               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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                                                    RENDERED: JUNE 15, 2017
                                                       NOT TO BE PUBLISHED


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                              (2015-CA-001956-MR)

                                                        [DJ ffi\LJ [E?/'1, 7 f..e, '4J1M11t1. IX
STEVEN PETTWAY                                                           APPELLANT


               ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.            HONORABLE ANGELA MCCORMICK BISIG, JUDGE
                NOS. 11-CR-003052 AND 11-CR-003052-002


COMMONWEALTH OF KENTUCKY                                                   APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


      Appellant, Steven Pettway, appeals from an order of the Jefferson Circuit

Court denying his motion for a new trial. Appellant's motion was based upon

the post-trial disclosure of a police report containing statements of Princess

Bolin, a key witness who testified against Appellant at his murder trial. We

agree with the trial court that there is not a reasonable possibility that the

newly discovered information, if available at the time of the trial, would have

had an appreciable impact on the result of the trial. Consequently, we affirm.

               I. FACTUAL AND PROCEDURAL BACKGROUND

      In 2013, Appellant was convicted for the 2009 murder ofTroya Sheckles.

We affirmed the murder conviction in Pettway v. Commonwealth, 470 S.W.3d
706 (Ky. 2015).1 In that decision, we provided the following summary of the

case:

        Troya Sheckles was shot and killed in Shelby Park in Louisville
        around 7:30 p.m. on March 23, 2009. Several people saw the
        shooting, and they all gave largely consistent descriptions of the
        shooter as being a male in dark clothing with a bandana tied
        around his face.


        The Commonwealth's theory of the case was that Pettway killed
        Sheckles at Dejuan Hammond's direction to prevent her from
        testifying in the upcoming murder trial of his younger brother,
        Lloyd Hammond. Sheckles had witnessed the killing of William
        Sawyers in her home in 2006 and had identified Lloyd Hammond
        as the killer. Pettway was friends with the Hammonds, and the
        then-sixteen-year-old Pettway looked up to the much older Dejuan
        Hammond as a sort of mentor. The Commonwealth's evidence
        showed, among other things, that Pettway and Dejuan Hammond
        knew Sheckles was the essential witness for the Commonwealth in
        Lloyd Hammond's upcoming murder trial and had stashed a 9-mm
        pistol (the same kind used in Sheckles's shooting) at a friend's
        house.about a month before the murder. There was also testimony
        about numerous statements made by Pettway following the murder
        admitting that he had shot Sheckles so that she could not testify
        against Lloyd Hammond.

Id. at 707-08.




        1   In the same decision, we reversed Pettway's conviction for intimidating a
witness.

                                               2
       In a separate trial, Dejuan Hammond was also convicted of Sheckles'

murder.2 One of the witnesses who testified at Appellant's trial was Dejuan

Hammond's girlfriend, Princess Bolin. Bolin had told police that she was at

Shelby Park with a friend when Sheckles was killed and that she had seen

Appellant commit the crime. When asked at Appellant's trial to repeat what

she had seen, Bolin balked. The incriminating assertion was then presented to

the jury through the prior statement she had given to the police.

       During the appeal of Appellant's conviction to this Court, his attorney

received notice from the prosecutors that Bolin had made a different, and

previously undisclosed, pre-trial statement to police detective Roy Stalvey. The

failure to make a more timely disclosure of Bolin's other statement appears to

have been inadvertent. It was uncovered during the subsequent trial of

codefendant Dejuan Hammond.

          In that statement, contrary to what was presented at Appellant's trial,

Bolin denied knowing anything about Sheckles' murder. She told Detective

Stalvey that she was with Dejuan Hammond buying shoes at the Jefferson Mall

when Sheckles was murdered. Although this belatedly-disclosed statement

provides an alibi for Dejuan, it does not exonerate Appellant.3 Nevertheless, it

would have been a useful impeachment tool for undermining the trial

testimony that Bolin saw Appellant shoot Sheckles. The Commonwealth


      2   See Hammond v. Commonwealth, 2016 WL 3371054 (Ky. 2016).
      3 As noted below, the newly-disclosed statement tended to exculpate Hammond.
Because of its late discovery in the midst of his trial, a mistrial was declared in that ·
proceeding.

                                            3
conceded that Appellant should have received the. report of the statement prior

to his trial.

       Based upon the post-trial disclosure of Bolin's prior statement to police,

Appellant filed a motion for a new trial pursuant to RCr 10.02 and RCr

10.06(1), citing the report as newly discovered evidence. Appellant alleged that

the Commonwealth's failure to provide the report prior to trial violated his due

process rights, his right to confront witnesses, and his right to present a

defense as provided by the Sixth and Fourteenth Amendments of the United

States Constitution and Sections 2, 11, and 13 of the Kentucky Constitution.

Appellant also alleged that the Commonwealth's failure to disclose the report

violated his due process rights to exculpatory information under Brady v.

Maryland, 373 U.S. 83 (1963).

      The trial court denied the motion for a new trial after concluding that a

more timely pre-trial disclosure of Bolin's inconsistent statement would not

have affected the jury's decision to convict Appellant of murder. Appellant

appealed the ruling to the Court of Appeals. We granted transfer of the case to

expedite the disposition of the matter and because the appeal of Dejuan

Hammond's conviction for Sheckles' murder was pending before us at the time.

                                   II. ANALYSIS

      Appellant contends that the trial court abused its discretion by denying

his motion for a new trial and by rejecting his Brady argument. A trial court

may grant a new trial "for any cause which prevented. the defendant from

having a fair trial, or if required in the interest of justice." RCr 10.02(1).

                                          4
 "Granting a new trial is within the discretion of the trial court, and such is

 disfavored when the grounds are newly discovered evidence which is merely

 cumulative or impeaching in nature." Foley v. Commonwealth, 425 S.W.3d

 880, 888 (Ky. 2014) (citing Epperson v. Commonwealth, 809 S.W.2d 835 (Ky.

 1990)). To warrant a new trial, the newly discovered evidence "must be of such

. decisive value or force that it would with reasonable certainty, change the

 verdict or that it would probably change the result." Jennings v.

 Commonwealth, 380 S.W.2d 284, 285-86 (Ky.1964) (internal quotation and

 citation omitted).

       A Brady violation consists of three components: "The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because it

is impeaching; that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued." Goben v.

 Commonwealth, 503 S.W.3d 890, 914 n. 21 (Ky. 2016) (citing Strickler v.

 Greene, 527 U.S. 263, 281-82 (1999)). We review the factual findings

associated with the trial court decision under the clearly erroneous standard,

CR 52.01; based upon those findings of fact, we determine de nova if the

deprivation of the newly-discovered evidence constituted a Brady violation.

Commonwealth v. Parrish, 471 S.W.3d 694, 697 (Ky. 2015) (citing

Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky. 2007)).

       In denying Appellant's motion for a new trial, the trial court addressed

the principal issues as follows:




                                         5
Both parties acknowledge that many of the witnesses at the trial of
[Appellant] were uncooperative and ultimately were impeached
based upon the use of prior out-of-court statements. Princess
Bolin could clearly be characterized as such an uncooperative
witness. The victim, Troya Sheckles, was at a park with long-time-
friend, Donteze Hurt, at the time of the murder. At Pettway's trial,
Hurt testified that he witnessed the shooting ofTroya Sheckles. He
further stated the bandana covering the man's face slipped down.
Donteze Hurt positively identified the [Appellant] as the shooter.
Further, the police recovered nine millimeter shell casings at the
scene of the shooting. A ballistics expert testified that the shots
were fired from a nine millimeter semi-automatic gun .. Witness
Janice Bolin, Princess Bolin's mother, testified that Defendant
Dejuan Hammond and [Appellant] had stored a nine millimeter
handgun in her back yard.

At trial the Commonwealth further established that Troya Sheckles
was a critical witness in the murder case of Defendant, Dejuan
Hammond's, brother, Lloyd Hammond. Dejuan Hammond was
present and in the courtroom when Ms. Sheckles was sworn to
reappear as a witness in the Lloyd Hammond murder trial. Prior
to Ms. Sheckles appearance, the murder indictment had been
dismissed against Lloyd Hammond.

Conversely, the defense's position is that the case against
[Appellant] contained little physical evidence. They note that
Princess Bolin was one of four witnesses the Commonwealth called
at trial to testify about events leading up to and following the
shooting. Defense counsel argues that the statement of Princess
Bolin, disclosed in the trial of Dejuan Hammond, could have been
used to impeach Bolin and attack her credibility during her
testimony. Further, defense argues had Bolin been more fully
impeached, the jury could have made a decision to reject her
testimony.

Defense also believes the missing letter could have been used to
impeach Kayonia Thomas who testified that she saw [Appellant]
and Hammond driving hear Shelby Park at the time of the
shooting.

While the Court agrees this evidence may have provided [Appellant]
with another avenue to impeach the statements of Princess Bolin
regarding the crime, that statement only provided an alibi for
Dejuan Hammond, and was not supported by other witnesses or
information in the case. The newly discovered evidence contains
information very remote from the issues related to [Appellant].
                                6
      To any observer of (Appellant's] trial, Princess Bolin was already a
      witness frustratingly rife with a plethora of contradictions.
      Kayonia Thomas' testimony was not related to the investigative
      letter, and she could not realistically be impeached with one of
      Princess Bolin's out of court statements. The Court not only finds
      that the new evidence here was not likely to change the outcome of
      the trial, but for the above reasons, would not have made any
      significant difference in the trial of this case. There was a
      substantial amount of information involved in this trial. Given the
      totality of the other evidence presented, as well as the already
      inconsistent nature of Bolin's testimony, the Court does not find
      the information would have changed the outcome of the jury's
      decision to convict (Appellant] on the one count of murder.

Trial Court's Nov. 20, 2015, Order, pgs 5-7.

      We agree with the trial court's assessment. The substance of Bolin's

undisclosed statements provided Dejuan Hammond with an alibi for the

shooting, but it did not exculpate Appellant. It would have aided Appellant's

effort to impeach Bolin's other statement, but as the trial court noted, she had

already been shown to be an uncooperative, contradictory, and inconsistent

witness. Given the level of impeachment material already available to discredit

Bolin, this new information would have been only marginally helpful.

      Moreover, since Sheckles was apparently killed to prevent her from

testifying against Lloyd Hammond, the credibility of Bolin's initial disclaimer of

any knowledge about the shooting is burdened by the appearance that she was

falsely distancing herself from the crime to avoid a similar fate. The

exculpatory effect of the statement would no doubt be blunted by the

Commonwealth's ability to point out Bolin's incentive to deny knowledge of the

murder.


                                        7
      In summary, we agree with the trial court that Appellant is not entitled to

a new trial under the applicable standard for obtaining relief under RCr 10.02

in that the new information was not "of such decisive value or force that it

would with reasonable certainty" have changed the verdict, or "would probably

change the result if a new trial should be granted." Jennings, 380 S.W.2d at

285-86.

      For similar reasons, Appellant is not entitled to relief under a Brady v.

Maryland analysis. The evidence satisfies the first two prongs of the Strickler v.

Greene test because it was useful to discredit Bolin and was erroneously

withheld; nevertheless, Appellant fails to satisfy the third prong of the inquiry

as he was not substantially prejudiced by the Commonwealth's failure to timely

turn over the Bolin interview information. Goben, 503 S.W.3d at 914.

                                 III. CONCLUSION

      For the foregoing reasons, the judgment of the Jefferson Circuit Court

denying Appellant's motion for a new trial is affirmed.

      All sitting. All concur.




                                        8
COUNSEL FOR APPELLANT:

Euva Denean Blandford
Amy Robinson Staples
Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

James Coleman Shackelford
Assistant Attorney General




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