Revised Statute (KRS) 511.020(1).
                                            3
present any evidence that Williams entered Montgomery's residence unlawfully,

entered it with a shotgun, or remained unlawfully in it with the intent to

commit a crime.

      We admit that the Commonwealth did not present evidence Williams

entered Montgomery's residence unlawfully—in fact, the Commonwealth did

not attempt such proof. According to the evidence, Montgomery invited

Williams and Hill into his residence. But Williams's assertion that this

warrants a directed verdict is misguided because unlawful entry is not the only

way an individual can be found guilty of first-degree burglary. KRS 511.020

provides that entering or remaining unlawfully is sufficient for a first-degree

burglary conviction. The Commonwealth was not required to prove Williams

entered unlawfully.

      As for the lack of proof that Williams entered the premises with the

shotgun, Williams again misreads KRS 511.020. At trial, there was proof that

Hill carried the shotgun into Montgomery's residence and placed it beside the

couch where he was seated. This is sufficient for Williams to be convicted of

first-degree burglary because the statute requires Williams or another

participant in the crime to be armed with a deadly weapon. Williams and Hill

entered Montgomery's residence together with, at the very least, the intent to

retrieve property unlawfully from Montgomery or purchase illegal drugs from

Montgomery. And Hill was armed with a deadly weapon. Nothing else was

required. Hill's entering with the shotgun, moreover, says nothing about

Williams leaving with the shotgun, which is also sufficient for first-degree

burglary.


                                         4
       Finally, William argues he did not remain unlawfully with the intent to

commit a crime because he was invited inside and Montgomery did not revoke

the license because he was murdered. Williams cites Wilburn v.

Commonwealth, 6 the liquor-store-robbery case; as support for his argument.

The problem with this is rather simple: the Commonwealth presented evidence

that Montgomery explicitly revoked Williams's license to be in his home and

Williams remained inside. No such evidence was presented in Wilburn—in that

case, attempting to fend off the attempted robbery, the shop owner promptly

fired a gun at the defendant, an action we construed as the functional

equivalent of a demand to leave the premises. The defendant left immediately

after the shots were fired, thereby not remaining unlawfully. The instant

situation does not involve such implicit revocation. Evidence was offered that

Montgomery arose from the couch, told Williams and Hill to leave his home,

and, unlike the defendant in Wilburn, Williams and Hill did not leave. Instead,

Williams shot Montgomery in the chest. A directed verdict was not warranted

because it was not unreasonable for a jury to find Williams guilty of burglary

given the evidence.

      As a seemingly last-ditch effort, Williams asserts that his conviction

presents a unanimity problem 7—specifically, the burglary jury instruction said

"entered or remained unlawfully" 8 and there was no evidence he entered


       6   312 S.W.3d 321 (Ky. 2010).
       7 This refers to Williams's right to a unanimous jury verdict under Section 7 of
the Kentucky Constitution. This right has likewise been recognized—especially
recently—throughout our case law, statutory law, and rules of this Court. See
Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013); KRS 29A.280(3); Kentucky
Rules of Criminal Procedure (RCr) 9.82(1).
       8   Emphasis added.
unlawfully. To Williams, the jury instructions permitted the jury to decide

between two theories without indicating what theory served as the basis for the

conviction; in other words, some jurors may have believed Williams entered

unlawfully with the shotgun, while others may have believed Williams

remained unlawfully and left with the shotgun. This argument was never

presented to the trial court and is, therefore, unpreserved—Williams requests

our review of this issue for palpable error. 9

      In the broad sense, we have recognized two main types of unanimous-

verdict violations: (1) "when multiple counts of the same offense are

adjudicated in a single trial" and identical instructions are submitted to the

jury; and (2) "when a general jury verdict is based on an instruction including

two or more separate instances of a criminal offense, whether explicitly stated

in the instruction or based on the proof." 19 Williams presents neither.

      Instead, Williams takes issue with a jury instruction that contains

arguably surplus language—namely, language regarding Williams entering

unlawfully; a theory of criminal liability that the Commonwealth conceded was

not applicable to Williams. We discussed an argument of this nature in Travis

v. Commonwealthil and held that "such flawed instructions only implicate

unanimity if it is reasonably likely that some members of the jury actually

followed the erroneously inserted theory in reaching their verdict." 12 To the

extent it was flawed to insert the "enter unlawfully" language in the jury


      9   See RCr 10.26.
      10 Martin v. Commonwealth, 456 S.W.3d 1, 6-7 (Ky. 2015) (internal quotation
marks and alteration omitted).
      11   327 S.W.3d 456 (Ky. 2010).
      12   Id. at 463.
                                          6
instruction, it was harmless because it is not reasonably likely the jury actually

convicted Williams on that theory, given the evidence as a whole. In any event,

Williams failed to preserve any alleged instructional error and absent is the

manifest injustice necessary for an error to be palpable.

    B. The Commonwealth Presented Sufficient Evidence to Support
       Williams's Tampering With Physical Evidence Conviction.

       The sawed-off shotgun used to murder Montgomery was discarded in a

field between Montgomery's and Williams's residences. For years the weapon

went undiscovered. When Hill came forward and assisted in the investigation,

he led police to the shotgun, by then rusted and concealed by overgrown

weeds. Williams alleges the Commonwealth did not present sufficient evidence

to warrant a tampering-with-physical-evidence conviction because there was

no proof Williams concealed the weapon. 13 The Commonwealth concedes the

evidence was circumstantial but argues the evidence was adequate

nonetheless.

       No defendant may be convicted of a crime unless the prosecution proves

every element of the charged offense. The criminal defendant is denied due

process of law if convicted upon less than proof of all elements of the crime. 14

• But the elements of a crime may be proved by circumstantial evidence alone. 15

                                                                                         And,aswemtiobvursandofeiwhtr,gvne

evidence as a whole, it would be clearly unreasonable for a jury to find guilt.


       13 Williams challenged the tampering charge at the trial level and asserts here
the issue is adequately preserved. The Commonwealth, on the other hand, argues
Williams only challenged the burglary conviction with his directed-verdict motion.
Given our resolution of the issue, its preservation is of little consequence.
       14   Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002).
      15 Turner v. Commonwealth, 328 S.W.2d 536, 538 (Ky. 1959) ("Circumstantial
evidence alone is sufficient to sustain a conviction.").
                                             7
      A defendant is guilty of tampering with physical evidence "when,

believing that an official proceeding is pending or may be instituted, he: (a)

destroys, mutilates, conceals, removes or alters physical evidence which he

believes is about to be produced or used in the official proceeding with intent to

impair its verity or availability in the official proceeding.   " 16   Mirroring this

language, the trial court instructed the jury to find guilt if it believed Williams

"concealed or hid or removed a shotgun which he believed to be produced or

used in an official proceeding" and he did so intentionally.

      The evidence at trial was thin. But it pointed to a single scenario,

especially when viewed in a light most favorable to the Commonwealth:

Williams shot Montgomery, fled the residence with Hill while in possession of

the shotgun, and then tossed the gun out of the car window into a field while

returning to his residence. Hill saw this, of course, which is why he knew

where the gun was located. Again, there is little direct evidence of this

scenario, but the evidence was clear that the gun was Williams's, he loaded it

and placed additional shells in his pocket before leaving for Montgomery's, and

he carried the gun to the car as the duo left to kill Montgomery. In other

words, Williams was in possession of the gun at nearly all relevant times except

upon entering Montgomery's residence. Hill did not testify that Williams

handed him the gun after shooting Montgomery, so it was reasonable for the

jury to believe Williams fled with the gun and discarded it in an attempt to

keep police from locating the weapon.




       16   KRS 524.100.
                                           8
      The main thrust of Williams's argument seems to be that the gun was

not concealed; it was just hidden in weeds. Admittedly, Williams did not bury

the gun underground or otherwise camouflage the weapon in some way, but we

are unsure what import this has on the sufficiency of the Commonwealth's

evidence. Williams flung the gun into a field of weeds that hid the weapon from

view. Would Williams's argument be different if he had thrown the gun in a

trash can or lake? The evidence tended to prove that Williams was responsible

for the shotgun being out of sight—conceal is defined as "to hide; withdraw or

remove from observation; cover or keep from sight." 17 The Commonwealth's

evidence was sufficient to defeat a motion for directed verdict.

   C. The Admission of Incriminating Hearsay Testimony was not
      Erroneous.

      During trial, the Commonwealth called Henrietta Ponder to testify

regarding, among other things, various incriminating statements Williams

allegedly made to her about Montgomery. Williams told Ponder Montgomery

would "pay for it one day"; "that son of a bitch is the one that testified against

me"; and "he's gone, he's dead." Williams objected when the Commonwealth

called Ponder to testify and asserted he had not been provided adequate notice

that Ponder would be a witness and would offer testimony on these

incriminating statements.

      Because our criminal rules require notice of such testimony, 18 Williams

essentially claims the Commonwealth committed misconduct. But the flaw in

Williams's theory lies in the fact that Ponder also provided the same testimony



      17   http://www.dictionary.com/browse/conceal
      18   See RCr 7.24(1); Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008).
                                           9
at Hill's criminal trial. Williams's counsel acknowledged watching the

recording of that trial four or five times in preparation for Williams's trial. The

trial court, as a result, professed to be at a loss to understand how Williams

was surprised by the Commonwealth's calling Ponder to testify. In a moment

of candor, Williams's counsel admitted that he was not surprised Ponder was

called to testify. So the trial court overruled Williams's objection to Ponder's

testimony but did limit her testimony to statements made during Hill's trial.

       Williams now attempts to push a narrative filled with obfuscation and

gamesmanship by the Commonwealth. The Commonwealth did not, as it

should have, provide a formal discovery response to Williams regarding

Ponder's testimony. But there is no evidence that this failure was deliberate. In

Chestnut, we noted that "[t]he Commonwealth's ability to withhold an

incriminating oral statement through oversight, or otherwise, should not

permit a surprise attack on an unsuspecting defense counsel's entire defense

strategy" because this would "run afoul of the clear intent of RCr 7.24(1)." 19

                                                                                     Her,Wilamshdnorguet—aclynomkesuha

argument—that he was caught off guard by Ponder's testimony or his defense

strategy was jeopardized. Williams's counsel knew exactly what Ponder was

going to say, and similar versions of Williams's statements to Ponder were

admitted through the testimony of other witnesses.

       We should be clear that we do not condone the Commonwealth's

behavior, 20 and we areIn no way crafting a general rule that notice is not


       19   Chestnut, 250 S.W.3d at 296.
       20 Our past strong disapproval of hide-the-ball tactics remains true today: "[I]t
is imperative that the Commonwealth provide full and timely discovery pursuant to
RCr 7.24 and 7.26. Failure to do so will result in severe sanctions." Roberts v.
                                            10
required if the witness testifies at the co-defendant's trial. The Commonwealth

blundered, but the blunder does not arise to an error warranting reversal

under the -circumstances of this case. And we cannot say the trial court

abused its discretion in denying Williams's motion for directed verdict. To the

contrary, the trial court properly exercised its discretion by crafting a remedy

for Williams: Ponder's testimony was limited only to what she offered

previously at Hill's trial. In other words, Ponder was only permitted to testify

about what Williams's counsel was already aware of and prepared to meet in

William's defense.

   D. Williams's Right to Present a Defense was not Denied When the
      Commonwealth did not Conduct Requested DNA Evidence.

      A bedspread covered the couch upon which Montgomery was sitting

when he was murdered. During the crime-scene investigation, police removed

a section of the bedspread for testing purposes. Williams requested this

sample be tested for gunshot residue before trial, but the testing was never

performed. Instead, the Commonwealth's Attorney only requested DNA testing

be performed on the sample. 21 But the evidence log noted that the sample had

"gunshot residue - powder burns."



Commonwealth, 896 S.W.2d 4, 7 (Ky. 1995). Discovery is a vital aspect of ensuring a
defendant is afforded his full constitutional guarantees—it should not be reduced to a
game of cat and mouse. See James v. Commonwealth, 482 S.W.2d 92, 94 (Ky. 1972).
        21 The DNA testing provided the rather unremarkable conclusion that the blood
on the bedspread was Montgomery's. This was of little surprise, considering
Montgomery was the murder victim and there was no argument of struggle or
altercation between the parties. Williams claims his rights were violated because the
Commonwealth did not provide the results in a timely manner. We agree to the extent
that the Commonwealth should have provided the results earlier—this is consistent
with our overall disappointment in the Commonwealth's management of the discovery
in this case. But that said, we are unable to find Williams was prejudiced by the delay
because there was never any argument that any DNA other than Montgomery's should
or would be on the bedspread. More directly, Williams has offered no argument that
                                             11
       On the first day of trial, Williams moved to dismiss the case because the

gunshot-residue testing had not been performed. The Commonwealth's

Attorney admitted the mistake, blaming it on a miscommunication with the

lab. In response, the Commonwealth's Attorney proposed to the trial court that

Williams be permitted to argue gunshot residue was present, despite the

absence of test results and question the detective who collected the sample

because he also believed gunshot residue to be present. And the

Commonwealth suggested a continuance may be appropriate. The trial court

noted that because both parties believed gunshot residue was present on the

bedspread, Williams could argue that at trial without the lab results and could

request a missing-evidence instruction at the appropriate time. In the end, the

trial court denied Williams's motion to dismiss.

      Williams now argues he was denied due process because the gunshot-

residue results were critical to his defense. Specifically, Williams planned to

use gunshot residue to disprove Barbara Aarons's account of the murder and

impugn her credibility. If gunshot residue were on the bedspread, in Williams's

view, it was more likely that Montgomery was seated rather than standing as

Aarons claimed.

      We should begin by noting that Williams failed to request a missing-

evidence instruction—an instruction "permitting the jury to infer that the

missing evidence, if available, would be adverse to the Commonwealth and

favorable to the defendant." 22 And it is important to point out that Williams


the DNA testing could have been exculpatory or led to another suspect. Instead, he
simply rails against the Commonwealth's sloppy practice.
      Estep v. Commonwealth, 64 S.W.3d 805, 809 (Ky. 2002) (citing Sanborn v.
      22
Commonwealth, 754 S.W.2d 534, 539-40 (Ky. 1988).
                                          12
was not prohibited from arguing gunshot residue was found on the bedspread.

Again, the detective who collected the sample believed gunshot residue to be

present and the evidence log indicated this. And the Commonwealth even

agreed with Williams on this point.

      So again we encounter a situation where the Commonwealth failed to

uphold best practices, but Williams can show little or no prejudice. Williams

was able to offer proof that gunshot residue was on the bedspread and how

that would indicate Montgomery's position when he was shot. The lab results

would have been an additional aspect of support for Williams's attack on

Aarons, to be sure. But the Commonwealth's failure to obtain those results

does not, given the circumstances, equate to a violation of Williams's right to

due process or present a defense. A missing-evidence instruction—a remedy

the trial court seemed willing to provide at William's request—would most likely

have been sufficient to ameliorate any damage done by the Commonwealth's

failure to test the bedspread for gunshot residue. Williams's constitutional

rights simply were not violated.

   E. The Admission of Hearsay Evidence was not Palpable Error.

      Finally, Williams challenges the admission of a statement allegedly made

by Hill to Brenda Worley, an acquaintance of both Williams and Hill. This

issue is unpreserved, but Williams requests we engage in palpable-error review.

      At trial, Worley testified that she learned of Montgomery's murder the

morning after it occurred. Worley testified that Hill told her that he had never

seen anyone get killed before. Williams challenges this statement as

inadmissible hearsay. Hill did not testify at Williams's trial because he was

tried separately and asserted his Fifth Amendment privilege to remain silent.
                                        13
       Initially, we are inclined to find the challenged statement is not hearsay.

As defined by our rules of evidence, hearsay is "a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted." 23 More than proving

whether or not he had seen anyone killed before, the offered statement serves

as an indicator of Hill's state of mind upon returning to Williams's residence

after going to see Montgomery, a purpose for which hearsay is admissible

under our rules. 24 That being said, the statement must still be relevant to an

issue in the case and we are unable to identify what state of mind Hill's

statement revealed. Hill's statement was therefore erroneously admitted.

       This admission does not, however, rise to the level of palpable error. For

an error to be palpable, it "must result in manifest injustice, either through the

probability of a different result or [be] so fundamental as to threaten a

defendant's entitlement to due process of law." 25 If Worley had not been

permitted to provide Hill's statement, there is little probability of a different

result at Williams's trial. The evidence still indicated that Williams was at

Montgomery's residence the night he was murdered, sought revenge against

Montgomery, traveled to Montgomery's residence with a shotgun, and

Montgomery died from a shotgun blast. This point in Aarons's testimony-

       23 Kentucky Rule of Evidence (KRE) 801(1)(c). Absent an applicable exception
listed in our rules, hearsay is inadmissible. KRE 802.
       24 See KRE 803(3) ("Then existing mental, emotional, or physical condition. A
statement of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health, but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation, identification, or
terms of declarant's will.").
      25 Jones v. Commonwealth, 331 S.W.3d 249, 256 (Ky. 201'1) (internal quotation
marks omitted).
                                            14
whether Montgomery was seated or standing when murdered—was relatively

Minor in the grand scheme of her account. Williams's entitlement to due

process was not threatened by the admission of Worley's mention of Hill's

statement.


                                  III.   CONCLUSION.

       Because none of Williams's claims merit reversal, we affirm the judgment

of the trial court.

       All sitting. All concur.



COUNSEL FOR APPELLANT:


Andy Beshear
Attorney General of Kentucky.

Kenneth Wayne Riggs
Assistant Attorney General of Kentucky

COUNSEL FOR APPELLEE:

Kathleen Kallaher Schmidt
Assistant Public Advocate




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