lMPORTANT NOT|CE
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TH|S OP|N|ON lS DES|GNATED ”NOT TO BE PUBL|SHED.”
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
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RENDERED: AUGUST 24, 2017
NOT TO BE PUBLISHED

§§upreme Tnurt of Bean|kHN AL

2016-SC-000027-MR DATEJ{H! _H;. § ! m

JAMAL NANCE APPELLANT

ON APPEAL FROM MCCRACKEN CIRCUIT COURT
V. ' HONORABLE TIMOTHY JON KALTENBACH, JUDGE
NO. lS-CR-OOOQS

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, REVERS!NG IN PARTj AND REMANDING

' Jamal Nance appeals as a matter of right from a judgment of the
McCracken Circuit Court convicting him of first-degree burglary, second-degree
wanton endangerment, convicted felon in possession of a handgun, first-degree
persistent felony offender, and sentencing him to a total of twenty-five years’
imprisonment This case arises from events occurring on November 13, 2014,
when Nance entered the home of Miranda Williams without permission,
brandished two guns, and engaged in an altercation with occupants of the
home at the time, Which included Williams, DeAnthony Woods and Javielle
Winston (and her four children). Detective Ryan Conn Was the lead

investigator on the case and conducted an interview with the three adult

witnesses immediately after the incident, which Was audio recorded. At trial,
Det. Conn, Williams, Winston, and Woods were called to testify for the
Commonwealth. The audio recording of the interview was played for the jury.

On appeal, Nance raises five claims of error, only one of Which has merit.
With respect to the meritorious claim, we reverse the portion of the trial court’s
judgment directing Nance to pay restitution in the amount of $750, and
remand With instructions for the trial court to conduct a hearing on the issue
of restitution, within the parameters outlined in Jones v. Commonwealth, 382
S.W.3d 22 (Ky. 2011). Nance’s five claims of error are addressed below.

ANALYSIS
I. The trial court did not abuse its discretion by declaring the
Commonwealth’s first witness to be a hostile witness and by
allowing the Commonwealth to ask leading questions.

Nance argues the trial court abused its discretion by declaring the
Commonwealth’s first witness, Williams, to be a hostile Witness pursuant to
KRE1 61 1, and by allowing the Commonwealth to ask leading questions on
direct examination. KRE 611(c) provides:

Leading questions should not be used on the direct
examination of a witness except as may be necessary
to develop the witness' testimony. Ordinarily leading
questions should be permitted on cross-examination,
but only upon the subject matter of the direct
examination. When a party calls a hostile witness, an

adverse party, or a Witness identified with an adverse
party, interrogation may be by leading questions.

 

'1 Kentucky Rules of Evidence.

We review a trial court’s evidentiary rulings for an abuse of discretion.
Goodyear Tire &, Rubber Co. v. Thompson, ll S.W.3d 575, 577 (Ky. 2000). “The
test for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581.

The record shows that during direct examination of Williams, the
Commonwealth had difficulty eliciting responses and getting her to speak
loudly enough so that the jury could hear her. At the beginning of direct
examination, the Commonwealth established that Williams had been
subpoenaed to testify in court. During the questioning that followed, the
Commonwealth and the trial court continually asked Williams to raise her
voice and to speak into the microphone so that the jury could hear her
responses. When asked if they could hear Williams’ responses, the jurors
replied that they could not. At one point, the trial Court turned up the
microphone and directed Williams to move closer to the microphone and speak
up. Williams repeatedly stated that she Was unable to recall any details of the
incident, and that she did not want to be in court testifying

Nance objected five times during the course of the Commonwealth’s
direct examination of Williams, on grounds that the Commonwealth was
improperly leading the witness. The trial court overruled four of Nance’s
objections, citing KRE 611 as authority. During a bench conference, the trial
court stated that it had found Williams to be a hostile witness and leading

questions were necessary for the Commonwealth to draw responses from her.

Upon review of the record, we conclude that the trial court did not abuse
- its discretion by declaring Williams to be a hostile Witness and by allowing the
Commonwealth to ask leading questions to develop her testimony. Williams
was unable to recall any details of the incident and stated that she did not
want to be in court testifying She was wholly uncooperative. As a result, this
claim of error fails.

II. t The trial court did not abuse its discretion by allowing the
Commonwealth to use the transcript of the witnesses’ interviews
during direct examination.

Nance contends the trial court erred by allowing two of the
Commonwealth’s Witnesses, Williams and Winston, to read from the written
transcript of their interview with police, rather than answering the
Commonwealth’s questions based on their memory. Interestingly, Nance
objected to the witnesses reading from the transcript during the
Commonwealth’s direct examination, but did not object to the admission of the
transcript into evidence and in fact later used the transcript during cross-
examination.

As discussed above, the Commonwealth asked Williams on direct
examination What occurred on the day in question - she was reluctant to
answer. The Commonwealth requested that Williams describe the events in
her own Words, but if she could not, then they would go over the transcript of
the_statement she had provided to police. To avoid having to answer, Williams
asked the Commonwealth to just read the transcript of her statement At that

point, the trial court directed Williams to answer the Commonwealth’s

4

questions to the best of her ability. She said that she was unable to recall any
details of the incident; eventually, she read from the transcript of her interview
with police.

Like Williams, Winston Was also a difficult and uncooperative witness.
She stated that she did not remember anything about the incident, and that all
she knew was what was written on the interview transcript She Was
completely unable, or unwilling, to testify as to what occurred on the day in
question. To develop her testimony for the record, the Commonwealth read
from her interview transcript and asked Winston if she made certain
statements. The trial court directed Ms. Winston to testify based on her
memory; Winston said she was unable to do so since she could not recall
anything about the incident

Nance objected to the Commonwealth’s approach, asserting that the
Commonwealth may only refresh the witness’s recollection, not read from the
witness’s transcript Nance argued that the transcript had not been certified to
his knowledge, he Was unware the transcript existed, and the Witness should
not be allowed to read from an unofficial transcript In response, the
Commonwealth stated that Det. Conn had reviewed the transcript and the
audio recording of the interview to attest to the transcript’s accuracy. The
Commonwealth asserted that it was allowed to ask the witness whether she
made certain statements, especially when the Witness was unable to recall.
The trial court ruled that the witness needed to testify based on her memory,

but if she Was unable to do so, the Commonwealth may refresh her recollection

5

using the interview transcript To that extent, the trial court sustained Nance’s
objection,

The Commonwealth proceeded to ask Winston whether she made certain
statements, as reflected in the interview transcript At the conclusion of its
direct examination, the Commonwealth moved to admit the interview transcript
into evidence, based on the witnesses’ failure to recall anything about the
incident Nance had no objection, and asked permission to use the interview
transcript during cross-examination, to which the Commonwealth had no
objection. Nance clarified that he had previously reviewed the audio recording
of the witnesses’ interview, but had not reviewed the interview transcript

Nance now asserts that the trial court abused its discretion by allowing
the Commonwealth to use the interview transcript Again, this Court reviews a
trial court’s evidentiary rulings for an abuse of discretion. Thomp`son, 11
S.W.3d at 577.

With respect to a witness’s prior statement both KRE 612 and KRE
803(5) come into play. KRE 612 addresses the use of a writing to refresh the
memory of a witness and provides as follows:

Except as otherwise provided in the Kentucky Rules of
Criminal Procedure, if a witness uses a writing during
the course of testimony for the purpose of refreshing
memory, an adverse party is entitled to have the
writing produced at the trial or hearing or at the taking
of a deposition, to inspect it, to cross-examine the
witness thereon, and to introduce in evidence those
portions which relate to the testimony of the witness.. If
it is claimed that the writing contains matters not
related to the subject matter of the testimony, the

court shall examine the writing in camera, excise any
portions not so related, and order delivery of the

6

remainder to the party entitled thereto. Any portion
withheld over objections shall be preserved and made
available to the appellate court in the event of an
appeal.

“For a witness’s memory to be refreshed under this rule, the offering
party must show that the witness once had personal knowledge of the event
about Which testimony is sought and . . . the witness’s memory of that event
needs to be revived.” Martin v. Commonwealth, 456 S.W.3d 1, 14 (Ky. 2015)
(internal quotations omitted). “[W]hen a witness refreshes her memory under
this rule, the testimony elicited thereafter is the product of the refreshed
memory, not the writing used to refresh it As a result, the document itself is
not admissible into evidence, and the hearsay rule does not apply.” Id. at 15
(internal quotations omitted).

lf the writing fails to refresh the witness’s memory for testimony, the t
court may proceed under KRE 803(5), Which is “an exception to the bar on
admissibility of hearsay evidence. . . . [and] operates to allow the content of
previously written recordings to be admitted as substantive evidence to prove
the truth of the matter asserted in the recording.” Martin, 456 S.W.3d at 15 _
(internal footnote omitted).

KRE 803(5) states:

Recorded recollection. A memorandum or record
concerning a matter about Which a witness once had
knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness
when the matter Was fresh in the witness‘ memory and

to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but

7

may not be received as an exhibit unless offered by an
adverse party.

“For admission under this rule to be appropriate, the offering party must
show the writing was made or adopted by the witness as an accurate reflection
of personal knowledge the witness once possessed, and the witness no longer
adequately remembers the matter to fully and accurately testify.” Martin, 456
S.W.3d at 15. In other words, “KRE 803(5) applies when the witness is unable
to testify from present memory even after being exposed to the recorded
recollection. In that instance, the recorded recollection is admissible, but only
after verification of its accuracy.” Berrier l). Bizer, 57 S.W.3d 271, 277 (Ky.
2001y

' Neither Williams nor Winston were able to recall the events that occurred
on the day in question, and were unable to testify based on their memory. As a
result, the Commonwealth was permitted to read statements from the interview
transcript and ask whether they made certain statements, Regarding the
admission of the interview transcript into evidence, we note that Nance did not
object and in fact later used the transcript during cross-examination. More
importantly though, for purposes of admissibility, the Commonwealth recalled
Det. Conn as a witness, and he verified the transcript’s accuracy as required by
KRE 803(5). ' Det. Conn testified that he had listened to the audio recording of
the interview with the three witnesses and had reviewed the proposed
transcript to verify its accuracy. The Commonwealth reviewed portions of the
transcript with him (portions to which it had referred when questioning the

witnesses), and Det. Conn confirmed that the witnesses had in fact stated what

8

was reflected in the transcript Accordingly, based on our review of the record,
the trial court did not abuse its discretion by admitting it the transcript into
evidence. This claim of error fails as well.

III. Nance waived his objection to the playing of the audio recording
of the witnesses’ interviews.

At the conclusion of Det. Conn’s testimony, the Commonwealth stated its
intention to play the audio recording of the interviews With the three adult
witnesses. Nance had no objection. The trial court asked Nance three times
whether he had an objection; Nance responded no each time,

Nance now claims that playing the audio recording was 1) cumulative
and inadmissible as a prior consistent statement since the witnesses’ interview
transcript had already been admitted into evidence; and 2) prejudicial, since
portions of the audio recording were inaudible. In response, the
Commonwealth points out that Nance waived this objection and cannot now
challenge his trial counsel’s strategy on direct appeal. We agree. See Tackett 1).
Commonwealth 445 S.W.3d 20, 28-29 (Ky. 2014) (when a party specifically
waives an objection, the party cannot claim on appeal that the trial court
erroneously admitted the evidence).

That said, even if we were to consider Nance’s argument under the RCr2
10.26 palpable error standard of review, “rcversal is warranted if a manifest
injustice has resulted from the error, which requires a showing of the

probability of a different result or error so fundamental as to threaten a

 

2 Kentucky Rules of Criminal Procedure.

9

` defendant's entitlement to due process of law.” Jones, 382 S.W.3d at 29
(internal quotations omitted). KRE 801A provides for admission of a witness’s
prior statement if the witness testifies at trial and the prior statement is
“[c]onsistent with the declarant's testimony and is offered to rebut an express
or implied charge against the declarant of recent fabrication or improper
influence or motive[.]” KRE 801A(a)(2). Nance argues that the audio recording
of the witnesses’ interview is a prior consistent statement and therefore is
inadmissible since not offered to rebut a charge of recent fabrication or
improper influence or motive. Nance asserts that the audio recording served
only to bolster the testimony of the witnesses and further, that it should have
been excluded as unreliable since portions of it were inaudible.

However, even if playing the audio recording was improper under KRE
801A, it did not result in manifest injustice so as to change the outcome of the
trial or otherwise deprive Nance of his entitlement to due process of law. While
some portions of the recording are inaudible, large portions of it are audible,
enough for a transcript of the witnesses’ statements to be produced from it.
Thus, we do not believe that the audio recording was unreliable or that reversal
under the palpable error stande is warranted.

IV. The trial court properly overruled Nance’s objection to the jury
panel’s composition.

Nance argues that the jury panel was constitutionally defective due to its
racial composition. Specifically, Nance assets that the method utilized in the
development of the jury pool resulted in a disproportionate representation of

minorities and amounts to structural error. We disagree.

10

On the morning of trial, Nance objected to the composition of the jury
panel. Nance counted five or six African Americans on the panel of 80
prospective jurors; he stated that he thought African Americans composed
approximately ll% of the population in McCracken County and that he did not
believe the representation of African Americans on the jury panel (6.25%-7.5%)
represented a fair cross-section of the community. Nance claimed that he
could be prejudiced as a result

In response, the Commonwealth noted that the jury panel was composed
by computer, and that the 11% demographic cited by Nance was not a matter
of record. Even if the 11% figure was accurate, the Commonwealth asserted
that a panel comprised of five or six African Americans out of a total of 80
jurors was fairly representative of the community.

The trial court overruled Nance’s objection, noting that the jury list is
sent from the clerk’s office and that the court did not have a say in the jury
pool. The trial court did not recall excusing any African Americans during jury
orientation and noted that if a deficiency in the jury makeup existed, which the
court did not believe was the case, such deficiency was not due to any action
taken by the court

We will review the trial court’s ruling on Nance’s objection for an abuse of
discretion. Thompson, 1 1 S.W.3d at 577. This Court has explained the
showing that must be made to succeed on a challenge to the racial composition
of a jury panel:

The Sixth Amendment right to a jury trial includes the
right to a petit jury selected from a representative

11

cross-section of the community. Taylor v. Louisiana,
419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).
This requirement does not mean, however, that “petit
juries actually chosen must mirror the community and
reflect the various distinctive groups in the population.
Defendants are not entitled to a jury of any particular
composition.” Id. at 538, 95 S.Ct. 692. The burden is
on the defendant to establish a prima facie violation of
the fair cross-section requirement by showing ,(1) the
group alleged to be excluded is a “distinctive” group in
the community; (2) the representation of this group in
venires from which juries are selected is not fair and
reasonable in relation to the number of such persons
in the community; and (3) this underrepresentation is
due to systematic exclusion of the group in the jury-
selection process. Duren l). Missouri, 439 U.S. 357, 99
S.Ct. 664, 58 L.Ed.2d 579 (1979); Johnson 1).
Commonwealth, 292 S.W.3d 889 (Ky. 2009). It is not
y enough to merely allege a particular jury failed to
represent the community. “A showing of
underrepresentation must be predicated on more than
mere guesswork. Such a showing requires competent
proof (usually statistical in nature).” United S'tates v.
Lara, 181 F.3d 183, 192 (1st Cir. 1999).

Miller v. Commonwealth, 394 S.W.3d 402, 409 (Ky. 201 1).

Nance claims he was denied a fair trial due to the jury panel

composition; however, the sole'evidence he provided was an unsupported
reference to a McCracken County census indicating that African Americans
represented 11% of the county’s population. Nance failed to demonstrate that
the alleged underrepresentation of African Americans on his jury panel was
due to systematic exclusion, and has not specified any deficiency in Kentucky’s
current method of jury selection that would amount to structural error. This

Court has repeatedly held that “mere citation to census data, without any other

information, is not enough to show underrepresentation or systematic

12

exclusion.” Mash l). Commonwealth, 376 S.W.3d 548, 552 (Ky. 2012) (citing
Miller, 394 S.W.3d at 410) (holding that defendant had not established that
African Americans were unreasonably underrepresented when his only
evidence on the issue was a reference to the 2010 U.S. Census); Johnson, 292 4
S.W.3d at 894-95 (holding that defendant failed to provide sufficient proof to
establish a violation of the fair cross-section requirement where the defendant's
evidence consisted solely of a citation to the World Almanac that African
Americans_comprised 13% of the area's population). Moreover, “a trial judge
does not have the discretion to dismiss a randomly selected jury panel which,
despite it[s] unrepresentative appearance, Was not shown to have been drawn
from a jury pool that failed to reflect a fair cross section of the community[.]”
Commonwealth v. Doss, 510 S.W.3d 830, 837 (Ky. 2016). Absent the requisite
showing by Nance, the trial court did not abuse its discretion by overruling his
objection to the jury panel’s composition.

V. The restitution award warrants scrutiny.

Lastly, Nance asserts that the trial court erred by ordering him to pay
restitution in the amount of $750. Since Nance did not preserve this issue
below, we will review it for palpable error pursuant to RCr 10.26.

Nance avers that the trial court’s decision to order him to pay restitution
without conducting a hearing violated his due process rights, including prior
notice of the claim and a meaningful opportunity to be heard. Nance asserts
that such deprivation seriously affected the fairness of the proceedings so as to

warrant reversal under the palpable error standard. We agree.

13

This Court has held that “basic due process standards must be applied
when restitution is assessed and imposed as one of the sentencing alternatives
under KRS Chapter 532.” Jones, 382 S.W.3d at 31. The Commonwealth
concedes that the trial court imposed the restitution award Without conducting
a hearing, the record is unclear as to Why restitution was awarded, and why
the amount awarded was $750. The Commonwealth admits that in light of the
foregoing, Nance’s argument that the trial court’s restitution award runs afoul
of the Jones decision appears to be well-founded and his demand for a hearing
well-taken.

We agree With the parties that the trial court’s assessment and
imposition of restitution in this case violated Nance’s right to due process and
amounts to palpable error. Accordingly, we reverse the portion of the judgment
that imposes restitution and remand to the trial court with directions to
conduct an adversarial hearing that includes the following protections:

~ reasonable notice to the defendant in advance of the
sentencing hearing of the amount of restitution
claimed and of the nature of the expenses for which
restitution is claimed; and

' a hearing before a disinterested and impartial judge
that includes a reasonable opportunity for the
defendant with assistance of counsel, to examine the
evidence or other information presented in support of
an order of restitution; and

~ a reasonable opportunity for the defendant with
assistance of counsel to present evidence or other
information to rebut the claim of restitution and the

amount thereof ; and

~ the burden shall be upon the Commonwealth to
establish the validity of the claim for restitution and

14

the amount of restitution by a preponderance of the
evidence, and findings With regard to the imposition of
restitution must be supported by substantial evidence.
Notwithstanding the foregoing recitation of the
minimal due process requirements, we reiterate that
the trial courts retain broad discretion to manage the
proceedings as needed to implement the mandate of
KRS 532.032 in a manner that protects constitutional
due process and achieves substantial justice.

Jones, 382 S.W.3d at 32.

“Notwithstanding the foregoing recitation of the minimal due process
requirements, we reiterate that the trial courts retain broad discretion to
manage the proceedings as needed to implement the mandate of KRS 532.032
in a manner that protects constitutional due process and achieves substantial
justice.” Id.

VI. Conclusion.

The judgment of the McCracken Circuit Court is affirmed in part, and
reversed in part and this case is remanded with instructions for the trial court
to conduct a hearing on the issue of restitution, in accordance with the

parameters outlined in Jones v. Commonwealth, 382 S.W.3d 22 (Ky. 2011).

All sitting. All concur.

15

COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jeffrey Allan Cross
Assistant Attorney General

16

