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                                                    RENDERED: JUNE 16, 2016
                                                       NOT TO BE PUBLISHED

               oi5nprrittr       Court of 7/ ritfuritv
                              2015-SC-000269-MR


DEJUAN EARL HAMMOND                                                     APPELLANT


               ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.            HONORABLE ANGELA MCCORMICK BISIG, JUDGE
                           NO. 13-CR-003412


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                  MEMORANDUM OPINION OF THE COURT

               AFFIRMING IN PART AND REVERSING IN PART


      On the evening of March 23, 2009, Steven Pettway shot and killed Troya

Sheckles in Shelby Park in Louisville, Kentucky. Pettway was tried and

convicted by a Jefferson Circuit Court jury of murder and intimidating a

participant in the legal process. In accordance with the jury's

recommendation, the trial court sentenced him to a total of 55 years'

imprisonment. On appeal, we determined that "Pettway could not have been

guilty of intimidating a witness under any view of the facts and evidence in this

case." Pettway v. Commonwealth, 470 S.W.3d 706, 710 (Ky. 2015); see also

KRS 524.040. We held that this unpreserved error was palpable and required

reversal of Pettway's intimidation conviction. Id. The murder conviction was

affirmed.
      Pettway's co-defendant was Dejuan Hammond (hereinafter "Appellant").

The two were tried separately. Similar to the case involving Pettway, the

Commonwealth's theory against Appellant was that Pettway killed Sheckles at

Appellant's direction to prevent her from testifying in the upcoming murder

trial of Appellant's younger brother, Lloyd Hammond. It is undisputed that

Sheckles was an essential eye witness in Lloyd's murder trial.

      After multiple mistrials, Appellant was successfully tried and convicted

by a Jefferson Circuit Court jury of complicity to murder and complicity to

intimidating a participant in the legal process. After convicting Appellant of

being a second-degree persistent felony offender, the jury sentenced him to 25

years' imprisonment for murder, and five years enhanced to 10 for intimidating

a participant in the legal process. The sentences were ordered to run

consecutively for a total sentence of 35 years' imprisonment. Appellant now

appeals his judgment and sentence as a matter of right pursuant to § 110(2)(b)

of the Kentucky Constitution. Three issues are addressed as follows. For the

reasons stated herein, we reverse Appellant's conviction for intimidating a

participant in a legal process, but affirm the murder conviction.

                Intimidating a Participant in a Legal Process

      Appellant's primary argument is that he could not be convicted of both

intentional murder and intimidating a participant in a legal process. The

statute at issue is KRS 524.040. It provides in relevant part:

      (1) A person is guilty of intimidating a participant in the legal
      process when, by use of physical force or a threat directed to a


                                        2
      person he believes to be a participant in the legal process, he or
      she:

      (a) Influences, or attempts to influence, the testimony ... of that
      person; [or]

      (c) Induces or attempts to induce, that person to absent himself or
      herself from an official proceeding to which he has been legally
      summoned.

      Applying this statute in Pettway, we held that "[k]illing a witness

forecloses the possibility of influencing that witness's testimony or inducing the

witness to absent herself from trial." Pettway, 470 S.W.3d at 710. As

previously stated, we reversed Pettway's intimidation conviction. The

Commonwealth requests that we reconsider our previous holding in Pettway

when applying that holding to the present case. We decline the invitation.

      However, we will address the Commonwealth's argument that the

present case is factually distinguishable from Pettway. The Commonwealth

essentially argues that it presented evidence of Appellant's criminal conduct

that occurred prior to Sheckles' murder and was entirely distinct from the act

or complicity to murder. We will address this issue in the context of whether

Appellant was entitled to a directed verdict.

      To clarify, Appellant argued before the trial court that the

Commonwealth failed to present sufficient evidence on the intimidation charge

and that he was entitled to a directed verdict. The court denied Appellant's

motion. Similar to the issue addressed in Pettway, Appellant's argument here




                                         3
requires that we review the sufficiency of the evidence presented by the

Commonwealth.

      We will reverse the trial court's denial of a motion for directed verdict "if

under the evidence as a whole, it would be clearly unreasonable for a jury to

find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing

Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). Our

review is confined to the proof at trial and the statutory elements of the alleged

offense. Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011). The

Commonwealth presents several items of evidence in support of its argument

that Appellant was not entitled to a directed verdict and, therefore, that he was

properly convicted of murder and intimidating a participant in a legal process.

      First, the Commonwealth presented evidence at Appellant's trial that

Sheckles was evading service at the time of Lloyd Hammond's scheduled trial

date. The Commonwealth also contends that evidence indicated that Sheckles

was not herself in the time leading up to that trial and did not want to attend

family gatherings. However, the Commonwealth's citation to the record fails to

confirm this latter claim.

      Second, Lloyd's case was dismissed without prejudice after Sheckles

could not be located. Because she was an indispensable eye witness, a

warrant was issued for her arrest. After she was located, Lloyd was again

indicted.

      Third, Appellant visited his brother on three separate occasions in early

2009 and received jail phone calls from Lloyd in early March 2009. Prior to his


                                         4
2009 visits, Appellant had not visited his brother in jail since 2007. The

Commonwealth claims that the 2009 jail visit occurred one week before Lloyd's

trial was scheduled to begin.

      Fourth, there was testimony that Appellant voiced his intent to identify

the witness, and help his younger brother, Lloyd, get out of jail. This evidence

came from Prince Bolin, the brother of Appellant's former girlfriend, Princess

Bolin. After Prince denied having any memory of speaking to the police about

this matter, the Commonwealth introduced a recording of his statements to the

police wherein he stated that Appellant told him that he had seen the victim,

Sheckles, in the park and that Appellant voiced his intention to "take her." The

Commonwealth also introduced Princess Bolin's prior statement to the police

wherein she stated that she overheard Appellant speaking to Lloyd over the

phone concerning Sheckles testifying at trial. Appellant told Lloyd not to worry

and that everything would be taken care of. According to Princess, she also

heard Appellant inform Lloyd that it had been "taken care of." This occurred

two or three days after Sheckles' murder.

      It would be clearly unreasonable for a jury to convict Appellant based on

these four instances of evidence presented by the Commonwealth. More

precisely, Sheckles' aversion to appearing as a key eye witness in a murder

case is not entirely unique, and certainly not evidence from which jurors could

reasonably convict Appellant of intimidating a participant in a legal process.

And while the testimony that Appellant voiced his intent to "take care of it" and

help his younger brother get out of jail may be sufficient evidence of his


                                         5
intention to intimidate Sheckles, it fails to indicate that Appellant ever acted or

attempted to act on his intent to intimidate a witness other than the murder

itself. See KRS 524.040. Under our holding in Pettway, Appellant's complicity

to Sheckles' murder cannot satisfy that requirement.

      In addition to this evidence, the Commonwealth also cites an instance

where Sheckles was ordered to appear at a pre-trial hearing in the murder case

against Appellant's brother, Lloyd. Some additional background information is

necessary.

      As previously noted, Lloyd's murder indictment was dismissed without

prejudice after the key witness, Sheckles, could not be located. Because she

was an indispensable witness in Lloyd's case, a warrant was issued for her

arrest. After she was located, Lloyd was again indicted. Sheckles was ordered

to appear in court where she was sworn to appear at Lloyd's subsequent trial.

Appellant was present in the court room gallery during that hearing.

      Tom Coffey was a former Assistant Commonwealth's Attorney who was

involved in the prosecution of Appellant's brother, Lloyd. Coffey testified at

Appellant's trial. Prior to testifying, Coffey was informed of the trial court's

ruling that Coffey could testify as to his observations of Sheckles' demeanor,

but could not testify as to how Sheckles felt. Thereafter, Coffey testified that,

during the hearing in which Appellant was present in the courtroom gallery,

Sheckles was trembling and "had all the signs of someone who looked very,

very, afraid." Defense counsel objected and the court admonished the jury that




                                          6
a witness cannot state what someone else is feeling and to "disregard anything

that's not in the category of something that could be observed."

      We have previously recognized that IgIenerally, a witness may not testify

to the mental impressions of another."    See Young v. Commonwealth, 50

S.W.3d 148, 170 (Ky. 2001) (citations omitted); see also KRE 701 and KRE 602.

However, lamn exception occurs if the opinion is based on the witness's own

factual observations or perceptions." Attorney Coffey's testimony was based on

his own observation or perception of Sheckles' actions and reactions. Young, 50

S.W.3d at 170. Therefore, this evidence was admissible. Moreover, Appellant

received the benefit of an admonition that the jury not consider any portion of

Coffey's testimony that was based on anything other than Coffey's own

observations. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) ("[a]

jury is presumed to follow an admonition to disregard evidence and the

admonition thus cures any error."). Two other witnesses also testified in a

manner similar to Coffey.

      Tom Van De Rostyne was a former Assistant Commonwealth's Attorney

who had been intimately involved in Appellant's prosecution until he was

removed from the case. The Jefferson County Commonwealth Attorney's office

initiated an internal investigation into Van De Rostyne's handling of Appellant's

case that will be discussed later in our analysis. For purposes of the present

issue, it is only relevant that Van De Rostyne testified during Appellant's trial

that Sheckles looked "terrified" at the hearing where she was ordered to appear

prior to Lloyd Hammond's trial. To clarify, that was the same hearing where


                                         7
Appellant was present in the court room gallery. Detective Roy Stalvey, also

testified that he had been informed that "apparently [Sheckles] was nervous

from a prior proceeding that she was in where she saw [Appellant] in the

courtroom." This isolated comment occurred while Detective Stalvey was

generally describing why he believed Sheckles' murder to be a targeted killing.

Appellant failed to object to these statements by Van De Rostyne and Detective

Stalvey.

      Like Coffey's testimony, Van De Rostyne's statements were based on his

own observation or perception of Sheckles' actions and reactions. Similarly,

Detective Stalvey's statement concerned Sheckles' apparent nervousness. No

error occurred here, and certainly no palpable error. RCr 10.26; McCleery v.

Commonwealth, 410 S.W.3d 597, 606 (Ky. 2013) (we will not reverse unless "it

can be determined that manifest injustice, i.e., a repugnant and intolerable

outcome, resulted from that error.").

      Even viewing Van De Rostyne and Coffey's disputed testimony as

properly admitted, however, there was still insufficient evidence in this case to

instruct the jury on the intimidation charge. The disputed testimony involves

Appellant's presence in the courtroom gallery where he presumably had a right

to be. The Commonwealth has not offered any evidence that the hearing at

which Sheckles and Appellant were present was closed to the public.

Therefore, when considering the evidence as a whole, it was clearly

unreasonable for a jury to find guilt here. Accordingly, we reverse Appellant's

conviction for intimidating a participant in a legal process.


                                         8
                              Discovery Violations

      Next, Appellant argues that due to numerous discovery violations by the

Commonwealth, "the court must employ its inherent supervisory power and its

power under Section 2 of the Constitution to dismiss the indictment with

prejudice . . . ." Appellant contends that the appropriate remedy here is

dismissal of his indictment. We disagree.

      Before the first trial date in this case, the charge was dismissed without

prejudice because the Commonwealth's witnesses were unavailable.

Appellant's second trial resulted in a mistrial when a complete copy of an

investigative letter was not disclosed by the Commonwealth until the middle of

trial. As such, Appellant moved to dismiss the case with prejudice. In support,

Appellant argued that the investigative letter included the statement of a

witness who provided an alibi for Appellant. The court denied the motion.

Defense counsel subsequently discovered that the Commonwealth possessed

additional discovery materials that had not been disclosed to the defense. In

response, Appellant filed additional motions to dismiss which were denied by

the court.

      Having reviewed the record, we agree with the Commonwealth that the

trial court's orders denying Appellant's dismissal motions were well-reasoned

and appropriate. In denying Appellant's third and final motion to dismiss, the

court stated the following:

      The Court has twice found that the Commonwealth failed in its
      duty to conduct a thorough review of its files to insure that all
      materials were properly disclosed. However, in these most recent
      documents, the Court does not find that the information fell within
                                        9
      the scope of RCr 7.24 or Brady v. Maryland, 373 U.S. 83 (1963) . .
      .. The Court therefore finds no discovery violation. It is of the
      utmost importance that [Appellant] be able to receive a fair trial
      and have his due process rights vigorously defended. The Court
      notes that all of the information at issue is now disclosed prior to
      the next-scheduled trial date for [Appellant]. The Court further
      would grant a motion to continue if defense counsel believes it
      needs additional time to prepare in light of the evidence disclosed
      in this case.

The trial court also ordered that defense counsel have access to the entire

police file in this case. That is an extraordinary remedy. We addressed a

similar issue in Pettway:

      [Appellant] has already received appropriate judicial remedies in
      the form of a mistrial and exclusion of evidence. To pile on would
      be nothing but arbitrary. And such action would raise significant
      separation-of-powers concerns. While we acknowledge the
      observation of Chief Justice Palmore that "[s]ometimes, as Holmes
      remarked, because the constable blundered the criminal must go
      free, that being the most effective method of helping the constable
      not to blunder the next time," Reid v. Cowan, 502 S.W.2d 41, 42
      (Ky. 1973), this is not one of those times. There was no blunder
      that could not be appropriately addressed, as the trial court did
      here, under our rules of procedure.

      Pettway, 470 S.W.3d at 712.

Like in Pettway, the discovery violations that occurred in the present case were

properly addressed by the trial court. Any prejudice that may have occurred

most certainly does not warrant the dismissal of the indictment.

                               Closing Argument

      For his final argument, Appellant contends that the trial court

erroneously limited defense counsel's closing argument discussion of an

internal investigation into the handling of this case. Appellant asserts that this

information was critical to his defense that this case was the product of an


                                        10
"overzealous prosecution and tunnel-vision investigation where leads were not

followed and exculpatory evidence was disclosed years after the crime

occurred." Some additional background information is necessary.

         The investigation at issue here was an internal investigation ordered by

the Jefferson County Commonwealth's Attorney that specifically targeted the

handling of discovery by former Assistant Commonwealth's Attorney Tom Van

De Rostyne. Mr. Van De Rostyne was actively involved in Appellant's case

before and after the indictment. He was subsequently removed from the case

in December 2012, which was two years before Appellant's trial. The

investigation into his handling of discovery was still pending during Appellant's

trial.

         It is critical to note that the defense discussed the investigation during

opening statement and during its questioning of Attorney Coffey. The

Commonwealth did not object to these instances. However, near the end of

trial, the Commonwealth objected to any additional references to the

investigation on the basis that it was irrelevant. The Commonwealth also

requested that the court strike defense counsel's earlier remarks, and

requested that the jury be admonished not to consider those statements. The

trial court declined to strike the evidence or admonish the jury, but ordered

that there be no additional references to the internal investigation.

         Subsequently, however, the trial court allowed defense counsel to briefly

question Attorney Van De Rostyne concerning his knowledge of the

investigation. The court also instructed the jury that they were not to consider


                                           11
Van De Rostyne's testimony on this issue as substantive evidence of the

defendant's case-in-chief.

      Prior to closing arguments, the parties sought additional clarification

whether the defense could discuss the internal investigation. The court ruled

that the investigation could be discussed in closing as relevant to Van De

Rostyne's alleged bias, but not for any other purposes. Accordingly, Appellant

informed the jury during closing that Van De Rostyne was under investigation

and that they could use that information when assessing his credibility as a

witness.

      Appellant specifically argues that he should have been able to further

develop his discussion of the internal investigation concerning Van De Rostyne

during closing argument in order to demonstrate how the investigation of the

murder case against Appellant had been mishandled, instead of being limited

to attacking Van De Rostyne's credibility.

      In support of his argument, Appellant cites Crane v. Kentucky, 476 U.S.

683 (1986). In that case, the trial court excluded testimony concerning the

circumstances of the defendant's confession on the ground that the testimony

pertained solely to the issue of voluntariness. This Court affirmed the trial

court's decision. The U.S. Supreme Court reversed and held that "evidence

about the manner in which a confession was obtained is often highly relevant

to its reliability and credibility" and that there was no "rational justification for

the wholesale exclusion of this body of potentially exculpatory evidence[.]"      Id.

at 691. The issue in the present case is clearly distinguishable from Crane.


                                          12
      Unlike the confession at issue in Crane, neither the testimony nor the

additional references concerning the investigation were introduced by the

prosecution as evidence against the accused. Also, the defendant. in Crane

introduced the excluded evidence by avowal which included "testimony from

two police officers about the size and other physical characteristics of the

interrogation room, the length of the interview, and various other details about

the taking of the confession." Id. at 686. In contrast, Appellant has failed to

indicate what specific evidence he was precluded from introducing because of

the ineptness of the investigation that defense counsel had not already

addressed in the earlier stages of trial. There was no error here.

                                   Conclusion

      For the foregoing reasons, we hereby reverse the judgment of the

Jefferson Circuit Court on the intimidating a participant in the legal process

conviction. We affirm the court's judgment on the murder conviction.

      All sitting. All concur.




                                        13
COUNSEL FOR APPELLANT:

Karen Shuff Maurer
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Dorislee J. Gilbert
Special Assistant Attorney General




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