             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: DECEMBER 17, 2015
                                                  NOT TO BE PUBLISHED

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                                        i ►
                             2014-SC-000369-MR u u u


O'NEAL DEMETRIUS SWINT                                            APPELLANT


              ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.           HONORABLE ANGELA MCCORMICK BISIG, JUDGE
                           NO. 12-CR-0003


COMMONWEALTH OF KENTUCKY                                             APPELLEE


                 MEMORANDUM OPINION OF THE COURT

                                 AFFIRMING


      On the evening of December 18, 2011, Anthony Jackson, also known as

Anthony Banks, was at the Peppermint Lounge in Louisville, Kentucky. Also

present at the lounge that night were Ahmed Mohamed ("Ahmed"), Hadrawie

Mohamed ("Hadrawie"), and Qasin Ahmed ("Qasin"). Ahmed had been

previously acquainted with Hadrawie and Qasin prior to the night of December

18th. All three men were Somali immigrants. Ahmed and Hadrawie hailed

from the same Somali clan and had been associated with each other for several

years. Ahmed and Qasin had been friends for nearly eight years.

      Jackson approached Ahmed and Qasin and said that he had a friend

who was looking for Xanax. The friend to whom he was referring was

Appellant, O'Neal Demetrius Swint. Jackson left the lounge and later returned

with Appellant. The three Somali men and Appellant departed the lounge
together in a car driven by Hadrawie. Ahmed sat behind Hadrawie, Qasin sat

in the front passenger seat, and Appellant sat behind Qasin.

      The vehicle eventually stopped at a residential neighborhood in order for

Appellant to purchase Xanax. There is some disagreement about how the

transaction occurred, specifically who provided the drugs to Appellant, and

whether Appellant and Ahmed left the car in order to procure the pills. After

completing the transaction, Appellant and the three Somali men drove back

toward the Peppermint Lounge.

      According to Ahmed's testimony, Appellant purchased fewer pills than

Qasin originally anticipated. This irritated Qasin. At some point during the

trip, Qasin demanded gas money from Appellant and Appellant refused. Upon

further request, Appellant gave Qasin one of the pills he had just purchased.

The car eventually stopped at another residential neighborhood prior to

arriving at the Peppermint Lounge.

      As Appellant was exiting the car, he shot Qasin in the back of the head

with a revolver, killing him. Appellant then turned his gun toward Ahmed.

Ahmed grabbed Appellant's wrist, but Appellant fired another shot. As the car

drove away, Appellant fired additional shots at the vehicle. Hadrawie was shot

in the arm.

      Appellant fled to his girlfriend Angela Carter's house where Jackson was

also present. Carter testified at trial that Appellant had a revolver with him

when he arrived. Carter also testified that she overheard a conversation

between Appellant and Jackson wherein Appellant admitted that an altercation


                                        2
 took place and that he shot the passenger in the head. He also admitted

 shooting the driver and at the car.

       Thereafter, Appellant temporarily resided with a friend, Angela Morgan.

Ms. Morgan testified at trial that she heard Appellant speak to someone on the

telephone that he needed to dispose of a .38 Smith and Wesson. Jackson died

prior to trial and the revolver used during the shooting was never recovered.

       The police also received several tips that identified Appellant as the

perpetrator. One of the tips came from Angela Carter.

       Appellant was eventually apprehended by U.S. Marshals and charged

with murder, first-degree assault, and wanton endangerment. A Jefferson

Circuit Court jury convicted him on all counts and recommended sentences

totaling sixty-three years' imprisonment. The trial court accepted the jury's

recommendation and sentenced Appellant accordingly. Appellant now appeals

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

Kentucky Constitution. Five issues are raised and addressed as follows.

                                 Juror Selection

      Appellant argues that the trial court erred by failing to excuse

prospective jurors 882883, 1050096, 1019349, and 1084790 for cause, and

that reversal of his conviction is required. We disagree.

       Defense counsel exercised four peremptory challenges to excuse these

prospective jurors. This exhausted all of Appellant's peremptory strikes. Prior

to jury selection, defense counsel, verbally and in writing, informed the court

that she would have used peremptory strikes on four other prospective jurors,


                                         3
three of whom participated in rendering the verdict in this case. The other

juror was later designated as an alternate, but did not participate in rendering

the verdict. Thus, Appellant properly preserved this issue.    Sluss v.

Commonwealth, 450 S.W.3d 279, 284-85 (Ky. 2014).

      We review the trial court's decision not to strike the four prospective

jurors for cause under an abuse of discretion standard.    Id. at 282. In Sluss,

we summarized our considerations as follows:

      Kentucky Criminal Rule ("RCr") 9.36 states clearly that 'when there
      is reasonable ground to believe that a prospective juror cannot
      render a fair and impartial verdict on the evidence, that juror shall
      be excused as not qualified.' We must also adhere to the long
      standing principle 'that objective bias renders a juror legally
      partial, despite his claim of impartiality.' Montgomery v.
      Commonwealth, 819 S.W.2d 713, 718 (Ky.1991) (emphasis added).
      Id.

      While questioning the members of the venire panel, Swint's attorney

asked the prospective jurors to vote by a show of hands whether Swint was

guilty or not guilty. Most raised their hands indicating that they believed Swint

was not guilty. No one raised their hand indicating that Swint was guilty. In

response to defense counsel's follow-up questioning as to why some jurors did

not raise their hands at all, Juror 882883 explained that at the current time,

she was "neutral" as to whether Mr. Swint was not guilty or guilty. Jurors

1050096, 1019349, and 1084790 did not indicate that they believed Swint was

guilty, but did make statements indicating that there.must be some evidence

against Swint or a "reason why they were there."




                                        4
       Contemporaneous with his contested statements, Juror 1050096, also

acknowledged that he was supposed to consider that Swint was innocent.

Similarly, Juror 1084790 indicated that the Commonwealth "still needed to

prove beyond a reasonable doubt." Jurors 882883 and 1019349 indicated that

they could not decide guilt at that time. The trial judge acknowledged these

responses when stating her reasons for denying Swint's motion to strike.

      The court specifically noted that, in response to follow-up questioning by

defense counsel, these jurors "all articulated that a person was innocent until

proven guilty, they just didn't feel right voting yet in any way having heard

nothing . . . ." We addressed a similar issue in Tamme v. Commonwealth, 973

S.W.2d 13, 25 (Ky. 1998). In that case, we affirmed the trial court's denial of a

motion to strike a prospective juror for cause who "refused to tell defense

counsel how he would vote, because he had not yet heard any evidence, but

stated that he would presume Appellant to be innocent." Id. at 25. See also

Smith v. Commonwealth, No. 2002-SC-0988-TG, 2004 WL 102495, at *5 (Ky.

Jan. 22, 2004) (affirming trial court's denial of motion to strike prospective

juror for cause who stated during voir dire that he could not find the defendant

not guilty without first hearing evidence, and that the defendant "is here for

some reason.").

      Forcing each prospective juror to make an affirmation that the defendant

is not guilty stretches the bounds of proper voir dire questioning. As we stated

in Mabe v. Commonwealth, "[t]he test is not whether a juror agrees with the law

when it is presented in the most extreme manner." 884 S.W.2d 668, 671 (Ky.


                                         5
1994). Rather, the question here is "whether, after having heard all of the

evidence, the prospective juror can conform his views to the requirements of

the law and render a fair and impartial verdict."     Id. Considering that standard

and having reviewed the entirety of the jurors' responses to this line of

questioning posed by defense counsel, it is clear that there was no error here.

Therefore, the court did not abuse its discretion in denying the motion to

strike.

                                   Expert Deposition

          Appellant argues that the trial court violated his rights under the

Confrontation Clause of the Sixth Amendment when it permitted the

Commonwealth to introduce the deposition testimony of Dr. Tracy Corey at

trial. Dr. Corey conducted the autopsy of Qasin Ahmed. Although it appears

that Appellant did not renew his objection to this evidence at trial, he did object

at the pretrial hearing on the Commonwealth's motion to schedule Dr. Corey's

deposition. Therefore, this issue is properly preserved.

          "[T]he Sixth Amendment prohibits the admission of the testimonial

statement of a declarant who does not appear at trial, unless the declarant is

unavailable to testify and the defendant had a prior opportunity for cross-

examination." Rankins v. Commonwealth, 237 S.W.3d 128, 130 (Ky. 2007)

(citing Crawford v. Washington, 541 U.S. 36 (2004)). "[A] witness is not

`unavailable' for purposes of the foregoing exception to the confrontation

requirement unless the prosecutorial authorities have made a good-faith effort

to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 724-25 (1968).


                                            6
A trial court's decision to order the deposition of a potentially unavailable

witness, and whether the trial court properly determined that the witness is

"unavailable" for trial, are reviewed under an abuse of discretion standard.

Lovett v. Commonwealth, 103 S.W.3d 72, 82-84 (Ky. 2003).

      It appears Dr. Corey's office received a subpoena requiring her to testify

at trial. However, the Commonwealth concedes that Dr. Corey was not

formally served with that subpoena. In any event, Dr. Corey was present at a

pretrial video deposition that took place in a courtroom setting and was

subjected to cross-examination by defense counsel. Although the

Commonwealth failed to establish the reasons for Dr. Corey's unavailability at

trial, we find no reversible error here because the admission of her deposition

testimony at trial was harmless beyond a reasonable doubt.      Parson v.

Commonwealth, 144 S.W.3d 775, 785 (Ky. 2001) (citing Chapman v. California,

386 U.S. 18, 22 (1967)).

      Appellant's primary contention of error is that "because this deposition

occurred one week before trial, all of defense counsel's questions were asked in

a vacuum before Hadrawie Mohamed or Ahmed Mohamed—the

Commonwealth's two eye witnesses—testified." In support, Appellant contends

that Hadrawie and Ahmed's trial testimony was inconsistent with their initial

police interviews. Appellant also takes issue with the portions of Dr. Corey's

testimony concerning the distance from which the decedent, Qasin, was shot.

      However, Appellant fails to describe how defense counsel would have

cross-examined Dr. Corey any differently had counsel first heard Hadrawie and


                                         7
Ahmed's trial testimony. Appellant also fails to demonstrate why the distance

from which Qasin was shot is relevant to his charges or defense. Moreover,

counsel effectively cross-examined Dr. Corey during her prerecorded deposition

as follows:

      Defense Counsel: Your basic legal conclusion is Mr. [Qasin]
      Ahmed died from a gunshot wound to the head. Correct?

      Dr. Corey: Yes, there's no doubt on that.

      Defense Counsel: That's really the only evidence you—you are
      submitting. The distance of the gun; who fired it; where he was
      located—you don't have that information. Correct?

      Dr. Corey: Correct.

      The fact that Qasin died from a gunshot wound to the head is

undisputed. Nevertheless, Appellant also cites to Dr. Corey's testimony

wherein she indicated that she could have testified concerning the bullets'

paths had she been provided the position of the gun or the position of the

decedent. Yet, Appellant again fails to describe what specific questions would

have been posed to Dr. Corey had counsel first heard Hadrawie and Ahmed's

trial testimony, or how any such questions would have been relevant to the

Appellant's charges or defense. Thus, any error here in properly securing Dr.

Corey as a live trial witness was harmless beyond a reasonable doubt.

                                Jail Phone Calls

      Appellant further argues that the trial court erred in permitting the

Commonwealth to introduce recordings of unauthenticated jail phone calls at

trial which included inadmissible hearsay. This issue is not preserved. We will

review for palpable error. RCr 10.26.
                                        8
      We have defined palpable error as the "probability of a different result or

error so fundamental as to threaten a defendant's entitlement to due process of

law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). We have also

described such errors as those that are "shocking or jurisprudentially

intolerable." Id. at 4. See also 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.").

      The Commonwealth introduced eight recordings of jail phone calls placed

by Appellant to five different people. Appellant asserts that these phone calls

indicate that Appellant "was attempting to influence witnesses; that he was

communicating with people who were attempting to influence witnesses, and

that he was speaking with people who carry guns." Appellant also argues that

two of these recordings indicated that Appellant had simultaneous romantic

interests with multiple women.

      Prior to introducing these recordings, the Commonwealth questioned

Louisville Metro Police Detective Kristen Downs. Detective Downs stated that

she had reviewed the phone calls, that she was able to identify some of the

people with whom Appellant was speaking, and that some of the calls were

related to the shooting.

      KRE 901(b) (5) and (b) (6) provide non-exclusive methods for

authenticating telephone conversations. However, 141 that is necessary in

authenticating a phone call is that the proponent offer 'sufficient

authentication to make a prima facie case that would allow the issue of identity


                                         9
to be decided by the jury."' Robert G. Lawson, The Kentucky Evidence Law

Handbook § 7.51[1][d], at 512 (5th ed., 2013) (quoting First State Bank of

Denton v. Maryland Cas. Co., 918 F.2d 38, 41 (5th Cir. 1990)). As previously

discussed, Detective Downs provided an appropriate foundation for introducing

the recordings. Following the playing of each recording, the Commonwealth

asked Detective Downs who was the recipient of the call. Each time, she

responded with a name. Therefore, this evidence was sufficiently

authenticated.

      Moreover, it is undisputed that the Appellant made the phone calls.

Appellant also fails to indicate any recipient of Appellant's phone calls who was

erroneously identified by Detective Downs at trial. Even if the recipients'

statements were admitted to prove the truth of the matter asserted, and did not

otherwise constitute an exception to the hearsay rule, we cannot conclude that

any error here was "shocking or jurisprudentially intolerable." Martin, 207

S.W.3d at 4. Therefore, there was no palpable error.

                         Impermissible Interpretation

      Appellant also alleges that the trial court erred in permitting Detective

Downs to interpret a recorded phone call between Appellant and a family

member named "Fresh." He objected to the introduction of this testimony at

trial and essentially argued that it violated the best evidence rule. KRE 1002.

Although the Commonwealth concedes that KRE 1002 required the recording

to be introduced, it argues that the error here was harmless. We agree.




                                        10
         At trial, Detective Downs read from notes she had prepared concerning

the contents of the phone call. Her testimony was brief, consisted of several

direct quotes she had transcribed in her notes from the recording, and was

subjected to cross-examination by the defense. Critically, Appellant does not

cite a specific portion of Detective Downs' testimony that constituted an

impermissible or otherwise misleading "interpretation" of the phone call. While

it would have been best to have introduced the recording itself at trial, any

error here was harmless.

                             Reverse Bad Acts Evidence

         For his final assignment of error, Appellant claims that the trial court

erred in granting the Commonwealth's motion to prohibit defense counsel from

informing the jury that Qasin and another man named Yasmani Rivera Amoros

were suspects in several armed robberies that were committed weeks before the

shooting at issue here. We review the trial court's evidentiary rulings for an

abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 120 (Ky.

2007).

         Evidence of prior crimes or bad acts must be relevant "for some purpose

other than to prove the criminal disposition of the accused . . . ."   Meece v.

Commonwealth, 348 S.W.3d 627, 662 (Ky. 2011). When offered by the

defendant, this type of evidence is referred to as "reverse 404(b) evidence."

Montgomery v. Commonwealth, 320 S.W.3d 28, 46 (Ky. 2010). Evidence

admissible under KRE 404(b) must also be relevant, probative, and not unduly

prejudicial. Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994).


                                          11
          Appellant told detectives during his interview that on the night of the

shooting, a dark skinned man approached the car in which he and the three

Somali men were traveling. According to Appellant, this perpetrator attempted

to enter the car and pulled out a revolver. Appellant claimed that he grabbed

the man's gun, a struggle ensued, and shots were fired inside the vehicle.

Appellant also claimed that shots were fired at him as he was fleeing the car. A

recording of this interview was played for the jury.

      Yasmani Rivera Amoros was identified as a gunman in several unrelated

armed robberies that occurred on December 5, 2011. Appellant argues that

Amoros matches the description of the fifth man allegedly involved in the

shooting that occurred in the present case. Qasin was also suspected of being

a passenger in a vehicle that was involved in the December 5th robberies.

Appellant claims that it was error to deny introduction of evidence identifying

Amoros' and Qasin's involvement in those robberies. He specifically argues

that this evidence was "relevant to [Appellant's] defense that the people inside

the vehicle attempted to rob him and it demonstrated that the police

investigated other individuals as the possible fifth person to enter the car that

night."

      Assuming that this purported bad acts evidence concerning Qasin is

relevant, it cannot be considered probative. Evidence is probative if "the jury

could reasonably infer that the prior bad acts occurred and that [the

individual] committed such acts." Parker v. Commonwealth, 952 S.W.2d 209,

214 (Ky. 1997); see also Davis v. Commonwealth, 147 S.W.3d 709, 724-25 (Ky.


                                          12
2004). Upon further investigation of this matter, Detective Downs was

informed by the detective investigating the December 5th robberies that he

"had no knowledge that Qasin B. Ahmed played an active role in the robberies."

The detective also stated that neither Hadrawie nor Ahmed's names came up

during his investigation. Therefore, the evidence concerning Qasin's active

involvement in the December 5th robberies has little, if any, probative value.

      Appellant's allegations identifying Amoros as the "fifth man" involved in

the shooting at issue here were not presented to the trial court. In any event,

Amoros' connection to the present case is premised primarily upon his alleged

association with Qasin during the December 5th robberies. Based on this

tenuous connection, and having concluded that the evidence concerning

Qasin's involvement in the December 5th robberies was not probative, any

evidence of Amoros' involvement in the December 5th robberies is irrelevant

here. Therefore, the trial court did not abuse its discretion in refusing to allow

the introduction of this reverse bad acts evidence at trial.

                                    Conclusion

      For the foregoing reasons, we hereby affirm the judgment of the Jefferson

Circuit Court.

       Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,

sitting. Minton, C.J.; Cunningham, Keller, Noble, and Venters, JJ., concur.

Abramson, J., concurs in result only. Wright, J., not sitting.




                                         13
COUNSEL FOR APPELLANT:

Daniel T. Goyette
Louisville Metro Public Defender

Joshua Michael Reho
Assistant Appellate Public Defender


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

James Daryl Havey
Assistant Attorney General




                                      14
