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        NOT TO BE PUBLISHED OPINION

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                                                     RENDERED: APRIL 2, 2015
                                                       NOT TO BE PUBLISHED

              oi5uprrtur        (Court of 71,,firttfuritv
                              2014-SC-000020-MR


MARZUQ LABIB NASIR-AL-DIN                                             APPELLANT


                 ON APPEAL FROM DAVIESS CIRCUIT COURT
V.              HONORABLE JOSEPH W. CASTLEN, III, JUDGE
                            NO. 13-CR-00386


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      A Daviess County Circuit Court jury convicted Marzuq Nasir-Al-Din of:

assault in the second-degree; tampering with physical evidence; and of being a

second-degree persistent felony offender (PFO), enhancing his sentence to

twenty-years' imprisonment. Nasir-Al-Din appeals his conviction as a matter of

right under Ky. Const. § 110(2)(b). Before this Court, Nasir-Al-Din argues the

trial court committed reversible error: (1) by threatening a witness with

contempt in front of the jury; and (2) by allowing the Commonwealth to play a

prior statement of a witness without requiring proper foundation. Having

reviewed the record and the parties' arguments, we affirm.

                               I. BACKGROUND.

      On May 15, 2013, William Dixon was shot in the arm outside of his

residence on Plum Street in Owensboro, Kentucky. Dixon went to the hospital

and was treated for a gunshot wound to the arm. Police responded to a report
of a shooting in the area and spoke to George Smith, who was outside when the

shooting occurred. After speaking with Smith, the police went to a nearby

apartment which belonged to Nasir-Al-Din's girlfriend, Ashley Reynolds, to look

for Nasir-Al-Din. The police found Nasir-Al-Din inside Reynolds's apartment,

took him into custody, obtained a warrant; and searched Reynolds's

apartment. In the apartment, police found a handgun hidden in the bathroom,

which they later identified as the gun used to shoot Dixon.

      At trial, Nasir-Al-Din testified that he knew Dixon and, although they

were not friends, they hung around in the same area. On May 15, 2013, Nasir-

Al-Din heard Dixon making derogatory comments regarding his religion, Islam.

Although he initially ignored the comments, Nasir-Al-Din eventually became

angry, asked Dixon why he was being so disrespectful, and told Dixon to stop.

However, Nasir-Al-Din testified that he was not angry enough to shoot Dixon,

had not threatened to kill Dixon, and had left the area before the shooting

occurred.

      Nasir-Al-Din stated that, as he was walking away, he heard shots and

then saw a car speeding down a nearby alley. Although he was not sure who

had been shooting or who had been shot, Nasir-Al-Din feared someone might

be coming after him so he went into the alley. In the alley, Nasir-Al-Din found

a handgun lying on the ground, which he testified he picked up so that he

could protect himself.

      Ultimately, the jury did not believe Nasir-Al-Din's story that he was not

present when Dixon was shot and found him guilty of assault in the second-


                                        2
degree, tampering with physical evidence for hiding the gun in Reynolds's

apartment, and of being a second degree PFO. We address additional facts

below as necessary.

                                   II. ANALYSIS.

A. The Trial Court's Warning to Dixon that He Risked Contempt, Made
in the Presence of the Jury, Was Not Error.

      At trial, the Commonwealth called Dixon to testify regarding the

shooting. Dixon testified he remembered that he had been shot in the arm and

that he had been treated at the hospital for a gunshot wound. However,

despite repeated questions by the Commonwealth, Dixon denied having any

other memories regarding the shooting. Because of Dixon's reluctance to

answer questions, the Commonwealth asked for "permission to lead," which

the trial court granted. The Commonwealth then continued to question Dixon

about who shot him, and, after repeatedly skirting the Commonwealth's

questions, Dixon stated, "I plead the Fifth. I don't have nothing else to say."

      The Commonwealth and Nasir-Al-Din's counsel then approached the

bench to discuss Dixon's assertion of his right not to testify. The

Commonwealth advised the court that, as the victim, Dixon had not been

charged with any crime. Furthermore, the Commonwealth stated that there

were no charges pending against Dixon; therefore, Dixon had no basis for

asserting his right not to testify, and the Commonwealth asked the court to

admonish Dixon accordingly. Nasir-Al-Din's counsel argued that Dixon was

entitled to assert his right not to testify because he was fearful of future



                                          3
criminal charges, and the Commonwealth simply did not like the answers

Dixon gave.

      Following the bench conference, the trial court directed Dixon to respond

to the questions posed to him by the Commonwealth and by Nasir-Al-Din's

defense counsel, stating: "Mr. Dixon, the court is going to direct that you

respond to the questions posed to you [by the Commonwealth] and later those

which will be pozsed to you by [defense counsel]. The court has been provided

no basis whatsoever to show any reason why you could invoke any immunity

from testimony . . . and by a failure to respond, you are subjecting yourself to

contempt." Dixon asked how long his punishment might be for such contempt,

and the trial court responded that it could "go on for quite some time."

      The Commonwealth then asked Dixon if he had argued with Nasir-Al-

Din, which Dixon denied. When the Commonwealth again asked Dixon if

Nasir-Al-Din had shot him, Dixon responded that he did not know who shot

him and concluded his testimony by stating that, even if he knew who shot

him, he would not say. Nasir-Al-Din argues that the trial court unduly

prejudiced him and committed reversible error when, in the presence of the

jury, it threatened to hold Dixon in contempt if he did not answer the questions

he was asked. The Commonwealth argues that this issue is unpreserved, and

that Nasir-Al-Din's argument relies on an inadequate and misleading narrative

of the events precipitating the contempt warning by the trial court.

      As to the issue of preservation, the Commonwealth is correct that

objections must be made contemporaneously and appropriately. Kentucky


                                        4
Rule of Criminal Procedure (RCr) 9.22. At trial, Nasir-Al-Din's counsel argued

that Dixon should have been permitted to assert his right not to testify.

However, Nasir-Al-Din's counsel did not object to the trial court's admonition,

an issue he raises for the first time on appeal. Therefore, the issue is

unpreserved and we review it for palpable error under RCr 10.26. A palpable

error "affects the substantial rights of a party . . . and appropriate relief may be

granted upon a determination that manifest injustice has resulted from the

error." RCr 10.26. "A reviewing court must plumb the depths of the

proceeding . . . to determine whether the defect in the proceeding was shocking

or jurisprudentially intolerable" to the point of causing manifest injustice.

Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006), as modified (May 23,

2006).

         Nasir-Al-Din now argues that the trial court's admonition to Dixon, in

the presence of the jury, violated the judge's duty to remain impartial and

perform his or her duties in a manner that does not show bias or prejudice.

SCR 4.300(5). The Supreme Court of the United States has held that a judge

"may analyze and dissect the evidence, but he may not either distort it or add

to it" and must "use great care that an expression of opinion upon the evidence

`should be so given as not to mislead, and especially that it should not be one-

sided'; that 'deductions and theories not warranted by the evidence should be

studiously avoided."' Quercia v. United States, 289 U.S. 466, 470-71 (1933)

citing. Starr v. United States, 153 U.S. 614, 626 (1894). We echoed this

sentiment holding that a trial judge "cannot by the form of his question or his


                                          5
manner indicate to the jury his opinion as to the credibility of the witness being

interrogated or the guilt or innocence of the accused." Terry v. Commonwealth,

153 S.W.3d 794, 802-03 (Ky. 2005) citing Caudill v. Commonwealth, 170

S.W.2d 9, 10 (Ky. 1943).

      These cases and others cited by Nasir-Al-Din are instructive as to a

judge's duty to be impartial. However, we have reviewed the proceedings and

nothing about the judge's admonition showed bias, prejudice, or a violation of

the duty to remain impartial. The judge simply directed Dixon, a subpoenaed

witness, to respond to the questions posed by the attorneys, something the law

requires every witness to do. The judge did not comment on the credibility of

Dixon's testimony or on Nasir-Al-Din's guilt or innocence. Thus, Nasir-Al-Din

has failed to establish that any error, let alone error causing manifest injustice,

occurred or that the result would have been different absent the admonition.

      Finally on this issue, we note that Nasir-Al-Din cites the following

passage from Kentucky's criminal practice treatise, as support for his

argument that the court should have addressed Dixon outside the presence of

the jury. The author of the treatise states that:

      Before a sanction other than censure is imposed for contempt which
      occurs during a trial, however, the court should give the offending person
      notice of the conduct expected and a clear warning of the consequences
      of further misconduct. If the conduct persists, the court should give the
      offending person prompt notice of its intention to consider contempt
      sanctions. However, to avoid the risk of influencing the deliberations of
      the jury, the actual contempt proceedings should normally be deferred
      until the conclusion of the trial. For the same reason, whatever action
      the court takes should ordinarily be out of the presence of the jury.




                                         6
§ 24:25.Contempt—Procedure, 9 Ky. Prac. Crim. Prac. & Proc. § 24:25 (5th ed.)

(emphasis added and footnote omitted).

      The preceding, while persuasive, is not binding. Furthermore, as the

author of the treatise recommends, the judge did tell Dixon what conduct he

expected and gave Dixon fair warning what the consequences for his failure to

comply would be. However, the judge did not hold any contempt proceedings,

and, although we agree with the author's recommendation that contempt

proceedings should be held outside the presence of the jury, there simply were

no contempt proceedings. Therefore, Nasir-Al-Din's reliance on the preceding

is misplaced.

      For the foregoing reasons, we discern no error, palpable or otherwise, in

the manner in which the court addressed Dixon's behavior.

B. The Trial Court Did Not Commit Reversible Error When it Allowed
the Commonwealth to Play a Witness's Prior Statement.

      The Commonwealth called Smith, a witness to the shooting, to testify

about what he saw. Smith testified he was sitting under a tree with Nasir-Al-

Din when Dixon and Nasir-Al-Din began "having words." Smith stated that

Nasir-Al-Din then left but returned after a short period of time and someone

fired a gun. However, Smith testified that the shot came from behind and,

although Nasir-Al-Din was the only person in that area, Smith stated that he

did not know who fired the shot. This testimony apparently varied from what

the Commonwealth anticipated it would be so the Commonwealth then sought

and received leave to treat Smith as a hostile witness. The Commonwealth

then asked Smith if he had given a statement to police and if that statement
                                         7
differed from his testimony. Smith stated that he did not remember giving a

statement to the police. When the Commonwealth asked him if hearing the

statement might refresh his recollection, Smith admitted it might and stated

that he would like to hear it.

      Nasir-Al-Din's counsel objected arguing that the court should not have

permitted the Commonwealth to treat Smith as a hostile witness and that

Smith's status as a hostile witness was not sufficient grounds to permit the

Commonwealth's playing of Smith's statement. The court disagreed finding

that, because Smith was a hostile witness, the Commonwealth was entitled to

play his prior inconsistent statement.

      Following a short recess, the Commonwealth played the statement, in

which Smith identified Nasir-Al-Din as the shooter. When asked about the

statement, Smith admitted that the voice on the recording was his; however, he

continued to maintain that he did not remember making the statement.

      On appeal, Nasir-Al-Din argues that the court should not have permitted

the Commonwealth to play Smith's statement or enter it into the record

because the Commonwealth had not laid a proper foundation. The

Commonwealth argues that this issue is not preserved because, while Nasir-Al-

Din' s counsel objected to the playing of the statement, she did so for different

reasons. In the alternative, the Commonwealth argues that the court did not

abuse its discretion.

      "This Court is one of review which by definition presupposes prior

consideration by the trial court. If such has not been done, there accordingly


                                         8
can be no review by this Court." Todd v. Commonwaelth, 716 S.W.2d 242, 251

(Ky. 1986) (emphasis added). "When a party states grounds for an objection at

trial, that party cannot assert a different basis for the objection on appeal."

Fain-ow v. Commonwealth, 175 S.W.3d 601, 607 (Ky. 2005). "The critical point

in preservation of an issue remains: was the question fairly brought to the

attention of the trial court." MV Transp., Inc. v. Allgeier, 433 S.W.3d-324, 331

(Ky. 2014). Because lack of a proper foundation was not raised at the trial

court level, the issue is unpreserved. However, as we noted earlier, an

unpreserved error in the application of the Kentucky Rules of Evidence (KRE)

may be reviewed for palpable error using the standard set forth in RCr 10.26.

KRE 103(e). Thus, we must determine if permitting the Commonwealth to play

Smith's recorded statement resulted in manifest injustice. Id.

     In regard to the admission of a prior inconsistent statement, KRE 801A(a)

states:

      A statement is not excluded by the hearsay rule, even though the
      declarant is available as a witness, if the declarant testifies at the trial or
      hearing and is examined concerning the statement, with a foundation
      laid as required by KRE 613, and the statement is:

          (1) Inconsistent with the declarant's testimony[.]

      KRE 613, which sets forth the foundational basis necessary for

admission of a prior inconsistent statement, states:

      Before other evidence can be offered of the witness having made at
      another time a different statement, he must be inquired of concerning it,
      with the circumstances of time, place, and persons present, as correctly
      as the examining party can present them; and, if it be in writing, it must
      be shown to the witness, with opportunity to explain it. The court may
      allow such evidence to be introduced when it is impossible to comply
      with this rule because of the absence at the trial or hearing of the
                                            9
      witness sought to be contradicted, and when the court finds that the
      impeaching party has acted in good faith.

      Nasir-Al-Din argues that the Commonwealth failed to lay a proper

foundation because it failed to ask Smith about the circumstances of time,

place, and persons present when he made the statement to the police; it failed

to show the statement would refresh Smith's memory; and it failed to show that

the statement actually refreshed Smith's memory. The Commonwealth

argues that a proper foundation was laid and thus no error occurred.

      From our review of the record, Nasir-Al-Din's foundational arguments are

flawed for two reasons. First, they depend, in part, on his mischaracterization

of the evidence. The Commonwealth asked Smith questions regarding the

shooting and then asked Smith if he remembered making other statements to

police, specifically to Police Officer Bryan Velotta on the day of the shooting.

While Smith testified he did not specifically remember speaking with Officer

Velotta, he did remember speaking to various police officers that day regarding

the shooting. Thus, the Commonwealth did inquire about "the circumstances

of time, place, and persons present, as correctly as [it could] present them"

meeting the foundational requirements of KRE 613 to admit Smith's prior

inconsistent statement under KRE 801A(a)(1).

      Second, Nasir-Al-Din's argument that the Commonwealth did not

establish that hearing the statement would refresh Smith's memory or that it

did refresh his memory are not foundational elements in KRE 613. They are

foundational elements for the use of a writing or recording to refresh a

witness's recollection under KRE 612. The Commonwealth sought to introduce

                                         10
Smith's statement as a prior inconsistent statement under KRE 801A(a)(1), not

to refresh Smith's memory under KRE 612; therefore, the foundational

requirements of KRE 612 are not applicable.

      Furthermore, as we held in Shepherd v. Commonwealth, 251 S.W.3d 309,

321-322 (Ky. 2008), as modified on denial of reh'g (May 22, 2008) admission of

a prior recorded statement is not error if the statement has been properly

authenticated and the defendant had the opportunity to cross-examine the

witness. The officer who interviewed Smith properly authenticated that

statement and Nasir-Al-Din had the opportunity to cross-examine Smith.

Therefore, we discern no error in the court's admission of Smith's statement

under either KRE 801A(a)(1) or Shepherd.

      Finally, we note that Nasir-Al-Din makes a one-sentence argument that

"there is no exception to the hearsay rule allowing the entire recorded

statement to be entered into evidence." However, he has not pointed us to any

law to support this "argument;" therefore, we do not address it.

                                 IV. CONCLUSION.

      For the foregoing reasons, we affirm Nasir-Al-Din's conviction and

sentence.

      All sitting. All concur.




                                       11
COUNSEL FOR APPELLANT:

Linda Roberts Horsman
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Taylor Allen Payne
Assistant Attorney General




                             12
