         IMPORTANT NOTICE
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THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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                                              RENDERED: DECEMBER 14, 2017
                                                    (
                                                      NOT TO BE PUJ3LISHED

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                               2016-SC-000542-MR


TREMEL J. SMITH                                                          APPELLANT·


                ON APPEAL FROM CHRISTIAN CIRCUIT COURT
V.·                JiONORABLE JOHN L. ATKINS, JUDGE
                            NO. 11-CR-00210


COMMONW.EALTH OF KENTUCKY                                                 APPELLEE



                   MEMORANDUM OPINION OF THE COURT

               AFFIRMING IN PART AND REVERSING IN PART


      On the night of February 28, 2011, Appellant, Tremel J. Smith,

murdered his friend Susan James. Her body was discovered on the side of the

road in Hopkinsville, Kentucky, on March 1, 2011. She was partially clothed,

and a plastic bag was placed over her head. Her cause of death .was

determined to be blunt force trauma with some component of asphyxiation.

      Investigating officers obtained a warrant to search Appellant's home after

his roommate, Demondo Pettigrew, informed the police that he saw Appellant

load what was later determined to be the victim's lifeless   body~into   an unknown

sport utility vehicle (SUV). Du.ring their search, officers discovered plastic

garbage bags similar to the one found covering the deceased victim's head.
       While the officers were searching the home, Appellant arrived at the

scene. Keys to the SUV belonging to the victim were discovered in his coat
  .                                      '

pocket. The vehicle was parked near Appellant's home. A later strip search by

the officers revealed.that Appellant was wearing panties. Through DNA testing

it was determined they belonged to the victim. Appellant was subsequently

arrested, indicted, and tried.

       One witness testified that Appellant approached her on the night of the

murder attempting·to procure drugs .. Another witness testified that she

beli~ved· Appellant   traded a television for drugs. One of Appellant's fellow

inmates testified that Appellant confessed to murdering the victim. Another

inmate, Anthony Shelton, testified that Appellant admitted that he hit the

victim "too hard" because she would not allow him to borrow her SUV.

      A Christian County jury convicted Appellant of murder, kidnapping, first-

dewee robbery, knowingly receiving ·stolen .property over $500, and tampering

with physical evidence. He received a total sentence of life imprisonment

without parole. Appellant now appeals his judgment and sentence as a matter

of right pursuant to Section 110(2)(b) of the Kentucky Constitution.

                                   Batson Motion

      Appellant   argue~   that the trial court erred by denying his Batson motion

after the Commonwealth used a peremptory challenge to strike Juror 12-an

African-American-from the jury pool. See Batson v. Kentucky, 476 U.S. 79

(1986). When determining whether the trial court erred in applying Batson, we

review the trial court's decision·for an abuse of discretion. Rodgers v.

                                             2
 Commonwealth, 285 S.W.3d 740, 757 (Ky. 2009). The Commonwealth .

 summarizes the prosecutor's race-neutral explanation for striking the potential

 juror as follows:

       Juror 12's demeanor heavily suggested bias toward the defense.
       He did not join the other jurors in laughing at the Commonwealth's
       moment of levity; he directed a hostile stare at the prosecutor; and
       he seemed engaged w:ith the defense . . . . Furthermor~, the
       Commonwealth felt that he did not have an understanding of the
       court process after speaking to him about his previous jury
       expenences .

. Contrary to Appellant's assertion, these explanations are more than a mere

 "hunch."

       Referencing a juror's problematic demeanor is a sufficiently race-neutral

explanation in response to a Batson challenge. Thomas v. Commonwealth, 153

 S.W.3d 772, 778 (Ky. 2004). Moreover, "[t]here is no requirement that a

peremptory challenge must be disallowed if, as here, the judge simply does not
                                            \

observe the juror's demeanor." Mash    v~       Commonwealth, 376 S.W.3d 548, 557

(Ky. 2012). Therefore, the trial court did not abuse its discretfon in denying

Appellant's Batson motion and· removing Juror 12 from the panel.

                             Aggravator Evidence

       This case began as a death penalty case. However, the trial court

granted Appellant's motion to exclude the death penalty after it was revealed

that he had an IQ score of 67. During the sentencing phase, the court

permitted the jury to consider several statutory aggravators that would permit

the jury to enhance Appellant's total sentence to life imprisonment without



                                        3
parole. As previously noted, that was the total sentence recommended by the

jury and imposed by the trial court.
                                             '
        During.the sentencing phase, the jury was instructed to consider the

following aggravating factors: (I) that the murder or kidnaping was committed

during the course of a first-degree robbery; (2) that Appellant had a substantial

history of serious assaultive criminal convictions;. and (3) that the murder was

committed "for profit." Only one of these ·circumstances needed to be present

to enhance Appellant's sentence.

        Although the jury convicted Appellant of first-degree robbery, they did

not determine that to be an aggravator. Rather, the jury determined that the

second and third circumstances were satisfied. Appellant argues that the trial

court erred by permitting the jury to consider those aggravators.

        The Commonwealth concedes that the prosecutor failed to present a

substantial history of serious assaultive criminal convictions. Only one prior

conviction was introduced. Of course, the statutory provision contemplates at

least two convictions .. KRS 532.025(2)(a)(l); Wood v. CorfJ.mon1:0ealth, 178

S.W.3d 500, 509 (Ky. 2005). Therefore, we agree with Appellant that the court

erred by permitting the jury to consider that aggravator during the sentence ·

phase. The court also erred in permitting the jury to consider the "murder-for-
    ;               .
profit" aggravator. ·That provision states: "[t]he offender committed the offense

of murder for himself or another, for the purpose of receiving money or any

other thing of monetary value, or for other profit ...   ~"   KRS 532.025(2)(a)(4).

Appellant argues that this aggravator only applies in "murder-for-hire" cases.

                                         4
We disagree. The plain language of the statue is much broader. We addressed

a similar issue in Wilson v. Commonwealth, 836 S.W.2d 872, 891 (Ky. 1992):

       The aggravating circumstance of robbery relates to the taking of
       the victim's property in the course of committing theft. KRS
       515.020(1). The murder for profit aggravating circumstance goes
       beyond the time when her property was physically taken from her
     · in the course of committing a theft. The credit cards of the victim
       were used the day after her death when Wilson and Humphrey
       purchased a number of items for themselves with the cards.
       Clearly, they obtained something of monetary value which profited
       them. Use of the credit cards is not the same act as the robbery of
       the victim. The two aggravating circumstances are not the same as
       to either time or place. The jury properly found the existence of
       two distinct aggravating factors.

However, in order for the jury in the present case to consider this aggravator,

the Commonwealth must demonstrate that Appellant obtained from the victim

something of monetary value or for other profit.

      The Commonwealth confines its argument on this issue to the victim's

stolen television and cites the testimony of Candice Culler in support. Ms.

Culler lived at a house where crack cocaine was sold. She testified that

Appellant
       . was at her residence around midnight on the night of the mµrder.
                                                                   .
The next morning, there was a television in her house that had not been there

the night before. She believed that Appellant had traded the television for

drugs, although she did not witness the exchange. However, the witnesses

referred to in the Commonwealth's opening statement, who may have

supported this conclusion, never materialized. An investigating office~ also

testified that it appeared that the victim's television had been removed from her

home, due to a gap in the dust present on her television stand.· There was no

evidence linking the television from Culler's home to Appellant or the victim.
                                        5
          This evidence is insufficient to satisfy the Commonwealth's burden. A

    missing television and Ms. Culler's testimony about an alleged exchange that

    she did not witness is not evidence from which the jury could have reasonably

    determined that Appellant stole the victim's television to purchase drugs. While
                           -               \   .

    one can guess and speculate, there is no evidence that Appellant "committed)

    the offense of murder for himself or another, for the purpose of receiving money

    or any other thing of monetary value, or for other profit .... " KRS

    532.025(2)(a)(4). Therefore, the court erred in permitting the jury to consider

    the "murder-for-profit" aggravator.
                                  I                                           .
          Consequently, Appellant cannot face a new sentencing trial on any of the

    murder aggravators. To do so. would violate the Fifth Amendment's Double

    Jeopardy Clause. See Sattazahn v. Pennsylvania, 53.7 U.S. 101, 112 (2003) ("If

    a jury unanimously concludes that a State has failed to meet its burden of

    proving the existence of one or more a;ggravating circumstances, double-

    ~eopardy   protections attach to that 'acquittal' on the offense of 'murder plus

    aggravating circumstance(s). m).

                                  Kidnapping Exemption

          Appellant further asserts that the trjal court erred by failing to apply the

    kidnapping exemption. The kidil:apping exemption enumerated in KRS

~   509.050    p~ovides:


         A person may not be convicted of ... kidnapping when his
                                                                                  /
         criminal purpose is the commission of an offense defined outside
         this chapter and his interference with the victim's liberty occurs
         immediately with and incidental to the commission of that offense,
         unless the interference exceeds that which is ordinarily incidenfto

                                               6
       commission of the offense which is the objective of his criminal
       purpose. · .

       Anthony Shelton testified that Appellant told him that he hit the victim

.,_"too hard" after she refused to let. Appe,llant borrow her SUV. Demondo

Pettigrew testified that he discovered.the half-naked body of a woman, later

determined to be the victim, lying near the kitchen of the home that he shared
          "
with Appellant. Pettigrew stated that he told Appellant that he thought
                                   .         .                       . the

woman was not bre.athing and that they needed to        ~all   the police. Appellant

replied that slie was fine and that he was going to take her Jl,ome. He then

IOaded her body into the SUV. As previously noted, the victim's body was later

discovered with a plastic bag placed over her head and her cause of death was

determined to be blunt force trauma with some component of asphyxiation.

      By convicting Appellant of kidnapping, the jury must have concluded

that Appellant hit the victim on the head, took the victim_'s SUV, transported

her in the SUV t.o Appellant's home, and then smothered her with a garbage

bag. This is further supported by the asphyxiation component of the victim's

cause of death. · Because the jury convicted Appellant of kidnapping, the jury

implicitly found the victim was alive at the time Appellant abducted her. Wood

v. Commonwealth, 178 S.W.3d 500, 507 (Ky. 2005) ("By finding Wood guilty of

kidnapping Ms. Jones, the jury implicitly determined beyond a reasonable

doubt that she was alive at the time he took her from her vehicle because one
                                                                   I
can kidnap only a l.iving person."). Stated another way, if the jury believed the



                                                    (
                                        7
victim was dead before she was taken from her home by Appellant, then the

jury would not have f9und Appellant guilty of ki_dnapping.

      Appellant's restraint and transportation of the victim was not incidental

to the robbecy or the murder. Rather, this conduct was well in excess of the

restraint that is ordinarily incident to those crimes. Thus, because neither the
  I


murder nor robbery "occur[red] immediately with and incidental to" the

kidnapping, it was not error for the trial court to refuse to apply the kidnapping

exemption.

                                Double· Jeopardy

      Appellant argues that convictions for first-degree robbery and knowingly

receiving stolen property over $500 violate the Fifth Amendment's Double

Jeopardy Clause. "[T]he test to be applied to determine whether there are two

offenses or -only one, is whether each provision requires proof of a fact which

the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932);

KRS 505.020(2)(a). "In applying the Blockburgertest, the focus is on the proof

necessary to prove the statutory elements of each offense rather than on the

actual evidence which would be presented at trial." Stewart v. Commonwealth,

306 S.W.3d 502, 505 (Ky. 2010) (citing Mack v. Commonwealth, 136 S.W.3d

434, 438 (Ky. 2004)). KRS 514.110 provides the elements for receiving stolen

property:

      (1) A person is guilty of receiving stolen property when he receives,
      retains, or disposes of movable property of another knowing that it
      has been stolen, or having reason to believe that it has been stolen,
      unless the property is received, retained, or disposed of with intent .
      to' restore it to the owner.
KRS 515.020 defines robbery as follows: ·

      (1) A person is guilty of robbery in the first degree when, in the
      course of committing theft, he uses or threatens the immediate use
      of physical force upon.another person with intent to accomplish
      the theft and when he:
                .          .


             (a) Causes physical injury to any person who is not a
             participant in the crime; or

             (b) Is armed with a deadly weapon; or

            (c) Uses or threatens the immediate use of a dangerous
            instrument upon any person who is not a participant in the
            crime.
                                                     ;


We agree wl.th the Commonwealth that KRS 514.110 requires a theft for the

property to be deemed stolen. Robbery does not require a completed theft. In

further contrast to KRS 514.110, robbery require.s the threat or use of force.

Cf. Roark v. Commonwealth, 90 S.W.3d 24, 38 (Ky. 2002) ("[W]hile theft and

attempted theft are lesser included offenses of robbery, receiving stolen

property is not."). Therefore, there was no double jeopardy violation here.

                       Opening and Closing Arguments

      Appellant next complains that the prosecutor's statements during

opening argument violated Appellant's right to confront witnesses. The

Commonwealth stated that two witnesses would testify that Appellant trade_d

the victim's television for crack cocaine. Two days later, those witnesses ·

invoked their Fifth Amei:idmerit right against self-incrimination. Appellant has

failed to demonstrate that the prosecutor knew that the witnesses would invoke

their right.. not to testify prior to the Commonwealth's opening argument. As

                                        9
previously discussed, additional evidence was introduced demonstrating that

Appellant stole the victim's television in order to purchase drugs. Therefore,

there was certainly no reversible error here.

      Appellant also argues that the Commonwealth's closing argument was

highly prejudicial and requires reversal of his conviction. We will reverse for

prosecutorial misconduct in a closing argument only if:

       the misconduct is "flagrant" or if each of the following is satisfied:

             (1) Proof of defendant's. guilt is not overwhelming;

             .(2) Defense counsel objected; and

             (3) The trial court failed to cure the error with a sufficient
                 admonishment to the jury.
Bame~   v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002) (internal citations

omitted) (original emphasis).

      The issue here concerns a PowerPoint slideshow presented to the juty

during the Commonwealth's closing argument, which read, "[Appellant] never

mentioned how his pubic hair ended .up on [the victim's] shirt." After
                                                                 .
                                                                       the

defense objected, the. prosecutor informed the jury, "I'm not here to tell you

today that those pubic hairs were one-hundred percent his. They weren't." A

forensic scientist also testified during trial that he· was unable to identify the

source of the hairs.

      Although the Commonwealth's slideshow was misleading when viewed in

isolation, the prosecutor corrected her error and did not mjsrepn~sent the

forensic evidence during. trial. Therefore, the Commonwealth's conduct here

was dearly not flagrant.
                                         10
      Moreover, the evidence supporting Appellant's guilt was overwhelming.

As previously noted, multiple witnesses testified that they saw Appellant with

the victim on the night of the murder. This includes Appellant's roommate who

witnessed him load the victim's lifeless body into the victim's SUV at

Appellant's house. Two of Appellant's fellow inmates also testified that

Appellant confessed to murdering the victim. While being strip searched,

officers discovered that Appellant was wearing panties which were later

determined through DNA testing to belong to the .victim. There was no

reversible error here.

                               Cumulative Error

      Lastly, Appellant argues that his conviction should be   r~versed   based on

cumulative error. Under this limited doctrine, we will reverse only when the

"individual errors were themselves substantial, bordering; at least, on the

prejudicial." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Any

error that may have occurred in this case was certainly insufficient "to create a

cumulative effect which would mandate reversal for a new trial." Tamme v.

Commonwealth, 973 S.W.2d 13, 40 (Ky. 1998).

                                   Conclusion

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

Circuit Court in part and reverse it in part. We affirm Appellarit's convictions

for murder, kidnapping, first-degree ·robbery, knowingly receiving stolen

property over $500, and tampering with physical evidence·. Furthermore,

because the jury found beyond a reasonable doubt the existence of the

                                       11
     aggravator that Appellant did not release the victim alive, his sentence of life

     without parole for the kidnapping conviction is also affirmed.

               We vacate Appellant's sentence of life imprisonment without parole on

     the murder conviction and remand this case for a new sentencing on that

     charge.

           All sitting. Minton, C.J.; Cunningham, Keller, VanMeter, and Wright,

     JJ., concur. Hughes and Venters, JJ., concur in result only.

                                                    )
                                                    I
     COUNSEL FOR APPELLANT:

      Karen Sht~ff Maurer
    · Assistant P_ublic Adyocate


     COUNSEL FOR APPELLEE:

     Andy Beshear
     Attorney General of Kentucky

      Emily Lucas
    . Assistant Attorney General

     Patricia Lynn Pryor
     Commonwealth Attorney




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